President Donald Trump
meets with tribal, state and local leaders at the White House on June 28, 2017. The meeting was characterized by confusing and conflicting information, some of it delivered by the president himself. Photo: White
House
Trump order hinders tribal energy contracts despite preference in federal law
Tuesday, May 21, 2019
By Acee Agoyo
Tribes are losing out on millions of dollars in federal energy contracts and President Donald Trump himself is partly to blame, according to a new report from the Government Accountability Office.
Federal agencies spent about $6 billion on energy for their facilities in 2017, the GAO observed in a report made public on Monday. If just a small portion of those contracts went to tribes, it would represent a huge boost for Indian Country, where economic opportunities lag behind the rest of the nation.
Yet neither the General Services Administration, which helps manage operations across the entire government, nor the Department of Defense or the Department of Energy, have ever utilized the Indian preference policy that was adopted by Congress through the Energy Policy Act of 2005 (EPACT05), the GAO said in the report.. That means tribes have been losing out on such contracts for nearly 15 years.
"The federal government, as a significant energy consumer, is in a position to support energy development on tribal lands," the report read.
"However, no federal agency has used the preference since its establishment in 2005, in part because EPACT05 does not require its use or include goals specifying how agencies should use it," the report continued.
An aerial view of the
Kayenta Solar Facility on the Arizona portion of the Navajo Nation. The facility generates enough power for 18,000 homes on the reservation, Cronkite News reported. Photo: Navajo
Nation Office of the President and Vice President
Even after the GAO highlighted the preference issue in a prior report, tribal energy providers have been excluded from such contracts. At the time, federal officials said they were unsure how to carry out the policy.
In hopes of resolving the situation, the GSA developed guidance to help the key agencies implement Indian preference. The guidance, however, was rejected by the Federal Acquisition Regulatory (FAR) Council, which is the ultimate authority on the matter, the GAO said in the new report.
According to the report, the Far Council thought the guidance was of limited use because it mainly affects just the GSA, DOD and DOE. But there was another reason given and that's where Trump -- whose administration has otherwise promoted increased energy development, including on tribal lands -- comes in.
In one of his first actions as president, Trump in January 2017 issued Executive Order 13771, which requires all federal agencies to reduce regulatory costs and burdens. Three months later, the FAR Council cited the order in declining to accept the Indian energy preference guidance, the GAO disclosed.
As a result, the GSA merely "added the preference language from EPACT05 to the form it uses to delegate purchasing authority to other federal agencies that may seek this authority in the future."
While that action might be seen as progress, there are signs which suggest additional direction is needed. DOE, for example, adopted its own internal guidance in 2013, some eight years after the Indian preference policy became law, the report stated.
But it still hasn't helped tribes land such contracts because a majority of DOE offices didn't even know about the guidance, according to the report.
"DOE distributed the tribal energy preference guidance through a February 2013 acquisition letter," the GAO noted. "However, in our interviews with officials responsible for purchasing energy in nine DOE offices, we found that officials in five of these nine offices were unaware of the DOE guidance or unaware of the preference. DOE headquarters officials stated that the agency did not take further action to communicate the guidance or ensure relevant officials were aware of it after its initial distribution."
There are other indications that Trump's agenda has caused setbacks to Indian Country. He has refused to carry on the work of the White House Council on Native American Affairs, which was established by former president Barack Obama, even though a subgroup had been established to address roadblocks to tribal energy development.
Instead, Trump conducted just one energy roundtable with tribal leaders and that was back in June 2017. The meeting was characterized by extremely confusing and conflicting information from the president himself.
Indianz.Com Video by Kevin Abourezk: David Bernhardt on Indian Trader
Regulations
Then, in September of that year, his Indian energy czar resigned in disgrace and a permanent director didn't get installed until earlier this year. Separately, a key appointee at the Bureau of Indian Affairs whose portfolio included energy development, ended up leaving by the end of Trump's first year in office.
And despite widespread support for an update to the Indian Traders regulation, which tribes say would help protect energy development on their lands, the Trump administration has quietly killed the initiative. A document circulating within the Department of the Interior and described to Indianz.Com by those who have seen it indicates that the initiative was a high priority when former Secretary Ryan Zinke came on board in March 2017.
In fact, the Indian Traders regulation was put on the fast track and as late as June 2017, senior Trump officials at Interior were telling tribes it was one of their top priorities. But after David Bernhardt joined the department as Deputy Secretary at the end of that summer, it was removed from the internal document, according to people who have seen it. Bernhardt is now serving as Secretary of the Interior following Zinke's fall from grace.
Amid the turbulence, the Trump administration has vowed to address another failing of the Energy Policy Act of 2005. The law encourages tribes to develop tribal energy resource agreements, or TERAs, and submit them to the BIA for acceptance.
The concept is similar to the Helping
Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in
that a tribe isn't required to seek BIA approval for every single agreement once
their regulations are accepted. The HEARTH Act has proven to be popular in
Indian Country, with dozens of tribes streamlining their leasing regulations.
However, due to uncertainty at the federal level, no tribe has ever developed a TERA since 2005 even though the law was touted as a step toward greater self-determination during the
Republican-controlled 109th Congress.
Indian Country directly benefits from the Administration’s energy security initiative. Energy royalties paid last year to Indian tribes and allottees totaled over $1 billion. Energy production in Indian Country, as a source of revenue, is now second only to gaming.
— Assistant Secretary Tara Sweeney (@ASIndianAffairs) April 10, 2019
Assistant Secretary for Indian Affairs Tara Sweeney, whose nomination was delayed by conflict of interest issues connected to her advocacy for energy development in Alaska, has since vowed to get a TERA approved under her watch.
"Indian Country directly benefits from the administration's energy security initiative," Sweeney asserted on April 10, in what was her first appearance on Capitol Hill since being confirmed to her position nearly nine months prior. Her written testimony, which had been delivered late to the Senate Committee on Indian Affairs, used the words "energy dominance initiative" instead.
"Energy royalties paid last year to Indian tribes and allottees’ totaled over $1 billion," Sweeney added, or nearly double the amount from the year prior. "Energy production in Indian Country, as a source of revenue is now only second to gaming."
A GAO report issued during the Obama era highlighted numerous management issues at the BIA related to energy development. At the dawn of the Trump administration, the GAO placed Indian energy at the BIA on its list of "high risk" federal programs.
