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The Rise of Tribes and the Fall of Federal Indian Law
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GOP leaders release second draft of energy bill
Tuesday, September 30, 2003

Republicans crafting the national energy policy bill released a new version of the controversial Indian energy title on Monday, saying they incorporated the suggestions of Democrats.

Key among the changes is language that seeks to reinforce the federal government's trust responsibilities. New provisions affirm an ongoing trust relationship with tribes that choose to speed up development of their lands.

Left unchanged, however, is the section that waives the Department of Interior's liability for mismanagement that might occur on those lands. This has been the most contentious part of the bill, raising charges by some Democrats and some tribes that it would undermine the entire tribal-federal relationship.

But the section has been modified to the point where the waiver only applies under a certain set of conditions. For example, if a tribe negotiates an agreement with a third party whose terms are not in compliance with pre-approved tribal regulations and federal law the government's liability remains intact.

Another revision calls on the government to protect the rights of tribes when third parties violate federal law or tribal agreements and that the government shall always "act in good faith and in the best interests of the Indian tribes."

In releasing the new set of changes, Sen. Pete Domenici (R-N.M.) and Rep. Billy Tauzin (R-La.) said they reflected "bipartisan input." "We have made excellent progress on this energy conference," they said in a joint statement.

Sen. Jeff Bingaman (D-N.M.), the ranking member of the Senate Energy and Resources Committee, asked for, and received, language that requires Interior to develop regulations that allow for "site inspections" of tribal energy projects. Another Bingaman section allows tribes to receive federal funding to develop what are known as tribal energy resource agreements (TERAs).

The TERAs are at the heart of the streamlined process envisioned by the bill. Once a TERA is approved by Interior, tribes can enter into leases, business agreements and rights-of-way without seeking federal approval for each separate project.

Republican supporters, including Sen. Ben Nighthorse Campbell (R-Colo.) note that the TERA process is entirely voluntary. Tribes worried about releasing the government of its liability don't have to participate.

Some tribes and tribal organizations, including the Council of Energy Resource Tribes (CERT), back the new process. Waiting for federal approval can cause business deals to evaporate or go sour, they say.

Others believe the bill could have some negative impacts. The Navajo Nation, the largest tribe in the country, and the National Congress of American Indians (NCAI), raised concerns about the section on liability, charging that it would encourage Interior to shirk its responsibilities.

The Department of Energy estimates that 10 percent of the nation's untapped energy resources are on Indian land. Many tribes have eagerly tapped their coal, natural gas and other assets.

Relevant Documents:
Indian Energy Title | 2003 Energy Legislation

Relevant Links:
Senate Energy and Natural Resources Committee - http://energy.senate.gov
National Congress of American Indians - http://www.ncai.org
Navajo Nation - http://www.navajo.org
Council of Energy Resource Tribes - http://www.certredearth.com

Related Stories:
Energy bill process draws complaints from Democrats (09/25)
GOP leadership resurrects ANWR drilling provision (09/23)
GOP to add ANWR drilling provision to energy bill (09/22)
Democrats say Republicans hogging energy bill talks (09/12)
White House renews call to open ANWR to drilling (9/11)
Bush seeks speedy passage of energy legislation (08/20)
Navajo president still concerned about energy bill (08/06)
Senate scraps energy bill for 2002 measure (8/1)
Indian energy title being reworked in Senate (7/31)
Indian energy title up for debate in Senate (7/28)
Editorial: Senate should vote down Indian energy (7/25)
Campbell: The 'truth' about Indian energy bill (7/25)
Navajo Nation's Shirley slams energy bill (7/22)
Report: Campbell aide shuts down energy bill debate (07/08)
Senate takes up Indian energy title (6/12)
Navajo Nation opposes energy bill (6/6)
Indian energy title adopted without changes (04/30)
Tribes weigh effects of energy legislation on trust (03/20)
Navajo Nation tussles with new trust 'philosophy' (03/20)
Interior opposes oversight in energy bill (03/20)
High court ruling makes 'passive' trustee of U.S. (3/5)

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