Senate energy bill draws objection from Navajo Nation

FRIDAY, JUNE 6, 2003

The largest tribe in the nation voiced opposition this week to the energy policy bill under consideration in the Senate, calling it a "severe weakening" of the federal trust relationship.

In a letter to the Sen. Pete Domenici (R-N.M.), Navajo Nation President Joe Shirley Jr. said he supported the overall goals of the legislation. But he told the chairman of the Senate Energy and Natural Resources Committee that certain provisions pose significant risks to tribes that want to develop their mineral resources.

"If successful, this attempt would be a virtual endorsement by the Indian tribes' trustee itself, of the fraud, dishonesty and unethical treatment that was the subject of the Navajo Nation's claim against the United States, and would open the door for future similar conduct by federal officials," Shirley wrote on June 4.

Shirley referred heavily to his tribe's $600 million breach of trust claim that was before the Supreme Court this year. In a 6-3 decision issued March 4, the justices said the Department of Interior did not have a fiduciary obligation to ensure the tribe received the best return on a highly valuable coal deposit. The court cited a federal law, much like the one the Senate is considering, that relegated the government to a limited role on Indian energy matters.

The ruling cost the tribe at least $600 million but it also generated significant debate in Indian Country. At a Senate hearing in March, Indian leaders said they supported the bill's goal of increasing tribal control but cautioned against an erosion of the federal government's responsibilities.

The concerns led Domenici to include language in the energy bill, S.14, that seeks to preserve the trust relationship while allowing tribes to develop their own energy development regulations, subject to initial approval by the Interior. Supporters, including Sen. Ben Nighthorse Campbell (R-Colo.), point out that tribal participation is voluntary.

During a conference call with New Mexico-based reporters earlier this week, Domenici said he expected "major debate" on the Indian title when it comes up on the Senate floor. He characterized the issue as a clash between self-determination and keeping "strings" on tribes.

"I'm hopeful that we will say to the Indian people, 'You get your clearance just like everybody else but you only have to do it one time and then you're free to develop the properties as other people develop their properties,'" he said on Monday.

Sen. Jeff Bingaman (D-N.M.), the ranking member of the Energy committee, led an effort to strip the bill of the provisions in question. While he objected on trust grounds, other Democrats said it would allow the Interior to skirt the federal National Environmental Policy Act.

Bingaman was defeated on a straight party-line vote in April. But he intends to introduce an amendment that would strike the language the Navajo Nation objects to.

The Council of Energy Resource Tribes (CERT), which represents more than 50 tribes with significant trust assets, has worked with Domenici's committee to address some of the concerns. Shirley, however, wrote that recent changes were "unacceptable." The Navajo Nation belongs to CERT.

Debate on the energy bill began on Monday. Domenici said it will last for two weeks.

Get the Letter:
Navajo Nation to Domenici (June 4, 2003)

Energy Legislation Documents:
Summary of Indian Energy Title III | Indian Energy Title III | S.14 | Bush Administration Statement

Navajo Nation Decision:
Excerpts | Syllabus | Opinion [Ginsburg] | Dissent [Souter]

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