Alternative Energy in American Indian Country: Catering to Both Sides of the Coin

By Dreveskracht, Ryan D. | Energy Law Journal, July 1, 2012 | Go to article overview

Alternative Energy in American Indian Country: Catering to Both Sides of the Coin


Dreveskracht, Ryan D., Energy Law Journal


Synopsis: This article looks at both sides of the renewable energy "coin" in relation to American Indian country. On the one side, it appears that tribal governments are opposed to any energy development on their lands. All told, however, this couldn't be further from the truth - tribes merely seek a seat at the table when decisions are made regarding developments that will adversely affect their lands and/or areas of cultural significance. Indeed, contrary to being opposed to alternative energy development, tribes are very actively seeking to develop their lands in a manner that is consistent with their cultures and traditions. But, large-scale alternative energy projects are virtually absent from Indian country. This article argues that the oft-overlooked other side of the renewable energy "coin" are the federal regulations that hinder these projects from coming to fruition. The final section of the article will discuss what Congress is - and is not - doing regarding the two sides of this "coin."

I. INTRODUCTION

A recent study conducted by Small Business America1 reveals that "[a]cross all industries and at both ends of the political spectrum, entrepreneurs overwhelmingly support government investing in renewable energy and creating clean energy policies that will help guide them into a new economic sector where they can do business."2 The study found that "71 percent believe government investments in clean energy play an important role in creating jobs now."3

Given the bipartisan Congressional support for tribal energy development in Indian country,4 one would assume that tribal governments and their citizens would be playing a large role in making this come to fruition.5 But, as noted by Senator Daniel K. Akaka (D-HI), "[o]ur existing laws are falling short of fully enabling tribes to develop their natural resources."6

Has anyone stopped to ask, though, whether tribal governments and their citizens even want to develop alternative energies on their lands? A peripheral reading of recent media accounts would suggest that tribes throughout the Nation are voicing active opposition to alternative energy projects.7

This article looks at both sides of the renewable energy "coin" in relation to American Indian country. On the one side, at least according to some recent media depictions, it appears that tribal governments and their citizens are adamantly opposed to any energy development on their lands. All told, however, this couldn't be further from the truth. Section A of this article will explain that tribes merely seek a seat at the table when decisions are made regarding developments that will adversely affect their lands or areas of cultural significance, and why this is important. Indeed, contrary to being opposed to alternative energy development, Tribes are very actively seeking to develop their lands, and to do so in a manner that is consistent with their cultures and traditions. But, large-scale alternative energy projects are virtually absent from Indian country. Thus, Section B of this article will discuss what is hindering these projects from coming to fruition. Finally, Section C of the article will discuss what Congress is - and is not - doing regarding the two sides of the coin.

A. Consultation is Not Resistance: The Fallacy of Tribal Opposition to Alternative Energy Development

President Obama's "goal of generating 80 percent of the Nation's electricity from clean energy sources by 2035"8 has led to numerous projects on millions of acres of public lands, mostly in Western states.9 The Administration has put some of the most promising, shovel-ready projects on a "fast track" for Bureau of Land Management (BLM) permitting.10

When issuing these permits, federal officials adamantly contest that "they have consulted with multiple tribes and have either made sure the massive solar projects will not harm any historic works or have determined that certain sites are not worthy of protecting. …

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