    [House Hearing, 115 Congress]
    [From the U.S. Government Publishing Office]

           TRIBAL ENERGY RESOURCES: REDUCING BARRIERS TO OPPORTUNITY

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                     THE INTERIOR, ENERGY, AND ENVIRONMENT

                                     OF THE

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JULY 17, 2018

                                   __________

                               Serial No. 115-91

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

                  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Available via the World Wide Web: http://www.fdsys.gov
                             http://oversight.house.gov

                                     ________

                         U.S. GOVERNMENT PUBLISHING OFFICE

    31-368 PDF                   WASHINGTON: 2018

                  Committee on Oversight and Government Reform

                      Trey Gowdy, South Carolina, Chairman
    John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland,
    Darrell E. Issa, California              Ranking Minority Member
    Jim Jordan, Ohio                     Carolyn B. Maloney, New York
    Mark Sanford, South Carolina         Eleanor Holmes Norton, District of
    Justin Amash, Michigan                   Columbia
    Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
    Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
    Virginia Foxx, North Carolina        Jim Cooper, Tennessee
    Thomas Massie, Kentucky              Gerald E. Connolly, Virginia
    Mark Meadows, North Carolina         Robin L. Kelly, Illinois
    Ron DeSantis, Florida                Brenda L. Lawrence, Michigan
    Dennis A. Ross, Florida              Bonnie Watson Coleman, New Jersey
    Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
    Rod Blum, Iowa                       Jamie Raskin, Maryland
    Jody B. Hice, Georgia                Jimmy Gomez, Maryland
    Steve Russell, Oklahoma              Peter Welch, Vermont
    Glenn Grothman, Wisconsin            Matt Cartwright, Pennsylvania
    Will Hurd, Texas                     Mark DeSaulnier, California
    Gary J. Palmer, Alabama              Stacey E. Plaskett, Virgin Islands
    James Comer, Kentucky                John P. Sarbanes, Maryland
    Paul Mitchell, Michigan
    Greg Gianforte, Montana

                         Sheria Clarke, Staff Director
                        William McKenna, General Counsel
                              Emily Wong, Counsel
                             Kiley Bidelman, Clerk
                     David Rapallo, Minority Staff Director
                                     ------

              Subcommittee on the Interior, Energy and Environment

                       Greg Gianforte, Montana, Chairman
    Paul A. Gosar, Arizona, Vice Chair   Stacey E. Plaskett, Virgin
    Dennis Ross, Florida                     Islands, Ranking Minority
    Gary J. Palmer, Alabama                  Member
    James Comer, Kentucky                Jamie Raskin, Maryland
    Michael Cloud, Texas                 Jimmy Gomez, California
                                         (Vacancy)

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on July 17, 2018....................................     1

                                   WITNESSES

    The Honorable Alvin Not Afraid, Jr., Chairman, Crow Tribe of
      Indians
        Oral Statement...............................................     4
        Written Statement............................................     7
    The Honorable Adam Red, Councilman, Southern Ute Indian Tribe
        Oral Statement...............................................    11
        Written Statement............................................    13
    Mr. Eric Henson, Executive Vice President, Compass Lexecon;
      Research Affiliate, The Harvard Project on American Indian
      Economic Development; Visiting Senior Scholar, The Harvard
      University Native American Program
        Oral Statement...............................................    23
        Written Statement............................................    25
    Mr. Christopher Deschene, Partner, Rosette, LLP
        Oral Statement...............................................    40
        Written Statement............................................    42

                                    APPENDIX

    Statement for the Record of the Property and Environment Research
      Center, submitted by Chairman Gianforte........................    60

           TRIBAL ENERGY RESOURCES: REDUCING BARRIERS TO OPPORTUNITY

                                  ----------

                             Tuesday, July 17, 2018

                      House of Representatives,
             Subcommittee on the Interior, Energy, and
                                           Environment,
                  Committee on Oversight and Government Reform,
                                                       Washington, D.C.
        The subcommittee met, pursuant to call, at 10:08 a.m., in
    Room 2247, Rayburn House Office Building, Hon. Greg Gianforte
    [chairman of the subcommittee] presiding.
        Present: Representatives Gianforte, Palmer, Comer, and
    Plaskett.
        Mr. Gianforte. The Subcommittee on Interior, Energy, and
    the Environment will come to order. Without objection, the
    Chair's authorized to declare a recess at any time. I want to
    thank the panel for being here. I will begin with my opening
    statement.
        Good morning. The Subcommittee on Interior, Energy, and the
    Environment is meeting today to discuss barriers to energy
    development on tribal lands. According to the most recent
    Census report, Native Americans are almost twice as likely to
    live in poverty than the general population. On reservations
    throughout the country unemployment rates are higher, and per
    capita income is lower than national averages.
        Meanwhile tribal lands contain a wealth of untapped energy
    resources. According to one estimate, tribal lands contain
    nearly 30 percent of America's coal reserves west of the
    Mississippi, and as much as 20 percent of the known natural gas
    and oil reserves. In my home state of Montana the Crow Nation
    alone contains approximately 9 billion tons of coal.
        Energy development projects on tribal lands can create
    jobs, opportunity, and a valuable source of revenue for tribal
    members. Despite the many positive economic benefits tribes can
    reap from developing their energy resources, the Federal
    Government makes it extremely difficult for them to do so. Most
    tribal land is held in trust by the Federal Government. The
    trust relationship charges government agencies, primarily the
    Bureau of Indian Affairs, within the Department of Interior,
    with ensuring the tribal lands and resources are well managed.
    Instead, the government has saddled tribes with a series of
    regulatory burdens. First, the energy development projects on
    tribal lands cost more than comparable projects on private
    property, or even other non-tribal federal lands.
        For example, in the State of Colorado there is no fee for
    applying for a drilling permit on privately owned land.
    However, BLM charges almost $10,000 for a similar drilling
    permit on tribal land. Not only is development on tribal lands
    more expensive, the process is also more complex. On tribal
    lands acquiring the necessary permits for a project requires
    working with a minimum of 4 federal agencies and completing 49
    different steps. On private land, permits can be obtained in as
    few as four steps.
        The added complexity of permitting process on tribal lands
    goes hand in hand with regulatory delays that make developing
    tribal energy resources an uphill battle fought at great cost
    to tribes. Even the most simple of tasks can fall prey to the
    bureaucracy.
        One tribe reported waiting six years for BIA to complete a
    routine title search, something that takes a matter of days for
    a piece of private property. Another tribe represented at
    today's hearing lost an estimated $95 million on a single
    project while waiting years for BIA to approve right-of-way
    agreements. Given these challenges it should come as no
    surprise that many operators are discouraged from pursuing
    projects on tribal lands. These added costs and burdens create
    unnecessary impediments for tribes that wish to make decisions
    about how to use their own land, and they disadvantage tribes
    in comparison to similarly situated private land owners.
        Studies abound documenting the government's shameful
    mismanagement of tribal resources. In 2017, the Government
    Accountability Office added tribal energy programs to their
    list of federal programs most at risk of fraud, waste, abuse,
    and mismanagement, citing a decade's worth of research.
    Fortunately, GAO also made a number of associated
    recommendations to help BIA improve its management of tribal
    resources, and BIA has reported progress towards implementing
    them.
        Today's hearing will provide an opportunity for the
    committee to hear from the tribes about whether any of the
    changes BIA has implemented to date have had an impact. Most
    importantly, the testimony we hear today will highlight the
    biggest challenges tribes face when they want to develop their
    own valuable energy resources. I look forward to hearing from
    our witnesses today about their experiences, and especially
    their suggestions for an ongoing path to a future where tribes
    face fewer obstacles in using your land, their resources, as
    they see fit.
        Before we begin, without objection I would like to submit
    for the record testimony from the Property and Environment
    Research Center, a think tank based in Montana, and thank them
    for contributing to the conversation on tribal energy issues.
        Mr. Gianforte. I would now like to recognize my good
    friend, the ranking member of the subcommittee, Ms. Plaskett,
    for her opening statement.
        Ms. Plaskett. Thank you very much, Mr. Chairman, and thank
    you all for being here this morning. Thank you for the
    testimony, and the expertise you are going to be providing for
    this committee during this hearing.
        Because many tribal communities are economically reliant on
    development of energy resources on their lands, but face
    barriers to using those resources, I am glad we are devoting a
    hearing that will address continuing concerns, and air
    solutions. Seventeen months ago the Government Accountability
    Office high-risk report has outlined several problems that the
    tribes across the country face in the areas of energy,
    healthcare, and education.
        The report characterized the Bureau of Indian Affairs'
    handling of tribal energy resources as mismanagement, full of
    delays that cost revenue to struggling tribes. One of the
    impediments to well-managed energy development is a failure to
    invest in a federal workforce to provide expertise that many
    tribes lack. I, coming from the Virgin Islands, understand when
    people can on one hand tell you that you are mismanaging, and
    that you have not used resources appropriately, but they have
    not actually given you the appropriate resources with which to
    get the job done initially. In fact, President Trump's hiring
    freeze and reorganization have aggravated that problem. BIA
    needs more funding to assist responsible energy development on
    tribal lands, not the status quo or possible cuts.
        As Russell Begaye, President of the Navajo Nation, told a
    Department of Interior panel a year ago, ``Reducing the size of
    the BIA could affect the fulfillment of the trust duties the
    U.S. has to tribes. The BIA should be filled with experts. We
    need the BIA to bring in economists, technology experts, and
    energy and resource engineers to help tribes develop the
    resources on their land.''
        I know, as I said from our experience in the U.S. Virgin
    Islands, that funding and expertise from the Federal Government
    can make a crucial difference in the lives of many. We also
    have severe energy issues. From 2009 to 2013, our islands
    developed and began implementing a long-term strategy to
    transition from reliance on fossil fuel to a clean sustainable
    energy future. With financial assistance from DOE's Office of
    Energy Efficiency and Renewable Energy, and from the Interior
    Department's National Renewable Energy Laboratory, the U.S.
    Virgin Islands has thoroughly evaluated its clean energy
    opportunities, and made a $65 million investment in solar
    power.
        The Department of Energy and technical experts from its
    renewable energy worked with our water and power authority to
    identify the best combination of energy technologies for the
    Virgin Islands to meet its clean energy goal. In 2012, a
    $60,000 grant from the Department of Interior led to the
    development of a network of engineers, contractors, and
    financiers, who assisted the Virgin Islands' power customers in
    implementing clean energy projects.
        We needed and appreciated both the financing and the
    expertise provided by both the Department of Energy, working
    with the Department of Interior, to help the Virgin Islands
    reach its clean energy goals. Likewise, such federal
    investments, not only of dollars, but also of expertise, both
    technically, as well as through support through the process, is
    vital in the effort to eventually transition tribes to capable
    management of their resources.
        Proposals to simply give tribes more autonomy without
    investing more expertise, to give them the financial resources
    they need, as well as guide them through complicated processes,
    involving environmental laws, rights of way, and leases, could
    leave some tribes open to exploitation, or other harm. I am
    concerned that President Trump's and Secretary Zinke's proposed
    reorganization could severely compromise the ability of BIA and
    the Department of Energy's Office of Indian Energy and Economic
    Development from providing the expertise many tribes need.
        I am asking that my colleagues on both sides of the aisle
    look to ensuring that any DOI reorganization does not further
    impede the BIA from fulfilling its trust responsibility, and
    give the BIA the resources and staffing it needs to ensure the
    best energy future for all the tribal communities.
        Thank you so much, Mr. Chairman, for holding this hearing,
    and I look forward to the testimony and the questions to
    follow.
        Mr. Gianforte. Yes. Thank you. And I am very pleased to
    introduce our panel today. I want to thank each one of you for
    traveling here. I understand you went through some circuitous
    routes, and lost some sleep, but it's good to have you hear all
    smiling on the panel.
        First, the Honorable Alvin Not Afraid, Jr., Chairman of the
    Crow Tribe of Indians in my home State of Montana; the
    Honorable Adam Red, Councilman of the Southern Ute Indian
    Tribe; Mr. Eric Henson, Executive Vice-President of Compass
    Lexecon; and Mr. Christopher Deschene, partner at Rosette, LLP.
    Thank you, gentlemen, for being here.
        Pursuant to committee rules, all witnesses will be sworn in
    before they testify. Please remain seated, and raise your right
    hand.
        [Witnesses sworn.]
        Mr. Gianforte. The record will reflect that the witnesses
    answered in the affirmative. In order to allow time for our
    discussion here today, please limit your testimony to five
    minutes. Your entire written testimony will become part of the
    permanent record, however. As a reminder, the clock in front of
    you shows your remaining time. The light will turn yellow when
    you have 30 seconds left, and red when your time is up. Also,
    please remember to press the button to turn the microphone on.
    It does not work automatically.
        So with that, I would like to recognize Chairman Not Afraid
    for your testimony.

                           WITNESS STATEMENTS

                     STATEMENT OF ALVIN NOT AFRAID

        Mr. Not Afraid. Good morning. Thank you Chairman Gianforte,
    Ranking Member Plaskett, and Member Comer. Also the members
    that serve on this panel. Very important subcommittee we have
    here.
        I appreciate the opportunity to share my views and the
    views of the people I represent regarding the impediments to
    energy production in Indian Country. My name is Alvin Not
    Afraid, Jr., and I am the Chairman of the Crow Tribe of
    Indians. We are more than 14,000 members strong, and we own
    more than 2.2 million acres in the West, along the Bighorn
    River. Our land is rich in energy resources, natural resources,
    and minerals. So this topic is close to the hearts of the Crow
    People.
        The Crow Tribe owns 9 billion ton of mineable coal,
    constituting 3 percent of the U.S. reserves. Yet, we only have
    one active mine. Colorado-based Westmoreland Resources
    currently leases the Absaloka Mine, which has existed since
    1974. We love our land and our homes, but our inability to grow
    our local economy through the development of our energy
    resources ensures that we will never rise out of the cycle of
    poverty that we find ourselves in today.
        While every impediment we face cannot be fixed by the
    Federal Government, many of them can, such as one, cumbersome
    Indian coal and oil gas approval processes; number two, long
    wait times for those approvals; number three, numerous federal
    agencies and offices, both within and beyond the Bureau of
    Indian Affairs that must grant approval for energy development
    contracts to move forward; four, cumbersome regulations
    promulgated without meaningful consultation with energy tribes;
    though we are appreciative of the work done to repeal many of
    those in this last year by the Administration; number five,
    poorly kept and incomplete records from which critical
    decisions must be made; number six, inexperienced bureaucrats
    who oversee the entire approval process.
        Barriers to economic development costs Indians millions of
    dollars in lost revenue. If the Crow Tribe wants to enter into
    an oil gas lease on a land that the tribe owns, we face a
    process of long wait times, usually years, for approval. We
    also face bureaucracy. The BIA was created long ago, in part
    because it was thought that Indians could not intellectually
    evaluate business contracts, purchase agreements, leases, and
    other economic tools. Yet, in an ironic twist of fate, it is
    now the BIA, according to the GAO and Interior's OIG, that
    lacks the intellectual capacity to evaluate business contracts,
    purchase agreements, leases, and other energy development
    mechanisms.
        Consider this from the viewpoint of a businessman. This
    will be easy exercise for you, Mr. Chairman, being a self-made
    and highly successful businessman yourself. Would you have
    asked the random tourist, with no knowledge of your company,
    who was passing through Bozeman, to approve a purchase
    agreement you wish to make? As CEO of Right Now Technologies, I
    am sure you would not have. They do not have the expertise that
    you do about your company. So it doesn't make any sense, right?
    And that's exactly how we feel at the Crow Nation.
        It will take time to roll back the oppressive regulations
    that the previous administration used to perpetuate the war on
    coal, and we appreciate all the work that has been done to date
    by this Congress and this Administration. All of us in
    government roles during this time are in the same predicament.
    From the president, to Congress, to me, as chairman, we all
    find that we are fixing problems not of our making, and
    certainly not of our choosing.
        So how can we work together to fix these problems? I
    advocate for the following. One, at home I am working with
    federal investigators to clean up decades of financial
    mismanagement, and codify oversight controls within our
    government. These are self-help steps that we are taking in
    order to be accountable for our own welfare, and to create a
    healthy atmosphere for private investment in Crow.
        Number two, at the congressional level I ask you to
    cosponsor and support S.245, sponsored by Senator Hoeven, and
    passed by the Senate in December of 2017. I believe that we
    will correct these issues currently stifling progression of the
    Tribal Energy Resource Agreement mechanism. If these fixes
    become law, it is my intention to ensure that the Crow Tribe is
    the first to apply for and enter into a TERA agreement with the
    Secretary of Interior.
        Three, finally, I urge you to continue to seek the
    expertise of organizations that are educating tribal leaders,
    federal-elected officials, and future generations as to the
    best ways to promote private economies in Indian Country.
    Specifically, the research of Dr. Terry Anderson, at the Hoover
    Institute, and the tribal leaders of Alliance for Renewing
    Indigenous Economies. Their scholarship is groundbreaking, and
    it remains some of the only, such as reservation-based, free-
    market focus decisions in the public sphere today.
        In closing, while most of us recognize the barriers of
    tribal energy development, the answers are not simple. We are
    trying to free up economies on the reservation underneath a
    complex framework of mixed government ownership of assets. Our
    nation-to-nation relationship means that we are all caught in a
    delicate web of legal promises and historical responsibilities,
    as well as racial and cultural sensitivities.
        So at this time I would like to thank Chairman Gianforte
    for the invite to speak on behalf of Crow Tribe. Thank you.
        [Prepared statement of Mr. Not Afraid follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Thank you, Chairman.
        And Councilman Red, you are recognized for your five
    minutes of testimony.

                         STATEMENT OF ADAM RED

        Mr. Red. Thank you. Good morning, Chairman Gianforte,
    Ranking Member Plaskett, and members of the subcommittee. I am
    Adam Red, elected member of the Southern Ute Indian Tribal
    Council. Thank you for inviting us to testify. Our tribe story
    attests to our ability to responsibly manage our own natural
    resources. We are an example of the positive impact of federal
    legislation that allows tribes to assume a greater role in
    energy development on their reservations.
        Federal laws require federal review and approval of most
    realty transactions involving Indian lands and minerals. Our
    tribal leadership has always believed that we can do a better
    job of managing our resources than would federal agencies.
    Unlike federal agencies, we have a vested interest in
    protecting our resources and maximizing economic returns for
    those resources. In keeping with that philosophy, we have taken
    advantage of most congressionally created opportunities to
    exercise self-determination, like the Indian Mineral
    Development Act of 1982. The IMDA allowed tribes to negotiate
    their own leases, subject, of course, to BIA approval. With
    that important legislation, we negotiated favorable terms in
    our oil and gas leases, which United States didn't have the
    incentive to negotiate for on our behalf.
        Less than 50 years ago our tribe had to stop distributing
    per capita payments to tribal members because we couldn't
    afford them. Today, the tribe's oil and gas companies conduct
    activities in several Western states. We also invest in non-
    energy projects, including real estate properties across the
    country. Today, a tribe provides health insurance for its
    tribal members, and promises all members access to a college
    education. We are the largest employer in our region, and we
    are the only tribe in the nation with a AAA credit rating from
    Standard & Poor's. We have been successful despite the
    obstacles created by underfunded, understaffed federal agencies
    like the BIA. Those obstacles are a very real problem, because
    they create a significant disincentive to developing oil and
    gas on tribal land.
        For example--please queue the slide. Permitting a well on
    private land typically takes four months. Permitting a well on
    tribal land can take more, like 30 months. A drilling permit
    from the state for drilling on private land is free. A drilling
    permit from the BLM to drill on tribal land is $9,500. Tribal
    land is treated like public land, and is subject to NEPA and a
    public comment process. Private land is not.
        On reservations like Southern Ute, where private land and
    tribal land are interspersed, drilling on private land is
    significantly faster and cheaper, and an operator can drill on
    private land and still drain tribal minerals. Please take down
    the slide.
        We are grateful for the new attention GAO and OIG have
    brought to this issue, but there is a lot of work to be done.
    We have some suggestions. Enact S.245, which will allow tribes
    to choose to play a larger role in the energy development
    process, while the United States plays a smaller role. This is
    a solution that can be achieved without increasing federal
    funding or staffing.
        BIA must recruit realty staff in order to process our
    transactions. With the Southern Ute agency we have had two
    realty specialist positions that have been vacant for several
    years. Recently, the agency extended two offers to fill those
    positions. But one of the selected applicants ultimately
    declined her offer after the Bureau failed to approve the
    incentive package in a timely manner. BIA always tells us they
    can't hire people here because of the high cost of living in
    our region. We need a cost-of-living adjustment from OPM for
    our area.
        BIA must hire and train people to work on TAAMS, so that
    the BIA can verify land ownership information in a timely
    manner. With more TAAMS trainings, more BIA staff devoted to
    TAAMS, and loosening of the requirements for tribally funded
    staff to do TAAMS and coding, this situation could be improved.
        Interior must define inherently federal functions. Under
    the Energy Policy Act of 2005 Congress established a mechanism
    called a TERA that allows tribes to enter into energy-related
    transactions without prior BIA review and approval. This would
    have been a dramatic improvement, but the implementing
    regulations created an unlegislated, undefined exception to the
    scope of TERA.
        The implementing regulations say a tribe may not assume
    inherently federal functions. Despite our numerous requests
    Interior refuses to define that term. Contrary to the GAO's
    recent findings, the BIA has failed to resolve this regulatory
    blockage. Another suggestion we have is that Congress act to
    accelerate environmental studies under NEPA and ensure timely
    NHPA compliance.
        In conclusion, our tribe, like many other tribes, is well
    equipped to utilize our energy resources. We need more support
    for tribal self-determination for tribes willing to assume
    responsibility for managing their energy resources. We believe
    that this approach should be at the forefront of any
    congressional oversight and action taken in response to GAO's
    and OIG's reports. The tribe appreciates the continued efforts
    of this Congress, this subcommittee, and others to encourage
    tribal self-determination through economic and energy
    development. Thank you.
        [Prepared statement of Mr. Red follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Thank you, Councilman.
        And Mr. Henson, you are recognized for your five minutes of
    testimony.

                    STATEMENT OF ERIC CONRAD HENSON

        Thank you. My name is Eric Henson. I'm a research fellow at
    the Harvard Project on American Indian Economic Development.
    And I work full time in an economics consulting firm out of
    Boston. I've done about 20-something years of tribal affairs,
    and I'm very happy to be here speaking with you today.
        The Harvard Project started about 30 years ago with a very
    simple question. There is observation that some tribes that
    seem to have great natural resource endowments weren't quite
    taking off and doing so well. Poor socioeconomic outcomes.
    Other tribes, which had no apparent access to the kind of
    resources you might expect, would lend themselves to great
    economic outcomes, were doing just fine. So a couple of
    researchers at Harvard, I was only at high school at the time,
    so I was not there, set out in a rental car to kind of
    investigate this question. And these guys found over time that
    what really mattered were a couple of things that nearly sound
    self-explanatory today, but were kind of revolutionary at the
    time. Capable governing institutions on the part of tribes are
    really important.
        You know, the word 'bureaucrat' or 'bureaucracy' kind of
    has a negative connotation sometimes. But in terms of
    government, someone needs to show up on Monday morning and keep
    the wheels of government working. And this applies to tribes no
    more or less than the Federal Government, states,
    municipalities. It is really important to have the right kinds
    of institutions in place.
        Secondly, having a form of government that comports with
    the norms that the citizenry receives is the right way to
    govern the community is really important, and not every place
    has that. Lots of travel governments for a long time were kind
    of imposed by outside entities, and didn't square up with how
    the people thought about governing themselves at all.
        And finally, most relevant to today, the single most
    important thing that was helping tribes grow their economies in
    a sustainable manner was self-determination, tribal
    sovereignty, putting the decision-making process in the hands
    of those, like the two gentleman next to me, who are right
    there on the ground.
        Now what we found, and what I argue today, is that doesn't
    necessarily mean abandoning the U.S. Federal Government's
    responsibilities to the tribes. In fact, I would argue for a
    recommitment to that. Ms. Plaskett echoed this a little bit.
    There is no reason why tribal control or decision-making
    processes, sensible regulations, undoing multiple overlapping
    layers of unnecessary regulatory schemes, et cetera, et cetera,
    that doesn't have to be counter to the notion of providing the
    right kind of resources, if the Bureau of Indian Affairs, to
    take the most obvious example, is going to go out and attract
    dozens and dozens of highly technical employees over the next
    several decades. Which is going to be important, given the
    retirement numbers that are coming its way. Those people, you
    know, you're competing with private industry to lure people to
    places like the Durango, Colorado, area, and they are
    expensive.
        And there are just some silly impediments to getting those
    people. There is a lack of local advertising for the right
    staff. There is this inability to just pay a cost-of-living
    adjustment to get the right people there. And it's also
    important to keep in mind, you're not going to necessarily lure
    someone to a remote location, be it the Virgin Islands or the
    Durango area, and have them start on day one as an expert. A
    lot of these jobs take decades and decades of expertise.
        Now recommitting through the appropriations process to the
    right kind of staffing and funding for the BIA and all the
    other departments that oversee energy development is doubly
    important. Not only to put the right staff in place to
    interface with folks like Councilman Red and Chairman Not
    Afraid, but also, think about it, if you're in a place that's
    kind of remote, that faces brain drain, you have an
    underdeveloped economy, small population, the appeal of the big
    city is always there. You're trying to convince these people to
    devote their careers to a life in an energy development area
    that is often small population far from urban centers.
        So the BIA, or other departments, can be a viable career
    alternative not just for outsiders, but for tribal citizens as
    well. At Crow there are plenty of people who could really
    benefit from a stable long-term governmental job. And that
    could be working hand in hand with the tribe in developing its
    energy resources.
        And the last thing I'll say before I pass the mic is, you
    know, there are several legislative ideas out there that would
    impose, say, deadlines on the BIA, or other things of that
    nature. But imposing artificial deadlines without providing the
    right resources to meet those deadlines is not in service to
    Indian Country. Thank you very much.
        [Prepared statement of Mr. Henson follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Thank you, Mr. Henson.
        And now we will recognize Mr. Deschene. Is that correct?
        Mr. Deschene. Yes, sir.
        Mr. Gianforte. Yes. Please go ahead. You have five--you are
    recognized for five minutes.

                STATEMENT OF CHRISTOPHER CLARK DESCHENE

        Mr. Deschene. Thank you. [Speaking native language.] Good
    morning, Chairman Gianforte, and Ranking Member Plaskett,
    members of the committee. My name is Christopher Clark
    Deschene. I'm a member of the Navajo Nation, and a partner with
    Rosette, LLP, which is a national tribal law firm. I'm here
    also with Councilman Leon Reval from the Jicarilla Apache
    Nation, Northern New Mexico.
        As a member of the--excuse me. As a former director for
    Indian Energy at DOE, I'm here to share my thoughts and
    recommendations for improving tribal energy development within
    Indian Country. As my people say [Speaking native language.],
    which means 'educate them all.'
        With regards to the policy challenges, there are four
    general reasons underlying tribal energy issues, and
    undermining the federal tribal energy policy. These are: One,
    the Federal Government's antiquated land policies; two, federal
    courts' use of judiciary plenary power; and three, the
    inability of Congress to pass comprehensive tribal energy
    legislation, and dedicate adequate resources; four are the
    paternalistic, inefficient, and archaic bureaucracy of the
    Executive Branch and its agencies.
        With respect to Congress, congressional elections over the
    last 12 years have hurt Indian energy development. Travel
    energy bills designed to continue the work started under Title
    V of the Energy Policy Act have all stalled due to inaction.
    Similarly, at the Executive, there are a number of policies
    that also have encumbered energy development. These include
    inadequate staffing and support for project reviews and key
    energy positions. Federal agencies have also minimized the
    budget needed to provide adequate and meaningful services and
    financial support through tribal energy development programs.
        Changing the tribal energy paradigm requires tribal
    resources, including water, land, minerals, and labor to help
    solve our country's energy challenges. Tribal leaders have
    always argued that they must be part of the equation in
    solutions offered by our country's energy industry.
    Accordingly, tribal leaders have recommended the following, and
    based upon my observations, Congress should continue tracking
    the implementation of the GAO report recommendations from the
    '15, '16, and '17 reports. Congress should also consider
    passing national tribal energy legislation that updates,
    amends, and supports tribal leadership recommendations.
        The Hearth Act should be amended to allow tribes to approve
    leases and easements for tribal energy development. At the
    Department of Energy, Congress should consider and fund the
    Office of Indian Energy at DOE, at, and this is a big ask, $100
    million for 25 full-time employees. That office has been
    charged with national service, and is operating at a
    substandard level, with less than four employees at times.
    Congress should also look at creating a Senate-confirmed
    Assistant Secretary of Indian Energy at DOE as well.
        Additionally, Congress should allocate and authorize funds
    for the Tribal Energy Loan Guarantee Program at a minimum of
    $100 million. I know that the former senator from Minnesota had
    looked at this effort. That should be picked up again as well.
        Finally, Congress should look at tribal energy partnerships
    by supporting DOE's Office of Indian Energy's Strategic Roadmap
    2025 that enumerates a number of goals, including the buildout
    of tribal businesses and their roundtables to help foster
    tribal energy development from the industry. With regards to
    the Administration, again, the GAO reports are instructive.
    They should also look at the implementation of five- to ten-
    year budget plan with regards to funding for DOE and DOI, with
    OMB.
        Given that my time is running short, I'd like to just talk
    a little bit about policy as well. With regards to policy, the
    Federal Government should look at funding agency programs
    throughout the government. Programs that build tribal capacity,
    education, and workforce development are important. With
    regards to transmission, planning, access studies, and
    ownership are all vital, and should be supported as well.
    Renewable energy standards, incentives, and partnerships are
    key to help tribes build out the renewable energy programs. And
    cross-agency coordination is very important, given that DOE and
    DOI has started the process in the last few years. And finally,
    strengthen and improve the consultation and coordination
    process when it comes to working with tribes throughout the
    country.
        In conclusion, no message resonates better than success. As
    noted, dedicated resources and funding investments are vital to
    the success in Indian Country. I thank you for allowing me to
    share a few of these recommendations. I am happy to answer any
    questions.
        [Prepared statement of Mr. Deschene follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Thank you for the panel for your insightful
    testimony.
        We will now move to questions. And I'd like to recognize
    Mr. Palmer for five minutes.
        Mr. Palmer. Thank you, Mr. Chairman. Mr. Henson, what does
    the Indian community stand to gain as far as employment growth
    if the regulations are reduced or simplified?
        Mr. Henson. That's an interesting question, and I have not
    quantified it personally. I would certainly be interested in
    looking into that and getting back to you, if that's a
    possibility.
        Mr. Palmer. Well, listening to the testimony of Chairman
    Not Afraid and Councilman Red, it's obvious that it would be an
    economic benefit to the tribes not only in revenue, but in
    jobs. And I see Chairman Not Afraid nodding. Do you want to
    comment on that?
        Mr. Not Afraid. Yes. Thank you, Mr. Palmer. First of all,
    I've observed and analyzed that for every 2 million tons of
    coal being developed creates a minimum of 120 well-paid jobs
    for the Crow people.
        Mr. Palmer. Say that again. How many well-paid jobs?
        Mr. Not Afraid. A hundred-and-twenty.
        Mr. Palmer. Mm-hmm.
        Mr. Not Afraid. And the average annual salary is about
    $80K.
        Mr. Palmer. $80,000? That's a very high-paying salary in
    Montana, I believe, Mr. Chairman. Let me ask you this, and this
    is for Chairman Not Afraid and Councilman Red. What other
    energy resources are available on tribal lands? Because I think
    you said that 88 percent of the tribal lands contain some kind
    of energy resource. And you mentioned coal. Are there other
    resources?
        Mr. Red. Thank you. I'll take a stab at that. With us, with
    the Southern Utes, we have natural gas, and we are one of the
    largest producers of natural gas in the country. And so that's
    where a lot of our resources are from. We've got our own
    companies that, on the reservation and off reservation, that
    deal with that. We also have coal. We haven't developed the
    coal. We've developed the methane underneath it, or out of the
    coal itself. And there's numerous other, as well as, like solar
    power. We've got 300 days of sunlight. Wind potential. There's
    a lot of other energy resources that we could take advantage of
    there, but we really haven't gotten into yet.
        Mr. Palmer. Do you have the infrastructure to--if you are
    developing solar and wind power, do you have the infrastructure
    in place where you can sell that power off reservation, off the
    tribal lands?
        Mr. Red. We don't. And that's part of the problem in the
    location. We're really isolated when it comes to infrastructure
    on a national level. So we're really isolated when it comes to
    that.
        Mr. Palmer. Do you know if any of the Green River formation
    are on tribal lands? That'd be northern Colorado--western
    Colorado, northern Utah, southwestern Wyoming. Do you know if
    any--I know it wouldn't be your tribal lands, but do you know
    if any of that is on tribal land?
        Mr. Red. Not on ours.
        Mr. Palmer. That's one of the largest reserves of oil,
    recoverable oil, shale, in the world. It holds three times more
    recoverable oil than the world's used in the last 100 years.
    And it is five to six times the known reserves of the Saudi's.
        Let me ask you this. If given the opportunity to properly
    develop these energy resources, one of the issues, and it goes
    back to the jobs issue, it's not just a mining job, but the
    opportunity for members of your tribes, younger member of your
    tribes, to take science and math, and become energy engineers,
    experts in the energy field, which I think that needs to be
    explored and developed.
        Mr. Not Afraid. Right. In Crow country it is a domino
    effect. So when development occurs, uh, it also enhances the
    social well-being to the Crow membership, a sense of living, a
    sense of pride, as well as a healthy community. And as to Crow,
    speaking about Crow, the diversification of all the energy, we
    have three major grids coming from the south, east and west. So
    if we were to develop the windmill, develop the hydro-plant
    that we have under way, and other green energy developments
    that are under way, we can have a robust system that we would
    not depend on the Federal Government for anything.
        Mr. Palmer. Well, I see your ability to develop the
    resources that you own as a way to not only increase the
    revenue potential for the tribes, but also to elevate the
    tribe, in terms of professional opportunities, engineers,
    business people. It could be a tremendous help to the tribe
    across the board. Not just in the laborers who go out and
    extract the minerals, but those who develop programs for the
    use of them, including engineering the infrastructure, so that
    you can move it where it needs to go.
        My time's expired, Mr. Chairman. I yield back.
        Mr. Gianforte. Okay. Thank you. At this time I recognize
    the ranking member for her questions.
        Ms. Plaskett. Thank you, Mr. Chairman. Mr. Deschene, I want
    to thank you for coming here to testify. You have a large body
    of work and experience in this area that I'm glad that you are
    trying to share with us. Mr. Henson, you were correct that I do
    believe that, and you may have heard in other hearings me talk
    about unnecessary duplication. I'm really trying to streamline
    public policy. It's enormously important. It really impedes
    development in the areas that are least likely to receive it,
    because of bureaucracy. And so in your testimony, based on your
    experience, you advocate significant increases in federal
    spending. Specifically, you advocate funding the Office of
    Indian Energy to $100 million, with 25 full-time employees. You
    also talk about allocating a minimum of $100 million to the
    Tribal Energy Loan Guarantee Program.
        What level of funding has been authorized in these last
    Congresses roughly for the office and the loan program while
    you were serving as director?
        Mr. Deschene. Thank you. When I came to--thank you for that
    question. Chairman and member of the committee, when I arrived
    at DOE in 2015, we had a budget authorization from Title V of
    $20 million for 10 years, starting in 2005. The Office never
    received the full amount of the $20 million, at least while I
    was there. When I arrived it was given, in 2015, a $16 million
    allocation.
        Ms. Plaskett. So your funding was decreased.
        Mr. Deschene. Right.
        Ms. Plaskett. And how many employees, or how many people
    were staffed at that time?
        Mr. Deschene. So at that time, two, officially. Myself and
    headquarters' element support staff. And then from there we
    began consolidating the program and presented table
    organization through HR at DOE in an effort to consolidate ----
        Ms. Plaskett. What area of land were you three people
    supposed to be supporting at the Department of Energy for
    Indian energy?
        Mr. Deschene. So we were charged with the entire United
    States, including Alaska, with, at that time, 567 tribes.
        Ms. Plaskett. So 567 tribes, for all of their energy needs,
    the Department of Energy gave you three, yourself and two other
    employees. Or was it four, you said?
        Mr. Deschene. Well, that's currently what you see on the
    website today, but by 2017 we had grown, through consolidating
    efforts, to about a complement of six to seven.
        Ms. Plaskett. Okay. Six or seven employees, with $20
    million, then reduced to $16 million. What would giving a $100
    million and 25 employees allow you to do?
        Mr. Deschene. So with regards to the employees we have
    three offices. Headquarters in D.C., the Golden field office,
    which handles a lot of the deployment efforts, and then Alaska,
    in Anchorage. So the weight of the program is the deployment
    effort, which is financial.
        Ms. Plaskett. So you'd like to get people out there in the
    field ----
        Mr. Deschene. Right.
        Ms. Plaskett.--is what you're saying.
        Mr. Deschene. Right.
        Ms. Plaskett. And that $100 million would support those
    salaries as well as the ability for them to go out into the
    field.
        Mr. Deschene. So salaries and the administrative would be,
    and I can't remember the numbers, but it would be on the order
    of ----
        Ms. Plaskett. So how would that help Chairman Not Afraid as
    well as Councilman Red if you were to be able to have that?
        Mr. Deschene. For example, if we had a program that
    supports energy investment, what we call still-in-the-ground
    projects--the problem with investing in projects is they're
    either very small, which DOE currently supports $50,000 to
    $250,000 feasibility-type projects, or they're very large, in
    the hundreds of millions. There is not support for programs or
    development in the range from $5 to $50 million on investments
    for community scale energy projects in Indian Country.
        Ms. Plaskett. You know, I talked and others have talked
    about streamlining processes. You are not against streamlining
    some of these permitting processes.
        Mr. Deschene. No. It's needed. It's definitely needed. It's
    absurd that tribes have to go through additional barriers to
    get the same type of approvals for energy projects.
        Ms. Plaskett. But increasing the funding, and particularly
    the loan funding, would allow you to deploy more support to the
    tribes to be able to ----
        Mr. Deschene. Right.
        Ms. Plaskett. Be able to do the things that the Chairman
    was talking about.
        Mr. Deschene. Right. So larger projects under an Indian
    loan guarantee program would support more investment.
        The problem with that, there's two. One, there is a $50,000
    requirement under DOE for tribes to put up to begin the
    application. That's a barrier in itself. Secondly, the current
    program allows for innovative design and application. That's a
    barrier in Indian Country, because we're not looking to prove
    up technology. We are just looking to apply in remote distant
    locations the same technologies that the rest of America
    enjoys.
        Ms. Plaskett. Thank you. Thank you so much for the time,
    Mr. Chairman.
        Mr. Gianforte. Yeah. Thank you. And at this time the Chair
    recognizes Mr. Comer for his questions.
        Mr. Comer. Thank you, Mr. Chairman. My first question is to
    Mr. Henson. In your written testimony you discuss the untapped
    resources of tribal lands. Eighty-eight percent of Indian
    surface lands have resources, but have yet to be developed. Is
    the complexity of the federal permitting process impacting
    tribes' ability to use their own land, and if so, how?
        Mr. Henson. It certainly is. I mean the slide we saw from
    Councilman Red illustrates that. Every marginal decision for
    outside investment looks at how much time and how much capital
    will have to be invested here. And if a tribal development is
    less appealing than a next-door development, you know, over
    time that sends a signal to outside investors to invest not on
    tribal lands. And, you know, sort of reflecting on the last
    question, also, I think about 2 million acres of surface lands
    are currently developed, tribal lands, and the measure is
    something like 15 million undeveloped. There's quite a lot of
    availability for when solar, geothermal, hydroelectric, there's
    massive capacity for renewable development on tribal lands. And
    so streamlining those processes can be just tremendous.
        Mr. Comer. I firmly believe the Federal Government
    excessive regulatory environment has held us back as a nation
    from utilizing the resources that we have, especially with the
    tribes. My question, Chairman Red and Councilman Not Afraid,
    how many jobs have been created for members of your tribe as a
    direct result of energy development projects?
        Mr. Not Afraid. Over a period of 40 years, sustainable jobs
    through development with our partner, Absaloka, Westmoreland
    Mine, we fluctuate anywhere from top of 300 to a bottom of 120.
    And with other venues and diversification within coal, that's
    also creating new jobs, with new technologies.
        Mr. Comer. Right.
        Mr. Red. On the Southern Ute we do have--I can't give you a
    direct number, or absolute number, but we do have quite a few
    jobs that are influenced. We have members that work for our own
    oil and gas companies, and we also have members that work for
    other companies within the reservation. We also work with San
    Juan School of Energy, or it's San Juan Community College
    School of Energy, where we send our employees, our tribal
    members, and other staff down there to get the training
    necessary to be fruitful in this formation, or in the
    development of our area. So we don't really put a number on the
    jobs there, but it, for the region itself, is huge with the
    number of jobs it's provided.
        Mr. Comer. Can you gentlemen tell us, tell the committee,
    some benefits your tribe has been able to provide members with
    the revenue produced by developing your energy resources?
        Mr. Not Afraid. Sure. Thank you for that question. That's
    an ideal question, only because the revenues that derive off of
    that coal development ensure that our elder programs continue
    scholarships. Even in the realm of health, and we talk about
    the Affordable Care Act ----
        Mr. Comer. Mm-hmm.
        Mr. Not Afraid.--at times we know that that lacks a lot of
    issues in itself. So the tribe on the royalty side picks up on
    that end. So to me I'm not complaining, but the point is, is if
    we could develop more then we can just entirely take care of
    ourself.
        Mr. Red. And for us, we give a distribution to our members
    every month, or throughout the year. We also have healthcare
    for all our members. Nothing's denied. We pay for everything.
    We also have education. So everybody's guaranteed a secondary
    education if they decide to pursue that. And that's really
    unheard of when it comes to Indian Country, is providing all
    these resources on something that we've got from our natural
    resources.
        Mr. Comer. Right. Well, thank you very much. Mr. Chairman,
    I yield back.
        Mr. Gianforte. Okay. Thank you. And I'll recognize myself
    for questioning at this time.
        Councilman Red, I'd like to follow-on Mr. Comer's question.
    Just listening to your testimony and reading the written
    testimony, it's clear that you've, in the face of some large
    obstacles, you've still been able to develop these energy
    resources. Could you talk on a more personal level what it
    means to an individual family in the Ute Nation when they
    receive benefits from energy development?
        Mr. Red. Well, as an individual on the Southern Ute Indian
    Reservation, I mean it is huge. It's really hard to put into
    words. At one point, as in my testimony, we had to stop
    distribution payments. So we couldn't even afford to pay our
    members. And for much of my lifetime that's ----
        Mr. Gianforte. What would that mean to a family when they
    don't get a distribution payment?
        Mr. Red. There's not a lot of employment on the
    reservation. So no income means it's Second-, Third-World
    conditions. But because we do have this, and it's made our
    reservation and families prosperous, and they're able to live a
    good life. We do run into some problems with the amount of
    money now coming in, but I would rather have that problem than
    nothing at all. And it gives a chance for our members to
    succeed. Whether they want to work locally, there's an
    opportunity. And whether they want to go on to school, they
    have that opportunity, also.
        Mr. Gianforte. So you've used a couple words there. Energy
    development has brought prosperity and success to your people,
    and clearly that's a good thing.
        Mr. Red. Yeah.
        Mr. Gianforte. Chairman Not Afraid, welcome again to a
    fellow Montanan. You know, we've spent time together in Crow
    Country, and for whatever reason we've had limited energy
    development. And it's clearly your decision as a sovereign
    nation what you want to do with your energy resources. Could
    you describe the situation you have in Crow Country today, and
    what additional energy development would mean to the families
    there?
        Mr. Not Afraid. Yes. Thank you. Well, first of all, there
    was a study done during the Bush Administration that depict
    approximately $1 trillion worth of asset development prospects.
    But the Crow Tribe, at the time, couldn't fully implement, only
    because the government runs on a two-year cycle at that time.
    Now with this new constitution that we adopted allows for a
    four-year term, because when we do talk about permitting,
    whether it's a mine, whether it's oil, whether it's a gravel
    pit, the redundancy of the process takes more time.
        Therefore, as an elected official you may not see the
    fruits of your labor because of the time it takes to develop.
    Overall, what we have developed is, like Southern Ute, where
    the royalties truly benefit the people. And the government
    itself does not partake in that. That's a dividend paid out to
    the people for their share of ownership in the mineral.
        But if we can continue to develop soundly, again, that's
    our way out of the hole. And until we recognize or streamline
    some of these processes, we're at a major disadvantage. Like
    what was stated earlier by Mr. Henson, a parcel right next door
    appealing has less restrictions through the State of Montana.
    Not only that, less fees. So when a developer comes in and sees
    prime, they tend to be deterred because of fees and time.
        Mr. Gianforte. Mm-hmm. If you could explore that a little
    more. The differences between energy development on private
    land off the reservation versus development of the tribe's
    resources on the reservation. From a permitting perspective,
    why does it take so much longer?
        Mr. Not Afraid. Well, first of all, we have this
    misunderstanding from the federal side. The misunderstanding is
    private Indian land is treated as federal public land. So
    individual landowners are subject to the public land laws. And
    if that was to be differentiated on the purpose of someone
    owning their own property, why hold them folks down? Because
    you're deterring them from being prosperous. You're deterring
    them from utilizing their own mineral. Because I'm not only
    talking about tribal land. I'm talking about individual tribal
    members who own mineral assets as well. So them, themselves,
    they can't come up with a $9,600 permitting fee when they need
    to drill ten wells. That's $96,000 they have to come up front.
    Where if it was regulated by the State of Montana, it's like
    $125.
        Mr. Gianforte. Yeah. Okay. My time has expired, but I think
    we're--this is a very helpful discussion. I think we'll do
    another round of questions, if that's all right. At this time
    I'll recognize the ranking member.
        Ms. Plaskett. Okay. Chairman Not Afraid, I was hoping that
    you could give me, if you have proposals that you all have
    made, as to how the regulations should change to allow you.
    Have you presented those, or is there legislation now that's
    been proposed by someone from the House or the Senate that
    would be supportive of what you're talking about?
        Mr. Not Afraid. Yes. Currently, there is legislation on the
    books which was--it amended the SMCRA law in 2007 that allowed
    the tribes to administer and regulate their own permitting. But
    that course of action is also cumbersome, because now the
    conflicts of tribal rules, tribal laws are reviewed by the
    solicitor's office. And if there is any conflict in CFR then we
    have to try to mitigate those issues.
        Ms. Plaskett. And who has the responsibility to mitigate
    those?
        Mr. Not Afraid. Interior.
        Ms. Plaskett. Okay. And so you may not be getting the
    movement to be able to get that done as quickly as possible.
        Mr. Not Afraid. Yes. There's a gentleman in the crowd here
    who was a major proponent of it within our legislative branch,
    name, C.J. Stewart, who was an advocate and a proponent of the
    tribe taking this into their own destiny, because when Congress
    had passed it, it enabled us to, you know, have a vision in
    taking over this regulatory rule ----
        Ms. Plaskett. Mm-hmm.
        Mr. Not Afraid.--as well as permitting. Because who better
    to take care of their own land, tribes? I have recently done a
    video with OSM depicting the reclamation on some of our mining
    grounds that you would never suspect that mining even occurred
    there. There's vegetation. Elk come back on it. Antelope,
    wildlife, in general. The aquifers are stabilizing. It's a
    really neat process. So we always invite people out to show
    that the Crow have demonstrated good husbandry to its own land.
        Ms. Plaskett. I hear you. So what you would do is do the
    regulations and the regulatory requirements, make the
    decisions, and then possibly report up to Department of
    Interior, or others, on what the decisions were. And they have
    to respond in a timely fashion?
        Mr. Not Afraid. Right. Just another example in this
    permitting process. For example, in the NEPA requirement, when
    it requires a cultural survey. What's happening there is you're
    having a Native American go do a survey, and then a non-native
    approve that cultural survey. So that's telling me the non-
    native knows what a cultural survey is, when really, they don't
    even know what a burial site is, or any other cultural
    significance. So as that sits on that table for years for them
    to identify what we're telling them what it is, that's part of
    the cumbersome reality I'm talking about.
        Ms. Plaskett. So with the proposal--so I'm thinking of ways
    in which this can be married. So with the proposal that Mr.
    Deschene has, with increasing the number of individuals, those
    who are culturally sensitive, who are possibly Native American,
    and be able to be out in the field in greater number, be
    something along with having the rights of the tribe to make
    those decisions, be one that you think is something that would
    work well.
        Mr. Not Afraid. Yes. And I truly believe because of treaty
    purposes it's--even though we call it nation to nation ----
        Ms. Plaskett. Uh-huh.
        Mr. Not Afraid.--it's big brother, little brother. That's
    how I view it. And if ----
        Ms. Plaskett. Listen, someone living in unincorporated
    territory understands that completely, [Laughter.] what that
    feels like.
        Mr. Not Afraid. Yes. Yes. And the good thing is, that I
    see, is that as we shed more light on these issues, there are
    people willing to take the time to say, ``Okay. What can we do
    about this?'' So we've provided solutions. We've also
    demonstrated whether we had to recruit technical staff just to
    ensure that practices are being done professionally.
        Ms. Plaskett. So can I ask also, when you talk about some
    of these permitting, I know in the Virgin Islands we face
    permitting that's not just related to the Army Corps, to
    National Marine Fisheries, to multiple agencies that have to do
    a permitting process. Are you facing those same issues as well?
        Mr. Not Afraid. Yes, we are, because Interior, again, has
    to pawn off to the other sister departments for those
    oversights. So even though Interior gets bashed a lot, really,
    that's the wrong people to really bash on, because they have
    recently, in turn of events, they've been proponents of tribes.
    Yet, the processes still remain the same, where those other
    sister agencies, such as BLM, have to tell us, yeah, that is a
    cultural site.
        Ms. Plaskett. Okay. Thank you. Thank you very much, Mr.
    Chairman.
        Mr. Gianforte. Okay. So I'll recognize myself for a final
    round of questioning.
        I really want to focus on what do we do next. I'm a big--
    played football in high school. We won games by running three-
    to five-yard plays, and you've brought very constructive
    suggestions today. Chairman Not Afraid, you've talked about the
    obstacles you face when tribal land is treated as public land,
    raising the regulatory burden. There was some testimony about
    clarifying the TERA rules. These are very specific things that
    we can investigate. So for all of the members on the panel, I
    want to ask you, you've brought good suggestions. What are the
    top three things you think we ought to do? And, again, in terms
    of making it easier for tribes to determine the best way to
    develop their resources on your reservations. So who would like
    to start? What are the three things we ought to do? Chairman?
        Mr. Not Afraid. Thank you, Chairman. One of the first
    things that I see that Crow Tribe would believe would be
    paramount is allowing the tribes to, again, administer and
    regulate on its own. The purpose of that would to--would not
    only expedite development, but it would ensure that we have
    sound practices beginning within our reservation, because we've
    seen in the past where some--other developments, whether it's a
    gravel pit, or what have you, the Feds had not done their trust
    responsibility; therefore, there were abandoned mines. But if
    the tribe was in the driver seat, we would've made sure that
    those were reclaimed. We would've made sure that all the
    archeological surveys were done or completed prior to
    disturbances of burial sites, or cultural sites.
        Mr. Gianforte. Okay. Mr. Henson.
        Mr. Henson. I think the overarching thing is what I'd call
    the two-prong approach. It's continued reliance on tribal
    decision-making, but also funding the liaison roles to the kind
    of levels we've been hearing about today. Because the Federal
    Government can bring some real technical expertise to assist,
    as opposed to sort of serving as a roadblock. There are a
    number of legislative ideas out there. Let's, you know, let
    this tribe--let's let Navajo have the right to lease its
    surface lands without as much approval. But that's very
    conservative. It's one tribe, one strata of the possible energy
    development rights. And so a lot of the moves forward are just
    kind of baby steps. And so I would argue that the current
    situation has developed through a whole lot of, I guess the
    technical term would be CUIA kind of maneuvers. We'll layer
    Fish and Wildlife over Interior, over Energy, and you end up
    with multiple sort of overlapping jurisdiction.
        Mr. Gianforte. So the suggestion, Mr. Henson, that is just
    to streamline the number of agencies that are involved.
        Mr. Henson. A little bit. Yes.
        Mr. Gianforte. Okay.
        Mr. Henson. If we can find like this sort of one-stop shop
    and actually make it work without being an additional layer,
    and when a tribe has to go out and interface with the Federal
    Government.
        Mr. Gianforte. Okay.
        Mr. Henson. And then I'm personally an advocate for things
    akin to the contracting and compacting that we've seen in a
    number of tribal areas. I think the Federal Government should
    find some resources for block grants to tribes. I mean block
    grants to the Southern Ute, to hire geologists, if they need
    one. Or, you know, some more of sort of third-party
    contracting, where tribes ----
        Mr. Gianforte. Okay.
        Mr. Henson.--can tap into technical expertise outside of
    the BIA, outside of tribal employees, but just kind of out
    there in the marketplace.
        Mr. Gianforte. Okay. Thank you, Mr. Henson. Councilman Red?
        Mr. Red. Thank you. I think number one for us is S.245.
    That is the closest to being complete. And I think that goes to
    what we want to see. Also, when it comes to us, when it comes
    to expertise, we have the expertise in place. We've been doing
    this for many years. So when it comes to the permitting
    process, from beginning to end, we do that ourselves. It's all
    in-house. We have our NEPA specialists. We have our cultural
    resources. We have our natural resources. We have our energy
    department. We take care of all that in-house. The only thing
    we wait on is the signature from the Department of Interior.
    And that's where we're reaching the delays. I mean one
    signature shouldn't take three years to get. And also with that
    ----
        Mr. Gianforte. In your opinion, does S.245 fix that
    problem?
        Mr. Red. It helps. It helps. Yeah. I mean there's not one
    overall solution out there currently, but it would really
    definitely get us moving in the right direction.
        Mr. Gianforte. Okay. Thank you.
        Mr. Red. And also streamlining the NEPA process, and making
    some clarifications there. Because treating tribal lands as
    public lands does not work for Indian tribes. And also the one
    NEPA process I think would go a long way instead of each
    department, or each--I guess, I guess it would be department--
    having their own NEPA process. So there'd be one defined NEPA
    process.
        Mr. Gianforte. Okay. Thank you. And Mr. Deschene.
        Mr. Deschene. Thank you, Chairman, and member of the
    committee. At DOE, we had a working group. It's called an
    Indian Country Energy Infrastructure Working Group. Tribal
    leaders from all over the country, including Alaska. They
    determined and decided that the number one policy priority is
    finding capital or access to resources that help spur energy
    development. Notwithstanding, what all the leaders here on the
    panel mentioned, those are all good recommendations. But if we
    want to jumpstart energy development, we can deal with the
    bureaucracy and the laws. We can work on that. A lot of good
    attorneys in the room that can help with that. But we need the
    capital, and we need business partners. So my recommendation
    would be we need--it's time for an energy legislation to be
    approved by Congress. So S.245, or whatever the vehicle is, the
    process is there for the types of input on it.
        Secondly, in keeping with the investment, DOE, DOI needs to
    have an energy loan guarantee program like we have in other
    agencies, but for energy, and not conditioned on the
    application fee. And it needs to be allowed to be deployed,
    existing technologies, and deployed in remote and distant areas
    of the country.
        And then finally, I would say that, uh, Congress has the
    power working with the White House and OMB to fund these
    offices an amount that makes a difference. You need more staff.
    You need more energy resources to provide for grants, capacity
    building, education. And so I would say those are the first
    fix, and then you can build from there.
        Mr. Gianforte. Okay. I'm going to indulge myself and ask
    one last question.
        For Chairman Not Afraid and Councilman Red, has the
    creation of the Indian Energy Service Center produced any
    improvements from a regulatory process?
        Mr. Red. For Southern Ute, no. And it's still--we haven't
    utilized that. I guess it kind of falls in the category of
    TERA. It's out there, but we haven't taken advantage of it.
        Mr. Gianforte. OK. Thank you. Chairman Not Afraid.
        Mr. Not Afraid. I see some advantages of it, but our
    priorities had been coal, where we identified the SMCRA, where
    it streamlines some things for the tribes to operate, but we
    always ended up at that same barrier of waiting on sister
    agencies on approving things. But back to the--back to the
    question. We haven't tried that.
        Mr. Gianforte. Okay. And are you gentlemen familiar with
    the service center, and the concept of trying to bring the
    agencies together? Would bringing more agencies into the
    service center--do you think BIA is equipped to play the role
    of a lead agency for tribal permitting?
        Mr. Not Afraid. To be frank, I believe the tribe can handle
    its own permitting, and for other tribes, I believe that would
    be a great start. As far as the Crow Tribe, just like with our
    brothers to the south there, the Ute, already established their
    permitting processes. And if we engage in that, then what was
    the sense in us developing our own systems.
        Mr. Gianforte. Yeah. Councilman Red.
        Mr. Red. Thank you. I think for Southern Ute, I mean it's a
    no for the shop. I think that we are equipped to deal with our
    own resources, and I think the more agencies that get involved,
    the more muddy the waters get. And you don't have one clear
    direction. Maybe if you had one clear direction and definitions
    in there, it may work, but until that time I think we're best
    equipped to take over that role.
        Mr. Gianforte. Okay. Well, I want to thank all the
    witnesses for your testimony today. The hearing record will
    remain open for two weeks for any member to submit an opening
    statement or questions for the record.
        If there's no further business, without objection, this
    subcommittee stands adjourned.
        [Whereupon, at 11:15 a.m., the subcommittee was adjourned.]

                                    APPENDIX

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                   Material Submitted for the Hearing Record