[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
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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
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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