[Congressional Record Volume 149, Number 82 (Thursday, June 5, 2003)]
[Senate]
[Pages S7459-S7462]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ENERGY POLICY ACT OF 2003--CONTINUED
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Colorado.
Amendment No. 864
(Purpose: To replace ``tribal consortia'' with ``tribal energy resource
development organizations,'' and for other purposes)
Mr. CAMPBELL. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Colorado [Mr. Campbell], for himself and
Mr. Domenici, proposes an amendment numbered 864.
Mr. CAMPBELL. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under ``Text
of Amendments.'')
Mr. CAMPBELL. Mr. President, it is an indisputable fact that Indian
country contains some of the richest energy resources in the America.
Indian lands comprise approximately 5 percent of the land area of the
United States, but contains an estimated 10 percent of all energy
reserves in the United States, including: 30 percent of known coal
deposits located in the western portion of the United States; 5 percent
of known onshore oil deposits of the United States; and 10 percent of
known onshore natural gas deposits of the United States.
Coal, oil, natural gas, and other energy minerals produced from
Indian land represent more than 10 percent of total nationwide onshore
production of energy minerals.
Even though in one year alone over 9.3 million barrels of oil, 299
billion cubic feet of natural gas, and 21 million tons of coal were
produced from Indian land, representing $700 million in Indian energy
revenue, the Department of the Interior estimates that only 25 percent
of the oil and less than 20 percent of all natural gas reserves on
Indian land have been fully developed.
It is ironic that many Indian people were forced on to the most arid,
barren, and least productive lands in the 1800s and now they find
themselves resource rich.
Despite what we may read in the Washington Post or the New York Times
about the so-called rich Indians and Indian gambling, it is also
indisputable that Indians are the most economically deprived ethnic
group in the United States. Unemployment levels are far above the
national average, in some cases as high as 70 percent. Per capita
incomes are well below the national average. They have substandard
housing, poor health, alcohol and drug abuse, diabetes, amputations,
and a general malaise and hopelessness, even suicide among Indian
youngsters.
In fact, in some reservations it is not uncommon to find one out of
every two teenage girls and one out of every three boys who attempt
suicide driven by despair and a dead end future. In that context, this
amendment I am offering today tries to give them some help.
Given the extent of the economic deprivation in Indian country and
the vast potential wealth residing in energy resources which could
ameliorate this deprivation, it has long been a puzzle why these
resources have not been more fully developed.
The answer lies partly in the fact that energy resource development
is by its very nature capital intensive. Most tribes do not have the
financial resources to fund extensive energy projects on their own and
so must partner with private industry, or other outside entities, by
leasing out their energy resources for development in return for
royalty payments.
The unique legal and political relationship between the United States
and Indian tribes sometimes makes this leasing process cumbersome.
As with most Indian law and policy, history plays an important part.
Towards the end of the 19th Century, Indian tribes were forcibly
removed to isolated areas and reservations where it was believed they
would not hinder the westward expansion of a new and growing country.
The natural resources contained on these lands were taken into trust
by the Federal Government to be administered for the benefit of Indian
tribes. The ostensible reason for the trust was the belief that Indians
were incapable and incompetent of administering such resources, and
would be susceptible to land and resource predators.
[[Page S7460]]
By the way, that belief was prevalent with a lot of people in
American Government and led the Surgeon General at the time to issue a
request to the U.S. Army that Indian skulls be sent to DC to study and
find out if Indians had the intelligence to own their own land. That,
in turn, gave rise to the saying among modern Indian people that there
are more dead Indians in Washington, DC, than live ones, because until
the last couple of years there were over 16,000 remains, primarily
skulls and upper body bones, warehoused in the Smithsonian. Just a few
years ago, we passed a Museum of the American Indian bill, and one
provision of that required that the Smithsonian and other Federal
agencies start returning those bones.
A legal and bureaucratic apparatus was formed to administer this
trust, and over a century later this apparatus remains in place in the
Interior Department.
In her capacity as trustee of Indian resources, the Secretary of the
Interior is required to examine all leases of Indian trust resources,
to ensure that the terms of the lease benefit the tribe, and to ensure
that the trust asset is not wasted.
The Committee on Indian Affairs has been informed over the year that
the Secretarial approval process is often so lengthy that outside
parties, who otherwise would like to partner with Indian tribes to
develop their energy resources, are reluctant to become entangled in
the bureaucratic red tape that inevitably accompanies the leasing of
Tribal resources.
Hence, the framework that was originally designed to protect tribes
has become an obstacle to development of Tribal resources, in that the
bureaucratic impediments of trust administration are now a disincentive
to outside investors.
To help remedy these problems, earlier this year I, along with
Senator Domenici, introduced the Indian Tribal Energy Development and
Self Determination Act of 2003 to provide assistance and encouragement
to Indian tribes to develop their energy resources.
This was based really on last year's amendment to the Energy
conference report, much of the same language. That report, of course,
did not emerge from the conference committee and died with the end of
the last Congress.
This assistance included:
The establishment of an Indian Energy Office; grants, loans, and
technical assistance; capacity building; and regulatory changes to the
rules governing the leasing of Indian lands for energy purposes.
At the same time, the Senator from New Mexico, Mr. Bingaman,
introduced his own Indian energy bill that somewhat mirrored ours.
After the hearing and much debate the best of these two bills were
melded together into a composite bill that made up title III of the
bill before us now.
The amendment I am offering today contains refinements but not major
changes of title III and I would like to walk through these provisions
for the benefit of the Members who will be reviewing the Record
tomorrow.
Section 2601 contains definitions. Its standard definitions section
provides definitions for a number of terms including the following:
Director of the Office of Indian Energy Policy; Indian Tribe; and
Vertical Integration.
Section 2602, the Indian Tribal Energy Resource Development,
authorizes the Interior Secretary to provide assistance to Indian
tribes in the form of development grants and grants for obtaining or
developing managerial capacity needed for energy purposes.
It provides low-interest loans to Indian tribes and tribal energy
development organizations to promote Indian energy development.
Section 2602 also provides assistance to Indian Tribes for purposes
of energy efficiency and energy conservation; as well as planning,
construction, operation, maintenance of electrical generation
facilities on tribal lands.
Section 2603, the Indian Tribal Energy Resource Regulation authorizes
the Secretary of Interior to make grants to Indian tribes and tribal
energy development organizations to use, develop, administer, and
enforce tribal laws governing the development and management of energy
resources on their own lands.
This section helps tribes build the capacity, if they do not already
have it, to develop their resources in an effective and safe way.
For instance, a tribe could use these funds to develop a tribal
energy resource inventory; to carry out feasibility studies necessary
to the development of energy resources; to develop and implement tribal
laws and technical infrastructure to protect the environment; to train
employees engaged in energy development and environmental protection;
and other functions related to scientific and technical data
development and collection.
Section 2604 establishes a voluntary process for those tribes that
choose it to help develop their energy resources.
Under the process, an Indian tribe must first demonstrate to the
Secretary of Interior that it has the technical and financial capacity
to develop and manage its own resources.
Once it meets this burden, the tribe can negotiate energy resource
development leases, agreements and rights-of-way with third parties
without first obtaining the Secretary's approval. This will provide
streamlining to the leasing process that is now burdened by an
extensive Federal regulation I mentioned earlier.
Whether a tribe decides to avail itself of the new procedure in the
section or continue under the current system will be entirely at the
option and discretion of each tribe. None is required to do so. It is
totally voluntary, tribe by tribe.
Under current law, in order to be valid, all leases, business
agreements, and rights-of-way involving restricted land must be
submitted to and approved by the Secretary of the Interior. Section
2604 of the Campbell amendment provides tribes with the obligation of
submitting to the Secretary a proposed government-to-government
agreement, a tribal energy resources agreement, sometimes called a
TERA--and I will continue using that word for simplicity--that will set
forth mandatory provisions for future leases, business agreements, and
rights-of-way involving energy development on tribal lands.
Along with the proposed TERA, the tribe will have to make a
demonstration to the Secretary that it has the experience and
managerial and financial capacity to regulate and develop its own
energy resources. If the Secretary approves the TERA, that TERA will
govern future development of the tribe's energy resources. The TERA, by
virtue of this section, will require tribal leases and agreements to
have certain terms, require compliance with all applicable
environmental laws, notice to the public, and consultation with the
States as to potential off-reservation impacts. The TERA will provide
for an environmental review process that will identify all significant
impacts, inform the public, and allow the public to comment on the
potential environmental impacts before any lease agreement or right-of-
way is approved.
The Secretary will be required to review any direct effects of an
approval of the TERA itself under NEPA. The subsequent tribal approval
of leases, business agreements, and rights-of-way under TERA will not
be subject to another review under NEPA. In other words, tribes will
not be exempt from NEPA. It will be front-loaded so that the
requirements are at the secretarial level, but if that agreement goes
through, they will not have to go through the NEPA process two times.
The TERA will also require the Secretary to do an annual trust asset
evaluation to modernize the tribe's energy development activities and
allow her to reassume the responsibility over those activities if she
finds an imminent jeopardy of trust assets. This section gives third
parties who have or may sustain a significant adverse environmental
impact as a result of the tribe's failure to comply with its TERA the
standing to petition the Secretary to review the tribe's activities.
This process both protects the tribe's status and certainly does not
allow them to circumvent NEPA. If she finds the tribe in violation of
TERA, she may suspend the leases or rights-of-way or suspend TERA
altogether.
Section 2604 also discusses the Secretary's trust responsibility. It
expressly states that the section does not absolve the United States
from that responsibility and expressly states that the Secretary will
continue to have a trust obligation to protect a tribe when another
party to a lease agreement or right-of-way is in breach. It does not
affect trust responsibility at all.
[[Page S7461]]
Section 2604 provides that the United States will not be liable to
any party, including a tribe, for losses resulting in the terms of any
lease agreements or right-of-way executed by the tribe pursuant to the
approved TERA, which makes sense; Liability follows responsibility. If
a tribe makes the leasing decisions, it should certainly be held
responsible. If the United States continues to make the leasing
decisions, it will continue to be held responsible. If Indian self-
determination means anything, it means the right of tribes to make
their own decisions and their responsibility to the tribes to live with
those decisions.
Section 2605 deals with the Federal Power Marketing Administration.
This section authorizes the Bonneville Power Administration and the
Western Area Power Administration to encourage Indian energy
development through a variety of means. It authorizes the power
administrations to purchase power from Indian tribal generators to meet
their own needs or energy needs on Indian lands, and it requires that
any such power purchase must not cost more than the prevailing market
price.
This section also authorizes the Energy Secretary to undertake a
power allocation study with a report due within 2 years of the
enactment of the title.
Section 2606 deals with Indian mineral development review. This
section authorizes the Interior Secretary to undertake a review of all
activities conducted under the Indian Mineral Development Act of 1982
and to report the results of that review to Congress. Included in the
study would be recommendations for overcoming the barriers to greater
mineral development on Indian lands, such as legal barriers, physical
barriers, market barriers, and others.
Section 2607 authorizes the Energy Secretary, in tandem with the
Interior Secretary and the Army Corps of Engineers, to undertake a
feasibility study of developing a demonstration project that uses wind
energy generated by tribes and hydropower generated by the Army Corps
of Engineers on the Missouri River to supply area to the Western Area
Power Administration. A report of this study is due within 1 year of
enactment.
That is the substance of this amendment. It is very important that
the choice of the tribes is upheld, and it certainly is whether you
want to participate or not.
For the record, I ask unanimous consent to have letters of support
printed in the Record, including from the National Congress of American
Indians which has over 300 tribal members, and the Council of Energy
Resource Tribes with over 50 Members, and several letters from
individual tribes, including the Chickasaw and the Cherokee.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Congress of
American Indians,
June 2, 2003.
Senator Ben Nighthorse Campbell,
Chairman,
U.S. Senate, Committee on Indian Affairs, Hart Office
Building, Washington, DC.
Dear Senator Campbell: This letter is to offer general
support for the Indian Tribal Energy Development and Self-
Determination Act of 2003 (Title III). Since the release of
your mark in April, NCAI has been working feverishly to offer
a solution to the concerns expressed by tribal
representatives. NCAI engaged in this effort so that we could
provide general support for this significant piece of
legislation once these concerns were addressed. Through this
collaborative process, we believe this legislation has the
potential to enhance economic development initiatives and
will be of great benefit to economic development in Indian
country.
As you may be aware, concerns were raised by a number of
tribes and tribal advocates regarding some provisions of the
Chairman's mark for this measure. We shared in their concern
regarding provisions that significantly limit the United
State's liability and release the Secretary of Interior from
any accountability to Indian tribes for actions that she is
required to undertake pursuant to the legislation.
Additionally, we were concerned about the definition of
``tribal consortium'' which differed greatly from the
definition that is traditionally employed in legislation
affecting Indian tribes and offers federal money to non-
tribal entities that should be going to Indian tribes. In
addition to these two central concerns, we were not satisfied
with provisions pertaining to environmental review and we had
some general drafting-related issues.
Given these concerns, NCAI has convened several conference
calls with tribal representatives including the Navajo
Nation. Council of Energy Resources Tribes, and the
International Council on Utility Policy, and developed a
series of tribal recommendations for modifying Title III. We
also convened with your staff and Senate Energy and Natural
Resources Committee staff to discuss the tribal
recommendations. Thereafter, your staff held a conference
call for those same representatives and staffers from the
Senate Energy and Natural Resource Committee. Although we are
pleased that we were able to craft better language for the
trust responsibility provisions, we are still concerned with
some of the limitations.
Nonetheless, we realize that in this political climate, the
language as currently revised is likely the best compromise
that can be reached. We appreciate the effort of your staff
and other committee staffers to negotiate language that
attempts to address the tribal concerns in light of the
current political environment. Again, I want to underscore
that the tribal support comes from working with a group of
tribal representatives and organizations from diverse
perspectives, but not all perspectives. Because of this, our
revised version of your mark may not reflect the needs and
desires of all tribes who wish to utilize this legislation to
develop their energy resources.
We would like to thank you and your staff for all of their
hard work on this very important issue. I cannot stress
enough how grateful we are to your commitment to developing
legislative solutions to age-old problems in Indian country.
Title III is just one more example of how Indian tribes
benefit from your championship.
Sincerely,
Jacqueline Johnson,
Executive Director.
____
Council of Energy Resource Tribes,
Denver, CO, June 3, 2003.
Hon. Pete V. Domenici,
U.S. Senate,
Washington, DC.
Dear Senator Domenici: On behalf of the 53 CERT member
Tribes, I am writing to express CERT's support for the Title
III Indian Energy provisions of S. 14.
As you know, there are some provisions in section 2604 of
the Title III of the bill as reported that has caused concern
among CERT member Tribes. Fortunately, we believe those
concerns have largely been addressed by language agreed to
between Committee staff and representatives of CERT and
several member Tribes. At this time, we believe we have
reached agreement that addresses the concerns of CERT and the
Southern Ute Indian Tribe, the Navajo Nation and the
Jicarilla Apache Nation. We expect you will hear from each of
those tribes as well.
CERT has agreed to language that insures that the Tribal
Energy Resource Agreements (TERA) process is a voluntary,
opt-in program for development of Tribal energy resources. We
have also agreed to language to be certain that the public
comment opportunities go to the environmental and other
impacts of the development and not to the terms of the
business agreements themselves. CERT accepts the revised
language that better describes the Secretary's trust duties
under this section. Finally, the scope of the Secretary's
NEPA review of the TERA is settled.
While drafting final language for this section has been
somewhat difficult, we compliment the staff of both the
Senate Energy Comittee and the Senate Indian Affairs
Committee for their dedication to resolving the remaining
differences between us on language relating to trust
protections and enviroinmental issues.
Again, we are pleased to support Title III with these
changes to section 2604 and appreciate your steadfast support
of the right of Indian Tribes to gain a better measure of
control over the development of energy resources on their own
lands.
Sincerely,
A. David Lester,
Executive Director.
____
Southern Ute Indian Tribal Council,
Ignacio, CO, May 27, 2003.
Re: Indian Tribal Energy Development and Self-Determination
Act of 2003; S. 14, Title III
Chairman Pete V. Domenici,
Committee on Energy and Natural Resources, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Dear Chairman Domenici: Approximately one month ago, the
Southern Ute Indian Tribe submitted a statement of
conceptual, but qualified, support for the Indian Tribal
Energy Development and Self-Determination Act of 2003. Our
Tribe's activities have shown that tribal energy development
can provide tremendous economic development opportunities for
tribes while simultaneously assisting the Nation in meeting
its energy demands. For tribes that have demonstrated the
capability to represent themselves effectively in energy
development activities, we have long-advocated legislation
that would provide the option of bypassing the stifling
effects of the Bureau of Indian Affairs approval requirements
applicable to tribal leases, business agreements and rights-
of-way. The referenced legislation addresses this very
matter; however, as Section 2604 of Title III emerged from
the Senate Committee of Indian Affairs and the Senate
Committee on Energy and Natural Resources, it contained a
number of provisions that were objectionable to the Indian
community.
[[Page S7462]]
Over the last month, committee staff members and
representatives of tribes and Indian organizations have
engaged in an intense dialogue about the problems in the
draft legislation, and, as a result of their tireless
efforts, proposed amendments have been developed that would
eliminate the problems previously identified. A list of those
proposed amendments is attached for references purposes.
Among the different matters resolved to our satisfaction have
been the following: (i) confirmation that Section 2604 is a
voluntary program available to Tribes on an opt-in/opt-out
basis; (ii) inclusion of pre-approval public notice and
comment opportunities regarding the environmental impacts of
a proposed tribal mineral lease, business agreement or right-
of-way, but preservation of the confidentiality of the
business terms of such documents; (iii) acceptable balancing
of the limitations on and ongoing responsibility of the
Secretary to perform trust duties associated with a
participating tribe's activities undertaken pursuant to this
legislation; and (iv) confirmation of the appropriate scope
of NEPA review that would be associated with the Secretary's
decision to approve a Tribal Energy Resource Agreement
(``TERA''), which is the enabling document permitting a tribe
to proceed with independent development of mineral leases,
business agreements, or rights-of-way. Again, we helped
develop and wholly support these amendments.
During the course of debate on this legislation, some have
suggested that Section 2604 will eliminate effective
environmental protection on affected tribal lands. We want to
assure the members of the Senate that this is not the case.
Energy resource development by a tribe generally carries with
it a deep commitment to preserving one's backyard. Tribal
leaders are directly accountable to their members for
preserving environmental resources. In the Four Corners
Region, it is not unusual for private landowners or BLM
lessees to comment enviously on the environmental diligence
employed by our Tribe in the development of our energy
resources. We renew our invitation to members of the Senate
to visit our Reservation and see first-hand our energy
resource projects.
In conclusion, with the referenced amendments, we strongly
support S. 14, Title III. We urge other members of the Senate
to also support this legislation, and we commend those who
have worked toward its development and passage.
Sincerely,
Howard D. Richards, Sr.,
Chairman.
____
Native American Energy Group, LLC,
Ft. Washakie, WY, May 7, 2003.
Senator Pete V. Domenici,
U.S. Senate,
Washington, DC.
Dear Senator Domenici: Native American Energy Group (NAEG)
is an Indian owned company working with tribes and allottees
throughout the country to determine how best to develop oil
and gas reserves and help provide for the energy security of
this country while also protecting the interests of mineral
owners. The recent Indian provisions of the Energy Bill are a
big step in the right direction to accomplish positive
results for the Indian people of this country.
One of the areas of contention is the environmental area
with many people stating that these provisions will gut the
NEPA process. While this is a legitimate concern, nowhere
have I read or heard that this is the intent of these
provisions. In fact recent language in the Bill clearly
denotes compliance with all applicable tribal and federal
environmental laws. Even without this new language though my
understanding was always that the intent was not to gut
environmental laws. Tribal governments with energy resources
are pro-development but by the same token they are also pro-
environment. This may seem a dichotomy of sorts but my read
on this bill is that the language will strengthen tribal
sovereignty, develop tribal capacities and make tribal and
allotted oil and gas operations more accountable with less
impacts. In addition, the federal trust oversight will not be
diminished which is always a concern of tribal governments.
NAEG appreciates the work and coordination that goes into
an effort of this magnitude and you and your staff are to be
commended for the recent provisions as presented in the bill.
The history and discussions surrounding this bill recognize
the importance of bringing tribes into the mainstream of the
energy picture of this country and providing the mechanisms
for the technical, administrative and legislative efforts to
occur.
The research your staff has undertaken in support of this
bill very well explains the amounts of energy resources
situated on tribal and allotted lands. This largely untapped
resource can be a boost for this country as we seek to
provide jobs and diversify our economy, while helping America
meet its energy needs. Please share with the rest of the
Senate Indian Committee our support for these endeavors and
if there is any information we can provide to assist you in
your work please do not hesitate to call me.
Sincerely,
Wes Martel,
President.
____
Cherokee Nation,
Tahlequah, OK, June 2, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Senate Committee on Indian Affairs, Hart Senate
Office Building, Washington, DC.
Hon. Daniel K. Inouye,
Vice Chairman, Senate Committee on Indian Affairs, Hart
Senate Office Building, Washington, DC.
Dear Mr. Chairman and Mr. Vice Chairman: It has come to my
attention that several changes have been made to Title III of
the Senate Energy bill. I understand that these changes will
reduce any risk to Tribes, and wish to offer the Cherokee
Nation's continued support of S. 14, the Energy Policy Act of
2003.
I thank the Committee for its hard work on this issue and
for incorporating tribal recommendations into the bill. Your
leadership is greatly appreciated.
Please feel free to contact my office if you have any
questions or comments. I may be reached at (918) 456-0671.
Sincerely,
Chad Smith,
Principal Chief.
____
Office of the Governor,
The Chickasaw Nation,
Ada, OK, June 5, 2003.
Hon. Ben Nighthorse Campbell,
Senate Committee on Indian Affairs, Hart Senate Office
Building, Washington, DC.
Dear Mr. Chairman: We support the inclusion of Title III,
as it is, in Senate Bill 14. Thoughtful development of our
tribal natural resources serves all Americans.
We are grateful for the opportunities and support Title III
provide to the Chickasaw Nation, and for all of Indian
Country, as we explore and develop our natural resources. The
language allows us to exercise our own progressive style in
development and regulation; yet, it provides for those tribes
which prefer the more traditional approach.
Having a voice in the U.S. Department of Energy will
highlight and expedite tribal energy issues. This is an
opportunity for every tribe to enter into the nation's
economic mainstream with the support of the federal
government.
Your help, and that of Senators Bingaman and Domenici, is
appreciated.
Sincerely,
Bill Anoatubby,
Governor.
____
The Mohegan Tribe,
Uncasville, CT, June 5, 2003.
Hon. Ben Nighthorse Campbell,
U.S. Senate, Senate Committee on Indian Affairs, Hart Senate
Office Building, Washington, DC.
Dear Mr. Chairman: The Mohegan Tribe supports the inclusion
of Title III in S. 14, the Energy Policy Act of 2003.
Offering flexibility and support in developing natural
resources throughout Indian Country, Title III creates
opportunities in which all Indian nations can benefit. We
also appreciate the hard work of Senators Domenici and
Bingaman in this matter.
Sincerely,
Mark F. Brown,
Chairman.
Mr. CAMPBELL. I say to my colleagues, in supporting the amendment,
you are not only assisting Indian tribes and the development of energy
resources but helping the United States become less dependent on
foreign energy which I think is the goal of all.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BENNETT. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________