WASHINGTON -- In what's become a rare occurrence in Washington, there was bipartisan agreement in a Senate hearing Wednesday that Native American tribes should have more leeway to develop energy resources on their land.
“Global warming is a real problem, but if they find a coal mine on a reservation, let’s use it," Sen. Al Franken (D-Minn.) said.
Franken's comment prompted Indian Affairs Committee Chair John Barrasso (R-Wyo.) to invite the Democrat to come over and sit on the Republican side of the committee bench for the day.
“Save that video tape!” Barrasso said, seeking to preserve the moment, on the record.
The oversight hearing focused on a Government Accountability Office report that Barrasso requested in January 2014 on tribal energy development. The GAO report, released in June, gave the Bureau of Indian Affairs a failing grade in its administration of tribal energy development, citing inadequate staffing and a lack of data to verify ownership and availability of Indian oil and gas resources, as well as an overly complex regulatory framework that has hindered development.
Through interviews and literature reviews, the GAO found that the agency's review of a lease for a wind project took 18 months.
This caused South Dakota’s Rosebud Sioux tribe -- one of the poorest in the country -- to lose an interconnection agreement with the local utility, according to the 2011 testimony of then-tribe President Rodney M. Bordeaux. The project has not been able to move forward as a result, according to the report.
Larry Roberts, the deputy assistant secretary of Indian Affairs for the Department of the Interior, who testified before the committee Wednesday, attributed the agency’s staffing problems to its inability to compete for employees with the private sector. He told the ranking Democrat on the committee, Jon Tester of Montana, that pay increases for staff would help. He also said it was challenging for the agency to function under the stringent across-the-board budget cuts known as sequestration.
Committee members pressed Roberts on why there were so many obstacles for tribes to overcome in the permitting process.
“There’s 100 steps and 7 agencies that they need to go through,” Sen. Heidi Heitkamp (D-N.D.) said.
Heitkamp said that until the federal government stops treating tribal lands as public lands and starts treating them as belonging to sovereign nations, they’ll always be dealing with the same issue.
Franken said he supports tribal energy development despite concerns about greenhouse gas emissions because, as a member of the Indian Affairs Committee, he has seen the dire economic situation facing Indian country.
“We are the ones hearing the testimony on native youth suicide. We’re the ones hearing the testimony that families have to double up because they can’t get housing,” Franken told Roberts. “It’s frustrating to then read this report that the BIA isn’t functioning efficiently. Well, why should we fund the agency if that’s the case?”
Native Americans experience exceptionally high rates of poverty, unemployment and youth suicide, which is five times the national average. Franken said anything that would help create jobs and address tribes’ economic challenges is welcome.
Franken also argued that energy development on Indian lands should be easier than it is anywhere else because of the "federal trust," which is an agreement between the U.S. and tribes to preserve the rights and sovereignty of tribal nations under laws and a Supreme Court ruling dating back to 1831.
Tester asked Roberts whether BIA would support legislation he cosponsored with Barrasso, which would allow tribes to be involved in the Interior Department's decision-making process for lease agreements on tribal land.
Roberts said his agency would prefer to roll the provisions of that bill into the HEARTH (Helping Expedite and Advance Responsible Tribal Home Ownership) Act, which allows tribes to voluntarily seek environmental review through the Interior Department’s Office of Trust Services. If the tribes meet the requirements under that act, they don’t then have to get further approval by the secretary before entering into lease agreements.
Roberts said the HEARTH Act is working, as 20 tribes have taken advantage of it.
A bill passed in the House earlier this month would supersede the Interior Department's authority by deeming lease appraisals -- to determine who owns the land, whether it belongs to an individual, is being held in trust or is viable under the tribe’s management -- approved if the agency fails to respond within 60 days. The bill would also allow the Navajo Nation to enter into lease agreements for their mineral rights without seeking department approval. Those rights refer to metallic minerals like copper and silver, but also to oil and gas resources.
The House bill would also block the Interior Department's rule intended to regulate fracking from applying to Indian lands, unless tribes want it to.
Republicans on the Senate Indian Affairs Committee also took aim at the department's fracking rule within the context of tribal sovereignty, but Roberts testified that flexibility for tribes is already written into the rule. He could not speak at length on the rule since it is currently under a legal challenge from the Southern Ute tribe.
The Hill reported the White House's Office of Management and Budget opposes the House bill because it circumvents the federal permitting process.