Fri Jun 23rd, 2017
Lindsay Box | Council Affairs
The Southern Ute Indian Tribe has remained a highly successful tribe, paving the way for Indian Country. For years, sovereignty and self-determination have been cornerstones of Tribal Council decisions on behalf of the Tribal Membership. There are numerous examples of where the Tribe is capable of making its own educated and thoughtful land use decisions on tribal trust land. Due to budget constraints at the local BIA agency and archaic systems and programs, however, the Tribe has needed to dedicate tribal staff and resources to help the BIA meet the Tribe’s needs. This reality has led to a Tribal Council discussion about how best to shape the trust relationship between the BIA and the Tribe so that the BIA can meet the Tribe’s needs and protect the Tribe’s interests instead of impeding them.
“The Southern Ute Indian Tribal Council has been working on options for exercising greater tribal control and fighting to reduce BIA control over tribal matters,” stated Chairman Clement J. Frost. Council began researching ways to increase the Tribe’s self-determination in energy and infrastructure development. Tribal Council has evaluated several options to decrease the federal oversight that hinders the Tribe’s ability to develop infrastructure and mineral resources. Options include: Southern Ute specific legislation, NEPA exemptions for projects on tribal land, support for Congressional approval of Senate Bill 245, and submitting TERA (Tribal Energy Resource Agreement) and HEARTH (Helping Expedite and Advance Responsible Tribal Home Ownership Act) Act applications.
The Southern Ute specific legislation would allow the Tribe to conduct realty-related transactions without separate federal approval, eliminating the need for bureaucratic red tape such as NEPA. There are five key provisions in the draft legislation. The findings section recognizes the Tribe’s history of success and capability to advance its interests without federal involvement. Second, the legislation eliminates the Secretary of the Interior’s responsibility to review and approve realty-related transactions, and provides that the Tribe’s approval would be sufficient. However, the third provision affirms the United States’ trust obligation to protect the Tribe’s rights and interests by enforcing federal law and the terms of realty-related transactions. The fourth provision also affirms the Secretary’s responsibility to provide technical assistance to the Tribe. Finally, the draft legislation would waive the United States’ liability for realty-related losses.
This draft legislation would not only benefit energy development, but will foster other economic and infrastructure development on tribal trust land. “To be clear, the Tribe is not asking Congress to sever the United States’ trust relationship with the Tribe. The Tribe is asking Congress to modernize the trust relationship with the Southern Ute Indian Tribe to make the relationship work for the Tribe,” emphasized Chairman Frost. Benefits of the Tribe’s draft legislation include expedited energy development, construction of tribal housing, road construction, timber sales, hazardous timber fuels reduction projects (thinning), and installation of utility lines, water lines, and irrigation structures. The Tribe assuming responsibility for its land use decisions, without federal review and approval, will reduce burden and costs to already underfunded and understaffed federal agencies.
The second option is a NEPA exemption for projects on tribal lands. With few exceptions, tribes may not make decisions that affect their lands and livelihoods without Secretarial approval (usually either through the Bureau of Indian Affairs (BIA) or the Bureau of Land Management (BLM)). So, for instance, Secretarial review and approval of a mineral lease triggers NEPA compliance, as do construction of a tribal housing project, road construction, timber sales, hazardous timber fuels reduction projects (thinning), and installation of utility lines, water lines, and irrigation structures. This is the case even when the project is tribally funded and the work will be performed by the Tribe. The time needed for federal agencies to comply with NEPA often leads to extraordinary delays in approving mineral leases, agreements, and important (and often simple) infrastructure projects. For years, the Tribe has advocated that Tribal lands should be treated differently than public lands, therefore not requiring a NEPA analysis and public (non-tribal member) comment for projects taking place on tribal land. Since NEPA is a federal law that federal agencies (not the Tribe) are required to comply with, the Southern Ute Tribal Council believes that projects on tribal land should be exempt from NEPA. Councilman Frost lobbied for this idea while attending a recent meeting in Washington, DC.
The Indian Tribal Energy Development and Self-Determination Act of 2005 created Tribal Energy Resources Agreements (TERAs). Entering into a TERA allows a Tribe to enter energy-related leases, rights-of-way, and business agreements without separate federal review and approval. In order to enter a TERA, the Tribe would have to demonstrate certain capacity and negotiate an agreement with the Department of the Interior. The Tribe has always supported the Indian Tribal Energy Development and Self-Determination Act, but the Act is in need of improvement. Senate Bill 245 is intended to improve and clarify the TERA process, identifying specific information and time frames to make secretarial decisions. It would also require more technical assistance and consultation for planning and development with tribes.
The Southern Ute Indian Tribe is also considering submitting both a TERA application and a HEARTH Act application. Tribal Council has been hesitant to submit a TERA application because it is unclear what duties could actually be delegated to the Tribe. Red Willow Production Company is currently considering development. A potential Red Willow project may provide an opportunity for the Tribe to submit a TERA application, specifically limited to one particular project in a discrete area, in hopes to expedite the process. This would allow the Tribe to work collaboratively with the United States to define “inherent federal functions” that cannot be delegated to tribes. The HEARTH Act will help to streamline surface leasing. The HEARTH Act would allow the Tribe to enter residential and most other surface leases (non-mineral) without federal approval, provided the Secretary of the Interior has approved the Tribe’s leasing procedure and that procedure meets certain standards.
The Tribal Council has spent numerous hours strategizing and discussing the pros and cons for each of the suggestions. There have been very thoughtful considerations on the impacts on the tribal membership and tribal resources. Vice Chairman Alex S. Cloud stressed, “We have discussed with staff the need to make clear that these solutions will not impact allotments. That is still the role and responsibilities of the federal government, and that will not change.”
“We are asking Congress to enhance our Tribe’s ability to exercise self-determination and sovereignty over our own resources,” Chairman Frost said. The Tribe recognizes this crucial move towards self-determination may not be comfortable propositions for all tribes. This advocacy for self-determination is not equivalent to termination—it is tailoring the trust relationship in a way that actually benefits the Tribe. Simply put, the legislation would give the Tribe the authority to decide what is best for the membership and resources on the reservation. The Tribe’s exercise of sovereignty may serve as the building blocks for other tribes throughout Indian Country to develop a beneficial working relationship with their local BIA agencies.
On Tuesday, June 20, during its regular meeting, Tribal Council memorialized their position towards increased self-determination. Tribal Council will collaborate with the staff as well as sending Southern Ute Councilman Frost to Washington, DC. Frost will meet with the Tribe’s congressional delegation to lobby for the Southern Ute Modification of Administrative Responsibilities and Tasks Act. “Together and with our friends in Congress (Republicans and Democrats alike) and this Administration, we can open a new chapter in Indian Self-Determination,” Chairman Frost said.