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DISCUSSION DRAFT OF THE INDIAN ENERGY 

PROMOTION AND PARITY ACT OF 2010 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 22, 2010 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on April 22, 2010 .............................................................................. 1 

Statement of Senator Barrasso ............................................................................... 4 

Statement of Senator Dorgan ................................................................................. 35 

Statement of Senator Franken ............................................................................... 5 

Statement of Senator Johanns ............................................................................... 6 

Statement of Senator Murkowski ........................................................................... 25 

Statement of Senator Tester ................................................................................... 1 

Statement of Senator Udall .................................................................................... 46 

Prepared statement .......................................................................................... 46 

WITNESSES

Andersen, Ralph, CEO, Bristol Bay Native Association; Co-Chair, Alaska 

Federation of Natives Human Resources Committee ....................................... 25 

Prepared statement .......................................................................................... 29 

Box, Hon. Matthew J., Chairman, Southern Ute Indian Tribe ........................... 12 

Prepared statement .......................................................................................... 14 

Garcia, Hon. Joe, Southwest Area Vice President, National Congress of American Indians; Chairman, All Indian Pueblo Council, Albuquerque, NM ......... 7 

NCAI prepared statement ................................................................................ 9 

Marchand, Hon. Michael, Chairman, Economic Development Committee; Energy Committee Member, Affiliated Tribes of Northwest Indians; Councilman, Confederated Tribes of the Colville Reservation ...................................... 21 

Prepared statement of Brian Cladoosby ......................................................... 22 

Stricker, Peter, Vice President, Strategic Asset Development, Clipper Windpower, Inc. ............................................................................................................ 36 

Prepared statement .......................................................................................... 38 

APPENDIX

Blackfeet Tribe, prepared statement ...................................................................... 58 

Cesspooch, Curtis R., Chairman, Ute Indian Tribe Business Committee, 

Uintah and Ouray Reservation, prepared statement ........................................ 61 

Crawford, Jeff, Attorney General, Forest County Potawatomi Community, 

prepared statement .............................................................................................. 103 

Finley, Hon. Michael, Chairman, Confederated Tribes of the Colville Reservation, prepared statement ..................................................................................... 82 

Metcalf, Hon. Edward L., Chairperson, Coquille Indian Tribe, prepared statement ...................................................................................................................... 108 

Miskwish, Michael Connolly, paper, entitled ‘‘Why Wind and Solar Taxes 

Should Stay on the Reservation .......................................................................... 111 

Pueblo of Laguna, prepared statement .................................................................. 87 

Shuravloff, Hon. Marty, Chairman, National American Indian Housing Council, prepared statement ........................................................................................ 90 

Suppah, Hon. Ron, Chair, Confederated Tribes of the Warm Springs Reservation Tribal Council, prepared statement ............................................................ 98 

Wu, Hon. David, U.S. Representative from Oregon, prepared statement .......... 55 

Yazzie, Vincent, Flagstaff, AZ, letter, dated May 5, 2010 .................................... 111 

Yerington Paiute Tribe, letter ................................................................................ 103 

(1) 

DISCUSSION DRAFT OF THE INDIAN ENERGY 

PROMOTION AND PARITY ACT OF 2010 

THURSDAY, APRIL 22, 2010 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m. in room 

628, Dirksen Senate Office Building, Hon. Byron L. Dorgan, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. [Presiding.] I want to call this hearing to order 

on the discussion draft of the Indian Energy Promotion and Parity 

Act of 2010. 

We are conducting this hearing to abolish the obstacles to Indian 

energy development. I am sitting in for the Chairman, Senator 

Dorgan, that is obvious, and I will put forth to you some of the 

ideas that he has in his opening statement. 

Over the past two years, the Committee investigated these obstacles. There have been two hearings, a concept paper that was released proposing solutions, and the Committee staff has held a series of roundtables throughout Indian Country. 

We have a good idea of what the obstacles are. They are outdated 

laws that create a bureaucratic maze, a lack of infrastructure, a 

lack of financing for Indian energy projects. Based on the comments of the tribes and their industry partners, Senator Dorgan released a draft Indian Energy Promotion and Parity Act of 2010 on 

March 12th. The draft bill is our launching point for this hearing, 

along with additional draft provisions that Vice Chairman Barrasso 

released. 

Let me get right to the point of today’s hearing. Indian tribes 

have vast energy resources that could provide substantial economic 

development for their communities, while increasing this Country’s 

energy independence. The need for economic development in Indian 

communities is urgent and obvious. Many struggle with 49 percent 

unemployment and poverty rates that the rest of America wouldn’t 

tolerate for a moment. 

Likewise, the Nation has an urgent need for greater energy independence. Energy production on Indian lands can be a big part of 

the answer to both problems, even though Indian lands make less 

than five percent of the United States, it is estimated that about 

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sources are on those Indian lands, yet much of that potential is left 

undeveloped. 

Indian energy resources are locked up by a century of Federal 

law and policy that discourage development. This has had a direct 

impact on the lives of American Indians and our Nation’s energy 

supply. 

I would like to share some of the stories with you today. First 

chart, and this is a chart of the oil and gas activity on the Fort 

Berthold Reservation in North Dakota. On the chart, the reservation is outlined in red and all the dots and blues represent oil and 

gas activity. It has been more than two years since oil and gas activity in this area took off and still most of the activity is to the 

north, south, and west of the reservation. 

[The information referred to follows:] 

Things are improving. Senator Dorgan has asked the Department of Interior to open up an oil and gas one stop shop. A year 

later, the number of producing wells went from 10 to 49, and more 

than $180 million have been paid to the tribes and its members. 

But this is no comparison to the hundreds of wells in surrounding 

counties. Obviously, we still have a long way to go. 

Now, Senator Dorgan’s draft bill would create more of these one 

stop shops around Indian Country and streamline the bureaucratic 

49-step process used to approve a single oil and gas lease. 


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3 

The next chart shows the renewable wind potential in the Lower 

48 States. Wind turbines could be producing electricity in all of the 

pink, the purple and the red areas. Many of these areas overlap Indian Country, which are outlined in green on the chart. On these 

reservations, tribes are trying to develop wind projects, including 

the Blackfeet Nation up in Northwestern Montana. 

[The information referred to follows:] 

The tribe has 1,000 megawatts of wind capacity, enough energy 

to power about 250,000 homes, but the tribe’s wind project is stuck 

on the drawing board, like so many tribal wind projects. Energy 

companies are interested in working with the tribe, but are worried 

that the Federal approval process will take too long and lease 

terms on Indian lands are too short. Meanwhile, the tribe is left 

out of regional electric transmission planning. Senator Dorgan’s 

draft bill specifically addresses these issues. 

The last chart shows the weatherization needs of homes on the 

Cheyenne River Sioux Reservation in South Dakota. You don’t 

have to be an energy auditor to see the energy benefits that new 

windows, doors and insulation could provide this family. But under 

current law, the weatherization needs of Indian tribes are barely 

an afterthought. The Recovery Act provided $5 billion for weatherization and annual appropriations are in the hundreds of millions, 

yet only a tiny fraction of this gets to Indian tribes. 

[The information referred to follows:] 


422a2.eps
4 

In 2009, the Cheyenne River Sioux Tribe received $3,000 for its 

weatherization program. The tribe was able to buy some plastic 

wrap to help a few of their members tape up their windows for the 

winter. The weatherization assistance tribes receive is so small 

that the Department of Energy does not even know what it is. The 

Department told Senator Dorgan’s staff it would ‘‘take a really long 

time and an awful lot of effort to figure this out.’’ 

Tell that to the members of the Cheyenne River Sioux Tribe who 

may have to decide between buying food and heating their homes 

when winter temperatures on the Great Plains drop to 30 below 

zero. 

Senator Dorgan’s draft bill changes the law so that the weatherization funding gets to those who need it most, to provide more domestic energy and stimulate economic growth in Indian Country. 

We need the laws that will support Native American energy and 

I want to thank our witnesses that are here today for traveling 

here to share your ideas and we look forward to your testimony. 

Senator Barrasso? 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. Thank 

you for holding this very important hearing on one of the Committee’s highest priorities. 

Each time I meet with the leaders of the Eastern Shoshone and 

Northern Arapaho Tribes, we discuss how important energy development is to Wyoming’s Indian communities, because in the Wind 

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ment on the Wind River Reservation means incomes for families. 

It means paying the heating the bill. It means food on the table. 

We know that many Indian communities have more than their 

share of challenges: unemployment, crime, alcohol, drug abuse. Far 

too often, I think we turn to government programs to address the 

problems. And I am not saying that there is no role for government. We do need more police in Indian Country. We do need drug 

and alcohol programs. But many of these problems are also aspects 

or features of something much larger: a pervasive lack of opportunity to earn a good living. 

Creating strong economies in Indian communities would have a 

broad and lasting impact on all of these problems. Economic development and employment opportunities, those are the keys to 

healthy, well-educated, productive communities. 

So I want to thank our witnesses for traveling long distances to 

be here today, and I look forward to hearing your testimony. 

Thank you, Mr. Chairman. 

Senator TESTER. Thank you, Senator Barrasso. 

Senator Franken, do you have any opening statement? 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Yes, thank you, Mr. Chairman. 

I want to thank Chairman Dorgan for prioritizing the issue of energy development in Indian Country. Our Country is in the midst 

of a major transition in the way we produce and use energy. There 

is no doubt that a clean energy revolution is the key to creating 

jobs and fostering economic development in communities all across 

the Country. That chart on the wind potential is a beautiful illustration of that. 

No where is this need more urgent than in Indian Country, 

where unemployment rates are 40 percent, 50 percent and higher, 

and I so much agree with the Vice Chairman that economic development has got to be the answer. 

Energy development is a huge opportunity for Indian Country. 

As Senator Tester said, and I will repeat it because it bears repeating. Tribal areas comprise only five percent of the land in the 

United States, but have 10 percent of our conventional and renewable energy resources. And yet, as you saw on the chart on oil production in that North Dakota reservation, around it really, that potential is not being tapped. 

Tribes in Minnesota fully understand this potential, the potential 

that energy development presents for job creation and economic development. For example, the White Earth Reservation is actively 

pursuing recommendations from a 2008 University of Minnesota 

study on the potential of biofuels development on the reservation. 

The Shakopee Sioux community has built a 12.5 megawatt combined heat and power plant that runs on waste agriculture biomass 

from the local area. In Northwestern Minnesota, the Fond du Lac 

Band of the Chippewa has built a 25-kilowatt biomass pilot project 

using waste woody biomass from surrounding forest lands. 

There are many more examples like this from tribes in Minnesota and they are a testament to the fact that they are engaged 

in energy development and looking for ways to scale up these 

6 

projects. But while there are successes of energy development in 

Indian Country on a small scale, broader energy development on 

tribal lands has so far just been a missed opportunity. 

As I have talked to Minnesota tribes about energy development, 

I keep hearing the same issues again and again: lack of access to 

financing, regulatory hurdles, and lack of technical assistance. 

So I want to thank this Chairman and Chairman Dorgan for 

bringing these critical issues before the Senate through this legislation, and I look forward to digging into the issues today. 

Thank you. 

Senator TESTER. Thank you, Senator Franken. 

We have five witnesses here today. I will introduce you as a 

group and then we will start with you, Joe. 

We have the Honorable Joe Garcia, Southwest Area Vice President, National Congress of American Indians, Washington, D.C., 

and Chairman, All Indian Pueblo Council, Albuquerque, New Mexico. 

Along to his right, we have the Honorable Matthew J. Box, 

Chairman of the Southern Ute Indian Tribe in Ignacio, Colorado. 

Next to him, we have the Honorable Michael Marchand, Economic Development Committee Chairman, Energy Committee 

Member, Affiliated Tribes of the Northwest Indians, Portland, Oregon, and Colville Business Council, Omak District Representative, 

Confederated Tribes of Colville Reservation, Nespelem, Washington. 

I hope I didn’t butcher that too bad. 

And next to him is Mr. Ralph Andersen, CEO of Bristol Bay Native Association, Co-Chair of the Alaska Federation of Native 

Human Resources Committee in Dillingham, Alaska. 

And finally, last but not least, Peter Stricker, Vice President of 

Strategic Asset Development, Clipper Windpower, Incorporated in 

California. Let’s just put it there. 

In want to thank you all for being here. Before we get to your 

testimonies, and Senator Johanns has come in. 

Do you have an opening statement, Senator? 

STATEMENT OF HON. MIKE JOHANNS, 

U.S. SENATOR FROM NEBRASKA 

Senator JOHANNS. Just very briefly. 

I had the most remarkable experience. I walked in here and everything you were saying, Senator Franken, I think I agree with, 

so this is really good. 

[Laughter.] 

Senator FRANKEN. What is the date today? Can we write this 

down? 

[Laughter.] 

Senator JOHANNS. No, that was an excellent opening statement. 

And actually in all sincerity, so many of the points that have been 

made by Senator Franken are points that I have heard from Native 

Americans in my State. We just had a summit where I brought all 

the tribes together. We spent a half day talking about economic development and healthcare and the issues that impact our reservations so much. 

7 

I will just say, I think this is an opportunity for us to maybe 

open up an avenue of economic development that has been untapped, and in some respects a bit unexplored. If we can get the 

right combination going here, then maybe there are some jobs that 

can be created, and that is enormously positive. 

So thank you, Mr. Chairman, for conducting the hearing. I look 

forward to the testimony of the witnesses. 

With that, I will be that brief. 

Thank you. 

Senator TESTER. Thank you, Senator. 

I once again want to thank the witnesses for being here today. 

I would ask you to keep your testimony to five minutes. Your entire 

statement will be a part of the official record, but if you could keep 

it to five minutes, this is a very important subject and I know you 

can’t cover everything you want in five minutes, but if you are concise, we will get it done and we will get to some good questions. 

Joe Garcia, do you want to start out? 

STATEMENT OF HON. JOE GARCIA, SOUTHWEST AREA VICE 

PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS; 

CHAIRMAN, ALL INDIAN PUEBLO COUNCIL, ALBUQUERQUE, 

NM 

Mr. GARCIA. Yes, sir. Thank you so much, Senator Tester and 

Vice Chairman Barrasso. We appreciate the Members of the Committee for also sitting in. 

On behalf of the National Congress of American Indians, thank 

you for the opportunity to testify about our views on the discussion 

draft on the Indian Energy Promotion and Parity Act. NCAI is appreciative of the Committee’s efforts to address our concerns about 

tribal energy development. 

The discussion draft establishes a solid foundation which we 

wish to build upon to overcome the massive and complex obstacles 

to tribal energy development. We need to move these ideas forward 

and to enact them now. 

As you are aware, tribal lands contain about 10 percent of the 

Nation’s energy resources. Tribal renewable energy potential can 

meet the Nation’s electricity demands several times over. Tribal energy is critical to the Nation’s efforts to achieve energy independence and reduce greenhouse gases. Tribes located in some of the 

poorest counties in America have vast renewable energy resources 

that can help overcome this persistent poverty. 

I wish to share with you some examples of the tremendous challenges Indian tribes confront, challenges that can become opportunities. First is the DOE programs. NCAI fully supports the discussion draft’s elevation of the Department of Energy as the major 

player in tribal energy and energy efficiency. Tribes do not receive 

direct funding under some DOE Programs. Under the Recovery Act 

alone, State governments received nearly $8 billion under DOE’s 

Weatherization program and the State Energy Conservation Plan 

Program. 

However, only two tribes, the Navajo Nation and Northern Arapaho Tribe, received a mere $10 million. Under the Weatherization 

program a tribe cannot receive direct funding unless it proves to 

DOE that the State is not serving its people. And so let us be clear. 

8 

Tribes are sovereign nations with a direct nation to nation relationship with the Federal Government. Tribal governments therefore 

should have the option to work directly with DOE to address these 

conditions our people face. 

Second, challenges to large scale renewable energy projects. Tremendous challenges confront tribal efforts to develop commercial 

scale renewable energy projects. Similar projects just outside of Indian Country have a huge competitive advantage. The map demonstrates that. They have simpler, faster and cheaper approval 

processes, better access to the grid, and easier access to financing. 

And setting up a renewable energy project on tribal lands takes 

three to five years. Whereas on non-tribal lands, this may take only 

two to three years. Which one would you choose? 

And another challenge is the imposition of State and county 

taxes. State and county taxation on renewable energy projects such 

as those being imposed on the Campo Band of Kumeyaay Indians 

and Rosebud Sioux Tribe are affronts to tribal sovereignty and tribal self-determination. They hurt the tribes economically. We urge 

the Committee to develop additional provisions within the discussion draft that will prevent States and counties from imposing 

taxes upon tribal energy projects. 

Third, opportunity for small scale energy projects. Small scale 

energy projects, particularly in remote areas, can address the 

tribe’s disproportionate lack of access to electricity and high cost of 

home heating. We applaud the discussion draft’s provision to fund 

demonstrations projects for distributed energy and community 

transmission, but we also urge the establishment of a long-term 

program with consistent funding to support these efforts. 

There are additional issues. We have issues such as transmission. We must include transmission as part of the Indian Energy Development Plan because you can generate all the energy in 

the world, but if you can’t get it on the transmission, on the grid, 

then it is useless. So we need to worry about that. 

Applications for permitting to drill. Tribes should not have to pay 

large fees in the neighborhood of $6,500 imposed by the Bureau of 

Land Management to drill on Indian lands, whereas off Indian 

land, the numbers are a lot less. 

Fuel cells, this is a new technology in terms of energy generation. 

Fuel cell driven energy plants are not part of the discussion, but 

I think it needs to be. It is an important opportunity for new efforts 

in tribal energy development. 

Energy storage, it is another opportunity for tribes to develop the 

storage capability. For instance, if you generate a lot of solar energy, you have no place to store it until the time that it is needed 

onto the grid and onto the distribution and to meet the customer 

base. You have to have storage capability. And again, it is an opportunity for the tribes to develop that. 

In conclusion, tribal governments must be able to exercise the inherent right of self-government, including fair opportunities to develop their energy resources. We urge the enactment of the Indian 

Energy Promotion and Parity Act. We look forward to working with 

you and the Committee to ensure that the needs of Indian Country 

for energy development and economic development are addressed. 

Thank you so much for the opportunity. 

9 

[The prepared statement of the NCAI follows:] 

PREPARED STATEMENT OF THE NATIONAL CONGRESS OF AMERICAN INDIANS (NCAI) 

I. Introductory Comments 

The National Congress of American Indians wishes to thank Chairman Dorgan 

for his interest in and leadership on Indian energy development, and in particular, 

for recognizing the need to overcome historic and present day inequities in tribes’ 

ability to harness their vast energy potential for the benefit of all Americans. We 

hope that this effort will be part of the long and outstanding legacy that Senator 

Dorgan has secured championing legislation that meets the needs of Indian tribes. 

We are grateful for the significant tribal outreach that Chairman Dorgan and Vice 

Chairman Barrasso have conducted. Since May of 2009, the Committee has developed a concept paper, hosted roundtable sessions to solicit tribal comments, and 

held hearings in first session of 111th Congress. We look forward to working with 

all members of the Committee to ensure passage of this important legislation. 

This discussion draft of the Indian Energy Promotion and Parity Act (IEPPA) reflects the Committee’s efforts. We believe it is a commendable effort to remove obstacles for tribally-driven energy development. As tribal lands are estimated to contain 10 percent of the nation’s traditional and renewable energy resources, realizing 

this potential is critical to the nation’s efforts to achieve energy independence, promote clean energy, and create jobs. Such efforts are especially needed in Indian 

Country, where unemployment rates are many times higher than the national average. Further, energy projects represent the most meaningful and sustainable economic development opportunities to ever arise for some tribes that have been mired 

in endemic poverty. 

However, the challenges are massive. For example, the vast majority of large 

scale renewable energy projects on tribal lands, even those which have made it 

through the maze of federal bureaucratic processes, are stuck in the pre-development phase among other things, for lack of financing, transmission access, and unfavorable tax structures. Furthermore, states and counties are increasingly keen on 

taxing tribal energy projects, threatening their very viability and siphoning off revenue that should be going to tribal governments for needed programs and services. 

If the nation seeks energy independence, it must call upon, and support, Indian 

tribes in their energy development efforts. 

a. Legislative Process 

The number of legislative days remaining in the 111th Congress is few. We urge 

the Committee to move quickly to take action on a legislative proposal. We understand that a new climate bill, which contains energy provisions, is being drafted by 

Senators Kerry, Graham, and Lieberman, may be rolled out as early as next Monday. We look forward to working with the Committee, in collaboration with other 

Senate Committees, such as the Energy and Natural Resources Committee and the 

Finance Committee, to attach provisions from the IEPPA discussion draft into this 

and other suitable legislative vehicles as quickly as possible. 

b. Tribal Process 

NCAI has been working with tribal leaders, tribal representatives, and tribal energy resource development organizations, including the Council of Energy Resource 

Tribes, the Indian Country Renewable Energy Consortium, and the Intertribal 

Council on Utility Policy, to provide comments to Committee staff on the IEPPA discussion draft. Our outreach and collaboration in the tribal community is ongoing, 

and we look forward to continuing to provide input as the legislation develops. 

The IEPPA discussion draft includes provisions to streamline and eradicate some 

of the 49 bureaucratic steps that tribes currently must go through to undertake energy development projects on tribal lands, and to ensure equitable access to the 

transmission grid, financing mechanisms, and federal programs for energy development and energy efficiency. It is important the Committee moves to remove these 

barriers to ensure that tribes are placed on a level playing field to facilitate the realization of their energy potential for the benefit not only of tribal governments and 

peoples, but the entire nation. 

II. Comments on the IEPPA Discussion Draft 

In this context, NCAI is pleased to provide general comments on issues not yet 

adequately addressed in the IEPPA discussion draft and 3 specific comments about 

Department of Energy (DOE) programs. 

10 

a. General Comments 

i. Transmission 

Opportunities for large scale energy development on tribal lands are moot if tribes 

do not have access to the transmission grid. While IEPPA calls for a study on tribal 

inclusion in infrastructure planning, more robust language is needed to ensure that 

tribal projects already in development, as well as those which may be developed in 

the future, have equitable and appropriate consideration in the transmission queue. 

We believe that there should be a priority in the transmission queue for energy 

emanating from federal lands, including tribal lands, and look forward to working 

with the Committee to provide language to that effect. 

ii. State Taxation 

A critical issue not currently addressed in the IEPPA is state and county taxation 

of tribal renewable energy projects. The Campo Band of Kumeyaay Indians has perhaps the only large-scale renewable project in Indian Country. Yet for the first part 

of that project, the state and county received more revenue than the tribe, through 

the imposition of three kinds of taxes: (1) state sales tax, (2) county property tax, 

and (3) county possessory interest tax. Notably none of the taxes collected are 

shared with the tribe. This practice sets a dangerous precedent. The State of South 

Dakota has told the Rosebud Tribe that it intends to impose taxes on renewable energy projects located on tribal trust lands, reversing a position the State held several years prior. Other states are contemplating similar actions. 

In the past, states and counties have justified this incursion into the Native tax 

base on the grounds that non-Indians engaging in commercial operations on Native 

lands are users of state services and, as such, should not get a ‘‘free ride’’ by working on tribal lands located within the state. But commercial scale wind energy 

brings very little impact to schools, law enforcement, roads, or other infrastructure. 

These taxes siphon revenue away from the tribes, prevent the tribe from enacting 

their own taxes, and, in the future, will place even more financial burdens upon 

projects. It is estimated that states can net approximately $65 million in state sales, 

property, and corporate income taxes from a 200 MW tribal project worth nearly 

half a billion dollars in construction costs. This is revenue rightfully due to the 

tribe, and for which the states and counties provide no reciprocal services. Therefore, we urge the Committee to develop legislation that will prevent states and counties from imposing taxes upon tribal energy projects. 

iii. Leasing and Siting Provisions 

Many of the IEPPA discussion draft provisions related to Department of the Interior processes, such as leasing and siting on tribal lands, address or have the potential to address the broader issues, such as the overall trust relationship between the 

federal government and the tribes, and economic development opportunities beyond 

energy. We look forward to working with the Committee to broaden and narrow the 

parameters of those provisions as appropriate. 

iv. Appraisals 

In general, we strongly support the appraisals provisions of the IEPPA discussion 

draft found in Section 106. Delays in BIA appraisals have been a severe detriment 

to many economic development projects. NCAI has long supported reforming the appraisals requirement to allow tribes to perform their own appraisals. We believe 

however, that the proposed 60-day Secretarial review and approval process of an already certified appraisal—conducted by the Secretary or by a tribe or through a 

third-party appraiser—is an unnecessary step that only adds further delay. In addition, we believe that the proposed options for conducting appraisals should extend 

to other transactions involving Indian land or Indian trust assets, and not just energy-related transactions. We urge the Committee to consider broader language involving land transactions. 

v. Leases and Rights-of-Way 

Section 201 of the IEPPA discussion draft would make helpful improvements in 

the area of leases and rights-of-way. However, with respect to leases by Section 17 

Indian Reorganization Act corporations (subsection (d)), we are concerned that certain 99-year leases can amount to a de facto sale of tribal land (for example, nonIndian residential housing). Historic experience has shown that it is very difficult 

for a tribe to recover its property once a non-Indian residential community is established. A period of 50 years should suffice for energy projects—including wind energy—and we recommend that the Committee consider making those changes to the 

language of the bill prior to introduction. 

11 

In addition, we would ask that the Committee consider including in IEPPA provisions which would expand the Navajo Leasing Act to all tribes, similar to the provisions of H.R. 2523, the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act. This legislation would permit each tribe to lease surface 

properties without Secretarial approval under tribal regulations that are approved 

by the Secretary. This legislation is supported by NCAI Resolution PSP–09–016. 

vi. Financing 

Regarding the title on Energy Financing, Title III of the IEPPA discussion draft, 

Indian tribal governments have long supported and advocated for many of these 

provisions in other contexts, such as tribal assignability of production and investment tax credits. We look forward to working with this Committee and the Finance 

Committee to develop creative solutions for the implementation of a tax credit transfer program. At the same time, the Committee should pursue alternatives to offset 

the additional cost of money for tribal investments, such as providing grants, rebates, or payroll tax credits (which tribes can use) in lieu of income tax credits 

(which tribes cannot use). In addition, the Committee should encourage energy development by facilitating greater tribal access to the Renewable Energy Production 

Tax Incentive program. Such measures will help put tribal energy projects on an 

equal competitive footing with other energy projects. 

vii. Definitions of ‘‘Indian Tribe’’ and ‘‘Indian Land’’ 

We note that the IEPPA discussion draft contains different definitions of ‘‘Indian 

tribe’’ and ‘‘Indian land.’’ It is important to ensure use of the most appropriate definition in the specific context. For example, the definition of Indian tribe as it relates 

to leasing will likely be different from that used in the context of a Weatherization 

program. We look forward to working with the Committee to ensure that these definitions are appropriate to the specific issues, underlying statutes, and programs. 

b. Provisions Related to DOE Programs 

We are pleased to provide comments on provisions related to federal programs, 

especially those at the Department of Energy, as they have not been fully addressed 

in previous forums. 

The Department of Energy’s (DOE) Tribal Energy Program provides tribes with 

an impressive degree of knowledge and professionalism, to the extent they are able 

given the modest resources provided. DOE’s efforts to work with tribes, however, are 

hampered by outmoded laws, regulations, and programs that have resulted in tribal 

exclusion and dramatically inequitable levels of funding, compared to other governments. As the nation moves resolutely towards energy independence and reductions 

in greenhouse gas emissions, now is the time for DOE to partner more fully and 

meaningfully with tribes, especially as DOE possesses unique and unparalleled expertise to work in partnership with tribes to tap tribal energy potential. 

We are pleased that the IEPPA discussion draft seeks significant changes to 

DOE’s Weatherization Program, State Energy Conservation Plan Program, tribal 

loan guarantee program, and the Office of Indian Energy Policy and Programs, including the provision of funding directly to tribes and funding to build tribal institutional capacity to carry out energy development and energy efficiency programs. 

Tribes are sovereign nations with a direct nation-to-nation relationship with the federal government. Arrangements that exclude tribes, or compel tribes to work 

through the states in order to access federal programs are demonstrably unfair and 

obsolete. 

i. Support for the Committee’s Views and Estimates Regarding DOE’s Tribal Budget 

We support the Committee’s sentiments related to DOE’s budget request. The 

Committee has asked for $50 million more than the President’s FY 2011 budget request for DOE’s Tribal Energy Program, for a total of $61 million. 

ii. State Energy Program 

DOE’s State Energy Program and DOE’s Weatherization Program were created 35 

years ago, providing financial and technical support directly to states for energy and 

home efficiency initiatives. Tribes cannot receive funding directly from DOE under 

these programs. In the case of the State Energy Program, tribes receive funding 

only at the state’s discretion. The equivalent DOE Tribal Energy Program was only 

established in 2002. Not including the 35 years of disparate federal funding, the Recovery Act alone provided states through the State Energy Program with $3.1 billion, and the Tribal Energy Program $0. Tribal access to the State Energy Program 

will ensure consistent support for tribal energy and energy efficiency endeavors. 

12 

iii. Weatherization 

Under the Weatherization Program (Wx), tribes cannot receive direct funding 

from DOE, unless they prove that to DOE that the state is failing to serve tribal 

members. Tribal homes in remote areas are often beyond the reach or awareness 

of state Wx programs. Direct state support of tribal needs varies by state. Even if 

a tribe does demonstrate the state’s failure, the funding is often too paltry to justify 

the creation of a tribal program. DOE has helped state and local Wx networks and 

services for decades. In contrast, only the Navajo Nation and Northern Arapaho 

Tribe have tribal Wx Programs. 

The impact of this awkward statutory and regulatory arrangement upon tribes is 

significant. The Recovery Act alone provided the states with nearly $5 billion 

through the Wx Program with no assurances that tribes could receive some of this 

funding directly. The IEPPA discussion draft provisions to make Wx funding directly available to tribal governments will help address decades of exclusion. 

These historic program and funding inequities and omissions result in present day 

unpreparedness to undertake those programs. Therefore we are heartened by the 

IEPPA discussion draft provision to allow DOE’s Office of Indian Energy Policy and 

Programs funding to help tribes build the institutional capacity undertake this programs. 

We look forward to working with all Committee members to improve upon the 

IEPPA discussion draft, so that tribal governments can develop their energy resources for the benefit of their peoples and all Americans, and to ensure that tribes 

meaningful participants in national energy efficiency initiatives. We urge quick action to ensure that these important measures are adopted during this Congressional 

session. We are thankful that the Committee, through the IEPPA discussion draft, 

is working toward this goal. 

Senator TESTER. Thank you, Mr. Garcia. 

Chairman Box? 

STATEMENT OF HON. MATTHEW J. BOX, CHAIRMAN, 

SOUTHERN UTE INDIAN TRIBE 

Mr. BOX. Good afternoon, Chairman Tester, Vice Chairman Barrasso, Members of the Senate Committee on Indian Affairs. 

My name is Matthew Box. I am the Chairman of the Southern 

Ute Indian Tribe. I am honored to be here today. I appreciate that. 

On Tuesday, my written testimony was submitted to the Committee, and it contains detailed responses to the March 12th discussion draft and the April 16th discussion draft of legislation addressing Indian energy development. The written testimony was 

prepared with the assistance of our legal counsel who communicates regularly with your legal counsel. And even though I appreciate attorneys, I do not intend to duplicate that written statement 

this afternoon. 

Our tribe has a national reputation as a leading energy tribe. 

Our reservation in Southwestern Colorado contains significant natural gas resources. With the foresight of tribal leaders, we rely and 

have maintained our very core government and benefits for our 

tribal membership through that foresight. We have relied on this 

for our financial engine. 

As outlined in our previous testimony, our oil and gas activities 

extend well beyond our reservation. We have overcome many institutional obstacles to get where we are today. 

Your legislative efforts make our path easier and for all tribes 

who view energy development as a vehicle for improving economic 

conditions of their community and the future of their members. 

I would like to focus on key provisions of this draft discussion. 

Perhaps the most important provision in the March 12 the discussion draft relates to tax matters addressed in Title III. Some of 

13 

these provisions relate to renewable energy projects, while others 

are more general in scope. We strongly support the provisions and 

we commit to have our lawyers work with your lawyers to help refine whatever language may be needed for formal legislation to be 

introduced. 

I would like to describe why these provisions are so important. 

The first provision, Section 301, would encourage taxpaying partners to join with tribes in building and operating renewable energy 

facilities. Because most tribes do not have significant investment 

capital, financial partners are critical to the development of energy 

resources in Indian Country. Without good partners, we would not 

have taken the steps toward building our own energy businesses. 

In most cases, what tribes have to offer are the right to use their 

lands. Unlike energy leasing of the past, most tribes today want to 

be directly involved with the ownership of the project, but also to 

share in the profits of a successful renewable energy project. Current tax laws create an economic disincentive for such partnerships 

with regard to renewable energy projects. 

Production tax credits are a key economic component to developing renewable energy. If a taxpaying entity has an Indian tribe 

as a partner, those credits are lost in direct proportion to the tribe’s 

ownership percentage. Sections 301 and 302 dealing with incentive 

tax credits would encourage effective partnerships by allowing tax 

credits associated with the tribe’s ownership to be used by the taxpaying partner. We urge that this approach be extended to the accelerated depreciation provisions and be made permanent under 

Section 303 by removing huge financial penalties associated with 

keeping the tribes, the landowner, actively involved in ownership 

and operation of the business. 

This proposed tax treatment will encourage taxpaying entities to 

join with tribes in developing energy on Indian lands. We anticipate that other Senate or Congressional committees will initially 

object to any measures that involve marketing or disproportionate 

allocation of tax credit deductions. However, the tax code was not 

written with the idea that tribes would be financial partners in developing their lands and their resources. Again, we hope that you 

will provide the leadership on these tax issues needed to change existing law. 

Our written comments also support provisions that reduce the involvement of the Secretary of Interior when not necessary. We 

strongly support Section 103, which would allow installation of 

temporary energy testing facilities on tribal lands without secretarial approval. We also support Section 106, which would provide 

statutory relief from existing appraisal requirements for land use 

transactions in Indian Country. 

My final comments are directed to the provisions of the April 

16th draft that would improve Title V of the Energy Policy Act of 

2005. The proposed provisions reduce the need for secretarial approval of transactions involving tribes with proven track records of 

land management. The proposed amendments to Title V also make 

it more likely that tribes will enter into agreements with the Secretary. We believe that the TERA options are the right approach 

in balancing self-determination and trust responsibility. 

14 

In conclusion, I thank you for this opportunity to be here and 

hope that these comments are helpful in your great effort. 

Senator TESTER. They are. 

[The prepared statement of Mr. Box follows:] 

PREPARED STATEMENT OF HON. MATTHEW J. BOX, CHAIRMAN, SOUTHERN UTE

INDIAN TRIBE

I. Introduction 

Chairman Dorgan, Vice Chairman Barrasso, and members of the Committee on 

Indian Affairs, I am Matthew Box, the Chairman of the Southern Ute Indian Tribe. 

I am honored to appear before you today to provide testimony regarding the discussion draft of the ‘‘Indian Energy Promotion and Parity Act of 2010,’’ initially distributed to the public on March 12, 2010. The discussion draft is another step forward 

in our longstanding effort to level the playing field of opportunity when it comes to 

Indian energy development. We have also reviewed a second discussion draft of possible Amendments to the Energy Policy Act of 1992 dated April 16, 2010, which also 

contains some very positive suggestions. This statement presents our comments to 

each of those discussion drafts. 

II. Background 

The Southern Ute Indian Reservation (‘‘Reservation’’) consists of approximately 

700,000 acres of land in southwestern Colorado within the Four Corners area. Our 

Reservation, which is a checkerboard of land ownerships, is located in the northern 

San Juan Basin, a prolific natural gas producing region. We collect royalties and 

severance taxes from our leased lands; however, we also generate substantial revenues from our oil and gas operating company and our gas gathering and treating 

companies, which conduct activities both on and off the Reservation. We are also 

actively involved in renewable energy development both on and off the Reservation. 

In October of last year, our testimony outlined the challenges that we have faced 

and overcome in developing our energy resources. We have worked closely with this 

Committee to identify institutional obstacles to the successful development of energy 

resources in Indian country. We appreciate your willingness to address these issues. 

As we have stated repeatedly to anyone who will listen to us, ‘‘We are the best protectors of our own resources and the best stewards of our own destiny; provided that 

we have the tools to use what is ours.’’ Both of the discussion drafts reflect steps 

forward for energy development in Indian country. 

III. General Comments to Discussion Draft of March 12, 2010 

The following comments reflect our general reaction to each of the three titles set 

forth in the March 12th discussion draft. We also believe that it may be helpful to 

the Committee to understand the context for our reaction to different sections of the 

discussion draft. 

A. Findings and Purpose 

Initially, we agree with the findings and purposes set forth in Section 2 of the 

discussion draft. We agree that outdated laws and regulations have impeded the development of energy resources in Indian country. We also believe that the principal 

purposes of this legislation should be to remove those legislative and regulatory obstacles and to provide incentives for the development of renewable and non-renewable energy resources in Indian country. 

B. Title 1—Energy Planning 

With respect to Title 1 of the discussion draft, there are some provisions of this 

title that we believe are critical improvements, others that are interesting, and some 

that we would oppose in their current form. We strongly support and urge you to 

retain Title 1, Section 103 (Predevelopment Feasibility Activities). This section allows temporary facilities to be installed on Indian land for purposes of data collection, without approval of the Secretary of the Interior or the Secretary of Energy, 

so long as the facilities will be removed and the testing activities concluded within 

two years. Inclusion of this section responds directly to testimony at field hearings 

regarding the bottleneck in obtaining Federal approval for the installation of temporary facilities on Indian land needed to evaluate the feasibility of wind power facilities. We would, however, suggest that the duration of the testing period be subject to renewal if needed to complete feasibility studies. 

We also strongly support Title 1, Section 106 (Appraisals), although we would expand its provisions. This section would eliminate the requirement for the Secretary 

15 

of the Interior to conduct appraisals of trust assets to be used in Indian energy development transactions if such appraisals are being conducted by a tribe pursuant 

to a contract under the Indian Self-Determination and Education Assistance Act 

(‘‘638 Contract’’) or by a certified third party appraiser under a contract with the 

tribe. The issue addressed by this section relates to current Interior regulations that 

call for a federal appraisal for many real property transactions, including the granting of rights-of-way across Indian lands. From a staffing perspective, the scope of 

the task makes prompt compliance impossible, which causes inordinate delays in 

processing rights-of-way needed in the conduct of ordinary business. 

Additionally, however, the federal appraisal standards are inflexible. For example, 

a number of years ago our Tribe consented to the grant of a right-of-way to a telecommunications company that paralleled a major public highway leading to our 

headquarters. Our compensation was to be the exclusive use of strands of highspeed, fiber optic cable for transmission of electronic information needed to serve 

our extensive governmental and commercial operations. Obviously, this form of compensation did not fit easily into standard Federal valuation methodologies. Only 

through extraordinary efforts were we able to convince the BIA to grant the rightof-way, and, even then, the BIA was extremely reluctant to proceed. Our use of 

those fiber optic cables, however, has been extensive. In order to avoid similar 

delays in the future, we urge the Committee to expand the instances in which Federal appraisals can be avoided to include situations in which the tribal government 

expressly waives an appraisal. Additionally, we believe that individual appraisals 

are unnecessary when a tribe has legislatively adopted compensation schedules for 

categories of land that correspond to area land values. Our Tribe generally uses surface damage compensation fees based on different land classifications, which the 

BIA now allows us to rely upon in lieu of actual appraisals. Statutory confirmation 

of the acceptability of this approach would be helpful. 

We also support Title 1—Sections 105 (Department of Energy Indian Energy Education Planning and Management Assistance), 107 (Technical Assistance and National Laboratories), 108 (Preference for Hydroelectric Preliminary Permits), and 

109 (Study on Inclusion of Indian tribes in National and Regional Electric Infrastructure Planning). Each of these sections would be useful measures for tribes 

seeking to expand energy resource development. 

We question the need for Title 1—Section 101 (Indian Energy Development Offices), which would authorize the creation of up to three offices as one stop shops 

of multiple Department of the Interior agencies with administrative jurisdiction over 

aspects of Indian energy development, including the BIA, the BLM, that National 

Park Service, the U.S. Fish and Wildlife Service, the Bureau of Reclamation, the 

MMS, and the Office of Special Trustee. The Indian Energy Development Offices 

would be set up in regions of significant Indian energy resource activity or potential, 

and, through centralized staffing, the Indian Energy Development Offices would 

presumably be better able to handle Indian energy development than current administrative structures. Although the establishment of Indian Energy Development 

Offices has been advocated by others in the Indian community, we seriously question the need for or the long-term viability of these multi-agency offices. All of the 

administrative agencies at the Department of the Interior share the federal trust 

responsibility. With the exception of the BIA, all of those offices also have responsibilities for activities on a variety of federal lands. Our experience indicates that 

when dealing with officials from non-BIA agencies, such as the BLM or the MMS, 

much can be accomplished through officials held in high regard and occupying positions of broad authority within their agencies, who have an awareness and sensitivity to Indian matters. We fear that, because of their value to their agencies for 

dealing with multiple issues, such officials would not be the ones selected to fill positions in Indian Energy Development Offices. With guidance from the Secretary, we 

believe that prioritization of Indian trust matters and inter-agency cooperation can 

be effectively addressed without the creation of Indian Energy Development Offices. 

We are concerned that this legislation may not be the appropriate vehicle for considering matters addressed in Title 1—Section 102 (Indian Energy Program Integration Demonstration Projects). Section 102 establishes an elaborate process under 

which multiple federal agencies would be compelled to survey and report to the Secretary regarding Indian related programs within their departments. Following publication of these multiple programs, an Indian tribe could present a plan to the Secretary under which the tribe would propose to carry out those multiple programs 

in an integrated fashion with funding derived from the multiple agencies. In some 

respects, Section 102 appears to be an expansion of the 638 Contract process beyond 

the Department of the Interior with respect to community development and energy 

related matters. It is ambitious in scope and would clearly require greater interagency cooperation and coordination with respect to Indian-related programs. While 

16 

Section 102 reflects worthwhile objectives, we are concerned that this proposal will 

require the involvement of multiple congressional committees and, because of its 

scope, may result in delays in congressional approval of other provisions in this legislation that are long overdue with respect to Indian energy development. 

Our greatest concern extends to Title 1—Section 104 (Comprehensive Energy Resource Planning). In our view Section 104 undermines the fundamental 

underpinnings of the Indian Tribal Energy Development and Self-Determination Act 

of 2005, particularly the amendments to the Title XXVI of the Energy Policy Act 

of 1992 now found at 25 U.S.C. § 3504. In order to understand our position on Title 

1—Section 104 of the discussion draft, it is helpful to review what Congress and Indian tribes attempted to achieve in Title V of the Energy Policy Act of 2005. 

Because Indian energy leases, business agreements, and rights-of-way generally 

require the approval of the Secretary, and because such approval constitutes Federal action, consideration of such a Federal action triggers compliance with the National Environmental Policy Act of 2005 (‘‘NEPA’’). NEPA is a procedural statute designed to ensure that Federal agencies evaluate alternatives to a proposed Federal 

action, taking into consideration the potential environmental and social impacts of 

the alternatives and the views of the public. Except for the United States Government, no owner of land in the United States, other than an Indian tribe or an Indian allottee, is subject to NEPA with respect to land use transactions. Unlike Indian lands, which are owned beneficially by Indian tribes or Indian individuals, 

other Federal and public lands are generally owned for the benefit of the public at 

large. Many tribal representatives have felt that application of NEPA to tribal land 

use decisions unfairly encroaches on tribal sovereignty. To be sure, Indian tribes are 

bound to substantive environmental protection laws of general application when 

Congress has indicated its intent to bind tribes. So long as a proposed energy lease, 

business agreement, or right-of-way was to be performed in compliance with those 

substantive laws, however, the evaluation of multiple alternatives to a tribal land 

use decision and inclusion of the public in second-guessing a tribe’s decision were 

objectionable. Further, in the context of energy development, the NEPA process penalized tribes. Energy development on private lands adjoining tribal land does not 

require NEPA compliance. Thus, while Federal officials undertook detailed evaluation of alternatives to a tribal energy lease, for example, tribal oil and gas resources 

were being drained by their neighbors. Particularly for tribes, like the Southern Ute 

Indian Tribe, with sophisticated energy and environmental staffs and decades of 

proven success, the NEPA review process was frustrating and damaging. 

After several years of legislative consideration, Congress offered tribes the alternative reflected in Section 2604 of the Energy Policy Act of 2005, through the vehicle known as a ‘‘Tribal Energy Resource Agreement’’ (‘‘TERA’’). A TERA is a master 

agreement which may be entered into between a tribe with demonstrated capacity 

and the Secretary. Upon entering into a TERA, an energy-related lease, business 

agreement, or right-of-way with a TERA-tribe no longer requires Secretarial approval, and, thus, no longer requires NEPA review. In place of NEPA, however, Congress required that a TERA-tribe establish a tribal environmental review process 

that allows for limited public participation. Under the statute, a TERA would also 

permit a Tribe to assume Federal administrative functions related to review and operation of energy development on tribal lands. 

Inexplicably, Title 1—Section 104 appears to increase rather than decrease application of NEPA in Indian country. Section 104 establishes mechanisms, utilizing 

638 Contracting, under which Indian tribes may undertake preparation of comprehensive programmatic environmental review documents related to energy resource development. These programmatic environmental review documents are 

themselves subject to NEPA review. Even if a tribe were to participate under Section 104, nothing in the discussion draft would eliminate Secretarial approval or 

subsequent NEPA review of an actual energy lease, business agreement, or rightof-way proposed in conformity with the programmatic NEPA planning document. 

Significantly, Section 104 would also re-write the prior TERA statute to now require 

that a tribal TERA environmental review process satisfy new Federal standards to 

be developed by the Office of Indian Energy and Economic Development. In our 

view, Section 104 is a step backwards, not a step forward. 

In summary, with respect to Title 1 of the March 12th discussion draft our position is as follows: 

Section 101 (Indian Energy Development Offices)—Seriously question. 

Section 102 (Indian Energy Program Integration Demonstration Projects)—Seriously question. 

Section 103 (Predevelopment feasibility activities)—Strongly support, but would 

allow for renewals. 

17 

Section 104 (Comprehensive energy resource planning)—Strongly oppose. 

Section 105 (DOE Indian energy education planning)—Support. 

Section 106 (Appraisals)—Strongly support, but would expand. 

Section 107 (Technical assistance from DOE National Laboratories)—Support. 

Section 108 (Preference for hydroelectric preliminary permits)—Support. 

Section 109 (Study on inclusion in electrical infrastructure planning)—Support. 

C. Title II—Energy Development and Energy Efficiency 

Title II—Section 201(Leases and Rights-of-Way on Indian Land) proposes a number of statutory changes designed to address existing statutes affecting Indian mineral and non-mineral leasing and rights-of-way. The first issue addressed by Section 

201(a) and (b) is to confirm that a mineral lease of allotted or tribal land may also 

include an associated right-of-way without the necessity of a separate right-of-way 

document. We generally support this proposal; however, we also believe that this 

provision requires a drafting change. Specifically, in addressing the contemporaneously issued right-of-way under the Allottee Mineral Leasing Act of March 3, 1909 

(25 U.S.C. § 396), Section 201(a)(2)(B)(i) would eliminate the separate approval of 

‘‘the applicable Indian tribe... pursuant to the Act of February 5, 1948 (25 

U.S.C. 323 et seq.).’’ See page 34, lines 14–17 of the March 12th discussion draft. 

This provision should be changed to confirm that any proposed right-of-way crossing 

tribal land issued contemporaneously with an oil and gas lease of allotted land, 

must be separately approved by the applicable Indian tribe pursuant to the Act of 

February 5, 1948 (25 U.S.C. § 323 et seq.). Since passage of the Indian Reorganization Act of 1934 (‘‘IRA’’), Congress has consistently recognized that tribal consent 

is a pre-condition to the valid use of tribal land. That consistent treatment should 

not be altered in this provision. 

The second issue, which is addressed in Section 201(c) and (d) of the March 12th 

discussion draft, is the duration of leases that may be issued by tribes under the 

Long-Term Leasing Act (25 U.S.C. § 415(a)) or by tribal corporations chartered 

under Section 17 of the IRA (25 U.S.C. § 477). Section 201(c) and (d) would expand 

the terms of those durational provisions, and, because they would increase the options available to tribes, we support those provisions. 

Title II—Section 202 (Application for Permit to Drill Fees Not Applicable) of the 

March 12th discussion draft would confirm that increased fees imposed by the Bureau of Land Management for each application for a permit to drill (‘‘APD’’) submitted to that agency would not apply to APDs submitted with respect to Indian 

lands. We support this change. 

Title II—Section 203 (Distributed Energy and Community Transmission Demonstration Projects) of the March 12th discussion draft would authorize the Director 

of the Office of Indian Energy Policy and Programs for the Department of Energy 

to conduct not less than 5 demonstration projects to increase the availability of energy resources to Indian tribes and Alaskan Natives. We support this proposal. 

Title II—Section 204 (Environmental Review) authorizes participating Indian 

tribes to undertake NEPA review for energy projects developed on tribal land that 

would otherwise be applicable to the Secretary of Energy if the Secretary of Energy 

were conducting that activity with respect to a Federal project. We do not clearly 

understand the context of this provision, but surmise that it is intended to address 

NEPA compliance that might arise in the context of a DOE loan or grant to an Indian tribe for an Indian energy project. We object to the purpose as stated to the 

extent that it suggests that NEPA should apply to ‘‘all energy projects developed 

on tribal land.’’ See page 41, lines 5–12 of March 12th discussion draft. In that regard, if a tribe undertakes such activity directly without a lease or other instrument 

requiring Secretary of the Interior approval, then NEPA would not typically apply 

to the tribe’s direct energy development activity, and we do not believe that the 

statement of purpose in Section 204 should conflict with existing law. A more accurate statement of purpose, consistent with existing law, would be to ensure that 

NEPA review for Indian energy projects is completed with respect to the Secretary 

of Energy’s actions, when applicable. In addressing that substantive issue, we submit that the best approach would be to exempt NEPA review by the Secretary of 

Energy with respect to any such projects on tribal land that do not require NEPA 

review by the Secretary of the Interior and to also authorize the Secretary of Energy 

to rely upon and concur in NEPA review undertaken by the Secretary of the Interior 

when applicable under existing law. Notwithstanding the positive approach authorizing delegations to tribes to conduct NEPA review undertaken on behalf the Secretary of Energy, the current language of Section 204 implicitly doubles the NEPA 

review that must be undertaken in instances in which both the Secretary of the Interior and the Secretary of Energy have some involvement. We believe that the asVerDate Nov 24 2008 10:03 Oct 21, 2010 Jkt 061550 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\61550.TXT JACK PsN: JACKF
18 

sumptions underlying Section 204 should be more carefully examined and that a 

more constructive solution to non-duplication of NEPA review for actions involving 

multiple Federal agencies should be pursued. 

We generally support Title II—Section 205 (Department of Energy Loan Guarantee Program), which would provide clarification and assist in implementation of 

loan guarantees by the DOE for Indian energy projects proposed by Indian tribes 

or tribal energy resource development organizations. 

We also support Title II—Section 206 (Inclusion of Indian Tribes in State Energy 

Conservation Plan Program), which would expand tribal participation in energy conservation planning programs currently available to states. 

Additionally, we support Title II—Section 207 (Home Weatherization Assistance) 

which would expand access for home weatherization assistance to tribes and would 

increase the administrative role of the Secretary of the Interior for such programs. 

We also support Title II—Section 208 (Tribal Forest Assets Protection), which 

would provide for tribal demonstration projects related to use of woody biomass for 

electrical power generation and distribution. 

In summary, with respect to Title II of the March 12th discussion draft our position is as follows: 

Section 201 (Leases and rights-of-way on Indian land)—Support with drafting 

revision. 

Section 202 (Application for permit to drill fees not applicable)—Strongly support. 

Section 203 (Distributed energy demonstration projects)—Support. 

Section 204 (Environmental Review)—Oppose unless substantially revised. 

Section 205 (DOE loan guarantee program)—Support. 

Section 206 (Inclusion of tribes in state conservation programs)—Support. 

Section 207 (Home weatherization assistance)—Support. 

Section 208 (Tribal forest assets protection)—Support. 

D. Title III—Energy Financing 

Title III—Section 301 (Transfer by Indian tribes of credit for electricity produced 

from renewable resources) creates a special rule allowing an Indian tribe’s ownership interest in a renewable energy facility to be treated as that of a co-owner for 

purposes of allocating production tax credits under Section 45 of the Internal Revenue Code. We strongly support this provision; however, we also believe that additional provisions should be included in any final legislation to reflect the indirect 

participation of an Indian tribe. Currently, there is an economic disincentive for Indian tribes to acquire or retain ownership interests in renewable energy facilities 

because there is no way to monetize production tax credits associated with the 

tribe’s ownership interest. Production tax credits are a critical component in the economics of renewable energy projects. Our tribe is the sole owner or member of an 

alternative energy limited liability company that has attempted to invest in major 

wind projects in the West. The absence of tax credits attributable to our ownership 

interests adversely affects the economic viability of those projects if we participate. 

Additionally, under existing law, tribal participation complicates the structure and 

the timing of our potential investments. 

It is our understanding that the intended result of Section 301 would be to allow 

an Indian tribe to transfer the tax credits associated with power production from 

a renewable energy facility and attributable to the tribe’s ownership interest to the 

taxpaying partner. Currently, the proposal addresses only the transfer of energy 

production, and we hope that final legislative language eliminates any ambiguity 

with respect to the assignable character of the production tax credits, while allowing 

the tribe to retain the sales revenue attributable to its ownership percentage. 

With regard to such facilities, it is most likely that a taxpaying partner and an 

Indian tribe, or a business entity wholly owned by the tribe, would form a special 

purpose entity, such as a limited liability company, which would own the renewable 

energy facility. Tax liabilities would typically track ownership percentages in the 

limited liability company. Use of such special purpose entities is a common and accepted way to limit general (non-tax) liability for the participating partners beyond 

the value of the assets of the project. We urge the Committee to consider modifying 

the definition of ‘‘Indian tribe’’ for purpose of Section 45 of the Internal Revenue 

Code to also include a business entity wholly owned by an Indian tribe. See page 

56, line 22 through page 57, line 8 of March 12th discussion draft. Modification of 

the definition would allow for the following structure: (i) owner of renewable energy 

facility is a limited liability company; (ii) owners or members of the limited liability 

company that owns the renewable energy facility, are (x) a wholly-tribally owned 

19 

business entity, and (y) a taxpaying entity. We urge the Committee to give Indian 

tribes the same business flexibility that other investors possess by allowing for the 

tribe’s participation to be indirect rather than direct ownership of a portion of the 

facility. 

We also strongly support Title III—Section 302 (Investment Tax Credits), which 

we understand would allow investment tax credits attributable to an Indian tribe’s 

ownership interest in an energy property to be monetized. This provision would 

clearly provide increased tax incentives for energy investment in Indian country, 

while also encouraging ownership retention by an Indian tribe in such projects. 

Again, for the same reasons discussed with respect to Title III—Section 301, above, 

we would urge the Committee to consider language that would allow the contemplated allocation of basis to flow from an Indian tribe’s wholly-owned business 

entity to the other investor so that tribes would have the option of holding ownership of an energy property indirectly rather than only directly through the tribal 

government. This treatment would, for example, be consistent with the use of tribal 

corporations under Section 17 of the IRA. 

Title III—Section 303 (Permanent Extension of Depreciation Rules for Property 

on Indian Reservations) is another provision of Title III that we strongly support. 

Use of accelerated depreciation under Section 168(j) of the Internal Revenue Code 

has encouraged investment in Indian country, and tribal leaders have repeatedly requested that the accelerated depreciation rules be made permanent with respect to 

on-reservation investments. Again, with respect to utility scale investments, accelerated depreciation is a key factor in economic feasibility. As with Section 301 and 

Section 302 above, we would urge the Committee to incorporate language permitting 

a disproportionate allocation of depreciation to a taxpaying partner of an Indian 

tribe or a business entity wholly owned by the tribe. 

We also support Title III—Section 304 (Permanent Extension of Indian Employment Credit). Permanent extension of the Indian employment credit under Section 

45A of the Internal Revenue Code would continue to encourage employers in Indian 

country to hire Indians. 

Finally, we also support the statutory changes reflected in Title III—Section 305 

(Extension of Grants for Specified Energy Property in Lieu of Tax Credits). These 

proposed changes would extend the time periods during which investors in qualified 

renewable energy equipment could make such investments and request grants in 

lieu of tax credits under Section 1603 of division B of the American Recovery and 

Reinvestment Act of 2009. Additionally, this section would make Indian tribes eligible for such grants. Currently, tribes are not eligible for this favorable tax treatment, yet they are looked to by their communities for leadership with respect to 

such investments. 

In summary, with respect to Title III of the March 12th discussion draft our position is as follows: 

Section 301 (Transfer by Indian tribes of renewable energy production tax credits)—Strongly support, but also urge modification to include wholly-owned business entities of tribes. 

Section 302 (Investment tax credits)—Strongly support, but also urge modification to include wholly-owned business entities of tribes. 

Section 303 (Permanent extension of depreciation rules)—Strongly support but 

also urge modification to include assignments of depreciation from Indian tribes 

or wholly-owned business entities of tribes. 

Section 304 (Permanent extension of Indian employment credit)—Support. 

Section 305 (Extension of grants under 1603 of ARRA)—Support. 

E. Title IV—Amendments to Indian Energy Policy Laws 

Title IV—Section 401(Amendments of Indian Energy Policy Laws) proposes a 

number of clarifying changes to the Energy Policy Act of 2005, some of which would 

help implement changes addressed in previous sections of the March 12th discussion 

draft. We have no objections to those changes; however, our previous comments regarding Section 101 (Indian Energy Development Offices) should be considered with 

respect to Section 401(b) of the discussion draft. 

IV. General Comments to Discussion Draft of April 16, 2010 

The April 16th discussion draft addresses two principal matters: (i) Amendments 

to the Indian Land Consolidation Act (25 U.S.C. § § 2201 et seq.) and (ii) Amendments to the Energy Policy Act of 1992 (25 U.S.C. § § 3501 et seq.). Our remarks 

are limited to the proposed amendments to the Energy Policy Act. As our previous 

comments have indicated, our Tribe was a vigorous supporter of Title V of the Energy Policy Act of 2005, including the provisions allowing for a TERA between the 

20 

Secretary and a qualified Indian tribe. Our support for the TERA provisions was 

driven not only by frustrations in obtaining prompt NEPA review for energy related 

transactions requiring Secretarial approval, but was also motivated by our belief 

that our internal capabilities in evaluating such transactions exceeded those of the 

BIA. Since the mid-1970s, we have taken a hands-on approach to management and 

development of our energy resources. Our extensive staff includes geologists, engineers, land specialists, environmental specialists, information technology experts, 

and lawyers. Our successful operations in energy development have not been limited 

to on-Reservation activities, but have also included exploration and production activities in more than 10 states and the Gulf of Mexico. For us, the costs associated 

with delays in obtaining Secretarial approval were not offset by added value arising 

from Secretarial review. 

Notwithstanding our support for the TERA provisions contained in 25 U.S.C. 

§ 3504, neither our Tribe nor any other tribe has yet entered into a TERA. There 

are a number of reasons why no TERA has yet been completed. First, the process 

of adoption of implementing regulations took several years. Second, the regulations 

once promulgated withheld from tribes the opportunity to assume ‘‘inherently Federal functions’’ related to their lands. This term was not mentioned as a limitation 

in the statute and remains undefined in the regulations. The regulations also left 

unanswered how the Secretary would measure tribal capacity. Third, tribes remain 

reluctant to include the public in a tribal environmental review process. Fourth, the 

financial expense of taking over Federal administrative duties is imposing and 

TERAs provided no funding mechanism. And fifth, TERAs are viewed by some tribal 

leaders as relieving the Federal Government of its trust duties, primarily because 

of the Federal Government’s poor performance of those duties. 

The April 16th discussion draft proposes statutory changes that address some of 

the factors mentioned above, and we generally support the proposed modifications. 

The remaining comments address specific provisions contained in the April 16th discussion draft. 

A. Definitions (25 U.S.C. § 3501) 

The April 16th draft would supplement the definition of ‘‘tribal energy resource 

development organization,’’ which is an organization of two or more entities, at least 

one of which is an Indian tribe, to allow such an organization to enter into a lease 

or business agreement, or acquire a right-of-way from an Indian tribe under specific 

circumstances subsequently addressed in the statute. It should be noted that one 

of the suggestions contained in Section 401 of the March 12th discussion draft 

would amend the term ‘‘sequestration’’ set forth in 25 U.S.C. § 3501(10). We are supportive of both of those definitional changes. 

B. Amendments to 25 U.S.C. § 3504(a)(2) and 3504(b) 

The proposed amendments to 25 U.S.C. § § 3504(a)(2) and 3504(b) would significantly and beneficially expand the instances in which energy leases, business agreement, and rights-of-way involving tribal land could be entered into without Secretarial approval. So long as the Indian tribe retained majority control of the energy 

lease, business agreement or right-of-way throughout the duration of the instrument, and provided that a tribe had successfully carried out its responsibilities over 

a 7-year period under a land use-related 638 Contract, Secretarial approval would 

not be required. We strongly support this approach. First, it substantially eliminates 

the uncertainty associated with measuring tribal capacity under the TERA mechanism. Second, it eliminates the Secretarial approval process when the affected, 

qualified tribe retains ownership and control over the activities being conducted on 

tribal land. 

C. Amendments to 25 U.S.C. § 3504(e) (TERA Requirements) 

The changes to 25 U.S.C. § 3504(e) found on pages 17, 18, and 19 of the April 16 

discussion draft are largely clarifying measures, which we support. We also support 

the additions of 25 U.S.C. § 3504(e)(2)(F) and (G), which add certainty to the TERA 

disapproval process and tribal capacity determinations for tribes with track records 

of positive performance under the 638 Contract or self-governance programs of the 

Indian Self Determination and Education Assistance Act. The changes to 25 U.S.C. 

§ 3504(e)(6) maintain the basic concept of retained Federal trust responsibility reflected in the existing statute, but affirmatively restate the circumstances under 

which Federal liability for breach of those duties will exist. We believe that this 

clarification will provide meaningful assurance to Indian tribes considering the 

TERA option. 

21 

D. Proposed 25 U.S.C. § 3504(g) 

This proposed addition would include a funding component to TERAs that is lacking under existing law, by incorporating the 638 Contracting and self-governance 

mechanisms and applying them to TERAs. Addressing the administrative cost issue 

associated with TERAs is a significant positive development. 

E. New Provisions Related to APD Fees 

Unlike the discussion draft of March 12th, the fee provisions of April 16th would 

allow APD fees associated with Indian lands to continue to be collected; however, 

the use of those fees by the BLM would be required to address permitting and inspection costs associated with development of Indian lands. While we support the 

discussion draft provisions of March 12th, the provisions of the April 16th draft are 

a significant improvement over existing BLM practices. 

Conclusion 

The two discussion drafts addressing Indian energy issues are responsive to concerns raised by tribes in testimony already presented to this Committee. We have 

been honored by your interest and by our inclusion in the process. We hope that 

our comments are useful to the Committee in refining and formally introducing legislation on these matters in the near future. 

Senator TESTER. We certainly appreciate your comments and everyone’s comments on the witness panel today. 

Michael Marchand? 

STATEMENT OF HON. MICHAEL MARCHAND, CHAIRMAN, 

ECONOMIC DEVELOPMENT COMMITTEE; ENERGY 

COMMITTEE MEMBER, AFFILIATED TRIBES OF NORTHWEST 

INDIANS; COUNCILMAN, CONFEDERATED TRIBES OF THE 

COLVILLE RESERVATION 

Mr. MARCHAND. Thank you, Members of the Committee, and 

thanks for inviting the Affiliated Tribes of Northwest Indians to 

speak today. I am speaking on behalf of President Cladoosby who 

was not able to make it today. 

My name is Michael Marchand. I am a Councilman at the 

Colville Tribes. Also, I am teaching at my college. I am a doctoral 

student in bioenergy at the University of Washington, so a Husky. 

The ATNI organization in the Pacific Northwest is 57 tribes and 

they have been around for 50 years. For 15 years, ATNI has had 

an active energy program, working with our membership on these 

issues and trying to promote their needs and develop this area. 

ATNI member tribes are very interested in this because it is a 

key to economic development on many of our reservations, many of 

which are impoverished and our unemployment rates are very 

high. 

ATNI member tribes appreciate the efforts of this Committee and 

the staff who seek the advise of tribes and organizations prior to 

the drafting of this bill. Our representatives attended roundtables 

regarding the concerns on energy development in Indian Country. 

We are pleased to see many of our suggestions for improving opportunities for energy development in the bill, including the amendments to the Tribal Forest Protection Act, which enhances our capabilities to coordinate with our Federal neighbors both on and off 

reservations. We have additional suggestions for improving the bill 

as follows. 

First, a number of the directives and authorities described in the 

bill are for the Director of the Office of Indian Energy Policy and 

Programs of the Department of Energy. This petition remains vaVerDate Nov 24 2008 10:03 Oct 21, 2010 Jkt 061550 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 S:\DOCS\61550.TXT JACK PsN: JACKF
22 

cant at this time. We strongly urge Congress to request that the 

President make the appointment to this important position as soon 

as possible. Apparently, funding designated for use in this office is 

being diverted to other offices within DOE pending the appointment. 

We would like you to consider an option that would allow tribal 

leadership to be more involved in this appointment by establishing 

a timely process for tribal leaders to make nominations and then 

requiring an appointment from the list of nominees within a reasonable time frame upon the change of any Administration. 

Secondly, because many of our tribes have treaties that cover the 

ocean and they are currently heavily dependent upon ocean health, 

we request that a provision be added to give Indian tribes participation on any federally funded group that is studying or otherwise 

making recommendations related to the Outer Continental Shelf. 

In addition, to the extent that States have rights to share in royalties in energy development on the Outer Continental Shelf, coastal 

and ocean treaty tribes should also have the same right. 

Third, we also support the amendments disseminated earlier this 

week by Vice Chairman Barrasso, specifically those that would 

amend that the Indian Land Consolidation Act to provide tribes 

with more flexibility and additional funding for consolidating 

fractionated lands. 

Fourth, ATNI member tribes have strong recommendations for 

improving the use of Federal funds for energy efficiency and conservation in Indian Country. Most energy conservation programs 

were designed with States and cities in mind and could be improved for areas with substandard housing and old and even dangerous government buildings such as many reservations have. 

For example, we have found that the term ‘‘weatherization’’ has 

too narrow a definition when applied to funding sources. Many 

buildings in Indian Country are substandard, even dangerous. 

Weatherizing them does not make any sense. We request a new 

provision that authorizes the use of fund for repair or replacement 

of existing substandard buildings where there would be overall cost 

and energy savings. 

Another issue is that on many reservations, a large percentage 

of housing is old mobile homes. Mobile homes built prior to 1976 

were not subject to building standards and are therefore not energy 

efficient. We request that weatherization programs be broadened to 

allow tribes the flexibility to assist the community in the replacement of these older mobile homes with newer, more efficient 

homes. 

Thank you for this opportunity. 

[The prepared statement of Mr. Cladoosby follows:] 

PREPARED STATEMENT OF HON. BRIAN CLADOOSBY, CHAIRMAN, SWINOMISH TRIBE; 

PRESIDENT OF THE EXECUTIVE BOARD, AFFILIATED TRIBES OF NORTHWEST INDIANS

Good afternoon Chairman Dorgan, Vice Chairman Barrasso, and Members of the 

Committee. Thank you for inviting the Affiliated Tribes of Northwest Indians to provide testimony regarding the Indian Energy Promotion and Parity Act of 2010. I am 

Brian Cladoosby, the Chairman of the Swinomish Tribe in Washington State and 

President of the Executive Board of the Affiliated Tribes of Northwest Indians 

(ATNI). ATNI is an organization of Indian Tribes that has celebrated over 50 years 

representing tribes from Alaska, California, Nevada, Washington, Oregon, Montana 

23 

and Idaho on issues of concern to our people. For fifteen years, ATNI has had an 

active energy program that has advised our membership on policy issues and has 

provided technical assistance and training to tribes, and has assisted federal agencies in better serving our members. 

The ATNI member tribes are very interested in this subject matter because it is 

a key to economic development on our reservations, many of which are impoverished 

and have unemployment rates that are much higher than other areas of the country. Our member tribes include: 

• The Blackfeet Tribe, who has oil and gas issues, and also the best wind energy 

opportunity in the United States, but also lacks transmission access; 

• The Colville, Warm Springs, Coquille, Spokane, Salish & Kootenai and Yakama 

Nations who all have excellent biomass opportunities but are struggling to complete the development of their projects; 

• At least ten Coastal tribes, and many other tribes with treaties that protect 

salmon, all of whom are extremely interested in energy development and protection in the Outer Continental Shelf; 

• Numerous tribes developing vast potentials of wind, solar, geothermal, and hydroelectric power; 

• Tribes who wish to address the impacts of renewable energy endeavourers on 

and off the reservation by increased capacity in the areas of legal, science and 

policy to ensure the protection of their treaty and subsistence resources. 

• All our members are interested in energy conservation, and who wish to make 

weatherization and low income programs more useful to Indian tribes; 

• Many members, such as the Swinomish Tribe who has completed a climate 

change adaptation and mitigation plan and who are concerned about the effects 

of climate change in ocean, rain and snowfall, and changes in fish and wildlife, 

and in our culture; 

• Tribes who are developing traditional generation, wind, biomass, hydroelectric, 

and transmission projects such as Tulalip, Shoshone-Bannock, Crow, Umatilla, 

and Slitez that will be able to move their projects forward and create many new 

jobs by using the tax credits, accelerated depreciation, grants, and employment 

credits provided for in this bill. 

• Many Tribes who will benefit from strong legal and policy capacity building and 

coordination with neighboring industries to address the challenges of converting 

the renewable energy opportunities to profit. 

ATNI and our member tribes appreciate the efforts of this Committee and your 

excellent staff in seeking the advice of Indian tribes and organizations prior to drafting this bill. Our representatives attended the Roundtables held regarding the concerns of energy development in Indian Country. We are pleased to see many of our 

suggestions for improving the opportunities for energy development in Indian Country in the bill. For example, our member tribes have emphasized the importance of 

coordinating with neighboring federal and other government entities, and with industry. We also emphasized building tribal internal capacity to ensure the immediate and long term success of energy projects. Many of the provisions in the bill 

reflect these suggestions and others that were requesteded by ATNI member tribes 

(along with other tribes and tribal organizations); including Sections: 

103 (Predevelopment Feasibility) 

105 (Including intertribal organizations as potential recipients of energy assistance) 

106 (Improving the land appraisal process) 

108 (Hydroelectric Permits Preference to include Tribes) 

109 (Including Tribes in Transmission Planning Studies) 

201 (Coordinating leases and right of ways) 

204 (Streamlining NEPA requirements during preliminary study phases) 

206 (Include Tribes in State Weatherization Plan Programs) 

207 (Home Weatherization) 

208 (Tribal Forest Protection) 

301 (Production Tax Credit transferability) 

302 (Extend Investment Tax Credits) 

303 (Extend Accelerated Depreciation) 

24 

304 (Extend Employment Credit) 

305 (Extend Grants for Energy in Lieu of Tax Credits) 

401 (Agricultural practices are added to sequestration; intertribal organizations 

added as potential recipients of energy assistance, adding weatherization to energy department priorities) 

Some additional suggestions we would like to provide include: 

A number of the directives and authorities described in the bill are for the Director of Office of Indian Energy Policy and Programs of the Department of Energy. 

This position remains vacant at this time. We strongly urge Congress to request 

that the President make the appointment to this important position as soon as possible. Currently funds designated for use in that office are being diverted to other 

offices within DOE pending the appointment. We would like you to consider an option that would allow tribal leadership to be more involved in this appointment, by 

requiring a timely process for tribal leaders to make nominations, and then requiring an appointment from the list of nominees within a reasonable time frame upon 

the change of any administration. 

Because many of our tribes have treaties that cover the ocean, and/or currently 

heavily depend on ocean health, we request that a provision be added to give Indian 

Tribes participation on any federally funded group that is studying or otherwise 

making recommendations related to the Outer Continental Shelf. In addition, to the 

extent that states have rights to share in royalties from energy development on the 

Outer Continental Shelf, coastal and ocean treaty tribes should also have the same 

right. 

We also support the amendments disseminated earlier this week by Vice-Chairman Barrasso, specifically those that would amend the Indian Land Consolidation 

Act to provide tribes with more flexibility and additional funding for consolidating 

fractionated lands. ATNI has previously expressed support for these and other initiatives, such as the Indian Trust Asset Demonstration Project in S. 1439 (as introduced in the 109th Congress), that would improve the federal government’s administration of the trust and encourage economic development. ATNI urges the Committee to continue to address these issues both in the discussion draft and in other 

contexts. 

Some of the Bill’s provisions that can be improved include: 

Section 102 authorizes various federal agencies to coordinate on Integrated Demonstration Projects. A provision authorizes the agencies to waive certain regulations 

in order to implement an approved plan. We believe that the authority to waive regulations would be strengthened in the event of a court challenge if criteria for a 

waiver were included in law. Potential criteria could include that a finding by the 

Secretary be made that the waiver would not likely significantly impair human 

health, cultural resources, or the environment, or that alternative measures were 

in place to address these issues. 

Section 203 directs the Director of Office of Indian Energy Policy and Programs 

of the Department of Energy to conduct not less than five distributed energy demonstration projects. These projects are excellent ways in which we can immediately 

and cost effectively improve energy use at the local level. This section would be improved by providing a time limit, or by requiring a certain number of such projects 

‘‘per year’’. 

We had strong recommendations for improving the use of federal funds for energy 

efficiency and conservation in Indian Country. Most energy conservation programs 

were designed with states and cities in mind, and could be improved for areas with 

substandard housing, and old and even dangerous government buildings such as 

many reservations. 

For example, we have found that ‘‘Weatherization’’ has too narrow of a definition 

when applied to funding sources. Because many buildings in Indian Country are 

substandard and even dangerous, ‘‘weatherizing’’ them does not make sense. For example, the bill prioritizes the use of ‘‘weatherization’’ funds for windows, doors, repair of floors walls, ceilings and secondarily for heating and cooling. These priorities 

ignore problems with building roofs, needed structural repairs, mobile home upgrades, water conservation measures, and many other conservation programs that 

would be very beneficial in substandard housing or buildings. 

We also recommend adding a provision that authorizes energy efficiency and conservation funds use for leveraging the replacement of existing substandard buildings 

where there would be overall cost and energy savings. On many reservations a large 

percentage of housing is mobile homes. Mobile homes built prior to 1976 were not 

subject to building standards and are therefore not energy efficient. We request that 

‘‘weatherization’’ programs be broadened to allow tribes the flexibility to assist their 

25 

community in the replacement of these older mobile homes with new energy efficient mobile homes. 

We support your efforts to improve energy development opportunities in Indian 

Country. We also support this Committee’s efforts to improve the federal government’s trust reform issues as they related to energy policy. We encourage you to 

consider energy related changes and clarifications to the Indian Land Consolidation 

Act by providing tribes with more flexibility and additional processes for working 

with fractionated lands and improving the flexibility for using income from these 

lands. 

We would be happy to answer any questions. 

Senator TESTER. I want to thank you for your testimony. 

Before we hear from you, Mr. Andersen, I want to kick it over 

to Senator Murkowski for a proper introduction. 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. I appreciate the 

opportunity to introduce to the Committee a gentleman, a friend 

from Alaska and a true leader within our State. Ralph Andersen 

is the CEO of Bristol Bay Native Association. He hails originally 

from Clark’s Point, which is outside of Dillingham. 

He is the Co-Chair of the Alaska Federation of Natives Human 

Resources Committee and has been a leader on so many issues. He 

has had an opportunity to appear before the Committee on numerous issues, but we look to him on guidance in so many areas as 

they relate to the health and well being of our Alaska Natives. 

So Ralph, it is good to have you before the Committee again. 

Mr. ANDERSEN. Thank you. 

Senator TESTER. Mr. Andersen? 

STATEMENT OF RALPH ANDERSEN, CEO, BRISTOL BAY 

NATIVE ASSOCIATION; CO–CHAIR, ALASKA FEDERATION OF 

NATIVES HUMAN RESOURCES COMMITTEE 

Mr. ANDERSEN. Thank you, Senator. 

Mr. Chairman, Members of the Committee, ladies and gentlemen, thank you for the invitation to provide testimony today. It is 

quite an honor for me to be here. 

As introduced, my name is Ralph Andersen. I am the CEO of the 

Bristol Bay Native Association and Co-Chair of AFN’s Human Resources Committee composed of the Chief Executives of the 12 regional nonprofit tribal consortiums in Alaska. 

I also serve as Chairman of AFN’s Energy Working Group and 

as Chairman of the Bristol Bay Partnership, our leadership group 

composed of the Chief Executives of the five regional organizations 

in Bristol Bay. 

BBNA is a nonprofit tribal consortium of 31 federally recognized 

tribes in Southwest Alaska. Our region covers about 40,000 square 

miles and is about the size of the State of Ohio. BBNA provides a 

wide range of social, economic, cultural and educational services to 

benefit the tribes and the native people of Bristol Bay. 

A common goal of all these organizations that I chair or I am involved with is to help find answers to lowering the high cost of energy in rural Alaska. Rural Alaska faces unique energy challenges 

that are hard for most to imagine. We pay the highest per capita 

for electric power and fuel in the United States. 

26 

The summer of 2008 was painful for us in rural Alaska. That is when the price of crude went to nearly $200 a barrel and the prices 

we pay for gas, diesel and heating fuel doubled or tripled. The high 

crude prices added millions to the State’s revenues, but emptied 

the bank accounts of us living in rural Alaska. 

In the summer of 2008, a study by the University of Alaska’s Institute of Social and Economic Research showed that rural Alaskans pay 41 percent of our monthly incomes on energy, while 

urban residents pay four percent. Last winter, our hearts went out 

to village people who have to choose between paying the heating 

or fuel bill or buying food for their families. 

During the past two years, we have seen more friends, more families, more neighbors move out of our villages and out of our regions because of the high cost of living. The high price of fuel is 

the biggest factor raising our cost of living, discouraging economic 

and business investments. It affects every part of our lives. 

Costs for groceries, fresh milk, a dozen eggs, airline tickets, 

toothpaste, medicine, baby diapers, clothes, lumber and building 

materials, car and truck parts, everything has gone up. Rural Alaskans are experiencing an energy crisis and we continue to feel its 

impacts. Despite the drop of crude price, we continue to pay high 

costs. Retail prices for heating fuel ranges from $2.88 a gallon to 

$10 a gallon. Retail prices for gasoline ranges from $2.96 to $10 a 

gallon. 

Delivering fuel to rural Alaska is complicated and expensive. 

There is no comparable delivery model anywhere else in the world. 

Fuel is transported thousands of miles from either Anchorage or 

Seattle. Delivery windows are narrow and often complicated by inclement weather or inhospitable conditions such as low water levels 

needed for barges to reach tribal communities along rivers and deltas. Fuel delivery arrangements are often made several months in 

advance, requiring significant financial commitments and the inability to participate in the market fluctuations fully and to appreciate low prices when they are available. 

One way to reduce these costs for economic development is to develop our power resources locally, become more energy efficient, 

and practice conservation. We are strong supporters of the development of alternative energy sources and many rural Alaskan communities are actively working toward that goal. 

I offer the following comments and recommendations on sections 

of the discussion draft now before you. The draft has been available 

to us for only a short time and I respectfully request the Committee to give us some additional time for comments and suggestions. 

My remarks are today focused on sections in Title I and Title II. 

Title I, we are encouraged by the provisions in the section, but 

believe it can be improved and strengthened by requiring tribes to 

be consulted in the appointment of directors to head the Indian Energy Development Offices. This section should also include provisions for tribes or tribal consortia to provide IEDO services under 

self-determination compact or contract agreements. 

Our experiences with existing DOI or BIA Indian energy programs have not been as beneficial as we would like. We are not 

sure how the energy funds are appropriated, how they are being 

27 

spent, because we don’t see any solicitations or notices in the Federal Register. 

We are encouraged by the language in this section supporting 

tribal energy resource development organizations. BBNA and other 

tribal consortia in Alaska have established tribal energy programs, 

but we lack funding to get them into full operation or to fully develop their potential. The scope of our program is limited by the 

amount of BIA compact funding and funding my Administration is 

able to dedicate every year. 

Soon after this Committee’s energy oversight hearing in Bethel 

two years ago, led by Senator Murkowski, we sent a funding proposal at least twice to BIA, the Department of Interior’s Tribal Energy Program. We finally received a response about a month ago 

that was not very encouraging. 

Funding to establish and maintain tribal energy programs should 

be provided for in this section, establishing three to five-year power 

projects will help to improve their effectiveness. 

Title II, Section 203, we have offered in the past to be part of 

a national demonstration project to help reduce energy costs. We 

are encouraged by language in Title II, Section 203 calling for at 

least five distributed energy demonstration projects for Indian 

tribes and Alaska Natives. We suggest the number of demonstrations should be at least doubled to 10, with a specific dollar amount 

of funds allocated over the pilot project years based upon accomplishment of certain milestones, and the funds be distributed 

through Public Law 93–638 contract agreements. 

Rural Alaska is comprised of small, isolated transmission grids 

within each community. Many of our villages are not connected to 

each other or to a larger energy grid where economies of scale 

could keep prices down. There are a few communities closely situated that are connected by an electric intertie and others close 

enough together where interties would be a natural. 

I don’t want to take up a lot of time. I want to encourage that 

pilot demonstration projects under this section be provided for. 

Under Title II, Section 206, there are no programs funded that 

support tribal energy efficiency and conservation efforts. The Energy Efficiency and Conservation Block Grants established by the 

Energy Independence and Security Act of 2007 wasn’t funded until 

ARRA, the American Recovery and Reinvestment Act of 2009. This 

block grant calls for direct funding to local, State and tribal governments to develop and implement projects to improve energy efficiency, reduce energy use and fossil fuel emissions. 

Regardless of the future prospects of funding for EECBG, we 

support the inclusion of a five percent tribal setaside of the State 

Energy Conservation Plan Program, a more established funding opportunity within the Department of Energy. 

Title II, Section 207, the Department of Energy’s Home Weatherization Program is minimally funded compared to the vast need in 

our Nation and in our region. Alaska is fortunate that DOE funds 

have historically been used by the five recognized contractors for 

the State for housing in our villages. In addition, the Alaska Legislature has funded a program mirrored on the Federal program, 

with funds allocated to the five recognized contractors receiving 

28 

DOE funds, but also to 14 Native Tribal Housing Authorities in our 

State. 

Even with these new resources reaching our tribes, the need far 

exceeds available resources. In Bristol Bay, approximately 1,300 of 

2,500 homes in the region are classified as low income according 

to the income guidelines. The need for weatherization on low income homes exceeds $50 million. Of the 1,300 homes that are classified as low income, with a mix of State and Federal funding, we 

are able to weatherize 100 homes per year. If we relied strictly on 

Federal funds, we would be able to weatherize only 20 homes per 

year. 

Current available resources will fund 10 percent of the $50 million needed, leaving a 90 percent gap. It is this gap that must be 

filled. 

That concludes my formal testimony. Again, I request that we be 

allowed additional time to submit comments and recommendations. 

I will be happy to answer any questions. Thank you. 

[The prepared statement of Mr. Andersen follows:] 

29 

PREPARED STATEMENT OF RALPH ANDERSEN, CEO, BRISTOL BAY NATIVE

ASSOCIATION; CO-CHAIR, ALASKA FEDERATION OF NATIVES HUMAN RESOURCES

COMMITTEE


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Attachments have been retained in Committee files. 

Current Community Conditions: Fuel Prices Across Alaska—January 2010 Update. 

Bristol Bay Energy Policy and Energy Crisis Recovery Plan: Phase 1 and 2. 

These attachments can be found at: 

www.commerce.state.ak.us/dca/pub/FuellReportlJanl2010lfinal.pdf 

www.bbna.com/Energy/3lImplementationStrategiesl5-6-08.pdf 

www.bbna.com/BBEPECRPlApr15lgglRAl5-7-08.pdf 

STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. [Presiding]. Mr. Andersen, thank you very much. 

Let me before I call on the last witness apologize to my colleagues and to the witnesses for my absence. I was involved in the 

debate on the Floor of the Senate and I was determined to get the 

last word and it took me some while. 

[Laughter.] 

The CHAIRMAN. So thanks to Senator Tester and thanks to my 

colleagues, and I will recognize them first for questions when our 

next witness completes. 

The next witness is Peter Stricker, Vice President of Strategic 

Asset Development at Clipper Windpower, Inc., at Carpinteria, 

California. 


422b7.eps
36 

Mr. Stricker? 

Mr. STRICKER. Yes, thank you. 

The CHAIRMAN. Thank you very much. You may proceed. 

STATEMENT OF PETER STRICKER, VICE PRESIDENT, 

STRATEGIC ASSET DEVELOPMENT, CLIPPER WINDPOWER, 

INC. 

Mr. STRICKER. Clipper Windpower and I would like to share with 

you, Senator Dorgan and the entire Committee, our appreciation 

and support for this Committee’s commitment to explore new ways 

to meet the challenges of tribal clean energy and infrastructure development. 

The discussion draft of the Indian Energy Promotion and Parity 

Act is an encouraging step forward in addressing the challenges 

and opportunities to finally create a sensible development environment for the vast amounts of world class renewable energy that is 

located in Indian Country. 

We are encouraged by this Committee’s recognition that 

unlocking the renewable energy potential on tribal lands is a key 

to meeting this Country’s goals of energy independence and reducing carbon emissions. Today, we are pleased to share with the 

Committee our perspective as a U.S. wind development and turbine 

manufacturing company that is partnered with and are in mature 

stage discussions with numerous Indian tribes. 

First, I would like to introduce you to Clipper Windpower. Clipper began as a startup company in 2000, and now is the developer 

of an 8,500 megawatt project portfolio and manufacturer of one of 

the premier utility scale wind turbines in the U.S. Well-placed 

DOE funding was key to creating our turbine technology company, 

which now directly employs over 700 people and several times that 

indirectly in our supply chain. 

We contend that similarly placed Federal incentives can fundamentally help bring renewable energy development on tribal 

lands into the windpower market. 

Now, to the question of existing tribal wind projects. We, no 

doubt like many others in this room, at some point have asked ourselves: Why is there now only one commercial wind project in Indian Country? It is an interesting question. Without getting into 

great detail, I would like to list the key issues as we see them. 

One, project development costs. Given lack of existing infrastructure on remote reservation lands and higher project return requirements associated with higher development risk, elevated costs are 

inevitable. 

Two, regional siting competition. Additional permitting and approvals are required on tribal land unless certainty as to the associated process make tribal projects less desirable to develop than 

adjacent non-tribal projects. 

Three, transmission access and infrastructure. Access to transmission is a substantial benefit for many tribal projects primarily 

due to the scarcity of infrastructure and lack of available capacity 

on existing lines. 

Four, unworkable financial incentives for tribes as project participants. Tribes have a keen interest in participating in project 

37 

ownership, but are fundamentally handicapped by their inability to 

use tax-based incentives. 

From Clipper’s perspective, despite our commitment to tribal 

projects, those projects must be weighed against others in our portfolio as we wrestle with risk and budget considerations. 

Okay, so now let’s talk about incentives, specific tribal incentives. 

As an established member of the U.S. wind industry, we recognize 

that tribal projects are disadvantaged and that the provisions in 

this Act will move them in the direction of being more competitive. 

In our mind, that is a reasonable direction to take for tribal 

projects. 

We also recognize that in addition to the broad benefit of producing clean, renewable energy for the U.S., the benefits to tribes 

are significant: sustainable and diversified tribal economies, infrastructure development and professional training of tribal members, 

to name a few. 

Tailored financial incentives. This proposed legislation would encourage private and tribal ownership of projects with very limited 

impact on taxpayers. These targeted financial incentives will help 

make tribal projects competitive, and importantly, would only be 

granted to viable, successfully completed projects. 

Transmission planning and incentives. As currently contemplated, the proposal for a large scale transmission study in Indian Country is a positive step. But actually enhancing access and 

building transmission infrastructure is what is needed to make 

tribal projects go forward. For example, we are well aware of limitations to move power out of the Dakotas, which is home to many 

of the windiest tribal lands in the U.S. Studies are plentiful, but 

very little transmission has been built. 

Now, I would like to mention the importance of a national renewable energy standard. Finally, when considering tribal incentives, 

it is important to note that the bottom line for all renewable energy 

projects is the electric power markets. Projects are driven by their 

ability to sell power, and renewable energy standards drive markets. 

To get meaningfully beyond wind energy’s current installed capacity of two percent of the U.S. power market, the piecemeal approach of State renewable standards must be stepped up to a Federal level with a national renewable energy standard. I cannot emphasize enough the importance of a renewable standard to the success of tribal and non-tribal projects to capture this clean, inexhaustible energy resource for the long-term benefit of the Country. 

Without a capital commitment to projects and transmission, infrastructure will be severely constrained and our industry will 

never realize its potential. All other incentives, including those proposed for tribes, will be less effective if not in concert with a national renewable standard. 

In closing, I would like to mention the interesting twist of fate 

that has placed reservation lands in some of the sunniest and 

windiest areas of the Nation. In addition, critical transmission corridor siting has often occurred on tribal lands. These two factors 

now present unparalleled opportunities to tribes and their partners 

to finally develop these world class wind and solar resources on a 

38 

scale which can fundamentally shift how we generate electric 

power in the U.S. 

We thank the Committee for asking us to share our perspective 

with you today, and look forward to the final Indian Energy Promotion and Parity Act. 

Thank you. 

[The prepared statement of Mr. Stricker follows:] 

PREPARED STATEMENT OF PETER STRICKER, VICE PRESIDENT, STRATEGIC ASSET

DEVELOPMENT, CLIPPER WINDPOWER, INC. 

Introduction 

Clipper Windpower and I would like to share with you, Senator Dorgan, and the 

entire Committee, our appreciation and our support for this Committee’s commitment to explore new ways to meet the challenges of Tribal clean energy and infrastructure development. 

The discussion draft of the Indian Energy Promotion and Parity Act is an encouraging step forward in addressing the challenges and opportunities to, finally, create 

a sensible development environment of the vast amounts of world class renewable 

energy that is located in Indian Country. We are encouraged by this Committee’s 

recognition that unlocking the renewable energy potential on tribal lands is a key 

to meeting this Country’s goals of energy independence and reducing carbon emissions. 

Today we are pleased to share with the Committee our perspective as a U.S. wind 

development and turbine manufacturing company that has partnered with and are 

in mature stage discussions with numerous Indian Tribes. We are excited at the opportunities that lie ahead, but will share with you today the particular vantage 

point that we have regarding some of the complex obstacles facing the future of Indian Country and prospects for any significant clean energy development into the 

future. 

Clipper Windpower 

Clipper Windpower Development Company, Inc. manages over 8,500 MW of wind 

resource development assets, and provides a full range of wind energy project development capabilities focused on the sale of these projects and the deployment of Clipper wind turbines. 

Clipper Windpower has its origins as a start-up company in 2000 which received 

critical Department of Energy funding in its early years to develop what is now one 

of the premier utility-scale turbines in the United States. We employ over 700 people today and are proud that this initial federal incentive allowed Clipper to realize 

its potential as a U.S. company and to now advance our wind turbine technology 

in the world market. 

We share this particular company background today to illustrate the power of 

well-placed Federal investments and incentives in clean energy. We contend that 

similar combinations of incentives and Federal leadership can make a significant 

difference for Indian Tribes seeking a more balanced and competitive position with 

non-tribal projects, in the form of Federal streamlining initiatives as well as appropriate incentives for renewable and infrastructure investments in Indian Country. 

The Challenge of Developing Tribal Resources: Why Is There Now Only One 

Commercial Wind Project on Tribal Lands? 

We, no doubt like many in this room, prior to entering into negotiations with several Indian Tribes on commercial wind projects, asked ourselves initially why there 

is now only one commercial wind project in Indian Country? What are the reasons 

for this lack of progress when, clearly, there is plentiful world class wind resource 

in Indian Country? 

Although Clipper Windpower has made and is making commitments with tribes, 

we remain concerned about key development challenges–which I will note–are often 

further hampered by the larger market and infrastructure challenges we as industry 

face on a broader level. That being said, the fundamental obstacles have been and 

largely remain: 

1. Project Development Costs. Reservation sites are often further from grid and 

markets, placing an upfront cost burden on the project in areas and often in 

incumbent utility markets that have low-cost federal hydro and/or coal-fired 

power supply. Keeping this in mind, the added risk of regulatory uncertainty, 

39 

creates an inverse need for higher rates of return to compensate for probable 

regulatory delays. 

2. Regional Siting Competition. Frankly, many Tribes are competing with surrounding private property, as well as state and federal lands, all of which have 

clarified and streamlined and eased leasing and permitting processes. As a developer and partner, it is far from clear what the processes are to lease and permit tribal trust and allotted lands. There is a lack of established protocols or 

even a pro forma renewable and transmission leasing and permitting process 

for tribal lands, making it more attractive to invest precious capital on lands 

and jurisdictions which can provide both a clear path and level of regulatory 

certainty so we as developers can stick to development schedules. 

3. Transmission Access and Infrastructure. A critical component that is substantively missing in this discussion draft bill is any incentives or initiatives related to transmission. We cannot realistically talk about generation development without discussing transmission development. 

4. Unworkable Financial Incentives for Tribes as Project Participants. We have 

seen in negotiations that Tribes have a strong interest in ownership participation in wind projects but realize that the opportunity to do so is constrained by 

their inability to utilize tax-based incentives for wind For instance, we have had 

prolonged discussions with Tribes in the Dakotas as we have struggled together 

to identify ways in which the Tribe could access equity or other capital, or structure partnerships, to participate more actively in the development and ownership of the projects. In the meanwhile, investments and project development 

moves forward around them. 

Certainly there are other hurdles to be overcome, but I will leave it to other witnesses today to cover some of those. So let us circle back again to the initial question and maybe we simply conclude that the fact that there is only one commercial 

wind project in operation, speaks for itself. Clearly something needs to be done to 

confront the embedded challenges of developing on tribal land if there is going to 

be any progress towards accessing the vast wind resources that exist there. 

Speaking from our experience, and although Clipper has made development commitments in Indian Country, none of our prospective tribal projects have yet 

reached the full leasing and permitting stage. In making those commitments, we are 

looking to advance these projects but are already faced with lack of clarity in the 

leasing and permitting process, constrained transmission access and lack of certainty on how tribal ownership may be structured—all of which is, frankly, slowing 

us down. In the project development business, time is money, and those projects 

which have built-in delays will be far less competitive. In reviewing the projects in 

our development portfolio, those on tribal lands must be weighed against others as 

we assess risk and budget constraints. 

The Need for Tribal Renewable Energy and Transmission Incentives 

Specific Tribal Incentives Needed to Overcome Challenges of Developing Projects 

on Reservations. We need tailored and specific incentives because it is a fact that 

tribal reservation lands are unique and pose unique challenges and opportunities. 

As a member of the wind industry, we recognize that tribal projects are disadvantaged coming out of the starting gate so that special consideration and support is 

needed to make them viable. Unlocking tribal wind resources will provide the U.S. 

a substantial source of renewable energy which will not only reinforce our energy 

security but will also help to keep that energy competitively priced for consumers. 

And the benefits to tribes are significant: sustainable and diversified tribal economies, infrastructure development and professional training for tribal members. 

Tailored Financial Incentives. And this proposed legislation, as it is currently contemplated, would encourage private and tribal ownership of projects with very limited impact on tax payers. It includes some of the most significant elements to 

achieving financeable projects on tribal lands: loan guarantees, assignability of tax 

credits, grants-in-lieu-of-tax-credits, extension of the tribal accelerated depreciation 

and employment tax credit provisions. Targeted financial incentives, like these that 

are proposed, will help make tribal based projects competitive with non-tribal 

projects and allow them to be financed, and importantly would only be granted to 

successful projects. 

Transmission Planning and Incentives. As you are probably well aware transmission is critically needed to support the expansion of U.S. wind energy. As currently contemplated, the proposal for a large-scale transmission study in Indian 

Country is a positive step forward. But this is one of the biggest conundrums facing 

tribal renewable development: transmission—access to it and expansions of it in Indian Country. From a tribal perspective, although a sizeable federal hydropower and 

40 

transmission footprint runs through Indian Country, ironically, tribal renewable 

projects experience great difficulty in securing access to the transmission infrastructure on their lands. Clipper Windpower is deeply involved in transmission issues 

across the U.S. and has particular experience with transmission development from 

the Upper Midwest to Eastern load centers. We have observed the opportunity for 

tribes in the Dakotas to interconnect with the Western Area Power Administration, 

but are also keenly aware to the need to deliver beyond WAPA’s system to urban 

load. Like most non-tribal wind development across the country, expansion of transmission is a key element of tribal wind development. 

The opportunity for renewable energy based transmission expansion is that it can 

benefit tribal and non-tribal projects alike. Transmission is a collaborative process 

requiring multiple stakeholders to complete. Utilities, private developers, state regulators, the Federal Government—and in some cases tribes—must all jump into the 

ring and push for transmission expansion. In the case of tribal projects, more Federal leadership will be required to overcome the inherent challenges transmission 

projects, including encouragement of public-private partnerships or tailored financial incentives for siting transmission on tribal lands or providing for a more 

streamlined interconnection process for tribal projects. 

Secondary benefits of these efforts to expand renewable energy transmission/collection systems would be creating a sustainable infrastructure as well as bringing 

electricity to areas of reservations presently not connected with the grid. The Tribes, 

the states, the regions and the country will benefit from a more secure and robust 

transmission infrastructure. 

Setting the Stage for Tribal Renewable Energy Success: The Importance of 

a National Renewable Energy Standard (‘‘RES’’) and Consistent Energy 

Policy 

Again, it is critical to place this historic tribal opportunity in context of the power 

markets in which they will operate and the viability of those markets. It is a fact, 

with a few exceptions, that renewable projects are currently being built at rates that 

track requirements of state renewable energy standards, the current underlying 

driver for all renewable energy development in U.S. This piecemeal state-by-state 

approach so far has resulted in barely 2 percent of national electricity demand being 

met by wind energy—for renewable energy to make any sort of meaningful dent in 

the U.S. energy portfolio, a Federal Renewable Energy Standard, or ‘‘RES’’ will be 

needed. 

All other incentives less effective if not in concert with a national RES—above all, 

we must have a market to buy renewable energy. Consistent and long-term energy 

policy will not just help tribal projects, it will create a stable foundation for the renewable energy industry as a whole. We have already experienced the development 

lags when disrupted tax credit extensions have made it more difficult to attract investment for longer lead-time projects, especially hurting tribal projects. 

As energy legislation moves this month and next, these tribal provisions, which 

are wholly congruent, are important piece of the puzzle and needs to be included 

in whatever legislation that moves forward. Clarifying and streamlining tribal-federal processes as well as leveling the playing field for Tribes are critical tools to be 

used in concert to help tribal projects play catch up. However, after these tribalspecific incentives and provisions are put into place, what would tip the scale would 

be the creation of stable marketplaces through a national RES. 

An interesting twist of fate has placed reservation lands in some of the sunniest 

and windiest areas in the nation. In addition, critical transmission corridor siting 

has often occurred on tribal lands. These two factors now present unparalleled opportunities to Tribes and their partners to finally develop world class wind and solar 

resources not just for the benefit of tribal communities but for the country. 

We thank the Committee for asking us to share our perspective with you today 

and look forward to the final Indian Energy Promotion and Parity Act. 

Peter Stricker, Vice President—Strategic Asset Development 

Peter Stricker has been with Clipper since its beginning and initially joined Clipper as Director of Project Engineering in August 2000. After serving within a number of senior positions at Clipper, including leading project development, in September 2008, he was named Vice President, Strategic Asset Development. An engineer by training, Mr. Stricker came to Clipper from Enron Wind Corp. where he 

served as Manager of Service Engineering. At Enron, he and his team of engineers 

and data analysts provided comprehensive technical support and warranty failure 

analysis for a fleet of 763 wind turbines installed worldwide. In early 2001, Mr. 

Stricker led the development of CWD’s project portfolio to upwards of 6,500 MW disVerDate Nov 24 2008 10:03 Oct 21, 2010 Jkt 061550 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 S:\DOCS\61550.TXT JACK PsN: JACKF
41 

tributed across the U.S. and in Latin America, and directed commercial engagement 

and delivery of transactions involving over 2,500 MW of project assets. 

In addition to cultivating a team skilled in the acquisition and development of finance-ready project assets, Mr. Stricker formalized origination and transaction functions to support full market entry and transactional capability within CWD. Mr. 

Stricker earned his Bachelors and Masters in Mechanical Engineering degrees from 

the University of Washington in Seattle, where he specialized in control system engineering. 

The CHAIRMAN. Mr. Stricker, thank you very much for that perspective. We appreciate that. 

Let me call on my colleague, Vice Chairman Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Chairman Box, if I could visit with you. You are down in that 

kind of four corners area, Southwestern Colorado, and you have 

had phenomenal success, in my opinion, in the things that you 

have been able to accomplish. You have achieved incredible success 

in developing oil resources, gas resources, and by and large, I think 

you have done it through your own efforts, rather than reliance on 

the Bureau of Indian Affairs. 

And I am wondering if you could share with the Committee, tell 

your story, if you would, about how your tribe really assumed 

greater control over energy development on the reservation. When 

did that happen? What steps did you take? Because this really is 

incredible success. 

Mr. BOX. In the 1970s, our leaders, as I spoke earlier in the testimony, basically because of the chipping away of sovereignty or the 

way the Bureau of Indian Affairs was handling the leases, recognized that they could develop the core capacities to do, if not a better job, with more care for the membership and control their own 

destiny with those resources. 

So they did, with a small amount of finances at that time, invest 

in gathering those leases together and managing those leases. 

Through those leases, they were able to get into the gathering not 

only the development of the resource of natural gas, but the gathering and the treatment of it through Red Cedar Gathering Plant. 

And then from there, we were able to take off. 

There are probably some very key component things to recognize 

in that. The way our tribal government was structured, the Tribal 

Council was able to take those steps, recognizing that for a period 

of time the membership were unable to receive some of those benefits that normally would have been available, although they were 

very minor at that time. They took a sacrifice as a whole, as a 

membership, in going into that direction. 

So it was quite difficult, and I applaud the efforts of those tribal 

leaders at that time that were able to take that direction, knowing 

that in the future better planning through financial planning, what 

we call the financial plan, which developed the growth fund, the 

permanent fund in these entities in which we were able to secure 

a protected government from liability, so to speak, and allow for 

those entities under their own management to make those decisions and move forward. 

And so it is quite complex in regards to how the structure was 

developed and then where it took off from there. 

Senator BARRASSO. If I could ask, I know you have been a strong 

supporter of Title V of the Energy Policy Act of 2005, including the 

42 

provisions related to the Tribal Energy Resource Agreements. But 

as you explain, some of the provisions in Title V and the implementing regulations have discouraged your tribe from entering into 

that. I have had some provisions that I have been drafting and 

working on to try to improve it. 

Do you have some additional ideas, things we ought to be considering when we are preparing amendments for Title V? 

Mr. BOX. I believe what is put forth initially in the beginning did 

have concerns of many tribes in regards to the definition of the inherent Federal trust responsibility. I think that some of the things 

that have been provided in this discussion draft meet those expectations for our tribe, at the least, in regards to those directions. 

But also, more importantly, is the ability for tribes to build that 

core capacity. As you know, in the 2005 title, Title V, there were 

monies for that. And so that was another key component in regards 

to those TERA regulations. 

So I believe that we are very supportive of the work that has 

been done on it to date. 

Senator BARRASSO. Thank you. 

Mr. Marchand, if I could please, it is my understanding your organization supports efforts, including the provisions in some of the 

things that I have been working on, to address the problem of fractionation. So having had an opportunity to review some of this, can 

you talk a little bit about what your thoughts are when we are preparing amendments to the Indian Land Consolidation Act? 

Mr. MARCHAND. I would just say in general, realty and land is 

always the first stumbling block involved in any development. Our 

Bureau of Indian Affairs people, many of them are tribal members 

and I think they do their best, but they are just really understaffed 

and the systems are really not working really well. And the tribe 

is usually able to get its bigger projects through, but it is almost 

impossible for the small business sector to get through the system. 

Fractionation is just a very difficult problem to deal with, and I 

hope we can solve it. 

Senator BARRASSO. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Tester? 

Senator TESTER. Yes, thank you, Mr. Chairman. 

I want to touch a little bit on the Tribal Energy Resource Agreements. I will start with you, Joe. 

The information I have in front of me says that in the four and 

a half years since the Energy Policy Act of 2005 was adopted, and 

these Tribal Energy Resource Agreements were a part of that, that 

no tribe has applied for TERA. Does that mean no tribe has filled 

out the application and the application has not been approved? Or 

does that mean that no tribe has applied for TERA? And could you 

shed some light on why that is the case and what can be done to 

fix it? 

Mr. GARCIA. Senator Tester, I believe part of the issues stem 

from an understanding of what the entire process is for applying 

for any grant or any program or any funding. Sometimes the tribes 

are under the impression than unless a project is ready to go, it 

is hard to apply for anything. 

43 

That is part of the problem, but I think part of the other issues 

have to stem from the bureaucracy that the tribes face. And it is 

a matter of, I call it ‘‘historical trauma.’’ They have been accustomed to dealing with any funding, and the red tape that we had 

to deal with in going forward. 

So that may be part of the issue, but as far as I know, New Mexico tribes have not applied for any of that. 

Senator TESTER. Okay. 

Chairman Box, do you see it the same way? 

Mr. BOX. I would like to add on that, too, in regards to my statement with the TERA regulations. But there was also the formula, 

I guess, that would be for secretarial use to determine what core 

capacity really is and what that capacity is. And so I believe what 

has been developed in regards to proven track records of land management certainly provide more incentive for tribes to take on that 

direction. 

Senator TESTER. Okay. 

Mr. Stricker, I want to talk to you a little bit. You had talked 

about incentives and some that work, some that don’t work very 

well. But in the end of your presentation, you talked about the RPS 

and the need for an RPS. 

Just to boil it right down to its basics, if we don’t set an RPS 

up, are we wasting our time with the incentives? 

Mr. STRICKER. I would say not. I think the incentives are important elements of moving tribal projects forward and making them 

more competitive with non-tribal projects. But I think that the big 

picture is that the industry as a whole is certainly confronted with 

what seems to be a strong desire for this type of energy to be produced. But there is a declining electricity market, and so the RPS 

is needed in order to continue the replacement of fossil-burning 

generation with wind. 

So the problem the tribes are facing, just like the rest of us who 

are developing non-tribal projects, is that there is a large market 

that we all are selling into and the stronger the market, the more 

chance there is for success. 

Senator TESTER. Okay. And you are working with the tribes in, 

well, just tell me. Which tribes are you working with to set up 

some wind development? 

Mr. STRICKER. We are working with Colville. We have a study 

going on with Colville. We are negotiating an MOU with another 

tribe who I won’t mention at this point. 

Senator TESTER. That is fine. 

Are these the first tribes you have been in contact with to develop wind? 

Mr. STRICKER. No. We have actually spent considerable time 

working with tribes along the Missouri River in the Dakotas. We 

haven’t signed agreements with them, but we have worked a long 

way down the path towards understanding their issues and they 

understand ours better as well. 

Senator TESTER. If this bill was passed, would it expedite your 

ability to sign agreements to get your projects going? 

Mr. STRICKER. Yes, it would. Absolutely, yes. 

Senator TESTER. Okay. Last question. I will make it real quick, 

and there are some other ones. 

44 

But Ralph, you talked about weatherization. You said if it was 

Federal dollars, it would only be 20 houses, and with the State dollars combined with the Federal, you can do 100. Can you tell me 

why the money isn’t flowing to the ground for weatherization? 

Mr. ANDERSEN. Well, the money is flowing, I guess was my point. 

Senator TESTER. Well, 20 is not many. 

Mr. ANDERSEN. Well, that is strictly with Federal funds, but we 

are able to use a mix of State and Federal. And I think a lot of 

it has to do, Mr. Tester, with a number of things. One is income 

guidelines, because the cost of living is so high in Alaska that 

many households that are actually barely making it, that the 

household income would disqualify them from participating in the 

program. 

I had a long discussion with the CEO for our Housing Authority 

before coming down here, and I asked him that question as well. 

There are a whole mix of problems that are involved in trying to 

increase the amount or use of Federal funds in Alaska. The number one, or probably one of the top issues that is involved is basically the income guidelines that might work in America, but don’t 

work in Alaska. 

Senator TESTER. Got you. Okay. Thank you very much. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Mr. Andersen, I will go ahead and follow on to Senator Tester’s 

comments because I think your testimony was very important to 

put into the record today. 

I think it is difficult for people who have not been out to some 

of our villages, been out to rural Alaska and had an opportunity 

to appreciate the difficulties that are faced with just the day to day 

living and the expenses that are associated with being in a very remote area that is not accessible by road. 

So much of what you receive out in your area in Bristol Bay 

comes to you by barge or it is flown in. People say, well, you have 

barges coming up and down your river all the time. Well, we don’t. 

We have two barges that come in. Sometimes you only have one 

barge a year. And to any one of you sitting out there, I challenge 

you, plan your whole business for a year, your whole family food 

sources for a year. You are the village store. You have to think 

about what your community is going to need because you have one 

barge. 

Hopefully, in the bigger communities, you are going to have access to two barges coming in a year. And otherwise, you are stuck 

flying in your fuel, which happens in too many of our villages because they misjudged. They are not able to pay for the fuel up front 

as is required. 

When I have an opportunity to bring folks from the Lower 48 up 

and go out into the villages, we look at the water and sewer. We 

go into the schools, but we also go to the grocery store. We look 

at the price of a box of clothes detergent, Tide, and then you realize 

that you are paying close to $45 for a box of Tide. Go and price 

the diapers. Go and price milk, if you can find milk. In most of the 

villages, the smaller villages, you won’t have fresh milk. 

45 

It is a fact of what we deal with, and your testimony this morning was very important in trying to convey some of the challenges 

that you face. People cannot understand how you could live in an 

area where 40 percent to 45 percent of your income is spent on 

meeting your basic energy needs, when in the rest of the Country 

you may be looking to, you say, four percent. In some parts, it may 

be as high as six, seven, eight percent. But we are talking close to 

50 percent of your income. So it is very important that you place 

that into the record. 

I wanted to ask you a question about the access to transmission 

and recognizing that we can do more with our energy efficiencies 

if we have the ability to intertie, to hook in with others. In some 

parts of the State, it is very difficult because of the geography, because of the distances that we deal with. 

We are looking to some opportunities to tie in. I know up in the 

Naknek area we are hopeful that we are going to do better with 

the geothermal resource and then be able to tie in as many as 11 

villages to rely on that. 

From a Federal perspective, and I appreciate your role within 

AFN and your position as leadership on the Energy Committee 

there, what more can we be doing at the Federal level in 

partnering with the State to enhance and build out not only some 

of our renewable energy projects, but how we deal with the transmission side of it? 

Mr. ANDERSEN. Thank you, Senator. 

There are a number of ways that assistance can be provided. 

First, I want to explain to the Committee and to the people listening here that I grew up in a small village. The population is now 

20. When I was a child, the population was 125 people, Clark’s 

Point. I grew up without running water. I grew up without electricity. I grew up in very what are considered now primitive conditions. That was a way of life. And in some cases the way in some 

of our villages throughout rural Alaska, those conditions still exist. 

How can we help or how can our Federal Government help to 

deal with transmission issues? Well, one of the things that the 

Bristol Bay Partnership did is we developed the Bristol Bay Energy 

Policy and Crisis Recovery Plan. We did this a year before a year 

before the big crunch hit us. We saw what was coming down the 

pike and the partners, my counterparts in the organizations agreed 

that the most we could do, the best we could do now at this point 

is figure out a way or try to find ways to deal with the most immediate problems, the most immediate problem being the price of 

electricity. 

Our energy policy and plan focuses on developing interties. Like 

I mentioned in my testimony, there are some communities that are 

very closely situated where interties are a real natural. There are 

some where interties are now in place, such as Newhalen and 

Iliamna. There is an intertie at Naknek, South Naknek, and King 

Salmon. They are all intertied there. 

There is more than one issue involved here, Senator, because 

there is a definite connection between certain activities. And a lot 

of our communities, my hometown of Clark’s Point of 20 people, we 

don’t have the capacity there to develop proposals to pursue fundVerDate Nov 24 2008 10:03 Oct 21, 2010 Jkt 061550 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 S:\DOCS\61550.TXT JACK PsN: JACKF
46 

ing agreements, to develop complicated and technical programs and 

plans and things like that. 

One of the ways that we can use help on is really funding our 

Tribal Energy Programs, because each of the regions in Alaska, 

each of the rural areas in Alaska, this same need exists, except we 

don’t have the capital or funding to cover costs for capacity-building, for plan development to pursue grants. 

The transmission issue, again we lay out a number of scenarios 

in our recommendations in the Bristol Bay Energy Policy and Plan, 

but we don’t have the capital to develop any of them, to put them 

in place. 

In addition to that, there are multiple utility owners. I will give 

you an example. In Dillingham, we have a local resident who went 

and purchased wind generators for his own home. The problem is 

that the utility company was very reluctant to do any net metering 

so that he would be able to sell back the excess power so that he 

can lower his electric rates. 

The same kind of issue is mirrored on a much larger scale up at 

Nome, the Bering Straits region, where the Bering Straits Regional 

Corporation installed an array of wind generators and spent a lot 

of time negotiating the net metering with Nome utilities. 

So while there are some ways, again, that I believe we can use 

a lot of help on, but then the issues become more and more complicated as we try to develop some of those areas. 

Senator MURKOWSKI. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Udall? 

STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Chairman Dorgan. 

And I first just want to thank you and your staff for all the hard 

work you have put into the Indian Energy Promotion and Parity 

Act of 2010. I think it is a very important piece of legislation. 

And once again, and I know you serve on the Energy Committee 

also in the Senate. In order to put ourselves as a Country on a 

path to energy independence, it is very important to get the tribes 

to play a role in that. 

And I would like to just put my opening statement in the record 

and proceed directly to questions. 

The CHAIRMAN. Without objection. 

Senator UDALL. Thank you. 

[The prepared statement of Senator Udall follows:] 

PREPARED STATEMENT OF HON. TOM UDALL, U.S. SENATOR FROM NEW MEXICO

I first would like to thank Chairman Dorgan and his staff for the hard work they 

have put into the Indian Energy Promotion and Parity Act of 2010, and for holding 

today’s hearing on this important piece of legislation. There has been an impressive 

amount of outreach to tribes on this piece of legislation—including hearings, letters, 

and roundtable discussions on draft legislation. 

I would also like to thank all of the witnesses for joining us today, especially my 

good friend Joe Garcia from Ohkay Owingeh Pueblo in New Mexico. Joe is president 

of the All Indian Pueblo Council, and former president of the National Congress of 

American Indians. He has done much to benefit native communities across the country, and I applaud his work to promote energy development on tribal lands. 

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Approximately 5 percent of the nation’s land base is tribal land that contains approximately 10 percent of the nation’s energy resources. Development of these resources means jobs for native communities, electricity in rural areas, the national 

security that comes with domestic production, and a great potential for development 

and expansion into the renewable energy sector. 

Native American Communities have long been hindered in energy development efforts by bureaucratic delays and complications, difficulty securing financing and tax 

credits, and a lack of access to the grid. Chairman Dorgan’s bill that under consideration today addresses these longstanding problems. 

In these times of economic difficulty and international turmoil, it is more important than ever to remove the longstanding roadblocks to energy development on 

tribal lands. I look forward to hearing testimony today and to working with my colleagues on this Committee to push this bill forward through the legislative process. 

Senator UDALL. A question for my good friend Joe Garcia from 

New Mexico, from the Ohkay-Owingeh Pueblo. I don’t quite know 

what to call him. He has been President of the NCAI. He has been 

Chairman. He has extensive experience and he has done such a 

good job of working with native communities across the Country, 

and I applaud his work in promoting energy development. 

Everybody should also know he is a lead singer in a band. That 

is one of the best performances that shows up at many of the parades across New Mexico. 

Chairman Garcia, we have a provision in our draft bill to direct 

more assistance from our national laboratories to Indian tribes in 

developing their energy resources. It is my understanding that New 

Mexico labs, Los Alamos and Sandia, are involved in this kind of 

outreach, but they only do it on an ad hoc basis and a limited 

basis. 

Do you have any experience or knowledge of the labs’ work in 

this area? And what could our national labs do to help develop tribal energy resources? Do you see a key role they could play there? 

Mr. GARCIA. Thank you, Senator, for the introduction and acknowledgment. My opening statement also includes an invite to 

Chairman Dorgan, that when I first met him, we were going to get 

together and play some guitar and sing. 

[Laughter.] 

Mr. GARCIA. And maybe when you leave and your retirement 

party or whatever, we can do so. That would be nice. 

The CHAIRMAN. Maybe on ‘‘American Idol.’’ 

[Laughter.] 

The CHAIRMAN. It would be the only and first duet on ‘‘American 

Idol.’’ 

Senator UDALL. That would be a good combination. 

Mr. GARCIA. Yes. 

Well, first off, Senator, I think one of the issues that hinders 

progress in Indian Country is that there are these partnership opportunities with such places as the national laboratories, but it is 

not out in the plans, and they do do it ad hoc and only when tribes 

ask for assistance in a specific area. 

And so I think in terms of energy development, that is why it 

is important for expertise coming from places like the Department 

of Energy, and the partnership between tribes and the Department 

of Energy means a lot more and makes more sense so that we can 

directly work on projects that directly work on the development of 

a long-term plan, not just a piece here and a piece there because 

that randomizes everything. 

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And I think, as you know, projects don’t work well when you do 

it that way. And so a long-term effort would be to include the interactions and the partnerships of tribes directly with the Department 

of Energy, not just on weatherization, but on full scale development 

of energy. 

What we also need to do is not look at just energy development 

in the community. That is a different level, a different scale versus 

the energy development in Indian Country for commercial purposes. I think the big hard thing right now is the transmission. 

There is not an easy way to get that energy that developed from 

tribal lands out onto the grid for transmission for internal use as 

a community or, in the bigger case, export. And as you see the 

stumbling blocks already off the bench that we can’t sell it to the 

companies, although it is part of Federal law that the companies 

have to buy energy that is there available. 

But the way to get it onto the grid was in my testimony that if 

the grid is not ready, then there is no way we are going to get the 

energy to distribution. And I think that is a lot of work that we 

need to do on the grid building and the improvement of the grid, 

but as well on the commercialization. A lot of the technology that 

the laboratories possess and the laboratories are not an expert in 

commercializing a lot of the new technology that they build. 

So we have to partner up with the tribes in identifying what it 

is that we need to commercialize, and the tribes can be sort of the 

grounds by which we can do the development with both Sandia and 

the National Lab Los Alamos, but as well throughout the others in 

the Country like Argonne, Hanford and other places. 

Senator UDALL. Thank you very much. 

I know you make a very important point on transmission. Senator Murkowski said that. I know Chairman Dorgan feels that 

ways, too. In order to access on a commercial basis, we have to 

make sure when we do our transmission development we include 

Indian tribes. 

So thank you for that. Thank you for being here. 

Thank you, Chairman Dorgan. 

The CHAIRMAN. Senator Udall, thank you very much as well. 

Let me ask, if I might, Mr. Stricker you talked about the urgency 

of transmission. There is a great deal of potential for wind energy 

development on Indian reservations across the Country. In fact, 

many reservations are located where the sun shines a lot and the 

wind blows a lot. To collect energy from both of those sources is 

pretty easy to do these days with new technology, but to collect it 

and not be able to send it to a load center where it is needed is 

largely irrelevant. 

So is it your impression that if we can address the transmission 

piece of this, we will have addressed the most important piece for 

Indian reservations? 

Mr. STRICKER. I think so. As you just said, there is the wind resource itself, and the reservations in the Upper Midwest is one 

area. Some of the best wind in the Country, and in fact some of 

the best in the world exists on Indian reservations in this Country. 

And so certainly the ability to get that power out to a market is 

fundamental. And I would say if you solve the transmission problem, you probably can treat the other problem, and the other probVerDate Nov 24 2008 10:03 Oct 21, 2010 Jkt 061550 PO 00000 Frm 00052 Fmt 6633 Sfmt 6601 S:\DOCS\61550.TXT JACK PsN: JACKF
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lem is the market. You need to have a place to sell it. And in fact 

if could export from the Dakotas to Chicago, for instance, I think 

you are a long way to getting the power to a functional market. 

However, as you go through the different layers of trying to plan 

strategic deliveries of wind projects, you start to realize that in Illinois they are also wanting to build wind, and so there is some resistance to imported wind from the Dakotas because they want economic development in-State. And so you start to have more State 

by State issues that have to be resolved along with transmission. 

But I think that transmission is a fundamental and key piece 

that if there was let’s say a substantial trunkline built from the 

Dakotas to Illinois, you would suddenly have companies buying, 

purchasers gravitating to that from the eastern side. You would 

have potentially tribal projects and perhaps other projects working 

together to get the transmission built. 

So you have the opportunity to do some great development 

around a transmission solution that in fact would really move the 

ball significantly down the field. 

The CHAIRMAN. Thank you. 

Mr. Garcia, first of all, thanks for all of your work. It is a pleasure to work with you on these issues and has been for a long while. 

You, in your testimony, described with interesting language, you 

say the impact of this awkward statutory and regulatory arrangement upon tribes is significant when you were talking about weatherization, the delivery of a substantial body of money to the States 

of $5 billion, with no assurance that the tribe was going to get the 

funding. 

Give me your best assessment of the experience so far with respect to weatherization? 

Mr. GARCIA. Thank you, Mr. Chairman. 

I think it is a variety of levels of functionality, if you will. And 

certainly New Mexico is different than a lot of the other States because the tribal-State relationship in New Mexico is a lot better 

than, say, another State. And so we have a lot of partnerships 

within the State of New Mexico working with the local counties in 

terms of weatherization. 

But if you sum it up in the bigger picture is that the funds actually do go to the State and it is almost at the mercy of the State 

that you have to apply for weatherization funds. And that ought 

not to be the case. And I think Alaska is a demonstration that if 

the relationship between the tribes and the villages and the State 

are not very good, then you are almost already hitting the wall 

from the word get-go and you don’t get access to those funds. And 

it is the same with a lot of other programs, not just the Department of Energy funds. That has been the dilemma. 

And I think if we overcome that, the way to overcome that is to 

provide direct funding to the tribes directly from the Department 

of Energy, but also to have working relationships with the Department versus having to go a roundabout way of getting to those 

funds. 

That is the only efficient way that we can do it because you talk 

about the need, you talk about the priorities, you talk about what 

you can address with the current funding, and the dollars, you 

might say the middleman is out of the picture. And so you have 

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directly efficiency in the way you implement the funding to meet 

the needs of the people. 

The CHAIRMAN. Let me also say, I should have at the start, that 

Senator Barrasso has recommended in a draft some improvements 

that I think are a fine addition to what we are trying to do here. 

I appreciate his work in those areas and they are also incorporated 

in the discussions today. 

Mr. Box, I was looking at your testimony. You have, it is safe to 

say, mixed feelings about this legislation. Some parts of it you have 

concerns with, and I think it is helpful to us to understand your 

concerns. 

You have a 700,000-acre reservation. Is that correct? 

Mr. BOX. Yes. 

The CHAIRMAN. Give us again a description of the energy that 

you produce. As Senator Barrasso said, you have been very successful. 

Mr. BOX. The main energy that we produce is natural gas from 

the Northern San Juan Basin. Like most tribes, the area where we 

were situated didn’t seem to be worth very much, but in fact it did 

hold that large resource. And that, in fact, is partly to our success 

is to have that resource. 

The CHAIRMAN. Have you had difficulty in accessing it, permitting, anything of that sort? 

Mr. BOX. Secretarial approval, signatures, mostly during the BIA 

modernization era, I like to call it, millions of dollars because of 

those delays. And so these are important in regards to approval 

processes. 

The CHAIRMAN. Yes. I asked the question because of our experience with the Three Affiliated Tribes in North Dakota. The most 

significant oil play in America is occurring there now. It is called 

the Bakken Shale. 

Mr. BOX. Yes. 

The CHAIRMAN. It is the largest assessed amount of recoverable 

oil using today’s technology that has ever been assessed in the 

Lower 48 States, up to 4.3 barrels recoverable. 

What our experience was is that the Bakken extends throughout 

the Three Affiliated Tribes Reservation land and that there was 

substantial oil development north of the reservation; substantial 

development west of the reservation; a lot of development south of 

the reservation; and virtually none, virtually no wells being dug on 

the reservation, or drilled, I should say. 

And what we discovered was the Interior Department had four 

separate agencies that had to weigh in on a drilling permit request 

and there was, I believe, a 49-step process. Well, it was just like 

walking through thick glue to get through it and most of the development by oil developers, independents, they said: You know what? 

We will just go north and west and south. We don’t need to put 

up with all of this. On State-owned land, you get a permit like 

that. On private-owned land, just like that. And if you decide you 

want to drill a well on the reservation, you are going to be waiting 

forever. 

So we put together a virtual one stop shop. It is not perfect, but 

I am proud to tell you I think we have 37 producing wells right 

now on the reservation. And I think, and I may be wrong, but 

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about 17 drilling rigs that are drilling a new well every 30 days. 

So there is a lot of activity going on just because we unlocked the 

bureaucratic glue that existed that prevented full access and development. 

That is why I asked you the question of what your experience 

had been. 

Mr. BOX. If I may as well, I understand the question, too, in regard to the one stop shop. But along with secretarial delays and 

those of our agencies signatures that need to be taken care of, it 

is also the NEPA compliance. And that is an important part of all 

of this. 

It is not that we are totally against a one stop shop. What we 

are concerned about is that agencies’ expertise that exist in these 

agencies that are necessary to handle approval processes exist and 

oftentimes aren’t very far from each other. And now it is going 

down further into other areas, and we are not sure that that expertise will carry on. 

That is not all where we are concerned. It is just that it is a 

great idea. We just want to be ensured that expertise will also be 

included at those levels. 

The CHAIRMAN. Yes, I understand your point. There are a lot of 

good ideas that don’t quite work out because they are not implemented the right way. I take your point. 

I do think in this case the ability to streamline, if in fact when 

it is implemented is indeed streamlining, is very important to 

unlock the full opportunity of energy development on Indian lands. 

Mr. Marchand, you made a point about one of the recommendations of the Vice Chairman, which I strongly support, and that is 

the funding for the consolidation of fractionated lands. It has been 

my impression that fractionation is also an impediment to development in many cases. 

Can you describe that impediment? 

Mr. MARCHAND. One example might be where a casino is located. 

We have a casino located on an allotment called MA–8, and there 

is about 60 landowners on the property. In that property are also 

subleases to the master lease, and it has been property that has 

been under development long before there were casinos. It is on a 

tourist-based lake and there is some leases for an RV park, for example. 

And then trying to re-plan the area and redevelop it to take advantage of a casino and resort development, we have had to deal 

with these master leases and different groups. It has just been a 

nightmare to kind of keep this all coordinated. We have spent a lot 

of money on litigation. We were in court, and nobody really wants 

to be there, but that is where we are at on this particular piece. 

And that is kind of how, you know, for top of the line development for the Colville has been, but it is just a real difficult problem 

everywhere you go. 

The CHAIRMAN. Let me just say Mr. Garcia needs to leave for the 

airport, so we will excuse you. Thank you for being with us, Joe. 

Thanks for all of your work. You have been a great friend to this 

committee and to Indian people all across the Country. 

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Mr. GARCIA. Thank you for the opportunity. We need to discuss 

one other item, but I think we can do that over the phone. It has 

to do with storage of energy that is developed. 

The CHAIRMAN. All right. We will plan to do that. 

Mr. GARCIA. Thank you. 

The CHAIRMAN. Sorry for interrupting you, Mr. Marchand. 

But I think your description, the point you have raised is probably a pretty apt description of the problem of fractionation. And 

it seems to me that we ought to, as the Vice Chairman says, we 

ought to try to more aggressively address that because if that impedes development, full development of the energy potential, it 

means we are losing jobs, losing revenue opportunities in areas of 

the Country that most desperately need the revenue. 

This is important to me, and I know to Senator Barrasso as well, 

for a very important reason. Number one, our Country needs additional energy. We need additional production here of all kinds of 

energy to make us less dependent on foreign oil and to make us 

more energy secure. 

But even as we look at that, when we understand that a substantial portion of energy is available to be produced on Indian lands, 

and that is where we most need economic development and the creation of new jobs and new income streams, it just seems to us there 

is an urgency to connect the two. 

And so what we are trying to do with legislation is to remove impediments and to create incentives, both. 

Now, some of these issues are much, much bigger than just one 

hearing of this Committee. For example, building an interstate 

highway of transmission capability that is modern, that will deliver 

energy from where you can produce it to the load centers where it 

is needed to be used, that all sounds good. I can say that in one 

sentence. But it is the case that it is very, very hard to do. 

We have produced 11,000 miles of natural gas pipeline in the last 

nine years in this Country, 11,000 miles. We have produced 660 

miles of high voltage interstate transmission lines. Why? Can’t do 

it. It is very hard. You have more jurisdictions out there who can 

say no and do and will than you can count. 

And so we have a lot of work to do to put together a national 

plan. And by the way, this is an advertisement just a bit. The Energy Committee bill that we reported out included a lot of work I 

and many others did, that sets up a planning process, a siting process and a pricing process. You have to do all three, planning, siting 

and pricing, in order to build new transmission. 

And we set that up, and we involved everybody in the local planning, but we also, and I strongly pushed this, we also have backstop authority for proceeding with FERC. Ultimately, if you can’t 

get it done, you have to have backstop authority for somebody to 

say here’s what America is going to do. Because our transmission 

system is largely created around what used to exist: a big power 

plant and then a bunch of wires in a circle around the power plant 

that extends out 50 miles or 100 miles or whatever it is. 

And so that is the kind of transmission that was built in this 

Country. And then what we did is we put some patches like you 

put a patch on an inner tube between a couple of our little spider 

webs of wires in order to see if we could connect the systems. But 

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that is not the same as having an interstate highway system of 

modern transmission capability. 

So I am determined to try to make that happen, which will 

unlock substantial amounts of opportunity to produce electricity on 

Indian lands all across the Country. These are, in many cases, 

some more remote areas that really need the opportunity to tie into 

a modern transmission grid system. 

So let me thank all of you for contributing to this. And let me 

also say that we are going to keep the record open for two weeks. 

We would invite you, your tribes or others interested in this to submit comments for the official record on what you see as the merit 

and value of both the discussion draft we put out earlier, as well 

as the discussion draft and points that Senator Barrasso included 

in this hearing. And I think that will give us the basis and the capability on which to move forward. 

Let me thank all of you, and again my apologies for being a bit 

tardy today, but this is a very important hearing for this Committee. 

The Committee is adjourned. 

[Whereupon, at 3:49 p.m., the Committee was adjourned.] 

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A P P E N D I X 

PREPARED STATEMENT OF HON. DAVID WU, U.S. REPRESENTATIVE FROM OREGON


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PREPARED STATEMENT OF THE BLACKFEET TRIBE

The Blackfeet Tribe is pleased to submit the following comments on the draft ‘‘Indian Energy Promotion and Parity Act of 2010’’. This draft was the subject of a 

hearing before the Senate Indian Affairs Committee on April 22, 2010. 

The Blackfeet Tribe would first like to extend its thanks to the Senate Indian Affairs Committee and its staff for the hard work that has gone into the draft bill. 

We commend the Committee on its leadership in these important matters. 

The Blackfeet Reservation consists of over 1.5 million acres of land. Oil and gas 

activity has occurred on the reservation since the 1930s. The Tribe also has significant potential for wind energy and hydropower development, and also has significant timber reserves. The Tribe therefore has a great interest in the draft bill and 

its potential for removing the obstacles and disincentives to tribal energy development that has been created by current laws. Our specific comments are set out 

below. 


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Title I—Energy Planning 

Section 101—Indian Energy Development Office 

As a general matter, the Blackfeet Tribe supports much greater coordination 

among the various federal agencies in the development of Indian energy resources. 

We have supported the idea of one-stop offices, and we do support the designation 

of a person within a Regional Office to coordinate and insure the timely processing 

of Indian energy material. However, we are concerned that the establishment of 

only three such Indian Energy Development Offices throughout Indian country will 

make the process more difficult, not less difficult for the Tribe. Unless such an office 

is established nearby, we would be concerned that the Tribe will have less access 

to the relevant agencies. 

We believe that the issues of how to best coordinate the activities of the various 

federal agencies may need some additional consideration given the varying circumstances among the tribes as to location, size and significance of resources, and 

the particular expertise of officials within the various agencies. 

Section 102—Indian Energy Program Integration Demonstration Projects 

We are not clear what Indian energy issue or problem this section is intended to 

address. The section appears to establish a very complicated process, but the benefits of the process for Indian energy development are not entirely apparent. We do 

support a process by which regulations can be waived where appropriate. 

Section 103—Pre-Development Feasibility Activities 

The Blackfeet Tribe fully supports this section which allows for certain activities 

to be carried out without Secretarial approval to determine the feasibility of, or in 

preparation, for development of a renewable energy project, including the construction of temporary facilities. This provision will greatly facilitate the decision making 

process on tribal energy projects. 

Section 104—Comprehensive Energy Resource Planning 

The Blackfeet Tribe strongly believes that the manner in which the National Environmental Policy Act (NEPA) is applied to Indian lands needs full review and reconsideration. While the development of programmatic documents under NEPA is 

helpful to streamline the NEPA process as applied to tribal energy development, as 

this section provides, it does not get at the heart of the problem—that Indian lands 

are not public lands and should not be treated as if they are. While the federal government is required to protect the public interest in development that occurs on 

public lands, there is no similar public interest in the development that occurs on 

Indian lands. Such development is strictly a matter for tribes, in their sovereign capacities, to determine. The NEPA process puts tribes at a very significant disadvantage in terms of time and cost compared to development on private lands where 

NEPA does not apply. This larger issue is what needs to be addressed. 

It is also not clear how this section is intended to work with or coordinate with 

the TERA process. A comprehensive energy resource plan is itself subject to NEPA 

and appears to require a more significant public process than might be required 

under a TERA. 

Section 106—Appraisals 

The Tribe supports this section which allows for alternatives for the conduct of 

appraisals, including tribal appraisals through 638 contracts or other arrangements 

and third party appraisers. Appraisals are required in order to obtain federal approval for a variety of activities, and this section will allow alternatives that will 

facilitate such approvals, given the significant delays in BIA appraisals. This provision will also allow for alternatives in conducting appraisals where BIA does not 

necessarily have the necessary expertise. 

Section 108—Preference for Hydroelectric Preliminary Permits 

The Tribe strongly supports this provision which provides a preference for tribes 

in the issuance of preliminary permits for hydroelectric development under the Federal Power Act in the same manner as States and municipalities currently have 

preference. At the present time, states and municipal governments have preference 

to develop tribal water resources for hydro purposes on reservations, but the Tribe, 

itself, has no similar preference. We agree that situation needs to be remedied, and 

this provision is long overdue. 

Section 109—Study on Inclusion of Indian Tribes in National and Regional Electrical Infrastructure Planning 

The Blackfeet Tribe has significant potential for development of both wind power 

and hydropower. However the feasibility of such projects is greatly impacted by the 

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lack of transmission facilities. Therefore, the Tribe fully supports this section which 

will identify alternatives to address the lack of access to critical transmission facilities. 

The Blackfeet Tribe also supports Section 105 (Department of Energy Indian Energy Education and Planning Management Assistance) and Section 107 (Technical 

Assistance and National Laboratories of the Department of Energy). 

Title II—Energy Development and Energy Efficiency 

Section 201—Lease and Rights of Way on Indian Lands 

The Tribe supports this section which allows for approval of all necessary rights 

of way as part of a lease. In general, the Tribe also supports the increase of lease 

terms and rights of way to 99 years which will allow tribes more flexibility in entering into lease arrangements. 

Section 202—Application for Permit to Drill Fees Not Application 

The Tribe fully supports this provision which will significantly level the field in 

tribal development. 

Section 204—Environmental Review 

The Tribe fully supports this section which allows tribes to conduct environmental 

reviews associated with Department of Energy projects. Again, however, the Tribe 

believes that the more fundamental issue of whether and how NEPA will apply on 

Indian lands must be addressed. 

The Tribe also supports the other sections of this Title, including Distributed Energy and Community Transmission Demonstration Projects, Department of Energy 

Loan Guarantee Program, Inclusion of Tribes in State Energy Conservation Plan 

Program, Home Weatherization Assistance, and Tribal Forest Assets Protection. 

Title III—Energy Financing 

Tribes have been unable to take advantage of tax credits and other accounting 

provisions in the law that are intended to encourage energy development. The 

Blackfeet Tribe therefore fully supports the provisions in Title III that will allow 

tribes to benefit from these tax credits and accounting provisions. Without such benefits, Indian energy development in some cases may not otherwise be feasible. 

Title IV—Amendment to Indian Energy Policy Laws 

The Blackfeet Tribe further supports the proposed amendments to Indian energy 

policies. 

Again, we appreciate the opportunity to comment on the draft Indian Energy Promotion and Parity Act of 2010, and thank the committee for making these important 

issues a priority within the Committee. 

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PREPARED STATEMENT OF CURTIS R. CESSPOOCH, CHAIRMAN, UTE INDIAN TRIBE

BUSINESS COMMITTEE, UINTAH AND OURAY RESERVATION


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PREPARED STATEMENT OF HON. MICHAEL FINLEY, CHAIRMAN, CONFEDERATED TRIBES

OF THE COLVILLE RESERVATION


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PREPARED STATEMENT OF THE PUEBLO OF LAGUNA

At the Pueblo of Laguna, our history and destiny are intertwined with energy production. The Pueblo Indians built the Country’s first passive solar homes. We used 

the sun to warm us in the winter and careful planning brought us cool interiors in 

the summer. 

At the Pueblo of Laguna, we have also lived with the consequences of short sighted energy policy that would sacrifice human health and our fragile environment. As 

home to the world’s largest open pit uranium mine for decades, we know first-hand 

the long lasting harm that energy production can cause—our miners and villages 

are still experiencing high rates of disease associated with radiation exposure, and 

after years of clean-up that met federal standards of the time, we can still see leaching from the old mine that covers nearly 1,000 acres of now unusable land. 


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Because the Pueblo lives in the arid Southwest, we will bear a disproportionate 

burden of an anticipated climate change that will bring hotter summers, longer 

droughts, and less winter snow to feed our rivers, agriculture, wildlife and traditions. 

At the Pueblo of Laguna, we do not want to be passive in the face of climate 

change. We refuse to stand by while others develop solutions that may not solve our 

problems. We have the experience and resources to be active in both managing the 

negative effects from climate change, and developing energy production solutions 

that draw upon our historic reliance on the natural environment to warm us and 

give us sustenance. 

As an example, at the Pueblo of Laguna there are three (3) surveyed sites that 

could provide up to 400 MW of solar derived electricity if fully developed. The sites 

are adjacent to three (3) different high voltage electric transmission lines. Two of 

the solar sites are also crossed by a gas transmission line that could be used to complement a solar energy facility. The Pueblo is willing to invest its own funds in the 

development of these sites. 

Under the existing federal incentives and transmission regulations, however, 

these sites may not be developed because federal policy does not encourage alternative energy investment in Indian Country in the same manner as off-Reservation 

development. Utilization of the existing transmission lines is moribund and complicated because of FERC regulations and bottlenecked queues for transmission. 

Indeed, in 2008, the Pueblo of Laguna invested time, energy and resources as the 

land partner with a large solar developer interested in providing 175,000 megawatt 

hours to the Public Service Company of New Mexico. When PNM abruptly withdrew 

its RFP for the solar energy, our potential solar partner pulled out of Laguna. Because we were relying on the partner’s utilization of federal incentives to make the 

deal work and the transmission lines could presently only be used to supply PNM— 

this ideal solar field is not in development. Our experience highlights several problems that Congress can address: 

First, Tribes need to be able to capture all the federal tax incentives for generating new renewable energy plants similar to non-Tribal businesses. 

Unfortunately, the existing federal tax incentives do not favor a model of energy 

development on Indian lands where the Tribes are full partners and beneficiaries in the business. The tax incentives, if not monetized, are useless to 

Tribes, and make Tribes very unattractive partners. The Pueblo has repeatedly 

called for Congress to offer the same incentives available to non-Indian renewable energy developers available to tribally owned renewable energy projects. 

We asked Congress to consider monetizing the production tax credits and the 

accelerated depreciation. We are pleased that the proposed Indian Energy bill 

would allow for the transfer of tax credits for electricity produced from renewable resources on Indian lands. However, we are disappointed that the bill does 

not address the accelerated depreciation that is available to developers off-reservation. It is only through the combination of both the tax credits and the accelerated depreciation that most renewable projects can be financially feasible. Like 

Tribes throughout the country, we call upon Congress to monetize the accelerated depreciation. The impact to the federal treasury would be the same, but 

the potential benefit to Indian country would be significant. 

Sect. 303 of the draft bill extends the accelerated depreciation provisions found 

in IRC Sect. 168(j) for property on Indian reservations by deleting the termination clause at IRC 168(j)(8). Still, the benefits of accelerated depreciation accrue to non-tribal owners, not tribes. There is no provision for tribal owners to 

transfer this benefit to another owner as is now allowed for Production Tax 

Credits, much less to sell the accelerated depreciation benefit outright when a 

tribe is the sole owner. 

Second, Tribes should be able to monetize the tax credits on projects they undertake themselves. 

Section 301 only works if the Tribe can assign production to a partner in a renewable energy facility thus forcing Tribes to have a partner if they are to get 

the benefits of the tax credits. 

We urge Congress not to limit the ability to monetize the tax credits to solely 

a tribe’s partner in the energy generation. While certain large scale projects 

would require a partner, there are many small scale projects that a Tribe may 

wish to pursue without a partner. 

Requiring a tax paying partner would also add layers of complication to the deal 

structure, which necessarily adds cost to the project. The hundreds of thousands 

of dollars of extra cost could financially doom a smaller project. We know of at 

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least one project that has at least $1 million in incremental structuring costs 

that could be avoided under a monetized tax credit approach. 

The Pueblo urges Congress to develop a simple solution to the need to monetize 

the tax credit and accelerated depreciation benefits. Allow Tribes to sell the tax 

benefits on the market to any taxable entity. The cost to the Treasury would 

be same, yet the cost to the Tribes would be significantly less—putting more 

money directly into the renewable energy project instead of into financial intermediaries. 

Third, the renewable energy potential of Indian Country must not be restricted 

by the transmission bottlenecks. Tribes must be included in national and regional transmission planning and there must be a reform of the FERC queue 

process. 

Sec. 109 of the draft bill calls for a study on inclusion of Indian tribes in national and regional electrical infrastructure planning. The study will assess the 

potential for electric generation on Indian land from renewable energy resources 

and the electrical transmission needs relating to carrying that energy to the 

market. The Pueblo has already identified the valuable potential for solar electricity generation on its land and determined that access to close-by PNM transmission lines are key to the viability of that solar project. 

Once again, Tribes do not want to be passive participants. The transmission 

lines crossing our reservations should work for us while at the same time helping to transition our country to clean energy. The transmission lines crossing 

Laguna have excess capacity for energy traveling away from Albuquerque. If 

PNM does not want to buy power from a nearby reservation-based solar plant, 

then we should be able to send that electricity to other markets. 

If the country is to get the benefit of the tremendous renewable resource potential located in the heart of Indian Country in the Southwest, then the reform 

of the transmission grid needs to take into account our unique position and opportunities. We need to be able to move renewable energy out to the rest of the 

country. The bottlenecked queue process means that even if we had solar electricity to sell tomorrow, we could not feed it into the grid because of the two 

year plus backlog in the FERC regulated queue. 

Fourth, Congress should explicitly state that Tribes retain jurisdiction over 

rights of ways. 

Section 201 of the draft bill provides for the ‘‘inclusion of necessary and reasonable rights-of-way in leases’’ of Indian land. The Pueblo of Laguna reminds Congress that several courts have interpreted rights of way granted by the Secretary as the equivalent of non-Indian land. Tribes never intended rights of way 

to be transformed into non-Indian land. We have lost too much land over the 

centuries to allow the courts to decree that when we allow others to use our 

land for energy or transportation, we are giving up our jurisdiction over that 

land. At the Pueblo of Laguna we will no longer use the right of way statutes 

to grant easements across our Reservation. Instead, we will utilize the leasing 

statutes. We recently concluded two energy transmission right of way renewals 

using a lease instead of a right of way. We urge the Indian Affairs Committee 

to ensure that any legislation it proposes to modify the right of way or leasing 

statutes preserve the ability of Tribes to use leases for expiring rights of way, 

and contain an explicit statement that it is not the intent of Congress to strip 

Tribes of jurisdiction over their lands even if there is an existing right of way. 

Since many energy rights of way will not come up for renewal for decades, an 

express congressional statement that Tribes retain jurisdiction in rights of way 

would resolve the problems posed by Strate and lead to better cooperation between energy companies, Tribes and the states. 

Fifth, eliminate NEPA’s application to approvals of leases or rights of way. 

A significant portion of the bill addresses the delays that occur in the permitting process when developing energy projects in Indian country. In some 

projects where there is no direct federal funding, the only federal action is approval of the lease or right of way. Tribal leaders have been arguing for years 

that this application of NEPA to tribal lands places development on tribal lands 

at an unfair advantage when compared to development on private lands. The 

fact that the United States has a trust obligation to approve the lease, should 

not impose upon tribal projects additional burdens—the trust relationship becomes a hardship rather than a benefit. Eliminating NEPA’s application to approval of leases will bring tribal developments into the same approval process 

timeline as other projects occurring on non-Indian, non-federal lands. It is the 

simplest and quickest way to remedy the finding set out in Section 2(a)(2)(B) 

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that ‘‘Federal policies have created uncertainty and inequality regarding tribal 

energy development.’’ 

Finally, eliminate dual taxation on energy projects. 

At the Roundtable discussion on Indian Energy legislation held in Albuquerque 

New Mexico, our representatives raised the issue of dual taxation and called 

upon Congress to eliminate the burden that dual taxation would place on energy development in Indian Country. State and local taxes should not apply to 

tribal renewable energy projects, since tribes provide all services for such facilities, which have little or no off-reservation impact. As an example, in our negotiations over the solar project, the non-Indian developer was asking the Pueblo 

to waive its possessory interest taxes because they were going to have to pay 

the county property tax on the lease. The Tribal tax revenue was an important 

benefit of the project that would have been hard to give up. Since there is not 

yet significant renewable energy development in place in Indian Country, a prospective pronouncement from Congress disallowing State and County taxation 

of projects located on trust lands would not have any negative impact on existing revenue streams to those local governments. 

PREPARED STATEMENT OF HON. MARTY SHURAVLOFF, CHAIRMAN, NATIONAL

AMERICAN INDIAN HOUSING COUNCIL


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PREPARED STATEMENT OF HON. RON SUPPAH, CHAIR, CONFEDERATED TRIBES OF THE

WARM SPRINGS RESERVATION TRIBAL COUNCIL


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PREPARED STATEMENT OF JEFF CRAWFORD, ATTORNEY GENERAL, FOREST COUNTY

POTAWATOMI COMMUNITY

On behalf of the Forest County Potawatomi Community (‘‘FCPC’’ or ‘‘Tribe’’), I 

would like to greatly thank the Senate Committee on Indian Affairs (the ‘‘Committee’’) for its concern about and understanding of Tribal energy issues as shown 

in its preparation of the Draft Indian Energy Promotion and Parity Act of 2010 (the 

‘‘Draft Act’’). The Tribe strongly supports your efforts to promote renewable and 

other energy development and energy-efficiency projects in Indian Country. 

The provisions in the Draft Act are greatly needed and will significantly benefit 

both Indian Country and our nation as a whole, since the Draft Act will allow Indian tribes more of an equal playing field in developing renewable energy and energy-efficiency projects. This is particularly important because of the vast renewable 

as well as traditional energy resources that tribal lands possess and because of the 

significant present hurdles to developing those resources. 


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As is discussed below, FCPC has made it a great priority to implement energyefficiency measures and to develop its available renewable resources. However, it 

presently faces significant hurdles in implementing these projects. Many of these 

hurdles would be addressed through passage of the Draft Act. These comments focus 

on some of the key elements of the Draft Act for the Tribe, as well as modifications 

and additions to the Draft Act to help address additional hurdles that the Tribe 

faces. 

Among the most important aspects of the Draft Act are the provisions that put 

tribes on an even playing field with other renewable energy developers, by being 

able to utilize production tax credits, investment tax credits and grants in lieu of 

investment tax credits. This is crucial, given the critical importance of these tax 

credits and grants to making renewable energy projects economically viable. Accordingly, FCPC wishes to especially stress the importance of these provisions in the 

Draft Act. In addition, because small changes to these provisions would make them 

substantially more valuable to tribes such as FCPC who are focused on developing 

their renewable assets, these comments also include suggested modifications to 

these provisions of the Draft Act. 

Background Regarding FCPC Renewable Energy and Energy-Efficiency 

Initiatives 

Because of the Tribe’s long dedication to protection of the environment and because of the Tribe’s goal of becoming energy independent through the use of only 

renewable carbon-free or carbon-neutral resources, the Tribe has taken significant 

steps to improve its energy efficiency and to develop its renewable resources. 

Energy-efficiency efforts. The Tribe has implemented an extensive energy-efficiency program that has included energy audits of all of the Tribe’s major energyusing buildings. These audits have identified over 100 potential energy-efficiency 

measures, which the Tribe has been working diligently to implement. As a result, 

the Tribe now uses 11.6 percent less energy per square foot of building space and 

has 19.7 percent less carbon emissions than in 2007. The Tribe is continuing to put 

in place major energy-efficiency projects, in a continuing effort to improve its overall 

energy efficiency. However, many of these additional projects require substantial 

capital investments. Accordingly, the provisions in the Draft Act that provide incentives for energy-efficiency projects are very important to the Tribe’s continuing efforts to become more energy efficient and to lower its carbon profile. In addition, 

as discussed below, allowing tribes to transfer energy-efficiency tax credits, as other 

governmental units are presently able to do, would be a very beneficial addition to 

the Draft Act. 

Renewable energy development. The Tribe is taking a number of steps to develop 

its available renewable resources. These steps include developing its Community Renewable Energy Project that utilizes the extensive forestry biomass material on and 

around the Tribe’s Reservation, as well as biogas from digested waste materials, to 

produce green energy and steam for use by the Tribe and sale to its utility and potentially other third parties. The Project also includes a biomass drying facility that 

produces significant amounts of dried wood chips both for the on-Reservation biomass/biogas generation facility and for use to displace significant amounts of coal 

in existing off-Reservation power plants. 

On January 21, 2010, the U.S. Department of Energy (DOE) named the Tribe as 

one of the only five communities nationwide, and the only tribe, to receive the competitive Community Renewable Energy Deployment Grant. Under this grant, the 

Tribe would become a ‘‘showcase’’ renewable community, showing other communities 

how to become energy independent in a sustainable manner. DOE awarded the 

Tribe a potential $2.6 million grant based on DOE’s recognition of the Tribe’s longstanding environmental commitment and because of the thoroughness of the Tribe’s 

application and its renewable energy plan. The Tribe’s application included several 

renewable energy components, including the biomass/biogas energy and steam system and wood chip-drying facility described above, as well as smaller biomass heating and wind and solar generating systems. 

The Tribe is also performing a feasibility analysis to potentially develop a biogas 

digester and co-generation facility that will utilize waste from the Tribe’s Milwaukee 

Casino and surrounding businesses to produce green energy and steam. In addition, 

the Tribe is evaluating installing a large geothermal heating and cooling system to 

serve its historic Concordia Trust Property, which is located in a Milwaukee urban 

neighborhood, as well as potentially the surrounding area. 

All of these projects involve significant planning and capital resources, as well as 

permitting and other complexities. Accordingly, the provisions in the Draft Act are 

very important to help make sure that these projects become a reality. In addition, 

it is very important that the Draft Act contain the suggested modifications below 

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to help ensure that it is beneficial to FCPC’s renewable energy projects, as well as 

numerous other projects in Indian Country. 

FCPC Comments on Title I of the Draft Act 

FCPC’s strong support for federal program integration in Title I. FCPC strongly 

supports Title I of the Draft Act, which allows for integrated federal support of Tribal energy projects through comprehensive planning, expedited permitting, and coordinated technical assistance. This is a critical issue for Indian Country, where 

agencies of overlapping jurisdiction and assistance are often involved in renewable 

energy projects. This is the case with the Tribe’s Community Renewable Energy 

Project. Accordingly, the Tribe greatly appreciates the provisions in Title I that provide for streamlining and coordination among federal agencies of Indian energy matters and notes that its Community Renewable Energy Project would be significantly 

benefitted if it could participate as a Indian Energy Program Integration Demonstration Project. 

FCPC’s strong support for development of Indian Energy Development Offices and 

request for office in Midwest Region. The Tribe also strongly supports establishing 

Indian Energy Development Offices in regional agency offices as one-stop shops for 

timely processing of Indian energy projects. The Tribe agrees that it is very important to focus on efficient processing of Indian energy matters, since tribes are a very 

important source of renewable and traditional energy and any slowdowns in processing Indian energy matters hurts both Indian Country and our country as a 

whole. The Tribe notes that it is very important to have an Indian Energy Development Office in the BIA Midwest Regional Office, which serves Minnesota, Michigan, 

Wisconsin and Iowa, given the significant biomass and wind energy resources available in this area. It is also very important that this office have expertise with respect to these and other renewable energy resources available in this area. Accordingly, the Tribe respectfully requests that the Draft Act designate that one of the 

Indian Energy Development Offices is to be located in the BIA Midwest Regional 

Office and that it focus on renewable energy resources. 

FCPC Comments on Title II of the Draft Act 

FCPC’s strong support for distributed demonstration projects and FCPC’s noting 

of need for funding of projects. The Tribe also strongly supports Title II of the Draft 

Act. In particular, the Tribe supports Section 203, which calls for the Department 

of Energy to conduct at least five distributed energy demonstration projects. However, FCPC notes the importance of making sure that there is adequate funding for 

these demonstration projects. Accordingly, FCPC respectfully requests that efforts 

be taken to ensure adequate funding for these important demonstration projects. 

FCPC’s strong support for amendments of DOE loan program and FCPC’s noting 

of need for immediate effect of changes. The Tribe also strongly supports the amendments to the Department of Energy Loan Guarantee Program in Section 205 of the 

Draft Act. Since many Indian Country energy projects require significant private investment to make them work (especially if the investment tax credit, production tax 

credit and grant in lieu of investment tax credit rules are not changed), it is very 

important to make sure that DOE Indian loan guarantees are available to tribal energy resource development organizations, as well as tribes themselves. However, 

since these loan guarantees are important right now, FCPC respectfully requests 

that the changes to the Energy Policy Act of 1992 reflected in Section 205 take effect immediately, rather than up to one year after enactment of the Draft Act. 

FCPC’s strong support for inclusion of tribes in State Energy Conservation and 

Home Weatherization Programs. The Tribe also strongly supports both the inclusion 

of tribes in the State Energy Conservation Plan Program (Section 206) and the 

Home Weatherization Assistance Program (Section 207). The Tribe strongly concurs 

with the drafters that there should be at least a 5 percent set aside for tribes under 

the State Energy Conservation Plan Program and at least a 10 percent set aside 

for tribes under the Home Weatherization Assistance Program. These levels of funding are critical to help ensure the development of energy efficiency, weatherization, 

and renewable resources in Indian Country and to address historic lack of funding 

for Indian Country in these important areas. 

Request for effective allocation system for Section 206 like that in Section 207. The 

Tribe notes that Section 206, regarding inclusion of Indian tribes in the State Energy Conservation Plan Program does not set forth factors regarding how resources 

under this program should be allocated among tribes. FCPC respectfully recommends that Section 206 include an allocation provision similar to that provided 

under Section 207, regarding home weatherization assistance. This would allow for 

one third of the funds to be allocated in equal shares among tribes that elect to receive funds, while two thirds are allocated under competitive grants. This would 

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help ensure that sufficient funding flows to tribes that have well-developed plans 

for projects that can be effectively implemented once competitive funding is obtained, while still ensuring that all tribes have access to funds. 

Suggestion to not prioritize building repair and construction over new heating and 

cooling equipment in Section 207. With respect to the Home Weatherization Assistance Program, the Tribe strongly supports the provisions that recognize the government-to-government and trust relationships between the United States and Indian 

tribes and therefore remove potential barriers to the use of weatherization assistance funds such as energy audits, grant limitations, income and other administrative and other eligibility requirements. The Tribe notes, however, that the requirement that activities funded primarily involve the acquisition and installation of energy-efficient windows and doors and the repair, replacement or installation of 

floors, walls and ceilings and only secondarily involve the acquisition and installation of heating and cooling equipment may not allow tribal members to achieve 

maximum energy-efficiency gains. While for some Indian households the installation 

of energy efficient windows and doors and the repair, replacement or installation of 

floors, walls and ceilings may be the most pressing energy-efficiency need, with respect to other Indian households, with older and inefficient heating and cooling 

equipment, installation of new equipment may be a substantially more cost-effective 

measure. Accordingly, the Tribe respectfully recommends that the Draft Act remove 

the distinction in priority between energy-efficiency measures related to building repair and construction and measures to install efficient heating and cooling equipment. 

FCPC’s strong support for and request for modification and clarification of woody 

biomass demonstration projects. The Tribe also strongly supports the addition of 

woody biomass demonstration projects to the Tribal Forest Protection Act of 2004, 

as reflected in Section 208 of the Draft Act. This provision, which allows for contracts between tribes and the Departments of Agriculture and Interior to provide 

reliable supplies of woody biomass from federal lands for Indian biomass demonstration projects, is critically important for biomass energy projects, such as the Tribe’s 

Community Renewable Energy Project. While tribes such as FCPC often have significant forestry resources, to make a biomass-energy project feasible, it is often critical to obtain substantial additional forestry material. That is the case with the 

Tribe’s Community Renewable Energy Project. 

The Tribe respectfully requests that the drafters add to the selection criteria 

whether the proposed demonstration would add to the electric reliability of the Indian land and surrounding areas. Many rural tribes, such as FCPC, are located in 

areas with poor electric reliability, and the siting of new biomass generation in 

these areas can provide significant reliability as well as renewable energy benefits. 

This added electric reliability is key to further economic development in Indian 

Country. 

In addition, the Tribe respectfully requests that this section be clarified to indicate that contracts can be entered between tribes and the U.S. Government to provide woody biomass so long as any portion of the tribe’s reservation is adjacent to 

any portion of the federal lands. This confirmation is important, since many Indian 

lands, such as the FCPC Reservation, are ‘‘checker boarded.’’ This checker boarding, 

combined with the checker boarding of adjacent or nearby federal lands, such as the 

Nicolet National Forest (which is adjacent to portions of the FCPC Reservation but 

not others) may create confusion regarding whether a tribe such as FCPC can enter 

into contracts with various portions of the federal land at issue. With respect to the 

Tribe’s Community Renewable Energy Project, it appears likely that the most effective location for the biomass/biogas generation facility may be on Reservation lands 

that are not directly adjacent to the Nicolet National Forest. Accordingly, the Tribe 

respectfully requests that this provision be modified to clarify that contracts can be 

entered into by tribes and the Departments of Agriculture and Interior for federal 

lands that are adjacent to any portion of a tribe’s reservation. 

FCPC Comments on Title III 

FCPC very strongly supports Title III of the Draft Act, especially the provisions 

that bring tribes into parity with states and local governments and private individuals with respect to production tax credit, investment tax credits and grants in lieu 

of investment tax credits. 

FCPC’s strong support for Sections 301 and 302 and request for limited modifications to substantially increase flexibility and value of credits to tribes. The Tribe welcomes and strongly supports Sections 301 and 302, which would allow tribes to at 

least indirectly take advantage of federal tax credits for investments in renewable 

energy projects. However, the Tribe respectfully suggests that the transaction costs 

associated with the transfer of these credits could be dramatically decreased, and 

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that both the value of the credits and tribal flexibility with respect to Indian energy 

projects could be dramatically increased, if tribes could transfer these credits to taxable parties that do not have an ownership interest in a tribal energy facility or in 

tribal energy equipment. The Tribe respectfully proposes below, language that 

would allow tribes to more freely transfer these tax credits: 

• Section 301: in proposed Section 45(e)(3)(B)(i) of the Code, strike the words 

‘‘who has an ownership interest in the gross sales from such facility’’ immediately following the words ‘‘the Indian tribe may assign to any other person.’’ 

• Section 302: in proposed Section 48(a)(6)(A) of the Code, strike the words ‘‘who 

has an ownership interest in the property’’ immediately following the words 

‘‘such government may assign to any other person.’’ 

This added flexibility should greatly aid the development of Indian energy project 

without adding any additional costs to the Federal Government. 

FCPC’s strong support for extension of Treasury grants to tribes. The Tribe also 

welcomes and very strongly supports extension of the Treasury grants to tribes. 

This change is critical since it allows, for the first time, tribes to own their renewable energy projects, while receiving critical financial incentives, available to other 

entities. This will help tribes achieve true energy autonomy. However, while extending the Treasury grants to tribes brings tribes closer to parity with for-profit developers of renewable energy projects, the Code still imposes a number of limitations 

on depreciation deductions for projects owned in part by, or leased to, tribal governments. These include the requirement that owners of projects leased to, or owned 

in partnership with, tribal governments calculate depreciation deductions for those 

projects using a straight-line depreciation method and much longer recovery periods 

than would be available under the modified accelerated cost recovery system. They 

also include the general limitation of losses imposed on owners of projects leased 

to tribal governments. These limitations on losses, and particularly the limitations 

on depreciation deductions attributable to property leased to or owned in part by 

tribal governments, impedes tribal governments from exercising control over renewable energy projects on Indian land and therefore hampers tribal energy autonomy. 

The Tribe believes that a logical—and enormously beneficial—corollary to the extension of Treasury grants to tribes would be to relax these limitations on a very limited basis and allow for-profit entities that work with tribes to develop renewable 

energy projects on Indian lands to take advantage of the accelerated depreciation 

generally available to for-profit entities that place business property in service on 

Indian lands. The Tribe feels that such a rule, properly tailored to cover only renewable energy projects that would otherwise be eligible for the Treasury grants, would 

remove a key remaining imbalance between tribes and for-profit developers of renewable energy projects, and would thus be integral to helping tribes take control 

of and develop the energy resources on their lands. The Tribe would, of course, be 

happy to work with the Committee in crafting appropriate language to address this 

issue. 

Request for harmonization of expiration dates of tax credits and grants. The Tribe 

respectfully notes a disconnect between both the placed-in-service deadline for the 

Treasury grants (December 31, 2015) and the expiration of the provision allowing 

tribes to transfer ITCs (December 31, 2014) and the latest placed-in-service deadline 

under the ITCs (December 31, 2016). The Tribe respectfully acknowledges that there 

may be myriad legislative concerns underlying this disconnect. Nevertheless, for 

simplicity in the tax code, and to ensure that the tribes have flexibility to choose 

the most appropriate ownership structure for a renewable energy project, the Tribe 

respectfully suggests that these expiry dates be harmonized to all fall on December 

31, 2016. 

Request for equal playing field regarding energy-efficiency tax incentives. The 

Draft Act does not include provision for tribes to take advantage of federal income 

tax incentives for energy-efficiency projects. Currently, tribes are shut out of energyefficiency tax incentives that federal, state and local governments can allocate to the 

developers of their energy-efficiency projects. See, U.S.C. a179D (d)(4). Unlike federal, state and local governments, which are allowed to transfer these incentives to 

the developer of their energy-efficiency projects, tribes are provided no such opportunity. These energy-efficiency tax incentives are critical to help FCPC and other 

tribes implement significant energy-efficiency initiatives. Accordingly, FCPC respectfully suggests that the Draft Act should allow for tribes to be provided equal 

access to energy-efficiency tax incentives as are other government entities. This 

could occur simply by adding federally-recognized Indian tribes to the list of governmental entities that can allocate the tax incentive to the person primarily responsible for designing the energy-efficiency improvements. 

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Thank you for your consideration of our comments, and we look forward to working with you to help ensure that tribal energy development (including renewableenergy development) and tribal energy-efficiency measures can be successfully implemented. 

PREPARED STATEMENT OF HON. EDWARD L. METCALF, CHAIRPERSON, COQUILLE

INDIAN TRIBE


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VINCENT YAZZIE

Flagstaff, AZ, May 5, 2010 

Dear Honorable Senators, 

I have been reading the draft version of the Indian Energy Promotion and Parity 

Act of 2010. 

It almost reminds me of the last chapter in the Book of Revelation. Kill in the 

Name of energy development. The tribal entities will run rough shod over the indigenous people for that gold, silver, uranium, coal, peat, oil, gas, etc. 

Again we have been pushed, shoved, and harassed off good grazing into the 

deserts to live humble lives many years ago. Now there is uranium, coal, oil, and 

gas under those lands and now you send holocaust guards to do the dirty work of 

moving their own people off the land and paying them in coupons. 

At 36 degrees 7 minutes 54.52 seconds North, 111 degrees 14 minutes 22.90 seconds West, WGS 84 on Google Earth is a blown steam plant. A Navajo Navy man 


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ran the steam plant, but he retired and the people replacing him did not know how 

to run it. One day it blew up spreading asbestos threw out the whole building. 

The tribes will start a power plant, but Indians will not be running it. If Indians 

are going to be running power plants, they need to spend two years at another 

power plant shadowing power plant people. Do not let the BIA train the people or 

you get another blown up steam plant. 

Another broken dam is at 36 degrees 3 minutes and 10.31 seconds North, 110 degrees, 35 minutes, 8.71 seconds West WGS 84 Google Earth. 

Another broken dam is at 35 degrees, 46 minutes, 57.29 seconds North, 109 degrees, 6 minutes, 21.36 seconds West. The dam was built and someone used too 

much plastic explosive and drained the lake. 

Giving tribes waivers is not good if they already had a history of messing things 

up. 

I say table the legislation. 

VINCENT YAZZIE

**A copy of the Discussion Draft on the Indian Energy Promotion and Parity Act 

of 2010 has been retained in Committee files and can be found at 

www.indian.senate.gov under ‘‘Issues’’.** 

Æ