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88–821 PDF 2014

S. HRG. 113–338 

S. 2132, INDIAN TRIBAL ENERGY DEVELOPMENT 

AND SELF–DETERMINATION ACT AMENDMENTS 

OF 2014 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

APRIL 30, 2014 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JON TESTER, Montana, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

MARK BEGICH, Alaska 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

DEB FISCHER, Nebraska 

MARY J. PAVEL, Majority Staff Director and Chief Counsel 

RHONDA HARJO, Minority Deputy Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on April 30, 2014 .............................................................................. 1 

Statement of Senator Barrasso ............................................................................... 2 

Statement of Senator Heitkamp ............................................................................. 18 

Statement of Senator Hoeven ................................................................................. 20 

Statement of Senator Murkowsi ............................................................................. 21 

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

WITNESSES

Lankford, Hon. Carole, Vice Chairwoman, Confederated Salish and Kootenai 

Tribes .................................................................................................................... 25 

Prepared statement .......................................................................................... 26 

Lebeau, Hon. Tracey A., Director, Office of Indian Energy Policy and Programs, U.S. Department of Energy .................................................................... 9 

Prepared statement .......................................................................................... 10 

Finley, Hon. Michael O., Chairman, Confederated Tribes of the Colville Indian Reservation; First Vice-President, National Congress of American Indians ......................................................................................................................... 32

Prepared statement .......................................................................................... 33 

Olguin, Hon. James ‘‘Mike’’, Acting Chairman, Southern Ute Indian Tribal 

Council .................................................................................................................. 39 

Prepared statement .......................................................................................... 40 

Tom, Hon. Aletha, Chairwoman, Moapa Band of Paiutes Tribe ......................... 36 

Prepared statement .......................................................................................... 37 

Washburn, Hon. Kevin, Assistant Secretary—Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 4 

Prepared statement .......................................................................................... 4 

APPENDIX

Hall, Tex ‘‘Red Tipped Arrow’’, Chairman, Mandan, Hidatsa and Arikara 

Nation, prepared statement ................................................................................ 51 

Howell, Gordon, Chairman, Business Committee for the Ute Indian Tribe 

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

(1) 

S. 2132, INDIAN TRIBAL ENERGY 

DEVELOPMENT AND SELF–DETERMINATION 

ACT AMENDMENTS OF 2014 

WEDNESDAY, APRIL 30, 2014 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:30 p.m. in room 

628, Dirksen Senate Office Building, Hon. Jon Tester, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

The CHAIRMAN. I will call the hearing on Indian energy development to order. 

Today, the Committee will discuss S. 2132, the Indian Tribal Energy Development and Self-Determination Act Amendments of 

2014. 

I am going to start by thanking Vice Chairman Barrasso for introducing this bill. I think we both recognize that energy development on tribal lands is one of the most promising areas of economic 

development in Indian country. 

The Committee has received testimony numerous times regarding development of Indian energy resources. We have held oversight hearings and listening sessions. The Committee has also 

taken up similar bills in the last two Congresses. The former Chair 

of this Committee, Senator Byron Dorgan, introduced a bill in the 

111th Congress. In the last Congress, Chairman Akaka and Vice 

Chair Barrasso co-sponsored the Indian Energy bill, S. 2132. This 

is a culmination of all of those discussions. 

The last major congressional amendments regarding tribal energy resources were included in the Energy Policy Act of 2005. In 

that Act, Congress provided the Secretary of Interior the authority 

to enter into tribal energy resource agreements with tribes. These 

agreements would allow a tribe to manage their own energy resources without further Federal approval. 

However, over the past decade no tribe has yet entered into a 

Tribal Energy Resource Agreement (TERA) with the Department. 

Meanwhile, development of tribal energy resources has continued 

to lag behind the development of other Federal or privately owned 

lands. 

2 

You would think the Federal Government’s trust responsibilities 

toward tribes and tribal lands would assist tribes in developing 

their resources. Instead, tribes have often claimed that development opportunities have been lost, specifically because of delays 

caused by the Federal Government to carry out its trust responsibility. 

Legislation such as S. 2132, which we will discuss today, 

HEARTH Act, which was enacted in the last Congress, are intended to remove those bureaucratic hurdles by giving tribes direct 

management of their lands and their resources. 

Our tribal witnesses today will provide testimony on all types of 

energy from conventional oil and gas to renewable resources such 

as solar, biomass and hydro. S. 2132 contains provisions that would 

affect all types of energy development as well as a section on allowing tribes to administer a federally funded weatherization program. 

While I am not yet a co-sponsor of this bill, I am a big proponent 

of improving tribal energy development. I recognize that S. 2132 

has widespread support from tribes and look forward to hearing 

from the Administration and tribal leaders today about this bill. In 

particular, I hope this hearing provides an opportunity to insure 

that we are not missing any other possible fixes that would further 

improve tribes’ ability to develop their resources. 

The CHAIRMAN. With that, I would ask Vice Chair Barrasso for 

his opening statement. 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you, Mr. Chairman. I appreciate your 

kind words. 

You are right, it was Senator Dorgan, when he was Chairman of 

the Committee, who brought this additional concern when he 

brought forth a map of his home State of North Dakota and we saw 

how difficult it was on tribal lands to use the many resources that 

were on those lands. That is why I continue to come back time and 

time again, so I want to thank you for holding this hearing today 

on my bill, S. 2132, the Indian Tribal Energy Development and 

Self-Determination Act Amendments of 2014. 

I introduced this bill on March 13 and am joined by Senators 

McCain, Hoeven, Murkowski, Thune, and Enzi as co-sponsors. The 

bill is largely similar to S. 1684 which I introduced in the last Congress and this Committee favorably approved. We continue to advance this measure again because energy development on tribal 

lands is undeniably important. It is a significant facilitator for jobs 

and economic growth in Indian country, and for all of America. 

As reported by the National Congress of American Indians, tribal 

lands hold nearly one-quarter of all American onshore oil and gas 

reserves but they produce less than five percent of the domestic oil 

and gas supply. Tribes have called upon Congress and the Administration to assist in finding a way to tap into that potential. 

The Energy Policy Act of 2005 attempted to do that through tribal energy resource agreements, TERAs, you referred to those, Mr. 

Chairman, between tribes and the Secretary of Interior. These 

agreements allow tribes to execute leases, business agreements and 

rights-of-way for energy development without further secretarial 

3 

approval. The agreements were intended to reduce bureaucracy 

and to increase access to energy development. 

However, uncertainty in the review process for these agreements 

has prevented tribes from applying for any agreement. My bill is 

intended to address this uncertainty and other tribal recommendations in several key respects. 

First, the legislation would streamline the approval process for 

tribal energy resource agreements on Indian lands. This bill would 

provide clear deadlines and requirements for approval or disapproval of the tribal application for the agreements. In addition, 

S. 2132 would allow tribes and third parties to perform mineral appraisals to expedite secretarial approval of tribal energy transactions. 

Moreover, S. 2132 would also encourage the development of renewable energy resources by authorizing tribal biomass demonstration projects. In harvesting biomass materials, tribes could experience multiple benefits. These biomass projects would promote tribal 

forest health and economies, create jobs and reduce the risk of destructive wildfires. 

Mr. Chairman, this legislation has been pending for quite some 

time and enjoys wide tribal support and is narrowly tailored in a 

way that provides procedural measures needed to kick start energy 

development. 

Larger, substantive reforms for tribal energy development have 

not been included in this specific bill and certainly deserve consideration by Congress. However, that would require a more extensive 

debate and potentially involve multiple committees. Mr. Chairman, 

I want to continue to work with you on those initiatives in the future. 

In the interim, I urge my colleagues to advance this legislation 

so it can be signed into law this year and tribes can move forward 

toward energy self-determination. 

I want to welcome the witnesses and look forward to the testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Vice Chairman Barrasso. I appreciate your testimony. I appreciate your leadership on this issue. 

I want to welcome our first panel and would remind all the witnesses to limit their testimony to five minutes. This will allow 

Committee members enough time to ask questions. The full written 

statements will be made a part of the record. 

Our first panel includes our Federal officials. From the Department of Interior we are going to hear from Kevin Washburn, Assistant Secretary, Indian Affairs. Kevin is a regular testifier here, 

almost on a monthly basis if not more. Welcome back, Kevin. We 

look forward to your testimony. 

Then we will hear from Ms. Tracey LeBeau, Director, Office of 

Indian Energy Policy and Programs at the Department of Energy. 

She will talk about how S. 2132 would impact those agencies who 

assist tribes in developing their energy resources. Tracey, welcome 

to the Committee and look forward to your testimony as well. 

With that, we will put five minutes on the clock and start with 

the Honorable Kevin Washburn. 

4 

STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT 

SECRETARY—INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 

INTERIOR 

Mr. WASHBURN. Thank you, Chairman and Vice Chairman for 

holding this hearing. 

Vice Chairman, thank you for your consistent leadership in this 

area. You have been long focused on Indian energy and it has needed your focus of attention. We appreciate that. 

S. 2132 has a lot that we really like in it. We are grateful you 

are considering doing something in this area. The 2005 Act has 

been relatively unsuccessful. That bill attempted to create self-governance and self-determination in this area but the tribes have not 

engaged with it really at all. 

We do not have a single TERA that has been signed. That means 

something has gone wrong because we all know that things work 

better when self-determination and self-governance is the order of 

the day. 

One of the issues about the 2005 Act that was problematic is the 

capacity determination. The bill was really prescriptive and really 

put us in a straightjacket about determining capacity of tribes. 

Frankly, determining the capacity of tribes to do something feels 

very much like a 20th Century concept to me. 

We have sort of moved beyond that now with the HEARTH Act. 

In the HEARTH Act, we have to approve a tribe’s regulations and 

once we have done so, and we can be confident they have a regulatory scheme in place, we can turn the whole program over to the 

tribe. We very much think that is a really good model. 

I think that is the model we like and frankly, it is one the House 

has been comfortable with, the Senate has been comfortable with 

and the President enacted the HEARTH Act. 

One of the big suggestions we have in my testimony is can we 

work with the existing model that we have all sort of agreed to in 

principle. That would largely be our suggestion. 

That said, there is not a whole lot that we disagree with in this 

bill. We have raised a few things about which we have some concerns but I think that we have learned we should trust tribes. 

Tribes do better when we trust them to do these things. They are 

most concerned with doing these things right because they have to 

live on the lands about which we are talking. 

We are all in favor of self-governance with regard to energy as 

we are in all things, so why don’t I stop right there. I think that 

is sort of the basic bottom line. 

We thank the Committee for giving attention to this important 

issue. 

[The prepared statement of Mr. Washburn follows:] 

PREPARED STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT SECRETARY—INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good afternoon Chairman Tester, Vice-Chairman Barrasso and Members of the 

Committee. My name is Kevin Washburn and I am the Assistant Secretary for Indian Affairs at the Department of the Interior (Department). Thank you for the opportunity to present testimony for the Department on S. 2132, the ‘‘Indian Tribal 

Energy Development and Self-Determination Act Amendments of 2014.’’ S. 2132 is 

legislation to amend the Indian Tribal Energy Development and Self-Determination 

Act of 2005. 

5 

The Department believes that it is appropriate to consider amendments to Title 

V of the Energy Policy Act of 2005, relating to tribal energy resource agreements 

(TERAs). The Energy Policy Act sought to increase tribal self-governance over energy development. That Act authorized TERA which are designed to shift authority 

for the review, approval, and management of leases, business agreements, and 

rights-of-way for energy development on tribal lands from the Federal government 

to participating tribes. Sadly, however, the Energy Policy Act has not been successful. Indeed, since promulgation of the Department’s TERA regulations in 2008, the 

Department has not received a single TERA application. 

The Department supports the goal of increasing tribal self-governance in the area 

of energy and mineral development. The Department believes that environmentally 

responsible development of tribal energy resources is critical to the economic viability of many American Indian Tribes and to the sustainability of many Alaska Native 

villages. Energy and mineral development represents a near-term solution for many 

tribes to promote economic development, small business, capital investment, Indianowned businesses, and job creation for tribal members. TERAs are designed to promote tribal sovereignty and economic self-sufficiency by establishing a process 

where tribes can assume a greater role in the development of their energy and mineral resources. 

Key to a tribe’s ultimate success under a TERA is its capacity to perform the functions and responsibilities outlined in a TERA—functions and responsibilities historically performed by the Department. Under existing law, the Department plays a 

critical role in determining a tribe’s capacity to take on those functions. S. 2132 

seeks among other things to simplify and expedite the TERA process. This is a laudable goal. While the Department supports this overall goal, the Department would 

like to work with the Committee to further improve S. 2132 as described below. 

Implementation of the 2005 Amendments 

As noted, the current TERA regime has not been successful. This is not for lack 

of effort by the Department. Under current regulations, a tribe can request a preapplication meeting with the Office of Indian Energy and Economic Development 

(OIEED) to discuss any regulatory or administrative activities it might wish to exercise through a TERA. These informal pre-application meetings include discussion of 

the required content of a TERA application, such as identifying the energy resources 

the tribe anticipates developing; what capacity, management, and regulation will be 

needed to develop the energy resource; and potential mechanisms for building the 

capacity and pursuing other activities related to the energy resource the tribe anticipates developing. Since 2008, the Department has met with six tribes who have considered entering into a TERA. Of these tribes, one had active oil and gas development occurring on its reservation and was considering a TERA for further oil and 

gas development. The other tribes were considering renewable energy resource development. We understand that several tribes with renewable energy resources have 

expressed an interest in developing a TERA. 

The Department supports several of the provisions in S. 2132: 

• Sec. 101(a)(1)(E), requiring consultation with each applicable Indian tribe before 

adopting or approving a well spacing program or plan applicable to the energy 

resources of that Indian tribe or the members of that Indian tribe. The Department notes, however, that this consultation requirement could slow the timeframe for adoption or approval of well spacing programs or plans. 

• Sec. 101(a)(4)(B), promoting cooperation with the Department of Energy’s Office 

of Indian Energy Policy and Programs in providing assistance to tribes in development of energy plans. (The Department also believes that cooperation with 

other federal agencies is important and has made efforts to accomplish such cooperation, through the White House Native American Affairs Council.) 

• Sec. 102(1) that adds ‘‘tribal energy development organization’’ as an eligible entity for grants under this section. 

• Sec. 102(2) that adds ‘‘tribal energy development organization’’ as an eligible entity for technical assistance from the Department or eligible for financial assistance to procure technical assistance. 

• Sec. 103(a)(1) that adds ‘‘production’’ to ‘‘facility’’ and specifically includes a facility that produces electricity from renewable energy resources. Energy resources developed on lands owned by individual Indians in fee, trust, or restricted status as well as energy resources developed on land owned by any 

other persons or entities may be included in leases, business agreements, and 

rights-of-way a tribe or tribal energy development organization may approve as 

long as a portion of the energy resources have been developed on tribal land. 

The amendment also expands ‘‘facility to process or refine energy resources’’ to 

6 

specifically include renewable energy resources and to add energy resources 

that are ‘‘produced from,’’ in addition to energy resources ‘‘developed on,’’ tribal 

land. The amendment includes pooling, unitization, or communitization of the 

energy mineral resource(s) of the tribe with energy mineral resource(s) owned 

by individual Indians in fee, trust, or restricted status or owned by any other 

persons or entities. 

• Sec. 103, which expands purposes for rights-of-way under a TERA beyond pipelines, electric transmission or distribution lines that serve electric generation, 

transmission or distribution facilities located on tribal land to include those 

lines that also serve an electric production facility or a facility located on tribal 

land that extracts, produces, processes, or refines energy resources (not necessarily produced on tribal land) and lines that serve the purposes of or facilitate the purposes of any lease or business agreement entered into for energy 

resource production on tribal land. 

• Sec. 103, which expands the time period for Secretarial approval of a revised 

TERA from 60 days to 90 days. 

• Sec. 103, which provides that a Tribal Energy Resource Agreement remains in 

effect until rescinded by the tribe or Secretarial re-assumption. 

• Sec. 103, which declines to waive the sovereign immunity of tribes. 

• The Department also supports the provision that amends 25 U.S.C. 415(e) to 

allow the Navajo Nation to approve its own leases for business or agricultural 

purposes for 99 years. The Department is, however, concerned about the extent 

of the showing needed for the tribe to engage in mineral development (exploration, extraction and development) without Secretarial approval, as discussed 

further below. 

• The Department supports the proposed changes to the existing environmental 

review process for TERAs, but we suggest that the Committee consider addressing environmental review similar to the approach Congress utilized in the 

HEARTH Act. Both the Department and the Council on Environmental Quality 

supported the HEARTH Act approach and the Department generally supports 

a similar approach here. 

As noted, the Department is concerned with some of the provisions of S. 2132. The 

Department’s concerns include the following issues: 

A. Allocation of Liability 

We are concerned about a lack of clarity in S. 2132 in allocating liability for tribes 

that choose to utilize a TERA. According to its terms, the bill would amend 25 

U.S.C. § 3504(e)(6) to state that nothing in the bill would change the liability of the 

Department for terms of any lease, business agreement, or right-of-way that is not 

a ‘‘negotiated term’’ or losses that are not the result of a ‘‘negotiated term.’’ However, the definition of ‘‘negotiated term’’ does not clearly articulate how liability is 

allocated and the current language regarding the remaining trust responsibility 

does not provide sufficient clarity. 

The Department believes that there is an easy fix to this problem. The Department recommends that the Committee replace the current and proposed amendment 

with the recently enacted liability provision in the HEARTH Act. This approach will 

clarify for both the Department and tribes the allocation of liability. 

B. Determining ‘‘Capacity’’ 

S. 2132 seeks to amend the statute’s capacity requirement by providing that a 

tribe satisfies the capacity requirement if it has carried out a self-determination 

contract or compact ‘‘relating to the management of tribal land.’’ We recommend 

that this approach be refined to ensure that the function performed pursuant to the 

self-determination contract or compact is appropriate given the broad array of functions that TERAs may implement. 

The 2005 Act provides a framework under which tribal capacity includes not only 

managerial and technical capacity for developing energy resources (which necessarily includes realty, environmental, and oversight capabilities), but also managerial and technical capacity to account for energy production, experience in managing natural resources, and financial and administrative resources available for 

use by the tribe in implementing a TERA. Given the scope of functions that could 

be included in a TERA, successful administration of a self-governance contract or 

compact relating to the management of tribal lands may or may not be relevant to 

performing a particular TERA function. 

For example, a self-governance contract for realty functions on a reservation 

largely devoted to grazing and residential use may not be indicative of regulating 

7 

the development of oil and gas extraction. We recommend an approach that relies 

on experience with specific duties and compliance activities to demonstrate capacity 

for specific functions the tribe wishes to undertake with a TERA. Certainly prior 

participation in 638 contracts/compacts for specific duties and compliance activities 

is an important factor, but depending on the specific functions to be undertaken by 

a tribe in a TERA, it may not be the only factor that should be considered. 

Additionally, the Department recommends, as an alternative, the Committee consider streamlining or eliminating capacity determinations. Under existing law the 

Secretary is required to determine ‘‘that the Indian Tribe has demonstrated that the 

Indian Tribe has sufficient capacity to regulate the development of energy resources 

of the Indian tribe.’’ To date, no tribe has applied for a TERA, so we have no data 

on how much effort a tribe must expend for a positive capacity determination for 

the realty, environmental, and oversight activities it may assume. 

However, enactment of the HEARTH Act eliminates this determination for entire 

categories of energy production. Because the HEARTH Act applies to surface leasing, it is now much simpler for tribes to pursue wind, solar and biomass energy 

projects without Secretarial approval. The HEARTH Act’s promotion of self-governance for surface leasing should be carried forward to mineral development. At a 

minimum, the Indian Energy Development and Self-Determination Act should be 

modified to limit TERAs to oil, gas, coal, geothermal, and other mineral-based energy projects, i.e., those that would require a lease under the Indian Mineral Leasing Act of 1938, a Minerals Agreement under the Indian Mineral Development Act 

of 1982, or a right-of-way under the Indian All Rights-of-Way Act of 1948. 

If Congress maintains the capacity requirement because minerals are a limited 

and valuable resource, a TERA capacity determination could be based on whether 

the tribe contracts BIA realty functions in accordance with Pub.L. 93–638. Utilizing 

this approach would be a well-understood procedure for tribes, it would be useful 

to a tribe regardless of whether a TERA were ever obtained, and it is an important 

component to developing energy resources or entering into associated energy leases 

and rights-of-way. 

As currently drafted, S. 2132 uses a similar standard (though not necessarily the 

contracting of BIA realty functions) as a ‘‘safe harbor’’ standard that would result 

in an automatic finding of tribal capacity. Successfully operating a 638 contract ‘‘relating to the management of tribal lands’’ for 3 years may not be, in and of itself, 

sufficient to demonstrate that the tribe involved is prepared to review, approve and 

manage leases, business agreements and rights-of-way for energy development. 

However, operating BIA’s realty functions on tribal lands represents a component 

common to all energy development activities a tribe may want to undertake with 

a TERA. Amending the Indian Energy Development and Self-Determination Act to 

make this an explicit component of a favorable capacity determination would be 

clarify the requirement for applicant tribes and streamline the Department’s review. 

Tribal authority for approving tribal leases for residential and business purposes 

granted under the HEARTH Act may also serve as a clear capacity criterion for a 

Tribal Energy Resource Agreement under the Tribal Energy Development and SelfDetermination Act of 2005. Such tribal authority is based on the tribe’s submittal 

of, and the Secretary’s approval of, tribal leasing regulations consistent with Departmental leasing regulations that also include environmental provisions for identification and evaluation of significant effects leasing may have on the environment and 

public notice and comment on the effects. While HEARTH Act authority for leasing 

does not require any capacity determination by the Secretary, tribes that have approved leasing regulations and have issued leases under that authority may be assumed to have both the structure (regulations) and the ability (personnel qualified 

to carry out the leasing functions) for basic leasing functions. 

In addition, the tribal environmental regulations required under the HEARTH 

Act may form the basis for the environmental review process also required for a 

TERA under the ITEDSD Act. Other considerations for capacity for environmental 

review and compliance could include environmental personnel, experience of the Indian tribe in managing natural resources and financial and administrative resources 

available for use by the Indian tribe in implementing the approved tribal energy resource agreement of the Indian tribe. An amendment specifying tribal adoption of 

an environmental code that includes requirements under a TERA would provide 

clarity for a capacity determination. 

We also believe that the proposed 120 day limit for the Department to determine 

capacity may not be adequate to comply with the notice requirement required by 

law. Currently, the Secretary must publish in the Federal Register a notice that a 

tribe has applied for a TERA with a copy of the TERA and request public comments. 

The process of seeking and considering public comments and to make appropriate 

changes in the TERA based on the public comments likely cannot be accomplished 

8 

within 120 days unless the issue of capacity is excluded from the notice and comment requirement. As a result, we would request that the 120 period run only after 

the comment period has closed and, if additional changes are then necessary, only 

after a final TERA has been submitted. 

C. The Structure of the Petition Process 

The Department suggests that the Committee utilize a review process similar to 

that set forth in the HEARTH Act rather than construct a new review process that 

could lead to confusion and inconsistent administration. Aligning the statutory authorization for both processes would allow the Department to coordinate the corresponding regulations, thereby making the process more transparent and consistent for tribes and the public. The Department is comfortable with the different 

standing requirements for third party petitions concerning TERAs versus such petitions under the HEARTH Act. 

D. Approval Authority for TEDO’s and Tribes Without a TERA 

We have strong concerns about the proposed deletion of the TERA requirement 

for a lease, business agreement, or right-of-way entered into between a tribe and 

a tribal energy development organization (TEDO). This would be the first time that 

Congress has allowed for leases to be exempt from Secretarial approval based solely 

on the identity of the lessee, and not on any determination, either through a capacity determination under a TERA or through approval of regulations, that the tribe 

has a leasing program that can perform this responsibility. 

E. Other Concerns 

While the Department has other minor concerns which it would be willing to discuss with Committee Staff, the concerns discussed above are the primary concerns. 

Alternative Ideas 

The following represent concepts the Department believes may work as alternatives to those in the current bill. We would be happy to help develop these concepts in the context of S. 2132 or a new bill, if requested. 

1. Allow the tribes to recover costs from energy developers, e.g., environmental review costs, in the same manner that the Bureau of Land Management can. 

The nature of this authority, and any limitations on it, would most likely require 

tribal consultation. 

The BLM has the authority to enter into cost recovery agreements so that the 

labor costs of processing energy applications are funded by the applicants and not 

the Department. The BLM’s cost recovery authority allows funds from developers 

to supplement existing appropriations. The BIA has a form of cost recovery authority in theory. However, any funds collected by the BIA must offset appropriated 

funding, so the authority provides no real benefit to tribes or the BIA in practice. 

One immediate concern tribes might have could be avoided, however, if this authority specifies that other annual funding for participating tribes, such as Tribal Priority Allocations, cannot be reduced as a consequence of proceeds from cost recovery. 

BLM has used its cost-recovery funds to establish Renewable Energy Coordinating 

Offices (RECOs). The RECO teams include a dedicated Project Manager, a Planning 

and Environmental Coordinator and two Realty Specialists who process only renewable energy projects within their designated area. The Bureau of Indian Affairs 

could benefit from having its own independent cost recovery authority to gain revenues to pursue similar initiatives. Staffing issues continue to be an issue in the Department’s processing of conventional energy development in Indian Country as 

well. 

2. Specify that a tribe’s initial TERA may be limited in scope, and thus complexity, with subsequent amendments to that TERA focusing only on new 

and additional responsibilities the tribe wishes to undertake. 

As currently provided by law, TERA authority is defined by the resource(s) a tribe 

wants to develop (e.g., oil and gas, solar) and/or the function the tribe wants to undertake (e.g., entering into leases and business agreements, granting rights-of-way). 

We understand that the current law does not clearly provide a process for a tribe 

over time to add to its TERA functions without starting over and pursuing an entirely new TERA. It therefore would be helpful to clarify that a tribe that wants 

to perform only a limited function initially can phase in new, related functions over 

time as the tribe’s capacity increases, by amending its initial, approved TERA and 

not by having to duplicate any of the still relevant elements of its initial TERA application. Thus, a tribe that wants to develop oil and gas resources will not feel 

obliged to demonstrate it has the capacity to handle all conceivable aspects of oil 

9 

and gas development, from exploration to production to refinement, just to issue oil 

and gas leases. This is consistent with the way that the Department and the Navajo 

Nation have implemented the Navajo Nation Trust Land Leasing Act of 2000 [25 

U.S.C. § 415(e)] and the way that the Department currently interprets the HEARTH 

Act of 2012. 

Conclusion 

Thank you for the opportunity to present the Department’s views on S. 2132. I 

will be happy to answer any questions you may have. 

The CHAIRMAN. Thank you, Kevin, for that testimony. 

With that, we will go to Ms. Tracey LeBeau. 

STATEMENT OF HON. TRACEY A. LEBEAU, DIRECTOR, OFFICE 

OF INDIAN ENERGY POLICY AND PROGRAMS, U.S. 

DEPARTMENT OF ENERGY 

Ms. LEBEAU. Chairman Tester, Ranking Member Barrasso, 

thank you for the opportunity to testify on behalf of the Department of Energy. 

As Director of DOE’s Indian Energy Policy and Programs Office, 

I am responsible for promoting Indian energy self-determination, 

and providing, directing, coordinating and implementing energy 

planning, education, financial and technical assistance programs to 

support and facilitate energy infrastructure development. 

In doing so, my office has quite a unique perspective on energy 

development challenges and opportunities in Indian country which 

we are prepared to share with you here today. 

While the Department is still reviewing the bill and doesn’t have 

an official position to share with you today, I came prepared to provide an update to the various energy development and management programs under our purview and where we believe we are 

making some inroads. 

I would also like to note that the department is also doing what 

it can to reduce the serious threat of climate change in Indian 

country, particularly with a focus on infrastructure resilience and 

doing what we can to prepare communities for the impacts already 

being felt in tribal communities. 

Since my appointment three years ago, I have fully committed to 

collaborate with Indian country to ensure we identify and address 

tribal priorities. Our office’s authorities are broad in scope. However, I believe it is noteworthy that tribes are showing high motivation to pursue clean energy development. 

Responding to that articulated interest, our focus is on designing 

and implementing innovative programs to accelerate clean energy 

and energy infrastructure development. Providing Indian country 

with committed collaborative technical assistance is a cornerstone 

of the programs that we now provide. Our guiding star is to work 

with tribes often in their communities as they seek expertise to 

support their own strategic long term solutions. 

Since 2011, we have made an effort to survey, evaluate, coordinate and better leverage DOE energy programs across the DOE 

complex. One insight includes that prior to efforts by both DOE 

and Indian country, largely focused on commercial scale renewable 

energy projects which are typically developed to export into the 

broader energy marketplace. This focus is understandable given 

the revenue potential of such large projects. 

10 

In our view, however, given the capacity building and community 

energy authorities in the Energy Policy Act of 2005, we have identified a considerable opportunity and tribal interest to focus efforts 

on community scale projects to address high energy costs and articulated want from tribes to own and operate their own facilities. 

Key obstacles we continue to monitor with respect to large commercial scale energy development include the cost of financing requirements, particularly for renewable projects that depend on tax 

incentives, frequent congestion on the grid or difficulty working 

through interconnections or transmission of service with entities 

who are not jurisdictional or open access compliant, and being located in markets that do not incentivize renewable energy purchases or markets dominated by utilities exempted from renewable 

incentive programs. 

Another real time observation in working closely with tribes has 

been the level of education and expertise which remains a challenge for tribes undertaking often complex energy projects but we 

feel we are making some headway. 

The complexity of the renewable energy tax structure, technology 

risk, and operational issues have made it difficult for even the most 

financially sophisticated tribes given the unique nature of these 

issues. It is particularly the case where tribes wish to finance, own 

and operate their own systems. 

Given these observations, the near term goals have been to develop programs to respond to these obstacles and opportunities so 

tribes can begin to successfully navigate these complexities and 

begin to get case studies done for Indian country on a broader 

scale. 

Our Strategic Energy Response Team initiative is a signature 

program and unique to our office. The goal of this program is to 

bring our strategic technical assistance to tribal communities and 

Alaska Native communities who have already committed resources 

and efforts to developing clean energy. 

Our investments in the START program are already seeing some 

returns. Several of our START projects are resulting in tribal investment commitments, construction starts this year and deployment of clean energy solutions. 

I am going to leave it at that and look forward to your questions 

about our programs and some of the funding that has gone out in 

the last couple years. 

Thank you once again for the opportunity to share the exciting 

things we are doing in partnership with Indian country to promote 

energy development on Indian lands. 

Thank you. 

[The prepared statement of Ms. LeBeau follows:] 

PREPARED STATEMENT OF HON. TRACEY A. LEBEAU, DIRECTOR, OFFICE OF INDIAN

ENERGY POLICY AND PROGRAMS, U.S. DEPARTMENT OF ENERGY

Chairman Tester, Ranking Member Barrasso, and Members of the Committee, 

thank you for the opportunity to testify on behalf of the U.S. Department of Energy 

(DOE) on S. 2132, Indian Tribal Energy Development and Self-Determination Act 

Amendments of 2014. As Director of the Office of Indian Energy Policy and Programs (Office), I am responsible for promoting Indian self-determination and to provide, direct, foster, coordinate, and implement energy planning, education management, conservation, and delivery programs of the Department that promote Indian 

11 

tribal energy development, efficiency and use and enhance energy infrastructure. In 

doing so, my Office has a unique perspective on energy development challenges and 

opportunities in Indian Country. 

While the Department is still reviewing S. 2132 and does not have an official position on the bill at this time, I will provide an update to the various energy development and management programs under our purview where we believe we are making inroads in addition to identifying the continuing challenges facing tribal communities in energy and energy security. 

The Department of Energy takes seriously its responsibilities and commitments 

to Sovereign Tribal Nations. We are committed to strengthening federal-tribal relationships to protect tribal rights and interests to promote tribal sovereignty and selfsufficiency. And the Department is also focused on doing what we can to reduce the 

serious threat of climate change and, with a heightened focus on resilience, doing 

what we can to prepare American communities, including tribal communities, for 

the impacts of a changing climate that are already being felt. 

DOE Office of Indian Energy: Background and Executive Summary of 

Accomplishments 

The U.S. Department of Energy Office of Indian Energy was directed by Congress 

in Title V of the Energy Policy Act of 2005 (‘‘Act’’), and in previous legislation enacted in 1992, to direct, foster, coordinate, and implement energy planning, education, management, conservation, and delivery programs that assist Tribes with 

energy development, capacity building, energy infrastructure, energy costs, and electrification of Indian lands and homes. This Office has specific statutory goals: 

• Promote Indian tribal energy development, efficiency, and use; 

• Reduce or stabilize energy costs; 

• Enhance and strengthen Indian tribal energy and economic infrastructure relating to natural resource development and electrification; and 

• Bring electrical power and service to Indian land and the homes of tribal members. 

To accomplish these goals, the Act conferred on the Office the authority to provide 

grants to assist eligible tribal entities in meeting energy education, research and development, planning, and management needs, which could include: Energy generation, energy efficiency, and energy conservation programs; Studies and other activities supporting tribal acquisitions of energy supplies, services, and facilities, including the creation of tribal utilities; Planning, construction, development, operation, 

maintenance, and improvement of tribal electrical generation, transmission, and distribution facilities; Development, construction, and interconnection of electric power 

transmission facilities; Developing a program to support and implement research 

projects that provide opportunities to participate in carbon sequestration practices; 

and Encouraging cooperative arrangements between Indian Tribes and utilities that 

provide service to Tribes. 

Since joining DOE three years ago, I have been fully committed to implementing 

the statutory goals for energy development in Indian Country which has included 

a commitment to continually collaborate with Indian Country. The results of that 

collaboration are opportunities to identify and address tribal priorities for energy development policies and programs and to fill gaps in current Department programs. 

More details about these efforts, as well as future plans, are provided below. 

Pursuing Sustainable Energy Development in Indian Country 

Our Office facilitates energy development in Indian Country—including renewable 

energy sources such as wind and solar, energy efficiency improvements, and fossilfuel electric generation that uses carbon sequestration systems, as well as improving 

the infrastructure needed to deliver this energy. Tribes have shown a high motivation to pursue expanded clean energy development. It is our experience thus far that 

the DOE Office of Indian Energy Policy and Programs’ initiatives that are taking 

root in Indian Country are a direct reflection of the innovation and the promise of 

the next generation of tribal energy development. Our priority is focused on providing useful information and tools as well as designing and implementing innovative programs to accelerate clean energy and energy infrastructure development in 

Indian Country. 

Our office tasked the DOE National Renewable Energy Laboratory (NREL) to update all the renewable resource estimates in Indian Country. Based on updated data 

provided by using updated analysis and modeling tools, the estimated maximum renewable energy resource potential on Indian lands is millions of megawatts (MW) 

of nameplate capacity. These comprehensive updated estimates can be found at 

http://www.nrel.gov/docs/fy13osti/57748.pdf. It is clear that further development 

12 

of these energy resources in Indian Country can provide an opportunity to not only 

increase tribal energy reliability and self-sufficiency but also contribute to the President’s energy security goals and Climate Action Plan. 

President Obama and SecretaryMoniz have been extremely supportive of improving the economy of Tribal communities through enhanced clean energy development. 

At the 2013White House Tribal Nations Conference, the President stated: 

‘‘The health of tribal nations depends on the health of tribal lands. So it falls 

on all of us to protect the extraordinary beauty of those lands for future generations. And already, many of your lands have felt the impacts of a changing 

climate, including more extreme flooding and droughts. That’s why, as part of 

the Climate Action Plan I announced this year, my administration is 

partnering with you to identify where your lands are vulnerable to climate 

change, how we can make them more resilient.’’ 

Indian Tribes and Alaskan Native villages have made clear to us that resilient 

energy and energy infrastructure can, as a priority, go hand in hand with the vision 

of a cleaner energy future. Providing Indian Country with committed, collaborative 

technical assistance is a keystone of the programs and policies of the Office. Our 

guiding star is to work with Tribes as they implement their own strategic, long-term 

solutions—solutions with the potential to reduce energy costs, enhance energy security, promote tribal sovereignty and guide Native communities towards a sustainable energy future To support this tribally articulated vision, we support a number 

of programs that provide energy policy information as well as practical, marketbased tools to Tribes that are taking tribal projects past feasibility discussions and 

into investment and deployment decision making. 

The Indian Country Energy and InfrastructureWorking Group was established in 

August 2011 to ensure these and future technical and financial assistance programs 

are responsive to Tribes. The working group provides critical advice and recommendations to the Secretary and to the Director of the DOE Office of Indian Energy Policy and Programs on the strategic planning and implementation of the Department’s energy resource, energy technology, and energy infrastructure development programs. 

Promoting Strong Partnerships and Addressing Common Challenges 

We also have taken time to survey, evaluate, coordinate and better leverage a variety of DOE energy programs, for example, the Office of Electricity Delivery and 

Energy Reliability, Western Area Power and Bonneville Power Administrations, and 

also including the grants offered through the Office of Energy Efficiency and Renewable Energy. Below are important lessons learned we would like to highlight: 

Prior to 2011, efforts both by DOE and in Indian Country largely focused on commercial-scale projects, which are typically developed to export from Tribal areas into 

the broader energy marketplace. This focus is understandable, given the revenue potential of these large scale projects. In our view, however, the capacity-building and 

community energy issues highlighted in the Energy Policy Act of 2005 provisions 

which guide our Office’s mission and goals, there was a considerable opportunity 

and continuing need in community-scale and facility-scale energy generation, as well 

as energy efficiency. Community-scale and facility-scale projects are developed to 

provide electricity to the local community (housing) or on-site (government buildings, community buildings), usually in order to address fiscal challenges of high energy costs in Native communities. These types of projects allow tribes to marshal 

their resources to cleanly generate their own energy and electricity; reduce and/or 

stabilize their energy costs; create jobs in the construction, operation, and maintenance of these systems; promote energy reliability and self-sufficiency; and promote 

reservation economic development. 

Key obstacles which my Office continues to monitor with respect to commercialscale energy development in Indian Country include: 

• Cost to build projects and the financing and funding options available for 

projects, particularly renewable projects that use financial incentives not well 

suited to tribal governments or their enterprises; 

• Frequent congestion on the transmission grid or difficulty working through 

interconnection and transmission service agreements with public electric entities whom are not FERC jurisdictional and/or open access compliant; 

• Being located in markets that do not support, require or incentivize renewable 

energy portfolio standards or purchases or markets that are dominated by utilities whom are exempted from any renewable incentive programs; and 

13 

• Securing whole buyers who are willing to purchase renewable energy at the cost 

to produce the energy and whom are unfamiliar with the legalities of financing 

or contracting with tribal businesses. 

Other recent or real-time observations in working closely with Tribes and Alaska 

Native communities on a variety of projects and issues include: 

Much of the high visibility, celebrated commercial-scale energy development in Indian Country has been almost exclusively in the purview of third-party developers 

who lease land from Tribes to build renewable energy projects in Indian Country. 

There are three primary reasons for this: magnitude of upfront capital cost; tax and 

other financial incentives which promote third party development and ownership by 

taxable entities; and the extensive expertise required to build commercial-scale 

projects. 

Tribes have become more interested in community-scale, facility-scale development for a number of reasons, including the success of the Energy Efficiency Community Block Grant program, state and utility companies’ incentives that pay for 

on-site generation, newly emerging relative ease of tribal leasing and permitting for 

renewable projects under the HEARTH Act, and reducing or stabilizing costs. 

The level of energy education and expertise remains a challenge for Tribes undertaking often complex energy projects, but we are making headway. And the lack of 

energy business acumen is not necessarily based on business capacity. The complexity of issues such as renewable energy tax structuring and technology risk and 

operational issues is difficult to navigate for even the most business-oriented Tribes, 

given the unique nature of these issues. This is particularly the case where Tribes 

wish to finance, own and operate their own systems without third party ownership 

or participation to address tax and related financial incentives.We have provided 

that training to Tribes which has led to affirmative decision making. 

In many respects, there are several issues shared between Alaska Native villages 

and smaller tribes in the contiguous states, including: remote locations (cannot access transmission grids), small land bases (insufficient for commercial-scale and 

even sometimes community-scale development), small populations (they lack the 

human resource capacity for comprehensive energy development), and scarce financial resources. Hence, we have refocused our efforts on the unique energy situation 

for Alaska Native villages. 

Lastly, given this information, our primary short term goal has been to develop 

several programs to respond to the issues, obstacles, and opportunities in Indian 

Country so that we can see more implementation of successful, cost-effective 

projects. 

DOE Office of Indian Energy Programs and Priorities 

My Office has recently launched several programs and initiatives to promote energy development in Indian Country and address the challenges identified above: 

DOE Indian Energy START Program 

The Strategic Technical Assistance Response Team (START) initiative is a signature and unique DOE Office of Indian Energy program aimed at advancing nextgeneration energy development in Indian Country. The START program is focused 

on the 48 contiguous states and Alaska. http://energy.gov/indianenergy/resources/ 

start-program 

For the 48 contiguous states, early-stage project development technical assistance 

will be provided through the START program to selected projects. The goals of the 

START programs are to bring targeted, strategic technical assistance to Tribes and 

Alaska Native governments whom have already committed resources and efforts to 

developing clean energy in their communities. This program is the next step in the 

development process as the Department has invested in early-stage feasibility in 

many Indian communities and this next-level development work is providing tribal 

communities with unbiased, expert technical assistance and information which is 

helping tribal decision makers to take the next step towards investments and deployment. 

After being competitively selected, DOE and NREL experts work directly with 

tribal community-based teams as well as tribal legal and finance specialists to further develop market feasibility assessments; due diligence research, analysis, and 

documentation; and early pre-development work to prepare site control, verify resource, pre-qualify off-take agreements and strategy, and produce a permitting plan. 

Our investments in the START Program are starting to already see returns. Several START projects have resulted in decisionmaking, tribal investment commitments, construction starts and deployment of clean technology solutions. http://energy.gov/indianenergy/downloads/office-indian-energy-newsletter-springsummer2014 In Alaska, we initially teamed up with the Denali Commission to specifically 

14 

assist in the development of tribal energy planning for Alaska Native entities. Our 

Alaska START Program continues to actively seek programmatic and financial federal and state partners to ensure comprehensive collaboration and success for Alaska Native communities in need of stabilized energy costs. Alaska START Program 

Summary at http://www.nrel.gov/docs/fy13osti/58879.pdf 

Energy Capacity Building and Tribal Energy Training 

In three years, we have established a robust tribal technical assistance and training program which features in-person, in-depth training to tribal leaders and staff 

as well as web-based, on-demand training for those whom prefer to participate at 

their own pace and in their own offices. 

Since launched in October 2012, our renewable energy web-based curriculum has 

had over 1,490 visitors and our resource library which hosts dozens of tribally-relevant documents and tools has had over 1,250 visitors. Since July 2013, we have 

hosted 49 tribal members for in-person renewable product development and finance 

forums. We have held numerous best practice and peer-to-peer forums—ranging 

from such topics as solar energy development to transmission and clean energy integration. Since December 2011, approximately 350 tribal leaders and staff have attended these in-person best practices forums. 

Energy Transmission Training and Technical Assistance 

Understanding the transmission grid, interconnection issues, and issues related to 

distribution of clean energy also are critical for successful development of energy 

projects, whether commercial or community scale. We are working with our partners 

in DOE’s Office of Electricity Delivery and Energy Reliability, the Western Area 

Power Administration, and the Office of Energy Efficiency and Renewable Energy 

to offer a webinar series to address the range of issues associated to developing 

clean energy and transmission. Since January 2013, we have had over 2,050 participants in our webinar series.We have as a team also provided almost a dozen Tribes 

with pre-feasibility transmission study assistance and a range of other training and 

technical assistance. 

Office of Indian Energy’s Enhanced Coordination with the Office of Energy Efficiency 

and Renewable Energy’s (EERE) Tribal Energy Program 

EERE’s Tribal Energy Program was originally established under the Energy Policy Act of 1992 to implement DOE’s responsibilities under the Act. Since 2005, the 

program has been implementing the Office of Indian Energy’s EPAct Title V grant 

authority and has been providing funding related to renewable energy and energy 

efficiency. Since becoming fully operational, the Office of Indian Energy and EERE’s 

tribal program have jointly offered coordinated energy programs to ensure against 

duplication, have leveraged grants into START projects to accelerate project successes, and have offered free technical assistance to Tribes (up to 40 hours) which 

has focused much of its efforts on energy strategic planning and hands-on 

prioritized technical analysis for clean energy projects. 

Other DOE Office and Interagency Coordination 

As stated earlier, one of our primary goals is to leverage existing DOE resources 

to promote and implement energy development in Indian Country. As one recent example, the Department highlighted tribal eligibility and inclusion in our $15 million 

Solar Market Pathways funding opportunity announcement. This funding opportunity seeks to help state, tribal and local communities develop replicable multi-year 

strategies that spur significant solar deployment, drive down solar soft costs, and 

support local economic development efforts. Our experience is the Office’s vantage 

point enhances DOE-wide coordination which facilitates more opportunities to leverage the considerable technical assistance mechanisms developed by our programs 

for government and community leaders. These programs also have created educational materials byworking with and learning from government leaders on implementing renewable energy policies and programs at the community level. It is our 

goal to leverage those lessons and best practices in Indian Country, so that we do 

not have to recreate the wheel and can apply proven techniques and technical assistance. 

We also intend to build on the many relationships and coordination efforts we 

have initiated with other federal agencies that provide support for energy development. Those agencies include the Department of the Interior (DOI), Department of 

Agriculture, Denali Commission in Alaska, Environmental Protection Agency, and 

the Department of Commerce. For example, in Alaska, we have been actively engaged in energy development and management activities over the last two years and 

as part of the National Strategy for the Arctic Region, and will take the lead on 

the implementation plan for promoting more renewable energy development in the 

15 

Alaska Native villages in the Arctic Region. This plan includes continuing the Office 

of Indian Energy’s Alaska START program, comprehensive strategic technical assistance to assist Alaska Native villages with community-wide energy issues and 

project opportunities. The Office of Indian Energy will also convene a renewable energy development forum in the summer of 2014 to bring together key stakeholders 

in renewable energy development and focused on building public-private partnerships as the means for structuring and financing renewable energy projects remote 

Alaska Native villages. Also, in support of its Alaska efforts, the Office of Indian 

Energy has stationed a full-time program manager in Anchorage. 

Setting Priorities in Fiscal Year 2015 Budget and Future Efforts 

The President’s FY 2015 budget request, which includes $16 million for Indian 

Energy Policy and Programs as a separate appropriation, reflects the consolidation 

of our tribal energy programs and Office of Indian Energy into a single office. This 

increased and consolidated budget request will enable DOE to maintain key initiatives while leveraging authorized tools and build on initiatives developed and executed since 2011. For example, we will continue: to support the Indian Country Energy and InfrastructureWorking Group; the START Program; to expand our energy 

capacity building efforts; and to provide additional technical assistance to Tribes in 

support of tribal energy development projects. 

Conclusion 

Thank you for the opportunity to share the exciting things we are doing in collaboration and in partnership with Indian Country to promote energy development 

on Indian lands. 

The CHAIRMAN. Thank you, Tracey, for your testimony. 

I am going to start with questions for Kevin Washburn. 

Your testimony references the provisions of the HEARTH Act 

several times as alternative to some of the TERA language in S. 

2132. With the relative success of the HEARTH Act provisions, 

what are your thoughts on simply expanding authority to include 

tribal subsurface development for all tribes that choose to adopt 

their own regulations? 

Mr. WASHBURN. I think that is probably the right approach. 

We reinvent the wheel a lot in Indian country so we have five 

volumes of the United States Code with statutes dealing with Indian country. We often do similar things in different ways in different statutes. 

I think the HEARTH Act looks like it is being very successful. 

Since it is something we all agree on, we think that model is a good 

one to follow. We actually deal with some of the same issues we 

are trying to deal with in this energy Act. 

The CHAIRMAN. Currently, S. 2132 would expand the HEARTH 

Act provisions to include subsurface development but only for the 

Navajo Nation. You mentioned the department has some concerns 

about that provision. Could you talk a little more in-depth about 

what those concerns are? 

Mr. WASHBURN. The Navajo Nation thankfully has gone forward 

quite a bit on some of these things. We have tested out some of 

these things with the Navajo Nation and that has worked well. 

The HEARTH Act is a good model. However, mineral development is more complicated than business site leases or something 

like that or surface leases. I think that basically is the issue. That 

is where the Navajo model is important. 

We need to recognize there are some slight differences in the way 

the HEARTH Act works and the way energy leasing needs to work. 

Those are sort of the bases for our concerns around the Navajo 

version. 

16 

The CHAIRMAN. We have heard a lot in the last couple of years 

about a one stop shop. I believe the department is using a virtual 

one stop shop for Ft. Berthold for oil and gas permitting. The BLM 

currently has one stop shops in seven locations created by the Energy Policy Act of 2005. 

Should Congress consider similar statutory language for the BIA 

or modify the existing one stop shops to strengthen the BIA’s involvement? 

Mr. WASHBURN. Let me say this. I think the one stop shop model 

in some cases has been successful. Everybody has sort of a different 

idea of what they mean by one stop shop. A lot of tribes mean they 

want a shop on their reservation that has every Federal agency. 

That is hard. It is hard to produce this everywhere and get all the 

Federal agencies lined up that we need to do that. We just don’t 

have the fiscal resources to open all those offices. 

We have tried to do it. We have experimented with it. It is not 

a bad idea. It is just that we don’t have all the fiscal resources we 

need necessarily to accomplish one everywhere that a tribe wants 

one. 

Another approach is to try to locate those in one stop in the 

United States. It may not be on every single reservation. We have 

toyed with both those models in different ways. That is an improvement. 

The CHAIRMAN. If there was a one stop shop in the United 

States, I’m assuming that could all be accessed through the Internet? 

Mr. WASHBURN. That’s right. 

The CHAIRMAN. Tracey LeBeau, your testimony discussed the 

progress your office has made in providing technical assistance to 

tribes through the START Initiative. Can you describe what has 

been successful? 

Ms. LEBEAU. We have had a few projects, namely the San Carlos 

Apache is one notable one where we have been able to work very 

closely on the ground with tribal staff and decision-makers to help 

them sort through technology issues and also the very complex financial structuring issues inherent in a lot of these renewable energy projects. 

I believe they are set to start construction in the next 60 days 

on a solar project to serve their community needs. 

In Alaska, we have had a number of areas where we have made 

progress to help tribes get technically ready and further down the 

road to access and better leverage State funding which is a very 

significant area of funding for Alaskan Native communities. 

I am looking forward to other near term announcements on new 

construction starts this year and next for some of the projects we 

have been working on. 

The CHAIRMAN. You talked about State funds. Is it allowed to 

bring in the outside capital, private capital? 

Ms. LEBEAU. Definitely. As an example, San Carlos leveraged a 

State renewable energy incentive, and put in their own debt financing to make that project a reality. In Alaska, that has definitely 

also been the case. 

The CHAIRMAN. Vice Chairman Barrasso? 

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

17 

Mr. Washburn, your written testimony stated the Department 

has strong concerns regarding the tribal energy development organizations. These are organizations that must be majority owned 

and controlled by the tribe. The bill would treat certain transactions between the tribe and the organization as an agreement 

with the tribe itself or its agency. 

I appreciate the Department staff working with my staff on this 

provision. Why do you believe the Secretary should review 

intratribal transactions. I think you said in your statement always 

trust the tribes. 

Mr. WASHBURN. I think our written testimony is probably a bit 

too strong on that by saying strong concerns. I think we, in general, should trust the tribes. 

The key to tribal economic development or energy development 

organization is slightly removed from the tribes. It is not exactly 

the tribe, but is an organization the tribe has a strong interest in. 

I think we should be able to work closely in that context. That is 

pretty close to the tribe doing the development itself. I see that. 

We will work with you on that and see if we can get to comfort 

on that. 

Senator BARRASSO. I want to talk a bit about Federal liability. 

You written testimony talks about Federal liability provisions for 

the TERA and the agreements which you say are unclear in my bill 

but you also say in the Energy Policy Act of 2005 they are unclear. 

You recommend replacing the Federal liability provisions with 

those contained in the HEARTH Act of 2012, which is a broader 

waiver of liability. Can you explain why you think that a broader 

waiver of Federal liability is appropriate for subsurface mineral resource development? 

Mr. WASHBURN. I guess this goes to the point I made earlier. I 

am an Indian law scholar in my day job when I am not in the government. We often use slightly different language to reach the 

same basic meaning in Federal law. We make lawyers wealthy by 

doing that but we are largely trying to achieve the same outcome. 

Again, this is an area where we all agreed on the language in 

the HEARTH Act and everyone celebrated that language. This language is pretty similar but is slightly different. It feels like it is a 

full employment act for lawyers and doesn’t accomplish much difference. I would suggest that we use the same language we all 

agreed on in the HEARTH Act. 

Senator BARRASSO. For tribal energy resource agreements, a 

tribe needs to demonstrate sufficient capacity to regulate energy resource development. Your written testimony suggests eliminating 

from my bill and from current law the provision that requires 

tribes to demonstrate sufficient capacity. 

Can you spend a little time explaining why the capacity determination should be eliminated? 

Mr. WASHBURN. It feels kind of old school to me, frankly. We 

have started trusting tribes a lot more and it has taken time. The 

Federal Government comes slowly along but has learned to trust 

tribes more. Again, it is the tribe that lives on this land and is 

most affected by the outcomes of development. 

I think we have learned that when we trust tribes to do the right 

thing, they are basically doing it for themselves and can be trusted 

18 

as well as Federal officials can or Federal bureaucrats can to make 

decisions about these actions. 

Senator BARRASSO. Ms. LeBeau, following up on what we just 

heard from Mr. Washburn, entering tribal energy resource agreement, a tribe must have sufficient capacity to regulate the development of energy resources. Part of your Office’s specific responsibility is to assist tribes in capacity building for energy development. 

Can you tell us a bit about how you collaborate with the Department of the Interior to ensure that tribes have that capacity to regulate energy resource developments? 

Ms. LEBEAU. Most of our capacity building and training programs really revolve around helping support technical capacity, 

getting them more acquainted with technology, better acquainted 

with technology risks, energy facility operations and how these 

projects typically get developed and financed and what the energy 

marketplace looks like. 

We work very closely with the Department of the Interior as 

their focus has been more on energy capacity building in terms of 

governance matters related to energy development. I think there is 

a nice complementary role we play and we collaborate. 

Senator BARRASSO. Thank you, Mr. Chair. 

The CHAIRMAN. Senator Heitkamp? 

STATEMENT OF HON. HEIDI HEITKAMP, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HEITKAMP. Thank you, Mr. Chairman. 

First, I want to say, Kevin, in this room are probably about 15– 

20 students from the Mandan, Hidatsa, and Arikara Nation. What 

we talk about is their future when we talk about the development 

of this resource, doing it the right way but also not discouraging 

folks from actually making that investment. 

For many of our treaty tribes, whatever land was negotiated in 

those treaties is the land they have to develop and use. I think one 

of the biggest complaints that I hear repeatedly in Indian country 

is that the system of Federal regulation treats these as if they were 

public lands and not tribal lands. 

I think both of you acknowledge that this is land that first and 

foremost the tribes have primacy over. The Federal Government 

would not play the same role if these were private leases that did 

not have any kind of tribal or Federal land involvement. This creates a real system of problems for developing these resources on 

the reservation. I don’t think it can be understated. 

I met yesterday with a major company that does business on the 

Mandan, Hidatsa, and Arikara Nation who told us that they are 

this close to pulling out and this close to moving those rigs someplace else because of the morass of Federal permitting. 

Senator Dorgan once said it takes four agencies and 49 steps. I 

think with the Mandan, Hidatsa and Arikara Nation, we say it is 

seven agencies and 100 steps. 

The reason we are pushing in a very aggressive way this notion 

of one stop shop is all too often what happens is you say, it’s BIA’s 

fault, then BIA says it’s BLM’s fault and BLM says, oh, no, the 

slow up is with Fish and Wildlife, so around and around and 

19 

around the circle they go. In the meantime you have now frustrated everyone. 

I want to go back to Senator Tester’s discussion about one stop 

shop and accommodating those concerns not from the standpoint of 

just ease of discussion but accountability of all those agencies to 

work together. I know there has been some discussion about doing 

this in one central location, say Denver, where we can actually get 

an answer. 

I think in order to reestablish faith with the tribes and the mineral rich tribes, we need to have timelines that people actually consider valid and essential. We have the predictability. 

I would like you to comment about building a one stop shop in 

Denver and also talk about what would be your reaction if we set 

a timeline and said all you Federal agencies who want to participate, instead of saying no longer is this your job, we are going to 

say you have two months from the time of application to actually 

get it done, a completed application. What would be your reaction? 

Mr. WASHBURN. That would motivate us. 

Senator HEITKAMP. I hope so. 

Mr. WASHBURN. These are difficult issues and the first one you 

raised, the fact that on non-Indian lands nearby, private lands, 

people have to go to one government to get everything worked out, 

usually the State government. On Indian land, they have to work 

with both the Federal Government and the tribal government. 

You already have double the number of governments people have 

to work with. There is always sort of a clash of multiple interests 

whenever we do any kind of energy development. There are sacred 

sites, endangered species, interest in getting minerals out of the 

ground, economic development and all that. These are difficult 

issues. We put different Federal agencies in charge of each of those 

interests. 

Senator HEITKAMP. You do understand their problem with this 

distinction of public land versus tribal land? 

Mr. WASHBURN. I do understand that distinction. The fact is Federal land is what keeps the States from being able to swarm on to 

it and start regulating. If it is not Federal land, then it is State 

land. In the grand scheme of things, that is what we recognize. We 

recognize there is Federal land and there is non-Federal land. NonFederal land is subject to State taxation and State regulation. 

Senator HEITKAMP. Tribal land isn’t. You and I can have that 

discussion another time. 

Mr. WASHBURN. Fair enough. 

Senator HEITKAMP. I did a little work on State taxation in Indian 

country. I would dispute some of your statements. Kevin, you and 

I can debate this back and forth. We have spent a lot of quality 

time together but just a quick answer to establishing a time certain 

whether you are willing to do that with all the agencies to facilitate 

development of tribal resources? 

Mr. WASHBURN. They will throw me out on my ear if I go back 

and say I just got us 60 days to dramatically transform oil and gas 

development in Indian country. 

Let me say this, we are definitely interested in working on something like that. The White House Native American Affairs Council, 

which Sally Jewel chairs, is meeting tomorrow at the White House 

20 

with several Cabinet Secretaries. These are the kinds of issues we 

are trying to deal with, breaking down silos between Federal agencies. We will work on progress in breaking down those silos. 

Senator HEITKAMP. Kevin, I look forward to a response. 

The CHAIRMAN. Senator Hoeven. 

STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HOEVEN. Thank you, Mr. Chairman. 

Secretary Washburn, thanks for joining us today. 

I found out recently, and it has been in the media, that two infants have died on the Spirit Lake Reservation. We don’t have any 

information yet on what happened. I believe the FBI is investigating. 

I am wondering if you have any information you can provide to 

us or if you have any information, even if you can’t provide it to 

us, and what steps you are taking to ensure that you are doing everything you can and that BIA is doing everything it can to protect 

families and particularly children on the Spirit Lake Nation Reservation. 

Mr. WASHBURN. Thank you for your longstanding concern and interest in this issue. We have worked together quite a bit to try to 

address these issues. I know you know a lot of the things we have 

been doing. 

I won’t speak about the infant investigation because I don’t want 

to jeopardize it. I know you understand that. The public has a right 

to know these things but we often can’t talk about those things 

until the time is appropriate. I appreciate your understanding 

about that. 

We have made great efforts over the past year or so to ensure 

that we do better by the children in Indian country. We have been 

working on several different fronts, we have been working on updating our BIA protection handbook, working on improving our 

BIA Indian child welfare guidelines for State courts and working 

specifically at Spirit Lake to try to get Spirit Lake staffed. 

We have retroceded the authority from the tribe back to the Federal Government for some of the protection issues out there. Again, 

I can’t talk about the specific facts of the case but we are painfully 

aware of these issues and are following up. 

Senator HOEVEN. Can you assure me you are doing everything 

you can with BIA to make sure this situation addressed fully and 

you are doing everything you can for child safety on the reservation? 

Mr. WASHBURN. Senator, yes, I can make that statement to you 

with confidence. We are also working with the Department of Justice rather closely as well. 

Senator HOEVEN. As you know, I put forward the Native American Children’s Safety Act which would provide additional protection for Native American children in foster homes. Are you willing 

to work with me to see we get that passed to provide additional 

protection for children on the reservation? 

Mr. WASHBURN. We would be happy to work with you more on 

that bill. We testified on that bill before and have some concerns 

21 

about the bill but we understand what you are trying to do and 

agree with your overall goals. We will work with you. 

Senator HOEVEN. I would encourage you to contact me and if you 

have concerns, let’s work on those. I am willing to do that with you. 

Speaking about legislation, the Ranking Member on this Committee introduced a bill, the Indian Tribal Energy Development 

and Self Determination Act and was kind enough to allow me to 

co-sponsor that with him. That would address some of the concerns 

that Senator Heitkamp and Senator Tester have raised in terms of 

energy development on the reservation across the country. 

I would really encourage your help and support on that legislation in terms of getting at some of the red tape and some of the 

challenges that were faced on the reservation. Have you had a 

chance to look at the bill and I would like your thoughts on it. 

Mr. WASHBURN. We testified extensively on it before you got 

here. I submitted written testimony on the bill. 

I will say that it would be a feather in the cap of this Committee 

to get something passed on Indian energy this year. We will work 

with you to get something we can agree on because it is time. The 

Vice Chairman has been working on this for a very long time and 

thank you for your support of that work. I’d like to see something 

happen here. 

Senator HOEVEN. Ms. LeBeau, I think you could be very helpful 

with that legislation as well. Right now, in North Dakota, the 

Three Affiliated Tribes are producing an amazing amount of oil and 

gas but they are flaring off 40 percent of the natural gas that is 

being captured. 

We need markets for that gas. That is part of the equation and 

we have legislation on that part but we have to be able to develop 

the infrastructure. We cannot do that without permitting of the 

pipelines and the gathering systems to do it. 

I would encourage you to look at that legislation. I think you can 

make a big difference here in terms of helping not only produce 

more energy but good environmental stewardship with your help 

and support for that legislation. 

Ms. LeBeau, any thoughts you might have in that regard? 

Ms. LEBEAU. I actually had some very initial conversations with 

the Three Affiliated Tribes on the gas flaring issue. Those conversations and dialogue are ongoing. 

Senator HOEVEN. I know expediting permitting infrastructure is 

something they very much want. 

Thank you. 

The CHAIRMAN. Senator Murkowski? 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. Thank you for 

the hearing. 

I too am honored that the Ranking Member has allowed me to 

join in his great piece of legislation. I think it is an important bill 

and I too hope we will able to see this advance through the Committee. 

We are seeing such an energy boom across this country. I have 

been to North Dakota, my colleague’s State; I was out in New MexVerDate Mar 15 2010 10:35 Jul 25, 2014 Jkt 088821 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 S:\DOCS\88821.TXT JACK
22 

ico, Texas and Colorado over this recess. We are seeing this boom 

everywhere. Yet our Indian tribes on the reservation are seemingly 

being left out due to bureaucratic delays with the Federal Government. 

It gives tribes the impression that the government doesn’t trust 

them to handle their own energy development on their lands. I 

heard that frustration. 

About 43 years ago in Alaska, we did something different. We 

gave Alaska Natives collective title to own their own lands under 

ANCSA. Today our Alaska Native corporations are among the largest energy and mineral producers in our State. They are exploring 

for natural gas, for oil and are actively developing mineral resources. 

Our Native corporations continue to make investments in the 

State and are really changing the energy landscape. Whether it is 

through development of hydropower, we are seeing a great deal of 

wind power developed in our coastal communities and our villages, 

or whether conventional energy development. 

Nearly nine years after passage of EPACT, the Energy Policy Act 

of 2005, we still have yet to see a tribe in the lower 48 assume regulatory powers over the energy development on tribal lands. We do 

have to recognize that there are considerable missed opportunities 

and how we can address these policies to help even that playing 

field, to get these opportunities, to really make a difference with 

our tribes. This is what this is all about. 

Secretary Washburn, today in the Federal Register, you issued a 

proposed rule establishing a process for tribes to take lands into 

trust in Alaska. As I understand it—just me for the first time looking at this proposed rule you announced today—it raises questions 

from my perspective, probably more questions than answers. 

It clearly represents a departure from 43 years of established 

policy in this area in which Alaska Natives took a different course. 

We deviated from the failures of the reservation system, set up 

something that was pretty novel with ANCSA. 

I want you to know that I am reviewing your proposed regs in 

view of its potential impact on Alaska. I will have some questions 

that I will submit for the record and would appreciate your responses to them at that time. 

I want to use the balance of may time this afternoon to talk 

about the issues as they relate to price of energy in Alaska because 

as we all know we have abundant resources, we don’t have any 

shortage there but we have an energy crisis. We have an energy 

crisis in our rural Native communities because of geography, of the 

distances and the economies of scale. 

We had Kawerack testify to this Committee during our energy 

roundtable last summer, talking about aging infrastructure, high 

construction costs and antiquated technology. You are in a region 

where gasoline is costing you about $7 a gallon. In the AVCP region in the YK Delta, you are looking at $600–$800 for a heating 

bill, your heating bill per month. Understanding what we can do 

to reduce these costs has been so paramount to so many in Alaska. 

This is for you both. You’re going to be looking to take lead on 

renewable energy development. You are bringing together some 

23 

stakeholders in renewable energy development and focusing on 

building these public/private partnerships. 

I’m trying to understand exactly what this might mean in terms 

of how we can deal with some of our high cost issues when talking 

about these public/private partnerships. Effectively, what can Alaska tribes expect from this? 

One of the things AVCP is considering is in an effort to reduce 

energy costs, one thing we are looking at is the transportation costs 

and the possible development of an energy freight corridor that 

could connect the Kuskokwim River villages with the Yukon River 

villages. They are only separated by about 20 miles of land but how 

you can kind of knit all of this together to save costs is something 

that is worthy of consideration. 

Can either of you or both of you explain to me how you envision 

development of these public/private partnerships that might make 

a difference in reducing energy costs? 

Mr. WASHBURN. I’ll say a few words and then maybe Director 

LeBeau can address the question. 

In the first four years of the Obama Administration, we focused 

on massive utility scale type projects, multiple megawatt type 

projects, things that take a lot of financing to produce. I think one 

of the insights we have developed over the last couple of years is 

we need to focus a lot more on local community scale projects that 

can help a small community like that. 

It may not be multiple megawatts and may not be hundreds of 

millions of dollars but it is very important to that community. I 

frankly find inspiring some of the things going on in Alaska. I was 

in King Cove not too long ago and they have a wonderful hydro facility that works great, saves the community a lot of money and 

saves the earth because it takes less hydrocarbon emission to deliver gas and fuels to the community. 

I think we have kind of pivoted, kind of turned a corner that I 

think will be good for Alaska. I think that is one of the reasons for 

the public/private partnerships. Private entities can make a big difference as well whenever you’re talking about community scale 

projects. 

Senator MURKOWSKI. Ms. LeBeau? 

Ms. LEBEAU. I will try to cover a couple things I think might be 

of particular interest to you, Senator, and a bit of an update. 

My office in the last three years has duly noted the issues and 

unique challenges in Alaska and how they could be better addressed by the Department of Energy. In keeping with that and 

also recognizing that almost half the tribes in the United States 

are in Alaska, I can say this year our budget reflects that. Almost 

half of our entire budget is dedicated to Alaska. 

I would also mention—I know this is of particular interest to 

you—we also have hired a full time person and he is now stationed 

in Anchorage. 

We are very, very committed to working with Alaska Native governments and communities. 

On the public/private partnership side, this is a dialogue in 

which we are keenly interested and I think it will be ongoing. I will 

note that one area of interest has been talking to the Alaska Native regional corporations, folks like Cook Inlet and others who 

24 

have invested in renewable energy projects. We are trying to get 

some lessons learned from them on what the motivations are, how 

those investments are doing and if those could be leveraged into 

Native communities throughout Alaska as well. 

We are very much focused on and providing a lot of technical assistance and funding towards trying to answer the questions of 

what is the best way to integrate renewables and microgrids and 

incorporate deployment of wind and diesel. I think that is one solution for a lot of Native communities. That is of particular interest 

and we are still learning some lessons on the best way to integrate 

those types of technologies in addition to microgrids. 

I think once we can answer that question as well as microgrid 

and renewable integration questions, it will help industry and others investing in those types of systems and with economies of scale, 

where we have more interest and settling on some technology solutions, and I think you will see the prices of those systems come 

down. 

Those are two areas I wanted to share with you today. 

Senator MURKOWSKI. I thank you. Know that I am very interested in how we might be able to make these public/private partnerships work. I know the tribes are hopeful as well. 

I will have some additional questions also for you, Director 

LeBeau, in terms of specifics on the budget for the START program 

in Alaska, how many villages you anticipate serving and all that. 

I will submit those for the record. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

I think there will probably be many additional questions because 

we are not going to have a second round of questioning for both of 

you. 

I want to thank you both for your testimony. I appreciate your 

being here today. 

I would also say it was four or five weeks ago, we had a hearing 

on several bills I had asked you, Kevin, and a lady by the name 

of Lillian Sparks Robinson, to give their concerns to us so we could 

get working on them. 

One of them was the bill of Senator Hoeven, the Children’s Safety, and the other one was Senator Murkowski’s job training bill. 

The other one was an IHS issue, and I say this because hopefully 

they are watching, because I wanted to get their concerns. We 

haven’t received them yet, so you need to kick whoever needs to be 

kicked to get us that information so we can get to working on that. 

It is critically important for Indian country as we move forward. 

That being said, thank you both for being here. I appreciate it. 

Now I would like to invite our second panel to come forward. The 

first panelist is the Honorable Carole Lankford—whom I know very 

well—the Vice Chair of the Confederated Salish and Kootenai 

Tribes of the Flathead Reservation in Montana. We appreciate your 

making the long haul out here, Carole. 

Then we have the Honorable Michael O. Finley, representing 

both the Colville Tribes of Washington and the National Congress 

of American Indians. It is always good to have you here, Michael. 

25 

Next, we have the Honorable Aletha Tom, Chairwoman of the 

Moapa Band of Paiute Indians of Nevada. It is very good to have 

you here, Aletha. 

Lastly, we will hear from the Honorable James ‘‘Mike’’ Olguin, 

Acting Chairman of the Southern Ute Indian Tribe. We met with 

Mike this morning. We look forward to your testimony. 

With that, the same rules apply as earlier. You have five minutes. Please keep it to five minutes so it gives us time for questions. Your entire written testimony will be made a part of the 

record. That is what is really important, so if you could hit the 

highlights, we would appreciate it. 

We will start with you, Carole. It is good to have you here. 

STATEMENT OF HON. CAROLE LANKFORD, VICE 

CHAIRWOMAN, CONFEDERATED SALISH AND KOOTENAI 

TRIBES 

Ms. LANKFORD. Thank you very much. 

Chairman Tester, Vice Chairman Barrasso and members of the 

Committee, my name is Carole Lankford and I am Vice Chair of 

the Tribal Council of Confederated Salish and Kootenai Tribes. 

This is an exciting time for CSKT as we prepare to purchase 

Kerr Dam, a nearly 200 megawatt hydroelectric facility located in 

the heart of the Flathead Reservation. We will soon become the 

first tribe in the country to fully own, operate and manage its own 

hydroelectric power facility. 

We are very proud of the role and are already one of the largest 

employers in western Montana and in helping our State’s economy. 

The acquisition of Kerr will be a big step in furthering our supportive role in the economy of our State. 

Owning and operating this dam will mean taking control of an 

important tribal resource that will produce clean energy as well as 

provide economic benefit to our people, our government and the 

local economy. 

Additionally, the tribes are currently utilizing a Federal grant to 

explore the feasibility of a biomass facility that can be built on the 

reservation. This has the potential of creating more renewable energy and jobs on the reservation. 

As CSKT prepares to become a major producer of clean and renewable power, we appreciate the opportunity to share our 

thoughts on S. 2132. We commend Senator Barrasso and the cosponsors of this bill for introducing this important legislation and 

for your dedication to assisting Indian tribes in the development of 

energy resources while helping to both generate jobs and growth on 

reservation economies. 

Our detailed statement provides information about some of our 

energy programs and goals and highlights provisions in S. 2132 we 

believe are of particular importance to CSKT. Our tribes support 

this legislation and are particularly pleased with Section 201, 

Issuance of Preliminary Permits or Licenses, which would give 

tribes the same preference for acquiring hydro licenses that States 

and municipalities have. 

We also are particularly supportive of Section 202 of the Tribal 

Biomass Demonstration Project which would provide funding for 

biomass demonstration projects on four reservations. Both of these 

26 

provisions could help CSKT as well as other tribes to further develop their economies and become more self sufficient. 

CSKT has always strongly supported the Federal Government’s 

initiatives towards promoting tribal self-governance. We see implementation of Tribal Energy Resource Agreements, TERAs, as consistent with these initiatives. 

In particular, CSKT supports allowing tribes to take over environmental review functions that are now vested in the United 

States pursuant to the National Environmental Policy Act. To the 

extent that any TERA provision supports tribal self-governance, we 

support it. 

We utilize the weatherization program on our reservation and 

have a good working relationship with the State in working with 

them on this program. We support the self-governance provision for 

weatherization in S. 2132, but it is unclear to us whether in the 

name of self-governance, we might unintentionally end up with less 

funding pursuant to S. 203 than we presently receive. 

CSKT strongly supports the proposed bill expanded process and 

consultation with Indian tribes which will improve tribal sovereignty and autonomy over some of the energy resources that form 

the pillar of tribal culture and governance. 

In particular, it is important to increase Federal technical assistance in the interest of Indian tribes. CSKT has a continued benefit 

from such assistance in more energy areas and is welcome and appropriate. 

Much of our comments focused on CSKT’s acquisition of Kerr 

Dam but it is emblematic of harnessing energy resources for electric production, generation, transmission and distribution. 

Beyond technical support, increasing tribal autonomy to increase 

and execute certain business agreements and rights-of-way moves 

in the right direction of promoting tribal governance and reducing 

bureaucratic impediments to governance. The combination of increasing capacity and thereby increasing self-governance is right 

and supported. 

Many tribal governments struggle to find energy activities and as 

such CSKT strongly supports the bill’s furthering financial assistance in lieu of Federal activities. This may promote tribal employment, self-governance and self-determination. 

Thank you for the opportunity to testify before the Committee. 

[The prepared statement of Ms. Lankford follows:] 

PREPARED STATEMENT OF HON. CAROLE LANKFORD, VICE CHAIRWOMAN, CONFEDERATED SALISH AND KOOTENAI TRIBES

Chairman Tester, Vice Chairman Barrasso and Members of the Committee: 

Thank you for the opportunity to testify on behalf of the Confederated Salish and 

Kootenai Tribes (‘‘CSKT’’ or ‘‘Tribes’’). CSKT has 8,000 members, the majority of 

whom live on the 1.3 million acre Flathead Reservation located in Western Montana—an area we have inhabited since time immemorial. 

This is an exciting time for CSKT as we prepare to purchase Kerr Dam, a nearly 

200 Megawatt hydroelectric facility that is located in the heart of the Flathead Reservation. Owning and operating this dam will mean taking control of an important 

tribal resource that will produce clean energy, as well as provide an economic benefit to our people, our government and the local economy. Additionally, the Tribes 

are currently utilizing a federal grant to explore the feasibility of a biomass facility 

that can be built on the reservation. This has the potential to create even more renewable energy and jobs on our Reservation. As CSKT prepares to become a major 

producer of clean and renewable power, we appreciate the opportunity to share our 

27 

thoughts on S. 2132. We commend Senator Barrasso and the co-sponsors of this bill 

for introducing this important legislation and for your dedication to assisting Indian 

tribes in the development of energy resources while helping to both generate jobs 

and grow reservation economies. 

Our testimony today will provide information about some of our energy programs 

and goals and will highlight provisions in S. 2132 we believe are of particular importance to CSKT. Our tribes support this legislation and are particularly pleased with 

Sec. 201, Issuance of Preliminary Permits or Licenses, which would give tribes the 

same preference for acquiring hydro licenses that states and municipalities have. 

Sec. 202, the Tribal Biomass Demonstration Project would provide funding for biomass demonstration projects on four reservations. Both of these provisions could 

help CSKT, as well as other tribes, to further develop their economies and become 

more self-sufficient. 

CSKT has always strongly supported the Federal Government’s initiatives toward 

promoting tribal self-governance. We see implementation of Tribal Energy Resource 

Agreements (TERAs) as consistent with these initiatives. In particular, CSKT supports allowing Tribes to take over environmental review functions that are now 

vested in the United States pursuant to the National Environmental Policy Act 

(NEPA). To the extent that any TERA provision supports Tribal Self Governance 

we support it. 

Given our active interest in various aspects of tribal energy development and 

management, we again support the reintroduction of the Indian Energy bill in this 

Congress. 

Background—Confederated Salish and Kootenai Tribes 

CSKT is composed of three confederated tribes, the Salish, the Pend O’reille, and 

the Kootenai. The Salish, Pend O’reille and Kootenai people have lived in the Flathead, Clark Fork, and Bitterroot River basins for thousands of years. CSKT formed 

a relationship with the United States by signing the Hellgate Treaty on July 16, 

1855, whereby the tribes gave up most of their territory in exchange for reserving 

a permanent homeland called the Flathead Indian Reservation. In our Treaty, we 

also retained a number of identified off-reservation rights in the lands and waters 

that we ceded to the United States; rights which have been repeatedly reaffirmed 

by the highest courts in the United States. 

CSKT’s utmost priority is to retain the sovereignty and the control over tribal resources that our ancestors preserved for us in the Hellgate Treaty. 

Background—Kerr Hydroelectric Project 

Kerr Dam, located in the center of the Flathead Reservation on the Flathead 

River, has had a mixed history in the eyes of our people but in recent decades has 

been a symbol for both tribal sovereignty and tribal control over tribal resources. 

The dam was built in the 1930s—with little to no input from the Tribes—and then 

operated by a private, non-Indian company during a low point of tribal sovereignty 

over its resources. Then, as Kerr Dam’s license was up for renewal in 1980, the 

leadership and vision of CSKT’s elected officials at that time led to a negotiated settlement that now puts CSKT in the position to acquire Kerr Dam—an action the 

tribes will take on September 5, 2015—and which will launch CSKT into a new era 

of control over our own resources, as well as being a producer of clean, renewable 

energy. 

CSKT is currently in the process of becoming the first tribe in the country to fully 

own, operate, and manage its own major hydropower facility. The Kerr Hydroelectric Project consists of: (1) a reservoir for storing water; (2) a dam for regulating 

the upstream reservoir level and downstream river flow; (3) three water intake 

structures called penstocks for directing water from the reservoir to the powerhouse; 

(4) a powerhouse for generating electricity; and (5) related shops, buildings, and 

roads. 

The Kerr Project can generate up to 188 megawatts of electricity at any one point 

in time. It is not always able to generate at its full capacity because the Flathead 

River flow is not usually high enough during the fall, winter, and early spring seasons. So, the Project operates at about 66 percent of its capacity in an average year. 

By acquiring the Kerr Project, CSKT will be restoring ownership and control over 

lands of the Flathead Indian Reservation, its treaty-reserved homeland. By assuming control over Kerr Dam, CSKT will be asserting management and control over 

Flathead Lake and the Flathead River, two critically important water resources of 

the Flathead Indian Reservation. And by selling the electricity generated at the 

Kerr Project, CSKT will receive more income than it gets from rental of the Project 

land, which will allow the tribe to better meet the needs of our people. 

28 

1http://energykeepersinc.com/wp-content/uploads/2014/03/Salish-v-PPL-MT-Final-Award77-198-0041-12-2-copy.pdf at p. 27. 

CSKT will have opportunities to develop businesses with the skill and ability to 

operate and maintain large energy generation facilities. The Tribes will have opportunities to develop businesses to sell electricity for a profit. We will create good-paying jobs in the local economy. CSKT will be developing a collection of financial and 

professional resources that should encourage development of other projects that 

might benefit CSKT in the future. 

Operating Kerr Dam will thus not only give CSKT control once again over the 

natural resources that the dam utilizes and affects, but it will also provide the tribe 

with much needed revenue to pay for and improve our tribal programs. We are already one of the largest employers in western Montana and are very proud of the 

role we play in creating jobs and helping the state’s economy. Taking ownership of 

Kerr Dam will assure we can continue helping our people, our region and our state’s 

economy. 

Background—Kerr Project License 

The Federal Energy Regulatory Commission (FERC) issued the first license for 

the Kerr Project for a 50-year term in 1930 to a company owned by the Montana 

Power Company (MPC). When the Project was due to be relicensed in 1980, CSKT 

competed with the MPC for the license. After five years of the FERC issuing oneyear licenses to MPC, CSKT and MPC came to a negotiated settlement and pursuant to that agreement the FERC issued a license jointly to CSKT and MPC in 1985. 

In the new license, MPC had the right to occupy and use the Project for the first 

30-years of the license term (1985–2015) and CSKT had the right to occupy and use 

the Project for the last 20-years of the license term (2015–2035). After operating the 

Project for 14 years, MPC transferred its interest in the license and sold its ownership interest in the Project to PPL Montana in 1999. In order to exercise its right 

to take over the Project, CSKT has to pay a conveyance price equal to $18,289,798. 1

Once it pays that amount, CSKT will become the sole licensee and will own and 

control the entire Project. We have been setting aside money every year since 1985 

in order to buy Kerr Dam. 

Background—Energy Keepers, Incorporated 

Energy Keepers, Incorporated (EKI) is a for-profit corporation wholly owned by 

the Confederated Salish and Kootenai Tribes. EKI was chartered by the United 

States Department of the Interior pursuant to Section 17 of the Indian Reorganization Act of 1934 (25 U.S.C. § 477). EKI’s primary purpose is to act on behalf of CSKT 

to acquire, construct, manage, operate, and maintain the Kerr Hydroelectric Project, 

and its related assets, so as to provide electricity, flood control, and environmental 

protection for regional needs and to make a profit from the sale of electrical energy 

products, consistent with the terms of the FERC license for the Project. EKI employs fifteen skilled staff members with expertise in business management, engineering, hydropower plant operations, accounting, hydrology, power marketing, 

human resources, and law. EKI has established its main office in Polson, Montana 

on the Flathead Reservation. 

Particular Provisions of S. 2132 Supported By CSKT: Section 201 and Section 202 

1. CSKT Supports Section 201 of Senate Bill 2132 Amending the Federal Power Act 

to Place Indian Tribes on the Same Footing as States and Municipalities Regarding Preliminary Permits for Original Hydropower Licenses 

The Confederated Salish and Kootenai reserved the Flathead Indian Reservation 

to themselves as a homeland by the terms of the Treaty of Hellgate (12 Stat. 975, 

July 16, 1855). The Flathead River is a central hydrologic feature of the Flathead 

Indian Reservation. There may be sites on the Flathead River within the boundaries 

of the Flathead Indian Reservation that become subject to exploration for establishment of hydropower generation facilities. Currently, Section 7(a) of the Federal 

Power Act (16 U.S.C. 800(a)) provides a preference to States and municipalities in 

the grant of permits for development of such potential sites. Providing this preference to any government other than CKST is inconsistent with the purpose and 

intent of Article II (i.e. homeland reservation clause) of the Treaty of Hellgate. Accordingly, in order for the United States to honor the terms of the Treaty, it is important that it correct this error in the law by amending Section 7(a) so that CSKT 

is not disadvantaged in protecting and/or developing hydropower generation sites on 

its own treaty-reserved homeland. 

29 

Providing CSKT with preference in hydro-licensing is important for a number of 

reasons. These reasons are briefly listed below. 

1. Respect/preserve Flathead Reservation as CSKT treaty-reserved homeland. 

a. Consolidate prospective FERC licensee interests in Flathead River with 

pre-existing CSKT land ownership rights. 

b. Affirm sovereignty. 

2. Facilitate/support/encourage CSKT self-governance by facilitating the internal development of CSKT Indian trust land by CSKT Indians. 

a. Avoid the destabilizing influence that a non-resident corporate licensee 

would likely bring to the Flathead Reservation economy (e.g. the Kerr Project 

history shows a continual repetitive pattern of litigation, bankruptcy, and corporate transition by the FERC licensee for the Kerr Project). 

b. Avoid the forced introduction of a State or municipal sovereign into the 

Flathead Reservation with concomitant potential for jurisdictional conflict 

over their regulatory and legal affairs. 

c. Respect and restore CSKT’s sovereign right to administer to the health, 

safety, and welfare of Flathead Reservation communities by providing CSKT 

preferential treatment regarding managerial control over critical electrical infrastructure and flood control assets located on the Flathead Reservation. 

3. Respect/preserve CSKT management control of Flathead Reservation treatyreserved natural resources. 

a. Control of Flathead River flows. 

b. Administration of mitigation activities implemented in response to environmental impacts caused by any newly-licensed FERC project. 

4. Provide CSKT with the opportunity to realize the economic benefit from sale 

of electrical output from any new project resulting in: 

a. Revenues from sale of electricity. 

b. Revenues from headwaters benefits. 

c. Revenues from providing ancillary power services. 

5. Provide much-needed employment opportunities for CSKT members emerging 

from the recession in a climate of high unemployment and poverty. 

a. Exploration, construction, operation and maintenance of any new project. 

b. Mitigation of the cultural and environmental impacts caused by project impacts. 

c. Administration and management of the FERC license and the electricity 

generated for sale at any new project. 

6. Provide entrepreneurial opportunities for CSKT-owned businesses and CSKT 

member-owned businesses, including: 

a. Energy Keepers, Incorporated 

b. Contractors and subcontractors for services. 

2. CSKT Supports Inclusion of Section 202 In Senate Bill 2132 for the Purpose of 

Providing for Establishment of Four Indian Tribal Biomass Demonstration 

Projects Each Year Pursuant to Forest Stewardship Agreements Between an Indian Tribe and The Secretaries of Agriculture or Interior 

The management of forest resources is a complex business involving climatology, 

silviculture, forestry, wildlife biology, hydrology, fisheries management, archeology, 

tribal cultural preservation, range science, weed management, and prescribed fire 

and fuel treatment. The management challenge is becoming more daunting because 

of economic depression in the timber industry, insect infestations that threaten forest health, and anticipated changes in climate. 

CSKT does not anticipate improvement in the economic conditions within the timber industry. Although CSKT Forestry has been able to sustain a base level of timber harvest in CSKT forests for the past ten years, that level is significantly reduced 

from harvest levels sustained throughout the forty-year period prior to that. Accordingly, Tribal people who earn their living planting, managing, harvesting, and processing forest products have endured a difficult economic period during the past decade. CSKT is searching for new types for forest products and new economic markets 

to sell those products into. 

CSKT forests, of course, continue to photosynthesize, grow and develop, sequestering carbon and producing woody biomass as a result. CSKT forests are producing 

more woody biomass than is being harvested. This excess productivity results in a 

30 

2Montana currently maintains a Tribal Energy Assistance eligibility referral directly to the 

CSKT Lands Department. http://www.dphhs.mt.gov/programsservices/energyassistance/ 

eligibilityoffices.shtml#tribal. 

significant accumulation of biomass in the forest that is unhealthy because it results 

in older less-diverse forest stands that decay over time and create opportunities for 

insect infestation. 

Our Reservation is located on the crown of the continent at the headwaters of the 

Flathead River Basin in Western Montana. It is beautiful mountainous country that 

is reliant on season changes in the rainfall, temperature, and sunlight to sustain 

a rich environment. Indications are that changes in climate will result in more variability in conditions from year-to-year and more intensity in individual weather 

events. Accordingly, it is likely that there will be periods of significantly increased 

temperature and reduced precipitation that might last for several years. Such conditions will add stress to the forest’s ecological community that will result in a concentration of diseased, dead and downed timber in steep mountainous terrain that 

will be combined with hot, dry and windy climatological conditions to cause dangerous wildfires. 

CSKT is not alone in its plight or its concern for revitalizing the forest products 

economy, enhancing forest health, and protecting against destructive wildfire. The 

boundaries of the Flathead Reservation adjoin federal lands under management authority of the Flathead and Lolo National Forests. We know that our neighboring 

forest products workers and federal land managers are also grappling with conditions similar to the ones we face. 

One way to address the economic, forest health, and wildfire conditions is to harvest forest biomass and burn it in a controlled environment that can capture the 

heat from burning and utilize it to generate electricity. CSKT is currently conducting an engineering feasibility assessment project regarding use of CSKT forest 

biomass products as a renewable energy resource for generation of electricity. In 

conducting our feasibility assessment, it has become apparent to us that securing 

a steady local fuel supply is a key factor for project success. We therefore, applaud 

the inclusion of Section 202 within S. 2132. This section authorizes and directs the 

Secretaries of Agriculture and Interior to enter into forest stewardship agreements 

with Indian tribes for performance of four demonstration projects each year. As 

CSKT proceeds with its biomass generation feasibility assessment project, we will 

need to identify local sources of biomass fuel in sufficient quantity to support longterm sustainable generation of electricity. The forested lands of the neighboring 

Flathead and Lolo National Forests would be excellent sources of such biomass. In 

the event our project shows that development of a project is in fact economically viable, then there is a high likelihood that CSKT would seek to secure such a demonstration project for a period of 20-years. CSKT strongly supports the concept of 

biomass demonstration projects and advocates for inclusion of Section 202 within S. 

2132. 

Section 203. Weatherization Assistance Program 

Section 203 of the bill would amend the Energy Conservation and Production Act 

of 1976 (42 U.S.C. § 6863(d)) to change the process through which tribes can seek 

direct funding from the Department of Energy’s Weatherization Assistance Program. Under the existing law these funds are allocated to states. 

The amendments to Sec. 203 would provide that Tribes can receive direct funding 

on behalf of their low income members if DOE makes a determination that ‘‘the lowincome members of an Indian tribe are not receiving benefits under this part that 

are equivalent to the assistance provided to other low-income persons in such 

State’’. Section 203 would allow a Tribal organization serving low-income Tribal 

members to apply to DOE for a direct grant, and DOE would only have to determine 

that the services to be provided through the tribe would be equal to or better than 

services through the state. 

Montana Weatherization Program 

The State of Montana, through the Montana Department of Public Health and 

Human Services, offers a Weatherization Program that helps participants to improve the heating efficiency of their homes and thus reduce their energy consumption. 2

CSKT currently has a sub-contractor relationship with the State whereby the 

Tribes administer the state’s weatherization assistance program for Tribal members. 

The State takes a small percentage of overall available funds for contract management but it is possible that this amount is less than it would cost CSKT to deal 

with federal funders. The program with the State has been working well. 

31 

3For example, if low income Tribal members apply for weatherization funds at a greater rate 

than similar low income non-tribal members, then as a whole the tribal members could be getting more weatherization funds under the current rubric than would happen under Section 203’s 

amendments. Therefore—it is possible that because of state income and application requirements Tribal members are getting more than their proportional share of funds, in which case 

the amount of dollars for Tribal members would decrease under the amendments. The opposite 

could also be true. 

Discussion 

Section 203 amendments would allow CSKT to seek direct allocation funding for 

the proportional amount of Tribal low income dollars that go to the State. It is unknown just how much this amount would be or how this could change the current 

funding rubric. It is possible that dollars would increase or decrease under a Tribal 

program pursuant to Section 203. 3

CSKT is exercising (somewhat limited) self-governance by administering funds 

that come through the State, but the degree of self-governance could arguably be 

greater if CSKT received funding directly from the Department of Energy. The distinction warrants discussion and clarification. 

1. Section 203’s amendments could enhance self-governance but would not 

greatly change the current weatherization program whereby CSKT directly 

services its members. It is also possible that these funds could be ‘‘leveraged’’ 

to apply for or match other funding sources (although this is wholly speculative). 

2. The financial uncertainties described above make it difficult to conclude 

whether Section 203’s amendments would yield greater or lesser dollars for 

weatherization programs for CSKT Tribal members. 

3. Section 203 allows for Tribal exercise of weatherization dollars only if there 

is a net financial benefit to Tribal members. This is good from a financial 

perspective but not as good from a self-governance angle. The program 

should be made available to Tribes independent of any financial analysis— 

allowing Tribes to exercise greater self-governance as a priority. 

4. We are somewhat conflicted by Section 203 and would like to discuss this 

more with Committee staff. As one of the original 10 Self Governance Tribes 

we are big supporters of Self Governance but we certainly don’t want to receive less weatherization money than we are now receiving from the state. 

Changes in the bill to clarify this point may be in order. 

Conclusion 

CSKT strongly supports the proposed bill’s expanded processes and consultations 

with Indian Tribes—which will improve tribal sovereignty and autonomy over some 

of the energy resources that form a pillar of tribal culture and governance. In particular it is important to increase federal technical assistance to interested Indian 

tribes. CSKT has and continues to benefit from such assistance—and more and in 

more energy-areas is welcome and appropriate. Much of our comments have focused 

on CSKT’s acquisition of the Kerr Dam but it is emblematic of harnessing energy 

resources for electric production, generation, transmission, and distribution on—and 

off of—tribal lands. 

Beyond technical support, increasing tribal autonomy to create and execute certain business agreements and rights-of-way moves in the right direction of promoting tribal governance and reducing bureaucratic impediments to governance. 

The combination of increasing capacity and thereby increasing self-governance is 

right and supported. Many tribal governments struggle to fund energy activities and 

as such CSKT strongly supports the Bill’s furthering financial assistance in lieu of 

federal activities. This may promote tribal employment, self-governance, and self-determination. 

As the history of Kerr Dam’s construction and—finally—the return of its land and 

resources to CSKT underscores, the bill’s provisions for certification of tribal energy 

development entities will greatly enhance tribal governance and our ability to effectuate our visions for the future. We have created energy entities to develop tribal 

energy resources—and they should be appropriately recognized and supported by 

the Federal Government. 

Thank you for the opportunity to testify before the Committee today. This bill and 

other Congressional efforts to empower tribes to develop and manage their energy 

resources are important to us and other tribes. Your support for tribal self-determination and tribal sovereignty is greatly appreciated. Indian energy development 

is a key component of our ability to control our destiny and provide for our people. 

32 

We look forward to working further with Congress to figure out how CSKT and 

other tribes can further maximize our energy potential, and we invite future discussions on how to create win-win scenarios for both the tribes and the Federal Government. 

The CHAIRMAN. Thank you, Carole. 

Next we have Michael Finley representing NCAI and the Colville 

Tribes of Washington. Welcome, Michael. You may proceed. 

STATEMENT OF HON. MICHAEL O. FINLEY, CHAIRMAN, 

CONFEDERATED TRIBES OF THE COLVILLE INDIAN 

RESERVATIONS; FIRST VICE PRESIDENT, NATIONAL 

CONGRESS OF AMERICAN INDIANS 

Mr. FINLEY. Thank you, Mr. Chairman. It is an honor to be able 

to provide testimony before the Committee today. 

I want to acknowledge Vice Chairman Barrasso. 

I serve as Chairman to the Confederated Tribes of the Colville 

Reservation in northeast Washington State and as First Vice President of the National Congress of American Indians. I provide testimony on behalf of both today. 

I want to go back four or five years or even longer to where 

tribes talked about these changes and worked with this Committee 

on a number of occasions, having hearings on trying to get these 

very provisions done. I acknowledge Vice Chairman Barrasso for 

leading the charge on that a number of years ago. 

NCAI passed a resolution with overwhelming numbers not three 

weeks after that bill was introduced back in 2011. Tribes have been 

working heavily no these provisions and lobbying various congressional offices to try to get this pushed forward. 

I want to acknowledge at the outset we do appreciate this Committee’s work on this. It is something really important to us. It 

strikes the very chord of what economic development is in Indian 

country and using our natural resources. 

As stated a number of times, we do have issues with the TERA 

because no tribes have entered any. We continue to have problems 

with what those provisions mean and whether or not that makes 

the best sense for tribes. Because no tribes have entered into it, we 

are looking at different scenarios within the provisions of this bill 

as introduced to try to circumvent some of those problems. 

Some are here at the administration level. We do need to submit 

those plans as tribes but we do need to have back and forth dialogue with the Federal Government in a timely manner on when 

those will be approved and implemented and used to the benefit of 

the tribes. That is why within there we have the provision about 

270 days if you don’t answer, we want them to be automatically approved. 

There are a number of other provisions under the TERA we feel 

would be beneficial to tribes and some of the cost savings that the 

Secretary would have the authority to delegate those monies or always be spent on those TERAs to the tribes for the benefit of those 

projects outlined within those agreements. 

I wanted to touch a bit on more flexibility that we need within 

the appraisal processes of getting some of these leases approved 

that we’d like to have implemented within this legislation that 

would streamline a lot of things for tribes. There are a number of 

33 

tribes that have difficulties getting from point A to point B. I know 

some of the oil and gas tribes who have given testimony in the 

past, and Senator Heitkamp alluded to it, that there are a lot of 

steps they have to go through. 

I think a lot of the things that we have as problems aren’t just 

within the Energy Policy Act of 2005, there a number of others outlined within my written testimony provided a number of days ago. 

There is another provision that the Colville Indian Tribes are 

particularly interested in, the biomass demonstration projects. This 

would be a slight amendment to the Tribal Force Protection Act 

that would allow tribes greater flexibility to enter agreements with 

the U.S. Forest Service for contiguous U.S. Forest Service properties so those forests can be taken care of better by the tribes in 

their integrated resource management plans. 

A number of tribes have integrated resource management plans. 

We believe we are the national model. We take care of our forests 

and natural resources and in particular, our cultural resources and 

we do that process better than anyone. Our forests directly reflect 

the model of that. 

I think some of the provisions being introduced would allow us 

to expand that model into the areas of the U.S. Forest Service, create jobs in the economically depressed areas on my reservation 

which is Kevary County, the poorest county in the State of Washington. It would also provide opportunity for tribes in Alaska to 

enter similar agreements also outlined in that provision of the bill 

introduced today. 

There are a number of others in my written testimony but I will 

stop there. I appreciate the time, Mr. Chairman. I will stand for 

questions. 

Thank you. 

[The prepared statement of Mr. Finley follows:] 

PREPARED STATEMENT OF HON. MICHAEL O. FINLEY, CHAIRMAN, CONFEDERATED

TRIBES OF THE COLVILLE INDIAN RESERVATION; FIRST VICE-PRESIDENT, NATIONAL

CONGRESS OF AMERICAN INDIANS

Good afternoon Chairman Tester, Vice Chairman Barrasso, and members of the 

Committee. My name is Michael Finley and I am testifying today in my capacities 

as Chairman of the Confederated Tribes of the Colville Reservation (‘‘CCT’’ or the 

‘‘Colville Tribes’’) and First Vice President of the National Congress of American Indians. I appreciate the opportunity to testify today on S. 2132, the ‘‘Indian Tribal 

Energy Development and Self-Determination Act Amendments of 2014.’’ 

Both the CCT and NCAI strongly support S. 2132. Although not completely identical, all of the provisions in S. 2132 were included in Vice-Chairman Barrasso’s Indian energy bill (S. 1684) that this Committee approved by voice vote and reported 

in the 112th Congress. The full membership of NCAI, in its 2011 annual meeting 

in Portland, Oregon, adopted a formal resolution supporting S. 1684 less than three 

weeks after the bill was introduced. I think that speaks volumes about how NCAI 

and Indian Country feel about Senator Barrasso’s Indian energy bill and the extensive tribal consultation and outreach that preceded its introduction. 

The CCT is particularly supportive of Section 202, which would authorize a Tribal 

Biomass Demonstration Project. Not only would this provision encourage biomass 

utilization, it would also allow tribes to perform forest health projects and on neighboring federal forest and rangelands. With wildfire season rapidly approaching, this 

type of authority would provide the Colville Tribes and similarly situated tribes 

with immediate benefits if it were currently in effect. 

Because S. 2132 contains provisions that the Committee has previously approved 

and that would provide Indian country with immediate benefits, we ask that the 

Committee avoid making significant changes to S. 2132 that would delay or prevent 

its consideration and passage this year. 

34 

Background on the Colville Tribes and NCAI 

Although now considered a single Indian tribe, the Confederated Tribes of the 

Colville Reservation is a confederation of twelve aboriginal tribes and bands from 

all across eastern Washington State. The present day Colville Reservation is located 

in north-central Washington State and was established by Executive Order in 1872. 

The Colville Reservation covers approximately 1.4 million acres and its boundaries 

include parts of Okanogan and Ferry counties. The CCT has more than 9,400 enrolled members, making it one of the largest Indian tribes in the Pacific Northwest, 

and the second largest in the state of Washington. About half of the CCT’s members 

live on or near the Colville Reservation. Of the 1.4 million acres that comprise the 

Colville Reservation, 922,240 acres are forested land. 

The Colville Reservation originally consisted of nearly three million acres and included all of the area north of the present day Reservation bounded by the Columbia and Okanogan Rivers. This 1.5 million acre area, referred to as the ‘‘North 

Half,’’ was opened to the public domain in 1891 in exchange for reserved hunting 

and fishing rights to the CCT and its members. Most of the Colville National Forest 

and significant portions of the Okanogan National Forest are located within the 

North Half. Both forests are contiguous to the northern boundary of the Colville 

Reservation. 

NCAI is the oldest and largest American Indian organization in the United 

States. Tribal leaders created NCAI in 1944 as a response to federal termination 

and assimilation policies that threatened the existence of American Indian and 

Alaska Native tribes. Since then, NCAI has fought to preserve the treaty rights and 

sovereign status of tribal governments, while also ensuring that Native people may 

fully participate in the political system. As the most representative organization of 

American Indian tribes, NCAI serves the broad interests of tribal governments 

across the nation. 

Overview of S. 2132 

As noted above, all of the provisions included in S. 2132 were considered and favorably reported by this Committee in the 112th Congress. These provisions are discussed in detail in Senate Report No. 112–263. As such, the bill includes the following important proposals. 

First, as background, it takes an inordinate amount of time for the Department 

of the Interior to review and approve permits to drill, exploration and production 

agreements, rights of ways, and to approve other related energy agreements. Potential partners and development capital sit on the sidelines because it takes years to 

get anything approved by the Department. Indian Country needs an institutionalized answer to the ongoing challenge of burdensome bureaucratic processes and 

delay of tribal energy leasing and permitting. 

Title I of S. 2132 would provide increased technical assistance to tribes, increase 

access to existing energy grant and loan guarantee programs, and streamline the 

process for Indian tribes to enter into Tribal Energy Resource Agreements or 

‘‘TERAs.’’ 

With regard to TERAs, the bill would make many significant improvements to the 

TERA process under the Energy Policy Act of 2005. I will highlight just a few here. 

First, instead of having the BIA approve or disapprove a proposed TERA, under 

S. 2132 a proposed TERA would automatically go into effect after 270 days unless 

the BIA determines that there is a reason to disapprove the TERA. This is important because tribes cannot rely on the Federal Government to take action in a timely way. 

The bill also includes a funding mechanism for tribes in carrying out a TERA. 

Some tribes have expressed concerns about the costs of implementing a TERA and 

would want to have financial support for taking on the additional activities. In a 

section called ‘‘Financial Assistance in Lieu of Activities by the Secretary,’’ S. 2132 

would create a process for the Secretary of the Interior (‘‘Secretary’’) to calculate the 

savings to the Department resulting from a tribe entering into a TERA and direct 

the Secretary to make that savings available to the tribe. This would provide funding to the tribe without impacting the Federal budget. 

S. 2132 would also clarify the liability clause of the 2005 Act. The bill would make 

it clear that the exemption from liability only applies to losses stemming from matters negotiated by the tribe itself; it does not extend to matters that are in the Secretary’s control or for losses occasioned by the Department’s failure to perform its 

obligations. 

Title II contains several miscellaneous provisions that would enhance the ability 

of Indian tribes to develop both renewable and traditional energy resources. Section 

201 would amend the Federal Power Act to authorize the Federal Energy Regulatory 

Commission to give Indian tribes the same preference that states and municipalities 

35 

can receive when that Commission issues preliminary permits or original licenses 

for hydroelectric projects. 

Section 203 would amend the home weatherization program under the Energy 

Conservation and Production Act to make it easier for Indian tribes to request and 

obtain direct funding from the Secretary of Energy. These changes are critical in 

that they would bring Indian tribes into closer parity with states in being able to 

access these weatherization funds. 

Section 204 would provide new flexibility for tribes to obtain appraisals of tribal 

mineral or energy resources by allowing tribes or certified, contract appraisers to 

prepare appraisals and imposing timeframes for Secretarial review and approval of 

the appraisals. Indian tribes have long complained of delays in obtaining appraisals 

for their trust resources, particularly for time sensitive transactions with potential 

economic development benefits. These changes would provide a measure of certainty 

that the Secretary will approve appraisals of energy resources in a timely manner. 

Section 205 would amend the Long-Term Leasing Act to allow the Navajo Nation 

to enter into leases for the exploration, development, or extraction of any mineral 

resources without the approval of the Secretary, if the lease is executed under tribal 

regulations, approved by the Secretary and meets certain other requirements. 

The CCT is Particularly Supportive of the Tribal Biomass Demonstration 

Project in Section 202 

Section 202 would add a new section to the Tribal Forest Protection Act of 2004 

that would require the Secretary of Agriculture (in the case of Forest Service land) 

and the Secretary of the Interior (in the case of Bureau of Land Management land) 

to enter into a collective total of at least four new contracts or agreements with 

tribes to promote biomass, biofuel, heat, or electricity generation each year of the 

five-year authorization. Section 202(c) would also authorize for Alaska Native Corporations one biomass demonstration project per year for FY 2015 through 2019. 

Renewable energy development such as biomass has been of particular interest 

to the Colville Tribes as it seeks new ways to promote on-reservation economic development and diversify its economy. Although Section 202 requires the Secretaries 

to enter into a minimum number of contracts, the Secretaries would be responsible 

for jointly developing the eligibility requirements. In evaluating applications, the respective Secretaries must consider a variety of factors, including whether a project 

would improve the forest health or watersheds on the federal land and whether a 

project would enhance the economic development of the Indian tribe and the surrounding community. 

As the Committee is aware, many federal lands that are adjacent to tribal lands 

are in need of thinning, hazardous fuels reduction, and restoration activities to reduce the risk of catastrophic wildland fires, disease, and insect infestations. These 

risks are particularly severe in dry forested areas like the Colville Reservation, the 

southwestern United States, and other areas that do not receive significant rainfall. 

Indian tribes like the CCT are uniquely situated to carry out these activities because they have a vested interest in ensuring that neighboring federal lands do not 

pose fire or disease threats that will encroach on our tribal lands and threaten our 

communities. 

Section 202 also allows for tribal management land practices to apply to areas included in contracts or agreements entered into under demonstration projects. This 

would allow, for example, Indian tribes to incorporate cultural resource considerations into activities conducted on federal lands included in demonstration projects. 

Many have praised tribal land management practices as being far more efficient 

than those of their federal counterparts. Federal agencies, however, have been slow 

to incorporate these principles even on those federal lands that are contiguous to 

tribal trust lands. Section 202 would provide tribes with this much needed opportunity. 

Conclusion 

The CCT and NCAI believe that S. 2132 will provide tribes with immediate benefits by removing structural barriers to energy development on tribal lands. We appreciate the Committee’s consideration of these issues and look forward to working 

with the Committee to ensure passage of S. 2132. At this time I would be happy 

to answer any questions you may have. 

The CHAIRMAN. Michael, thank you for your testimony. I very 

much appreciate it. 

Next, we have the Chairwoman of the Paiute Indians of Nevada, 

Aletha Tom. Aletha, you may proceed. 

36 

STATEMENT OF HON. ALETHA TOM, CHAIRWOMAN, MOAPA 

BAND OF PAIUTES TRIBE 

Ms. TOM. Thank you, Mr. Chairman and members of the Committee. 

I am Aletha Tom, Chairwoman of the Moapa Band of Paiutes 

Tribe. 

My purpose in testifying today is to provide our story on energy 

development utilizing one of the most abundant natural resources, 

solar energy. 

Significant land holdings are important in developing solar energy. The Moapa Band of Paiutes has lived in southern Nevada 

since time immemorial. In 1874, the Moapa Band of Paiutes Reservation encompassed 2.2 million acres which stretched to the Colorado River in the south and Las Vegas to the east. However, subsequent government action reduced our land holdings to 1,000 acres. 

In 1980, we got back a portion of our ancestral land pursuant to 

P.L. 96–491 which restored 70,500 acres of land. Upon our land 

being returned, the Moapa Band of Paiutes have engaged in significant economic development opportunities by working with industry 

leading partners to establish large, commercial solar voltaic power. 

The Moapa River Indian Reservation’s location is unique to other 

parts of Indian country because we have an energy corridor going 

through our reservation that contains power lines and gas lines. 

Additionally, adjacent to our reservation sits two power substations 

that have capacity to transport the renewable power produced by 

our solar plant. Hence, we are fortunate to be in this prime development location. 

Currently, the Moapa Band of Paiutes has three projects that 

will supply over 500 megawatts of renewable energy and we are 

also considering a fourth project that could bring in another 100 

megawatts of clean renewable energy. This means we have the potential for 600 megawatts of clean energy that will not add any 

greenhouse gases to the atmosphere. 

Furthermore, we have talked with potential partners who are interested in building even more solar power on our lands. 

Government must act as a facilitator to produce more renewable 

energy. Currently, the Federal Government has made renewable 

energy investment very attractive by providing an investment tax 

credit for renewable energy that will end in 2016. This tax credit 

provides incentives for companies who invest to receive 30 percent 

tax breaks for a renewable energy investment and significant depreciation tax. 

We want to see the Solar Investment Tax Credit extended to provide additional tax incentives for business to invest in Indian country. Of course, we want Indian country to benefit as energy producers, however, very few tribes would have the multi-millions or 

billions to invest in such large scale projects. 

If there was other government spending to invest so that tribes 

could capitalize more on the renewable energy market as energy 

producers, it would be the most favorable option. 

Tribes who want to engage in solar energy must be aware of the 

substantial transaction cost in developing these projects. Developers can facilitate the projects by assisting with biological and environmental compliance requirements by supplementing the experVerDate Mar 15 2010 10:35 Jul 25, 2014 Jkt 088821 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 S:\DOCS\88821.TXT JACK
37 

tise with the Federal agencies in charge of overseeing these regulations. 

Substantial costs can also be attributed to regulatory compliance. 

Tribes must be prepared to absorb these known and unknown 

costs. 

Tribes interested in renewable energy assistance should work 

with the Department of Energy, Office of Indian Energy who will 

provide integral technical assistance to better understand how tribal projects fit into the renewable energy market. 

Tribes can utilize the government-to-government relationship to 

push for legislation and administrative action that will facilitate renewable energy investment on Indian land. Senator Harry Reid 

has been a leader on this issue in Nevada and attended the 

groundbreaking for the first utility scale solar project on tribal 

lands. 

As the energy industry changes so do relationships. Nevada 

Power is now owned by Nevada Energy, which is owned by Warren 

Buffett. We have worked with the new Nevada Energy president, 

Paul Caudill and we hope to work positively to develop new renewable energy projects with the company. 

In conclusion, we have outlined that renewable solar energy 

projects can be accomplished with participation of Federal and 

State governments. We endorse government going down this green 

road and supporting policies that promote substituting greenhouse 

gases for clean energy. 

We appreciate the Senate Committee on Indian Affairs for holding this worthwhile hearing and listening to the input from the 

Moapa Band of Paiute Tribes. 

Thank you. 

[The prepared statement of Ms. Tom follows:] 

PREPARED STATEMENT OF HON. ALETHA TOM, CHAIRWOMAN, MOAPA BAND OF

PAIUTES TRIBE

Mr. Chairman and Members of the Committee, 

Good afternoon. I am Aletha Tom, Tribal Chairwoman of the Moapa Band of Paiutes. My purpose in testifying today is to provide our story on Energy Development 

utilizing one of the most abundant natural resources; solar energy. 

Significant land holdings are important in developing solar energy. Since time immemorial, the Southern Paiutes, the Nuwu, have occupied the Southern Great 

Basin, including Southern California, Southern Nevada, Northern Arizona, and 

Southern Utah. The Moapa Band of Paiutes is one of several bands, which make 

up the entire Southern Paiute Tribe of Nuwu. In 1874, the Moapa Band of Paiutes 

Reservation encompassed 2.2 million acres which stretched to the Colorado River in 

the South and Las Vegas to the east. However, subsequent government action reduced our land holdings to 1000 acres. In 1980 we got back a portion of our ancestral land pursuant to P.L 96–491 which restored 70,500 acres of land. Upon our returned land, the Moapa Band of Paiutes have engaged in significant economic development opportunities by working with industry leading partners to establish large, 

commercial solar voltaic arrays. 

The Moapa River Indian Reservation’s location is unique to other parts of Indian 

Country because we have an energy corridor going through our Reservation that 

contains electronic power lines and gas lines. Additionally, adjacent to our reservation sits two power substations that have capacity to transport the renewable power 

produced by our solar plant. Hence, we are fortunate to be in this prime development location. 

Currently, the Moapa Band of Paiutes, has three projects that will supply over 

500 Megawatts of Renewable Energy and we are also considering a forth project 

that could bring in another 100 megawatts of clean renewable energy. This means 

we have the potential for 600 megawatts of clean energy that will not add any 

38 

green-house gases into the atmosphere. Furthermore, we have talked with potential 

partners who are interested in building even more solar voltaic systems on our land. 

Government must act as a facilitator to produce more renewable energy. Currently the Federal Government has made renewable energy investment very attractive by providing an investment tax credit for renewable energy that will end in 

2016. This tax credit provides incentives for companies who invest to receive thirty 

percent tax break for renewable energy investment and significant deprecation tax. 

We want to see the Solar Investment Tax Credit (ITC) extended to provide additional tax incentives for business to invest in Indian Country. Of course, we want 

Indian Country to benefit as energy producers, however, very few tribes would have 

the multi-millions or billions to invest in such large scale projects, but if there was 

other government spending to invest so that Tribes could capitalize more on the renewable energy market as energy producers it would be the most favorable option. 

Business entities who rent tribal land should not be afraid to comply with the 

substance of our Tribal Employment Rights Ordinance (TERO). TERO requires Indian Preference in employment, subcontracting, and business opportunities on the 

reservation. Complying with TERO is not burdensome because it puts the onus on 

the tribes TERO officer to provide lists of employable natives and potential training 

for employment opportunities. Once the tenant company engages the TERO officer 

and provides a request for assistance the TERO officer has the burden to produce 

lists of qualified individuals for the tenant company. The tenant company can go 

beyond entry level and skilled positions it provides additional capabilities for Tribal 

members to move up to executive positions within the tenants company. Complying 

with TERO is a vital component to the success of these projects. It provides immediate access to workforce, it provides opportunities to strengthen the workforce, and 

strengthens the socioeconomic status of the tribe and its community. 

Tribes who want to engage in solar energy must be aware of the substantial 

transaction cost in developing these projects. Developers can facilitate the projects 

by assisting with biological and environmental compliance requirements by 

supplementing the expertise with the federal agencies in charge of overseeing these 

regulations. Substantial costs can also be attributed to legal analysis and reviewing 

each stage of regulatory compliance. Tribes must be prepared to absorb these known 

and unknown costs. 

If the Tribe has the financing to complete a renewable energy project then this 

is the optimum route to develop a project. However, in the beginning of a project, 

do not be surprised to work with a development team, skilled in obtaining energy 

contracts called Purchase Power Agreements with major utilities, based upon sound 

resource data. Investors will then be interested in funding these projects for the 

Solar Investment Tax Credit. 

Tribes that are interested in renewable energy assistance should work with the 

Department of Energy, Office of Indian Energy who will provide an integral technical assistance to better understand how Tribal projects fit into the renewable energy market. 

Tribes can utilize the government to government relationship to push for legislation and administrative actions that will facilitate renewable energy investment on 

Indian land. Senator Harry Reid has been a leader on this issue in Nevada and attended the groundbreaking for the first utility scale solar project on tribal lands. 

Limited waivers of certain Tribal Laws are inevitable. Tribes need to work diligently to protect their sovereignty but be aware that the investors also want to limit 

their financial risk as they invest multi-millions and billions of dollars in these 

projects. Investors also want longer term deals which have been facilitated by your 

committee who recently passed the HEARTH act that allows for longer term ground 

leases. 

Do not back down from fighting for your rights. At the same time that the Tribe 

was beginning to venture into renewable energy, the Tribe sued the old Nevada 

Power to close down their power plant located adjacent to the Reservation. The 

Tribe and the Sierra Club sued to shut down the Reid Gardner Power plant, which 

lies adjacent to our reservation and tribal citizens homes, because the pollution coming from the plant was detrimental to the health of our Tribal members. One result 

of the lawsuit and other political pressure contributed to the recent Nevada State 

legislation, SB 123, which directed Reid Gardner to close its 1, 2 and 3 stacks by 

the end of this year and the large stack by 2017. 

As the Energy Industry changes so do relationships. Nevada Power is now owned 

by Nevada Energy, a subsidiary of Mid American Holding Company, which is owned 

by Warren Buffett. We have worked with the new Nevada Energy President, Paul 

Caudill and we hope to work positively to develop new renewable energy projects 

with the company. 

39 

In conclusion, we have outlined that renewable solar energy projects can be accomplished with participation of Federal and State Governments. We endorse government going down this green road and supporting policies that promote substituting green-house gases for clean energy. 

We appreciate the Senate Committee on Indian Affairs for holding this worthwhile hearing and listening to input from the Moapa Band of Paiutes. Thank you. 

The CHAIRMAN. Thank you, Aletha. We appreciate your input. 

Next, we will hear from Acting Chair of the Southern Ute Indian 

Tribe, Mike Olguin. Mike, you’re up. 

STATEMENT OF HON. JAMES ‘‘MIKE’’ OLGUIN, ACTING 

CHAIRMAN, SOUTHERN UTE INDIAN TRIBAL COUNCIL 

Mr. OLGUIN. Good afternoon, Chairman Tester, Ranking Member 

Barrasso and members of the Committee. 

I am Mike Olguin, Acting Chairman of the Southern Ute Indian 

Tribe. I am honored to appear before you today on behalf of my 

tribe and tribal council to provide testimony on S. 2132, the Indian 

Tribal Energy Development and Self Determination Act amendments of 2014. 

We fully support S. 2132 because it is another step towards 

maximizing tribal oversight and management of our own resources 

and minimizing Federal Government’s role in these decisions. 

Over the years, this Committee has worked on a number of legislative proposals to help us with our primary and ongoing concerns, 

the delays and impediments to tribal energy development caused 

by Federal bureaucracy. 

With the price of natural gas at one-third of what it was only six 

years ago, you can easily understand the impact that multiyear 

delays in the approval of rights-of-way and other energy related 

transactions had and continues to have on our tribal economy. 

In my written statement, I describe the results of a 2009 review 

conducted by our own tribal energy department of projects then 

awaiting approval from the Bureau of Indian Affairs. At the time, 

over 100 rights-of-way and permits were pending before the BIA 

and over half of those had been pending since 2007 or before. These 

delays cost the tribe more than $90 million in direct revenue and 

because the price of gas dropped during that time, much more in 

lost opportunity costs. 

Because we are the largest employer in our region, these impacts 

are felt in the non-tribal community as well. Despite our concerted 

efforts to solve this ongoing problem, these bureaucratic delays and 

their financial impacts continue. We continue to believe the best 

way to minimize or eliminate these delays and their corresponding 

negative impacts is to support and enhance tribal decision-making 

and respect tribal authority and reduce the Federal role on our own 

lands. 

We have been working on various ways to do that for many 

years. For more than a decade, we have worked with this Committee on specifics. In 2002, our legal counsel wrote to your legal 

counsel about a possible approach that would allow tribes to elect 

to escape the Federal bureaucracy for mineral development purposes provided the Secretary has a reasonable indication that an 

electing tribe will act prudently once cut free. 

40 

This proposal ultimately came to fruition in the Indian Tribal 

Energy Development and Self-Determination Act of 2005. That law 

gave tribes authority to manage their own energy development 

transactions without Federal oversight provided the Secretary of 

Interior was satisfied the tribe had the capacity to do so. 

As a pre-condition, the law required a tribe and the Secretary of 

Interior to first establish a master agreement or a TERA. We continue to believe that TERA provided an important avenue for tribes 

to assert greater authority over their own energy development. Unfortunately, no tribe has yet entered a TERA to take advantage of 

that promise. 

Each tribe likely has its own reason for not pursuing a TERA but 

we believe many concerns revolve around, one, the lack of Federal 

funding for tribes to assume additional duties under a TERA; two, 

the lack of clarity regarding what inherently Federal functions 

would be retained by the Federal Government after entering a 

TERA; three, public input requirements for tribal processes; and 

four, the extensive capacity demonstrations required before a 

TERA could be approved. 

My written statement contains a detailed review of these complex provisions but I would like to summarize a few of the most 

important changes S. 2132 would make. 

First, the legislation would expand the ability of tribes to demonstrate sufficient capacity to enter a TERA by including successful 

performance of other Federal 638 contracts on a basis for such 

demonstrations. These amendments would provide a clear standard 

we could easily meet. 

Second, S. 2132 would broaden the types of activities that could 

be included in the TERAs. For example, the bill includes addition 

of transactions related to renewable energy facilities and clarifies 

that TERAs may extend to pooling and communitization agreements affecting Indian energy minerals. 

Third, the bill would allow for cost sharing between the Secretary and a TERA tribe where the tribe’s TERA activities have resulted in cost savings to the Secretary. 

Last, the bill would require that if the Secretary does not act 

upon a proposed TERA in 270 days, the TERA becomes effective on 

the 271st day. 

Taken together, these amendments would improve the chances 

that other tribes would enter TERAs. In addition, the bill would include amendments to support tribal biomass projects and allow 

tribes to conduct their own appraisals when such appraisals are required for project approval by the Federal Government. 

As detailed in my written statement, we strongly support these 

appraisal provisions and would further streamline BIA’s review of 

many of the realty related transactions. 

With that, I am available for any questions. 

[The prepared statement of Mr. Olguin follows:] 

PREPARED STATEMENT OF HON. JAMES ‘‘MIKE’’ OLGUIN, ACTING CHAIRMAN, 

SOUTHERN UTE INDIAN TRIBAL COUNCIL

I. Introduction 

Chairman Tester, Vice Chairman Barrasso and distinguished members of the 

Committee, my name is Mike Olguin and I am the Acting Chairman of the Southern 

41 

Ute Indian Tribal Council. It is my great honor to appear before you today on behalf 

of the Southern Ute Indian Tribe in support of the ‘‘Indian Tribal Energy Development and Self Determination Act Amendments of 2014,’’ (S. 2132). 

Although this legislation was introduced just last month, we have been working 

closely with this Committee for years in an effort to obtain legislation further empowering Indian tribes to address energy needs and energy development opportunities. We were active participants in field hearings and legislative discussions that 

led former Chairman Dorgan to introduce S. 3752 in the summer of 2010. While 

that legislation did not become law, it served as a key building block for S. 1684, 

which was introduced in late 2009 and for S. 2132, which is before you today and 

is substantially similar to that earlier bill. 

In recent years, tribal leader after tribal leader has come before you to express 

concerns about the dire economic conditions in Indian Country, and to call for statutory, regulatory and policy changes to improve access to energy and for economic 

development for their constituents. Today, we hope that members of the Committee 

will collectively determine that the needs of Indian Country merit passage of S. 

2132. 

II. The Southern Ute Indian Tribe’s Experience in Becoming the Premier 

Indian Tribal Natural Gas Producer in the United States 

The Southern Ute Indian Reservation consists of approximately 700,000 acres of 

land located in southwestern Colorado in the Four Corners Region of the United 

States. The land ownership pattern within our Reservation is complex and includes 

tribal trust lands, allotted lands, non-Indian patented lands, federal lands, and state 

lands. Based in part upon the timing of issuance of homestead patents, sizeable portions of the Reservation lands involve split estates in which non-Indians own the 

surface but the tribe is beneficial owner of oil and gas or coal estates. In other situations, non-Indian mineral estates are adjacent to tribal mineral estates. When considering energy resource development, these land ownership patterns have significant implications that range from the potential for drainage to questions of jurisdiction. Historically, we have established solid working relationships with the State of 

Colorado and local governmental entities, which have minimized conflict and emphasized cooperation. 

Our Reservation is a part of the San Juan Basin, which has been a prolific source 

of oil and natural gas production since the 1940’s. Commencing in 1949, our tribe 

began issuing leases under the supervision of the Secretary of the Interior. For several decades, we remained the recipients of modest royalty revenue, but were not 

engaged any active, comprehensive resource management planning. That changed 

in the 1970’s as we and other energy resource tribes in the West recognized the potential importance of monitoring oil and gas companies for lease compliance and 

maintaining a watchful eye on the federal agencies charged with managing our resources. 

A series of events in the 1980’s laid the groundwork for our subsequent success 

in energy development. In 1980, the Tribal Council established an in-house Energy 

Department, which spent several years gathering historical information about our 

energy resources and lease records. In 1982, following the Supreme Court’s decision 

in Merrion v. Jicarilla Apache Tribe, the Tribal Council enacted a severance tax, 

which has produced more than $500 million in revenue over the last three decades. 

After Congress passed the Indian Mineral Development Act of 1982, we carefully 

negotiated mineral development agreements with oil and gas companies involving 

unleased lands and insisted upon flexible provisions that vested our tribe with business options and greater involvement in resource development. 

In 1992, we started our own gas operating company, Red Willow Production Company, which was initially capitalized through a secretarially-approved plan for use 

of $8 million of tribal trust funds received by our tribe in settlement of reserved 

water right claims. Through conservative acquisition of on-Reservation leasehold interests, we began operating our own wells and received working interest income as 

well as royalty and severance tax revenue. In 1994, we participated with a partner 

to purchase one of the main pipeline gathering companies on the Reservation. 

Today, our tribe is the majority owner of Red Cedar Gathering Company, which provides gathering and treating services throughout the Reservation. Ownership of Red 

Cedar Gathering Company allowed us to put the infrastructure in place to develop 

and market coalbed methane gas from Reservation lands and gave us an additional 

source of revenue. Our tribal leaders recognized that the peak level of on-Reservation gas development would be reached in approximately 2005, and, in order to continue our economic growth, we expanded operations off the Reservation. 

As a result of these decisions and developments, today, the Southern Ute Indian 

Tribe, through its subsidiary energy companies, conducts sizeable oil and gas activiVerDate Mar 15 2010 10:35 Jul 25, 2014 Jkt 088821 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 S:\DOCS\88821.TXT JACK
42 

ties in approximately 10 states and in the Gulf of Mexico. We are the largest employer in the Four Corners Region, and there is no question that energy resource 

development has put the tribe, our members, and the surrounding community on 

stable economic footing. These energy-related economic successes have resulted in 

a higher standard of living for our tribal members. Our members have jobs. Our 

educational programs provide meaningful opportunities at all levels. Our elders 

have stable retirement benefits. We have exceeded many of our financial goals, and 

we are well on the way to providing our children and their children the potential 

to maintain our tribe and its lands in perpetuity. 

Along the way, we have encountered and overcome numerous obstacles, some of 

which are institutional in nature. We have also collaborated with Congress over the 

decades in an effort to make the path easier for other tribes to take full advantage 

of the economic promise afforded by tribal energy resources. 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.’’ We believe S. 2132 will help us do just that and that’s why 

we strongly urge its passage. 

III. Indian Energy Legislation in Previous Congresses 

Before commenting on S. 2132, it is important to take a step back and re-visit 

the underlying reasons that led to introduction of S. 3752 in the 111th Congress, 

S. 1684 in the 112th Congress and now S. 2132 in the 113th Congress. Second, we 

believe it is also important to review the factors leading to and the potential significance of Tribal Energy Resource Agreements (‘‘TERAs’’) as an optional vehicle of 

tribal self-determination. Third, we hope to show why suggested changes to Title V 

of the Energy Policy Act of 2005 are improvements that deserve this Committee’s 

favorable action. 

For decades our leaders have had the privilege of working with this Committee 

and its staff. Even when differences on other political issues have divided Congress, 

this Committee has consistently worked in a non-partisan manner and led the way 

in focusing on the needs of Indian Country and in attempting to craft solutions to 

those problems. We respectfully urge you to do so once again in passing S. 2132. 

Because the process leading to S. 2132 has spanned considerable time and has 

included the introduction of different legislative measures addressing several of the 

same concerns, we believe it is worthwhile to review those two measures. 

Investigative hearings before this Committee leading to introduction of S. 3752 

addressed a number of critical problems that continue to exist today in Indian Country. First, the unacceptable, bureaucracy-driven delays in federal approval of Indian 

mineral leases and drilling permits captured the attention of former Chairman Dorgan., His constituents on the Fort Berthold Indian Reservation watched their nonIndian neighbors get rich from mineral resource development, as their Indian lands 

remained unleased and undrilled month after month while awaiting federal approval and permitting. 

The punitive effect of those delays on the poorest individuals and communities in 

the U.S. clearly impressed this Committee as unjustifiable. A number of the provisions of S. 3752 attempted to reduce such administrative burdens through such 

measures as: mandated interagency coordination of planning and decisionmaking; 

regulatory waiver provisions; relief from land transaction appraisal requirements; 

and the elimination of fees assessed by Bureau of Land Management for applications for permits to drill on Indian lands. 

Other testimony received by this Committee prior to the introduction of S. 3752 

reflected frustration regarding barriers to capital, technical expertise and facilities 

needed for tribes to proceed with alternative or renewable energy development. 

Again, the Committee attempted to address these concerns through a number of 

provisions including authorization for greater federal technical assistance, reclassification of certain tribal agricultural management practices as sustainable management practices under federal laws, treating Indian tribes like State and municipal 

governments for preferential consideration of permits and licenses under the Federal Power Act’s hydroelectric provisions, expansion of the Indian Energy Loan 

Guaranty Program, and authorization for a tribal biomass demonstration project. 

In response to other evidence demonstrating inadequate access of many Indian 

communities to energy services and weatherization assistance, S. 3752 authorized 

the Secretary of Energy to establish at least 10 distributed energy demonstration 

projects to increase the availability of energy resources to Indian homes and community buildings. To carry out these projects, Indian Self-Determination and Education 

Assistance Act contracts and funding provisions were proposed for energy efficiency 

activities associated with tribal buildings and facilities. Section 305 of S. 3752 reVerDate Mar 15 2010 10:35 Jul 25, 2014 Jkt 088821 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 S:\DOCS\88821.TXT JACK
43 

flected a major revision of the federal weatherization program by authorizing direct 

grants to Indian tribes for weatherization activities. 

S. 3752 also proposed significant revision of the Indian Land Consolidation Act 

to address practical problems in that act’s administration and substantial expansion 

of the durational provisions of the non-mineral, long-term business leasing provisions of 25 U.S.C. § 415(a). 

While this brief summary can adequately describe the myriad matters addressed 

in S. 3752, it is fair to state that it touched a wide array of Indian-related programs 

involving Indian energy issues. 

In contrast, the scope of S. 1684 was considerably more narrow than S. 3752. 

Nonetheless, S1684 contained provisions equating tribes with States and municipalities for hydropower permits and licensing under the Federal Power Act [Sec. 

201]. It also made provision for biomass tribal demonstration projects [Sec. 202] and 

would have provided considerably more modest, indirect access to weatherization 

program funding [Sec. 203] for Indian communities. It encouraged tribal energy resource development planning in coordination with the Department of Energy [Sec. 

101]. That bill did not, however, address a number of matters contained in S. 3752, 

such as expansion of the Indian Energy Loan Guaranty Program, establishment of 

distributed energy demonstration projects, revision of the Indian Land Consolidation 

Act provisions, or expansion of the durational provisions of the non-mineral, longterm business leasing provisions of 25 U.S.C. § 415(a). 

S. 2132 revives the concepts set forth in S. 1684 as that earlier bill was referred 

to the full Senate by this Committee but does not tackle the full scope of reforms 

that S. 3752 sought. The differences between the much earlier S. 3752 and the 

much more modest recent proposals reflect both fiscal realities associated with cost 

as well as the need to ensure this Committee maintains jurisdiction over this important legislation. 

Perhaps the most significant element in S. 2132 and S. 1684 is the series of 

amendments to the TERA provisions initially established in the Title V of the Energy Policy Act of 2005. For reasons discussed in more detail below, those changes 

merit the Committee’s support. 

We urge those members of this Committee who sponsored S. 3752, which our 

Tribe fully supported, not to abandon S. 2132 because of its narrower scope because 

the legislation before you is badly needed in Indian Country. 

IV. TERAs and the Balancing of Tribal Self-Determination and Secretarial 

Review 

On August 8, 2005, the Energy Policy Act of 2005 became law. Title V of this 15- 

title statute is the ‘‘Indian Tribal Energy Development and Self-Determination Act 

of 2005,’’ which provided comprehensive amendments to Title XXVI of the Energy 

Policy Act of 1992. One of the key provisions of Title V was Section 2604 [25 U.S.C. 

§ 3504], which created a mechanism pursuant to which Indian tribes, in their discretion, could be authorized to grant energy-related leases, enter into energy-related 

business agreements, and issue rights-of-way for pipelines and electric transmission 

facilities without the prior, specific approval by the Secretary of the Interior.. As a 

pre-condition to such authorization, a tribe and the Secretary of the Interior are 

first required to enter into a Tribal Energy Resource Agreement (TERA)—a master 

agreement of sorts—addressing the manner in which such a tribe would process 

such energy-related agreements or instruments. 

Although the TERA concept did not become law until 2005, its genesis before this 

Committee occurred several years earlier, and our files show that our former Chairman Howard Richards, Sr. formally requested support for similar legislation in 

2003. Earlier correspondence confirms that we had the same concerns about federal 

delays and trust administration then that we have now. A memorandum from our 

legal counsel to the Committee’s legal counsel dated June 30, 2002 states: 

The problems with Secretarial approval of tribal business activities include an 

absence of available expertise within the agency to be helpful . . . . Some 

structural alternative is needed. The alternative should be an optional mechanism that allows tribes to elect to escape the bureaucracy for mineral development purposes, provided the Secretary has a reasonable indication that an 

electing tribe will act prudently once cut free. 

Much like the debate that surrounded passage of the Indian Mineral Development 

Act of 1982, the potential diminishment of the Secretary’s role contemplated under 

a TERA caused considerable discussion before this Committee and in Indian Country. We participated in those debates. Ultimately, with the encouragement of the 

National Congress of American Indians and the Council of Energy Resource Tribes, 

compromise was reached among this Nation’s leaders on energy and Indian issues. 

44 

Senator Bingaman and Senator Domenici and Senator Inouye and Senator Campbell reached agreements on a number of matters that paved the way for passage 

of this legislation in both houses of Congress. These legislative resolutions were 

reached only because of the overriding recognition that the federally-dominated system of Indian trust administration was broken and was condemning Indian people 

to an arbitrarily imposed future of impoverishment and hopelessness 

Despite the potential promise extended by Section 2604, no tribe has yet entered 

into a TERA. We have spent considerable time asking ourselves why. Clearly, the 

inadequacies of federal trust supervision persist and show no signs of marked improvement. Given the years that we have invested in pushing for the TERA alternative, it is worth identifying some of the reasons why no tribe has entered into 

a TERA. The following is a list of some of the reasons we have considered: 

1. The regulations implementing Section 2604 diminished the scope of authority 

to be obtained by a TERA tribe by preserving to the Federal Government its 

prerogative in carrying out an array of functions—called ‘‘inherent federal functions’’ in the vernacular—an undefined term that potentially rendered the act’s 

goal of fostering tribal decisionmaking and self-determination practically meaningless. 

2. Unlike contracts carried out by Indian tribes under the Indian Self-Determination and Education Assistance Act, Section 2604 provided no funding to Indian tribes even though TERA-contracting tribes would be assuming duties and 

responsibilities typically carried out by the United States. 

3. One of the statutory conditions for a TERA, the establishment of tribal environmental review processes requiring public comment, participation, and appellate rights with respect to specific tribal energy projects, was an unacceptable 

opening of tribal decisions to outside input and potential criticism. 

4. Many Indian tribes lacked the internal capacity to perform the oversight 

functions potentially contemplated in a TERA or standards for measuring tribal 

capacity were vague or unclear. 

5. The extensive process of applying for and obtaining a TERA was simply too 

consuming and distracting to merit disruption of ongoing tribal governmental 

challenges. 

Clearly, this list is not exhaustive. The lesson for this Committee, therefore, is 

that the tragic consequence of no approved TERAs and a continued reliance upon 

federal supervision has been the incredible lost opportunities to develop Indian energy resources during the period between 2005 and today. Those development opportunities were extended to non-Indian mineral owners on State and private lands in 

other regions of the country, where no federal approval was required for leasing or 

development. 

For example, when one considers that the price of natural gas in 2008 exceeded 

$10 per mcf, and today is only one third of that price, those lost opportunities may 

not return for decades. In February 2009, we sent a letter to the Regional Director 

of the BIA and explained the impacts being caused by bureaucratic delays at that 

time: 

The Tribe’s Energy Department recently completed a review of delays in processing pipeline rights-of-way (ROWs) and BIA concurrences for the BLM to 

issue permits to drill wells on tribal oil and gas leases. The results of that review are staggering. Currently, approximately 24 Applications for Permit to 

Drill (APDs) await BIA concurrence. Additionally, approximately 81 pipeline 

ROWs await issuance by the BIA. Of the 81 pending ROWs, 11 were approved 

in Tribal Council resolutions adopted in 2006, 44 were approved in Tribal Council resolutions adopted in 2007, 22 were approved in Tribal Council resolutions 

adopted in 2008, and 4 were approved in Tribal Council resolutions adopted in 

2009. It should be emphasized that in each instance these pending transactions 

have already undergone environmental reviews by the Tribe’s Natural Resource 

Department pursuant to the Tribe’s 638 contract with the BIA as well as review 

by the Tribe’s Energy Department. 

Had these APDs and ROWs been approved, the Tribe would have received revenue in a number of different ways, including: (i) surface damage compensation; 

(ii) grant-of-permission fees; (iii) severance taxes; (iv) royalties; (v) Red Willow 

Production Company working interest income; and (vi) Red Cedar Gathering 

Company gathering and treating fees. We estimate that lost revenue attributable to severance taxes and royalties alone exceeds $94,813,739. Significantly, 

during the period of delay, prices for natural gas rose to an historic high, but 

45 

have now declined to approximately one-third of that market value. Thus, much 

of this money will never be recovered by the Tribe. 

One example of these delays involves the Samson South Ignacio Pipeline 

Project, which was introduced to the Tribe and the BIA in June of 2006. It is 

our understanding that Samson has complied with all BIA requirements, yet 

BIA continues to resist issuance of the ROWs. We estimate that the Tribe is 

losing royalties on this project at the rate of approximately $300,000 per month. 

Our Tribe continues to believe that TERAs provide great potential as a vehicle 

for tribal self-determination and development. We remain extremely frustrated with 

the federal administrative impediments to making simple decisions, such as granting rights-of-way across our lands. The federal system on our reservation is getting 

worse, not better, and, increasingly, we are spending more time fighting with the 

Bureau of Indian Affairs (BIA) about nonsensical directives and conditions for obtaining federal approvals. This is true even though we are considered one of the 

most commercially advanced tribes in the country, with operations in multiple 

states related to energy exploration and production, commercial real estate acquisition, real estate development, midstream gathering and treating, and private equity 

investment. 

V. TERA Provisions of S. 2132 

The major proposed revisions to current law affecting TERAs are found in Section 

103 of S. 2132. The proposed changes are technical in many cases and cannot be 

easily understood without a side-by-side comparison of the existing law. We fully 

support the changes, however, and hope that the Committee considers them favorably. Some key changes proposed in S. 2132 include the following. 

First, Section 103 expands the scope of TERAs to include leases and business 

agreements related to facilities that produce electricity from renewable energy resources. 

Second, clarifying amendments also confirm that TERAs may extend to pooling 

and communitization agreements affecting Indian energy minerals. 

Third, Section 103 expands existing law related to direct development of tribal 

mineral resources when no third party is involved. Under existing law, because no 

federal approval for such activity is required, a tribe may lawfully engage in such 

activity, but few tribes have the capacity or internal expertise to do so directly. The 

expansion contemplated by Section 103 extends such an approval exemption to 

leases, business agreements and rights-of-way granted by a tribe to a tribal energy 

development organization in which the tribe maintains a controlling interest. This 

provision expands the opportunity for access to capital for direct tribal development 

without federal approval where the tribe continues to control the activity. 

Fourth, Section 103 would make a proposed TERA effective after 271 days following submittal unless disapproved by the Secretary and would shorten the timeperiod for review of TERA amendments. 

Fifth, Section 103 provides for a favorable tribal capacity determination based on 

a tribe’s performance of Indian Self-Determination and Education Assistance Act 

contracts or Tribal Self Governance Act compacts over a three year period without 

material audit exceptions. 

Sixth, Section 103 allows for TERA funding transfers to be negotiated between the 

Secretary and the tribe based on cost savings occasioned by the Secretary as a result of a TERA. 

Seventh, Section 103 confirms that TERA provisions are not intended to waive 

tribal sovereign immunity. 

While Section 103 includes other clarifying provisions, these constitute the major 

changes to TERA requirements found in Section 2604 of existing law. The changes 

improve the scope and clarity of current statutory provisions. 

VI. Other Important Provisions of S. 2132 

In addition to the critical changes to existing law regarding TERAs to be made 

by S. 2132, the legislation also includes much-needed changes to the appraisal requirements for projects proposed on tribal trust lands. Section 204 would amend the 

Energy Policy Act of 2005 by making clear that, for such projects where approval 

by the Secretary of the Interior is required—which is most, if not all of them, the 

Tribe or a third-party contractor hired by the Tribe can conduct the required appraisal. Furthermore, S 2132 would require Secretarial review and approval of the 

appraisal within 45 days, unless specific disapproval criteria are met. That section 

would also require that the Secretary provide the Tribe with written notice of any 

such disapproval and such notice must explain how any deficiencies in the appraisal 

can be cured or the specific reasons why the appraisal was not approved. 

46 

If enacted, this section would eliminate the timely and often costly delays associated with completing fair market value appraisals for projects on tribal trust lands. 

Given the unique status and nature of these lands, determining such values is always difficult and sometimes impossible; however, under existing law, the Secretary 

must have an appraisal in order to ensure that the proposed transaction would benefit the Tribe. 

The fact is that the Southern Ute Indian Tribe long ago surpassed the capabilities 

of the Department of the Interior to advise the Tribe regarding its business decisions and often seeks waivers of the appraisal requirement for various tribal 

projects. Passage of S. 2132 would ensure that the Tribe has the necessary flexibility to do its own appraisals and require that the Secretary approve those appraisals in a timely fashion, which would significantly reduce the risk of delays and the 

threats such delays pose to the Tribe’s business interests. 

VII. Conclusion 

Individually and on behalf of the Southern Ute Indian Tribe, I hope that these 

comments have been instructive as to why we strongly support S. 2132, and respectfully request that you move expeditiously on this legislation on behalf of Indian 

Country 

The CHAIRMAN. Thanks, Mike. 

First of all, I appreciate your testimony. I think the Southern 

Utes’ experiences in oil and gas development are exemplary. We 

appreciate that because it shows what can happen when tribes 

take the lead on their own resources. 

Let’s say S. 2132 is enacted with proposed TERA amendments, 

what would the TERA look like for the Southern Ute and, from 

your perspective, what roles would the Southern Ute take over and 

what roles would the Department retain? 

Mr. OLGUIN. If the legislation was passed, it definitely would 

streamline the process for tribes across the Nation to be able to 

really decide for themselves what is in their best interest for their 

respective tribes to develop their energy resources. It is really getting the Federal Government out of the way, I think is the bottom 

line, and give the tribes the authority to manage their own affairs 

particularly when tribes have reached the ability to well exceed the 

Federal Government. 

I heard earlier about the trust. It is not necessarily the government needs to trust the tribes; the tribes need to be able to trust 

the government that they will fulfill their obligations. If we look at 

what is going to be the government responsibility, it is going to be 

to assist the tribes, help those tribes that do need that assistance 

because not all tribes are the same. Every tribe is different, every 

tribe’s capacity is different, every tribe’s ability to manage their affairs is different, particularly from a financial standpoint. The Federal Government may be needed in areas where tribes need that 

capacity. 

The CHAIRMAN. It has been several decades ago there was oil and 

gas development on the Ft. Peck Reservation and some salt brine 

water was reinjected into the ground, got into an aquifer and ruined an aquifer and ruined the drinking water. 

I don’t know that anyone did anything wrong in this particular 

case, but it does show a problem of oversight. I will tell you my 

concern which is somebody has to have the oversight of what is 

going on. I would like you guys to have it because I think it helps 

with your self-determination. 

47 

Give me your perspective on if there would be gaps that I should 

be concerned about or if I shouldn’t be concerned about potential 

gaps in oversight. 

Mr. OLGUIN. From our perspective, I am not sure if there would 

be a gap, particularly from Southern Ute’s perspective. I can only 

speak to that. 

We require a lot criteria and requirements that are probably 

more stringent than the Federal Government. When you look at 

these situations where we have well bores not sealed properly, that 

may mean some oversight by the Federal Government but in our 

case, we exceed that. 

The CHAIRMAN. Okay. That’s good. 

Carole, once again I appreciate you being here. Thank you for 

your leadership when it comes to CSKT in particular. 

Your testimony supports inclusion of biomass in S. 2132. Can you 

explain how the biomass provisions could help the tribe in its biomass energy facility project, because I know you have one? 

Ms. LANKFORD. Currently, we are working on feasibility. We 

don’t have biomass. 

The CHAIRMAN. How would this help you as you plan? 

Ms. LANKFORD. Currently, we have a lot of timber products, a lot 

of timber sales and things like that but there is always a lot of salvage and things like that which lays on the ground and goes to 

waste. We also have adjacent to us the U.S. Forest Service. The potential of utilizing some of the slash and things they have would 

also help operate the biomass facility. 

The CHAIRMAN. Vice Chairman Barrasso. 

Senator BARRASSO. Chairman Finley, Assistant Secretary 

Washburn’s testimony contends that the Federal liability provisions for the Tribal Energy Resource Agreements in my bill and 

also the Energy Policy Act of 2005 are unclear. He is recommending replacing those provisions with a broader waiver of liability that is in the HEARTH Act. What do you think about his recommendation? 

Mr. FINLEY. I would say that I don’t support it. As you stated, 

they are a lot broader than they really need to be. Within the 

present language in this bill, those are under negotiated terms between the third party and the tribe. That is a lot narrower. 

Senator BARRASSO. Your testimony also noted that your tribe is 

interested in using biomass to promote on-reservation economic development. My bill would create demonstration projects to give 

tribes access to reliable supplies of biomass material from Federal 

land. What kind of economic impact would this demonstration 

project have for your tribe and other participating tribes? 

Mr. FINLEY. I think you would have a great deal of positive impact. We have done a lot of the studies. I think we are ahead of 

my counterpart to my right on whether or not we want to do a 

Woody Biomass Project on the Colville Reservation because of the 

price tag. We have a lot of other needs at the front of the line. 

Whether or not we can get to that in a timely manner is another 

story. 

However, the ability to manage those forests with the same 

model that we have not only creates jobs, it is going to allow us 

the opportunity to sell those to third parties, but allow us to create 

48 

a buffer zone for wild fires that are epidemic in my area at certain 

times of the year, especially this year being a dry year. 

Other than the benefits of the biomass plant itself that has all 

these other ancillary benefits that are almost immeasurable in 

terms of jobs and safety. 

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

Chairman Olguin, the Assistant Secretary’s testimony suggested 

giving the Federal Government a broader exemption from liability 

for tribal energy development. He recommended using the waiver 

of liability in the HEARTH Act for tribal energy resource agreements. What do you think of that recommendation? 

Mr. OLGUIN. A waiver of liability, not being able to read his testimony—according to what I have been advised, we are supportive 

either way but I believe we would like to respond to it in writing 

as again, we have not read his testimony. 

Senator BARRASSO. Okay. He contends that the 120-day time period for making the capacity determinations for Tribal Energy Resource Agreements is not enough. He recommends this time period 

begin running after a public comment period on the agreement 

ends or after a final agreement is submitted. 

Do you think this is an appropriate length of time to have to wait 

for the capacity determinations? 

Mr. OLGUIN. I believe when we look at making these determinations, again we have to look at what is the delay. I think we need 

to understand why more time is needed particularly when a tribe 

can demonstrate tomorrow that it has the capability of doing so. 

Again, I think we need to look at the details of what he is talking 

about to really understand why he needs a further delay. 

Senator BARRASSO. Thank you. 

The CHAIRMAN. Senator Heitkamp? 

Senator HEITKAMP. I have just a couple quick questions about 

building on capacity. 

Mike, your earlier testimony today when we heard concerns and 

issues and looking at what is happening in places like North Dakota where we have a huge development on the Mandan, Hidatsa 

and Arikara Nation and the potential development down in Standing Rock. I would note that the Chairman of Standing Rock Sioux 

Nation is here with his beautiful wife, Dave Archimbold and Nicole. 

I think everyone wants to get out of the business of being paternalistic. I thought some of the answers Mr. Washburn gave about 

the distinction between tribal lands and Federal lands less than 

satisfying. I think what we want to do is build out that capacity 

of self-determination and provide an avenue for predictability for 

tribal governments to determine the welfare or development of 

their resources for the welfare of the people that those resources 

exist. 

You obviously have an excellent reputation among the oil and 

gas producing counties. What can the tribes do working among 

themselves to build up that capacity and maybe create a broad 

standard that could then be used to argue with the Department of 

Interior that you are ready? 

Mr. OLGUIN. There have been efforts in the four corners area to 

bring four corners tribes together who are energy producing and 

49 

prompt these questions to come up with some answers. What is it 

going to take from a capacity standpoint? 

A lot boils down to hiring the right people, the experts. Will the 

tribes have that ability? Some may, some may not but is there an 

opportunity to share some of that expertise across the board or at 

least from the standpoint of what are the qualifications needed for 

some of these positions. 

We realize when you look at the Federal capacity, as I said this 

morning, institutional knowledge is being lost in the Federal system so who better to gain that dealing with tribes seeking education, getting the professionals and actually exceeding the Federal 

capacity. I think it is working together amongst ourselves as tribes 

to better our lives. 

Senator HEITKAMP. Kind of the point I am getting at is there is 

a lot of collective knowledge among the tribes that can be shared, 

a lot of technical expertise that can be shared and really build out 

that knowledge capacity that will lead to greater self-determination. 

I want to congratulate you and your tribe for providing that assistance and encourage you to continue to work in a leadership capacity to work with all the oil and gas producing tribes and coal 

producing tribes to reach that point at which these minerals which 

are part of your treaty rights can be determined, the use of those 

minerals and oil and gas can be determined by the people that own 

those minerals and that is the tribal entities themselves. 

Mr. OLGUIN. Thank you. 

The CHAIRMAN. Thank you, Senator Heitkamp. 

Again, I want to thank today’s tribal witnesses for traveling. 

Some have traveled far to get here to discuss energy development 

and this bill, S. 2132. 

Aletha, you got off easy but I will tell you I appreciate the work 

your tribe has done in solar development. It is exemplary, it is 

great and I think it speaks well to what you are trying to do for 

your tribe in Nevada. 

This hearing is going to remain open for two weeks from today 

for anyone wishing to submit comments on S. 2132. 

Once again, I want to thank my Vice Chair, Senator Barrasso, 

for his leadership on this issue. 

With that, the hearing is adjourned. 

[Whereupon, at 3:55 p.m., the Committee was adjourned.] 

(51) 

A P P E N D I X 

PREPARED STATEMENT OF TEX ‘‘RED TIPPED ARROW’’ HALL, CHAIRMAN, MANDAN, 

HIDATSA AND ARIKARA NATION

Chairman Tester, Vice Chairman Barrasso and Members of the Committee. My 

name is Tex Hall. I am the Chairman of the Mandan, Hidatsa and Arikara Nation 

(MHA Nation). I am honored to present this testimony. 

Introduction 

The MHA Nation and our Fort Berthold Reservation sit in the middle of the most 

active oil and gas development in the United States. With about 1200 new oil and 

gas wells producing 300,000 barrels a day, the MHA Nation, located in west-central 

North Dakota, is the equivalent of the 7th highest producing oil and gas state in 

the Country. In this environment we need the full support of the Committee and 

we need it now. 

While the MHA Nation appreciates how quickly the Committee has acted on S. 

2132, additional provisions are needed to make a difference in Indian energy development and should be included in the bill as it is brought to the Senate floor. Attached to my testimony is one of the most important amendments needed—creation 

of a new Indian Energy Coordination Office to streamline and improve energy permitting on Indian lands. We do not need more study or discussion of the issues, we 

need legislation that will reform how the Federal Government oversees Indian energy development and works with tribes. 

The MHA Nation is already working on the front lines and needs your support. 

We work every day to promote responsible development of our energy resources and 

provide for our communities, including: 

• working directly with energy companies to develop our resources; 

• passing and enforcing laws to govern energy activities and protect our human, 

natural and cultural resources; 

• maintaining and improving our Reservation infrastructure; and, 

• thinking creatively to maximize the value of our resources and return that 

value to our members and our Reservation. 

The MHA Nation is forging a new era of self-determination. We are no longer 

merely implementing limited Federal programs nor are we sitting back waiting for 

the Federal government to regulate in these areas. The MHA Nation is a sovereign 

government and we must oversee and regulate the tremendous energy development 

occurring on our Fort Berthold Reservation. In this new era of self-determination, 

the MHA Nation exercises its own authority, enforces our own laws and delegated 

federal authority, and develops and manages our own programs. 

The MHA Nation asks that this Committee and Congress take action to support 

our work in two ways. First, by restructuring how federal agencies work to oversee 

and approve energy development on Indian reservation. Second, by ensuring that 

Indian tribes are able to exercise full authority over energy development on our 

lands. These amendments to S. 2132 are described in more detail below and in the 

attached legislative proposal. These amendments should be included as the bill is 

brought to the Senate floor. 

Legislative History 

The Committee already has an extensive record and much agreement on the obstacles to Indian energy development. More study and discussions are not needed. 

Over the last 6 years, the Committee has investigated the issues, held roundtables, 

numerous hearings and considered legislation. The MHA Nation has been an active 

participant in this process. 

In the 110th and 111th Congresses, the MHA Nation presented testimony at two 

Indian energy hearings held by former Senator Dorgan. Senator Dorgan eventually 

introduced the ‘‘Indian Energy Parity Act of 2010’’ which included a number of proVerDate Mar 15 2010 10:35 Jul 25, 2014 Jkt 088821 PO 00000 Frm 00055 Fmt 6601 Sfmt 6621 S:\DOCS\88821.TXT JACK
52 

posals supported by the MHA Nation. Senator Dorgan also drafted an ‘‘Indian Energy Tax Act.’’ These important tax provisions are needed to help make energy development possible on Indian lands. 

In the 112th Congress, the MHA Nation participated in a May 2011 Committee 

listening session on a draft bill entitled the ‘‘Indian Tribal Energy Development and 

Self-Determination Act Amendments of 2011.’’ At that listening session Committee 

staff requested that tribes submit proposals to overcome barriers to Indian energy 

development. In response, on July 18, 2011, the MHA Nation submitted 31 legislative proposals to the Committee. 

This draft bill was eventually introduced as S. 1684 and the Committee held a 

hearing on the bill on April 19, 2012. I testified at that hearing and included the 

MHA Nation’s 31 legislative proposals in my testimony so that they would be a part 

of the Committee hearing record. I ask that the Committee incorporate my prior testimony into today’s testimony by reference. 

On the House side, the MHA Nation also testified before the Subcommittee on Indian and Alaska Native Affairs on April 1, 2011 during an Indian Energy Oversight 

Hearing, in February 15, 2012, on Chairman Young’s ‘‘Native American Energy 

Act,’’ H.R. 3973, on April 19, 2012 on the Bureau of Land Management’s (BLM) proposed regulation of hydraulic fracturing activities, and on May 10, 2013 on the current version, H.R. 1548, of Chairman Young’s Indian energy bill. 

Need for Congressional Action 

Now is the time to act. The MHA Nation and number of other Indian tribes are 

already working to develop and manage our energy resources to provide long-term 

economic security for our communities, increase tribal self-determination, while also 

providing additional domestic energy resources. Without Congressional action, tribes 

will miss out on energy development opportunities, or, when development does 

occur, tribes will be unable to keep the benefits of development on the reservation. 

Congress should pass legislation that restructures the current process used by federal agencies and provides support for the exercise of tribal authority over energy 

development. 

The MHA Nation is working on the front lines of energy development and Congressional and federal agency support for this work is critical to our success. The 

Bakken Formation underlying our Reservation is the largest continuous oil deposit 

in the lower 48 states. In a few short years, our region has become the second highest oil and gas producing area in the United States. We produce more oil than Alaska. Only Texas produces more. Currently, on our Reservation there are 30 drilling 

rigs, more than 27,000 semi-trucks, and about 1,200 oil and gas wells producing in 

excess of 300,000 barrels of oil per day. 

We are also constructing the first oil refinery to be built in the United States 

since 1976. Our Clean Fuels Refinery Project is now under construction and we expect to begin operations in 2015. Our refinery will provide the MHA Nation with 

‘‘value added’’ benefits for the oil produced on our Reservation, including a higher 

return on our oil resources, jobs and economic opportunity as well as additional domestic energy production. While we appreciate effort of the Bureau of Indian Affairs 

(BIA) and the Environmental Protection Agency (EPA) to keep this project moving 

through the approval process, it took us a decade before the refinery was finally approved. With the level of activity on our Reservation, we cannot wait a decade or 

even a year for approval of permits. 

To improve this situation we need to be working on two fronts. Congress should 

restructure how federal agencies oversee and approve energy development on tribal 

lands while also ensuring that tribes have full authority to manage and regulate 

energy development on our lands. The need for greater tribal authority over permitting and regulatory functions is easy to see by simply looking at federal staffing levels. While these federal agencies must be fully staffed to meet the Federal Government’s trust responsibilities, we also cannot wait for the Federal Government to act 

and have no choice but to take matters into our own hands. The MHA Nation has 

been doing all we can to fill the regulatory and staffing void while promoting development of our energy resources. 

For example, the MHA Nation enacted forward thinking regulations to address 

widespread and wasteful flaring of natural gas. Regulation was needed to protect 

our clean air and to promote responsible development of our tribal energy resources. 

However, we did not address this issue by simply imposing new requirements that 

make it more difficult to produce energy. Instead, we enacted a regulation that encourages our industry partners to put their gas resources to beneficial use. 

One of the reasons we enacted regulations for gas flaring was because the Bureau 

of Land Management (BLM) lacks the staff to adequately enforce its ‘‘Notice to Lessees and Operators of Onshore federal and Indian Oil and Gas Leases: Royalty or 

53 

Compensation for Oil and Gas Lost’’ which covers the flaring of gas. With the majority of the wells on the Reservation being flared and our trust resources going to 

waste, the MHA Nation was forced to step up and assert our tribal authority. 

Indeed, there is no better manager and regulator of our homelands than the tribal 

government elected to serve the MHA Nation and our Fort Berthold Reservation. 

In another example, our Tribal Council passed the ‘‘Missouri River, Badlands and 

Sacred Sites Protection Act’’ to provide for the protection of sensitive natural resources on our Reservation while allowing for responsible energy development. The 

requirements of this Act even far exceed requirements in the neighboring State of 

North Dakota. 

As a part of this Act, to protect the Missouri River, we require a half-mile setback 

from the River for oil and gas wells on our lands. Meanwhile, across the River, the 

State only requires a 500-foot setback. We wish the State had followed our lead. 

Currently there is pollution of the River and our waters as well pads and oil and 

gas operations on State lands are washed over by the spring thaw. In addition, in 

the Badlands portion of our Reservation we require a minimum of 8 wells per multipad. Requiring that oil and gas operators combine many wells onto a single multipad reduces the number of well pads and roads that are constructed in the sensitive 

Badlands area. 

The MHA Nation has also enacted an Environmental Spill Code including fines 

and penalties for intentional dumping of hazardous materials. These are just a few 

examples of the authority the MHA Nation is exercising to promote responsible development of our energy resources. We still have a long way to go and we need the 

support of Congress and federal agencies in this effort. 

As we work on the front lines and enter a new era of self-determination, we ask 

that this Committee and the full Congress support our efforts in two ways. First, 

by restructuring how federal agencies work to oversee and approve energy development on Indian reservation. Second, by ensuring that Indian tribes are able to exercise full authority over energy development on our lands. We have developed proposals in both of these areas and explain them in more detail below as well as in 

the attached legislative proposal. 

Proposal for Indian Energy Coordination Office 

First, in order to develop federal expertise in the area of Indian energy and to 

provide leadership as well as a model for efficient permit processing, MHA Nation 

asks that Congress direct Interior and all the other federal agencies involved in 

overseeing Indian energy development to establish a high-level Indian Energy Coordination Office in Denver, Colorado. The office would use existing resources to finally provide the staff and expertise that Indian energy deserves. 

We are already working with the Administration to create this office, but legislation is needed to combine federal agency authorities and restructure energy permitting on Indian lands. I have attached a legislative proposal to my testimony. The 

MHA Nation asks that this proposal be included in S. 2132 as it is brought to the 

Senate floor. 

This new office should be located in the Interior Deputy Secretary’s Office and be 

led by a Director who has all the authority necessary to issue permits and approve 

energy development on Indian lands—everything from permitting oil and gas wells 

to environmental review of proposed projects. Staff with energy expertise would ensure that permits and other approvals keep moving and do not get hung up by a 

lack of understanding or experience. The office would also enter into Memorandum 

of Understanding with EPA, the Army Corps of Engineers, and the United States 

Department of Agriculture to provide staff and further ensure permit streamlining 

and coordination. The staff of this office would also provide technical assistance to 

local BIA Agencies and tribes doing work on the ground. 

This office should be guided by basic principles that have been lost in the current 

unorganized federal system for overseeing energy development on Indian lands. In 

particular, Indian lands are not public lands. While both Congress and Interior have 

been clear on this point in the past, over time, some federal agencies have attempted to apply public land management standards to Indian lands. Current examples include the application of the National Environmental Policy Act (NEPA) to Indian lands, and BLM’s proposal to regulate hydraulic fracturing on Indian lands. 

In both cases, these agency actions exceed the underlying legal authority. This Office would end these practices, treat Indian lands according to federal trust management standards, and enter a new era where this Office provides technical support 

for tribes to regulate these issues ourselves. 

The Office we are proposing is long overdue. Congress already approved and expanded similar offices for energy development on federal lands. The same should be 

provided for Indian lands where the benefits would far exceed the benefits of energy 

54 

development on federal lands. Energy development on Indian lands provides badly 

needed jobs, economic development, revenues for tribal governments, and, if managed properly, long-term investment in reservation infrastructure. 

Legislative Proposals to Increase Tribal Authority 

In addition, to improved federal coordination, this Committee and Congress 

should support changes in the law to increase tribal authority over energy development. The MHA Nation and many Indian tribes are entering a new era of self-determination where we exercise tribal authority to regulate energy development on our 

lands. This new era builds upon and is the fulfillment of decades of successful federal policy and tribal decisionmaking under the Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93–638). In this new era, the Federal 

Government and Indian tribes should work together on a government-to-government 

basis to determine how to best regulate activities on Indian lands. Then, with appropriate technical assistance and support from the Federal Government, tribes can exercise their own authority or delegated federal authority to regulate and manage 

reservation resources. 

This is exactly what is required by long-standing federal consultation policies. Executive Order No. 13175 on Consultation and Coordination with Indian Tribal Governments directs in Section 3 that federal agencies ‘‘consult with tribal officials as 

to the need for Federal standards and any alternatives that would limit the scope 

of Federal standards or otherwise preserve the prerogatives and authority of Indian 

tribes.’’ This Committee and Congress should support these efforts by recognizing 

and affirming tribal authority in all areas related to the development of Indian energy resources. Below we highlight some of the most important changes needed to 

support tribal authority over energy development. 

First, The most significant authority Indian tribes need to develop their energy 

resources is exclusive taxing authority over their reservations. Tribes already have 

the authority to tax, but encroachments on tribal authority, jurisdiction and business activities by state and federal governments, have disabled the ability of tribes 

to use their taxing authority to support energy and economic development. 

The MHA Nation and tribes everywhere, need Congress to pass laws affirming 

the exclusive authority of Indian tribes to tax energy development on our reservations. Currently, outdated Supreme Court precedent allows states to place a double 

tax on energy development on tribal lands. These state taxes eliminate or reduce 

our ability to raise our own taxes and tribes remain ever more dependent upon the 

Federal Government. 

On the MHA Nation’s Fort Berthold Reservation, this double taxation forced the 

MHA Nation into an unfair oil and gas tax agreement with the State of North Dakota. Over the last 5 years the State took almost $500 million in taxes from energy 

development on my Reservation. In 2013 alone, the State took about $215 million. 

The negative impact on the Reservation is not so hard to figure out. For example, 

in 2011, the State collected more than $75 million in taxes from energy development 

on the Reservation, but spent less than $2 million of that amount on state roads 

on the Reservation and zero tax dollars on federal and tribal roads. In addition, 

none of the 2011 funds were used to mitigate impacts that oil and gas development 

has had on the MHA Nation, its members and our natural resources. 

The State receives this windfall at the expense of the MHA Nation and tribal and 

federal infrastructure even though in just the past two years the State has collected 

almost $4 billion in tax revenues from all of the oil and gas development in the 

State. In fact, within a year or two of the tax agreement, the State’s coffers were 

so full that the State created an investment account whose funds cannot be spent 

until 2017. While these funds sit around earning interest, federal and tribal infrastructure on our Reservation is such disrepair every day is a state of emergency. 

This affects our ability to maximize oil and gas development, but more importantly, 

our residents and tribal members must live in this state of emergency just getting 

to school or the grocery store. 

The MHA Nation needs tax revenues to do the same work that every other government does. We need to maintain roads so that heavy equipment can reach drilling locations, but also so that our tribal members can safely get to school or work. 

We also need to provide increased law enforcement to protect tribal members and 

the growing population on our Reservation. We also need to develop tribal codes and 

employ tribal staff to regulate activities on the Reservation. 

The Committee should include in S. 2132 a provision to clarifies the law and affirms the exclusive authority of tribes to tax energy development on Indian lands. 

Or, at the very least, the Committee should limit the amount of tax revenues that 

states can take from development of trust resources on Indian lands. Considering 

that states use none of these dollars to benefit infrastructure on Indian lands, states 

55 

should be limited to 10 percent or less of the tax revenues earned from our resources. Second, if not adopted as a part of the MHA Nation’s Indian Energy Coordination 

Office proposal, the Committee should separately prohibit BLM from applying regulations developed for public lands to Indian lands. Indian lands are not public lands, 

yet BLM has been incorrectly using its authority under the Federal Land Policy and 

Management Act of 1976 to regulate activities on Indian lands. In the most recent 

example, the BLM is developing regulations for hydraulic fracturing activities for 

public lands and intends to apply those regulations to Indian lands. 

BLM’s proposed regulations would eliminate much of the oil and gas development 

the MHA Nation has been working so hard to establish. Indian lands are for the 

use and benefit of Indian tribes and the Committee should develop legislation that 

either precludes BLM from exercising authority on Indian lands, or require that 

BLM develop regulations consistent with its trust responsibility to Indian tribes and 

not public interest standards. At a minimum, the Committee should require BLM 

to allow tribes to opt out of the proposed regulations so that tribes may determine 

whether and how best to regulate hydraulic fracturing on their lands. 

Third, the Committee should prohibit EPA from implementing its new synthetic 

minor source rule for two years to ensure appropriate staffing is in place to administer any new permitting requirements. Energy development on the Fort Berthold 

Reservation is already limited by layers of bureaucratic federal oversight and federal agencies that are too short-staffed to manage existing requirements. EPA 

should be prohibited from implementing this new rule, or any new rule, until it can 

prove that it has the staff resources in place. And, again, EPA should also allow 

tribes to opt out of the proposed rule so that tribes may determine how best to regulate minor sources on their lands. 

Fourth, the Committee should expand the Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93–638) to apply to additional agencies 

and bureaus. Indian tribes, not federal agencies, have the on the ground staff to provide oversight and monitoring of oil and gas development. Contracting authority 

under P.L. 638 should be expanded to BLM, EPA, and the Fish and Wildlife Service. 

Fifth, we also need to clarify tribal jurisdiction over Reservation activities and any 

rightsof- way granted by an Indian tribe. Courts have created uncertainty in the law 

and this uncertainty is yet another disincentive to the energy business. 

Sixth, the Committee should develop legislation to expand and clarify the ‘‘Buy 

Indian Act,’’ 25 U.S.C. § 47. As a part of its government-to-government and trust relationship to Indian tribes, the Federal Government should be required to purchase 

tribally produced or owned energy resources. As an example, the MHA Nation is developing an oil refinery that could supply federal agencies and the Department of 

Defense with tribally produced and owned domestic energy supplies. 

Seventh, S. 2132 should address delays in payments of oil and gas royalties due 

to approval of Communitization Agreements. Under current law, royalties are due 

within 30 days of the first month of production. However, without any authority, 

the BLM has allowed royalty payments to be delayed for months and years pending 

the approval of Communitization Agreements. This violation of the law cannot be 

allowed to continue. 

Where feasible, S. 2132 should require Communitization Agreements to be submitted at the time an Application for Permit to Drill is filed. This is possible where 

the oil and gas resource is well known. When this is not feasible, BLM should require that royalty payments from producing wells be paid within 30 days from the 

first month of production into an interest earning escrow account. 

Eighth, S. 2132 should create a low sulfur diesel tax credit for tribal refineries. 

This credit would be in addition to the existing credit for small business refiners. 

This legislation would retain the 1,500-employee cap and 5 cents per gallon credit, 

but remove the barrel and time limits, and provide that the credit may be sold for 

equity. 

Finally, S. 2132 should open the doors of the Department of Energy’s (DOE) energy efficiency programs to Indian tribes. Despite a longstanding state program, 

there are no ongoing programs to support tribal energy efficiency efforts. DOE 

should allocate not less than 5 percent of existing state energy efficiency funding 

to establish a grant program for Indian tribes interested in conducting energy efficiency activities for their lands and buildings. 

The MHA Nation has included in its legislative proposals a tribal energy efficiency program that is modeled after the successful Energy Efficiency Block Grant 

(EEBG) program. Despite its success, the EEBG program was only funded one 

time—under the American Reinvestment and Recovery Act of 2009. To ensure an 

ongoing source of funding for tribal energy efficiency efforts, tribes should be provided a portion of the funding for state energy efficiency efforts. 

56 

Analysis of Indian Tribal Energy Development and Self-Determination Act 

Amendments of 2014 

In general, the MHA Nation supports S. 2132, the ‘‘Indian Tribal Energy Development and Self-Determination Act Amendments of 2014.’’ There are only a few problems with some of the provisions in S. 2132. The biggest problem is what is not in 

the bill. After 6 years of investigations, roundtables and hearings, S. 2132 barely 

scratches the surface of outdated laws and regulations, bureaucratic regulatory and 

permitting processes and insufficient federal staffing or expertise to implement 

those processes. While we appreciate the effort made to improve these areas of law, 

much more needs to be done. 

S. 2132 is focused on making changes to the Tribal Energy Resource Agreement 

(TERA) program that was authorized by Title V of the Energy Policy Act of 2005. 

The primary benefit of a TERA is to enable a tribe to enter into leases and rightsof-way without Secretarial approval. A TERA would allow a tribe to gain greater 

control over the multiple approvals needed for oil and gas development. 

The MHA Nation supports increasing tribal authority over energy development on 

Indian lands, but we are concerned about the effect the TERA program may have 

on the Federal Government’s trust responsibility to Indian tribes. The trust responsibility is one way that the Federal Government fulfills its treaty obligations to the 

MHA Nation and other tribes. As described in my testimony above, the MHA Nation 

is interested in working with the Federal Government to increase tribal authority 

in ways that do not potentially undermine the federal trust responsibility. 

We appreciate S. 2132’s new language that would help clarify the Secretary of the 

Interior’s trust responsibility in relation to leases and agreements made under a 

TERA. However, S. 2132 should include an additional requirement for the Secretary 

to further consult with tribes on the effect of a TERA on the Secretary’s trust responsibility. The Secretary should then be required to ensure that the results of this 

consultation are included in the regulations for implementing the TERA program. 

When laws like the TERA program are enacted, we should all fully discuss and understand any consequences for the trust responsibility and our treaties. 

S. 2132 includes a variety of other changes and initiatives that the MHA Nation 

supports. In some cases, we ask that the Committee revise these proposals to make 

them more likely to benefit Indian energy development. 

First, the MHA Nation supports a legislative directive for the Secretary to include 

tribes in well-spacing decisions. Currently, the BLM relies on state well spacing forums and often does not consult with tribes regarding this important issue. On our 

Reservation, the North Dakota Industrial Commission recently approved a well 

spacing plan that would have stranded $90 million in tribal minerals. The BLM was 

prepared to approve this plan without discussing it with the MHA Nation. We were 

lucky to learn about this decision from the BIA. Well spacing is to important to Indian tribes and the Federal Government’s trust and treaty responsibilities to be left 

to state forums that have no authority on Indian lands. 

Second, we support changes in S. 2132 that would make it more likely that the 

DOE would implement its long overdue Indian Energy Loan Guarantee Program. 

However, the language in S. 2132 falls short of requiring the Secretary of Energy 

to implement this program as was required for DOE’s other loan guarantee program, the Title XVII, Energy Innovations Loan Guarantee Program. DOE should be 

required to offer loan guarantees to Indian tribes. Indian energy loan guarantees 

are likely to be more successful than the Title XVII program because of the vast 

unlocked potential of Indian energy resources. As an example, Interior is already 

running a successful Indian loan guarantee program but it lacks the budget to fund 

expensive energy projects. 

Finally, the MHA Nation supports changes in S. 2132 that would allow tribes to 

apply for direct weatherization funding from DOE. However, S. 2132 only goes halfway to solving the problem. Allowing tribes to simply apply for direct funding is an 

important change, but Indian tribes need a weatherization program that is tailored 

to Indian Country. 

The MHA Nation included needed changes to DOE’s weatherization program in 

its legislative proposals. In addition to direct funding, DOE should reduce reporting 

requirements for Indian tribes, use weatherization standards that reflect the status 

of housing in Indian Country, and provide training for energy auditors in Indian 

Country. The weatherization program is a low-income program and its funding 

should go to those that need it most—in Indian Country poverty rates are two and 

half times the national average. 

The decades old weatherization program and its management by DOE is an affront to the Federal Government’s trust responsibility and DOE’s own ‘‘American Indian Tribal Government Interactions and Policy.’’ Funding intended, in part, for the 

members of Indian tribes should not be distributed through state governments who 

57 

then distribute the funding through state nonprofits. Regardless of whether this legislation is passed by Congress, DOE should immediately reform its weatherization 

program consistent with federal trust responsibilities. 

Conclusion 

I want to thank Chairman Tester, Vice Chairman Barrasso, Senator Heitkamp 

and the other members of the Committee for the opportunity to highlight the most 

significant issues the MHA Nation faces as we promote and manage the development of our energy resources. We do not need more studies or discussion. Instead, 

the attached legislative proposal and other important amendments should be included in S. 2132 as it is brought to the Senate floor. These amendments would, 

first, restructure how federal agencies work to oversee and approve energy development on Indian reservation and, second, ensure that Indian tribes are able to exercise full authority over energy development on our lands. The MHA Nation asks for 

the Committee and Congress’ support in these two areas as we continue to advance 

tribal authority over energy development on our lands. 

Attachment 

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PREPARED STATEMENT OF GORDON HOWELL, CHAIRMAN, BUSINESS COMMITTEE FOR

THE UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION

Chairman Tester, Vice Chairman Barrasso, and Members of the Committee on Indian Affairs, thank you for the opportunity to testify on S. 2132, the ‘‘Indian Tribal 

Energy Development and Self-Determination Act Amendments of 2011.’’ My name 

is Gordon Howell. I am the Chairman of the Business Committee for the Ute Indian 

Tribe of the Uintah and Ouray Reservation. The Ute Indian Tribe consists of three 

Ute Bands: the Uintah, the Whiteriver and the Uncompahgre Bands. Our Reservation is located in northeastern Utah. 

I. Introduction 

The Ute Indian Tribe is a major oil and gas producer. Production of oil and gas 

began on the Reservation in the 1940’s and has been ongoing for the past 70 years 

with significant periods of expansion. The Tribe leases about 400,000 acres for oil 

and gas development. We have about 7,000 wells that produce 45,000 barrels of oil 

a day. We also produce about 900 million cubic feet of gas per day. And, we have 

plans for expansion. The Tribe is in process of opening up an additional 150,000 

acres to mineral leases on the Reservation with an $80 million investment dedicated 

to exploration. 

The Tribe relies on its oil and gas development as the primary source of funding 

for our tribal government and the services we provide. We use these revenues to 

govern and provide services on the second largest reservation in the United States. 

Our Reservation covers more than 4.5 million acres and we have 3,175 members living on the Reservation. 

Our tribal government provides services to our members and manages the Reservation through 60 tribal departments and agencies including land, fish and wildlife management, housing, education, emergency medical services, public safety, and 

energy and minerals management. The Tribe is also a major employer and engine 

for economic growth in northeastern Utah. Tribal businesses include a bowling 

alley, supermarket, gas stations, feedlot, an information technology company, manufacturing plant, and Ute Oil Field Water Services, LLC. Our governmental programs 

and tribal enterprises employ 450 people, 75 percent of whom are tribal members. 

Each year the Tribe generates tens of millions of dollars in economic activity in 

northeastern Utah. 

The Tribe takes an active role in the development of its resources, however, despite our progress, the Tribe’s ability to fully benefit from its resources is limited 

by the federal agencies overseeing oil and gas development on the Reservation. For 

example, we need 10 times as many permits to be approved. Currently, about 48 

Applications for Permits to Drill (APD) are approved each year for oil and gas operVerDate Mar 15 2010 10:35 Jul 25, 2014 Jkt 088821 PO 00000 Frm 00065 Fmt 6601 Sfmt 6621 S:\DOCS\88821.TXT JACK

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ations on the Reservation. We estimate that 450 APDs will be needed each year as 

we expand operations. 

As the oil and gas companies who operate on the Tribe’s Reservation often tell 

the Tribe, the federal oil and gas permitting process is the single biggest risk factor 

to operations on the Reservation. In order for the Tribe to continue to grow and expand our economy the federal permitting process needs to be streamlined and improved. 

It has been 6 years since former Senator Dorgan called for reform of the bureaucratic permit approval process for energy projects. He reported that a single oil and 

gas well must navigate a 49-step process involving at least 4 understaffed federal 

agencies. The Tribe asks that the Committee finally take dramatic action to focus 

federal staff and resources on Indian energy development and provide the support 

tribes need to fully benefit from their energy resources. 

Since Senate Dorgan highlighted the issues there have been numerous Congressional hearings, testimony and roundtables. The Committee has developed an extensive record and there has also been much agreement about the need for change, but 

no new legislation has been moved out of Committee or passed by Congress. We 

have seen a few changes within the Administration, but much more needs to be 

done. 

II. A New Indian Energy Regulatory Office is Needed to Improve Staffing 

and Coordination 

Improvements in Bureau of Indian Affairs (BIA) energy staff and coordination are 

long overdue. Despite our tremendous oil and gas resources and the value of these 

resources to the Tribe and to domestic energy production, we have only 2 or 3 BIA 

staff involved in the oversight and processing of oil and gas permits on our Reservation. These BIA staff are responsible for ensuring that permits comply with a numerous federal laws and they must engage in extensive coordination with other federal staff located in remote offices. 

The Ute Tribe believes the best way to address these staffing and coordination 

issues is to establish a new Indian Energy Regulatory Office. This Office would be 

centrally located in Denver, Colorado, utilize and refocus existing federal resources 

in Denver, and serve as a new BIA Regional Office for energy producing tribes. To 

improve oil and gas permitting on Indian lands we need major reforms and highlevel federal coordination. In fact, this is exactly the solution that Congress chose 

for permitting of oil and gas development on federal lands. Why is Congress leaving 

Indian lands behind? 

In 2005, Section 365 of the Energy Policy Act authorized the Bureau of Land 

Management (BLM) to initiate a ‘‘Pilot Project to Improve Federal Permit Coordination.’’ The law allowed BLM to establish 7 pilot offices and streamline federal permitting by co-locating staff from different federal agencies in these offices. Recently, 

Congress passed a bill to expand these pilot offices. 

We need a similar effort for Indian lands. BIA is the most important federal agency charged with supporting Indian energy, yet there are only a handful of BIA employees with energy expertise. A high-level regulatory office would encourage BIA 

to hire staff with energy expertise, provide technical and financial management support needed by tribes, and improve coordination of Indian energy permitting across 

Interior and the Federal Government. 

The Ute Tribe has developed a legislative proposal to establish an Indian Energy 

Regulatory Office. I have attached to my testimony a Ute Tribal Resolution setting 

out the need and propose of this office and providing proposed legislative text. This 

proposal utilizes existing funding and staff, but refocus these resources as a BIA Regional Office that would support BIA Agency Offices with high levels of energy permitting. We ask that this proposal be included in S. 2132 before it is approved by 

this Committee. 

III. No-Cost Improvements to Indian Energy Permitting 

The Ute Tribe supports S. 2132, but much more needs to be done. In prior Congresses and in response to requests by former Senator Akaka, Senator Barrasso 

and, on the House side, Congressman Young, the Tribe developed 32 legislative proposals to improve Indian energy permitting, coordination and financing. The Tribe 

submitted these proposals to the Committee on July 11, 2011, and we included these 

proposals in our written testimony on a prior version of this bill, S. 1648, on April 

19, 2012. We incorporate our prior testimony and these 32 legislative proposals in 

today’s testimony by reference. 

Today we highlight a few of these proposals that the Committee could include in 

S. 2132 without increasing the cost of the bill or government bureaucracy. The proposals we highlight would address gaps in the current system, clarify the authority 

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of tribal governments to oversee energy activities on tribal lands and increase the 

resources available to tribes to address all aspects of energy development on tribal 

lands. These proposals are attached to my testimony. They include: 

• ensuring that Communitization Agreements do not delay royalty payments; 

• ensuring that the Environmental Protection Agency’s new regulation of minor 

sources in Indian Country will not impede energy development; 

• clarifying tribal jurisdiction over right-of-ways; 

• ensuring that tribes have the tax revenues needed to support tribal infrastructure; 

• limiting the number of times Interior can require revisions to a Tribal Energy 

Resource Agreement Application; 

• setting aside a portion of existing energy efficiency funding for Indian tribes; 

• setting aside a portion of existing weatherization funding for Indian tribes; 

• streamlining environmental reviews on Indian lands by providing tribes with 

‘‘treatment as a sovereign’’ status under the National Environmental Policy Act 

(NEPA); 

• clarifying that Indian lands are not public lands and therefore are not subject 

to NEPA; and, 

• preventing BLM’s Hydraulic Fracturing Regulations, designed for public lands, 

from applying to Indian lands. 

Through these legislative changes, Congress would greatly streamline energy permitting on Indian lands providing more revenues for tribal governments, on-reservation jobs and increased supplies of domestic energy resources. On our Reservation, 

a typical permit can take about 480 days to be processed-more than one year. The 

Tribe takes delays in the permitting process seriously because the number of permits approved is directly related to the revenues the Tribe has available to fund our 

government and provide services to our members. 

The Tribe understands that oil and gas companies operating on the Reservation 

are currently limiting operations based on the number of permits the agencies are 

able to process. In particular, companies are limiting the number of drilling rigs 

they are willing to operate on the Reservation. Drilling rigs are expensive operations 

that move from site to site to drill new wells. Oil and gas companies often contract 

for the use of drilling rigs. Any time a drilling rig is not actively drilling a new well, 

it amounts to an unwanted expense. Consequently, oil and gas companies will only 

employ as many drilling rigs as permit processing will support. On our Reservation, 

the Tribe understands that some oil and gas companies who are currently using one 

drilling rig would increase their operations to three drilling rigs if permit processing 

could support this increase. 

One example of this is the Anadarko Petroleum Corporation’s operations on the 

Reservation. Anadarko reported that it needed 23 well locations approved per month 

in 2011 and beyond, but in 2010, their permits were approved at a rate of 1.7 per 

month. Anadarko informed the Tribe that unpredictable approvals of permits forces 

the company to alter its operational plans at the last minute and often results in 

the company temporarily moving its operations off the Reservation to state and private lands. With consistent and reliable permit approvals, the Tribe is hopeful additional drilling rigs will move on to tribal lands and increase the revenues available 

for the tribal government, our members, and our investments. 

IV. Analysis of S. 2132, the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014 

The Tribe supports S. 2132 and believes that it is a good start. S. 2132 would 

amend existing laws to provide tribes with improved opportunities to manage their 

own energy resources. However, S. 2132 only addresses a few areas of the law. 

Much more needs to be done to overcome barriers tribes face in Indian energy development and to put tribes on an equal playing field with state governments and 

other energy developers. In the rest of my testimony, I provide a section-by-section 

analysis of S. 2132’s provisions. 

A. Section 101. Indian Tribal Energy Resource Development 

The Tribe supports the amendments proposed in Section 101, but, in at least one 

case, more is necessary. First, this section would require the Secretary to consult 

an Indian tribe when adopting or approving an oil and gas well-spacing program 

or plan on the Tribe’s lands. This proposal was among the 32 legislative proposals 

submitted by the Tribe. For too long the BLM, on behalf of the Secretary, has approved well-spacing plans on Indian lands without involving tribes. Even worse, 

64 

BLM typically relies on well-spacing developed in State forums. Tribes should be involved in this decisionmaking process to ensure that Indian lands are being developed efficiently, that protected areas are avoided, and to ensure that tribes have 

every opportunity to work closely with their industry partners. 

Second, Section 101 also extends important planning authority to the Secretary 

of the Interior. When the Energy Policy Act of 2005 was passed, two Indian energy 

offices were created—one in the DOI and one in the Department of Energy (DOE). 

The DOE office was provided specific authority to assist tribes in overall energy 

planning. The DOI office was not provided similar authority. 

Both offices need this specific planning authority. Federal energy policy has long 

overlooked or ignored tribes. Today tribes are catching up quickly and need the 

same or similar federal assistance that states rely on to manage their energy resources. In addition, Congress must support this statutory authority with needed 

appropriations to help tribes overcome decades of neglect by federal energy policy 

makers. 

Third, Section 101 would require the Secretary of Energy to develop regulations 

for a long-overdue Indian energy loan guarantee program that was originally authorized in 2005 but never implemented. The Tribe believes that developing regulations would go a long way toward implementing the program and ensuring needed 

appropriations from Congress, but more is needed. 

The law also needed to be changed to actually require the Secretary of Energy 

to provide these loan guarantees. Current law only states that the Secretary ‘‘may’’ 

provide guarantees. Making the program mandatory would provide the Indian energy loan guarantee program with the same authority provided to the Title XVII 

loan guarantee program which was authorized at the same time for energy innovations. Under the Title XVII program, the law stated that the Secretary ‘‘shall’’ provide guarantees. 

We need similar energy innovations on Indian lands and we need similar laws to 

require that they be implemented. The Tribe specifically included this recommendation among its 32 legislation proposals because financing expensive energy projects 

is one of the most significant barriers to Indian energy development. Providing 

tribes with the opportunity to secure government backed financing would promote 

tribal self-determination in the development of energy resources because tribes 

would have the opportunity to be the owners of their development companies rather 

than relying on others to develop tribal resources. 

DOI currently manages a successful Indian loan guarantee program for tribal 

businesses, but it lacks the budget for more expensive energy projects. Tribes need 

the level of funding proposed by the DOE loan guarantee program to cover the investment needed for energy projects. With this level of funding tribes will be encouraged to be owners of their own energy projects and vast untapped tribal energy resources can be developed for the long-term benefit of tribal communities and the Nation’s domestic energy supplies. 

B. Section 102. Indian Tribal Energy Resource Regulation 

The amendments in this section would extend DOI funding opportunities for energy surveys and inventories to a new entity called a ‘‘tribal energy development 

organization’’ that is defined elsewhere. The Tribe believes that it would be useful 

for tribal energy development organizations to be able to receive funding through 

this program. However, it is more important and would advance Indian self-determination for Congress to provide sufficient appropriations to fund Indian energy 

surveys and inventories in the first instance. Funding is needed to ensure that 

tribes can enter into energy development negotiations with sufficient information 

and thereby promote Indian energy development. 

C. Section 103. Tribal Energy Resource Agreements 

The Tribe supports the changes Section 103 would make to the existing Tribal Energy Resource Agreement (TERA) program. As you know, the TERA program generally provides a process for Indian tribes to apply and potentially gain authority 

to approve leases, business agreements, and rights-of-way for energy development 

or transmission on their lands without Secretarial review. Many of the proposed 

changes in Section 103 would make the existing TERA application process more certain by providing timelines, requiring the Secretary to act on a TERA or it is 

deemed approved, and making more specific the reasons the Secretary may disapprove a TERA application. These are needed changes. I understand that since the 

program was created in 2005, no tribe has applied for a TERA, in part, because of 

the lengthy and uncertain application process. 

Section 103 would also expand some TERA authority to a new category of tribes. 

This new category would be tribes who have carried out a contract or compact under 

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the Indian Self- Determination and Education Assistance Act (ISDEAA) involving 

activities related to the management of tribal land for not less than three years and 

without a material auditing exception. This new category of tribes may exercise 

TERA authority when the other party to the lease is a ‘‘certified’’ tribal energy development organization that is majority-owned and controlled by the tribe, or the 

tribe and one or more other tribes. 

The Tribe strongly supports this change to the TERA program. This change would 

provide tribes, with demonstrated experience, the authority to approve some of their 

own leases, business agreements, and rights-of-way without the delays inherent in 

Secretarial review and approval. The Tribe has long managed its own energy development, lands and natural and cultural resources. The Tribe’s experience in these 

areas should be recognized by the Federal Government without the Tribe being 

forced to take the additional, extensive, and uncertain step of completing a TERA 

application. 

This change also promotes tribal self-determination and local control over the development of tribal energy resources. Tribes would be encouraged to develop tribally 

owned energy companies to develop their resources because tribes could enter into 

leases and agreements with tribally owned businesses without Secretarial oversight. 

This change allows tribes to avoid understaffed and bureaucratic federal agencies 

and the permitting delays associated with those agencies. Instead, tribes would be 

free to develop their own processes for more efficiently reviewing and approving 

leases and agreements with tribally owned businesses. 

The Tribe also strongly supports changes proposed in Section 103 that would require the Secretary to make funds available to tribes operating an approved TERA 

pursuant to annual funding agreements—similar to ISDEAA contracts. If the tribes 

are going to take over these responsibilities for the Federal Government, then the 

Federal Government must provide adequate funding to tribes. Although it is unclear 

how much funding would be available from the Secretary, any new opportunity for 

funding energy activities is a significant change. 

In addition to any federal funding may become available, tribal self-determination 

in the area of energy development would be better advanced if Congress affirmed 

tribes’ exclusive authority to tax activities on Indian lands. Managing the permitting of energy resources, not to mention the infrastructure needs, is an expensive 

undertaking for any government. Tribes need the same revenues that other governments rely on to oversee and provide the needed infrastructure for energy development. 

Finally, the Tribe supports changes in Section 103 that would help to clarify the 

Secretary’s trust responsibilities for leases and agreements negotiated pursuant to 

a TERA. The proposed changes use language that is similar to existing law for Indian Mineral Development Agreements 25 U.S.C. § § 2101–08 (1982) (IMDA). The 

IMDA’s explanation of the Secretary’s trust responsibilities has stood the test of 

time and is an appropriate model for the Secretary’s trust responsibilities pursuant 

to a TERA. 

D. Section 104. Conforming Amendments 

Section 104 expands the definition of ‘‘tribal energy development organizations’’ 

to include a greater variety of tribally owned business entities that can utilize the 

authorities provided to tribal energy development organizations. The Tribe supports 

this change. The Tribe agrees that it is important and will advance Indian energy 

development to specifically recognize and extend authorities to tribally owned business entities. In many cases, tribally owned business entities, as opposed to just 

tribal governments themselves, are needed for the practical and efficient development of resources. 

E. Section 201. Issuance of Preliminary Permits or Licenses 

The Tribe supports Section 201 which would provide tribes with the same preference that states and municipalities have over private applicants for hydroelectric 

preliminary permits or licenses. It is appropriate to extend this preference to Indian 

tribes because tribal governments have many of the same public water development 

needs as state and municipal governments. 

However, subsection 201(b) ‘‘Applicability’’ is neither appropriate nor needed and 

should be deleted from S. 2132. This subsection would limit the tribal preference 

and is intended to protect previously issued preliminary permits and original licenses that had been accepted for filing. Subsection 201(b)(1) is not needed because 

the underlying law, 16 U.S.C. § 800(a), already provides protection for previously 

issues preliminary permits. Section 800(a) provides that governments may only receive this preference ‘‘where no preliminary permit has been issued.’’ 

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Subsection 201(b)(2) is also not an appropriate protection for original licenses that 

have been accepted for filing. Congress already provided a process for ‘‘competing’’ 

license applications at 16 U.S.C. § 808 and subsection 201(b)(2) should not attempt 

to override existing law. In Section 808, Congress encourages competition for licenses and provides standards to ensure the best development of public waterways. 

The proposed changes in subsection 201(b)(1) and (2) would limit competition and 

result in water projects that are not the best available for tribal and public waterways. 

F. Section 202. Tribal Biomass Demonstration Project 

The Tribe supports Section 202 and requests that these provisions be made permanent and available to many tribes rather than just a limited demonstration 

project. Section 202 would require the Secretary of Agriculture or the Secretary of 

the Interior to enter into long-term contracts with tribes to collect woody debris on 

federal lands for biomass energy production. Longer contract terms are needed to 

help finance and justify the investment in biomass energy generation facilities. The 

Tribe could utilize a longer-term contact to test development of biomass facilities 

and make use of National Forests that have been included within our Reservation. 

G. Section 203. Weatherization Program 

The Tribe supports the change proposed in Section 203, but thinks that it does 

not go far enough to make weatherization programs work in Indian Country. The 

Tribe requests that Section 203 be replaced with the weatherization proposal included among the Tribe’s 32 legislative proposals. The Tribe’s proposal includes a 

number of changes to the weatherization program so that it would work in Indian 

Country 

Section 203 would provide tribes with the ability to apply for direct access to 

weatherization funding. This authority should have been provided long ago. Under 

current law, Indian tribes are supposed to receive federal weatherization funding 

through state programs funded by DOE. However, very little funding reaches Indian 

tribes, despite significant weatherization needs. 

If a tribe wants to receive direct funding from the (Department of Energy) DOE, 

it must prove to DOE that it is not receiving funding that is equal to what the state 

is providing its non- Indian population. This arrangement is a violation of the government-to-government relationship between Indian tribes and the Federal Government, and the federal trust responsibility. DOE does not even track the weatherization needs of Indian tribes or the funding distributed to tribes. When former Senator Dorgan raised this issue with DOE in the 111th Congress, DOE reported that 

it had no idea how much weatherization funding was actually received by Indian 

tribes. 

Over the years that the weatherization program has been in existence, tribes have 

missed out on millions in funding. Each year the weatherization program is funded 

at around $50 million per year, and under the American Reinvestment and Recovery Act of 2009 $4 billion was provided for weatherization needs. This funding is 

intended for low-income households and should go to those who need it most. On 

Indian reservations poverty rates are 2 to 3 times higher than national averages. 

Section 203 should include additional changes to the weatherization program otherwise Indian tribes will still not be able to utilize the funding. As written, Section 

203 requires tribes to comply with the same standards as state governments who 

have been receiving weatherization assistance for decades. This puts the burden on 

tribes to overcome decades of neglect by the Federal Government for energy use and 

management on Indian reservations. Without standards and training that are appropriate to Indian country, many Indian tribes will still not be able to utilize this 

funding opportunity. Section 203 should include reporting standards that make 

sense in Indian country and provide for training of energy auditors to serve Indian 

reservations. 

H. Section 204. Appraisals 

The Ute Tribe supports streamlining the appraisal process and providing tribes 

options for obtaining appraisals. Interior agencies involved in energy development 

are already understaffed. Indian tribes and the Interior should be able to rely on 

appraisals conducted by the tribe itself or certified, third party appraisers. 

I. Section 205. Leases of Restricted Lands for Navajo Nation 

This section provides that the Navajo Nation may submit regulations governing 

mineral leases for approval by the Secretary, and, once approved, would provide the 

Navajo Nation with the authority to approve mineral leases without subsequent review and approval by the Secretary. The Ute Tribe supports providing tribes with 

independent authority to approve mineral leases and believes this section should be 

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expanded to include all tribes who submit mineral leasing regulations for approval 

to the Secretary. 

V. Conclusion 

S. 2132 is a good start, but much more is needed to support and promote Indian 

energy development. Indian energy resources have the potential to provide many 

tribes and their members with long-term financial security and on-reservation jobs 

as well as increased domestic energy resources. However, to reach these goals, Congress and the Administration must improve and coordinate Indian energy permitting, provide tribes with access to federal energy programs, and clarify tribal authorities to provide the resources necessary to support Indian energy development. 

I would like to thank Chairman Tester, Vice Chairman Barrasso and members 

of the Committee for the opportunity to present this testimony on behalf of the Ute 

Indian Tribe. The Tribe stands ready to work with the Committee to find ways to 

eliminate barriers to Indian energy development. The current barriers have a direct 

effect on the Tribe’s revenues, our ability to invest in the future, and the services 

we are able to provide our members, our children and grandchildren. 

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