U.S. GOVERNMENT PUBLISHING OFFICE

31–368 PDF WASHINGTON : 2018

TRIBAL ENERGY RESOURCES: REDUCING BARRIERS 

TO OPPORTUNITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

THE INTERIOR, ENERGY, AND ENVIRONMENT 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JULY 17, 2018 

Serial No. 115–91 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://oversight.house.gov 


KING-6430 with DISTILLER
(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

Trey Gowdy, South Carolina, Chairman 

John J. Duncan, Jr., Tennessee 

Darrell E. Issa, California 

Jim Jordan, Ohio 

Mark Sanford, South Carolina 

Justin Amash, Michigan 

Paul A. Gosar, Arizona 

Scott DesJarlais, Tennessee 

Virginia Foxx, North Carolina 

Thomas Massie, Kentucky 

Mark Meadows, North Carolina 

Ron DeSantis, Florida 

Dennis A. Ross, Florida 

Mark Walker, North Carolina 

Rod Blum, Iowa 

Jody B. Hice, Georgia 

Steve Russell, Oklahoma 

Glenn Grothman, Wisconsin 

Will Hurd, Texas 

Gary J. Palmer, Alabama 

James Comer, Kentucky 

Paul Mitchell, Michigan 

Greg Gianforte, Montana 

Elijah E. Cummings, Maryland, Ranking 

Minority Member 

Carolyn B. Maloney, New York 

Eleanor Holmes Norton, District of Columbia 

Wm. Lacy Clay, Missouri 

Stephen F. Lynch, Massachusetts 

Jim Cooper, Tennessee 

Gerald E. Connolly, Virginia 

Robin L. Kelly, Illinois 

Brenda L. Lawrence, Michigan 

Bonnie Watson Coleman, New Jersey 

Raja Krishnamoorthi, Illinois 

Jamie Raskin, Maryland 

Jimmy Gomez, Maryland 

Peter Welch, Vermont 

Matt Cartwright, Pennsylvania 

Mark DeSaulnier, California 

Stacey E. Plaskett, Virgin Islands 

John P. Sarbanes, Maryland 

SHERIA CLARKE, Staff Director 

WILLIAM MCKENNA, General Counsel 

EMILY WONG, Counsel 

KILEY BIDELMAN, Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON THE INTERIOR, ENERGY AND ENVIRONMENT

GREG GIANFORTE, MONTANA, Chairman 

Paul A. Gosar, Arizona, Vice Chair 

Dennis Ross, Florida 

Gary J. Palmer, Alabama 

James Comer, Kentucky 

Michael Cloud, Texas 

Stacey E. Plaskett, Virgin Islands, Ranking 

Minority Member 

Jamie Raskin, Maryland 

Jimmy Gomez, California 

(Vacancy) 


KING-6430 with DISTILLER
(III) 

C O N T E N T S 

Page 

Hearing held on July 17, 2018 ............................................................................... 1 

WITNESSES 

The Honorable Alvin Not Afraid, Jr., Chairman, Crow Tribe of Indians 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 7 

The Honorable Adam Red, Councilman, Southern Ute Indian Tribe 

Oral Statement ................................................................................................. 11 

Written Statement ............................................................................................ 13 

Mr. Eric Henson, Executive Vice President, Compass Lexecon; Research Affiliate, The Harvard Project on American Indian Economic Development; Visiting Senior Scholar, The Harvard University Native American Program 

Oral Statement ................................................................................................. 23 

Written Statement ............................................................................................ 25 

Mr. Christopher Deschene, Partner, Rosette, LLP 

Oral Statement ................................................................................................. 40 

Written Statement ............................................................................................ 42 

APPENDIX 

Statement for the Record of the Property and Environment Research Center, 

submitted by Chairman Gianforte ...................................................................... 60 


KING-6430 with DISTILLER

KING-6430 with DISTILLER
(1) 

TRIBAL ENERGY RESOURCES: REDUCING 

BARRIERS TO OPPORTUNITY 

Tuesday, July 17, 2018 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE INTERIOR, ENERGY, AND

ENVIRONMENT, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C. 

The subcommittee met, pursuant to call, at 10:08 a.m., in Room 

2247, Rayburn House Office Building, Hon. Greg Gianforte [chairman of the subcommittee] presiding. 

Present: Representatives Gianforte, Palmer, Comer, and 

Plaskett. 

Mr. GIANFORTE. The Subcommittee on Interior, Energy, and the 

Environment will come to order. Without objection, the Chair’s authorized to declare a recess at any time. I want to thank the panel 

for being here. I will begin with my opening statement. 

Good morning. The Subcommittee on Interior, Energy, and the 

Environment is meeting today to discuss barriers to energy development on tribal lands. According to the most recent Census report, Native Americans are almost twice as likely to live in poverty 

than the general population. On reservations throughout the country unemployment rates are higher, and per capita income is lower 

than national averages. 

Meanwhile tribal lands contain a wealth of untapped energy resources. According to one estimate, tribal lands contain nearly 30 

percent of America’s coal reserves west of the Mississippi, and as 

much as 20 percent of the known natural gas and oil reserves. In 

my home state of Montana the Crow Nation alone contains approximately 9 billion tons of coal. 

Energy development projects on tribal lands can create jobs, opportunity, and a valuable source of revenue for tribal members. Despite the many positive economic benefits tribes can reap from developing their energy resources, the Federal Government makes it 

extremely difficult for them to do so. Most tribal land is held in 

trust by the Federal Government. The trust relationship charges 

government agencies, primarily the Bureau of Indian Affairs, within the Department of Interior, with ensuring the tribal lands and 

resources are well managed. Instead, the government has saddled 

tribes with a series of regulatory burdens. First, the energy development projects on tribal lands cost more than comparable projects 

on private property, or even other non-tribal federal lands. 

For example, in the State of Colorado there is no fee for applying 

for a drilling permit on privately owned land. However, BLM 


KING-6430 with DISTILLER
2 

charges almost $10,000 for a similar drilling permit on tribal land. 

Not only is development on tribal lands more expensive, the process is also more complex. On tribal lands acquiring the necessary 

permits for a project requires working with a minimum of 4 federal 

agencies and completing 49 different steps. On private land, permits can be obtained in as few as four steps. 

The added complexity of permitting process on tribal lands goes 

hand in hand with regulatory delays that make developing tribal 

energy resources an uphill battle fought at great cost to tribes. 

Even the most simple of tasks can fall prey to the bureaucracy. 

One tribe reported waiting six years for BIA to complete a routine title search, something that takes a matter of days for a piece 

of private property. Another tribe represented at today’s hearing 

lost an estimated $95 million on a single project while waiting 

years for BIA to approve right-of-way agreements. Given these 

challenges it should come as no surprise that many operators are 

discouraged from pursuing projects on tribal lands. These added 

costs and burdens create unnecessary impediments for tribes that 

wish to make decisions about how to use their own land, and they 

disadvantage tribes in comparison to similarly situated private 

land owners. 

Studies abound documenting the government’s shameful mismanagement of tribal resources. In 2017, the Government Accountability Office added tribal energy programs to their list of federal 

programs most at risk of fraud, waste, abuse, and mismanagement, 

citing a decade’s worth of research. Fortunately, GAO also made a 

number of associated recommendations to help BIA improve its 

management of tribal resources, and BIA has reported progress towards implementing them. 

Today’s hearing will provide an opportunity for the committee to 

hear from the tribes about whether any of the changes BIA has implemented to date have had an impact. Most importantly, the testimony we hear today will highlight the biggest challenges tribes 

face when they want to develop their own valuable energy resources. I look forward to hearing from our witnesses today about 

their experiences, and especially their suggestions for an ongoing 

path to a future where tribes face fewer obstacles in using your 

land, their resources, as they see fit. 

Before we begin, without objection I would like to submit for the 

record testimony from the Property and Environment Research 

Center, a think tank based in Montana, and thank them for contributing to the conversation on tribal energy issues. 

Mr. GIANFORTE. I would now like to recognize my good friend, 

the ranking member of the subcommittee, Ms. Plaskett, for her 

opening statement. 

Ms. PLASKETT. Thank you very much, Mr. Chairman, and thank 

you all for being here this morning. Thank you for the testimony, 

and the expertise you are going to be providing for this committee 

during this hearing. 

Because many tribal communities are economically reliant on development of energy resources on their lands, but face barriers to 

using those resources, I am glad we are devoting a hearing that 

will address continuing concerns, and air solutions. Seventeen 

months ago the Government Accountability Office high-risk report 


KING-6430 with DISTILLER
3 

has outlined several problems that the tribes across the country 

face in the areas of energy, healthcare, and education. 

The report characterized the Bureau of Indian Affairs’ handling 

of tribal energy resources as mismanagement, full of delays that 

cost revenue to struggling tribes. One of the impediments to wellmanaged energy development is a failure to invest in a federal 

workforce to provide expertise that many tribes lack. I, coming 

from the Virgin Islands, understand when people can on one hand 

tell you that you are mismanaging, and that you have not used resources appropriately, but they have not actually given you the appropriate resources with which to get the job done initially. In fact, 

President Trump’s hiring freeze and reorganization have aggravated that problem. BIA needs more funding to assist responsible 

energy development on tribal lands, not the status quo or possible 

cuts. 

As Russell Begaye, President of the Navajo Nation, told a Department of Interior panel a year ago, ‘‘Reducing the size of the 

BIA could affect the fulfillment of the trust duties the U.S. has to 

tribes. The BIA should be filled with experts. We need the BIA to 

bring in economists, technology experts, and energy and resource 

engineers to help tribes develop the resources on their land.’’ 

I know, as I said from our experience in the U.S. Virgin Islands, 

that funding and expertise from the Federal Government can make 

a crucial difference in the lives of many. We also have severe energy issues. From 2009 to 2013, our islands developed and began 

implementing a long-term strategy to transition from reliance on 

fossil fuel to a clean sustainable energy future. With financial assistance from DOE’s Office of Energy Efficiency and Renewable Energy, and from the Interior Department’s National Renewable Energy Laboratory, the U.S. Virgin Islands has thoroughly evaluated 

its clean energy opportunities, and made a $65 million investment 

in solar power. 

The Department of Energy and technical experts from its renewable energy worked with our water and power authority to identify 

the best combination of energy technologies for the Virgin Islands 

to meet its clean energy goal. In 2012, a $60,000 grant from the 

Department of Interior led to the development of a network of engineers, contractors, and financiers, who assisted the Virgin Islands’ 

power customers in implementing clean energy projects. 

We needed and appreciated both the financing and the expertise 

provided by both the Department of Energy, working with the Department of Interior, to help the Virgin Islands reach its clean energy goals. Likewise, such federal investments, not only of dollars, 

but also of expertise, both technically, as well as through support 

through the process, is vital in the effort to eventually transition 

tribes to capable management of their resources. 

Proposals to simply give tribes more autonomy without investing 

more expertise, to give them the financial resources they need, as 

well as guide them through complicated processes, involving environmental laws, rights of way, and leases, could leave some tribes 

open to exploitation, or other harm. I am concerned that President 

Trump’s and Secretary Zinke’s proposed reorganization could severely compromise the ability of BIA and the Department of EnerVerDate Nov 24 2008 10:18 Sep 25, 2018 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\31368.TXT APRIL

KING-6430 with DISTILLER
4 

gy’s Office of Indian Energy and Economic Development from providing the expertise many tribes need. 

I am asking that my colleagues on both sides of the aisle look 

to ensuring that any DOI reorganization does not further impede 

the BIA from fulfilling its trust responsibility, and give the BIA the 

resources and staffing it needs to ensure the best energy future for 

all the tribal communities. 

Thank you so much, Mr. Chairman, for holding this hearing, and 

I look forward to the testimony and the questions to follow. 

Mr. GIANFORTE. Yes. Thank you. And I am very pleased to introduce our panel today. I want to thank each one of you for traveling 

here. I understand you went through some circuitous routes, and 

lost some sleep, but it’s good to have you hear all smiling on the 

panel. 

First, the Honorable Alvin Not Afraid, Jr., Chairman of the Crow 

Tribe of Indians in my home State of Montana; the Honorable 

Adam Red, Councilman of the Southern Ute Indian Tribe; Mr. Eric 

Henson, Executive Vice-President of Compass Lexecon; and Mr. 

Christopher Deschene, partner at Rosette, LLP. Thank you, gentlemen, for being here. 

Pursuant to committee rules, all witnesses will be sworn in before they testify. Please remain seated, and raise your right hand. 

[Witnesses sworn.] 

Mr. GIANFORTE. The record will reflect that the witnesses answered in the affirmative. In order to allow time for our discussion 

here today, please limit your testimony to five minutes. Your entire 

written testimony will become part of the permanent record, however. As a reminder, the clock in front of you shows your remaining 

time. The light will turn yellow when you have 30 seconds left, and 

red when your time is up. Also, please remember to press the button to turn the microphone on. It does not work automatically. 

So with that, I would like to recognize Chairman Not Afraid for 

your testimony. 

WITNESS STATEMENTS 

STATEMENT OF ALVIN NOT AFRAID 

Mr. NOT AFRAID. Good morning. Thank you Chairman Gianforte, 

Ranking Member Plaskett, and Member Comer. Also the members 

that serve on this panel. Very important subcommittee we have 

here. 

I appreciate the opportunity to share my views and the views of 

the people I represent regarding the impediments to energy production in Indian Country. My name is Alvin Not Afraid, Jr., and I am 

the Chairman of the Crow Tribe of Indians. We are more than 

14,000 members strong, and we own more than 2.2 million acres 

in the West, along the Bighorn River. Our land is rich in energy 

resources, natural resources, and minerals. So this topic is close to 

the hearts of the Crow People. 

The Crow Tribe owns 9 billion ton of mineable coal, constituting 

3 percent of the U.S. reserves. Yet, we only have one active mine. 

Colorado-based Westmoreland Resources currently leases the 

Absaloka Mine, which has existed since 1974. We love our land and 

our homes, but our inability to grow our local economy through the 


KING-6430 with DISTILLER
5 

development of our energy resources ensures that we will never 

rise out of the cycle of poverty that we find ourselves in today. 

While every impediment we face cannot be fixed by the Federal 

Government, many of them can, such as one, cumbersome Indian 

coal and oil gas approval processes; number two, long wait times 

for those approvals; number three, numerous federal agencies and 

offices, both within and beyond the Bureau of Indian Affairs that 

must grant approval for energy development contracts to move forward; four, cumbersome regulations promulgated without meaningful consultation with energy tribes; though we are appreciative of 

the work done to repeal many of those in this last year by the Administration; number five, poorly kept and incomplete records from 

which critical decisions must be made; number six, inexperienced 

bureaucrats who oversee the entire approval process. 

Barriers to economic development costs Indians millions of dollars in lost revenue. If the Crow Tribe wants to enter into an oil 

gas lease on a land that the tribe owns, we face a process of long 

wait times, usually years, for approval. We also face bureaucracy. 

The BIA was created long ago, in part because it was thought that 

Indians could not intellectually evaluate business contracts, purchase agreements, leases, and other economic tools. Yet, in an ironic twist of fate, it is now the BIA, according to the GAO and Interior’s OIG, that lacks the intellectual capacity to evaluate business 

contracts, purchase agreements, leases, and other energy development mechanisms. 

Consider this from the viewpoint of a businessman. This will be 

easy exercise for you, Mr. Chairman, being a self-made and highly 

successful businessman yourself. Would you have asked the random tourist, with no knowledge of your company, who was passing 

through Bozeman, to approve a purchase agreement you wish to 

make? As CEO of Right Now Technologies, I am sure you would 

not have. They do not have the expertise that you do about your 

company. So it doesn’t make any sense, right? And that’s exactly 

how we feel at the Crow Nation. 

It will take time to roll back the oppressive regulations that the 

previous administration used to perpetuate the war on coal, and we 

appreciate all the work that has been done to date by this Congress 

and this Administration. All of us in government roles during this 

time are in the same predicament. From the president, to Congress, to me, as chairman, we all find that we are fixing problems 

not of our making, and certainly not of our choosing. 

So how can we work together to fix these problems? I advocate 

for the following. One, at home I am working with federal investigators to clean up decades of financial mismanagement, and codify oversight controls within our government. These are self-help 

steps that we are taking in order to be accountable for our own 

welfare, and to create a healthy atmosphere for private investment 

in Crow. 

Number two, at the congressional level I ask you to cosponsor 

and support S.245, sponsored by Senator Hoeven, and passed by 

the Senate in December of 2017. I believe that we will correct these 

issues currently stifling progression of the Tribal Energy Resource 

Agreement mechanism. If these fixes become law, it is my intention 


KING-6430 with DISTILLER
6 

to ensure that the Crow Tribe is the first to apply for and enter 

into a TERA agreement with the Secretary of Interior. 

Three, finally, I urge you to continue to seek the expertise of organizations that are educating tribal leaders, federal-elected officials, and future generations as to the best ways to promote private 

economies in Indian Country. Specifically, the research of Dr. Terry 

Anderson, at the Hoover Institute, and the tribal leaders of Alliance for Renewing Indigenous Economies. Their scholarship is 

groundbreaking, and it remains some of the only, such as reservation-based, free-market focus decisions in the public sphere today. 

In closing, while most of us recognize the barriers of tribal energy development, the answers are not simple. We are trying to 

free up economies on the reservation underneath a complex framework of mixed government ownership of assets. Our nation-to-nation relationship means that we are all caught in a delicate web 

of legal promises and historical responsibilities, as well as racial 

and cultural sensitivities. 

So at this time I would like to thank Chairman Gianforte for the 

invite to speak on behalf of Crow Tribe. Thank you. 

[Prepared statement of Mr. Not Afraid follows:] 


KING-6430 with DISTILLER
7 


KING-6430 with DISTILLERInsert offset folio 1 here 31368.001
8 


KING-6430 with DISTILLERInsert offset folio 2 here 31368.002
9 


KING-6430 with DISTILLERInsert offset folio 3 here 31368.003
10 


KING-6430 with DISTILLERInsert offset folio 4 here 31368.004
11 

Mr. GIANFORTE. Thank you, Chairman. 

And Councilman Red, you are recognized for your five minutes 

of testimony. 

STATEMENT OF ADAM RED 

Mr. RED. Thank you. Good morning, Chairman Gianforte, Ranking Member Plaskett, and members of the subcommittee. I am 

Adam Red, elected member of the Southern Ute Indian Tribal 

Council. Thank you for inviting us to testify. Our tribe story attests 

to our ability to responsibly manage our own natural resources. We 

are an example of the positive impact of federal legislation that allows tribes to assume a greater role in energy development on their 

reservations. 

Federal laws require federal review and approval of most realty 

transactions involving Indian lands and minerals. Our tribal leadership has always believed that we can do a better job of managing 

our resources than would federal agencies. Unlike federal agencies, 

we have a vested interest in protecting our resources and maximizing economic returns for those resources. In keeping with that 

philosophy, we have taken advantage of most congressionally created opportunities to exercise self-determination, like the Indian 

Mineral Development Act of 1982. The IMDA allowed tribes to negotiate their own leases, subject, of course, to BIA approval. With 

that important legislation, we negotiated favorable terms in our oil 

and gas leases, which United States didn’t have the incentive to 

negotiate for on our behalf. 

Less than 50 years ago our tribe had to stop distributing per capita payments to tribal members because we couldn’t afford them. 

Today, the tribe’s oil and gas companies conduct activities in several Western states. We also invest in non-energy projects, including real estate properties across the country. Today, a tribe provides health insurance for its tribal members, and promises all 

members access to a college education. We are the largest employer 

in our region, and we are the only tribe in the nation with a AAA 

credit rating from Standard & Poor’s. We have been successful despite the obstacles created by underfunded, understaffed federal 

agencies like the BIA. Those obstacles are a very real problem, because they create a significant disincentive to developing oil and 

gas on tribal land. 

For example—please queue the slide. Permitting a well on private land typically takes four months. Permitting a well on tribal 

land can take more, like 30 months. A drilling permit from the 

state for drilling on private land is free. A drilling permit from the 

BLM to drill on tribal land is $9,500. Tribal land is treated like 

public land, and is subject to NEPA and a public comment process. 

Private land is not. 

On reservations like Southern Ute, where private land and tribal 

land are interspersed, drilling on private land is significantly faster 

and cheaper, and an operator can drill on private land and still 

drain tribal minerals. Please take down the slide. 

We are grateful for the new attention GAO and OIG have 

brought to this issue, but there is a lot of work to be done. We have 

some suggestions. Enact S.245, which will allow tribes to choose to 

play a larger role in the energy development process, while the 


KING-6430 with DISTILLER
12 

United States plays a smaller role. This is a solution that can be 

achieved without increasing federal funding or staffing. 

BIA must recruit realty staff in order to process our transactions. 

With the Southern Ute agency we have had two realty specialist 

positions that have been vacant for several years. Recently, the 

agency extended two offers to fill those positions. But one of the selected applicants ultimately declined her offer after the Bureau 

failed to approve the incentive package in a timely manner. BIA always tells us they can’t hire people here because of the high cost 

of living in our region. We need a cost-of-living adjustment from 

OPM for our area. 

BIA must hire and train people to work on TAAMS, so that the 

BIA can verify land ownership information in a timely manner. 

With more TAAMS trainings, more BIA staff devoted to TAAMS, 

and loosening of the requirements for tribally funded staff to do 

TAAMS and coding, this situation could be improved. 

Interior must define inherently federal functions. Under the Energy Policy Act of 2005 Congress established a mechanism called 

a TERA that allows tribes to enter into energy-related transactions 

without prior BIA review and approval. This would have been a 

dramatic improvement, but the implementing regulations created 

an unlegislated, undefined exception to the scope of TERA. 

The implementing regulations say a tribe may not assume inherently federal functions. Despite our numerous requests Interior refuses to define that term. Contrary to the GAO’s recent findings, 

the BIA has failed to resolve this regulatory blockage. Another suggestion we have is that Congress act to accelerate environmental 

studies under NEPA and ensure timely NHPA compliance. 

In conclusion, our tribe, like many other tribes, is well equipped 

to utilize our energy resources. We need more support for tribal 

self-determination for tribes willing to assume responsibility for 

managing their energy resources. We believe that this approach 

should be at the forefront of any congressional oversight and action 

taken in response to GAO’s and OIG’s reports. The tribe appreciates the continued efforts of this Congress, this subcommittee, 

and others to encourage tribal self-determination through economic 

and energy development. Thank you. 

[Prepared statement of Mr. Red follows:] 


KING-6430 with DISTILLER
13 


KING-6430 with DISTILLERInsert offset folio 5 here 31368.005
14 


KING-6430 with DISTILLERInsert offset folio 6 here 31368.006
15 


KING-6430 with DISTILLERInsert offset folio 7 here 31368.007
16 


KING-6430 with DISTILLERInsert offset folio 8 here 31368.008
17 


KING-6430 with DISTILLERInsert offset folio 9 here 31368.009
18 


KING-6430 with DISTILLERInsert offset folio 10 here 31368.010
19 


KING-6430 with DISTILLERInsert offset folio 11 here 31368.011
20 


KING-6430 with DISTILLERInsert offset folio 12 here 31368.012
21 


KING-6430 with DISTILLERInsert offset folio 13 here 31368.013
22 


KING-6430 with DISTILLERInsert offset folio 14 here 31368.014
23 

Mr. GIANFORTE. Thank you, Councilman. 

And Mr. Henson, you are recognized for your five minutes of testimony. 

STATEMENT OF ERIC CONRAD HENSON 

Thank you. My name is Eric Henson. I’m a research fellow at the 

Harvard Project on American Indian Economic Development. And 

I work full time in an economics consulting firm out of Boston. I’ve 

done about 20-something years of tribal affairs, and I’m very happy 

to be here speaking with you today. 

The Harvard Project started about 30 years ago with a very simple question. There is observation that some tribes that seem to 

have great natural resource endowments weren’t quite taking off 

and doing so well. Poor socioeconomic outcomes. Other tribes, 

which had no apparent access to the kind of resources you might 

expect, would lend themselves to great economic outcomes, were 

doing just fine. So a couple of researchers at Harvard, I was only 

at high school at the time, so I was not there, set out in a rental 

car to kind of investigate this question. And these guys found over 

time that what really mattered were a couple of things that nearly 

sound self-explanatory today, but were kind of revolutionary at the 

time. Capable governing institutions on the part of tribes are really 

important. 

You know, the word ’bureaucrat’ or ’bureaucracy’ kind of has a 

negative connotation sometimes. But in terms of government, 

someone needs to show up on Monday morning and keep the 

wheels of government working. And this applies to tribes no more 

or less than the Federal Government, states, municipalities. It is 

really important to have the right kinds of institutions in place. 

Secondly, having a form of government that comports with the 

norms that the citizenry receives is the right way to govern the 

community is really important, and not every place has that. Lots 

of travel governments for a long time were kind of imposed by outside entities, and didn’t square up with how the people thought 

about governing themselves at all. 

And finally, most relevant to today, the single most important 

thing that was helping tribes grow their economies in a sustainable 

manner was self-determination, tribal sovereignty, putting the decision-making process in the hands of those, like the two gentleman 

next to me, who are right there on the ground. 

Now what we found, and what I argue today, is that doesn’t necessarily mean abandoning the U.S. Federal Government’s responsibilities to the tribes. In fact, I would argue for a recommitment 

to that. Ms. Plaskett echoed this a little bit. There is no reason why 

tribal control or decision-making processes, sensible regulations, 

undoing multiple overlapping layers of unnecessary regulatory 

schemes, et cetera, et cetera, that doesn’t have to be counter to the 

notion of providing the right kind of resources, if the Bureau of Indian Affairs, to take the most obvious example, is going to go out 

and attract dozens and dozens of highly technical employees over 

the next several decades. Which is going to be important, given the 

retirement numbers that are coming its way. Those people, you 

know, you’re competing with private industry to lure people to 

places like the Durango, Colorado, area, and they are expensive. 


KING-6430 with DISTILLER
24 

And there are just some silly impediments to getting those people. There is a lack of local advertising for the right staff. There 

is this inability to just pay a cost-of-living adjustment to get the 

right people there. And it’s also important to keep in mind, you’re 

not going to necessarily lure someone to a remote location, be it the 

Virgin Islands or the Durango area, and have them start on day 

one as an expert. A lot of these jobs take decades and decades of 

expertise. 

Now recommitting through the appropriations process to the 

right kind of staffing and funding for the BIA and all the other departments that oversee energy development is doubly important. 

Not only to put the right staff in place to interface with folks like 

Councilman Red and Chairman Not Afraid, but also, think about 

it, if you’re in a place that’s kind of remote, that faces brain drain, 

you have an underdeveloped economy, small population, the appeal 

of the big city is always there. You’re trying to convince these people to devote their careers to a life in an energy development area 

that is often small population far from urban centers. 

So the BIA, or other departments, can be a viable career alternative not just for outsiders, but for tribal citizens as well. At Crow 

there are plenty of people who could really benefit from a stable 

long-term governmental job. And that could be working hand in 

hand with the tribe in developing its energy resources. 

And the last thing I’ll say before I pass the mic is, you know, 

there are several legislative ideas out there that would impose, say, 

deadlines on the BIA, or other things of that nature. But imposing 

artificial deadlines without providing the right resources to meet 

those deadlines is not in service to Indian Country. Thank you very 

much. 

[Prepared statement of Mr. Henson follows:] 


KING-6430 with DISTILLER
25 


KING-6430 with DISTILLERInsert offset folio 15 here 31368.015
26 


KING-6430 with DISTILLERInsert offset folio 16 here 31368.016
27 


KING-6430 with DISTILLERInsert offset folio 17 here 31368.017
28 


KING-6430 with DISTILLERInsert offset folio 18 here 31368.018
29 


KING-6430 with DISTILLERInsert offset folio 19 here 31368.019
30 


KING-6430 with DISTILLERInsert offset folio 20 here 31368.020
31 


KING-6430 with DISTILLERInsert offset folio 21 here 31368.021
32 


KING-6430 with DISTILLERInsert offset folio 22 here 31368.022
33 


KING-6430 with DISTILLERInsert offset folio 23 here 31368.023
34 


KING-6430 with DISTILLERInsert offset folio 24 here 31368.024
35 


KING-6430 with DISTILLERInsert offset folio 25 here 31368.025
36 


KING-6430 with DISTILLERInsert offset folio 26 here 31368.026
37 


KING-6430 with DISTILLERInsert offset folio 27 here 31368.027
38 


KING-6430 with DISTILLERInsert offset folio 28 here 31368.028
39 


KING-6430 with DISTILLERInsert offset folio 29 here 31368.029
40 

Mr. GIANFORTE. Thank you, Mr. Henson. 

And now we will recognize Mr. Deschene. Is that correct? 

Mr. DESCHENE. Yes, sir. 

Mr. GIANFORTE. Yes. Please go ahead. You have five—you are 

recognized for five minutes. 

STATEMENT OF CHRISTOPHER CLARK DESCHENE 

Mr. DESCHENE. Thank you. [Speaking native language.] Good 

morning, Chairman Gianforte, and Ranking Member Plaskett, 

members of the committee. My name is Christopher Clark 

Deschene. I’m a member of the Navajo Nation, and a partner with 

Rosette, LLP, which is a national tribal law firm. I’m here also 

with Councilman Leon Reval from the Jicarilla Apache Nation, 

Northern New Mexico. 

As a member of the—excuse me. As a former director for Indian 

Energy at DOE, I’m here to share my thoughts and recommendations for improving tribal energy development within Indian Country. As my people say [Speaking native language.], which means 

’educate them all.’ 

With regards to the policy challenges, there are four general reasons underlying tribal energy issues, and undermining the federal 

tribal energy policy. These are: One, the Federal Government’s antiquated land policies; two, federal courts’ use of judiciary plenary 

power; and three, the inability of Congress to pass comprehensive 

tribal energy legislation, and dedicate adequate resources; four are 

the paternalistic, inefficient, and archaic bureaucracy of the Executive Branch and its agencies. 

With respect to Congress, congressional elections over the last 12 

years have hurt Indian energy development. Travel energy bills designed to continue the work started under Title V of the Energy 

Policy Act have all stalled due to inaction. Similarly, at the Executive, there are a number of policies that also have encumbered energy development. These include inadequate staffing and support 

for project reviews and key energy positions. Federal agencies have 

also minimized the budget needed to provide adequate and meaningful services and financial support through tribal energy development programs. 

Changing the tribal energy paradigm requires tribal resources, 

including water, land, minerals, and labor to help solve our country’s energy challenges. Tribal leaders have always argued that 

they must be part of the equation in solutions offered by our country’s energy industry. Accordingly, tribal leaders have recommended the following, and based upon my observations, Congress should continue tracking the implementation of the GAO report recommendations from the ’15, ’16, and ’17 reports. Congress 

should also consider passing national tribal energy legislation that 

updates, amends, and supports tribal leadership recommendations. 

The Hearth Act should be amended to allow tribes to approve 

leases and easements for tribal energy development. At the Department of Energy, Congress should consider and fund the Office of 

Indian Energy at DOE, at, and this is a big ask, $100 million for 

25 full-time employees. That office has been charged with national 

service, and is operating at a substandard level, with less than four 


KING-6430 with DISTILLER
41 

employees at times. Congress should also look at creating a Senateconfirmed Assistant Secretary of Indian Energy at DOE as well. 

Additionally, Congress should allocate and authorize funds for 

the Tribal Energy Loan Guarantee Program at a minimum of $100 

million. I know that the former senator from Minnesota had looked 

at this effort. That should be picked up again as well. 

Finally, Congress should look at tribal energy partnerships by 

supporting DOE’s Office of Indian Energy’s Strategic Roadmap 

2025 that enumerates a number of goals, including the buildout of 

tribal businesses and their roundtables to help foster tribal energy 

development from the industry. With regards to the Administration, again, the GAO reports are instructive. They should also look 

at the implementation of five- to ten-year budget plan with regards 

to funding for DOE and DOI, with OMB. 

Given that my time is running short, I’d like to just talk a little 

bit about policy as well. With regards to policy, the Federal Government should look at funding agency programs throughout the 

government. Programs that build tribal capacity, education, and 

workforce development are important. With regards to transmission, planning, access studies, and ownership are all vital, and 

should be supported as well. Renewable energy standards, incentives, and partnerships are key to help tribes build out the renewable energy programs. And cross-agency coordination is very important, given that DOE and DOI has started the process in the last 

few years. And finally, strengthen and improve the consultation 

and coordination process when it comes to working with tribes 

throughout the country. 

In conclusion, no message resonates better than success. As 

noted, dedicated resources and funding investments are vital to the 

success in Indian Country. I thank you for allowing me to share a 

few of these recommendations. I am happy to answer any questions. 

[Prepared statement of Mr. Deschene follows:] 


KING-6430 with DISTILLER
42 


KING-6430 with DISTILLERInsert offset folio 30 here 31368.030
43 


KING-6430 with DISTILLERInsert offset folio 31 here 31368.031
44 


KING-6430 with DISTILLERInsert offset folio 32 here 31368.032
45 


KING-6430 with DISTILLERInsert offset folio 33 here 31368.033
46 


KING-6430 with DISTILLERInsert offset folio 34 here 31368.034
47 


KING-6430 with DISTILLERInsert offset folio 35 here 31368.035
48 

Mr. GIANFORTE. Thank you for the panel for your insightful testimony. 

We will now move to questions. And I’d like to recognize Mr. 

Palmer for five minutes. 

Mr. PALMER. Thank you, Mr. Chairman. Mr. Henson, what does 

the Indian community stand to gain as far as employment growth 

if the regulations are reduced or simplified? 

Mr. HENSON. That’s an interesting question, and I have not 

quantified it personally. I would certainly be interested in looking 

into that and getting back to you, if that’s a possibility. 

Mr. PALMER. Well, listening to the testimony of Chairman Not 

Afraid and Councilman Red, it’s obvious that it would be an economic benefit to the tribes not only in revenue, but in jobs. And I 

see Chairman Not Afraid nodding. Do you want to comment on 

that? 

Mr. NOT AFRAID. Yes. Thank you, Mr. Palmer. First of all, I’ve 

observed and analyzed that for every 2 million tons of coal being 

developed creates a minimum of 120 well-paid jobs for the Crow 

people. 

Mr. PALMER. Say that again. How many well-paid jobs? 

Mr. NOT AFRAID. A hundred-and-twenty. 

Mr. PALMER. Mm-hmm. 

Mr. NOT AFRAID. And the average annual salary is about $80K. 

Mr. PALMER. $80,000? That’s a very high-paying salary in Montana, I believe, Mr. Chairman. Let me ask you this, and this is for 

Chairman Not Afraid and Councilman Red. What other energy resources are available on tribal lands? Because I think you said that 

88 percent of the tribal lands contain some kind of energy resource. 

And you mentioned coal. Are there other resources? 

Mr. RED. Thank you. I’ll take a stab at that. With us, with the 

Southern Utes, we have natural gas, and we are one of the largest 

producers of natural gas in the country. And so that’s where a lot 

of our resources are from. We’ve got our own companies that, on 

the reservation and off reservation, that deal with that. We also 

have coal. We haven’t developed the coal. We’ve developed the 

methane underneath it, or out of the coal itself. And there’s numerous other, as well as, like solar power. We’ve got 300 days of sunlight. Wind potential. There’s a lot of other energy resources that 

we could take advantage of there, but we really haven’t gotten into 

yet. 

Mr. PALMER. Do you have the infrastructure to—if you are developing solar and wind power, do you have the infrastructure in 

place where you can sell that power off reservation, off the tribal 

lands? 

Mr. RED. We don’t. And that’s part of the problem in the location. 

We’re really isolated when it comes to infrastructure on a national 

level. So we’re really isolated when it comes to that. 

Mr. PALMER. Do you know if any of the Green River formation 

are on tribal lands? That’d be northern Colorado—western Colorado, northern Utah, southwestern Wyoming. Do you know if any— 

I know it wouldn’t be your tribal lands, but do you know if any of 

that is on tribal land? 

Mr. RED. Not on ours. 


KING-6430 with DISTILLER
49 

Mr. PALMER. That’s one of the largest reserves of oil, recoverable 

oil, shale, in the world. It holds three times more recoverable oil 

than the world’s used in the last 100 years. And it is five to six 

times the known reserves of the Saudi’s. 

Let me ask you this. If given the opportunity to properly develop 

these energy resources, one of the issues, and it goes back to the 

jobs issue, it’s not just a mining job, but the opportunity for members of your tribes, younger member of your tribes, to take science 

and math, and become energy engineers, experts in the energy 

field, which I think that needs to be explored and developed. 

Mr. NOT AFRAID. Right. In Crow country it is a domino effect. So 

when development occurs, uh, it also enhances the social well-being 

to the Crow membership, a sense of living, a sense of pride, as well 

as a healthy community. And as to Crow, speaking about Crow, the 

diversification of all the energy, we have three major grids coming 

from the south, east and west. So if we were to develop the windmill, develop the hydro-plant that we have under way, and other 

green energy developments that are under way, we can have a robust system that we would not depend on the Federal Government 

for anything. 

Mr. PALMER. Well, I see your ability to develop the resources that 

you own as a way to not only increase the revenue potential for the 

tribes, but also to elevate the tribe, in terms of professional opportunities, engineers, business people. It could be a tremendous help 

to the tribe across the board. Not just in the laborers who go out 

and extract the minerals, but those who develop programs for the 

use of them, including engineering the infrastructure, so that you 

can move it where it needs to go. 

My time’s expired, Mr. Chairman. I yield back. 

Mr. GIANFORTE. Okay. Thank you. At this time I recognize the 

ranking member for her questions. 

Ms. PLASKETT. Thank you, Mr. Chairman. Mr. Deschene, I want 

to thank you for coming here to testify. You have a large body of 

work and experience in this area that I’m glad that you are trying 

to share with us. Mr. Henson, you were correct that I do believe 

that, and you may have heard in other hearings me talk about unnecessary duplication. I’m really trying to streamline public policy. 

It’s enormously important. It really impedes development in the 

areas that are least likely to receive it, because of bureaucracy. 

And so in your testimony, based on your experience, you advocate 

significant increases in federal spending. Specifically, you advocate 

funding the Office of Indian Energy to $100 million, with 25 fulltime employees. You also talk about allocating a minimum of $100 

million to the Tribal Energy Loan Guarantee Program. 

What level of funding has been authorized in these last Congresses roughly for the office and the loan program while you were 

serving as director? 

Mr. DESCHENE. Thank you. When I came to—thank you for that 

question. Chairman and member of the committee, when I arrived 

at DOE in 2015, we had a budget authorization from Title V of $20 

million for 10 years, starting in 2005. The Office never received the 

full amount of the $20 million, at least while I was there. When 

I arrived it was given, in 2015, a $16 million allocation. 

Ms. PLASKETT. So your funding was decreased. 


KING-6430 with DISTILLER
50 

Mr. DESCHENE. Right. 

Ms. PLASKETT. And how many employees, or how many people 

were staffed at that time? 

Mr. DESCHENE. So at that time, two, officially. Myself and headquarters’ element support staff. And then from there we began consolidating the program and presented table organization through 

HR at DOE in an effort to consolidate —— 

Ms. PLASKETT. What area of land were you three people supposed to be supporting at the Department of Energy for Indian energy? 

Mr. DESCHENE. So we were charged with the entire United 

States, including Alaska, with, at that time, 567 tribes. 

Ms. PLASKETT. So 567 tribes, for all of their energy needs, the 

Department of Energy gave you three, yourself and two other employees. Or was it four, you said? 

Mr. DESCHENE. Well, that’s currently what you see on the 

website today, but by 2017 we had grown, through consolidating efforts, to about a complement of six to seven. 

Ms. PLASKETT. Okay. Six or seven employees, with $20 million, 

then reduced to $16 million. What would giving a $100 million and 

25 employees allow you to do? 

Mr. DESCHENE. So with regards to the employees we have three 

offices. Headquarters in D.C., the Golden field office, which handles 

a lot of the deployment efforts, and then Alaska, in Anchorage. So 

the weight of the program is the deployment effort, which is financial. 

Ms. PLASKETT. So you’d like to get people out there in the field —— Mr. DESCHENE. Right. 

Ms. PLASKETT.—is what you’re saying. 

Mr. DESCHENE. Right. 

Ms. PLASKETT. And that $100 million would support those salaries as well as the ability for them to go out into the field. 

Mr. DESCHENE. So salaries and the administrative would be, and 

I can’t remember the numbers, but it would be on the order of —— 

Ms. PLASKETT. So how would that help Chairman Not Afraid as 

well as Councilman Red if you were to be able to have that? 

Mr. DESCHENE. For example, if we had a program that supports 

energy investment, what we call still-in-the-ground projects—the 

problem with investing in projects is they’re either very small, 

which DOE currently supports $50,000 to $250,000 feasibility-type 

projects, or they’re very large, in the hundreds of millions. There 

is not support for programs or development in the range from $5 

to $50 million on investments for community scale energy projects 

in Indian Country. 

Ms. PLASKETT. You know, I talked and others have talked about 

streamlining processes. You are not against streamlining some of 

these permitting processes. 

Mr. DESCHENE. No. It’s needed. It’s definitely needed. It’s absurd 

that tribes have to go through additional barriers to get the same 

type of approvals for energy projects. 

Ms. PLASKETT. But increasing the funding, and particularly the 

loan funding, would allow you to deploy more support to the tribes 

to be able to —— 


KING-6430 with DISTILLER
51 

Mr. DESCHENE. Right. 

Ms. PLASKETT. Be able to do the things that the Chairman was 

talking about. 

Mr. DESCHENE. Right. So larger projects under an Indian loan 

guarantee program would support more investment. The problem with that, there’s two. One, there is a $50,000 requirement under DOE for tribes to put up to begin the application. 

That’s a barrier in itself. Secondly, the current program allows for 

innovative design and application. That’s a barrier in Indian Country, because we’re not looking to prove up technology. We are just 

looking to apply in remote distant locations the same technologies 

that the rest of America enjoys. 

Ms. PLASKETT. Thank you. Thank you so much for the time, Mr. 

Chairman. 

Mr. GIANFORTE. Yeah. Thank you. And at this time the Chair 

recognizes Mr. Comer for his questions. 

Mr. COMER. Thank you, Mr. Chairman. My first question is to 

Mr. Henson. In your written testimony you discuss the untapped 

resources of tribal lands. Eighty-eight percent of Indian surface 

lands have resources, but have yet to be developed. Is the complexity of the federal permitting process impacting tribes’ ability to 

use their own land, and if so, how? 

Mr. HENSON. It certainly is. I mean the slide we saw from Councilman Red illustrates that. Every marginal decision for outside investment looks at how much time and how much capital will have 

to be invested here. And if a tribal development is less appealing 

than a next-door development, you know, over time that sends a 

signal to outside investors to invest not on tribal lands. And, you 

know, sort of reflecting on the last question, also, I think about 2 

million acres of surface lands are currently developed, tribal lands, 

and the measure is something like 15 million undeveloped. There’s 

quite a lot of availability for when solar, geothermal, hydroelectric, 

there’s massive capacity for renewable development on tribal lands. 

And so streamlining those processes can be just tremendous. 

Mr. COMER. I firmly believe the Federal Government excessive 

regulatory environment has held us back as a nation from utilizing 

the resources that we have, especially with the tribes. My question, 

Chairman Red and Councilman Not Afraid, how many jobs have 

been created for members of your tribe as a direct result of energy 

development projects? 

Mr. NOT AFRAID. Over a period of 40 years, sustainable jobs 

through development with our partner, Absaloka, Westmoreland 

Mine, we fluctuate anywhere from top of 300 to a bottom of 120. 

And with other venues and diversification within coal, that’s also 

creating new jobs, with new technologies. 

Mr. COMER. Right. 

Mr. RED. On the Southern Ute we do have—I can’t give you a 

direct number, or absolute number, but we do have quite a few jobs 

that are influenced. We have members that work for our own oil 

and gas companies, and we also have members that work for other 

companies within the reservation. We also work with San Juan 

School of Energy, or it’s San Juan Community College School of 

Energy, where we send our employees, our tribal members, and 

other staff down there to get the training necessary to be fruitful 


KING-6430 with DISTILLER
52 

in this formation, or in the development of our area. So we don’t 

really put a number on the jobs there, but it, for the region itself, 

is huge with the number of jobs it’s provided. 

Mr. COMER. Can you gentlemen tell us, tell the committee, some 

benefits your tribe has been able to provide members with the revenue produced by developing your energy resources? 

Mr. NOT AFRAID. Sure. Thank you for that question. That’s an 

ideal question, only because the revenues that derive off of that 

coal development ensure that our elder programs continue scholarships. Even in the realm of health, and we talk about the Affordable Care Act —— 

Mr. COMER. Mm-hmm. 

Mr. NOT AFRAID.—at times we know that that lacks a lot of 

issues in itself. So the tribe on the royalty side picks up on that 

end. So to me I’m not complaining, but the point is, is if we could 

develop more then we can just entirely take care of ourself. 

Mr. RED. And for us, we give a distribution to our members every 

month, or throughout the year. We also have healthcare for all our 

members. Nothing’s denied. We pay for everything. We also have 

education. So everybody’s guaranteed a secondary education if they 

decide to pursue that. And that’s really unheard of when it comes 

to Indian Country, is providing all these resources on something 

that we’ve got from our natural resources. 

Mr. COMER. Right. Well, thank you very much. Mr. Chairman, I 

yield back. 

Mr. GIANFORTE. Okay. Thank you. And I’ll recognize myself for 

questioning at this time. 

Councilman Red, I’d like to follow-on Mr. Comer’s question. Just 

listening to your testimony and reading the written testimony, it’s 

clear that you’ve, in the face of some large obstacles, you’ve still 

been able to develop these energy resources. Could you talk on a 

more personal level what it means to an individual family in the 

Ute Nation when they receive benefits from energy development? 

Mr. RED. Well, as an individual on the Southern Ute Indian Reservation, I mean it is huge. It’s really hard to put into words. At 

one point, as in my testimony, we had to stop distribution payments. So we couldn’t even afford to pay our members. And for 

much of my lifetime that’s —— 

Mr. GIANFORTE. What would that mean to a family when they 

don’t get a distribution payment? 

Mr. RED. There’s not a lot of employment on the reservation. So 

no income means it’s Second-, Third-World conditions. But because 

we do have this, and it’s made our reservation and families prosperous, and they’re able to live a good life. We do run into some 

problems with the amount of money now coming in, but I would 

rather have that problem than nothing at all. And it gives a chance 

for our members to succeed. Whether they want to work locally, 

there’s an opportunity. And whether they want to go on to school, 

they have that opportunity, also. 

Mr. GIANFORTE. So you’ve used a couple words there. Energy development has brought prosperity and success to your people, and 

clearly that’s a good thing. 

Mr. RED. Yeah. 


KING-6430 with DISTILLER
53 

Mr. GIANFORTE. Chairman Not Afraid, welcome again to a fellow 

Montanan. You know, we’ve spent time together in Crow Country, 

and for whatever reason we’ve had limited energy development. 

And it’s clearly your decision as a sovereign nation what you want 

to do with your energy resources. Could you describe the situation 

you have in Crow Country today, and what additional energy development would mean to the families there? 

Mr. NOT AFRAID. Yes. Thank you. Well, first of all, there was a 

study done during the Bush Administration that depict approximately $1 trillion worth of asset development prospects. But the 

Crow Tribe, at the time, couldn’t fully implement, only because the 

government runs on a two-year cycle at that time. Now with this 

new constitution that we adopted allows for a four-year term, because when we do talk about permitting, whether it’s a mine, 

whether it’s oil, whether it’s a gravel pit, the redundancy of the 

process takes more time. 

Therefore, as an elected official you may not see the fruits of 

your labor because of the time it takes to develop. Overall, what 

we have developed is, like Southern Ute, where the royalties truly 

benefit the people. And the government itself does not partake in 

that. That’s a dividend paid out to the people for their share of 

ownership in the mineral. 

But if we can continue to develop soundly, again, that’s our way 

out of the hole. And until we recognize or streamline some of these 

processes, we’re at a major disadvantage. Like what was stated 

earlier by Mr. Henson, a parcel right next door appealing has less 

restrictions through the State of Montana. Not only that, less fees. 

So when a developer comes in and sees prime, they tend to be deterred because of fees and time. 

Mr. GIANFORTE. Mm-hmm. If you could explore that a little more. 

The differences between energy development on private land off the 

reservation versus development of the tribe’s resources on the reservation. From a permitting perspective, why does it take so much 

longer? 

Mr. NOT AFRAID. Well, first of all, we have this misunderstanding from the federal side. The misunderstanding is private Indian land is treated as federal public land. So individual landowners are subject to the public land laws. And if that was to be 

differentiated on the purpose of someone owning their own property, why hold them folks down? Because you’re deterring them 

from being prosperous. You’re deterring them from utilizing their 

own mineral. Because I’m not only talking about tribal land. I’m 

talking about individual tribal members who own mineral assets as 

well. So them, themselves, they can’t come up with a $9,600 permitting fee when they need to drill ten wells. That’s $96,000 they 

have to come up front. Where if it was regulated by the State of 

Montana, it’s like $125. 

Mr. GIANFORTE. Yeah. Okay. My time has expired, but I think 

we’re—this is a very helpful discussion. I think we’ll do another 

round of questions, if that’s all right. At this time I’ll recognize the 

ranking member. 

Ms. PLASKETT. Okay. Chairman Not Afraid, I was hoping that 

you could give me, if you have proposals that you all have made, 

as to how the regulations should change to allow you. Have you 


KING-6430 with DISTILLER
54 

presented those, or is there legislation now that’s been proposed by 

someone from the House or the Senate that would be supportive of 

what you’re talking about? 

Mr. NOT AFRAID. Yes. Currently, there is legislation on the books 

which was—it amended the SMCRA law in 2007 that allowed the 

tribes to administer and regulate their own permitting. But that 

course of action is also cumbersome, because now the conflicts of 

tribal rules, tribal laws are reviewed by the solicitor’s office. And 

if there is any conflict in CFR then we have to try to mitigate those 

issues. 

Ms. PLASKETT. And who has the responsibility to mitigate those? 

Mr. NOT AFRAID. Interior. 

Ms. PLASKETT. Okay. And so you may not be getting the movement to be able to get that done as quickly as possible. 

Mr. NOT AFRAID. Yes. There’s a gentleman in the crowd here 

who was a major proponent of it within our legislative branch, 

name, C.J. Stewart, who was an advocate and a proponent of the 

tribe taking this into their own destiny, because when Congress 

had passed it, it enabled us to, you know, have a vision in taking 

over this regulatory rule —— 

Ms. PLASKETT. Mm-hmm. 

Mr. NOT AFRAID.—as well as permitting. Because who better to 

take care of their own land, tribes? I have recently done a video 

with OSM depicting the reclamation on some of our mining 

grounds that you would never suspect that mining even occurred 

there. There’s vegetation. Elk come back on it. Antelope, wildlife, 

in general. The aquifers are stabilizing. It’s a really neat process. 

So we always invite people out to show that the Crow have demonstrated good husbandry to its own land. 

Ms. PLASKETT. I hear you. So what you would do is do the regulations and the regulatory requirements, make the decisions, and 

then possibly report up to Department of Interior, or others, on 

what the decisions were. And they have to respond in a timely 

fashion? 

Mr. NOT AFRAID. Right. Just another example in this permitting 

process. For example, in the NEPA requirement, when it requires 

a cultural survey. What’s happening there is you’re having a Native American go do a survey, and then a non-native approve that 

cultural survey. So that’s telling me the non-native knows what a 

cultural survey is, when really, they don’t even know what a burial 

site is, or any other cultural significance. So as that sits on that 

table for years for them to identify what we’re telling them what 

it is, that’s part of the cumbersome reality I’m talking about. 

Ms. PLASKETT. So with the proposal—so I’m thinking of ways in 

which this can be married. So with the proposal that Mr. Deschene 

has, with increasing the number of individuals, those who are culturally sensitive, who are possibly Native American, and be able to 

be out in the field in greater number, be something along with having the rights of the tribe to make those decisions, be one that you 

think is something that would work well. 

Mr. NOT AFRAID. Yes. And I truly believe because of treaty purposes it’s—even though we call it nation to nation —— 

Ms. PLASKETT. Uh-huh. 


KING-6430 with DISTILLER
55 

Mr. NOT AFRAID.—it’s big brother, little brother. That’s how I 

view it. And if —— 

Ms. PLASKETT. Listen, someone living in unincorporated territory 

understands that completely, [Laughter.] what that feels like. 

Mr. NOT AFRAID. Yes. Yes. And the good thing is, that I see, is 

that as we shed more light on these issues, there are people willing 

to take the time to say, ‘‘Okay. What can we do about this?’’ So 

we’ve provided solutions. We’ve also demonstrated whether we had 

to recruit technical staff just to ensure that practices are being 

done professionally. 

Ms. PLASKETT. So can I ask also, when you talk about some of 

these permitting, I know in the Virgin Islands we face permitting 

that’s not just related to the Army Corps, to National Marine Fisheries, to multiple agencies that have to do a permitting process. 

Are you facing those same issues as well? 

Mr. NOT AFRAID. Yes, we are, because Interior, again, has to 

pawn off to the other sister departments for those oversights. So 

even though Interior gets bashed a lot, really, that’s the wrong people to really bash on, because they have recently, in turn of events, 

they’ve been proponents of tribes. Yet, the processes still remain 

the same, where those other sister agencies, such as BLM, have to 

tell us, yeah, that is a cultural site. 

Ms. PLASKETT. Okay. Thank you. Thank you very much, Mr. 

Chairman. 

Mr. GIANFORTE. Okay. So I’ll recognize myself for a final round 

of questioning. 

I really want to focus on what do we do next. I’m a big—played 

football in high school. We won games by running three- to fiveyard plays, and you’ve brought very constructive suggestions today. 

Chairman Not Afraid, you’ve talked about the obstacles you face 

when tribal land is treated as public land, raising the regulatory 

burden. There was some testimony about clarifying the TERA 

rules. These are very specific things that we can investigate. So for 

all of the members on the panel, I want to ask you, you’ve brought 

good suggestions. What are the top three things you think we 

ought to do? And, again, in terms of making it easier for tribes to 

determine the best way to develop their resources on your reservations. So who would like to start? What are the three things we 

ought to do? Chairman? 

Mr. NOT AFRAID. Thank you, Chairman. One of the first things 

that I see that Crow Tribe would believe would be paramount is 

allowing the tribes to, again, administer and regulate on its own. 

The purpose of that would to—would not only expedite development, but it would ensure that we have sound practices beginning 

within our reservation, because we’ve seen in the past where 

some—other developments, whether it’s a gravel pit, or what have 

you, the Feds had not done their trust responsibility; therefore, 

there were abandoned mines. But if the tribe was in the driver 

seat, we would’ve made sure that those were reclaimed. We 

would’ve made sure that all the archeological surveys were done or 

completed prior to disturbances of burial sites, or cultural sites. 

Mr. GIANFORTE. Okay. Mr. Henson. 

Mr. HENSON. I think the overarching thing is what I’d call the 

two-prong approach. It’s continued reliance on tribal decision-makVerDate Nov 24 2008 10:18 Sep 25, 2018 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 H:\31368.TXT APRIL

KING-6430 with DISTILLER
56 

ing, but also funding the liaison roles to the kind of levels we’ve 

been hearing about today. Because the Federal Government can 

bring some real technical expertise to assist, as opposed to sort of 

serving as a roadblock. There are a number of legislative ideas out 

there. Let’s, you know, let this tribe—let’s let Navajo have the right 

to lease its surface lands without as much approval. But that’s very 

conservative. It’s one tribe, one strata of the possible energy development rights. And so a lot of the moves forward are just kind of 

baby steps. And so I would argue that the current situation has developed through a whole lot of, I guess the technical term would 

be CUIA kind of maneuvers. We’ll layer Fish and Wildlife over Interior, over Energy, and you end up with multiple sort of overlapping jurisdiction. 

Mr. GIANFORTE. So the suggestion, Mr. Henson, that is just to 

streamline the number of agencies that are involved. 

Mr. HENSON. A little bit. Yes. 

Mr. GIANFORTE. Okay. 

Mr. HENSON. If we can find like this sort of one-stop shop and 

actually make it work without being an additional layer, and when 

a tribe has to go out and interface with the Federal Government. 

Mr. GIANFORTE. Okay. 

Mr. HENSON. And then I’m personally an advocate for things 

akin to the contracting and compacting that we’ve seen in a number of tribal areas. I think the Federal Government should find 

some resources for block grants to tribes. I mean block grants to 

the Southern Ute, to hire geologists, if they need one. Or, you 

know, some more of sort of third-party contracting, where tribes 

—— Mr. GIANFORTE. Okay. 

Mr. HENSON.—can tap into technical expertise outside of the 

BIA, outside of tribal employees, but just kind of out there in the 

marketplace. 

Mr. GIANFORTE. Okay. Thank you, Mr. Henson. Councilman Red? 

Mr. RED. Thank you. I think number one for us is S.245. That 

is the closest to being complete. And I think that goes to what we 

want to see. Also, when it comes to us, when it comes to expertise, 

we have the expertise in place. We’ve been doing this for many 

years. So when it comes to the permitting process, from beginning 

to end, we do that ourselves. It’s all in-house. We have our NEPA 

specialists. We have our cultural resources. We have our natural 

resources. We have our energy department. We take care of all that 

in-house. The only thing we wait on is the signature from the Department of Interior. And that’s where we’re reaching the delays. 

I mean one signature shouldn’t take three years to get. And also 

with that —— 

Mr. GIANFORTE. In your opinion, does S.245 fix that problem? 

Mr. RED. It helps. It helps. Yeah. I mean there’s not one overall 

solution out there currently, but it would really definitely get us 

moving in the right direction. 

Mr. GIANFORTE. Okay. Thank you. 

Mr. RED. And also streamlining the NEPA process, and making 

some clarifications there. Because treating tribal lands as public 

lands does not work for Indian tribes. And also the one NEPA process I think would go a long way instead of each department, or 


KING-6430 with DISTILLER
57 

each—I guess, I guess it would be department—having their own 

NEPA process. So there’d be one defined NEPA process. 

Mr. GIANFORTE. Okay. Thank you. And Mr. Deschene. 

Mr. DESCHENE. Thank you, Chairman, and member of the committee. At DOE, we had a working group. It’s called an Indian 

Country Energy Infrastructure Working Group. Tribal leaders from 

all over the country, including Alaska. They determined and decided that the number one policy priority is finding capital or access to resources that help spur energy development. Notwithstanding, what all the leaders here on the panel mentioned, those 

are all good recommendations. But if we want to jumpstart energy 

development, we can deal with the bureaucracy and the laws. We 

can work on that. A lot of good attorneys in the room that can help 

with that. But we need the capital, and we need business partners. 

So my recommendation would be we need—it’s time for an energy 

legislation to be approved by Congress. So S.245, or whatever the 

vehicle is, the process is there for the types of input on it. 

Secondly, in keeping with the investment, DOE, DOI needs to 

have an energy loan guarantee program like we have in other 

agencies, but for energy, and not conditioned on the application fee. 

And it needs to be allowed to be deployed, existing technologies, 

and deployed in remote and distant areas of the country. 

And then finally, I would say that, uh, Congress has the power 

working with the White House and OMB to fund these offices an 

amount that makes a difference. You need more staff. You need 

more energy resources to provide for grants, capacity building, education. And so I would say those are the first fix, and then you can 

build from there. 

Mr. GIANFORTE. Okay. I’m going to indulge myself and ask one 

last question. 

For Chairman Not Afraid and Councilman Red, has the creation 

of the Indian Energy Service Center produced any improvements 

from a regulatory process? 

Mr. RED. For Southern Ute, no. And it’s still—we haven’t utilized 

that. I guess it kind of falls in the category of TERA. It’s out there, 

but we haven’t taken advantage of it. 

Mr. GIANFORTE. OK. Thank you. Chairman Not Afraid. 

Mr. NOT AFRAID. I see some advantages of it, but our priorities 

had been coal, where we identified the SMCRA, where it streamlines some things for the tribes to operate, but we always ended up 

at that same barrier of waiting on sister agencies on approving 

things. But back to the—back to the question. We haven’t tried 

that. 

Mr. GIANFORTE. Okay. And are you gentlemen familiar with the 

service center, and the concept of trying to bring the agencies together? Would bringing more agencies into the service center—do 

you think BIA is equipped to play the role of a lead agency for tribal permitting? 

Mr. NOT AFRAID. To be frank, I believe the tribe can handle its 

own permitting, and for other tribes, I believe that would be a 

great start. As far as the Crow Tribe, just like with our brothers 

to the south there, the Ute, already established their permitting 

processes. And if we engage in that, then what was the sense in 

us developing our own systems. 


KING-6430 with DISTILLER
58 

Mr. GIANFORTE. Yeah. Councilman Red. 

Mr. RED. Thank you. I think for Southern Ute, I mean it’s a no 

for the shop. I think that we are equipped to deal with our own 

resources, and I think the more agencies that get involved, the 

more muddy the waters get. And you don’t have one clear direction. 

Maybe if you had one clear direction and definitions in there, it 

may work, but until that time I think we’re best equipped to take 

over that role. 

Mr. GIANFORTE. Okay. Well, I want to thank all the witnesses for 

your testimony today. The hearing record will remain open for two 

weeks for any member to submit an opening statement or questions for the record. 

If there’s no further business, without objection, this subcommittee stands adjourned. 

[Whereupon, at 11:15 a.m., the subcommittee was adjourned.] 


KING-6430 with DISTILLER
(59) 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD


KING-6430 with DISTILLER
60 


KING-6430 with DISTILLERInsert offset folio 36 here 31368.036
61 


KING-6430 with DISTILLERInsert offset folio 37 here 31368.037
62 


KING-6430 with DISTILLERInsert offset folio 38 here 31368.038
63 


KING-6430 with DISTILLERInsert offset folio 39 here 31368.039
64 


KING-6430 with DISTILLERInsert offset folio 40 here 31368.040
65 


KING-6430 with DISTILLERInsert offset folio 41 here 31368.041
66 

Æ 


KING-6430 with DISTILLERInsert offset folio 42 here 31368.042