[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

H.R. 3973, TO FACILITATE THE DEVELOPMENT OF ENERGY ON INDIAN LANDS BY
REDUCING FEDERAL REGULATIONS THAT IMPEDE TRIBAL DEVELOPMENT OF INDIAN
LANDS

=======================================================================

LEGISLATIVE HEARING

before the

SUBCOMMITTEE ON INDIAN AND
ALASKA NATIVE AFFAIRS

of the

COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

__________

Wednesday, February 15, 2012

__________

Serial No. 112-94

__________

Printed for the use of the Committee on Natural Resources

Available via the World Wide Web: http://www.fdsys.gov
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COMMITTEE ON NATURAL RESOURCES

DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democratic Member

Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC John P. Sarbanes, MD
Scott R. Tipton, CO Betty Sutton, OH
Paul A. Gosar, AZ Niki Tsongas, MA
Raul R. Labrador, ID Pedro R. Pierluisi, PR
Kristi L. Noem, SD John Garamendi, CA
Steve Southerland II, FL Colleen W. Hanabusa, HI
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Jon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV

Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Jeffrey Duncan, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------

SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS

DON YOUNG, AK, Chairman
DAN BOREN, OK, Ranking Democratic Member

Tom McClintock, CA Dale E. Kildee, MI
Jeff Denham, CA Eni F.H. Faleomavaega, AS
Dan Benishek, MI Ben Ray Lujan, NM
Paul A. Gosar, AZ Colleen W. Hanabusa, HI
Raul R. Labrador, ID Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Doc Hastings, WA, ex officio

------
CONTENTS

----------
Page

Hearing held on Wednesday, February 15, 2012..................... 1

Statement of Members:
Boren, Hon. Dan, a Representative in Congress from the State
of Oklahoma................................................ 4
Prepared statement of.................................... 5
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 3

Statement of Witnesses:
Cuch, Hon. Irene C., Chairwoman, Ute Tribal Business Council,
Ute Indian Tribe of the Uintah and Ouray Reservation, Fort
Duchesne, Utah............................................. 11
Prepared statement of.................................... 13
Fox, Frederick, Administrator, Tribal Energy Department, MHA
Nation, New Town, North Dakota, on behalf of The Honorable
Tex G. Hall, Chairman, Mandan, Hidatsa, and Arikara Nation
of the Fort Berthold Reservation, Oral statement of........ 31
Hall, Hon. Tex G., Chairman, Mandan, Hidatsa, and Arikara
Nation of the Fort Berthold Reservation, Prepared statement
of......................................................... 33
Groen, Wilson, President & Chief Executive Officer, Navajo
Nation Oil and Gas Exploration and Production, (Arizona/New
Mexico/Utah), Window Rock, Arizona......................... 63
Prepared statement of.................................... 64
King, Hon. Randy, Chairman, Shinnecock Nation Board of
Trustees, Southampton, New York............................ 56
Prepared statement of.................................... 58
Letter of clarification submitted for the record......... 62
Olguin, Hon. James M. ``Mike,'' Vice Chairman, Southern Ute
Indian Tribal Council, Southern Ute Indian Tribe, Ignacio,
Colorado................................................... 5
Prepared statement of.................................... 7
Sweeney, Tara M., Senior Vice President, External Affairs,
Arctic Slope Regional Corporation, Anchorage, Alaska....... 53
Prepared statement of.................................... 54

Additional materials supplied:
Crow Nation, Statement submitted for the record on H.R. 3973. 82
Gemmill, Faith, Executive Director, Resisting Environmental
Destruction on Indigenous Lands (REDOIL), Letter submitted
for the record............................................. 86
National Congress of American Indians, Statement submitted
for the record............................................. 89
National Congress of American Indians, Resolution #PDX-11-072 92

LEGISLATIVE HEARING ON H.R. 3973, TO FACILITATE THE DEVELOPMENT OF
ENERGY ON INDIAN LANDS BY REDUCING FEDERAL REGULATIONS THAT IMPEDE
TRIBAL DEVELOPMENT OF INDIAN LANDS, AND FOR OTHER PURPOSES.

----------

Wednesday, February 15, 2012

U.S. House of Representatives

Subcommittee on Indian and Alaska Native Affairs

Committee on Natural Resources

Washington, D.C.

----------

The Subcommittee met, pursuant to notice, at 11:02 a.m., in
Room 1324, Longworth House Office Building, Hon. Paul Gosar
presiding.
Present: Representatives Young, Gosar, Boren, Faleomavaega,
and Lujan.
Mr. Gosar. The Subcommittee will come to order. The
Chairman notes that we have a quorum, which under Committee
Rule 3(e) is two Members.
The Subcommittee on Indian and Alaska Native Affairs is
meeting today to hear testimony on H.R. 3973, the Native
American Energy Act. Under Committee Rule 4(f), opening
statements are limited to the Chairman and the Ranking Member
of the Subcommittee, so that we can hear from our witnesses
more quickly. However, I ask unanimous consent to include any
other Members' opening statements in the hearing record if
submitted to the Clerk by the close of business today.
[No response.]
Mr. Gosar. Hearing no objection, so ordered.

STATEMENT OF THE HON. PAUL GOSAR, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA

Mr. Gosar. I want to welcome today's witnesses, all of whom
are tribes that are actively engaged in the exploration,
development, and production of both conventional and emerging
energy technology and resources. The Native American Energy Act
contains common-sense measures to streamline and promote Native
American energy and other natural resource development. It
continues our efforts in this Congress to reduce the role of
the Federal Government in Indian life, strengthen tribes and
businesses, and encourages Indian peoples to make their own
decisions and be governed by them.
Specifically, the bill reduces bureaucratic burdens,
reduces frivolous lawsuits that delay or prohibit critical
economic development projects, lowers the cost on tribes to
permit on their trust lands, and increases tribal sovereignty
by providing additional opportunities for tribes to control
their own destiny when it comes to energy development on their
lands.
This bill is a result of intensive consultation with tribes
across the country that are involved in energy exploration,
development, and production. It contains measures that tribes
requested of the Committee rooted in the principle of
increasing Native Americans' control over their lands'
resources. These tribes know best, because they must live with
the status quo that is stifling their economic prosperity.
And I am particularly proud of the provision that will
allow the Navajo Nation to assume responsibility for its
subsurface leasing program. Given the vast supply of coal, oil,
and natural gas on the Navajo Reservation, there is enormous
opportunity for the Nation to create jobs and provide revenues
for the Navajo and surrounding communities.
Given the staggering rate of poverty and unemployment on
the Reservation today, the question about this initiative
should be not why, but instead: How quickly can we set this in
motion? Facilitating this new responsibility for the Nation
will contribute to the principles of self-determination that
many on this Committee have worked diligently to advocate and
advance, as well as further the economic security that our
nation so desperately needs.
Before I recognize the Ranking Member for any opening
statements he may have, I would like to thank my friend, Wilson
Groen of the Navajo Nation Oil and Gas Company. As a Member of
Congress that represents the majority of the Navajo Nation, I
have met with him in the past to discuss barriers to energy
development on Native American lands. I am pleased to have him
here testifying in support of this bill.
Second, I want to note for the record that the Subcommittee
invited the Secretary of the Interior, or his designee, to
testify. The Department declined, even though the Department
agreed to testify tomorrow in the Senate in an oversight
hearing on Indian energy.
This is the second time in this Congress that the
Department has refused to testify in this committee on a bill
for Native Americans. The first was a Subcommittee hearing on
H.R. 887, another bill I have cosponsored with the Chairman to
reduce the outrageous $99 million the Department agreed to take
from the pockets of individual Indians to pay the lawyers in
the Cobell v. Salazar settlement agreement. I am disappointed
in the Department's disregard not only for the members of the
Subcommittee, but for our witnesses. Many of them flew long
distances from their homes and families to testify today.
But I am not discouraged. Whether the Department realizes
it or not, its failure to appear today underscores the problems
that tribes live with every day. The Administration's failure
to show up today will not hold up progress on this bill.
Chairman Young and I are committed to moving this proposal
forward quickly so Congress can provide our Native American and
Alaska Native constituents relief from the Federal barriers
that prohibit energy development on their land.
If the Administration is serious about its commitment to
encouraging economic development in Indian Country and honoring
trust responsibilities, as the Interior Secretary Salazar
testified today in the Full Committee's oversight hearing on
the Fiscal Year 2013 budget, they will work with Chairman Young
and I to ensure our bill becomes law.
[The prepared statement of Mr. Gosar follows:]

Statement of The Honorable Paul Gosar, a Representative
in Congress from the State of Arizona

I want to welcome today's witnesses, all of whom are tribes that
are actively engaged in the exploration, development, and production of
both conventional and emerging energy resources.
The Native American Energy Act contains common-sense measures to
streamline and promote Native American energy and other natural
resources development.
It continues our efforts in this Congress to reduce the role of the
Federal government in Indian life, strengthen tribes and businesses,
and encourages Indian people to make their own decisions and be
governed by them.
Specifically, the bill reduces bureaucratic burdens, reduces
frivolous lawsuits that delay or prohibit critical economic development
projects, lowers the cost on tribes to permit on their trust lands, and
increases tribal sovereignty by providing additional opportunities for
tribes to control their own destiny when it comes to energy development
on their lands.
This bill is a result of intensive consultation with tribes across
the country that are involved in energy exploration, development, and
production. It contains measures that tribes requested of the
Committee, rooted in the principle of increasing Native Americans'
control over their lands' resources. These tribes know best, because
they must live with the status quo that is stifling their economic
prosperity.
I am particularly proud of the provision that will allow Navajo
Nation to assume responsibility for its subsurface leasing program.
Given the vast supply of coal, oil, and natural gas on the Navajo
Reservation, there is enormous opportunity for the Nation to create
jobs and provide revenues for the Navajo and surrounding communities.
Given the staggering rate of poverty and unemployment on the
reservation today, the question about this initiative should not be
``why'' but instead, ``how quickly can we set this in motion''?
Facilitating this new responsibility for the Nation will contribute to
the principles of self determination that many on this Committee have
worked diligently to advance, as well as further the economic and
energy security that our nation so desperately needs.
Before I recognize the Ranking Member for any opening statement he
may have, I would like to thank my friend Wilson Groen of the Navajo
Nation Oil and Gas Company. As the Member of Congress that represents
the majority of the Navajo Nation, I have met with him in the past to
discuss barriers to energy development on Native American lands. I am
pleased to have him here testifying in support of the bill.
Second, I want to note for the record that the Subcommittee invited
the Secretary of the Interior or his designee to testify. The
Department declined, even though the Department agreed to testify
tomorrow in the Senate in an oversight hearing on Indian energy.
This is the second time in this Congress that the Department has
refused to testify in this Committee on a bill for Native Americans.
The first was the Subcommittee's hearing on H.R. 887, another bill I
have cosponsored with the Chairman to reduce the outrageous $99 million
the Department agreed to take from the pockets of individual Indians,
to pay the lawyers in the Cobell v. Salazar Settlement Agreement.
I am disappointed in the Department's disregard not only for the
Members of the Subcommittee, but for our witnesses. Many of them flew
long distances from their homes and families to testify today.
But I am not discouraged. Whether the Department realizes it or
not, its failure to appear today underscores the problems that tribes
live with every day.
The Administration's failure to show up today will not hold up
progress on this bill. Chairman Young and I are committed to moving
this proposal forward quickly so Congress can provide our Native
American and Alaskan Native constituents relief from federal barriers
that prohibit energy development on THEIR land. If the Administration
is serious about its commitment to ``encouraging economic development
in Indian Country and honoring trust responsibilities,'' as Interior
Secretary Salazar testified today in the full committee's oversight
hearing on the FY2013 budget, they will work with Chairman Young and I
to ensure our bill becomes law.
______

Mr. Gosar. I look forward to hearing from our witnesses,
but now would like to recognize the Ranking Member for five
minutes.

STATEMENT OF THE HON. DAN BOREN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OKLAHOMA

Mr. Boren. Thank you, Mr. Chairman. I apologize for being
just a little bit late. Other than slow elevators, I was
speaking with Congressman Bishop who was bragging on Chairman
King for quite a while. So anyway, he was saying what a great
job you are doing, and everything else, so I said, ``Oh, I have
to get to that hearing.'' So he said to take good care of you.
Anyway, I do want to thank you, Mr. Chairman. I wanted to
commend Chairman Young, who I guess will be with us shortly,
but--for keeping his promise that he made Indian Country last
year, and that was to draft and introduce legislation that
allows tribes to pursue energy self-determination.
The legislation we are considering today, H.R. 3973, is a
product of direct consultation with tribes across the country.
It takes a number of recommendations that tribes submitted and
seeks to address the many obstacles they face when developing
jobs and energy resources in Indian Country.
As reported by NCAI in their Fiscal Year 2013 Indian
Country Budget Request--and I quote--``Even though tribes boast
nearly a quarter of American onshore oil and gas reserves, and
one-third of the West low-sulfur coal, existing tribal energy
production represents less than five percent of current
national production, due to bureaucratic and financial
barriers.''
With tribes willing and able to invest in the energy
industries, these numbers are unacceptable. Tribes in Oklahoma
have already begun exploring hydroelectric natural gas and
biomass as a means to keep emissions down, costs low, and
energy local. Others are looking to develop partnerships
between state and local governments. These are the first steps.
But we must do more to help their efforts. The President,
Members of Congress, and the American people all recognize the
importance of domestic energy production. Yet our tribes cannot
get past the government red tape to push forward with this
development.
H.R. 3973 attempts to break through these bureaucratic
barriers with a series of proposals to reduce the time for
approving appraisals, requires standardization--which I think
we are going to hear about in testimony--of DOI reference
numbers, limit public participation in NEPA, in the NEPA review
process, which--we all know about NEPA--and eliminate the
collection of BLM fees on Indian lands.
While we all celebrated the passage of the Indian Tribal
Energy Development and Self-Determination Act in 2005, which
authorized a variety of Federal, technical, and financial
assistance, participating tribes, many impediments still
remain. I want to applaud, again, our Chairman for his efforts
to work with our tribal neighbors to remove those impediments
with the introduction of H.R. 3973.
Again, thank you, Mr. Chairman, and I look forward to the
testimony.
[The prepared statement of Mr. Boren follows:]

Statement of The Honorable Dan Boren, Ranking Member,
Subcommittee on Indian and Alaska Native Affairs

Thank you Mr. Chairman. First, I want to commend you Chairman Young
for keeping the promise you made to Indian Country last year, to draft
and introduce legislation that allows tribes to pursue energy self-
determination.
The legislation we are considering today, H.R. 3973, is a product
of direct consultation with tribes across the country. It takes a
number of recommendations that tribes submitted and seeks to address
the many obstacles they face when developing jobs and energy resources
in Indian Country.
As reported by the National Congress of American Indian in their
Fiscal Year 2013 Indian Country budget request, ``even though Tribes
boast nearly a quarter of American on-shore oil and gas reserves and
one-third of the West's low-sulfur coal, existing tribal energy
production represents less than 5 percent of current national
production due to bureaucratic and financial barriers.'' With tribes
willing and able to invest in the energy industries, these numbers are
unacceptable. Tribes in Oklahoma have already begun exploring
hydroelectric, natural gas and biomass as a means to keep emissions
down, costs low, and energy local. Others are looking to develop
partnerships state and local governments. These are the first steps,
but we must do more to help their efforts. The President, Members of
Congress, and the American people all recognize the importance of
domestic energy production. Yet our tribes cannot get past the
government red tape to push forward with development.
H.R. 3973 attempts to break through these bureaucratic barriers
with a series of proposals to reduce the time for approving appraisals;
require standardization of DOI reference numbers; limit public
participation in NEPA review process and eliminate the collection of
BLM fees on Indian lands.
While we all celebrated the passage of the Indian Tribal Energy
Development and Self Determination Act in 2005, which authorized a
variety of Federal technical and financial assistance of participating
Tribes, many impediments still remain. I want to applaud you Mr.
Chairman for efforts to work with our tribal neighbors to remove those
impediments with the introduction of H.R. 3973.
Thank you again for recognizing me Mr. Chairman. I want to welcome
our Tribal leaders to today's hearing and look forward to receiving
their testimony.
______

Mr. Gosar. Thank you. Our witnesses today, going from left
to right, Mr. James Olguin, Vice Chairman of the Southern Ute
Tribal Council; Ms. Irene Cuch, Chairman of the Ute Indian
Tribe Business Council; Frederick Fox, Administrator of the
Tribal Energy Department, MHA Nation; Tara Sweeney, Senior Vice
President, Arctic Slope Regional Corporation; Randall King,
Chairman, Shinnecock Nation Board of Trustees; and finally, Mr.
Wilson Groen, President and CEO of the Navajo Nation Oil and
Gas Company.
Like all our witnesses, your written testimony will appear
in full in the hearing record. So I ask you to keep your oral
statements to five minutes, as outlined in your invitation to
you, and under Committee Rule 4(a).
Our microphones are not automatic. So please press a button
when you're ready to begin. Just to give you a little bit of
information on our timing, once you start and you will see the
green light, that will change to yellow at four minutes, and
then turns to red at five. At the yellow light, start to
summarize and culminate your remarks.
And we will start right away with Mr. Olguin. Thank you.

STATEMENT OF JAMES M. ``MIKE'' OLGUIN, VICE CHAIRMAN, SOUTHERN
UTE INDIAN TRIBAL COUNCIL, IGNACIO, COLORADO

Mr. Olguin. Good afternoon, Chairman Gosar, Ranking Member
Boren, and members of the Subcommittee. I am Michael Olguin,
the Vice Chairman of the Southern Ute Indian Tribe. I am
honored to appear before you on behalf of my tribe and Tribal
Council to provide testimony regarding H.R. 3973. I have
submitted written testimony that covers all our comments
regarding the legislation. But I will focus my comments today
to the areas of the bill that are most important in our view.
First, I commend you, Chairman Gosar, for introducing the--
or, excuse me, Chairman Young, for introducing the Native
American Energy Act, because the bill is a positive step
forward for Indian energy development. At Southern Ute, we have
a proven track record of successful and responsible energy
development. Yet we still must rely on Federal officials to
tell us how to lease our own lands and minerals. Our primary
comments on the bill relate to its provisions regarding
appraisals and environmental reviews.
Additionally, we would like to suggest a new issue be
included in the legislation: appraisals. We strongly support
Section 3 of H.R. 3973, which would provide greater flexibility
in securing required appraisals for development of tribal trust
lands. We often run into significant delays when trying to
complete appraisals for various transactions.
For example, our tribe's consent was requested to grant a
right-of-way for a fiber optic cable. In exchange for the
right-of-way the tribe asked for capacity in the cable for data
transmission. Traditional appraisals could not effectively
measure the value of that capacity. But our leaders knew that
being connected would serve our government and businesses
immensely. After long and costly delays, we secured a waiver of
the appraisal process for that transaction. Since then, we have
demanded similar waivers for tribal trust land transactions.
Based on our experience and frustration, we strongly support
the optional alternative approach to appraisals suggested in
Section 3.
NEPA reform. Section 5 of the proposed legislation would
limit the categories of people who can comment through the NEPA
process on projects proposed on tribal trust lands. Because
many transactions taking place on these lands require Federal
approval, NEPA's requirements must be followed, meaning the
transactions are often delayed. As tribal leaders, we fully
understand the environmental consequences of our actions. But
it is unacceptable that, except for the Federal Government, we
are the only land owners in the United States who are subject
to NEPA with respect to our land use decisions.
In fact, we--with regard to energy development, NEPA often
means that other developers drain our resources from
neighboring private land not subject to NEPA's requirements.
Therefore, we support the changes to NEPA process proposed by
Section 5. But we also hope that someday tribal trust lands are
removed from the NEPA process all together.
Proposed amendment regarding the sharing of civil
penalties. Last, we have recently learned of an issue that we
believe would fit nicely into H.R. 3973. Under existing Federal
law, tribes can enter cooperative agreements with the Office of
Natural Resources Revenue, or ONRR, to assist with the audit of
energy leases and royalty payments. ONRR can assess civil
penalties against those who fail to make proper payments or
file accurate reports under applicable leases and regulations.
If the assessment of such civil penalties is the product of
work performed by a tribal audit team, ONRR must share such
civil penalty proceeds on a 50/50 basis with the tribe.
However, any civil penalty amounts shared by ONRR are then
deducted from the amounts to be paid to the tribe under its
cooperative agreement. This offset requirement unfairly
punishes those tribes who have worked with the Federal
Government to ensure responsibilities--is responsibly
reporting.
Therefore, we suggest amending existing Federal law so that
the civil penalties recovered through the tribe's efforts are
shared without deduction from the tribe's contract funding. The
language we propose is reflected in our written comments, and I
urge you to carefully review and consider our proposed addition
to H.R. 3973 on this issue.
In conclusion, thank you again for this opportunity to
appear before you today on behalf of the Southern Ute Indian
Tribe, and it is an honor and privilege. And we look forward to
continuing our work with you on this important matter.
At this point I would be happy to take any questions. Thank
you.
[The prepared statement of Mr. Olguin follows:]

Statement of The Honorable James M. ``Mike'' Olguin, Vice Chairman,
Southern Ute Indian Tribal Council, Southern Ute Indian Tribe

I. Introduction
Chairman Young, Ranking Member Boren and members of the
subcommittee, I am Mike Olguin, the Vice Chairman of the Southern Ute
Indian Tribe. I am honored to appear before you today to provide
testimony regarding H.R. 3973. Although this proposed legislation was
only recently introduced, it addresses a number of issues involving
Indian energy resource development that have been under discussion for
many months.
The proposed Native American Energy Act is a positive step forward
in our longstanding effort to level the playing field when it comes to
Indian energy development. For decades our tribal leaders have appeared
before House and Senate Committees and urged you to change existing
laws so that tribes would have the legal power to use their lands as
they see fit, free from the bureaucratic delays and interference
inherent in a system that relies on federal review and approval. We are
very grateful for your attention and efforts toward that end. This
statement presents specific comments regarding a number of the
legislative provisions.

II. Background
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.

III. The Southern Ute Indian Tribe Has Assumed Significant
Responsibility Over Energy Development
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 activities 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.'' The Native American Energy Act will help
implement our longstanding goal of self determination, and we thank you
for introducing it.

IV. Specific Comments
A. Appraisals. Section 3 of the proposed legislation would provide
tribes with meaningful options and reforms to the current appraisal
process. As you know, existing regulations require the Secretary of the
Interior to conduct appraisals in the course of reviewing proposed
transactions affecting Indian trust lands or trust assets. While this
practice reflects an ostensible effort to carry out the Secretary's
trust responsibility and to ensure that Indians are not short-changed
in land-related transactions, it has become a major bottleneck to
Indian commerce.
The current appraisal process imposes inordinate delays. In
addition to near impossible staffing challenges, the appraisal
methodologies employed in determining ``fair market value'' do not take
into account the flexibility and creative deal-making often necessary
to attract economic development to Indian Country. An example we often
refer to involved our tribe's consent to granting a right-of-way for a
fiber optic cable. As compensation for the right-of-way, we requested
capacity in the cable for data transmission. Traditional appraisal
methods could not effectively measure the value for compensation
purposes of capacity in an unconstructed fiber optic cable, yet our
leaders knew that the connectivity to our government and businesses far
exceeded tradition dollar-per-rod compensation practices.
Ultimately, and after considerable and costly delay, our leaders
prevailed in obtaining a waiver of the appraisal process for that
transaction. We have since insisted upon a general waiver of Interior
appraisals for tribal trust land transactions on our Reservation. In
lieu of those appraisals, we have a schedule of permission and surface
damage compensation fees, tied to land classification categories, that
guides us in most situations. We strongly support the optional,
alternative approach to Interior appraisals suggested in Section 3.
B. Standardization. Section 4 of the proposed legislation directs
the Secretary of the Interior to implement a uniform system of
reference numbers and tracking systems for oil and gas wells. We do not
know the specific facts that led to this proposal. Our tribe's energy
department has worked closely with the Bureau of Land Management and
the Colorado Oil and Gas Conservation Commission in many aspects of
natural gas development. Through those cooperative efforts, specific
API numbers and well names are assigned to each permitted well, and
that indentifying information is used by operators, governmental
officials, and others to reference such wells. Although there may be
exceptions to the experience we have enjoyed, we would caution against
adopting statutory language in this section that is so broad that it
modifies existing, standard practices that are working. Instead, more
specific language that remedies the particular problems would appear
preferable.
C. Environmental Reviews of Major Federal Actions on Indian Lands.
Section 5 of the proposed legislation would significantly reduce the
categories of persons who would be entitled to review or comment upon
environmental impact statements associated with major federal actions
involving Indian lands. Because energy transactional documents
involving Indian land generally require the approval of the Interior
Secretary, and because such approval constitutes federal action, this
approval process triggers compliance with the National Environmental
Policy Act (``NEPA'').
NEPA is a procedural statute designed to ensure that federal
agencies evaluate alternatives to a proposed federal action, taking
into consideration the potential environmental and social impacts of
the alternatives and the views of the public. Except for the federal
government, no owner of land in the United States--other than an Indian
tribe or an Indian allottee--is subject to NEPA with respect to its
land use transactions.
Unlike Indian trust lands, which are owned beneficially by Indian
tribes or Indian individuals, other federal and public lands are
generally owned for the benefit of the public at large. Like many
tribal representatives, our leaders have witnessed the very real
economic harm done when NEPA blankets tribal land use decisions and
unfairly encroaches on tribal sovereignty. To be sure, Indian tribes
are bound to substantive environmental protection laws of general
application when Congress has indicated its intent to bind tribes. So
long as proposed transactions are to be performed in compliance with
those substantive laws, however, the evaluation of multiple
alternatives to a tribal land use decision and inclusion of the public
in second-guessing a tribe's decision are objectionable.
Further, in the context of energy development, the NEPA process
severely penalizes tribes. Energy development on private lands
adjoining tribal land does not require NEPA compliance. Thus, while
federal officials undertake detailed evaluation of alternatives to a
tribal energy lease, for example, oil and gas resources of tribes are
often being drained by their neighbors. Particularly for tribes, like
the Southern Ute Indian Tribe, with sophisticated energy and
environmental staffs and decades of proven success, the NEPA review
process remains frustrating and damaging.
We are supportive of major NEPA reform involving the use of tribal
trust lands. We were active supporters of Section 2604 of the Energy
Policy Act of 2005 and the legislative authorization for use of
``Tribal Energy Resource Agreements'' (``TERA''). In place of NEPA,
Congress now permits a tribe with an approved TERA to establish a
tribal environmental review process that allows for limited public
participation. A TERA would also authorize a fribe to assume federal
administrative functions related to review and operation of energy
development on tribal lands. Just as our tribal leaders supported the
TERA concept, we are also supportive of the public participation
limitations proposed under Section 5 of the Native American Energy Act.
D. Indian Energy Development Offices. Section 6 of the legislation
directs the Interior Secretary to establish at least five multi-agency
Indian Energy Development Offices. The Indian Energy Development
Offices would be set up in regions of significant Indian energy
resource activity or potential, and, through centralized staffing, the
Indian Energy Development Offices would presumably be better able to
handle Indian energy development than current administrative
structures. Although the establishment of Indian Energy Development
Offices has been advocated by others in the Indian community, we
seriously question the need for or the long-term viability of these
multi-agency offices. All of the administrative agencies at the
Department of the Interior share the federal trust responsibility. With
the exception of the Bureau of Indian Affairs, all of those offices
also have responsibilities for activities on a variety of federal
lands.
Our experience indicates that when dealing with officials from non-
BIA agencies, such as the BLM or the Office of Natural Resources
Revenue, much can be accomplished through officials held in high regard
and occupying positions of broad authority within their agencies, who
have an awareness and sensitivity to Indian matters. We fear that,
because of their value to their agencies for dealing with multiple
issues, such officials would not be the ones selected to fill positions
in Indian Energy Development Offices. With guidance from the Secretary
of the Interior, we believe that prioritization of Indian trust matters
and inter-agency cooperation can be effectively addressed without the
creation of Indian Energy Development Offices. In sum, we do not oppose
this proposal, but we seriously question whether it would be an
improvement over existing practice.
E. BLM Oil and Gas Fees. Section 7 of the proposed legislation
would prevent the BLM from imposing fees for (i) applications for
permits to drill on Indian lands, (ii) oil and gas inspections on
Indian lands, and (iii) nonproducing acreage on Indian lands. We
support this legislative proposal. Energy development on Indian lands
is already subject to a number of competitive disadvantages and
disproportionate costs, and the imposition of the referenced fees is a
further disincentive to energy development in Indian Country.
F. Bonding Requirements and Nonpayment of Attorneys' Fees To
Promote Indian Energy Projects. Section 8 of the legislation imposes
significant hurdles and disincentives for litigants desiring to block
Indian energy projects in court or through administrative processes.
Although there are aspects of this proposal that we favor, we also have
some concerns. Clearly, the object of this section is to eliminate
frivolous challenges to proposed activities, which challenges are
designed principally as delay tactics. Our hesitancy to support this
measure fully, however, derives from the knowledge that, in some cases,
challenges to energy development may not be frivolous. In that regard,
our tribe was the plaintiff in hard-fought litigation that ended only
after the Supreme Court ruled that we did not own the coalbed methane
gas trapped in our coal deposits. Legitimate disputes, such as good
faith disputes regarding ownership, should not necessarily be swallowed
by the reforms contemplated in this section. We are continuing our
study of this section and look forward to reviewing the thoughts of
other witnesses and commentators.
G. Tribal Biomass Demonstration Project; Tribal Resource Management
Plans; and Leases of Restricted Lands For the Navajo Nation. Sections
9, 10, and 11 of the proposed legislation contain provisions that we
support. The tribal biomass demonstration project would encourage use
of valuable timber resources obtainable from federal lands for energy
purposes. Section 10 recognizes resource development activity
undertaken under an approved tribal resource management plan as a
federally-acknowledged sustainable management practice. Finally,
section 11 would expand the authorization currently extended to the
Navajo Nation to enter into leasing activities with minimal federal
oversight. We believe that the processes in place and being proposed
for the Navajo Nation should be considered as an option available to
all tribes.

V. Cooperative Agreements and Civil Penalty Cost Sharing
This portion of our testimony discusses a new issue that we hope
will be addressed by the Subcommittee as the Native American Energy Act
evolves: clarification regarding the sharing of civil penalties under
the Federal Oil and Gas Royalty Management Act (``FOGRMA''). Under the
FOGRMA, Indian tribes may enter into contracts with the Office of
Natural Resources Revenue (``ONRR'') to conduct audit work related to
the payment and reporting of oil and gas royalties due under federally
approved oil and gas leases involving tribal lands. 30 U.S.C.
Sec. Sec. 1732.
The Southern Ute Indian Tribe and ONNR are currently parties to
such a cooperative audit agreement, which is similar to previous
cooperative agreements that have been in place since the late 1980s.
One provision of FOGRMA authorizes ONRR to assess civil penalties
against oil and gas companies who fail to make proper payments or file
accurate reports under the applicable leases and regulations. 30 U.S.C.
Sec. 1719. If the assessment of such civil penalties is the product of
work performed by a tribal audit team, FOGRMA also authorizes ONRR to
share such civil penalty proceeds on 50/50 basis with the applicable
tribe. 30 U.S.C. 1736. The civil penalty sharing provision also states,
however, that the portion received by a tribe ``shall be deducted from
any compensation due such. . .Indian tribe under'' the applicable
cooperative agreement.
Historically, the ONRR and its predecessor agencies have not
collected significant civil penalties from misreporting oil and gas
companies, and, accordingly, the effect of sharing such civil penalties
on contract funding has not been an issue. However, the issue has
recently come to the forefront. See Decision re: Office of Natural
Resources Revenue--Cooperative Agreements, No. B-32197 (Comptroller
General of the United States, August 2, 2011). There appears to be a
common recognition among participating tribes and ONRR that
clarification is needed with respect to 30 U.S.C. Sec. 1736. In order
to provide statutory clarity and preserve the full incentive associated
with the sharing of civil penalties, we suggest the following statutory
language, or materially similar language:
SEC. ___. SHARED CIVIL PENALTIES.
Section 206 of the Federal Oil and Gas Royalty
Management Act of 1982 (30 U.S.C. 1736) is amended by
striking the second sentence and replacing it as
follows: ``Within 180 days from the date of enactment
of this section, the Secretary shall also pay to
applicable tribes an amount equal to 50 per centum of
any civil penalty collected by the federal government
under this Act resulting from activities conducted by
an Indian tribe pursuant to a cooperative agreement
under section 202, not previously paid under this
section by the Secretary to such tribe, without
deduction from any compensation due such tribe under a
previous or currently existing cooperative agreement
under section 202.
We hope that the Subcommittee will consider the proposed language
favorably, and we look forward to working with you in discussing this
matter further.
Conclusion
In conclusion, I am honored to appear before you today on behalf of
the Southern Ute Indian Tribe. We believe that our experiences have
given us a unique perspective on matters related to energy development
in Indian Country. We look forward to continuing our work with the
Subcommittee on this important matter.
At this point, I would be happy to answer any questions you may
have.
______

Mr. Gosar. Thank you very, very much. We are running ahead
of time.
Ms. Cuch, your turn.

STATEMENT OF IRENE CUCH, CHAIRWOMAN, UTE INDIAN TRIBAL BUSINESS
COUNCIL, FORT DUCHESNE, UTAH

Ms. Cuch. Good afternoon, Mr. Gosar, Ranking Member Boren,
and members of the Subcommittee. My name is Irene Cuch. I am
the Chairwoman of the Ute Business Committee for the Ute Indian
Tribe. Thank you for the opportunity to testify today on H.R.
3973. I ask that my written testimony and additional materials,
including the tribe's legislative proposals, be made a part of
the hearing record.
As you know, when I testified last April during the
Subcommittee's oversight hearing on Indian energy, I described
the importance of oil and gas development to the tribe, and the
barriers we face in fully developing these resources. Today I
will spend most of my time discussing H.R. 3973. For further
details about the tribe's oil and gas development, I ask that
you refer to my testimony from April.
As I described in April, our Reservation is located in the
State of Utah, and is one of the largest in the United States.
Oil and gas has been developed on the Reservation since the
1940s. Today the tribe leases nearly 400,000 acres for oil and
gas development, with some 7,000 wells producing 45,000 barrels
a day, and about 900 million cubic feet of gas per day.
The tribe's oil and gas development is a primary source of
revenue to fund the Tribal Government and the services we
provide to our members through 60 tribal departments and
agencies. The tribe also invests in tribal businesses and is a
major employer in energy for economic growth in Northeastern
Utah.
One of the tribe's businesses is Ute Energy, LLC, an oil
and gas development company. We recently approved plans for Ute
Energy, LLC to raise significant new sources of financial
capital by becoming a public traded company. With this
additional investment, improvements to the oil and gas
permitting process are vital to the tribe's long-term economic
success.
The best example of the needed improvements come from the
private sector oil and gas companies that operate on the
tribe's Reservation. They routinely tell us that the Department
of the Interior permitting process is the single biggest risk
factor in their operations. We take this issue very seriously,
because the number of permits that Interior is able to process
is directly related to the revenues the tribe has available to
serve its members.
At the April 2011 hearing, Chairman Young asked witnesses
to submit proposals to overcome barriers to Indian energy
resource development. We developed 32 legislative proposals
that were submitted in July of 2011, and are pleased that some
of these are included in the bill. The tribe supports H.R.
3973, and we believe the bill is a good start and can be
expanded to provide more support for tribal energy development.
The tribe supports the bill's reform to the appraisal process,
the environmental review process, standardizing government
tracking systems, and the elimination of BLM oil and gas fees.
We strongly support the bill's proposal to create Indian
energy development offices. As many in Congress have noted, the
oil and gas permitting process is a bureaucratic maze of
Federal agencies that it takes 49 steps to obtain 1 permit.
Indian energy development offices would bring all of the
agencies into the same room and would streamline processes.
Former Senator Dorgan referred to these as one-stop shops.
There are three one-stop shops already in Indian Country. There
is one at Navajo, one in Oklahoma, and a virtual one-stop shop
on a Forth Berthold Reservation in North Dakota. Senator Dorgan
reported that the one-stop shop at Fort Berthold increases
permit approvals by four times.
The fact is we need 10 times as many permits to be
approved, and would benefit from one-stop shop. Currently,
about 48 applications for permit to drill are approved each
year for oil and gas operations on the Reservation. We estimate
that 458 PDs will be needed each year as we expand operations.
A one-stop shop would encourage the Bureau of Indian Affairs to
hire staff with energy expertise. The BIA may be the most
important Federal agency charged with supporting Indian energy,
yet there are only a handful of BIA employees with energy
expertise.
In addition, we ask that you expand the bill to include
more of the solutions the tribes propose. I will highlight a
few of the most important ones.
The bill could clarify that tribes retain jurisdiction over
any right-of-ways they are granted. Over the last 30 years
Federal courts have treated this issue differently. The
uncertainty in the law hinders our energy business.
The bill must also ensure that tribes can raise tax
revenues so that we can manage energy development. Currently,
Federal courts allow other governments to tax energy
development on Indian lands. This limits the tax revenues
tribes can earn.
As Congress looks for ways to diminish----
Mr. Gosar. Are you just about ready to wrap that up?
Ms. Cuch. Yes, almost. Just got--diminish the role of the
Federal Government on Indian lands, Congress must also ensure
that tribes can raise tax revenues.
[The prepared statement of Ms. Cuch follows:]

Statement of The Honorable Irene C. Cuch, Chairwoman, Ute Tribal
Business Committee, Ute Indian Tribe of the Uintah and Ouray
Reservation

Good afternoon Chairman Young, Ranking Member Boren, and Members of
the Subcommittee. My name is Irene Cuch. I am the Chairwoman of the Ute
Tribal Business Committee for the Ute Indian Tribe (``Tribe''). Thank
you for the opportunity to testify today on H.R. 3973. I ask that my
written testimony and additional materials including the Tribe's
legislative proposals be made a part of the hearing record.
As you know, when I testified last April during the Subcommittee's
Oversight Hearing on Indian Energy, I described the importance of oil
and gas development to the Tribe and the barriers we face in fully
developing those resources. Today I will spend most of my time
discussing H.R. 3973. For further details about the Tribe's oil and gas
development, I ask that you refer to my testimony from April.
As I described in April, our reservation is located in the State of
Utah and is one of the largest in the United States. Oil and gas has
been developed on the Reservation since the 1940's. Today, the Tribe
leases nearly 400,000 acres for oil and gas development, with some
7,000 wells producing 45,000 barrels of oil a day and about 900 million
cubic feet of gas per day. The Tribe's oil and gas development is the
primary source of revenue to fund our tribal government and the
services we provide to our members through 60 tribal departments and
agencies. The Tribe also invests in tribal businesses and is a major
employer and engine for economic growth in northeastern Utah.
One of the Tribe's businesses is Ute Energy, LLC--an oil and gas
development company. We recently approved plans for Ute Energy, LLC to
raise significant and new sources of financial capital by becoming a
publically-traded company. With this additional investment,
improvements to the oil and gas permitting process are vital to the
Tribe's long-term economic success.
The best example of the need for improvements comes from the
private sector oil and gas companies that operate on the Tribe's
reservation. They routinely tell us that the Department of the
Interior's permitting process is the single biggest risk factor in
their operations. We take this issue very seriously because the number
of permits that Interior is able to process is directly related to the
revenues the Tribe has available to serve its members.
At the April 2011 hearing, Chairman Young asked witnesses to submit
proposals to overcome barriers to Indian energy resource development.
We developed 32 legislative proposals that were submitted in July 2011,
and are pleased that some of these are included in the bill. The Tribe
supports H.R. 3973, and we believe the bill is a good start and can be
expanded to provide more support for tribal energy development.
The Tribe supports the bill's reforms to the appraisal process, the
environmental review process, standardizing government tracking
systems, and the elimination of BLM oil and gas fees.
We strongly support the bill's proposal to create Indian Energy
Development Offices. As many in Congress have noted, the oil and gas
permitting process is a bureaucratic maze of federal agencies, and that
it takes 49 steps to obtain one permit. Indian Energy Development
Offices would bring all of the agencies into the same room and would
streamline processing.
Former Senator Dorgan referred to these as ``one-stop shops.''
There are 3 one-stop shops already in Indian Country. There is one at
Navajo, one in Oklahoma, and a virtual one-stop shop on the Fort
Berthold Reservation in North Dakota. Senator Dorgan reported that the
one-stop shop at Fort Berthold increased permit approvals by 4 times.
The fact is that we need 10 times as many permits to be approved
and would benefit from a one-stop shop. Currently, about 48
Applications for Permits to Drill (APD) are approved each year for oil
and gas operations on the Reservation. We estimate that 450 APDs will
be needed each year as we expand operations.
A one-stop shop would also encourage the Bureau of Indian Affairs
(BIA) to hire staff with energy expertise. The BIA may be the most
important federal agency charged with supporting Indian energy, yet
there are only a handful of BIA employees with energy expertise.
In addition, we ask that you expand the bill to include more of the
solutions the Tribe proposed. I will highlight a few of the most
important ones. The bill should clarify that tribes retain jurisdiction
over any rights-of-way they have granted. Over the last 30 years,
federal courts have treated this issue differently. The uncertainty in
the law hinders our energy business.
The bill must also ensure that tribes can raise tax revenues so
that we can manage energy development. Currently, federal courts allow
other governments to tax energy development on Indian lands. This
limits the tax revenues tribes can earn. As Congress looks for ways to
diminish the role of the federal government on Indian lands, Congress
must also ensure that tribes can raise tax revenues.
The Tribe also recommends amendments to the Tribal Energy Resource
Agreement (TERA) program that was enacted in 2005. The Tribe supports
many of the changes to the TERA program Senator Barrasso included in
his Indian energy bill. In addition, changes should include a
limitation on the number of times Interior can force a tribe to revise
a TERA application.
Finally, the bill should include set-asides for tribes in energy
efficiency and weatherization programs. The federal government provides
about $100 million every year to fund these programs at the state
level. This funding should go to those who need it most, but for
decades these programs have ignored tribes.
In closing, I would like to thank Chairman Young, Ranking Member
Boren and members of the Subcommittee for the opportunity to present
this testimony on behalf of the Tribe. We stand ready to work with the
Subcommittee 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.
Towaok (Thank You)

Legislative Hearing on H.R. 3973

Additional Materials for the Record:

Ute Indian Tribe's Energy Legislation Proposals, July 11, 2011

On July 11, 2011, the Tribe submitted to Chairman Young and
Subcommittee staff 32 legislative proposals in response to the
Chairman's request at an April 1, 2011, Indian Energy Oversight
Hearing, that tribes identify barriers to Indian energy development and
propose solutions. The Tribe provides these additional materials at
this time so that they will part of the hearing record for H.R. 3973.
The Tribe has removed from these additional materials tax measures that
may not be germane to this legislative hearing and other provisions
that are already included in House and Senate Indian energy bills.

1) Delayed Royalties Due to Communitization Agreements
Problem: Current law requires that oil and gas companies pay
royalties on producing wells within 30 days of the first month of
production. However, when the well is subject to a Communitization
Agreement (CA), without any statutory or regulatory authority, the
Bureau of Land Management (BLM) allows oil and gas companies a 90 day
grace period before royalties are due. During this period no interest
is due. Moreover, the 90 day grace period has been known to extend for
a year or more.
Proposed Solution: Where feasible, BLM should require CAs 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. Once the CA is approved the royalties,
plus interest can be paid to the mineral owners.

2) Standardization of Procedures for Well Completion Reports and
Enforcement of Late Payments.
Problem: Current regulations only require oil and gas companies to
send well completion reports to the BLM. However, at least two other
agencies should be aware of this information as soon as possible, the
Bureau of Indian Affairs (BIA) and the Office of Natural Resources
Revenue (ONRR) within the Bureau of Ocean Energy Management, Regulation
and Enforcement (BOEMRE). In addition, upon receipt of this information
ONRR should inform oil and gas companies of the penalties if royalties
are not received in the required time periods, and ONRR needs to be
reminded of its enforcement obligations.
Proposed Solution: Require DOI to develop a regulation that
requires oil and gas lessees to send oil and gas well completion
reports to BLM, BIA and ONRR at the same time. Also require ONRR to
inform oil and gas companies of penalties for late payment, and clarify
that ONRR is required to collect penalties if payments are late.

3) Inclusion of Tribes in Well Spacing Decisions
Problem: In most states, the BLM defers to state practices and
forums when determining oil and gas well spacing on federal lands. The
BLM follows this same procedure for determining spacing on Indian
lands. Although the BLM ultimately exercises its federal authority and
approves the oil and gas well spacing that was originally proposed in
state forums, the BLM should more directly consult with and include
Indian tribes in spacing determinations on their reservations.
Proposed Solution: Where the BLM is involved in determining spacing
units on a tribe's reservation, the BLM should be directed to enter
into oil and gas spacing agreements with Indian tribes. These
agreements should provide a tribe every opportunity to participate in
and ultimately determine spacing units on its reservation.

4) Environmental Review of Energy Projects on Indian Lands
Problem: Environmental review of energy projects on Indian land is
often more extensive than on comparable private lands. This extensive
review acts as a disincentive to development on Indian lands. In
addition, federal agencies typically lack the staff and resources to
expeditiously review a project.
Proposed Solution: Similar to the Clean Water Act, Clean Air Act
and others, amend the National Environmental Policy Act (NEPA) to
include treatment as a sovereign (TAS) provisions. The new provision
would allow a tribe to submit an application to the Council on
Environmental Quality and once approved, federal authority for
performing environmental reviews would be delegated to tribal
governments.

5) Minor Source Regulation in Indian Country
Problem: The Environmental Protection Agency (EPA) recently
completed new regulations for issuing minor source air permits in
Indian Country. EPA's new regulations were completed without meaningful
consultation with tribal governments, and EPA does not have the
necessary staff throughout Indian Country to implement the new
regulations.
Proposed Solution: Require EPA to delay implementation of any new
minor source rule until after it consults with tribes on its
implementation plan and considers the impacts. In addition, require EPA
to ensure appropriate staffing is in place to administer any new
permitting requirements.

6) Distributed Generation and Community Transmission
Problem: Areas of Indian Country lack access to electric
transmission. 1990 Census data found that 14.2 percent of Indian
households lacked access to electric service compared to 1.4 percent of
all U.S. households--a tenfold difference.\1\ In some areas it is not
economically feasible to develop large transmission projects. Current
Department of Energy (DOE) tribal energy programs are focused on
developing the most energy for the most people. There is no program
that emphasizes efficient distributed generation and community
transmission.
---------------------------------------------------------------------------
\1\ U.S. Dep't of Energy, Energy Info. Admin., Energy Consumption
and Renewable Energy Development Potential on Indian Lands ix (April
2000) (available at http://www.eia.doe.gov/cneaf/solar.renewables/
ilands/ilands.pdf (using information from the 1990 Decennial Census).
---------------------------------------------------------------------------
Proposed Solution: Direct DOE to conduct no fewer than 10
distributed energy demonstration projects to increase the energy
resources available to Indian and Alaska Native homes, communities, and
government buildings. Priority should be given to projects that utilize
local resources, and reduce or stabilize energy costs.

Proposed Legislative Text:
(a) Definition of Indian Area.--In this section, the term ``Indian
area'' has the meaning given the term in section 4 of the Native
American Housing Assistance and Self-Determination Act of 1996 (25
U.S.C. 4103).
(b) Energy Demonstration Projects.--The Secretary of Energy shall
conduct not less than 10 distributed energy demonstration projects to
increase the energy resources available to Indian tribes for use in
homes and community or government buildings.
(c) Priority.--In carrying out this section, the Secretary of
Energy shall give priority to projects in Indian areas that--
(1) reduce or stabilize energy costs;
(2) benefit populations living in poverty;
(3) provide a new generation facility or distribution or
replacement system;
(4) have populations whose energy needs could be completely or
substantially served by projects under this section; or
(5) transmit electricity or heat to homes and buildings that
previously were not served or were underserved.
(d) Eligible Projects.--A project under this section may include a
project for--
(1) distributed generation, local or community distribution,
or both;
(2) biomass combined heat and power systems;
(3) municipal solid waste generation;
(4) instream hydrokinetic energy;
(5) micro-hydroelectric projects;
(6) wind-diesel hybrid high-penetration systems;
(7) energy storage and smart grid technology improvements;
(8) underground coal gasification systems;
(9) solar thermal, distributed solar, geothermal, or wind
generation; or
(10) any other project that meets the goals of this section.
(e) Incorporation Into Existing Infrastructure.--As necessary, the
Director shall encourage local utilities and local governments to
incorporate demonstration projects into existing transmission and
distribution infrastructure.
(f) Exemptions.--
(1) In general.--A project carried out under this section
shall be exempt from all cost-sharing requirements of section
988 of the Energy Policy Act of 2005 (42 U.S.C. 16352).
(2) Applications.--An application submitted to carry out a
project under this section shall not be subject--
(A) to any maximum generation requirements; or
(B) to any requirements for maximizing benefits in
relation to the population served.
(g) Reports.--Not later than 2 years after the date on which funds
are made available for a project under this section, and annually
thereafter, the Secretary shall submit to Congress a report
describing--
(1) the activities carried out under the project, including an
evaluation of the activity; and
(2) the number of applications received and funded under this
section.

7) Surface Leasing Authority
Problem: In general, surface leases on Indian lands are limited to
25 years with one 25 year automatic approval allowed, however, the life
of a typical energy project is 50 years.
Proposed Solutions: General surface lease terms should be
lengthened to reflect the life of energy projects. These proposals are
limited to 50 year lease terms to avoid a lease resulting in de facto
ownership of tribal lands by non-Indians, and because other federal
laws governing tribal jurisdiction over tribal lands can change over
shorter time periods and affect the authority of tribes over lessors.
In addition, all tribes should be given the opportunity to assume BIA
leasing responsibilities for certain kinds of surface leasing.
a) Amend 25 U.S.C. 415(a), known as the ``Indian Long Term
Leasing Act,'' to authorize Indian tribes to lease restricted
Indian land for not more than 50 years.
b) Amend 25 U.S.C. 415(e) to allow all tribes to develop
leasing regulations, and once approved by the Secretary, the
tribes may lease their lands for housing and community purposes
for not more than 25 years without having to obtain the
approval of the Secretary for each individual leases. This
proposal is the similar to the HEARTH Act introduced in the
112th Congress as S. 703 and H.R. 205.
c) Amend the Indian Reorganization Act (25 U.S.C. 477) to
authorize Section 17 Corporations to lease Indian land for not
more than 50 years.
Proposed Legislative Text:
(a) Long-Term Leasing Act.--Subsection (a) of the first section of
the Act of August 9, 1955 (25 U.S.C. 415(a)) (commonly known as the
``Long-Term Leasing Act''), is amended--
(1) by striking the subsection designation and all that
follows through ``Any restricted'' and inserting the following:
``(a) Authorized Purposes; Term; Approval by Secretary.--
``(1) Authorized purposes.--Any restricted'';
(2) in the second sentence, by striking ``All leases so
granted'' through ``twenty five years, except'' and inserting
the following:
``(2) Term.--
``(A) In general.--Except as provided in subparagraph
(B), the term of a lease granted under paragraph (1)
shall be--
``(i) for a lease of tribally owned restricted
Indian land, not more than 50 years; and
``(ii) for a lease of individually owned
restricted Indian land, not more than 25 years.
``(B) Exception.--Except'';
(3) in the third sentence, by striking ``Leases for public''
and all that follows through ``twenty-five years, and all'' and
inserting the following:
``(3) Approval by secretary.--
``(A) In general.--All''; and
(4) in the fourth sentence, by striking ``Prior to approval
of'' and inserting the following:
``(B) Requirements for approval.--Before approving''.
(b) Approval of, and Regulations Related to, Tribal Leases.--The
first section of the Act titled ``An Act to authorize the leasing of
restricted Indian lands for public, religious, educational,
recreational, residential, business, and other purposes requiring the
grant of long-term leases'', approved August 9, 1955 (25 U.S.C. 415) is
amended as follows:
(1) In subsection (d)--
(A) in paragraph (4), by striking ``the Navajo
Nation'' and inserting ``an applicable Indian tribe'';
(B) in paragraph (6), by striking ``the Navajo
Nation'' and inserting ``an Indian tribe'';
(C) in paragraph (7), by striking ``and'' after the
semicolon at the end;
(D) in paragraph (8)--
(i) by striking ``the Navajo Nation'';
(ii) by striking ``with Navajo Nation law''
and inserting ``with applicable tribal law'';
and
(iii) by striking the period at the end and
inserting a semicolon; and
(E) by adding at the end the following:
``(9) the term `Indian tribe' has the meaning given such term
in section 102 of the Federally Recognized Indian Tribe List
Act of 1994 (25 U.S.C. 479a); and
``(10) the term `individually owned allotted land' means a
parcel of land that--
``(A)(i) is located within the jurisdiction of an
Indian tribe; or
``(ii) is held in trust or restricted status
by the United States for the benefit of an
Indian tribe or a member of an Indian tribe;
and
``(B) is allotted to a member of an Indian tribe.''.
(2) By adding at the end the following:
``(h) Tribal Approval of Leases.--
``(1) In general.--At the discretion of any Indian tribe, any
lease by the Indian tribe for the purposes authorized under
subsection (a) (including any amendments to subsection (a)),
except a lease for the exploration, development, or extraction
of any mineral resources, shall not require the approval of the
Secretary, if the lease is executed under the tribal
regulations approved by the Secretary under this subsection and
the term of the lease does not exceed--
``(A) in the case of a business or agricultural lease,
25 years, except that any such lease may include an
option to renew for up to 2 additional terms, each of
which may not exceed 25 years; and
``(B) in the case of a lease for public, religious,
educational, recreational, or residential purposes, 75
years, if such a term is provided for by the
regulations issued by the Indian tribe.
``(2) Allotted land.--Paragraph (1) shall not apply to any
lease of individually owned Indian allotted land.
``(3) Authority of secretary over tribal regulations.--
``(A) In general.--The Secretary shall have the
authority to approve or disapprove any tribal
regulations issued in accordance with paragraph (1).
``(B) Considerations for approval.--The Secretary shall
approve any tribal regulation issued in accordance with
paragraph (1), if the tribal regulations--
``(i) are consistent with any regulations
issued by the Secretary under subsection (a)
(including any amendments to the subsection or
regulations); and
``(ii) provide for an environmental review
process that includes--
``(I) the identification and evaluation
of any significant effects of the
proposed action on the environment; and
``(II) a process for ensuring that--
``(aa) the public is informed
of, and has a reasonable
opportunity to comment on, any
significant environmental
impacts of the proposed action
identified by the Indian tribe;
and
``(bb) the Indian tribe
provides responses to relevant
and substantive public comments
on any such impacts before the
Indian tribe approves the
lease.
``(4) Review process.--
``(A) In general.--Not later than 120 days after the
date on which the tribal regulations described in
paragraph (1) are submitted to the Secretary, the
Secretary shall review and approve or disapprove the
regulations.
``(B) Written documentation.--If the Secretary
disapproves the tribal regulations described in
paragraph (1), the Secretary shall include written
documentation with the disapproval notification that
describes the basis for the disapproval.
``(C) Extension.--The deadline described in
subparagraph (A) may be extended by the Secretary,
after consultation with the Indian tribe.
``(5) Federal environmental review.--Notwithstanding paragraphs
(3) and (4), if an Indian tribe carries out a project or
activity funded by a Federal agency, the Indian tribe shall
have the authority to rely on the environmental review process
of the applicable Federal agency rather than any tribal
environmental review process under this subsection.
``(6) Documentation.--If an Indian tribe executes a lease
pursuant to tribal regulations under paragraph (1), the Indian
tribe shall provide the Secretary with--
``(A) a copy of the lease, including any amendments or
renewals to the lease; and
``(B) in the case of tribal regulations or a lease that
allows for lease payments to be made directly to the
Indian tribe, documentation of the lease payments that
are sufficient to enable the Secretary to discharge the
trust responsibility of the United States under
paragraph (7).
``(7) Trust responsibility.--
``(A) In general.--The United States shall not be
liable for losses sustained by any party to a lease
executed pursuant to tribal regulations under paragraph
(1).
``(B) Authority of secretary.--Pursuant to the
authority of the Secretary to fulfill the trust
obligation of the United States to the applicable
Indian tribe under Federal law (including regulations),
the Secretary may, upon reasonable notice from the
applicable Indian tribe and at the discretion of the
Secretary, enforce the provisions of, or cancel, any
lease executed by the Indian tribe under paragraph (1).
``(8) Compliance.--
``(A) In general.--An interested party, after
exhausting of any applicable tribal remedies, may
submit a petition to the Secretary, at such time and in
such form as the Secretary determines to be
appropriate, to review the compliance of the applicable
Indian tribe with any tribal regulations approved by
the Secretary under this subsection.
``(B) Violations.--If, after carrying out a review
under subparagraph (A), the Secretary determines that
the tribal regulations were violated, the Secretary may
take any action the Secretary determines to be
necessary to remedy the violation, including rescinding
the approval of the tribal regulations and reassuming
responsibility for the approval of leases of tribal
trust lands.
``(C) Documentation.--If the Secretary determines that
a violation of the tribal regulations has occurred and
a remedy is necessary, the Secretary shall--
``(i) make a written determination with
respect to the regulations that have been
violated;
``(ii) provide the applicable Indian tribe
with a written notice of the alleged violation
together with such written determination; and
``(iii) prior to the exercise of any remedy,
the rescission of the approval of the
regulation involved, or the reassumption of
lease approval responsibilities, provide the
applicable Indian tribe with--
``(I) a hearing that is on the record;
and
``(II) a reasonable opportunity to cure
the alleged violation.
``(9) Savings clause.--Nothing in this subsection shall affect
subsection (e) or any tribal regulations issued under that
subsection.''.
(c) Indian Reorganization Act.--Section 17 of the Act of June 18,
1934 (25 U.S.C. 477) (commonly known as the ``Indian Reorganization
Act'') is amended in the second sentence by striking ``twenty-five''
and inserting ``50''

8) Partnership with Federal Power Marketing Agencies
Problem: Despite the enormous potential for generating traditional
and renewable energy on Indian lands, in many cases, the nation is
unable to utilize these resources because they are in remote locations
far from population centers where additional energy is needed.
Proposed Solution: Require Federal Power Marketing Agencies,
including the Western Area Power Administration and the Bonneville
Power Administration, to treat energy generated on Indian lands as
federal energy generated or acquired by the United States for the
purposes of transmitting and marketing such energy. This solution would
promote the development of traditional and renewable energy projects on
tribal lands, and allow the nation to benefit from additional domestic
energy supplies. In addition, this solution would provide some
compensation through the promotion of tribal energy projects to Indian
tribes whose lands were flooded or taken for the generation of federal
energy.

Proposed Legislative Text:
Title XXVI of the Energy Policy Act of 1992 (2512 U.S.C. 3501) is
amended, by adding at the end a new section:
Section XXXX. Classification of Indian Energy.
(a) In General.--The Western Area Power Administration, the
Bonneville Power Administration, and all other Federal Power Marketing
agencies and related agencies shall consider energy generated on Indian
lands the same as federal energy generated or acquired by the United
States for the purposes of transmitting and marketing such energy.

9) Duplicative Review of Tribal Energy Resource Agreements
Problem: The Energy Policy Act of 2005 provided clear standards for
the Secretary to assess in approving an application for a tribal energy
resource agreement. These standards do not include or require review
under NEPA. However, the Department of Interior's regulations require
that a TERA application be reviewed under NEPA.
Proposed Solution: Clarify that Secretarial approval of a TERA
includes only the standards expressed in the Energy Policy Act of 2005
and does not include review under NEPA.

Proposed Legislative Text:
Section 2604 of the Energy Policy Act of 1992 (25 U.S.C. 3504) is
amended by adding at the end the following--
``Secretarial Review.--In determining whether to approve a tribal
energy resource agreement submitted in accordance with this section,
the Secretary shall only rely on the standards set forth in Title V of
the Energy Policy Act of 2005. The Secretary's review shall not include
compliance with the National Environmental Policy Act.

10) Tribal Jurisdiction Over Rights-of-Way
Problem: Tribal jurisdiction over some rights-of-way has been
limited by federal case law. Without clear jurisdictional authority
over rights-of-way tribal governments are unable to provide for the
health, safety, and welfare of reservation lands, and state and county
governments do not have the resources to provide these services.
Legislation is needed to clarify that Indian tribes retain their
inherent sovereign authority and jurisdiction for any rights-of-way
across Indian lands.
Proposed Solution: Clarify the law to state that Indian tribes
retain their inherent jurisdiction over any rights-of-way across Indian
lands.

Proposed Legislative Text:
Notwithstanding any other provision of law, Indian tribes retain
inherent sovereignty and jurisdiction over Indian and non-Indian
activities on any rights-of-way across Indian land granted for any
purpose.

11) Need for Tax Revenues
Problem: In addition to taxes levied by Indian tribes, a variety of
other governments attempt to tax energy activities on Indian lands. In
some cases, the other governments levying the taxes earn more from the
project than the tribal government. Dual and triple taxation is a
disincentive to energy development on Indian lands and results in
decreased revenues for tribal governments. Just to encourage
development, many tribes are unable to impose their own taxes or can
only impose partial taxes. When tribes are not able to collect taxes on
energy development, tribal governments lack the revenues to fund staff
and tribal agencies to effectively oversee energy activities and tribes
will remain dependent on federal funding and programs.
Proposed Solution: Limit other governments from taxing energy
projects on tribal lands. If limited taxation is allowed by other
governments, they should only be able to tax a project to the extent
needed to cover any impacts from the project on that government's
infrastructure.

Proposed Legislative Text:
(a) In General.--Indian tribes have exclusive authority to levy or
require all assessments, taxes, fees, or levies for energy activities
on Indian lands.
(b) Reimbursement for Services.--State and other local governments
may enter into agreements with Indian tribes for reimbursement of
services provided by the state or local government that are a directly
related to the energy activities on Indian lands. Indian tribes, state
and local governments are directed to negotiate in good faith in
developing such agreements. Any agreement under this section may be
reviewed for accuracy by the Secretary of the Interior.
(c) Definitions.--For the purposes of this section, the terms
``Indian tribe'' and ``Indian land'' have the meaning given the terms
in section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501).

12) Indian Tribal Energy Loan Guarantee Program.
Problem: Despite the success of federal loan guarantee programs,
DOE has not implemented the Indian Energy Loan Guarantee Program from
the Energy Policy Act of 2005. This significant loan guarantee program
is needed to help tribes finance energy projects.
Proposed Solution: Require DOE to implement the program in the same
way that the Energy Policy Act required a national non-Indian loan
guarantee program (the Title XVII program) to be implemented. The Title
XVII program required DOE to develop regulations establishing the
program and providing for its implementation. Once the program was
established, then appropriations were provided by Congress to fund the
program.
Proposed Legislative Text:
Section 2602(c) of the Energy Policy Act of 1992 (25 U.S.C.
3502(c)) is amended--
(1) in paragraph (1)--
(A) by striking the paragraph designation and all that
follows through ``may provide'' and inserting the
following:
``(1) Requirement.--Subject to paragraph (4), not later than 1
year after the date of enactment of the Indian Energy Parity
Act of 2010, the Secretary of Energy shall provide''; and
(B) by striking ``any loan made to an Indian tribe for
energy development'' and inserting ``such loans made to
Indian tribes or tribal energy development
organizations for energy development, energy
transmission projects, or the integration of energy
resources as the Secretary determines to be
appropriate'';
(2) in paragraph (3), by striking the paragraph designation
and all that follows through ``made by--'' and inserting the
following:
``(3) Eligible providers of loans.--A loan for which a loan
guarantee is provided under this subsection shall be made by--
'';
(3) in paragraph (4)--
(A) by striking ``(4) The aggregate'' and inserting
the following:
``(4) Limitations.--
``(A) Aggregate outstanding amount.--The aggregate'';
and
(B) by adding at the end the following:
``(B) Specific appropriation or contribution.--No loan
guarantee may be provided under this subsection
unless--
``(i) an appropriation for the cost of the
guarantee has been made; or
``(ii) the Secretary of Energy has--
``(I) received from the borrower a
payment in full for the cost of the
obligation; and
``(II) deposited the payment into the
Treasury.'';
(4) in paragraph (5), by striking the paragraph designation
and all that follows through ``may issue'' and inserting the
following:
``(5) Regulations.--The Secretary of Energy shall promulgate'';
and
(5) in paragraph (7), by striking ``1 year after the date of
enactment of this section'' and inserting ``2 years after the
date of enactment of the Indian Energy Parity Act of 2010''.

13) Coordination of Agency Funding and Programs
Problem: Funding for Indian energy activities is spread across many
agencies. Individual funding sources are typically too small to meet
the financial needs of developing energy projects. Tribal
administration costs are increased because each agency requires
different application and reporting requirements.
Proposed Solution: Allow tribes to integrate and coordinate energy
funding from the departments of Agriculture, Commerce, Energy, EPA,
Housing and Urban Development (HUD), Interior, Labor and Transportation
to ensure efficient use of existing federal funding. The proposal is
modeled after the successful Pub.L.102-477 employment training
integration program. The proposal would allow individual agencies to
retain discretion over approval of individual projects.

Proposed Legislative Text:
(a) Definitions.--In this section:
(1) Agency.--The term ``agency'' has the meaning given the
term in section 551 of title 5, United States Code.
(2) Agency leader.--The term ``Agency leader'' means 1 or more
of the following:
(A) The Secretary of Agriculture.
(B) The Secretary of Commerce.
(C) The Secretary of Energy.
(D) The Secretary of Housing and Urban Development.
(E) The Administrator of the Environmental Protection
Agency.
(F) The Secretary of the Interior.
(G) The Secretary of Labor.
(H) The Secretary of Transportation.
(3) Tribal energy development organization.--The term ``tribal
energy development organization'' has the meaning given the
term in section 2601 of the Energy Policy Act of 1992 (25
U.S.C. 3501).
(b) Single Integrated Program.--
(1) In general.--An Indian tribe or tribal energy development
organization may submit to the Secretary, and to applicable
Agency leaders, a plan to fully integrate into a single,
coordinated, comprehensive program federally funded energy-
related activities and programs (including programs for
employment training, energy planning, financing, construction,
and related physical infrastructure and equipment).
(2) No additional requirements.--The Agency leaders shall not
impose any additional requirement or condition, additional
budget, report, audit, or supplemental audit, or require
additional documentation from, an Indian tribe or tribal energy
development organization that has satisfied the plan criteria
described in subsection (c).
(3) Procedure.--
(A) In general.--On receipt of a plan of an Indian
tribe or a tribal energy development organization
described in paragraph (1) that is in a form that the
Secretary determines to be acceptable, the Secretary
shall consult with the applicable Agency leaders to
determine whether the proposed use of programs and
services is in accordance with the eligibility rules
and guidelines on the use of agency funds.
(B) Integration.--If the Secretary and the applicable
Agency leaders make a favorable determination pursuant
to subparagraph (A), the Secretary shall authorize the
Indian tribe or tribal energy development
organization--
(i) to integrate and coordinate the programs
and services described in paragraph (4) into a
single, coordinated, and comprehensive program;
and
(ii) to reduce administrative costs by
consolidating administrative functions.
(4) Description of activities.--The activities referred to in
paragraph (1) are federally funded energy-related activities
and programs (including programs for employment training,
energy planning, financing, construction, and related physical
infrastructure and equipment), including--
(A) any program under which an Indian tribe or tribal
energy development organization is eligible to receive
funds under a statutory or administrative formula;
(B) activities carried out using any funds an Indian
tribe or members of the Indian tribe are entitled to
under Federal law; and
(C) activities carried out using any funds an Indian
tribe or a tribal energy development organization may
secure as a result of a competitive process for the
purpose of planning, designing, constructing,
operating, or managing a renewable or nonrenewable
energy project on Indian land.
(5) Inventory of affected programs.--
(A) Reports.--Not later than 90 days after the date of
enactment of this Act, the Agency leaders shall--
(i) conduct a survey of the programs and
services of the agency that are or may be
included in the plan of an Indian tribe or
tribal energy development organization under
this subsection;
(ii) provide a description of the eligibility
rules and guidelines on the manner in which the
funds under the jurisdiction of the agency may
be used; and
(iii) submit to the Secretary a report
identifying those programs, services, rules,
and guidelines.
(B) Publication.--Not later than 60 days after the
date of receipt of each report under subparagraph (A),
the Secretary shall publish in the Federal Register a
comprehensive list of the programs and services
identified in the reports.
(c) Plan Requirements.--A plan submitted by an Indian tribe or
tribal energy development organization under subsection (b) shall--
(1) identify the activities to be integrated;
(2) be consistent with the purposes of this section regarding
the integration of the activities in a demonstration project;
(3) describe--
(A) the manner in which services are to be integrated
and delivered; and
(B) the expected results of the plan;
(4) identify the projected expenditures under the plan in a
single budget;
(5) identify each agency of the Indian tribe to be involved in
the administration of activities or delivery of the services
integrated under the plan;
(6) address any applicable requirements of the Agency leaders
for receiving funding from the federally funded energy-related
activities and programs under the jurisdiction of the Agency
leaders, respectively;
(7) identify any statutory provisions, regulations, policies,
or procedures that the Indian tribe recommends to be waived to
implement the plan, including any of the requirements described
in paragraph (6); and
(8) be approved by the governing body of the affected Indian
tribe.
(d) Approval Process.--
(1) In general.--Not later than 90 days after the receipt of a
plan of an Indian tribe or tribal energy development
organization, the Secretary and applicable Agency leaders shall
coordinate a single response to inform the Indian tribe or
tribal energy development organization in writing of the
determination to approve or disapprove the plan, including any
request for a waiver that is made as part of the plan.
(2) Plan disapproval.--Any issue preventing approval of a plan
under paragraph (1) shall be resolved in accordance with
subsection (e)(3).
(e) Plan Review; Waiver Authority; Dispute Resolution.--
(1) In general.--On receipt of a plan of an Indian tribe or
tribal energy development organization, the Secretary shall
consult regarding the plan with--
(A) the applicable Agency leaders; and
(B) the governing body of the applicable Indian tribe.
(2) Identification of waivers.--
(A) In general.--In carrying out the consultation
described in paragraph (1), the Secretary, the
applicable Agency leaders, and the governing body of
the applicable Indian tribe shall identify the
statutory, regulatory, and administrative requirements,
policies, and procedures that must be waived to enable
the Indian tribe or tribal energy development
organization to implement the plan.
(B) Waiver authority.--Notwithstanding any other
provision of law, the applicable Agency leaders may
waive any applicable regulation, administrative
requirement, policy, or procedure identified under
subparagraph (A) in accordance with the purposes of
this section.
(C) Tribal request to waive.--In consultation with the
Secretary and the applicable Agency leaders, an Indian
tribe may request the applicable Agency leaders to
waive a regulation, administrative requirement, policy,
or procedure identified under subparagraph (A).
(D) Declination of waiver request.--If the applicable
Agency leaders decline to grant a waiver requested
under subparagraph (C), the applicable Agency leaders
shall provide to the requesting Indian tribe and the
Secretary written notice of the declination, including
a description of the reasons for the declination.
(3) Dispute resolution.--
(A) In general.--The Secretary, in consultation with
the Agency leaders, shall develop dispute resolution
procedures to carry out this section.
(B) Procedures.--If the Secretary determines that a
declination is inconsistent with the purposes of this
section, or prevents the Department from fulfilling the
obligations under subsection (f), the Secretary shall
establish interagency dispute resolution procedures
involving--
(i) the participating Indian tribe or tribal
energy development organization; and
(ii) the applicable Agency leaders.
(4) Final decision.--In the event of a failure of the dispute
resolution procedures under paragraph (3), the Secretary shall
inform the applicable Indian tribe or tribal energy development
organization of the final determination not later than 180 days
after the date of receipt of the plan.
(f) Responsibilities of Department.--
(1) Memorandum of agreement.--Not later than 180 days after
the date of enactment of this Act, the Secretary and the Agency
leaders shall enter into an interdepartmental memorandum of
agreement that shall require and include--
(A) an annual meeting of participating Indian tribes,
tribal energy development organizations, and Agency
leaders, to be co-chaired by a representative of the
President and a representative of the participating
Indian tribes and tribal energy development
organizations;
(B) an annual review of the achievements made under
this section and statutory, regulatory, administrative,
and policy obstacles that prevent participating Indian
tribes and tribal energy development organizations from
fully carrying out the purposes of this section;
(C) a forum comprised of participating Indian tribes,
tribal energy development organizations, and agencies
to identify and resolve interagency or Federal-tribal
conflicts that occur in carrying out this section; and
(D) the dispute resolution procedures required by
subsection (e)(3).
(2) Department responsibilities.--The responsibilities of the
Department include--
(A) in accordance with paragraph (3), developing a
model single report for each approved plan of an Indian
tribe or tribal energy development organization
regarding the activities carried out and expenditures
made under the plan;
(B) providing, subject to the consent of an Indian
tribe or tribal energy development organization with an
approved plan under this section, technical assistance
either directly or pursuant to a contract;
(C) developing a single monitoring and oversight
system for the plans approved under this section;
(D) receiving and distributing all funds covered by a
plan approved under this section; and
(E) conducting any required investigation relating to
a waiver or an interagency dispute resolution under
this section.
(3) Model single report.--The model single report described in
paragraph (2)(A) shall--
(A) be developed by the Secretary, in accordance with
the requirements of this section; and
(B) together with records maintained at the Indian
tribal level regarding the plan of the Indian tribe or
tribal resource development organization, contain such
information as would allow a determination that the
Indian tribe or tribal energy development
organization--
(i) has complied with the requirements
incorporated in the applicable plan; and
(ii) will provide assurances to each
applicable agency that the Indian tribe or
tribal energy development organization has
complied with all directly applicable statutory
and regulatory requirements.
(g) No Reduction, Denial, or Withholding of Funds.--No Federal
funds may be reduced, denied, or withheld as a result of participation
by an Indian tribe or tribal energy development organization in the
program under this section.
(h) Interagency Fund Transfers.--
(1) In general.--If a plan submitted by an Indian tribe or
tribal energy development organization under this section is
approved, the Secretary and the applicable Agency leaders shall
take all necessary steps to effectuate interagency transfers of
funds to the Department for distribution to the Indian tribe or
tribal energy development organization.
(2) Coordinated agency action.--As part of an interagency
transfer under paragraph (1), the applicable Agency leader
shall provide the Department a 1-time transfer of all required
funds by not later than October 1 of each applicable fiscal
year.
(3) Agencies not authorized to withhold funds.--If a plan is
approved under this section, none of the applicable Agency
leaders may withhold funds for the plan.
(i) Administration; Recordkeeping; Overage.--
(1) Administration of funds.--
(A) In general.--The funds for a plan under this
section shall be administered in a manner that allows
for a determination that funds from a specific program
(or an amount equal to the amount attracted from each
program) shall be used for activities described in the
plan.
(B) Separate records not required.--Nothing in this
section requires an Indian tribe or tribal energy
development organization--
(i) to maintain separate records relating to
any service or activity conducted under the
applicable plan for the program under which the
funds were authorized; or
(ii) to allocate expenditures among those
programs.
(2) Administrative expenses.--
(A) Commingling.--Administrative funds for activities
under a plan under this section may be commingled.
(B) Entitlement.--An Indian tribe or tribal energy
development organization shall be entitled to the full
amount of administrative costs for the activities of a
plan under this section, in accordance with applicable
regulations.
(C) Overages.--No overage of administrative costs for
the activities of a plan under this section shall be
counted for Federal audit purposes, if the overage is
used for the purposes described in this section.
(j) Single Audit Act.--Nothing in this section interferes with the
ability of the Secretary to fulfill the responsibilities for the
safeguarding of Federal funds pursuant to chapter 75 of title 31,
United States Code (commonly known as the ``Single Audit Act'').
(k) Training and Technical Assistance.--
(1) In general.--The Department, with the participation and
assistance of the Agency leaders, shall conduct activities for
technical assistance and training relating to plans under this
section, including--
(A) orientation sessions for Indian tribal leaders;
(B) workshops on planning, operations, and procedures
for employees of Indian tribes;
(C) training relating to case management, client
assessment, education and training options, employer
involvement, and related topics; and
(D) the development and dissemination of training and
technical assistance materials in printed form and over
the Internet.
(2) Administration.--To effectively administer the training
and technical assistance activities under this subsection, the
Department shall collaborate with an Indian tribe that has
experience with federally funded energy-related activities and
programs (including programs for employment training, energy
planning, financing, construction, and related physical
infrastructure and equipment).

14) Tribal Economic Development Bonds
Problem: Section 1402 of the American Recovery and Reinvestment Act
of 2009, P.L. 115-5, 123 Stat. 115 (2009) authorized tribal governments
to issue, on a temporary basis, tribal economic development bonds (TED
Bonds) without satisfying the essential government function test. The
bond limitation was set at $2 billion. The allocation of these bonds
has been completed.
Proposed Solution: Permanently repeal the ``essential government
function'' test currently applied by the Internal Revenue Service (IRS)
to tribes who wish to issue tax exempt bonds. On a recurring annual
basis, have a TED Bond allocation available to Tribes. Reallocate any
unused allocation on a yearly basis.

15) Hypothecation of Coal Resources.
Problem: Many tribes and individual Indians own mineral rights to
subsurface coal on split estates where non-Indians own the surface
rights. To realize the benefit of the coal resources without affecting
the environment or disturbing the non-Indian surface estates, tribes
need to be able to hypothecate the coal resources in situ. Through
hypothecation, tribes could pledge their coal resources as collateral
to secure debts and obtain loans without having to extract the coal.
Proposed Solution: Clarify the law to specifically allow for the
hypothecation of coal resources.
Proposed Legislative Text:
(a) PURPOSES.--The purposes of this section are -
(1) To ensure that Indian tribes and individual Indians are
able to fully benefit from their coal resources in accordance
with the Indian Mineral Leasing Act of 1938 (25 U.S.C. 396a-
396g), the Indian Mineral Development Act of 1982 (25 U.S.C.
2101-2108) and other provisions of law that advance those Acts;
and
(2) To ensure undiminished protection of the environment and
the protection of surface owners under existing split estates.
(b) REVIEW--Notwithstanding any other law, Congress hereby
authorizes Indian tribes and individual Indians to hypothecate their
coal mineral interests in situ that tribes or individual Indians own
within the boundaries of their reservations.

16) Study on Transmission Infrastructure and Access
Problem: Historically Federal and state electric transmission
planning overlooked or ignored energy generation potential on Indian
lands. Consequently, energy projects on tribal lands lack access to
high voltage transmission.
Proposed Solution: Direct DOE to conduct a study of the electric
generation potential on Indian lands and related transmission needs.
The study should involve Indian tribes, federal agencies, and
transmission providers and utilities operating in and around Indian
country.

Proposed Legislative Text:
(a) Study.--
(1) In general.--The Secretary of Energy, in consultation with
Indian tribes, intertribal organizations, the Secretary of the
Interior, the Federal Energy Regulatory Commission, the Federal
power marketing administrations, regional transmission
operators, national, regional, and local electric transmission
providers, electric utilities, electric cooperatives, electric
utility organizations, and other interested stakeholders, shall
conduct a study to assess--
(A) the potential for electric generation on Indian
land and on the Outer Continental Shelf adjacent to
Indian land, from renewable energy resources; and
(B) the electrical transmission needs relating to
carrying that energy to the market.
(2) Requirements.--The study under paragraph (1) shall--
(A) identify potential energy generation resources on
Indian land and on the Outer Continental Shelf adjacent
to Indian land, from renewable energy resources;
(B) identify existing electrical transmission
infrastructure on, and available to provide service to,
Indian land;
(C) identify relevant potential electric transmission
routes and paths that can carry electricity generated
on Indian land to loads;
(D) assess the capacity and availability of
interconnection of existing electrical transmission
infrastructure;
(E) identify options to ensure tribal access to
electricity, if the development of transmission
infrastructure to reach tribal areas is determined to
be unfeasible;
(F) identify regulatory, structural, financial, or
other obstacles that Indian tribes encounter or would
encounter in attempting to develop energy transmission
infrastructure or connect with existing electrical
transmission infrastructure; and
(G) make recommendations for legislation to help
Indian tribes overcome the obstacles identified under
subparagraph (F).
(b) Report.--Not later than 1 year after the date of enactment of
this Act, the Secretary shall submit to Congress a report describing
the results of the study under subsection (a).

17) Tribal Energy Efficiency
Problem: There are no ongoing programs to support tribal energy
efficiency efforts. DOE's longstanding State Energy Program supporting
energy efficiency efforts at the state level does not include tribes.
Proposed Solution: Direct DOE to 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. Funding should be provided in
a manner similar to successful Energy Efficiency Block Grant Program to
promote projects and simplify reporting requirements.

Proposed Legislative Text:
Part D of title III of the Energy Policy and Conservation Act (42
U.S.C. 6321 et seq.) is amended by adding at the end the following:
``(a) Definition of Indian Tribe.--In this section, the term
`Indian tribe' has the meaning given the term in section 4 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b).
``(b) Purpose.--The purpose of the grants provided under subsection
(d) shall be to assist Indian tribes in implementing strategies--
``(1) to reduce fossil fuel emissions created as a result of
activities within the jurisdictions of eligible entities in a
manner that--
``(A) is environmentally sustainable; and
``(B) to the maximum extent practicable, maximizes
benefits for Indian tribes and tribal members;
``(2) to increase the energy efficiency of Indian tribes and
tribal members; and
``(3) to improve energy efficiency in--
``(A) the transportation sector;
``(B) the building sector; and
``(C) other appropriate sectors.
``(c) Tribal Allocation.--Of the amount of funds authorized to be
appropriated for each fiscal year under section 365(f) to carry out
this part, the Secretary shall allocate not less than 5 percent of the
funds for each fiscal year to be distributed to Indian tribes in
accordance with subsection (d).
``(d) Grants.--Of the amounts available for distribution under
subsection (c), the Secretary shall establish a competitive process for
providing grants under this section that gives priority to projects
that--
``(1) increase energy efficiency and energy conservation rather
than new energy generation projects;
``(2) integrate cost-effective renewable energy with energy
efficiency;
``(3) move beyond the planning stage and are ready for
implementation;
``(4) clearly articulate and demonstrate the ability to achieve
measurable goals;
``(5) have the potential to make an impact in the government
buildings, infrastructure, communities, and land of an Indian
tribe; and
``(6) maximize the creation or retention of jobs on Indian
land.
``(e) Use of Funds.--An Indian tribe may use a grant received under
this section to carry out activities to achieve the purposes described
in subsection (b), including--
``(1) the development and implementation of energy efficiency
and conservation strategies;
``(2) the retention of technical consultant services to assist
the Indian tribe in the development of an energy efficiency and
conservation strategy, including--
``(A) the formulation of energy efficiency, energy
conservation, and energy usage goals;
``(B) the identification of strategies to achieve the
goals--
``(i) through efforts to increase energy
efficiency and reduce energy consumption; and
``(ii) by encouraging behavioral changes among
the population served by the Indian tribe;
``(C) the development of methods to measure progress in
achieving the goals;
``(D) the development and publication of annual reports
to the population served by the eligible entity
describing--
``(i) the strategies and goals; and
``(ii) the progress made in achieving the
strategies and goals during the preceding
calendar year; and
``(E) other services to assist in the implementation of
the energy efficiency and conservation strategy;
``(3) the implementation of residential and commercial building
energy audits;
``(4) the establishment of financial incentive programs for
energy efficiency improvements;
``(5) the provision of grants for the purpose of performing
energy efficiency retrofits;
``(6) the development and implementation of energy efficiency
and conservation programs for buildings and facilities within
the jurisdiction of the Indian tribe, including--
``(A) the design and operation of the programs;
``(B) the identification of the most effective methods
of achieving maximum participation and efficiency
rates;
``(C) the education of the members of an Indian tribe;
``(D) the measurement and verification protocols of the
programs; and
``(E) the identification of energy efficient
technologies;
``(7) the development and implementation of programs to
conserve energy used in transportation, including--
``(A) the use of--
``(i) flextime by employers; or
``(ii) satellite work centers;
``(B) the development and promotion of zoning
guidelines or requirements that promote energy-
efficient development;
``(C) the development of infrastructure, including bike
lanes, pathways, and pedestrian walkways;
``(D) the synchronization of traffic signals; and
``(E) other measures that increase energy efficiency
and decrease energy consumption;
``(8) the development and implementation of building codes and
inspection services to promote building energy efficiency;
``(9) the application and implementation of energy distribution
technologies that significantly increase energy efficiency,
including--
``(A) distributed resources; and
``(B) district heating and cooling systems;
``(10) the implementation of activities to increase
participation and efficiency rates for material conservation
programs, including source reduction, recycling, and recycled
content procurement programs that lead to increases in energy
efficiency;
``(11) the purchase and implementation of technologies to
reduce, capture, and, to the maximum extent practicable, use
methane and other greenhouse gases generated by landfills or
similar sources;
``(12) the replacement of traffic signals and street lighting
with energy-efficient lighting technologies, including--
``(A) light-emitting diodes; and
``(B) any other technology of equal or greater energy
efficiency;
``(13) the development, implementation, and installation on or
in any government building of the Indian tribe of onsite
renewable energy technology that generates electricity from
renewable resources, including--
``(A) solar energy;
``(B) wind energy;
``(C) fuel cells; and
``(D) biomass; and
``(14) any other appropriate activity, as determined by the
Secretary, in consultation with--
``(A) the Secretary of the Interior;
``(B) the Administrator of the Environmental Protection
Agency;
``(C) the Secretary of Transportation;
``(D) the Secretary of Housing and Urban Development;
and
``(E) Indian tribes.
``(f) Grant Applications.--
``(1) In general.--
``(A) Application.--To apply for a grant under this
section, an Indian tribe shall submit to the Secretary
a proposed energy efficiency and conservation strategy
in accordance with this paragraph.
``(B) Contents.--A proposed strategy described in
subparagraph (A) shall include a description of--
``(i) the goals of the Indian tribe for
increased energy efficiency and conservation in
the jurisdiction of the Indian tribe;
``(ii) the manner in which--
``(I) the proposed strategy complies
with the restrictions described in
subsection (e); and
``(II) a grant will allow the Indian
tribe fulfill the goals of the proposed
strategy.
``(2) Approval.--
``(A) In general.--The Secretary shall approve or
disapprove a proposed strategy under paragraph (1) by
not later than 120 days after the date of submission of
the proposed strategy.
``(B) Disapproval.--If the Secretary disapproves a
proposed strategy under paragraph (1)--
``(i) the Secretary shall provide to the
Indian tribe the reasons for the disapproval;
and
``(ii) the Indian tribe may revise and
resubmit the proposed strategy as many times as
necessary, until the Secretary approves a
proposed strategy.
``(C) Requirement.--The Secretary shall not provide to
an Indian tribe a grant under this section until a
proposed strategy is approved by the Secretary.
``(3) Limitations on use of funds.--Of the amounts provided to
an Indian tribe under this section, an Indian tribe may use for
administrative expenses, excluding the cost of the reporting
requirements of this section, an amount equal to the greater
of--
``(A) 10 percent of the administrative expenses; or
``(B) $75,000.
``(4) Annual report.--Not later than 2 years after the date on
which funds are initially provided to an Indian tribe under
this section, and annually thereafter, the Indian tribe shall
submit to the Secretary a report describing--
``(A) the status of development and implementation of
the energy efficiency and conservation strategy; and
``(B) to the maximum extent practicable, an assessment
of energy efficiency gains within the jurisdiction of
the Indian tribe.''.

18) Weatherization of Indian Homes
Problem: Under current law, Indian tribes are supposed to receive
federal weatherization funding through state programs funded by DOE.
However, very little weatherization funding reaches Indian tribes
despite significant weatherization needs. If a tribe wants to receive
direct funding from 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. Currently, out of 565 federally recognized tribes, only two
tribes and one tribal organization receive direct weatherization
funding from DOE.
Proposed Solution: Pursuant to the federal government's government-
to-government relationship with Indian tribes, DOE should directly fund
tribal weatherization programs. Training programs should also be
supported to ensure availability of energy auditors in Indian Country.
Proposed Legislative Text:
Section 413 of the Energy Conservation and Production Act (42
U.S.C. 6863) is amended by striking subsection (d) and inserting the
following:
``(d) Direct Grants to Indian Tribes for Weatherization of Indian
Homes.--
``(1) Definitions.--In this subsection:
``(A) Indian area.--The term `Indian area' has the
meaning given the term in section 4 of the Native
American Housing Assistance and Self-Determination Act
of 1996 (25 U.S.C. 4103).
``(B) Indian tribe.--The term `Indian tribe' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b).
``(2) In general.--Of the amounts made available for each
fiscal year to carry out the Weatherization Assistance Program
for Low-Income Persons established under part A of title IV,
the Secretary shall allocate for Indian tribes not less than 10
percent.
``(3) Regulations.--
``(A) Proposed regulations.--Not later than 90 days
after the date of enactment of the Indian Energy Parity
Act of 2010, the Secretary, after consulting with the
Secretary of the Interior, the Secretary of Housing and
Urban Development, the Secretary of Health and Human
Services, the Secretary of Labor, Indian tribes, and
intertribal organizations, shall publish in the Federal
Register proposed regulations to carry out this
subsection.
``(B) Final regulations.--
``(i) In general.--Not later than 120 days
from the date of enactment of the Indian Energy
Parity Act of 2010, the Secretary shall
promulgate final regulations to carry out this
subsection, taking into consideration the
comments submitted in response to the
publication of the proposed regulations
described in subparagraph (A).
``(ii) Criteria.--Final regulations
promulgated by the Secretary to carry out this
subsection shall--
``(I) provide a formula or process for
ensuring that weatherization funding is
available for any Indian tribe that
submits a qualifying weatherization
funding application under paragraph
(4)(C);
``(II) promote efficiency in carrying
out this subsection by the Secretary
and Indian tribes; and
``(III) consider--
``(aa) the limited resources of
Indian tribes to carry out this
subsection;
``(bb) the unique
characteristics of housing in
Indian areas; and
``(cc) the remoteness of Indian
areas.
``(4) Allocation of funding.--
``(A) In general.--The Secretary shall provide
financial assistance to an Indian tribe from the
amounts provided under paragraph (2), if the Indian
tribe submits to the Secretary a weatherization funding
application.
``(B) Contents.--A weatherization funding application
described in subparagraph (A) shall--
``(i) describe--
``(I) the estimated number and
characteristics of the persons and
dwelling units to be provided
weatherization assistance; and
``(II) the criteria and methods to be
used by the Indian tribe in providing
the weatherization assistance; and
``(ii) contain any other information
(including information needed for evaluation
purposes) and assurances that are required
under regulations promulgated by the Secretary
to carry out this section.
``(C) Qualifying weatherization funding.--A
weatherization funding application that meets the
criteria under subparagraph (B) shall be considered a
qualifying weatherization funding application.
``(D) Initial distribution of funding.--The Secretary
shall distribute funding under this subsection to
Indian tribes that submit qualifying weatherization
funding applications--
``(i) on the basis of the relative need for
weatherization assistance; and
``(ii) taking into account--
``(I) the number of dwelling units to
be weatherized;
``(II) the climatic conditions
respecting energy conservation,
including a consideration of annual
degree days;
``(III) the type of weatherization work
to be done;.
``(IV) any data provided in the most
recent version of the Bureau of Indian
Affairs American Indian Population and
Labor Force Report prepared pursuant to
Public Law 102-477 (106 Stat. 2302), or
if not available, any similar
publication; and
``(V) any other factors that the
Secretary determines to be necessary,
including the cost of heating and
cooling, in order to carry out this
section.
``(E) Competitive grants.--For each fiscal year, if any
amounts remain available after the initial distribution
of funding described in subparagraph (D), the Secretary
shall solicit applications for grants from Indian
tribes--
``(i) to carry out weatherization projects and
weatherization training;
``(ii) to supply weatherization equipment; and
``(iii) to develop tribal governing capacity
to carry out a weatherization program
consistent with this subsection.
``(F) Remaining funding.--For each fiscal year, if any
amounts remain available after distribution under
subparagraphs (D) and (E), the amounts shall remain
available to fulfill the purpose of this subsection in
subsequent fiscal years.
``(G) Renewal of qualifying weatherization funding
applications.--
``(i) In general.--To achieve maximum
efficiency in the allocation of funding, an
Indian tribe that submits a qualifying
weatherization funding application may request
that the weatherization funding application of
the Indian tribe be renewed in subsequent
fiscal years.
``(ii) Contents.--A request to renew a
qualifying weatherization funding application
shall contain such information as the Secretary
determines to be necessary to achieve
efficiency in the allocation of funding under
this subsection.
``(5) Use of funds.--
``(A) In general.--An Indian tribe shall use funds
provided under paragraph (4) to carry out
weatherization and energy conservation activities that
benefit the members of an Indian tribe in Indian areas.
``(B) Eligible activities.--The weatherization and
energy conservation activities described in
subparagraph (A) include--
``(i) the provision of existing services under
this section;
``(ii) the acquisition and installation of
energy-efficient windows and doors and heating
and cooling equipment; or
``(iii) the repair, replacement, or insulation
of floors, walls, roofs, and ceilings.
``(C) Applicability of requirements.--
``(i) In general.--Notwithstanding any other
provision of law, the use of funds under this
paragraph by an Indian tribe shall be subject
only to--
``(I) the requirements of this
subsection; and
``(II) implementing regulations of the
Department of Energy.
``(ii) Other requirements of act.--In
accordance with the government-to-government
and trust relationships between the United
States and Indian tribes, the income, energy
audit, grant limitation, and other
administrative and eligibility requirements of
this Act shall not apply to the use of funds
under this paragraph by an Indian tribe.
``(6) Report.--Not later than 90 days after the closing date of
each applicable project year, each Indian tribe that receives
funds under this subsection shall submit to the Secretary a
simple outcome report that describes, for that project year--
``(A) each activity carried out by the Indian tribe
under this subsection, including the amounts used for
each such activity;
``(B) the number of Indian households benefitted by the
activities of the Indian tribe under this subsection;
and
``(C) the estimated savings in energy costs realized in
the communities served by the Indian tribe.
``(7) Training and technical assistance.--The Secretary shall
carry out technical assistance and training activities relating
to weatherization under this subsection, including--
``(A) orientation sessions for Indian tribes;
``(B) workshops on planning, operations, and procedures
for Indian tribes to use the funding provided under
this subsection;
``(C) training relating to carrying out weatherization
projects; and
``(D) the development and dissemination of training and
technical assistance materials in printed form and over
the Internet.''.

19) Hydroelectric Licensing Preferences
Problem: Section 7(a) of the Federal Power Act (16 U.S.C. 800(a))
provides a preference to states and municipalities, but not tribes,
when applying for hydroelectric preliminary permits and original
licenses.
Proposed Solution: Provide tribes with the same preference as
states and municipalities.

Proposed Legislative Text:
Section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) is
amended--
(1) by striking ``In issuing'' and inserting ``(1) In
general.--In issuing''; and
(2) in paragraph (1) (as so designated)--
(A) by striking ``States and municipalities'' and
inserting ``States, Indian tribes, and
municipalities''; and
(B) by adding at the end the following:
``(2) Definition of indian tribe.--In this section, the term
`Indian tribe' has the meaning given the term in section 4 of
the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b).''.

20) Department of Energy Laboratories Technical Assistance
Problem: DOE's national laboratories have extensive research and
technical expertise that is underutilized by Indian tribes.
Proposed Solution: Encourage DOE's national laboratories to reach
out to Indian tribes and make research, training, and expertise more
accessible to Indian tribes.

Proposed Legislative Text:
Section 2602(b) of the Energy Policy Act of 1992 (25 U.S.C.
3502(b)) is amended--
(1) by redesignating paragraphs (3) through (6) as paragraphs
(4) through (7), respectively; and
(2) by inserting after paragraph (2) the following:
``(3) Technical and scientific resources.--In addition to
providing grants to Indian tribes under this subsection, the
Secretary shall collaborate with the Directors of the National
Laboratories in making the full array of technical and
scientific resources of the Department of Energy available for
tribal energy activities and projects.''
______

Mr. Gosar. Thank you.
Ms. Cuch. OK.
Mr. Gosar. Mr. Fox?

STATEMENT OF FREDERICK FOX, ADMINISTRATOR, TRIBAL ENERGY
DEPARTMENT, MHA NATION, NEW TOWN, NORTH DAKOTA

Mr. Fox. Good afternoon, Chairman Gosar and members of the
Subcommittee. My name is Fred Fox, and I am the Administrator
of the Mandan, Hidatsa, and Arikara Nation Tribal Energy
Department. Chairman Hall regrets that he could not be here to
testify on this issue of grave importance. I am honored to
present this testimony on his behalf, and ask that my written
testimony and additional materials be included in the hearing.
Chairman Hall testified last April December [sic] during
this Subcommittee's hearing on Indian energy. As you will
recall, the Fort Berthold Reservation is located in the heart
of the Bakken Formation, which is the largest continuous oil
accumulation in the lower 48 states. In 2008, the United States
Geological Survey estimated the Bakken Formation contains
between 3 billion and 4.3 billion barrels of oil. Today the
Bakken Formation is the most active oil and gas play in the
United States.
We continue to work on many of the same issues in Chairman
Hall's April testimony, including streamlining the oil and gas
permitting process, insufficient Federal staffing, and the
Environment Protection Agency's recent decision to require air
permits for wells on our Reservation. Of all of the challenges,
the biggest issue we face is the inequitable division of tax
revenues within the state.
Under the current law, states can tax energy companies on
the Reservation lands. Because of the state taxes, we cannot
raise enough of our own tax revenue to provide the
infrastructure needed to support and regulate the growing
energy industry. We need Congress to affirm exclusive authority
of tribes to raise tax revenues to the Reservation, so that we
can rely on the same revenues that state government uses to
maintain infrastructure and support economic activity.
For example, 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 and get to work. I
brought two pictures that show how industry has devastated our
roads.
We also need to provide increased law enforcement to
protect tribal members and the growing population of oil
workers. We need to develop tribal codes, employ tribal staff
to regulate activities on the Reservation. For example, we
developed a code to prevent dumping of hazardous waste, but we
also need to hire staff to enforce the code. The laws that
restrict our ability to raise tax revenues force us to govern
with one hand tied behind our back.
It is not fair, and our homelands are suffering the
consequences. To avoid dual state and tribal taxation that
would have driven energy companies off the Reservation, we were
forced into a lopsided tax agreement with the state. Three
years later, the state is sitting on surpluses while we
struggle to make ends meet.
In the current fiscal year, the state will have a $1
billion budget surplus, and create a $1.2 billion investment
account for future infrastructure needs. We have current needs,
and our tax revenue should not be going into a state investment
account. We actually agree with what State Governor Dalrymple
said earlier this year. The number one priority is to keep up
with infrastructure. Growth cannot continue if we do not keep
up with all of the impact that happens on the communities out
there.
Apparently, the Governor was not talking about the tribal
communities. In 2011, the state collected more than $60 million
in tax revenue from the Reservation. But the state expended
less than $2 million toward the maintenance of the state and
county roads on the Reservation. In 2012, the state is expected
to make $112 million in tax revenues from our Reservation.
We agree with Chairman Young it would be good to get the
Bureau of Indian Affairs out of the way. But the tax revenues
that our government rely on--our tribal governments will never
have the staff and resources to run permitting programs,
especially in the complicated area of energy development.
Without the laws that support tribal taxing authority, we will
always be subject to the bureaucratic Federal permit approval
process.
This is the perspective we take when we assess H.R. 3973.
We support many of the provisions in the bill, and we ask that
more be included to ensure that tribes can exercise self-
determination and energy development. We support changes in the
bill to the appraisal process, standardizing lease permitting,
limiting participants in the environmental review process to
the affected area, eliminating BLM and oil and gas fees, and
providing formal authority of Indian Energy Development Office.
In addition, we ask that you expand the bill to include
provisions that will allow MHA Nation to develop the legal and
physical infrastructure necessary to support the growing energy
industry on the Reservation. Most important, the bill should
affirm have exclusive authority to raise taxes from activities
on Indian lands. The authority is essential for tribal
governments to exercise self-determination over our energy
resources. We cannot ask to take over more responsibilities for
Federal Government without the ability to raise the revenues
needed to support those responsibilities.
In conclusion, I want to thank Chairman Gosar and the
members of the Subcommittee for the opportunity to highlight
the most significant issues the MHA Nation faces as we promote
and manage the development of our energy resources.
[The prepared statement of Chairman Hall follows:]

Statement of The Honorable Tex G. Hall, Chairman,
Mandan, Hidatsa and Arikara Nation of the Fort Berthold Reservation

Good morning Chairman Young and Members of the Subcommittee. My
name is Fred Fox. I am the Administrator of the Mandan, Hidatsa and
Arikara Nation's (MHA Nation) Tribal Energy Department. Chairman Hall
regrets that he could not be here to testify on this issue of great
importance. I am honored to present this testimony on his behalf.
Chairman Hall testified last April during the Subcommittee's
hearing on Indian energy. As you will recall, the Fort Berthold
Reservation is located in the heart of the Bakken Formation which is
the largest continuous oil accumulation in the lower 48 states. In
2008, the United States Geological Survey estimated that the Bakken
Formation contains between 3 billion and 4.3 billion barrels of oil.
Today the Bakken Formation is the most active oil and gas play in the
United States.
We continue to work on many of the same issues raised in Chairman
Hall's April testimony including streamlining the oil and gas
permitting process, insufficient federal staffing, and the
Environmental Protection Agency's recent decision to require air
permits for wells on our Reservation.
Of all of the challenges, the biggest issue we face is the
inequitable division of tax revenues with the State. Under current law,
states can tax energy companies on Reservation lands. Because of these
state taxes, we cannot raise enough of our own tax revenue to provide
the infrastructure needed to support and regulate the growing energy
industry. We need Congress to affirm the exclusive authority of tribes
raise tax revenues on the Reservation so that we can rely on the same
revenues that state governments use to maintain infrastructure and
support economic activity.
For example, 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. I have brought two pictures that show how
the industry has devastated our roads.
We also need to provide increased law enforcement to protect tribal
members and the growing population of oil workers. And, we need to
develop tribal codes and employ tribal staff to regulate activities on
the Reservation. For example, we developed a code to prevent dumping of
hazardous waste, but we also need to hire staff to enforce the code.
The laws that restrict our ability to raise tax revenues force us
to govern with one hand tied behind out back. It is not a fair fight
and our homelands are suffering the consequences.
To avoid dual state and tribal taxation that would have driven
energy companies off the Reservation, we were forced into a lopsided
tax agreement with the State. Three years later, the State is sitting
on surpluses while we struggle to make ends meet.
In the current fiscal year the State will have a $1 billion budget
surplus and created a $1.2 billion investment account for future
infrastructure needs. We have current needs and our tax revenues should
not be going into a State investment account.
We actually agree with what State Governor Dalrymple said earlier
this year, ``The number one priority is to keep up with infrastructure.
. .growth cannot continue if we do not keep up with all of the impact
that happens on communities out there.''
Apparently, the Governor was not talking about tribal communities.
In 2011, the State collected more than $60 million in tax revenue from
the Reservation, but the State expended less than $2 million toward the
maintenance of state and county roads on the Reservation. In 2012, the
State is expected to make $100 million in tax revenues from our
Reservation.
We agree with Chairman Young, it would be good to get the Bureau of
Indian Affairs out of the way. But, without the tax revenues that other
governments rely on, tribal governments will never have the staff and
resources to run permit programs--especially in the complicated area of
energy development. Without laws that support tribal taxing authority,
we will always be subject to the bureaucratic federal permit approval
process.
This is the perspective we take when we assess H.R. 3973. We
support many of the provisions in the bill and we ask that more be
included to ensure that tribes can exercise self-determination in the
area of energy development.
We support changes in the bill to the appraisal process,
standardizing lease numbers, limiting participants in the environmental
review process to the affected area, eliminating BLM oil and gas fees,
and providing formal authority for Indian Energy Development Offices.
In addition to these, we ask that you expand the bill to include
provisions that will allow the MHA Nation to develop the legal and
physical infrastructure necessary to support the growing energy
industry on the Reservation. Most important, the bill should affirm
that tribes have exclusive authority to raise taxes from activities on
Indian lands. This authority is essential for tribal governments to
exercise self-determination over our energy resources. We cannot be
asked to take over more responsibilities for the federal government
without the ability to raise the revenues needed to support those
responsibilities.
We also need to clarify tribal jurisdiction over Reservation
activities and any rights-of-way granted by an Indian tribe. Courts
have created uncertainty in the law and this uncertainty is yet another
disincentive to the energy business.
MHA Nation is also blessed with some of the windiest lands in the
Nation. To develop this resource we need to be able to use tax credits
and the Western Area Power Authority should treat tribal power as
federal power so that we have access to the existing transmission grid
to get this energy to the cities that need it.
Finally, the bill should include tribes in federal energy
efficiency and weatherization programs.
In conclusion, I want to thank Chairman Young and the members of
the Subcommittee for the opportunity to highlight the most significant
issues the MHA Nation faces as we promote and manage the development of
our energy resources.

[GRAPHIC] [TIFF OMITTED] T2944.004

[GRAPHIC] [TIFF OMITTED] T2944.005

Legislative Proposals Submitted by the MHA Nation to the Subcommittee
on July 18, 2011:

Proposals That Would Change the Tax Code and Proposals Already
Appearing in Introduced Bills Have Been Omitted

7) Surface Leasing Authority
Problem: In general, surface leases on Indian lands are limited to
25 years with one 25 year automatic approval allowed, however, the life
of a typical energy project is 50 years.
Proposed Solutions: General surface lease terms should be
lengthened to reflect the life of energy projects. These proposals are
limited to 50 year lease terms to avoid a lease resulting in de facto
ownership of tribal lands by non-Indians, and because other federal
laws governing tribal jurisdiction over tribal lands can change over
shorter time periods and affect the authority of tribes over lessors.
In addition, all tribes should be given the opportunity to assume BIA
leasing responsibilities for certain kinds of surface leasing.
a) Amend 25 U.S.C. 415(a), known as the ``Indian Long Term Leasing
Act,'' to authorize Indian tribes to lease restricted Indian land for
not more than 50 years.
b) Amend 25 U.S.C. 415(e) to allow all tribes to develop leasing
regulations, and once approved by the Secretary, the tribes may lease
their lands for 25 or 50 years, depending on the circumstance, without
having to obtain the approval of the Secretary for each individual
leases. This proposal is the similar to the HEARTH Act introduced in
the 112th Congress as S. 703 and H.R. 205.
c) Amend the Indian Reorganization Act (25 U.S.C. 477) to authorize
Section 17 Corporations to lease Indian land for not more than 50
years.
Proposed Legislative Text:
(a) Long-Term Leasing Act.--Subsection (a) of the first section of
the Act of August 9, 1955 (25 U.S.C. 415(a)) (commonly known as the
``Long-Term Leasing Act''), is amended--
(1) by striking the subsection designation and all that
follows through ``Any restricted'' and inserting the following:
``(a) Authorized Purposes; Term; Approval by Secretary.--
``(1) Authorized purposes.--Any restricted'';
(2) in the second sentence, by striking ``All leases so
granted'' through ``twenty five years, except'' and inserting
the following:
``(2) Term.--
``(A) In general.--Except as provided in subparagraph
(B), the term of a lease granted under paragraph (1)
shall be--
``(i) for a lease of tribally owned restricted
Indian land, not to exceed 50 years; and
``(ii) for a lease of individually owned
restricted Indian land, not to exceed 25 years.
``(B) Exception.--Except'';
(3) in the third sentence, by striking ``Leases for public''
and all that follows through ``twenty-five years, and all'' and
inserting the following:
``(3) Approval by secretary.--
``(A) In general.--All''; and
(4) in the fourth sentence, by striking ``Prior to approval
of'' and inserting the following:
``(B) Requirements for approval.--Before approving''.
(b) Approval of, and Regulations Related to, Tribal Leases.--The
Act titled ``An Act to authorize the leasing of restricted Indian lands
for public, religious, educational, recreational, residential,
business, and other purposes requiring the grant of long-term leases'',
approved August 9, 1955 (25 U.S.C. 415) is amended by adding at the end
the following:
``(h) Tribal Approval of Leases.--
``(1) In general.--At the discretion of any Indian tribe, any
lease by the Indian tribe for the purposes authorized under
subsection (a) (including any amendments to subsection (a)),
except a lease for the exploration, development, or extraction
of any mineral resources, shall not require the approval of the
Secretary, if the lease is executed under the tribal
regulations approved by the Secretary under this subsection and
the term of the lease does not exceed--
``(A) in the case of an agricultural lease, 25 years,
except that any such lease may include an option to
renew for up to 2 additional terms, each of which may
not exceed 25 years; and
``(B) in the case of a leases for business, public,
religious, educational, recreational, or residential
purposes, 50 years and with the consent of both parties
may include provisions authorizing their renewal for
one additional term of not to exceed 25 years, if such
terms are provided for by the regulations issued by the
Indian tribe.
``(2) Allotted land.--Paragraph (1) shall not apply to any
lease of individually owned Indian allotted land.
``(3) Authority of secretary over tribal regulations.--
``(A) In general.--The Secretary shall have the
authority to approve or disapprove any tribal
regulations issued in accordance with paragraph (1).
``(B) Considerations for approval.--The Secretary shall
approve any tribal regulation issued in accordance with
paragraph (1), if the tribal regulations--
``(i) are consistent with any regulations
issued by the Secretary under subsection (a)
(including any amendments to the subsection or
regulations); and
``(ii) provide for an environmental review
process that includes--
``(I) the identification and evaluation
of any significant effects of the
proposed action on the environment; and
``(II) a process for ensuring that--
``(aa) the public is informed
of, and has a reasonable
opportunity to comment on, any
significant environmental
impacts of the proposed action
identified by the Indian tribe;
and
``(bb) the Indian tribe
provides responses to relevant
and substantive public comments
on any such impacts before the
Indian tribe approves the
lease.
``(4) Review process.--
``(A) In general.--Not later than 120 days after the
date on which the tribal regulations described in
paragraph (1) are submitted to the Secretary, the
Secretary shall review and approve or disapprove the
regulations.
``(B) Written documentation.--If the Secretary
disapproves the tribal regulations described in
paragraph (1), the Secretary shall include written
documentation with the disapproval notification that
describes the basis for the disapproval.
``(C) Extension.--The deadline described in
subparagraph (A) may be extended by the Secretary,
after consultation with the Indian tribe.
``(5) Federal environmental review.--Notwithstanding paragraphs
(3) and (4), if an Indian tribe carries out a project or
activity funded by a Federal agency, the Indian tribe shall
have the authority to rely on the environmental review process
of the applicable Federal agency rather than any tribal
environmental review process under this subsection.
``(6) Documentation.--If an Indian tribe executes a lease
pursuant to tribal regulations under paragraph (1), the Indian
tribe shall provide the Secretary with--
``(A) a copy of the lease, including any amendments or
renewals to the lease; and
``(B) in the case of tribal regulations or a lease that
allows for lease payments to be made directly to the
Indian tribe, documentation of the lease payments that
are sufficient to enable the Secretary to discharge the
trust responsibility of the United States under
paragraph (7).
``(7) Trust responsibility.--
``(A) In general.--The United States shall not be
liable for losses sustained by any party to a lease
executed pursuant to tribal regulations under paragraph
(1).
``(B) Authority of secretary.--Pursuant to the
authority of the Secretary to fulfill the trust
obligation of the United States to the applicable
Indian tribe under Federal law (including regulations),
the Secretary may, upon reasonable notice from the
applicable Indian tribe and at the discretion of the
Secretary, enforce the provisions of, or cancel, any
lease executed by the Indian tribe under paragraph (1).
``(8) Compliance.--
``(A) In general.--An interested party, after
exhausting of any applicable tribal remedies, may
submit a petition to the Secretary, at such time and in
such form as the Secretary determines to be
appropriate, to review the compliance of the applicable
Indian tribe with any tribal regulations approved by
the Secretary under this subsection.
``(B) Violations.--If, after carrying out a review
under subparagraph (A), the Secretary determines that
the tribal regulations were violated, the Secretary may
take any action the Secretary determines to be
necessary to remedy the violation, including rescinding
the approval of the tribal regulations and reassuming
responsibility for the approval of leases of tribal
trust lands.
``(C) Documentation.--If the Secretary determines that
a violation of the tribal regulations has occurred and
a remedy is necessary, the Secretary shall--
``(i) make a written determination with respect
to the regulations that have been violated;
``(ii) provide the applicable Indian tribe with
a written notice of the alleged violation
together with such written determination; and
``(iii) prior to the exercise of any remedy,
the rescission of the approval of the
regulation involved, or the reassumption of
lease approval responsibilities, provide the
applicable Indian tribe with--
``(I) a hearing that is on the record;
and
``(II) a reasonable opportunity to cure
the alleged violation.
``(9) Savings clause.--Nothing in this subsection shall affect
subsection (e) or any tribal regulations issued under that
subsection.''.
(c) Indian Reorganization Act.--Section 17 of the Act of June 18,
1934 (25 U.S.C. 477) (commonly known as the ``Indian Reorganization
Act'') is amended in the second sentence by striking ``twenty-five''
and inserting ``50''

9) Tribal Energy Resource Agreements
Problem: The effect the Tribal Energy Resource Agreement (TERA)
program, authorized in Title V of the Energy Policy Act of 2005, on the
federal government's trust responsibility is unclear.
Proposed Solution: DOI must do further outreach and education on
the TERA program and its impacts on the Secretary's trust
responsibility, including revising TERA regulations after further
consultation with Tribes.

Proposed Legislative Text:
Section 2604 of the Energy Policy Act of 1992 (25 U.S.C. 3504) is
amended by adding at the end--
``(f) Further Consultation.--Within six months after the passage of
this act, the Secretary shall engage in further consultation with
Indian tribes regarding the regulations for implementing the Tribal
Energy Resource Agreement program. Consultation shall pay particular
attention to fully explaining and discussing the impacts, if any, of
the program on the Secretary's trust responsibility. Following
consultation the Secretary shall make revisions to the regulations
consistent with that consultation.

Proposed Legislative Text:
Section 2602(c) of the Energy Policy Act of 1992 (25 U.S.C.
3502(c)) is amended--
(1) in paragraph (1)--
(A) by striking the paragraph designation and all that
follows through ``may provide'' and inserting the
following:
``(1) Requirement.--Subject to paragraph (4), not later than 1
year after the date of enactment of this Act, the Secretary of
Energy shall provide''; and
(B) by striking ``any loan made to an Indian tribe for
energy development'' and inserting ``such loans made to
Indian tribes or tribal energy development
organizations for energy development, energy
transmission projects, or the integration of energy
resources as the Secretary determines to be
appropriate'';
(2) in paragraph (3), by striking the paragraph designation
and all that follows through ``made by--'' and inserting the
following:
``(3) Eligible providers of loans.--A loan for which a loan
guarantee is provided under this subsection shall be made by--
'';
(3) in paragraph (4)--
(A) by striking ``(4) The aggregate'' and inserting
the following:
``(4) Limitations.--
``(A) Aggregate outstanding amount.--The aggregate'';
and
(B) by adding at the end the following:
``(B) Specific appropriation or contribution.--No loan
guarantee may be provided under this subsection
unless--
``(i) an appropriation for the cost of the
guarantee has been made; or
``(ii) the Secretary of Energy has--
``(I) received from the borrower a
payment in full for the cost of the
obligation; and
``(II) deposited the payment into the
Treasury.'';
(4) in paragraph (5), by striking the paragraph designation
and all that follows through ``may issue'' and inserting the
following:
``(5) Regulations.--The Secretary of Energy shall promulgate'';
and
(5) in paragraph (7), by striking ``1 year after the date of
enactment of this section'' and inserting ``2 years after the
date of enactment of the Indian Energy Parity Act of 2010''.

Proposed Legislative Text:
(a) Definitions.--In this section:
(1) Agency.--The term ``agency'' has the meaning given the
term in section 551 of title 5, United States Code.
(2) Agency leader.--The term ``Agency leader'' means 1 or more
of the following:
(A) The Secretary of Agriculture.
(B) The Secretary of Commerce.
(C) The Secretary of Energy.
(D) The Secretary of Housing and Urban Development.
(E) The Administrator of the Environmental Protection
Agency.
(F) The Secretary of the Interior.
(G) The Secretary of Labor.
(H) The Secretary of Transportation.
(3) Tribal energy development organization.--The term ``tribal
energy development organization'' has the meaning given the
term in section 2601 of the Energy Policy Act of 1992 (25
U.S.C. 3501).
(b) Single Integrated Program.--
(1) In general.--An Indian tribe or tribal energy development
organization may submit to the Secretary, and to applicable
Agency leaders, a plan to fully integrate into a single,
coordinated, comprehensive program federally funded energy-
related activities and programs (including programs for
employment training, energy planning, financing, construction,
and related physical infrastructure and equipment).
(2) No additional requirements.--The Agency leaders shall not
impose any additional requirement or condition, additional
budget, report, audit, or supplemental audit, or require
additional documentation from, an Indian tribe or tribal energy
development organization that has satisfied the plan criteria
described in subsection (c).
(3) Procedure.--
(A) In general.--On receipt of a plan of an Indian
tribe or a tribal energy development organization
described in paragraph (1) that is in a form that the
Secretary determines to be acceptable, the Secretary
shall consult with the applicable Agency leaders to
determine whether the proposed use of programs and
services is in accordance with the eligibility rules
and guidelines on the use of agency funds.
(B) Integration.--If the Secretary and the applicable
Agency leaders make a favorable determination pursuant
to subparagraph (A), the Secretary shall authorize the
Indian tribe or tribal energy development
organization--
(i) to integrate and coordinate the programs
and services described in paragraph (4) into a
single, coordinated, and comprehensive program;
and
(ii) to reduce administrative costs by
consolidating administrative functions.
(4) Description of activities.--The activities referred to in
paragraph (1) are federally funded energy-related activities
and programs (including programs for employment training,
energy planning, financing, construction, and related physical
infrastructure and equipment), including--
(A) any program under which an Indian tribe or tribal
energy development organization is eligible to receive
funds under a statutory or administrative formula;
(B) activities carried out using any funds an Indian
tribe or members of the Indian tribe are entitled to
under Federal law; and
(C) activities carried out using any funds an Indian
tribe or a tribal energy development organization may
secure as a result of a competitive process for the
purpose of planning, designing, constructing,
operating, or managing a renewable or nonrenewable
energy project on Indian land.
(5) Inventory of affected programs.--
(A) Reports.--Not later than 90 days after the date of
enactment of this Act, the Agency leaders shall--
(i) conduct a survey of the programs and
services of the agency that are or may be
included in the plan of an Indian tribe or
tribal energy development organization under
this subsection;
(ii) provide a description of the eligibility
rules and guidelines on the manner in which the
funds under the jurisdiction of the agency may
be used; and
(iii) submit to the Secretary a report
identifying those programs, services, rules,
and guidelines.
(B) Publication.--Not later than 60 days after the
date of receipt of each report under subparagraph (A),
the Secretary shall publish in the Federal Register a
comprehensive list of the programs and services
identified in the reports.
(c) Plan Requirements.--A plan submitted by an Indian tribe or
tribal energy development organization under subsection (b) shall--
(1) identify the activities to be integrated;
(2) be consistent with the purposes of this section regarding
the integration of the activities in a demonstration project;
(3) describe--
(A) the manner in which services are to be integrated
and delivered; and
(B) the expected results of the plan;
(4) identify the projected expenditures under the plan in a
single budget;
(5) identify each agency of the Indian tribe to be involved in
the administration of activities or delivery of the services
integrated under the plan;
(6) address any applicable requirements of the Agency leaders
for receiving funding from the federally funded energy-related
activities and programs under the jurisdiction of the Agency
leaders, respectively;
(7) identify any statutory provisions, regulations, policies,
or procedures that the Indian tribe recommends to be waived to
implement the plan, including any of the requirements described
in paragraph (6); and
(8) be approved by the governing body of the affected Indian
tribe.
(d) Approval Process.--
(1) In general.--Not later than 90 days after the receipt of a
plan of an Indian tribe or tribal energy development
organization, the Secretary and applicable Agency leaders shall
coordinate a single response to inform the Indian tribe or
tribal energy development organization in writing of the
determination to approve or disapprove the plan, including any
request for a waiver that is made as part of the plan.
(2) Plan disapproval.--Any issue preventing approval of a plan
under paragraph (1) shall be resolved in accordance with
subsection (e)(3).
(e) Plan Review; Waiver Authority; Dispute Resolution.--
(1) In general.--On receipt of a plan of an Indian tribe or
tribal energy development organization, the Secretary shall
consult regarding the plan with--
(A) the applicable Agency leaders; and
(B) the governing body of the applicable Indian tribe.
(2) Identification of waivers.--
(A) In general.--In carrying out the consultation
described in paragraph (1), the Secretary, the
applicable Agency leaders, and the governing body of
the applicable Indian tribe shall identify the
statutory, regulatory, and administrative requirements,
policies, and procedures that must be waived to enable
the Indian tribe or tribal energy development
organization to implement the plan.
(B) Waiver authority.--Notwithstanding any other
provision of law, the applicable Agency leaders may
waive any applicable regulation, administrative
requirement, policy, or procedure identified under
subparagraph (A) in accordance with the purposes of
this section.
(C) Tribal request to waive.--In consultation with the
Secretary and the applicable Agency leaders, an Indian
tribe may request the applicable Agency leaders to
waive a regulation, administrative requirement, policy,
or procedure identified under subparagraph (A).
(D) Declination of waiver request.--If the applicable
Agency leaders decline to grant a waiver requested
under subparagraph (C), the applicable Agency leaders
shall provide to the requesting Indian tribe and the
Secretary written notice of the declination, including
a description of the reasons for the declination.
(3) Dispute resolution.--
(A) In general.--The Secretary, in consultation with
the Agency leaders, shall develop dispute resolution
procedures to carry out this section.
(B) Procedures.--If the Secretary determines that a
declination is inconsistent with the purposes of this
section, or prevents the Department from fulfilling the
obligations under subsection (f), the Secretary shall
establish interagency dispute resolution procedures
involving--
(i) the participating Indian tribe or tribal
energy development organization; and
(ii) the applicable Agency leaders.
(4) Final decision.--In the event of a failure of the dispute
resolution procedures under paragraph (3), the Secretary shall
inform the applicable Indian tribe or tribal energy development
organization of the final determination not later than 180 days
after the date of receipt of the plan.
(f) Responsibilities of Department.--
(1) Memorandum of agreement.--Not later than 180 days after
the date of enactment of this Act, the Secretary and the Agency
leaders shall enter into an interdepartmental memorandum of
agreement that shall require and include--
(A) an annual meeting of participating Indian tribes,
tribal energy development organizations, and Agency
leaders, to be co-chaired by a representative of the
President and a representative of the participating
Indian tribes and tribal energy development
organizations;
(B) an annual review of the achievements made under
this section and statutory, regulatory, administrative,
and policy obstacles that prevent participating Indian
tribes and tribal energy development organizations from
fully carrying out the purposes of this section;
(C) a forum comprised of participating Indian tribes,
tribal energy development organizations, and agencies
to identify and resolve interagency or Federal-tribal
conflicts that occur in carrying out this section; and
(D) the dispute resolution procedures required by
subsection (e)(3).
(2) Department responsibilities.--The responsibilities of the
Department include--
(A) in accordance with paragraph (3), developing a
model single report for each approved plan of an Indian
tribe or tribal energy development organization
regarding the activities carried out and expenditures
made under the plan;
(B) providing, subject to the consent of an Indian
tribe or tribal energy development organization with an
approved plan under this section, technical assistance
either directly or pursuant to a contract;
(C) developing a single monitoring and oversight
system for the plans approved under this section;
(D) receiving and distributing all funds covered by a
plan approved under this section; and
(E) conducting any required investigation relating to
a waiver or an interagency dispute resolution under
this section.
(3) Model single report.--The model single report described in
paragraph (2)(A) shall--
(A) be developed by the Secretary, in accordance with
the requirements of this section; and
(B) together with records maintained at the Indian
tribal level regarding the plan of the Indian tribe or
tribal resource development organization, contain such
information as would allow a determination that the
Indian tribe or tribal energy development
organization--
(i) has complied with the requirements
incorporated in the applicable plan; and
(ii) will provide assurances to each
applicable agency that the Indian tribe or
tribal energy development organization has
complied with all directly applicable statutory
and regulatory requirements.
(g) No Reduction, Denial, or Withholding of Funds.--No Federal
funds may be reduced, denied, or withheld as a result of participation
by an Indian tribe or tribal energy development organization in the
program under this section.
(h) Interagency Fund Transfers.--
(1) In general.--If a plan submitted by an Indian tribe or
tribal energy development organization under this section is
approved, the Secretary and the applicable Agency leaders shall
take all necessary steps to effectuate interagency transfers of
funds to the Department for distribution to the Indian tribe or
tribal energy development organization.
(2) Coordinated agency action.--As part of an interagency
transfer under paragraph (1), the applicable Agency leader
shall provide the Department a 1-time transfer of all required
funds by not later than October 1 of each applicable fiscal
year.
(3) Agencies not authorized to withhold funds.--If a plan is
approved under this section, none of the applicable Agency
leaders may withhold funds for the plan.
(i) Administration; Recordkeeping; Overage.--
(1) Administration of funds.--
(A) In general.--The funds for a plan under this
section shall be administered in a manner that allows
for a determination that funds from a specific program
(or an amount equal to the amount attracted from each
program) shall be used for activities described in the
plan.
(B) Separate records not required.--Nothing in this
section requires an Indian tribe or tribal energy
development organization--
(i) to maintain separate records relating to
any service or activity conducted under the
applicable plan for the program under which the
funds were authorized; or
(ii) to allocate expenditures among those
programs.
(2) Administrative expenses.--
(A) Commingling.--Administrative funds for activities
under a plan under this section may be commingled.
(B) Entitlement.--An Indian tribe or tribal energy
development organization shall be entitled to the full
amount of administrative costs for the activities of a
plan under this section, in accordance with applicable
regulations.
(C) Overages.--No overage of administrative costs for
the activities of a plan under this section shall be
counted for Federal audit purposes, if the overage is
used for the purposes described in this section.
(j) Single Audit Act.--Nothing in this section interferes with the
ability of the Secretary to fulfill the responsibilities for the
safeguarding of Federal funds pursuant to chapter 75 of title 31,
United States Code (commonly known as the ``Single Audit Act'').
(k) Training and Technical Assistance.--
(1) In general.--The Department, with the participation and
assistance of the Agency leaders, shall conduct activities for
technical assistance and training relating to plans under this section,
including--
(A) orientation sessions for Indian tribal leaders;
(B) workshops on planning, operations, and procedures
for employees of Indian tribes;
(C) training relating to case management, client
assessment, education and training options, employer
involvement, and related topics; and
(D) the development and dissemination of training and
technical assistance materials in printed form and over
the Internet.
(2) Administration.--To effectively administer the training
and technical assistance activities under this subsection, the
Department shall collaborate with an Indian tribe that has
experience with federally funded energy-related activities and
programs (including programs for employment training, energy
planning, financing, construction, and related physical
infrastructure and equipment).

Proposed Legislative Text:
(a) PURPOSES.--The purposes of this section are -
(1) To ensure that Indian tribes and individual Indians are
able to fully benefit from their coal resources in accordance
with the Indian Mineral Leasing Act of 1938 (25 U.S.C. 396a-
396g), the Indian Mineral Development Act of 1982 (25 U.S.C.
2101-2108) and other provisions of law that advance those Acts;
and
(2) To ensure undiminished protection of the environment and
the protection of surface owners under existing split estates.
(b) REVIEW--Notwithstanding any other law, Congress hereby
authorizes Indian tribes and individual Indians to hypothecate their
coal mineral interests in situ that tribes or individual Indians own
within the boundaries of their reservations.

Proposed Legislative Text:
Part D of title III of the Energy Policy and Conservation Act (42
U.S.C. 6321 et seq.) is amended by adding at the end the following:
``(a) Definition of Indian Tribe.--In this section, the term
`Indian tribe' has the meaning given the term in section 4 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b).
``(b) Purpose.--The purpose of the grants provided under subsection
(d) shall be to assist Indian tribes in implementing strategies--
``(1) to reduce fossil fuel emissions created as a result of
activities within the jurisdictions of eligible entities in a
manner that--
``(A) is environmentally sustainable; and
``(B) to the maximum extent practicable, maximizes
benefits for Indian tribes and tribal members;
``(2) to increase the energy efficiency of Indian tribes and
tribal members; and
``(3) to improve energy efficiency in--
``(A) the transportation sector;
``(B) the building sector; and
``(C) other appropriate sectors.
``(c) Tribal Allocation.--Of the amount of funds authorized to be
appropriated for each fiscal year under section 365(f) to carry out
this part, the Secretary shall allocate not less than 5 percent of the
funds for each fiscal year to be distributed to Indian tribes in
accordance with subsection (d).
``(d) Grants.--Of the amounts available for distribution under
subsection (c), the Secretary shall establish a competitive process for
providing grants under this section that gives priority to projects
that--
``(1) increase energy efficiency and energy conservation rather
than new energy generation projects;
``(2) integrate cost-effective renewable energy with energy
efficiency;
``(3) move beyond the planning stage and are ready for
implementation;
``(4) clearly articulate and demonstrate the ability to achieve
measurable goals;
``(5) have the potential to make an impact in the government
buildings, infrastructure, communities, and land of an Indian
tribe; and
``(6) maximize the creation or retention of jobs on Indian
land.
``(e) Use of Funds.--An Indian tribe may use a grant received under
this section to carry out activities to achieve the purposes described
in subsection (b), including--
``(1) the development and implementation of energy efficiency
and conservation strategies;
``(2) the retention of technical consultant services to assist
the Indian tribe in the development of an energy efficiency and
conservation strategy, including--
``(A) the formulation of energy efficiency, energy
conservation, and energy usage goals;
``(B) the identification of strategies to achieve the
goals--
``(i) through efforts to increase energy
efficiency and reduce energy consumption; and
``(ii) by encouraging behavioral changes among
the population served by the Indian tribe;
``(C) the development of methods to measure progress in
achieving the goals;
``(D) the development and publication of annual reports
to the population served by the eligible entity
describing--
``(i) the strategies and goals; and
``(ii) the progress made in achieving the
strategies and goals during the preceding
calendar year; and
``(E) other services to assist in the implementation of
the energy efficiency and conservation strategy;
``(3) the implementation of residential and commercial building
energy audits;
``(4) the establishment of financial incentive programs for
energy efficiency improvements;
``(5) the provision of grants for the purpose of performing
energy efficiency retrofits;
``(6) the development and implementation of energy efficiency
and conservation programs for buildings and facilities within
the jurisdiction of the Indian tribe, including--
``(A) the design and operation of the programs;
``(B) the identification of the most effective methods
of achieving maximum participation and efficiency
rates;
``(C) the education of the members of an Indian tribe;
``(D) the measurement and verification protocols of the
programs; and
``(E) the identification of energy efficient
technologies;
``(7) the development and implementation of programs to
conserve energy used in transportation, including--
``(A) the use of--
``(i) flextime by employers; or
``(ii) satellite work centers;
``(B) the development and promotion of zoning
guidelines or requirements that promote energy-
efficient development;
``(C) the development of infrastructure, including bike
lanes, pathways, and pedestrian walkways;
``(D) the synchronization of traffic signals; and
``(E) other measures that increase energy efficiency
and decrease energy consumption;
``(8) the development and implementation of building codes and
inspection services to promote building energy efficiency;
``(9) the application and implementation of energy distribution
technologies that significantly increase energy efficiency,
including--
``(A) distributed resources; and
``(B) district heating and cooling systems;
``(10) the implementation of activities to increase
participation and efficiency rates for material conservation
programs, including source reduction, recycling, and recycled
content procurement programs that lead to increases in energy
efficiency;
``(11) the purchase and implementation of technologies to
reduce, capture, and, to the maximum extent practicable, use
methane and other greenhouse gases generated by landfills or
similar sources;
``(12) the replacement of traffic signals and street lighting
with energy-efficient lighting technologies, including--
``(A) light-emitting diodes; and
``(B) any other technology of equal or greater energy
efficiency;
``(13) the development, implementation, and installation on or
in any government building of the Indian tribe of onsite
renewable energy technology that generates electricity from
renewable resources, including--
``(A) solar energy;
``(B) wind energy;
``(C) fuel cells; and
``(D) biomass; and
``(14) any other appropriate activity, as determined by the
Secretary, in consultation with--
``(A) the Secretary of the Interior;
``(B) the Administrator of the Environmental Protection
Agency;
``(C) the Secretary of Transportation;
``(D) the Secretary of Housing and Urban Development;
and
``(E) Indian tribes.
``(f) Grant Applications.--
``(1) In general.--
``(A) Application.--To apply for a grant under this
section, an Indian tribe shall submit to the Secretary
a proposed energy efficiency and conservation strategy
in accordance with this paragraph.
``(B) Contents.--A proposed strategy described in
subparagraph (A) shall include a description of--
``(i) the goals of the Indian tribe for
increased energy efficiency and conservation in
the jurisdiction of the Indian tribe;
``(ii) the manner in which--
``(I) the proposed strategy complies
with the restrictions described in
subsection (e); and
``(II) a grant will allow the Indian
tribe fulfill the goals of the proposed
strategy.
``(2) Approval.--
``(A) In general.--The Secretary shall approve or
disapprove a proposed strategy under paragraph (1) by
not later than 120 days after the date of submission of
the proposed strategy.
``(B) Disapproval.--If the Secretary disapproves a
proposed strategy under paragraph (1)--
``(i) the Secretary shall provide to the Indian
tribe the reasons for the disapproval; and
``(ii) the Indian tribe may revise and resubmit
the proposed strategy as many times as
necessary, until the Secretary approves a
proposed strategy.
``(C) Requirement.--The Secretary shall not provide to
an Indian tribe a grant under this section until a
proposed strategy is approved by the Secretary.
``(3) Limitations on use of funds.--Of the amounts provided to
an Indian tribe under this section, an Indian tribe may use for
administrative expenses, excluding the cost of the reporting
requirements of this section, an amount equal to the greater
of--
``(A) 10 percent of the administrative expenses; or
``(B) $75,000.
``(4) Annual report.--Not later than 2 years after the date on
which funds are initially provided to an Indian tribe under
this section, and annually thereafter, the Indian tribe shall
submit to the Secretary a report describing--
``(A) the status of development and implementation of
the energy efficiency and conservation strategy; and
``(B) to the maximum extent practicable, an assessment
of energy efficiency gains within the jurisdiction of
the Indian tribe.''.

Proposed Legislative Text:
Section 413 of the Energy Conservation and Production Act (42
U.S.C. 6863) is amended by striking subsection (d) and inserting the
following:
``(d) Direct Grants to Indian Tribes for Weatherization of Indian
Homes.--
``(1) Definitions.--In this subsection:
``(A) Indian area.--The term `Indian area' has the
meaning given the term in section 4 of the Native
American Housing Assistance and Self-Determination Act
of 1996 (25 U.S.C. 4103).
``(B) Indian tribe.--The term `Indian tribe' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b).
``(2) In general.--Of the amounts made available for each
fiscal year to carry out the Weatherization Assistance Program
for Low-Income Persons established under part A of title IV,
the Secretary shall allocate for Indian tribes not less than 10
percent.
``(3) Regulations.--
``(A) Proposed regulations.--Not later than 90 days
after the date of enactment of the Indian Energy Parity
Act of 2010, the Secretary, after consulting with the
Secretary of the Interior, the Secretary of Housing and
Urban Development, the Secretary of Health and Human
Services, the Secretary of Labor, Indian tribes, and
intertribal organizations, shall publish in the Federal
Register proposed regulations to carry out this
subsection.
``(B) Final regulations.--
``(i) In general.--Not later than 120 days from
the date of enactment of the Indian Energy
Parity Act of 2010, the Secretary shall
promulgate final regulations to carry out this
subsection, taking into consideration the
comments submitted in response to the
publication of the proposed regulations
described in subparagraph (A).
``(ii) Criteria.--Final regulations promulgated
by the Secretary to carry out this subsection
shall--
``(I) provide a formula or process for
ensuring that weatherization funding is
available for any Indian tribe that
submits a qualifying weatherization
funding application under paragraph
(4)(C);
``(II) promote efficiency in carrying
out this subsection by the Secretary
and Indian tribes; and
``(III) consider--
``(aa) the limited resources of
Indian tribes to carry out this
subsection;
``(bb) the unique
characteristics of housing in
Indian areas; and
``(cc) the remoteness of Indian
areas.
``(4) Allocation of funding.--
``(A) In general.--The Secretary shall provide
financial assistance to an Indian tribe from the
amounts provided under paragraph (2), if the Indian
tribe submits to the Secretary a weatherization funding
application.
``(B) Contents.--A weatherization funding application
described in subparagraph (A) shall--
``(i) describe--
``(I) the estimated number and
characteristics of the persons and
dwelling units to be provided
weatherization assistance; and
``(II) the criteria and methods to be
used by the Indian tribe in providing
the weatherization assistance; and
``(ii) contain any other information (including
information needed for evaluation purposes) and
assurances that are required under regulations
promulgated by the Secretary to carry out this
section.
``(C) Qualifying weatherization funding.--A
weatherization funding application that meets the
criteria under subparagraph (B) shall be considered a
qualifying weatherization funding application.
``(D) Initial distribution of funding.--The Secretary
shall distribute funding under this subsection to
Indian tribes that submit qualifying weatherization
funding applications--
``(i) on the basis of the relative need for
weatherization assistance; and
``(ii) taking into account--
``(I) the number of dwelling units to
be weatherized;
``(II) the climatic conditions
respecting energy conservation,
including a consideration of annual
degree days;
``(III) the type of weatherization work
to be done;.
``(IV) any data provided in the most
recent version of the Bureau of Indian
Affairs American Indian Population and
Labor Force Report prepared pursuant to
Public Law 102-477 (106 Stat. 2302), or
if not available, any similar
publication; and
``(V) any other factors that the
Secretary determines to be necessary,
including the cost of heating and
cooling, in order to carry out this
section.
``(E) Competitive grants.--For each fiscal year, if any
amounts remain available after the initial distribution
of funding described in subparagraph (D), the Secretary
shall solicit applications for grants from Indian
tribes--
``(i) to carry out weatherization projects and
weatherization training;
``(ii) to supply weatherization equipment; and
``(iii) to develop tribal governing capacity to
carry out a weatherization program consistent
with this subsection.
``(F) Remaining funding.--For each fiscal year, if any
amounts remain available after distribution under
subparagraphs (D) and (E), the amounts shall remain
available to fulfill the purpose of this subsection in
subsequent fiscal years.
``(G) Renewal of qualifying weatherization funding
applications.--
``(i) In general.--To achieve maximum
efficiency in the allocation of funding, an
Indian tribe that submits a qualifying
weatherization funding application may request
that the weatherization funding application of
the Indian tribe be renewed in subsequent
fiscal years.
``(ii) Contents.--A request to renew a
qualifying weatherization funding application
shall contain such information as the Secretary
determines to be necessary to achieve
efficiency in the allocation of funding under
this subsection.
``(5) Use of funds.--
``(A) In general.--An Indian tribe shall use funds
provided under paragraph (4) to carry out
weatherization and energy conservation activities that
benefit the members of an Indian tribe in Indian areas.
``(B) Eligible activities.--The weatherization and
energy conservation activities described in
subparagraph (A) include--
``(i) the provision of existing services under
this section;
``(ii) the acquisition and installation of
energy-efficient windows and doors and heating
and cooling equipment; or
``(iii) the repair, replacement, or insulation
of floors, walls, roofs, and ceilings.
``(C) Applicability of requirements.--
``(i) In general.--Notwithstanding any other
provision of law, the use of funds under this
paragraph by an Indian tribe shall be subject
only to--
``(I) the requirements of this
subsection; and
``(II) implementing regulations of the
Department of Energy.
``(ii) Other requirements of act.--In
accordance with the government-to-government
and trust relationships between the United
States and Indian tribes, the income, energy
audit, grant limitation, and other
administrative and eligibility requirements of
this Act shall not apply to the use of funds
under this paragraph by an Indian tribe.
``(6) Report.--Not later than 90 days after the closing date of
each applicable project year, each Indian tribe that receives
funds under this subsection shall submit to the Secretary a
simple outcome report that describes, for that project year--
``(A) each activity carried out by the Indian tribe
under this subsection, including the amounts used for
each such activity;
``(B) the number of Indian households benefitted by the
activities of the Indian tribe under this subsection;
and
``(C) the estimated savings in energy costs realized in
the communities served by the Indian tribe.
``(7) Training and technical assistance.--The Secretary shall
carry out technical assistance and training activities relating
to weatherization under this subsection, including--
``(A) orientation sessions for Indian tribes;
``(B) workshops on planning, operations, and procedures
for Indian tribes to use the funding provided under
this subsection;
``(C) training relating to carrying out weatherization
projects; and
``(D) the development and dissemination of training and
technical assistance materials in printed form and over
the Internet.''.

Mr. Gosar. Thank you.
Ms. Sweeney?

STATEMENT OF TARA SWEENEY, SENIOR VICE PRESIDENT, ARCTIC SLOPE
REGIONAL CORPORATION, ANCHORAGE, ALASKA

Ms. Sweeney. [Speaks in native language.] Honorable
Chairman Young, Congressman Gosar, Ranking Member Boren, and
distinguished members of the Subcommittee, my name is Tara
Sweeney, and I am an Inupiaq Eskimo from Barrow, Alaska.
I serve as the Senior Vice President for External Affairs
for Arctic Subregional Corporation, or ASRC. And I am here
representing the interests of 11,000 Inupiaq Eskimo
shareholders of ASRC. We are an Alaska Native corporation
formed pursuant to the Alaska Native Claims Settlement Act of
1971 for the area that encompasses the entire North Slope of
Alaska. We own approximately 5 million acres of surface and
subsurface estate on Alaska's North Slope conveyed to the
corporation under ANCSA as a settlement of our aboriginal land
claims.
ASRC is the largest private land owner on the North Slope,
and the North Slope is a national energy province. It covers 50
million acres of the northern portion of our state. It is
adjacent to both the Beaufort and Chukchi Seas, which overlie
the most prospective hydrocarbon basins of Alaska's Outer
Continental Shelf.
Energy development on Native lands is familiar to ASRC, and
we recognize that this is very important legislation. Despite
the fact that there are significant known energy resources in
Alaska, prospects lie fallow because there is a near-shutdown
of new onshore and offshore development. A significant
disincentive to develop these resources is the continuous
administrative and legal challenges brought by third parties
whose sole mission is to prevent further development in Alaska.
No one would suffer greater harm than our people in the
event of mismanagement of our lands. It is for this reason that
we welcome a robust discussion about safe and responsible
development. This legislation contains a mechanism that would
require that a party seeking a preliminary injunction or
administrative stay regarding the issuance of permits,
licenses, or other permissions for Native energy projects post
a bond in support of that challenge. If the litigant ultimately
fails to prevail on the merits of the challenge, it would
forfeit the bond in favor of the permitting agency entity.
As it stands now, the risks and the costs are all on the
side of impacted Native communities and sponsors of Native
energy projects. It would be more equitable to require a bond
to be posted by parties seeking to challenge such projects.
Congress would remove one of the significant disincentives of
production of resources on Native-owned lands by balancing the
risks between those who seek to responsibly develop Native
energy projects and--between those who seek to prevent the
delay of those projects from being developed.
Without a provision like this, the financial burden on
Native communities may be too great to move an energy project
forward because of endless litigation. In fact, we respectfully
suggest expanding the language to further include mining or, in
a more general sense, natural resource development projects on
or near Native lands.
We are not advocating for, nor do we favor, attempts to
restrict parties from legitimate challenges to projects that do
not adhere to applicable Federal and state requirements. We do
not want to limit our ability to challenge projects that fail
to meet regulatory requirements designed to ensure that such
projects do not adversely impact our Inupiaq shareholders, our
subsistence lifestyle, or cultural resources.
This legislation strikes an appropriate balance by removing
incentives for filing ideologically based challenges designed
simply to delay those projects, while preserving the right to
bring meritorious challenges.
It is important to note that the North Slope of Alaska is
the place that our people have called home since time
immemorial. We depend on the land and the sea for subsistence
resources. This defines who we are as people. We recognize and
accept that our community survival depends on continued energy
production from our region. Energy developed from resources
that are located on Native land can play a substantial role in
domestic energy production, contribute to energy independence,
and further promote economic growth. Consistent with Federal
Indian policy, Congress should do everything in its power to
ensure such resources can be safely and responsibly developed
without undue delay.
Thank you again for allowing me to share our views
regarding this legislation.
[The prepared statement of Ms. Sweeney follows:]

Statement of Tara M. Sweeney, Senior Vice President,
External Affairs, Arctic Slope Regional Corporation

Honorable Chairman Young, ranking member Boren, and distinguished
members of the subcommittee, my name is Tara Sweeney and I am an
Inupiaq Eskimo from Barrow, Alaska.
I serve as the senior vice president of External Affairs for Arctic
Slope Regional Corporation, or ASRC, and I am here representing the
interests of over 11,000 Inupiaq shareholders of ASRC.
ASRC is an Alaska Native corporation formed pursuant to the Alaska
Native Claims Settlement Act of 1971 (ANCSA) for the area that
encompasses the entire North Slope of Alaska. Shareholders of ASRC
include nearly all residents of eight villages on the North Slope,
Point Hope, Point Lay, Wainwright, Atqasuk, Barrow, Nuiqsut, Kaktovik
and Anaktuvuk Pass.
ASRC owns approximately five million acres of surface and
subsurface estate on Alaska's North Slope, conveyed to the corporation
under ANCSA, as a settlement of aboriginal land claims. ASRC is the
largest private landowner on the North Slope. Under the terms of both
ANCSA and the Alaska National Interest Lands Conservation Act of 1980
(ANILCA), village and regional corporations like ASRC were charged with
developing their assets, including the ANCSA-conveyed lands, for the
benefit of their Alaska Native shareholders. The unique character of
this relationship and these lands, founded in federal Indian law and
the most significant Native claims settlement in U.S. history, must be
recognized by Congress and the Federal government in making any land
management decisions, including decisions that impact the ability to
develop energy resources on Native lands. ASRC lands are located in
areas that either have known resources or are prospective for oil, gas,
coal, and minerals. We remain committed to developing these resources
and bringing them to market in a manner that respects Inupiat
subsistence values and ensures proper care of the environment, habitat
and wildlife.
As part of this commitment to fulfill our Congressionally-mandated
obligation to develop resources for the benefit of our shareholders, we
constantly look to increase economic and individual development
opportunities within our region, while preserving Inupiat culture and
traditions. ASRC has fostered a balanced resource development agenda by
adhering to the traditional values of protecting the land, the
environment, and the culture of the Inupiat, while promoting
development which improves the quality of life in the Arctic Slope
communities.
Alaska's North Slope is a national energy province. It covers 50
million acres of the northern portion of our state and hosts many well
known energy resource prospects and production areas including Prudhoe
Bay and nearby oil fields, the National Petroleum Reserve in Alaska
(NPR-A), the Coastal Plain of the Arctic National Wildlife Refuge and
many others. It is adjacent to both the Beaufort and Chukchi Seas,
which overlie the most prospective hydrocarbon basins of Alaska's Outer
Continental Shelf (OCS).
Energy development on Native lands is familiar to ASRC, and we
recognize that this is very important legislation. By facilitating
development of energy on Indian lands, the proposed legislation would
mark an important step in advancing the causes of energy security and
providing for economic development in Indian communities. ASRC commends
this subcommittee for making a significant effort to improve the laws
which are intended to encourage, but sometime discourage, energy
development on Indian lands.
Our communities realize that our survival depends on a healthy
environment and upon resource development that exists in our region.
Safe, responsible oil and gas development is the only industry that has
remained in our region long enough to foster improvements to our remote
communities. We formed our regional government in part to exercise
permitting control on the explorers and producers of these energy
resources and to benefit from the property tax revenues contributed by
the industry that built energy infrastructure in our region.
Despite the fact that there are significant known energy resources
in Alaska that could contribute significantly to both domestic oil and
gas production and the continued livelihood of Alaska natives,
prospects lie fallow today because there is a near shutdown of new
onshore and offshore development. This is due at least in part to a
mixture of federal policy and land use decisions that have chilled
exploration and development. However, another significant disincentive
to development of these resources has been the reality that seemingly
every stage of every project has been and continues to be the subject
of administrative and legal challenges, brought by third parties whose
sole mission is to prevent further development in Alaska.
Recognizing that the responsible development of Indian energy
resources both serves the national interest and allows Indian tribes to
pursue greater economic development and self-sufficiency, we are
pleased to see that the legislation that is the subject of today's
hearing contains a mechanism that is designed to reduce the
uncertainties associated with such responsible development.
The mechanism would require that a party that seeks a preliminary
injunction or administrative stay regarding the issuance of permits,
licenses or other permissions for Indian energy projects post a bond in
support of that challenge. If the litigant ultimately fails to prevail
on the merits of the challenge, it would forfeit the bond in favor of
the permitting entity.
Currently, the risks and costs are all on the side of the sponsor
of an Indian energy project--we believe it would be more fair and
equitable to require a bond to be posted so that parties seeking to
challenge such projects are encouraged to more fully consider the
merits of a challenge and face some risk (similar to the risks faced by
the project developer) in challenging the projects. By balancing the
risks between those who seek to develop Indian energy projects and
those who seek to prevent those projects from being developed, we
believe that Congress would be removing one of the significant
disincentives that currently exists that has prevented greater energy
production from resources in Alaska, including on lands owned by Native
Corporations.
Similarly, we believe that the manner in which courts have awarded
attorneys' fees to litigants under the Equal Access to Justice Act is
skewing the litigation process, particularly where attorneys' fees are
awarded even in cases where there is no final judgment for the litigant
challenging the project. This provides an inequitable incentive for
such litigants to file challenges to every proposed project. In light
of the trend towards awarding attorneys' fees in all but the rarest of
cases, we believe that it is necessary (and equitable) to remove this
financial incentive to challenge every step of every Indian energy
project.
We further suggest expanding the language to include mining, or in
a more general sense, natural resource development projects on or near
Native lands.
Please note that we are not advocating for, nor do we favor,
attempts to restrict parties from legitimate challenges to projects
that do not adhere to applicable federal and state requirements.
Indeed, we have been very involved in ensuring that energy exploration
and development on the North Slope and elsewhere in Alaska does not
adversely impact the subsistence lifestyle of our Inupiaq shareholders.
We have pushed project developers to implement extra measures to avoid
conflict with our subsistence hunters, and we do not want to limit our
ability to challenge projects that fail to meet regulatory requirements
designed to ensure that such projects do not adversely impact our
Inupiaq shareholders, their subsistence lifestyle, or their cultural
resources. We believe that the legislation strikes an appropriate
balance in terms of the risks and costs of Indian energy projects by
removing incentives for filing meritless challenges designed simply to
delay those projects, while preserving the right to bring meritorious
challenges.
In conclusion, it is important to remember that the North Slope of
Alaska is the place that our people have called home since time
immemorial. The North Slope Inupiat community subsists off the land and
the sea that continue to provide the resources that support our
survival. In addition to the substantial potential value that
responsible development of the area's natural resources holds for our
people, the land and its resources are essential to our subsistence way
of life.
Congress must take a leadership role in developing sound energy
policy for our nation. The federal government continues to send mixed
messages about domestic energy production, and now is the time for
Congress to act in the best interests of Americans with respect to
domestic energy and energy supply. Energy developed from resources that
are located on Indian land, including land owned by Native Corporations
under ANCSA, can play a substantial role in domestic energy production,
and Congress should do everything in its power to ensure that such
resources can be safely and responsibly developed, and without undue
delay. ASRC stands ready to be part of the domestic energy supply
solution for Congress.
We find that our community survival depends on continued energy
production from our region. Let me be clear, without development in our
region our communities will not survive. Thank you again, Committee
members, for allowing me to share our views regarding this important
legislation.
______

Mr. Gosar. Thank you.
Mr. King?

STATEMENT OF RANDALL KING, CHAIRMAN, SHINNECOCK NATION BOARD OF
TRUSTEES, SOUTHAMPTON, NEW YORK

Mr. King. Good afternoon, Chairman Young, Congressman
Gosar, Ranking Member Boren, and members of the Subcommittee.
My name is Randy King; I am the Chairman of the Shinnecock
Indian Nation Board of Trustees. Thank you for the opportunity
to testify today on H.R. 3973, the Native American Energy Act.
I must apologize in advance, due to tight travel
restrictions, if I have to leave early. I will have a wife soon
at the train station not knowing whether she is coming or
going, and I take full responsibility for that, for the record.
[Laughter.]
Mr. King. The Shinnecock Nation's Reservation is located in
Suffolk County, New York, on Long Island. We have lived on Long
Island as a self-governing nation exercising jurisdiction over
our land since time immemorial. Despite this long history, we
were only recently acknowledged by the Federal Government as a
Federally recognized Indian tribe. Federal acknowledgment opens
up new opportunities for us to provide for the critical needs
of our communities, including the development and management of
our energy resources.
Because the Nation's Reservation is geographically limited
and surrounded on three sides by water, we have an acute sense
of the growing threat of climate change, and the need to plan
for our energy future. Our energy planning includes developing
sustainable energy projects that will serve the immediate needs
of the nation, and longer-term adaptation that will be needed
in the face of climate change impacts over time.
In order to be self-sufficient, the Shinnecock people will
need reliable sources of energy, not just energy generation,
but also energy efficiency and weatherization measures that
will help us control energy costs. We are currently working on
a potential partnership with a local university, Stony Brook
University at Long Island Southampton Campus, to develop a
hydrokinetic project. Hydrokinetic power offers a clean,
reliable, domestic source of energy that could have far-
reaching benefits for all coastal communities. We hope that
this project will help diversify our economy, provide energy
experience for tribe members, and be a demonstration project
for others.
We support H.R. 3973 and believe that the bill is
consistent with our energy-planning goals. We specifically
support the bill's reforms to the appraisal process, the
environmental review process, and the creation of Indian energy
development offices. In addition to what is already in H.R.
3973, we ask that the Subcommittee include additional changes
needed for small coastal communities like ours.
First, we appreciate Chairman Young's work to support
hydrokinetic projects by cosponsoring another bill, H.R. 2994,
which will improve marine and hydrokinetic renewable energy
research and development. We request that the Subcommittee
consider including the provisions of H.R. 2994 in this Indian
energy bill. Or, if that is not possible, we ask that you work
with the bill's sponsors to ensure the tribes are included in
H.R. 2994, as eligible entities for grant funds to implement
hydrokinetic test facilities.
Second, the need for energy security and sound domestic
energy supply justifies an expedited fee to trust process for
tribal energy projects. This, however, does not negate or
resolve the current issues many tribal nations face in the wake
of the Carcieri Decision. We believe resolving the Carcieri
problem through adoption of a Carcieri fix will significantly
assist tribal nations in moving forward with social welfare and
economic development projects such as new, more efficient
housing and renewable energy projects.
Third, we aspire to make the President's executive order on
stewardship of the ocean, our coast, and Great Lakes a reality.
We plan to examine opportunities for development of ocean
energy technology. This would be a monumental step toward
energy security and conservation for the entire northeast
region. In order to be successful in this pursuit, we will need
the ability to permit such facilities and have access to
Federal programs and funds that promote the development of
offshore energy projects. We ask that the Subcommittee help to
make sure that tribes are included in programs and legislation
supporting offshore energy projects.
Fourth, we recommend that the Subcommittee ensure that
tribes are able to take advantage of renewable energy tax
credits. These tax credits have become essential to financing
renewable energy projects and lowering the cost of the energy
produced. Tribes need to be able to monetize these tax credits,
or share them with a private energy partner. Without the
ability to utilize renewable energy tax credits, tribes will be
priced out of the market.
Finally, the Nation supports many of the other suggestions
made by tribes at this hearing. Like many tribes, the Nation
wants to exercise self-determination over its energy resources.
To do this, we need Congress to reform laws that stand in our
way, include tribes in all Federal energy programs, and ensure
that tribes can exercise the full range of governmental
authorities needed to develop the physical and legal
infrastructure to support energy development.
I would like to thank Chairman Young, Congressman Gosar,
Ranking Member Boren, and members of the Subcommittee for the
opportunity to present this testimony on behalf of the Nation.
I am available to answer any questions.
Thank you.
[The prepared statement of Mr. King follows:]

Statement of The Honorable Randy King, Chairman,
Shinnecock Indian Nation

Good afternoon Chairman Young, Ranking Member Boren, and Members of
the Subcommittee on Indian and Alaska Native Affairs. My name is Randy
King. I am the Chairman of the Shinnecock Nation Board of Trustees.
Thank you for the opportunity to testify today on H.R. 3973, the Native
American Energy Act.
The Shinnecock Nation's Reservation is located within the
geographic boundaries of Suffolk County, New York--on Long Island. The
Nation has maintained its existence on Long Island as a self-governing
nation with a land base that it has exercised jurisdiction over since
time immemorial. Despite this long history, the Nation was only
recently acknowledged by the federal government. This circumstance has
resulted in a situation where the Nation bears all the burdens and
responsibilities of governing its land base without the support of
federal resources that other tribes utilize.
Federal acknowledgement opens up new opportunities for the Nation
to provide for the critical needs of its communities, including
implementation of energy development and efficiency measures. The
Nation is facing impacts from climate change, growing energy costs, and
the need to provide jobs for its members. In order to provide long-term
economic opportunities for our members, protect our Reservation
homelands, and address the imminent challenges of climate change, the
Nation must plan for its energy future. We have already begun by
partnering with local organizations, including Stony Brook University,
to develop and implement renewable energy projects that will benefit
both the Nation and the surrounding communities.
Since the Nation gained federal recognition status, it has worked
to build its sovereign capacity and self-governing infrastructure to
better serve its tribal members. The Nation now has the ability to
apply for federal grants to support and expand land use planning,
environmental protection, health and safety, energy sovereignty, and
economic self-sufficiency. Prior to now, the Nation has never been able
to take advantage of federal assistance programs that many tribes
utilize. The Nation plans to use this new opportunity to meet the needs
of its members in the area of energy development by examining options
for energy self-sufficiency, and economic development, including
training and jobs for tribal members, as well as energy efficiency
programs.
According to the economic characteristics data set from 2005-2009,
the U.S. Census Bureau reports that a significant portion of the tribal
membership is unemployed, underemployed, or in need of employment. This
percentage does not include tribal members who are living off the
Reservation, and want to come home to raise their families within their
traditional community. In 2003, more than 70 percent of the Shinnecock
citizens lived in Suffolk or Nassau County on Long Island or in one of
the boroughs of New York City, all approximately within a two-hour
drive of the Reservation. The Nation is faced with the challenge of
developing and promoting energy projects that will provide benefits to
all its members both on the Reservation and off. In order to meet this
challenge the Nation must be able to create and implement sustainable
energy projects that benefit the Reservation and surrounding area.
Because the Nation's Reservation is geographically limited and
surrounded on three sides by water, we have an acute sense of the
growing threat of climate change and the need to plan for our energy
future.
The Nation's energy planning includes developing sustainable energy
projects that will serve the immediate needs of the Nation, and longer
term adaptive measures that will be needed in the face of climate
change impacts over time. Energy independence will play a critical role
in meeting these challenges. In order to be self-sufficient and
sustainable as a Nation, the Shinnecock people will need to have sound
reliable sources of energy. This includes not just generation
resources, but also energy efficiency and weatherization measures that
will help the Nation control energy costs for itself and its members.
Environmentally sound energy development and the promotion of
tribal energy sustainability would dramatically and positively impact
the Shinnecock tribal economy by creating revenue through the sales of
clean energy and, potentially, carbon credits, into the regional
economy. Our effort to gain energy independence would promote the long-
term security of our communities, provide a major regional economic
boost, and provide a test-case in clean energy development that can
assist the Department of the Interior (DOI), the Department of Energy
(DOE), and other tribal communities seeking examples of successful
tribal energy management and renewable energy development.
The Nation intends to implement its energy planning through a
potential partnership with Stony Brook University's Southampton Campus
to develop a hydrokinetic project. This project would allow a research
facility to be put in place off the coast of the Nation's Reservation.
Tribal members and the University will be able to gain practical
engineering experience and electric market experience in the
development of the project. Hydrokinetic power offers a clean reliable
domestic source of energy that could have far reaching benefits not
only for Shinnecock, but for all coastal communities.
The Tribe supports H.R. 3973. Promoting Indian energy and tribal
management of energy resources is consistent with the Nation's energy
planning and goals described above. The Nation specifically supports
the bill's reforms to the appraisal process, the environmental review
process and the creation of Indian Energy Development Offices. In
addition to what is already in H.R. 3973, the Nation requests that the
Subcommittee include additional changes needed to overcome barriers to
Indian energy development.
As a newly acknowledged tribe, the Shinnecock Nation needs support
for land into trust, tribal permitting processes, and restructuring of
renewable tax credits. We ask the Subcommittee to consider including
provisions for incentives for development of offshore technologies, and
an expedited fee to trust process for lands where energy projects are
intended to be developed. Below, we provide some specific examples of
how these changes in law and additional tools for tribal governments
would help us manage our energy resources and provide long-term
economic resources for our communities.
First, the Nation appreciates Chairman Young's work to support
hydrokinetic projects by co-sponsoring another bill, H.R. 2994, which
will improve marine and hydrokinetic renewable energy research and
development. The Nation requests that the Subcommittee consider
including the provisions of H.R. 2994 it this Indian energy bill. Or,
if that is not possible, the Nation asks that the Subcommittee work
with the bill's sponsor, Congressman Inslee, to ensure that tribes are
included as eligible entities for grant funds to implement hydrokinetic
test facilities. Currently, H.R. 2994 does not include tribes as an
eligible entity. The Nation request that the legislation be amended to
include federally recognized tribes so that the Nation has an equal
opportunity to apply for such funding and participate with other
entities on Long Island as an equal partner for implementation of this
important project.
Second, the Nation also has an opportunity to purchase a tract of
land on eastern Long Island that could be utilized for the development
of a solar power facility that would bring clean and reliable energy to
Long Island. Currently, there are transmission constraints on Long
Island that have impacted the ability for the eastern end of the Island
to have reliable power. The Nation's plan to acquire the lands and
develop a solar facility on eastern Long Island would help meet New
York State's renewable portfolio standard and also provide local power
without the constraints of wheeling power from other areas which would
promote the reliability of electricity for the Nation and Long Island.
In addition, this potential project is consistent with Governor
Cuomo's Energy Highway concept as it creates new clean sources of power
to meet the needs of Downstate New York, while providing skilled jobs
for tribal members and revenue for the Nation. This provides a win-win
for both the Nation and the state of New York, allowing for a
beneficial partnership that can be built on for future tribal energy
projects in New York. However, in order to move forward with the
proposed solar project the Nation will need to acquire the land and
have it placed into trust. The Nation recommends including legislation
in this bill that would require the DOI to expedite fee to trust
applications for tribal energy projects.
Third, the Subcommittee should consider exemptions from DOI
approvals for energy projects in Indian country. As an alternative to
DOI approvals, tribes could conduct their own environmental review and
approval programs. While the Tribal Energy Resource Agreement
provisions of the 2005 Energy Policy Act already allow tribes to do
this, not every tribe has the resources to develop a TERA application.
Every tribe is at a different place it is capacity to oversee energy
projects and alternatives should be available for tribes to take over
some DOI approvals, but not necessarily the whole program.
Fourth, the Nation aspires to make President Barack Obama's
Executive Order on ``Stewardship of the Ocean, Our Coasts and the Great
Lakes'' a reality and plans to examine its opportunities for
development of ocean energy technology, which will be a monumental step
towards energy security and conservation for the entire Northeast
Region. In order to be successful in this pursuit, the Nation will need
to have the ability to permit such facilities, and have access to
federal programs and funds that promote the development of offshore
energy projects.
On July 19, 2010, President Obama signed the Executive Order and
established a National Ocean Policy to ensure the United States'
coasts, oceans and lakes are ``healthy and resilient, safe and
productive. . .so as to promote the well-being, prosperity, and
security of present and future generations.'' Exec. Order No. 13547,
Sec. 2. The Executive Order contemplates direct participation by tribal
officials in the promotion of this policy, as well as tribal
collaboration with state and Federal officials, with the goal of
developing and implementing regional coastal and marine spatial
planning that includes assessment and consideration of offshore
renewable energy technologies.
The Nation intends to participate in the process, and pursue the
potential for clean renewable ocean energy development; including both
the aforementioned hydrokinetic project, as well as examining the
potential for offshore wind projects. The Nation asks that the
Subcommittee help to make sure that tribes are included in programs and
legislation supporting offshore energy projects.
Fifth, the Nation looks to the Subcommittee and Congress for
support in the development and implementation of sound energy policies
that will be able to promote environmentally friendly energy resources,
and economic opportunities. An environmentally sound and predictable
order for development on the reservation allows the Nation to move
forward with implementation of much needed energy projects, and, in
turn, provides certainty for those considering investing in the Nation
from an economic stand point, as well as for government agencies
considering awards to the Nation for energy programs.
The Nation has struggled for more than three decades for its
rightful place as a federally recognized Indian tribe, it now needs to
focus on the long term sustainable development of tribal resources. It
is critical that Congress adopt policies that will allow for Indian
tribes to meet our long term goals by ensuring that federal programs
designed to promote development of renewable power projects include
Indian tribes as beneficiaries, and that policies supporting tribal
permitting of such projects on tribal land be in place.
The Nation is confident that tribal members and the surrounding
communities will mutually benefit from environmental conservation,
economic self-sufficiency and job creation that would come from a more
streamlined tribal permitting process, expedited fee to trust
applications for energy projects, and full access to grants, loan
guarantees and tax credits used to advance energy technology and
promote energy development. The Nation believes that the renewable
energy mandatory purchase requirements of state and federal agencies
are only going to increase. The Nation hopes to be a part of this
growing market while at the same time promoting environmentally
positive energy resources, as well as providing resources to assist
coastal communities in climate change adaption measures.
Fifth, as the Nation increases its energy activities, our tribal
government will need to use the same tax revenues as other governments
use to staff our energy programs, finance energy projects, and oversee
tribal infrastructure. The bill should also ensure that tribes can
raise needed tax revenues. Without tax revenues we will not be able to
develop the infrastructure necessary to manage and oversee our energy
resources.
Sixth, tribes also need to be able to take advantage of renewable
energy tax credits. These tax credits have become essential to
financing renewable energy projects and lowering the cost of the energy
produced. Tribes need to be able to monetize these tax credits or share
them with a private energy partner. Without the ability to utilize
renewable energy tax credits tribes will be priced out of the market.
Seventh, the bill should open up federal energy efficiency and
weatherization programs to tribal participation. For decades the
federal government has helped state governments manage their energy
costs by providing around $50 million a year in energy efficiency
funding. Tribal governments need the same support.
The bill should also require the DOE to send weatherization funding
directly to tribal governments. Currently, DOE sends the money to state
non-profits and tribes barely see a dime. DOE does not even know how
much funding tribes receive. This funding should go to those who need
it most, but for decades DOE has ignored the needs of reservation
homes.
Finally, we support many of the other suggestions made by tribes at
this hearing. Like many tribes, the Nation wants to exercise self-
determination over its energy resources. To do this, we need Congress
to reform laws that stand in our way, include tribes in all federal
energy programs, and ensure that tribes can exercise the full range of
governmental authorities needed to develop the physical and legal
infrastructure to support energy development.
I would like to thank Chairman Young, Ranking Member Boren and
members of the Subcommittee for the opportunity to present this
testimony on behalf of the Nation.
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Mr. Gosar. Chairman King, thank you very much, and I know
you have to run. I know that feeling.
At this time I would like to acknowledge Mr. Groen.
Mr. Groen?

STATEMENT OF WILSON GROEN, PRESIDENT AND CEO, NAVAJO NATION OIL
AND GAS COMPANY EXPLORATION AND PRODUCTION (ARIZONA/NEW MEXICO/
UTAH), WINDOW ROCK, ARIZONA

Mr. Groen. Thank you, Chairman Young, Congressman Gosar,
Ranking Member Boren, other distinguished members. I am Wilson
Groen, President and CEO of Navajo Nation Oil and Gas Company.
Accompanying me today is Louis Denetsosie, our General Counsel,
former Attorney General for the Navajo Nation, and the first
Chairman and President of Navajo Oil and Gas.
Again, I want to thank----
Mr. Gosar. Can you pull that microphone closer to you, so
we can all hear?
Mr. Groen. OK.
Mr. Gosar. There you go.
Mr. Groen. That better? OK. We again want to thank Chairman
Young and all those present for their support of this bill. We
feel it is a very positive step forward, as we move forward
with energy development in Indian Country.
Navajo Oil and Gas is a for-profit energy corporation that
was formed to reacquire, develop, and optimize the value of the
Nation's energy resources, and to do these in an efficient,
sustainable, and environmentally and culturally sensitive
manner. I want to stress that. Because that is what we feel is
critical, not only the development of it but the environmental
and cultural sensitivity.
As you know, the Nation is larger than the State of West
Virginia. It has vast oil and gas, helium, wind, coal, solar
resources. On your right is a map showing the size of the
Nation. The Nation is--an NNOGC--is in a robust growth mode. It
has returned significant royalty, taxes, right-of-way, and
lease payments to the Navajo Nation. We also support an active
scholarship program for the development of the Navajo Nation
students. And the future of our company is the Navajo Nation
people itself.
On the Navajo Nation's production, oil was discovered back
in the 1920s on the Navajo Nation lands. In the 1950s, one of
the largest oil fields in the lower 48 states was discovered,
Aneth Field. The graph that you see on your left shows in the
mid-1990s a very rapid decline.
There is a 6 to 10 percent decline in the oil production
from the Nation. The flattening that you see that starts in
2004 and the subsequent increase, is a result of Navajo Oil and
Gas, in coordination with Resolute Energy acquiring the
properties from major oil companies, putting significant
resources into that, and then now moving forward toward--in
flattening that decline and moving it toward increased
production on the Nation. This is all very critical to the
overall Nation's energy self-sufficiency and the economic
development of the Nation.
As we move forward on to the development of these, how do
we develop our Nation's resources and accelerate this economic
growth, become a self-sustainable Nation? The energy
development is the key to this. The Nation's general revenue
fund, nearly all, probably 90-plus percent of it, comes from
energy-related sources: royalty, taxes, and other type of
benefits.
We strongly support the Native American Energy Act, and our
focus is actually on Section 11 of that, and it will very
clearly help us reduce the Federal interference and the
duplication and oversight of Federal agencies from the Navajo
Nation agencies.
The Nation has a very extensive and well-founded energy
program in which we have an environmental protection agency,
historic preservation, fish and wildlife, and a minerals
department. H.R. 3973 will help us continue this growth of the
company, and will extend and accelerate our ability to develop
economic resources of the Nation.
We again thank Chairman Young, and Congressmen Boren and
Gosar.
We appreciate your leadership and support of this energy
effort. And we do think it will continue to lead to self-
sufficiency of the Navajo Nation. Thank you.
[The prepared statement of Mr. Groen follows:]

Statement of Wilson Groen, President & Chief Executive Officer,
Navajo Nation Oil and Gas Exploration and Production

Introduction
Good afternoon Chairman Young, Ranking Member Boren, Congressman
Gosar and members of this distinguished Subcommittee.
My name is Wilson Groen and I am the President and Chief Executive
Officer of the Navajo Nation Oil and Gas Exploration and Production
(NNOGC), an oil and gas exploration, development and distribution
company wholly-owned by the Navajo Nation.
I want to thank Chairman Young, Ranking Member Boren, and our
Congressman, Paul Gosar, for consulting with tribal leaders and experts
in the energy sector in the development and introduction of H.R. 3973.
I would also like to thank the Chairman and Ranking Member for the
February 8, 2012 letter to Secretary Salazar calling his attention to
the fact that the Bureau of Land Management's proposed hydraulic
fracturing regulation will provide additional, harmful and unnecessary
regulatory burdens on energy producers in Indian Country on top of
those already in place.
History of the NNOGC
The Zah/Plummer administration issued the Navajo Nation Energy
Policy (Energy Policy) in January 1992. The Energy Policy was
formulated with input from energy specialists, environmentalists,
economic development specialists, lawyers, and political leaders of the
Navajo Nation. The Energy Policy observed that the Navajo Nation was
resource rich, but that it was neither obtaining proper value for its
minerals nor, more importantly, participating in the energy industry as
a business owner. The oil and gas leases issued by the BIA had
relegated the Navajo Nation to the role as passive lessor, and that
needed to be changed.
NNOGC is a direct outgrowth of the 1992 Energy Policy. The Navajo
Nation Council created the Navajo Nation Oil and Gas Company, Inc., in
1993 as a tribal corporation for the purpose of engaging in oil and gas
production as an integrated, for-profit business entity. The goal of
the Council was to address the minimal values accruing to the Nation
from oil and gas production on Navajo Nation trust lands.
NNOGC received $500,000 in start-up capital from the Navajo Nation
Division of Economic Development and, with a three-year grant from the
BIA, produced a comprehensive business plan which initially
concentrated on so-called ``downstream'' activities--service stations
and convenience stores--and on increasing revenues to the Nation by
taking oil royalties ``in kind'' and marketing that oil at better
prices than by the Nation's lessees.
Since its creation, NNOGC has acquired and now operates an 87-mile
crude oil pipeline, acquired and is continuing to acquire significant
oil and gas working interests in the Greater Aneth, Utah, oil fields,
and expanded its retail and wholesale business. While NNOGC is still in
a robust growth mode, it has returned significant royalty payments,
taxes, right-of-way payments, lease payments, scholarships and other
contributions to the Navajo Nation and host communities, which these
entities use to provide employment and services to the Navajo People.
NNOGC commenced operations in 1995, building two Chevron stations
in Window Rock and Kayenta and acquiring another at Chinle. NNOGC
immediately elevated the standards of service and cleanliness for
stations on the Reservation; some stations did not even have toilets
for the employees, much less the traveling public. Because of the
favorable decision in Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S.
450 (1995), NNOGC was able to lawfully bring gasoline into the Navajo
Nation without State gasoline excise taxes, and NNOGC became the
distributor of choice on the Reservation. NNOGC then purchased crude
oil gathering and transmission pipelines when the right-of-way for
those lines was about to expire. Those activities made NNOGC profitable
and increased revenues to the Nation significantly.
After the Internal Revenue Service issued Revenue Ruling 94-16, it
became clear to NNOGC that it should operate as a Federal corporation
chartered under section 17 of the Indian Reorganization Act, as
amended. The Navajo Nation Council petitioned the Secretary of the
Interior for such a charter by Resolution in January 1997, and the
Secretary issued the charter in December 1997. The Council ratified
that charter by unanimous vote in February 1998. The Navajo-chartered
corporation merged into the new Federal corporation shortly thereafter.
The State of Arizona sought a fuel excise tax agreement with the
Nation. NNOGC negotiated that agreement on behalf of the Nation, and it
has proved valuable to both the State and the Navajo Nation, which now
retains 96.5% of those taxes and devotes that money to road
construction and maintenance. While NNOGC lost its competitive
advantage after the tax-sharing agreement was signed, the Council
allocated Navajo funds to launch NNOGC into the ``upstream''
(exploration and production) part of the business.
NNOGC's Oil and Gas Production
From 1998 to 2004, oil and gas production on Navajo lands in
southeastern Utah had been in decline from 6% to 10% annually. Since
then, NNOGC, in partnership with Resolute Energy Corporation
(``Resolute''), has improved production levels and enhanced oil and gas
recovery and the Nation is enjoying an increase in annual production,
and consequently oil and gas royalty revenues. It is critical to the
development of a sustained Navajo Nation economy to continue oil and
gas resource development on Navajo lands. Approval of the proposed
amendments to 25 U.S.C. Sec. 415(e) will increase the likelihood that a
sustainable reservation economy can be achieved.
NNOGC and Resolute have now reversed the decline curve, and
production from the Aneth Field has actually increased. The investments
of NNOGC and Resolute have had other benefits, including increasing
employment and adding to economic prosperity in the Four Corners Area.
NNOGC, often with industry partners, is also leasing and developing
additional tracts of land within and near the Navajo Reservation. NNOGC
has recently partnered with another company to develop oil and gas
reserves in Montana. NNOGC has also obtained rights to 150,000 acres of
land within the Navajo Nation to develop coal bed methane, oil and
conventional gas resources. NNOGC is also exploring the feasibility of
developing helium reserves on the Reservation. All of this activity
contributes not only to the self-sufficiency of the Navajo Nation, but
also to the energy security of the United States.
NNOGC has expanded from its main office near Window Rock, Arizona,
with an exploration and development office in Denver. NNOGC's generous
scholarship program seeks to educate and train capable Navajo students
who want to participate in this dynamic field at the highest levels.
NNOGC has returned significant royalty payments, taxes, right-of-way
payments, rentals, bonuses, scholarships and other contributions to the
Navajo Nation and our host communities, and that money is devoted to
essential governmental services by the Nation.
NNOGC's continued growth is critical to the development of a
sustained Navajo Nation economy. Approval of the amendments to 25
U.S.C. Sec. 415(e) as contained in section 11 of the ''Native American
Energy Act'' will facilitate that growth and encourage Navajo self-
determination by removing federal delays and unnecessary obstacles from
the process.
Comments on ``The Native American Energy Act''
The NNOGC fully supports the objectives of the bill, namely to
eliminate or reduce undue Federal interference in tribal energy
resource development, strengthen tribal self determination, and boost
energy resource production on Indian lands. We support the provisions
of the bill and, in particular, believe the following sections will go
a long way to achieve these objectives.
Section 3 of H.R. 3973 amends existing law to reform the costly and
inflexible appraisal process and places a 30-day limit on the Interior
Secretary's review and approval (or disapproval) of the appraisal. This
section also authorizes tribes to waive the appraisal requirement,
provided it releases the United States from liability for damages as a
result of the lack of an appraisal.
Section 5 amends the existing law to reform the environmental
review process triggered under the National Environmental Policy Act by
limiting the distribution of required environmental documents to
members of the relevant Indian tribe and other individuals residing
``within the affected area.'' We believe this language will serve to
reduce often-frivolous challenges made to energy projects on Indian
lands.
Section 6 of the legislation would direct the Secretary to
establish 5 ``Indian Energy Development Offices'' to (1) provide
energy-related information and resources to tribes and tribal members;
(2) coordinate meetings and outreach among tribes, tribal members,
energy companies, and relevant governmental agencies; (3) oversee the
timely processing of energy applications, permits, licenses, and other
documents subject to development, review or processing by specifically
named Federal agencies; and (4) consult with Indian tribes to determine
what services, information, facilities or programs would best expedite
the responsible development of energy resources.
We understand the objectives of section 6 but, as far as the Navajo
Nation and the NNOGC are concerned, believe a more effective option is
that included in section 11 of H.R. 3973.
As the Subcommittee knows, there is a long list of impediments to
energy resource development on Indian lands. The NNOGC supports section
7 of the bill which will eliminate some of the financial challenges and
prohibits the Secretary, from collecting any fee (1) for applications
for permits to drill; (2) to conduct any oil or gas inspection
activity; or (3) on any oil or gas lease for nonproducing acreage.
Just as section 5 would reform the NEPA process, section 8 will
provide disincentives to those who would challenge energy projects on
Indian lands by requiring the posting of surety bonds and payment of
attorneys fees if the challenge is solely for purposes of frustrating
such energy projects. The NNOGC supports this section and believes it,
will level the playing field when it comes to frivolous lawsuits and
dilatory administrative tactics that prevent energy projects from being
pursued in Indian Country.
Likewise, the NNOGC supports sections 9 and 10 which will,
establish a Tribal Biomass Demonstration Project, and provide that
tribal resource management plans approved by the Secretary shall be
considered ``sustainable management practices'' for purposes of any
Federal standard, benefit or requirement that requires a demonstration
of such sustainability.
In close collaboration with the Navajo Nation, the NNOGC is
appreciative of the inclusion of section 11 in H.R. 3973. We are also
very appreciative of the strong support we have received from
Congressman Paul Gosar.
Section 11. Leases of Restricted Lands for the Navajo Nation
In 2000, the Navajo Nation requested Congress to amend the Long
Term Leasing Act (25 U.S.C. Sec. 415) to authorize Nation to develop
and execute its own business, home-site, agricultural and other leases
without the approval of the Interior Secretary. The Nation made this
request because member-owned businesses were not developing on tribal
lands due to the overlay of tribal and Federal authority in granting
business leases and other barriers such as bonding requirements,
requirements for appraisals, and delays in lease processing and
obtaining financing.
The Congress responded by adopting 25 U.S.C. section 415(e)--the
Navajo Nation Surface Leasing Act--which authorizes the Navajo Nation
to execute its own leases without Federal approval, provided that the
leases are issued pursuant to regulations approved by the Secretary and
leases are limited to 25 years, subject to a right of renewal.
The 25-year limitation has hindered financing of improvements and
thus discouraged long-term investment in the business site leases, and
the Navajo Nation Council has, by resolution, requested that this
limitation be removed and that the Nation be permitted to issue such
leases with terms of up to 99 years, as is permitted on other
reservations and was permitted on the Navajo Reservation when Congress
passed the Navajo Nation Surface Leasing Act in 2000.
The Nation has promulgated leasing regulations, approved by the
Secretary, and has been operating its own surface leasing regime
without event for approximately seven years. All business site leases
require surveys, geo-tech studies, archaeological clearances, and
environmental assessment taking into account the impacts on the natural
and human environment pursuant to the Navajo Nation's business leasing
and environmental laws. The various agencies and offices of the Navajo
Nation, which are the most advanced in Indian Country, have more than
ten years experience in performing these studies and assuring
regulatory compliance. The Navajo Nation successfully manages the
Navajo Nation Environmental Protection Agency, Department of Historic
Preservation, Fish and Wildlife Department, the Minerals Department,
and the Navajo Land Department.Section 11 of H.R. 3973 would continue
to advance Navajo Nation self-determination and self-sufficiency by
amending the Nation's leasing authority to permit business and
agricultural and other surface leases for terms up to 99 years, and by
further amending 25 U.S.C. Sec. 415(e) to provide the Navajo Nation the
ability to execute mineral leases, again, under the regulations
approved by the Secretary of the Interior, for a term of 25 years, and
potential renewal for an additional term of 25 years, the customary
terms of minerals agreements approved by the Navajo Nation Council
since approximately 1985.
Conclusion
In conclusion, I want to thank Chairman Young, Ranking Member
Boren, and Congressman Gosar for their leadership and vision in
developing and introducing ``The Native Energy Act.''
It is our hope that the Subcommittee and the Full Committee on
Resources will quickly and favorably report this important legislation
to the House Floor for its consideration.
At this juncture, I would be happy to answer any questions you
have.

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[GRAPHIC] [TIFF OMITTED] T2944.003

Mr. Gosar. I thank you all for your testimony. We are going
to go to the questioning aspect. We are going to try to keep it
to five minutes. But if Members have more questions, we can go
to a second round.
We are going to go to the Ranking Member, Mr. Boren, who
has got to leave.
Mr. Boren. OK. Thank you very much, Mr. Chairman. I have a
couple comments, and then just a few questions. Ms. Sweeney,
thank you for traveling so far. And I know you are going to be
getting back on another plane again is what my sources tell me.
And so thank you for traveling so far. And I have been on that
flight, and I know the Chairman has, many a time. So thank you
for being here.
Mr. Fox, please give Mr. Hall our best. He is one of my
favorites, with the big old cowboy hat and everything. And he
is a great guy.
Mr. Groen, I want to talk or ask you a couple questions
about the Navajo Nation and in regards to hydraulic fracturing.
You mentioned that there was some oil production on these
lands. There is also a lot of natural gas activity going on.
And let me ask you. What would happen if Secretary Salazar, you
know, whoever it may be, says, ``We are just going to stop
fracking on these lands''? Would there be a steep drop-off?
First question.
And of course, I think fracking is a very useful tool, but
that is the first question. The second question is, you know, a
lot of tribes--you know, we have tribes, as an example, in
Oklahoma, the Osage Nation, who has been very good at, you
know, producing its resources. We are not a reservation-state,
but let me ask you this. Do you all have the infrastructure and
the governmental capacity to administer the sub-surface leasing
program?
You know, obviously, not all tribes are alike. Some are
larger, some are smaller. Do you all have the infrastructure to
do that, currently? And that is--you know, as we talk about
self-determination and a lot of other things, the Chairman, as
he crafts this bill--do you all have that capability? It would
be interesting to see if you all do have that.
And then also, we would love to hear your thoughts on
fracking.
Mr. Groen. Thank you, Congressman Boren. First off, the
extensive hydraulic fracturing that is going on in the Bakken
area and so on is not extensively used on the Nation at this
particular point. We do fracking in the Aneth Field, and it has
been an ongoing practice for some time. And some of the peeks
that you see in that curve are when some of that new technology
was applied.
Having said that, we are in the process of developing a new
play which has many similarities to the Bakken. And these
restrictions would have a very negative impact on going forward
with this play development. It is referred to as the Mancos
Shale. So yes, there would be.
The Navajo Nation has a very extensive regulatory
department. They have their own environmental protection
agency. It has primacy in a number of issues in air and water-
related activities. They also regulate the underground
injections programs, they oversee some of that. Additionally,
we have fish and wildlife, historic preservation, cultural
sensitivity, and minerals departments that are fairly extensive
and well-established departments. They have been around for
many years, so I do believe the Nation has that regulatory
capacity.
Mr. Boren. Thank you. That is a great response, and good to
hear. And with that I yield back, Mr. Chairman.
Mr. Gosar. At this time I would recognize the Chairman of
the Committee, Mr. Young.
Mr. Young. Thank you, Mr. Chairman. How do you like that,
Mr. Chairman? You like that pretty good?
[Laughter.]
Mr. Young. I want to thank all the witnesses. And, Mr.
King, do me a favor--you got good legal people around you--
about tax credits. If you are a Nation, why couldn't you offer
those credits yourselves to the interested people in Kinetic
Energy, et cetera? That is the thing. I understand what you are
trying to do, but you are still dealing with the Federal
Government. And I would prefer, if you possibly could, do it
within your own organization or your own tribe.
Mr. King. With self-determination, tribes want to be in
charge of their own projects. And, you know, we want to be able
to have options in how we finance these projects. Tribes want
to be able to collect tax credits, and to have ownership
options of these projects. These tax incentives can reduce the
cost of projects by up to 30 percent. Tribes, as government or
non-profit entities, cannot currently take advantage of these
incentives. The Indian energy bill must include provisions that
allow for tribes to monetize these incentives to allow for an
even playing field for energy development in Indian Country.
Mr. Young. You are getting to where I want to. You want to
have that ability.
Mr. King. Yes.
Mr. Young. You don't want tax credit from the Federal
Government; you want the ability of the tribes to issue the tax
credits to anybody who wants to invest in resources on your
land.
Mr. King. Correct.
Mr. Young. OK, and that is something I support. I say this
without any hesitation.
The key to this, and the reason for this bill, is the
impediment of the Federal Government, including, by the way,
the environmental thing--and I appreciate the Navajo tribe--you
can reach all the same standards, but you don't have to wait
for all the permits and all the studies and all the possible
lawsuits. And I don't know who is a lawyer out there. Can a
Nation be sued? Anybody know that?
Mr. King. We have sovereign immunity from----
Mr. Young. So you can't be sued. So as long as you meet the
standards--that keeps the bird dogs off our back--then there
shouldn't be any reason why this wouldn't go forth. And that--
the tenant of this whole bill is about--and I am--thank you,
because we are going to try to expand it to all resource
development, just not energy, because I think that is the right
thing. If someone can sue the agency--you see, that is--they
don't sue you. They sue the agency that supposedly has to issue
the permit, which delays the ability to develop your resources.
It is a delaying tactic, they are famous about that.
So, if you have the right, you can't be sued, you have
sovereign immunity, and you can go--keep the standards
themselves, they can't sue you but it keeps the bird dogs off
your back about, you know, you are not meeting the standards,
you are trying to cheat the standards, but you can move the
project forward--the delay factor is what killed most of our
projects, you know. I just--little comment about that.
And I do appreciate you all. And Tara, how is your movie
going?
Ms. Sweeney. Fine.
Mr. Young. It is going fine. Her son is in a movie. And if
you haven't seen it, go. It is called ``The Big Miracle.'' It
is really a good show. And it is about whales in Alaska and all
these other good things. You will enjoy it, by the way.
I don't have any other questions at this time. I will in a
moment. So go to the other candidates, please.
Mr. Gosar. Mr. Faleomavaega?
Mr. Faleomavaega. Thank you, Mr. Chairman. I--first of all,
I do want to commend Chairman Young for introducing--developing
this piece of legislation. And I would like to include my name
as a cosponsor of this bill, as we move forward, hopefully, to
get it out of the Committee and on to the House Floor.
I also would like to tell Mr. Fox to please do extend my
regards also to Tex when you get back to see him, and give him
my regards.
It is very unfortunate that we are not able to get a member
of the Administration to come and testify, because I believe
that they should be here. And for some reason or another I
don't know why they are not here. But I sincerely hope, Mr.
Chairman, that we will continue to make this effort to get the
Administration to participate, because it is very critical that
we need to know their position, and what they have taken to
resolve some of these difficult problems that we have with our
Indians.
I was just curious if any of the member--representatives of
these tribes are members of the Council on Energy Resources
Tribes. That is based out of Colorado. I don't know if--are any
of you affiliated with this--I think it is composed of about 39
tribes that have energy-related resources. I was just curious.
Mr. Fox, are you----
Mr. Fox. We were at one time. And I believe it has
transferred over to COLT. There is also COLT, also. But Council
of Energy Resource Tribes is, I believe, no longer existing.
Mr. Faleomavaega. I noticed with interest, too, that we
have the involvement of both the Department of the Interior and
the Department of Energy involved in energy-related issues for
our Indian tribes. Do you see that sometimes that, having to
deal with both of these agencies, there seem to be duplication
of efforts in this regard? Has it been your experience to find
that you go to the Interior Department and they refer you to
the Department of Energy? Are you getting the runaround from
both of these agencies in the process?
[No response.]
Mr. Faleomavaega. I am just asking generally to any members
of the panel to respond.
Mr. Young. Will the gentleman yield for a moment?
Mr. Faleomavaega. I gladly yield to----
Mr. Young. Mr. King, you are excused if you wish to go. You
are sitting there getting a little nervous, so--I think you
are.
[Laughter.]
Mr. Young. Remember, I know who runs the ship around here,
and it is the lady friend.
Mr. King. My wife thanks you.
[Laughter.]
Mr. Faleomavaega. Here is what I am trying to get to. And
obviously, what we are trying to resolve here is just the
simple bureaucratic layers and layers of things that you have
to go through, and the process.
We had a hearing, Mr. Chairman, as you recall, about two
months ago. After 10 years, a tribe from Oklahoma is still
getting the runaround in trying to get permits and trying to
get approval of the process. And I just wanted just to get a
sense from all of you. Do I understand that all of you have
this common experience? You are getting the bureaucratic run-
around, period. And you are simply asking not only to simplify,
but to make the process work, practical, and it resolves your
issues and your problems. Tara?
Ms. Sweeney. That--yes, that is an accurate assessment.
We--there has been a project in Alaska that was subject to
significant regulatory delay. It is called the CD-5 project.
And it was a project that was widely supported by the city, the
tribe, the village corporation, the regional corporation, the
county government, and the State of Alaska. We generally never
agree at one juncture on widespread projects. It is tough to
find that agreement. We were all in agreement for the CD-5
project to go forward, and there was significant delay with
that project inside the Federal Government.
Mr. Faleomavaega. Anybody care to comment?
Mr. Fox. Yes----
Mr. Faleomavaega. Which--go ahead.
Ms. Cuch. Yes. I just wanted to reply on the Council of
Energy Resource Tribes. I believe the Ute tribe is--or I don't
know if we are still--member, if that organization still
exists. But we were a chartered member of the Council of Energy
Resource Tribes. We haven't heard too much about them, or we
haven't attended any of their meetings, so I don't know if they
are still in existence. But I understand they may be still
there.
I just wanted to comment that, yes, I believe the
permitting process is bureaucratic. It is a maze of Federal
agencies. And it takes 49 steps to obtain 1 permit. Indian
energy development offices would bring all of the agencies into
the same room, and would streamline processing, and that way it
could be--then we won't be, you know, be given the run-around.
Mr. Faleomavaega. Thank you, Mr. Chairman. Thank you.
Mr. Gosar. I am going to go ahead and I will acknowledge
myself for five minutes.
Mr. Groen, Navajo Nation, 20 years ago, made energy
development a key economic part of its economy. How important
are the revenues generated by Navajo Nation Oil and Gas, in
terms of the Navajo general fund?
Mr. Groen. Congressman, Gosar, thank you. The total energy-
related revenues to the Nation are nearly 100 percent. They
are--well over 90 percent of the general revenue funds come
from royalties, taxes, right-of-way fees, projects related to
that. And Navajo Oil and Gas themselves contribute to 10 to 15
percent or more of that total revenue. The other comes from
other energy companies, and our rate is rapidly increasing.
I may also comment that relative to the energy delays, our
very first Navajo Nation issues--what are called operating
agreements, not standard BIA leases--the first operating
agreement that the Council approved took over 400 days for BIA
approval. The more recent one was still approximately nine
months. These type of days, when the company paid out in excess
of $4 million to the Nation's general fund for the rights to
explore this land, are just economic--huge economic hurdles
that we have to overcome.
Mr. Gosar. I know that you are fully owned by the Navajo
Nation, and you have been experiencing some robust growth. Do
you have any plans to add employees to the Navajo Oil and Gas?
Mr. Groen. Yes. We are--in fact, we are in the process of
preparing our fiscal year budget which begins April 1st. And we
are looking at a 20 to 30 percent staff increase in the--for
the--just for our company at this time.
Mr. Gosar. Now, I know your core business right now is oil
and gas. What percentage oil and gas at this current time?
Mr. Groen. At this current time we are 90 percent oil, and
just a small percentage of gas. One of the things that the
Nation has besides--has vast energy resources. And one that is
very unique that we are in the process of working on developing
is helium resources, also. So the Nation has some of the
richest helium resources in the world, and we are working on
developing those, also.
Mr. Gosar. Any others, besides helium? Because you went
right into my next question.
Mr. Groen. CO2, because that is used in enhanced
oil recovery. That is one of the reasons that you see that
reverse of that production curve, is that we are injecting
CO2 into the ground. So the Nation has
CO2 resources, coal, wind, solar. Vast.
Mr. Gosar. Now, based on your experience with the Navajo
Nation and government, does the Nation have strong governmental
capacity sufficient to administer a sub-surface leasing
program?
Mr. Groen. Yes, I believe it does. You know, as I indicated
earlier, they have a very extensive environmental--in fact they
have recently passed a--something equivalent--and I think it is
stricter standards than the nation's CERCLA Superfund laws. So
they have that. They have primacy in water, air. So they have a
number of organizations that are well tested.
And from my personal experience, I worked in the region
since 1975. And in the 1980s they were very definitely--the
historical preservation office and the fish and wildlife were
already presenting detailed reviews of our projects before we
would do any surface disturbance. So they have a very--a long
history of supervision of these type of activities.
Mr. Gosar. In fact, if I remember, when I was there they
were orchestrating something like a project manager, so that
things weren't doing--you know, not seeing things in a linear
fashion. They were doing them all at the same time, if I am not
mistaken. Were they not?
Mr. Groen. Yes, that is right.
Mr. Gosar. Way ahead of the curve. My time is just up, and
I am going to acknowledge Mr. Lujan.
Mr. Lujan. Thank you very much, Mr. Chairman. Mr. Groen,
just for clarification, the Navajo Nation Oil and Gas Company
is privately owned, correct? It is not owned by the Navajo
Nation.
Mr. Groen. No, we are a Federal Section 17 corporation
wholly owned by the Navajo Nation.
Mr. Lujan. Very good. OK. With that being said, Mr.
Chairman--and I think that the Chairman touched on some of my
questions pertaining to the percentages of oil and gas, as
well--a couple of questions that I have outside of that scope
pertain to a rule that is currently being discussed through the
Department of the Interior, that they are reforming this notion
of a one-size-fits-all Federal leasing regulation for the 56
million surface acres the Federal Government holds in trust for
tribes and individual Indians to further encourage and speed up
economic development in Indian Country.
The proposed rule incorporates a number of the principles
in H.R. 3973 by establishing a separate, simplified process for
residential, business, and renewable energy development. The
proposed regulation incorporates many changes requested by
tribal leaders during extensive consultations over the past
year to better meet the goals of facilitating and expediting
the leasing process for trust lands. And BIA is expected to
publish the final rule in 2012.
So, my questions inherently are related to the two. With
some of the testimony that was given, would you be in favor of
H.R. 3973, if it meant expressly absolving the Federal
Government of its trust responsibility for tribes? And I would
ask Vice President Sweeney or Administrator Fox.
Mr. Fox. Just like our testimony that we have given for
Chairman Hall, a lot of the infrastructure that we have--that
is with the three affiliated tribes, or MHA Nation, we would
have the ability, but a lot of times we don't have the revenue
that is coming in to create that infrastructure that would
eliminate the Bureau of Indian Affairs.
Today, just for example----
Mr. Lujan. But specifically--because my time is running
out, and I apologize for----
Mr. Fox. OK.
Mr. Lujan [continuing]. For interrupting, Mr. Fox. If the
Federal Government absolved--if the trust responsibilities were
absolved, is that something you would support?
Mr. Fox. That is--you know, it all depends on what--you
know, the process we would have to go through. I think, you
know, it would have to go through our government, and maybe one
of the other ones could answer the question.
Mr. Lujan. Ms. Sweeney?
Ms. Sweeney. Thank you. The Federal Government's
relationship with Alaska Native corporations is very--is
different than the trust responsibility that tribes have with
the Department of the Interior, with the Federal Government in
general. So I am happy to provide background information about
the Alaska Native Claims Settlement Act and that relationship.
But the trust responsibility that tribes have as a
government-to-government relationship with the Federal
Government is very different than the relationship that----
Mr. Lujan. That is fair. And I am not suggesting that
Chairman Young's legislation would move in that direction. It
is a question that I had, just for clarification for the
Chairman.
The other question that I have is--and it was brought up
from the perspective of posting the bond with the concern
associated with litigation. My concern is this. Although
uranium hasn't been talked about today, and we talked about all
energy resources, I have a concern with something that happened
back in 1979 on the Navajo Nation with the Church Rock uranium
spill. It has been compared to Three Mile Island. It never got
the support or attention that Three Mile Island got, because we
were in a rural state. The clean-up still hasn't taken place.
We have people suffering from kidney disease and cancer
disease.
Myself, I have a piece of legislation called the Radiation
Exposure Compensation Act. Senator Udall has it in the U.S.
Senate. I still can't get cosponsors of that legislation here,
because they are concerned about the price tag of people that
are sick and have died because of that.
And I say that only that we need to be careful in our
approach. While I agree that we need to make sure we are
alleviating concerns where it doesn't make sense, for instance,
with utility easements, where you have a utility easement for
telephone and then you are going to go in and put--add
additional bandwidth or electrical services there, that you go
through another ridiculous process, but we also have to keep in
mind that when there is something bad that happens, we have to
make sure that the tribes are in a position to recoup what
needs to be done without having to post additional dollars
themselves, and that we can go and clean up what needs to be
cleaned up.
So, with that, Mr. Chairman, I yield back and I look
forward to the second round of questions.
Mr. Gosar. Mr. Chairman?
Mr. Young. I want to assure everybody there is no attempt
in this bill to lose the trust responsibility to the tribes. It
never has been. And I am sure the gentleman understands that.
There is the intent here to make sure that tribes have an
opportunity to fulfill the benefits of their lands for the
benefit of their tribal members without being impeded by 12
months, 16 months, 10 years of nonsense.
And being an agency that is being sued by an interest group
because the agency issued a permit to a tribe after four years,
this is not the way to go.
And Tara, I want to remind you, don't mention the numbers.
What was that project that was held up?
Ms. Sweeney. There have been several.
Mr. Young. That one project that you talked about. What was
it?
Ms. Sweeney. CD-5.
Mr. Young. Yes, I know, but what was it?
Ms. Sweeney. It is----
Mr. Young. What was the project?
Ms. Sweeney. It is a development project on Native lands
within the national----
Mr. Young. In fact, it was a bridge.
Ms. Sweeney. It was a bridge.
Mr. Young. Yes. Now, I have never understood--it was Native
land, they had the land here, and they owned the land over
here, and they owned the land in between. All they wanted to do
was build a bridge from one field to another field. And an
interest group came along and said, ``Oh, no. The alternative
to that is to put the so-called pipe 60 feet under the river
and bring it up on the other side,'' which is very nearly
impossible, terribly environmentally dangerous.
Yet it was Native land. This was not Federal land. But they
claimed, because the water flowed through their area--and then
they based it upon a view effect--I don't know how many of you
know what a ``view effect is.'' It disturbs the view. Now, who
in the world is going to see it to begin with, other than
people in--that is the only people who are going to see it. So
they stopped that project for, what, four years? Three years?
Ms. Sweeney. There was significant delay, yes.
Mr. Young. Yes. So that is what I am trying to avoid.
Chairman--how do you pronounce that, Olguin? OK. Are you
aware the Department of the Interior is drafting rules
regarding hydraulic fracturing on Federal lands, that the
Department's view in terms of Federal lands also means lands
held by trust to the tribes?
Yesterday an article reported that Secretary Salazar
defended the hydraulic fracturing rules--fracking rules on the
grounds that American people have the right to have their
public lands used in a responsible way. I interpret this to
mean the Secretary believes tribal lands are really public
lands that belong to all American people.
And I ask your view. Do you think tribes' lands are public
lands that belong to all American people? Anyone want to answer
that? Yes, sir.
Mr. Olguin. Yes. My last name is Olguin, just----
Mr. Young. Olguin?
Mr. Olguin. Yes.
Mr. Young. Olguin?
Mr. Olguin. Yes.
Mr. Young. OK.
Mr. Olguin. No, I do not believe tribal lands are public
lands.
Mr. Young. And neither do I. OK.
Mr. Olguin. Straightforward.
Mr. Young. But that goes--what I am saying is now here
comes the Secretary, that is proposing fracking rules that
apply to lands other than public lands, to Native lands. And
that is against the rules, if you recognize the sovereignty of
those Nations. And if these fracking rules go in place, you can
forget New Mexico. In fact, any other place.
This is being driven by, I think, a misinformed audience,
and there is no reason why--you can set rules about how you
frack. But most of those so-called instances of gas spillage is
because of bad piping or old wells that they frack through. Now
it is your land, you can say, ``OK, you are going to frack,''
you are going to put a new stem in, you don't have any
problems. And that is your responsibility. I just think that
that is what people don't quite understand.
And, by the way, has the Department contacted any of you on
this new fracking rule?
Mr. Olguin. Yes.
Mr. Young. They have?
Mr. Olguin. Yes.
Mr. Young. What did they tell you?
Mr. Olguin. Well, there was a meeting held with the Bureau
of Land Management, and the tribe did provide its comments in
regards to the fracking.
Mr. Young. Have they responded at all?
Mr. Olguin. No, not yet.
Mr. Young. OK. That is another thing that concerns me.
Irene, you indicated the BIA is the most important agency
in charge of supporting Indian energy. Yet there is an office
of Indian Energy Policy and Programs under the Department of
Energy. Now, you got one in the Department of Energy, you got
one in the BIA. How often have you contacted the Department of
Energy? I mean--yes, the Department of Energy?
Ms. Cuch. The one in BIA is in charge of permitting.
Mr. Young. And the Energy Department is another thing?
Ms. Cuch. The Energy----
Mr. Young. The reason I am asking, this is a classic
example. You have the BIA over here, you got the Energy
Department over here. Neither one knows what they are doing.
[Laughter.]
Mr. Young. And how do you get anything done? That is our
biggest challenge.
I just--you know, that is one of the things that--nobody
consults with you guys, really, in seriousness. They will tell
you why you can't do it, but they won't help you get it done.
Now--and even the proposal, the regulations coming out the
gentleman from New Mexico mentioned, that is another shell
game, guys. That is why this legislation is important. It is a
shell game. They will slow-walk you, slow-talk you, and nothing
will happen. I want to make sure this can be done. I yield
back. I don't have no more time left.
Mr. Gosar. Acknowledge the Ranking Member.
Mr. Lujan. And thank you again, Mr. Chairman. And just to
clarify with Chairman Young is that, again, as we talk about
trust responsibilities, I appreciate the mentorship and
advocacy that has come from Chairman Young in these areas, and
I think that there will be ways--Mr. Chairman, the reason I
brought it up is there were some questions that were brought to
my attention, and I know that we will make every effort to
clarify that that is not something that will happen. So I
appreciate that very much.
Again, when we are talking about impacted individuals, and
we look at the problems and where the BIA needs to be
simplified, to ease the way that we conduct business is
something that I believe in. I have learned that more has to be
done, and I support the approach that this Subcommittee is
taking and will continue to take to make sure that we address
those important principles. And I appreciate the conversations
that I have had with the Chairman on those issues.
But again, as we talk about some of the impacts with
experiences from the past, so that we don't repeat them going
forward is where my concern is. Again, with impacted areas in
New Mexico and across the country, the spill that I referred to
flowed 80 miles from New Mexico down into Arizona. Water
streams, sheep, livestock that people ate, and waterways that
people drank from were impacted.
How do we assure ourselves that if something like that
happens, that the tribe or some of those individual tribal
members that are impacted--I appreciate where the concern is
coming from with the surety bond, but how do we assure, and
what provisions do you have, or do you feel it is important
that we have a path forward to be able to provide those
protections? And I would invite comment from any one of our
distinguished panelists today. Tara?
Ms. Sweeney. Congressman Lujan, thank you for the
opportunity to respond.
Arctic Slope Regional Corporation--I can only speak to what
we have experienced in the past in Alaska with respect to
energy projects on our native lands. And so, I will respond in
that vein.
We fully embrace a process where legitimate concerns can be
raised, and we fully support a process where we also are
preserving our right to challenge projects. That is something
coming from the North Slope of Alaska, remote area of the
country, where our people depend on those subsistence
resources. We subsist off the land and the sea. Whether it is
whaling or hunting caribou, we certainly want to preserve our
right to challenge projects.
And so, we too are looking for an alternative. Because
delays to projects on our lands have material--also material
impacts on the benefits that we provide to our shareholders.
And Congress mandated that Alaska Native corporations provide
benefits for their shareholders. We are a beast of Congress.
And so we have to find ways to continue to provide
scholarships, dividends, employment and training opportunities,
medical, travel, and death benefits for our shareholders.
And so, we are open to working within Indian Country to
find an acceptable solution that, one, preserves our ability to
challenge projects and put forward legitimate challenges, but
also minimizing the impacts of frivolous lawsuits that could
endlessly delay meaningful projects, tying it up through
litigation. So I think that somewhere in there we do--there is
a balance that we can strike.
And so, while we do support the language that is in the
proposed legislation, we are also open to reasonable
alternatives, as well.
Mr. Lujan. Very good. So you would be open, as long as you
could streamline the process to make sure that adequate
protections were in there for the tribe, for the tribal
members, as well?
Ms. Sweeney. Yes.
Mr. Lujan. And Mr. Groen, if you would comment, would you
be open to that as well, to ensure that in that catastrophic
incident that I described--and I hope that we never see another
one like it, but that we have the ability in place to protect
the tribe and the tribal members, the people that could be
impacted?
Mr. Groen. Yes. I agree with Tara's comments. That is a
very--you know, some sort of a compromise, being able to move
the projects forward in a safe and environmentally sensitive
area, that is the key to the complete development of these
projects. We definitely do not want to move forward with
projects in a manner that damages the environment. But they
have to keep moving forward.
Mr. Lujan. Thank you. Thank you, Chairman, and thank you,
Chairman Young, for your leadership on this issue.
Mr. Young. I just want to--again, if I can, would the
gentleman--who let the leases go for the uranium?
Mr. Lujan. Mr. Chairman, in the instance of the Church Rock
incident?
Mr. Young. Yes.
Mr. Lujan. The leases were engaged with the Navajo Nation.
Mr. Young. And the BIA.
Mr. Lujan. And the BIA, yes, sir.
Mr. Young. Yes. Because, see, I want to stress that. I
think the Navajo Nation could probably have done a better job.
And I am going to ask each one of you here--we just finished a
lawsuit, which I did not agree with, as far as the amount of
monies--I started that many years ago, I wanted $27 billion,
not $2.5 billion.
How much money do you think you lost through the process of
the BIA leasing to companies, and you had no say in it? Anybody
want to comment on that? I know you can't give--but you follow
what I am saying? A lot of times you didn't have anything to do
with it. Is that correct? BIA put the lease up for oil and gas
exploration and other things. Am I wrong in this? Tell me if I
am wrong. Yes, any one of you, I don't care.
Mr. Groen. I guess I will comment quickly. Yes, the
standard BIA leases have been--royalty rates have been 12-1/2
to 16-2/3 percent. Under the operating agreements that the
Nation has been issuing, there is a variety of them but they
start at 20 percent, and a lot of them have a sliding scale
royalty based on the cost of the--or the value of the product.
Mr. Young. But you don't have much say if--is it--am I
correct? The BIA is the one that manages the leases on most
reservations now. Is that correct?
Mr. Groen. Yes, in the--historically on the Navajo Nation,
though the Navajo Nation has not authorized a BIA lease since
the 1970s. So the Navajo Nation is quite different from that.
Mr. Young. OK. But the rest of the Reservation--but I am
saying do you not believe, if you have your own minerals
management agency, you could negotiate a better lease for your
tribal members than through the BIA?
Mr. Groen. Absolutely. And that is what the Navajo Nation
is doing at this time.
Mr. Young. You think you can do the same thing?
Mr. Fox. I think we really could do the same thing. You
know, a lot of our tribes or reservations are not the same as
the Navajo Nations. The Fort Berthold Reservation, you know, we
do have 530,000 acres in trust, probably about 320,000 are
allotted tribal members. So they do negotiate their own tribal
mineral leases themselves.
Now, you know, the tribe does have 210,000 mineral acres
that they negotiate for themselves also. But with the
infrastructure that is needed, like I have said in our
testimony, with the tax infrastructure that is built in the
state, you know, the tribe can do a lot better at administering
these leases for ourselves and for our tribal members if we had
the infrastructure in our tribal----
Mr. Young. And an expedited process, too.
Mr. Fox. Yes, we can, sir.
Mr. Young. OK, good. I don't----
Mr. Olguin. Mr. Chairman?
Mr. Young. Yes, go ahead.
Mr. Olguin. Yes, I would like to respond to your question.
$90 million is what our impact was for delays from the Bureau
of Indian Affairs in approving right-of-ways. And those----
Mr. Young. $90 million?
Mr. Olguin. $90 million.
Mr. Young. Holy bejeezus. Think how many kids you can
educate with that.
Mr. Olguin. That is a lot of kids.
Mr. Young. How many clinics you could open with that. You
know, that is what we are trying to address here. Very good. I
don't have any more.
Ms. Cuch. Mr. Chairman?
Mr. Young. Oh, excuse me.
Ms. Cuch. I would like to also----
Mr. Young. Go ahead, ma'am.
Ms. Cuch. Yes, Mr. Chairman. I would also like to mention
that we do have our own energy and minerals department. But
they are involved in the permitting process, but BIA still has
the final approval. In talking about--we need 10 times as many
permits to be approved, and would benefit from one-shop stop. I
think your--the bill does mention the one-shop stop.
Currently we have about 48 applications permit to drill,
and they are--and we have that many that are approved each year
for oil and gas operation on the Reservation. We estimate that
about 450 APDs would be needed each year, as we expand
operation.
And I believe in your one-stop shop, we would encourage the
Bureau of Indian Affairs to hire staff with energy expertise.
The BIA may be most important Federal agency charged with
supporting Indian energy, yet there are only a handful of BIA
employees with energy expertise. I would just like to make that
comment.
Mr. Young. I appreciate that. Again, I am trying to get the
BIA out of this business. I want you to know that. If we have
to have them, I believe in the one-stop shop. But I also think
you can do it better on your own, because that has been the
whole problem we have got. I have been in this business 40
years, and I have heard the same story, ``We are going to do
better next time, we are going to put a new system in place, it
is going to work this time.'' And it hasn't worked.
And I talked to Larry Echo Hawk, and he admits it hasn't
worked, because you have sort of an ingrained incestuous type
of individuals that don't really want it to work. And that
bothers me. I would rather have the responsibility on each one
of you. And if it doesn't work, they will throw you out, your
tribal members will. And that is how it should be.
Mr. Chairman, I have no other questions.
Mr. Gosar. I have just got a quick question. I know the
monetary amounts that you said, but what is the average waiting
time?
Mr. Olguin. For an application to permit to drill, we are
looking at about two-and-a-half years.
Ms. Cuch. In our Ute tribe, one year.
Mr. Fox. We are down to anywhere from three to four months
on our application permit to drill. Currently we do have 589
that were submitted since 2008. Right now there are 237
pending. So coming up with this up-and-coming summer program
for drilling, I guarantee you they will probably double that.
Mr. Groen. On the Navajo Nation they are typically one year
to a year-and-a-half, or more in some cases.
Mr. Gosar. Wow. And that is not figured into your----
Mr. Young. Then you get a lawsuit.
Mr. Gosar. Yes.
Ms. Cuch. Yes, I----
Mr. Groen. It is figured into it.
Mr. Gosar. It is?
Mr. Fox. It is.
Mr. Gosar. Wow.
Ms. Cuch. I mentioned one year for the Ute tribe, but it--
we lose, for every permit that isn't drilled, $1 million a
year.
Mr. Gosar. But--so the dollars you quoted about what it is
costing you, you are not figuring in the lost time. Time is
money.
Mr. Olguin. Plus, when the prices drop, that is a big
impact.
Mr. Gosar. Absolutely. I yield--I know the Ranking Member
has got a couple more questions.
Mr. Lujan. Thank you, Chairman. And just quickly, more of
an observation. Chairman Young, one of the problems, as I
understood it, with--and I know that we are talking about the
process associated with moving work forward--and I keep going
back to the one example with Church Rock, but one of the
problems, as I recall, and if I have this correctly, is one of
the reasons Church Rock did not get the support that they
needed to at the time from the Federal Government was at the
time the Governor didn't offer a--or issue a Declaration of
Emergency, which was a major problem. And I know this has
happened in other areas where there has been devastating fires.
So, whether we talk about energy or we talk about fires or
natural disasters, is maybe along these lines. One of the
things we could do to work together is to alleviate that. And
if there is an emergency or a declaration of emergency on
tribal lands, as opposed to waiting for the Governor of that
state to declare an emergency, to allow them to go directly to
FEMA and declare that emergency as if it was coming from a
Governor of a state--and maybe there is room for us to have a
conversation about that, Mr. Chairman.
So, with that, I yield back the balance of my time.
Mr. Young. I agree. The sense is you don't lose the
trustability [sic] for the Federal Government. And if we could
go government-to-government, I think that is a responsibility,
to get it done. And especially your fires. That was a disaster
down there, too. So that is a good idea. We will work on it.
Mr. Lujan. Thank you, Chairman.
Mr. Gosar. Any other questions? Well, I would like to thank
the witnesses for coming, and especially from such a far, far
way. Thanks to all the Members for their participation.
Members of the Subcommittee may have additional questions.
If they do, they will submit them to you to respond in writing.
If there is no further business, without objection the
Subcommittee stands adjourned.
[Whereupon, at 4:02 p.m., the Subcommittee was adjourned.]

[Additional material submitted for the record follows:]

Statement submitted for the record by the Crow Nation

I. Introduction
The Crow Nation is a sovereign government located in southeastern
Montana. The Crow Nation occupies a reservation of approximately 2.2
million acres, with abundant natural resources including coal, oil,
natural gas, and bentonite. We also are also actively working to
develop hydropower and wind power projects utilizing renewable energy
resources within our reservation. The Crow Nation is uniquely
positioned to contribute to the energy independence of our country.
We are encouraged to see the Subcommittee working to address many
of the issues that impact energy opportunities in Indian Country.
Eliminating obstacles to energy project development in Indian Country,
along with providing incentives to secure and expand Indian energy
projects, will build additional national capacity to create more jobs
in the national economy. We must work together to address the barriers
that currently limit project development in order to fully realize the
potential for energy development that exists in Indian Country, and for
the nation.
We believe that H.R. 3973 makes significant strides toward
eliminating many of the regulatory hurdles that have hindered energy
project development in Indian Country. Based on our experiences working
with industry partners in the coal, oil, and natural gas extraction
industries, we will also suggest additional provisions that would
further promote these objectives, and would expand the impact of the
Native American Energy Act in addressing longstanding disparities in
energy project development.

II. Comments on Section 3--Appraisals
Despite holding substantial natural resources, the Crow Nation has
encountered numerous problems in developing energy projects on the Crow
Reservation. The Crow Nation and our energy development partners have
experienced, and continue to experience, systematic problems in
creating energy development and creating new jobs associated with that
development. The Bureau of Indian Affairs (``BIA'') consistently
creates barriers and delays to resource development.
BIA records for surface and mineral ownership are often erroneous,
missing, and out of date. These problems cause significant delay in
preparation of environmental documents and land records necessary for
project evaluation and development. The BIA lacks the staffing
necessary to provide accurate information on Reservation surface and
mineral ownership, and to resolve additional questions that arise. This
makes our projects less competitive with off-reservation development.
Many companies view this, in addition to other problems, as another
prohibitive cost of doing business on the Crow Reservation. The Crow
Nation has worked closely with BIA staff to facilitate its energy
development projects.
In most cases, BIA staff have worked to be as responsive as
staffing shortages and regulatory requirements would allow. However,
despite our best efforts, BIA staff shortages and OST appraisal
requirements have resulted in a much more difficult and time-consuming
process in developing a large energy project on the Crow Reservation
than would be the case off-reservation. The delays and added costs have
hindered the development of energy projects of all scales in the past,
and have been a major source of frustration for project developers as
well as for the Crow Nation and its citizens.
The Crow Nation believes that the provisions of H.R. 3973,
especially Section 3, address these obstacles and provide alternate
methods for compliance with the requirements in federal laws and
regulations governing Indian lands. These provisions will assist Indian
Nations in realizing the goal of efficient energy project development.

III. Comments on Section 7--BLM Oil and Gas Fees
The current version of H.R. 3973 includes language prohibiting
collection of any fee by the Secretary of Interior, through the Bureau
of Land Management, for any application for a permit to drill on Indian
land, for conducting any oil or gas inspection activity on Indian land,
or on any oil or gas lease for nonproducing acreage on Indian land.
These provisions address a longstanding concern of the Crow Nation.
Beginning with the FY 2008 Appropriations Act for the Department of
Interior, Congress required the Bureau of Land Management to charge a
$4,000 fee to process every Application for Permit to Drill (``APD'')
on the federal and Indian lands on which it supervises oil and gas
development activity. The APD Fee has since been increased by
subsequent appropriations legislation to $6,500 for each new well. The
Crow Nation has continually protested the application of this fee to
tribal lands, and has sought relief in numerous ways.
This $6,500 fee compares to drilling permit fees of less than $100
off the Reservation in the State of Montana. Obviously, this creates a
disincentive to explore for oil and gas on Indian lands compared to
off-reservation State and fee lands. As indicated above, it has been a
major factor in the suspension of additional natural gas field
exploration and development on the Crow Reservation by our partner,
Ursa Major, who also holds leases outside the Reservation. The APD fee
is a particular burden for the type of shallow (less than 1500' deep),
low-producing gas wells being drilled by Ursa Major. The cost of
completing these types of wells is less than $150,000 each, so the APD
Fee substantially increases and also comprises a large portion of the
capital investment necessary to bring additional wells into production.
The APD Fee also discourages efficient development and slows
exploration efforts. For exploratory ``wildcat'' drilling where success
is speculative, the developer can only afford to get permits for a
couple of wells at a time, see if they hit gas, and if so, file APDs
for another couple of wells, and repeat the cycle. Without the high APD
Fee, the developer would be able to obtain many permits and immediately
drill additional wells if the first ones are successful. Considering
the lead time for issuance of the drilling permits (60-90 days), the
APD fee causes delays of up to a year in developing a handful of new
wildcat wells, in addition to adding tens of thousands of dollars of
non-productive costs that limit the Crow Nation's ability to charge
taxes and collect royalties on future production.
We are extremely encouraged to see this issue addressed by the
provisions in Section 7 of H.R. 3973. The APD fee is a hindrance to the
Crow Nation's goal of developing its oil and gas resource. The language
eliminating the collection of APD fees on Indian lands will eliminate
the disparity that currently exists between drilling on Crow lands and
drilling on adjacent State fee lands. This provision will enable
expanded and more efficient oil and gas development on the Crow
Reservation. It also conforms to our longstanding belief that Indian
Nations should not be penalized for nor damaged by the federal
government's exercise of its trust responsibility over Indian lands and
resources.

IV. Comments on Section 11--Leases of Restricted Lands
The Crow Nation seeks authority to lease surface rights for not
more than 99 years and has proposed language amending the same section
that H.R. 3973 includes for the Navajo Nation. Crow seeks to be added
to the long list in 25 USC 415 (a) after ``Ohkay Owingeh Pueblo.''
Having the authority to provide longer term surface leases will allow
Crow to more effectively attract energy partners considering costly,
long-term equipment installations, like power plants.
The language proposed by Crow is as follows:

SEC.___. EXTEND LEASE PERIODS FOR THE CROW NATION

In General--Section 415 of Title 25, United States Code, is amended

(a) by inserting ``, and lands held in trust for the Crow Tribe of
Montana,'' after ``Ohkay Owingeh Pueblo'', and
(b) by deleting ``and'' before ``lands held in trust for Ohkay
Owingeh Pueblo''

V. Additional Areas to Consider for H.R. 3973--Need to provide
certainty in tax incentives
There are several current federal tax incentives for economic
development in Indian Country, including an accelerated depreciation
provision, an Indian wage tax credit, and for energy in particular, the
Indian Coal Production Tax Credit. However, the accelerated
depreciation provision and wage tax credit both have substantial
limitations that severely limit their usefulness for major Tribal
energy development projects.
More importantly, all of these tax incentives are set to expire at
the end of this year, and in the past they have been extended only one
year at a time. For major Tribal energy projects, such as a coal mine
or a power generation project with 6-10 year development lead times,
the inability to rely on the continued availability of these incentives
means that they cannot be factored into the economic evaluations that
are necessary for investment decisions. Permanent extensions and
appropriate modifications to these existing tax incentives will
facilitate job creation and economic development, particularly in
energy development, on the Crow Reservation and for all of Indian
Country.

A. Indian Coal Production Tax Credit
The Crow Nation has leased a portion of its coal reserves for 37
continuous years to Westmoreland Resources Inc (``WRI''). WRI owns and
operates the Absaloka Mine, a 15,000-acre single pit surface coal mine
complex near Hardin, Montana, on the northern border of the Crow
Reservation. The Absaloka Mine was expressly developed to supply Powder
River Basin coal to Midwestern utilities and has produced over 172.6
million tons of coal to date. WRI annually pays substantial production
taxes and coal royalties to the Crow Nation; $9.9 million of taxes and
$9.1 million in royalties were paid to the Crow Nation in 2010. The
significant portion of the Crow Nation's non-federal budget,
approximately two-thirds, comes from the Absaloka Mine. Additionally,
WRI employs a 70% tribal workforce, with an average annual salary of
over $62,000, and averages a total annual employment expense of
approximately $16 million. The Absaloka Mine is the largest private
employer of Crow Tribal members on the Crow Reservation, where the
unemployment rate exceeds 47%. The importance of the Absaloka Mine to
the economy of the Crow Reservation cannot be overstated. Without
question, the Absaloka Mine is critical to the Crow Nation's financial
independence now, over the past 37 years, and well into the future.
Several factors have contributed to the longevity of the Absaloka
Mine and the partnership between the Crow Nation and WRI, but a
critical element in keeping the Absaloka Mine in operation has been the
Indian Coal Production Tax Credit (``ICPTC''). The Absaloka Mine has
struggled financially to compete with larger Powder River coal mines,
as well as with the competitive advantage provided to Powder River coal
through the impact of a price differential created by sulfur (SO2)
emissions allowances under Title IV of the Clean Air Act.
The 2005 Energy Policy Act provided the ICPTC beginning in tax year
2006, based upon the number of tons of Indian coal produced and sold to
an unrelated party. ``Indian coal'' is coal produced from reserves
owned by an Indian Tribe, or held in trust by the United States for the
benefit of an Indian Tribe, as of June 14, 2005. The tax credit is
calculated by totaling the number of tons of Indian coal produced and
sold, then multiplying that number by $1.50 (for calendar years 2006
through 2010). For tax years between 2010 and December 31, 2012, the
total number is multiplied by $2.00.
The origin of this production tax credit was an effort to
neutralize the impact of price differentials created by sulfur (SO2)
emissions allowances, thereby keeping Indian coal competitive in the
regional market. Without the credit, the Absaloka Mine would have lost
its supply contract and would likely have closed in 2005, which would
have had a devastating impact on the Nation. The ICPTC has worked to
keep the Absaloka mine competitive and open. This tax credit remains
critically important because, without it, the Absaloka Mine's economic
viability would be in serious jeopardy. The tax credit remains critical
to the current operation of the existing Absaloka Mine and provides
sufficient incentive to help us attract additional investment for
future energy projects. In order to protect existing operations and
encourage growth, the ICPTC should be made permanent, should be allowed
to be used against alternative minimum tax, and the requirement that
the coal be sold to an unrelated person should be deleted to allow and
encourage facilities owned, in whole or in part, by Indian Nations to
participate and benefit from the credit.
The continued operation of the mine has been significantly
facilitated by the tax benefits made possible by the ICPTC. Without the
ICPTC, the Absaloka Mine would have ceased to operate, thereby ending a
substantial revenue source for the Crow Nation. Continuance of the
ICPTC is critical to the future of the Absaloka Mine and the stability
of revenue to the Crow Nation. The Crow Nation seeks to ensure the
continued economic viability of the Absaloka Mine, as the revenue and
jobs that it brings to the Nation are an overriding imperative for the
Nation and its citizens.

B. Accelerated Depreciation Allowance
Included in the Omnibus Budget Reconciliation Act of 1993, Pub. L.
103-66, 107 Stat. 558-63, codified at 26 U.S.C. 168(j), 38(b), and
45(A), are two Indian reservation-based Federal tax incentives designed
to increase investment and employment on Indian lands. The theory
behind these incentives was that they would act in tandem to encourage
private sector investment and economic activity on Indian lands across
the United States. Neither incentive is available for gaming-related
infrastructure or activities. The incentives--an accelerated
depreciation allowance for ``qualified property'' placed in service on
an Indian reservation and an Indian employment credit to employers that
hire ``qualified employees''--expired on December 31, 2003, and have
been included in the short-term ``extenders packages'' of expiring
incentives since that time.
Energy projects require significant equipment and physical
infrastructure, and involve the hiring of large numbers of employees.
Crow is not alone in holding vast untapped natural resources; for
several Indian nations, estimates of proven and undeveloped energy
resources on Indian lands suggest that revenues to tribal owners would
exceed tens of billions in current dollars. As the energy development
market improves and the federal programs enacted in the 2005 pro-
development energy law, the Indian Tribal Energy Development and Self
Determination Act (Pub. L. 109-58), energy related activity on Indian
lands will increase substantially in the years ahead.
Unfortunately, one-year or two-year extensions of the accelerated-
depreciation provision do not provide an incentive for investment of
new capital in Indian country for significant energy projects.
Development of major projects generally takes a decade or longer.
Investors need certainty that the benefit will be available when the
project initiates operations in order to factor that benefit into their
projected economic models, as well as investment decisions. A permanent
extension would address this problem, making the incentive attractive
to investors in long-term energy projects on Indian lands.
As currently written, the depreciation allowance could be
interpreted to exclude certain types of energy -related infrastructure
related to energy resource production, generation, transportation,
transmission, distribution and even carbon sequestration activities. We
recommend that language be inserted to statutorily clarify that this
type of physical infrastructure expressly qualifies for the accelerated
depreciation provision. In proposing this clarification, it is not our
objective to eliminate non-energy activities that might benefit from
the depreciation allowance. Indeed, if adopted, the language we propose
would not discourage other forms of economic development in Indian
country.
By providing clarifying language and this permanent extension, the
accelerated depreciation provision will finally accomplish its
purpose--enhancing the ability of Indian nations to attract energy
industry partners to develop long-term projects utilizing the available
Indian resources.

C. Indian Employment Wage Credit
The 1993 Act also included an ``Indian employment wage credit''
with a cap not to exceed twenty percent (20%) of the excess of
qualified wages and health insurance costs that an employer pays or
incurs. ``Qualified employees'' are defined as enrolled members of an
Indian tribe or the spouse of an enrolled member of an Indian tribe,
where substantially all of the services performed during the period of
employment are performed within an Indian reservation, and the
principal residence of such employee while performing such services is
on or near the reservation in which the services are to be performed.
See 26 U.S.C. 45(c)(1)(A)-(C). The employee will not be treated as a
``qualified employee'' if the total amount of annual employee
compensation exceeds $35,000. As written, the wage tax credit is
completely ineffective and does not attract private-sector investment
in energy projects within Indian country. The provision is too
complicated and private entities conclude that the cost and effort of
calculating the credit outweighs any benefit that it may provide. We
therefore propose that the wage and health credit be revised along the
lines of the much-heralded Work Opportunity Tax Credit, which is less
complicated and more likely to be used by the business community. We
propose retaining the prohibition contained in the existing wage and
health credit against terminating and rehiring an employee and propose
to alter the definition of the term ``Indian Reservation'' to capture
legitimate opportunities for employing tribal members who live on their
reservations, even though the actual business activity may be off-
reservation. This amendment would allow the Indian Employment Wage
Credit to more effectively fulfill the purpose for which it was
originally enacted.

D. Alternative Fuel Excise Tax Credit
Several coal-to-liquids (``CTL'') projects have been announced in
the United States. However, all of these projects are struggling due to
the high financial commitment needed to plan and implement these
projects in an uncertain economic and energy policy environment. The
Crow Tribe's Many Stars CTL Project is not immune to these challenges.
Among other potential actions that the federal government could take to
encourage the development of new technology in this area, the extension
of the Alternative Fuel Excise Tax Credit is critical.
The current Alternative Fuel Excise Tax Credit provides for a 50-
cent per gallon credit. We would propose to extend the expiration of
the tax credit for a definitive time period, rather than year-to-year
extensions as has been done recently. Since it could take roughly 6-10
years for this project to be fully planned, implemented, and
operational, investors raise the concern that the incentives will
expire before the plant starts operation. We would address this concern
by providing the tax credit for a period of 10 years following start-up
for those projects starting construction prior to 2015.

VI. Conclusion
It is critical that Congress act to protect Indian nations'
sovereignty over their natural resources and secure Indian nations as
the primary governing entity over their own homelands. This will have
numerous benefits for the local communities as well as the federal
government.
The Crow Nation aspires to develop its vast natural resources not
only for itself, but to assist the United States realize a new goal--
achieving energy independence, securing a domestic supply of energy,
and reducing dependence on foreign oil. These goals are consistent with
the provisions in H.R. 3973, and can be furthered by the additional
provisions we suggest adding to the Bill.
Thank you for the opportunity to provide these comments, share our
experiences, and suggest additional measures to encourage energy
development in Indian Country.
______

[A letter submitted for the record by REDOIL follows:]

REDOIL1
P.O Box 74667
Fairbanks, AK 99701

February 27, 2012

The Honorable Ed Markey Ranking Member
Subcommittee on Indian and Alaska Native Affairs
Natural Resources Committee
U.S. House of Representatives
Washington, D.C. 20515

Dear Representative:

We provide this letter of testimony concerning the hearing held
February 15, 2012 on H.R. 3973, the Native American Energy Act. We have
serious and profound concerns regarding H.R. 3973.
We write today on behalf of Resisting Environmental Destruction on
Indigenous Lands (REDOIL), a movement of Alaska Natives of the Inupiat,
Yupik, Aleut, Tlingit, Eyak, Gwich'in and Denaiana Athabascan Tribes
who are challenging the oil and mining industries and demanding our
rights to a safe and healthy environment conducive to subsistence. We
aim to address the human and ecological health impacts brought on by
unsustainable development practices of the fossil fuel and mineral
industries, and the ensuing effect of catastrophic climate change. We
strongly support the self-determination right of tribes in Alaska, as
well as a just transition from fossil fuel and mineral development to
sustainable economies and sustainable development.
The three core focus areas of REDOIL are:
Climate Change and Climate Justice
Ecological and Human Health
Sovereignty and Subsistence Rights
H.R. 3973 contains sweeping changes that would diminish review of
impacts from oil, gas, coal, shale gas, oil shale, and other energy
projects, on Indian lands, Alaska Native Claims Settlement Act (ANCSA)
corporate lands, and the cumulative impacts across even broader areas.
Oil and natural gas exploration, development and production, coal
mining and generation, shale gas, and other energy production poses
risks to air and water quality that damage human health, and
devastating environmental and cultural impacts of Native Americans, as
we describe below.
We recognize the self-determination framework for federally
recognized tribal governments and tribal members, and it is important
to ensure that energy and other development decisions adequately
address all of the impacts of those decisions, some of which occur well
beyond the project site, and that the public has the ability to
participate.
Expansive provisions of H.R. 3973 would decrease tribal sovereignty
of federally recognized tribes in Alaska to uphold their obligations to
current and future generations to sustain culture, traditional way of
life, and health and quality of their traditional lands.
As described below, the entire bill should clearly exclude Alaska
Native Claims Settlement Act corporations with respect to how it
defines ``Indian Tribe'' and ``Indian land'' in order to uphold tribal
sovereignty.
We are concerned that sections 5 and 8 of H.R. 3973 eliminate broad
public participation for projects on Indian land and will have a
significant chilling effect on the ability of the public (including
tribal members) to seek judicial review of a decision related to an
energy project on Indian land or proposed by (or done in partnership
with) an Indian tribe. We are also concerned that section 3 on
appraisals would give sovereign powers for land valuations to ANCSA
corporations, and provide detail on the bill's language later in this
letter. Therefore REDOIL and our members strongly reject the provisions
of H.R. 3973 we highlight in this letter.
Next we provide the broader context under which this legislation
must be viewed regarding fossil fuel development and impacts on
Alaska's indigenous peoples. Finally, we will provide detailed comments
on specific provisions of the bill.
Fossil Fuel Development and Alaska's Indigenous Peoples
Global warming is leading to shifts in the world environment that
are resulting in a significant increase in devastating and alarming
weather patterns. Effects of global warming in Alaska alone include
altered weather patterns, more severe storms, erosion of coastal areas,
greater precipitation, thawing permafrost, melting sea ice, receding
glaciers, increased instance of spruce bark beetle infestation,
increased and severe forest fires, declining fish populations,
migratory and habitat disruptions of key subsistence resources, and
disruption of all natural cycles of life.
Climate change impacts lead to loss of subsistence resources and
rights, relocation of communities, and to negative social statistics
related to human health. One of the major impacts is Alaska Native
communities are struggling with forced relocation as coastlines no
longer protected by sea ice erode, they in essence are now becoming
environmental refugees or climate refugees. Alaska truly is the canary
in the mine when it comes to Climate Crisis, and the canary is on life
support.
The current impacts of climate change on Alaska's Indigenous
peoples are perpetuated by the incessant demand for energy to feed the
high consumption appetite of America. Current energy policy
disproportionately targets our homelands and marine ecosystems and
continually puts our subsistence way of life at risk. The sovereign
authority of Alaska Native federally-recognized Tribes is undermined as
our ancestral ways of life and homelands are imperiled by devastating
proposals for further resource extraction of fossil fuels and minerals.
The devastation is compounded by climate change and vice versa.
The reality in Alaska is that federally-recognized Tribes are
defending the remaining areas that provide for our subsistence way of
life in the face of massive proposals to exploit the resources despite
the impact of loss to our subsistence and cultural lifestyles that such
projects pose. As we read through the Native American Energy Act it is
very clear that the intent of this bill is to diminish our capacity to
defend our homelands and marine ecosystems from unjust energy proposals
within our subsistence use areas. The Alaska Native Claims Settlement
Act is one unjust act that streamlined massive exploitation of our
homelands in Alaska as well as left a legacy of pollution within Alaska
Native ancestral territories. To make the point, first you must
understand ANCSA in the view of Sovereign Tribal Governments.
The discovery of oil at Prudhoe Bay established an alignment of the
oil companies and the US federal government to promote their combined
interests. This alliance provoked an urgency to settle Indigenous land
claims in Alaska in order to provide a right-of-way for the Trans-
Alaska Oil Pipeline. The US Congress unilaterally passed the Alaska
Native Claims Settlement Act (known as ANCSA) in 1971 to legitimize US
ownership and governance over Indigenous peoples, our lands, and access
to our resources. The lands, which were taken from us through this Act,
became ``corporate assets'' of newly created state chartered limited
liability for-profit Native Regional and Village corporations. ANCSA
conveyed indigenous ancestral lands to corporations instead of the
existing Indigenous traditional governing structures because our
governments were perceived as an impediment to assimilation.
ANCSA changed the dynamics of how Alaskan Natives relate to the
land, but also how we relate to one another. State and Federal promoted
economic development interests are aligned with these Native
corporations that pursue lands and marine ecosystems for economic gain
despite adamant opposition by Alaska Native Tribes whose subsistence
way of life is endangered by economic development proposals.
The difference between the Native Corporations and Tribes is very
simple:
The corporation's bottom line is profit at all cost and business
interests. Whereas for Alaska the Sovereign federally recognized Tribal
Governments bottom line is the health and well being of the peoples.
These are two very different and conflicting values.
If the effort to recognize Corporations as Tribes is allowed within
Energy Policy, you basically will have the ``fox guarding the
henhouse'' in Alaska. H.R. 3973 gives authority illegitimately to
entities that by their very nature are the very ones all too often in
partnership to exploit our homelands and resources for profit which
undermines and threatens our ``subsistence'' way of life. No
Corporation should be granted sovereign status; it can be likened to
granting BP or Shell Oil sovereignty. In reality, this insidious
language will perpetuate and streamline continued assaults on
subsistence use lands by Native Corporations, only now there will be
far less oversight and the public will be shut out of the process to
give input to protect human and ecological health.
This language diminishes and undermines Sovereign Tribes here in
Alaska as well as the Federal Trust Responsibility. To correct this,
this language must be stricken from the Bill immediately. The
definition of Tribes should only be for Federally Recognized Tribes not
ANCSA Corporations throughout this bill. H.R. 3973 dishonors the
Sovereign Tribes of Alaska as well as our ancestors and future
generations and puts our subsistence homelands at risk further.
Specific Comments
In order to uphold the Tribal sovereignty of the federally
recognized tribes in Alaska and their obligations to current and future
generations to sustain culture, traditional way of life, and health and
quality of their traditional lands, it is critical that ANCSA
corporations are not considered Tribes.
In key sections of this bill, ``Indian tribe'' and
``Indian land'' are defined to also encompass Alaska Native
Claim Settlement Act (ANCSA) corporations. The ANCSA
Corporation lands are not owned by a federally recognized
tribal government, but are owned by for-profit corporations
that are state-chartered entities.
In particular, Section 3--Appraisals, Section 5--
Environmental Reviews, and Section 8--Bonding Requirements,
give inappropriate authorities and shield for-profit ANCSA
corporations from federal responsibilities including to address
potential impacts from major project to the human and natural
environment.
For the entire bill, ``Indian Tribe'' and ``Indian
land'' should clearly exclude ANCSA corporations by definition.
We have specific concerns about three sections of H.R. 3973,
Sections 3, 5, and 8. Two sections of the bill (Sections 5 and 8) would
severely restrict public involvement in the development not only in
oil, gas, coal and other energy developments but also any major project
on Indian lands--including ANCSA corporation lands--and also insulate
energy projects on such lands, or projects done in partnership with an
Indian tribe on non-Indian lands, from judicial review.
This bill would have a major chilling effect on public
participation in environmental reviews that provide important
information in the decision-making process. It would also harm the full
rights of tribal members to participate and seek legal redress in major
actions that impact their subsistence resources, traditional practices
and livelihood, cultural protection, human health, and human rights.
Section 3--Appraisals
The definition of ``Indian tribe'' and ``Indian
land'' in this section should not include ANCSA Corporations.
It is inappropriate for the state-chartered ANCSA
corporations to gain full authority to conduct appraisals,
especially in the context of land exchanges involving the
federal government trading land with an ANCSA corporation.
Many land swaps have been very controversial in
Alaska. For example, the recent proposed Yukon Flats National
Wildlife Refuge land trade in Alaska that had been proposed by
an ANCSA Corporation was opposed by the largest tribe in the
area, and was ultimately halted by the federal government.
Other controversial land trades and proposals in the past
involved the Arctic National Wildlife Refuge.
Section 5--Environmental Reviews
This section makes major changes to the National
Environmental Policy Act of 1969 (NEPA). This is the
fundamental environmental law for public involvement in
government decisions from projects affecting the natural and
human environment, and ensuring informed decision-making.
Under Section 5, the EIS for any major federal action
on Indian lands (including ANCSA corporation lands) by an
Indian Tribe (including ANCSA corporations) ``shall only be
available for review and comment by the members of the Indian
tribe and by any other individual residing within the affected
area.'' There is a question whether such EIS's would still be
available to the public and other important entities?
Most people would be cut out of the process of review
and comment on EISs, and severely limits how the public can
participate in informing the decision making process, as well
as later judicial review (which is then further restricted in
Section 8).
The public, or even tribes located farther from the
project, who could be affected by air or water pollutions,
spills, health, or effects to resources they depend on such as
migratory species, would also be excluded from review and
comment on cumulative impacts under Section 5.
If a major energy or other project is proposed on
ANCSA corporation lands, would federally recognized tribal
members, or long-time community members who are not residing in
the affected area continue to be able to review and comment on
EISs for projects that affect the resources they depend on?
Section 8--Bonding and other limitations of Judicial Review
The section seeks to insulate oil, gas, coal, shale
gas, and other energy projects on Indian lands, or those
projects undertaken in partnership with an Indian tribe on any
lands, from judicial review.
This is poor policy to eliminate the critical check
on oil, gas, coal, and other major energy projects held by the
federal government to uphold the requirements of the law that
are essential for protecting the environment, human health, and
culture.

Members of the public who bring legal challenges could be
potentially liable for massive monetary damages if they do not
ultimately prevail;

Tribal members or others concerned about impacts would have
to post expensive, hard-to-get bonds;

Tribal members and others would have a harder time getting
legal representation because of changes to public interest
legal fee rules.

Section 8, subsection (d)(3) defines ``energy related
action'' broadly to include projects undertaken by ``any person
or entity to conduct activities on Indian land'' as well as
projects undertaken by ``any Indian Tribe, or organization of
two or more entities, at least one of which is an Indian tribe,
to conduct activities. . .regardless of where such activities
are undertaken.''
This provision invites partnering of energy
corporations with Indian tribes for the purpose of limiting
judicial review of projects.
Insulating these decisions from review would thus
only lead to unsupported, poorly analyzed, or irrational,
agency decisions.

Conclusions
This bill is a sweeping green light for a broad range of ``energy
related actions'' which include exploration, development, production or
transportation of oil, gas, coal, shale gas, oil shale, geothermal
resources, wind or solar resources, underground coal gasification,
biomass, or the generation of electricity.
Corporate interests and energy development in Indian Country should
not compromise or be prioritized over our economic, social, and
cultural rights. Alaska Natives and all indigenous peoples within the
U.S. are now more endangered than ever by national energy development
policy proposals within the Native American Energy Act H.R. 3973.

Respectfully,

Faith Gemmill, Executive Director
Resisting Environmental Destruction on Indigenous Lands (REDOIL)
______

Statement submitted for the record by the National Congress of American
Indians, Embassy of Tribal Nations, Washington, DC

Introduction
The National Congress of American Indians (NCAI) is the oldest and
largest national organization of American Indian and Alaska Native
tribal governments. Since 1944, tribal governments have gathered as a
representative congress through NCAI to deliberate issues of critical
importance to tribal governments. NCAI is pleased to submit testimony
for the Subcommittee on Indian and Alaska Native Affairs to supplement
the legislative hearing on the Native American Energy Act (H.R. 3973).
NCAI thanks the Subcommittee on Indian and Alaska Native Affairs
for their attention to the matter of tribal energy and finding
legislative solutions to make this important sector of tribal economies
viable. With improved legislation, tribes are poised to engage in the
energy sector with greater sophistication and self-determination.
Legislative action is crucial to increasing tribal ownership and
control over their own resources, and ensuring that those resources
help provide for the future of Indian Country.
An NCAI resolution regarding energy development is attached. PDX-
11-072, describes the tribal energy issues most important to tribes and
supports provisions included in the bill being considered in the
Senate, The Indian Tribal Energy Development and Self-Determination Act
Amendments (S. 1684). In this testimony, NCAI would like to outline
support for and views on the Native American Energy Act (H.R. 3973) as
well as key provisions that NCAI would like to see added.

Analysis of Current Law and Regulations
The barriers to tribal energy development have been discussed at
length during round tables and hearings conducted by the Department of
Energy (DOE) and the Senate Committee on Indian Affairs. Examples of
barriers include cumbersome bureaucratic processes, such as the
requirement that tribes and tribal businesses obtain the approval of
the Secretary of the Department of the Interior (DOI) for almost every
step of energy development on tribal lands, including the approval of
business agreements, leases, rights of way and appraisals. Other major
barriers include tribes' and tribal businesses' lack of access to
financing and transmission, and unfair treatment regarding Application
for Permit to Drill (APD) fees as applied on tribal lands.
Title V of the Energy Policy Act of 2005, the ``Indian Tribal
Energy Development and Self-Determination Act of 2005,'' (the ``Energy
Policy Act of 2005'') provides for tribal energy self-determination
through the creation of tribal energy resource agreements (TERAs).
Tribes have not found TERAs in their current form to provide a suitable
means of achieving energy self-determination. Both the Senate Committee
on Indian Affairs and the House Subcommittee on Indian and Alaska
Native Affairs are currently considering legislation that NCAI believes
would remedy the barriers to tribal energy development in the Act.

Amendments to Energy Policy Act 2005 to make TERAs usable
NCAI believes that the TERA process, when amended, could offer a
successful solution to many of the administrative and regulatory
hurdles to tribal energy development. TERAs would help tribes corral
the sufficient capacity to take on energy development and skip many of
the bureaucratic obstacles. To date, no Indian tribe has successfully
navigated the burdensome TERA process. Helpful legislation would
streamline the criteria for approval by setting time limits for the
approval process, and shifting the burden from the Indian tribe to the
federal agency to disapprove a TERA application, of course
necessitating the tribe meeting several core criteria. After
demonstrating sufficient capabilities, tribes would be able to proceed
without the DOI Secretary's review for leases, business agreements and
rights of way. NCAI is also strongly supportive of the proposal for
Tribal Energy Development Organizations, this is a mechanism that would
enable Indian tribes to form partnerships with established energy
development companies and take advantage of their expertise and capital
in developing the myriad of conventional and emerging energy resources
on Indian reservations.

Agency Collaboration (DOE and DOI)
NCAI would like to see a mandate for collaboration between the DOI
Office of Indian Energy and Economic Development (OIEED) and the DOE
Office of Indian Energy Policy and Programs (OIEPP) on matters
involving tribal energy development. Tribes would greatly benefit from
the combined process expertise of OIEED and the technical expertise of
OIEPP. Recognizing the value of the technical expertise that DOE,
through OIEPP, has to offer, NCAI strongly recommends mandating DOE
make its expertise available to tribes. The DOE OIEPP is making
critical strides to leverage the immense expertise of the DOE to
address the challenges facing tribal energy development and NCAI
believes it is imperative that this work continue regardless of any
potential change in administration.

Key Barriers identified in the NCAI resolution
The NCAI resolution states opposition to any Application for Permit
to Drill (APD) fees levied by the DOI Bureau of Land Management on
tribal land because the APD fees create a significant disadvantage by
burdening costs of exploration on tribal lands relative to the costs
for exploration on neighboring lands. H.R. 3973 directly removes APD
fees, however other barriers remain. The NCAI resolution also
recognizes the benefit of making tax incentives for renewable energy
projects that are tradable and assignable for use by tribes and
improving transmission access.
Tribes are commonly interested in developing their renewable energy
resources for the benefits of air and water quality. However, due to
their tax exempt status as sovereigns, use of federal tax incentives
for renewable energy becomes a complicated issue. NCAI would like to
see the renewable energy tax credits made assignable and tradable to
help tribal renewable energy gain traction with real world investment
and finance entities. Similarly, NCAI would like to see Section 17
Corporations, which are federally-chartered corporations formed under
Section 17 of the Indian Reorganization Act (IRA), become statutorily
eligible for the 1603 Treasury grants for renewable energy, regardless
of appropriations levels for that program.
Finally, for tribes to fully realize the scope and benefits of
energy development on tribal lands, tribes need access to electric
transmission. NCAI recommends an amendment to make the Energy Policy
Act of 2005 binding so that power marketing administrators offer
technical assistance to tribes seeking to use high voltage transmission
lines. NCAI would also like to see federal power procurement leveraged
for the benefit of tribal power producers.

Indian Coal Production Tax Credit
The Indian Coal Production Tax Credit (ICPTC) has helped tribal
coal development remain competitive to ensure that much-needed revenue
remains in place for tribal governments. Specifically, the Crow Nation
relies on the ICPTC to stay in business due to the price differential
imposed on coal with higher sulfur (SO2) emissions. This price
differential was created by Title IV of the Clean Air Act and
neutralized by the Indian Coal Production Tax Credit established in the
2005 Energy Policy Act.
The 2005 Energy Policy Act included the Indian Coal Production Tax
Credit, which began in tax year 2006, yet unfortunately sunsets
December 31, 2012. ``Indian coal'' is coal produced from reserves owned
by an Indian Tribe, or held in trust by the United States for the
benefit of an Indian tribe, as of June 14, 2005. The tax credit is
calculated by totaling the number of tons of Indian coal produced and
sold, then multiplying that number by a factor. The Energy Policy Act
2005 provides a factor of $1.50 per ton between 2006 and 2010 and $2.00
between 2010 and December 31, 2012.
NCAI believes that the Indian Coal Production Tax Credit should be
made permanent and allowed for use against the alternative minimum tax.
Additionally, the requirement that the coal be sold to an unrelated
person should be amended to allow and encourage facilities owned, in
whole or in part, by Indian nations to participate and benefit from the
credit.

Carcieri Fix
NCAI supports a legislative fix to the Supreme Court's 2009
decision in Carcieri v. Salazar. The Carcieri decision erodes the trust
responsibility of the federal government and harms future tribal energy
development by creating uncertainty for investors and challenging the
authority of the Department of the Interior to take land into trust for
tribes. Tribal governments require trust land on which to develop their
resources including energy. NCAI supports a legislative fix to the
Carcieri decision that does not exclude Alaska Native tribes.

Statutory Assertion of Tribal Taxation Authority
Energy development provides critical revenue needed by tribes to
provide governmental services to tribal members. Legislative action,
affirming Indian tribes' inherent taxing authority over tribal lands
would enable revenue from energy development to be fully invested in
quality-of-life improvements for tribal members rather than being
diminished by state taxation.

Small Scale Energy Implementation
NCAI recommends the creation of legislation to support
implementation of small scale renewable energy. This would be
particularly helpful for Alaska Native villages that pay extremely high
prices for heat and power. Small scale renewable energy can reduce and
stabilize energy bills by using wind and solar resources. The DOE
Tribal Energy Program has facilitated the planning and initial
implementation of small projects all over Alaska and the United States
and these projects help greatly with high utility costs, often in very
innovative ways.

Conclusion
NCAI appreciates the Subcommittee's attention to H.R. 3973 and
urges timely action so that a long awaited tribal energy bill can be
passed during this session.
______

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