Practical Sovereignty, Political Sovereignty, and the Indian Tribal Energy Development and Self-Determination Act

Abstract

One of the primary means of economic development for many Indian tribes is development of the reservation's natural resources. Despite the extent and economic importance of the resource base, however, tribal control over the development and use of tribal natural resources has historically been limited. In the last few decades, Indian tribes have gained a far greater role in decision-making concerning the use of their natural resources. In part this increased role results from tribes asserting a greater say in what occurs within their territories, and in part from new federal laws that place more of the decision-making power in tribal hands. This Article addresses the latest attempt by Congress to promote tribal self-determination through a statute designed to increase tribal control over energy resource development on Indian lands. The author begins with a brief history of the gradual transfer of control over tribal resources from the federal government to tribes. This shift in government policy has culminated in the recent passage of the Indian Tribal Energy Development and Self-Determination Act (ITEDSA), which allows some resource development without federal approval. ITEDSA allows tribes to enter into tribal energy resource agreements (TERAs) which give the tribes final decision-making power over their energy-related resources. The author notes that the increased sovereignty conferred by TERAs comes with several trade-offs. TERAs increase the risks of resource development while reducing some of the government's trust responsibilities. TERAs shift some of the cost of resource development from the government to the tribes and provide for more public scrutiny of tribal affairs. The author ultimately concludes that the benefits of ITEDSA will outweigh the costs for certain tribes.

Keywords: tribal economic development, tribal mineral development, tribal natural resources, Indian law

JEL Classification: K30, K32