Tribal Energy Development: Renewables and the Problem of the Current Statutory Structures

43 Pages Posted: 2 Feb 2012 Last revised: 2 May 2012

See all articles by Judith Royster

Judith Royster

University of Tulsa College of Law

Date Written: January 31, 2012

Abstract

Energy development is the economic lifeblood of many Indian tribes, and renewable energy resources are taking on increased importance for tribal economies. Current statutory authority works reasonably well for the development of traditional extractive mineral resources, but the federal statutory authority for renewable energy development is scattered and often problematic. The mineral development statutes offer almost unlimited options for the tribal role, but the uncertainty of whether all energy sources are “minerals” impedes the statutes’ usefulness for renewable energy projects. A variety of other federal laws not originally intended for energy development are available for renewables development – the Indian Long-Term Leasing Act, Section 81, the National Indian Forest Resources Management Act, the American Indian Agricultural Resources Management Act – but none applies to all renewable energy sources and all limit tribes to a largely passive role in the development process. The recent Indian Tribal Energy Development and Self-Determination Act and its TERA process appear to solve the issues posed by the other statutes, but the energy act creates a process complex and expensive enough to discourage most tribes from using it. Recent proposed legislation would tweak the energy statute and propose broader leasing authority, but not addresses the overarching problem of providing tribes with renewable energy resources a way to take an active role in the development of those resources without undue expense or federal oversight.

This article discusses the range of current statutes and the problems attendant on using them for renewable energy development: the definitional issue in using the mineral statutes, the passive role assigned to tribes in the other statutes, and why ITEDSA, designed to resolve these issues, has not worked. Recent congressional initiatives to broaden tribal options are then surveyed and critiqued. The article concludes with some suggestions for amendments to the Indian Mineral Development Act of 1982 to ease the process of tribal renewable energy development and allow tribes to take more active roles in that development.

Keywords: Indian, tribes, tribal, energy, renewable resources, mineral resources

JEL Classification: K10, K11

Suggested Citation

Royster, Judith, Tribal Energy Development: Renewables and the Problem of the Current Statutory Structures (January 31, 2012). Stanford Environmental Law Journal, Vol. 31, p. 91, 2012, Available at SSRN: https://ssrn.com/abstract=1996759

Judith Royster (Contact Author)

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States

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