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New Divisions In Indian Country Over Energy Justice

By Matthew Fletcher, Michigan State University College of LawMay 2, 2017, 11:35 AM EDT

Matthew L.M. Fletcher

The new administration’s undoing of the Obama administration’s clean environment rules, especially hydraulic fracking regulations and the Clean Power Plan, portend great division in Indian country as the few dozen energy tribes, whether they like it or not, stand apart from the remaining tribes.

Energy tribes, such as the Southern Ute Indian Tribe, had sued the government to undo the Obama Administration’s fracking regulations on the clever and unifying claim that the government pushed through the regulations without consultation with Indian tribes required under various federal statutes and the general trust relationship. Virtually every Indian tribe can support that claim. In fact, a key legal argument against the Dakota Access pipeline, for example, involved a lack of consultation, a claim backed by the Obama administration’s January 2017 tribal consultation report.

Secretary of the Interior Ryan Zinke quickly acted after the president’s momentous rollback of environmental protections. A new initiative creates a Royalty Policy Committee consisting of federal, state, industry, public interest and tribal representatives to advise the secretary on the fair market value of mineral and energy resources. That tribal representatives are included in this committee may salve some tribal leaders who worried the new administration would not continue the federal government’s consultation practices.

But most Indian tribes are not energy tribes, and most Indian people are not supportive of natural resources extraction. Energy tribes such as Navajo and Hopi are intensely split over resources extraction, with influential organizations such as Diné CARE (Citizens Against Ruining our Environment) organizing and litigating against reservation resource extraction. Other tribal communities have been all but ruined by intense resource extraction, exemplified by the Mandan, Hidatsa and Arikara Nation on the Fort Berthold Reservation (MHA nation). Just a decade ago, as prices soured, fracking exploded on the reservation. So did drug and violent crimes, human trafficking and horrific impacts on sacred lands. The New York Times strongly suggested that the tribal council was wracked with corruption once inundated with cash.

And, of course, Indian tribes in the Great Plains, the Great Lakes and the Pacific Northwest are leading the charge against pipeline construction, fish habitat destruction and other threats to water and the environment. Indian people and their allies have formed nonprofit groups like Honor the Earth to challenge any threats to reservation environments.

With so many tribes, groups and Indian people aligned in favor of environmental justice, the national organizations that normally lead the charge of a unified Indian country against attacks on tribal sovereignty, especially the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF), are hamstrung because they cannot side against any one Indian tribe against another. In the event Congress and the Administration champion a significant alteration in the federal trust relationship that would benefit energy tribes’ ability to extract resources, as has been contemplated in recent years, NCAI and NARF would likely have to sit out the debate if non-energy tribes objected to the proposals. Imagine if the MHA nation or another energy tribe intervened in the in the Dakota Access pipeline litigation on the side of the federal government or the pipeline construction company, for example. Both organizations might have to step aside on the political and legal fronts.

Energy tribes have a compelling argument about their untapped resources. Navajo, Hopi, Crow, Southern Ute and many others have been the victims of decades, if not centuries, of exploitation by the United States and private enterprise. For more than a century, the U.S. Department of the Interior stripped Indian reservations of coal, timber and other resources with little or benefit to Indian tribes or Indian people. Supreme Court cases like Tee-Hit-Ton Indians v. United States, United States v. Sioux Nation, and United States v. Navajo Nation arose from either the straight out confiscation of Indian resources or the exploitation of those resources for pennies on the dollar of their fair market value. It is only natural that energy tribes desire to profit from their own resources rather than others after being exploited for so long.

But the bitter internal struggled permeating some energy tribes now could easily expand to national intertribal conflicts. The Native Village of Kivalina’s failed federal court suit seeking damages from major fossil fuel extraction businesses portends those greater conflicts. Kivalina is one of many Indian communities in Alaska and elsewhere severely impacted by climate change — it is literally falling into the sea as ocean levels rise and winter storms become more dangerous. Other tribes are seeing fewer fish and game habitats due to climate change impacts. If energy tribes become ever greater players in resource extraction, it is merely a matter of time before environmentally oriented tribes begin to challenge them in court and in politics.

If so, then we might see a terrible battle over competing claims to tribal sovereignty — tribal energy against tribal environments. The opening shots in that battle are already being fired in Congress. In February, Rep. Markwayne Mullin, a Cherokee Nation member representing Oklahoma District 2, berated Standing Rock Sioux Tribe council member Chad Harrison over the tribe’s opposition to the Dakota Access pipeline. In March, Raul Grijalva, representing Arizona District 3, asserted that the Trump administration’s energy policies stoke the energy industry’s “fundamental lust” for tribal and public resources and lands. It may be just a matter of time before congressional rhetoric turns more to action, and tribal communities line up against each other.

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.