Carla Fredericks has posted “Plenary Energy,” forthcoming in the West Virginia Law Review, on SSRN.

Here is the abstract:

An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending legislation that would amend the 2005 Energy Policy Act in a manner that would allow tribes greater autonomy in developing their mineral resources without necessarily compromising the trust relationship. But, as this article suggests in using the Keystone XL Pipeline as a case study, tribes should not rely on Congress to act in the interest of tribal sovereignty unless they can attach this interest to a strong political impetus. Invoking both the United Nations Declaration on the Rights of Indigenous People and Convention No. 169 of the International Labour Organization, this article contends that attaining a understanding of American Indian rights as fundamental through an international human rights framework can help untangle the web of conflicting doctrines that very much defines American Indian law today, opening the door to a paradigm shift in the domestic relationship between tribes and the federal government that would allow tribes to attain economic self-sufficiency through their own assets.