DEVELOPMENT OF WIND ENERGY WITHIN OKLAHOMA INDIAN COUNTRY

1. DEVELOPMENT OF WIND ENERGY WITHIN OKLAHOMA INDIAN COUNTRY Presented by Ken Bellmard kbellmard@kawnationtech.biz

2. Indian country defined 18 USC § 1151 - Indian country defined Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

4. TRIBAL BUSINESS ATTRIBUTES • Indian Tribes possess attributes of Sovereign immunity. • Indian Tribes possess corporate powers. • Minimal State regulation within Indian Country. • Reduced Bureaucracy. • Reduced tax liability. • Ability to react quickly to changing business environment. • Indian Tribes possess the ability to legislate business friendly laws.

5. TRIBAL BUSINESS ATTRIBUTES- Tax advantages Indian Tribal Businesses have reduced Federal and State tax liabilities. Indian Tribes may pass on tax advantages to properly established joint venture partners. Indian Tribes are eligible to issue tax exempt bonds. Reduced taxation for business operating within Indian Country. No property tax.

6. TRIBAL BUSINESS ATTRIBUTES-creation of Business friendly environment • Indian Tribes have the authority to legislate business friendly laws: • Corporate Codes • Limited liability Codes • Uniform Commercial Codes • Environmental Codes • Tribes may establish other business Codes specific to attracting business.

7. Ideally Located Oklahoma Indian Country is located at the “crossroads” of the US.

9. American Indians and the United States Constitution • Article 1 Section 2 Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed.... (The XIVth Amendment repeats this language with regard to Indians.) • Article 1 Section 8 Clause 3 (Commerce Clause): [The Congress shall] have power to... regulate commerce with foreign nations, and among the several states, and with the Indian tribes…

10. Johnson v. M'Intosh21 U.S. 543 (1823). Johnson v. M'Intosh21 U.S. 543 (1823). In a land dispute Marshall found, based on the Doctrine of Discovery first established by the Spanish to justify taking of Aboriginal lands, that the title to Indian lands belonged to the US Government and that Indians enjoyed only a right of occupancy. Indians were held to only have a claim to “aboriginal title.” Aboriginal title gives Indian tribes the right to occupy their lands but gives the Indians no ownership of that land. Thus, aboriginal title is similar to a lease: the lessee does not own the property but has the right to occupy and use the property. Aboriginal title is also subject to the U.S. government’s ability to “extinguish” that title. This means that Indians have a right to live on and use their homelands until the federal government removes, or extinguishes, that right.

11. Cherokee Nation v. Georgia 30 U.S. 1 (1831). Cherokee Nation v. Georgia 30 U.S. 1 (1831). Based on the Commerce Clause, the Supreme Court determined that Indian nations were not quite states but not foreign nations either. The Supreme Court found that the Cherokee Nation is not a foreign nation, because of the U.S. Constitution’s “Indian Commerce Clause.” The Indian Commerce Clause gives Congress the power to manage the United States’ affairs with the Indian tribes. Marshall made a textual argument in support of this finding under the Indian Commerce Clause: “foreign nations” and “Indian tribes” appear separately in the Indian Commerce Clause. Because the Founding Fathers wrote “Indian tribes” and “foreign nations” separately, Marshall reasoned that the Founding Fathers did not intend Indian tribes to be foreign nations. Marshall explained that, if Indians are not foreign nations, they are more properly referred to as “domestic dependant nations.” Furthermore, Marshall considered the Indians to be “savage,” and in need of receiving the gift of civilization from the white man. Thus, the Indians are in a “state of pupilage” and the U.S. acts as a guardian to a ward. This means that the U.S. government is in a position of authority similar to a parent managing the affairs of a child. The Indians are “pupils,” or students, of the European way of life and civilization.

12. Worcester v. Georgia 31 U.S. 515 (1832). Worcester v. Georgia 31 U.S. 515 (1832). The Court found that state law was inoperative within reservation boundaries. The issue in Worcester v. Georgia, was whether Georgia could rightfully incarcerate a non-Indian residing on Cherokee land for violating Georgia laws. The Court held that the Indian Commerce Clause reserved management of all Indian affairs exclusively for Congress. Justice Marshall interpreted this to mean that the states had no right to impose their laws on the Indians. Furthermore, because the U.S. government owed a duty of protection to the Indians, and the States had no such duty, federal Indian law “pre-empted” state laws. The result is that state law generally does not apply within Indian Country.

13. TITLE 25 — INDIANS [ 25 CFR ] PART 162 — LEASES AND PERMITS [ 25 CFR 162 ]

14. HEARTH Act The HEARTH Act (Helping Expedite and Advance Responsible Tribal Home Ownership Act) creates a voluntary, alternative land leasing process available to any Indian tribe that chooses to pursue it. A Tribe would have the authority to negotiate and enter into surface leases of tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each (or a primary term of up 75 years for residential, recreational, religious or educational purposes) without the approval of the Secretary of the Interior. This bill also requires the Indian tribe to develop tribal leasing regulations, including a streamlined environmental review process, and obtain the Secretary’s approval of these regulations, prior to entering into leases under the Act.