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Increasing Tribal Self-Determination Over Energy Resources Rollie Wilson, Attorney

2015 Tribal Webinar Series: Regulatory Impacts of Renewable Energy Tribal Projects on Indian Lands June 24, 2015. Increasing Tribal Self-Determination Over Energy Resources Rollie Wilson, Attorney. Overview of Indian Energy Law and Policy

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Increasing Tribal Self-Determination Over Energy Resources Rollie Wilson, Attorney

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  1. 2015 Tribal Webinar Series: Regulatory Impacts of Renewable Energy Tribal Projects on Indian LandsJune 24, 2015 Increasing Tribal Self-Determination Over Energy Resources Rollie Wilson, Attorney

  2. Overview of Indian Energy Law and Policy • Indian energy laws and policy were originally based on energy extraction, passive tribal involvement. • More recent laws and policy modeled on self-determination improved the situation, but: • Congress and Courts limit tribal taxing and bonding authority, • Congress, Courts and Agencies limit Tribal jurisdiction, and • Tribal budget and financing subject to political swings in Congress.

  3. Current Status of Self-Determination Laws Related to Energy Resources • Tribal Government Tax Status Act of 1982 (P.L. 97-473, Title II) • Indian Mineral Development Act of 1982 (P.L. 97-382) • Indian Tribal Energy Development and Self-Determination Act of 2005 (P.L. 109–58, Title V) • Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (P.L. 112-151)

  4. Renewed Focus since 110th Congress • Seeking laws and policies that promote tribal governmental authority and true self-determination. • Identified 3 major obstacles to Indian energy development: 1) Lack of staff and expertise to manage the multi-agency federal permitting process. 2) Lack of access to and capacity on transmission networks. 3) Lack of tax revenues, tax credits, and investment incentives.

  5. HEARTH Act Pros forTribal Governments • Take over lease approval process • Tribal regulations include tribally defined standards and processes • Streamlined lease approval process • Tribal control over environmental review and response to public comments

  6. HEARTH Act Cons for Tribal Governments • Tribal regulations must be consistent with BIA’s • Public comment on leases of trust lands and resources • Erosion of trust responsibility • Time and investment in regulatory infrastructure

  7. Three major obstacles to Indian energy development: 1) Lack of staff and expertise to manage the multi-agency federal permitting process. 2) Lack of access to and capacity on transmission networks. 3) Lack of tax revenues, tax credits, and investment incentives.

  8. Filling in Missing Pieces and New Authorities • Prevent Dual Taxation of Tribal Energy Development • Provide Access to Financing and Tax Credits • Provide Access to Transmission Lines • Support Distributed Generation and Community Transmission

  9. Prevent Dual Taxation of Tribal Energy • 25 C.F.R. § 162.017 makes clear that state taxation of lease improvements, activities and possessory interests is prohibited • § 162.017 Upheld in Seminole Tribe v. Florida (2014) “The Court finds the Secretary’s preemption analysis thorough and persuasive. For the reasons detailed by the Secretary of the Interior, this Court finds that the federal regulatory scheme regarding leases of restricted Indian land is so pervasive that it precludes the additional burdens imposed by Florida’s Rental Tax.” • Proposed 25 C.F.R. § 169.009 would provide the same prohibition of state taxes for right-of-ways • Dual taxation of mineral leases still allowed under Cotton Petroleum v. New Mexico (1989)

  10. Provide Access to Financing and Tax Credits • Repeal the “essential government function” test of the Tribal Government Tax Status Act • Implement the Department of Energy’s $2,000,000 Indian Energy Loan Guarantee Program • Enact into law IRS May 8, 2013 Private Letter Ruling finding that a “Tribe may elect to pass investment credits associated with the Renewable Energy Assets to Lessee”

  11. Provide Access to Transmission Lines • Treat energy generated on Indian lands as Federal energy generated or acquired by the United States for the purposes of transmitting and marketing such energy.

  12. Support Distributed Generation and Community Transmission • Many tribal communities are beyond the grid and traditional energy providers • Lessen reliance on expensive diesel fuel • Utilize energy resources on-site • S. 1219 distributed generation, S. 1227 micro-grids • Indian energy distributed generation pilot program

  13. Increasing Tribal Self-Determination Over Energy Resources • Recognize the governing, infrastructure and economic responsibilities of tribal governments. • Provide parity and untying the hands of tribes. • Fill in gaps in federal self-determination. • Increase tribal authority and affirming tribal self-determination from within. • Acknowledge treaty and trust responsibilities.

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