How do you go about leasing the oil and gas resources that exist on tribal lands? It is a complicated process involving trust land issues and numerous federal laws relating to energy production. Consulting with a law firm experienced in protecting the rights of Native Americans and their unique challenges can be instrumental in achieving an accurate overview of matters associated with oil and gas leasing rights on their lands.

As the American oil industry seeks to get more of its energy from within United States borders, the oil and gas rights on Native American trust lands has come under closer scrutiny. Tribal lands within the Unites States contain up to 20 percent of the country’s gas and oil resources, and they are controlled by a small concentration of tribal governments, who largely rely on the U.S. federal government for guidance and support.

Tribal Governments and Federal Oversight

Current legislation has emphasized giving tribal governments greater decision-making authority over their natural resources; however, the barriers to their economic development — particularly with regard to these resources — are exceptionally challenging.

The federal government continues to lend support and oversight to tribal governments based on the “trust doctrine” which loosely requires that the federal government provide:

  • Protection of Native American lands and First Nation usage rights.
  • Upholding of tribal sovereignty and self-governance.
  • Basic social, medical and educational services.
  • The federal government to act in the best interests of Native American tribes.

As a result of a major lawsuit in 2010 that led to a $3.4 billion class action settlement against the federal government’s mismanagement of individual trust funds, there is a much more intense scrutiny of federal government oversight is now in play. This has brought about immense legal challenges with regard to oil and gas rights on tribal lands.

Trust land oil and gas resources have come sharply into focus with U.S. government security concerns relating to “homegrown” energy harvesting and sustainability. Tribal lands host enormous resources, and have the potential to considerably elevate the Native American economy. External pressure and federal lobbying from the non-native energy industry has only increased the challenges. Oil and gas extraction from tribal lands is as controversial as it is in other communities in the country.

Native Americans living on Indian reservations rank as the most economically disadvantaged people in the United States. For those tribal lands with abundant oil and gas resources, such as the Navajo Nation, development can radically change this situation.

Important Challenges Exist with Regard to Oil and Gas Rights

Mineral wealth has been historically one of the underlying dynamics of national growth. The Native American holdings represent a potentially significant expansion of that wealth, if extracted. The Bureau of Land Management (BLM) reports that there are 42 federally recognized tribes that have gas and oil production, including the Navajo Nation in Arizona, New Mexico and Utah. There is a complex web of laws, precedents and oversights that must be adhered to, carefully and correctly.

Some key challenges include:

  • Federal government maintains trust obligations to these “domestic dependent nations,” and Indian lands cannot be legally encumbered or conveyed without federal approval.
  • Tribal governments are not uniform in constitution, direction or enforcement and may act arbitrarily with regard to oil and gas exploitation.
  • Some tribes, such as the Navajo Nation, have rejected the Indian Reorganization Act which gives these tribes a bit more power since they will not have to seek federal approval for tribal council legislation. But, legislation directing pertaining to trust property will still require such approval.

At C.J. Lee & Associates, P.C., we can assist in in all oil and gas rights issues, as well as the leasing initiatives available to you or your tribe. We have experience. We can help. Call us now for a consultation at 505-728-7799

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Did you know that Native American tribal governments, including the Navajo Nation, are not constitutional states or foreign entities, but “domestic dependent nations”? As such, these tribal governments retain many sovereign powers beyond the authority of the U.S. Federal government.

There are more than 500 tribal governments recognized by the United States government, some with control over very large territories, and with hundreds of thousands of members. The Navajo Nation has a population of over a quarter million and governs more than 15 million acres of land over three Southwestern states.

Who is Involved in Making Laws that Impact the Navajo Nation?

Tribal governments have greatly increased their political and economic impact on the rest of North America, and this has opened up concerns as to the exact definition of their powers. Retaining experienced legal counsel is vital to understanding your place in this. These discussions have included no less than:

  • The Supreme Court of the United States
  • The Unites States Congress
  • The federal Executive Branch
  • Tribal governments
  • States
  • Municipalities
  • U.S. businesses
  • Individual U.S. citizens

When Laws Stack Up, It Gets Complicated

Each tribal government makes its own constitutional laws, which often include older laws created in response to historical necessities that are no longer relevant, but still have the power to be invoked. In the past these laws were often in response to ongoing U.S. Government treaty negotiations, and not one cohesive constitution or body of legislation. Additionally, commercial and social interactions between U.S. constituents and Native Americans are controlled by many other levels of law, ranging from bordering cities to multiple departments of the federal government. As a result, the field of Native American law is possibly the most complex system of legislation in the world.

The most complicated legal relationship exists between the tribes and the states in which they exist. Laws established to keep the tribe and state jurisdiction clear has grown less distinct over time. Issues of tribal sovereignty in matters of non-Indian contracts have led to countless “compacts” (legally binding agreements) between tribal governments and state legislators. These compacts cover a wide area of subjects from taxes to physical resource entitlement.

A well-publicized series of compacts exists between the state and tribal governments concerning Indian gaming. Today it has grown far beyond its original establishment in the 1970’s, and has created a huge economy across the Indian Nation. Because tribal sovereignty overrode existing state prohibitions for gambling, the resulting laws regulating Indian gaming facilities are among the heaviest for any enterprise in the world.

Although the proliferation of Navajo Nation laws makes it harder for you to confidently guide your business, the Navajo Nation economy and culture continues to advance and tribal members and the outsiders doing business with them can find numerous opportunities to prosper. At C.J. Lee & Associates, P.C., we pride ourselves on being able to help steer our clients through any complicated issues without getting needlessly entangled in unseen regulations. We have experience far beyond the ordinary, and we can help you resolve even the stickiest problem. Call us now for a consultation at 505-728-7799

Introduction

How federal environmental legislation promoted tribal-regional consolidation

The 5 December 2016 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers appellate court ruling in favor of the Standing Rock Sioux tribe’s request for cease of construction of the Dakota Access Pipeline adjacent to the territorial boundaries of the Native nation by Energy Transfer Partners. The landmark decision to deny the easement required for permit of the $3.8 billion under- construction pipeline that would carry crude oil 1,200 miles across four states, to bore under Lake Oahe, was based on legislation protecting federal lands.

Standing Rock has become synonymous with protest, as the tribe has maintained its Treaty rights extend beyond the territory in question. Now indisputable that federal environmental legislation preempts the company’s rights to continue construction under a protected waterway, as well as tribes claim of sovereign territorial jurisdiction of those waters. This follows a 9 September 2016 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers federal court decision, and statement by three federal agencies in September 2016, that would have allowed Energy Transfer Partners to proceed with the pipeline construction.

CERCLA, CWA, FWPCAA, and Oil Pollution Act of 1990

The federal appellate court ruling in favor of the Standing Rock Sioux Tribe DAPL complaint, reflects judicial adherence to Clean Water Act 33 U.S.C. §1251 et seq. (1972) and related regulation protecting national waterways. Legislative foundation to induction of the Environmental Protection Agency (EPA) itself under President Nixon, the CWA was informed by the Federal Water Pollution Control Amendments (FWPCAA) 33 U.S.C. §1251- 1376 et seq. (1948), amended between 1952 and 1988. The goals of the CWA ensure healthy access to water by humans and wildlife. Regulation of dischargers is outlined in the guidelines to permit for, and control of oil spillage, and effluents from factories and wastewater plants under the National Pollutant Discharge Elimination System (NPDES) of 1972.

Prior to enactment of the CWA, the Federal Water Pollution Control Act of 1948 provided the basis regulation and: 1) establishment of a regulatory framework to pollutants discharge control in the jurisdictional waters of the US; 2) formative basis to Environmental Protection Agency (EPA) policy and administration; 3) a system of standards to audit and control of contaminants; 4) codified restrictions on use of waterways; 5) financial allocation guidelines to planning of municipal construction of sewage and related facilities; and 6) procedure to surface water pollution response. Oil spillage is part of the surface-water-quality index definition of primary water pollutants in addition to heavy metals, synthetic organic compounds, and dissolved solids.

By 1990 the Oil Pollution Act 33 U.S.C. §2701 et seq. amended the CWA to include Spill Prevention Control and Countermeasure Plans for oil transport in waterways, as well as compliance audit, mandated by state EPAs or Departments of Environmental Management (DEMs). Monitoring of Total Maximum or Daily Loads (TMDL) is part of the state-by-state strategy for the control and reporting of industrial pollutant flows in waterways. Distributors and indirect dischargers involved in the treatment of effluents such as chemicals, oils, and waste, must perform those processes in accordance with the standards laid forth by EPA federal regulation.

Wetlands defined in the CWA classify types of wetlands preserves, and abatement and control measures allowed by classification. Other regulatory guidelines to the CWA provide for rules to: groundwater contamination; combined sewer overflow; and farm run-off. The Coastal Zone Management Act 16 U.S.C. ch. 33 § 1451 – 1464 (1972) furthers regulatory enforcement of the management and use of ocean and great lake fronts. The Safe Drinking Water Act (SDWA) 42 U.S.C. §300f et seq. (1974) supports public health administration in Food & Drug Administration (FDA) control of municipal waterways in accordance with EPA rules to testing of drinking water for microbial pathogens, oil and other chemicals such as pesticides.

The Comprehensive Environmental Response, Compensation, and Liability Act 42. U.S.C. §9601–9675 (1982) Superfund policy for taxation of chemicals is a system of federal accountability which allows the EPA to monitor and fine non-compliant entities. The decision by the appellate court to refuse the easement allowing for construction permit of DAPL, is in part based on Energy Transfer Partners inability to follow CERCLA guidelines. CERCLA sets limits to pollution in compliance with U.S. federal government regulatory rules, and serves to determine the scope of liability companies sustain for contamination of the environment, in cases involving oil spills and other toxic releases in federal waterways.

Superfund also involves a public action warning system to mitigate exposure. The policy is intended to leverage EPA compliance for long-term remediation of risk, and legal representation on behalf of the public good. EPA enforcement of protections of waterways from manufactured chemicals, oil, pesticides etc., and waste disposal of those products follows CERCLA guidelines.

DAPL: A Tribal-Public Choice

During the DAPL protests, the question has been effectively asked, “so is it federal land or Sioux land?”, pointing to the issue of sovereignty bound with a protest waged against big oil, and the threat of toxic tort violations to reservation waterways. In a Native American Indian political context undergoing change, the opportunity to restate Treaty rights asserts an interest in consolidation of adjacent lands to reservation governance for the protection and betterment of those natural reserves and waterways, through the enforcement of federal regulatory legislation. Such as scenario would put the federally recognized tribal nation in the role of political leadership; prioritizing an agenda of federal land and waterways preservation and conservation, and participatory governance of the region with private land owners.

by: Tamara Campbell

References

Cox, R., 2010. Environmental Communication and the Public Sphere. London: Sage Publications.

DAPL: Treaty law vs federal law. Kare 5 Dec 2016. http://www.kare11.com/news/dapl-treaty-law-vs-federal- law/362249021

Dennis, B. and F. Mufson. Army Corps ruling is a big win for foes of Dakota Access Pipeline. Washington Post 5 Dec 2016. https://www.washingtonpost.com/news/energy-environment/wp/2016/12/04/army-will-deny-easement- halting-work-on-dakota-access-pipeline/?utm_term=.cea2733c872f

Kennedy, M. Judge Rules That Construction Can Proceed On Dakota Access Pipeline. The Two Way: Breaking News from NPR 9 Sept 2016. http://www.npr.org/sections/thetwo-way/2016/09/09/493280504/judge-rules-that- construction-can-proceed-on-dakota-access-pipeline

Landy, M.K., et al., 1994. The Environmental Protection Agency: Asking the Wrong Questions – From Nixon to Clinton. New York & Oxford: Oxford University Press.

Lightbody, J., 2009. Defining A Canadian Approach To Municipal Consolidation In Major City Regions. Commonwealth Journal of Local Governance, 3, 2009.

Office of Public Affairs, 2016. Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. U.S. Department of Justice 9 Sept 2016. https://www.justice.gov/opa/pr/joint-statement-department-justice- department-army-and-department-interior-regarding-standing

U.S. Environmental Protection Agency, 2017. http://www.epa.gov