The Tribal Energy Consortium, a Native American-led nonprofit organization, has created the first Model Tribal Energy Code for the self-governance of energy resources by Native American nations.[1] Developed in partnership with tribal governments, tribal energy enterprises and tribal law experts throughout the United States, the Model Tribal Energy Code provides a starting point for Native American nations to create a comprehensive, “best-of-all-worlds” set of tribal energy laws to establish self-governance over energy development and distribution within their jurisdictions.

The Model Tribal Energy Code provides Native American Nations with:

• A full legal code for tribal self-regulation of energy development activities;
• Legal terms that are recognized and accepted by the industry and the federal government, enabling tribes to assume direct control of energy resources and policies within their jurisdictions;
• Provisions that operationalize Native American sovereignty and replace state and federal control over tribal resources; and
• Streamlined procedures and partnering opportunities to create competitive advantages for tribal economic development.

The Model Tribal Energy Code presents a pathway for the advancement of Native American energy development – from being under federal regulatory authority to sovereign tribal governance. Utilizing efficient legal procedures and the strategic application of sovereignty to create commercial advantages, the Model Tribal Energy Code offers a new approach to the management of Native American energy resources and creates new sustainable energy opportunities for the long-term benefit of tribal communities.

TREMENDOUS RESOURCES, INADEQUATE FEDERAL MANAGEMENT

Native American lands are extraordinarily rich with mineral energy resources, such as coal, oil, gas and radioactive elements.[2] Tribal lands contain 30% of America’s coal reserves west of the Mississippi River, 50% of America’s uranium reserves and 20% of America’s known oil and gas deposits.[3] In addition to these extractive energy resources, the National Renewable Energy Laboratory has documented thousands of gigawatts of wind and solar potential present within tribal communities.[4] With appropriate management, Native American nations possess ample resources to not only become 100% self-sufficient in energy production, but they could readily export surplus energy for economic gain and to support American energy security.

However, the potential of Native American energy resources has not yet been realized due primarily to failures by federal agencies responsible for their development. Nearly every tribe in the United States currently has its energy resources under Bureau of Indian Affairs management, which the inspector general of the U.S. Department of the Interior has officially described as “ineffective” and “fundamentally flawed.”[5] As a result of inadequate management of tribal energy resources by federal agencies, only a fraction of tribal energy potential has been developed to date. Actual economic benefits to tribal communities have been disproportionately small.

OPERATIONALIZING TRIBAL SOVEREIGNTY

A clear and urgent need exists for tribal self-governance over their energy resources. The most viable approach is for Native American nations to assert their inherent sovereignty over the natural resources within their lands, managing the development and distribution of energy in accordance with tribal laws designed specifically to serve the needs and promote the interests of their citizens. However, for the regulation of energy, there is presently a gigantic gap in tribal laws. For over a century, federal and state governments have made a concerted and continual effort to enact and enforce energy-related laws within their jurisdictions.[6] In states with abundant energy resources, institutionalizing the authority of the state government over energy development is a clear priority. For example, the Oklahoma Statutes governing oil and gas development within the state are 262 pages long and comprehensively regulate all industry activities from resource ownership down to detailed operational matters, such as the hours when lights can be used on drilling rigs.[7] In contrast, only a handful of tribes have enacted even a fraction of the laws codified by the major energy-producing states – and most tribes have no energy governance laws at all. The severe performance deficiencies of federal energy management noted above provide an urgent call to action for tribal governments to operationalize their sovereignty over the energy sector by enacting laws for the self-governance of their resources.

THE MODEL TRIBAL ENERGY CODE

A necessary and fundamental institution for the governance of energy within Native American nations is the tribes’ legal codes. To provide the basis for tribal governments to regulate energy-related activities within their jurisdictions, the Tribal Energy Consortium has developed the first Model Tribal Energy Code in the United States. The goal of the model code is to create a “best-of-all-worlds” set of laws that provides tribal nations with 1) a complete legal code for the regulation of traditional and emerging renewable energy development, 2) legal terms that are already recognized and accepted by the federal government and key industry enterprises and 3) provisions that operationalize tribal sovereignty and create competitive advantages for the nation’s economic development.

To achieve these objectives, the foundation of the model code synthesizes terms from existing energy codes and related regulations adopted by the federal government of the United States, the governments of the primary energy-producing states and the governments of Native American tribes with established energy development programs. These codes were selected as a starting point based on their industry-recognized terms for regulating energy development activity. By starting from these codes, the model code adopts a structure and terminology familiar to and accepted by federal government agencies and industry entities tribes may partner with to develop and distribute energy within their communities. Chapters of the Model Tribal Energy Code include:

• 10. Purpose and Applicability.
• 20. Tribal Energy Department.
• 30. Tribal Energy Resource Agreements.
• 40. Environmental and Cultural Protection.
• 50. Rights of Way.
• 60. Drilling, Excavation, and Subsurface Activities.
• 70. Oil, Gas, and Mineral Energy.
• 80. Renewable Energy.
• 90. Taxation.
• 100. Tribal Utility Commission.

The model code is formulated to 1) recognize the sovereign authority of tribal governments and 2) enhance the efficiency and attractiveness of conducting energy development activity within the nation’s jurisdiction, consistent with the nation’s laws and oversight requirements. The requirements for responsible, transparent and documented actions by parties involved in energy development have been retained in the model code, but procedural matters are left to the discretion of the tribe. The tribal government is also empowered to apply its sovereign discretion to facilitate projects of particular urgency or benefit to its citizens and to require beneficial community engagement and information sharing.

NEXT STEPS FOR TRIBAL ENERGY SOVEREIGNTY

The Tribal Energy Consortium offers the Model Tribal Energy Code to tribal governments at no cost. The code is currently being adopted by numerous tribes in Oklahoma and throughout the United States. Combined with the unprecedented level of federal grant funds and technical assistance presently available to tribes for energy projects, the opportunities for tribal energy development have never been greater. Native American nations seeking to exercise self-governance over their energy resources are encouraged to contact the authors for details on implementing the Model Tribal Energy Code to enhance their energy sovereignty.

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ABOUT THE AUTHORS

Dr. Greg Guedel serves as legal counsel for the Tribal Energy Consortium and is the founder of Guedel Strategic Law, which serves Native American nations throughout Oklahoma and the United States. His legal practice emphasizes the representation of Native American tribes and businesses for strategic planning, risk management and economic development. Dr. Guedel may be contacted at greg@guedellaw.com.

 

 

 

 

Philip H. Viles Jr. is the first banking director for the Catawba Digital Economic Zone, the first jurisdiction created for fintech and digital asset growth in the United States. He served on the Cherokee Nation’s highest court from 1976 to 2002 and as chief justice for 16 years. In 2015, he began teaching at the TU College of Law for the Master of Jurisprudence in Indian Law Program. Mr. Viles may be contacted at pv@utulsa.edu.

 

 

 

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ENDNOTES

[1] The Tribal Energy Consortium is a 501(c)(3) nonprofit organization formed and governed by Native Americans, www.ndnenergy.org.

[2] U.S. Dept. of Energy, Office of Indian Energy Policy and Programs, Indian Energy Program Overview, p.6 (2018), https://bit.ly/49uXCc0, accessed Oct. 19, 2023.

[3] Shawn E. Regan and Terry L. Anderson, “The Energy Wealth of Indian Nations,” 3 LSU J. Energy L. & Resources 195, 196 (2014), https://bit.ly/4c5fyfl, accessed Oct. 19, 2023.

[4] National Renewable Energy Laboratory Technical Report NREL/TP-6A20-70807, July 2018, https://bit.ly/3uN1VAo, accessed Oct. 19, 2023.

[5] U.S. Dept. of the Interior Report Number CR-EV-BIA-0002-2013 (Oct. 20, 2014), https://bit.ly/48ALWmO, accessed Oct. 19, 2023.

[6] The first modern federal law specifically regulating the energy sector was the Federal Water Power Act of 1920, 16 U.S. Code Chapter 12.

[7] Oklahoma Statutes Title 52, Oil and Gas.