² For this last point, see generally Rebecca Tsosie, "Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge," Vermont Law Review, vol. 21 (1996), pp. 225, 272-87.
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³ For an introduction to renewable energy technologies written for Indian communities, see John Busch et al., Native Power: A Handbook on Renewable Energy and Energy Efficiency for Native American Communities (Berkeley, CA: Native American Renewable Energy Education Project (NAREEP), January 1998). NAREEP is a project of the University of California, Berkeley, and the Lawrence Berkeley National Laboratory. For information about NAREEP, contact John Busch, Staff Scientist, Lawrence Berkeley National Laboratory, 4000 Building 90, 1 Cyclotron Road, Berkeley, CA 94720; phone: (510) 486-7279; fax: (510) 486-6996; e-mail: JFBusch@lbl.gov.
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⁴ The Task Force for Developing Renewable Energy in Indian Country, Indian Tribes: Their Unique Role in Developing the Nation's Renewable Energy Resources: A White Paper (Salt Lake City, UT: Center for Resource Management, January 1997). See also U.S. Department of Energy (DOE), Title XXVI Indian Energy Resources: A Handbook (Washington, DC: March 1995). The appendices to the latter include some summary information on the distribution of renewable energy resources in Indian Country; these appendices are also included in the Task Force's White Paper.
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⁵ See Bruce Green, "The Jobs Connection: Energy Use and Local Economic Development," Solar Today (May/June 1995), p. 22.
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⁶ See Edward Holt, Green Power for Business: Good News From Traverse City (College Park, MD: REPP, July 1997); Edward Holt, Disclosure and Certification: Truth and Labeling for Electric Power (College Park, MD: REPP, January 1997); Peter Asmus, Power to the People: How Local Governments can Build Green Electricity Markets (College Park, MD: REPP, January 1998). Available at http://www.repp.org.
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⁷ See generally Tsosie, op. cit. note 2.
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⁸ Ibid., p. 276.
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⁹ See generally Rennard Strickland, ed., Felix Cohen's Handbook of Federal Indian Law (Charlottesville, VA: The Michie Company, 1982); Robert Clinton et al., American Indian Law: Cases and Materials: 3rd edition (Charlottesville, VA: The Michie Company, 1991); and David Getches et al., Federal Indian Law: Cases and Materials: 3rd edition (St. Paul, MN: West Publishing Company, 1993).
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¹⁰ See David Getches, "Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law," California Law Review, vol. 84 (1996), p. 1573. Over the past two decades, many cases in which the scope of tribal governmental authority has been at issue have turned on the application of the "implicit divestiture" rule, a new rule announced by the Supreme Court in a 1978 case (Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)). In Oliphant, the Court held that tribes can be divested of certain aspects of their inherent sovereignty by implication -- that is, without any express language in a statute or treaty. Before Oliphant, the basic principle held that tribal governments retained all those aspects of their original sovereignty that had not been given up in a treaty or expressly limited by act of Congress. See generally N. Bruce Duthu, "Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian Country," American Indian Law Review, vol. 19 (1994), p. 353. Curiously, the White Paper, op. cit. note 4, in its discussion of the inherent sovereignty of Indian tribes, simply ignores the implicit divestiture rule.
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¹¹ See generally Strickland, op. cit. note 9, pp. 180-206.
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¹² U.S. Code, vol. 18, sec. 1151.
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¹³ Information derived from U.S. Department of Commerce, American Indian Reservations and Trust Areas (Washington, DC: 1996).
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¹⁴ A federal study published in 1986 presented some of the relevant socioeconomic data, including a national average unemployment rate for reservation Indian males in the 20-64 age group of 58 percent, based on 1980 census data; U.S. Department of the Interior, Report of the Task Force on Indian Economic Development 5 (Washington, DC: 1986). A more recent source reports the unemployment rate for all reservation Indians as 48 percent in 1989, with the rate on some reservations much higher; Stephen Cornell and Joseph P. Kalt, "Reloading the Dice: Improving the Chances for Economic Development on American Indian Reservations" in Stephen Cornell and Joseph P. Kalt, eds., What Can Tribes Do? Strategies and Institutions in American Indian Economic Development (Los Angeles: American Indian Studies Center, University of California, 1992), p. 4.
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¹⁵ Currently codified at U.S. Code, vol. 25, sec. 177.
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¹⁶ See generally Judith V. Royster, "The Legacy of Allotment," Arizona State Law Journal, vol. 27 (1995), starting first page.
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¹⁷ Loss of land is but one of the disastrous effects of the allotment era. Elsewhere I have described the laws of the allotment era as constituting "cultural genocide." Dean B. Suagee, "Tribal Voices in Historic Preservation: Sacred Landscapes, Cross-Cultural Bridges, and Common Ground," Vermont Law Review, vol. 21 (1996), pp. 145, 153-57.
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¹⁸ Alaska v. Native Village of Venetie Tribal Government, 1998 U.S.L.W. 75038 (Feb. 25, 1998).
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¹⁹ Council of Energy Resource Tribes, 1999 Broadway, Suite 2600, Denver, CO 80202; phone: (303) 297-2378; fax: (303) 296-5690. See generally Marjane Ambler, Breaking the Iron Bonds: Indian Control of Energy Development (Lawrence, KS: University Press of Kansas, 1990). Ms. Ambler is editor of the Tribal College Journal at P.O. Box 720, Mancos, CO, 81328; phone: (970) 533-9145.
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²⁰ U.S. Code, vol. 25, secs. 2701-21.
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²¹ United Nations, Energy Issues and Options for Developing Countries (New York: 1990), pp. 214-16. See also Dean B. Suagee, "Self-Determination for Indigenous Peoples at the Dawn of the Solar Age," University of Michigan Journal of Law Ref. (1992), pp. 671, 740-43.
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²² See Ralph Cavanagh, "Least-Cost Planning Imperatives for Electric Utilities and Their Regulators," Harvard Environmental Law Review, vol. 10 (1986), pp. 299-319.
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²³ The Wampanoag tribal headquarters, located on the island of Martha's Vineyard, was featured in Burke Miller Thayer, "A Passive Solar Tribal Headquarters," Solar Today, January/February 1995, p. 30.
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²⁴ See Kate McQueen, "Promoting Energy Efficiency through Building Codes," Natural Resources & Environment, vol. 12 (1997), pp. 122, 124. McQueen notes that home buyers consider energy efficiency important but that they assume new homes are energy-efficient and that they generally lack the expertise, time, and ability to evaluate energy efficiency.
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²⁵ President's Council on Sustainable Development, Energy and Transportation Task Force Report 5 (Washington, DC: undated, but published in 1996).
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²⁶ The Model Energy Code is available from the Council of American Building Officials (CABO), 5203 Leesburg Pike, Suite 708, Falls Church, VA 22041; phone: (703) 931-4533. See generally McQueen, op. cit. note 24.
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²⁷ U.S. Code, vol. 42, secs. 4833-34.
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²⁸ McQueen, op. cit. note 24, at 125.
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²⁹ Public Law 104-330 (codified at U.S. Code, vol. 25, secs. 4101-212). See generally Robert J. Miller and Dean B. Suagee, "The New Indian Housing Act and Some of Its Environmental Implications," presented at the 9th Annual Conference on Environment and Development in Indian Country, sponsored by the American Bar Association Section of Natural Resources, Energy and Environmental Law, Albuquerque, NM, 20-21 November 1997.
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³⁰ Code of Federal Regulations, vol. 10, part 420. Similarly, the regulations for the Schools and Hospitals program, Code of Federal Regulations, vol. 10, part 455, include a definition of "Indian tribe" but no provisions to ensure that this assistance reaches Indian Country. The Department of Housing and Urban Development and DOE jointly sponsored the preparation by the National Renewable Energy Laboratory of a guidance document on residential energy efficiency for Indian housing, entitled Our Home: Buildings of the Land: Energy Efficiency Design Guide for Indian Housing, HUD-1410-CPD (Washington, DC: March 1994).
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³¹ For DOE program, see Code of Federal Regulations, vol. 10, sec. 440.11; for HHS program, see Code of Federal Regulations, vol. 45, secs. 96.40-48.
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³² For an introduction to restructuring issues, see generally Alan Miller and Adam Serchuk, "The Promise and Peril in a Restructured Electric System," Natural Resources & Environment, vol. 12 (1997), p. 118. Electric Power Committee, "1996 Annual Report," Natural Resources, Energy, and Environmental Law: 1996 The Year in Review, vol. 10 (1997), p. 13, discusses restructuring and explains Orders Nos. 888 and 889 of the Federal Energy Regulatory Commission, which affect the operation of and access to transmission facilities. See also Timothy Brennan et al., A Shock to the System: Restructuring America's Electric Utility Industry (Washington, DC: Resources for the Future, 1996). For analysis of restructuring in the specific context of tribal governments, see David Howarth et al., American Indian Tribes and Electric Industries Restructuring: Issues and Opportunities (Berkeley, CA: NAREEP, July 1997), available from the National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161, pub. no. LBNL-39804.
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³³ For a more detailed discussion of these and other options, including the option of a number of tribes joining together to aggregate their demands and thus increase their bargaining power, see Howarth et al., op. cit. note 32.
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³⁴ Application of Otter Tail Power Co., 451 N.W.2d 95 (ND 1990).
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³⁵ Baker Electric Cooperative, Inc. v. Chaske, 28 F.3d 1466 (8th Cir. 1994), Devils Lake Sioux Indian Tribe v. North Dakota Public Service Comm'n, 896 F. Supp. 955 (D.N.D. 1995). In a passing comment on the issue of where to draw the line between tribal and state power, the District Court said, "In a few years perhaps the entire issue will be pass_ in that the probable trend towards the de-regulation of electrical services will make the territorial integrity disputes merely interesting history." 896 F. Supp. at 961.
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³⁶ Baker Electric v. Otter Tail Power Co., 24 ILR 2141 (8th Cir. June 23, 1997), remanding to the Federal District Court.
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³⁷ See Miller and Serchuk, op. cit. note 32, p. 121.
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³⁸ In 1988 the Confederated Salish and Kootenai Tribes of the Flathead Reservation took over the operation of a dam on their reservation formerly operated by the Bureau of Indian Affairs. They accomplished the takeover through a contract pursuant to the Indian Self-Determination Act (U.S. Code, vol. 25, sec. 450 et seq.). Mission Valley Power, a tribally owned enterprise, now operates the dam. This example has limited potential for replication by other tribes as the BIA operates only two other hydropower dams. Telephone conversation with Don Dubay, Director, Mission Valley Power, 18 December 1997.
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³⁹ The regulations of the Federal Energy Regulatory Commission (FERC) governing hydropower licenses are mainly codified at Code of Federal Regulations, vol. 18, part 4. The Federal Power Act (FPA), codified as amended at U.S. Code, vol. 16, sec. 791a et seq., was originally enacted in 1920, a period in American history that was one of the low points in federal policy toward Indian tribes. The original law authorized the Secretary of the Interior to insist that hydropower licenses protect the rights of reservation Indians (U.S. Code, vol. 16, sec. 803(e)), but did not anticipate the possibility that a tribe might seek to operate its own project. The FPA as amended and the FERC regulations include no provisions recognizing that tribes as governments might have interests in licensing and relicensing comparable to the interests of state and local governments, nor do tribal governments qualify for the licensing preference that is available to state and municipal governments (U.S. Code, vol. 16, sec. 800(a)). This is a subject that should be explored, but is beyond the scope of this paper.
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⁴⁰ Public Law 102-486, title XXVI (codified at U.S. Code, vol. 25, secs. 3501-06).
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⁴¹ See Stephen L. Sargent and Ernest J. Chabot, "American Indian Reservations: A Showplace for Renewable Energy," presented at the 1996 Annual Conference of the American Solar Energy Society, Asheville, NC, 13-18 April 1996. The paper summarizes projects selected for assistance through this program. See also DOE, op. cit. note 4.
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⁴² Telephone conference with Stephen Sargent, U.S. Department of Energy, 19 December 1997. In fiscal year (FY) 1994, Congress appropriated $5 million for this grant program and obligated $4 million. In FY 1995, Congress appropriated $1.5 million, subsequently combined with the $1 million FY 1994 carryover funds. In FY 1996, Congress appropriated $8.6 million, of which it earmarked $6.1 million for a transmission line project from a coal-fired power plant on the Navajo Reservation, $2 million for a hydropower project in Alaska, and $500,000 for a feasibility study of a coal-fired power plant in Montana. In FY 1997, $4 million was appropriated, all of which was earmarked for hydropower projects in Alaska. In FY 1998, $4 million was appropriated, with all but $100,000 earmarked for hydropower projects in Alaska.
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⁴³ For information, contact Intertribal Council on Utility Policy, Box 116, Fort Pierre, SD 57532; phone: (605) 343-6054; fax: (605) 343-4722; Patrick Spears, ICOUP President MniSose@rapidcity.com; Robert Gough, ICOUP Secretary Rpwgough@aol.com.
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⁴⁴ U.S. Code, vol. 25, sec. 3503(a).
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⁴⁵ U.S. Code, vol. 25, sec. 3504.
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⁴⁶ A 1995 decision by FERC disapproving a plan developed by the California Public Utility Commission is said to have contributed to the bankruptcy of Kenetech Windpower, formerly the world's largest developer of wind power projects and manufacturer of wind turbines; Miller and Serchuk, op. cit. note 32, p. 120. Other factors also contributed to Kenetech's demise, but such events recommend caution in planning renewable energy projects.
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⁴⁷ Many tribes have utility commissions that regulate rates for water and sewer services. Tribal legislatures could expand the mandate of such commissions. On a few reservations the BIA regulates electric power rates, which are determined by the BIA Area Director. Code of Federal Regulations, vol. 25, secs. 175.10-12.
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⁴⁸ See Gregory Olson and Dean B. Suagee, "An Analysis of the Impact of Time-of-Day Rates on the Cost-Effectiveness of Passive Solar Heating," in Proceedings of the Ninth Passive Solar Conference (1984).
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⁴⁹ See Nancy Cole and P.J. Skerrett, "The Hopi Solar Electric Enterprise," Solar Today, September-October 1995, p. 20, reprinted from Renewables Are Ready: People Creating Renewable Energy (Order from Chelsea Green Publishing Co., 205 Gates-Briggs Building, P.O. Box 428, White River Junction, VT 05001).
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⁵⁰ James H. Williams, John Elliott, and Trisha Frank, "Good Energy: Native Americans Lead the Way," Winds of Change, Summer 1997.
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⁵¹ One source states that almost 18,000 homes on the Navajo Reservation lack electricity; DOE, op. cit. note 4, p. 15. On many other reservations, significant numbers of homes probably lack power as well. Moreover, photovoltaics could serve many remote power loads other than homes.
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⁵² In both 1996 and 1997, NAREEP has organized renewable energy workshops for tribal college instructors. For information on educational programs conducted by NAREEP, contact Vivian Gratton, NAREEP Education Programs Team Leader, 607 Centennial Street, Santa Cruz, CA 95060; phone: (408) 459-8942.
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⁵³ The regulations for the "schools and hospitals" program are codified at Code of Federal Regulations, vol. 10, sec. 455. I draw my anecdotal evidence from conversations with many people who work in Indian education. I hope my impression is wrong, but I think it is accurate.
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⁵⁴ Williams, Elliott, and Frank, op. cit. note 50, p. 16.
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⁵⁵ See Code of Federal Regulations, vol. 13, part 124, especially sec. 124.112.
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⁵⁶ For a more detailed discussion, see Catherine Baker Stetson, "Overcoming Transactional Obstacles to On-Reservation Lending," and Michael P. O'Connell, "Doing Business with Tribal Governments and Tribal Business Entities," both presented at the 9th Annual Conference on Environment and Development in Indian Country, sponsored by the American Bar Association Section on Natural Resources, Energy and Environmental Law, 20-21 November 1997.
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⁵⁷ For a discussion of different kinds of tribal business entities, see generally O'Connell, op. cit. note 56, pp. 18-33. See also Michael W. Cameron, "A Prototypical Economic Development Corporation for American Indian Tribes," in Cornell and Kalt, op. cit. note 14, p. 61. Indian Reorganization Act at U.S. Code, vol. 25, sec. 477.
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⁵⁸ Tax Status Act at U.S. Code, vol. 26, secs. 7871, 7872, 7873; authority to issue revenue bonds at Code of Federal Regulations, vol. 26, sec. 305.7871-1(c), (d). See Thomas M. Disselhorst, "Financing Options for Wind Power Projects in Indian Country," a paper presented at the 8th Annual Conference on Environment and Development in Indian Country, sponsored by the American Bar Association Section on Natural Resources, Energy and Environmental Law, Albuquerque, NM, 7-8 November 1996. The IRS has expressly determined that a number of tribal utilities are subdivisions of tribal government for purposes of federal excise taxes. IRS Rev. Proc. 84-36.
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⁵⁹ Code of Federal Regulations, vol. 25, part 103.
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⁶⁰ Rev. Ruling 94-16, as amplified in Rev. Ruling 94-65.
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⁶¹ See O'Connell, op. cit. note note 56, pp. 36-37.
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⁶² U.S. Code, vol. 26, sec. 7871, providing in part that an Indian tribe shall be treated as a state for purposes of U.S. Code, vol. 26, sec. 170 relating to income tax deductions for contributions and gifts.
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⁶³ U.S. Code, vol. 25, sec. 3504 and 3505.
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