Like most Americans, many renewable energy advocates and businesspeople know little about American Indian people and their communities. And like most Americans, many tribal government leaders do not know much about the various technologies for using renewable energy resources.³ To spread the use of renewable energy resources in Indian Country, different groups need to share information. We need to build bridges between tribal communities and those forging an energy future based on sustainable energy.

Reasons to Support Renewable Energy in Indian Country

Many reservations enjoy abundant renewable energy resources: solar, wind, water, biomass, and geothermal.⁴ Tribes in the northern plains have tremendous wind power resources; southwestern reservations have the most direct solar radiation; some western reservations have geothermal resources; and tribes in many regions have biomass resources. Renewable energy advocates in Indian Country tend to be tribal employees and community activists rather than elected officials, however. Transforming their enthusiasm into governmental policies presents some of the same challenges in Indian Country that it does throughout the nation. Although quite a few demonstration projects have been developed, no tribal government has yet made renewable energy development a matter of high priority, at least according to coverage in the national media or the Indian press.

If they considered the matter, tribal authorities would no doubt see that renewable energy systems offer wide benefits compared with conventional energy. These include lower operating costs, less vulnerability to fuel price increases, softer environmental impacts, and greater local self-reliance. On the many reservations where the unemployment rate dwarfs the national average and families live in poverty, policies that limit the cost of home heating should find broad support. Since renewable energy development tends to be more labor-intensive than the extraction of nonrenewable energy resources, supporting it should help bring jobs to communities -- recycling money spent on energy and related services into the local economy rather than sending it off the reservation.⁵ Tribal governments could develop tax policies to ensure that some of these funds provide revenue streams for governmental services (although, as noted later, taxation in Indian Country is a complex subject).

A number of renewable energy technologies, particularly photovoltaics (PVs) and small-scale wind power, are well suited to provide electric power for scattered homes and communities. Some reservations have widely dispersed homes and small communities unconnected to the electric power grid, and most reservations include many potential nonresidential uses for these technologies.

Tribal policies to promote renewable energy development in Indian Country need not be limited to meeting local energy needs. Renewable resources that can be converted into electric power at competitive prices can also serve off-reservation markets. At current prices, large-scale wind power projects tend to be the most competitive renewable technology, but other projects may fit the bill too. The marketplace for electricity is somewhat volatile because it is going through some "restructuring," but one emerging trend is the availability of "green" power offered to interested consumers at a premium price.⁶

Another approach to using reservation renewable energy resources for economic development is to manufacture products and provide services for off-reservation markets. This might involve, for example, using renewable energy to meet some energy needs when making conventional products marketed by Indian people (such as solar-heated art studios and jewelry workshops), or using it to manufacture renewable energy products (such as using wind turbines to provide electricity for making PV panels).

Many reservations have experienced firsthand the environmental damage caused by conventional energy development, including the side effects of mining coal and uranium, pollution caused by oil and gas extraction, and the disruption caused by large-scale hydroelectric dams. These communities offer fertile ground for renewable energy development. Moreover, given growing awareness of the risks of climate change, many people who care about the Earth and the living things with which we share it feel a sense of personal responsibility to reduce emissions of greenhouse gases.

Among many Indian people, care for the Earth and for living things constitutes a broadly defined but deeply held cultural value.⁷ Although tribal cultures differ significantly, traditional tribal worldviews display some common attributes, including a "concept of reciprocity and balance that extends to relationships among humans, including future generations, and between humans and the natural world."⁸ Tribal government policies that promote the use of renewables and that are expressly based on such cultural values should receive broad support from tribal people.

"Indian Country" and Federal Indian Law

Different legal principles apply within Indian Country than in most of the rest of the United States. These differences create both challenges and opportunities, and they cause real problems when ignored. In some ways the differences are profound and fundamental: tribes constitute sovereign governments within the U.S. federal system. Some tribes have achieved a substantial degree of sophistication in their governmental functions, enacting laws that affect energy use (building codes, land use ordinances, codes governing commercial transactions, and so on), using model codes or incorporating state laws with only minor changes in substance. Other tribes have not enacted such laws, or have enacted them without establishing working enforcement mechanisms. In short, people unfamiliar with federal Indian law tend to overlook the role of tribal governments as the source of authority within Indian Country for the laws that fall within the scope of state and local government authority elsewhere in the United States.

An introduction to federal Indian law is beyond the scope of this paper.⁹ In brief, while Congress is said to have "plenary power" over Indian affairs, tribal governments hold inherent sovereignty and also exercise power pursuant to delegations of authority from Congress. Within reservation boundaries, states generally have only limited powers over Indian lands and Indian persons. In some circumstances, states exercise authority delegated by Congress, and in some cases the exercise of authority based on inherent state sovereignty has been upheld, generally in matters involving non-Indians and lands that are not held in federal trust or restricted status. The legal principles that apply in resolving conflicts among these three kinds of sovereigns defy concise explanations, in part because the principles reflect the history of vacillating federal Indian policy and in part because many Supreme Court Indian law decisions of the past two decades have shown little regard for established principles when they interfered with results that a majority of the Justices favored.¹⁰

Over the last three decades, the federal policy toward Indian tribes, established by both the Congress and the Executive Branch, has supported tribal self-determination.¹¹ This policy, as reflected in a variety of federal statutes, establishes a framework in which tribal governments can take control of governmental assistance programs that would otherwise be administered by the federal Bureau of Indian Affairs (BIA) and the Indian Health Service. Building on this, many tribes are becoming increasingly proficient in administering a range of governmental services and in using their inherent sovereignty to fashion programs that serve tribal needs when federal programs fall short. Thus, in this era of tribal self-determination, tribes can use their governmental powers in many ways to promote the use of renewable energy in Indian Country. Officials need to be careful, though, in light of the uncertainty created by the Supreme Court's recent Indian law decisions.

As used in federal law, the term "Indian Country" encompasses all land within the boundaries of any Indian reservation of any federally recognized tribe plus all "dependent Indian communities."¹² Indian reservations, which are found in 33 states and which cover about 3 percent of the land area in the contiguous 48 states, exhibit a great deal of variety. Twenty-four reservations are larger than Rhode Island, but many others have only a few acres.¹³ A good number of reservations are located in remote rural areas; some are adjacent to or surrounded by metropolitan areas; most have high unemployment rates; and many have devastating poverty.¹⁴

When originally established, all lands within reservations were set aside for the exclusive use of the tribes, usually with legal title to the land held by the federal government in trust for the tribes. The concept of holding land in trust has historic origins, partly based on the practices of the sovereigns of Europe, who sought to prevent any non-Indian from claiming ownership of Indian land except by virtue of a transaction between the tribe and the sovereign. The federal law protecting Indian land from "alienation" (that is, being sold or leased) except as authorized by Congress was enacted by the first session of Congress in 1790.¹⁵ Some tribes, such as the New Mexico pueblos, hold the legal title to their land, but federal restrictions on alienation nevertheless apply.

The "allotment" era of federal policy, from about 1887 to 1934, opened many reservations to settlement by non-Indians, usually without tribal consent.¹⁶ This occurred through the division of land held in common by the tribe into "allotments" granted to individual tribal members, who were expected to become farmers. After making the allotments, the federal government made the "surplus" land available to non- Indians. Typically subject to federal trust restrictions for a limited period, the allotments then became subject to state property taxes; many parcels thus passed into non-Indian possession when their Indian owners failed to pay taxes. As a legacy of this era, many reservations have substantial populations of non-Indians and substantial amounts of privately owned land. By the end of this period, Indian landholdings had been reduced to about one-third of what they had been in the late 1880s.¹⁷ In recent years, a number of tribes have devoted substantial portions of available revenues to buying land within the reservation that had passed out of Indian possession.

Many Indian communities are also found outside Indian reservations. Federal law treats some of these in the lower 48 states as Indian Country because they are "dependent Indian communities." In Alaska, only one reservation remains after the Alaska Native Claims Settlement Act (ANCSA) of 1971, although there are more than 200 recognized tribes. In a case decided in 1998, the Supreme Court ruled that, as a result of ANCSA, former Indian reservations in Alaska are not "Indian Country."¹⁸

Numerous tribes have developed their local economies with revenue from their local energy resources, both renewable and nonrenewable. For many decades, quite a few reservations have been major sources of nonrenewable energy resources for the national economy. In the 1970s, several tribes joined together to form the Council of Energy Resource Tribes, and the new organization plays a leading role in helping tribes make better bargains for the extraction of resources.¹⁹

Within the last two decades, a large number of tribes have begun to generate revenue through gaming operations conducted in accordance with the Indian Gaming Regulatory Act.²⁰ This has brought a relatively small number of tribes phenomenal financial success, although it has also caused some members of the general public to assume mistakenly that tribes in general are now doing so well from gaming that they no longer need federal assistance. This illustrates the risk of making generalizations about Indian Country.

Over the past quarter-century, Indian peoples have made considerable progress in developing real local control over their lands through the federal policy of self-determination, and they have seen some significant improvements in socioeconomic conditions. Many Indian communities, however, remain among the poorest in the country. One key lesson that the American public should draw from more than two centuries of dealings with Indian tribes and nations is that the material welfare of Indian communities tends to improve when the larger society respects and supports the tribal right of self-government. Thus although renewable energy development will certainly improve the quality of life in Indian communities, outsiders who want to help realize these benefits should do so in ways that respect tribal self-government.

Tribal Sovereignty and Creative Problem Solving

American Indian tribal governments possess a range of sovereign powers, similar in many ways to the powers of state governments in the federal system. Tribal governments thus can do many of the same kinds of things as state governments to promote renewable energy, such as using government buildings and programs to showcase systems, enacting legislation, and creating regulatory programs to influence and in some ways control private decisions about energy consumption.

In the arena of energy consumption and regulation, however, these tribal powers are often more theoretical than real. State governments routinely do things that few tribal governments have even considered. Although a handful of tribes have created their own electric utilities along with a regulatory apparatus, these examples stand out largely because they are so unusual. (Tribes that have established electric utilities include the Navajo Nation in Arizona, New Mexico, and Utah; Tohono O'Odham Nation in Arizona; Fort Mojave Tribe in Arizona and California; Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana; and Metlakatla Indian Community in Alaska.)

In one sense, only the availability of the resource and the creativity of the individuals involved limit the options available to tribal governments. In another sense, tribal governments face many practical limits to what they can do, including constrained finances and competing demands for available funds, limited infrastructure for community education in Indian Country, and meager career training programs available to tribal members.

The allocation of scarce resources by tribal governments can be approached as an exercise in creative problem solving: given the goal of widespread adoption of renewables, what steps can be taken to reach that goal? A United Nations study of rural electrification in developing countries provides useful insight. The report identified four critical needs that must be addressed if renewables are to fill the electricity gap in the developing world: political will, locally available renewable energy resources and knowledge about them, the creation of local technical capacities, and the creation of appropriate funding mechanisms.²¹ These needs are generally applicable to renewable energy development in Indian Country as well.

These four needs may seem obvious, yet they remain critical. A community can only develop the renewable resources it has available. The use of relatively new technologies will more likely succeed over the long term if the people using the technologies also develop the capability to maintain them, and more people will be likely to invest in renewables if there are local sources of expertise in design and installation. Financing mechanisms are especially important for renewables. Many such systems save money when evaluated on a life-cycle basis, but few consumers consider life-cycle terms when purchasing energy.²²

Political will may be the most critical need, and it is required at all levels of government. Energy marketplaces are heavily influenced by governmental policies. Policies that favor conventional energy development tend to retard renewable energy development. Few U.S. political leaders are outspoken in support for renewable energy development. Tribal leaders could help change this.

Nevertheless, tribal members are American citizens who live in the modern-day United States. They share other Americans' dreams of material well-being. And like other Americans, they may be disinclined to invest in energy options that cost more up front, even if they save money in the long term. They may also resist paying more for energy options that benefit the entire community unless they know that everybody is paying their fair share. Renewable energy strategies for Indian Country have a better chance of success if they emphasize how such energy sources, in combination with energy conservation measures, can help people improve their quality of life.

Abstract Table of Contents Previous Section Next section