NEW TOWN The chairman of the Three Affiliated Tribes is asking a Senate committee to help the North Dakota tribe prevent its lands and resources from being treated as public lands and returning the authority over these lands to the tribal government.
"We have long been living in the era of self-determination, yet federal actions, laws and policies continue to unnecessarily intrude on tribal governments or limit our ability to utilize our resources," Tex Hall, tribal chairman, told members of the Senate Committee on Indian Affairs recently.
He said the committee needs to lead Congress and propose legislation that will provide protections and authorities so the tribe will be able to adapt to the environmental changes it faces and be able to manage its resources to sustain its rights, lifestyles and homelands.
Hall appeared July 19 before an oversight hearing on impacts of environmental changes on treaty rights, traditional lifestyles and tribal homelands.
Referring to the Garrison Dam project and creation of Lake Sakakawea, he said the federal government flooded tribal homelands and economic resources for the public purposes of navigation, irrigation and flood control on the Missouri River. Then, he said, the federal government expanded its authority over tribal lands, displacing tribal authority and, in some significant cases, applying public lands policy to Indian lands.
Hall cited cases of the federal government treating Indian lands as public lands and federal laws imposing public lands policy on Indian lands.
"I believe the federal government needs to keep its public lands policies separate from its trust responsibility for Indian lands. This kind of confusion about the management of Indian lands and resources can lead to the mismanagement of our trust resources and potential litigation.
"For example, the BLM (U.S. Bureau of Land Management) is currently developing new regulations for hydraulic fracturing used in the oil and gas development process on public lands. Because the Department of the Interior has delegated some permitting responsibilities on Indian lands to the BLM , the BLM intends to apply its public lands regulations to Indian lands," Hall said.
"This," he said, "is a serious mistake. Indian lands should not be managed according to public interest standards. Indian lands should be managed according to the federal government's trust responsibility and, even better, should be managed in cooperation with tribes in a manner that promotes tribal authority."
He said that even Congress was clear on this point when it passed the Federal Land Policy and Management Act of 1976 and created the BLM.
"Congress specifically stated that the BLM does not have authority on Indian lands. Congress provided BLM with authority over 'public lands' and specifically said that 'lands held for the benefit of Indians' are not a part of 'public lands,' " he said.
Hall said the Three Affiliated Tribes the Mandan, Hidatsa and Arikara Nation should have the right to be excluded from BLM regulations for public lands.
"If we do not have the right to determine ourselves if a public land regulation is in our best interest or not, then it will result in our treaty rights and our sovereignty being made subordinate to public lands policies, in violation of the federal government's trust responsibility and our treaty rights," Hall said.
Last month the Three Affiliated Tribes hosted a two-day meeting one in a series of consultation meetings between the BLM, BIA and tribal nations on hydraulic fracturing, also voicing that "Indian lands are not public lands BLM has no authority on Indian lands."
Hall also told the Senate committee the application of the National Environment Policy Act, better known as NEPA, and other federal public land laws and policies on the tribal lands displaces the authority of the tribe to manage and regulate its own resources.
"The MHA Nation should have the right to make its own decisions on how our resources are used and developed. We know how to best protect our land. We have done it for centuries. When we need the help of our federal trustee, we have always asked for it," Hall said.
Referring again to the BLM's proposed rule, he said it would add an additional layer of regulation to hydraulic fracturing.
"I am not convinced that it is necessary in light of the existing safeguards. What does concern me is the potential chilling effect these additional regulations could put on development of our oil and gas resources because the federal regulations impose more expensive requirements than those that industry is subject to just outside the Fort Berthold Reservation," Hall said.
Fort Berthold Reservation is in the heart of the Bakken, a lucrative oil formation. Hall said the reservation has gone from zero producing wells to almost 300 in the past four years. This year, he said, they expect more wells to be drilled on the reservation than were drilled in the first four years combined and in 2013, another 300 wells are expected to be drilled.
He said the Three Affiliated Tribes and other Great Plains tribes often face unemployment of about 70 percent.
"These days our unemployment is at an all-time low of 6 or 7 percent. In much of Indian Country unemployment levels that low are unheard of," Hall said. He said many tribal members have become entrepreneurs, establishing their own businesses to support the oil and gas industry and hiring and supporting both tribal members and nonmembers alike.
At last count, he said 905 vendors are providing services directly to the oil and gas industry, and each of those vendors employs between four and 24 people. "Based on an average employment of 12 jobs per company, that is in excess of 10,000 jobs. Our energy will result in hundreds of millions of dollars in direct and indirect economic activity and provide the MHA Nation and our members with a substantial opportunity to fund government operations and invest in our communities," Hall said.
But even with these successes, Hall said, the MHA Nation still struggles for every single oil and gas permit.Hall said Congress and the federal government must support laws and policies that:
Affirm and protect the treaties and the tribal government's civil and regulatory authority over its own territory, including the authority to tax without the ever-present threat of economy killing dual state taxation of reservation commerce.
Reduce regulatory burdens that limit tribal economic development.
Provide appropriate funding levels for tribal infrastructure needed to facilitate economic development.
Provide low-interest loans and grants large enough to allow tribes to invest in the types of businesses which will enhance the Three Affiliated Tribes'
long-term economic growth.
Give industry and investors incentives to partner with the MHA Nation in building and owning its own energy resources.