Native American Energy Act Threatens to Deregulate Fracking on Native American Reservations

February 11, 2016

Recently, the House of Representatives passed a bill entitled the Native American Energy Act.  The Bill seeks, inter alia, to remove government regulations from the development of energy resources on Native American reservations.  Its primary impact will be to remove the Bureau of Land Management’s new regulations on fracking.
The Bill came up for vote months after the BLM passed a new rule putting heavier regulations on fracking on federally owned lands and Native American reservations.  The new regulations are the first of their kind that the BLM has passed in 35 years.  While the BLM was making the rule, it held open discussions with Native American leaders, public entities, and private corporations.  The BLM also published four draft rules in effort to help come to a compromise over the best policy regarding fracking on Federal and Native American lands.
The Bill’s report claims that the new BLM regulations on fracking are unnecessary and are beyond the scope of what the BLM’s power.  Notably, the Report claims that the BLM wrongly groups lands held by the federal government with lands that the federal government holds in trust for Native Americans.  However, prior BLM regulations on fracking applied to Native Americans lands, and the issue was never litigated.   Additionally, the report claims that the BLM did not adequately consult Native American tribes during the rule making process, a claim that is patently incorrect.  Last the report claims that rule will add more paperwork to the fracking process, which will drive energy developers away from dealing on Native American reservations.  While it’s true that the new rule will require more paperwork, the amount of additional paperwork is trivial.
The Bill’s chief sponsor in the House, Republican Don Young from Alaska receives most of his campaign financing from the oil and energy industry.  He said that “The Native American Energy Act is critically important to Alaska Natives and American Indians because it levels the playing field for responsible resource development…”  The National Congress of American Indians, the Native American lobby has also endorsed the bill.
However, the view of the White House is skeptical of the new bill.  A White House official was quoted as saying ,

“Overall, (the Native American Energy Act) would not ensure adequate development of resources on Indian lands.”

Further, it is important to note that while the NCAI gave the bill its approval, the NCAI should not be seen as representative of Native Americans as a group.  Most Native Americans live on reservations in extreme poverty without access to a television or internet and were likely not aware that the Bill was being passed or any of its implications.  Thus, the NCAI’s approval of the Bill should not be seen as a determinative opinion of the Native American population.
All in all, it will be interesting to see what impact the Bill will have on energy development on Native American reservations.  There is a possibility that tribes will promulgate their own regulations, but this creates the risk of self-interested parties creating inadequate rules.