Native American tribal rights & Federal permitting

In a previous blog, we cited our colleagues Gen. (ret) Rick Stevens and Col. (ret) John Eisenhauer for their excellent Pipeline and Gas Journal commentary on Federal energy permitting and how to overcome Native American tribal objections.

An interested reader wrote to Rick and John, asking whether their analysis applies only to pipelines. He also asked whether an energy company could drill on tribal lands without explicit permission and if so, would the tribe receive a royalty.

As background, the Bureau of Indian Affairs has posted this map of Indian land areas and reservations.

Since these are important issues in the Federal permit process, we’re happy to share John’s reply:

Our analysis would apply to any process or project that may impact tribal treaty rights, resources, and lands. For tribal lands, a company that wants to drill absolutely must get permission from the tribe or tribes before initiating action on those lands.

If the company’s proposed action involves a possible impact on treaty rights and/or tribal resources, the situation becomes a little more nuanced.  In those cases, if a tribe fails to reply to a good-faith effort from the government, then the government may deem the tribe’s non-reply as an indication that it has no objection.

In my experience as former Commander of the Corps of Engineers Portland District, we always pushed for and would ultimately receive a reply from the tribes.  We maintained good relationships with them and this helped as they understood that the Corps of Engineers was trying to find a balance. Tribes knew that we understood that the scales of justice tipped in their favor because they had the final say if or when there would be an impact on their rights, resources and/or lands.

Sometimes we watched companies negotiate directly with tribes before coming to the Corps with their permit application and this often resulted in concessions in scope, resources, and commitments.  But there were also many instances of direct company-tribal negotiations that set back permit approvals because company agents tried to run roughshod over tribal leaders.  I never even once had a tribal leader suggest anything untoward during a project negotiation.

Bottom line, if treaty rights, resources and lands are impacted, tribal consultation is required and most often permission is required.  It’s up to the tribes and an applicant to negotiate any terms regarding royalties.  To the extent that the Corps is involved, this presence helps ensure that any final agreement is legally sound and does not overturn federal precedent.

Col. (ret) Marc Hildenbrand
Senior Advisor

A member of the Dawson team since 2012, Marc heads our firm’s energy and pipeline permitting practice. He was formerly Commander, 937th Engineer Group, Fort Riley, KS and Baghdad, Iraq.

Dawson & Associates is pleased to offer this blog as a forum for our colleagues to comment on timely issues. These commentaries reflect the diverse backgrounds and opinions of our team and do not necessarily reflect the views of our company or others affiliated with it.