Understanding Native American tribal sovereignty and the federal energy permit process

As Gen. Stevens and Col. Eisenhauer explain, the U.S. Army Corps of Engineers has a long history of requiring that Native American tribes be fully brought into energy project permit processes.

In recent years, major energy projects have encountered either significant delays or been stopped entirely due to permitting issues involving Native American tribal rights. This is a huge issue in the federal permitting process and any applicant that neglects to treat tribal treaty rights seriously and with the utmost respect is seriously undermining the likelihood of receiving required federal permit approvals.

Writing in the April 2019 issue of Pipeline & Gas Journal, one of the energy industry’s best-read publications, my Dawson colleagues Major General (Ret.) Rick Stevens and Colonel (Ret.) John Eisenhauer explain why federal permit applicants must carefully understand both tribal rights and how the Army Corps of Engineers handles energy permitting. An excerpt:

Legally, if a project has more than a de minimis impact on tribal treaty rights, resources and lands, a tribe may have the final word on whether the project can proceed.  In reality, based on our experience, tribes are hesitant to expose their reserved rights to litigation.  Hence, if a tribe is willing to do so, it likely believes it has a solid record to support its claims and is therefore more likely to prevail.

Likewise, the Corps of Engineers has an extensive process for determining whether a project’s impact meets the de minimis threshold. Knowing that litigation can be costly and time consuming, early coordination may be the more preferred approach for all parties….

Corps of Engineers regulations… establish that federally recognized tribes have a preeminent right to be consulted on infrastructure projects, including pipelines, which potentially impact their lands, treaty rights, and protected resources. The Corps of Engineers, as part of the Department of the Army, has a “trust relationship” with tribes [and] a responsibility to represent and protect the rights of federally recognized Native American tribes.

As Rick Stevens and John Eisenhauer explain in detail, applicants seeking federal pipeline and energy permits must appreciate the importance of tribal nation sovereignty. Proper coordination with the Corps of Engineers can be vital to overcoming objections, reaching reasonable consensus, and ultimately obtaining a legally sustainable federal permit.

To read the rest of the article, click here.

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.