[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




       TRIBAL ENERGY RESOURCES: REDUCING BARRIERS TO OPPORTUNITY

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                 THE INTERIOR, ENERGY, AND ENVIRONMENT

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 17, 2018

                               __________

                           Serial No. 115-91

                               __________

Printed for the use of the Committee on Oversight and Government Reform



              [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



          Available via the World Wide Web: http://www.fdsys.gov
                         http://oversight.house.gov
                        
                       

                                 ________
                       
                     U.S. GOVERNMENT PUBLISHING OFFICE
                
31-368 PDF                   WASHINGTON: 2018
                                              
                       
                       
                       
                       
              Committee on Oversight and Government Reform

                  Trey Gowdy, South Carolina, Chairman
John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland, 
Darrell E. Issa, California              Ranking Minority Member
Jim Jordan, Ohio                     Carolyn B. Maloney, New York
Mark Sanford, South Carolina         Eleanor Holmes Norton, District of 
Justin Amash, Michigan                   Columbia
Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
Virginia Foxx, North Carolina        Jim Cooper, Tennessee
Thomas Massie, Kentucky              Gerald E. Connolly, Virginia
Mark Meadows, North Carolina         Robin L. Kelly, Illinois
Ron DeSantis, Florida                Brenda L. Lawrence, Michigan
Dennis A. Ross, Florida              Bonnie Watson Coleman, New Jersey
Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
Rod Blum, Iowa                       Jamie Raskin, Maryland
Jody B. Hice, Georgia                Jimmy Gomez, Maryland
Steve Russell, Oklahoma              Peter Welch, Vermont
Glenn Grothman, Wisconsin            Matt Cartwright, Pennsylvania
Will Hurd, Texas                     Mark DeSaulnier, California
Gary J. Palmer, Alabama              Stacey E. Plaskett, Virgin Islands
James Comer, Kentucky                John P. Sarbanes, Maryland
Paul Mitchell, Michigan
Greg Gianforte, Montana

                     Sheria Clarke, Staff Director
                    William McKenna, General Counsel
                          Emily Wong, Counsel
                         Kiley Bidelman, Clerk
                 David Rapallo, Minority Staff Director
                                 ------                                

          Subcommittee on the Interior, Energy and Environment


                   Greg Gianforte, Montana, Chairman
Paul A. Gosar, Arizona, Vice Chair   Stacey E. Plaskett, Virgin 
Dennis Ross, Florida                     Islands, Ranking Minority 
Gary J. Palmer, Alabama                  Member
James Comer, Kentucky                Jamie Raskin, Maryland
Michael Cloud, Texas                 Jimmy Gomez, California
                                     (Vacancy)
                                     
                                     
                                     
                                     
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 17, 2018....................................     1

                               WITNESSES

The Honorable Alvin Not Afraid, Jr., Chairman, Crow Tribe of 
  Indians
    Oral Statement...............................................     4
    Written Statement............................................     7
The Honorable Adam Red, Councilman, Southern Ute Indian Tribe
    Oral Statement...............................................    11
    Written Statement............................................    13
Mr. Eric Henson, Executive Vice President, Compass Lexecon; 
  Research Affiliate, The Harvard Project on American Indian 
  Economic Development; Visiting Senior Scholar, The Harvard 
  University Native American Program
    Oral Statement...............................................    23
    Written Statement............................................    25
Mr. Christopher Deschene, Partner, Rosette, LLP
    Oral Statement...............................................    40
    Written Statement............................................    42

                                APPENDIX

Statement for the Record of the Property and Environment Research 
  Center, submitted by Chairman Gianforte........................    60
  
  

 
       TRIBAL ENERGY RESOURCES: REDUCING BARRIERS TO OPPORTUNITY

                              ----------                              


                         Tuesday, July 17, 2018

                  House of Representatives,
         Subcommittee on the Interior, Energy, and 
                                       Environment,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 10:08 a.m., in 
Room 2247, Rayburn House Office Building, Hon. Greg Gianforte 
[chairman of the subcommittee] presiding.
    Present: Representatives Gianforte, Palmer, Comer, and 
Plaskett.
    Mr. Gianforte. The Subcommittee on Interior, Energy, and 
the Environment will come to order. Without objection, the 
Chair's authorized to declare a recess at any time. I want to 
thank the panel for being here. I will begin with my opening 
statement.
    Good morning. The Subcommittee on Interior, Energy, and the 
Environment is meeting today to discuss barriers to energy 
development on tribal lands. According to the most recent 
Census report, Native Americans are almost twice as likely to 
live in poverty than the general population. On reservations 
throughout the country unemployment rates are higher, and per 
capita income is lower than national averages.
    Meanwhile tribal lands contain a wealth of untapped energy 
resources. According to one estimate, tribal lands contain 
nearly 30 percent of America's coal reserves west of the 
Mississippi, and as much as 20 percent of the known natural gas 
and oil reserves. In my home state of Montana the Crow Nation 
alone contains approximately 9 billion tons of coal.
    Energy development projects on tribal lands can create 
jobs, opportunity, and a valuable source of revenue for tribal 
members. Despite the many positive economic benefits tribes can 
reap from developing their energy resources, the Federal 
Government makes it extremely difficult for them to do so. Most 
tribal land is held in trust by the Federal Government. The 
trust relationship charges government agencies, primarily the 
Bureau of Indian Affairs, within the Department of Interior, 
with ensuring the tribal lands and resources are well managed. 
Instead, the government has saddled tribes with a series of 
regulatory burdens. First, the energy development projects on 
tribal lands cost more than comparable projects on private 
property, or even other non-tribal federal lands.
    For example, in the State of Colorado there is no fee for 
applying for a drilling permit on privately owned land. 
However, BLM charges almost $10,000 for a similar drilling 
permit on tribal land. Not only is development on tribal lands 
more expensive, the process is also more complex. On tribal 
lands acquiring the necessary permits for a project requires 
working with a minimum of 4 federal agencies and completing 49 
different steps. On private land, permits can be obtained in as 
few as four steps.
    The added complexity of permitting process on tribal lands 
goes hand in hand with regulatory delays that make developing 
tribal energy resources an uphill battle fought at great cost 
to tribes. Even the most simple of tasks can fall prey to the 
bureaucracy.
    One tribe reported waiting six years for BIA to complete a 
routine title search, something that takes a matter of days for 
a piece of private property. Another tribe represented at 
today's hearing lost an estimated $95 million on a single 
project while waiting years for BIA to approve right-of-way 
agreements. Given these challenges it should come as no 
surprise that many operators are discouraged from pursuing 
projects on tribal lands. These added costs and burdens create 
unnecessary impediments for tribes that wish to make decisions 
about how to use their own land, and they disadvantage tribes 
in comparison to similarly situated private land owners.
    Studies abound documenting the government's shameful 
mismanagement of tribal resources. In 2017, the Government 
Accountability Office added tribal energy programs to their 
list of federal programs most at risk of fraud, waste, abuse, 
and mismanagement, citing a decade's worth of research. 
Fortunately, GAO also made a number of associated 
recommendations to help BIA improve its management of tribal 
resources, and BIA has reported progress towards implementing 
them.
    Today's hearing will provide an opportunity for the 
committee to hear from the tribes about whether any of the 
changes BIA has implemented to date have had an impact. Most 
importantly, the testimony we hear today will highlight the 
biggest challenges tribes face when they want to develop their 
own valuable energy resources. I look forward to hearing from 
our witnesses today about their experiences, and especially 
their suggestions for an ongoing path to a future where tribes 
face fewer obstacles in using your land, their resources, as 
they see fit.
    Before we begin, without objection I would like to submit 
for the record testimony from the Property and Environment 
Research Center, a think tank based in Montana, and thank them 
for contributing to the conversation on tribal energy issues.
    Mr. Gianforte. I would now like to recognize my good 
friend, the ranking member of the subcommittee, Ms. Plaskett, 
for her opening statement.
    Ms. Plaskett. Thank you very much, Mr. Chairman, and thank 
you all for being here this morning. Thank you for the 
testimony, and the expertise you are going to be providing for 
this committee during this hearing.
    Because many tribal communities are economically reliant on 
development of energy resources on their lands, but face 
barriers to using those resources, I am glad we are devoting a 
hearing that will address continuing concerns, and air 
solutions. Seventeen months ago the Government Accountability 
Office high-risk report has outlined several problems that the 
tribes across the country face in the areas of energy, 
healthcare, and education.
    The report characterized the Bureau of Indian Affairs' 
handling of tribal energy resources as mismanagement, full of 
delays that cost revenue to struggling tribes. One of the 
impediments to well-managed energy development is a failure to 
invest in a federal workforce to provide expertise that many 
tribes lack. I, coming from the Virgin Islands, understand when 
people can on one hand tell you that you are mismanaging, and 
that you have not used resources appropriately, but they have 
not actually given you the appropriate resources with which to 
get the job done initially. In fact, President Trump's hiring 
freeze and reorganization have aggravated that problem. BIA 
needs more funding to assist responsible energy development on 
tribal lands, not the status quo or possible cuts.
    As Russell Begaye, President of the Navajo Nation, told a 
Department of Interior panel a year ago, ``Reducing the size of 
the BIA could affect the fulfillment of the trust duties the 
U.S. has to tribes. The BIA should be filled with experts. We 
need the BIA to bring in economists, technology experts, and 
energy and resource engineers to help tribes develop the 
resources on their land.''
    I know, as I said from our experience in the U.S. Virgin 
Islands, that funding and expertise from the Federal Government 
can make a crucial difference in the lives of many. We also 
have severe energy issues. From 2009 to 2013, our islands 
developed and began implementing a long-term strategy to 
transition from reliance on fossil fuel to a clean sustainable 
energy future. With financial assistance from DOE's Office of 
Energy Efficiency and Renewable Energy, and from the Interior 
Department's National Renewable Energy Laboratory, the U.S. 
Virgin Islands has thoroughly evaluated its clean energy 
opportunities, and made a $65 million investment in solar 
power.
    The Department of Energy and technical experts from its 
renewable energy worked with our water and power authority to 
identify the best combination of energy technologies for the 
Virgin Islands to meet its clean energy goal. In 2012, a 
$60,000 grant from the Department of Interior led to the 
development of a network of engineers, contractors, and 
financiers, who assisted the Virgin Islands' power customers in 
implementing clean energy projects.
    We needed and appreciated both the financing and the 
expertise provided by both the Department of Energy, working 
with the Department of Interior, to help the Virgin Islands 
reach its clean energy goals. Likewise, such federal 
investments, not only of dollars, but also of expertise, both 
technically, as well as through support through the process, is 
vital in the effort to eventually transition tribes to capable 
management of their resources.
    Proposals to simply give tribes more autonomy without 
investing more expertise, to give them the financial resources 
they need, as well as guide them through complicated processes, 
involving environmental laws, rights of way, and leases, could 
leave some tribes open to exploitation, or other harm. I am 
concerned that President Trump's and Secretary Zinke's proposed 
reorganization could severely compromise the ability of BIA and 
the Department of Energy's Office of Indian Energy and Economic 
Development from providing the expertise many tribes need.
    I am asking that my colleagues on both sides of the aisle 
look to ensuring that any DOI reorganization does not further 
impede the BIA from fulfilling its trust responsibility, and 
give the BIA the resources and staffing it needs to ensure the 
best energy future for all the tribal communities.
    Thank you so much, Mr. Chairman, for holding this hearing, 
and I look forward to the testimony and the questions to 
follow.
    Mr. Gianforte. Yes. Thank you. And I am very pleased to 
introduce our panel today. I want to thank each one of you for 
traveling here. I understand you went through some circuitous 
routes, and lost some sleep, but it's good to have you hear all 
smiling on the panel.
    First, the Honorable Alvin Not Afraid, Jr., Chairman of the 
Crow Tribe of Indians in my home State of Montana; the 
Honorable Adam Red, Councilman of the Southern Ute Indian 
Tribe; Mr. Eric Henson, Executive Vice-President of Compass 
Lexecon; and Mr. Christopher Deschene, partner at Rosette, LLP. 
Thank you, gentlemen, for being here.
    Pursuant to committee rules, all witnesses will be sworn in 
before they testify. Please remain seated, and raise your right 
hand.
    [Witnesses sworn.]
    Mr. Gianforte. The record will reflect that the witnesses 
answered in the affirmative. In order to allow time for our 
discussion here today, please limit your testimony to five 
minutes. Your entire written testimony will become part of the 
permanent record, however. As a reminder, the clock in front of 
you shows your remaining time. The light will turn yellow when 
you have 30 seconds left, and red when your time is up. Also, 
please remember to press the button to turn the microphone on. 
It does not work automatically.
    So with that, I would like to recognize Chairman Not Afraid 
for your testimony.

                       WITNESS STATEMENTS

                 STATEMENT OF ALVIN NOT AFRAID

    Mr. Not Afraid. Good morning. Thank you Chairman Gianforte, 
Ranking Member Plaskett, and Member Comer. Also the members 
that serve on this panel. Very important subcommittee we have 
here.
    I appreciate the opportunity to share my views and the 
views of the people I represent regarding the impediments to 
energy production in Indian Country. My name is Alvin Not 
Afraid, Jr., and I am the Chairman of the Crow Tribe of 
Indians. We are more than 14,000 members strong, and we own 
more than 2.2 million acres in the West, along the Bighorn 
River. Our land is rich in energy resources, natural resources, 
and minerals. So this topic is close to the hearts of the Crow 
People.
    The Crow Tribe owns 9 billion ton of mineable coal, 
constituting 3 percent of the U.S. reserves. Yet, we only have 
one active mine. Colorado-based Westmoreland Resources 
currently leases the Absaloka Mine, which has existed since 
1974. We love our land and our homes, but our inability to grow 
our local economy through the development of our energy 
resources ensures that we will never rise out of the cycle of 
poverty that we find ourselves in today.
    While every impediment we face cannot be fixed by the 
Federal Government, many of them can, such as one, cumbersome 
Indian coal and oil gas approval processes; number two, long 
wait times for those approvals; number three, numerous federal 
agencies and offices, both within and beyond the Bureau of 
Indian Affairs that must grant approval for energy development 
contracts to move forward; four, cumbersome regulations 
promulgated without meaningful consultation with energy tribes; 
though we are appreciative of the work done to repeal many of 
those in this last year by the Administration; number five, 
poorly kept and incomplete records from which critical 
decisions must be made; number six, inexperienced bureaucrats 
who oversee the entire approval process.
    Barriers to economic development costs Indians millions of 
dollars in lost revenue. If the Crow Tribe wants to enter into 
an oil gas lease on a land that the tribe owns, we face a 
process of long wait times, usually years, for approval. We 
also face bureaucracy. The BIA was created long ago, in part 
because it was thought that Indians could not intellectually 
evaluate business contracts, purchase agreements, leases, and 
other economic tools. Yet, in an ironic twist of fate, it is 
now the BIA, according to the GAO and Interior's OIG, that 
lacks the intellectual capacity to evaluate business contracts, 
purchase agreements, leases, and other energy development 
mechanisms.
    Consider this from the viewpoint of a businessman. This 
will be easy exercise for you, Mr. Chairman, being a self-made 
and highly successful businessman yourself. Would you have 
asked the random tourist, with no knowledge of your company, 
who was passing through Bozeman, to approve a purchase 
agreement you wish to make? As CEO of Right Now Technologies, I 
am sure you would not have. They do not have the expertise that 
you do about your company. So it doesn't make any sense, right? 
And that's exactly how we feel at the Crow Nation.
    It will take time to roll back the oppressive regulations 
that the previous administration used to perpetuate the war on 
coal, and we appreciate all the work that has been done to date 
by this Congress and this Administration. All of us in 
government roles during this time are in the same predicament. 
From the president, to Congress, to me, as chairman, we all 
find that we are fixing problems not of our making, and 
certainly not of our choosing.
    So how can we work together to fix these problems? I 
advocate for the following. One, at home I am working with 
federal investigators to clean up decades of financial 
mismanagement, and codify oversight controls within our 
government. These are self-help steps that we are taking in 
order to be accountable for our own welfare, and to create a 
healthy atmosphere for private investment in Crow.
    Number two, at the congressional level I ask you to 
cosponsor and support S.245, sponsored by Senator Hoeven, and 
passed by the Senate in December of 2017. I believe that we 
will correct these issues currently stifling progression of the 
Tribal Energy Resource Agreement mechanism. If these fixes 
become law, it is my intention to ensure that the Crow Tribe is 
the first to apply for and enter into a TERA agreement with the 
Secretary of Interior.
    Three, finally, I urge you to continue to seek the 
expertise of organizations that are educating tribal leaders, 
federal-elected officials, and future generations as to the 
best ways to promote private economies in Indian Country. 
Specifically, the research of Dr. Terry Anderson, at the Hoover 
Institute, and the tribal leaders of Alliance for Renewing 
Indigenous Economies. Their scholarship is groundbreaking, and 
it remains some of the only, such as reservation-based, free-
market focus decisions in the public sphere today.
    In closing, while most of us recognize the barriers of 
tribal energy development, the answers are not simple. We are 
trying to free up economies on the reservation underneath a 
complex framework of mixed government ownership of assets. Our 
nation-to-nation relationship means that we are all caught in a 
delicate web of legal promises and historical responsibilities, 
as well as racial and cultural sensitivities.
    So at this time I would like to thank Chairman Gianforte 
for the invite to speak on behalf of Crow Tribe. Thank you.
    [Prepared statement of Mr. Not Afraid follows:]
    
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Gianforte. Thank you, Chairman.
    And Councilman Red, you are recognized for your five 
minutes of testimony.

                     STATEMENT OF ADAM RED

    Mr. Red. Thank you. Good morning, Chairman Gianforte, 
Ranking Member Plaskett, and members of the subcommittee. I am 
Adam Red, elected member of the Southern Ute Indian Tribal 
Council. Thank you for inviting us to testify. Our tribe story 
attests to our ability to responsibly manage our own natural 
resources. We are an example of the positive impact of federal 
legislation that allows tribes to assume a greater role in 
energy development on their reservations.
    Federal laws require federal review and approval of most 
realty transactions involving Indian lands and minerals. Our 
tribal leadership has always believed that we can do a better 
job of managing our resources than would federal agencies. 
Unlike federal agencies, we have a vested interest in 
protecting our resources and maximizing economic returns for 
those resources. In keeping with that philosophy, we have taken 
advantage of most congressionally created opportunities to 
exercise self-determination, like the Indian Mineral 
Development Act of 1982. The IMDA allowed tribes to negotiate 
their own leases, subject, of course, to BIA approval. With 
that important legislation, we negotiated favorable terms in 
our oil and gas leases, which United States didn't have the 
incentive to negotiate for on our behalf.
    Less than 50 years ago our tribe had to stop distributing 
per capita payments to tribal members because we couldn't 
afford them. Today, the tribe's oil and gas companies conduct 
activities in several Western states. We also invest in non-
energy projects, including real estate properties across the 
country. Today, a tribe provides health insurance for its 
tribal members, and promises all members access to a college 
education. We are the largest employer in our region, and we 
are the only tribe in the nation with a AAA credit rating from 
Standard & Poor's. We have been successful despite the 
obstacles created by underfunded, understaffed federal agencies 
like the BIA. Those obstacles are a very real problem, because 
they create a significant disincentive to developing oil and 
gas on tribal land.
    For example--please queue the slide. Permitting a well on 
private land typically takes four months. Permitting a well on 
tribal land can take more, like 30 months. A drilling permit 
from the state for drilling on private land is free. A drilling 
permit from the BLM to drill on tribal land is $9,500. Tribal 
land is treated like public land, and is subject to NEPA and a 
public comment process. Private land is not.
    On reservations like Southern Ute, where private land and 
tribal land are interspersed, drilling on private land is 
significantly faster and cheaper, and an operator can drill on 
private land and still drain tribal minerals. Please take down 
the slide.
    We are grateful for the new attention GAO and OIG have 
brought to this issue, but there is a lot of work to be done. 
We have some suggestions. Enact S.245, which will allow tribes 
to choose to play a larger role in the energy development 
process, while the United States plays a smaller role. This is 
a solution that can be achieved without increasing federal 
funding or staffing.
    BIA must recruit realty staff in order to process our 
transactions. With the Southern Ute agency we have had two 
realty specialist positions that have been vacant for several 
years. Recently, the agency extended two offers to fill those 
positions. But one of the selected applicants ultimately 
declined her offer after the Bureau failed to approve the 
incentive package in a timely manner. BIA always tells us they 
can't hire people here because of the high cost of living in 
our region. We need a cost-of-living adjustment from OPM for 
our area.
    BIA must hire and train people to work on TAAMS, so that 
the BIA can verify land ownership information in a timely 
manner. With more TAAMS trainings, more BIA staff devoted to 
TAAMS, and loosening of the requirements for tribally funded 
staff to do TAAMS and coding, this situation could be improved.
    Interior must define inherently federal functions. Under 
the Energy Policy Act of 2005 Congress established a mechanism 
called a TERA that allows tribes to enter into energy-related 
transactions without prior BIA review and approval. This would 
have been a dramatic improvement, but the implementing 
regulations created an unlegislated, undefined exception to the 
scope of TERA.
    The implementing regulations say a tribe may not assume 
inherently federal functions. Despite our numerous requests 
Interior refuses to define that term. Contrary to the GAO's 
recent findings, the BIA has failed to resolve this regulatory 
blockage. Another suggestion we have is that Congress act to 
accelerate environmental studies under NEPA and ensure timely 
NHPA compliance.
    In conclusion, our tribe, like many other tribes, is well 
equipped to utilize our energy resources. We need more support 
for tribal self-determination for tribes willing to assume 
responsibility for managing their energy resources. We believe 
that this approach should be at the forefront of any 
congressional oversight and action taken in response to GAO's 
and OIG's reports. The tribe appreciates the continued efforts 
of this Congress, this subcommittee, and others to encourage 
tribal self-determination through economic and energy 
development. Thank you.
    [Prepared statement of Mr. Red follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Gianforte. Thank you, Councilman.
    And Mr. Henson, you are recognized for your five minutes of 
testimony.

                STATEMENT OF ERIC CONRAD HENSON

    Thank you. My name is Eric Henson. I'm a research fellow at 
the Harvard Project on American Indian Economic Development. 
And I work full time in an economics consulting firm out of 
Boston. I've done about 20-something years of tribal affairs, 
and I'm very happy to be here speaking with you today.
    The Harvard Project started about 30 years ago with a very 
simple question. There is observation that some tribes that 
seem to have great natural resource endowments weren't quite 
taking off and doing so well. Poor socioeconomic outcomes. 
Other tribes, which had no apparent access to the kind of 
resources you might expect, would lend themselves to great 
economic outcomes, were doing just fine. So a couple of 
researchers at Harvard, I was only at high school at the time, 
so I was not there, set out in a rental car to kind of 
investigate this question. And these guys found over time that 
what really mattered were a couple of things that nearly sound 
self-explanatory today, but were kind of revolutionary at the 
time. Capable governing institutions on the part of tribes are 
really important.
    You know, the word 'bureaucrat' or 'bureaucracy' kind of 
has a negative connotation sometimes. But in terms of 
government, someone needs to show up on Monday morning and keep 
the wheels of government working. And this applies to tribes no 
more or less than the Federal Government, states, 
municipalities. It is really important to have the right kinds 
of institutions in place.
    Secondly, having a form of government that comports with 
the norms that the citizenry receives is the right way to 
govern the community is really important, and not every place 
has that. Lots of travel governments for a long time were kind 
of imposed by outside entities, and didn't square up with how 
the people thought about governing themselves at all.
    And finally, most relevant to today, the single most 
important thing that was helping tribes grow their economies in 
a sustainable manner was self-determination, tribal 
sovereignty, putting the decision-making process in the hands 
of those, like the two gentleman next to me, who are right 
there on the ground.
    Now what we found, and what I argue today, is that doesn't 
necessarily mean abandoning the U.S. Federal Government's 
responsibilities to the tribes. In fact, I would argue for a 
recommitment to that. Ms. Plaskett echoed this a little bit. 
There is no reason why tribal control or decision-making 
processes, sensible regulations, undoing multiple overlapping 
layers of unnecessary regulatory schemes, et cetera, et cetera, 
that doesn't have to be counter to the notion of providing the 
right kind of resources, if the Bureau of Indian Affairs, to 
take the most obvious example, is going to go out and attract 
dozens and dozens of highly technical employees over the next 
several decades. Which is going to be important, given the 
retirement numbers that are coming its way. Those people, you 
know, you're competing with private industry to lure people to 
places like the Durango, Colorado, area, and they are 
expensive.
    And there are just some silly impediments to getting those 
people. There is a lack of local advertising for the right 
staff. There is this inability to just pay a cost-of-living 
adjustment to get the right people there. And it's also 
important to keep in mind, you're not going to necessarily lure 
someone to a remote location, be it the Virgin Islands or the 
Durango area, and have them start on day one as an expert. A 
lot of these jobs take decades and decades of expertise.
    Now recommitting through the appropriations process to the 
right kind of staffing and funding for the BIA and all the 
other departments that oversee energy development is doubly 
important. Not only to put the right staff in place to 
interface with folks like Councilman Red and Chairman Not 
Afraid, but also, think about it, if you're in a place that's 
kind of remote, that faces brain drain, you have an 
underdeveloped economy, small population, the appeal of the big 
city is always there. You're trying to convince these people to 
devote their careers to a life in an energy development area 
that is often small population far from urban centers.
    So the BIA, or other departments, can be a viable career 
alternative not just for outsiders, but for tribal citizens as 
well. At Crow there are plenty of people who could really 
benefit from a stable long-term governmental job. And that 
could be working hand in hand with the tribe in developing its 
energy resources.
    And the last thing I'll say before I pass the mic is, you 
know, there are several legislative ideas out there that would 
impose, say, deadlines on the BIA, or other things of that 
nature. But imposing artificial deadlines without providing the 
right resources to meet those deadlines is not in service to 
Indian Country. Thank you very much.
    [Prepared statement of Mr. Henson follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Gianforte. Thank you, Mr. Henson.
    And now we will recognize Mr. Deschene. Is that correct?
    Mr. Deschene. Yes, sir.
    Mr. Gianforte. Yes. Please go ahead. You have five--you are 
recognized for five minutes.

            STATEMENT OF CHRISTOPHER CLARK DESCHENE

    Mr. Deschene. Thank you. [Speaking native language.] Good 
morning, Chairman Gianforte, and Ranking Member Plaskett, 
members of the committee. My name is Christopher Clark 
Deschene. I'm a member of the Navajo Nation, and a partner with 
Rosette, LLP, which is a national tribal law firm. I'm here 
also with Councilman Leon Reval from the Jicarilla Apache 
Nation, Northern New Mexico.
    As a member of the--excuse me. As a former director for 
Indian Energy at DOE, I'm here to share my thoughts and 
recommendations for improving tribal energy development within 
Indian Country. As my people say [Speaking native language.], 
which means 'educate them all.'
    With regards to the policy challenges, there are four 
general reasons underlying tribal energy issues, and 
undermining the federal tribal energy policy. These are: One, 
the Federal Government's antiquated land policies; two, federal 
courts' use of judiciary plenary power; and three, the 
inability of Congress to pass comprehensive tribal energy 
legislation, and dedicate adequate resources; four are the 
paternalistic, inefficient, and archaic bureaucracy of the 
Executive Branch and its agencies.
    With respect to Congress, congressional elections over the 
last 12 years have hurt Indian energy development. Travel 
energy bills designed to continue the work started under Title 
V of the Energy Policy Act have all stalled due to inaction. 
Similarly, at the Executive, there are a number of policies 
that also have encumbered energy development. These include 
inadequate staffing and support for project reviews and key 
energy positions. Federal agencies have also minimized the 
budget needed to provide adequate and meaningful services and 
financial support through tribal energy development programs.
    Changing the tribal energy paradigm requires tribal 
resources, including water, land, minerals, and labor to help 
solve our country's energy challenges. Tribal leaders have 
always argued that they must be part of the equation in 
solutions offered by our country's energy industry. 
Accordingly, tribal leaders have recommended the following, and 
based upon my observations, Congress should continue tracking 
the implementation of the GAO report recommendations from the 
'15, '16, and '17 reports. Congress should also consider 
passing national tribal energy legislation that updates, 
amends, and supports tribal leadership recommendations.
    The Hearth Act should be amended to allow tribes to approve 
leases and easements for tribal energy development. At the 
Department of Energy, Congress should consider and fund the 
Office of Indian Energy at DOE, at, and this is a big ask, $100 
million for 25 full-time employees. That office has been 
charged with national service, and is operating at a 
substandard level, with less than four employees at times. 
Congress should also look at creating a Senate-confirmed 
Assistant Secretary of Indian Energy at DOE as well.
    Additionally, Congress should allocate and authorize funds 
for the Tribal Energy Loan Guarantee Program at a minimum of 
$100 million. I know that the former senator from Minnesota had 
looked at this effort. That should be picked up again as well.
    Finally, Congress should look at tribal energy partnerships 
by supporting DOE's Office of Indian Energy's Strategic Roadmap 
2025 that enumerates a number of goals, including the buildout 
of tribal businesses and their roundtables to help foster 
tribal energy development from the industry. With regards to 
the Administration, again, the GAO reports are instructive. 
They should also look at the implementation of five- to ten-
year budget plan with regards to funding for DOE and DOI, with 
OMB.
    Given that my time is running short, I'd like to just talk 
a little bit about policy as well. With regards to policy, the 
Federal Government should look at funding agency programs 
throughout the government. Programs that build tribal capacity, 
education, and workforce development are important. With 
regards to transmission, planning, access studies, and 
ownership are all vital, and should be supported as well. 
Renewable energy standards, incentives, and partnerships are 
key to help tribes build out the renewable energy programs. And 
cross-agency coordination is very important, given that DOE and 
DOI has started the process in the last few years. And finally, 
strengthen and improve the consultation and coordination 
process when it comes to working with tribes throughout the 
country.
    In conclusion, no message resonates better than success. As 
noted, dedicated resources and funding investments are vital to 
the success in Indian Country. I thank you for allowing me to 
share a few of these recommendations. I am happy to answer any 
questions.
    [Prepared statement of Mr. Deschene follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Gianforte. Thank you for the panel for your insightful 
testimony.
    We will now move to questions. And I'd like to recognize 
Mr. Palmer for five minutes.
    Mr. Palmer. Thank you, Mr. Chairman. Mr. Henson, what does 
the Indian community stand to gain as far as employment growth 
if the regulations are reduced or simplified?
    Mr. Henson. That's an interesting question, and I have not 
quantified it personally. I would certainly be interested in 
looking into that and getting back to you, if that's a 
possibility.
    Mr. Palmer. Well, listening to the testimony of Chairman 
Not Afraid and Councilman Red, it's obvious that it would be an 
economic benefit to the tribes not only in revenue, but in 
jobs. And I see Chairman Not Afraid nodding. Do you want to 
comment on that?
    Mr. Not Afraid. Yes. Thank you, Mr. Palmer. First of all, 
I've observed and analyzed that for every 2 million tons of 
coal being developed creates a minimum of 120 well-paid jobs 
for the Crow people.
    Mr. Palmer. Say that again. How many well-paid jobs?
    Mr. Not Afraid. A hundred-and-twenty.
    Mr. Palmer. Mm-hmm.
    Mr. Not Afraid. And the average annual salary is about 
$80K.
    Mr. Palmer. $80,000? That's a very high-paying salary in 
Montana, I believe, Mr. Chairman. Let me ask you this, and this 
is for Chairman Not Afraid and Councilman Red. What other 
energy resources are available on tribal lands? Because I think 
you said that 88 percent of the tribal lands contain some kind 
of energy resource. And you mentioned coal. Are there other 
resources?
    Mr. Red. Thank you. I'll take a stab at that. With us, with 
the Southern Utes, we have natural gas, and we are one of the 
largest producers of natural gas in the country. And so that's 
where a lot of our resources are from. We've got our own 
companies that, on the reservation and off reservation, that 
deal with that. We also have coal. We haven't developed the 
coal. We've developed the methane underneath it, or out of the 
coal itself. And there's numerous other, as well as, like solar 
power. We've got 300 days of sunlight. Wind potential. There's 
a lot of other energy resources that we could take advantage of 
there, but we really haven't gotten into yet.
    Mr. Palmer. Do you have the infrastructure to--if you are 
developing solar and wind power, do you have the infrastructure 
in place where you can sell that power off reservation, off the 
tribal lands?
    Mr. Red. We don't. And that's part of the problem in the 
location. We're really isolated when it comes to infrastructure 
on a national level. So we're really isolated when it comes to 
that.
    Mr. Palmer. Do you know if any of the Green River formation 
are on tribal lands? That'd be northern Colorado--western 
Colorado, northern Utah, southwestern Wyoming. Do you know if 
any--I know it wouldn't be your tribal lands, but do you know 
if any of that is on tribal land?
    Mr. Red. Not on ours.
    Mr. Palmer. That's one of the largest reserves of oil, 
recoverable oil, shale, in the world. It holds three times more 
recoverable oil than the world's used in the last 100 years. 
And it is five to six times the known reserves of the Saudi's.
    Let me ask you this. If given the opportunity to properly 
develop these energy resources, one of the issues, and it goes 
back to the jobs issue, it's not just a mining job, but the 
opportunity for members of your tribes, younger member of your 
tribes, to take science and math, and become energy engineers, 
experts in the energy field, which I think that needs to be 
explored and developed.
    Mr. Not Afraid. Right. In Crow country it is a domino 
effect. So when development occurs, uh, it also enhances the 
social well-being to the Crow membership, a sense of living, a 
sense of pride, as well as a healthy community. And as to Crow, 
speaking about Crow, the diversification of all the energy, we 
have three major grids coming from the south, east and west. So 
if we were to develop the windmill, develop the hydro-plant 
that we have under way, and other green energy developments 
that are under way, we can have a robust system that we would 
not depend on the Federal Government for anything.
    Mr. Palmer. Well, I see your ability to develop the 
resources that you own as a way to not only increase the 
revenue potential for the tribes, but also to elevate the 
tribe, in terms of professional opportunities, engineers, 
business people. It could be a tremendous help to the tribe 
across the board. Not just in the laborers who go out and 
extract the minerals, but those who develop programs for the 
use of them, including engineering the infrastructure, so that 
you can move it where it needs to go.
    My time's expired, Mr. Chairman. I yield back.
    Mr. Gianforte. Okay. Thank you. At this time I recognize 
the ranking member for her questions.
    Ms. Plaskett. Thank you, Mr. Chairman. Mr. Deschene, I want 
to thank you for coming here to testify. You have a large body 
of work and experience in this area that I'm glad that you are 
trying to share with us. Mr. Henson, you were correct that I do 
believe that, and you may have heard in other hearings me talk 
about unnecessary duplication. I'm really trying to streamline 
public policy. It's enormously important. It really impedes 
development in the areas that are least likely to receive it, 
because of bureaucracy. And so in your testimony, based on your 
experience, you advocate significant increases in federal 
spending. Specifically, you advocate funding the Office of 
Indian Energy to $100 million, with 25 full-time employees. You 
also talk about allocating a minimum of $100 million to the 
Tribal Energy Loan Guarantee Program.
    What level of funding has been authorized in these last 
Congresses roughly for the office and the loan program while 
you were serving as director?
    Mr. Deschene. Thank you. When I came to--thank you for that 
question. Chairman and member of the committee, when I arrived 
at DOE in 2015, we had a budget authorization from Title V of 
$20 million for 10 years, starting in 2005. The Office never 
received the full amount of the $20 million, at least while I 
was there. When I arrived it was given, in 2015, a $16 million 
allocation.
    Ms. Plaskett. So your funding was decreased.
    Mr. Deschene. Right.
    Ms. Plaskett. And how many employees, or how many people 
were staffed at that time?
    Mr. Deschene. So at that time, two, officially. Myself and 
headquarters' element support staff. And then from there we 
began consolidating the program and presented table 
organization through HR at DOE in an effort to consolidate ----
    Ms. Plaskett. What area of land were you three people 
supposed to be supporting at the Department of Energy for 
Indian energy?
    Mr. Deschene. So we were charged with the entire United 
States, including Alaska, with, at that time, 567 tribes.
    Ms. Plaskett. So 567 tribes, for all of their energy needs, 
the Department of Energy gave you three, yourself and two other 
employees. Or was it four, you said?
    Mr. Deschene. Well, that's currently what you see on the 
website today, but by 2017 we had grown, through consolidating 
efforts, to about a complement of six to seven.
    Ms. Plaskett. Okay. Six or seven employees, with $20 
million, then reduced to $16 million. What would giving a $100 
million and 25 employees allow you to do?
    Mr. Deschene. So with regards to the employees we have 
three offices. Headquarters in D.C., the Golden field office, 
which handles a lot of the deployment efforts, and then Alaska, 
in Anchorage. So the weight of the program is the deployment 
effort, which is financial.
    Ms. Plaskett. So you'd like to get people out there in the 
field ----
    Mr. Deschene. Right.
    Ms. Plaskett.--is what you're saying.
    Mr. Deschene. Right.
    Ms. Plaskett. And that $100 million would support those 
salaries as well as the ability for them to go out into the 
field.
    Mr. Deschene. So salaries and the administrative would be, 
and I can't remember the numbers, but it would be on the order 
of ----
    Ms. Plaskett. So how would that help Chairman Not Afraid as 
well as Councilman Red if you were to be able to have that?
    Mr. Deschene. For example, if we had a program that 
supports energy investment, what we call still-in-the-ground 
projects--the problem with investing in projects is they're 
either very small, which DOE currently supports $50,000 to 
$250,000 feasibility-type projects, or they're very large, in 
the hundreds of millions. There is not support for programs or 
development in the range from $5 to $50 million on investments 
for community scale energy projects in Indian Country.
    Ms. Plaskett. You know, I talked and others have talked 
about streamlining processes. You are not against streamlining 
some of these permitting processes.
    Mr. Deschene. No. It's needed. It's definitely needed. It's 
absurd that tribes have to go through additional barriers to 
get the same type of approvals for energy projects.
    Ms. Plaskett. But increasing the funding, and particularly 
the loan funding, would allow you to deploy more support to the 
tribes to be able to ----
    Mr. Deschene. Right.
    Ms. Plaskett. Be able to do the things that the Chairman 
was talking about.
    Mr. Deschene. Right. So larger projects under an Indian 
loan guarantee program would support more investment.
    The problem with that, there's two. One, there is a $50,000 
requirement under DOE for tribes to put up to begin the 
application. That's a barrier in itself. Secondly, the current 
program allows for innovative design and application. That's a 
barrier in Indian Country, because we're not looking to prove 
up technology. We are just looking to apply in remote distant 
locations the same technologies that the rest of America 
enjoys.
    Ms. Plaskett. Thank you. Thank you so much for the time, 
Mr. Chairman.
    Mr. Gianforte. Yeah. Thank you. And at this time the Chair 
recognizes Mr. Comer for his questions.
    Mr. Comer. Thank you, Mr. Chairman. My first question is to 
Mr. Henson. In your written testimony you discuss the untapped 
resources of tribal lands. Eighty-eight percent of Indian 
surface lands have resources, but have yet to be developed. Is 
the complexity of the federal permitting process impacting 
tribes' ability to use their own land, and if so, how?
    Mr. Henson. It certainly is. I mean the slide we saw from 
Councilman Red illustrates that. Every marginal decision for 
outside investment looks at how much time and how much capital 
will have to be invested here. And if a tribal development is 
less appealing than a next-door development, you know, over 
time that sends a signal to outside investors to invest not on 
tribal lands. And, you know, sort of reflecting on the last 
question, also, I think about 2 million acres of surface lands 
are currently developed, tribal lands, and the measure is 
something like 15 million undeveloped. There's quite a lot of 
availability for when solar, geothermal, hydroelectric, there's 
massive capacity for renewable development on tribal lands. And 
so streamlining those processes can be just tremendous.
    Mr. Comer. I firmly believe the Federal Government 
excessive regulatory environment has held us back as a nation 
from utilizing the resources that we have, especially with the 
tribes. My question, Chairman Red and Councilman Not Afraid, 
how many jobs have been created for members of your tribe as a 
direct result of energy development projects?
    Mr. Not Afraid. Over a period of 40 years, sustainable jobs 
through development with our partner, Absaloka, Westmoreland 
Mine, we fluctuate anywhere from top of 300 to a bottom of 120. 
And with other venues and diversification within coal, that's 
also creating new jobs, with new technologies.
    Mr. Comer. Right.
    Mr. Red. On the Southern Ute we do have--I can't give you a 
direct number, or absolute number, but we do have quite a few 
jobs that are influenced. We have members that work for our own 
oil and gas companies, and we also have members that work for 
other companies within the reservation. We also work with San 
Juan School of Energy, or it's San Juan Community College 
School of Energy, where we send our employees, our tribal 
members, and other staff down there to get the training 
necessary to be fruitful in this formation, or in the 
development of our area. So we don't really put a number on the 
jobs there, but it, for the region itself, is huge with the 
number of jobs it's provided.
    Mr. Comer. Can you gentlemen tell us, tell the committee, 
some benefits your tribe has been able to provide members with 
the revenue produced by developing your energy resources?
    Mr. Not Afraid. Sure. Thank you for that question. That's 
an ideal question, only because the revenues that derive off of 
that coal development ensure that our elder programs continue 
scholarships. Even in the realm of health, and we talk about 
the Affordable Care Act ----
    Mr. Comer. Mm-hmm.
    Mr. Not Afraid.--at times we know that that lacks a lot of 
issues in itself. So the tribe on the royalty side picks up on 
that end. So to me I'm not complaining, but the point is, is if 
we could develop more then we can just entirely take care of 
ourself.
    Mr. Red. And for us, we give a distribution to our members 
every month, or throughout the year. We also have healthcare 
for all our members. Nothing's denied. We pay for everything. 
We also have education. So everybody's guaranteed a secondary 
education if they decide to pursue that. And that's really 
unheard of when it comes to Indian Country, is providing all 
these resources on something that we've got from our natural 
resources.
    Mr. Comer. Right. Well, thank you very much. Mr. Chairman, 
I yield back.
    Mr. Gianforte. Okay. Thank you. And I'll recognize myself 
for questioning at this time.
    Councilman Red, I'd like to follow-on Mr. Comer's question. 
Just listening to your testimony and reading the written 
testimony, it's clear that you've, in the face of some large 
obstacles, you've still been able to develop these energy 
resources. Could you talk on a more personal level what it 
means to an individual family in the Ute Nation when they 
receive benefits from energy development?
    Mr. Red. Well, as an individual on the Southern Ute Indian 
Reservation, I mean it is huge. It's really hard to put into 
words. At one point, as in my testimony, we had to stop 
distribution payments. So we couldn't even afford to pay our 
members. And for much of my lifetime that's ----
    Mr. Gianforte. What would that mean to a family when they 
don't get a distribution payment?
    Mr. Red. There's not a lot of employment on the 
reservation. So no income means it's Second-, Third-World 
conditions. But because we do have this, and it's made our 
reservation and families prosperous, and they're able to live a 
good life. We do run into some problems with the amount of 
money now coming in, but I would rather have that problem than 
nothing at all. And it gives a chance for our members to 
succeed. Whether they want to work locally, there's an 
opportunity. And whether they want to go on to school, they 
have that opportunity, also.
    Mr. Gianforte. So you've used a couple words there. Energy 
development has brought prosperity and success to your people, 
and clearly that's a good thing.
    Mr. Red. Yeah.
    Mr. Gianforte. Chairman Not Afraid, welcome again to a 
fellow Montanan. You know, we've spent time together in Crow 
Country, and for whatever reason we've had limited energy 
development. And it's clearly your decision as a sovereign 
nation what you want to do with your energy resources. Could 
you describe the situation you have in Crow Country today, and 
what additional energy development would mean to the families 
there?
    Mr. Not Afraid. Yes. Thank you. Well, first of all, there 
was a study done during the Bush Administration that depict 
approximately $1 trillion worth of asset development prospects. 
But the Crow Tribe, at the time, couldn't fully implement, only 
because the government runs on a two-year cycle at that time. 
Now with this new constitution that we adopted allows for a 
four-year term, because when we do talk about permitting, 
whether it's a mine, whether it's oil, whether it's a gravel 
pit, the redundancy of the process takes more time.
    Therefore, as an elected official you may not see the 
fruits of your labor because of the time it takes to develop. 
Overall, what we have developed is, like Southern Ute, where 
the royalties truly benefit the people. And the government 
itself does not partake in that. That's a dividend paid out to 
the people for their share of ownership in the mineral.
    But if we can continue to develop soundly, again, that's 
our way out of the hole. And until we recognize or streamline 
some of these processes, we're at a major disadvantage. Like 
what was stated earlier by Mr. Henson, a parcel right next door 
appealing has less restrictions through the State of Montana. 
Not only that, less fees. So when a developer comes in and sees 
prime, they tend to be deterred because of fees and time.
    Mr. Gianforte. Mm-hmm. If you could explore that a little 
more. The differences between energy development on private 
land off the reservation versus development of the tribe's 
resources on the reservation. From a permitting perspective, 
why does it take so much longer?
    Mr. Not Afraid. Well, first of all, we have this 
misunderstanding from the federal side. The misunderstanding is 
private Indian land is treated as federal public land. So 
individual landowners are subject to the public land laws. And 
if that was to be differentiated on the purpose of someone 
owning their own property, why hold them folks down? Because 
you're deterring them from being prosperous. You're deterring 
them from utilizing their own mineral. Because I'm not only 
talking about tribal land. I'm talking about individual tribal 
members who own mineral assets as well. So them, themselves, 
they can't come up with a $9,600 permitting fee when they need 
to drill ten wells. That's $96,000 they have to come up front. 
Where if it was regulated by the State of Montana, it's like 
$125.
    Mr. Gianforte. Yeah. Okay. My time has expired, but I think 
we're--this is a very helpful discussion. I think we'll do 
another round of questions, if that's all right. At this time 
I'll recognize the ranking member.
    Ms. Plaskett. Okay. Chairman Not Afraid, I was hoping that 
you could give me, if you have proposals that you all have 
made, as to how the regulations should change to allow you. 
Have you presented those, or is there legislation now that's 
been proposed by someone from the House or the Senate that 
would be supportive of what you're talking about?
    Mr. Not Afraid. Yes. Currently, there is legislation on the 
books which was--it amended the SMCRA law in 2007 that allowed 
the tribes to administer and regulate their own permitting. But 
that course of action is also cumbersome, because now the 
conflicts of tribal rules, tribal laws are reviewed by the 
solicitor's office. And if there is any conflict in CFR then we 
have to try to mitigate those issues.
    Ms. Plaskett. And who has the responsibility to mitigate 
those?
    Mr. Not Afraid. Interior.
    Ms. Plaskett. Okay. And so you may not be getting the 
movement to be able to get that done as quickly as possible.
    Mr. Not Afraid. Yes. There's a gentleman in the crowd here 
who was a major proponent of it within our legislative branch, 
name, C.J. Stewart, who was an advocate and a proponent of the 
tribe taking this into their own destiny, because when Congress 
had passed it, it enabled us to, you know, have a vision in 
taking over this regulatory rule ----
    Ms. Plaskett. Mm-hmm.
    Mr. Not Afraid.--as well as permitting. Because who better 
to take care of their own land, tribes? I have recently done a 
video with OSM depicting the reclamation on some of our mining 
grounds that you would never suspect that mining even occurred 
there. There's vegetation. Elk come back on it. Antelope, 
wildlife, in general. The aquifers are stabilizing. It's a 
really neat process. So we always invite people out to show 
that the Crow have demonstrated good husbandry to its own land.
    Ms. Plaskett. I hear you. So what you would do is do the 
regulations and the regulatory requirements, make the 
decisions, and then possibly report up to Department of 
Interior, or others, on what the decisions were. And they have 
to respond in a timely fashion?
    Mr. Not Afraid. Right. Just another example in this 
permitting process. For example, in the NEPA requirement, when 
it requires a cultural survey. What's happening there is you're 
having a Native American go do a survey, and then a non-native 
approve that cultural survey. So that's telling me the non-
native knows what a cultural survey is, when really, they don't 
even know what a burial site is, or any other cultural 
significance. So as that sits on that table for years for them 
to identify what we're telling them what it is, that's part of 
the cumbersome reality I'm talking about.
    Ms. Plaskett. So with the proposal--so I'm thinking of ways 
in which this can be married. So with the proposal that Mr. 
Deschene has, with increasing the number of individuals, those 
who are culturally sensitive, who are possibly Native American, 
and be able to be out in the field in greater number, be 
something along with having the rights of the tribe to make 
those decisions, be one that you think is something that would 
work well.
    Mr. Not Afraid. Yes. And I truly believe because of treaty 
purposes it's--even though we call it nation to nation ----
    Ms. Plaskett. Uh-huh.
    Mr. Not Afraid.--it's big brother, little brother. That's 
how I view it. And if ----
    Ms. Plaskett. Listen, someone living in unincorporated 
territory understands that completely, [Laughter.] what that 
feels like.
    Mr. Not Afraid. Yes. Yes. And the good thing is, that I 
see, is that as we shed more light on these issues, there are 
people willing to take the time to say, ``Okay. What can we do 
about this?'' So we've provided solutions. We've also 
demonstrated whether we had to recruit technical staff just to 
ensure that practices are being done professionally.
    Ms. Plaskett. So can I ask also, when you talk about some 
of these permitting, I know in the Virgin Islands we face 
permitting that's not just related to the Army Corps, to 
National Marine Fisheries, to multiple agencies that have to do 
a permitting process. Are you facing those same issues as well?
    Mr. Not Afraid. Yes, we are, because Interior, again, has 
to pawn off to the other sister departments for those 
oversights. So even though Interior gets bashed a lot, really, 
that's the wrong people to really bash on, because they have 
recently, in turn of events, they've been proponents of tribes. 
Yet, the processes still remain the same, where those other 
sister agencies, such as BLM, have to tell us, yeah, that is a 
cultural site.
    Ms. Plaskett. Okay. Thank you. Thank you very much, Mr. 
Chairman.
    Mr. Gianforte. Okay. So I'll recognize myself for a final 
round of questioning.
    I really want to focus on what do we do next. I'm a big--
played football in high school. We won games by running three- 
to five-yard plays, and you've brought very constructive 
suggestions today. Chairman Not Afraid, you've talked about the 
obstacles you face when tribal land is treated as public land, 
raising the regulatory burden. There was some testimony about 
clarifying the TERA rules. These are very specific things that 
we can investigate. So for all of the members on the panel, I 
want to ask you, you've brought good suggestions. What are the 
top three things you think we ought to do? And, again, in terms 
of making it easier for tribes to determine the best way to 
develop their resources on your reservations. So who would like 
to start? What are the three things we ought to do? Chairman?
    Mr. Not Afraid. Thank you, Chairman. One of the first 
things that I see that Crow Tribe would believe would be 
paramount is allowing the tribes to, again, administer and 
regulate on its own. The purpose of that would to--would not 
only expedite development, but it would ensure that we have 
sound practices beginning within our reservation, because we've 
seen in the past where some--other developments, whether it's a 
gravel pit, or what have you, the Feds had not done their trust 
responsibility; therefore, there were abandoned mines. But if 
the tribe was in the driver seat, we would've made sure that 
those were reclaimed. We would've made sure that all the 
archeological surveys were done or completed prior to 
disturbances of burial sites, or cultural sites.
    Mr. Gianforte. Okay. Mr. Henson.
    Mr. Henson. I think the overarching thing is what I'd call 
the two-prong approach. It's continued reliance on tribal 
decision-making, but also funding the liaison roles to the kind 
of levels we've been hearing about today. Because the Federal 
Government can bring some real technical expertise to assist, 
as opposed to sort of serving as a roadblock. There are a 
number of legislative ideas out there. Let's, you know, let 
this tribe--let's let Navajo have the right to lease its 
surface lands without as much approval. But that's very 
conservative. It's one tribe, one strata of the possible energy 
development rights. And so a lot of the moves forward are just 
kind of baby steps. And so I would argue that the current 
situation has developed through a whole lot of, I guess the 
technical term would be CUIA kind of maneuvers. We'll layer 
Fish and Wildlife over Interior, over Energy, and you end up 
with multiple sort of overlapping jurisdiction.
    Mr. Gianforte. So the suggestion, Mr. Henson, that is just 
to streamline the number of agencies that are involved.
    Mr. Henson. A little bit. Yes.
    Mr. Gianforte. Okay.
    Mr. Henson. If we can find like this sort of one-stop shop 
and actually make it work without being an additional layer, 
and when a tribe has to go out and interface with the Federal 
Government.
    Mr. Gianforte. Okay.
    Mr. Henson. And then I'm personally an advocate for things 
akin to the contracting and compacting that we've seen in a 
number of tribal areas. I think the Federal Government should 
find some resources for block grants to tribes. I mean block 
grants to the Southern Ute, to hire geologists, if they need 
one. Or, you know, some more of sort of third-party 
contracting, where tribes ----
    Mr. Gianforte. Okay.
    Mr. Henson.--can tap into technical expertise outside of 
the BIA, outside of tribal employees, but just kind of out 
there in the marketplace.
    Mr. Gianforte. Okay. Thank you, Mr. Henson. Councilman Red?
    Mr. Red. Thank you. I think number one for us is S.245. 
That is the closest to being complete. And I think that goes to 
what we want to see. Also, when it comes to us, when it comes 
to expertise, we have the expertise in place. We've been doing 
this for many years. So when it comes to the permitting 
process, from beginning to end, we do that ourselves. It's all 
in-house. We have our NEPA specialists. We have our cultural 
resources. We have our natural resources. We have our energy 
department. We take care of all that in-house. The only thing 
we wait on is the signature from the Department of Interior. 
And that's where we're reaching the delays. I mean one 
signature shouldn't take three years to get. And also with that 
----
    Mr. Gianforte. In your opinion, does S.245 fix that 
problem?
    Mr. Red. It helps. It helps. Yeah. I mean there's not one 
overall solution out there currently, but it would really 
definitely get us moving in the right direction.
    Mr. Gianforte. Okay. Thank you.
    Mr. Red. And also streamlining the NEPA process, and making 
some clarifications there. Because treating tribal lands as 
public lands does not work for Indian tribes. And also the one 
NEPA process I think would go a long way instead of each 
department, or each--I guess, I guess it would be department--
having their own NEPA process. So there'd be one defined NEPA 
process.
    Mr. Gianforte. Okay. Thank you. And Mr. Deschene.
    Mr. Deschene. Thank you, Chairman, and member of the 
committee. At DOE, we had a working group. It's called an 
Indian Country Energy Infrastructure Working Group. Tribal 
leaders from all over the country, including Alaska. They 
determined and decided that the number one policy priority is 
finding capital or access to resources that help spur energy 
development. Notwithstanding, what all the leaders here on the 
panel mentioned, those are all good recommendations. But if we 
want to jumpstart energy development, we can deal with the 
bureaucracy and the laws. We can work on that. A lot of good 
attorneys in the room that can help with that. But we need the 
capital, and we need business partners. So my recommendation 
would be we need--it's time for an energy legislation to be 
approved by Congress. So S.245, or whatever the vehicle is, the 
process is there for the types of input on it.
    Secondly, in keeping with the investment, DOE, DOI needs to 
have an energy loan guarantee program like we have in other 
agencies, but for energy, and not conditioned on the 
application fee. And it needs to be allowed to be deployed, 
existing technologies, and deployed in remote and distant areas 
of the country.
    And then finally, I would say that, uh, Congress has the 
power working with the White House and OMB to fund these 
offices an amount that makes a difference. You need more staff. 
You need more energy resources to provide for grants, capacity 
building, education. And so I would say those are the first 
fix, and then you can build from there.
    Mr. Gianforte. Okay. I'm going to indulge myself and ask 
one last question.
    For Chairman Not Afraid and Councilman Red, has the 
creation of the Indian Energy Service Center produced any 
improvements from a regulatory process?
    Mr. Red. For Southern Ute, no. And it's still--we haven't 
utilized that. I guess it kind of falls in the category of 
TERA. It's out there, but we haven't taken advantage of it.
    Mr. Gianforte. OK. Thank you. Chairman Not Afraid.
    Mr. Not Afraid. I see some advantages of it, but our 
priorities had been coal, where we identified the SMCRA, where 
it streamlines some things for the tribes to operate, but we 
always ended up at that same barrier of waiting on sister 
agencies on approving things. But back to the--back to the 
question. We haven't tried that.
    Mr. Gianforte. Okay. And are you gentlemen familiar with 
the service center, and the concept of trying to bring the 
agencies together? Would bringing more agencies into the 
service center--do you think BIA is equipped to play the role 
of a lead agency for tribal permitting?
    Mr. Not Afraid. To be frank, I believe the tribe can handle 
its own permitting, and for other tribes, I believe that would 
be a great start. As far as the Crow Tribe, just like with our 
brothers to the south there, the Ute, already established their 
permitting processes. And if we engage in that, then what was 
the sense in us developing our own systems.
    Mr. Gianforte. Yeah. Councilman Red.
    Mr. Red. Thank you. I think for Southern Ute, I mean it's a 
no for the shop. I think that we are equipped to deal with our 
own resources, and I think the more agencies that get involved, 
the more muddy the waters get. And you don't have one clear 
direction. Maybe if you had one clear direction and definitions 
in there, it may work, but until that time I think we're best 
equipped to take over that role.
    Mr. Gianforte. Okay. Well, I want to thank all the 
witnesses for your testimony today. The hearing record will 
remain open for two weeks for any member to submit an opening 
statement or questions for the record.
    If there's no further business, without objection, this 
subcommittee stands adjourned.
    [Whereupon, at 11:15 a.m., the subcommittee was adjourned.]


                                APPENDIX

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               Material Submitted for the Hearing Record