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Tribal organizations and energy development

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Title:
Tribal organizations and energy development recognized sovereignty, regulations, and planning
Uncontrolled:
Recognized sovereignty, regulations, and planning
Creator:
Wilson, Amy James ( author )
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English
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1 electronic file (193 pages) : ;

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Subjects / Keywords:
Land use -- Law and legislation -- United States ( lcsh )
Tribal government -- United States ( lcsh )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Review:
Tribal governments' capacity to implement land use controls within their Nations is limited by the United States Constitution and federal law; however, tribal governments have inherent sovereignty to protect, guide, and govern the lands under their jurisdiction to protect and enhance the safety, health, and welfare of their members.
Review:
The aim of this thesis was to investigate and identify (1) the extent to which tribal Nations have sovereignty over their lands and authority to regulate land use within their jurisdiction and (2) the present status and extent to which Native American tribal governments use their sovereignty over land use development concerning oil and natural gas development within their jurisdiction.
Summary:
The study was qualitative in nature and focused on a comprehensive archival review and a one-case case study. Constitutional law, federal Indian law, environmental law, and tribal law were considered. The thesis first examines the results of the archival review, which demonstrates that tribes, while limited by federal law, have sovereignty and authority to control land use within their territories.
Review:
The Three Affiliated Tribes of the Fort Berthold Reservation were also examined. The Tribes were chosen based on location, level of oil and natural gas production, and accessibility of information. The most current information available was used for the study. The data for the study was obtained from the Internet.
Review:
The research suggests that tribes are implementing land use controls and participating in land use and comprehensive planning; however, they are not doing so to the extent of their sovereignty. This study demonstrates that tribal governments do indeed have authority over their lands and resources and cannot fully take advantage of their sovereignty without practicing self-governance over their natural, built, and human environments.
Review:
Questions remain regarding the reasons that tribal governments are not implementing land use controls and engaging in land use planning to the extent of their sovereignty. Further research is needed to understand the reasons that tribal organizations are not taking full advantage of the existing sovereignty of their lands and resources.
Bibliography:
Includes bibliographical references.
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System requirements: Adobe Reader.
Statement of Responsibility:
by Amy James Wilson.

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University of Florida
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All applicable rights reserved by the source institution and holding location.
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994224365 ( OCLC )
ocn994224365
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LD11293.A78 2016m W45 ( lcc )

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Full Text
TRIBAL ORGANIZATIONS AND ENERGY
DEVELOPMENT: RECOGNIZED SOVEREIGNTY, REGULATIONS, AND
PLANNING
by
AMY JAMES WILSON A.A. San Juan Community College, 2009 B.A., Colorado State University Fort Collins, 2012 M.L.S., University of Denver, 2014
A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Urban and Regional Planning Urban and Regional Planning Program
2016


2016 AMY WILSON
ALL RIGHTS RESERVED


This thesis for the Master of Urban and Regional Planning degree by
Amy James Wilson has been approved for the Urban and Regional Planning Program
by
Jennifer Steffel-Johnson Donna Martinez Gilbert (Gil) McNeish
December 17, 2016


Wilson, Amy James (M.U.R.P.). Master of Urban and Regional Planning Program Tribal Organizations and Energy Development: Recognized Sovereignty, Regulations, and Planning
Thesis directed by Associate Clinical Assistant Professor Jennifer Steffel-Johnson
ABSTRACT
Tribal governments capacity to implement land use controls within their Nations is limited by the United States Constitution and federal law; however, tribal governments have inherent sovereignty to protect, guide, and govern the lands under their jurisdiction to protect and enhance the safety, health, and welfare of their members.
The aim of this thesis was to investigate and identify (1) the extent to which tribal Nations have sovereignty over their lands and authority to regulate land use within their jurisdiction and (2) the present status and extent to which Native American tribal governments use their sovereignty over land use development concerning oil and natural gas development within their jurisdiction.
The study was qualitative in nature and focused on a comprehensive archival review and a one-case case study. Constitutional law, federal Indian law, environmental law, and tribal law were considered. The thesis first examines the results of the archival review, which demonstrates that tribes, while limited by federal law, have sovereignty and authority to control land use within their territories.
The Three Affiliated Tribes of the Fort Berthold Reservation were also examined. The Tribes were chosen based on location, level of oil and natural gas
IV


production, and accessibility of information. The most current information available was used for the study. The data for the study was obtained from the Internet. The research suggests that tribes are implementing land use controls and participating in land use and comprehensive planning; however, they are not doing so to the extent of their sovereignty.
This study demonstrates that tribal governments do indeed have authority over their lands and resources and cannot fully take advantage of their sovereignty without practicing self-governance over their natural, built, and human environments. Questions remain regarding the reasons that tribal governments are not implementing land use controls and engaging in land use planning to the extent of their sovereignty. Further research is needed to understand the reasons that tribal organizations are not taking full advantage of the existing sovereignty of their lands and resources.
The form and content of this abstract are approved. I recommend its publication.
Approved: Jennifer Steffel-Johnson
v


ACKNOWLEDGMENTS
I would like to thank my thesis chair, Professor Jennifer Steffel-Johnson, PhD, as well as my committee, Adjunct Professor Gilbert (Gil) McNeish, J.D., and Professor Donna Martinez, PhD. I have truly been fortunate with my committee. I was provided with guided expertise in all areas the research requires: planning, land use law, and Indian affairs.
Dr. Johnson, you have remained with me throughout the process and have remained supportive even when I was unsure of my abilities. I thank you for your commitment, time, and support. This has been a long process, and you could have withdrawn many times. I thank you for remaining with me. I feel I have gained a lifelong advocate, and more importantly, a friend.
Gil, I thank you for supporting me as a student and helping me grow into a professional. More than anything, I am sincerely grateful for your friendship and wisdom. Dr. Martinez, I will always be thankful for your support at the last minute. Your enthusiasm, commitment, expertise, and feedback are very appreciated. You are an unexpected and wonderful addition to my committee.
I thank my family, my mom, and Danny for their support. I most certainly would not have made it to this point without your love and guidance. I also thank my father, Ivan. Thank you for your encouragement, enthusiasm, and love. I will always love you and miss you.
Lastly, I would like to thank all the wonderful professors and advocates I have had throughout the last nine years, most especially Dr. Donna Hobbs, former
VI


Professor of Biology. You have truly helped me to become the person, student, and professional that I am. I would also like to thank those at work who have supported, challenged, and taught me. I would not have been able to complete this thesis without the knowledge that I have gained during my time with the Division of Energy and Mineral Development within the Office of Indian Economic and Energy Development, U.S. Department of the Interior Assistant Secretary Indian Affairs.
VII


TABLE OF CONTENTS
List of Tables.................................................xii
List of Figures...............................................xiii
Table of Abbreviations.........................................xiv
List of Case Law...............................................xvi
List of Regulations and Statutes..............................xvii
Three Affiliated Tribes Tribal Law.............................xxi
CHAPTER I
INTRODUCTION...................................................1
Problem Statement..........................................5
Purpose of the Study......................................15
Significance of the Study.................................15
Research Questions........................................15
Limitations, Delimitations, and Assumptions...............16
Summary...................................................17
Organization of the Study.................................18
CHAPTER II
GLOSSARY......................................................19
CHAPTER III
BACKGROUND....................................................32
CHAPTER IV
METHODOLOGY...................................................44
viii
Design of the Study
45


Sampling..........................................................45
Research Questions................................................46
Instrumentation, Data Collection, and Data Measurement............47
CHAPTER V
ARCHIVAL REVIEW........................................................49
Introduction .....................................................49
Archival Audit....................................................49
The Doctrines of Discovery and Conquest.......................51
Foundational Legal Principles in American Indian Law..........53
Principle 1: Indian tribes as sovereign governments...56
Principle 2: Federal supremacy in Indian affairs......70
Principle 3: Limited state power in Indian country....72
Principle 5: Federal trust doctrine...................78
CHAPTER VI
LEGAL AUDIT AND CASE STUDY.............................................81
Introduction .....................................................81
Research Questions................................................82
Sample............................................................83
Section 1: Legal basis for federal Indian law.................87
United States Constitution............................88
Section 2: Federal Indian Law.................................88
Treaties..............................................89
Federal statutes......................................89
IX


Supplemental statutes
90
Federal Indian legislation.............................92
Important definitions set forth by Federal Indian energy legislation............................................94
Section 3: Tribal Law...........................................98
Tribal Constitution....................................98
Tribal Bylaws..........................................99
Tribal legislation.....................................99
Tribal Policy of General Application..................105
Section 4: Tribal Governance...................................111
Powers of the governing body..........................111
Committees formed pursuant the Tribal Constitution and
Bylaws................................................112
Tribal agencies.......................................112
Powers of the governing body..........................113
Section 5: Tribal Energy Division and Guidance Documents ....115
Three Affiliated Tribes Energy Division..............116
MHA oil & natural gas development documents...........116
North Dakota Century Code.............................117
Comprehensive planning documents......................118
Section 6: Supplemental Analysis ............................119
Additional Tribal organizations.......................119
Typical state oil and gas regulations.................121
x


Additional oil and gas regulatory analysis.....143
Best management practices analysis.............145
CHAPTER VII
SUMMARY, DISCUSSION, AND CONCLUSION...........................153
Summary ..................................................153
Discussion................................................155
Conclusion................................................161
References......................................................162
XI


LIST OF TABLES
Table 1: Research Questions.......................................................46
Table 2: Research Questions.......................................................82
Table 3: Fort Berthold Reservation Land Allocation..............................82
Table 4: Three Affiliated Tribes Treaties and Agreements........................89
Table 5: Federal Statutes Applicable to Indian Country .........................90
Table 6: Supplemental Statutes Requiring Compliance.............................92
Table 7: Federal Indian Legislation ..............................................92
Table 8: Federal Indian Legislation of General Application........................94
Table 9: Three Affiliated Tribes Tribal Law and Order Code, Chapter 15 -Environmental Code...............................................................100
Table 10: Fort Berthold Reservation, Tribal Energy
Laws of General Application......................................................106
Table 11: State Surface Oil and Gas Regulatory Analysis..........................121
Table 12: Additional Oil and Gas Regulatory Analysis.............................142
Table 13: Federal Indian Legislation of General Application......................143
xii


LIST OF FIGURES
Figure 1: Surface and Mineral Ownership Illustration............................24
Figure 2: Public Lands, On-Shore Federal and Indian Mineral Lands of the U.S. ... 35
Figure 3: Oil and Natural Gas Basins Located on Indian Lands ...................36
Figure 4: Fort Berthold Reservation Location Map................................81
Figure 5: Fort Berthold Reservation Active Oil and Gas Wells Location Map.......85
xiii


TABLE OF ABBREVIATIONS
American Indian or Alaskan Native AI/AN
Assistant Secretary-lndian Affairs AS-IA
Barrel B
Billion Cubic Feet BCF
Brent Crude ICE
Bureau of Land Management BLM
Bureau of Indian Affairs BIA
Clean Air Act CAA
Code of Federal Regulations C.F.R.
Council of Energy Resource Tribes CERT
Department of the Interior DOI
Division of Energy and Mineral Development DEMD
Environmental Director ED
Environmental Protection Agency EPA
Fiscal Year FY
Fort Berthold Reservation FBR
Indian Energy and Economic Development IEED
Indian Mineral Development Act IMDA
Indian Mineral Leasing Act IMLA
Indian Tribal Organization ITO
XIV


International Energy Agency IEA
Integrated Solid Waste Management Plan ISWMP
Mandan, Hidatsa, and Ankara MHA
National Environmental Protection Act NEPA
Natural Resources Committee NRC
Office of Natural Resources Revenue ONRR
Right-of-way ROW
The Three Affiliated Tribes TAT
Tribal Authority Rule TAR
Tribal Energy Development Capacity Grant TEDC
Tribal Energy Resource Agreements TERA
Tribal Environmental Protection Agency TEPA
Tribal Solid Waste Management Utility SWMU
United Nations Declaration on the Rights of Indigenous Peoples INDRIP
United States U.S.
United States Code U.S.C.
United States Dollars USD
United States Energy Information Administration EIA
United States Forest Service USFS
United States Government Accountability Office GAO
xv


LIST OF CASE LAW
Big Horn Country Electric Cooperative v. Adams, 53 F. Supp. 3d 1047 (1999). 74,
Brendale v. Confederated Tribes, 493 U.S. 408 (1989)................. 66,
Bryan v. Itasca (1976)..................................................
Cherokee Nation v. State of Georgia, 30 U.S. (1831). 26, 50, 55, 58, 59, 68,
Cherokee Tobacco, 78 U.S. 11 (1870).....................................
Curry v. Corporate Comm of Oklahoma (1979).............................
James D. Knight et al. v. The Shoshone and Arapahoe Indian Tribes of the Wind
River Reservation, Wyoming (1981)...........................................
Johnson v. McIntosh, 21 U.S. 543 9(1823)....................................
Lone Wolf v. Hitchcock, 187 U.S. 533 (1903)....................... 6, 62, 71,
Menominee Tribe v. United States, 391 U.S. 404 (1968).......................
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)................... 6,
Montana v. United States, 450 U.S. 544 (1981).............. 2, 50, 67, 68, 74,
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)................ 6,
Penobscot Nation v. Stilphen, 461 A.2d 478 (1983)...........................
Pinoleville Indian Community v. Mendocino County, 684 F.Supp 1042 (1988)........
Seminole Nation v. United States, 316 U.S. 286 (1942)................... 26, 55,
Seymour v. Superintendent, 368 U.S. 351 (1962)..................................
75
77
76
78
72
77
77
51
72
61
50
77
50
54
68
78
67
XVI


Shoshone and Arapahoe Indian Tribes of the Wind River Reservation v. Wyoming (1981)........................................................................77
Solem v. Bartlett, 465 U.S. 463 (1984)....................................... 71
United States v. Kagma, 118 U.S. 375 (1886)..................................2
United States v. Laura, 541 U.S. 193 (2004).................................. 70
United States v. Mazurie, 419 U.S. 544 (1975)................................ 66
United States v. Navajo Nation, 537 U.S. 488 (2003)....................... 79, 78
United States v. State of Washington, 425 U.S. 341 (1976).................... 64
United States v. Wheeler, 254 U.S. 281 (1920)................................ 65
Washington v. Confederated Tribes, 477 U.S. 134 (1980)....................... 74
White Mountain Apache Tribe v. Brackar, 448 U.S. 136 (1980).................. 50
Williams v. Lee, 358 U.S. 217 (1959).........................................2
Winters v. United States, 207 U.S. 564 (1908)............................. 61, 62
Worchesterv. Georgia, 31 U.S. 515 (1832)....................... 49, 52, 58, 60, 66
xvii


LIST OF UNITED STATES STATUTES AND REGULATIONS
16 U.S.C. § 469a-1.............................................................90
16 U.S.C. §470................................................................ 90
16 U.S.C. §703-712............................................................ 90
16 U.S.C. § 1431...............................................................90
16 U.S.C. §1531................................................................90
18 U.S.C. § 1151........................................................6, 22, 76
18 U.S.C. § 1162...............................................................76
18 U.S.C. § 1360........................................................ 76, 94, 96
25 U.S.C. §323............................................................. 94, 97
25 U.S.C. §396.......................................................... 90, 95, 97
25 U.S.C. §415.............................................................95, 96
25 U.S.C. § 450 et seq..........................................................2
25 U.S.C. § 458 et seq..........................................................2
25 U.S.C. § 2101................................................................4
25 U.S.C. §2102................................................................90
25 U.S.C. §3001................................................................91
25 U.S.C. §3501................................................................90
30 U.S.C. §21..................................................................90
xviii


30 U.S.C. § 181............................................................90
30 U.S.C. §351.............................................................90
33 U.S.C. § 1376-1521..................................................33, 91
41 C.F.R. §112............................................................91
42 U.S.C. § 116...........................................................91
42 U.S.C. §300............................................................ 91
42 U.S.C. § 1996....................................................... 75, 91
42 U.C.C. §4321........................................................75, 91
42 U.S.C. § 6901-6992..................................................... 92
42 U.S.C. § 7401-767..................................................... 92
43 U.S.C. § 1701..........................................................90
PL 959.....................................................................92
PL 37-64.................................................................. 92
PL 49-119..................................................................92
PL 73-383................................................................. 92
PL 83-280................................................................. 92
PL 93-638................................................................. 92
PL 102-477................................................................ 93
PL 109-58...................................................................4
XIX


PL 111-211
93
PL 114-38....................................................................93
PL 280...............................................................76, 77, 78
25 C.F.R. §63.3..........................................................6, 22
25 C.F.R. § 162......................................................22, 24, 25
25 C.F.R. § 163..........................................................57, 58
25 C.F.R. § 169.......................................................... 57, 58
25 C.F.R. §211.................................................................2
25 C.F.R. §212.................................................................2
40 C.F.R. § 1508.18..........................................................41
41 C.F.R. § 112..............................................................75
xx


LIST OF THE THREE AFFILIATED TRIBES TRIBAL LAW AND POLICIES
Constitution of the Three Affiliated Tribes of the Fort Berthold
Reservation...............................................98, 113, 114, 115
Bylaws of the Thee Affiliated Tribes of the Berthold Reservation ........99
Chapter 15 Title 15................................................99, 111
Ch.15.1 Section 8.......................................................109
11- 075-VJB ............................................................106
12- 087-VJB ............................................................106
12-103-VJB .............................................................107
12- 139-VJB ............................................................107
13- 049-VJB ............................................................108
13-070-VJB .............................................................108
13-071 -VJB ............................................................109
13- 126-VJB ............................................................109
14- 054-VJB ............................................................110
14-055-VJB .............................................................110
14-089-VJB..............................................................110
XXI


CHAPTER I
INTRODUCTION
The Council of Energy Resource Tribes (CERT) estimates U.S. Indian energy resources to be worth upwards of $1.5 trillion (Regan, 2014).1 Under the current energy policy, the U.S. federal government promotes energy development within Indian country (Tribal Nations and the United States, n.d.). The government perceives oil and natural gas development as a legitimate means for tribes to achieve economic self-efficiency, defined as and used synonymously with self-governance (Cross, 2011; Cornell et al., 2003).2 As a result, tribal governments can substantially benefit from oil and natural gas development on lands within their jurisdiction. For example, in 2015, the Jicarilla Apache Nation reported that oil and natural gas revenues funded 90 percent of all tribal operations (The United States Government Accountability Office, 2015 Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.gao.gov/assets/680/670701 .pdf).
1 Indian energy resources include energy resources that are considered within tribal countries and under the jurisdiction of the tribe. The resources are held in trust by the United States for Indian tribes and their members (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.qao.gov/assets/680/670701 .pdf).
2 To take for advantage of sovereignty and self-determination, tribes must fully engage in self-governance. See Trust Resource Management for further discussion (https://www.innovations.harvard.edu/trust-resource-manaqement).
1


Tribal governments capacity to implement land use controls within Tribal Nations is limited by the United States Constitution and Federal Indian Law;3 however, tribal governments have inherent sovereignty to govern, protect, and enhance the health, safety, and welfare of their citizens (Montana v. United States, 1981).4 They have authority over environmental regulations concerned with controlling environmental damage resulting from the use of the land within their jurisdiction (Royster, 1991). Congress has legally recognized the rights of tribes to have a greater say over the development and implementation of federal programs and policies that directly impact them and their tribal members (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).5 Tribal governments are now expected and encouraged to regulate development within their jurisdiction (Rayster, 1991).
Tribal governments retain sovereignty over many aspects of mineral leasing and development of resources; thus, tribes must develop efficient governing systems, such as effective energy policies and planning practices, to guide longterm energy development, which includes energy supplies, infrastructure, energy efficiency, and conservation, on a broad scale. Institutions that produce stable
3 25 C.F.R. §§ 211-212 govern the approval of oil and natural gas leases and agreements on federal Indian lands.
4 Also see: United States v. Kagma (1886), where the court found that even though tribes no longer possessed the full attributes of sovereignty, tribes remain a separate people, with the power of regulating their internal and social relations. See also Williams v. Lee (1959), where the court determined that Indians possess the right.. .to make their own laws and be ruled by them.
5 See: The Self-Determination and Education Assistance Act of 1975 (25 U.S.C. § 450 et seq.) and the Tribal Self-Governance Act of 1994 (25 U.S.C. § 458 et seq.).
2


governance and effective and efficient bureaucracy through laws and policies that consider long-term energy development should be available to tribal adjudicators and decision makers.
The National Congress of American Indians, in its article, describes the
importance of self-governance as a factor of sovereignty
The essence of tribal sovereignty is the ability to govern and protect and enhance the health, safety, and welfare of tribal citizens within tribal territory. Tribal governments maintain the power to determine their governance structures and enforce laws through police departments and tribal courts. Tribal governments exercise these inherent rights through the development of distinct forms of government. Tribal governments determine citizenship and establish civil and criminal laws for their Nations. Tribal governments may govern tribal and non-Indian activities on tribal lands, implement framework to apply taxes, fees, and licenses, and may govern their lands by regulating, maintaining, and exercising their powers to exclude wrongdoers from tribal areas. Tribal governments may implement regulatory and enforcement mechanisms to ensure environmental protection and resource management (National Congress of American Indians, n.d. Tribal Nations and the United States. Retrieved at http://enerqv.gov/sites/prod/files/2015/12/f28/ncai-tribal-nations-reoort.pdf).
There is an essential relationship between planners, policymakers, and energy development issues.6 Tribal-wide energy policy and planning addresses energy development and land use in Indian country. Balanced development is essential for addressing public health, safety, and welfare as well as economic and environmental concerns. Planning in Reservation communities is fundamentally a political process that aims to advance sovereignty through self-efficiency. Tribal
6 This thesis uses energy development and oil and natural gas development interchangeably.
3


authority over resources requires that the tribal government is accountable to the tribe and their members. This allows the tribe to pursue their priorities. When a tribe has a clear vision of their future and the accomplishments they plan to achieve, they utilize self-determination (Government Innovators Network, n.d. Retrieved at https://www.innovations.harvard.edu/trust-resource-manaqement).7
For example, American Indian tribes may exercise authority over their resources based on the 1981 Indian Mineral Development Act (IMDA), which allows tribes to engage in the lease negotiation process by negotiating the terms of the lease.8 9 In addition, The Energy Policy Act of 2005 gives tribes the opportunity to pursue Tribal Energy Resource Agreements (TERA), which allow tribes to enter into agreements without Secretarial approval.9.
Tribes must promote community development to achieve self-determination goals. Planning helps tribes overcome obstacles to development and therefore helps achieve self-determination (Zaferatos, 2004). The United States Department of the Interior (DOI) promotes and encourages self-determination where rights were not previously relinquished.
Tribes possess all powers of self-government except for those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that the federal courts have rules that are subject to existing federal law or are inconsistent with overriding national polices. Tribes.. .possess the right to form their own
7 Self-determination refers to the act of engaging in self-governance and decision making on issues that affect people and lands. Self-determination is a legal concept that encourages tribes to control their own affairs.
8 Per federal statute, tribes may still defer to the Bureau of Indian Affairs (BIA) for assistance or facilitation of lease negotiations.
9 To date, no tribe has entered into a TERA agreement.
4


governments; to make and enforce laws; both civil and criminal; to tax; to establish and determine membership; to license and regulate activities within their jurisdiction; to zone; and exclude persons from tribal lands (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).
Zaferatos (2004) note that important progress is occurring on many Indian reservations through effective planning to improve social and economic conditions necessary to sustain native communities. Developing energy resources in a thoughtful and regulated capacity will create jobs, generate revenues, and strengthen tribal, state, and national economies.10 Tribes that assume control of their resources have accountability, providing them with more control over their lands rather than the federal government. This allows tribes to achieve greater self-governance and sovereignty over their lands, natural resources, and members.11 This will also undoubtedly improve the quality of life on reservations and better protect the lands and its resources (Government Innovators Network, n.d. Retrieved at https://www.innovations.harvard.edu/trust-resource-manaqement).
Regulation of oil and natural gas development is essential to planning, as the development of oil and natural gas affects the local and regional landscape, the communities, and the natural environment. Land use controls represent prior
10 Capacity is defined as regulative, administrative, and technical expertise and capabilities needed to effectively manage and maintain the development of energy resources (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands, (p. 5). Retrieved at http://www.qao.gov/assets/680/670701 .pdf).
11 Lands and natural resources include surface and subsurface resources, including minerals.
5


restraint on pollution problems and separate control, and they also prevent environmental damage and incompatible uses of neighboring lands (Roystar, 1991).
This thesis investigates the relationship between tribal sovereignty and the management of oil and natural gas development within Indian country.12 Tribal sovereignty is a legal concept that provides broad and general powers to a tribal government;13 however, such powers are subject to the limitations imposed by the federal government (Lone Wolf v. Hitchcock, 1903). The goal of the study was to understand the extent to which American Indian tribes employ sovereignty over their lands and natural resources by using retained aboriginal rights through federal statutes, rules, regulations, and precedents for their benefit. The study focused on the discovery of new facts to further develop existing knowledge of land use and energy development in Indian country.14
12 Indian country refers to (1) all land within the limits of any Indian reservation, under the jurisdiction of the United Sates Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (2) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Unless otherwise indicated, the term Indian country is used instead of Indian reservation for consistency (18 U.S. Code §1151, and 25 C.F.R. §63.3).
13 See: New Mexico v. Mescalero Apache Tribe (1983), Merrion v. Jicarilla Apache Tribe (1982), and White Mountain Apache Tribe v. Brackar (1980).
14 Note that oil and natural gas development and energy development are used interchangeably throughout the thesis. In addition, natural resources may generally or specifically refer to oil and natural gas development, energy development, or natural resources found in the natural environment, including surface resources, such as surface hard rock minerals, soil, and vegetation, subsurface minerals, and water.
6


Tribal policymaking and planning must address impacts to the natural and social environments that result from oil and natural gas development. Zafertos (2004) asserted that tribal organizations that encounter external conflicts should base their responses on guided and informed decision making. The planning approach should consider both historical circumstances that gave rise to the conflict as well as their capacity to exercise effective political action to overcome the conflict (Zafertos, 2004). Tribal governments are empowered by their people to act on their behalf; to enhance tribal culture; to maintain law and order; to protect public health, safety, and welfare; and to preserve the tribes resources. The health, safety, and welfare of the tribes people are contingent on the careful consideration of the spatial and temporal arrangement of its lands and its resources and their relationships to the human environment. Tribes traditional beliefs place priority on the respectful care of the natural world. Acknowledging that water, forest and land resources are the cornerstones of tribal revenues (Government Innovators Network, n.d.
Retrieved at https://www.innovations.harvard.edu/trust-resource-manaqement).
Energy development is a crucial component of historical and modern land use practices. Oil and natural gas development affect land use, specifically the earths biosphere both above and below the surface, including climate, soil, and terrain forms, as well as human settlement patterns, such as developed regions and local areas. For example, oil and natural gas development exploit subsurface minerals; drilling machinery and other equipment disturb the surface, and the use of other heavy equipment causes emissions that put water and other resources at risk of
7


being contaminated. Furthermore, the identification and development of mineral resources often attract urbanization forces.
Oil and natural gas development affect large geographic areas, often crossing jurisdictional boundaries. For example, the Bakken Formation,15 a source of oil and natural gas, occupies roughly 200,000 square miles of the subsurface of the Williston Basin,16 crossing the boundary of the United States and Canada, two provinces, two states, and multiple counties and local jurisdictions as well as United States federal lands administered by the Bureau of Land Management (BLM),
United States Forest Service (USFS), and the Bureau of Indian Affairs (BIA).
In recent years, oil and natural gas markets have become one of Americas leading industries, creating a strong U.S. economy and contributing to domestic energy independence. According to the 2014 Energy Polices of the International Energy Agency (IEA) Countries Review (2014), unconventional oil and natural gas production17 is considered a game-changing development in North American markets and is a substantial contribution to economic activity and employment.
15 Formation refers to a geologic formation consisting of certain rock strata. Shale is a fine-grained sedimentary rock that forms from clay-sized mineral particles. Some shale is a source rock for many important oil and natural gas deposits. Extraction processes called hydraulic fracturing and horizontal drilling can access the oil and natural gas.
16 A basin is a depression in the crust of the Earth, caused by plate tectonic activity and subsidence, in which sediments accumulate. If rich hydrocarbon source rocks occur in combination with appropriate depth and duration of burial, then a petroleum system can develop within the basin. Most basins contain some amount of shale, thus providing opportunities for shale gas exploration and production (Schlumberger Oilfield Glossary, n.d. Retrieved at http://www.qlossarv.oilfield.slb.com/).
17 Unconventional oil and natural gas production refers to hydraulic fracturing (fracking) and horizontal drilling, whereas conventional drilling involves vertical wells and does not require fracking.
8


Energy development is viewed as an issue of national importance, primarily because such development provides society with economic and environmental security.
The modern energy economy must be recognized by Indian tribes as a significant event to plan for, and ask such questions of how it may impact their lands and environment, how they would participate, want are the risks and downsides, and what it means for their own economies (United States Department of the Interior Bureau of Indian Affairs, n.d. Retrieved at http://www.bia.gov/cs/qroups/xieed/documents/document/idc1-024535.pdf).
The Obama Administration supports self-governance and sovereignty and has demonstrated commitment to energy development in Indian country through Indian energy development programs and grants, federal agency support, and legislation.18 For example, the Office of the Assistant Secretary Indian Affairs (ASIA) under the DOI developed programs specifically addressing energy development in Indian Country. The Division of Energy and Mineral Development (DEMD), within the Office of Indian Energy and Economic Development (IEED), assists tribes with the exploration, development, and management of their mineral resources to create sustainable economies and to generate new jobs and self-sufficiency. In addition to technical assistance, IEED offers energy grant opportunities awarded through DEMD to federally recognized tribes to fund projects related to energy
18 See www.whitehouse.gov for further discussion.
9


development.19 DEMD provides technical support by monitoring the projects (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/). Pursuant to the Indian Mineral Development Act (IMDA) of 1982, tribes can lease their resources utilizing agreements that best fit their needs.
In collaboration with the BIA, DEMD helped tribes negotiate forty-eight IMDA leases in 2012, covering approximately 2,750,000 acres and about $45 million in bonuses alone (United States Department of the Interior Bureau of Indian Affairs, n.d. Retrieved at http://www.bia.gov/cs/qroups/xieed/documents/document/idc1-024535.pdf).
Policymakers have been monitoring energy development in Indian country in recent years and passing legislation that promotes sovereignty and self-governance over natural resources intended for energy development.20 In December of 2015, the U.S. Senate passed Senate Bill 209, Indian Tribal Energy Development and Self-Determination Act Amendments, by unanimous consent. The Act aims to increase self-determination and provide a mechanism to expedite the federal approval process, allowing tribes to build a sustainable energy plan and a more developed economy (Senate approves Bill to streamline Indian energy development, 2015. Retrieved at http://www.indianz.com/News/2015/019835.asp).
19 See Development Capacity Grant (TEDC) and Energy and Mineral Development Grant (EMDP), United States Department of the Interior Indian Affairs http://www.bia.gov/WhoWeAre/AS-IA/IEED/DEMD/).
20 Federal Indian law has experienced several policy shifts over the years: contact and discovery; treaty era; removal era; allotment and assimilation; Indian reorganization; termination; and self-determination.
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Planners and policymakers are trained to anticipate change and to identify root causes of change and its impacts on a community and region. Planners and policymakers therefore develop methods for evaluating human and environmental consequences of urban problems, programs, policies, and plans. Planning refers to strategic choices and actions used to improve physical, political, social and economic activity that enables a tribe to determine preferred outcomes by exerting sovereignty in order to attain desired ends (Zafertos, 2004).
Planning can be conceptualized as a broad concept as well as narrowly classified into strategic, regional, and city planning. Mintzberg (1994) describes planning as elusive and stated it protrudes in...many directions because the planner could be an economist, political scientist, sociologist, architect, or scientist. Mintzberg (1994) described planning in five distinct ways:
1. Planning is future thinking;
2. Planning is controlling the future;
3. Planning is decision making;
4. Planning is integrated decision making; and
5. Planning is a formalized procedure to produce an articulated result in the form of an integrated system of a decision.
Mintzbergs (1994) description of planning is broad in scope and is primarily focused on logic and integrated decision making.
Planning in Indian country requires strategic decision making, including decisions used to impose physical, political, social and economic activity that
11


enables a tribe to determine preferred outcomes by exerting sovereignty to attain desired goals (Zaferatos, 2004). Planning for oil and natural gas development is important to a community for reasons such as: the impact from semi-trucks hauling heavy equipment and facilities on local streets; congestion on local streets and dangerous intersections from increased traffic; environmental and vista preservation; location in relation to oil and natural gas facilities; design and density of existing and future subdivisions, commercial areas, and industrial parks; and, most importantly, the impact on public health, safety, and welfare.
The Quapaw Tribal Energy Development Template discusses the reasons
that, historically, limited planning occurs in Indian country. The template explains
that Indian country has been faced with shifting federal policies and government
funding throughout the years, and as a result, planning has been sporadic:
Tribal planning is unique from mainstream America. Today, many tribal communities bear the imprint of successive waves of reform and development. Unlike the radial patterns that characterized early American cities, tribal development is a mosaic of land uses that are often noncontiguous and mixed use (Department of the Interior, Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at
http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnerqvDev
elopmentTemplate.pdf).
Infrastructure investments are considerable when preparing for and accommodating energy development. The Quapaw Tribal Energy Development Template notes that in general, Indian country has not experienced infrastructure planning and stresses that coordination of land-use and infrastructure planning should forward public goals of sustainability in a manner that balances the ecology,
12


economic development and the evaluate system of its community. The document further suggests that infrastructure investment should be preceded by a comprehensive plan. The document emphasizes the need for infrastructure planning by tribal leaders, development experts, and federal officials (Department of the Interior Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at
http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnerqvDevelopmentTem
plate.pdf).
Oil and natural gas planning and regulation significantly affect regional planning regarding the spatial relationships with other uses, designs, and impacts on public health, safety, and welfare. Regional planning is important at the state, county, and local levels, including the tribal level. When considering regional plans and legislation, state, county, local, and tribal jurisdictions should cooperate to make the planning and laws consistent. Furthermore, because the federal government mostly delegates the management of the natural resources of energy development occurring within a jurisdiction to the state and tribes, the jurisdiction must consider the location of mineral deposits, the methods of extraction, the infrastructure needed, and the associated impacts.
Public policy influences the way a governmental organization and the general social structure are formed and operated. Policy is defined as the sum of government activities...[influencing citizens lives]. Policy choices are decisions made by policymakers and civil servants directed toward using public power to
13


positively affect the lives of people. Due to the spatial and temporal relationships between human settlements and natural resources, public policy is an intricate component of the ways lands and resources are used and managed (Peters, 2010).
To minimize the impacts associated with energy development and to anticipate and respond to energy development, tribal decision makers and adjudicators should have broad legislation that considers long-term energy trends and current and future land uses available to them. Effective energy policy and planning practices will guide long-term energy development involving energy supplies, infrastructure, energy efficiency, and conservation on a broad scale.
Problem Statement
Many tribal Nations have limited tribal legislation governing the management practices and development of their land and energy resources. Tribal governments and external actors focus on what tribal governments cannot do in terms of their jurisdictional rights and authority over lands and resources within their borders; however, in general, tribal organizations do not take full advantage of existing sovereignty of their lands and resources. As determined by federal and tribal law and self-determination, tribal governments do indeed have authority over their lands and resources and cannot fully take advantage of their sovereignty without practicing self-governance over their natural, built, and human environments. The environments will suffer without a regulatory framework and implementation of land use planning techniques for the development and management of energy resources, and the extent that they gain greater authority over their lands will most likely be
14


limited by their engagement and the employment of current rights and authority over lands within their jurisdictions.
Purpose of the Study
The first goal of this study was to determine the basis for tribal sovereignty. Secondly, the purpose of the survey was to explore the general relationship between the United States Constitution and agreements made by and between tribes and the federal government and to determine how those relationships affect a tribes ability to develop and enact tribal constitutions, bylaws, tribal law and order codes, and resolutions. Based on these criteria, an objective of the study was to explore the extent to which tribal governments have sovereignty over their land and resources. Thirdly, the purpose was to determine to what extent tribes use sovereignty through self-governance over their lands and resources.
Significance of the Study
There is a large body of existing research that discusses the ways federal policies and federal Indian law impact and limit tribes sovereignty over their ability to regulate land use and energy development within their jurisdiction; however, little research investigating the ways the basis of law relates to the extent of a tribes sovereignty over their land and resources has been conducted.
Research Questions
The following are the research questions that guided this exploration of tribal capacity to enact legislation regulating land use and energy development on their
15


lands and to explore examples of existing tribal legislation involving such development.
1. What is the legal basis of tribal sovereignty?
2. Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and its resources?
3. To what extent do tribal organizations use their sovereign status to enact legislation to regulate and guide the development of energy resources within their reserves?
4. To what extent do tribal organizations engage in traditional/contemporary land use planning practices?
Limitations, Delimitations, and Assumptions
The primary limitation of the thesis research is that the results are not generalizable to Indian country as a whole. Because it was extremely challenging to find and access pertinent documents, mainly adopted legislation, ordinances, codes, and resolutions, the study findings were impacted. As a result, the researcher examined one tribal organization. In addition, the study is limited because tribes have unique relationships with the federal government, including unique governance systems, laws, and regulations specific to their tribe. Therefore, the findings may not be generalizable across all tribes.
The delimitation utilized by the researcher in this study was determined by a desire to better understand the relationship that exists between tribal treaties, constitutions, bylaws, adopted law and order codes, and resolutions that are
16


intended to guide land use and energy development and the extent to which tribal legislation exists.
Despite the limitations of the study, foundational law, aside from treaties and individual agreements between the federal government and tribes, applies to all federally recognized tribes. The researcher narrowed the study to a one-case case study that focused on one of the most successful, if not the most successful, American tribes in regards to oil and natural gas development. Based on available sources, it was assumed that (a) in accordance with foundational legal principles, tribes have greater sovereignty over their land and resources than the typical publication discusses; (b) tribes who have known energy resources and who are actively developing such resources will have a more sophisticated or developed legal framework; and (c) compared to state and local regulations, tribal provisions related to energy development and environmental control will be limited.
Summary
To take full advantage of sovereignty, tribes must develop effective governing systems, such as effective energy policies and planning practices, to guide longterm energy development, which requires energy supplies, infrastructure, energy efficiency, and conservation on a broad scale. Institutions that provide stable governance and effective and efficient bureaucracy through laws and policies that consider long-term energy development should be available to tribal adjudicators and decision makers. The health, safety, and welfare of people are contingent on the
17


careful consideration of the spatial and temporal arrangement of lands, its resources, and their relationships to the human environment.
Organization of the Study
Because the thesis is somewhat unique, the organization of the study is different from a typical thesis. The study is applicable to several disciplines as well as industries. The thesis begins with a detailed glossary of terms in Chapter Two. The third chapter provides a brief background of the study. The fourth chapter introduces the methodology, Chapters Four and Five provide an archival review, legal audit, and case study. The literature review is referred to as an archival review because the review is more than a survey of existing information; it is a large component used to answer the research questions and should be considered part of the methodology. Chapter Six includes a legal audit of federal laws that apply to Indian country in general and tribal laws and guidance documents that specifically apply to the Fort Berthold Reservation. Chapter Six additionally analyzes best management practices (BMPs) for oil and natural gas development and the current framework under which states and local jurisdictions are regulating oil and natural gas.
Chapter Seven provides a discussion of the results by answering the research questions and discusses ways the results can be used as well as the ways the results contribute to existing data and information.
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CHAPTER II
GLOSSARY Indian Law
Federal Indian Law
Federal Indian law regulates legal relationships between Indian tribes and the United States. Federal Indian law dramatically affects tribes, their members, and the lands held. To be recognized by federal Indian law, the civil or criminal dispute must arise within Indian country or be governed by one of the Indian treaties or statutes that applies outside of Indian country.
Federal Indian law focuses on three central sets of concerns: (1) tribal sovereignty and Indian property rights, (2) federal power and obligations, and (3) jurisdiction over the reservation (McCoy, Padraic 2014. Lecture on Indian Law. University of Denver, Denver CO).
Tribal Law
Tribal law includes tribal case law, tribal constitutions and bylaws, tribal law and order codes, traditional law, laws guiding federal and state relations with the tribe, tribal law enforcement, and tribal jurisdiction (McCoy, Padraic 2014. Lecture on Indian Law. University of Denver, Denver CO).
Organization
Indian Tribe
A Indian tribe refers to an Alaskan Native or American Indian (AN/AI) tribal organization that is recognized as having a government-to-government relationship
19


with the United States, holding the responsibly, powers, limitations, and obligations attached to that designation, and who is eligible for funding and services from the BIA.21 Tribes are recognized as possessing certain inherent rights of self-government and entitled to receive certain federal benefits, services, and protections due to their special relationship with the United States22 (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/). Indian Tribal Organization (ITO)
Tribal organization refers to the recognized governing body of any Indian tribe, including any legally established organization of Indians that is controlled, sanctioned, or chartered by such governing body or that is democratically elected by the adult members of the Indian community to be surveyed by such organization and includes the maximum participation of Indians in all phases of its activities (United States Department of Agriculture, n.d. Retrieved at
http://www.nrcs.usda.gov/lnternet/FSE_DOCUMENTS/nrcs141p2_024362.pdf). Tribal Government
Due to their unique status as sovereign nations, tribes have complete authority over determining what type of governance system they have. Many
21 Funding and services are determined by statute, treaty, executive order, or other acts of Congress.
22 The BIAs mission is to .. .enhance the quality of life, to promote economic opportunity, and carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes, and Alaskan Natives. The BIA works closely with tribes to provide services for the members. Major programs include: real estate services, natural resources, wildfire probate, transportation, and human services (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).
20


American Indian tribes have adopted constitutions and bylaws and have created branches of government similar to the federal government. This type of system consists of an elected Chief, President, Mayor, Chair, a Tribal Council, and tribal court system:
Tribal governments maintain the power to determine their own governance structures and enforce laws through police departments and tribal courts. The governments exercise these inherent rights through the development of their distinct forms of government, determining citizenship; establishing civil and criminal laws for their nations; taxing, licensing, regulating, and maintaining and exercising the power to exclude wrongdoers from tribal lands. In addition, tribal governments are responsible for a broad range of governmental activities on tribal lands, including education, law enforcement, judicial systems, health care, environmental protection, natural resource management, and the development and maintenance of basic infrastructure such as housing, roads, bridges, sewers, public buildings, telecommunications, broadband and electrical services, and solid waste treatment and disposal (National Congress of American Indians, n.d. Tribal Nations and the United States: An Introduction. Retrieved at http://www.ncai.org/about-tribes).
Land and Interests
Allotted Lands
Allotted lands are held in trust for the use of individual Indians (or their heirs). The United States Federal Government holds the title, and the individual is the beneficial interest holder (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).
Fee Interest
Fee interest is an interest in land that is owned in unrestricted fee status and thus freely alienable by the fee owner (Blacks Law Dictionary, ninth edition).
21


Indian Country
Indian country refers to: (1) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (2) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof; and (3) all Indian allotments, the Indian titles which have not been extinguished, including rights-of-way running through the same (18 U.S. Code § 1151 and 25 C.F.R. § 63.3).
Indian Land
Indian land refers to any tract in which any interest in the surface estate is owned by a tribe or individuals, Indian in trust, or restricted states that includes both individually owned Indian land and tribal land (25 C.F.R. §162).
Mineral Interest or Mineral Right23
Mineral interest or mineral rights refers to rights to search for, develop, and remove minerals from land, or to receive a royalty based on the production of minerals. Mineral interests are granted in an oil and gas lease (Blacks Law Dictionary, ninth edition).
Reservation
The legal meaning of a reservation is an area of land set aside for a specific purpose; however, it is also any property right or property retained by a party to a bilateral agreement (Getches et al., 2011, p. 136).
23 Mineral interest is often interchangeable with mineral right. Mineral interest and right refer to ownership of subsurface minerals.
22


Restricted or Trust Lands
Restricted or trust lands refers to any tract, or interests therein, held in trust or restricted status (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved athttp://www.bia.gov/).
Severed or Split Estate24
Mineral rights can be severed from the surface rights on property that may contain gas and oil or other minerals (Blacks Law Dictionary, ninth edition).
Surface Interest or Surface Right25
Surface interest or surface rights refer to all rights in real property other than a mineral interest. The surface interest owner has the right to the surface subject to the right of the mineral-interest owner to use the surface (Blacks Law Dictionary, ninth edition).26
24 Severed estate is often interchangeable with spilt estate. Severed and spilt estates refer to the division of legal interests in the land.
25 Surface interest and surface right are often interchangeable. Surface interest and surface right refer to ownership and interest of the lands surface as opposed to the subsurface.
26 Where different owners own surface and mineral estate, the mineral estate is dominant.
23


Surface ownership
\
\
\
\
\
\
\
Representative area shown enlarged above Blackfeet Indian Reservation
I Individual Indian I ownership in trust
Fee ownership Tribal ownership in trust
MON
IDAHO
WYO MIN G

Figure 1: Surface and Mineral Ownership Illustration27 Tribal Lands
Any tract or interest therein where the surface estate is owned by one or more tribes in trust or restricted status and concludes such lands to be reserved for BIA administrative purposes (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).
Land Ownership
Indian Landowner
Indian landowner refers to a tribe or individual Indian who owns an interest in Indian land (25 C.F.R. §162).
27 Illustration retrieved from The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.qao.gov/assets/680/670701 .pdf.
24


Indian Mineral Owner
An Indian mineral owner is an Indian tribe, band, nation, pueblo community, Rancheria, colony, or other tribal group that owns mineral interests in oil and gas or geothermal or solid mineral resources, and the title to which is held in trust by the United States or is subject to a restriction against alienation imposed by the United States (25 C.F.R. §162).
Indian Surface Owner
An Indian surface owner is any individual Indian or Indian tribe whose surface estate is held in trust by the United States or is subject to restriction against alienation imposed by the United States (25 C.F.R. §162).
Federal Trust Responsibility Govern ment-to-Government
The United States recognizes its relationship with federally recognized tribes as one between sovereigns (between government and government). This principle is grounded in the U.S. Constitution (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).
Sovereignty
Tribal sovereignty is limited only by treaties with the United States, acts of Congress, Executive Orders, federal administrative agreements, and court decisions, and what remains is protected and maintained by the federal recognized tribes against further encroachment by other sovereigns, such as the states. Tribal sovereignty ensures that any decisions about the tribes with regard to their property
25


and citizens are made with their participation and consent (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/). Trust Responsibility
The federal trust responsibility is a legally recognized obligation under which the United States has charged itself with moral obligations of the highest responsibly and trust toward Indians (U.S. Department of the Interior Assistant Secretary-lndian Affairs, n.d. Retrieved at http://www.bia.gov/).28
Legislative Action Environmental Conservation Uses
Environmental conservation uses includes activities within the land areas designated for the purpose of conserving or protecting natural resources or environmental quality and include areas designated for such purposes as flood control, protection of quality or quantity of groundwater or surface water, floodplain management, fisheries management, or protection of vegetative communities or wildlife habitats (American Planning Association, 2004, cited as Temple Terrace, Fla.).
Tribal Zoning Code
Tribal zoning codes are laws that divide tribal lands into zone districts. Each district has use requirements and usually provides for special provisions. In the context of energy development, zoning should provide for the control of the development of property for energy development. Mechanisms to evade impact and
28 See: Seminole Nation v. United States (1942) and Cherokee Nation v. Georgia (1831).
26


conflict between neighboring uses should be established. These laws should be used to establish health, safety, and well-being. Zoning laws should implement any adopted land use plan or comprehensive plan and should not conflict with environmental codes, or to the extent that they do, the code should specify which rule prevails (Tribal Institute, n.d. Retrieved at Wiki: www.tribalinstitute.org).
Zoning Code
Zoning codes are the duly approved, enacted, and amended ordinances that control and regulate land use (American Planning Association, 2004, cited as Maryland Heights, Mo.). A zoning code is an ordinance enacted by the city council that sets forth regulations and standards related to the nature and extent of uses of land and structures, which is consistent with the comprehensive plan, includes a zoning map, and complies with other provisions (American Planning Association, 2004, cited as Newport, R.I.).
Planning
City Planning
City planning refers to the decision-making process in which goals and objectives are established, existing resources and conditions are analyzed, strategies are developed, and controls are enacted to achieve the goals and objectives as they relate to cities and communities (American Planning Association, 2004, cited as Iowa State University Extension Service).
27


Comprehensive Planning
Comprehensive planning is an exercise involving the understanding of where the community has been, where it is now, and what it should be for future generations. A plan should include the support of all segments of a society, including elected officials and lessees, spiritual leaders, and youth, adults, and elders.
Planning should empower tribal officials to make informed decisions about the issues or problems their community faces and should focus on the social and economic values that emerge (U.S. Department of the Interior Indian Affairs, n.d. Retrieved at www.indianaffaris.gov).
Indigenous Planning
Indigenous planning is a type of planning primarily used to include traditional knowledge and cultural identify specific to a tribe, so that planning incorporates tribal values such as land tenure, collective rights and matters of inheritance. The approach requires consensus building and community participation (Department of the Interior Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at
http://teeic.indianaffairs.qov/documents/docs/QuapawTribalEnerqyDevelopmentTem plate.pdf).29
29 In reference to indigenous planning, the Quapaw Tribal Energy Development Template, cited Ted Jojola: Physical Infrastructure and Economic Development (May 2007), commissioned for the National Congress of American Indians Policy Research Center, for discussion at the National Native American Economic Summit of May 15-17, 2007. The Primer discussion on this topic is not intended to be comprehensive, and reference should be made to that paper and references cited therein for a fuller discussion.
28


Infrastructure Planning
Infrastructure planning involves the facilities and services needed to sustain an industrial, residential, commercial, and all other land use activities, including water, sewer lines, and other utilities, streets and roads, communications, and public facilities, such as fire stations, parks, and schools.
Land Use and Spatial Planning
Land use planning should assess competing uses and alternative uses for land. Planning is important to reconcile different demands for land uses, identify potential benefits that can be achieved, avoid or minimize potential risks and costs, and identify suitable actions that can be implemented.
Performance Planning
Performance planning is a type of form-based planning technique that is largely focused on aesthetics design, form, and shape in contrast to traditional zoning districts that create districts based on use. The Quapaw template describes performance planning as akin to the land use zoning of a comprehensive plan, describing it as more [specific].. .in nature. The template further explains that performance planning considers each parcel of land and project to match the use appropriately to the site characteristics. (Department of the Interior Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at
http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnerqvDevelopmentTem
plate.pdf).
29


Strategic Planning
Strategic planning usually involves specific economic objectives related to development projects. It typically involves large-scale projects that will generate revenue and impact the community (Department of the Interior Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at
http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnerqvDevelopmentTem
plate.pdf).
The Balanced Scorecard Institute defines strategic planning as an organizational management activity that is used to set priorities, focus energy and resources, strengthen operations, ensure that employees and stakeholders are working toward common goals, establish agreement around intended outcomes/results, and assess and adjust the organizations direction in response to a changing environment (Balanced Scorecard Institute, n.d. Retrieved at http://balancedscorecard.org/Resources/Strateqic-Planninq-Basics).
Plans and Guidance Documents
Comprehensive Plan
A comprehensive land use plan is an all-encompassing document that generally includes discussions and plans for natural resources, environmental quality, safety, housing, community development, health and wellness, education, and economic opportunity. It is usually driven by a community vision and is the document that decision makers use to carry out the plan when deciding on future
30


land use development and projects, including infrastructure. The document also discusses current and future zoning and land use controls (U.S. Department of the Interior Indian Affairs, n.d. Retrieved afwww.indianaffaris.gov). Infrastructure/Capital Investment Plan
An infrastructure/capital investment plan is a plan setting forth, by category of public facilities, those capital improvement and that portion of their costs which are attributable to serving new development within designated service areas for public facilities over a period of specified years (American Planning Association, 2004, cited as Concord, N.C.).
Strategic Plan
A strategic plan is a plan articulating desirable characteristics to be used in structure, on-going decisions that are intended to influence outcomes (American Planning Association, 2004, cited as Interstate 81 Corridor Council).
31


CHAPTER III
BACKGROUND
Isidore (2015) enumerated that the nations greatest oil boom occurred during President Obamas tenure. U.S. oil production increased 82 percent to near-record levels over the last seven years, and natural gas production rose nearly 25 percent.
In 2015, more than 90 percent of domestic energy consumption was from fossil fuel or renewable energy sources (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.aao.aov/assets/680/670701 .pdf).
Following unprecedented growth in the United States oil and natural gas industries and three straight years of general per barrel oil prices around $100 United States Dollars (USD), the price per barrel of oil fell below $50 USD in January of 2015.30,31 Defterios and Riley (2016) found that crude oil prices have dropped 70 percent since 2014 and twice fell below $27 USD per barrel in 2016 alone.
Despite the economic downturn in domestic and global oil and natural gas energy markets, the United States federal government recognizes the sectors 30 31
30 Brent crude (ICE) was $37.15 USD/barrel (b) on April 8, 2016 and $48.69 USD/b on September 28, 2016 (Bloomberg Energy, n.d. Retrieved at http://www.bloomberg.com/enerav).
31The U.S. Energy Information Administration (EIA), Short-Term Energy Outlook released on March 8, 2016, reported that Brent crude oil prices are forecasted to average $32/b in 2016 and $40/b in 2017, $3 and $10 less than the forecast last month, respectively. The EIA bases the forecasted prices on lower expectations for predicted oil demand growth (Short-Term Energy Outlook, 2016. Retrieved at http://www.eia.gov/forecasts/steo/index.cfm).
32


economic benefits and remains dedicated to ensuring that America has energy independence (Securing American Energy, n.d. Retrieved afwww.whitehouse.gov). The Obama Administration continues to focus on energy development and strategy. The Administrations goals are to diversify the energy portfolio by harnessing American innovation. The United States Office of the Press Secretary (2015) explained that the United States is working to promote free markets, free trade, and the rule of law to businesses to identify changes and opportunities. The International Energy Agency 2014 Review (2014) reported that due to Americas aggressive energy policy, the United States is now producing nearly half of its domestic demand for crude oil, reducing dependence on foreign oil to a forty-year low.
As demonstrated by the adoption of the AII-of-the-Above Energy Strategy, meant to harness American innovation and develop a diverse portfolio of American-made energy, the Obama Administration supports renewable energy development as a viable source of energy production. Recognizing the current technological and distribution limits of alternative energy development and the need for reliable power, the Administration still focuses on traditional, non-renewable energy development. The Administration adopted a federal plan to cut net oil imports in half by the end of the decade and to double energy production by 2030 (International Energy Agency [EIA], 2014).32 The Administration is currently taking action by allowing tight formations to be opened so that new reserves are available for development. Further demonstrating federal support, Obamas Energy Department recently approved
32See President's Blueprint for a Secure Energy Future (Securing American Energy, n.d. Retrieved afwww.whitehouse.gov).
33


thirteen licenses to export up to 14.04 billion cubic feet (BCF) per day of liquefied natural gas (Dlouhy, 2016).
As a result of the oil and gas boom and energy policy reform, the United States crude oil production was 30 percent higher in 2013 than it was just 10 years prior, positioning the United States as the third largest producer of crude oil in the world behind Saudi Arabia and the Russian Federation.
Of the 33 oil and natural gas producing states, 27 are responsible for 99 percent of the production. Under its comprehensive energy strategy, the Obama Administration has offered millions of acres of public land for oil and gas production (International Energy Agency, 2014). The federal government currently owns and manages approximately 635-640 million surface acres and 700 million subsurface minerals, which is mostly made up of coal, natural gas, and oil. Federal leases in production are relatively small; however, domestic production from over 63,000 federally leased oil and natural gas wells accounts for 11 percent of the nations gas supply and 5 percent of its oil.33 Of the subsurface minerals held by the federal government, roughly 6 percent are considered developable for natural gas and oil production.
33 Only 48 percent of BLM leases are estimated to be active, whereas 94 percent of Indian leases are active (United States Department of the Interior Office of the Inspector General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development, n.d. Retrieved at
https://www.doioiq.qov/sites/doioiq.qov/files/CR-EV-BIA-0001-2011 Public.pdf.
34


Public Lands, On-Shore Federal and Indian Mineralsin Lands of the U.S.
Responsibilities of Bureau of Land Management Lower 48 States
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Figure 2: Public and Indian Minerals in Lands of the U.S.
In 2010, the Institute for Energy Research (IER) estimated that the worth of the governments recoverable oil and gas totaled $128 trillion, or eight times the national debt. Areas open to development include BLM, USFS, Federal Indian, and offshore lands. The BLM is responsible for managing federal lands, including the management of the surface and subsurface areas affected by oil and natural gas development. In the fiscal year (FY) 2015, the Agency generated more than $2.1 billion in royalties, $30 million in rental payments, and $112 million in bonus bids (United States Bureau of Land Management, n.d. Retrieved at http://www.blm.gov/wo/st/en.html).34,35 34
34 The federal royalty rate is 11.29 percent, and the lease terms average ten years (United States Bureau of Land Management. Retrieved at http://www.blm.gov/wo/st/en.html).
35


Figure 3: Indian Shale Plays and Basins
Of the federal lands, American Indian Reservations in particular have a large capacity for energy development. Collectively, American Indian tribes are the third largest owners of mineral resources in the United States (Cohen, 2012). American Indian tribes own 30 percent of all coal west of the Mississippi, half of all uranium resources, and 20 percent of all known oil and gas reserves. Estimations indicate that 80 percent of the resources go undeveloped (Regan, 2014). An evaluation by the United States Department of the Interior Office of Inspector General (2012) 35
35 In the fiscal year (FY) 2015, the BLM documented 23,770 active leases on U.S. federal and federal Indian lands (United States Bureau of Land Management, n.d. Retrieved at
http://www.blm.gov/stvle/medialib/blm/wo/MINERALS REALTY AND RESOURC E PROTECTION /enerqy/oil gas statistics/data sets.Par.64136.File.dat/number ofproducinqleases.pdf).
36


reported that there were 17,500 active oil and natural gas leases on Indian lands, a significant increase from just five years prior.36
The national royalty rate average for Indian leases is 16.88 percent, and the typical lease term is five years (Oil and Gas Outlook in Indian Country, n.d. Retrieved at http://www.bia.gov/cs/qroups/xieed/documents/document/idc1-024535.pdf). The United States Department of the Interior Office of Natural Resource Revenue (ONNR) reported that in 2012, mineral resources in Indian country generated over $701 million in royalty revenue paid to Indian mineral owners. Income from energy and mineral development is by far the largest revenue source for reservations (Office of Natural Resources Revenue [ONRR], n.d. Retrieved at www.onrr.gov/ONRRWebStats).
A 2012 report on Indian energy development reported that oil, natural gas, coal, and other minerals have an estimated economic impact of $10.49 billion and account for 86 percent of the economic impact in Indian country, supporting over 111,000, whereas irrigation, timber, and grazing only made a $1.59 billion dollar impact (United States Department of the Interior Office of the Inspector General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development, n.d. Retrieved at https://www.doioiq.qov/sites/doioiq.qov/files/CR-EV-BIA-0001-2011Public.pdf.
36 United States Department of the Interior Office of the Inspector General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development, n.d. Retrieved at https://www.doioiq.qov/sites/doioiq.qov/files/CR-EV-BIA-0001-2011Public.pdf.
37


The Fort Berthold Reservation in particular has been quite successful over the last few years. From 2008 through August of 2012, the Fort Berthold Tribal and allotted oil and gas royalties totaled $365,353,893 (Office of Natural Resources Revenue [ONRR], n.d. Retrieved at www.onrr.gov).
Unlike lands held under fee simple status, Indian lands are held in trust by the United States for the benefit of the tribal organization and its members. As a result, the lands and its resources are regulated, transferred, and disposed of differently in Indian country than in areas under common law.37 Pursuant to the United States Code (U.S.C.) and the United States Code of Federal Regulations (C.F.R.), various federal agencies promulgate regulations for the management of land and resources that are only applicable to Indian lands. Owners with interest in lands regulated and managed in accordance with common property law can freely dispose or encumber their lands without federal approval, whereas American Indian Tribes and individual Indians must obtain approval by the Assistant Secretary of the United States Department of the Interior to lease or encumber property in any way.
The BIA is responsible for the administration and management of 55 million surface acres and 57 million acres of subsurface minerals estates, which are held in trust by the United States for the benefit of American Indian tribes and their members. Administration and management operate through BIA Agencies and Field
37 This paper refers to lands held in fee ownership as well as other various forms of tenancy. Lands held under common law are distinguished from lands held in trust by the United States for the benefit of Indian tribes and individual Indian landowners because lands under common law are freely transferred, encumbered, and disposed of, while lands held in trust are encumbered and can only be alienated by the trustee.
38


Offices. Management responsibilities include leasing lands for mineral development and easement grants, environmental regulation and enforcement, surface facility management, and royalty and payment collection and disbursement.38
A federal evaluation of the administration of oil and natural gas leasing and oversight by the BIA on Indian lands reported that mineral development on Indian lands is hampered by complex regulations, insufficient funding, and tribal concerns about assuming increased responsibility (United States Department of the Interior Office of the Inspector General, 2012. Retrieved at
https://www.doioiq.gov/sites/doioiq.qov/files/CR-EV-BIA-0001-2011 Public.pdf).39
For example, Senator Bryon L. Dorgan (2008) prepared a formal report to the United States Senate Committee on Indian Affairs, which discussed oil and gas development on Tribal and individual Indian trust lands on the Fort Berthold Reservation. The Committee staff examined oil and natural gas development data from December 2006 to May 2008 and discovered that oil and natural gas development on the Fort Berthold Reservation lagged behind development on
38 There are 83 BIA Agencies and 12 Regional Offices. The Agencies are located at the reservation level and work closely within the framework of government-to-government relations to assist tribes they serve and their members. The regional offices are located in regional locations in and around Indian country.
39 The United States Government Accountability Office reported that an Indian oil and natural gas well can cost upwards of 65 percent more than a well off the reservation, primarily due to costs associated with permitting and regulatory compliance. For example, those drilling on Indian lands are required to obtain a BLM drilling permit, which costs $6,500, whereas state permits are generally less than $150 (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.qao.gov/assets/680/670701 .pdf).
39


private lands both within and surrounding the reservation boundaries.40 The report showed that the delays prohibited the timely development of energy resources on the Reservation, and as a result, was cause for financial detriment to the Indian and tribal landowners.41
The Reservation continues to suffer from backlogged permitting; however, the United States Department of the Interior Bureau of Indian Affairs (2012) reported that in 2010 the level of drilling on the Fort Berthold Reservation increased from 150 wells drilled to 200. The Bureau projected that 1,000 wells will be drilled to initially develop the Bakken Formation and an additional 1,000 wells will be drilled to complete the full development of the field over the next twenty to thirty years (United States Department of the Interior Office of the Inspector General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development, 2012. Retrieved at https://www.doioiq.qov/sites/doioiq.qov/files/CR-EV-BIA-0001-2011Public.pdf).
For example, the National Environmental Protection Act (NEPA) requires that federal agencies evaluate the environmental effects on surrounding lands and settlements occurring from major federal action. A major federal action includes
40 The Fort Berthold Reservation is comprised of private fee lands as well as individually owned Indian trust lands and Tribal trust lands. See the Official Portal for North Dakota State Government for further discussion.
http://www.ndstudies.org/resources/lndianStudies/threeaffiliated/demoqraphics land .html.
41 See Dorgan, Byron L. Oil and Gas Development on the Fort Berthold Indian Reservation, 2008. Retrieved at
http://www.indian.senate.gov/sites/default/files/upload/files/ftbertholdoilandqaswhitep
aper6408.pdf.
40


programs and projects regulated or approved by federal agencies. The Environmental Protection Agency (EPA) defines a major federal action as an action with effects that may be major and that are potentially subject to federal control and responsibility. Pursuant to 40 C.F.R. § 1508.18, federal actions include the approval of specific projects, such as construction or management activities located in a defined geographic area.
The federal government has preemptive capacity over oil and natural gas development on federal lands. Many federal statutes are promulgated to regulate oil and natural gas while simultaneously promoting environmental protection. In addition to the BIA, EPA, and BLM administer federal laws regulating Indian energy development. For example, pursuant to the Clean Air Act (CAA), EPA has the authority to regulate emission controls,42 and pursuant to federal regulations, the BLM is involved in the review and approval of oil and natural gas activities. Although the BIA issues permits, the BLM supervises and approves oil and gas operations on Indian lands.
State and local governments have broad oil and natural gas regulatory powers on lands within their jurisdictions (U.S. Department of Energy Office of Fossil Energy National Energy Technology Laboratory, 2009. Retrieved at https://www.netl.doe.gov/). State and local governments regulate the development of oil and natural gas within their jurisdictions mostly through enabling laws found in
42 Pursuant to the Tribal Authority Rule (TAR), eligible Indian tribes can assume the role of the EPA and implement EPA approved programs under the act in the same manner as states (University of Colorado at Boulder Intermountain Oil and Gas BMP, n.d., http://www.oilandqasbmps.org/laws/federal law.php).
41


state constitutions, local bylaws, ordinances, and resolutions. Many states administer the federal laws under agreements and plans approved by the appropriate agency; except Indian lands, many state legislatures have jurisdiction over oil and natural gas development within their boundaries. Most states have a regulatory commission with authority vested through the state constitution to regulate and promulgate legislation affecting oil and gas development within its jurisdiction (U.S. Department of Energy, Office of Fossil Energy National Energy Technology Laboratory, 2009. Retrieved at https://www.netl.doe.gov/). Through state oil and gas acts, regulatory agencies generally declare that the development of the states natural resources is in the best interest of its population. The state regulatory commissions assume the role of developing oil and gas in a safe and efficient manner.
State oil and natural gas regulations prevail over federal law where they are at least as stringent as federal regulations and do not conflict with adopted legislation (U.S. Department of Energy Office of Fossil Energy National Energy Technology Laboratory, 2009; Soragham, 2011). State regulators and adjudicators are responsible for making and enforcing rules and regulations. State agencies respond to complaints and reported accidents and publish notice documents for a range of issues, including forms and permits for exploration, extraction, and development.43
43 See: The University of Colorado at Boulder Intermountain Oil and Gas BMP Project for further discussion (http://www.oilandqasbmps.org/laws/federal law.oho).
42


In addition to federal and state authority, local governments are beginning to assume regulatory authority over oil and natural gas activities (Red Lodge Clearing House, Oil and Natural Gas Resource Development. Retrieved from http://rlch.Org/content/oil-and-gas-resource-development#state). The role of local government is mainly limited to zoning and permitting. Similar to federal preemption, state laws will prevail over conflicting state and local laws (The University of Colorado at Boulder Intermountain Oil and Gas BMP Project, n.d. Retrieved at http://www.oilandqasbmps.org/laws/federal law.oho).
Tribal governments may regulate oil and natural gas development through tribal codes, ordinances, and constitutions. The controls usually focus on wildlife protection, land-use restrictions, and water and solid waste contamination. Some tribes also have permitting processes, drilling plan requirements, and zoning restrictions (The University of Colorado at Boulder Intermountain Oil and Gas BMP Project, n.d. Retrieved at http://www.oilandqasbmps.org/laws/federal law.php).
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CHAPTER IV
METHODOLOGY
The goal of the study was to determine the extent to which American Indian tribes use sovereignty over their lands and natural resources by employing retained aboriginal rights through federal statutes, regulations, rules, and precedents for their benefit. The study focused on the discovery of new facts to further develop existing knowledge of land use and energy development in Indian country.
Several tribal governments were contacted by the researcher to request their participation in this study; however, none of the tribes responded. Accessing laws and guidance documents via the Internet was challenging, as tribes display limited information. Due to the research limitations, the researcher chose to organize the research based on one tribal organization, the Three Affiliated Tribes of the Fort Berthold Reservation.
The Tribal Energy Division was contacted via electronic mail and telephone; however, there was no response to the researchers request to actively participate in the study. Despite the failed efforts to obtain active participation in the research, the Three Affiliated Tribes of the Fort Berthold Reservation is an appropriate case study due to their geographic location and the accessibility of information. The Tribes are very successful in oil and natural gas development. Though limited, regulatory and planning information of the Tribal organization is accessible via the Internet.
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Design of the Study
The study was qualitative and therefore allowed for open-ended questions and personal interpretations. Due to inconsistent laws and court decisions, identifying the cause and the exact authority behind certain legal decisions that affect tribal sovereignty was difficult. To maintain a narrowly defined scope and an unbiased analysis, legal principles were used as an organizational mechanism.
The decision to organize the review as an archival review in four distinct sections allowed for historical and contemporary legal decisions and sources of information to be analyzed in a systematic fashion and ensured that the methodology was reliable and reproducible. The organization of the review significantly contributed to the findings section. The audit provided an opportunity to evaluate and assess strengths and weaknesses in the law and existing research and also allowed for critical and consistent evaluations of the review of information so that it could be evaluated based on its relevance or significance.
Sampling
The Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota was selected from the federally recognized tribal organizations that are currently developing oil and natural gas or that have the capacity to do so. The sample was analyzed based on the level of energy development, existing legislation, planning documents, and overall accessibility to sources.
The sample population led to more generalizable results because the selection was based on purposive sampling. Purposive sampling was used
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primarily to ensure that the sample was engaged in energy development and that information was accessible. The research design was prevalent during the qualitative research.
Research Questions
Because the basis of the investigation was reliant on foundational law, the questions were initially broad and become narrower. The research questions have several associated variables. Each variable describes its level of applicability to federal Indian law generally or to the Three Affiliated Tribes specifically.
Research Questions
Research Question Variable Applicability
1 What is the legal basis of tribal sovereignty? 1 The United States Constitution. Tribes generally.
2 Federal legislation. Tribes generally.
3 Tribal Constitution. Tribe specific.
4 Tribal Bylaws. Tribe specific.
5 Federal case law. Tribes generally.
6 Tribal case law. Tribes generally/specific.
2 Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and its resources? 1 The United States Constitution. Tribes generally.
2 Federal legislation. Tribes generally.
3 Treaties and other agreements. Tribe specific.
4 Tribal Constitution. Tribe specific.
5 Tribal Bylaws. Tribe specific.
6 Federal case law. Tribes generally.
7 Tribal case law. Tribes generally/specific.
3 To what extent do tribal organizations use their sovereign status to enact legislation to regulate and guide the development of energy resources within their reserves? 1 Committees. Tribe specific.
2 Legislation. Tribe specific.
3 Policy. Tribe specific.
4 Energy/Environmental Dept. Tribe specific.
5 Guidance documents. Tribe specific.
6 Land use and energy planning practices. Tribe specific.
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Research Questions
Research Question Variable Applicability
4 To what extent do tribal organizations engage in traditional or contemporary land use planning practices? 1 City planning. Tribe specific.
2 Comprehensive planning. Tribe specific.
3 Land use and spatial planning. Tribe specific.
4 Strategic planning. Tribe specific.
5 Performance planning. Tribe specific.
6 Indigenous planning. Tribe specific.
7 Infrastructure planning. Tribe specific.
Table 1: Research Questions
Instrumentation, Data Collection, and Data Measurement
Non-probability, purposive sampling was employed. By examining the phenomena directly rather than generalizing the population as a whole, the inferences applied were assumed to have higher validity. Archival data and data collected from a one-case case study were used to answer the research questions and test assumptions.
The data gathered to answer the research questions were qualitative in nature and classified as nominal. The data were collected at one point in time using the most current information available. To identify the legal basis for sovereignty, the extent to which tribal governments have sovereignty over land and resources, the extent to which they employ that sovereignty, and to what degree they engage in land use planning activities, the researcher used observable units, or variables that consisted of law and policy, the existence of tribal energy and environmental offices, and guidance documents.
The data collected include applicable provisions in the United States Constitution and federal statutes and treaties. The Tribal Constitution, bylaws, Tribal
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law and order code, resolutions and directives, and planning documents were collected via the Internet to the extent that they were available.
A qualitative content analysis was used to measure the level of participation in law and policymaking related to energy development.
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CHAPTER V
RESULTS: ARCHIVAL REVIEW Introduction
The purpose of this thesis was to better understand the extent of tribal sovereignty over land use and energy resources within their jurisdictions. The analysis provided in the archival review focused primarily on European and American legal concepts and case law derived from the field of law known as American Indian law or Federal Indian law.
The study drew from primary and secondary legal sources. The sources included statutes listed in the U.S.C. and regulations under the C.F.R. and the United States Federal Register (FR). A further analysis involved the review of case law, commentaries, and law and policy in legal encyclopedias, legal desktop resources, hornbooks, treatises, and legal periodicals. American Indian law is the foundation on which issues involving Native Americans are discussed and decided. To fully understand the extent of sovereignty tribes have over their lands and its resources, the historical context of that sovereignty must be investigated. The archival review describes the events that led to policy changes that in turn have created the current situation that is the focus of this thesis.
American Indian law is a body of law that includes parts of the United States Constitution, various treaties and agreements made between and among tribes and the federal government, federal statutes and regulations, federal court and administrative decisions, and tribal customs and natural law (McCoy, Padraic 2014.
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Lecture on Indian Law. University of Denver, Denver CO). American Indian law regulates the legal relationship between Indian tribes and the United States. American Indian law affects tribes, their members, and lands held by both.
To be recognized as federal Indian law, the dispute must arise within Indian country or be governed by one of the Indian treaties or statutes that applies outside of Indian country. American Indian law focuses on three central sets of concerns:
1. Tribal sovereignty and Indian property rights;
2. Federal power and obligations; and
3. Jurisdiction over the reservation.
As with all fields of law, American Indian law builds upon itself; however, due to shifting policies, ideology, and interpretations of legislation, answering the research questions of this thesis was challenging. Getches (2011) discussed American Indian law and what it represents: [American Indian law is comprised of] historical and moral markers in the relationship between the United States and American Indians. American Indian law marks an ongoing clash between indigenous and non-indigenous societies and cultures and reflects the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promise to the first inhabitants and the first sovereign (Getches, 2011).
This chapter examines and synthesizes the current political and economic environment for oil and natural gas development in Indian country. The section provides a basis to further understand the research. The archival review begins with
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a general discussion of relevant principles in American Indian Law and then narrows the focus to four main principles of American Indian law in the context of Indian energy and mineral development: (1) Indian tribes as sovereign nations, (2) federal supremacy in Indian affairs, (3) limited state power in Indian country, and (4) federal trust doctrine. The decision to organize the review of the literature into four distinct sections allows for the analysis of historical and contemporary legal decisions and for the sources of information to be analyzed in a systematic fashion. It also ensures that the methodology is reliable and reproducible. The organization of the review contributes to the findings section in a significant way. The format provides an opportunity to evaluate and assess strengths and weaknesses in the law and existing research and allows for critical and consistent evaluations so that review is evaluated based on its significance or worth.
Archival Audit
Legislative authority in Indian country is complex and nuanced. American Indian tribes have a unique relationship with the federal government. The government-to-government relationship is a formal acknowledgment in which the federal government recognizes tribes as separate nations. Because tribal nations retain distinctly, independent political communities, having sovereignty over members and lands, their status is distinguishable from state and local jurisdictions (Worcester v. Georgia, 1832). In Worcester, Chief Justice John Marshall of the United States Supreme Court concluded that Indian Nations have always been considered as distinct, independent political communities, retaining their original
49


natural rights, as the undisputed possessors of the soil. The very term nation so generally applied to them, means a people distinct from others. Likewise, Justice Smith Thompson, in a dissenting judgment in Cherokee Nation v. State of Georgia (1831), held that the Cherokee Nation was a foreign state and retained their usages and customs and self-government.
Tribal sovereignty includes internal authority over land and governance systems, where tribes retain rights to create their own laws and the ability to govern within their jurisdiction (Montana v. United States, 1981);44 however, the power to regulate the tribes is wholly federal, and their independence is subject to exceptionally great powers of Congress to regulate and modify the status of tribes (Canby, 2009).
Cohen (2012) pointed out that the United States Supreme Court relied extensively on international law when establishing new laws governing the relationship between the federal government and Native American tribes (p. 412). Contemporary American Indian law draws from and contributes to international law. British law influenced European settlers before American law was developed. British law recognized tribes as foreign nations with rights of possession to their lands. During the colonial period from 1492-1828 and the treaty period from 1828-1887, the United States recognized tribes as foreign nations that had broad authority over their lands.
44 See: New Mexico v. Mescalero Apache Tribe (1983), Merrion v. Jicarilla Apache Tribe (1982), and White Mountain Apache Tribe v. Brackar (1980).
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As American law developed, American settlers assumed authority of traditional Indian lands. In exchange for land cessations, tribes signed treaties granting them federal protection against further land cessations. The Indian treaties of the 17th and 18th centuries established the concept of reservations as a means of confining Indian occupancy and use of land to a particular territory (Getches et al., 2011). A reservation has a legal meaning broader than its definition of an area of land set aside for a specific purpose; it is also any property right or property retained by a party to a bilateral agreement (Getches et al., 2011, p. 136).
The Doctrines of Discovery and Conquest
Several legal concepts that developed from international law have become known as pillars of American Indian law. Possibly the most important concept, as they relate to this thesis, are the doctrines of discovery and conquest, which established Indian property law related to the existence and scope of Indian titles to real property.
The Doctrine of Discovery is an American legal concept that limits tribal sovereignty over traditional lands. The doctrine has several criteria, or elements, that must be met to satisfy the doctrine. The criteria include (a) being the first European to occupy the lands, (b) proving first discovery, (c) occupying the lands within a reasonable time, and (d) settling the lands (Getches et al., 2011).
Johnson v. McIntosh (1823) was the first property law case that involved American Indians. The case is rooted in the concepts of discovery and conquest. In Johnson, the United States and two tribes were each granted the same lands,
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consisting of the Illinois and Piankeshaw Nations, in private land grants to separate buyers in 1773 and 1775. The private buyers sued in federal court to eject the federal buyer from the property. The Court held that the United States retained the title to all lands within its borders based on the discovery of the lands and the conquest of the inhabitants. The United States Supreme Court held that the Nation that discovered the new land held fee title to the lands and that the occupants merely had a possessory interest in the lands they occupied, thus barring tribes from disposing of the land. It was determined that Indians had the right to occupy the ground as the rightful occupants of the soil with a legal as well as just claim to retain possession of it, and to use it according to their own discretion.. .their power to dispose of the soil at their own will, to whomsoever they pleased, was dented by the original fundamental principle, that discovery gave exclusive title to those who made it. The case resulted in limiting Indian sovereignty.
The Courts decision to extinguish any right, other than possessory, was twofold. According to the United States Supreme Court, when a European demonstrated that the elements and criteria of the Doctrine of Discovery were met, the aboriginal inhabitants were actually conquered; however, conquest does not actually indicate that the Indians were defeated, as if the United States had won a war. The exercise of conquest gave political dominance to the United States (Worcester v. Georgia, 1832). In turn, the outcome eroded the affected tribes legal interest in their lands from fee simple to possessory.
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Secondly, the Court held that as the successor of European nations, the United States inherently held legal claim to land rights. Thus, the legal constructs of discovery and conquest gave the United States claim to land rights, which extended across North America (Anderson & Parker, n.d.). The principles established a legal precedent in which Courts could not deny granting legal titles over lands conquered to the conqueror, severely impairing Native sovereignty.
Despite diverse views of land ownership over Indian lands, Semple (1952) clearly pointed out that the United States Constitution, treaties, and agreements protect Indian possessory rights to land. The federal government has consistently respected possessory rights of Indian tribes to their aboriginal domains. The United States Constitution, treaties, and agreements protect Indian possessory rights when a tribe can demonstrate long and continued possession over the lands where they reside; they retain the right to be compensated for their domains. That is, the federal government cannot take settled lands without proper compensation. Protection under the United States Constitution and other laws demonstrate that the Doctrine of Discovery has not been proceeded upon by Congress or the United States Supreme Court, holding that conquest is not a valid reason for taking tribal lands without just compensation (Semple, 1952).
Foundational Legal Principles in American Indian Law
Foundational legal principles in American Indian law include: (a) the recognition of Indian tribes as sovereign governments, (b) federal supremacy in Indian affairs, (c) limited state power in Indian country, and (d) federal trust
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obligations to secure the territorial and sovereign interest of tribes (Getches et al., 2011).
The first principle describes a legal concept founded in European law and recognizes tribes as having sovereignty and a special relationship with the federal government, which recognizes tribal governments as self-governing and distinct from state and local forms of authority. Retained sovereignty is clearly the pillar of the principle. A review of the legal concept demonstrates that the federal government is obligated to determine and provide certain benefits to the tribes and its members as an exchange for ceded lands and diminished rights. Settlement Acts and treaties provide for certain expressly retained tribal sovereign powers. Powers include rights over internal tribal matters, including exclusive jurisdiction over certain civil and criminal matters and exclusive authority to regulate hunting and fishing within Indian Territory. The first case to interpret retained sovereignty was Penobscot Nation v. Stilphen (1983). The case involved the Nations authority to hold bingo games on its Reservation without state regulation. The Supreme Judicial Court of Maine decided that the activities were not internal tribal matters, which subjected the Tribe to state regulation.
The second principle, federal supremacy in Indian affairs, is a statement of the relationship between the federal government and American Indian tribes and their members. Federal supremacy means that the U.S. Constitution is the supreme law of the land and that judges in every state must follow the Constitution, laws, and treatises of the federal government that are directly or indirectly within the
54


governments control. Article 1, Section 8, of the United States Constitution, known as the Commerce Clause, recognizes tribes as being distinct from states but expressly acknowledges that the United States government has the exclusive right to regulate commerce within Indian lands. The Supreme Court has described the Indian Commerce Clause as the foundational basis over Indian affairs, which means that the clause is the supreme law of the land.
The third principle, limited state power in Indian country, is rooted in the United States Constitution. Because Indian Nations are recognized as foreign nations, and the Constitution vests the legislative branch with plenary power over Indian affairs, states have no authority over tribal governments unless they have express Congressional authorization. Indian tribes and their territories are separate from states. They have all the elements of sovereignty that are not inconsistent with their dependent status or expressly withdrawn by the United States Congress. Justice Marshall discussed this in Cherokee Nation v. Georgia (1832). In Cherokee, the United States Supreme Court ruled that the Cherokee Nation was a sovereign nation and that the state of Georgia had no rights to enforce laws in its territory.
The fourth principle recognizes the legally enforceable trust obligation by the United States to tribes and their members. The United States has charged itself with moral obligations of the highest responsibility and trust toward Indian tribes (Seminole Nation v. United States, 1942). Chief Justice Marshall first discussed the obligation in Cherokee Nation v. Georgia (1831). Marshall held that Indian tribes
55


were not foreign nations, and thus they resembled dependent nations, where the United States has a moral obligation of fiduciary trust toward tribes.
The foundational legal principles were used as the basis to address the first two research questions of this thesis.
1. What is the legal basis of tribal sovereignty?
2. Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and its resources?
Principle 1: Indian tribes as sovereign governments. American Indian tribes have varying definitions. Each tribe is a distinct community [within a unique] political system. Due to treaties and other agreements and their relationship with the United States, each tribe is understood as being unique from the other; therefore, the term tribe does not have a standard definition. Wilkins and Stark (2011) described the varying definitions of American Indian tribes as either (1) ethnological or (2) political-legal. The ethnological perspective might be used by an anthropologist and is defined as a group of indigenous people connected by biology or blood, kinship, cultural and spiritual values, language, political authority, and territorial land bases, whereas the political-legal perspective is used for federal recognition and administrative purposes (Wilkins & Stark, 2011).
Legal definitions are sometimes broad. Therefore, to some extent, they are open to interpretation. Legally defined statutes and regulations are designed ambiguously and are open for interpretation intentionally. Because government staff and personnel are expected to be the experts of their field, the legislative branch of
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government allows for agency deference and interpretation of the intent of laws in the promulgation of such laws. Clearly, the more particular the meaning of a law, the more it affects the outcome.
Individual statutes and regulations involving Indian country and tribal organizations use different definitions of tribes, as do federal agencies that manage Indian affairs, such as the BIA. There are inconsistencies in the meaning of tribes among the legislative branch and agencies and offices within the United States Department of the Interior Office of Indian Affairs as well as regarding how they refer to tribes. For example, Congress defines American Indian tribes as a federally recognized tribe, rancheria, pueblo, band, nation, community, or group of Indians; however, federal regulations, such as 25 C.F.R. §169, Rights-of-Way Over Indian Lands, promulgated by the BIA, describe American Indian tribes as tribes and define them as a tribe, band, nation, community or group of pueblo of Indians. In 25 C.F.R. part 163, General Forestry, tribes are defined as an Indian tribe or tribe and as any Indian tribe, band, nation, rancheria, pueblo or other recognized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and shall mean, where appropriate, the recognized tribal government of such tribe's reservation" (emphasis added).
Applying Wilkins and Starks (2011) examination of the varying meanings to an instance involving land use, the definition of tribe pursuant to 25 C.F.R. part 163 may very well have a different outcome than the other two. For example, unlike the
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BIA meaning and the meaning pursuant to 25 C.F.R. part 169, the meaning under 25 C.F.R. part 163 includes ...where appropriate, the recognized tribal government of such tribes reservation. Because the political-legal definition is more narrow, leaving less room for interpretation, its application would require that the tribe have a reservation to be considered a tribe, even if they are able to demonstrate that they are a group of indigenous people connected by biology or blood, kinship, cultural and spiritual values, language, political authority, and territorial land bases.
The BIA refers to a tribe as a tribal organization that is federally recognized. Tribes are defined as an American Indian or Alaska Native (AI-AN) tribal entity that is recognized as having a government-to-government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation, and is eligible for funding and services from the BIA (The United States Department of the Interior Indian Affairs. Retrieved at http://www.bia.gov/FAQs/).
Federally recognized tribes are perceived as possessing certain inherent rights of self-government and are entitled to receive certain federal benefits, services, and protections due to their special relationship with the United States.45 Tribes are recognized as having a government-to-government relationship with the United States with responsibilities, powers, and obligations attached to the designation (See Cherokee Nation v. Georgia [1831] and Worcester v. Georgia [1832]).
45 Federally recognized tribes are historically defined through treaties, acts of Congress, presidential executive orders, or other federal administrative actions or federal court decisions (United States Department of the Interior Indian Affairs. Retrieved at http://www.bia.gov/FAQs/).
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Long (2008) asserted that the degree to which American Indians have authority over their lands extends to their earliest dealings with European nations and the founding of the United States. European countries settling North America in the 1600s viewed American Indians as independent, sovereign nations, and therefore entered into treaties with them as they would any other foreign nation. According to Cohen (2012), Indian tribes were regarded by both European nations and by the United States Congress and Supreme Court as being distinct, independent political communities, retaining inherent rights.46 In Cherokee Nation v. State of Georgia, (1831), the Supreme Court held that the Court did not have jurisdiction over the case because a foreign nation could not sue a state in federal court.
The issue was a jurisdictional dispute between the Cherokee Nation and the State of Georgia. The Cherokee Nation was seeking an injunction to restrain the State from executing certain laws within the Cherokee Nation. The Courts ruling stated that the Cherokee Nation was recognized as a distinct political society, but that it was equivalent to the ward of its guardian. The decision was that the tribe was a foreign entity on its face, but different circumstances were applied. Although the Supreme Court dismissed the case based on jurisdiction, it determined that the federal government should acknowledge that tribes retain distinct, independent political communities having sovereignty over their members and land (Anderson & Parker, n.d.).
46 Cherokee Nation v. State of Georgia (1831)
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The Court used this approach one year later in Worcester v Georgia (1832).
In Worchester, the state of Georgia convicted a non-Indian minister, who was invited to the Cherokee Nation by its members, for residing within the boundaries of the Cherokee Nation without first procuring a state license or taking an oath to defend Georgias laws and Constitution. The minister challenged his conviction, basing the decision on a predicted statute. Chief Justice Marshall found that the Cherokee Nation was a distinct community, occupying its...territory...in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of congress [and that] the whole intercourse between the United States and this nation...is vested in the government of the United States (Long, 2008, p.5).
The United States relied on treaties to conduct their formal relations with tribes until 1877 (Cohen, 2012). The federal government interprets treaties between itself and other nations, including Indian Nations, as the supreme law of the land (Getches, 2011). The United States Supreme Court has interpreted treaties as a contract between two sovereign nations (Getches et al.,2011; Cohen, 2012); however, the Discovery and Conquest Doctrines afforded Europeans the ability to presume an exclusive right to deal with and extinguish the Indians land titles. To preserve its monopoly over land transactions...[offering, in exchange] military protection from encroachment and harassment by non-Indians (Getches et al.,
2011, p.3). Thus, the treaties with the Native Nations inherently created a relationship of dependence of the Nations on the United States.
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Getches (2011) asserted that historically, the primary purpose of the treaties was to obtain land from tribes through negotiation rather than warfare. Usually, treaties expressly recognized tribes as sovereign and contained language that indicated that the federal government would protect the tribe. The United States used treaties to create a federally protected reservation for the tribe to respect tribal sovereignty and to protect their wellbeing (Getches, et al., 2011; Long, 2008).
Treaties were entered into by and between tribes and the federal government, and agreements between American Indian tribes and the United States are a legal representation of land cessations in return for protection and unique benefits (United States Department of the Interior Indian Affairs, n.d. Retrieved at www.bia.gov). The United States Supreme Court determined that treaties should not be construed as a grant of rights from them but rather as a grant of rights to them (Menominee Tribe v. United States [1968] and Winters v. United States [1908]). Cohen (2012) noted that as a consequence of a tribes relationship with the federal government, federal statutes limit tribal powers of self-government by the terms of treaties with the federal government and by restraints of the relationship itself. Sovereignty does not arise from the United States government, congressional acts, executive orders, treaties, or any other source outside the tribe. Powers that are lawfully vested in an American Indian tribe are not delegated powers granted by Congress, but rather inherent powers of limited sovereignty, which has never been extinguished.
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For example, in Winters v. United States (1908), the United States Supreme Court held that while not expressly stated, the Treaty of 1855 between the United States and the Yakima Indian Tribe protected the Indians rights to fishing, hunting, and other privileges. The Court recognized that the treaty was not a grant of rights from them but a grant of rights to them.
The United States Supreme Court developed three rules that are known as the canons of treaty construction that are meant to govern the interpretation of treaties made between tribal governments and the United States (Long, 2008).
1. Ambiguities in treaties must be resolved in favor of the Indians;
2. Treaties must be interpreted as Indians would have understood them at the time the treaty was signed; and
3. Treaties must be construed liberally in favor of the Indians.
According to Long (2008), the cannons of construction are derived from the disadvantage labored under by tribes in making treaties and agreements with the Executive Branch (p.24).
The concept of tribal sovereignty provides broad and general powers to a tribal government, but such powers are subject to limitations imposed by the federal government (Lone Wolf v. Hitchcock, 1903). In Lone Wolf, The United States Supreme Court held that Congress had the authority to void treaty obligations because it had an inherent plenary power. Justice Edward White noted that the authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one. Lone
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Wolf upheld the decision in Cherokee determining ...Indian tribes [as] wards of the nation.. .communities dependent on the United States.
Modern federal Indian law diverges from such extreme ideology and expression. Tribes have renewed power since the 1970s because of Indian political action by Native American leadership to restore their sovereignty and self-determination. Federal programs have been designed to administer self-determination programs, including mineral and energy development, land use and zoning, education, and the establishment of tribal business codes (Zaferatos, 2003).
For example, DEMD offers a hands-on approach to tribes and individual Indian mineral owners in leasing their resources. DEMD provides assistance to tribes and Indian mineral owners by proactively marketing energy and mineral resources. As a division of the United States Department of the Interior Indian Affairs, DEMD serves as a technical representative for tribes at industrial trade shows and industry forums where tribes can interact directly with prospective industry partners and provides tribally authorized technical presentations detailing the geology, geophysics, engineering, and resource potential of the Indian lands to potential partners.
DEMD also provides tribal organizations with assistance in business code development, planning for resource development, including establishing traditional land use planning practices, and a regulatory framework for land use and mineral
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development.47 Tribes are now implementing their jurisdictional power over the reservation through tribal courts, zoning ordinances, taxation bureaus, environmental control, business and health regulation, and fisheries and water management codes (Getches, et al. 2011).48
American law upholds agreements between the United States and Native Americans, recognizing that tribal governments are legally entitled to enforce their treaty rights; any violation of a treaty is a violation of federal law (Long, 2008). If the tribes have not ceded tribal rights in agreements approved by Congress, or Congress does not extinguish them, the rights will continue to exist in perpetuity (Getches, et al., 2011). For example, in the United States v. State of Washington (1976), several American Indian tribes in the state of Washington brought a claim against the state for infringing on treaty rights that reserve the right to fish to the tribes. The United States Supreme Court held that the mere passage of time has not eroded, and cannot erode the rights guaranteed by... treaties.
United States Constitution. The Commerce Clause, also known as the Indian Commerce Clause, is the basis for laws regulating commerce, trade, and sales between the federal government and tribal Nations. Article 1, Section 8 of the United States Constitution recognizes tribal governments as sovereign nations that have a unique relationship with the federal government. The provision reads: The
47 See the United States Department of the Interior Indian Affairs for further discussion. (http://www.bia.gov/WhoWeAre/AS-IA/IEED/DEMD/).
48 See the Tribal Court Clearinghouse for a detailed discussion of current cases, statutes, and other Indian country subject-matter resources involving tribal law and policy in Indian country today (http://www.tribal-institute.org/).
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Congress shall have the power to...regulate commerce with foreign nations, and among several states and with Indian tribes. Regarding American Indian tribes, Article 1, Section 8 of the Constitution is two-fold. First, the provision establishes that the United States Congress has the exclusive right to engage with Indians and its affairs. Secondly, tribes are recognized as being distinct entities, separate from or unique in regards to foreign nations and states, able to regulate commerce with foreign nations, and among several states and with Indian tribes.
Tribal sovereignty. Self-governance is fundamental to American Indian law. Cohen (2012) described tribal powers of self-governance as recognized by the Constitution, legislation, treaties, judicial decisions, and administrative practice.
Pevar (1983) noted that Indian tribes had been sovereign nations before the Europeans arrived on this continent.. .and they continue to exercise the powers of a sovereign government (p.81). Sovereign status does not arise from the Constitution or case law but rather as [a] consequence of their historical status as independent nations (Pevar, 1983, p.82). In United States v. Wheeler (1920), the U.S. Supreme Court described tribal sovereignty as inherent powers of limited sovereignty, which have never been extinguished.49
49 Contemporary policy is supportive of tribal self-governance and independence. For example, in 2000, President Clinton stated in an executive order that Indian tribes exercise inherent sovereign powers over their members and territory.. .The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination. In addition, President Obama signed the United Nations Declaration on the Rights of Indigenous Peoples (INDRIP) in 2010, pledging support for indigenous people around the world and recognizing their right to political and cultural autonomy (Pevar, 1983).
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Demonstrating its recognition of tribal sovereignty, citing Worchester v Georgia (1832), in U.S. v. Mazurie (1975), the United States Supreme Court stated that [tribal governments] are entities which possess a certain degree of independent authority over matters affecting internal social relations of tribal life. In Mazurie, the Court determined that the tribe had the power to regulate liquor transactions in Indian country, even over non-Indians on fee lands, and confirmed Congress constitutional authority to delegate power to tribes and affirm inherent tribal power. Justice Rehnquist concluded that the federal authority is adequate even though the lands were held by non-Indians, and even though the persons regulated were non-Indians (Cohen, 2012, p.252).50
In an affirmation of inherent authority over lands within the exterior boundary of their reservation, the Supreme Court determined that the tribes have a right to regulate non-Indians on non-Indian fee land within their jurisdiction when the non-Indian fee land threatens or has some distinct effect on the political integrity, economic security, or health and welfare of the tribe. The Court also upheld the right of tribes to regulate and tax non-Indians on non-Indian land when the non-
50 See further: Brendale v. Confederated Tribes (1989), where the local authorities were trying to exercise jurisdiction over trust lands. The court held that the county was preempted from exercising zoning authority over non-fee lands because the countys interests in regulating the areas were minimal, whereas the benefit of the tribe was substantial (Federal law prohibits zoning and enforcement of codes and ordinances of states and municipalities from applying to restricted Indian property; however, in the case of fee lands within the exterior boundaries of a reservation, local zoning codes and ordinances would apply to the fee lands, and tribal laws would apply to restricted and trust lands).
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Indian enters into a consensual relationship with the tribe (Montana v. United States, 1981).
The Court first recognized the problem of checkerboarding51 in Indian country in the United States Supreme Court case Seymour v. Superintendent (1962). In Seymour, a 1906 statute transferred a large portion of the Colville Reservation from tribal ownership to non-Indian ownership. The Court determined that the transfer did not preclude the Colville Reservation from regulating the lands because pursuant to the legal definition of Indian country, the land remained within Indian country and therefore under the jurisdiction of the Tribe.
In Montana v. the United States (1981), the Court affirmed the right of tribes to regulate non-Indians on non-Indian fee land located within the exterior boundaries of the reservation. The Court held that the Tribe should have jurisdiction when the non-Indian fee land threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe. The Court also upheld the right of tribes to regulate non-Indians on non-Indian land when the non-Indian enters into a consensual relationship with tribe, determining that the non-Indian may be subject to taxation, regulation, or other means of authority.
Under Montana, federal courts have upheld tribal authority over zoning and land use regulations on lands within the exterior boundaries of the reservation as
51 Checkerboarding refers to a situation in which land ownership is intermingled between private, tribal, and Indian landowners, resulting in a checkerboarding pattern. Checkerboarding creates jurisdictional challenges over lands within the exterior boundaries of a reservation, particularly claims to tax, regulate, or perform other activities within reservation borders (Indian Land Tenure Foundation, n.d. Retrieved at https://www.iltf.org/land-issues/checkerboardinq).
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well as the rights of the tribal government to impose regulations on non-Indians on non-Indian lands within their reserve for the purpose of protecting public health and safety. In support of Montana, the Court enjoined the construction and operation of cement and asphalt operations on non-Indian lands, owned by the defendants, within the reservation, where the tribe claimed that an ordinance imposing a moratorium on new industrial uses on the Rancheria preempts the Countys zoning code and authority. The Court upheld the tribes assertion, stating that [the] operation of the plant(s) would threaten or [cause] injury to the land, water, and air, as well as the health and welfare of the Indians of the Rancheria (Ponoleville Indian Community v. Mendocino County, 1988). Lower courts have approved measures extending tribal building and health and safety codes to non-Indians on fee land (Royster, 1991).
As mentioned, courts have not remained consistent. One year before Worchester, the United States Supreme Court held in Cherokee Nation v. State of Georgia (1831) that while acknowledging tribes retain distinct, independent political communities having sovereignty over members and lands, the relationship between the tribal organizations, their members, and the federal government is analogous to being a ward to his guardian.
Energy development and Principle 1: tribal sovereignty. Energy development projects in Indian country are subject to federal regulations involving environmental
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and cultural resource reviews, which do not apply to fee lands;52 however, there are examples of tribes that have developed the management of their energy resources. Some tribes have developed their own land and environmental offices, and in many instances, have assumed responsibility for performing their own environmental audits and assessments.53
The available literature generally demonstrates that tribes gain an economic benefit from internally managing their natural resources. For example, the Salish-Kootenai Confederated Tribes of the Flathead Reservation in Montana took over more than 100 federal programs, including forest management. As a result, the tribes.. .earn $2.04 for every dollar they spend on timber management while the neighboring Lolo National Forest, managed by the federal government received only $1.10 for every dollar it spends (Regan, p. 14). The Tribe has developed their own human resources departments by hiring tribal members to manage their natural resources and ensuring that developers meet the standards adopted by the tribe as well as federal regulations. This provides opportunities for the Tribe to maintain the management of natural resource programs that are usually dependent on those of the federal government (Government Innovators Network, n.d. Retrieved at https://www.innovations.harvard.edu/trust-resource-manaqement).
52 The National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. This includes making decisions on permit applications, adopting federal land management actions, and constructing highways and other publicly owned facilities (see United States Environmental Protection Agency [EPA]).
53 See the Navajo Nation, Three Affiliated Tribes, and the Crow Reservation as examples.
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Notably, tribes have validated their sovereignty through policy as well as through the development and implementation of short and long-term planning mechanisms that support tribal energy policy. Advanced expertise in energy and land use allows tribes to fully take advantage of their sovereign status and to ensure that their obligation to protect the health, safety, and welfare of the public is met.
A 2011 analysis of the Doctrine of Retained Inherent Sovereignty, along with a review of statutes codified in the United States Code and regulations under Title 25 of the United States Code of Federal Regulations, found that a new regulatory landscape provides opportunities for mineral and energy development on tribal lands. The paper concluded that the result was increased sovereignty over Indian lands and natural resources (Hall et al., 2011).
Hall et al. (2011) asserted that control of access to the development of natural resources on Indian lands has shifted to what is in the best interest of the tribes as mineral owners, lessors, and resource developers. The impetus for the changes in recent sovereignty status is due to the shifting balance between federal control and tribal control outlined in treaties, cessations, land exchanges, and conservation regulations and the oscillating balance between federal control and tribal control. In support of Hall et al. (2011), Slade (2010) found that the environment for development of Indian energy resources is more favorable than in the past.
Principle 2: federal supremacy in Indian affairs. The doctrine of plenary power states that the federal government has complete authority over Indian tribes, including internal Indian affairs. United States v. Laura (2004) established that [the]
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Court has traditionally identified the Indian Commerce Clause...and the Treaty Clause.. .as sources of that [plenary] power.
Based upon the United States Constitution, Congress has the principal authority to carry out obligations and to execute the powers derived from the treaties, meaning Congress has unlimited or absolute powers over Indian affairs to abrogate or protect Native rights. Only Congress can divest an Indian Reservation of its land and diminish its boundaries; once a block of land is set aside for an Indian Reservation and regardless of what occurs with the title of the individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise (Solemn v. Bartlett, 1984). The concept of tribal sovereignty powers is subject to limitations imposed by the federal government.54 Congress has the unlimited right to pass legislation governing Indian tribes and their members, even where the legislation conflicts with Indian treaties (LaLonde, 2014).
According to Cohen (2012), Congress may protect or abrogate rights established by treaty or other agreement without an explicit grant of authority because the Constitution does not provide a basis for federal Indian legislation. The legal basis for such authority is based on pre-constitutional powers, which are inherent to a federal government (Cohen, 2012, p.390; Long, 2008, p.8). Courts have interpreted the Constitution as a plenary grant of power of authority to enact legislation that restricts and in turn relaxes those restrictions on sovereign authority
54 See Lone Wolf v. Hitchcock (1903), where the United States Supreme Court ruled that as a result of plenary power, Congressional actions can abrogate or protect treaty obligations.
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(Long, 2008). The Supreme Court has held that Congress has plenary power to regulate Indian affairs, and therefore the courts may not order Congress to undertake any particular action on behalf of a tribe or Indians (Long, 2008, p.34; Cohen, 2012).55
Energy development and Principle 2: federal supremacy. Federal supremacy gives the United States, specifically Congress, full authority over Indian affairs. Although uncommon, Congress can divest a tribes land and its resources and take away any right not already granted; therefore, tribal organizations are vulnerable.
Principle 3: limited state power in Indian country. Because the Constitution vested the Legislative Branch with plenary power over Indian affairs, states have no authority over tribal governments unless expressly authorized by Congress. While federally recognized tribes generally are not subordinate to states, they can have a government-to-government relationship with these other sovereigns, as well (United Sates Department of the Interior Indian Affairs, n.d. Retrieved at www.bia.gov). Federally recognized tribes can regulate their lands outside of state control.
When developing minerals in Indian country, developers may tend to avoid Indian lands due to the jurisdictional issues and added economic burden (Regan, 2011). Slade (n.d., p.14) described mineral development on Indian lands as a dizzying array of regulation, constraints, and taxing and permitting, noting that the economics of which are a burden on development. Due to the way Indian lands are
55 See: The Cherokee Tobacco Case (1870) and Lone Wolf v Hitchcock (1903).
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regulated by the Federal government, some of the incentives that naturally arise in the private market do not exist in Indian country, particularly without incentives, such as state renewal portfolio standards and tax and financial incentives (de la Torre, et al., 2011).
In addition, in most cases, tribal, state, and local authorities have the authority to tax non-Indian development in Indian country. States can levy taxes on non-Indian entities that develop energy within Indian country; however, the state does not have authority over Indian entities. When developing minerals, all three jurisdictions may impose mineral tax severance as well as taxes on property interest and mineral receipts. This taxation is referred to dual taxation, and such taxation on mineral development can lead to a heavy burden on mineral developers; however, states and tribes may create an agreement of tax base sharing through a memorandum of agreement.
For example, Fort Berthold Reservation and North Dakota entered into a tax agreement that allows the Tribe and the state to share tax revenues in exchange for the tribe allowing the state to apply its tax policy to oil development on the reservation. Prior to the agreement, there was a duel-taxing regime. As of January of 2016, the states oil production and extraction taxes were 10 percent for oil prices under $90/barrel (b) and 11 percent for oil prices over $90/b. The state and tribe each get 50 percent of the revenues collected from the tax (Oil and Gas Tax Agreement Between the Three Affiliated Tribes and the State of North Dakota, 2013. Retrieved at
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https://www.nd.gov/tax/data/upfiles/media/oilqastaxaqreement.pdf72016110711525;
Port, 2015. Retrieved at https://www.savanvthinqbloq.com/entrv/oil-tax-aqreement/).
Case law covering taxing issues shows that courts usually favor tribal taxing authority over non-Indians and sometimes support state taxing authority (Lynne, n.d.).56 Courts have held that tribal taxation authority over non-Indians arises from a consensual relationship subjecting non-Indians to tribal power (Lynne, n.d., p.14). For example, in Montana v. United States (1981), the United States Supreme Court held that the state had jurisdiction over non-Indians and Indians on fee lands, and the tribe had jurisdiction over non-Indians and Indians on tribal lands; however, under the Montana rule, through zoning or other means, the tribe may regulate the activities of nonmembers who have a contractual relationship with the tribe or its members through commercial contracts, leases, or other agreements. Except when designated by the Secretary of the Interior, federal laws prohibit the application of zoning and regulatory ordinances or codes of states and municipalities from applying to restricted Indian property (Boydan, 1976). In addition, under the Montana rule, the tribe may hold jurisdiction over fee lands within the borders of the reservation if the conduct of non-Indians or Indians affects the political integrity, economic security, or the health and welfare of the tribe (Miller, n.d.).
In Big Horn County Electrical Cooperative v. Adams (1999), the Court determined that any land holding an easement is equivalent to non-Indian fee lands,
56 See: Washington v. Confederated Tribes (1980), where the court established the tribe could tax non-Indian cigarette purchases made by non-Indians on the Reservation.
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making the land exempt from taxation. In Big Horn, the tribe implemented a 3 percent valorum tax upon Big Horn for electricity produced almost exclusively for the Crow Reservation. Per agreement, Big Horn was restricted from passing the tax onto the Crow customers; however, because the electrical transmission line was located on an easement encumbered by Big Horn, the court determined that the land is equivalent to non-Indian fee lands, making the land exempt from tribal taxation.
In addition to state taxation, limits of tribal sovereignty can be found in federal environmental regulations. Some regulations are clear, while others are ambiguous. For example, in the absence of tribal environmental standards and enforcement, the EPA retains jurisdiction over environmental issues such as water, air, oil spills, and Superfund sites (Slade, n.d.). For instance, the National Environmental Protection Act (NEPA), Clean Water Act (CWA), Spill Prevention Control and Countermeasures Act (SPCA), American Indian Regions Freedom Act (AIRFA) as well as other acts have been established to protect the environment and cultural resources, traditional sites, water and air, and to protect against spills (See 42 U.S.C. § 4321; 33 U.S.C. § 1376-1521; 41 C.F.R. §112; 42 § U.S.C. 1996, respectively).
Energy development and Principle 3: limited state power in Indian country. Regarding surface mining on Indian lands, the Office of Surface Mining (OSM) has jurisdiction. The office has authority over surface mining and reclamation procedures. Conversely, for oil and gas development, there are conflicting opinions regarding federal and state regulatory jurisdiction over non-Indian development on
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tribal and allotted lands and non-Indian development on fee lands within the exterior border of the reservation. In his survey of Constitutional law, Douglas (1979) found that while the Organic Act vests the BLM with the jurisdiction to regulate public lands, they have non-Congressional authority over development on Indian lands, either explicitly or implicitly. He also found that due to precedent, the conflict is overlooked (Board of Regents of the University of Oklahoma).
For example, under 18 U.S.C. § 1151 (b), the BLM has the authority to extend power of spacing and pooling to state oil and gas conservation commissions (Slade, n.d.). States also have jurisdictional powers over Indian country. State regulatory agencies may, under some circumstances, issue drilling permits to operators developing minerals in Indian country and within state jurisdiction; however, this is not common. Examples of state jurisdiction are found under Public Law 280, codified in 18 U.S.C. §§§1162, 1360, and 1321-1326. Under this federal law, states may assume jurisdiction over reservations.
Public Law 280 significantly changed the legal authority of tribal governments. Under this law, mandatory states assume extensive criminal and civil jurisdiction over tribal lands within the affected states (Tribal Court Clearinghouse, n.d.
Retrieved at http://www.tribal-institute.org/). This law allows state jurisdiction over trust lands, including some regulatory authority over oil and gas development; however, the Supreme Court decided that Public Law 280 did not encompass state regulatory jurisdiction over air and water pollution on Indian lands (. See: Bryan v. Itasca, 1976).
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Conversely, in Curry v. Corporate Comn of Oklahoma (1979), the court determined that the state oil and gas conservation commission had jurisdiction over tribal lands, giving them the authority to make the operator of an oil and gas well, which was spewing oil onto adjacent lands, to shut in the well (Board of Regents of the University of Oklahoma, n.p.,1979). A tribal government may assume the functions of the EPA, if they so choose. The tribe would apply regulatory authority over issues relating to the environment, air, and water, which the EPA would ordinarily administer (Freedman et al., 2014).
Public Law 280 authorizes some states to exercise criminal and civil jurisdiction over tribal land and its resources. In addition to state jurisdiction over tribal lands, the courts have found that Public Law 280 gives local authorities jurisdiction over fee lands within the exterior borders of the reservation. For example, as discussed, the Montana rule gives Public Law 280 states criminal and civil jurisdiction over Indian reservations to the state in which they are located. Mandatory states include Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin, and optional states include Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In optional states, the state chooses to assume some jurisdiction but only over tribes who consent (Goldberg, n.d.).
Some courts have given regulatory authority over fee lands to the local jurisdiction;57 however, in Montana, the Court established two exceptions to the
57 See: James D. Knight, et. al. v. The Shoshone and Arapahoe Indian Tribes of the Wind River Reservation, Wyoming (1981) and Brendale v. Confederated Tribes and Bands of Yakima Indian Nation (1989).
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Full Text
of the United States or the Constitution of the United States and to all express restrictions upon such powers contained in the Constitution and Bylaws (United States Department of the Interior Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html).
Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation. Article III, Section 4. The Constitution grants the powers to change the Reservations boundaries, subject to popular vote (United States Department of the Interior Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html).
Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation. Article VI, Section 3. With the approval of the Secretary of the Interior, the Tribal Council shall have the power to: (a) present and prosecute claims against the Three Affiliated Tribes and to assist members of the tribes against any claims or grievances before any court or agency of government, (b) to promulgate legislation governing law enforcement on the Reservation, set up tribal courts for the trial and punishment of offenders against such legislation, where cases are not within the complete jurisdiction of the United States, (c) promulgate ordinances related to domestic relations, and (d) remove or exclude any nonmembers of the tribe, except authorized government officials and other persons currently occupying lands within the reserve lawfully, govern the conditions under which nonmembers
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may come upon the land and conduct dealings with members within the Reservation and to levy fees and taxes upon (United States Department of the Interior Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html).
Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation. Article VI, Section 5(j). The Tribal Business Council shall have the power to protect and preserve the property, wildlife, and natural resources of the tribes; to regulate hunting and fishing on tribal lands; and to cultivate and preserve native arts, crafts, cultural ceremonials, and traditions (United States Department of the Interior Constitution and Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html).
Section 5: Tribal Energy Division and Guidance Fort Berthold Tribal Energy Division. The MHA Energy Divisions mission is to manage all natural resources through professional mentorship, responsible development, communication, and education; while committing to environmental awareness and cultural values that ensure sovereignty for generations to come, and its vision is that the Division will promote accountability and responsibility to the members of the MHA Nation and environment through transparency and professional development while adhering to traditional values in order to protect and safeguard natural resources (MHA Energy, n.d. Retrieved at
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DISS_pcode 80211
DISS_country US
DISS_email amyjameswilson@gmail.com
future
12/02/2016
1
505
419-3459
1521 Central Street
Unit 3D
Denver
CO
80211
US
amyjameswilson@gmail.com
DISS_citizenship US
DISS_description page_count 193 masters external_id http:dissertations.umi.comucdenver:10797 apply_for_copyright yes
DISS_title Tribal Organizations and Energy Development: Recognized Sovereignty, Regulations, and Planning
DISS_dates
DISS_comp_date 2016
DISS_accept_date 01/01/2016
DISS_degree M.U.R.P.
DISS_institution
DISS_inst_code 0765
DISS_inst_name University of Colorado Denver
DISS_inst_contact Design and Planning
DISS_processing_code N
DISS_advisor
Steffel-Johnson
Jennifer
DISS_cmte_member
Martinez
Donna
McNeish
Gilbert
DISS_categorization
DISS_category
DISS_cat_code 0341
DISS_cat_desc Area planning & development
0740
Native American studies
0791
Energy
DISS_keyword Energy Development, Energy Law, Indian Country, Land Use Planning, Sovereignty
DISS_language en
DISS_content
DISS_abstract
DISS_para Tribal governments’ capacity to implement land use controls within their
Nations is limited by the United States Constitution and federal law; however, tribal governments have inherent sovereignty to protect, guide, and govern the lands under their jurisdiction to protect and enhance the safety, health, and welfare of their members.
The aim of this thesis was to investigate and identify (1) the extent to which
tribal Nations have sovereignty over their lands and authority to regulate land use within their jurisdiction and (2) the present status and extent to which Native American tribal governments use their sovereignty over land use development concerning oil and natural gas development within their jurisdiction.
The study was qualitative in nature and focused on a comprehensive archival
review and a one-case case study. Constitutional law, federal Indian law,
environmental law, and tribal law were considered. The thesis first examines the results of the archival review, which demonstrates that tribes, while limited by federal law, have sovereignty and authority to control land use within their territories.
The Three Affiliated Tribes of the Fort Berthold Reservation were also
examined. The Tribes were chosen based on location, level of oil and natural gas production, and accessibility of information. The most current information available was used for the study. The data for the study was obtained from the Internet.
The research suggests that tribes are implementing land use controls and participating in land use and comprehensive planning; however, they are not doing so to the extent of their sovereignty. This study demonstrates that tribal governments do indeed have authority over their lands and resources and cannot fully take advantage of their sovereignty without practicing self-governance over their natural, built, and human environments.
Questions remain regarding the reasons that tribal governments are not
implementing land use controls and engaging in land use planning to the extent of their sovereignty. Further research is needed to understand the reasons that tribal organizations are not taking full advantage of the existing sovereignty of their lands and resources.
DISS_binary PDF Wilson_ucdenver_0765N_10797.pdf
DISS_restriction
DISS_repository
DISS_version 2011-11-08 15:37:33
DISS_agreement_decision_date 2016-12-02 14:30:42
DISS_acceptance 1
DISS_delayed_release
DISS_access_option



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TRIBAL ORGANIZATIONS AND ENERGY DEVELOPMENT: RECOGNIZED SOVEREIGNTY, REGULATIONS, AND PLANNING by AMY JAMES WILSON A.A. San Juan Community College, 2009 B.A., Colorado State University Fort Collins, 2012 M.L.S., University of Denver, 2014 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Urban and Regional Planning Urban and Regional Planning Program 2016

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ii 2016 AMY WILSON ALL RIGHTS RESERVED

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iii This thesis for the Master of Urban and Regional Planning degree by Amy James Wilson h as been approved for the Urban and Regional Planning Program by Jennifer Steffel-Johnson Donna Martinez Gilbert (Gil) McNeish December 17, 2016

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iv Wilson, Amy James M.U.R.P., Master of Urban and Regional Planning Program Tribal Organizations and Energy Development: Recognized Sovereignty, Regulations, and Planning Thesis directed by Associate C Jennifer Steffel-Johnson ABSTRACT Tribal governments capacity to implement land use controls within their Nations is limited by the United States Constitution and federal law ; however, tribal governments have inherent sovereignty to protect, guide, and govern the lands under their jurisdiction to protect and enhance the safety, health, and welfare of their members. The aim of this thesis was to investigate and identify (1) the extent to which tribal Nations have sovereignty over their lands and authority to regulate land use within their jurisdiction and (2) the present status and extent to which Native American tribal governments use their sovereignty over land use development concerning oil and natural gas development within their jurisdiction. The study was qualitative in nature and focused on a comprehensive archival review and a one-case case study. Constitutional law, federal Indian law, environmental law, and tribal law were considered. The thesis first examines the results of the archival review, which demonstrates that tribes, while limited by federal law, have sovereignty and authority to control land use within their territories. The Three Affiliated Tribes of the Fort Berthold Reservation were also examined. The Tribes were chosen based on location, level of oil and natural gas

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v production, and accessibility of information. T he most current information available was use d for the study The data for the study was obtained f ro m the Internet The research suggests that tribes are implementing land use controls and p articipating in land use and comprehensive planning ; however, they are not doing so to the extent of their sovereignty. This study demonstrates that tribal governments do indeed have authority over their lands and resources and cannot fully take advantage of their sovereignty with out practicing self governance over their natural, built, and human environments. Q uestions remain regarding the reasons that tribal governments are not implementing land use controls and engaging in land use planning to the extent of their sovereignty. Further research is ne eded to understand the reasons that tribal organizations are not taking full advantage of the existing sovereignty of their lands and resources. The form and content of this abstract are approved. I recommend its publication. Approved: Jennifer Steffel Johnson

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vi ACKNOWLEDGMENTS I would like to thank my thesis chair Professor Jennifer Steffel Johnson, PhD, as well as my committee, Adjunct Professor Gilbert (Gil) McNeish, J.D., and Professor Donna Martinez, PhD. I have truly been fortunate with my committee. I was provided with guid ed expertise in all areas the research requires : planning, land use law, and Indian affairs. Dr. Johnson you have remained with me through out the process and have remained suppo rtive even when I was unsure of my abilities. I thank you for your commitment, time and support. This has been a long process and you could have withdrawn many times. I thank you for remaining with me. I feel I have gained a lifelong advocate, and more importantly a friend. Gil, I thank you for supporting me as a student and helping me grow into a professional. More than anything, I am sincerely grateful for your friendship and wisdom. Dr. Martinez, I will always be thankful for your support at the last minute. Your enthusiasm, commitment, expertise and feedback are very appreciated. You are an unexpected and wonderful addition to my committee. I thank my fami ly, my mom and Danny for their support. I most certainly would not have made it to this point without your love and guidance. I also thank my father, Iva n. Thank you for your encouragement, enthusiasm, and love. I will always love you and miss you. Lastly, I wou ld like to thank all the wonderful professors and advocates I have had throughout the last nine years, most especially Dr. Donna Hobbs, former

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vii Professor of Biology. You have truly helped me to become the person, student, and professional that I am. I would also like to thank those at work who have supported, challenged, and taught me. I would not have been able to complete this thesis wi thout the knowledge that I have gained during my time with the Division of Energy and Mineral Development within the Office of Indian Economic and Energy Development U.S. Department of the Interior Assistant Secretary Indian Affairs

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viii TABLE OF CONTENTS List of Tables ................................ ................................ ................................ ........ xii List of Figures ................................ ................................ ................................ ...... xiii Table of Abbreviations ................................ ................................ ......................... xiv List of Case Law ................................ ................................ ................................ .. xv i List of Regulations and Statutes ................................ ................................ ......... xvii Three Affiliated Tribes Tribal Law ................................ ................................ ........ xx i CHAPTER INTRODUCTION ................................ ................................ ............................... 1 Problem Statement ................................ ................................ ..................... 5 Purpose of the Study ................................ ................................ ................ 15 Significance of the Study ................................ ................................ .......... 15 Research Questions ................................ ................................ ................ 15 Limitations, Delimitations, and Assumptions ................................ ............ 16 Summary ................................ ................................ ................................ .. 17 Organization of the Study ................................ ................................ ......... 18 CHAPTER GLOSSARY ................................ ................................ ................................ ..... 19 CHAPTER BACKGROUND ................................ ................................ .............................. 32 CHAPTER METHODOLOGY ................................ ................................ ............................ 4 4 Design of the Study ................................ ................................ ................. 45

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ix Sampling ................................ ................................ ................................ ... 45 Research Questions ................................ ................................ ................. 46 Instrumentation, Data Collection, and Data Measurement ...................... 47 CHAPTER ARCHIVAL REVIEW ................................ ................................ ....................... 49 Introduction ................................ ................................ .............................. 49 Archival Audit ................................ ................................ ............................ 49 The Doctrines of Discovery and Conquest ................................ ........ 51 Foundational Legal Principles in American Indian Law ..................... 53 Principle 1: Indian tribes as sovereign government s .......... 56 Principle 2: Federal supremacy in Indian affairs ................. 70 Principle 3: Limited state power in Indian country ............... 72 Principle 5: Federal trust doctrine ................................ ....... 78 CHAPTER LEGAL AUDIT AND CASE STUDY ................................ ................................ 8 1 Introduction ................................ ................................ .............................. 8 1 Research Questions ................................ ................................ ................. 8 2 Sample ................................ ................................ ................................ ..... 83 Section 1: Legal basis for federal Indian law ................................ ..... 87 United States Constitution ................................ .................. 88 Section 2: Federal Indian Law ................................ ........................... 88 Treaties ................................ ................................ ............... 89 Federal statutes ................................ ................................ .. 89

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x Supplemental statutes ................................ ........................ 90 Federal Indian legislation ................................ .................... 92 Important definitions set forth by Federal Indian energy legislation ................................ ................................ ............ 94 Section 3: Tribal Law ................................ ................................ ......... 98 Tribal Constitution ................................ ............................... 98 Tribal Bylaws ................................ ................................ ....... 99 Tribal legislation ................................ ................................ .. 99 Tribal Policy of General Application ................................ .. 105 Section 4: Tribal Governance ................................ .......................... 111 Powers of the governing body ................................ .......... 111 Committees formed pursuant the Tribal Constitution and Bylaws ................................ ................................ ............... 112 Tribal agencies ................................ ................................ .. 112 Powers of the governing body ................................ .......... 113 Section 5: Tribal Energy Division and Guidance Documents ..... 115 Three Affiliated Tribes Energy Division ............................. 116 MHA oil & natural gas development documents ............... 116 North Dakota Century Code ................................ .............. 117 Comprehensive planning documents ................................ 118 Section 6: Supplemental Analysis ................................ .............. 119 Additional Tribal organizations ................................ ......... 119 Typical state oil and gas regulations ................................ 121

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xi Additional oil and gas regulatory analysis ......................... 143 Best management practices analysi s ............................... 145 CHAPTER SUMMARY, DISCUSSION, AND CONCLUSION ................................ ......... 153 Summary ................................ ................................ ............................... 153 Discussion ................................ ................................ .............................. 15 5 Conclusion ................................ ................................ .............................. 161 References ................................ ................................ ................................ ........ 162

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xii LIST OF TABLES Table 1: Research Questions ................................ ................................ ................... 46 T able 2: Research Questions ................................ ................................ ................... 82 T able 3: Fort Berthold Reservation Land Allocation ................................ ................. 82 T able 4: Three Affiliated Tribes Treaties and Agreements ................................ ....... 89 T able 5: Federal Statutes Applicable to Indian Country ................................ .......... 90 T able 6: Supplemental Statutes Requiring Compliance ................................ ........... 9 2 T able 7: Federal Indian Legislation ................................ ................................ ......... 92 T able 8: Federal Indian Legislation of General Application ................................ ...... 94 T able 9: Three Affiliated Tribes Tribal Law and Order Code, Chapter 15 Environmental Code ................................ ................................ ............................... 1 00 T a ble 10: Fort Berthold Reservation, Tribal Energy L aws of General Application ................................ ................................ ................... 1 06 Table 11 : State Surface Oil and Gas Regulatory Analysis ................................ .... 121 T able 12 : Additional Oil and Gas Regulatory Analysis ................................ .......... 142 T able 13 : Federal Indian Legislation of General Application ................................ .. 14 3

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xiii LIST OF FIGURES Figure 1: Surface and Mineral Ownership Illustration ................................ .............. 24 Figure 2 : Public Lands, On Shore Federal and Indian Mineral Lands of the U.S. ... 35 F igure 3 : Oil and Natural Gas Basins Located on Indian Lands ............................. 36 F igure 4 : Fort Berthold Reservation Location Map ................................ ................... 81 F igure 5 : Fort Berthold Reservation Active Oil and Gas Wells Location Map .......... 8 5

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xiv TABLE OF ABBREVIATIONS American Indian or Alaskan Native AI/AN Assistant Secretary Indian Affairs AS IA Barrel B Billion Cubic Feet BCF Brent Crude ICE Bureau of Land Management BLM Bureau of Indian Affairs BIA Clean Air Act CAA Code of Federal Regulations C.F.R. Council of Energy Resource Tribes CERT Department of the Interior DOI Division of Energy and Mineral Development DEMD Environmental Director ED Environmental Protection Agency EPA Fiscal Year FY Fort Berthold Reservation FBR Indian Energy and Economic Development IEED Indian Mineral Development Act IMDA Indian Mineral Leasing Act IMLA Indian Tribal Organization ITO

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xv International Energy Agency IEA Integrated Solid Waste Management Plan ISWMP Mandan, Hidatsa, and Arikara MHA National Environmental Protection Act NEPA Natural Resources Committee NRC Office of Natural Resources Revenue ONRR Right -of-way ROW The Three Affiliated Tribes TAT Tribal Authority Rule TAR Tribal Energy Development Capacity Grant TEDC Tribal Energy Resource Agreements TERA Tribal Environmental Protection Agency TEPA Tribal Solid Waste Management Utility SWMU United Nations Declaration on the Rights of Indigenous Peoples INDRIP United States U.S. United States Code U.S.C. United States Dollars USD United States Energy Information Administration EIA United States Forest Service USFS United States Government Accountability Office GAO

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xvi LIST OF CASE LAW Big Horn Country Electric Cooperative v. Adams, 53 F. Supp. 3d 1047 (1999) 74 75 B rendale v. Confederated Tribes, 493 U.S. 408 (1989) ................................ ..... 66, 77 B ryan v. Itasca (1976) ................................ ................................ .............................. 76 C herokee Nation v. State of Georgia 30 U.S. (1831) .......... 26, 50, 55, 58 59, 68, 78 C herokee Tobacco, 78 U.S. 11 (1870) ................................ ................................ ..... 72 C urry v. Corporate Comm of Oklahoma (1979) ................................ ....................... 77 J ames D. Knight et al. v. The Shoshone and Arapahoe Indian Tribes of t he Wind R iver Reservation, Wyoming (1981) ................................ ................................ ........ 77 Joh nson v. McIntosh, 21 U.S. 543 9(1 823) ................................ .............................. 51 L one Wolf v. Hitchcock, 187 U.S. 533 (1903) ................................ .......... 6, 62, 71, 72 M enominee Tribe v. United States, 391 U.S. 404 (1968) ................................ ......... 61 M errion v. Jicarilla Apache Tribe 455 U.S. 130 (1982) ................................ ........ 6, 50 M ontana v. United States, 450 U.S. 544 (1981) ........................... 2, 50, 67, 68, 74, 77 N ew Mexico v. Mescalero Apache Tribe 462 U.S. 324 (1983) ............................ 6, 50 P enobscot Nation v. Stilphen, 461 A.2d 478 (1983) ................................ ................ 54 P inoleville Indian Community v. Mendocino County, 684 F .Supp 1042 (1988) ....... 68 S eminole Nation v. United States, 316 U.S. 286 (1942) .............................. 26, 55, 78 S eymour v. Superintendent, 368 U.S. 351 (1962) ................................ ................... 67

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xvii S hoshone and Arapahoe Indian Tribes of the Wind River Reservation v. Wyoming (1981) ................................ ................................ ................................ ....................... 77 Solem v. Bartlett, 465 U.S. 463 (1984) ................................ ................................ ..... 71 U nited States v. Kagma 118 U.S. 375 (1886) ................................ ........................... 2 U nited States v. Laura, 541 U.S. 193 (2004) ................................ ........................... 70 U nited States v. Mazurie, 419 U.S. 544 (1975) ................................ ........................ 66 U nited States v. Navajo Nation, 537 U.S. 488 (2003) ................................ ........ 79, 78 U nited States v. State of Washington, 4 25 U.S. 341 (1976) ................................ .... 64 U nited States v. Wheeler, 254 U.S. 281 (1920) ................................ ....................... 65 W ashington v. Confederated Tribes, 477 U.S. 134 (1980) ................................ ...... 74 W hite Mountain Apache Tribe v. Brackar 448 U.S. 136 (1980) .............................. 50 W illiams v. Lee 358 U.S. 217 (1959) ................................ ................................ ......... 2 W inters v. United States, 207 U.S. 564 (1908) ................................ .................. 61, 62 W orchest er v. Georgia, 31 U.S. 515 (1832 ) ................................ ..... 49, 52 58, 60, 66

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xviii LIST OF UNITED STATES STATUTES AND REGULATIONS 16 U.S.C. 469a 1 ................................ ................................ ................................ ... 90 1 6 U.S.C. 470 ................................ ................................ ................................ ........ 90 1 6 U.S.C. 712 ................................ ................................ ................................ .. 90 1 6 U.S.C. 1431 ................................ ................................ ................................ ...... 90 1 6 U.S.C. ................................ ................................ ................................ ....... 90 1 8 U.S.C. 1151 ................................ ................................ ............................ 6, 22, 76 1 8 U.S.C. 1162 ................................ ................................ ................................ ...... 76 1 8 U.S.C. 1360 ................................ ................................ .......................... 76, 94, 96 2 5 U.S.C. 323 ................................ ................................ ................................ .. 94, 97 2 5 U.S.C. 396 ................................ ................................ ............................ 90, 95, 97 2 5 U.S.C. 415 ................................ ................................ ................................ .. 95, 96 2 5 U.S.C. 450 et seq. ................................ ................................ .............................. 2 2 5 U.S.C. 458 et seq. ................................ ................................ .............................. 2 2 5 U.S.C. 210 1 ................................ ................................ ................................ ........ 4 2 5 U.S.C. 2102 ................................ ................................ ................................ ...... 90 2 5 U.S.C. 3001 ................................ ................................ ................................ ...... 91 2 5 U.S.C. 3501 ................................ ................................ ................................ ...... 90 3 0 U.S.C. 21 ................................ ................................ ................................ .......... 90

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xix 3 0 U.S.C. 181 ................................ ................................ ................................ ........ 90 3 0 U.S.C. 351 ................................ ................................ ................................ ........ 90 3 3 U.S.C. 1376 1521 ................................ ................................ ....................... 33, 91 4 1 C.F.R. ................................ ................................ ................................ ......... 91 4 2 U.S.C. 116 ................................ ................................ ................................ ........ 91 4 2 U.S.C. 300 ................................ ................................ ................................ ........ 91 4 2 U.S.C. 1996 ................................ ................................ ................................ 75, 91 4 2 U.C.C. 4321 ................................ ................................ ................................ 75, 91 4 2 U.S.C. 6901 6992 ................................ ................................ ............................. 92 4 2 U.S.C. 7401 767 ................................ ................................ ............................... 92 4 3 U.S.C. 1701 ................................ ................................ ................................ ...... 90 P L 959 ................................ ................................ ................................ ...................... 92 P L 37 64 ................................ ................................ ................................ ................... 92 P L 49 119 ................................ ................................ ................................ ................. 92 P L 73 383 ................................ ................................ ................................ ................. 92 P L 83 280 ................................ ................................ ................................ ................. 92 P L 93 638 ................................ ................................ ................................ ................. 92 P L 102 477 ................................ ................................ ................................ ............... 93 P L 109 58 ................................ ................................ ................................ ................... 4

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xx P L 111 211 ................................ ................................ ................................ ............... 93 P L 114 38 ................................ ................................ ................................ ................. 93 P L 280 ................................ ................................ ................................ .......... 76 77, 78 2 5 C.F.R. 63.3 ................................ ................................ ................................ ... 6, 22 2 5 C.F.R. 162 ................................ ................................ ............................ 22, 24, 25 2 5 C.F.R. 163 ................................ ................................ ................................ .. 57, 58 2 5 C.F.R. 169 ................................ ................................ ................................ .. 57, 58 2 5 C.F.R. 211 ................................ ................................ ................................ .......... 2 2 5 C.F.R. 212 ................................ ................................ ................................ .......... 2 4 0 C.F.R. 1508.18 ................................ ................................ ................................ 41 4 1 C.F.R. 112 ................................ ................................ ................................ ........ 75

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xxi LIST OF THE THREE AFFILIATED TRIBES TRIBAL LAW AND POLICIES Constitution of the Three Affiliated Tribes of the Fort Berthold R eservation ................................ ................................ ...................... 98, 113, 114, 115 B ylaws of the Thee Affiliated Tribes of the Berthold Reservation ........................... 99 C hapter 15 Title 15 ................................ ................................ ........................... 99, 111 C h.15.1 Section 8 ................................ ................................ ................................ ... 109 1 1 075 VJB ................................ ................................ ................................ ........... 106 1 2 087 VJB ................................ ................................ ................................ ........... 106 1 2 103 VJB ................................ ................................ ................................ ........... 107 1 2 139 VJB ................................ ................................ ................................ ........... 107 1 3 049 VJB ................................ ................................ ................................ ........... 108 1 3 070 VJB ................................ ................................ ................................ ........... 1 08 1 3 071 VJB ................................ ................................ ................................ ........... 1 09 1 3 126 VJB ................................ ................................ ................................ ........... 1 09 1 4 054 VJB ................................ ................................ ................................ ........... 1 10 1 4 055 VJB ................................ ................................ ................................ ........... 1 10 1 4 089 VJB ................................ ................................ ................................ ............ 1 10

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1 CHAPTER INTRODUCTION The Council of Energy Resource Tribes (CERT) estimates U.S. Indian energy resources to be worth upwards of $1.5 trillion (Regan, 2014). 1 Under the current energy policy, the U.S. federal government promotes energy development within Indian country (Tribal Nations and the United States, n.d.). The government perceives oil and natural gas development as a legitimate means for tribes to achieve economic s elf -efficiency, defined as and used synonymously with selfgovernance (Cross, 2011; Cornell et al., 2003). 2 As a result, tribal governments can substantially benefit from oil and natural gas development on lands within their jurisdiction. For example, in 2015, the Jicarilla Apache Nation reported that oil and natural gas revenues funded 90 percent of all tribal operations (The United States Government Accountability Office, 2015 Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.gao.gov/assets/680/670701.pdf). 1 Indian energy resources include energy resources that are considered within tribal countries and under the jurisdiction of the tribe. The resources are held in trust by the United States for Indian tribes and their members (The United States Government Accountability Office, 2015. Indian Energy Development Po or Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.gao.gov/assets/680/670701.pdf ). 2 To take for advantage of sovereignty and self determination, tribes must fully engage in self governance. See Trust Resource Mana gement for further discussion ( https://www.innovations.harvard.edu/trust resource management ).

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2 T ribal governments capacity to implement land use controls within Tribal Nations is limited by the United State s Constitution and Federal Indian Law ; 3 however, t ribal governments have inheren t sovereignty to govern, protect, and enhance the health, safety, and welfare of their citizens ( Montana v. United States, 1981) 4 They have authority over environmental regulations concerned with controlling environmental damage resulting from the use of the land within their jurisdiction (Royster, 1991). Congress has legally recognized the rights of tribes to have a greater say over the development and implementation of federal programs and polic i es that directly impact them and their tribal members (U.S. Department of the Interior Assistant Secretary Indian Affairs n.d Retrieved at http://www.bia.gov/ ). 5 Tribal governments are now expected and encouraged to regulate development within their jurisdiction (Rayster, 1991). Tribal governments reta in sovereignty over many aspects of mineral leasing and development of resource s ; thus, t ribes must develop efficient governing systems such as effective energy polic ies and planning practices to guide long term energy development, which includes energy supplies, infrastructure, energy efficiency, and conservation on a broad scale. Institutions that produce stable 3 25 C.F.R. 211 212 govern the approval of oil and natural gas leases and agreements on federal Indian lands. 4 Also see: United States v. Kagma (1886) wher e the court found that even though tribes no longer possessed the full attributes of sovereignty tribes remain a separate people, with the power of regulating their internal and social relations See also Williams v. Lee (1959) w h ere the court determi ned that Indians possess the rightto make their own laws and be ruled by them. 5 See: T he Self Determination and Education Assistance Act of 1975 (25 U.S.C. 450 et seq.) and the Tribal Self Governance Act of 1994 (25 U.S.C. 458 et seq.).

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3 governance and effective and efficient bureaucracy through law s and polic ies that consider long term energy development should be available to tribal adjudicators and decision makers. The National Congress of American Indians, in its article, describes the importance of self governance as a factor of sovereignty The essence of tribal sovereignty is the ability to govern and protect and enhance the health, safety, and welfare of tribal citizens within tribal territory. Tribal governments maintain the power to determine their governance structures and enforce laws through police departments and tribal courts. Tribal governments exercise these inhe rent rights through the development of distinct forms of government. Tribal governments determine citizenship and establish civil and criminal laws for their Nations. Tribal governments may govern tribal and non Indian activities on tribal lands, implement framework to apply taxes, fees, and licenses, and may govern their lands by regulating, maintaining, and exercising their powers to exclude wrongdoers from tribal areas. Tribal governments may implement regulatory and enforcement mechanisms to ensure envi ronmental protection and resource management ( National Congress of American Indians, n.d Tribal Nations and the United States Retrieved at http://energy.gov/sites/prod/files/2015/12/f28/ncai tribal nations report.pdf ). There is an essential relationshi p between planners policymakers and energy development issues 6 Tribal wide energy policy and planning address es energy development and land use in Indian country. Balanced development is essential for addressing public health, safety, and welfare as wel l as econom ic and environmental concerns. Planning in R eservation communities is fundamentally a political process that aims to advanc e sovereignty th r ough self efficiency. Tribal 6 This the sis uses energy development and oil and natural gas development interchangeably.

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4 authority over resources requires that the tribal government is accountable to the tribe and their members. This allows the tribe to pursue their priorities. When a tribe has a clear vision of their future and the accomplishments they plan to achieve, they utilize self determination (Government Innovators Network, n.d. Retrieved at https://www.innovations.harvard.edu/trust resource management ). 7 For example, American Indian tribes may exercise authority over their resources based on the 1981 Indian Mineral Development Act (IMDA), which allows tribes to engage in the lease negotia tion process by negotiating the terms of the lease. 8 In a dditio n The Energy Policy Act of 2005 gives tribes the opportunity to pursue Tribal Energy Resource Agreements (TERA) which allow tribe s to enter into agreements without Secretarial approval. 9 T r ibes must promote community development to achieve self determination goals. Planning helps tribes overcome obstacles to development and therefore help s achieve self determination (Zaferatos, 2004). The United States Department of the Interior (DOI) promot es and encourages self determination where rights were not previously relinquished. Tribes possess all powers of self government except for those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that the federal courts have rules that are subject to existing federal law or are inconsistent with overriding national polices. Tribespossess the right to form their own 7 Self determination refers to the act of engaging in self governance and decision making on issues that affect people and lands. Self determination is a legal concept th at encourages tri b es to control their own affairs. 8 Per federal statute, tribes may still defer to the Bureau of Indian Affairs (BIA) for assistance or facilitation of lease negotiations. 9 To date, no tribe has entered into a TERA agreement.

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5 governments; to make and enforce laws; both civil and criminal; to tax; to establis h and determine membership; to license and regulate activities within their jurisdiction; to zone; and exclude persons f rom tribal lands (U.S. Department of the Interior Assistant Secretary Indian Affairs, n.d. Retrieved at http://www.bia.gov/) Zaferatos (2004) note that important progress is occurring on many Indian reservations through effective planning to improve social and economic conditions necessary to sustain native communities. Developing energy resources in a thoughtful and regulated capacity will create jobs, generate revenues, and strengthen tribal, state, and national economies. 10 Tribes that assume control of their resources have accountability, providing them with more control over their lands rather than the federal government. T his allows tribes to achieve greater self governance and sovereignty over their lands, natural resources, and members. 11 This will also undou btedly improve th e quality of life on r eservations and better protect the lands and its resources ( Government Innova tors Network, n.d Retrieved at https://www.innovations.harvard.edu/trust resource management ). Regulation of oil and natural gas development is essential to planning, as the development of oil and natural gas affects the local and regional landscape the communities, and the natural environment. Land use controls represent prior 10 Capacity is defined as regulative, administrative, and technical expertise and capabilities needed to effectively manage and maintain the development of energy resources (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy D evelopment on Indian Lands, (p. 5). Retrieved at http://www.gao.gov/assets/680/670701.pdf ). 11 Lands and natural resources include surface and subsurface resources, including minerals.

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6 restraint on pollution problems and separate control, and they also prevent environmental damage and incompatible uses of neighboring lands (Roystar, 1991). This thesis investigates the relationship between tribal sovereignty and the management of oil and natural gas development within Indian country. 12 Tribal sovereignty is a legal concept that provides broad and general powers to a tribal government; 13 however, such power s are subject to the limitations imposed by the federal government (Lone Wolf v. Hitchcock, 1903). The goal of the study was to understand the extent to which American Indian tribes employ sovereignty over their lands and natural resources by using retaine d aboriginal rights through federal statutes, rules, regulations and precedent s for their benefit. The study focused on the discovery of new facts to further develop existing knowledge of land use and energy development in Indian country. 14 12 Indian country refers to (1) all land within the limits of any Indian reservation, under the jurisdiction of the United Sates Government, notwithstanding the issuance of any patent, and including rights of way running through the reservation, (2) all dependent Indian communities within th e borders of the United States whether within the original or subsequently acquired territory thereof, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same. Unless otherwise indicated, the term Indian country is used instead of Indian reservation for consistency (18 U.S. Code and 25 C.F.R. .3). 13 See: New Mexico v. Mescalero Apache Tribe (1983), Merrion v. Jicarilla Apache Tribe (1982), and White Mountain Apache Tribe v. Brackar (1980). 14 Note that oil and natural gas development and energy development are used interchangeably throughout the thesis. In a ddition, natural resources may generally or specifically refer to oil and natural gas development, energy devel opment, or natural resources found in the natural environment, including surface resources, such as surface hard rock minerals, soil and vegetation, subsurface minerals, and water.

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7 Tribal policym aking and planning must address impacts to the natural and social environment s that result from oil and natural gas development. Zafertos (2004) assert ed that tribal organizations that encounter external conflicts should base their response s on guided and informed decision making. The planning approach should consider both historical circumstances that gave rise to the conflict as well as their capacity to exercise effective political action to overcome the conflict (Zafertos, 2004). Tribal governm ents are empowered by thei r people to act on their behalf; to enhance tribal culture; to maintain law and order; to protect public health, safety, and welfare ; and to preserve the tribes resources. The health, safety, and welfare of the tribes people are contingent on the careful consideration of the spati al and temporal arrangement of its l ands and its resources and their relationship s to the human environment. Tribes traditional beliefs place priority on the respectful care of the natural world. Acknow ledging that water, forest and land resources are the cornerstones of tribal revenues (Government Innovators Network, n.d Retrieved at https://www.innovations.harvard.edu/trust resource management ). Energy development is a crucial component of historical and modern land use practices. Oil and natural gas development affect land use, specifically the earth s biosphere both above and below the surface, including climate, soil, and terrain forms, as well as human settlement patterns, such as dev elo ped regions and local areas. For example, oil and natural gas development exploit subsurface minerals; drilling machinery and other equipment disturb the surface and the use of other heavy equipment cause s emissions that put water and other resources at r isk of

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! 8 being contaminated Furthermore, the identification and development of mineral resources often attract urbanization forces. Oil and natural gas development affect large geographic areas, often crossing jurisdictional boundaries. For example, the Ba kken Formation 15 a source of oil and natural gas, occupies roughly 200,000 square miles of the subsurface of the Williston Basin 16 crossing the boundary of the Uni ted States and Canada, two provi nces, two states, and multiple counties and local jurisdictio ns as well as United States federal lands administered by the Bureau of Land Management (BLM), United States Forest Service (USFS), and the Bureau of Indian Affairs (BIA). In recent years oil and natural gas markets have become one of America's leading in dustries, creating a strong U.S. economy and contributing to domestic energy independence. According to the 2014 Energy Polices of the International Energy Agency (IEA) Countries Review (2014), unconventional oil and natural gas production 17 is considered a "game changing development in North American markets and is a substantial contribution to economic activity and employment." !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!! 15 "Formation" refers to a geologic formation consisting of certain rock s trata. Shale is a fine grained sedimentary rock that forms from clay sized mineral particles. Some shale is a source rock for many important oil and natural gas deposits. Extraction processes called "hydraulic fracturing" and "horizontal drilling" can acce ss the oil and natural gas. 16 A basin is a "depression in the crust of the Earth, caused by plate tectonic activity and subsidence, in which sediments accumulate. If rich hydrocarbon source rocks occur in combination with appropriate depth and duration o f burial, then a petroleum system can develop within the basin. Most basins contain some amount of shale, thus providing opportunities for shale gas exploration and production" (Schlumberger Oilfield Glossary, n.d. Retrieved at http://www.glossary.oilfield.slb.com/ ). 17 Unconventional oil and natural gas production refers to hydraulic fracturing ("frac king") and horizontal drilling, whereas conventional drilling involves vertical wells and does not require "fracking."

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9 Energy development is viewed as a n issue of national importance, primarily because such development provides socie ty with econ omic and environmental security. The modern energy economy must be recognized by Indian tribes as a significant event to plan for, and ask such questions of how it may impact their lands and environment, how they would participate, want are t he risks and downsides, and what it means for their own economies ( United States Department of the Interior Bureau of Indian Affairs n.d Retrieved at http://www.bia.gov/cs/groups/xieed/documents/document/idc1 024535.pdf ). The Obama Administration suppor ts self governance and sovereignty and has demonstrated commitment to energy development in Indian country through Indian energy development programs and grants, federal agency support, and legislation. 18 For example, the Office of the Assistant Secretary Indian Affairs (AS IA) under the DOI developed programs specifically addressing energy development in Indian Country. The Division of Energy and Mineral Development (DEMD), within the Office of Indian Energy and Economic Development (IEED), assists tribes with the exploration development and management of their mineral resources to create sustainable economies and to generate new jobs and self sufficiency. In addition to technica l assistance, IEED offers energy grant opportunities awarded through DEMD to federally recognized tribes to fund projects relat ed to energy 18 See www.w hitehouse.gov for further discussion.

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10 development. 19 DEMD provides technical support by monitoring the projects (U.S. Department of the Interior Assistant Secretary Indian Affairs n.d Retrieved at http://www.bia.gov/ ) Pursuant to the Indian Mineral Development Act (IMDA) of 1982, tribes can lease their resources utilizing agreements that best fit their needs. In collaboration with the BIA, DEMD helped tri bes negotiate forty eight IMDA leases in 2012 covering approximately 2,750,000 acres and abo ut $45 million in bonuses alone (United States Department of the Interior Bureau of I ndian Affairs, n.d Retrieved at http://www.bia.gov/cs/groups/xieed/documents/document/idc1 024535.pdf ). Policymakers have been monitoring energy development in Indian country in recent years and passing legislation that promotes sovereignty and self governance over natural resources inte nded for energy development. 20 In December of 2015, the U.S. Senate passed Senate Bill 209, Indian Tribal Energy Development and Self Determination Act Amendments by unanimous consent. The Act aims to increase self determination and provide a mechanism t o expedite the federal approval process allowing tribes to build a sustainable energy plan and a more developed economy (Senate approves Bill to streamline Indian energy development 2015 Retrieved at http://www.indianz.com/News/2015/019835.asp ). 19 See Development Capacity Grant (TEDC) and Energy and Mineral Development Grant (EMDP) United States Department of the Interior Indian Affairs http://www.bia.gov/WhoWeAre/AS IA/IEED/DEMD/ ). 20 Federal Indian law has experienced several policy shifts over the years: contact and discovery; treaty era; removal era; allotment and assimilation; Indian reorganization; termination; and self determination

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11 Planner s and policymakers are trained to anticipate change and to identify root causes of change and its impacts on a community and region. Planners and policymakers therefore develop methods for evaluating human and environmental consequences of urban problems, programs, polic ies and plans. Planning refers to strategic choices and actions used to improve physical, political, social and economic activity that enables a tribe to determine preferred outcomes by exerting sovereignty in order to attain desired ends (Zafertos, 2004). Planning can be conceptualized as a broad concept a s well as narrowly classified into strategic, regional, and city planning. Mintzberg ( 1994) describe s planning as elusive and stated it protrudes inmany directions because the planner c ould be an economist, political scientist, sociologist, architect or scientist Mintzberg (1994) describe d planning in five distinct ways: 1. Planning is future thinking; 2. Planning is controlling the future; 3. Planning is decision making ; 4. Planning is integrated decision making; and 5. Planning is a formalized procedure to produce an articulated result in the form of an integrated system of a decision. Mintzberg s (1994) description of planning is broad in scope and is primarily focused on l ogic and integrated decision making. Plan ning in Indian country requires strategic decision making, including decision s used to impose physical, political, social and economic activity that

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! 12 enables a tribe to determine preferred outcomes by exerting sov e reignty to attain desired goals (Zaferatos, 2004) Planning for oil and natural gas development is important to a community for reasons such as : the impact from semi trucks hauling heavy equipment and facilities on local streets; congestion on local streets and dangerous intersections from increased traffic; environmental and vista preservation; location in relation to oil and natural gas facilities ; design and density of ex isting and future subdivisions, commercial areas, and industrial parks; and, most importantly, the impact on public health, safety and welfare. The Quapaw Tribal Energy Development Template discusses the reasons that historically, limited planning occurs in Indian country. The template explains that Indian country has been faced with shifting federal polic ies and government funding throughout the years, and as a result, planning has been sporadic : Tribal planning is unique from mainstream America. Today, many tribal communities bear the imprint of successive waves of reform and development. Unlike the radial patterns that characterized early American cities, tribal development is a mosaic of land uses that are often noncontiguous and mixed use (Department of the Interior, Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnergyDev elopmentTemplate.pdf ). Infrastructure investment s are considerable when preparing for and accommodating energy development. The Quapaw Tribal Energy Development Template note s that in general, Indian country has not experienced infrastructure planning and stresse s that "coordination of land use and infrastruc ture planning should forward public goals of sustainability in a manner that balances the ecology,

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13 economic development and the evaluate system of its community. The document further suggests that infrastructure investment should be preceded by a comprehe nsive plan. The document emphasizes the need for infrastructure planning by tribal leaders, development experts and federal officials (Department of the Interior Office of Indian Energy and Economic Development. n.d. Tribal Energy Development Template. Re trieved at http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnergyDevelopmentTem plate.pdf ). Oil and natural gas planning and regulation significantly affect regional planning regarding the spatial relationship s with other uses, design s and impac ts on public health, safety and welfare. Regional planning is important at the state, county, and local levels, including the tribal level When considering regional plans and legislation, state, county, local and tribal jurisdictions should cooperate to make the planning and laws consistent. Furthermore, because the federal government mostly delegates the management of the natural resources of energy development occurring within a jurisdiction to the state and tribes, the jurisdiction must consider the l ocation of mineral deposits, the methods of extraction, the infrastructure needed and the associated impacts. Public policy influences the way a governmental organization and the general so cial structure are formed and operated. P olicy is defined as the sum of government activities[influencing citizens lives]. Policy choices are decisions made by policymakers and civil servants directed toward using public power to

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14 positively affect the lives of people. Due to the spatial and tempo ral relationship s between human settlement s and natural resources, public policy is an intricate component of the ways lands and resources are us ed and managed (Peters, 2010 ). To minimize the impacts associated with energy development and to anticipate and respond to energy development tribal decision makers and adjudicators should have broad legislation that considers long term energy trends and current and future land uses available to them Effective energy policy and planning practices will guide long term energy development involving energy supplies, infrastructure, energy efficiency and conservation on a broad scale. Problem Statement Many tribal Nations have limited tribal legislation governing the management practices and development of their land and energy resources. Tribal governments and external actors focus on what tribal governments cannot do in terms of their jurisdictional rights and authority over lands and resources within their borders ; h owever, in general, tribal organizations do n ot tak e full advantage of existing sovereignty o f their lands and resources. As determined by federal and tribal law and self determination, tribal governments do indeed have authority over their lands and resources and cannot fully take advantage of their sovereignty without practicing self governance over their natural, built, and human environments The environments will suffer without a regulatory framework and implementation of land use planning techniques for the development and management of energy r esources and the extent that they gain greater authority over their lands will most likely be

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15 limited by their engagement and the employment of current rights and authority over lands within their jurisdictions. Purpose of the Study The first goal of thi s study was to determine the basis for tribal sovereignty. Secondly, the purpose of the survey was to explore the general relationship between the United States Constitution and agreements made by and between tribes and the federal government and to determ ine how those relationships affect a tribes ability to develop and enact tribal constitutions, bylaws, tribal law and order codes and resolutions. Based on th e se criteria, an objective of the study was to explore the extent to which tribal governments have sovereignty over their l and and resource s. T hirdly, the purpose was to determine to what extent tribes use sovereignty through self governance over their lands and resources. Significance of the Study There is a large body of existing research that di scusses the ways federal policies and federal Indian law impact and limit tribes sovereignty over their ability to regulate land use and energy development within their jurisdiction ; however, little research investigating the ways the basis of law relates to the extent of a tribe s sovereignty over their land and resources has been conducted Research Questions The f ollowing are the research questions that guided this exploration of tribal capacity to enact legislation regulating land use and energy develo pment on their

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16 lands and to explore examples of existing tribal legislation involving such development. 1. What is the legal basis of tribal sovereignty? 2. Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and i ts resources? 3. To what extent do tribal organizations us e their sovereign status to enact legislation to regulate and guide the development of energy resources within their reserves? 4. To what extent do tribal organizations engag e in traditional/contemporary land use planning practices ? Limitations, Delimitations, and Assumptions The primary limitation of the thesis research is that the results are not generalizable to Indian country as a whole. Because it was extremely challenging to find and access pertinent documents, mainly adopted legislation, ordinances, codes, and resolutions the study findings were imp acted As a result, the researcher examined one tribal organization. In a ddition, the study is limited because tribes have unique relationship s with the federal government, including unique governance system s laws and regulations specific to their tribe. Therefore, the findings may not be generalizable across all tribes. The delimitation utilized by the researcher in this study was determined by a desire to better understand the relationship that exists between tribal treaties, constitutions, byla ws adopted law and order codes and resolutions that are

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17 intended to guide land use and energy development and the extent to which tribal legislation exists Despite the limitations of the study, foundational law, aside from treaties and individual agre ements between the federal government and tribes, applies to all federally recognized tribes. The researcher narrowed the study to a one case cas e study that focused on one of the most successful, if not the most successful, American tribes in regards to o il and natural gas development. Based on available sources, it was assumed that (a) in accordance with foundational legal principles, tribes have greater sovereignty over their land and resources than the typical publication discusses ; (b) tribes who hav e known energy resources and who are actively developing such resources will have a more sophisticated or developed legal framework ; and (c) compared to state and local regulations tribal provisions relat ed to energy development and enviro nmental control will be limited. Summa ry To take full advantage of sovereignty, tribes must develop effective governing systems such as effective energy polic ies and planning practices to guide long term energy development, which requires energy supplies, infrastructur e, energy efficiency, and conservation on a broad scale. Institutions that pro vide stable governance and effective and efficient bureaucracy through law s and polic ies that consider long term energy development should be available to tribal adjudicators and decision makers. The health, safety, and welfare of people are contingent on the

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18 careful consideration of the spatial and temporal arrangement of lands, its resources, and their relationship s to the human environment. Organization of the Study Because the thesis is somewhat unique, the organization of the study is different from a typical thesis. The study is applicable to several disciplines as well as industr ies. T he thesis begins with a detailed glossary of terms in Chapter Two The third cha pter provides a brief background of the study. The fourth chapter introduces the methodology Chapters Four and Five provide an archival review, legal audit and case study. The literature review is referred to as an archival review because the review is more than a survey of existing information; it is a large component used to answer the research questions and should be considered part of the methodology. Chapter S ix includes a legal audit of federal laws that appl y to Indian country in general and tribal laws and guidance documents that specifically apply to the Fort Berthold Reservation. Chapter Six additionally analyzes best management practices (BMPs) for oil and natural gas development and the cu rrent framework under which states and local jurisdictions are regula ting oil and natural gas. Chapter S even provides a discussion of the results by answering the research questions and discusses ways the results can be use d a s well as the ways the results contribute to existing data and information.

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19 CHAPTER GLOSSARY Indian Law Federal Indian Law Federal Indian law regulates legal relationships between Indian tribes and the Un it ed States. Federal Indian law dramatically affects tribes, their members, and the lands held. T o be recognized by federal Indian law, the civil or criminal dispute must arise within Indian country or be governed by one of the Indian treaties or statutes that applies outside of Indian country. Federal Indian law focuses on three central sets of conc erns: (1) tribal sovereignty and Indian property rights, (2) federal power and obligations, and (3) jurisdiction over the reservation (McCoy, Padraic 2014. Lecture on Indian Law. University of Denver, Denver CO). Tribal Law Tribal law includes tribal case law, tribal constitutions and bylaws, tribal law and order codes, traditional law, laws guiding federal and state relations with the tribe, tribal law enforcement, and tribal jurisdiction (McCoy, Padraic 2014. Lecture on Indian Law. University of Denver, Denver CO). Organization Indian Tribe A Indian tribe refers to an Alaskan Native or American Indian (AN/ AI) tribal organization that is recognized as having a government to government relationship

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20 with the United States, holding the responsibly, powers, limitations, and obligations attached to that designation, and who is eligible for funding and services from the BIA 21 Tribes are recognized as possessing certain inherent rights of self government a nd entitled to receive certain federal benefits, services and protections due to their special relationship with the Un it ed States 22 (U.S. Department of the Interior Assistant Secretary Indian Affairs, n.d. Retrieved at http://www.bia.gov /). Indian Tribal Organization (ITO) Tribal organization refers to the recognized governing body of any Indian tribe including any legally established organization of Indians that is controlled, sanctioned, or chartered by such governing body or that is democratically elected by the adult members of the Indian community to be survey ed by such organization and includes the maximum participation of Indians in all phase s of its activities ( United St ates Department of Agriculture, n.d Retrieved at http:/ /www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs141p2_024362.pdf). Tribal Government Due to their unique status as sovereign nations, tribes have complete authority over determining what type of governance system they have. Many 21 Funding and services are determined by statute, treaty, executive order, or other acts of Congress. 22 The BIAs mission is to enhance the quality of life, to promote economic opportunity, and carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes, and Alaskan Natives. The BIA works closely with tribes to provide services for the members. Major programs include: real estate services, natural resource s wildfire probate, transportation and human services (U.S. Department of the Interior Assistant Secretary Indian Affairs, n.d. Retrieved at http://www.bia.g ov /).

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21 American Indian tribes have adopted constitutions and bylaws and have created branches of government similar to the federal government. This type of system consists of a n elected Chief, President, Mayor, Chair, a Tribal Council, and tribal court system : Tribal governments maintain t he power to determine their own governance structures and enforce laws through police departments and tribal courts. The governments exercise these inherent rights through the development of their distinct forms of government, determining citizenship; esta blishing civil and criminal laws for their nations; taxing, licensing, regulating, and maintaining and exercising the power to exclude wrongdoers from tribal lands. In addition, tribal governments are responsible for a broad range of governmental activitie s on tribal lands, including education, law enforcement, judicial systems, health care, environmental protection, natural resource management, and the development and maintenance of basic infrastructure such as housing, roads, bridges, sewers, public build ings, telecommunications, broadband and electrical services, and solid waste treatment and disposal (National Cong ress of American Indians, n.d Tribal Nations and the United States: An Introduction Retrieved at http://www.ncai.org/about tribes ). Land and Interests Allotted Lands Allotted lands are held in trust for the use of i ndividual Indians (or their heirs). The United States Federal G overnment holds the title, and the individual is the beneficial interest holder ( U.S. Department of the Inter ior Assistant Secretary Indian Affairs, n.d. Retrieved at http://www.bia.gov/ ). Fee Interest Fee interest is an interest in land that is owned in unrestricted fee status and thus freely alienable by the fee owner (Blacks Law Dictionary, ninth edition).

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22 I ndian Country Indian country refers to : (1) all land within the limits of any Indian reservation under the jurisdiction of the United States Government notwithstanding the issuance of any patent and including rights of way running through the reservation ; (2) all dependent I ndian communities within the bo rders of the Un it ed States whether within the original or subsequently acquired territory thereof ; and (3) all Indian allotments, the Indian titles which have not been extinguished, including rights of way running through the same (18 U.S. Code 1151 and 25 C.F.R. 63.3). Indian Land Indian land refers to any tract in which any interest in the surf ace estate is owned by a tribe or individuals Indian in trust or restricted states that includes both individually owned Indian land and tribal land ( 25 C.F.R. 162) Mineral Interest or Mineral Right 23 Mineral interest or mineral rights refers to rights to search for, develop, and remove minerals from land, or to receive a royalty based on the production of minerals. Mineral interests are granted in an oil and gas lease (Blacks Law Dictionary, ninth edition). Reservation The legal meaning of a reservation is an area of land set aside for a specific purpose; however, it is also any property right or property retained by a party to a bilateral agreement (Getches et al., 2011, p. 136). 23 Mineral interest is often interchange able with mineral right. Mineral interest and right refer to ownership of subsurface minerals.

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23 Restricted or Trust Lands Restric ted or trust lands refers to a ny tract, or interests therein, held in trust or restricted status (U.S. Department of the Interior Assistant Secretary Indian Affairs, n.d. Retrieved at http://www.bia.gov/ ). Severed or Split Estate 24 Mineral rights can be sev ered from the surface rights on property tha t may contain gas and oil or other minerals (Blacks Law Dictionary, ninth edition). Surface Interest or Surface Right 25 Surface interest or surface rights refer to all right s in real property other than a mineral interest. The surface interest owner has the right to the surface subject to the right of the mineral interest owner to use the surface (Blacks Law Dictionary, ninth edition). 26 24 Severed estate is often interchange able with spilt estate. Severed and spilt estates refer to the division of legal interests in the land. 25 Surface interest and surface right are often interchange able Surface interest and surface right refer to ownership and interest o f the lands surface as opposed to the subsurface. 26 Where diffe rent owners ow n surface and mineral estate, the mineral estate is dominant.

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24 Figure 1 : Surface and Mineral Ownersh ip Illustration 27 Tribal Lands Any tract or interest therein where the surface estate is owned by one or more tribes in trust or restricted status and concludes such lands to be reserved for BIA administrative purposes (U.S. Department of the Interior Assis tant Secretary Indian Affairs n.d Retrieved at http://www.bia.gov/ ). Land Ownership Indian Landowner Indian landowner refers to a tribe or individual Indian who owns an interest in Indian land (25 C.F.R. 162). 27 Illustration retrieved from The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.gao.gov/assets/680/670701.pdf

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25 Indian Mineral Owner An Indian mineral owner is an Indian tribe, band, nation, pueblo community, Rancheria, colony, or other tribal group that owns mineral interests in oil and gas or geothermal or solid mineral resources, and the title to which is held in trust by the United St ates or is subject to a restriction against alienation imposed by the United States (25 C.F.R. 162). Indian Surface Owner An Indian surface owner is an y individual Indian or Indian tribe whose surface estate is held in trust by the United States or is sub ject to restriction against alienation imposed by the United States (25 C.F.R. 162) Federal Trust Responsibility Government to Government The United States recognizes its relationship with federally recognized tribes as one between sovereigns (between government and government). This principle is grounded in the U.S. Constitution (U.S. Department of the Interior Assistant Secretary Indian Af fairs n.d. Retrieved at http://www.bia.gov/ ). Sovereignty Tribal sovereignty is limited only by treaties with the United States, acts of Congress, Executive Orders, federal administrative agreements and court decisions, and what remains is protected and maintained by the federal recognized tribes against further encroachment by other sovereigns, such as the states. Tribal sovereignty ensures that any decisions about the tribes with regard to their property

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26 and citizens are made with their participatio n and consent (U.S. Department of the Interior Assistant Secretary Indian Affairs, n.d. Retrieved at http://www.bia.gov /). Trust Responsibility The federal trust responsibility is a legally recognized obligation under which the United States has charged itself with moral obligations of the highest responsibly and trust toward Indian s (U.S. Department of the Interior Assistant Secretary Indian Affairs n.d. Retrieved at http://www.bia.gov/ ) 28 Legislative Action Environmental Conservation Uses Environmental conservation uses includes a ctivities within the land areas designated for the purpose of conserving or protecting natural resources or environmental quality and include areas designated for such purposes as flood control, protection of quali ty or quantity of groundwater or surface water, floodplain management, fisheries management, or protection of vegetative communities or wildlife habitats (American Planning Association, 2004, cited as Temple Terrace, Fla.). Tribal Zoning Code Tribal zonin g codes are laws that divide tribal lands into zone districts. Each district has use requirements and usually provides for special provisions. In the context of energy development, zoning should provide for the control of the development of property for en ergy development. Mechanisms to evade impact and 28 See: Seminole Nation v United States (1942) and Cherokee Nation v. Georgia (1831).

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27 conflict between neighboring uses should be established. These laws should be used to establish health, safety, and well being. Zoning laws should implement any adopted land use plan or comprehensive plan an d should not conflict with environmental codes, or to the extent that they do, the code should specify which rule prevails (Tribal Institute, n.d. Retrieved at Wiki: www.tribalinstitute.org ). Zoning Code Zoning codes are t he duly approved, enacted, and amended ordinance s that control and regulate land use (American Planning Association, 2004, cited as Maryland Heights, Mo.) A zoning code is an ordinance enacted by the city council that sets forth regulations and standards relat ed to the nature and exten t of uses of land and structures, which is consistent with the comprehensive plan, includes a zoning map, and complies with other provisions (American Planning Association, 2004, cited as Newport, R.I.). Planning City Planning City planning refers to t he decision making process in which goals and objectives are established, existing resources and conditions are analyzed, strategies are developed, and controls are enacted to achieve the goals and objectives as they relate to cities and communities (America n Planning Association, 2004, cited as Iowa State University Extension Service).

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28 Comprehensive Planning Comprehensive planning is an exercise involving the understanding of where the community has been, where it is now and what it should be for future generations. A plan should include the support of all segments of a society, including elected officials and lessees, spiritual leaders, and youth, adults and elders. Planning should empower tribal officials to make infor med decisions about the issues or problems their community face s and should focus on the social and economic values that emerge (U.S. Department o f the Interior Indian Affairs, n.d. Retrieved at www.indianaffaris.gov ). Indigenous Planning Indigenous planning is a type of planning primarily used to include traditional knowledge and cultural identify specific to a tribe, so that planning incorporates tribal values such as land tenure, collective rights and matters of inheritance. The appr oach requires consensus building and community participation (Department of the Interior Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnerg yDevelopmentTem plate.pdf ). 29 29 In reference to indigenous planning, the Quapaw Tribal Energy Development Template, cite d Ted Jojola : Physical Infrastructure and Economic Development (May 2007), commissioned for the National Congress of American Indians Policy Research Center, for discussion at the National Native American Economic Summit of May 15 17, 2007. The Primer discussion on t his topic is not intended to be comprehensive, and reference should be made to that p aper and references cited therein for a fuller discussion.

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29 Infrastructure Planning Infrastructure p lanning involves the facilities and services needed to sustain an industr ial residential, commercial, and al l other land use activities, including water, sewer lines, and other utilities, streets and roads, communications, and public facilities such as fire stations, parks, and schools. Land Use and Spatial Planning Land use planning should assess competing us es and alternative uses for land. Planning is important to reconcile different demands for land uses, identify potential benefits that can be achieved, avoid or minimize potential risks and costs, and identify suitable a ctions that can be implemented. Perf ormance Planning Performance planning is a type of form based planning technique that is largely focused on aesthetics design, form and shape in contrast to traditional zoning districts that create districts based on use. The Quapaw template describe s performance planning as akin to the land use zoning of a comprehensive plan d escribing it as more [specific]in nature. The template further explains that performance planning considers each parcel of land and project to match the use appropriately to the site characteristics. (Department of the Interior Office of Indian Energy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnergyDevelopmentTem plate.pdf ).

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30 Stra tegic Planning Strategic planning usually involves specific economic objectives related to development projects. It typically involves large scale projects that will generate revenue and impact the community (Department of the Interior Office of Indian E ne rgy and Economic Development, n.d. Tribal Energy Development Template. Retrieved at http://teeic.indianaffairs.gov/documents/docs/QuapawTribalEnergyDevelopmentTem plate.pdf ). The Balanced Scorecard Institute defines strategic planning as a n organizational management activity that is used to set priorities, focus energy and resources, strengthen operations, ensure that employees and stakeholders are working toward common goals, establish agreement around intended outcomes/results, and assess and adjust the organizations direction in res ponse to a changing environment (Balanced Scorecard Ins titute, n.d Retrieved at http://balancedscorecard.org/Resources/Strategic Planning Basics ). Plans and Guidance Documents Comprehensive Plan A c ompreh ensive land use plan is an all encompassing document that generally includes discussions and plans for natural resources, environmental quality, safety, housing, community development, health and wellness, education, and economic opportunity. It is usually driven by a community vision and is the document that decision makers use to carry out the plan when deciding on future

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31 land use development and projects, including infrastructure. The document also discusses current and future zoning and land use contr ols (U.S. Department o f the Interior Indian Affairs, n.d. Retrieved at www.indianaffaris.gov ). Infrastructure/Capital Investment Plan An infrastructure/capital investment plan is a plan setting forth, by category of public facilities, those capital improvement and that portion of their costs which are attributable to serving new development within designated service areas for public facilities over a period of specified years (American Planning Association, 2004, cited as Concord, N.C.). Strategic P lan A strategic plan is a plan articulating desirable characteristics to be used in structure, on going decisions that are intended to influence outcomes (American Planning Association 2004, c ited as Interstate 81 Corridor Council).

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32 CHAPTER BACKGROUND Isidore (2015) enumerated that the nations greatest oil boom occurred during President Obamas tenure. U.S. oil production increased 82 percent to near-record levels over the last seven years, and natural gas production rose nearly 25 percent. In 2015 more than 90 percent of domestic energy consumption was from fossil fuel or renewable energy sources (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.gao.gov/assets/680/670701.pdf). Following unprecedented growth in the United States oil and natural gas industries and three straight years of general per barrel oil prices around $100 United States Dollars (USD), the price per barrel of oil fell below $50 USD in January of 2015. 30 31 Defterios and Riley (2016) found that crude oil prices have dropped 70 percent since 2014 and twice fell below $27 USD per barrel in 2016 alone. Despite the economic downturn in domestic and global oil and natural gas energy markets, the United States federal government recognizes the sectors 30 Brent crude (ICE) was $37.15 USD/barrel (b) on April 8, 2016 and $48.69 USD/b on September 28, 2016 (Bloomberg Energy, n.d. Retrieved at http://www.bloomberg.com/energy ). 31 The U.S. Energy Information Administration (EIA), Short Term Energy Outlook released on March 8, 2016, reported that Brent crude oil prices are forecasted to average $32/b in 2016 and $40/b in 2017, $3 and $10 less than t he forecast last month, respectively. The EIA bases the forecasted prices on lower expectations for predicted oil demand growth (Short Term Energy Outlook, 2016. Retrieved at http://www.eia.gov/forecasts/steo/index.cfm ).

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33 economic benefits and remains dedicated to ensuring that America has energy independence (Securing American Energy, n.d Retrieved at www.whitehouse.gov ). The Obama Administration continues to focus on energy development and strategy. The Administration s goals are to diversify the energy portfolio by harnessing American innovation. The United States Office of the Press Secretary (2015) explain ed that the United States is working to promote free markets, free trade and the rule of law to businesses to identify changes and opportunities. The International Energy Agency 2014 Review (2014) reported that due to America s aggressive energy po licy, the United States is now producing nearly half of its domestic demand for crude oil reducing dependence on foreign oil to a forty year low As demonstrated by the adoption of the All of the Above Energy Strategy, meant to harness American innova tion and develop a diverse portfolio of American made energy, the Obama Administration supports renewable energy development as a viable source of energy production. Recognizing the current technological and distribution limits of alternative energy devel opment and the need for reliable power, the Administration still focuses on traditional, non renewable energy development. The Administration adopted a federal plan to cut net oil imports in half by the end of the decade and to double energy production by 2030 (International Energy Agency [ EIA ] 2014). 32 The Administration is currently taking action by allowing tight formations to be opened so that new reserves are available for development. Further demonstrating federal support, Obamas Energy Department re cently approved 32 See President's Blueprint for a Secure Energy Future (Securing American Energy, n.d. Retrieved at www.whitehouse.gov ).

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34 thirteen licenses to export up to 14.04 billion cubic feet (BCF) per day of liqu e fied natural gas (Dlouhy, 2016). As a result of the oil and gas boom and energy policy reform, the United States crude oil production was 30 percent higher in 2013 than it was just 10 years prior, p ositioning the United States as the third largest producer of crude oil in the world behin d Saudi Arabia and the Russian Federation. Of the 33 oil and natural gas producing states, 27 are responsible for 99 percent of the production. Under its comprehensive energy strategy, the Obama Administration has offered millions of acres of public land for oil and gas production (International Energy Agency, 2014). The federal government currently owns and manages approximately 635 640 million surface acres and 700 million subsurface minerals, which is mostly made up of coal, natural gas, and oil. Federa l leases in production are relatively small; however, domestic production from over 63,000 federally leased oil and natural gas wells account s for 11 percent of the nations gas supply and 5 percent of its oil. 33 Of the subsurface minerals held by the feder al government, roughly 6 percent are considered developable for natural gas and oil production. 33 Only 48 percent of BLM leases are estimated to be active whereas 94 percent of Indian leases are active (United States Department of the Interior Office of the Inspe ctor General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development n.d. Retrieved at https://www.doioig.gov/sites/doioig.gov/files/CR EV BIA 0001 2011Public.pdf.

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35 Figure 2 : Public and Indian Minerals in Lands of the U.S. In 2010, t he Institute for Energy Research (IER) estimated that the worth of the government s recove rable oil and gas totaled $128 trillion, or eight times the national debt. Areas open to development include BLM, USFS, Federal Indian, and offshore lands. The BLM is responsible for managing federal lands, including the management of the surface and subsu rface areas affected by oil and natural gas development. In the fiscal year (FY) 2015, the Agency generated more than $2.1 billion in royalties, $30 million in rental payments, and $112 million in bonus bid s (United States Bureau of Land Management n.d R etrieved at http://www.blm.gov/wo/st/en.html ). 34 35 34 The federal royalty rate is 11.29 percent, and the lease terms a verage ten years (United States Bureau of Land Management. Retrieved at http://www.blm.gov/wo/st/en.html ).

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36 Figure 3 : Indian Shale Plays and Basins Of the federal lands, American Indian Reservations in particular have a large capacity for energy development. Collectively, American Indian tribes are the third largest owners of mineral resources in the United States (Cohen, 2012). American Indian tribes own 30 percent of all coal west of the Mississippi, half of all uranium reso urces, and 20 percent of all known oil and gas reserves. Estimations indicate that 80 percent of the resources go undeveloped (Regan, 2014). An evaluation by the United States Department of the Interior Office of Inspector General (2012) 35 In the f iscal year (FY) 2015, the BLM documented 23,770 active leases on U.S. federal and federal Indian lands (United States Bureau of Land Manage ment, n.d. Retrieved at http://www.blm.gov/style/medialib/blm/wo/MINERALS__REALTY__AND_RESOURC E_PROTECTION_/energy/oil___gas_statistics/data_sets.Par.64136.File.dat/number ofproducingleases.pdf ).

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! 37 reported that ther e were 17,500 active oil and natural gas leases on Indian lands, a significant increase from just five years prior. 36 The national royalty rate average for Indian leases is 16.88 percent, and the typical lease term is five years (Oil and Gas Outlook in Indian Country, n.d. Retrieved at http://www.bia.gov/cs/groups/xieed/documents/document/idc1 024535.pdf ). The United Stat es Department of the Interior Office of Natural Resource Revenue (ONNR) reported that in 2012 mineral resources in Indian country generated over $701 million in royalty revenue paid to Indian mineral owners. Income f ro m energy and mineral development is b y far the largest revenue source for r eservations (Office of Natural Resources Revenue [ ONRR ] n.d. Ret rieved at www.onrr.gov/ONRRWebStats ). A 2012 report on Indian energy development reported that oil, natural gas, coal, and other minerals have a n estima ted economic impact of $10.49 billion and account for 86 percent of the economic impact in Indian country, supporting over 111,000 whereas irrigation, timber, and grazing only made a $1.59 billion dollar impact (United States Department of the Interior Of fice of the Inspector General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development n.d. Retrieved at https://www.doioig.gov/sites/doioig.gov/files/CR EV BIA 0001 2011Public.pdf. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!! 36 United States Department of the Interior Office of the Insp ector General, Oil and Gas Leasing in Indian Country: An Opportunity for Economic Development n.d. Retrieved at https://www.doioig.gov/sites/doioig.gov/files/CR EV BIA 0001 2011Public.pdf.

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38 The Fort Berthold Reservation in particular has been quite successful over the last few years. From 2008 through August of 2012, the Fort Berthold Tribal and allotted oil and gas royalties totaled $365,353,893 (Office of Natural Resources Revenue [ ONRR ] n.d. Retrieved at www.onrr.gov ) Unlike lands held under fee simple status, Indian lands are held in trust by the United States for the benefit of the tribal organization and its members. As a result, the lands and its resources are regulated, transferred and disposed of differently in Indian country than in areas under common law. 37 P ursuant to the United States Code (U.S.C.) and the United States Code of Federal Regulations (C.F.R.) various federal agencies promulgate regulations for the management of land and resources that are only applicable to Indian lands. Owners with interest in lands regulated and managed in accordance with common property law can freely dispose or encumber their lands without federal approval, whereas American Indian Tribes and individual Indians must obtain ap proval by the Assistant Secretary of the United State s Department of the Interior to lease or encumber property in a ny way. The BIA is responsible for the administration and management of 55 million surface acres and 57 million acres of subsurface minera ls estates, which are held in trust by the United States for the benefit of American Indian tribes and their members. Administration and management operate through BIA Agencies and Field 37 This paper refers to lands held in fee ownership as well as othe r various forms of tenancy. Lands held under common law are distinguished from lands held in trust by the United States for the benefit of Indian tribes and individual Indian landowners because lands under common law are freely transferred, encumbered and disposed of, while lands held in trust are encumbered and can only be alienated by the trustee.

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! 39 Offices. Management responsibilities include leasing lands for minera l development and easement grants, environmental regulation and enforcement, surface facility management, and royalty and payment collection and disbursement. 38 A federal evaluation of the administration of oil and natural gas leasing and oversight by the BIA on Indian lands report ed that mineral development on Indian lands is "hampered by complex regulations, insufficient funding, and tribal concerns about assuming increased responsibility (United States Department of the Interior Of fice of the Inspector General, 2012 Retrieved at https://www.doioig.gov/sites/doioig.gov/files/CR EV BIA 0001 2011Public.pdf ) 39 For example, Senator Bryon L. Dorgan (2008) prepared a formal report to the Un it ed States Senate Committee on Indian Affairs, which discussed oil and gas development on Tribal and individual Indian trust lands on the Fort Berthold Reservation. The Committee staff examined oil and natural gas development data from December 2006 to May 2008 and discovered that oil and natural gas development on the Fort Berthold Reservation "lagged behind development on !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!! 38 There are 83 BIA Agencies and 12 Regional Offices. The Agencies are located at the reservation level and work closely within the framework of government to government relations to assist tribes they serve and their members. The r egional offices are located in regional locations in and around Indian c ountry 39 The United States Government Accountability Office reported that an Indian oil and natural gas well can cost upwards of 65 percent more than a well off the reservation, primarily due to costs associated with permitting and regulatory compliance. For e xample, those drilling on Indian lands are required to obtain a BLM drilling permit, which costs $6,500 whereas state permits are generally less than $150 (The United States Government Accountability Office, 2015. Indian Energy Development Poor Management Has Hindered Energy Development on Indian Lands. Retrieved at http://www.gao.gov/assets/680/670701.pdf ).

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40 private lands both within and surrounding the reservation boundaries. 40 The report showed that the delays prohibited the timely developm ent of energy resources on the R eservation and as a result, was cause for financial detriment to the Indian and tribal landowners. 41 The Reservation continues to suffer from backlogged permitting ; however, the United States Department of the Interior Bu reau of Indian Affairs (2012) reported that in 2010 the level of drilling on the Fort Berthold Reservation increased from 150 wells drilled to 200. The Bureau projected that 1 000 wells will be dril led to initially develop the Bak ken Formation and an addit ional 1 000 wells w ill be drilled to complete the full development of the field over the next twenty to thirty years (United States Department of the Interior Office of the Inspector General, Oil and Gas Leasing in Indian Country: An Opportunity for Econom ic Development 2012. Retrieved at https://www.doioig.gov/sites/doioig.gov/files/CR EV BIA 0001 2011Public.pdf ). For example, the National Environmental Protection Act (NEPA) requires that federal agencies evaluate the environmental effects on surrounding lands and settlements occurring from major federal action. A major federal action includes 40 The Fort Berthold Reservation is comprised of private fee lands as well as individual ly owned Indian trust lands and Tribal trust lands. See the Of ficial Portal for North Dakota State Government for further discussion. http://www.ndstudies.org/resources/IndianStudies/threeaffiliated/demographics_land .html 41 See Dorgan, Byron L. Oil and Gas Development on the Fort Berthold Indian Reservation 2008. Retrieved at http://www.indian.senate.gov/sites/default/files/upload/files/ftbertholdoilandgaswhitep aper6408.pdf

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! 41 programs and proje cts regulated or approved by federal agencies. The Environmental Protection Agency (EPA) defines a "major federal action" as a n action with effects that may be major and that are potentially subject to federal control and responsibility. Pursuant to 40 C.F .R. "! 1508.18, federal actions include the approval of specific projects such as "construction or management activities located in a defined geographic area." The federal government has preemptive capacity over oil and natural gas development on federal lands. Many federal statu t es are promulgated to regulate oil and natural gas while simultaneously promoting environmental protection. In addition to the BIA, EPA, and BLM administer federal l aws regulating Indian energy development. F or example, pursuant to the Clean Air Act (CAA) EPA has the authority to regulate emission controls, 42 and pursuant to federal regulations, the BLM is involved in the review and approval of oil and natural gas act ivities. Although the BIA issues permits, the BLM supervises and approves oil and gas operations on Indian lands. State and local governments have broad oil and natural gas regulatory powers on lands within their jurisdictions (U.S. Department of Energy Office of Fossil Energy National Energy Technology Laboratory, 2009. Retrieved at https://www.netl.doe.gov/ ). State and local governments regulate the development of oil and natural gas within their jurisdictions mostly through enabling law s found in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!! 42 Pursuant to the Tribal Authority Rule (TAR), eligible Indian tribes can assume the role of the EPA and implement EPA "approved programs" und er the act in the same manner as states ( University of Colorado at Boulde r Intermountain Oil and Gas BMP, n.d http://www.oilandgasbmps.org/laws/federal_law.php ).

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42 state constitutions, local bylaws, ordinances and resolutions. Many states administer the federal laws under agreements and plans approved by the appropriate agency; except Indian lands, many state legislatures have jurisdiction over oil and natural gas develo pment within their boundaries. Most states have a regulatory commission with authority vested through the state constitution to regulate and promulgate legislation affecting oil and gas development within its jurisdiction (U.S. Department of Energy, Office of Fossil Energy National Energy Technology Laboratory, 2009. Retrieved at https://www.netl.doe.gov/ ). Through state oil and gas acts, regulatory agencies generally declare that the development of the state s natural resources is in the best interest of i ts population. The state regulatory commissions assume the role of developing oil and gas in a safe and efficient manner. State oil and natural gas regulations prevail over federal law where they are at least as stringent as federal regulations and do not conflict with adopted legislation (U.S. Department of Energy Office of Fossil Energy National Energy Technology Laboratory, 2009; Soragham, 2011). State regulators and adjudicators are responsible for making and enforcing rules and regulations. State agenc ies respond to complaints and reported accidents and publish notice documents for a range of issues, including forms and permits for exploration, extraction, and development. 43 43 See : The University of Colorado at Boulder Intermountain Oil and Gas BMP Project for further discussion ( http://www.oilandgasbmps.org/laws/federal_law.php ).

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43 In addition to federal and state authority, local governments are beginning to assume regulatory authority over oil and natural gas activities (Red Lodge Clearing House, Oil and Natural Gas Resource Development Retrieved from http://rlch.org/content/oil and gas resource development#state). The role of local government is mainly limi ted to zoning and permitting. Similar to federal preemption, state laws will prevail over conflicting state and local laws (The University of Colorado at Boulder Intermountain Oil and Gas BMP Project n.d Retrieved at http://www.oilandgasbmps.org/laws/fed eral_law.php ). Tribal governments may regulate oil and natural gas development through tribal codes, ordinances, and constitutions. The controls usually focus on wildlife protection, land use restrictions, and water and solid waste contamination. Some tri bes also have permitting processes, drilling plan requirements, and zoning restrictions (The University of Colorado at Boulder Intermountain Oil and Gas BMP Project, n.d. Retrieved at http://www.oilandgasbmps.org/laws/federal_law.php ).

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44 CHAPTER METHODOLOGY The goal of the study was to determine the extent to which American Indian tribes use so vereignty over their lands and natural resources by employing retained aboriginal rights through federal statutes, regulations, rules, and precedents for their benefit. The study focused on the discovery of new facts to further develop existing knowledge of land use and energy development in Indian country. Several tribal governments were contacted by the researcher to request their participation in this study; however, none of the tribes responded. Accessing laws and guidance documents via the Internet was challenging, as tribes display limited information. Due to the research limitations, the researcher chose to organize the research based on one tribal organization, the Three Affiliated Tribes of the Fort Berthold Reservation. The Tribal E nergy D ivision was contacted via electronic mail and telephone ; however, the re was no response to the researchers request to actively participate in the study. Despite the failed efforts to obtain active participation in the research, the Three Affiliated Tribes of the Fort Berthold Reservation is a n appropriate case study due to their geographic location and the accessibility of information. The T ribes are very successful in oil and natural gas development. Th ough limited, regulatory and planning information of the T ribal organization is accessible via the Internet.

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45 Design of the Study The study was qualitative and therefore allowed for open ended questions and personal interpretation s Due to inconsistent laws and c ourt decisions, identifying the cause and the exact authority behind certain legal decisions that affect tribal sovereignty was difficult T o maintain a narrowly defined scope and an unbiased analysis, legal principles were used as an organizational mechanism The decision to organize the review as an archival review in four distinct sections allow ed for historical and contemporary legal decisions and sources of information to be analyzed in a systematic fashion and ensure d that the methodology was reliable and reproducible. The organization of the review significantly contribute d to the findings section The audit provide d an opportunity to evaluate and assess strengths and weaknesses in the law and existing researc h and also allow ed for critical and consistent evaluation s of the review of information so that it c ould be evaluated based on its relevance or significance. Sampling The Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota was selected from the federally recognized tribal organizations that are currently developing oil and natural gas or that have the capacity to do so The sample was analyzed based on the level of energy development, existing legislation planning documents, and overall accessibility to sources The sample population led to more generalizable results because the selection was based on purposive sampling. Purposive sampling was used

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46 primarily to ensure that the sample was e ngaged in energy development and that information was accessible. The research design was prevalent during the qualitative research. Research Questions Because the basis of the investigation was reliant on foundational law, the questions were ini tially broad and become narrower. The research questions have several associated variables. Each variable describes its level of applicab i l it y to federal Indian law generally or to the Three Affiliated Tribes specifically. Research Questions Research Question Variable Applicability 1 What is the legal basis of tribal sovereignty? 1 The United States Constitution. Tribes generally. 2 Federal legislation. Tribes generally. 3 Tribal Constitution. Tribe specific. 4 Tribal B ylaws. Tribe specific. 5 Federal case law. Tribes generally. 6 Tribal case law. Tribes generally /specific 2 Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and its resources? 1 The United States Constitution Tribes generally. 2 Federal legislation. Tribes generally. 3 Treaties and other agreements. Tribe specific. 4 Tribal Constitution. Tribe specific. 5 Tribal B ylaws. Tribe specific. 6 Federal case law. Tribes generally. 7 Tribal case law. Tribes generally/specific. 3 To what extent do tribal organizations use their sovereign status to enact legislation to regulate and guide the development of energy resources within their reserves ? 1 Committees Tribe specific. 2 Legislation Tribe specific. 3 Policy Tribe specific. 4 Energy/Environmental Dept. Tribe specific. 5 Guidance documents. Tribe specific. 6 Land use and energy planning practices. Tribe specific.

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47 Research Questions Research Question Variable Applicability 4 To what extent do tribal organizations engage in traditional or contemporary land use planning practices? 1 City planning. Tribe specific. 2 Comprehensive planning. Tribe specific. 3 Land use and spatial planning. Tribe specific. 4 Strategic planning. Tribe specific. 5 Performance planning. Tribe specific. 6 Indigenous planning. Tribe specific. 7 Infrastructure planning. Tribe specific. Table 1 : Research Questions Instrumentation Data Collection, and Data Measurement Non probability, purposive sampling was employed. By examining the phenomena directly rather than generalizing the population as a whole, the inferences applied were assumed to have higher validity. Archival data and data collected from a o ne case case study w ere used to answer the research questions and test assumptions The data gathered to answer the research questions were qualitative in nature and classified as nominal. The data w ere collected at o ne point in time using the most current information available To identify the legal basis for sovereignty, the extent t o which tribal governments have sovereignty over land and resources, the extent to which they employ that sovereignty and to what degree they engag e in land use planning activities, the researcher used observable units or variables that consisted of law and policy, the existence of tribal energy and environmental offices and guidance documents The d ata coll ected include applicable provisions in the United States Constitution and fede ral statutes and treaties. The Tribal Constitution, bylaws, T ribal

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48 law and order code, resolutions and directives, and planning documents were collected via the Internet to the extent that they were available. A q ualitative content analysis was used to measure the level of participation in law and policymaking relat ed to energy development

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49 CHAPTER RESULTS: ARCHIVAL REVIEW Introduction The purpose of this thesis was to better understand the extent of tribal sovereignty over land use and energy resources within their jurisdictions. The analysis provided in the archival review focuse d primar ily on European and American legal concepts and case law derived from the field of law known as American Indian law or Federal Indian law. The study dr ew from primary and secondary legal sources. The s ources include d statutes listed in the U.S.C. and regul ations under the C.F.R. and the United States Federal Register (FR). A further analysis involve d the review of case law, commentaries, and law and policy in legal encyclopedias, legal desktop resources, horn books, treatises and legal periodicals. Americ an Indian law is the foundation on which issues involving Native Americans are discussed and decided. To fully understand the extent of sovereignty tribes have over their lands and its resources, the historical context of that sovereignty must be investiga ted The archival review describes the events that led to policy changes that in turn have created the current situation that is the focus of this thesis. American Indian law is a body of law that includes parts of the United States Constitution, various t reaties and agreements made between and among tribes and the federal government, federal statutes and regulations, federal court and administrative decisions, and tribal custom s and natural law (McCoy, Padraic 2014.

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48 Lecture on Indian Law. University of Den ver, Denver CO). American Indian law regulates the legal relationship between Indian tribes and the United States. American India n law affects tribes, their members, and lands held by both. To be recognized as federal Indian law, t he dispute must arise w ithin Indian country or be governed by one of the Indian treaties or statutes that applies outside of Indian country. American Indian law focuses on three central sets of concerns: 1. Tribal sovereignty and Indian property rights; 2. Federal power and obligation s; and 3. Jurisdiction over the reservation. As with all fields of law, American Indian law builds upon itself ; however, due to shifting policies, ideology, and interpretation s of legislation, answering the research questions of this thesis was challenging Getches (2011) discusse d American Indian law and what it represents : [American Indian law is comprised of] historical and moral markers in the relationship between the United States and American Indians. American Indian law marks an ongoing clash betwe en indigenous and non indigenous societies and cultures and reflects the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promise to the first inha bitants and the first sovereign (Getches, 2011) This chapter examines and synthesizes the current political and economic environment for oil and natural gas development in Indian country. The section provides a basis to further understand the research. The archival review begins with

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49 a general discus sion of relevant principles in Ameri can Indian Law and then narrows the focus to four main principles of American Indian law in the context of Indian energy and mineral development : (1) Indian tribes as sovereign nations, (2) federal supremacy in Indian af fairs, (3) limited state power in Indian country, and (4) federal trust doctrine. The decision to organize the review of the literature in to four distinct sections allows for the analysis of historical and contemporary legal decisions and for the sources o f information to be analyzed in a systematic fashion It also ensures that the methodology is reliable and reproducible. The organization of the review contribute s to the findings section in a significant way. The format provides an opportunity to evaluate and assess strengths and weaknesses in the law and existing research and allow s for critical and consistent evaluation s so that review is evaluated based on its significance or worth. Archival Audit Legislative authority in Indian country is complex and nuanced. American Indian tribes have a unique relationship with the federal government. The government to government relationship is a formal acknowledgment in which the federal government recognizes tribes as separate nations. Because tribal n ations re tain distinctly, independent political communities, having sovereignty over members and lands, their status is distinguishable from state and local jurisdictions (Worcester v. Georgia, 183 2 ). In Worcester, Chief Justice John Marshall of the United States Supreme Court concluded that Indian Nations have always been considered as distinct, independent political communities, retaining their original

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! 50 natural rights, as the undisputed possessors of the soil. The very term nation so generally applied to them, m eans a people distinct from others." Likewise, Justice Smith Thompson, in a dissenting judgment in Cherokee Nation v. State of Georgia (1831), held that the Cherokee Nation was a "foreign state" and retained their "usages and customs and self government." Tribal sovereignty includes internal authority over land and governance systems, where tribes retain rights to create their own laws and the ability to govern within their jurisdiction ( Montana v. United St ates 1981 ) ; 44 h owever, the power to regulate the tribes is wholly federal and their independence is subject to "exceptionally great powers of Congress to regulate and modify the stat us of tribes" (Canby, 2009 ). Cohen ( 2012) point ed out that the United States Supreme Court relied extensively on intern ational law when establishing new law s governing the relationship between the federal government and Native American tribes (p. 412). Contemporary American Indian law draws from and contributes to i nternational law. British law influenced European settl ers before American law was developed. British law recognized tribes as foreign nations with rights of possession to their lands. During the c olonial period from 1492 1828 and the treaty period from 1828 1887, the United States recognized tribes as foreign nations that had broad authority over their lands. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!! "" See: New Mexico v. Mescalero Apache Tribe (1983), M errion v. Jicarilla Apache Tribe (1982), and White Mountain Apache Tribe v. Brackar (1980).

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51 As American law developed, American settlers assumed authority of traditional Indian lands. In exchange for land cessations, tribes signed treaties granting them federal protection against further land c essations. The Indian treaties of the 17th and 18th centuries established the concept of reservations as a means of confining Indian occupancy and use of land to a particular territory (Getches et al. 2011). A r eservation has a legal meaning broader tha n its definition of an area of land set aside for a specific purpose; it is also any property right or property retained by a party to a bilateral agreement (Getches et al., 2011, p. 136). The Doctrines of Discovery and Conquest Several legal concepts t hat developed from i nternational law have become known as pillars of American Indian law Possibly the most important concept, as they relate to this thesis, are the doctrines of discovery and conquest, which established Indian property law related to th e existence and scope of Indian title s to real property. The Doctrine of Discovery is an American legal concept that limits tribal sovereignty over traditional lands. The doctrine has several criteria or elements that must be met to satisfy the doctrine. The criteria include (a) being the first European to o ccupy the lands, (b) proving firs t discove ry (c) occupying the lands within a reasonable time, and (d) settling the lands ( Getches et al., 2011 ) Johnson v. McIntosh (1823) was the first property law case that involved American Indians. The case is rooted in the concepts of discovery and conquest. In Johnson the United States and two tribes were each granted the same lands,

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52 consisting of the Illinois and Piankeshaw Nations, in private land grants to s eparate buyers in 1773 and 1775. The private buyers sued in federal court to eject the federal buyer from the property. The Court held that the United States retained the title to all lands within its borders based on the discovery of the lands and the con quest of the inhabitants. The United States Supreme Court held that the Nation that discovered the new land held fee title to the lands and that the occupants merely had a possessory interest in the lands they occupied, thus barring tribes from disposing o f the land. It was determined that Indians had the right to occupy the ground as the rightful occupants of the soil with a legal as well as just claim to retain possession of it, and to use it according to their own discretiontheir power to dispose of th e soil at their own will, to whomsoever they pleased, was dented by the original fundamental principle, that discovery gave exclusive title to those who made it. The case resulted in limiting Indian sovereignty. The Court s decision to extinguish any rig ht, other than possessory, was two fold. According to the United States Supreme Court, when a European demonstrated that the elements and criteria of the Doctrine of Discovery were met the aboriginal inhabitants were actually conquered; however, c onquest does not actually indicate that the Indians were defeated, as if the United States had won a war. The exercise of conquest gave political dominance to the United States ( Worcester v. Georgia 1832). In turn, t he outcome eroded the affected tribe s legal interest in their lands from fee simple to possessory.

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53 Secondly, the Court held that as the successor of European nations, the United States inherently held legal claim to land rights. Thus, the legal constructs of discovery and conquest gave the United States claim to land rights which extended across North America (Anderson & Parker, n.d.). The principles established a legal precedent in which Courts could not deny g ranting legal title s over lands conquered to the conqueror, severely impairing Native sovereignty. Despite diverse views of land ownership over Indian lands, Semple (1952) clearly point ed out that the United States Constitution, treaties, and agreements protect Indian possessory rights to land. The federal government has consistently respe cted possessory rights of Indian tribes to their aboriginal domains. The United States Constitution, treaties, and agreements protect Indian possessory rights whe n a tribe can demonstrate long and continued possession over the lands where they reside; they retain the right to be compensated for their domains T hat is, the federal government cannot take settled lands without proper compensation. Protection under the United States Constitution and other laws demonstrate that the Doctrine of Discovery has no t been proceeded upon by Congress or the United States Supreme Court, holding that conquest is not a valid reason for taking tribal lands without just compensation (Semple, 1952). Foundational Legal Principles in American Indian Law Foundational legal pri ncip les in American Indian law include: (a) the recognition of Indian tribes as sovereign governments, (b) federal supremacy in Indian affairs, (c) limited state power in Indian country, and (d) federal trust

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! 54 obligations to secure the territorial and sover eign interest of tribes (Getches et al., 2011). The first princip le describes a legal concept founded in European law and recognizes tribes as having sovereignty and a special relationship with the federal government, which recognizes tribal governments as self governing and distinct from state and local forms of authority. "Retained sovereignty" is clearly the pillar of the principle. A r eview of the legal concept demonstrates that the federal government is obligated to determine and provide certain bene fits to the tribes and its members as an exchange for ceded lands and diminished rights. Settlement Acts and treaties provide for certain "expressly retained tribal sovereign powers." Powers include rights over internal tribal matters, including exclusive jurisdiction over certain civil and criminal matters and exclusive authority to regulate hunting and fishing within Indian Territory. The first case to interpret "retained sovereignty" was Penobscot Nation v. Stilphen ( 1983 ) The case involved the Nation's authority to hold bingo games on its Reservation without state regulation. The Supreme Judicial Court of Main e decided that the activities we re not internal tribal matters, which subject ed the T ribe to state regulation. The second princip le federal supr emacy in Indian affairs is a statement of the relationship between the federal government and American Indian tribes and their members. Federal supremacy means that the U.S. Constitution is the "supreme law of the land" and that judges in every state must follow the Constitution, laws, and treatises of the federal government that are directly or indirectly within the

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55 governments control. Article 1, Section 8, of the United States Constitution, known as the Commerce Clause, recognizes tribes as being disti nct from states but expressly acknowledges that the United States government has the exclusive right to regulate commerce within Indian lands. The Supreme Court has described the Indian Commerce Clause as the foundational basis over Indian affairs, which m eans that the clause is the supreme law of the land. The third principle, limited state power in Indian country, is rooted in the United States Constitution. Because Indian Nations are recognized as foreign nations, and the Constitution vests the legislat ive branch with plenary power over Indian affairs, states have no authority over tribal governments unless they have express Congressional authorization. Indian tribes and their territories are sep a rate from states. They have all the elements of sovereignt y that are not inconsistent with their dependent status or expressly withdrawn by the Un it ed States Congress. Justice Marshall discussed this in Cherokee Nation v. Georgia (1832). In Cherokee the United States Supreme Court ruled that the Cherokee Nation was a sovereign nation and that the state of Georgia had no rights to enforce laws in its territory. T he fourth principle recognizes the legally enforceable trust obligation by the United States to tribes and their members. The United States has charged itself with moral obligations of the highest responsibility and trust toward Indian tribes ( Seminole Nation v. United States 1942). Chief Justice Marshall first discussed the obligation in Cherokee Nation v. Georgia (1831). Marshall held that Indian trib es

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56 were not foreign nations, and thus they resembled dependent nations, where the United States has a moral obligation of fiduciary trust toward tribes. The foundational legal principles were used as the basis to address the first two research question s of this thesis. 1. What is the legal basis of tribal sovereignty? 2. Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and its resources? Principle 1: Indian tribes as sovereign governments American Indian tr ibes have varying definitions. Each tribe is a distinct community [within a unique] political system. Due to treaties and other agreements and their relationship with the United States, each tribe is understood as being unique from the other; therefore, the term tribe does not have a standard definition. Wilkins and Stark (2011) describe d the varying definitions of American Indian tribes as either (1) ethnological or (2) political legal. The ethnological perspective might be used by an anthropologist an d is defined as a group of indigenous people connected by biology or blood, kinship, cultural and spiritual values, language, political authority, and territorial land bases, whereas the political legal perspective is used for federal recognition and adm inistrative purposes (Wilkins & Stark, 2011). Legal definitions are sometimes broad T herefore to some extent, they are open to interpretation. L egally defined statutes and regulations are designed ambiguously and are open for interpretation intentionall y. Because government staff and personnel are expected to be the experts of their field, the legislative branch of

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57 government allows for agency deference and interpretation of the intent of laws in the promulgation of such laws. Clearly, the more particula r the meaning of a law, the more it affects the outcome. Individual statutes and regulations involving Indian country and tribal organizations use different definitions of tribes, as do federal agencies that manage Indian affairs, such as the BIA. There are inconsistencies in the meaning of tribes among the legislative branch and agencies and offices within the United States Department of the Interior Office of Indian Affairs as well as regarding how they refer to tribes. For example, Congress defines Am erican Indian tribes as a federal ly recognized tribe, r ancheria, pueblo, band, nation, community, or group of Indians ; h owever, federal regulations, such as 25 C.F.R. Rights of Way Over Indian Lands, promulgated by the BIA, describe American Indian tribes as tribes and define them as a tribe, band, nation, community or group of pueblo of Indians. In 25 C.F.R. part 163, General Forestry, tribes are defined as an Indian tribe or trib e and as a ny Indian tribe, band, nation, rancheria, p ueblo o r other recognized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and shall mean, where appropriate, the recognized tribal government of s uch tribe's res ervation (emphasis added). Applying Wilkins and Starks (2011) examination of the varying meanings to an instance involving land use, the definition of tribe pursuant to 25 C.F.R. part 163 may very well have a different outcome than the other two. For example, unlike the

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58 BIA meaning and the meaning pursuant to 25 C.F.R. part 169, the meaning under 25 C.F.R. part 163 includes where appropriate, the recognized tribal government of such tribes reservation. Because the political legal def inition is more narrow, leaving less room for interpretation, its application would require that the tribe have a reservation to be considered a tribe, even if they are able to demonstrate that they are a group of indigenous people connected by biology or blood, kinship, cultural and spiritual values, language, political authority, and territorial land bases. The BIA refers to a tribe as a tribal organization that is federally recognized. Tribes are defined as an American Indian or Alaska Native (AI A N) tribal entity that is recognized as having a government to government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation, and is eligible for funding and services from the BI A (The Un it ed States Department of the Interior Indian Affairs Retrieved at http://www.bia.gov/FAQs/ ). Federally recognized tribes are perceived as possessing certain inherent rights of self government and are entitled to receive certain federal benefit s, services, and protections due to their special relationship with the United States. 45 Tribes are recognized as having a government to government relationship with the United States with responsibilities, powers, and obligations attached to the designatio n (See Cherokee Nation v. Georgia [ 1831 ] and Worcester v. Georgia [ 1832 ] ). 45 Federally recognized tribes are historically defined through treaties, acts of Congress, presidential executive orders or other federal administrative actions o r federal court decisions (United States Department of the Interior Indian Affairs. Retrieved at http://www.bia.gov/FAQs/ ).

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59 Long (2008) assert ed that the degree to which American Indians have authority over their lands extends to their earliest dealings with European nations and the founding of the Uni ted States. European countries settling North America in the 1600s viewed American Indians as independent, sovereign nations, and therefore entered into treaties with them as they would any other foreign nation. According to Cohen (2012), Indian tribes wer e regarded by both European nations and by the United States Congress and Supreme Court as being distinct, independent political communities, retaining inherent rights 46 In Cherokee Nation v.State of Georgia (1831), the Supreme Court held that the Cour t did not have jurisdiction over the case because a foreign nation could not sue a state in federal court. The issue was a jurisdictional dispute between the Cherokee Nation and the State of Georgia. The Cherokee Nation was seeking an injunction to restra in the State from executing certain laws within the Cherokee Nation. The Courts ruling s tated that the Cherokee Nation was recognized as a distinct political society, but that it was equivalent to the ward of its guardian. The decision was that the tribe was a foreign entity on its face, but different circumstances were applied. Although the Supreme Court dismissed the case based on jurisdiction, it determined that the federal government should acknowledge that tribes retain distinct, independent political communities having sovereignty over their members and land (Anderson & Parker, n.d.). 46 Cherokee Nation v. State of Georgia (1831)

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60 The Court used this approach one year later in Worcester v Georgia (1832). In Worchester the state of Georgia convicted a non Indian minister, who was invite d to the Cherokee Nation by its members, for residing within the boundaries of the Cherokee Nation without first procuring a state license or taking an oath to defend Georgias laws and Constitution. The minister challenged his conviction, basing the decis ion on a predicted statute. Chief Justice Marshall found that the Cherokee Nation was a distinct community, occupying its...territoryin which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the as sent of the Cherokees themselves or in conformity with treaties and with the acts of congress [and that] the whole intercourse between the United States and this nationis vested in the government of the United States (Long, 2008 p.5 ). The United Sta tes relied on treaties to conduct their formal relations with tribes until 1877 (Cohen, 2012). The federal government interprets treaties between itself and other nations, including Indian Nations, as the supreme law of the land ( Getches, 2011). The Unit ed States Supreme Court has interpreted treaties as a contract between two sovereign nations (Getches et al.,2011; Cohen, 2012) ; ho wever, the Discovery and Conquest Doctrines afforded Europeans the ability to presume an exclusive right to deal with and extinguish the Indians land titles. To preserve its monopoly over land transactions[offering, in exchange] military protection from encroachment and harassment by non Indians (Getches et al., 2011, p.3). Thus, the treaties with the Native Nations inhere ntly created a relationship of dependence of the Nations on the United States.

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61 Getches (2011) assert ed that historically, the primary purpose of the treaties was to obtain land from tribe s through negotiation rather than warfare. Usually, treaties express ly recognized tribes as sovereign and contained language that indicated that the federal government would protect the tribe. The United States used treaties to create a federally protected reservation for the tribe to respect tribal sovereignty and to pro tect their wellbeing (Getches, et al., 2011; L ong 2008). Treaties were entered into by and between tribes and the federal government, and a greements between American Indian tribes and the United States are a legal representation of land cessations in return for protection and unique benefits (United States Department of the Interior Indian Affairs n.d Retrieved at www.bia.gov ). The United States Supreme Court determined that treaties should not be construed as a grant of rights from them but rathe r as a grant of rights to them ( M enominee Tribe v. United States [ 1968 ] and Winters v. United States [ 1908 ] ). Cohen (2012) note d that as a consequence of a tribes relationship with the federal government, federal statutes limit tribal powers of self gov ernment by the terms of treaties with the federal government and by restraints of the relationship itself. Sovereignty does not arise from the Un it ed States government, congressional acts, executive orders, treaties or any other source outside the tribe. Powers that are lawfully vested in an American Indian tribe are not delegated powers granted by Congress, but rather inherent powers of limited sovereignty, which has never been extinguished.

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62 For example, in Winters v. United States ( 1908 ) the United S tates Supreme Court held that while not expressly stated, the Treaty of 1855 between the United States and the Yakima Indian Tribe protected the Indians rights to fishing hunting and other privileges. The Court recognized that the treaty was not a gran t of rights from them but a grant of rights to them. The United States Supreme Court developed three rules that are known as the canons of treaty construction that are meant to govern the interpretation of treaties made between tribal governments and the United States (Long, 2008). 1. Ambiguities in treaties must be resolved in favor of the Indians; 2. Treaties must be interpreted as Indians would have understood them at the time the treaty was signed; and 3. Treaties must be construed liberally in favor of the Indians. According to Long (2008), the cannons of construction are derived from the disadvantage labored under by tribes in making treaties and agreem ents with the Executive Branch (p.24). The concept of tribal sovereignty provides broad and gene ral powers to a tribal government, but such powers are subject to limitations imposed by the federal government ( Lone Wolf v. Hitchcock 1903). In Lone Wolf, The United State s Supreme Court held that Congress had the authority to void treaty obligations be cause it had an inherent plenary power. Justice Edward White noted that the authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one. Lone

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63 Wolf upheld the d ecision in Cherokee determining Indian tribes [as] wards of the nationcommunities dependent on the United States. Modern federal Indian law diverges from such extreme ideology and expression. Tribes have renewe d power since the 1970s because of Indian political action by Native American leadership to restore their sovereignty and self determination. Federal programs have been designed to administer self determination programs, including mineral and energy development, land use and zoning, education, and the establishment of tribal business codes (Zaferatos, 2003). For example, DEMD offers a hands on approach to tribes and i ndividual Indian mineral owners in leasing their resources. DEMD provides assistance to tribes and Indian mineral owners by proactive ly marketing energy and mineral resources. As a division of the United States Department of the Interior Indian Affairs, DEMD serves as a technical representative for tribes at industrial trade shows and industry forums where tribes can interact directly w ith prospective industry partners and provid es tribally authorized technical presentations detailing the geology, geophysics, engineering, and resource potential of the Indian lands to potential partners. DEMD also provides tribal organizations with assis tance in business code development, planning for resource development including establishing traditional land use planning practices and a regulatory framework for land use and mineral

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64 development. 47 Tribes are now implementing their jurisdictional power over the reservation through tribal courts, zoning ordinances, taxation bureaus, environmental control, business and health regulation, and fisheries and water manage ment codes (Getches, et al. 2011 ). 48 American law upholds agreements between the United States and Native Americans, recognizing that tribal governments are legally entitled to enforce their treaty rights; any violation of a treaty is a violation of federal law (Long, 2008). If the tribes have not ceded tribal rights in agreements approved b y Congress, or Congress does not extinguish them, the rights will continue to exist in perpetuity (Getches, et al., 2011). For example, in the United States v. State of Washington (1976), several American Indian tribes in the s tate of Washington brought a claim against the s tate for infringing on treaty rights that reserv e the right to fish to the tribes. The United States Supreme Court held that the mere passage of time has not eroded, and cannot erode the rights guaranteed by treaties. United States Co nstitution. The Commerce Clause, also known as the Indian Commerce Clause, is the basis for laws regulating commerce, trade and sales between the federal government and tribal Nations. Article 1, Section 8 of the United States Constitution recognizes trib al governments as sovereign nations that have a unique relationship with the federal government. The provision reads: The 47 See the United States Department of the Interior Indian Affairs for further discussio n. ( http://www.bia.gov/WhoWeAre/AS IA/IEED/DEMD/). 48 See the Tribal Court Clearinghouse for a detailed discussion of current cases, statutes, and other Indian country subject matter resources involving tribal law and policy in Indian country today ( http:// www.tribal institute.org/ ).

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65 Congress shall have the power toregulate commerce with foreign nations, and among several states and with Indian tribes. Regarding American Indian tribes, Article 1, Section 8 of the Constitution is two fold. First, the provision establishes that the United States Congress has the exclusive right to engage with Indians and its affairs S econdly, tribes are recognized as being distinct entities, separate from or unique in regards to foreign nations and states, able to regulate commerce with foreign nations, and among several states and with Indian tribes. Tribal sovereignty. Self governance is fundamental to American Indian law. Cohe n (2012) describe d tribal powers of self governance as recognized by the Constitution, legislation, treaties, judicial decisions, and administrative practice. Pevar (1983) noted that Indian tribes had been sovereign nations before the Europeans arrived on this continentand they continue to exercise the powers of a sovereign government (p.81). Sovereign status does not arise from the Constitution or case law but rather as [a] consequence of their historical status as independent nations (Pevar, 1983, p. 82). In United States v. Wheeler (1920) the U.S. Supreme Court described tribal sovereignty as inherent powers of limited sovereignty, which have never been extinguished. 49 49 Contemporary policy is supportive of tribal self governance and independence. For example, in 2000, President Clinton stated in an executive order that Indian tribes exercise inherent sovereign powers over their members and t erritoryThe United States recognizes the right of Indian tribes to self government and supports tribal sovereignty and self determination. In a dditio n, President Obama signed the United Nations Declaration on the Rights of Indigenous Peoples (INDRIP) in 2010 pledging support for indigenous people around the world and recognizing their right to political and cultural autonomy (Pevar, 1983).

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66 Demonstrating its recognition of tribal sovereignty, citing Worchester v Georgi a (1832), in U.S. v. Mazurie (1975), the United States Supreme Court stated that [tribal governments] are entities which possess a certain degree of independent authority over matters affecting internal social relations of tribal life. In Mazurie, the Co urt determined that the tribe had the power to regulate liquor transactions in Indian country, even over non Indians on fee lands, and confirmed Congress constitutional authority to delegate power to tribes and affirm inherent tribal power. Justice Rehnqu ist concluded that the f ederal authority is adequate even though the lands were held by non Indians, and even though the persons regulated were non Indians (Cohen, 2012, p.252). 50 In an affirmation of inherent authority over lands within the exterior bou ndary of their reservation, the Supreme Court determined that the tribes have a right to regulate non Indians on non Indian fee land within their jurisdiction when the non Indian fee land threatens or has some distinct effect on the political integrity, e conomic security, or health and welfare of the tribe. The Court also upheld the right of tribes to regulate and tax non Indians on non Indian land when the non 50 See further: Brendale v. Confederated Tribes (1989), where the local authorities were trying to exercise jurisdic tion over trust lands T he court held that the county was preempted from exercising zoning authority over non fee lands because the county s interests in regulating the areas were minimal, whereas the benefit of the tribe was substantial (Federal law prohi bits zoning and enforcement of codes and ordinances of states and municipalities from applying to restricted Indian property ; however, in the case of fee lands within the exterior boundaries of a reservation, local zoning codes and ordinances would apply to the fee lands, and tribal laws would apply to restricted and trust lands).

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67 Indian enters into a consensual relationship with the tribe ( Montana v. United States 1981). The Court first recognized the problem of checkerboarding 51 in Indian country in the United States Supreme Court case Seymour v. Superintendent (1962). In Seymour a 1906 statute transferred a large portion of the Colville Reservation from tribal ownershi p to non Indian ownership. The Court determined that the transfer did not preclude the Colville Reservation from regulating the lands because pursuant to the legal definition of Indian country, the land remained within Indian country and therefore under the jurisdiction of the T ribe. In Montana v. the United States (1981), the Court affirmed the right of tribes to regulate non Indians on non Indian fee land located within the exterior boundaries of the reservation. The Court held that the Tribe should ha ve jurisdiction when the non Indian fee land threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe. The Court also upheld the right of tribes to regulate non Indians on non Indian land when t he non Indian enters into a consensual relationship with tribe, determining that the non Indian may be subject to taxation, regulation, or other means of authority. Under Montana, federal courts have upheld tribal authority over zoning and land use regula tions on lands within the exterior boundaries of the reservation as 51 Checkerboarding refers to a situation in which land ownership is intermingled between private, tribal, and Indian landowners, resulting in a checkerboarding pattern. Checker boarding creates jurisdictional challenges over lands within the exterior boundaries of a reservation particularly claims to tax, regulate, or perform other activities with in reservation borders (Indian Land Tenure Foundation, n.d. Retrieved at https://ww w.iltf.org/land issues/checkerboarding ).

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68 well as the rights of the tribal government to impose regulations on non Indians on non Indian lands within their reserv e for the purpose of protecting public health and safety. In support of Montana the Court enjoined the construction and operation of cement and asphalt operations on non Indian lands, owned by the defendants, within the reservation where the tribe claimed that an ordinance imposing a moratorium on new industrial uses on the Rancheria preempts the Countys zoning code and authority. The Court upheld the t ribes assertion stating that [the] operation of the plant(s) would threaten or [cause] injury to the land, water, and air, as well as the health and welfare of the Indi ans of the Rancheria ( Ponoleville Indian Community v. Mendocino County 1988). Lower courts have approved measures extending tribal building and health and safety codes to non Indians on fee land (Royster, 1991). As mentioned c ourts have not remained co nsistent. One year before Worchester the United States Supreme Court held in Cherokee Nation v. State of Georgia (1831) that while acknowledging tribes retain distinct, independent political communities having sovereignty over members and lands, the rel ationship between the tribal organizations, their members and the federal government is analogous to being a ward to his guardian. Energy development and Principle 1: tribal sovereignty. Energy development projects in Indian country are subject to fede ral regulations involving environmental

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69 and cultural resource reviews, which do not apply to fee lands ; 52 however, t here are examples of tribes that have developed the management of their energy resources. Some tribes have developed their own land and envi ronmental offices, and in many instances, have assumed responsibility for performing their own environmental audits and assessments. 53 The available literature generally demonstrates that tribes gain an economic benefit from internally managing their natur al resources. For example, the Salish Kootenai Confederated Tribes of the Flathead Reservation in Montana took over more than 100 federal programs, including forest management. As a result, the tribesearn $2.04 for every dollar they spend on timber manag ement while the neighboring Lolo National Forest, managed by the federal government received only $1.10 for every dollar it spends (Regan, p.14 ). The Tribe has developed their own human resources departments by hiring tribal members to manage their natur al resources and ensuring that developers meet the standards adopted by the tribe as well as federal regulations. This provides opportunities for the Tribe to maintain the management of natural resource programs that are usually dependent on those of the f ederal government (Government Innovators Network, n.d. Retrieved at https://www.innovations.harvard.edu/trust resource management ). 52 The National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. This includes making decisions on permit applications adopting federal land management actions, and constructing highways and other publicly owned facilities (see United States Environmental Protection Agency [ EPA ] ). 53 See the Navajo Nation, Three Affiliated Tribes, and the Crow Reservation as examples.

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70 Notably tribes have validated their sovereignty through policy as well as through the development and implementation of s hort and long term planning mechanisms that support tribal energy policy. Advanced expertise in energy and land use allows tribes to fully take advantage of their sovereign status and to ensure that their obligation to protect the health, safety and welfa re of the public is met. A 2011 analysis of the Doctrine of Retained Inherent Sovereignty along with a review of statutes codified in the United States Code and regulations under Title 25 of the United States Code of Federal Regulations, found that a new regulatory landscape provides opportunities for mineral and energy development on tribal lands. The paper concluded that the result was increased sovereignty over Indian lands and natural resources (Hall et al., 2011). Hall et al. (2011 ) assert ed that control of access to the development of natural resources on Indian lands has shifted to what is in the best interest of the tribes as mineral owner s lessor s, and resource developers. The impetus for the changes in recent so vereignty status is due to the shifting balance between federal control and tribal control outlined in treaties, cessations, land exchanges and conservation regulations and the oscillating balance between federal control and tribal control. In support of Hall et al. (2011), Slade (2010) found that the environment for development of Indian energy resources is more favorable than in the past. Principle 2: federal supremacy in Indian affairs. The doctrine of plenary power states that the fe deral government has complete authority over Indian tribes, including internal Indian affairs United States v. Laura (2004) established that [the]

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71 Court has traditionally identified the Indian Commerce Clauseand the Treaty Clauseas sources of that [ple nary] power. Based upon the United States Constitution, Congress has the principal authority to carry out obligations and to execute the powers derived from the treaties, meaning Congress has unlimited or absolute powers over Indian affairs to abrogate o r protect Native rights. Only Congress can divest an Indian Reservation of its land and diminish its boundaries; once a block of land is set aside for an Indian Reservation and regardless of what occurs with the title of the indivi dual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise ( Solemn v. Bartlett 1984). The concept of tribal sovereignty powers is subject to limitations imposed by the federal government. 54 Con gress has the unlimited right to pass legislation governing Indian tribes and their members, even where the legislation conflicts with Indian treaties (LaLonde, 2014). According to Cohen (2012) Congress may protect or abrogate rights established by treaty or other agreement without an explicit grant of authority because the Constitution does not provide a basis for federal Indian legislation. The legal basis for such authority is based on pre constitutional powers, which are inherent to a federal governm ent (Cohen, 2012, p. 3 90; Long, 2008, p. 8). Courts have interpreted the Constitution as a plenary grant of power of authority to enact legislation that restricts and in turn relaxes those restrictions on sovereign authority 54 See Lone Wolf v. Hitch c ock (1903) where the United States Supreme Court ruled that as a result of plenary power Congressional actions can abrogate or protect treaty obligations.

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72 (Long, 2008 ). The Supr eme Court has held that Congress has plenary power to regulate Indian affairs, and therefore the courts may not order C ongress to undertake any particular action on behalf of a tribe or Indians (Long, 2008, p.34; Cohen, 2012). 55 Energy development and Principle 2: federal supremacy. Federal supremacy gives the United States, specifically Congress, full authority over Indian affairs. Although uncommon, Congress can divest a tribes land and its resources and take away any right not already granted ; therefore, tribal organizations are vulnerable. Principle 3: limited state power in Indian country. Because the Constitution vested the Legislative Branch with plenary power over Indian affairs, states have no authority over tribal governments unless ex pressly authorized by Congress. While federally recognized tribes generally are not subordinate to states, they can have a government to government relationship with these other sovereigns, as well ( United Sates Department of the Interior Indian Affairs, n.d. Retrieved at www.bia.gov ). Federally recognized tribes can regulate their lands outside of state control. When developing minerals in Indian country, developers may tend to avoid Indian lands due to the jurisdictional issues and added e conomic burden (Regan, 2011). Slade (n.d. p.14 ) described mineral development on Indian lands as a dizzying array of regulation, constraints, and taxing and permitting noting that the economics of which are a burden on development Due to the way Indian lands are 55 See: The Cherokee Tobacco Case (1870) and Lone Wolf v Hitchcock (1903 ).

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73 regulated by the Federal government, some of the incentives that naturally arise in the private market do not exist in Indian country, particularly without incentives such as state renewal portfolio standards an d tax and financial incentives (de la Torre, et al 2011). In a ddition in most cases, tribal, state, and local authorities have the authority to tax non Indian development in Indian country. States can levy taxes on non Indian entities that develop energy within Indian country; however, the state does not have authority over Indian entities. When developing minerals, all three jurisdictions may impose mineral tax severance a s well as taxes on property interest and mineral receipts. This taxati on is referred to dual taxation, and such taxation on mineral development can lead to a heavy burden on mineral developers ; however, s tates and tribes may create an agreement of tax base sharing through a memorandum of agr eement. For example, Fort Berthold Reservation and North Dakota entered into a tax agreement that allows the T rib e and the state to share tax revenues in exchange for the tribe allowing the state to ap ply its tax policy to oil development on the reservation. Prior to the agreement there was a duel taxing regime. As of January of 2016, the sta tes oil production and extraction taxes were 10 percent for oil prices under $90/ barrel (b) and 11 percent for oil prices over $90/b. The state and tribe each get 50 percent of the revenues collected from the tax (Oil and Gas Tax Agreement Between the Three Affiliated Tribes and the State of North Dakota, 2013. Retrieved at

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74 https://www.nd.gov/tax/data/upf iles/media/oilgastaxagreement.pdf?2016110711525 ; Port, 2015 Retrieved at https://www.sayanythingblog.com/entry/oil tax agreement/ ). Case law covering taxing issues shows that courts usually favor tribal taxing authority over non Indians and someti mes support state taxing authority (Lynne, n.d.). 56 Courts have held that tribal taxation authority over non Indians arises from a consensual relationship subjecting non Indians to tribal power (Lynne, n.d., p 14). For example, in Montana v. United States (1981) the United States Supreme Court held that the state had jurisdiction over non Indians and Indians on fee lands, and the tribe had jurisdiction over non Indians and Indians on tribal lands ; h owever, under the Montana rule through zoning or other means the tribe may regulate the activities of nonmembers who have a contractual relationship with the tribe or its members through commercial contracts, leases, or other agreements. Except when designated by the Secreta ry of the Interior, federal laws prohibit the application of zoning and regulatory ordinances or codes of states and municipalities from applying to restricted Indian property (Boydan, 1976). In a ddition under the Montana rule, the tribe may hold jur isdiction over fee lands within the borders of the reservation if the conduct of non Indians or Indians affects the political integrity, economic security or the health and welfare of the tribe (Miller, n.d.). I n Big Horn County Electrical Coop erative v. Adams (1999), the Court determined that any land holding an easement is equivalent to non Indian fee lands, 56 See: Washington v. Confederated Tribes (1980), where the court established the tribe could tax non Indian cigarette purchases made by non Indians on the R eservation.

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75 making the land exempt from taxation. In Big Horn the tribe implemented a 3 percent valorum tax upon Big Horn for electricity produced a lmost exclusively for the Crow R eservation. Per agreement, Big Horn was restricted from passing the tax onto the Crow customers ; h owever, because the electrical transmission line was located on an easement encumbered by Big Horn, the court determined t hat the land is equivalent to non Indian fee lands, making the land exempt from tribal taxation. In addition to state taxation, limits of tribal sovereignty can be found in federal environmental regulations. S ome regulations are clear while others are ambiguous For example, in the absence of tribal environmental standards and enforcement, the EPA retains jurisdiction over environmental issues such as water, air, oil spills, and Superfund sites (Slade, n.d.). For instance the National Environmental Protection Act (NEPA), Clean Water Act (CWA), Spill Prevention Control and Countermeasures Act (SPCA), American Indian Regions Freedom Act (AIRFA) a s well as other acts have been established to prot ect the environment and cultural resources, traditional sites, water and air, and to protect against spills (See 42 U.S .C. 4321; 33 U.S.C. 1376 1521; 41 C.F.R. ; 42 U.S.C. 1996, respectively). Energy development and Principle 3: limited state po wer in Indian country. Regarding surface mining on Indian lands, the Office of Surface Mining (OSM) has jurisdiction. T he office has authority over surface mining and reclamation procedures. Conversely, for oil and gas developmen t, there are conflicting opinions regarding federal and state regulatory jurisdiction over non Indian development on

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76 tribal and allotted lands and non Indian development on fee lands within the exterior border of th e reservation. I n his survey of Constitutional law, Douglas (1979) found that while the Organic Act vests the BLM with the jurisdiction to regulate public lands, they have non Congressional authority over development on Indian lands, either explicitly or implicitly. He also found that due to precedent, the conflict is overlooked (Board of Regent s of the University of Oklahoma ). For example, under 18 U.S.C. 1151(b) the BLM has the authority to extend power of spacing and pooling to s tate oil and gas conservation commissions (Slade, n.d.). States also have jurisdictional powers over Indian country. State regulatory agencies may, under some circumstances, issue drilling permits to operators developing minerals in Indian country and w ithin state jurisdiction; however, this is not common E xamples of state jurisdiction are found under Public Law 280, codified in 18 U.S.C. 1162, 1360, and 1321 1326. Under this federal law, states may assume jurisdiction over reservati ons. Public Law 280 significantly changed the legal authority of tribal governments. Under this law, mandatory states assume extensive criminal and civil jurisdiction over tribal lands within the affected states (Tribal Court Clearinghouse, n.d. Retriev ed at http://www.tribal institute.org/ ) This law allows state jurisdiction over trust lands, including some regulatory authority over oil and gas development ; h owever, the Supreme Court decided that Public Law 280 did not encompass state regulatory jurisdiction over air and water pollution on Indian lands ( See: Bryan v. Itasca 1976).

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77 Conversely, in Curry v. Corporate Comn of Oklahoma (1979) the court determined that the state oil and gas conse rvation commission had jurisdiction over tribal lands, giving them the authority to make the operator of an oil and gas well, which was spewing oil onto adjacent lands, to shut in the well ( Board of Regents of the University of Oklahoma, n.p., 1979). A tri bal government may assume the functions of the EPA, if they so choose. The tribe would apply regulatory authority over issues relating to the environment, air, and water which the EPA would ordinarily administer (Freedman et al., 2014). Public L aw 280 authorizes some states to exercise criminal and civil jurisdiction over tribal land and its resources. In addition to state jurisdiction over tribal lands, the courts have found that Public Law 280 gives local authorities jurisdiction over f ee lands within the exterior bo rders of the reservation. For example, as discussed the Montana r ule gives Public Law 280 states criminal and civil jurisdiction over Indian reservations to the state in which they are located. Mandatory states includ e Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin, and optional states include Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington. In optional states, the state chooses to assume some jurisdiction but only over tribes who consent (Goldberg, n.d.). Some courts have given r egulatory authority over fee lands to the local jurisdiction ; 57 h owever, in Montana the Court established two exceptions to the 57 See: James D. Knight et al. v. The Shoshone and Arapahoe Indian Tribes of th e Wind River Reservation, Wyoming (1981) and Brendale v. Confederated Tribes and Bands of Yakima Indian Nation (1989).

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78 Montana r ule One exception allows th e tribe to regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual agreements with the tribe or its members through commercial dealings, contracts, leases or other arrangements (Anderson, 2011). Because Pub lic Land Law 280 authorizes nontribal adjudication of contractual disputes, it can convey a commitment to non Indians that the tribe will not change the terms of the contract. That is, generally, non Indian investors perceive state courts a s be ing more stable and impartial, which improves outside investment (Anderson et al., 2011). Principle 4: federal trust doctrine. The fourth principle recognizes the existence of a legally enforceable trust obligation by the United States to tribes and the ir members. The BIA describes the federal Indian trust responsibility as a legal obligation under which the United States has charged itself with moral obligations of the highest responsibility and trust toward Indian tribes ( Seminole Nation v. United States 1942). This obligation was first discussed by Chief Justice John Marshall in Cherokee Nation v. Georgia (1831). Over the years, the trust doctrine has been at the center of numerous other Supreme Court cases, thus making it one of the most importan t principles in federal Indian law. The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages. In several cases discussing the trust responsibility, the Supreme Court has used language suggesting

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79 that it entails legal duties, moral obligations, and the fulfillment of understandings and expectations that have arisen over the entire course of the relationship between the United States and the federally recognized tribes. The United States federal government is responsible for ensuring that rights retained through treaties and other agreements are preserved The BIA is charged with implementing legislation that Congress imposes that affects Indian affairs. The BIAs role is to provide services to recognized tribes and tribal members, to promote econo mic opportunity and to carry out the federal trust responsibly (United States Department of the Interior Indian Affairs, n.d. Retrieved at www.bia.gov ). While Congress holds legislative power to regulate Indian affairs, it is supposed to include the best interest of the tribes in its regulatory decisions. In doing so, Congress delegates authority to the DOI, the BIA, and associated agencies and offices to enforce the fiduciary obligation of the United States to protect treaty rights, lands and assets (LaLond e n.d.). Under the Indian trust doctrine, the Un it ed States has the obligation to protect the Indian in their dealings with the Un it ed States and non Indians, with that obligation being more than a contract or market place obligati on and rather a full fiduciary responsibility (Rodgers, n.d., p. 97). While in many cases the courts of the United States have enforced fiduciary responsibility, common law experience shows that in some cases, the interpretation of the respo nsibility has given deference to the non Indian developer rather than the i ndividual Indian or tribe. Federal Indian law should give deference to the Indian. For example, in United States v. Navajo Nation

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80 (2003) Navajo I, the United States held that the Navajo Nation failed to state a claim of breach of trust when the Secretary of the Interior intervened in the negotiation of mining royalties by insisting on lower royalties because the Indian Mineral Leasing Act (IMLA) of 1938 did not have a liabili ty imposing provision (Rodgers, n.d., pg. 101). Energy development and Principle 4: federal trust doctrine. In accordance with the federal trust doctrine, the federal government has a legally enforceable obligation to protect tribes and their lands. The BIA is charged with assisting tribes in creating economic opportunities. The federal trust doctrine applies to Indian energy development in that absent tribal regulations, tribes largely defer to federal regulations to guide oil and gas development on the ir lands. The federal government is required to ensure that leases are accurate, negotiations are in the best interest of the tribe, and tribal and individual Indian lands and resources are protected.

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81 CHAPTER RESULTS: LEGAL AUDIT AND CASE STUDY Introduction The case study examines : (1) tribal sovereignty in general, (2) tribal sovereignty specifically (3) and how tribal government and states are currently regulating energy development on lands within their respective jurisdictions The thesis dr ew from constitutional law, federal Indian law, and environmental law to explain tribal sovereignty over land and resources, and tribal law specific to the Three Affiliated Tribes of the Fort Berthold Res ervation was also investigated to provide an overview of the application of tribal sovereignty over land and resources. Th is chapter begins with a discussion of the Three Affiliated Tribes, their geographic location, and the extent of energy development occurring within their jurisdiction. The chapter then discusses the legal basis for federal Indian and tribal law as it relates to the T ribes. Second, federal Indian law is discussed. Th e section focuses on federal Indian law specific to the Three Affili ated Tribes as well as Indian law that appl ies to all tribal organizations in general To fully understand the extent of tribal sovereignty the Three Affiliated Tribes enabling laws, including the Tribal Constitution, bylaws, and all pertinent legislation that was accessible was studied Tribal governance is then discussed. Th is section focuses on the powers of the governing body, including Tribal committees and Tribal agencies involved in energy development and land use. Lastly, an additional analysis of other tribal

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82 governments and state governments that engage in energy development and the regulat ion of such activities on the lands within their borders and under their jurisdictions is presented Research Questions Because the basis of the investigat ion was reliant on foundational law, the questions were initially broad and bec a me narrower. The research questions have several associated variables. Each variable describes its level of applicably to federal Indian law generally or to the Three Affiliated Tribes specifically. Research Questions Research Question Variable Applicability 1 What is the legal basis of tribal sovereignty? 1 The United States Constitution. Tribes generally. 2 Federal legislation. Tribes generally. 3 Tribal Constitution. Tribe specific. 4 Tribal Bylaws. Tribe specific. 5 Federal case law. Tribes generally. 6 Tribal case law. Tribes generally/specific. 2 Under federal and tribal law, to what extent do tribal governments have sovereignty over their land and its resources? 1 The United States Constitution. Tribes generally. 2 Federal legislation. Tribes generally. 3 Treaties and other agreements. Tribe specific. 4 Tribal Constitution. Tribe specific. 5 Tribal Bylaws. Tribe specific. 6 Federal case law. Tribes generally. 7 Tribal case law. Tribes generally/specific. 3 To what extent do tribal organizations use their sovereign status to enact legislation to regulate and guide the development of energy resources within their reserves ? 1 Committees Tribe specific. 2 Legislation Tribe specific. 3 Policy Tribe specific. 4 Energy/Environmental Dept. Tribe specific. 5 Guidance documents. Tribe specific. 6 Land use and energy planning practices. Tribe specific. 4 To what extent do tribal 1 City planning. Tribe specific.

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83 Research Questions Research Question Variable Applicability organizations engage in traditional or contemporary land use planning practices? 2 Comprehensive planning. Tribe specific. 3 Land use and spatial planning. Tribe specific. 4 Strategic planning. Tribe specific. 5 Performance planning. Tribe specific. 6 Indigenous planning. Tribe specific. 7 Infrastructure planning. Tribe specific. Table 2: Research Questions Sample T he Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota was selected for the study. The Fort Laramie Treaty of September 17, 1851 reserved the Fort Berthold Reservation for the Arik a ra, Mandan, and Hitdatsa Tribes. 57 The Three Affiliated Tribes are federally recognized and consist of 10,249 members. The Fort Berthold Indian Reservation is located in western North Dakota and is home to the Mandan, Hidatsa, and Arikara tribes. The Reservatio n is approximately 422,830 acres and comprises parts of Dunn, McKenzie, McLean, Mercer, Mountrail and Ward Countie s. Lake Sakakawea covers nearly 155,0 0 0 acres of the reservation land and has approximately 600 miles of shoreline. The lake is the twelfth l argest lake in the United States. 57 The Tribes later united to form the Three Affiliated Tribes.

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84 Figure 4: Fort Berthold Reservation Map 58 The reservation is located fifteen miles from the center of the Williston Basin and the Antelope, Plaza, and Wabek fields. The Bakken formation is located in the Williston Basin, which has emerged as one of the most important sources of new oil production in the United States. The total area within the boundari es of the reservation is nearly one million acres. Roughly 50 percent are trust lands. Individually allotted lands total 378,604 and 79,233 are tribal owned (Fort Berthold 58 Source: United States Department of the Interior Division of Energy and Mineral Development, 2016.

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85 Library, n.d. Retrieved at http://lib.fortbertholdcc.edu/ ). The Act of June 1, 1919 (336 Stat. 455) opened unallotted land to non Indians, which created fee lands. Fort Berthold Reservation Land Allocation 59 Land Status Acreage Allotted Land 378,064 Tribal Land 79,233 Government Owned Land 3,280 Private Owned Land (Fee Lands) 526,833 TOTAL ACREAGE60 988,000 Table 3: Fort Berthold Reservation Land Allocation The Fort Berthold Reservation is a huge component of American energy production. Fort Berthold oil production is so high that it would rank among the top ten oil producing states in the nation. Oil production on the Fort Berthold R eservation produces as much oil as the entire state of Kansas, wh ich is the tenth leading oil producing state in the country (Wood, 2014. Retriev ed at http://fuelfix.com/blog/2014/04/23/north dakota tribes oil output rivals us states/. ). 61 As of 2013, the Bakken was the source of more than ten percent of all American oil production. By April of 2014, the Bakken production in North Dakota and Montana exceeded 1 million barrels of oil per day. Regarding the volume of oil produced, North Dakota is second behind Texas nationally (Wood, 2014. Retrieved at http://fuelfix.com/blog/2014/04/23/north dakota tribes oil output rivals us states/. ). 59 North Dakota Portal for North Dakota State Government, n.d. Retrieved at http://www.ndstudies.org/resources/IndianStudies/threeaffiliated/demographics_land .html 60 Includes approximately 152,300 acres that resulted from the creation of Lake Sakakawea. 61 The Fort Berthold Reservation is comprised of 988,000 acres, whereas the s tate of Kansas comprises 52,361,523.

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! 86 Figure 5 : Fort Berthold Oil and Gas Wells 62 63 While only one tenth of the state's oil wells are located on the reservation, Fort Berthold is responsible for over 30 percent of the state's production. If the Reservation were its own state, it would be the seventh la rgest oil producer in the country (Wood, 2014. Retrieved at http://fuelfix.com/blog/2014/04/23/north dakota tribes oil output rivals us states/. ). !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!! 62 Source: United States Department of the Interior Division of Energy and Mineral Development, 2016. 63 Note that most of the area without oil and natural gas activity is isolated to the lake area.

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87 In April 2014, t he Fort Berthold Reservation increased oil production to 270,000 barrels per day. In 2014 alo ne, the Tribe earned $184 million in oil revenue (The University of Colorado at Boulder Intermountain Oil and Gas BMP Project. Retrieved at http://www.oilandgasbmps.org/laws/federal_law.php ). A September 2015 report showed that in July of 2015 oil product ion in North Dakota dropped by 10,000 barrels a day; however, the Reservation saw an increase of 11,000 barrels per day and two drilling rigs were added. The BIA report ed that there are 1,700 oil and gas leases on the Reservation and that $80 million has been paid in bonus payments alone. The BIA expects that over 1,000 wells will be drilled in the next ten years and that the environmental effects on the reservation will be substantial (United States Department of the Interior Indian Affairs, n.d. Retrie ved at http ://www.bia.gov/WhoWeAre/RegionalOffices/GreatPlains/WeAre/Agencies/FortBe rthold/index.htm ). As a result, regulation enforcement relat ed to energy development is vital. Section 1: Legal Basis for Federal Indian Law and Tribal Law The focus of section one is United Sates Constitutional law. This area of law is the foundation of the United States and addresses fundamental relationships within American society. Constitutional law consists mainly of relations amongst and between states and the federal government and tribal governments. The Supreme Court is instrumental in the interpretation and implementation of the C onstitution (Cornell University Law School, Legal Information Institute, n.d. Retrieved at https://www.law.cornell.edu/we x/constitutional_law ).

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! 88 United States Constitution The United States Constitution recognizes tribal governments as sovereign nation s : "The Congress shall have the power toregulate commerce with foreign nations, and among the several states and within India n tribes" (Article 1, Section 8, Untied States Constitution). The Commerce Clause, also known as the Indian Commerce Clause is the basis for laws regulating commerce, trade, and sales between the federal government and tribal n ations. Article 1, Section 8 of the United States Constitution recognizes tribal governments as sovereign nations that hav e a unique relationship with the federal government. Article 1, Section 8 is two fold. The provision establishes that the United States Congress has the exclusiv e right to engage in Indian affairs. Second, the section identifies tribes as distinct entities, separate from or unique in regards to foreign nations and states : [Congress will] regulate commerce with foreign nations, and among several states and with I ndian tribes. On its face, the Commerce Clause allow s tribes to retain a boriginal rights and sovereignty; however, limiting rights to those not granted away by Congress (Cohen, 2012). Section 2: Federal Indian Law This section focuses on federal law, which is the body of law created by the United States government. The section discusses a collection of treaties and agreements regarding the Fort Berthold Reservation. These laws are not general in nature, as they relate specifically to the Three Affiliat ed Tribes of the Fort Berthold Reservation. Alternatively, United States statutes found under the United States

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! 89 Code relat ed to Indian law and energy development on Indian and federal lands are general in natur e and apply to all tribes. The section conclud es by providing applicable case law s Treaties Several agreements that were made between 1851 and 1886, mostly identifying reservation boundaries, later land cessations, and conduct, protection, and benefits to be provided by the United St ates federal gov ernment to the t ribes, are discussed. Fort Berthold Reservation, Three Affiliated Tribes Treaties and Agreements Date Agreement Signatories 1825 Treaty with the Arikara Tribe Arikara 9/17/1851 Fort Laramie Treaty of 1851 Cheyenne, Sioux, Arapaho, Crow, Assiniboine, Mandan, Arikara, Hidatsa 7/27/1866 The Agreement of at Fort Berthold, Dakota Territory Arikara 7/27/1866 The Agreement at Fort Berthold, Dakota Territory (Addendum) Mandan, Gros Vetres 1870 Presidential Executive Order Three Affiliated Tribes 5/15/1886 Act of Congress, ratified in 1891 Three Affiliated Tribes Table 4: Three Affiliated Tribes Treaties and Agreements Federal Statutes The following federal statutes are related to energy and mineral development in Indian country. The statues apply to American Indian tribes in general and thus are not specific to the Fort Berthold Reservation. The time periods range from the 1920s to the mid 2000s.

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! 90 Federal Statutes Applicable to Indian Country Legislation Citation Description Indian Mineral Leasing Act of 1938 25 U.S.C. ¤ 396 Provides for mineral leasing on Indian lands. Indian Mineral Development Act of 1982 25 U.S.C. ¤ 2102 Provides that tribes may enter into energy development agreements with DOI approval. Energy Policy Act of 2005 25 U.S.C. ¤ 3501 To assist Indian tribes in the development of energy resources and further self determination. Mining and Minerals Policy Act of 1970 30 U.S.C. ¤ 21 Encouraged private development of minerals while protecting environmental impacts. Mineral Leasing Act of 1920 30 U.S.C. ¤ 181 Established the authority of the United States Department of Interior (DOI) to oversee oil and gas opera tions on federal lands. Mineral Leasing Act for Acquired Lands of 1947 30 U.S.C. ¤ 351 Extends the provisions of the Mineral Leasing Act and the authority of the Secretary of the Interior over oil and gas operations to federal "acquired lands." Federal Lands Policy and Management Act of 1976 43 U.S.C. ¤ 1701 Defined the Bureau of Land Management responsibilities for overseeing oil and gas development on federal lands. Table 5: Federal Statutes Applicable to Indian Country Supplemental Statutes The following statutes are important in Indian country insofar as their applicability within reservation boundaries. The following statutes provide federal jurisdiction over certain environmental issues in Indian country. Supplemental Federal Statutes Requiring Compliance Legislation Citation Description Archeological Resources Protection Act 16 U.S.C. ¤ 470 Meant to protect resources on public and Indian lands. Archaeological and Historic Preservation Act 16 U.S.C. ¤ 469a 1 Requires federal agencies to provide for the preservation of

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91 Supplemental Federal Statutes Requiring Compliance Legislation Citation Description of 1974 historical and archeological data. Federal Migratory Bird Treaty Act 16 U.S.C. 712 Implements protection of migratory birds. Antiquities Act of 1906 16 U.S.C. 1431 Provides general protection for archeological sites and cultural sites on public lands. Endangered Species Act 16 U.S.C. Provides for the conservation of species that are endangered or threatened throughout all or a significant part of their range. Native American Graves Protection and Repatriation Act 25 U.S.C. 3001 Addresses rights of Native Americans to protect lineal descendants with respect to their treatment, repatriation, and disposition of Native American human remains. Clean Water Act 33 U.S.C. 1376 1521 Established regulations covering pollutant discharges into waters of the United States. Gives EPA authority to implement pollution control programs. Spill Prevention Control and Countermeasures Act for Oil Spills 41 C.F.R. Mea nt to prevent, prepare for, and respond to oil spills that occur in and around waters of the United States. Helps facilities to prevent discharge into surrounding waters. Emergency Planning and Community Right -toKnow Act 42 U.S.C. 116 A law to help communities plan for chemical emergencies. Requires industry reports on the storage, use and releases of hazardous substances to federal, state, and local governments. Safe Drinking Water Act 42 U.S.C. 300 Intended to ensure safe drinking water for th e public. The SWDA does not apply to bottled water. American Indian Religious Freedom Act 42 U.S.C. 1996 Creates the protection and preservation of traditional religious rights and cultural practices of American Indians and Alaska Natives. National Environmental 42 U.C.C. An environmental law that promotes

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! 92 Supplemental Federal Statutes Requiring Compliance Legislation Citation Description Policy Act 4321 the enhancement of the environment and requires federal review for development occurring on federal lands. Resource Conservation and Recovery Act 42 U.S.C. ¤ 6901 6992 Principal la w in the United States governing the disposal of solid waste and hazardous waste. Clean Air Act 42 U.S.C. ¤ 7401 767 Designed to control air pollution standards on a national level. Table 6: Supplemental Federal Statutes Requiring Compliance Federal Indian Legislation This section reviews federal legislation that affect s Indian country in general. Several federal statutes give authority to guide energy development on Indian lands to the federal government. Throughout the years some federal authority has shifted to tribes as a part of the self determination era. Federal Indian Legislation Legislation Citation Description Indian Relocation Act of 1956 PL 959 Encouraged American Indians to leave reservations to acquire vocational skills and assimilate into the general population. Homestead Act of 1862 PL 37 64 Encouraged western migration by providing settlers 160 acres of public land in exchange for a small filing fee and five years of continued residence before receiving fee title. Dawes Act of 1887 PL 49 119 Known as the General Allotment Act authorizing the President of the U.S. to survey American Indian tribal land and divide it into allotments for indiv idual Indians Indian Reorganization Act of 1934 PL 73 383 Major goal of the act was to reverse the traditional goal of assimilation of American Indians into society. Public Law 280 PL 83 280 A transfer of legal authority (jurisdiction) from the federa l

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93 Federal Indian Legislation Legislation Citation Description government to the state government which changed the division of legal authority amongst tribes, states and the federal government. Indian Self Determination and Education Assistance Act of 1975 PL 93 638 Encouraged certain agencies of the United States to enter into contracts with and make grants directly to federally recognized tribes. Johnson-OMalley Act PL 102 477 Meant to subsidize education, medical treatment, and other services provided by states to American Indians, especially those living on reservations. Tribal Law and Order Act of 2010 PL 111 211 Expands the punitive abilities of tribal courts across the nation. Indian Land Claims Settlements PL 114 38 Ended aboriginal title in the United States. Executive Order 13175, 1998 Consultation and Coordination with Indian Tribes Requires federal departments and agencies to consult with tribes when considering policies that would impact tribal communities. Merriam Report A report commissioned by the Brookings Institute on the problems with Indian administration. Table 7 : Federal Indian Legislation

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! 94 Important Definitions Set Forth by Fe deral Indian Energy Legislation The following table outlines federal energy legislation found in the U.S.C. and the C.F.R. The legislation is general in application and applies to most tribal organizations. Federal Indian Energy Legislation of General Application Legislation Citation(s) Description State civil jurisdiction in actions to which Indians are parties 18 U.S.C. ¤ 1360 Indian country means: (1) all land within the limits of any Indian reservation, under the jurisdiction of the United Sates Government, notwithstanding the issuance of any patent, and including rights of way running through the reservation, (2) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, an d (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same. Unless otherwise indicated, the term "Indian country" is used instead of "Indian reservation" for consistency. Rights of way for all purposes across any Indian lands 25 U.S.C. ¤ 323 (a) G ives certain states jurisdiction over offenses committed by or against Indians in the areas of Indian country, (b) provides the section does not authorize the "alienation, encumbrance, or t axation of any real or personal property, including water rights, belonging to any Indian or any Indian tribes, band or community that is held in trust by the United States F urther, the provision does not authorize the "regulation of the

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! 95 Federal Indian Energy Legislation of General Application Legislation Citation(s) Description use of such prop erty in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto Leases of allotted lands for mining purposes 25 U.S.C. ¤ 396 Authorizes the State, with concurrence from the tribe, to have jurisdiction over criminal activity within their boundaries, does not include the "alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribes, band or community that is held i n trust by the United States F urther, the provision does not authorize the "regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto Leasing of tribal lands for mineral development 25 U.S.C. ¤ 396 Identifies s tates that shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in Indian countrydoes not include the "alienation, encumbrance, or taxa tion of any real or personal property, including water rights, belonging to any Indian or any Indian tribes, band or community that is held in trust by the United States F urther, the provision does not authorize the "regulation of the use of such propert y in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto Leases of restricted lands 25 U.S.C. ¤ 415 "The Secretary of the Interior be, and he is empowered to grant

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96 Federal Indian Energy Legislation of General Application Legislation Citation(s) Description rights of way for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands, or nations, or any lands now or hereafter owned, subject to restrictions against alienation, by individual Indians or Indian tribes, communities, bands, or nations, including the lands belonging to the Pueblo Indians in New Mexico, and any other lands heretofore or hereafter acquired or set aside for the use and b enefit of the Indians Leases of restricted lands 25 U.S.C. 415 All lands allotted to Indians in severalty, except allotments made to members of the Five Civilized Tribes and Osage Indians in Oklahoma, may by said allottee be leased for mining purpose s for any term of years as may be deemed advisable by the Secretary of the Interior Nothing in the regulations in this part is intended to prevent Indian tribes from exercising their lawful governmental authority to regulate the conduct of persons, busin esses, operations or mining within their territorial jurisdiction. State civil jurisdiction in actions to which Indians are parties 18 U.S.C. 1360 Nothing in the regulations in this part is intended to prevent Indian tribes from exercising their lawful governmental authority to regulate the conduct of persons, businesses, operations or mining within their territorial jurisdiction.

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97 Federal Indian Energy Legislation of General Application Legislation Citation(s) Description Rights of way for all purposes across any Indian lands 25 U.S.C. 323 Any restricted landsmay be lease d by the In dian owners with the approval of the Secretary of the Interior fordevelopment or utilization of natural resources in connection with the operations under such leases. All leases so granted shall not be for a term greater than 25 years Prior to approva l of any lease or extension of an existing lease pursuant to this section, the Secretary of the Interior shall first satisfy himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighbori ng lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arisin g on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject. Leases of allotted lands for mining purposes 25 U.S.C. 396 Any restricted landsmay be lease d by the Indian owners with the approval of the Secretary of the Interior fordevelopment or utilization of natural resources in connection with the operations under such leases. All leases so granted shall not be for a term greater than 25 years.. Prior to approval of any lease or extension of an e xisting lease pursuant to this section, the Secretary of the Interior shall first satisfy himself that adequate consideration has been

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! 98 Federal Indian Energy Legislation of General Application Legislation Citation(s) Description given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effe ct on the environment of the uses to which the leased lands will be subject." Table 8: Federal Indian Legislation of General Application Section 3: Tribal Law This section presents tribal constitutions and bylaws. During this phase of data collection emerging themes relat ed to land and minerals were identified. Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation Approved the 29 th of June, 1936, the "Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation established the vested and protected rights relating to self rule, liberty, justice, right to access and preservation of natural resources, education and good citizenship, and to promote welfare of the tribes. The Constitution identified the jurisdictio nal boundaries of the Three Affiliated Tribes of the Fort Berthold Reservation, stating that the Reservation "shall extend to Indian Trust Land and Tribal lands within the confines of the Fort Berthold Reservation, as defined in the treaty of September 17, 1851."

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99 Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation Recommended for approval on June 3, 1936, the Bylaws of the Three Affiliated Tribes of the Fort Berthold Indian Reservation outline the Duties of the Officers, Salaries, Meetings of the Council, and Adoption of the Constitution and Bylaws. Legislation Title 15, Chapter 15, titled Environmental, Solid and Hazard Waste Management and Remediation of the Three Affiliated Tribes of the Fort Berthold Reservations Law an d Order Code addresses oil and gas development : Pursuant the authority vested to the Tribal Council under the Constitution and bylaws of the Mandan, Hidatsa, and Arikara Nationthe Tribes shall have full authority over enforcement of [such] Act and may de legate authority to Tribal Solid Waste Management Utilities (SWMU) [and] the Tribal Environmental Protection Agency (TEPA) (Three Affiliated Tribes Title 15 Environmental Code, 2011 ) Retrieved at http://www.mhanation.com/main2/elected_officials/elected_of ficials_environm ental%20codes/FINAL%20DRAFT%20HAZARD%20WASTE%20CODE%20 WITH%20TRIBAL%20PSC 10 20 11.pdf ). The Act applies to all oil and gas activity and other types of mineral extraction activities occurring within the Fort Berthold Reservation. Title 15, Chapter 15 : Environmental, Solid and Hazardous Waste Management and Remediation (Three Affiliated Tribes Title 15 Environmental Code, 2011. Retrieved from http://www.mhanation.com/main2/elected_officials/elected_officials_environm ental%20codes/FINAL% 20DRAFT%20HAZARD%20WASTE%20CODE%20 WITH%20TRIBAL%20PSC 10 20 11.pdf ).

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! 100 Jurisdiction under section 1.11. The Act applies to: 1. Any person or company that has entered into a consensual agreement with the Tribes or its members; or 2. Any non member where the condu ct of the non member threaten s or has some direct effect on the political integrity, economic security, health or welfare of the Tribes. Federal authority under section 15.1.12. The Law and Order Code allows for the federal regulation cited in the code to be incorporated when there is a gap in Tribal law, regulations, or codes relat ed to the Chapter. Where federal law, codes or regulations are part of the Chapter, they may not supersede any of the provisions when modified. The Three Affiliated Tribes re serve the right to implement more stringent codes and regulations than those cited or adopted in the Code. Three Affiliated Tribes Title 15 Environmental Code Chapter 15 Solid and Hazard Waste Management and Remediation Section Title Provision 1 General Provisions 1.01 Short Title TAT Waste Management Act (TAT WMA) 1.02 The Tribes' Inherent Sovereign Power The power to regulate solid waste on the reservation is pursuant to the authority vested in the Tribal Council under the Constitution and By laws of the Tribes 1.03 Purpose To establish a disposal and storage system to protect health,

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! 101 Three Affiliated Tribes Title 15 Environmental Code Chapter 15 Solid and Hazard Waste Management and Remediation Section Title Provision safety and welfare 1.041 The Tribal Council has the authority to pass resolutions and Acts to protect human welfare and the natural environment 1.06 Authority Article V, Section 8 of the Constriction gives TAT the a uthority to regulate the use of property, wildlife, land, air, and other natural resources of the Nation 1.07 Immunity No waiver of sovereign immunity 1.08 Scope Applies to any commercial or other entity that does b u s i ness with the reservation, including oil and gas development 1.09 Jurisdiction The TAT has civil jurisdiction over any person who has entered into a consensual agreement with the tribe or individual Indian a nd all persons and parties, members and non members 2 Definitions Hazardous Wastes Solid waste or combination of solid wastes that pose a present or future threat that meet specification s in 50 Part 261 Pursuant to Section 3001 of the Sol i d Waste Disposal Act (42 USC 6901) Hazardous Substance Any substance pursuant to section 311 of the Clean Water Act, any element pursuant to section 102 of CERCLA, any hazardous waste pursuant to section 3001 of the Solid Waste Disposal Act (SWDA), (42 USC 6901), toxic pollutant listed under section 112 of the Clean Air Act (CAA) (42 USC Section 7412) or

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! 102 Three Affiliated Tribes Title 15 Environmental Code Chapter 15 Solid and Hazard Waste Management and Remediation Section Title Provision any substance or mixture that meets the US EPA section 7 of the Toxic Substances Control Act (15 USC Section 2601) Industrial Waste included petroleum, refined, oil and gas exploration and extraction Mine S carred L ands Lands where ores and minerals (including oil and gas) have been processed Oil Product Any commodity made from oil or gas and includes refined crude oil, crude, tops, topped crude, processed crude petroleum, residue from crude Petroleum Contaminated Soils Any soils containing an oil product, petroleum product, produced oil crude or other oily wastes Produced Oil Means and includes crude petroleum and other hydrocarbons and gas. Reserve Pit An excavated area used to contain drill cuttings accumulated during oil and gas drilling operations Sludge Means any solid, semi sol i d or liquid wasteincluding oil. Solid Waste solid, liquid, semi s o lid or contained gaseous material resulting from industrial, commercial, mining, oil and gas development and production Tribal Response Program Tribal EPA, responsible for the investigation and remediation of a release or threat of a release of hazardous substances Used Oil Any oil that has been refined from crude oil

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103 Three Affiliated Tribes Title 15 Environmental Code Chapter 15 Solid and Hazard Waste Management and Remediation Section Title Provision 3 Duties and Responsibilities 3.01 TAT Natural Resources Committee Responsible for implementation of the act and is designated to hear appeals of unresolved compliance and enforcement actions, hear appeals on permit decision, monitor and approve the Solid Waste Management Plan, and establish all required fees pursuant to the Act 3.02 TAT Sold Waste Utility Director Director of the Solid Waste Management Utility (TSWMU) 3.03 TAT Environmental Division Director Director of the TAT Environmental Division and is designated and responsible for ensuring compliance with and enforcement of the Act 3.05 Public Information The Solid Waste Director may implement a public information program to provide information to other governments, private industries, tribal members, and the general public information concerning environ mental protection 3.06 Coordination and Cooperation with other Agencies Allows for coordination with federal, state, county, and other tribal agencies and with persons in the solid waste industry to receive technical assistance, assist or receive assistance, organize and operate enforcement activities and request assistance 4 Tribal Integrated Solid Waste Management Plan (ISWMP) A plan that addresses solid waste management, reuse, recycling, and disposal of solid waste including, but not limited to, minimal standards set forth in the Act, 40 CFR part 258

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104 Three Affiliated Tribes Title 15 Environmental Code Chapter 15 Solid and Hazard Waste Management and Remediation Section Title Provision 6 Prohibited Practices and Activities Outlines prohibited practices within the reservation. 7 Hazardous Wastes Addresses disposal, treatment and transportation requirements. 8 Special and Industrial Wastes A specific type of solid waste that is designated as Special or Industrial Waste and is subject to the requirements of the Act or other special storage, management and disposal requireme nts 8.02.14 Oil and Gas Exploration and Production Wastes Waste from crude oil and natural gas exploration or production must obtain and comply with a Permit by Rule pursuant to Section 13 of the Act 8.02.15 Petroleum Contaminated Soils Designated as Special Wastes. Any facility that accepts such wastes is subject to a Permit by Rule 8.02.16 Hydrogen Sulfide Releases from Oil and G as D rilling or P roduction Upon request by the landowner the TAT ED shall inspect and monitor the well site on the surface owners land for the presence of hydrogen sulfide 10 Solid Waste Storage Owner, agent, or occupant of establishment is responsible for the safe and sanitary storage of all solid waste accumulated at the premises until it is removed 11 Solid Waste Collection Outlines requirements for solid waste collection, transfer and transportation 13 Solid Waste Permits Require d Permits from the TAT ED are required for: hazardous waste treatment and storage, solid waste treatment, disposal, collection or transfer, commercial collection and / or transportation of solid or hazardous waste

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105 Three Affiliated Tribes Title 15 Environmental Code Chapter 15 Solid and Hazard Waste Management and Remediation Section Title Provision 14 Permit Application Any person who proposes to continue or become an operator of a waste management or disposal facility or commercial collector or transporters of solid waste must obtain a permit f rom the ED Director 16 Permits and Fees The Three Affiliated Tribes may impose fees and charges for permits and other services to implement the requirements of the Act 17 Compliance and Enforcement The ED Director or his designee is designated as the civil enforcement agent and is responsible for fulfilling the requirements of the Act 18 Penalties Any person who violates the provision of the Act may be subject to civil fines and penalties imposed by the ED Director 19 Tribal Response and Remedial Action Program (TAT TRP) The Program is part of the TAT ED and may investigate, assess, respond, and remediate or require the responsible party to do so Table 9: Three Affiliated Tribes Chapter 15 Environmental Code Three Affiliated Tribes Laws and Policy of General Application During the investigation of tribal ordinances and resolutions, fifteen resolutions were found that were related to oil and gas development and the environment on the Fort Berthold Reservation. The resolutions are consistent with the rules and provisions of the United States Constitution and The Three Affiliated

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! 106 Tribes of the Fort Berthold Reservation Constitution and Bylaws. The r esolutions and ordinances have been adopted to encourage energy d evelopment in a way t hat manage s resources and reduce s the potential impact of development (MHA Energy, n.d. Retrieved at http://www.mhanation.com/main2/departments/mha_energy_division/mhaenergydivi sion_resolutions.html ). Fort Berthold Reservation, Three Affiliated Tribes Tribal Laws or Policy of General Application Date Subject Policy or Law General Description Type Number Title 9/2010 Detailed rules and procedures oil and gas operators must comply with Directive 12 087 VJB "MHA Nation Energy Department Fort Berthold Indian Reservation Conditions of Approval (COA) Additional p rovisions included as per Missouri River, Badlands and Sacred Sites Protection Act" 7/14/11 Sold and hazardous waste disposal requirements Resolution 11 075 VJB Interim Regulation Governing the Disposal of Waste and Other Hazardous Substances Associated with the Exploration or Production of Oil and Gas on the Fort Berthold Reservation 8/9/12 Use of best management practices, drill multiple wells from one well pad when feasible, well sites mile setback f ro m Missouri Resolution 12 087 VJB The Missouri River, Badlands, and S acr ed Sites Act

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! 107 Fort Berthold Reservation, Three Affiliated Tribes Tribal Laws or Policy of General Application Date Subject Policy or Law General Description Type Number Title River, Little Missouri River, sacred sites or villages. Tribal Energy Office responsible for carrying out the mandates of the Resolution. Requires that all federal agencies and companies carry out th e mandates of the Resolution. 12/18/12 Amends the previous Resolution to allow the Tribal Energy Office to grant a variance from the adopted mile setback in an effort to "harmonize environmental needs with oil and gas development Resolution 12 139 VJB Amending the Missouri River and Badlands Protection Act to Allow Variances upon Recommendation by the Tribal Energy Office 9/27/12 Requires a mile setback from all well pads, well heads, waste pits, reserve pits, storage tanks, occupied residence, tribal building, school, hospital, or structures where people are known to congregate, Resolution 12 103 VJB The Oil and Gas Production Structures Setback Act

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108 Fort Berthold Reservation, Three Affiliated Tribes Tribal Laws or Policy of General Application Date Subject Policy or Law General Description Type Number Title unless property owners are compensated. Tribal En ergy Office responsible for the mandates 4/16/13 Mandates the remediation of solid waste created by oil and gas development. All oil and gas companies are mandated to develop a remediation plan and the Tribal Environmental Department is responsible for developing regulations governing the remediation process of oil and gas drilling wastes produced on the reservation. Resolution 13 049 VJB A Directive for all Oil and Gas Drilling Companies on the Fort Berthold Indian Reservation to develop remediation plans for oil and gas drilling waste and to direct the Tribal Environmental Department to develop standards for the regulation of the remediation of oil and gas drilling wastes. 5/9/13 States BLM has not adequately enforced flaring regulations under NTL 4a. Resolution 13 070 VJB Regulation of Flaring of Gas, Imposition of Tax, Payment of Royalties, and Other Purposes.

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! 109 Fort Berthold Reservation, Three Affiliated Tribes Tribal Laws or Policy of General Application Date Subject Policy or Law General Description Type Number Title Allows tribe s to collect royalties and taxes on flared gas 6 /26/13 "Compliance Notice" If operator doesn't comply with notice, the Energy Department shall issue a notice of non compliance and a penalty will be assessed Amended Resolution 13 071 VJB "RE: Compliance Requirement for Resolution No. 11 022 VJB and Reso lution No. 13 013 VJB entitled Requirement for High Definition Video Surveillance on Tribal Well Sites on the Fort Berthold Indian Reservation'" 8/13/13 To balance laws that protect property and allow for oil and gas development, oil and gas compan ies ma y negotiate with property owner s to place facilities within the previously adopted mile setback in return for compensation Resolution 13 126 VJB Amending Oil and Gas Production Structure Setback Act Unknown Defines hazardous substances, pollutants, and contaminants and outlines spill requirements Ordinance Ch.15.1 Section 8 MHA Energy Accidental Release or Spill Requirements

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! 110 Fort Berthold Reservation, Three Affiliated Tribes Tribal Laws or Policy of General Application Date Subject Policy or Law General Description Type Number Title 3/27/14 Mandates the BIA and BLM mandate that all previously approved and future Applications to Drill stipulate that open pits will not be used ; "Instead, an industry standard Closed Loop Drilling System' for managing drill fluids and offsite drill cuttings will be used'" Resolution 14 054 VJB Requiring Closed Loop Drilling Systems within the Reservation Boundaries for All Appro ved and Future Wells and APD's for the Management of Drilling Fluids and Disposal of Drill Cuttings at and Approved and Licensed Disposal Site. 3/27/14 The Tribe has consistently found unreported spills that require cleanup at a great expense to the Tribe. Tribe intends to establish its own processes and procedures for managing traffic on tribal lands, pursuant to inherent sovereignty. Resolution 14 055 VJB Requiring All Commercial Vehicles Transporting Produced Fluids, Except for Fresh Water, on or a cross Tribal Lands Must Have a GPS Unit Installed w ith an Active Monitoring and Tracking System. 5/28/14 Changes the terms and conditions of the original Resolution, No. 14 071 VJB Resolution 14 089 VJB "An Amended Resolution Entitled: Approval of the Revised MHA Nation Pipeline Right of Way Terms and Conditions, and Section D on Pipeline Right of Way

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! 111 Fort Berthold Reservation, Three Affiliated Tribes Tribal Laws or Policy of General Application Date Subject Policy or Law General Description Type Number Title Fees'" 12/2011 Ordinance Title 15 Solid and Hazard Waste Management and Remediation Code Table 1 0: Fort Berthold Reservation, Tribal Energy Laws of General Application Section 4: Tribal Governance Powers of the Governing Body Tribal Business Council. The Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation, adopted June 29, 1936, designated that the governing body of the Three Affiliated Tribes would be known as the Tribal Business Council (United States Department of the Interior Constitution an d Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ). Membership. The Council includes ten members elected from separate communities within the N ation's boundarie s as defined in the 1851 treaty. The members include, a Chairman, Vice Chairman, and Treasurer who are elected from within the Council (United States Department of the Interior Constitution an d Bylaws of the Three Affiliated Tribes of the Fort Berthold Re servation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ).

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112 Committees Formed Pursuant to the Tribal Constitution and Bylaws Natural Resources Committee (NRC) The NRC is designated to hear appeals of unresolved compliance and e nforcement actions, hear appeals of permit decisions, review and modify the Integrated Solid Waste Management Plan, and establish all fees required pursuant to the Act, including permit filing and issuance fees (United States Department of the Interior Con stitution an d Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ). Tribal Agencies Tribal Environmental Protection Agency (TEPA). The Tribal EPA progra m is respo nsible for the investigation and remediation of a release or threat of a release of a hazardous substance, pollutant or contaminant, includ ing petroleum products and mineral materials as provided for in the Act (MHA Energy, n.d. Retrieved at http://www.mhanation.com/main2/departments/mha_energy_division/mhaenergydivi sion_resolutions.html ). Tribal Solid Waste Management Utility (SWMU). In accordance with Section 3: Duties and Responsibilities, of Chapter 15, Title 15, the designated authority o f the Tribes is authorized to implement the following designated provisions of the Act:

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113 1. Provide or cause the provision of adequate solid waste handling services including collection, transportation, processing and transfer within the Reservation; 2. Provide or cause the provision of off reservation disposal of solid waste under a plan approved by the Tribal Council; 3. Prepare and implement Tribal polices for solid waste management, reuse and recycling; 4. Develop, prepare, implement and update, as needed, an In tegrated Solid Waste Management Plan (ISWMP) for the Tribe as described under Section 4 of the Act, conduct studies and investigations regarding new or improved methods of solid waste handling, treatment and disposal, review and recommend selection and de velopment of an appropriate site to the NRC for the management of final disposal, conduct community outreach and education on the requirement s and goals of this Act, and recommend to the NRC such contracts as deemed necessary for the accomplishment of esse ntial solid waste services for the planning, design and construction of solid waste projects. Powers of the Governing Body Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation. Article V, Section 2. The powers of the Council to ex ercise the provisions in the Constitution are subject to any limitations imposed by the Statutes

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114 of the United States or the Constitution of the Un it ed States and to all express restrictions upon such powers contained in the Constitution and Bylaws (Unit ed States Department of the Interior Constitution an d Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ). Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation Article III, Section 4. The Constitution grants the powers to change the Reservations boundaries, subject to popular vote (United States Department of the Interior Constitution an d Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ). Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation. Article VI, Section 3. With th e approval of the Secretary of the Interior, the Tribal Council shall have the power to: (a) present and prosecute claims a gainst the Three Affiliated Trib es and to assist members of the tribes against any claims or grievances before any court or agency of government, (b) to promulgate legislation governing law enforcement on the Reservation, set up tribal courts for the trial and punishment of offenders against such legislation, where cases are not within the complete jurisdiction of the United States, (c) promulgate ordinances relat ed to domestic relations, and (d) remove or exclude any nonmembers of the tribe, except authorized government officials and other persons currently occupying la nds within the reserve lawfully, govern the conditions under which n onmembers

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115 may come upon the land and conduct dealings with members within the Reservation and to levy fees and taxes upon (United States Department of the Interior Constitution an d Bylaws of the Three Affiliated Tribes of the Fort Berthold Reservation Nort h Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ). Constitution of the Three Affiliated Tribes of the Fort Berthold Reservation. Article VI, Section 5(j). The Tribal Business Council shall have the power to protect and preserve the p roperty, wildlife, and natural resources of the tribes; to regulate hunting and fishing on tribal lands; and to cultivate and preserve native arts, crafts, cultural ceremonials and traditions (United States Department of the Interior Constitution an d Byla ws of the Three Affiliated Tribes of the Fort Berthold Reservation North Dakota, 1936. Retrieved at http://thorpe.ou.edu/IRA/ftbertcons.html ). Section 5: Tribal Energy Division and Guidance Fort Berthold Tribal Energy Division. The MHA Energy Divisions mission is to manage all natural resources through professional mentorship, responsible development, communication, and education; while committing to environmental awareness and cultural values that ensure sovereignty for generations to come and its vi sion is that the Division will promote accountability and responsibility to the members of the MHA Nation and environment through transparency and professional development while adhering to traditional values in order to protect and safeguard natural reso urces (MHA Energy, n.d. Retrieved at

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! 116 http://www.mhanation.com/main2/departments/mha_energy_division/mhaenergydivi sion_resolutions.html ). Three Affiliated Tribes (TAT) Environmental Director (ED). The TAT ED is charged with ensuring compliance and enforcem ent of the A ct and is authorized pursuant to the Act to: 1. Conduct community outreach and education about the Act, solicit public input where appropriate, and issue a public notice of hearing for permit applications; 2. Issue solid and hazardous waste permits; 3. Ensure compliance with permits and orders; and 4. Conduct investigations and gather information necessary to implement the Act. (MHA Energy, n.d. Retrieved at http://www.mhanation.com/main2/departments/mha_energy_division/mhaenergydivi sion_resolutions.html ). MHA Nation Oil and Natural Gas Development Documents Three Affiliated Tribes Flaring Task Force Report and Recommendations. This is a 2014 report provid ing data and recommendations for natural gas flaring on the Fort Berthold Reservation (MHA Energy, 2014. Retrieved at http://www.mhanation.com/main2/departments/mha_energy_division/mha_energy_w ebsite/Flaring%20Task%20Force%20Recommendations%20Report.pdf).

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117 MHA Nation Energy Handbook. This is a handbook including the regulatory codes and regulations intended to guide development within the Fort Berthold Reservation (MHA Nation Division Regulatory Handbook, 2013. Retrieved at http://www.mhanation.com/main2/depart ments/mha_energy_division/mha_energy_w ebsite/MHA%20Nation%20Energy%20Division%20Regulatory%20Handbook.pdf ). MHA Energy Accidental Release or Spill Requirements. This document outlin es requirements a n operator must meet in the event of an accidental releas e or spill of a hazardous substance, pollution or contaminate into the air land water or groundwater that has the potential to threaten public health safety and welfare or the environment within the exterior boundaries of the reservation (MHA Energy De partment, n.d. Retrieved at http://www.mhanation.com/main2/departments/mha_energy_division/mha_energy_w ebsite/mha_energy_resolutions/Accidental%20Spill%20Release.pdf ). North Dakota Century Code Chapter 38 08 Control of Oil and Gas Resources. State regulations put into place to conserve natural resources by preventing waste and to provide operation to protect rights to minerals are provided in this chapter (North Dakota Century Code. Retrieved at http://www.mhanation.com/main2/departments/mha_ energy_division/mha_energy_w ebsite/North%20Dakota%20Administrative%20Code%20Chapter%2043 02 03%20 %20Tab%203.pdf).

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! 118 Chapter 43 02 03 "Oil and Gas Conservation." Regulations to foster, encourage, and promote the development, production, and utilization of natural resources of oil and gas which will prevent waste are provided in this chapter (North Dakota Century Code. Retrieved at http://www.mhanation.com/main2/departments/mha_energy_division/mha_energy_w ebsite/Control%20of%20Gas%20and%20Oil%20Resources%2 0Chapter%2038 8%20 Tab%202.pdf ). North Dakota Remedial Resource Manual. The Manual is a technical resource summarizing remediation techniques for oil and natural gas development and the process associated with selecting remediation options ( Energy and E n vironmental Research Center, 2016. Retrieved at https://www.ndoil.org/image/cache/BS Remediation_Resource_Manual 8 18 16.pdf) Comprehensive Planning MHA Nation Fort Berthold Comprehensive Regional Transportation Plan. The Comprehensive Regional Transportation Plan is currently being drafted. The plan focuses on long range transportation, highway safety, transit, bridge layout s ferry transportation, rail s pipeline s aviation, and electric power ( MHA Nation, n.d. Retrieved at http://fortbertholdp lan.org/topics/. ).

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119 Section 6: Supplemental Analysis Additional Tribal Organizations Regulating Oil and Natural Gas Development Ute Southern Ute. The Southern Ute Tribe is located near the New Mexico border in southwestern Colorado. Feral environmental and leasing legislation is the primary source of authority of oil and natural gas development in the Nation ; h owever, pursuant to Tribal Constitution, the Tribal Council has some authority over the management of the fluid mineral estate : The Department of Natural Resources is responsible for administering the natural resources of the Southern Ute Indian Reservation. The mission statement of the Southern Ute DNR requires the DNR to develop and manage resources for the benefit of the Tribe whil e promoting protection, conservation, preservation, and developmental enhancement of the Tribe s natural resource by using sound administrative, ecological, cultural, socioeconomic and educational methods for the benefit of present and future generations The Southern Ute Division of Wildlife Resource Management is responsible for managing, protecting, and enhancing the diverse fish and wildlife resources of the Southern Ute Indian Reservation. The agencys duties include developing Tribal wildlife manag ement programs and policies and working with the Federal and State agencies to manage threatened and endangered species. Under 1 103 the Southern Ute Division of Wildlife Resources Management is responsible for management of the Tribes wildlife, incl uding planning and implementing biological evaluations, habitat protection and enhancement activities, and the implementation of cooperative management agreements with owners of private property, states, and the federal government. Wildlife regulations are enforced by the Southern Ute Natural Resources Enforcement Division as laid out in 1 3 1 104 (The University of Colorado Intermountain Oil and Gas Best Management Project, n.d. Retrieved at http://www.oilandgasbmps.org /).

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120 Ute Mountain Ute. The Ute Mount ain Ute Tribe is located in southwest Colorado, southeast Utah, and northern New Mexico. The Ute Mountain Ute Constitution does not have express language governing oil or gas regulation. The Constitution does cover some general provisions for resource deve lopment, including jurisdiction and the powers of the Council (The University of Colorado Intermountain Oil and Gas Best Management Project n.d. Retrieved at http://www.oilandgasbmps.org / ). Blackfeet Tribe. The Blackfeet Tribe is located in northwest Montana and with 16,000 members, it is one of the largest tribes in the Un it ed States. The Blackfeet Tribes Constitution and Bylaws cover territory and the powers of the Council. Pursuant to their Constitution, the Council is required to exercise powers, subject to the power of the Un it ed States, to prevent the sale, disposition, or lease or encumbrance of tribal landswithout the consent of the tribe. The Council is further required to manage all oil leasesin accordance with the terms in of l aw chart er to be issued to the [Tribe] by the Secretary of Interior. The Tribal Law and Order Code has provisions for mineral rights as well zoning ordinances (The University of Colorado Intermountain Oil and Gas Best Management Project, n.d. Retrieved at http:// www.oilandgasbmps.org /). Chippewa Cree. The Chippewa Cree Tribe of the Rocky Boys Reservation is in north central Montana. Regulations pertaining to oil and natural gas within their Law and Order Code include royalty percentage negotiating, severance tax implementation, enforcement, and oil and gas activity mitigation (The University of

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! 121 Colorado Intermountain Oil and Gas Best Management Project, n.d. Retrieved at http://www.oilandgasbmps.org /). State Surface Oil and Natural Gas Regulatory Analysis The following analysis focused on the thirty two states who are engaged in oil and natural gas development. The analysis identifies which surface uses are being regulated under what jurisdiction. State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Reasonable accommodation Requires that oil and gas operation be conducted in a manner that accommodates surface owners and minimizes intrusion upon and damage to surface lands. This can be achieved by selecting alternative locations for wells, roads, pipelines, and production facilities or employing alternative means of operations, where such alternatives are technologically sound, economically practicable, and reasonably available to the operator. Colo rado http://www.oilandga sbmps.org/laws/colo rado_law.php Surface use Provide s for the protection of surface owners of land underlain with oil and natural gas reserves, while allowing for the necessary development Montana http://codes.lp .findla w.com/mtcode/82/1 0/5 Wyoming http://legisweb.state. wy.us/statutes/statut es.aspx?file=titles/Ti tle30/T30CH5AR4.h

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! 122 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source of these reserves. tm Utah http://www.rules.uta h.gov/publicat/code/ r649/r649 003.htm T38 Colorado http://arpanel.org/pol icy/reports/natural gas/model laws/view Colorado http://www.oilandga sbmps.org/laws/colo rado_law.php New Mexico http://arpanel.org/pol icy/reports/natural gas/model laws/view Oklahoma http://arpanel.org/pol icy/reports/natural gas/model laws/view Arkansas http://arpanel.org/pol icy/reports/natural gas/model laws/view North Dakota http://arpanel.org/pol icy/reports/natural gas/model laws/view South Dakota http://arpanel.org/pol icy/reports/natural gas/model laws/view Pennsylvania http://files.dep.state. pa.us/OilGas/BOGM /BOGMPortalFiles/P ublicResources/Plai

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! 123 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source nLanguageSummar yforCh78Regulation _February2014.pdf North Carolina http://www.ncrec.go v/pdfs/OilGasSumm aryOfLaw.pdf Financial assurance to surface owner Provides that a reasonable security must be provided if the surface owner is not a party to a lease to protect such owner from unreasonable crop losses or land damage an d to restore the condition of the land as nearly as is possible to its condition at the beginning of the lease and in accordance with the surface owner. Colorado http://arpanel.org/pol icy/reports/natural gas/model laws/view New Mexico http://arpanel.org/poli cy/reports/natural gas/model laws/view Wyoming http://arpanel.org/pol icy/reports/natural gas/model laws/view Damage compensation The surface owner is entitled to reasonable compensation for damages to growing crops, trees, shrubs, fences, roads, structures, improvements and livestock caused by the drilling of a new well as well as subsequent production operations. Alaska http://arpanel.org/pol icy/reports/natural gas/model laws/view Illinois http://arpanel.org/pol icy/reports/natural gas/model laws/view Kentucky http://arpanel.org/pol icy/reports/natural gas/model laws/view Montana North Dakota South Dakota http://arpanel.org/poli cy/reports/natural gas/model laws/view

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! 124 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source New Mexico http://arpanel.org/pol icy/reports/natural gas/model laws/view Tennessee West Virginia http://arpanel.org/pol icy/reports/natural gas/model laws/view Wyoming http://arpanel.org/poli cy/reports/natural gas/model laws/view Colorado http://www.oilandga sbmps.org/laws/colo rado_law.php Fluid storage Regulation of pits for all fluids. California http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Utah http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Colorado http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Wyoming http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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! 125 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source South Dakota http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Texas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Illinois http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Indiana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Kentucky http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf Tennessee http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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! 126 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Alabama http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Georgia http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx North Carolina http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Virginia http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx West Virginia http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Pennsylvania http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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! 127 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source New Mexico http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf Oklahoma http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf Louisiana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Arkansas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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! 128 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Mississippi http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf Michigan http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf South Carolina http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx New York http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf Nebraska http://www.rff.org/ce

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! 129 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Kansas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Ohio http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Montana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx http://www.mtrules.o rg/gateway/RuleNo. asp?RN=36%2E22 %2E1227 Freeboard requirements Requires berms or dike s and at least three feet of freeboard at all times between the surface of the water and the top of the banks, berms, or dikes of the pit or pond. Montana http://www.mtrules.o rg/gateway/RuleNo. asp?RN=36%2E22 %2E122 http://www.rff.org/ce nters/energy_and_cl im ate_economics/P ages/Shale_Maps.a spx Utah http://www.rff.org/ce

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! 130 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Colorado http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx New Mexico http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Nebraska http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Kansas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Oklahoma http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Arkansas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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131 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Louisiana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Mississippi http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Alabama http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Kentucky http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Indiana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx North Carolina http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx West Virginia http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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132 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Pennsylvania http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx New York http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Stormwater permitting requirements Requires stormwater discharge permit for all construction activities that disturb an acre or grater or that are part of a larger development plan, including construction of well pads, roads, pipelines, pumping stations, etc. Colorado http://www.worc.org/ userfiles/file/StateSt ormwaterRegs(1).pd f Montana http://arpanel.org/pol icy/reports/naturalgas/modellaws/view California http://www.searchan ddiscovery.com/doc uments/2012/40952 blake/ndx_blake.pdf New York http://www.worc.org/ userfiles/file/StateSt ormwaterRegs(1).pd f http://www.dec.ny.g ov/permits/6054.htm l North Dakota http://www.worc.org/ userfiles/file/StateSt

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! 133 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source ormwaterRegs(1).pd f Pennsylvania http://www.worc.org/ userfiles/file/StateSt ormwaterRegs(1).pd f Wyoming http://www.worc.org/ userfiles/file/StateSt ormwaterRegs(1).pd f Utah http://www.oilandga sbmps.org/laws/utah _law.php http://www.waterqua lity.utah.gov/UPDES /stormwater.htm New Mexico http://www.oilandga sbmps.org/laws/new _mexico_law.php Oklahoma http://www.deq.state .ok.us/WQDnew/stor mwater/msgp/msgp _okr05_fact_sheet_ 2011 08 05.pdf South Dakota http://denr.sd.gov/de s/sw/StormWateran dIndustry.aspx Alaska https://dec.alaska.go v/water/wnpspc/stor mwater/oilandgas.ht m Arkansas http://arpanel.org/pol icy/reports/natural gas/model laws/view Water replacement/ba seline testing Allows for recovery of damages if the domestic, livestock or Pennsylvania http://arpanel.org/pol icy/reports/natural gas/model

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134 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source irrigation water supply of any landowner within a certain distance of where geophysical or seismograph activities have been conducted oil and gas well site has been disrupted or diminished in quality or quantity that will ensure the delivery of that qualit y and quantity of water prior to the commencement of drilling operations. Evidence of injury may be established by showing that the drilling operations penetrated or disrupted an aquifer in such a manner as to diminish water quality or quantity within the radius covered by the law. laws/view North Dakota http://arpanel.org/pol icy/reports/naturalgas/modellaws/view Ohio http://ohioline.osu.e du/shfact/pdf/SOGD_ENV 1_13.pdf Colorado http://www.oilandga sbmps.org/laws/colo rado_law.php https://cogcc.state.c o.us/COGIS_Help/S ampleData.pdf North Carolina http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf Illinois http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf West Virginia http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf Wyoming http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf California http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe

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135 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source sting.pdf New York http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Louisiana http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf Pit liner requirements Regulates several types of pits with different specifications for each: reserve pits, completion pits, and mud pits. Texas http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf http://info.sos.state.t x.us/pls/pub/readtac $ext.TacPage?sl=T &app=9&p_di r=F&p _rloc=114730&p_tlo c=14995&p_ploc=1 &pg=2&p_tac=&ti=1 6&pt=&ch=3&rl=8 Georgia http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf Indiana http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf http://web.ead.anl.g ov/dwm/regs/state/in diana/index.cfm

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136 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Wyoming http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf Utah http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Colorado http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf http://www.oilandga sbmps.org/laws/colo rado_law.php New Mexico http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf North Dakota http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf South Dakota http://oklahomawate rsurvey.org/d1/wpcontent/uploads/201 4/05/BaselineWQTe sting.pdf Nebraska http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Kansas http://oklahomawate rsurvey.org/d1/wp content/uploads/201

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! 137 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source 4/05/BaselineWQTe sting.pdf Oklahoma http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Arkansas http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf Louisiana http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Mississippi http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Alabama http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Georgia http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Tennessee http://oklahomawate

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! 138 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Kentucky http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf http://www.rff.org/rff/ documents/RFF Rpt StateofStateRegs_R eport.pdf North Carolina http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf West Virginia http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf Pennsylvania http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4 /05/BaselineWQTe sting.pdf New York http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf

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! 139 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Montana http://oklahomawate rsurvey.org/d1/wp content/uploads/201 4/05/BaselineWQTe sting.pdf http://www.mtrules.o rg/gateway/RuleNo. asp?RN=36%2E22 %2E1227 http://www.oilandga sbmps.org/laws/mon tana_law.php Hydraulic fracturing Generally requires pre drilling and baseline surface water collection and a disclosure of liquid waste and fracking fluids. Als o allows for access to records, notice requirements, and safety well requirements. Texas http://oklahomawate rsurvey.org/d1/wp content/upl oads/201 4/05/BaselineWQTe sting.pdf Colorado http://www.alsglobal. com/en/Our Services/Life Sciences/Environme ntal/Capabilities/Nor th America http://www.oilandga sbmps.org/laws/colo rado_law.php North Dakota http://www.alsglobal. com/en/Our Services/Life Sciences/Environme ntal/Capabilities/Nor th America Ohio http://www.alsglobal. com/en/Our Services/Life Sciences/Environme ntal/Capabilities/Nor th America

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140 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source Pennsylvania http://www.alsglobal. com/en/Our Services/Life Sciences/Environme ntal/Capabilities/Nor th-America West Virginia http://www.alsglobal. com/en/OurServices/LifeSciences/Environme ntal/Capabilities/Nor th-America Wyoming http://www.alsglobal. com/en/OurServices/Life Sciences/Environme ntal/Capabilities/Nor th-America California http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Montana http://www.mtrules.o rg/gateway/RuleNo. asp?RN=36%2E22 %2E1106 Wyoming http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Utah http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx New Mexico http://www.rff.org/ce nters/energy_and_cl imate_economics/P

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141 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source ages/Shale_Maps.a spx Nebraska http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Kansas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Oklahoma http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx South Dakota http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Arkansas http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Louisiana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps. a spx Mississippi http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Alabama http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a

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142 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source spx Tennessee http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Georgia http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx South Carolina http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx North Carolina http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Indiana http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Illinois http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Michigan http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Ohio http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx

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143 State Surface Oil and Gas Regulatory Analysis Regulation Description Implementing Jurisdiction Source West Virginia http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx New York http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Pennsylvania http://www.rff.org/ce nters/energy_and_cl imate_economics/P ages/Shale_Maps.a spx Table 11: State Surface Oil and Gas Regulatory Analysis Additional Surface Oil and Natural Gas Regulatory Analysis This section outlines in greater detail regulations being implemented by state, local, and tribal jurisdictions. Additional Oil and Gas Regulatory Analysis Regulation Description Inspection of records, properties, and wells Gives the tribe or authorized agent the right of all reasonable time to go upon and inspect any oil and gas properties for the purpose of making any investigation. Reporting Requires agents to report name and location of wells, name and address of opera tor or owner of the wells and other pertinent information. Referral for administrative decisions Provides operator or owner with notice of referral to tribal entity for administrative decisions. Shot location limitations Defines distance in which vibrations or seismic shot holes can be drilled without written permission of surface owner. Identification Requires all equipment and facilities be identifiable by name holder and of whom the work is being done. Waste handling and spills Requires the tribe to order corrective action of any condition that is causing or likely to cause waste or

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! 144 Additional Oil and Gas Regulatory Analysis Regulation Description pollution. Noise abetment Requires baseline noise level prior to operations and during operations. Oder and dust control Requires ambient air monitoring. Require s dust control measures be taken. Comprehensive drilling plans Gives the operators an option to prepare a comprehensive drilling plan identifying foreseeable oil and gas activities in an area to facilitate discussion of potential impacts and devel opment of practices to minimize impacts. Provides requirements for a plan to include the activities of operations in an entire oil and gas field or geologic basin for a period over ten years. Wildlife protection Requires the implementation whenever reas onably practicable of best management practices and other reasonable measures to conserve wildlife resources. Well spacing Determines spacing between wells. Fire prevention A requirement that any rubbish or debris that might constitute a fire hazar d be removed to a certain distance from the well site, tanks, and reservoirs. Requires that all waste oil be burned or disposed of in a manner to avert creating a fire hazard. Requires that all available precautions are taken to prevent any oil or gas well from blowing open and to take immediate steps and exercise due diligence to bring under control any wild or burning oil or gas well. Setbacks Sets setbacks from buildings and structures, occupied and unoccupied, and fresh water supplies. BMPs Requires operators to employ BMP's in their management practices. Permitting Requires permits. Blowout preventers Require s that the owner provide blowout preventions and well control equipment. Emergency notification Requires the owner or operator o f a facility to notify the tribe within a certain amount of time of a n accident, fire, spill, release, or leak. Reclamation Establish es rules for proper reclamation of land and soil affected by oil and gas operations and ensure s the protection of topsoil Bonding Requires the operator to file financial assurance

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145 Additional Oil and Gas Regulatory Analysis Regulation Description documents for assurance of plugging and abandoning, restoration for livestock, range corps, and other impacts. Safety Regulation s that define safety requirements for any facility or operation. Truck traffic Require s operators to submit a report regarding anticipated routes of drilling access. Table 12: Additional Oil and Gas Regulatory Analysis Best Management Practices Analysi s BMPs are commonly being adopted as policy and regulation under state, local, and tribal jurisdictions. The following table provides an analysis of specific jurisdictions who are implementing BMPs. Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source Required Comprehensive Drilling Plans Recommends comprehensive plan submittal. Maryland http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Case_for_ Marylands_CGDP_P rogram.pdf Phased development Requires a phased development plan, allowing for a certain number of wells to be drilled at one time. Boulder, CO http://www.boul derco unty.org/dept/landus e/pages/oilgas.aspx Increased setback distances 350 ft. from water supplies, residences, schools, hospitals, and other spaces where people congregate. Wyoming WY Commission Rules Ch. 3, Section 22(b). 500 ft. from all buildings. North Dakota 500 ft. from all Pennsylvania

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! 146 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source buildings. 1,000 ft. from all occupied dwellings, with additional setbacks for cultural sites, historic sites, and a recommended 2,000 ft setback from all public groundwater wells or surface water intakes. Maryland http://www.rff.org/RF F/Documents/RFF Rpt StateofStateRegs_St ateTables.pdf ; http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Draft_for_ Public_Comment_6.2 4.2013.pdf http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Eshleman _Elmore_Final_BMP _Report_22113_Red. pdf 500 ft. from residences. Louisiana http://dnr.louisiana.go v/assets/OC/eng_div/ 20090806 U HS.pdf 750' from dwellings and water wells. Santa Fe, New Mexico http://www.oilandgas bmps.org/laws/new_ mexico_localgovt_la w.php Local government approved traffic management plan Local jurisdictions should develop adequate transportation plans. Maryland http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Draft_for_ Public_Comment_6.2 4.2013.pdf

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147 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source After filing a permit, op erator must certify that it has informed the affected local government with a report regarding anticipated routes of drill site access. Louisiana (only urban areas) http://dnr.louisiana.go v/assets/OC/eng_div/ 20090806 U HS.pdf Permit application requires the local authoritys signature or approval for maintenance and use of roads, streets, and highways. Ohio Section 1509:06(11)(b) An operator should attempt to obtain a road use agreement with the local government; if such agreement cannot be reached, the reasons for not obtaining a permit must be documented in the Transportation Plan New York http://www.oilandgas bmps.org/docs/CO68 RSNCCommunityDe velopmentPlan.pdf

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! 148 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source Site specific measures for traffic reduction Measures that should be part of a road use agreement or trucking plan, as appropriate, in clude: route selection to maximize efficient driving and public safety, avoidance of peak hours and events, coordination with local emergency management agencies and highway departments, advance public notice of detours or closures, upgrades and improvemen ts to roads that will be traveled frequently, and adequate off road parking and delivery areas to prevent lane blockage. New York http://www.oilandgas bmps.org/docs/CO 68 RSNCCommunityDe velopmentPlan.pdf Weld County requires a ROW permit for new access roads or when an existing access is changed. Hearing Documents indicate the public works director reviews the traffic plan and takes into account the current traffic and proposed traffic. Weld County, Colo rado Section 12 2 10 Weld County Code. http://www.co.weld.c o.us/Departments/Co mmissioners/Ordinan cesandPolicies.html and http://www.co.weld.c o.us/assets/3921DB6 3C5C4B39da045.pdf Transport Route: Provide a map of the proposed transportation route for equipment, Fort Worth, Texas (Ordinance No. 18448 02 2009). (Section 15 35 C.3.) http://fortworthtexas.

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! 149 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source chemicals or waste products used or produced by the site operations. State whether it is a commercial or noncommercial route. gov/uploadedFiles/G as_Wells/090120_ga s_drilling_final.pdf Off setting traffic/road mitigation controls BMP of providing cost mitigation to the towns and county for road upgrades and damage. Colorado http://www.oilandgas bmps.org/docs/CO68 RSNCCommunityDe velopmentPlan.pdf Video: Provide a video recording of the road conditions that exist prior to ope rations along the proposed transportation route per site. Fort Worth, Texas Section 15 35 C http://fortworthtexas. gov/uploadedFiles/G as_Wells/090120_ga s_drilling_final.pdf Requires Road Repair Agreement between the City of Fort Worth and the Operator. Fort Worth, Texas (Section 15 35 C(15)) Baseline (ambient) air quality monitoring prior to operations Recommended pre drilling requirements include baseline air quality. At the time of the report s composition it is un clear whether this baseline will be regional or on a site by site basis. Maryland http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Draft_for_ Public_Comment_6.2 4.2013.pdf FLIR camera monitoring and emission controls during flowback Monthly monitoring with a FLIR camera is required. (General Permit 5) and (Exemption Category Pennsylvania http://www.dep.state. pa.us/dep/DEPUTAT E/airwaste/aq/permit s/gp/FAQ_GP 5_and_Exemption_3

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! 150 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source No. 38). 8_Final_122713.pdf Periodic FLIR monitoring for fug itive emissions Requires leak detection on a quarterly basis using devices such as FLIR cameras. Pennsylvania http://www.dep.state. pa.us/dep/deputate/a irw aste/aq/permits/gp /MethaneRegulations .pdf Disclosure of all hazardous chemicals stored on site above minimum threshold quantities to local emergency responders the permittee shall, before beginning operations, provide the local emergency response agen cy with a hazardous chemical inventory list and a copy of the Safety Data Sheets for all hazardous chemicals that are expected to be on site at any stage of the operations. Maryland http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Draft_for_ Public_Comment_6.2 4.2013.pdf Emergency Planning and Community Right to Know Act requires facility owners to submit a n MSDS for each hazardous chemical present that exceeds a reporting quantity or a list of the chemicals to the local emergency planning committee. FEDERAL (ALL AREAS) http://burgess.house. gov/uploadedfiles/8 30 2010_ _crs_report_on_tx_a nd_co_drilling_regula tions.pdf Disclose all hazardous chemic al s to local emergency responders, unless on file with the City. Also, provide a reference to the copy of Fort Worth, Texas (Section 15 42 (11)). http://fortwort htexas. gov/uploadedFiles/G as_Wells/090120_ga s_drilling_final.pdf

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151 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source the Emergency Response Plan on file with the Gas Well Inspector, unless on file with the City. A Hazardous Materials Management Plan shall be submitted and on file with the Fire Department and Inspector. Arlington, Texas Section 5.02.(12) http://www.arlingtontx .gov/planning/pdf/Ga s_ Wells/Final_Gas_ Drilling_Amendments _Ordinance.pdf On-site chemical storage limited to 30-day supply Chemicals must be removed from site once every 30 days. Bryan, Texas Section 78-31 (32) (C.) http://cityofbryantx.gr anicus.com/MetaVie wer.php?view_id=& e vent_id=156&meta_i d=12186 Notify local emergency responders at least one week prior to drilling In urbanized areas where flaring is expected, the permittee shall notify the local emergency response officials that such may occur. Ohio (urban areas) 1501:9 9 03(K). Provide/Docum ent training for environmental compliance including release reporting and response Preparedness, Prevention, and Contingency Plan Pennsylvania Code 78.55 and 91.34. Each permittee must prepare a site specific emergency response plan and training plan. Maryland http://www.mde.state .md.us/programs/Lan d/mining/marcellus/D ocuments/Draft_for_ Public_Comment_6.2 4.2013.pdf

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152 Comparative Analysis of Oil and Gas Best Management Practices Best Management Practice Description Implementing Jurisdiction Source A permittee of a well is responsible for ensuring that all agents, employees, or other representatives involved have received training from persons qualified in hydrogen su l fide, emer gency escape procedures, location and proper use of equipment, corrective actions, first aid procedures, and know the contents of the contingency plan. Employees shall receive a written certification. Michigan Rule 324.1107. BMP of training all employees and subcontractors regarding emergency plan information and ability to respond to emergency situations involving spills, leaks, human injury, fire, and explosions. Colorado http://www.oilandgas bmps.org/docs/CO68 RSNCCommunityDe velopmentPlan.pdf Table 13: Comparative Analysis of Oil and Gas Best Management Practices

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CHAPTER SUMMARY, DISCUSSION FURTHER RESEARCH, AND CONCLUSION Summary Tribal governments capacity to implement land use controls within their n ations is limited by the United States Constitution and federal law H owever, tribal governments do have inherent sovereignty to protect, guide, and govern the lands under their jurisdiction to protect and enhance the safety, health, and welfare of their members. The aim of this thesis was to investigate and identify (1) t he extent to which tribal n ations have sovereignty over their lands and authority to regulate land use within their jurisdiction, and (2) the extent to which Native American tribal governments presently use their sovereignty over land use development for oil and natural gas development within their jurisdiction. This thesis asked four primary questions: 1. What is the legal basis of tribal sovereignty? 2. Under federal and tribal law, to what extent do tribal gove rnments have sovereignty over their lands and its resources? 3. To what extent do tribal organizations us e their sovereign status to enact legislation to regulate and guide the development of energy resources within their reserves? 4. To what extent do tribal o rganizations engag e in traditional/contemporary land use planning practices?

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1 The study was qualitative in nature and focused on a comprehensive archival review and a case study. It drew on c onstitutional law, federal Indian law, environmental la w, and tribal law were utilized for this thesis The thesis first examine d the results of the archival review which demonstrates that while limited by federal law, tribes have sovereignty and authority to control land use within their territories. Second, the thesis examine d the Three Affiliated Tribes of the Fort Berthold Reservation. The T ribes were chosen based on location, level of oil and natural gas production, and accessibility of information. Finally, the study analyzed BMPs for oil and natural gas development and the current framework under which states regulate oil and natural gas within their jurisdictions. This study demonstrates that tribal governments do indeed have authority over their lands and resources and cannot take full advantage of their sovereignty without practicing self governance over their natural, built, and human environments. The reasons that tribal governments are not implementing land use controls and engaging in land use planning to the extent of their sovere ignty are unclear Thus, f urther research is needed to understand the reasons that tribal organizations are not taking full advantage of their existing sovereignty of their lands and resources. Discussion U.S. Indian energy resources are estimated to b e worth upwards of $1.5 trillion (Regan, 2014) Under current energy policy, the U.S. federal government promotes energy development within Indian country (Tribal Nations and the United

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1 States, n.d.). The government perceives oil and natural gas develo pment as a legitimate means for tribes to achieve economic self efficiency (Cross, 2011; Cornell et al., 2003). As a result, tribal governments are in a position to substantially benefit from oil and natural gas development on lands within their jurisdiction. The r egulation of oil and natural gas development is essential to planning, as the development of oil and natural gas affects the local and regional landscape and its communities a s well as the natural environment. Tribal sovereignty is rooted in c onstitutional law as well as individual treaties and agreements by and between tribal organizations and the federal government. Despite so me barriers, tribes are generally empowered by f ederal Indian law to regulate lands within their jurisdiction. The Doctrines of Discovery and Conquest established tribal rights to and over lands and resources. Early federal Indian law regulating India n lands reserved only possessory interests over the lands and resources to tribal Nations, thus limiting tribal sovereignty and authority over such lands ; however, t ribes are now recognized as sovereign n ations, establishing a special relationship between tribal governments and the United States. Each tribal n ation is unique in its relationship with the federal government. T hrough federal law and treaties, the f ederal government legally recognizes retained sovereignty as well as rights granted to tribes in exchange for ceded lands. Treaties are considered the supreme law of the land and represent a grant of rights to the tribes rather than from them.

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1 States play a limited role in Indian affairs occurring within Indian country Generally because Native n ations are recognized as sovereign and distinct communit ies state law does not apply to tribal or allotted lands. While energy development projects in Indian country are subject to certain federal regulations, tribes do have sovereignty over certain types of energy development and the authority to regulate their lands within their territories. Research shows that there is a substantial economic benefit to tribes that regulate their own natural resources, and some tribes have exercised their sovereignty and authority over resources through tribal legislation and policy. This study demonstrates that the Three Affiliated Tribes of the Fort Berthold Reservation and other American Indian tribal organizations are takin g advantage of their sovereignty, and appear to be in the process of determining the extent to which it extends. The Three Affiliated Tribe s of the Fort Berthold Reservation have created a natural resources committee, an environmental protection agency, and an energy division to ensure prudent management and development of their lands. Tribal Resolutions validate the Tribes willingness to engage in self governance and to exercise sovereignty over their resources; including the desire to implement best management practices. The Tribes law and order code includes a comprehensive chapter to guide proper management of solid waste, including solid waste management and remediation. The code adopts federal regulations found under the EPA and BLM.

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1 According to an analysis of state regulations, the code is consistent with what state jurisdictions would have in place. The Tribal Constitution demonstrates the importance of proper managem ent of the lands within their borders, and the sacredness of tribal resources. The study found that regulatory and guidance tools are available to the Tribe; however, through Tribal committees, agencies, and divisions, the Tribe is already engaged in proper management of resources which are comparable to state jurisdictions A c omparative analysis of existing tribal, state, and local laws and best management practices demonstrate s that there is a template of emplo yable regulations and practices that tribal governments may engage in. An array of surface controls is available for adoption and implementation. State conservation commission regulations are a good resource for the investigation of potential legislation and enforcement techniques. The study looked at surface regulations promulgated by 32 states. Based on the findings, it is recommended that tribes require that any oil and natural gas operators working on tribal lands implement BMPs This includes compensating surface owners for lost income and expenses incurred as a result of the inability to use or access the land ; the value of damaged soils, vegetation, water supplies, or personal property ; and any decrease in property value. Additionally tribal governments should consider implementing clustered development as a primary plan of operation if development proceeds requiring a minimum number of drilling pad locations or well pad locations per 160 acres. The oil

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15 and natural gas operator should be required to provide to the tribe a comprehensive drilling plan and a collaborative stormwater management plan. Tribes should regulate fresh water supplies and stormwater drainage, requiring a general permit that lists detailed, site specific protections to fully assess risk and ide ntify and implement protective measures. Oil and natural gas operations should be required to test water quality and quantity before well construction begins, and at the minimum, annually while the well is in production. Strategic planning determines spec ific economic objectives related to development projects. It allows tribal organizations to set priorities focus on energy resources and strengthen tribal operations. Land use planning and zoning would help guide development in a way that supports the tribes vision. Different planning techniques and documents are available for implementation. For example, tribal zoning codes that divide the reservation into zone districts could provide f or the control of the development of property for energy extraction by considering the relationship of the natural environment to the built environment as well as cultural resources and environmental conservation Infrastructure, land use and spatial planning could help determine which facilities and services need to be in place to sustain industry and all other land use activities Land use planning assessing competing uses and providing for alternative uses would minimize potential risks and costs. Proper planning puts controls in place and ensures that decision makers will take into consideration the goals and objectives of the tribal organization when approving and planning energy development projects.

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15 Further Research This study contributes to existing scholarship insofar as it demonstrates the legal basis for tribal sovereignty over their lands and resources. Existing research has focuse d on what tribes cannot do rather than what they can do Many tribes do not employ self governance to take full advantage of their sovereignty. Instead, t hey defer to federal and state management and regulation s The findings of this study demonstrate that tribal nations a re in fact implementing regulations and engaging in self governance; however, sovereignty is not being exercised to its fullest extent. This study also revealed the difficulty in obtaining information that is generally regarded as public information outside of Indian country. Lack of access to regulations may detour some developers. Further research on the enforcement capabilities of tribes with an existing regulatory framework would be valuable; the research should focus on what federal resources could be made available to assist tribes in the enforcement of regulations. Discovery of what other tribes a re doing and a cross analysis between tribal la ws and state and local laws would be beneficial to tribal governments; the analysis would provide a comprehensive analysis of regulatory and guidance actions that they could adopt and enforce. Further researc h should gather qualitative data relating to tribal capacity to regulate the development of their natural resources; the data should be compared to the level of regulation and planning taking place within their jurisdictions. This research could a lso focus on why regulations are not easily accessible, and what

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1 federal resources might be offered to tribes to make the documents public Additionally, research on what types of planning documents might be helpful in th e management of energy resources should be advanced. This study highlighted the necessity for additional areas of regulation and enforcement, and the importance of guidance documents. The question remains as to wh ether i t is a lack of understanding that limits tribal sovereignty over lands and resources or whether they are impeded by liability issues T hat is, do tribes attempt to avoid assuming the liability involved in regulating and managing their own resources or do they not have the capacity to do so ? What is the extent of tribes capacity and manpower to develop, enact and implement regulations and land use planning practices? Conclusion Tribal nations have promising opportunit ies for energy development on lands within their borders. To take full advantage of sovereignty, tribes must employ self governance over their lands and natural resources. P ursuant to constitutional, statutory, federal, and tribal law, tribal organizations ca n engage in developing and implementing policy and planning practices on the lands within their borders. To protect public health and safety and to improve welfare, tribal governments should exercise their inherent rights through the development and regul ation of their lands and resources. Developing energy resources in a thoughtful and regulated manner w ould create jobs and revenues and protect lands and resources.

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1 There are r emaining questions that will require additional research. Until tribes take full advantage of sovereignty, the likeli hood of gaining additional sovereignty over their lands and resources is limited.

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