Advance tribal sovereignty and Indigenous land rights

Renewable energy policies should recognize—and attempt to correct—the history of fossil fuel oppression and displacement of Indigenous people.

Renewable energy policies often ignore the history of Indigenous peoples and how the fossil fuel industry has used oppression, violence, displacement, and detainment to both control the energy space and usurp their power. 100% regenerative energy policies should include the input of Indigenous communities, particularly energy sovereignty for these communities. 100% policies should also ensure processes and policy components are in place to factor in nuances of Tribal governance. Although Tribal governance may be viewed as completely different from the current utility-controlled system, in order for 100% policies to be centered on Just Transition and non-extractive economies, Indigenous sovereignty and Tribal governance must be a cornerstone.

Tribal lands contain vast quantities of untapped coal, oil, and other energy sources. Historic encroachment into tribal lands to exploit these resources by the profit-hungry fossil fuel industry and by decision-makers has resulted in gross harms and violence. Fossil fuel development has threatened the way of life and cultural heritage of Indigenous peoples and has resulted in land grabs and water and air contamination.

100% policies should recognize the complexities of Tribal sovereignty and energy democracy. Due to Tribal sovereignty, Tribes are allowed to pursue energy ventures as they see fit. The reality is that some of these energy ventures are fossil fuel based. However, currently many Tribes are advocating for renewable energy using the many principles outlined in this document.

Most disturbing in the extractive fossil fuel-based system is the violence on and disappearance of Indigenous women related to energy production.

In recent years, [several tribes have] experienced an exponentially increasing level of violence against Native women. North Dakota’s Uniform Crime Report shows that violent crime has increased 7.2 percent, while 243 reported rapes occurred in 2012—an increase from 207 in 2011…12 of the state’s top oil-producing counties accounted for much of that crime. The cause for this is the camps of thousands of male workers who have come to their territory to profit from the Bakken oil boom—settling into what are commonly called ‘man camps’, and more than doubling the population with an influx of non-Indian oil workers.[1]

Policy recommendations

Recognition of past and current harms. When designing 100% regenerative policy, there should be a recognition of past and current harms to the Indigenous related to the control and domination of energy and there should be a recognition of Tribal sovereignty and rights.

Historically, Indigenous treaties provided the greatest protections for tribes. Treaty-based systems encourage negotiation and consultation with tribes. By negotiating a treaty, the executive branch must negotiate with the tribe and come to an agreement.[2]

Push for consultation with Indigenous communities. 100% regenerative policies should include provisions regarding consultation with Indigenous communities, particularly if renewable energy projects are proposed to be built on Indigenous lands, as well as pathways for Indigenous energy sovereignty so that Indigenous communities may own and control their energy supply and reach 100% clean energy if they choose. There should be consultation with Indigenous people in regards to the development and implementation of the policy and in regards to funding for renewable projects.

Recognize Indigenous Land Rights. The intersection of land rights and renewable energy has historically centered on Indigenous communities. Federal and city governments, large fossil fuel companies, and even renewable energy companies have expropriated Indigenous lands and water for fossil fuel exploitation without consultation, consent or compensation. Kyle Powys Whyte explains, [F]or many tribes, we wouldn’t have gone along with any of these schemes or leases for extractive industries if it wasn’t for the fact that the U.S. had put us in a situation with a diminished land base. It made it impossible for us to exercise our own governance systems, or even to develop and change in ways that were more sustainable than simply being dependent on industries that we know are contributing to climate change, that contribute to pollution, and that are bad for people’s health.”[3]

100% policies should recognize the land, water, and air rights of Tribal Nations. Indigenous Environmental Network explains:

Our lands and territories are at the core of our existence—we are the land and the land is us; we have a distinct spiritual and material relationship with our lands, waters and atmosphere-sky and territories and they are linked to our survival.

A Just Transition recognizes that Indigenous Nation authority does not just extend to the boundaries of the reservation/reserve. It extends over the respective traditional territories. This includes Treaty lands and unceded lands and waters taken without consent. This authority extends not only to hunting, fishing, food, plant and medicine gathering, but also to our sacred sites and protection of our watersheds and airsheds, as well as below ground.[4]

Sacred sites on Indigenous lands should be off-limits for renewable energy projects. Sacred sites, such as ancient villages sites and burial sites, must be respected by renewable energy developers.

Inclusion of “equitable compensation” to Indigenous people. Reparations and/or redress for lands, territories, and resources that have been taken, confiscated, or occupied.

Examples

Example of Tribal consultation language (written by Tribal leaders and their legal counsel):

For programs, activities, or projects that directly impact tribal lands, the goal of the consultation process is to obtain free, prior, and informed consent for the project. For these programs, activities, or projects, consultation is complete when the Indian tribe’s government provides the board with a written resolution providing consent or withholding consent by the deadline set for completion of the consultation process. If any project that directly impacts tribal lands is funded under this chapter without complying with (b) and (c) of this subsection, upon a request by an Indian tribe, all further action on the project must cease until consultation with the Indian tribe is complete.[5]

The United Nations Declaration on the Rights of Indigenous Peoples enshrines the right to free, prior, and informed consent:

[T]he Declaration will become the major foundation and reference in implementing its mandate to advise members of the Economic and Social Council and the UN agencies, programmes and funds on Indigenous peoples’ human rights and development. It is a key instrument and tool for raising awareness on and monitoring progress of Indigenous peoples’ situations and the protection, respect and fulfillment of Indigenous peoples’ rights. It will further enflesh and operationalize the human rights-based approach to development as it applies to Indigenous Peoples.[6]

The United Nations Declaration on the Rights of Indigenous People offers an example of equitable compensation language:

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.[7]

References

  1. Chasing Out the Specter of Man Camps.” Honor the Earth. Accessed 24 Jul. 2019.
  2. Emmons, George. “The Unseen Harm: U.S.-Indian Relations & Tribal Sovereignty.” 48 Golden Gate U. L. Rev. 185, 2018. Accessed 24 Jul. 2019.
  3. At Standing Rock, A Battle Over Fossil Fuels and Land.” Yale Environment 360, 10 Nov. 2016. Accessed 24 Jul. 2019.
  4. Indigenous Principles of Just Transition.” Indigenous Environmental Network. Accessed 26 Jul. 2019.
  5. Washington Initiative 1631, Carbon Emissions Fee Measure (2018).” 13 Mar. 2018. Accessed 24 Jul. 2019.
  6. United Nations Declaration on the Rights of Indigenous Peoples.” United Nations, 13 Sep. 2007. Accessed 24 Jul. 2019.
  7. United Nations Declaration on the Rights of Indigenous Peoples.” United Nations, 13 Sep. 2007. Accessed 26 Jul. 2019.