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Fed Up! Why D.C. Must Invest in Tribal Development

Paul Moorehead
7/26/13

In fiscal year 2014, the federal government will spend about $3.8 trillion, which breaks down into mandatory spending (64 percent), interest on the national debt (6 percent), and discretionary spending (30 percent). This 30 percent discretionary figure, in turn, is divided into defense spending (51 percent) and non-defense spending (49 percent).

Year after year Congress and the administration bicker over annual appropriations bills totaling less than 30 cents on the federal dollar. On top of that, the trend in the discretionary program budget is decidedly downward: in 1980 discretionary programs represented 12 percent of Gross Domestic Product, and by 2021 will be just 5 percent of GDP.

The big picture is even more alarming, with the federal government routinely running annual deficits of $1 trillion or more. The long-term, cumulative federal debt is $17 trillion. Our country is indeed on an unsustainable fiscal path.

Despite thoughtful recommendations contained in the report of the bipartisan National Commission on Fiscal Responsibility and Reform (aka the Bowles-Simpson report) proposing reforms to the entitlement programs (Medicare, Medicaid and Social Security), and changes in our tax and spending patterns, the budgetary weapon of choice in Washington is sequestration.

This mechanism, properly called dumb and indiscriminate by many in and out of the halls of Congress, brings automatic, across-the-board spending cuts to all discretionary programs in the search to reduce spending by $85 billion annually over 10 years. Given the $17 trillion in red ink on the federal books, this does not result in meaningful deficit reduction.

This can was kicked down the road for decades and is now upon us: the deficit and debt situation means continued pressure on discretionary programs, demands for priority-setting in federal spending, and consolidation and even elimination of various federal programs. This is bad news for Americans reliant on federal programs and services, especially those living in tribal communities, and underscores the urgent need for real economic development that generates jobs and incomes for Indian households across the country.

Federal Indian Policy Trending Positive

As awful as the spending situation is, there are reasons to be optimistic along the policy front where, over the last 30 years, statutes emphasizing tribal authority and decision-making have been signed into law. These include the Indian Mineral Development Act, various Tribal Self Governance Act bills, the Indian Gaming Regulatory Act, the Navajo Surface Leasing Act, the Energy Policy Act, and most recently the HEARTH Act. Using these tools, many tribes have thriving economies and have become engines of growth and jobs, not just for their own members but for surrounding communities as well.

Despite these advances, much still needs to be done, especially in the area of energy development. Energy and natural resource development holds much promise for any number of Indian tribes. Using energy development as the foundation of their economies, the stories of the Southern Ute Indian Tribe, the Jicarilla Apache Tribe and the Three Affiliated Tribes of the Fort Berthold Reservation are well known to most observers.

Newly identified natural gas and oil reserves, combined with new technologies like horizontal drilling, are opening up newer, and sometimes larger, opportunities across the country. The Mancos Shale formation in New Mexico holds promise for the Ute Mountain Ute Tribe, the Navajo Nation and others around the formation.

Renewable energy development also holds promise. The Moapa Solar Project, on the Moapa River Indian Reservation in Nevada, is a huge, 350 megawatt project that will generate 400 construction jobs and at its peak will deliver electricity to 100,000 homes.

Because of the various permits and approvals that require federal involvement, Uncle Sam determines in large measure whether conditions on Indian lands encourage or discourage investment and economic activity. Tribes interested in developing their energy resources witness endless bureaucratic hurdles, extreme delays in getting leases, appraisals, and other documents approved, and a flurry of new regulations related to hydraulic fracturing, minor source air permitting, and others.

For those tribes seeking to harvest their coal resources for the betterment of their members, such as the Crow Tribe, the Hopi Tribe and the Navajo Nation, the task is even more difficult with the Environmental Protection Agency proposing stringent, some would say impossible, standards for coal-powered facilities to meet.

The fact is that business conditions matter, businesses have choices where to invest, and these choices have consequences for communities wishing to have jobs and incomes for their members.

Faced with these budget challenges and barriers to growth in Indian country, the federal government --- the trustee --- should be doing everything it can to work with tribes to identify and promote economic opportunities and self-sustaining development projects, and help insulate them and their citizens from the necessity of relying on federal programs and services.

Some in Congress are doing just that. Building on the momentum from the last Congress, Rep. Don Young (R-AK), Chairman of the House Indian and Alaska Native Affairs Subcommittee, has reintroduced the Native American Energy Act (H.R.1548) to remove statutory and other barriers to energy development on Indian lands. For decades, tribal leaders have begged Congress and the executive branch to help dismantle unnecessary bureaucratic obstacles to tribal authority over economic projects.

Indian country awaits the Senate Committee on Indian Affairs and its preferred course of action when it comes to energy legislation. That Committee held a roundtable on Indian energy development in June 2013, in anticipation of formal bill introduction later this summer.

The point of all this is to suggest that at a time when the federal government struggles under crushing debt, more focus and effort needs to be made in federal agencies and the Congress to promote economic growth and job creation in tribal communities

Paul Moorehead is a partner in the Indian Tribal Governments Practice Group at Drinker Biddle & Reath LLP’s Washington office. He previously served as chief counsel and staff director to the Senate Committee on Indian Affairs, and Government Affairs and Counsel to the National Congress of American Indians.

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