Biden’s Plans to Limit Drilling Hit a Snag When Confronted with Ute Tribal Sovereignty

Image Credits: Anton Petrus / Getty.

Within a day of the inauguration, the Biden Administration issues a bevy of new executive orders designed to please a variety of the Democratic Party’s core special-interest groups.

Among these was an executive order curtailing oil and gas leasing on federal and tribal lands.

But a problem quickly presented itself: many tribes earn a significant amount of income through oil and gas drilling on tribal lands. These operations also provide jobs for tribal members. The administration’s new orders would curtail tribal control and instead place decision-making authority on these drilling operations with a handful of federal officials.  

Nor surprisingly, at least one tribe reacted with alarm to these new federal limits. Reuters reports:

An oil-producing Native American tribe on Friday asked the U.S. Interior Department for an exemption from the recent temporary suspension of oil and gas leasing and permitting on federal and tribal lands, saying the move would hit its economy and sovereignty.

The pushback from the Ute Indian Tribe reflects the financial strain some communities will face from a freeze of the government’s fossil fuel leasing program. The new administration of President Joe Biden announced the move this week as part of a raft of measures intended to combat global climate change.

In a letter from the Ute Indian Tribe in Utah (i.e., the Uintah and Ouray Reservation),  the head of the tribe’s Business Committee demanded the federal government exclude tribes from the new orders:

The Ute Indian Tribe and other energy producing tribes rely on energy development to fund our governments and provide services to our members. … Your order is a direct attack on our economy, sovereignty, and our right to self-determination. Indian lands are not federal public lands. Any actions on our lands and interests con only be taken after effective tribal consultation.

The order’s broad nature clearly presents a political problem for the administration. The Democratic Party claims to be responsive to tribal interests. Yet the party also has declared war against fossil fuel extraction—and indeed most forms of mining, drilling, and resource extraction in general—in the name of opposing “climate change.” Nonetheless, for purposes of keeping up appearances, the administration quickly took steps exempt tribes.

But this only kicks the can down the road.

It’s a fairly safe bet that, in the final calculation, wealthy white environmentalists are more important to the party than tribal interests. After all, environmentalists have more money and are more numerous than voters from tribes that relay on drilling. How much longer will tribes be able to drill on their own lands without aggressive pushback from federal legislators? It depends on how successful is the “climate change” faction within the Democratic Party’s coalition.

It is helpful to recall that environmentalists are not exactly known for their respect for tribal needs. As noted last December in Indian Country Today,  “The history of conservation in the United States began with human rights violations, including the displacement, massacre, and assimilation of tribal peoples to make way for the first National Parks: Yellowstone and Yosemite.”

Today, tribes theoretically enjoy some level of sovereignty—and thus immunity from federal edicts—but environmentalists have never had much patience for that sort of thing.

Tribal Sovereignty Is Important

The whole affair illustrates, yet again, why tribal sovereignty should be respected and promoted as an important check on federal power. 

Indeed, tribal sovereignty should only be expanded. After all, the current state of tribal independence falls far short of what was promised by federal officials as they were offering treaties and reservation lands to tribes. Tribes were supposed to enjoy local decision-making powers over a wide variety of issues from criminal justice to land-use regulations.

Over time, the tribes were gradually stripped of their treaty rights and tribes came to fully under the jurisdiction of the US government. Congress even claimed the power to completely abolish and abrogate old treaty conditions based on unilateral federal legislation. What had been deceptively called “treaties” by American agents quickly became nothing more than acts of Congress. We have seen a similar trend with US states. What were supposed to be “sovereign states” in the US degenerated over the twentieth century into a group of de facto provinces subject to countless federal diktats. 

Fortunately, over time, courts have slowly begun to limit both state and federal jurisdiction over tribes with the effect of providing more autonomy to tribes. Perhaps most famous among these decisions is the 1987case California v. Cabazon Band of Mission Indians in which the court determined state governments could not prevent tribes from offering legal gambling within their own borders (in most cases).

Last year, the Supreme Court ruled in favor of more tribal sovereignty with McGirt v. Oklahoma in which the court paved the way for more tribal control over local criminal prosecutions.

Tribes are still a long way from true sovereignty, although things have arguably improved since the 1940s when the federal government shamelessly stole income-producing grazing lands from the Hidatsas, Mandans, and Arikaras to dam up yet another lake.

But no matter how minor recent tribal gains in these areas may be, each victory is a reminder that the federal government doesn’t get to do whatever it wants to anybody it wants.

Those concerned about local control and self-determination as an important principle ought to see the implications here for other peoples and jurisdictions within the United States. Conservative US Senator Mike Lee perhaps saw this when he cheered the tribal exemption and declared “The rest of America should get this exemption too.”

I don’t know if Lee has supported tribal sovereignty in other contexts, but if not, he ought to learn from this situation and start doing so.

It would be a welcome shift. American conservatives, after all— for reasons often spanning from short-sighted to petty—have long opposed efforts by tribes to assert local control over their own lands and resources.

Yet tribal sovereignty is an important tool in opposing untrammeled federal power and forcing limits on federal powers into local matters. Just as tribes ought to exercise far more control over local matters of natural resources, criminal justice, and other matters, the same is true of every American state and municipality.



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