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Standing Rock weighs tribal utilities regulations

STAND ROCK SIOUX RESERVATION, N.D. - The Standing Rock Sioux Tribe is considering creating a tribal utilities commission to regulate infrastructure projects on its land.Tribal Chairman Dave Archambault II said the tribe has started the process si...

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Standing Rock Sioux Tribe Chairman Dave Archambault II
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STAND ROCK SIOUX RESERVATION, N.D. - The Standing Rock Sioux Tribe is considering creating a tribal utilities commission to regulate infrastructure projects on its land.

Tribal Chairman Dave Archambault II said the tribe has started the process since Standing Rock has been in a months-long fight against the 1,172-mile Dakota Access crude oil pipeline, which is proposed to cross the Missouri River just north of the reservation, over fears that a leak in the line would pollute the river and tribal water supply.

Archambault said the pipeline battle revealed flaws in state and federal law pertaining to tribal consultation and input on infrastructure projects - something he feels a tribal utilities commission could rectify.

"I think it's in everyone's interest to have some kind of regulatory authority," he said.

The tribe will first need to create a regulatory code before forming a commission, according to Archambault, who said the new code, once written, has to be posted for 30 days to garner tribal member feedback.

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"The process takes time. It's not going to happen overnight," he said.

The commission would have authority over all utilities infrastructure, from water lines to power lines, Archambault said. And despite the opposition to Dakota Access, the creation of a commission would not rule out the possibility of crude oil pipelines on the reservation.

Opposition and 2007 tribal council action to prevent crude oil pipelines from crossing tribal lands came from fears the industry was not regulated well enough, Archambault said. If the tribe was more involved, with direct input on projects through its regulatory authority, there would be less reluctance to allow their development.

And though the Dakota Access Pipeline would not cross the reservation, the chairman said he is hopeful a tribal utilities commission also could give the tribe more weight on the national stage should similar projects arise in the future.

A model example

Standing Rock is looking to the Rosebud Sioux Tribe in South Dakota as a model for its proposed commission, Archambault said.

The Rosebud Sioux's Tribal Utilities Commission, in existence for 22 years, and commissioner Ronald Neiss said it's one other tribes have looked to as a success story.

Neiss said he had a recent conversation with Archambault about the creation of a commission on Standing Rock. On the Rosebud Reservation, its existence has allowed the tribe to be an advocate for utilities consumers within tribal homelands.

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"There was some opposition at first," Neiss said of the commission's creation - mostly from utilities cooperatives, used to dealing with the state for permitting, questioning why the tribe was taking up regulating.

Most of the utility infrastructure on the Rosebud Reservation is operated by cooperatives. One thing that has helped bridge gaps is the election of two tribal members to a local cooperative board. The tribe had previously been unrepresented on the cooperative board despite tribal members making up 80 percent of the cooperative's membership, Neiss said.

With that board presence, Neiss is confident the "landscape will change." An annual utilities forum between cooperatives and the tribe is another way Rosebud has worked to develop relationships.

Over the past two decades, most of the Rosebud Sioux Tribal Utilities Commission work has been on easements for telecommunications and electric lines, particularly fiber for high-speed Internet. The commission has been an advocate for renewables and energy-efficiency improvements, though there have been no major wind or solar farms developed on tribal lands that would have required permitting. Neiss said they recently completed a 50-year right-of-way with the Western Area Power Administration for a 115-kilovolt transmission line.

"That was a big mission for us," he said.

The tribe's next goal is creation of Rosebud Energy Services Company, which would be a tribal subsidiary developing infrastructure on the reservation for transmission of the tribe's six-megawatt power allocation from WAPA.

Working together

Along with development of a utilities commission, Archambault said Standing Rock is talking with Rosebud about the possible establishment of an inter-tribal utilities commission.

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Neiss said there has been interest from the Yankton and Ogala Sioux, too. And Rosebud has offered to share its Title 20 regulatory code with others. He said the benefit of an intertribal commission, or at least commissions with similar codes, would be a continuity of regulation across tribal homelands, making it easier for utilities companies to follow. There is also the opportunity for shared resources to save on cost and increase representation on the national scale.

The Rosebud Sioux are hosting a discussion of intertribal utilities regulation April 28-29 in Rapid City, S.D., Neiss said.

Though Neiss said it hasn't been a part of conversations between the Standing Rock and Rosebud Tribes to date, Archambault points to one more potential strength of an intertribal utilities commission. He said having a shared commission could help tribes start conversations with state governments about the possibility of sharing jurisdiction on projects that cross tribal treaty lands.

"We'd love to build those relationships with the states," Archambault said.

The tribe defines treaty lands as lands within tribal territories established in the middle of the 19th century by various treaties between tribes and the federal government. Many parts of the treaties, which laid out rules for interaction among the tribes and provided easements for westward expansion, remain in effect today.

Areas on the Dakota Access Pipeline route run through the 1851 treaty territories of the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe, as well as through the Great Sioux Reservation drawn up in the Treaty of Fort Laramie of 1868. While Congress forced the tribes on to smaller parcels of land, the treaties of 1851 and 1868 didn't go away.

Archambault said joint jurisdiction on these lands would give tribes the opportunity to have a say as more than just stakeholders on projects crossing them. Tribal opinion could go from being recognized by state and federal regulators to having authority alongside them.

Chris Nelson, South Dakota Public Utilities Commission chairman, said he has no experience to draw upon to weigh how tribal and state regulators may work together on utilities projects. In the Rosebud Tribal Utilities Commission's more than 20 years of existence, no applications for permitting of projects that cross both tribal and state lands have come up.

"There isn't really any interaction between what we do and what they do," he said.

Nelson also declined to speculate on how tribes and states might share jurisdiction on treaty lands as it's still a "hypothetical proposal."

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