How to Improve Your Tribal Consultation Practice

By:      Gabriela Rios | Attorney | gabriela.rios@procopio.com

In the aftermath of the fight to prevent the construction of the Dakota Access Pipeline and continuing efforts to reverse the actions taken by the U.S. Army Corps of Engineers, many people are wondering how a future conflict such as this might be prevented.

Much of the problem—i.e., the desecration of cultural and religious sites–lies with inadequate consultation by the federal, state and local governments under federal law and policies, as well as a misunderstanding of or even a complete disregard for, tribal cultures and religions. I was recently reminded that some of the burden also lies with tribal governments. Although we should continually demand improved federal, state or local policies surrounding the protection of cultural and religious sites and for improved consultation with tribes,that is only half the battle. It takes two parties (at least) to consult.

Tribes must be effective participants at the consultation table.  One way to do this is to develop tribal consultation policies. Trese policies can provide an important tool to ensure meaningful consultation on a Tribe’s own terms. We have found that written policies also provide clear goals, rationale, predictability and consistency on the tribe’s side of the consultation, which provides structure to a dialogue with other government agencies that often lack each of these qualities.

The Indigenous Peoples Law and Policy Program at the University of Arizona James E. Rogers College of Law created a reference tool for tribes considering enacting their own consultation laws and policies, available here.  Consultation can mean different things to different tribes, and the capacity to respond to requests for consultation can vary from tribe to tribe. Therefore it is important to develop a process that implements best practices, but also one that the tribe has the capacity to implement.

Gabriela is a citizen of the Cahuilla Band of Indians and an associate with the Native American Law Practice Group. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is admitted to the State Bar of California.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Right Sizing Renewable Tribal Energy Projects at the Right Time

By:      Theodore J. Griswold | Partner | ted.griswold@procopio.com

What direction is renewable energy going in Indian country? Roof top solar is piecemeal and requires multiple individual actions to achieve a meaningful movement toward a green energy future. Utility scale solar and wind can impact large swaths of land and impact landscape-scale cultural viewsheds. Are community scale renewable energy projects the right fit for Tribal communities? More and more, it is appearing that this is the case.

In California, utility scale renewable energy facilities–those sized with the capability to sell energy to the energy grid in the hopes of making a profit–are facing the difficult situation of excess electrical generation during daylight hours that significantly complicate and undermine the financial viability of such facilities. However community scale facilities–those sized to serve a specific community, or portion of a community–are receiving increased attention and may be the direction of future Tribal projects. Community renewable projects allow for Tribal governments and businesses to survive off the grid, increasing energy security and in some places, providing cost effective energy in Indian country for the first time.

The need and wisdom of community scale renewable utilities were recently addressed in Rachael White Hawk excellent review of the forces and opportunities supporting the movement. As if on cue, shortly after the publication of her article, the Chemehuevi Tribe announced the opening of their community scale project in Southern California and the Blue Lake Rancheria announced the groundbreaking for a new community microgrid.

The Chemehuevi Tribe worked with community partners and UC Riverside to demonstrate how a modest-scaled solar project can serve community facilities with long-term research and energy savings results. The project includes a 90-kW solar array plus a 25kW/125-kW battery storage system which allows the benefitting facilities–the Tribe’s community center and housing agency offices—to remain functional during grid outages.

Like the Chemehuevi project, Blue Lake Rancheria has begun construction of a solar facility and battery storage that will allow the Tribe to continue operations in connected buildings without another connection to the grid. More ambitious, the Blue Lake Rancheria project combines a 500 kW solar PV array with a 950-kWh Tesla battery storage facility, and a microgrid that was developed in connection with Humboldt State University’s Schatz Energy Research Center, Idaho Natural Laboratory, and funding from the California Energy Commission.

Collaborative projects such as these may provide Tribal communities the best avenue to fund, develop and generate a dependable energy system that will reduce costs and could help support future economic development. What are your Tribe’s plans for greater energy security?

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.