Tribal Legal Issues
This page describes some legal issues concerning tribal energy development that are under the tribe's jurisdiction.
Utility or Enterprise?
Your tribe should first decide whether the project will serve as a profit-making enterprise or as a governmental function of the tribe. Tribes that have obtained a corporate charter from the U.S. Department of the Interior under Section 17 of the Indian Reorganization Act, 25 U.S.C. § 477, may decide to build and operate the project under the corporation. Your tribe could also form a corporation chartered under tribal law, if the tribe's constitution allows it. Help is available from the Small Business Administration, and the Department of the Treasury has also compiled a list of Native American Business Development Centers (PDF 47 KB). Download Adobe Reader.
Your tribe might also decide to build and operate the project as a public service under the tribal government, such as a tribal utility. This may require a tribal utility code. The tribe's governing constitution or corporate charter will determine what steps must be taken to properly authorize the project, depending on whether it is to be a business or a governmental entity. A model tribal law for energy and utility services has been prepared for Kansas tribes by the Mni Sose Intertribal Water Rights Coalition, Inc. and could be easily modified to serve the needs of other tribes. See the draft Model Energy and Utility Service Code (MS Word 233 KB).
New tribal laws may be needed to govern financing arrangements and development contracts. For these business relations, the tribe may decide to adopt a lease mortgage ordinance and an arbitration code. Some tribes have adopted noninterference codes, which restrict the ability of the tribe to adopt laws that would change the contractual relationship with developers and financiers. The tribe may also want to adopt environmental protection laws, cultural resource protection laws, building codes and worker safety laws, all of which will govern construction and operation of the project facilities.
States have developed extensive bodies of law surrounding the interpretation and enforcement of contracts. The tribe may want to consider a brief code that refers to state law in situations in which the tribal court interprets and enforces contract disputes. Reliance on state contract laws could be limited so that their application does not conflict with tribal laws, customs and traditions. The contract documents can also refer to state contract laws that would be used by an arbitrator or the tribal court to settle contract disputes.