Changing Winds: Reconfiguring the Legal Framework for Renewable-Energy Development in Indian Country

Renewable energy is undoubtedly one of today’s “hot topics,” often discussed hand-in-hand with climate change, environmental policy, and international affairs. Yet one aspect of renewable energy that frequently goes unnoticed is its role in the American Indian community. Tribal officials are increasingly focused on renewable-energy projects as a means of fostering economic development in Indian Country, and the proliferation of on-reservation projects attests to the growing importance of this field. However, native leaders, practitioners, and scholars face common struggles in bringing these projects to fruition—struggles rooted largely in the current state of federal law and policy. This Note examines the contours of these obstacles: first, renewable-energy tax credit non-transferability and second, tribal–state jurisdictional peculiarities, such as double taxation. Next, the Note illustrates these obstacles with examples from the Campo Kumeyaay Nation, the Confederated Tribes of the Warm Springs Reservation, and the Rosebud Sioux Tribe. The Note then analyzes a number of federal and non-federal solutions, ultimately concluding that Congress should make renewable-energy tax credits transferable and delineate tribal civil jurisdiction over energy-related activities. This conclusion is supported by numerous policy and practical considerations, not the least of which is Congress’s legal and moral responsibility to enable native economic well-being.