EPA’s Indian Country Minor Source Rule: How is It Working?

A. Native American lands hold great potential for energy development. For example, the total value of oil, gas and coal extracted from such lands and sold in 2011 was $3.5 billion, up from $2.8 billion in FY 2010, according to the Government Accountability Office (GAO).1 Some estimate that the Bakken oil and gas fields in North Dakota alone, which in large part underlie a reservation, will yield up to twenty-four billion barrels of oil when fully developed.2

B. The authority to regulate energy development in “Indian Country”3 is a complex issue. There are three overarching jurisdictional principles that apply to any question regarding activities on tribal land.4 First, tribes have inherent sovereignty that exists independent of legislation or treaty. While not dependent on any grant by the United States, tribal sovereignty is recognized in the Constitution, case law, legislation and treaty. Tribes generally enjoy broad self-government. They may have their own laws and court systems that function entirely separately from state and federal law. Second, tribal self-rule is not unlimited. The United States often retains significant authority over certain activities in Indian Country. The United States is obligated to balance its own authority with the sovereignty of tribes, and to act in the best interests of tribes pursuant to what is known as a “trust” or special relatio