Summary

• Objects (1 modified, 1 added, 0 removed)
  • Caselist.RoundClass[6]
  • Caselist.CitesClass[8]

Details

Caselist.RoundClass[6]

EntryDate

...	...	@@ -1,1 +1,1 @@
1		-2016-09-18 01:14:37.841
	1	+2016-09-18 01:14:37.0

Caselist.CitesClass[8]

Cites

...	...	@@ -1,0 +1,13 @@
	1	+Counterplan Text: The United States Federal Government should amend the Indian Tribal Energy Development and Self-Determination Act and all relevant sections of other federal laws to remove all environmental review provisions from Tribal Energy Resource Agreements.
	2	+Current law restricts the resource leasing process for Indigenous land through the Tribal Energy Resource Agreement process. Kronk 12
	3	+(Elizabeth Ann, Associate Professor of Law at the University of Kansas, Director, Tribal Law and Government Center, “Tribal Energy Resource Agreements: TheUnintended “Great Mischief for Indian EnergyDevelopment” and the Resulting Need for Reform29 Pace Envtl. L. Rev. 811 (2012), 5-21. http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1705andcontext=pelr)
	4	+Recognizing the importance of energy development in Indian country and the need to promote such development, Congress passed the Indian Tribal Energy Development and Self-Determination Act of 2005 as part of the Energy Policy Act of 2005.24 In relevant part, the Act allows tribes who have met certain requirements to "enter into a lease or business agreement for the purpose of energy resource development on tribal land" without review by or approval of the Secretary of the Interior, which would otherwise be required under applicable federal law.25 In order to qualify, a tribe must enter into a tribal energy resource agreement (TERA) with the Secretary of the Interior.26 The Secretary must approve the TERA if the tribe meets several requirements.27 One of these requirements is of particular importance to this article. Tribes are required to "establish requirements for environmental review"28, which must include mirroring requirements of the National Environmental Policy Act (NEPA).29 In addition to the numerous required elements that must be included in the TERA, the Indian Tribal Energy Development and Self-Determination Act of 2005 also expounds upon the federal government's trust responsibility to tribes as related to TERAs. Specifically, the Act states that nothing in this section shall absolve the United States from any responsibility to Indians or Indian tribes, including, but not limited to, those which derive from the trust relationship or from any treaties, statutes, and other laws of the United States, Executive orders, or agreements between the United States and any Indian tribe.3° However, the Act goes on to states that "the United States shall not be liable to any party (including any Indian tribe) for any negotiated term of, or any loss resulting from the negotiated terms of, a lease, business agreement, or right-of-way executed pursuant to and in accordance with a tribal energy resource agreement ...."31 The Act's mandated environmental review requirements, statement on the federal government's trust responsibility and general waiver of the federal government's liability will all be discussed in much greater detail below as they potentially relate to the reason why tribes may not be taking advantage of the Act's TERA provisions.
	5	+Removing TERA restrictions promotes Indigenous sovereignty. Kronk 12
	6	+(Elizabeth Ann, Associate Professor of Law at the University of Kansas, Director, Tribal Law and Government Center, “Tribal Energy Resource Agreements: TheUnintended “Great Mischief for Indian EnergyDevelopment” and the Resulting Need for Reform29 Pace Envtl. L. Rev. 811 (2012), 5-21. http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1705andcontext=pelr)
	7	+In sum, this proposal for reform would keep the existing general waiver of federal liability in the TERA revisions, but remove the federal mandates placed on tribes — notably, the federally-mandated environmental review and administrative provisions. This proposal is preferable to the existing scheme in that it would empower tribes to be true decision-makers as to matters affecting their territory. As seen above, tribes have a demonstrated record of success when serving as primary decision-makers. Moreover, the proposed reform would promote tribal sovereignty and self-determination, which is a stated goal of the Act. For these reasons, the proposed reform represents an improvement over the existing TERA provisions.
	8	+Federal control of economic decision making is the root cause of economic hardship in Indigenous communities. Kronk 12
	9	+(Elizabeth Ann, Associate Professor of Law at the University of Kansas, Director, Tribal Law and Government Center, “Tribal Energy Resource Agreements: TheUnintended “Great Mischief for Indian EnergyDevelopment” and the Resulting Need for Reform29 Pace Envtl. L. Rev. 811 (2012), 5-21. http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1705andcontext=pelr)
	10	+If Congress truly wishes the federal government to be free from liability with regard to certain types of energy development within Indian country, the TERA provision waiving federal government liability may remain. However, to maximize energy development within Indian country and truly promote tribal self-determination as is the stated goal of the Act, the federal government should remove some or all federal "conditions" on such development.142 This is consistent with the viewpoint expressed by Senator Campbell and discussed above; if tribes are to be sovereign, they must have control over regulation within their territories and also bear the liability for tribal decision-making.143 This means that federal mandates, such as the mandates listed in the existing TERA provisions related to environmental review, should be removed.144 Moreover, under the current provisions, "the government's significant involvement in the approval process could be interpreted as an infringement on tribal self-sufficiency and sovereignty."145 As previously discussed, many tribes and tribal representatives expressed strong concerns about federally-mandated environmental review provisions that would potentially disrupt tribal governance and subject tribal governments to standards not applicable to the states.146 Such reform would empower tribes to become the true decision-makers with regard to energy development under the TERA provisions. The proposed reform offers several benefits. First, tribes empowered as true decision-makers tend to perform better.147 Acting as decision-makers allows tribes to exercise their sovereignty, which as discussed above is tied to the overall likelihood of tribal economic success. In order for a tribe to exercise its sovereignty as a "true" decision-maker, the federal government must play a lesser role in making decisions affecting development within Indian country.148 In fact, scholars have deduced that "federal control over economic decision-making is `the core problem in the standard approach to development and a primary hindrance to reservation prosperity'."149
	11	+TERA environmental review mandates are a form of biopolitical control- they force Indigenous peoples to gain the approval of State officials for actions on their own land, treating Indigenous land as if it were owned by the federal government. Kronk 12
	12	+ (Elizabeth Ann, Associate Professor of Law at the University of Kansas, Director, Tribal Law and Government Center, “Tribal Energy Resource Agreements: TheUnintended “Great Mischief for Indian EnergyDevelopment” and the Resulting Need for Reform29 Pace Envtl. L. Rev. 811 (2012), 5-21. http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1705andcontext=pelr)
	13	+In addition to apparent consistency with the federal trust responsibility, federal liability under the TERA provisions is appropriate given that the federal government maintains a significant role in the development of energy within Indian country even under the TERA agreements. For example, under the TERA provisions, the federal government retains "inherently Federal functions."166 Moreover, as discussed above, the federal government maintains a significant oversight role through the existing TERA provisions because it has a mandatory environmental review process which tribes must incorporate into TERAs. The failure to relinquish oversight to tribes ensures that the federal government will maintain a strong management role, even after a tribe enters into a TERA with the Secretary of the Interior. Given that the federal government maintains a substantial oversight role under the TERA provisions (which it views as consistent with its federal trust responsibility), the federal government should remain liable for decisions made under TERAs. In addition to the strong administrative role that the federal government would still play under approved TERAs, it also maintains an important role as a tribal "reviewer." Under the TERA provisions, the federal government must review the tribe's performance under the TERA on a regular basis.167 Although the existing TERA provisions certainly mark an increased opportunity for tribes to participate in decision-making related to energy development within Indian country, the federal government's role should remain significant. The proposal to reinstate federal liability under the TERA provisions, therefore, recognizes the significant role that the federal government still plays under the existing TERA provisions.

EntryDate

...	...	@@ -1,0 +1,1 @@
	1	+2016-09-18 01:14:39.120

Judge

...	...	@@ -1,0 +1,1 @@
	1	+xx

Opponent

...	...	@@ -1,0 +1,1 @@
	1	+xx

ParentRound

...	...	@@ -1,0 +1,1 @@
	1	+6

Round

...	...	@@ -1,0 +1,1 @@
	1	+2

Team

...	...	@@ -1,0 +1,1 @@
	1	+Lynbrook Venkatesh Neg

Title

...	...	@@ -1,0 +1,1 @@
	1	+CP- TERA CP

Tournament

...	...	@@ -1,0 +1,1 @@
	1	+Loyola