From Survival to Sovereignty: 1970s Energy Development and Indian Self-Determination in Montana's Powder River Basin

Bad Energy Deals and an Indian Uprising

The late twentieth-century push to develop Indian energy resources began in earnest in 1966. That year, Peabody Coal Company discreetly consummated energy deals that granted the world's largest private coal developer access to 40,000 acres of shared Navajo and Hopi land and an additional 100,000 acres on the Northern Cheyenne Reservation. In securing access to large reserves of western coal, Peabody was following a trend set by big oil firms seeking to diversify their energy holdings in light of unstable global petroleum supplies. When a few Arab states announced the first, half-hearted oil embargo in June of 1967, pressure to secure domestic energy sources increased. Add to this the 1970 Clean Air Act amendments that seemed to require utilities to burn low-sulfur, western coal to generate electricity, and the rush for Indian energy was on.5

Looking to western coal territories, energy companies focused their attention on the Northern Cheyenne and Crow Reservations in southeastern Montana, where between 1966 and 1972 ten different entities secured prospecting permits to access almost 600,000 reservation acres.6 These permits authorized energy companies to conduct exploratory operations to locate the richest coal veins and then granted them exclusive options to exchange their permits for outright leases to remove selected deposits. Similar interests and agreements were also generated for Indian coal in New Mexico, Utah, and Colorado. By 1973, energy companies nationwide had secured huge leases authorizing the removal of coal from close to 300,000 acres of Indian land. On average, each Indian coal lease provided access to 23,523 reservation acres. For comparison sake, the typical coal lease on federal land was only 1,470 acres.7

Guided by two aspects of federal Indian law—one a general principle and the other a specific statute—the Bureau of Indian Affairs hastily constructed these early energy deals. Citing the federal government's general trustee duty to responsibly manage Indian resources, the BIA worked eagerly with energy companies, and some tribal leaders, to negotiate agreements that would secure modest revenue streams for impoverished Indian communities. Unfortunately for the Indians whose minerals were being negotiated, crushing reservation poverty blinded the BIA and tribal leaders to other considerations, such as potential environmental and social costs. As James Boggs, the director of the Northern Cheyenne Research Project that organized to investigate the impacts of these energy contracts, later explained,

In the face of the extreme poverty endemic on reservations, the income from resource sales is such an obvious benefit that it tends to obscure other considerations. Because they are real, quantifiable, and desperately needed, it is easy to focus on these economic benefits and thus to identify the resource development desired by industry and government with increased tribal well-being.8

In a story that is all too well known in Indian Country, the federal government misapplied its trustee duty—which was intended to protect Indian resources—to encourage the development of tribal assets for the benefit of non-Indians.

While this tortured interpretation of its trustee duty may have provided the general motivation for BIA actions, the 1938 Indian Mineral Leasing Act dictated the specific structure of the agreements being negotiated. A product of the “Indian New Deal” crafted by Franklin Roosevelt's Commissioner of Indian Affairs, John Collier, this Act reflected Collier's desire to stimulate Indian economies and revitalize tribal governments, while also embodying his paternalistic stance towards Indians' inability to engage in industrial activities. More than anything, Collier sought to preserve his romantic, monolithic conception of Indian culture as essentially communalistic.9 Therefore, while he understood the need to develop reservation economies to sustain indigenous communities, Collier's support for economic development was tempered by his great fear that the rapacious demands of industrial capitalism would destroy Indians' communal ethic. Believing the tribes were unprepared to engage fully in industrial development and defend their existing values, his staff structured the 1938 Act to provide a uniform mineral leasing system where tribes, with BIA assistance, could solicit bids to develop their minerals, but they could not develop these resources themselves. This Act provided a mechanism for potential revenue, but tribal governments could only lease their mineral interests to outside developers, and federal consent was required for all mineral development activities.10

When put in practice and combined with the federal government's trustee duty, the 1938 Act largely left the management of Indian minerals to the BIA. When energy companies expressed interest in developing western tribes' coal reserves during the 1960s, the BIA jumped at the opportunity to provide much needed revenue to Indian communities and quickly put together standard long-term, fixed-royalty leases that returned as little as 17.5 cents per ton to the tribes.11 Certainly, tribal governments also were eager to explore the possibility of potentially lucrative mineral development, but once authorizing the BIA to market their minerals, most tribes' lack of experience in negotiating energy contracts forced them to rely upon federal officials to broker the terms of these deals. Moreover, their communities' acute poverty often compromised any bargaining power tribal leaders may have possessed.12 With tribal leaders unequipped to strike hard bargains and BIA staff motivated to generate revenue to alleviate Indian poverty, federal officials constructed leases that encouraged the rapid, large-scale development of Indian reservations. Once the terms were settled, the BIA then complied with the letter of the law by turning over the often unconscionable contracts to ignorant tribal councils for approval. Considering the desperate state of their communities and the modest bonus payments and royalties accompanying such deals, most tribes enthusiastically accepted these BIA-brokered coal deals.

That is, until a small revolution erupted in Montana's Powder River Basin during the summer of 1972.13 In July of that year, Consolidation Coal Company—a subsidiary of the behemoth Continental Oil Company (aka CONOCO)—bypassed the usual channel of a BIA-led coal auction and presented directly to the Northern Cheyenne tribe an incredibly lucrative offer to build a $1 billion dollar gasification complex on their reservation. Fed by coal extracted from a 70,000-acre reservation mine, the complex would consume annually 30 million tons of Cheyenne coal, offered a bonus payment of $35 an acre (for the 70,000 acre mine), and promised to return royalties of twenty-five cents per ton mined (estimated at 1 billion tons over the life of the mine).14 The offer far surpassed all previous proposals and alerted the Northern Cheyenne to the true value of their coal.

While the monetary potential was certainly enticing, Consolidation's offer also caused the Cheyenne to think twice about how such large-scale development would affect their tiny reservation. Located a dozen miles from the Montana Power Company's Colstrip power plant and its associated strip mines, reservation residents were acutely aware of the massive land disturbances associated with coal mining and feared Consolidation's project could impose similar changes to their land. In fact, despite the potential financial windfall energy development offered, a subsequent poll of Northern Cheyenne members revealed that over forty percent of respondents listed “environmental damage and loss of resources” as an expected “bad” consequence of reservation coal mining. Typical reactions focused on preserving the reservation's beauty for future generations, noting as one respondent did, “The reservation is one of the most beautiful places in Montana. Let's keep it that way for our children. Pollution also creates health problems that we cannot afford. We've always had clear air, good water. Our land is very good. Why ruin it now?”15 Although tribal members lacked specific information regarding potential environmental impacts, most possessed enough knowledge to be concerned.

Importantly, non-Cheyenne actors that shared these environmental concerns worked the reservation in the fall of 1972 to strengthen tribal members' critique of coal mining. The Friends of the Earth, the Environmental Defense Fund, the National Resources Defense Council, the Sierra Club, and the National Wildlife Federation all placed representatives in the region to publicize surface mining's adverse impacts to the environment. Harry Caudill, the famous crusader against Appalachian strip mining, toured the reservation in September 1972 to warn against the impending social and environmental consequences. That same month, the Northern Plains Resource Council organized in Billings, Montana to oppose coal mining and enable area ranchers “to have a say in the decisions that will affect their land…and to prevent damage to the land and…encourage an understanding of man's relation to this land.”16 Coordinating the message these groups delivered to the Northern Cheyenne, a young PhD graduate from the University of Michigan named Bill Bryan—who called himself the “Northern Rocky Mountain Environmental Advocate”—connected these groups with Cheyenne mining opponents so that, over time, tribal members extended their criticism beyond just concerns over massive land disturbances to also contest the degradation of regional air and water quality.17 And although the formation of a strong pan-Indian organization to denounce reservation energy development was still a few years off, the Northern Cheyenne Tribal President, Allen Rowland, met with Navajo and Hopi leaders to discuss the types of environmental impacts associated with mining on those two reservations. These discussions seemed to confirm Cheyenne concerns, leading the tribal government to take proactive steps to draft tough reclamation laws to mitigate harmful impacts should mining occur.18

Beyond disturbances to the local ecology, however, the Northern Cheyenne feared most the potential disruptions to established social patterns and cultural norms caused by a lack of control over the reservation. In the same poll that found forty percent of Northern Cheyenne respondents feared environmental impacts, almost eighty percent noted that coal mining's “worst” effect would be the associated “social and community problems,” such as the “breakdown of friendships, family and cultural values,” “increase in crime,” “non-Cheyenne population increase,” and the “increase in Cheyenne/non-Indian intermarriages.”19 Most often, these fears manifested as concerns over the massive influx of non-Indian laborers coal mining would bring. For example, when asked why, given the desperate economic state of his community, Rowland resisted energy development, the tribal leader deadpanned, “Because we would end up as a minority on our own reservation.” James Dahle, chairman of the tribe's mineral committee agreed: “It scares me. The biggest problem would be the influx of people working at the gasification plants. We aren't ready for that.”20 Others worried the quick infusion of royalty cash would alter the existing relationships and responsibilities that held their community together. Ted Risingsun, chairman of the local school board, explained, “Preservation of our culture depends on us. [Coal mining] is going to disrupt our entire way of life. Who is going to pay attention to the real basic essentials of life if we all of a sudden get some money?”21 Countless others echoed the fears of these Cheyenne leaders, arguing the influx of outsiders and money, over which their tribal government had little control, would change existing lifeways and lead to the erosion of Northern Cheyenne values. As one young Northern Cheyenne put it, “With more whites coming in, the Cheyenne way of life will soon be forgotten. There will be nothing but half-breeds and Indians thinking white, walking around.”22 Ruby Sooktis, a member of the Northern Cheyenne Research Project, summarized it even more bluntly, “[Coal mining] would be the final destruction of our tribe.”23

To combat this perceived assault on the tribe, several landowners organized to pressure their tribal council to halt all mining until measures were enacted ensuring tribal control over the pace and scale of these activities. Convening shortly after Consolidation's offer, the Northern Cheyenne Landowners Association littered the reservation with flyers declaring, “The ultimate end of the Northern Cheyenne Reservation and the removal of its people and the destruction of their culture seems [sic] inevitable unless measures are taken now to control the planned mining of coal on the reservation.”24 Quickly, this group mobilized the Northern Cheyenne to not only reject Consolidation's offer, but void all existing BIA-brokered coal leases. On March 5, 1973, the tribal council passed a unanimous resolution cancelling all coal contracts on the reservation.25 Within eight months of being presented with the most lucrative economic opportunity in the tribe's history, the Northern Cheyenne froze all reservation coal development.

Making sense of this surprising turn of events requires a clearer understanding of the significance of the reservation to the Northern Cheyenne, appreciating that the tribe's long memories of the struggle to obtain and protect this land base informed their conception of the reservation's importance.26 Set in this context, the Cheyenne perceived the reservation to be the last refuge for their people, a place they had fought desperately in the nineteenth century to acquire and one whose existence was intimately tied to the existence of the tribe itself. Quite literally, without the reservation—or with it being overrun by non-Indian coal operators and miners—there would be no Northern Cheyenne. As Joe Little Coyote, the tribal elder charged with preserving traditional Cheyenne culture, put it when supporting the moratorium on coal mining, “[My] Association, together with the Chiefs and Warrior Societies, are in full accord with the Tribal Council in its cancelling all coal development leases and permits on our homeland—our land that we must keep forever, since it is synonymous with our identity, above all, our very existence as a Cheyenne People!”27 A few years later, when the Northern Cheyenne petitioned the federal government to declare their reservation a “Class I” protected air shed so as to halt coal development near the reservation, the tribe articulated the importance of their reservation even more clearly,

In order to understand what this petition for Class I air quality status means to the Northern Cheyenne people, it must be understood in relation to the Tribe's history, its current actions, and in terms of the reservation's meaning as a home, as a last retreat, and as the only foundation on which the Northern Cheyenne can retain their life and identity as a people. It must be understood in the same context as the Tribe's walk against impossible odds and almost certain death a hundred years ago to reach its homeland, its consistent determination to maintain the integrity of the reservation, and its current refusal of instant riches for the sale of rights to violate this integrity. Redesignation to Class I is in the same spirit as everything else the Tribe has done during the last hundred years to secure its freedom and relative autonomy, and to retain the value and viability of its cultural identity.28

For the Northern Cheyenne, the fate of this land base and their existence as a distinct people were inextricably entwined.

The Cheyenne were not alone in articulating this fear that non-Indian controlled reservation development threatened their continual existence. On the adjacent Crow Reservation, where the BIA had negotiated coal contracts to open 300,000 acres of tribal lands to potential mineral development, residents also questioned the impacts of reservation mining. A 1973 survey of Crow attitudes revealed that, although nearly half the responders supported some sort of coal development, ninety-four percent desired a mining moratorium until the tribe better understood all associated impacts.29 Like the Northern Cheyenne, tribal members had concerns about potential environmental impacts, but feared even more the influx of outsiders would disrupt social patterns and alter cultural values. As one responder summarized the general sentiment, “With all the outsiders coming here to work, we will no doubt lose our culture as well as our way of life. We will be exposed to the whiteman's dog-eat-dog way of life which again I am definitely against.”30 The quote could have come directly from a Northern Cheyenne.

Despite the similarities in rhetoric, it would be a mistake to view the Northern Cheyenne and Crow situation as identical. While the Northern Cheyenne worked in a fairly unanimous fashion to void their leases, intense internal debates erupted among the Crow over whether to develop coal and under what conditions. While the fall lines of these disputes largely reflected existing political divisions within the tribe based on past opposition or support of federal programs, the specific arguments now revolved around whether the tribe could continue to survive as a distinct ethnic people if the land base upon which their tribal council supposedly governed was overrun by non-Crow energy developers. One Crow faction pushed for the desperately needed income promised by energy development, offering a conception of the tribe as a historically “pro-business, pro-white” enterprise that could adjust to any changes energy development produced. In contrast, the opposing side fought passionately to halt such activities, claiming that exploitative partnerships with energy companies threatened indigenous lifeways and thus the survival of the tribe as they conceived it.31 While these factions debated desperately the potential effects of energy development to the tribe, they ultimately agreed that the type of large-scale, seemingly uncontrolled development planned by the BIA challenged the political sovereignty of their tribal government. This, neither side could accept, as both recognized that political sovereignty was vital to the continued existence of their tribe, however each side defined it. United on this issue, the Crow followed the Northern Cheyenne example and petitioned to void their coal leases, explaining,

Our right to govern and control the activity of non-Crows on the Reservation has been challenged.…Large scale coal development will bring many non-Crow to the reservation. Without proper land use planning the Crow people could become a minority on our own reservation with little or no control of the use of our reservation land. In summary, the key to the successful and profitable development of our coal is the Crow Tribe's ability to control all coal development on our terms, and not the terms of any outside special interest group.32

No matter whether individual Crow supported or opposed coal development on the reservation, all agreed that that the tribal government must retain the political sovereignty to make this decision, or else the end of the tribe appeared certain.

This link between political sovereignty over reservation land and indigenous and tribal identities is often missed or misunderstood by romantic accounts of Indians mobilizing to protect “Mother Earth” from the disastrous consequences of industrial development.33 Although the 1970s environmental movement may have appropriated Native American images and concepts to support that movement's critique of industrial impacts to the land, the Indian relationship to land was different and more complex. In the case of the Northern Cheyenne and Crow, it was not so much that they protested the wanton destruction of their reservation by massive strip mining—though some certainly did—but much more important to them was who directed such activities. The vast majority of reservation tribes desired to develop their resources, but only if the tribe controlled the pace and scale of such development to ensure activities conformed to cultural expectations and social norms. The issue was not development, in other words. The issue was control. And this control was crucial not just for returning greater economic benefits or preventing ecologically destructive mining, but for ensuring an enduring sense of these people as a distinct tribal group. Nothing less than the survival of the tribe was at stake.

Unfortunately for the Crow and Northern Cheyenne, the federal law governing Indian mineral development thwarted such Indian control, as the 1938 Act authorized tribes only to lease their mineral interests to others, rather than allow Indians to develop these resources themselves.34 To seize the control they desired, the two tribes had to translate their passionate defenses of the reservation into effective attacks on BIA-designed resource development, and then mobilize to change federal law. Ironically, while one new environmental law—the 1970 Clean Air Act amendments—helped create a strong market for Indian coal, another piece of environmental legislation—the 1970 National Environmental Policy Act (NEPA)—provided the opening Indians needed to reclaim control over their minerals. NEPA required the federal government to conduct in-depth environmental analyses before taking any “major Federal action,” such as approving coal leases or mining plans.35 Slow to understand the Act's requirements, the BIA authorized coal leases without conducting the requisite analyses.36 Even for the permits issued prior to NEPA, federal regulations required officials to conduct a “technical examination of the prospective effects of the proposed exploration or surface mining operations upon the environment.”37 Inexplicably, the BIA failed to perform or document these investigations. In addition, the final leases issued far exceeded acreage limitations set in these same regulations to prevent the monopolistic control of one energy company over any given reservation.38 When the Northern Cheyenne and Crow petitioned to void their existing coal leases based on these violations, the Department of Interior had little option but to grant the petitions, suspend all mining activities, and require energy companies to re-negotiate directly with the tribes.39 This decision represented a crucial first step for expanding tribal sovereignty.

Born out of fear for their tribe's continued existence, the Northern Cheyenne and Crow launched successful movements to halt energy projects designed for their reservations. In doing so, the two tribes demonstrated a voracious tenacity to retain control over their land and a savvy understanding of federal law, forcing energy companies back to the negotiating table where better-informed tribal leaders awaited. This notable victory, however, stopped short of vesting full authority in these tribal governments to manage their resources in whatever manner they saw fit. Federal law still restricted tribes from developing their own minerals, requiring them to lease their interests to others to mine. To effect this more complete realization of tribal sovereignty required a fundamental shift in the relationship between the federal government and Indian tribes; a change that had to be cemented into federal law.

Manifesting Indian Sovereignty, Changing Federal Law

At the same time the Northern Cheyenne and Crow waged successful campaigns to halt BIA-designed energy development, these two tribes also began working with other Indian groups to determine how best to develop reservation resources themselves. Importantly, this pan-Indian movement to control the fate of their own minerals occurred within the context of a new federal policy that seemed to welcome exactly this type of self-help program. In July of 1970, President Nixon declared the old federal Indian policy of Termination “morally and legally unacceptable” and proclaimed a “new era in which the Indian future is determined by Indian acts and Indian decisions,” rather than federal agencies. Nixon's new policy of Indian Self-Determination re-affirmed the “special relationship between the Indian tribes and the federal government which arises from [treaties]” and established the goal of empowering tribal governments so that they may “strengthen the Indian's sense of autonomy without threatening his sense of community.”40 Seeking to eliminate the unhealthy dependency on the federal government, Nixon applied his New Federalism philosophy to propose a transfer of responsibility and authority for Indians' welfare to local tribal governments.

Indian tribes such as the Northern Cheyenne and Crow that possessed valuable natural resources were especially well-positioned to capitalize on this new policy that created space for greater Indian autonomy. After petitioning in the spring of 1973 to halt BIA-designed coal development on their reservation, the Northern Cheyenne released a proposal to mine five billion tons of reservation coal themselves, claiming, “The Northern Cheyenne intends to change the Indians' historic role of passive subservience to agencies who are charged with administration of trust responsibility for the benefit of the Indian tribes, and who in the past have evidenced little more than apathy toward this responsibility.”41 Similarly, the Crow made clear their intentions were not to prohibit all coal mining, but to assert new levels of tribal control over development to ensure all benefits accrued to the tribe. As Crow Tribal Chairman, Patrick Stands Over Bull, stated on the day his tribe filed a lawsuit to void BIA-negotiated coal leases, “This action on the part of the Crow Tribe does not mean that the Crow people are opposed to the development of our resources. We simply believe that if we are to permit the mining of our coal, we must adequately plan and prepare for the impacts of such development so that we can preserve our culture, our heritage, and our reservation.”42 By developing their own energy resources, these two tribes intended to hold Nixon at his word, translating the rhetoric of self-determination into actual sovereignty and reshape the traditional roles in the federal-Indian relationship.

To effect such momentous change, Indian leaders understood the need for collective action. In August of 1974, five months after the Northern Cheyenne released their proposal to develop their own coal and one month after the Crow declared their coal leases null and void, these two tribes sponsored an “Indian Energy Conference” in Billings, Montana. Organized by the National Congress of American Indians (NCAI) and funded by the Ford Foundation, this conference brought together representatives from dozens of energy tribes, officials from the Department of Interior, lawyers with the Native American Rights Fund, and energy industry experts. As articulated by conference organizer, Stuart Jamieson of the NCAI, the express purpose of the gathering was to “provide tribes with information and the details of developing resources on Indian reservations and how best to utilize them to the tribe's best advantage.”43 While certainly critical of BIA-led development, these energy tribes were still eager to develop reservation resources for the benefit of their communities.

In his opening statements, Northern Cheyenne President Allen Rowland set the tone for this unprecedented gathering, blasting the BIA for failing to uphold their trustee duty and leaving American Indians no choice but to organize collectively to protect their own resources. In Rowland's typically colorful language, he lamented,

[W]here's our trustees? Well by God, that's a damned good question. I've been looking around for them for a hell of a long time now, about 15 years. And every place I go, I find them working against us.…[S]o what's got to happen, the way I look at it, is the Indian people got to band together to save what we have left.44

Others echoed this sentiment. Noting the timely gathering was at “ground zero” on the issue of Indian energy development, the Ford Foundation's energy expert, Arjun Mukhijani, continually referenced the Organization of the Petroleum Exporting Countries' (OPEC's) ability to share resource information and collectively manage their assets for the greatest return to its members.45 Mukhijani and others envisioned a similar institution for American Indians, though they were careful to emphasize such an organization's information-gathering function rather than its potential cartel power, which would undoubtedly draw the ire of the American public and its government. Still, OPEC provided an imperfect example of the type of power Indians could wield if they organized to better control their minerals.

In this new era of Indian Self-Determination, even federal officials recognized the need for Indians to work collectively to protect and develop their resources. At the NCAI's annual gathering held in Denver, Colorado one month after the Indian Energy Conference, the Interior's Director of the Office of Trust Responsibility, Martin Seneca, explained candidly that the BIA could not be trusted to protect Indian energy resources. In a statement that must have shocked Indian leaders even if they long believed it to be true, Seneca told the gathering,

I say look after yourself. Use the Bureau of Indian Affairs…in whatever way you can to assist you in your development and progress of your reservation. But for God sakes, don't lay down and expect that just because the federal government is…charged with [the trust] responsibility, that all is well. You know,…if there's one message I'm going to carry every day to Indian tribes is to protect yourself, watch out, take care of your own interests.46

The collected tribal leaders needed little further encouragement.

While Indian leaders took heed of the BIA's warning, they still needed federal assistance to organize effectively. Clearly, the BIA was not the agency to provide such support, as it had been the source of so many bad energy deals. Logically enough, these leaders turned to the federal entity charged with developing the nation's energy resources, the Federal Energy Administration (FEA). Claiming that, collectively, American Indians owned one-third of the nation's coal reserves, half its uranium, and substantial oil and natural gas reserves; energy tribes argued that the FEA could not develop a national energy policy without the country's largest “private owners” of energy.47 The agency agreed and brought tribal leaders to Washington D.C. in September of 1975 to form an organization to represent these interests. Out of this meeting, twenty-five energy tribes organized the Council of Energy Resource Tribes (CERT) and began that organization's long, cozy relationship with the FEA and its successor agency, the Department of Energy.

CERT's formation represented an important step in Native Americans' project to regain control over Indian mineral development. While the organization's early years were marked by brash threats that this “domestic OPEC” would withhold Indian resources—an image CERT and Navajo chairman Peter MacDonald actively cultivated—CERT ultimately settled into the tedious and less publicized tasks of gathering resource information and assisting tribes to negotiate better energy contracts.48 Based on promises to develop energy resources for the good of the tribes and the nation, CERT secured federal grants to inventory Indian resources, assess environmental and social impacts of proposed development, and at the request of member tribes, conduct feasibility studies and provide technical assistance for specific energy projects.

While some Indian critics rightfully questioned the federal government's influence on CERT, the organization's actions to educate tribes were invaluable for equipping Indian leaders with the information and expertise necessary to hammer out better energy deals. For example, where early BIA contracts contained boilerplate language promising fixed-rate royalties of 17.5 cents per ton over the course of ten years, the deals negotiated with CERT's assistance often contained percentage royalties tied to market prices, with the opportunity to renegotiate every several years. They also included sizeable up-front bonus payments, though not at the expense of later royalties, as well as preferences for hiring local Indian labor. In sum, CERT's work provided individual tribes with the knowledge base necessary to negotiate from a position of strength, resulting in much greater financial terms in their mineral contracts.

More than simply returning larger economic benefits to Indian mineral owners, CERT's assistance also helped tribes push the bounds of federal law governing these minerals. While the organization itself rarely advocated for expanding tribal resource rights, the “alternative contracts” it helped construct often placed tribes in the position of equity partners in joint ventures, rather than simply lessors of mineral rights with little control over mining operations. As equity partners, tribes could participate in decisions regarding the pace and scale of production, influence personnel decisions, and demand compliance with tribal—rather than federal or state—laws related to environmental regulation, employee health and safety, and the taxation of royalties.49 While still reliant on corporate partners with the capital, machinery, and expertise to extract minerals, tribes used these alterative contracts to partially realize their goal of controlling the development of their own resources.

Although certainly a creative mechanism to obtain the control tribes desired, these equity ownership arrangements went beyond the scope of authority granted by the 1938 Leasing Act, which never envisioned Indians having the capacity to develop their own minerals. Nevertheless, the tribes argued such authority rested in their inherent powers as sovereign nations.50 Unsure of this legal argument, but mindful of the Self-Determination Policy's mandate for greater tribal autonomy, the BIA approved several of these alternative energy contracts during the late 1970s.51 Confident in the legal basis of these contracts, but uncertain of BIA's resolve to continue supporting such arrangements, Indian advocates simultaneously pushed for new legislation specifically acknowledging this authority. As early as January 1978, the Association on American Indian Affairs drafted legislation to clarify tribal sovereignty in this area and began working closely with Morris Udall, chairman of the House Committee on Interior and Insular Affairs, to usher the bill through Congress.52 Like many before, Udall understood the promise of self-determination meant nothing without an economic base to support Indian governance. Telling Indian leaders in early 1979 that “tribal sovereignty can have little meaning when the tribes must come, hat in hand, to the federal government to pay for the exercise of those powers,” Udall argued that true Indian sovereignty “can only occur through the orderly and rational development of the human and natural resources of the Indian reservations. …”53 While noting that current political conditions made immediate passage of a bill empowering tribes to manage their own resources unlikely, Udall spent the next two years holding hearings and soliciting comments from Indian groups and energy executives to build the record that would sustain congressional action.54

This push to enact legislation clarifying tribal sovereignty over reservation resources gained sudden urgency in the fall of 1980 when, once again, the Northern Cheyenne found itself at the center of the movement. The tribe that initiated the fight against BIA-directed energy development had recently negotiated its own oil and natural gas deal with the Atlantic Richfield Company that gave the tribe an option to remain owners in the venture. After hesitantly accepting similar deals for several years, however, the Department of Interior balked at this agreement, apologetically claiming existing laws granted no authority for Indian energy development outside of the standard leasing procedure.55 While federal officials later reversed course and ultimately accepted the deal after the developer assumed the risk of the contract being declared invalid, the agency's action temporarily threw the status of several prominent energy projects into legal limbo, drawing the ire of energy tribes and their corporate partners. Moreover, the timing of Interior's action was critical. Coming on the heels of President Carter's phased de-regulation of oil prices, the Iranian Revolution, and the Iraq invasion of Iran, global oil prices were at an all-time high. The demand for alternative domestic energy sources, such as low-sulfur Indian coal, had never been stronger.

In response, both the Justice Department and Montana's Senator John Melcher immediately drafted bills to recognize tribal authority to negotiate whatever type of energy contracts they desired, subject always to final federal approval. Melcher introduced his bill in November 1981, telling the Senate the “flexibility offered by my bill will…further promote Indian self-determination for energy development by allowing tribes to be involved in managing the development of their own resources in a number of ways not now possible under existing law.”56 Indian and industry leaders were even more emphatic, tying the passage of the bill to the survival of tribal communities and the domestic energy security of the nation, respectively.57 With the support of industry executives desiring greater access to Indian minerals, tribes seeking to maximize control over and economic returns from their minerals, and federal agencies operating under Self-Determination principles, Congress passed the Indian Mineral Development Act into law in December of 1982. Ten years after the Northern Cheyenne and Crow tribes orchestrated the revolt against BIA-led mineral development, Indian tribes finally secured the legal authority to manage their minerals in whatever manner they saw fit.

Conclusion

American Indian efforts to control energy development greatly expanded tribal sovereignty over reservation land and resources, thus constructing a new legal relationship between tribes and the federal government. Spurred by the encroachment on their sovereignty to expedite energy development—which Indians viewed as a threat to their very survival—two tribes successfully dismantled the existing system of BIA-brokered energy leases that rendered Indians passive witnesses to the development of their own minerals. These groups then spearheaded a national movement to allow tribes to construct their own energy contracts and develop their own minerals, ultimately changing federal law to recognize these rights. These efforts produced a new approach to Indian resource development that placed the tribe as the lead authority in land management decisions, an approach later extended to other reservation resources such as timber and agricultural land.58 Although President Nixon may have articulated the Self-Determination policy, these American Indians gave the policy “teeth,” transforming the rhetoric of autonomy into actual changes in federal law that recognized tribes' inherent sovereignty over their land.