| 15 February 2011
The change to a “clean energy economy” has become the Obama Administration’s tagline for pulling out of the recession by investing in renewable energy and clean technologies. The American Recovery and Reinvestment (ARRA) is one way the administration is walking the talk.
With ARRA, the administration has provided numerous opportunities for investment in solar projects. Demand is now there, but what about supply? It’s no secret that China is manufacturing most of the world’s PV panels. In attempt to stave off the influx of panels from China, the federal government is mandating that stimulus-funded public works projects must adhere to “Buy American” requirements for “all iron, steel, and manufactured goods.” Photovoltaic panels constitute “manufactured goods.”
Congress twice failed to pass amendments to strengthen the Buy Indian Act and has failed to evoke the law beyond road construction.
But the devil is in the details. According to the government’s procurement rules, components and subcomponents of construction materials used in federal infrastructure projects funded by the ARRA may be of foreign origin, provided that the final product is “manufactured” in the United States. There are also numerous exceptions that can be – and are being – evoked by stimulus recipients. In whole, the ARRA’s safety measures have remained largely ineffective.
At the same time, China has itself implemented protectionist measures. This includes a requirement that 75% of the content of government-purchased solar panels be Chinese-made.
This has prompted the Administration to take additional action by signing H.R. 6523 into law, which forbids the Department of Defense (DoD) from procuring foreign-sourced “photovoltaic devices.” The law mandates that all DoD contracts for solar panels include a “provision requiring the photovoltaic devices provided under the contract to comply with the Buy American Act.”
Opportunities with the Buy Indian Act
The application of an often-overlooked federal law may ensure that green energy investment stays in our economy, while at the same time fulfilling the government’s obligation to Native American tribes.
The Buy Indian Act (BIA) was introduced in 1910 as a way to promote the employment of American Indians and the sale of American Indian-made products. The BIA operates much like the Buy American Act, with a priority given to “the products of Indian industry.” The law directs prime contractors to use their best efforts to give Indian organizations and Indian-owned economic enterprises the “maximum practicable opportunity” to participate in subcontracts that it awards, and to do so to the fullest extent consistent with efficient performance of the contract.
The Energy Policy Act of 2005 authorized federal agencies to provide a preference for the purchase of any energy product or byproduct from a business entity that is majority-owned by an Indian tribe. Solar power generated by a tribal venture qualifies as one of these products, as do solar panels created by a majority Indian-owned company.
It took Congress until 1976 to adopt a procurement policy pursuant to the BIA. In 1982, Congress finally affirmed the procurement policy provided in 1976, but only as to labor on federal road construction projects. Largely due to stops implemented by the Bush, Sr. Administration, Congress twice failed to pass amendments to strengthen the BIA and has failed to evoke the law beyond road construction.
Currently, the Obama Administration is in the process of promulgating a new set of rules for BIA implementation.
Greening tribal lands
Last month US Energy Secretary Steven Chu announced support for the tribes in their efforts to use alternative energies.
The Administration has also made its commitment to Native American economic development well known. Last month US Energy Secretary Steven Chu announced support for the tribes in their efforts to use alternative energies and he committed to making up to $10 million available for renewable energy projects on tribal lands.
Tribes are already taking advantage of these opportunities. Florida’s Seminole Tribe is currently developing an entirely self-sustaining casino expansion. The Forest County Potawatomi Community has recently followed suit, announcing that it has purchased enough green power to meet 100% of the Tribe’s electricity usage, which include two massive casinos. The Navajo Nation’s Plateau Solar Project is bringing solar energy to many of its over 20,000 homes without electricity. The Jemez Pueblo Tribe in New Mexico is in the process of constructing the Nation’s first utility-scale solar plant on tribal land.
But will this investment be going overseas as well?
Many tribes hope that, in order to fulfill its dual commitment to the US economy and Indian Country, the Administration will implement the BIA as soon as possible, particularly as to its expenditures on solar projects and green energy investment. According to Pat Spears, President of the Intertribal Council On Utility Policy, with the BIA now gaining federal attention “[e]nough laws are in place . . . . Now our federal treaty partners need to follow through.”
Indeed, following through is the next necessary step. Two of the most overwrought subjects in Indian country, at least rhetorically, have been green tribal energy and “buy Indian” policies. The Buy Indian Act can assure that these idioms come to fruition, to the benefit of all.
About the Author
Ryan D. Dreveskracht is an attorney licensed in Washington State, where he focuses on issues critical to Indian Country.
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