Energy is a key component in the redress of climate change evils and the United States has one of the highest per capita energy consumption in the world. The federal government’s goal is to reduce the country’s dependence on oil and double its wind and solar electricity generation by 2025. The development of renewable energy projects is to a great extent tied to Indian Country. This is highly important for Indian tribes as an empowering mechanism. Such projects could represent new sources of income for tribes whose traditional subsistence-based lifestyles have been impacted by climate change. Renewable energy projects in Indian Country are not new to the United States. However, this benign initiative of advancing clean energy projects on tribal land could create a new problem: the violation of tribes’ sovereignty and cultural integrity.
Part I of this article provides background information on the Quechan Tribe and introduces the controversy caused by the approval of the Ocotillo Wind Energy Project on lands with profound significance for Native American groups. Part II reviews the American legal framework regarding the right of consultation. Part III examines Colombia’s substantive and procedural protections of indigenous rights, and Inter-American case law. Part IV proposes a more beneficial interpretation of current legislation in favor of Native Americans’ rights using the trust responsibility doctrine. Part IV also proposes the creation of guidelines to transform the consultation process into a real government-to-government dynamic and to determine when FPIC is applicable as a mechanism distinguishable from consultation. In addition, Part IV shows the benefits of treating Native Americans as essential actors in a strategic partnership aimed to combat climate change and to comply with the national green energy policy in their territories. Finally, Part IV advocates for a higher standard of review for federal or state action affecting Native Americans’ rights.
Diana Coronel David, Green Energy in Indian Country as a Double-Edged Sword for Native Americans: Drawing on the Inter-American and Colombian Legal Systems to Redefine the Right to Consultation, 38 Environs: Envtl. L. & Pol'y J. 223 (2015).