Tribes Going Green and the Buy Indian Act

The Obama Administration has made its commitment to Native American economic development well known, and has likewise followed through with many of those promises. The President has included the Indian Health Service in the Affordable Health Care Act, devoted $3.2 billion in stimulus funds, and endorsed the United Nations Declaration on the Rights of Indigenous Peoples. In all, tribal leaders agree that Obama has brought progress to Indian Country.
On January 19, 2011, the U.S. Energy Secretary Steven Chu announced unyielding support for the tribes in their efforts to use alternative energies to "improv[e] the environment and support long-term clean energy jobs." Part of Secretary Chu's plan includes making up to $10 million available for renewable energy projects on tribal lands.

The Buy Indian Act
The Buy Indian Act was introduced in 1910 as a way to promote the employment of American Indians and the sale of American Indian-made products. The Buy Indian Act 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.
Congress has twice failed to pass amendments to strengthen the Buy Indian Act 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 Buy Indian Act implementation. Many tribes hope that the Administration will implement the Buy Indian Act as soon as possible, particularly as to its expenditures on solar projects and green energy investment. Two of the most overwrought subjects in Indian country, at least rhetorically, have been green tribal energy and "buy Indian" policies. Following through is the next necessary step.
Indian Country: Buy Indian
Tribes are already taking advantage of the opportunities available in solar development. Florida's Seminole Tribe is currently developing an entirely self-sustaining casino expansion. The Forest County Potawatomi Community in Wisconsin 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.
With these projects, the fact that tribes are doing much of the buying gives Indian Country the opportunity to take Buy Indian into its own hands, regardless of what the Obama Administration decides to do. The introduction of green energy economies via stimulus funds and federal programs, coupled with an already existing $26 billion Indian gaming industry, presents the perfect occasion for tribes to diversify their investment portfolios by investing in solar projects. But aside from direct returns, much of the direct investment will be headed to China – unless tribes are vigilant in their efforts to support the products of Indian industry that are currently available or that may become available in the future.
The most significant step that a tribal government can make is the adoption of a "Buy Indian" resolution pursuant to these projects that includes supportive, enforceable policies and set-aside purchases dedicated to Indian business. The Minnesota Indian Business Alliance has created an Example Draft Tribal Resolution that provides a great model. Likewise, the Hoopa Valley Tribe has adopted Buy Indian policies into their business code. Other tribes are in the process of following suit.
In many instances, investment in solar projects present an enormous opportunity for tribes to build up their nations and governing institutions by implementing their own laws, regulations, and enforcement mechanisms; and to do so cautiously, responsibly, and with care. In so doing, tribes should be careful to ensure that any laws or regulations passed pursuant to these projects include Buy Indian mandates. In this way, tribes can ensure that their investments escape the unfortunate "economics of clean energy" that are currently stifling the general market.

Ryan D. Dreveskracht is an attorney licensed in Washington State, where he focuses on issues in Indian Country. He can be reached at