Wind energy in Indian country: a study of the challenges and opportunities facing South Dakota tribes

South Dakota Law Review, Fall, 2009 by Patrick M. Garry, Candice J. Spurlin, Derek A. Nelsen

Further reducing potential profits for electricity in rural areas like St. Francis are the wheeling costs that must be paid when transferring electricity. Wheeling costs are the fees that must be paid to other utility companies for sending electricity over their transmission lines. (75) These costs are part of the reality for all types of electricity generated great distances from the cities where it will be consumed. What is unique about wind power is that unlike conventional types of power, it must be located in specific places where the resource is constantly strong. (76) These areas are often, as is the case in the Northern Plains, not near great population densities. This geographical reality is something that wind power facilities must be able to account for and overcome if they are going to successfully compete with fossil based electricity.

5. Practical Challenges in Operating a Business in Indian Country

A relatively unsettled issue when working with tribes is what laws apply in Indian Country should a dispute arise. (77) The principles of sovereign immunity can complicate legal issues that may arise should private investors and a tribe disagree on some aspect of a wind facility's construction or operation. (78) This issue includes what court will ultimately have jurisdiction to resolve a dispute. Three courts potentially have jurisdiction as either tribal, federal, or state courts may hear a case. This is important as both tribes and private investors should have some idea of which court may hear any future matter that may arise. (79) Private investors must be prepared for these unique issues that arise from conducting business in Indian country. (80)

V. CONCLUSION

Producing electricity through harnessing the wind's power is consistent with traditional native values. (81) Native cultural values teach that "wind is an essential part of the environment and that humankind is part of, not separate from, this environment." (82) As a result, some have come to see this wind resource as "a gift" of nature, much like the buffalo were in past centuries. (83) Recognizing the cultural acceptance of wind power production is important in building support at a local level. This general acceptance, however, does not mitigate some of the harms that must be taken into consideration by the tribes. (84) These harms include not only adverse affects on wildlife and flora, but also any detrimental impacts on the aesthetics of otherwise undeveloped land. (85)

Wind power remains a great opportunity for tribes to establish their presence in the growing energy markets across the country. The extent of this opportunity, and the results from a working project, however, remain elusive. It may be too early in the development of these projects to conclude that wind power is a "path to economic salvation" in Indian country. (86) Too many questions remain, and empirical evidence is needed before tribes can pursue such projects with the expectation of a high rate of return on their investment.