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

It is important to note that wind power is not a panacea. Instead, it is one of many alternatives to the most predominant methods of producing electricity today that involve significant carbon output. Wind power does have its drawbacks in that it requires expansive open lands, changes the aesthetic features of the land, creates noise, and impacts wildlife. (87) These drawbacks, however, are minimized when a wind power facility is located in Indian country, with near limitless open spaces and low population densities to be adversely affected by any changes to the facade of the land.

The Rosebud Sioux Tribe has managed to position itself as a pioneer in the field of wind power development. This position comes with the possibility of great rewards and a satisfactory return on their investment that could permanently change the Tribe's economic situation. To this end, the Rosebud Sioux Tribe has found a potential source of income consistent with cultural values and mores than can be sustained for generations.

PATRICK M. GARRY, Assistant Professor of Law, University of South Dakota School of Law, Vermillion, South Dakota; Ph.D., J.D., University of Minnesota. The author would like to thank Ken Haukaas for his invaluable contributions to this article through his insight and expertise.

CANDICE J. SPURLIN, Senior Librarian, University of South Dakota School of Law, Vermillion, South Dakota; M.S., University of North Carolina at Chapel Hill; B.A., Augustana College.

DEREK A. NELSEN, J.D. Candidate, 2009, University of South Dakota School of Law, Vermillion, South Dakota; B.A., 2006, University of Nebraska, Lincoln, Nebraska.

(1.) See, e.g., ROBERT Y. REDLINGER ET AL., WIND ENERGY IN THE 21 ST CENTURY: ECONOMICS, POLICY, TECHNOLOGY, AND THE CHANGING ELECTRICITY INDUSTRY 1 (2002); Martin J. Pasqualetti et al., The Wind in One's Sails. A Philosophy, in WIND POWER IN VIEW: ENERGY LANDSCAPES IN A CROWDED WORLD 59 (2002); PAUL GIPE, WIND ENERGY COMES OF AGE (1995); Ronald H. Rosenberg, Diversifying America's Energy Future. The Future of Renewable Wind Power, 26 VA. ENVTL. L.J. 505, 522-24 (2008) (identifying the benefits of wind power as including the elimination of fuel costs in generating electricity, the emission of zero pollutants into the atmosphere, the lack of water for cooling purposes, and the elimination of hazardous materials from fuel use and production).

(2.) The Owl Feather War Bonnet wind energy project has been a collaboration between the Rosebud Sioux Tribe of South Dakota, Distributed Generation Systems, Inc. (DISGEN), the Department of Energy (DOE), and Intertribal Council on Utility Policy (COUP), among other private and governmental organizations. See Ken Haukaas, Owl Feather War Bonnet Wind Farm: The Rosebud Sioux Tribe 2-5 (2007), http://apps1.eere.energy.gov/tribalenergy/pdfs/rosebudO3final.pdf [hereinafter Haukaas, Wind Farm].

(3.) Mark Shahinian, The Tax Man Cometh Not: How the Non-Transferability of Tax Credits Harms Indian Tribes, 32 AM. INDIAN L. REV. 267, 269 (2007) ("Wind power from tribal lands could provide 22% of installed U.S. electric power generation capacity.").