The loss of territoriality over lands conveyed under the Alaska Native Claims Settlement Act had adverse impacts for Alaskan tribal governance. Despite policy frameworks that emphasize the value of local governance at an international, regional, and statewide level, Alaskan tribes face unique obstacles to exercising their authority, with consequences for both human development and human rights. This Article examines how territoriality was lost and analyzes the four major effects of this loss on tribal governance. It then describes two distinct but complimentary strategies to rebuilding tribal governance authority that rely on both territorial and non-territorial authority.
Alaska tribes have limited control over their traditional lands and waters. Tribes may increase their influence through a Traditional Cultural District designation under Section 106 of the National Historic Preservation Act. This designation does not stop development, but requires federal agencies to consult with tribes regarding potential development that may impact the district. The consultation right applies regardless of whether a tribe owns or has formally designated the district. In Alaska, where no Traditional Cultural Districts exist as of 2014, there is potential for designating large areas of land or water that correspond to the range of traditionally important species.
What About BOEM? The Need to Reform the Regulations Governing Offshore Oil and Gas Planning and Leasing
Michael LeVine, Andrew Hartsig & Maggie Clements
The nature of offshore oil and gas activities is changing as companies are forced into difficult and remote areas, including the U.S. Arctic Ocean. As evidenced by the 2010 Deepwater Horizon tragedy and Shell's error-plagued efforts to drill exploration wells in the Chukchi and Beaufort seas in 2012, the rules governing whether and under what conditions to allow offshore drilling in frontier areas have not kept pace with environmental and technical changes. These rules were implemented in 1979 and have remained substantively the same since. Recent changes to at the Department of the Interior to disband the Minerals Management Service, improve certain safety requirements, and move toward implementing Arctic-specific spill prevention and response requirements are important steps. Those changes, however, apply only after the decision to allow oil and gas activity has been made. Congress has not amended the governing statute, and the agency has not modified in any meaningful way the regulations that govern the initial processes through which it decides whether and under what circumstances to allow offshore oil and gas activities in a given area. This Article argues that the regulations that govern offshore oil and gas planning and leasing should be fundamentally revised to account for changes in the industry and agency, remedy broadly acknowledged deficiencies, and reflect new administrative policies. It also recommends a path to achieve the needed change.
Since 2008, major oil and gas operators have invested billions attempting to drill Arctic Alaska's Outer Continental Shelf. However, offshore drilling in the extreme Arctic is fraught with infrastructural, technological and environmental challenges that could result in enormous damages if an accident ever occurred. While offshore drilling operations would significantly benefit both the state of Alaska and the United States, it is imperative that the United States' offshore regulatory regime adequately protects the Arctic Alaskan environment and innocent third parties. This Note examines the shortcomings of the United States' current offshore drilling regulatory regime and proposes a four-part scheme that properly incentivizes operators to drill safely and adequately compensates damaged parties. The United States should revise its regulatory regime by: (1) significantly increasing the liability cap; (2) increasing an operator's financial responsibility requirement in the form of mandatory third-party insurance; (3) establishing a risk-based premium fund; and (4) creating a supplementary fund from firms that extract hydrocarbons in excess of a specific threshold level.
Alaska's initiative process is unique—Alaska is the only state with a robust initiative culture and advance oversight over the content of initiatives by the Lieutenant Governor. This state of affairs is appropriate because it recognizes both the savings to the state and the benefit to citizens that advance oversight can achieve. It also places the power of advance oversight in the hands of the individual most qualified in Alaska to wield it. However, despite being generally commendable, the Alaskan initiative oversight process is not perfect. Because the Lieutenant Governor has this unique power, it is inappropriate for them to be elected on the same ticket with the Governor. This Note proposes that the Lieutenant Governor and Governor positions should be more distinct, by holding separate elections for the two offices and by establishing a standardized line of succession to the fill vacancies in the office of the Lieutenant Governor. On the way to this conclusion, this Note discusses a number of factors that should be considered before any change to the initiative process is made. The proposed change, however, does not run afoul of any of the concerns over changing the initiative process, and therefore should be adopted.