21.01.010 Findings

(a) Sovereign Power to Regulate Utilities. The power to regulate all public utilities is an inherent and essential part of the authority of any American Indian Reservation tribal government. This power is an aspect of the retained sovereignty of the Turtle Mountain Band of Chippewa Indians, an American Indian Tribe, limited only to the extent that such power has been specifically limited or withdrawn by federal law.

(b) The Turtle Mountain Band of Chippewa Indians is a federally recognized sovereign Indian tribe, organized and governed pursuant to a Revised Constitution and Bylaws approved by the Secretary of the Interior on June 16, 1959, as amended from time to time thereafter.

(d) This title is enacted pursuant to the inherent sovereign tribal powers expressly delegated to the Council in Article IX, Sections (a), (b), and (c) of the Tribal Constitution, which delegate general governmental powers and authorize the Council to, among other powers delegated, the following powers pertinent herein: (1) to represent the Tribe; (2) to negotiate with Federal, State and local governments and with private persons; (3) to regulate and license all business and professional activities conducted upon the reservation; (4) to enact ordinances to remove from the Reservation any persons or entities whose presence may be injurious to the peace, happiness or welfare of the members of the Band; (5) to enact ordinances to regulate the conduct and domestic relations of the members of the Tribe; (6) to manage, lease, permit or otherwise deal with Tribal Land, interest in lands and other lands or assets under tribal jurisdiction; and (7) to engage in any business that will further the economic well-being of tribal members.

(e) Need For Adequate Utility Regulations. As both the Indian and non-Indian populations within the boundaries of the Reservation increase, and as additional residential, commercial, governmental and agricultural activities multiply, the need for adequate utility regulations grows ever more serious. Inasmuch as the Reservation is checker boarded with both trust land and non-trust land, and inasmuch as both trust land and non-trust land are crisscrossed by electric lines, telephone lines, pipelines, rail lines and rights of way of both investor-owned and nonprofit utilities, adequate protection of utilities, the Tribe, tribal members and nonmembers requires that the Tribe regulate all utilities operating within the Reservation.

(f) Demonstrably Serious impact of Utility Activities. Upon the Economic Security, Health and Welfare of the Tribe and Tribal Members. The rural nature of the Reservation causes the development and maintenance of all public utilities within the Reservation to be more difficult and expensive than in urban areas of the United States. It is in the best interest of all members of the Tribe to assure the fair and equitable delivery of all 'public utility service to every member of the Tribe throughout the entire jurisdictional area of the Turtle Mountain Indian Band. The need for regulatory and/or ownership control over the various public utilities servicing the Reservation is enhanced by the fact that many homes of tribal members, especially HUD financed homes, are located in diverse rural sites; that many of these homes are "all electric," that is, heated solely by electricity; that there is a very limited supply of other practical heat sources for many tribal members and nonmembers; that the health and very lives of many tribal members and nonmembers are dependent upon an assured flow of electricity and access to telephone communications during the harsh, sub-zero winter months regularly experience on the Reservation; that there is a lack of practical transportation for many elderly tribal members and nonmembers during the harsh, subzero winter months; that tribal economic enterprises which are dependent upon access to public utilities, furnish the majority of jobs for both tribal members and nonmembers on the Reservation-all combine to make the regulation of the supply and delivery of public utility services of prime governmental importance to the people and business located within the jurisdictional boundaries of the Turtle Mountain Band of Chippewa Indians. And all evidence the demonstrably serious impact of utility activities upon the economic security, health and welfare of the Tribe, tribal enterprises and tribal members.

(g) State Jurisdiction. The State of North Dakota lacks jurisdiction to regulate utilities within the Reservation for the reason that state regulation of such utilities directly interferes with the right of the Tribe and tribal members to make their own laws and be governed by them. State regulatory interest is also preempted by the Tribe and the federal government with respect to all homes and businesses of tribal members financed in whole or in part by the Tribe or the federal government, all tribal buildings and businesses of the Tribe financed in whole or in part by the Tribe or the federal government and all Bureau of Indian Affairs or other federally owned or operated buildings.

(h) Need to Designate Service Area Boundaries of Public Utilities. The absent of Tribal regulation of the development and service of public utilities has resulted in a total failure to make any overall designation of service territory area boundaries for any of the public utilities servicing the Reservation. This has resulted in some instances, in the wasteful duplication of investment in facilities and service of utilities, while at the same time, some areas of the Reservation go with less than adequate facilities necessary to support existing and future development. Tribal members, Tribal enterprises and the Tribe must bear the ultimate cost of such duplication and lack of full area development and access.

(i) Illegal Collection of State Taxes By Utilities. Despite the fact that both tribal members, Tribal enterprises and the Tribe are each exempt from state taxes for all utility services Provided them within the Reservation, The Commission herein created shall police the collection of state gross receipts taxes, excise taxes and state income tax upon the business activities of public utilities with respect to services provided to tribal members, tribal enterprises and the Tribe within the Reservation. Such collection of state tax cannot be expected to stop unless tribal regulation identifies such practices and prohibits the continuance of such practices when found to be illegal.

(j) Consensual Relations Between Utilities Operating within the Reservation and the Tribe, Tribal Members and Nonmembers. The Council finds that every public utility which enters and operates within the Reservation, enters into consensual relations, commercial dealings and contracts with residents of the Reservation, Indian and non-Indian, and with the Tribe, to provide services, operate facilities, construct and erect pipelines, transmission lines, poles, towers and other improvements upon and across Reservation lands owned by Indians, non-Indians and the Tribe. The Council further finds that the services, rates, policies, procedures and practices of every utility located and operating upon the Reservation have a demonstrably serious impact which has the potential to imperil the economic security, health, welfare and general well-being of the Tribe, its members, and all residents of the Reservation and that regulation of every such utility by the Tribe is a necessary and proper exercise of the sovereign authority of the Tribe to limit exposure of the Tribe, its business enterprises and its membership from the risk of such peril. The Council further finds that regulation of such utilities located, operating or providing services upon the Reservation is an essential governmental function of the Tribe and that regulation of every such utility located, operating or providing services upon the Reservation by any State or any municipality or political subdivision of a State is an infringement upon the right of the Tribe to make its own laws and be governed by them and demonstrably imperils the political integrity and right of self-government of the Tribe.