Production Tax Credit

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NATIVES PTC AFFIRMATIVE 1.0 NATIVES 383838383838383838383838383838383838383838383838383838383838383838383838383838383838383838383 838383838383838383838383838383838383838383838383838383838383838383838383838383838383838383838 383838 PTC AFFIRMATIVE 1.0...................................................................................................................................1 IAC..................................................................................................................................................................................2 IAC..................................................................................................................................................................................3 IAC..................................................................................................................................................................................5 IAC..................................................................................................................................................................................6 IAC..................................................................................................................................................................................7 IAC..................................................................................................................................................................................9 IAC................................................................................................................................................................................10 IAC................................................................................................................................................................................11 IAC................................................................................................................................................................................12 PTC→ ECONOMIC GROWTH..................................................................................................................................13 PTC→ RENEWABLES................................................................................................................................................14 RENEWABLES→ECONOMIC GROWTH................................................................................................................15 PTC→ WIND................................................................................................................................................................16 PTC→ WIND................................................................................................................................................................17 PTC→ WIND................................................................................................................................................................19 TRIBAL WIND SOLVES ENERGY............................................................................................................................20 INTERNAL SELF DETERMINATION SOLVES SECESSION.................................................................................21 INTERNAL SELF DETERMINATION SOLVES SECESSION.................................................................................22 INTERNAL SELF DETERMINATION SOLVES SECESSION.................................................................................23 INTERNAL SELF DETERMINATION ≠ SECESSION.............................................................................................24 INTERNAL SELF DETERMINATION ≠ SECESSION.............................................................................................25 SECESSION≠ DESTROY DEMOCRACY.................................................................................................................26 SELF DETERMINATION K/T US HUMAN RIGHTS LEADERSHIP.....................................................................27 SELF DETERMINATION K/T HUMAN RIGHTS.....................................................................................................28 SELF DETERMINATION SOLVES CONFLICT.......................................................................................................29 US MODELED.............................................................................................................................................................30 US K/T KASHMIR.......................................................................................................................................................31 PAKISTAN K/T SOLVE TERRORISM.......................................................................................................................32 NO IMPACT TO SECESSION.....................................................................................................................................33 PLAN POPULAR.........................................................................................................................................................34 PLAN POPULAR.........................................................................................................................................................35 PLAN UNPOPULAR...................................................................................................................................................36 A2 SPENDING.............................................................................................................................................................37 A2 SPENDING.............................................................................................................................................................38

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IAC Observation One: Inherency Current U.S. tax policy denies Native Americans access to tax credits for renewable energy American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. "The power to tax involves the power to destroy," has become a shibboleth of any economic reading of U.S. constitutional law. 1 Yet behind Justice Marshall's oft-repeated words lies an important insight into the balance of power between sovereign entities. That insight is essentially this: the ability of an entity to maintain its sovereignty depends on economic power, and that economic power can be taken away by taxation. With the power to tax also comes the power to push, to encourage, to foster and to favor. If taxation can sap economic power, tax policy can also confer vast economic rents on certain favored groups. However, America's Indian tribes are a group not favored by federal tax policy. 2 This paper is concerned with elements of U.S. tax policy that do [*269] unrecognized harm to Indian tribes. In the standard analysis, Indian tribes benefit from tax-free status - it is a bright line rule of U.S. tax policy that tribes and their subsidiary corporations do not pay federal income taxes. However, the guarantee of tax-free status for Indian tribes also guarantees the tribes cannot use tax credits granted by the federal government.

Plan: The United States federal government should authorize American Indian Tribal eligibility for a permanent Production Tax Credit as identified in Internal Revenue Code 45. or Plan: The United States federal government should authorize American Indian Tribal eligibility for a permanent Production Tax Credit.

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IAC Advantage: Self Determination Current federal tax code creates an unequal economic playing field for American Indians Tex Hall, President of the National Congress of American Indians, 3-1-2004, http://www.eere.energy.gov/windandhydro/windpoweringamerica/filter_detail.asp?itemid=678&print Second, Congress must authorize the Tribal eligibility for the Production Tax Credit (PTC) that drives all wind projects in this country. Tribes are now penalized in that they cannot attract the private investor to develop partnerships for projects on Tribal lands. Indians are the only people with a "trust relationship" with the federal government. Our treaties require the federal government to assist us in developing our reservation economies. But all renewable energy incentives go to tax-paying developers via the PTC or to states or subdivisions of state through the Renewable Energy Production Incentive (REPI). Indians are the only group excluded from any of the federal renewable energy incentives, yet we are the only ones with a legal obligation — our treaties — for federal assistance! Currently, because Tribes are not taxed entities (a status we secured from the United States in return for our giving them most of this continent), any developer that teams up with a Tribe in a joint venture for wind development is penalized by only being able to use a portion of the available PTCs, which are apportioned under federal law by the percentage of ownership in the production facility. So if a tribe has any ownership in a project on Tribal lands, our partner must forego any incentives represented by our ownership. The PTC is the main driver for wind development in this country, but this federal incentive policy steers investment capital away from Indian lands. Intertribal COUP once proposed a Tribal energy production incentive to correct this federal oversight. Wryly called a "TEPI", it gently reminded Congress that it had an obligation to provide an equal playing field for Indian energy development. The Senate version of the federal energy bill contains language to allow Tribes and other nontaxed entities (such as municipal utilities and rural cooperatives) to sell, assign, or trade any tax credits that might become available to them, but those provisions were removed by the House in the conference committee. A current COUP proposal is a little more restrictive in scope, allowing joint ventures between Tribes and non-Indian developers to allocate the Tribe's share of the credits to their tax-paying partners. This proposal would be tax neutral, but it removes the penalty for investment in Indian Country through Tribal joint ventures. Tribes could still be principal owners of the project, but our partners would not be financially penalized.

Tradable tax credits will reduce tribal dependency and increase tribal sovereignty American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. The argument for a tradable tax credit is, at root, an argument for equity. Legal scholarship has a history of arguments for a federal tax treatment of tribes that allows tribal economies to develop. 23 The moral basis of arguments for an equitable - even favorable - tax treatment of tribes tends to rest on the federal trust responsibility toward tribes established early in U.S. history and articulated by Chief Justice Marshall in Cherokee Nation v. Georgia. 24 Writing of the Tribal Tax Status Act of 1982, legal scholar Robert Williams said "To satisfy the 'moral obligations of the highest responsibility and trust' incumbent upon the United States in its dealings with Indian nations, federal Indian Country development policy must address itself to the structural barriers currently preventing tribal economic and social self-sufficiency." 25 Lack of tribal access to tax credits is one of today's structural barriers. Addressing those barriers will help alleviate the federal concern for tribal economic development expressed by the Federal Reserve Bank of Minneapolis. "On Pine Ridge, Lower Brule and Rosebud reservations," a bank publication found, "roughly half of Indian families are poor." 26 By aligning the tax incentives tribal businesses face with those faced by the rest of the business community, the federal government will meet its goals of energy development, reduced tribal dependency and increased tribal sovereignty. That alignment of incentives can be made a reality by making wind energy tax credits tradable. More broadly, allowing tribes to utilize all tax credits now available only to

Michigan Debate Institute 4 Alderete.Randall.Blank.Farra PTC Affirmative tax-paying entities will better align the interests of tribal business and U.S. policy, and also will better provide for tribal economic development.

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IAC Tribal sovereignty is undermined by current federal jurisprudence. A nation-building approach like that offered by the plan will increase economic self-determination and tribal sovereignty. American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Tribal sovereignty may be the number one concern of tribes. Indeed, one prominent legal scholar identifies the right of self-government as the tribes' most valuable reserved right. 90 Historically, tribes have had good reason to fear a loss of sovereignty, 91 and modern jurisprudence has done little to assure them of their longterm status. 92In narrow terms, allowing tribes to develop and own their own wind generation will give them more control over their resources, thus increasing tribal sovereignty. In broader terms, increased economic self-determination - and specifically the ability of a local population to use and manage resources - is at the heart of many of the concerns about sovereignty around the world, from the debate over free trade 93 to the rapidly developing jurisprudence concerning the efforts of California and northeastern states to impose restrictions on greenhouse gas emissions. 94 Policymakers have thrown strong weight behind the idea that increased development of tribal energy and natural resources leads to increased tribal sovereignty. The Reagan Administration, for example, believed that strengthening tribal governments could be accomplished by resource development. The 1983 policy statement quoted above noted, "[t]his [*289] Administration pledges to assist tribes in strengthening their governments by removing the federal impediments to tribal selfgovernment and tribal resource development." The Reagan administration's philosophy was still prominent in 2005, when Congress passed the Energy Policy Act of 2005. Section 503(a)(1) of the 2005 Act reads, "To assist Indian tribes in the development of energy resources and further the goal of Indian self-determination, the Secretary shall establish and implement an Indian energy resource development program" 95In the Senate Report on the Energy Policy Act of 2005, the Energy and Natural Resources committee wrote:The Committee believes that the provisions contained in this legislation, especially when combined with the tax provisions to be offered from the Finance Committee, are the genesis for improving the national security of this Nation, enhancing the environment, strengthening self-government for Native American communities, decreasing dependence on foreign sources of energy, aiding the economy, and diversifying the energy base of the country. 96Note that the Senate Report specifically mentioned the tax provisions to be offered from the Finance Committee. In fact, language in the Act itself indicates that Congress may have wanted to address tribal tax issues at a later date. Section 503 further provides the "Secretary of Energy shall submit to congress a report on the financing requirements of Indian tribes for energy development on Indian land." 97 Making the PTC tradable for tribes, as part of a program to make all tax credits tradable for tribes, would have a positive economic impact on tribes. But to fulfill its potential, a tradable tax credit must be enacted as part of broader legislation to bolster tribal economic development. Or, as one scholar put it, "A federal Indian policy that focuses on the exploitation of tribal natural resources, and not on the development of tribal economies, is doomed to resistance and failure." 98 Much research has been done over the past decade on the factors that make tribal economies prosper, notably by Stephen Cornell, Joseph Kalt, Jonathan [*290] Taylor and their colleagues at the Harvard Project on American Indian Economic Development. 99 The main points of the research stress tribal governance, the importance of tribal sovereignty, tribal corporate governance and the need to think broadly about economic development in order for tribal enterprises to succeed.Cornell and Kalt, in particular, stress a nation-building approach:A nation-building approach to development doesn't say, "let's start a business." Instead, it says, "let's build an environment that encourages investors to invest, that helps businesses last, and that allows investments to flourish and pay off." A nation-building approach requires new ways of thinking about and pursuing economic development. Telling the planning office to go get some businesses going doesn't begin to crack the problem. The solutions lie elsewhere: in the design and construction of nations that work. 100New ideas in tax credits and other tax incentives for tribes can be a part of this nation-building approach, by laying the fiscal framework for tribal business to prosper.

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IAC Indigenous Indian development creates a solvent global model Miriam Jorgensen, Research Associate for the Harvard Project on American Indian Economic Development and consultant to the Standing Rock Sioux and White Mountain Apache Tribes, 1997, American Indian Studies, p. 137 In particular, the challenge for American Indian economic development is for it to be indigenously defined and institutionally based. As such, development will be a process which takes account of Native assets and goals and incorporates them into specific plans for the future. It will be capable of addressing welfare issues generally, and not income issues alone. Because it concentrates on institutional development, it will not put limited projects ahead of broader policy-making. It will create a political-economic environment which is conducive to investment by tribal members and non- members alike. Furthermore, its political and social institutions will together promote the continued success of these designated welfare- improving investments. Clearly, development that succeeds at combating poverty and its concomitant ills is not narrowly "economic." Finally, if Native nations achieve this kind of development, their success will be a beacon not only to other indigenous peoples whose colonizers allow a measure of political independence, but to all nations which are restructuring their development outlook. American Indian nations have the potential to show other countries —from Eastern Europe to Asia and beyond -how development can be done "right."

Suppression of self determination triggers war Glenn Morris, Professor of the Fourth World Center for the Study of Indigenous Law and Policy at the University of Colorado, 1999, Native American Sovereignty, p. 324-325 More important, the purpose here is to indicate that through the application of contemporary principles of international law, particularly in the area of decolonization and self-determination, indigenous peoples must ultimately be entitled to decide for themselves the dimensions of their political, economic, cultural, and social conditions. It must be emphasized that the construction of this position is not based in the supposition that because indigenous peoples constitute ethnic or cultural minorities in larger societies they must be protected due to that status. Rather, the position is that since Europeans first wandered into the Western hemisphere they have acknowledged the unique status of indigenous peoples qua indigenous peoples. That status is only now being reacknowledged through the application of evolving principles of positive and customary international law. While such assertions may seem novel and untenable at present, it should be recalled that just forty years ago, tens of millions of people languished under the rule of colonial domination; today, they are politically independent. Central to their independence was the development and acceptance of the right to self-determination under international law. Despite such developments, many colonized peoples were forced by desperate conditions to engage in armed struggle to advance their legitimate aspirations. Similarly, for many indigenous peoples few viable options remain in their quest for control of their destinies. Consequently, a majority of the current armed conflicts in the world are not between established states, but between indigenous peoples and states that seek their subordination. Armed struggle for most indigenous peoples represents a desperate and untenable strategy for their survival. Nonetheless, it may remain an unavoidable option for many of them, because if their petitions seeking recognition of their rights in international forums are ignored, many indigenous peoples, quite literally, face extermination.

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IAC Scenario One: Biodiversity A right to Self Determination will maintain indigenous peoples’ connection to the land and their cultural identity Quane 2005 [Helen, Lecturer in Law, University of Wales, Swansea, United Kingdom]“The Rights of Indigenous Peoples and the Development Process” The Johns Hopkins University Press Human Rights Quarterly 27.2 (2005) 652-682. The article begins with a brief examination of the definition of an "indigenous people." It then examines the scope of several rights claimed by indigenous peoples. The emphasis is on rights of particular significance to indigenous peoples in a development context, namely, the right to self-determination, the right to participate in public affairs, and the right to enjoy one's culture. As previously noted, the right to self-determination underpins all other claims advanced by indigenous peoples. If they are successful in claiming this right, it could be used to exert greater control over development projects on ancestral lands such as the construction of dams, the extraction of mineral resources, and the use of traditional plants and indigenous knowledge for pharmaceutical products. In the present context, [End Page 656] the right to participate in public affairs could be significant in enabling indigenous peoples to participate effectively in the formulation of development projects that affect them. Finally, the right to enjoy one's own culture could have important implications in a development context given the close connection between lands traditionally owned or occupied by indigenous peoples and the preservation of their cultural identity. For this reason, the right to enjoy one's culture could have an impact on development projects affecting indigenous land and resources.

Indigenous self determination is key to biodiversity Dean B. Suagee, Director, First Nations Environmental Law Program, Summer, 1999, Arizona State Law Journal, 31 Ariz. St. L.J. 483 In tribal cultures, places that are regarded as sacred tend to be located in places where the web of life has not yet been disrupted by human activity. The web of life in such places may reflect hundreds or thousands of years of the presence of human cultures, but the web has not been ripped apart by the kinds of activities that industrialized cultures allow to take place under the banner of "development." Many of the non-human kinds of living things that make up the web of life in such places- what human policy-makers now call "biological diversity" or "biodiversity"-hold significance in tribal [*488] religions and cultures: eagles, wolves, salmon, ravens, coyotes, buffalo, cedar, sage, sweetgrass, to mention just a few. Because tribal cultures are rooted in the natural world, protecting the land and its biological communities tends to be a prerequisite for cultural survival. Much has been written about whether or not tribal cultures embody values that can be described as environmental ethics, or, to frame the inquiry in the past tense, whether or not the cultural values and practices of tribal peoples enabled them to provide for human needs and wants without causing irreparable damage to their environments. Professor Rebecca Tsosie recently reviewed a substantial amount of the literature on this topic and concluded, after raising the usual cautions about generalizations, that, for most indigenous cultures of North America, traditional Indian world views can be described as having several common aspects: a perception of the earth as an animate being; a belief that humans are in a kinship system with other living things; a perception of the land as essential to the identity of the people; a concept of reciprocity and balance that extends to relationships among humans, including future generations, and between humans and the natural world. A basic premise of this article is that the objectives of the movement to preserve biodiversity will be served by recognizing the human rights of indigenous peoples. The most effective way to make use of their traditional ecological knowledge is to recognize the rights of indigenous peoples to govern their own territories. The national and sub-national governments of the world should support these rights by showing the same kind of respect toward indigenous peoples that they show in their interactions with other governmental entities. This premise is based, in part, on the historical experience in the United States, which has shown that tribal self-government is a prerequisite for cultural survival.

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IAC Scenario Two: Pakistan Pakistan wants Kashmiri self determination The Bulletin's Frontrunner, 1/7/2002 The Washington Post (1/7, A14, Cody) observes, "Beneath the public relations coup, tucked discreetly into his summit declarations, were repeated warnings from Musharraf that terrorism launched from Afghanistan is one thing, rebellion in Kashmir another. Pakistan's overriding national cause -- self-determination for fellow Muslims in Kashmir -- must not be blurred into the struggle to extinguish terrorism that has become paramount for the United States since Sept. 11, he said." Continues the Post, "'We cannot address only the symptoms and leave the malaise aside,' he declared. 'It is equally important that a distinction be maintained between acts of legitimate resistance and freedom struggles on the one hand and acts of terrorism on the other.'" Adds the Post, "Musharraf, a tolerant Muslim, had ordered his security services to smother antiAmerican demonstrations during the early days of the U.S. bombing campaign in Afghanistan in October. The protests were encouraged by Pakistan's radical Islamic groups, whose leaders supported the Taliban and its uncompromising version of Islam. They were the same kind of groups -- in some cases the same groups -that have been leading the charge in Kashmir with Islamabad's encouragement for the last decade."

U.S. pressure for internal self determination is key to prevent India-Pakistan nuclear conflict Michael Kelly, Director of Legal Research, Writing & Advocacy at Michigan State University's Detroit College of Law, 1999, Drake Law Review Kashmir is now occupied by three sovereign nation-states: India, which controls the lion's share; Pakistan, which occupies a small western portion; and China, which controls Ladakh. Various mediations of the situation have been attempted (the United Nations from 1948-58, the U.S.S.R. from 1965-66, and the United States in 1990), but to no avail. Predictably, the situation in Kashmir has degenerated. There are both secessionist groups and unionist groups taking militant action against each other and the Indian army that has occupied the state to enforce military rule for most of the 1990s. Violence has become the daily norm for this region. In 1990 alone, there were 3000 deaths related to the unrest in Kashmir. Complicating matters, and of concern to the world community and the United Nations, is the recent development of nuclear capabilities on the part of both India and Pakistan. Indeed, as the realistic and potential flashpoint amongst the three occupying nuclear powers, Kashmir has been referred to as a "nuclear tinderbox" waiting to be ignited. One formula recently put forward, and significantly based on principles of self- determination, calls for the creation of a "Kashmiri Autonomous Region" under nominal Indian control that would exist until a referendum can be held, at which point the various parts of Kashmir can freely choose with which sovereign they wish to associate without the entire region going as a single entity. This appears to be a rational suggestion. But until the United States can weigh in to pressure the concerned parties into a joint settlement, it is likely to go unrealized. Thus, self-deterministic issues continue to fester and foment further violence while simultaneously offering an elusive solution to the problem.

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IAC The multilateral coalition is key to solve terrorism and maintain U.S. leadership Newsweek, 10/15/2001 We can define a strategy for the post-cold-war era that addresses America's principal national-security need and yet is sustained by a broad international consensus. To do this we will have to give up some cold-war reflexes, such as an allergy to multilateralism, and stop insisting that China is about to rival us militarily or that Russia is likely to re-emerge as a new military threat. (For 10 years now, our defense forces have been aligned for everything but the real danger we face. This will inevitably change.) The purpose of an international coalition is practical and strategic. Given the nature of this war, we will need the constant cooperation of other governments--to make arrests, shut down safe houses, close bank accounts and share intelligence. Alliance politics has become a matter of high national security. But there is a broader imperative. The United States dominates the world in a way that inevitably arouses envy or anger or opposition. That comes with the power, but we still need to get things done. If we can mask our power in-sorry, work with--institutions like the United Nations Security Council, U.S. might will be easier for much of the world to bear. Bush's father understood this, which is why he ensured that the United Nations sanctioned the gulf war. The point here is to succeed, and international legitimacy can help us do that.

US leadership is essential to prevent global nuclear exchange. Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 1995 Under the third option, the United States would seek to retain global leadership and to preclude the rise of a global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term guiding principle and vision. Such a vision is desirable not as an end in itself, but because a world in which the United States exercises leadership would have tremendous advantages. First, the global environment would be more open and more receptive to American values -- democracy, free markets, and the rule of law. Second, such a world would have a better chance of dealing cooperatively with the world's major problems, such as nuclear proliferation, threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S. leadership would help preclude the rise of another hostile global rival, enabling the United States and the world to avoid another global cold or hot war and all the attendant dangers, including a global nuclear exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a multipolar balance of power system.

Another attack could kill millions The Washington Times, October 16, 1998, Pg. A21 But that's the way it goes. A historical event surrounded by great theatrical effects makes a really big impression. But what if the next weapon of mass destruction is silent, gives no warning, is not preceded by a pyrotechnic blast, but takes effect more slowly, leaving hospitals swamped, and millions in great American cities with hideously blistered faces dying in the streets? The doctors sent to succor them also die the same painful and unsightly deaths. For biological weapons now have the potential to wipe out cities, states and even entire national populations if positioned in the air, water supply or food supply. The food supply would progressively be shipped to various parts of the country, ultimately killing millions of people. And all, except for the groans of the dying, could be done in relative silence, with only the piles of dead in the streets to bear witness as in the Plague Years of the Middle Ages.

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IAC Scenario Three: Democratization International support for internal self determination is key to democratization Eric Kolodner, currently completing a joint degree at New York University School of Law and Princeton University's Woodrow Wilson School, Fall 1994, Connecticut Journal of International Law, 10 Conn. J. Int'l L. 153 The international community, therefore, should attempt to resolve conflicts under principles of internal selfdetermination before supporting a people's right to external self-determination with its potentially disruptive consequences. Although this strategy has not been explicitly enunciated in the international arena, it is derived from principles found within the Declaration on Friendly Relations. This document implies that a people's claim to external self-determination is less legitimate when it is living under a system of democratic governance, i.e., when it can effectively exercise its right to internal self-determination. Movements for internal self-determination are, in fact, coterminous with movements for increased democracy, which have recently swept the globe from the former Soviet Union to Guatemala. Some observers have even begun to advance the idea that there exists an emerging right to democratic governance which may create an obligation for the international community to promote and protect democracy. The international community must direct its efforts towards defining the parameters of this emerging right to democratic governance and thereby delineate the boundaries of the right to internal self-determination.

Global democratic consolidation is essential to prevent many scenarios for war and extinction. Carnegie Commission on Preventing Deadly Conflict, October 1995, “Promoting Democracy in the 1990’s,” http://www.carnegie.org//sub/pubs/deadly/dia95_01.html, accessed on 12/11/99 OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.

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IAC Observation Two: Solvency PTC for Tribes is a narrow targeted fix to a problem enhancing sovereignty and solving energy resource shortfalls American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. To help resolve the problems outlined above, Congress should institute tax- credit tradability for tribes, including a tradable PTC. Congress should change the current non-assignable status of tax credits and allow tribes to trade their tax credits to business partners with tax liabilities in return for cash, equity or other consideration equal to the value of the credits minus any (presumably minor) transaction costs. This is a narrow, targeted fix to a problem, which does not require large-scale revisions of the tax code or of the federal-tribal [*283] relationship. With this sort of provision in place, tribes could become involved in businesses that make heavy use of tax credits.A. Tradable PTC is Win-Win Tradable tax credits would be an ideal solution for all parties - tribes, government and private business. Tribes would gain economic development opportunities; government would be able to further promote the business ventures it is trying to encourage through the tax code and would reduce tribal dependency on federal dollars; private business would be able to partner (and profit) with tribes in developing an important natural resource. Each party would bring something to the table. The tribes would contribute the resources - land, wind and labor. The outside investor would contribute the capital. The federal government would contribute the tax credits. The tribes and the outside investor would be partners, both sharing in the venture's profits. The tribe would take much of the cash flow, while the outside equity investor would take all of the tax credits and, depending on the arrangement, some of the cash flow from the project.

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PTC→ ECONOMIC GROWTH Native’s tax status prevents their partial rights to project cash flow American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Production Tax Credits can be shared between multiple owners of a single wind farm, but according to IRS rules, credits can be shared only in proportion to the cash flow the respective owners receive from the wind farm. 38 This non- severability of tax credits from cash flow means that tribes cannot own partial rights to project cash flow, because that would mean the tribes also own the rights to the tax credits - tax credits which the tribes cannot use and so would not contribute to a project's bottom line. For example, in a project with two tax-liable owners, BigBank with a 40% share of cash flow and Developer [*277] with a 60% share, 40% of the tax credits must flow to BigBank and 60% must flow to Developer, and neither partner can assign their tax credits to each other or to a third party. So, if BigBank partners with GreatTribe (with a forty-sixty share, respectively), 60% of the PTC will go to GreatTribe. GreatTribe cannot use the tax credit and cannot assign it, and the partnership will suffer financially.

Tax credits solve the lack of capital investment in Indian Country American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Tradable tax credits are a targeted, practical policy instrument. They have been used by the states, they are revenue neutral, and they enjoy broad political support from politicians, policymakers, and tribal groups. Tradable tax credits carry out the clearly articulated congressional goals of providing incentives to certain economic activities, reducing tribal dependency through resource development, and increasing tribal sovereignty. Indian Country suffers from a $ 50 billion shortfall in capital investment. 101 The federal government has a number of tools at its disposal which it can use to address the problem - a tradable tax credit is lying at the top of the toolbox and should be made a permanent fixture of U.S. energy and Indian law.

Changing the tax code will simultaneously achieve goals of tribal and renewable energy development American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. There are three clear rationales for this change in the tax code. First, the change will give tribes the same incentives as the rest of the business community as tribal economies develop. Second, the change will reduce tribal dependence on federal grants, as larger pools of investment capital become available to tribes. Third, the change will increase tribal sovereignty, as dependence is reduced. 1. Aligning IncentivesMaking tax credits tradable by tribes - and thereby aligning the financial incentives of tribes with the rest of the U.S. business community - promotes the federal goal of guiding economic activity, whether in the wind power industry or in other industries with substantial tax credits. Congress is bent on fostering renewable energy production in the United States. Congress is also bent on fostering tribal energy development. If Congress made the PTC tradable, tribes would face the same tax incentives as the rest of the business community, renewable energy development on tribal lands would increase, and Congress would take a step forward in achieving its goals of tribal and renewable energy development. Tax credits are economic incentives the government provides to promote certain activities. 76 With these incentives, the government is trying to encourage economic activity (such as charitable giving or pollution-free energy production) that the government considers socially beneficial. 77 The government has an interest in promoting those activities targeted for promotion to the fullest extent possible, including in Indian Country.

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PTC→ RENEWABLES Changing the tax code will simultaneously achieve goals of tribal and renewable energy development American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. There are three clear rationales for this change in the tax code. First, the change will give tribes the same incentives as the rest of the business community as tribal economies develop. Second, the change will reduce tribal dependence on federal grants, as larger pools of investment capital become available to tribes. Third, the change will increase tribal sovereignty, as dependence is reduced. 1. Aligning IncentivesMaking tax credits tradable by tribes - and thereby aligning the financial incentives of tribes with the rest of the U.S. business community - promotes the federal goal of guiding economic activity, whether in the wind power industry or in other industries with substantial tax credits. Congress is bent on fostering renewable energy production in the United States. Congress is also bent on fostering tribal energy development. If Congress made the PTC tradable, tribes would face the same tax incentives as the rest of the business community, renewable energy development on tribal lands would increase, and Congress would take a step forward in achieving its goals of tribal and renewable energy development. Tax credits are economic incentives the government provides to promote certain activities. 76 With these incentives, the government is trying to encourage economic activity (such as charitable giving or pollution-free energy production) that the government considers socially beneficial. 77 The government has an interest in promoting those activities targeted for promotion to the fullest extent possible, including in Indian Country.

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RENEWABLES→ECONOMIC GROWTH Renewable energy development serves as a model for self-development Bismark Tribune, August 19, 2001 The Blackfeet, whose reservation borders Glacier National Park and the Canadian province of Alberta, also have timber and water resources that could play a role in a long-range economic plan, Parsons said. In North Dakota, the Three Affiliated Tribes also are looking at wind generation as a source of electricity for reservation businesses and residents, Chairman Tex Hall said. The Three Affiliated Tribes also see wind energy as a possible job creator. 'Wind energy can help reduce (electricity) costs of each household but still provide a profit for economic development to generate new jobs,' Hall said. Successful projects between Indians and outside partners could serve as a model for other tribes, and allow for an exchange of ideas among cultures, said Larry Flowers, with the National Renewable Energy Laboratory. Prospects for wind energy development have some residents on the Blackfeet reservation excited. 'It would provide jobs, you could train people. I don't see any bad in it,' Yvonne Night Gun said. 'It's a natural resource that should be tapped into,' William Wade Running Crane said. 'The wind keeps on coming.'

Renewable energy boosts the entire economy of the reservation Bismark Tribune, August 19, 2001 The wind can howl for days without taking a breath, blowing with a force known to tip over railroad cars. Leaders of the Blackfeet Indian reservation, where unemployment hovers near 70 percent, hope the wind has enough strength to carry off some of the poverty, too. The Blackfeet, who live in the shadows of the Rocky Mountains in northwest Montana, are developing what is being called the first commercial wind farm on an American Indian reservation. Indian leaders hope to harness what often has been seen as little more than a nuisance and turn it into a moneymaker for their communities. The wind farm, scheduled for construction near the eastern boundary of Glacier National Park as early as next year, could produce enough electricity to power 20,000 homes. Besides money and jobs -- including an estimated 30 construction jobs and up to six permanent positions -- Indian leaders see a field of dozens of tall wind turbines as a possible tourist draw that could help other sectors of the local economy. 'It's one avenue by which we can reach our economic independence,' said Marilyn Parsons, the tribe's planning director.

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PTC→ WIND Federal tax credits are necessary for American Indian Tribes to develop wind power industries American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. In certain industries, federal tax credits play such an important financial role that entities unable to use those tax credits are at a significant financial disadvantage to entities able to utilize the tax credits. Federal tax credits play a key role in the coal bed methane extraction industry, 3 the low-income housing development industry 4 , and the wind power industry, 5 among others. In some of these fields, tribes cannot make use of the tax credits, and so face a severe financial handicap as compared to entities that can utilize the tax credits. Perversely, this handicap is present in precisely the industries the federal government has decided to nurture and encourage - for instance, the wind energy industry.To bring focus to the discussion of tax credits and tribes, this article examines how the inability of tribes to access federal tax credits handicaps tribes' ability to own and develop wind farms. Indian tribes could be a major force in the growing U.S. wind industry. Wind power from tribal lands could provide 22% of installed U.S. electric power generation capacity. 6 Renewable energy development is an issue with broad support in the United States and has the potential to bring significant economic benefits to the tribes.

Credits are a prerequisite to wind industry development American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. In order to successfully develop a wind farm, a wind project's owners must have access to federal tax credits. Tax credits for wind production are so valuable that wind farm owners who cannot make use of the tax credits are at a severe financial disadvantage as compared to those who can take advantage of tax credits. A. Federal Tax Credits for Wind Power Two programs are the primary drivers of wind development in the U.S. today: (1) State Renewable Portfolio Standards (RPS) and; (2) Federal tax credits, especially the Production Tax Credit. Two types of federal tax credits come into play: the Production Tax Credit (PTC) and MACRS. 27 These tax credits, especially the PTC, make or break a wind project. The PTC gives owners of wind farms a 1.9 tax credit for each kilowatt-hour (kWh) the wind farm generates. 28 The current building boom in wind generation is evidence of the PTC's importance - the boom exists now precisely because the current authorization of the PTC expires on Dec. 31, 2008, and developers are racing to get projects in the ground before that deadline. 29 The PTC is more valuable than the 1.9 /kWh figure would indicate because it effectively supplements earnings after taxes. To make up 1.9 after taxes, the project owner would have to earn about 2.6 before taxes, making the PTC worth 2.6 in additional earnings. Note that this is 2.6 in earnings, not revenue, and a corporation with 20% profit margins would have to take in 13 in revenues to earn this amount. 30 Companies invest in projects only if they expect a return at least equal to the next best alternative, and the PTC has made wind energy an extremely attractive investment.

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PTC→ WIND Lack of credits puts Natives at a competitive disadvantage American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Wind projects are extremely capital-intensive but have low overhead once up and running. 31 As investments, they are conceptually similar to long-term bonds - low risk, fixed-income investments. Like any capital project, three parties have a role in building a wind farm: (1) the customer, (2) the financier, and (3) the project owners. The customer: In a wind project, the customer, once identified and locked into a longterm contract, is a relatively silent element. The customer is the buyer of the electricity the project produces, and is usually a utility or power marketer. 32 The customer's main role is to provide the project with a Power Purchase Agreement (PPA). The PPA is usually in the form of a ten- to fifteen- year year output contract for a set price per kWh generated, with built-in escalators. The financier: The developer uses that PPA as the finance-able asset, and with that PPA in hand, finds money to build the project. Financiers of wind projects, for reasons discussed below, are typically large investors with a significant tax liability. The project owners: Project ownership is the key to the issues discussed in this paper. Only certain owners will find profit in wind farms. These owners must, for financial reasons, meet two criteria. First, they must have easy access to the capital markets. Wind farms are extremely capital intensive. A 30MW 33 wind farm (enough to power, on average, 12,000 homes) such as one proposed for the Rosebud Reservation can cost $ 48 million to build. 34 Modern wind farms are generally in the 100-200MW range, and can represent capital investments of half a billion dollars. 35 Second, the owner must have a large, steady tax liability from non-wind operations that they can offset with the PTC credits. A 30MW wind farm throws off more than $ 1.6 million per year in tax credits for the first ten years of its operation. 36The two requirements above - access to capital markets and large tax liability - mean wind farm owners tend to be some of the largest corporations in the world, and that the owners and financiers of projects tend to be one in the same. American investment bank Goldman Sachs, financial giant General Electric and Australian investment bank Babcock & Brown all own or have owned significant wind properties. 37III. Tax Credits and Tribes However, the two requirements - access to capital markets and large tax liability - also work to wreck the hopes for tribal ownership of wind projects. Tribes, as discussed infra, are non-taxable entities. As such, they cannot use tax credits, and are at a competitive disadvantage compared to taxable owners of wind projects.

Credits are necessary to offset tax liabilities in wind production American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. It is not obvious why a non-taxable entity such as a tribe that does not pay a good chunk of its income in taxes to the federal government should be at a competitive disadvantage to an entity that does pay taxes - the phenomenon requires some explanation. In select industries, the tax credits available are greater than the taxes that would be paid on the earnings from any one project. Taxable entities simply take the tax credits they earn in these select industries, apply those credits to their overall operations, and, in total, pay less in taxes than if they had not invested in the tax-credit generating industry. However, entities like tribes with no tax burden cannot use this strategy. For example, taxable BigBank invests in WindFarm Alpha, which generates $ 400,000 in earnings, on which BigBank would normally pay $ 140,000 in taxes. However, WindFarm Alpha generates $ 190,000 in tax credits. WindFarm Alpha's tax credits wipe out any tax liability BigBank has from WindFarm Alpha; in addition, BigBank can use the tax credits from WindFarm Alpha to wipe out $ 50,000 in additional tax liability from BigBank's other operations. On the other hand, if GreatTribe also invests in a wind farm called WindFarm Beta, the situation is different. WindFarm Beta [*276] is identical to WindFarm Alpha, and also produces $ 400,000 in earnings and $ 190,000 in tax credits. GreatTribe pays no taxes on the earnings. However, GreatTribe cannot use any of the tax credits, and so the project's return is $ 50,000 less to GreatTribe than WindFarm Alpha is to BigBank. To summarize, the tax credits, which are added to revenues after taxes are taken out, are sufficiently large in this example to give the taxable entity (e.g., a corporation) a financial advantage over the non-taxable entity (e.g., a tribe). The

taxable entity can take those tax credits and apply them to offset tax liabilities in other parts of its operations,

Michigan Debate Institute 18 Alderete.Randall.Blank.Farra PTC Affirmative thus making a diversified taxable entity better off than a diversified non-taxable entity if both invest in this project.

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PTC→ WIND Tax-free status dooms native efforts at renewable energy American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. The origins of the tribal tax credit issues lie buried deep in the origin of the federal-tribal relationship. The tax status of tribes is most closely analogized to that of the states, and is rooted, like state sovereignty, in the idea of tribal sovereignty. 43 "Indians not taxed," of course, is written into the constitution. 44 In context, the phrase "Indians not taxed" is not a guarantee of tax-free status, but part of the framers' articulation of the apportionment of voting power among the states. 45 Nevertheless, the phrase is illustrative of the pre-twentieth century view that tribes and Indians were excluded from the constituent body - what the solicitor general of the Interior called the "non-application of all laws of general application to the Indians." 46 As this "nonapplication" doctrine has faded with changing congressional and judicial attitudes, so has the non-taxable status of Indians. 47 In 1935, the Supreme Court ruled the federal government is permitted to tax the income of individual Indians. 48 Nevertheless, Indian tribes, as opposed to individual Indians, remain tax-free entities. This non-taxability is one of the few bright-line rules in Indian law. "Income tax statutes do not tax Indian tribes. The tribe is not a taxable entity," as the IRS has simply put it. 49 Some corporate forms, if owned by tribes, are also not taxable. 50 This tax-free status has been a boon to some tribes and their subsidiary corporations, allowing them to develop industries free from the burden of [*279] paying out 35% of their income to the government. The Southern Ute Tribe has leveraged natural gas reserves on its land to amass a business empire that holds $ 1.45 billion in assets. 51 Other tribes, such as the Mississippi Choctaw, have done equally well. 52 Unfortunately, in some industries, such as wind power, this tax-free status has proven an insurmountable handicap for tribes.

Lack of tax credits makes renewable energy unfeasible Bismark Tribune, August 19, 2001 And tribes are seemingly at a disadvantage when it comes to securing some incentives to develop wind energy. Since they don't pay most federal taxes, tribes cannot get a production tax credit that makes wind more competitive with other power, Gough said. The Blackfeet are working with developer SeaWest WindPower Inc. to develop the wind farm. The Bonneville Power Administration, which acquires and distributes power to utilities in the Northwest, also is involved and considering purchasing power from the project. Separately, the tribe offered Anschutz Exploration Corp., which wanted to drill an exploratory oil well at a site off the reservation considered sacred by several tribes, the chance to drill on reservation land instead.

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TRIBAL WIND SOLVES ENERGY Tribally produced wind power will solve energy shortfalls American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Tribes do not have experience with operating wind farms as businesses, but tribes do have long experience in more traditional forms of energy development. The tribes of the Southwest, especially the Navajo and Southern Utes, have long-developed their coal and oil and gas resources. The Utes have become quite wealthy off revenues from energy development. 19 The U.S., especially the Western U.S., needs this tribally produced power. The Western Governors' Association has convened an energy task force to address Western states' concerns about shortfalls in energy production. The Governors' Association has called for 30,000MW of clean power (including wind) development by 2015, 20 and has pointed out the need for federal, state, local and tribal authorities to coordinate in siting wind projects. 21Yet tribes cannot fully participate in the renewable energy industry because of their tax status and their lack of ability to use the tax credits the federal government allocates to renewable energy companies. Despite the current wind boom, reservations have not become wind development sites. In fact, [*272] only one major wind development exists on an Indian reservation in the U.S. - a 50MW project on the land of the Campo Band of Kumeyaay Indians near San Diego, Calif. 22To address the handicap tribes face with regards to the impossibility of utilizing tax credits, this paper proposes making federal tax credits tradable - tribes could trade the tax credits they would receive as part of their investment in projects to business partners with tax liability in return for cash or other consideration.

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INTERNAL SELF DETERMINATION SOLVES SECESSION Internal self determination is the best way to prevent secession and secure world peace Eric Kolodner, currently completing a joint degree at New York University School of Law and Princeton University's Woodrow Wilson School, Fall 1994, Connecticut Journal of International Law, 10 Conn. J. Int'l L. 153 Recently, however, some commentators have suggested that the international community should begin to resist movements for self-determination. This perspective derives from a misguided conception of selfdetermination and a short-sighted view on geo-political realities. Contrary to the assumption of these observers, self-determination is not coterminous with secession, and therefore, self-determination movements do not inherently produce international instability. In fact, since efforts to limit the self-determination movements of today often foment the conflict of tomorrow, recognizing legitimate claims for selfdetermination might ensure world stability. Rather than abandoning this important right, the international community must readjust its conception of self-determination to address the changing needs of the post-Cold War world. It should emphasize the internal aspects of this right, which in many respects comport with principles of democratic governance that have recently assumed a primacy throughout the world. Additionally, by the international community supporting movements for internal self-determination, it can potentially avoid the disruption that often accompanies movements for external self-determination. Because some peoples still suffer under neo-colonial oppression, however, the international community should not categorically reject movements for external self-determination. Only when principles of internal selfdetermination cannot satisfy the legitimate needs of an aggrieved people, should the international community support this people's right to external self-determination. It should attach stringent conditions upon the legitimate exercise of this right, however. Only by limiting movements for external self-determination and recognizing legitimate movements for internal self-determination, can the international community simultaneously foster human rights, support democracy, and maintain world peace and stability.

Internal self determination stops secession movements Michael Kelly, Director of Legal Research, Writing & Advocacy at Michigan State University's Detroit College of Law, 1999, Drake Law Review Ironically, devolution, and other internal self-deterministic moves like increased federalism, could be the salvation of the nation-state. Acquiescing to internal self-determination provides the recognition, sovereignty, and identity that homogenous groups crave without breaking apart the country so those groups can achieve independence in what might prove to be unviable nation-states of their own. "All over the developed world, devolution is a fact of life. In the dictum of Daniel Bell, an American sociologist, 'the nation-state has now become too small for the big problems of life and too big for the small problems.'" So, utilizing internal selfdetermination to avoid external self-determination is a path to continued viability for the multi-ethnic nationstate today.

Refusal to grant autonomy is the cause of secession Oloka-Onyango, Associate Professor and Dean of Law, Makerere University, 1999, American University International Law Review The foregoing viewpoint assumes that secessionists are born and not made. Rasheed asserts that the urge for autonomy is often fostered by deliberate marginalization, such that "demands by ethnic groups for powersharing, political freedom, greater political autonomy, and the right to self-determination have on occasion led to large-scale reprisals and atrocities against these groups and have often driven them to insurrection." Rather than reaffirming the notion of statehood, which has produced these various problems, we should consider how to make the State more flexible, as the first stage to "statelessness."

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INTERNAL SELF DETERMINATION SOLVES SECESSION Internal self determination prevents anarchy and international resistance. Michael J. Kelly, B.A., J.D., Indiana University; LL.M.- International & Comparative Law, Georgetown University. Mr. Kelly currently serves as Director of Legal Research, Writing & Advocacy at Michigan State University's Detroit College of Law. Drake Law Review 1999 So, the re-emergence of the principle of self-determination has manifested itself in such a manner as to have three situational meanings based upon the context in which it arises. When a nation-state breaks apart, peacefully or violently, self- determination can mean independence for a previously oppressed people. This is sometimes referred to as "external self-determination," and encompasses the first two examples. However, when a homogenous group within a [*222] democratic nation-state rankles for self-determination, the international preference is for more autonomy through devolution of power within the existing nation-state instead of full independence. This is sometimes referred to as "internal self-determination" and encompasses the last example. Why the bifurcation in the application of this principle? Simply put, the international legal system is based on nation-states' relations with each other-it is the state, as a cohesive entity, that has standing in the international community. Sub-states or minority groups within nation-states have no standing in international law and, therefore, no forum in which their voices may be heard. Beyond the decolonization context, the International Court of Justice has refused to recognize a "sub-state" claim for external selfdetermination. The practical basis of "internal self-determination" is an extension of the maxim: self-interest is the prime motivator. The United Nations and other international governmental organizations, generally do not support secession by minority identity groups from a state because to do so would be to invite "'attacks on the unity and integrity of their own member states.'" Consequently, the threat of secession cannot be tolerated. If it were, then the sovereignty of the nation-state as a viable political unit would be constantly under threat by its smaller constituent units. As the League of Nations Commission of Rapporteurs stated in the 1921 Aaland Islands case: [*223] To concede to minorities . . . the right of withdrawing from the community to which they belong, because it is their wish . . . would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity. So, there is logically more support among nationstates for the internal, devolutionary aspect of this principle. By granting a degree of autonomy to a sub-state or minority group within a nation-state, a central government may be acting in furtherance of its own continued self-preservation. But, care must be taken to ensure individual minority rights to avert the risk of devolving repression along with power from central to regional elites, thus leaving minorities no better off than they were before.

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INTERNAL SELF DETERMINATION SOLVES SECESSION A model of internal self determination is necessary to prevent further conflict. Michael J. Kelly, B.A., J.D., Indiana University; LL.M.- International & Comparative Law, Georgetown University. Mr. Kelly currently serves as Director of Legal Research, Writing & Advocacy at Michigan State University's Detroit College of Law. Drake Law Review 1999 Some overly-eloquent political commentators, such as William Safire, have even endorsed the evolution of a new form of self-determination for ethnically repressed peoples: After World War I, . . . Wilson had an idealistic notion called "the self- determination of nations": national boundaries should be drawn around peoples who have a common language and cultural heritage. A generation later, . . . Churchill and Roosevelt made "self-determination" a part of the Atlantic Charter. Sounds great, but it runs counter to every nation's natural impulse to hold itself together. . . . Serbia today wants to hold on to a historic part of its territory called Kosovo. . . . [The Kosovars] want to break away from Serbia's oppressive rule . . . . Not surprisingly, Serbia says no. . . . . . . . Here is where the age-old power of a nation to put down a rebellion comes up against this generation's power of unacceptable suffering. The Clinton Administration, facing the prospect of television coverage of tens of thousands of freezing [Kosovar] refugees, will ultimately [act militarily]. . . . That's what happened after our "victory" over Saddam Hussein. Only when we saw the televised human tragedy of the Kurdish people, . . . did we create a sanctuary for them in northern Iraq . . ., limiting Iraq's sovereignty in that "no-flight zone." Thus, . . . a new policy is being backed into by the Western world: if enough civilian lives are in danger of starvation or massacre, and if intervention by airpower can make a difference and if the U.S. takes the lead then an alliance of nations will reluctantly act to impose a temporary, de facto self-determination. . . . . Needed now is a new policy of evolutionary self-determination that time can advance or modify. Some leader must formulate and sell a new form of shared sovereignty, a tertium quid to accommodate insurgencies and defuse ethnic conflict not just in Kosovo, but in other lands where there can be no clear winner from Iraq to East Timor and the West Bank. History awaits that newly practical and more sophisticated Wilson . . . Nonetheless, self-determination, whatever its form, continues to threaten nation-state sovereignty, though perhaps not to the extent that the nation-state will cease to exist on the international stage as the primary mover and shaker. There is too much self-interest yet for that to occur; and like all things when their survival is threatened, the nation-state will react to insure its continued relevance. By not denying the right to self-determination, but instead emphasizing internal self-determination, through aspects of federalism and devolution, over external secessionist self-determination, nation-states would be wise to take such action.

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INTERNAL SELF DETERMINATION ≠ SECESSION Their authors oversimplify: internal self determination doesn’t send a model for secession Sandor Ballogh, retired profess of politics, 1999, Autonomy and the New World Order, p. 86 There would be less of a problem with definitions if instead of the minority group the individual would be considered the depository of the right. But this would be impractical in the political community, since individual self-determination could lead to anarchy. Even groups having the right to self-determination seems to scare many of our statesmen: according to Reuters News Service: “The big powers fear granting Kosovo independence would set off a disastrous chain reaction of demands for the same prize from disgruntled nunonties nearby in the Balkans, especially Albanians in Macedonia.” But is this fear justified? Ved P. Nanda mentions that there are some observers who seem to “fear that secessionist claims by various ethnicnationalist groups will acerbate the existing fragile international order [and} call for placing severe limits on the scope of self-determination so as to regulate, control, and minimize its evil consequences,” and names Etzioni as one such writer. But instead of debating Etzioni, Nanda evades the answer dismissing Etzioni’s ideas that “it may be argued that this hypothesis remains untested and lacks validity.” So he changes the focus of the paper to “study the mechanism under which all these claims can be peacefully pursued and resolved.” Eric Kolodner takes a more effective approach: he argues that Etzion,’s argument takes a very limited view of the concept of self-determination.’ Kolodner distinguishes between internal and external selfdetermination, arguing that Etzioni’s fear might apply to certain cases of external self-determination, but not to internal self-determination. External self-determination means complete independence, while internal selfdetermination means various forms and degrees of autonomy. Unfortunately, some authors who oppose selfdetermination, equate self-determination with secession, i.e. external self-determination, Kolodner’s distinction notwithstanding. Disregarding autonomy as a form of (internal) self-determination creates problems, because external self-determination is much more difficult to achieve both administratively and politically. This allows many politicians to pay lip service to human rights and self-determination without effectively pursuing it, using yet another argument: they defend the sanctity of frontiers under the guise of defending peace and stability.

International institutions can safeguard a distinction between self determination and unchecked secession Daniel Philpott, assistant professor of Political Science at UC-Santa Barbara, 1998, National Self-Determination and Secession, p. 88 These ancient political drives raise our general question about incorporating self-determination into international law, whether through the World Court, the Security Council, or state recognition policies. If we legalize claims to self-determination along with the qualifications and the last resort criterion, buttressing all these values with the enforcement capacities of institutions plus whatever legitimacy legalization may confer, might it happen that the claims would gain rampant recognition while the restraints would he ignored? The danger is real, but also, I think, avoidable. Legalization alone would not seem to result in a bias for enforcing separatism over the restrictions. Human rights, including minority rights, and democracy are currently far more entrenched in international law and state foreign policies than is self-determination, and there is no reason to think that international bodies would abjure their enforcement, sacrificing them to an absolute value of self-determination.’6 What arouses more worry is the role of states in judging and enforcing international law. The Security Council, the most probable enforcer of law, is made up of states; recognition is granted by states; and states pursue primarily their traditional desiderata of security, position, and wealth, not legal rectitude. Here again, though, it is not clear that a general secessionist bias will result. Germany and Croatia was a single case; one can easily imagine other cases where great powers find it in their interests to oppose the breakup of a state. But if states’ tendencies do not slant one way or the other in the aggregate, this hardly assures us that states will make the just decision in the single case of a Bosnia, a Quebec, or a Kashmir. Our hopes for impartial judgement and enforcement, in the end, depend on our confidence in the judgement of states, or of states acting in the Security Council, or, most speculatively, of states acting on behalf of an international judiciary body. Of these forums, we may have the most confidence in states as they act through the Security Council. Again, post-Cold War interventions sanctioned by the Security Council give us some

Michigan Debate Institute 25 Alderete.Randall.Blank.Farra PTC Affirmative reason to believe that the Council can act where justice demands it: imperfectly and selectively, to be sure, but also with some prospect for success.

INTERNAL SELF DETERMINATION ≠ SECESSION Recognition of an indigenous right to self determination creates a good, anti-secession international norm Patrick Thornberry, Professor of International Law, Keele University, 2000, Operationalizing the Right of Indigenous People to Self Determination, p. 64 Secession is not an issue for most groups, though it is still embedded in the standard imagery of selfdetermination. There is opportunity as well as difficulty for the further development of international law. If we are witnessing the emergence of a specific form of self-determination, its legal recognition as a benign, protective and balanced mode of self -determination, would be a considerable prize for international law and a possible model of good practice for application in related contexts. There are features in indigenous descriptions which are capable of moving self-determination away from a fascination with secession towards broader notions of human dignity and solidarity.

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SECESSION≠ DESTROY DEMOCRACY A right to secede doesn’t destroy democracy Daniel Philpott, assistant professor of Political Science at UC-Santa Barbara, 1998, National Self-Determination and Secession, p. 95-96 A right to secede would not necessarily undermine democracy, either. Indeed, one could imagine it helping a federal state to form, inducing a wary group to join in the first place. If some or all of a region’s inhabitants did develop a desire to secede over time, a constitutionally prescribed procedure might help to avoid bloodshed, or even to diffuse radicalism, perhaps even helping to dissipate popular support for secession. Consider the cases of Quebec and Slovakia, the first a region whose inhabitants narrowly voted down secession, the second a region which did secede, and both cases in which little blood was shed over the question. Although in neither case did a constitutional right to secede guide the way, in both cases the larger state’s government and the separatist region’s inhabitants were willing to abide by agreed-upon procedures. We may take these regions, then, as experimental proxies for constitutional secession. Now, there are admittedly grounds in both cases for scepticism. The procedures were messy and contested, the referenda presented the question of independence ambiguously to the voters, safeguards for minority rights were questionable, and depending on whom one asks, other flaws existed as well. But the crucial question to ask is: What if there had been no (approximation of a) right to secede at all? What if the Czechs and the Canadians had failed to brook even the possibility of secession in the first place?

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SELF DETERMINATION K/T US HUMAN RIGHTS LEADERSHIP An increased prioritization of self determination is key to U.S. human rights leadership Christopher Wall, LL.M., 1998, University of Durham (England); J.D., 1997, Brigham Young University, December 1998, Fordham International Law Journal The right to self-determination, however, is an important fundamental right to be considered in and of itself, even though the right to self-determination is not necessarily a human right recognized with any regularity by the West. In fact, for some Third World countries, the right to self-determination involves a right to rise from poverty and third-rate status to which they see themselves consigned by wealthy imperialists. In a very real sense, the right to self-determination is in itself a human right, and in many of those states that recognize it as such, the quest to improve their global status becomes an overriding goal that may temporarily subsume other rights. Other states see the imposition of unilateral economic sanctions as an attempt by the United States to impose its will upon them in violation of their human right to self-determination. They argue that to concentrate too much upon civil liberties is to ignore rights of national sovereignty and self-determination. One commentator has noted that "the international community constantly frustrates the creative management of self-determination through its unwillingness or inability effectively to sanction states that manifestly violate the right." Thus, while the United States has become a most vocal advocate of human rights in the realm of civil liberties around the globe, it has also become an example of human rights violations in the realm of self-determination simply because self-determination falls below other human rights in the United States' hierarchy of human rights enforcement.

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SELF DETERMINATION K/T HUMAN RIGHTS Self determination is a prerequisite to other human rights and freedoms Eric Kolodner, currently completing a joint degree at New York University School of Law and Princeton University's Woodrow Wilson School, Fall 1994, Connecticut Journal of International Law, 10 Conn. J. Int'l L. 153 While the era of decolonization might have formally ended, many peoples still suffer under neo-colonial oppression. Only if the international community supports movements for self-determination can it guarantee the protection of the rights of peoples throughout the world. As Hector Gros Espiell, a U.N. Special Rapporteur on the right to self-determination, concluded: The effective exercise of a people's right to selfdetermination is an essential condition or prerequisite . . . for the genuine existence of the other human rights and freedoms. Only when self-determination has been achieved can a people take the measures necessary to ensure human dignity, the full enjoyment of all rights and the political, economic, social and cultural progress of all human beings. . . .

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SELF DETERMINATION SOLVES CONFLICT Denying self determination is responsible for the majority of global wars Fourth World Center for the Study of Indigenous Law and Politics (Marc Sills and Glenn Morris) July 1993, Fourth World Bulletin, http://carbon.cudenver.edu/public/fwc/Issue5/commentary-2.html The spread of representative democracy can be considered a noble goal, in contrast to systems that might be characterized as autocratic or totalitarian dictatorships, but narrowing the definition of the right to selfdetermination, prior to its realization by hundreds of presently non-state indigenous nations, is not likely to produce the global peace and stability so cherished by Etzioni and company. Instead, it is likely to produce more acrimony and animosity, in reaction to the perception that prior application of the right has produced an exclusive club that is now closing its doors, based on arbitrary and suspect criteria. To believe that those who are now to be excluded will simply accept their fate and meekly participate in processes in which they are continually relegated to disaffected electoral and social minority status is unrealistic. The evidence for this last assertion is multifold. We are presently living in the context of a "new world order" in which almost all of the current warfare (in at least 40 examples) is accounted for as conflict between states and non-state nations. Almost all of the non-state nations now at war with states are indigenous to the territories for which they fight. Presuming that those conflicts will all culminate in the eradication of the indigenous nations by the states whose rule they contest seems premature, at the least.

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US MODELED U.S. Indian policy is modeled Fourth World Center for the Study of Indigenous Law and Politics (Marc Sills and Glenn Morris), Spring/Summer 1996, Fourth World Bulletin, http://carbon.cudenver.edu/public/fwc/Issue10/fwbtoc.html In the summer of 1994, following the conclusion of the 12th session of the UN Working Group on Indigenous Peoples, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities sent the Draft Declaration on the Rights of Indigenous Peoples to the UN Commission on Human Rights. This was a necessary step for the Draft in route to the ultimate approval by the UN General Assembly that its proponents hope to achieve. But in February 1995, the Draft Declaration was put in jeopardy of derailment when the Human Rights Commission ordered the Draft reviewed by a new working group. That group, named the "Open-ended Inter-sessional Working Group" (referred to herein as the "Inter-sessional"), held its first meeting from 20 November to 1 December 1995. The proceedings from the meeting demonstrate an attempt by a coterie of states, led by the United States, to commandeer the debate on indigenous rights, as they try to maintain their control of international law and the United Nations' role in enforcing the principles found in the Draft Declaration. Because of its role as the one surviving super-power at the end of the Cold War, with the financial leverage to determine the future of the United Nations, the US has inordinate control over the way the Draft Declaration is being worded and what exactly the document will imply as policy. The United States intends that its own model for treatment of indigenous peoples should be emulated by other states, and therefore that the Draft Declaration should reflect the order of US Indian Law. The agenda is not merely to define a simple moral order; more important, the US is attempting to create a broader, more encompassing hegemony that minimizes the possibility that indigenous peoples might actually be protagonists of their own destinies.

A state’s practice to recognize the right to internal self-determination is the only means by which international law can be created Quane 2005 [Helen, Lecturer in Law, University of Wales, Swansea, United Kingdom]“The Rights of Indigenous Peoples and the Development Process” The Johns Hopkins University Press Human Rights Quarterly 27.2 (2005) 652-682. Under current international instruments, distinct ethnic, linguistic, or religious groups within states do not appear to have a legal right to external or internal self-determination. An examination of the wording, context, drafting history, and subsequent practice of the relevant provisions of the UN Charter, the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and General Assembly Resolution 2625 (XXV) tends to support this view.37 This view might seem over cautious, especially when one considers recent events in Central and Eastern Europe. It is also at [End Page 660] odds with a growing body of opinion in the academic literature that suggests that groups within states have a right to internal, and possibly external, self-determination. Arguably, this cautious approach can be defended, especially if one examines the literature in light of the relevant state practice. The importance of state practice cannot be underestimated, even in this age of globalization, because it remains the only means by which new rules of customary international law can be created.

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US K/T KASHMIR U.S. pressure is key to solve Kashmir Business Recorder, 1/18/2002 America is the only country, which can help resolve Kashmir dispute that remains the main cause of tension between India and Pakistan, said Roger Godsif, Chairman Parliamentary Kashmir Group in House of Commons on Thursday. "No other country in the world has got the power to compel or force them for the resolution of Kashmir dispute," he told APP in an interview while commenting on President General Pervez Musharraf's address to the nation on Saturday to curb terrorism and extremism. Godsif said, "I applaud any step taken by General Musharraf to eliminate indiscriminate terrorism. I hope it will contribute towards reduction of tension between India and Pakistan. Pakistan has made repeated offers to India for a "meaningful" and "purposeful" dialogue for finding a peaceful settlement of the issue but New Delhi has so far not responded positively. - The main cause of tension between two countries is the Kashmir dispute, said the British parliamentarian. Godsif said, he did not believe bilateral talks "will bring about resolution of the dispute," threatening peace and stability in a nuclearised South Asia. "America has both the financial ability and the ability to put pressure both upon India and Pakistan in order to move towards resolution- of the dispute. No other country has the capacity to do it," said Roger Godsif.

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PAKISTAN K/T SOLVE TERRORISM Pakistan is the keystone of the anti-terrorism coalition Anatol Lieven, Senior Associate at the Carnegie Endowment for International Peace, January/February 2002, Foreign Affairs THE SURVIVAL of Pakistan in its existing form is a vital U.S. security interest, one that trumps all other American interests in the country. A collapse of Pakistan -- into internal anarchy or an Islamist revolution -would cripple the global campaign against Islamist terrorism. Strengthening the Pakistani state and cementing its cooperation with the West have thus become immensely important to Washington.

Pakistani cooperation is key to the coalition The Independent (London), 9-20, 2001 The most immediate priority for American diplomacy remains the need to tie Pakistan fast into the alliance and to support the initiatives the Pakistani government has been taking with the Taliban. The tension lies in the need to provide proof to both the Taliban regime and the Pakistani people that Osama bin Laden is indeed the prime suspect. Of course "proof" is notoriously difficult to provide where terrorism is concerned, and bin Laden's "organisation" is diffuse. And what may serve as proof to the satisfaction of Western authorities and public opinion may be insufficient for the Taliban, even assuming that they were prepared to look at the evidence objectively. The temptation will then be for America to lose patience and press ahead with action, regardless of the opinions of its principal ally in the region, Pakistan. That, however, would be an extremely dangerous move. More than one former Soviet colonel has talked about the difficulty of fighting a conventional military or "special forces" campaign in this inhospitable region, which is still heavily mined from the time of the Russian occupation. To attempt to do so without the (relative) safety of bases in Pakistan is almost inconceivable. Whether President Bush likes it or not, the government and, indirectly, the people, of Pakistan have an effective veto over the deployment of American forces in the area. So far, as his TV address yesterday showed, President Musharraf has been as supportive as he can be, given the fractures within his own country. But Pakistan may yet prove to be both the most important and yet the weakest link in the grand coalition against terrorism.

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NO IMPACT TO SECESSION There is no impact to secession Daniel Philpott, assistant professor of Political Science at UC-Santa Barbara, 1998, National Self-Determination and Secession, p. 91 Even if secessions did proliferate, though, which I do not advocate, we should be clear why it would be a problem. It is not necessarily a problem, for instance, for there to be small states. As I claimed in my original argument, there is no reason why even a city or tiny region cannot be self-determining. Andorra, Monaco, Liechtenstein, Singapore, and (up until this year) Hong Kong have all fared perfectly well as tiny sovereignties. There are some limits to how small a sovereign entity can be, but these arise from the necessity of providing certain public functions: maintaining roads and utilities, educating children, preserving minimal order, and providing basic public goods.2” It is not necessarily a problem, either, for there to be a large number of states. International stability and peace has endured among the many and collapsed among the few. Compare Europe’s fate with one Germany in the first half of the twentieth century with Europe’s fate with 300 German states during the late seventeenth and eighteenth centuries.2’

No impact to secession Kai Nielsen, Professor Emeritus, Department of Philosophy, the University of Calgary, 1998, National SelfDetermination and Secession, p. 114 Of course, the existing states in the UN and in the international law establishment will stick together to seek to sustain the idea of the territorial integrity of states, i.e. of the existing states. They are pretty much, in this respect, like an old boys club. And, of course, we do not want a circus of anarchy, but, as a matter of historical fact, states come and go and it is not such a terrible thing if changes occur, particularly if the societies in question are liberal democratic ones with very distinct nations hamessed together rather artificially, and where the flourishing of these nations, or at least the smaller nations, within the umbrella state, could be enhanced by separation and no great harm would accrue to the remainder state by separation. A state should not, and indeed in most instances will not, break up without good reason. And when it does break up there will always be some dislocation and not all the after effects will be good. But some of them will be very good indeed. A nation or a people—which before had been treated as a national minority or worse still like an ethnic group—can now be in control of its own destiny as much (and as little) as any nation-state can be in the modem world.23 States do come and go, and sometimes they break up, perhaps without the conditions that Remedial Right Only Theories could sanction obtaining, with no great harm resulting, and arguably sometimes with considerable gain, e.g. Iceland from Denmark and Norway from Sweden. If Quebec should secede from Canada, Scotland from Britain, and Wales from Britain, their thoroughly liberal democratic environments staying intact, it is anything but evident that that would not give more people more control over their lives and a fuller self-realization than the continuing of the status quo. Moreover, this could obtain without harming others in the remainder state. Quite possibly more good would obtain all around. At the very minimum, this idea should not be rejected out of hand. Perhaps in some of these cases—the case of Wales, for example—it would not be practically feasible. Here we should go case by case. But there are no good grounds for the rejection of the putative right to secession on high moral or legal principle. And, at the very least, none of the dire results that Buchanan believes must just go with secession seem at all to be in the cards in such cases. It looks at least like it is better to go in the more permissive direction of what Buchanan calls Primary Right Theories than in the direction of Remedial Right Only Theories.

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PLAN POPULAR This congress recently renewed the PTC for a decade and enacted portions of the Energy Policy Act of 2005 both are consistent with the mandates of the plan. American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. The PTC is a tax credit Congress created to foster the production of renewable energy. The PTC is a broad incentive - it has aided renewable energy developments from California to Maine. An examination of the record of congressional debates surrounding the renewal of the PTC in 2005 makes clear Congress was interested in both reducing dependence on foreign fossil [*286] fuels 78 and stimulating the growth of domestic renewable energy businesses. 79 To this end, Congress decided to enact a tax incentive (the PTC) that will cost taxpayers over $ 300 million a year over the next decade. 80 Congress has acted on its goals of increasing renewable energy production by enacting the PTC - Congress has also acted on its goals of increasing tribal energy resource production by enacting parts of the Energy Policy Act of 2005. Congress would like tribal corporations to work toward resource development in the same manner as non-reservation businesses. The 2005 Energy Policy Act articulates Congress' intent to foster energy development on tribal lands. 81 The Senate Committee on Energy and Natural Resources, in its report on the bill, wrote "There are abundant energy resources available for production on Indian lands. Development of those resources must be encouraged." 82 Making the PTC tradable would merge those two goals. Congress should - and, the record indicates, does - want Indian tribes to face the same set of incentives as non-Indian business entities. Both logic and congressional action indicate that the government would want all economic activity within the boundaries of the United States to face the same incentive system, in order to broadly encourage the activities targeted by tax credits. Congress has articulated its goals of energy security and clean energy production. Tribes, given the proper incentives, and a tradable PTC, can help the U.S. meet those goals.

Wind is politically popular and cost effective boosting domestic manufacturing industries American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Traditional methods of electricity generation are faced with increasing difficulties: coal-fired generation is a liability in the age of global warming; 7 natural gas prices are high and unpredictable; 8 nuclear power still poses [*270] storage problems; 9 and there are few rivers in the U.S. left undammed for hydroelectricity. 10 These problems have opened up a market opportunity for wind-generated electricity. Wind power has stepped in to fill the gap left by traditional power sources and provides new generation capacity. 11 Builders of wind farms will add about 2750 megawatts (MW) of generating capacity in 2006, which will produce about as much electricity as is used by the entire state of Rhode Island. 12 Wind enjoys three main advantages: price, environmental benefits and economic benefits. When coupled with federal tax credits, new wind turbine designs are now cost-competitive with new coal plants and natural gas generation. 13 With concerns of global warming rising, wind is an energy source that results in few greenhouse gasses. Wind power also enjoys political support for the positive impact it can have on domestic manufacturing industries. 14 Renewable energy development brings high levels of economic benefits to the local community, when compared to fossil-powered electricity. 15 Renewable energy is particularly popular in rural areas with few [*271] other economic prospects. In 2006, a successful challenger for a U.S. Senate seat in Montana made wind power a prominent part of his campaign. 16There is potential for tribes to play a major role in the U.S. wind industry. As noted above, wind power on tribal lands could provide a substantial portion of U.S. electricity needs. 17 The Great Plains have wind in abundance, and many tribal reservations are located in the Great Plains. Wind developers are interested in working with tribes because tribes are single landowners over vast, windy tracts of land - the area within the Rosebud Reservation boundaries alone is larger than the land area of the entire state of Rhode Island. Additionally, some power purchasers, realizing the economic plight of the reservations, are willing to give the tribes better-than-market prices for tribally generated electricity. 18

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PLAN POPULAR There has been bipartisan support for over a century to lessen tribal dependence on the federal government--energy development policies like the plan are empirically popular. American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Increasing tribal revenues from wind energy production - or any other economic activity that prospers offreservation in a tax-credit environment and could benefit tribes if tax credits are made tradable - is a good way to meet federal goals of reducing tribal dependence. The reduction of tribal dependence has been a congressional goal since the nineteenth century. Even during the passage of the Allotment Acts in the late nineteenth century, the twisted logic of the time said that forcing tribal members into farming would push the Indians toward "real and permanent progress." 83 This goal of reduced tribal dependence was first codified in the economic development context nearly 100 years ago - in the Buy Indian Act of 1908. 84 The Act directs the Department of Interior to give preference to Indians as far as is practicable in hiring and procurement. 85 The Buy Indian Act has been expanded over the years. In 1974, it was made to apply to all federal contracts. 86 Congress has been willing to extend the same type of support evinced by the Buy Indian Act to tribal energy programs. For example, in 2001, the full House of Representatives passed the Hayworth amendment to the proposed energy bill adding "energy products and energy by-products" to the categories of materials covered under the Buy Indian Act. 87 That bill, House Bill 4, died in conference committee in 2002. However, the ideas from the Hayworth amendment are incorporated into the Energy Policy Act of 2005 - the Act provides for federal purchases of power generated by Indian tribes. 88 Even outside the energy development or economic development contexts, the Federal Government has made clear through the years that it would like to see the tribes less dependent on direct grants of federal dollars. The Reagan administration advocated reduced tribal dependence in an important policy statement issued in 1983. "It is important to the concept of self-government that tribes reduce their dependence on federal funds by providing a greater percentage of the cost of their self-government," the administration wrote. 89 Any measures that give the tribes a leg up in the economic development game reduce their economic dependency on the federal government. Wind power development could play a role in this economic development, but only if tribes have access to the PTC. Wind power development would provide the "greater percentage of the cost of [tribal] self government" that the Reagan administration sought and it would push the tribes toward "real and permanent progress".

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PLAN UNPOPULAR Non-Indian land owners will be angered by the loss of projects to natives American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Under the proposal, the tribes can partner with an outside investor, and no matter what the respective ownership percentages, the outside investor could still get the PTC's full value (and the tribe would be paid consideration in fair exchange for this value). Ideally, the tribe would want to leverage the deal as much as it could - borrowing its share of the project and bringing in an outside investor who could take the tax credits, bring in cash and/or a good credit rating to satisfy the lender as to the project's viability, and drop out after ten years. Importantly, the proposed change is revenue neutral. Very few wind farms of any size are built without access to the PTC. So, whether a wind farm is built under partial tribal ownership or without tribal ownership, the tax credits the wind farm generates - and, therefore, the cost to the U.S. government - would be the same. A tradable PTC may meet some opposition from non-Indian landowners who are afraid of wind projects moving to reservations instead of their land. However, wind sites are chosen for a multitude of factors, including wind speeds and access to transmission - the tribes will be competing with others based on these many factors, and the most economically feasible projects will [*285] go forward. Clearly, the Western Governors' Association did not feel it much of a concern - they have backed the idea of a tradable PTC. 75

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A2 SPENDING PTC will lessen tribal dependence of federal grants American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. It is commonly thought that Indian tribes enjoy a significant business advantage because they are tax-free entities. This is often true - an entity that does not pay 35% of its earnings to the government is generally better off than one that does. However, in certain industries, the tax credits available are so great that not paying taxes hurts the tribes in a side-by-side business comparison to taxable entities, such as corporations. This paper will argue that tribes should be given the opportunity to transfer to tax-paying partners the tax credits they would have earned from certain projects but for their tax-free status. Making tax credits tradable for tribes will accomplish three important goals: (1) The federal government will be able to better promote targeted economic activities by giving tribes the same financial incentives as the rest of the business community; (2) Tribal dependence on federal grants will be reduced, as larger pools of investment capital become available to tribes and tribal wealth increases; (3) As dependence is reduced, tribal sovereignty will increase. This paper will examine the issue of tax credit tradability through the lens of wind energy projects, which normally receive large tax credits, but which are structurally very difficult for tribes - as non-taxpaying entities - to develop.

Wind brings high levels of economic benefits to local communities American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Traditional methods of electricity generation are faced with increasing difficulties: coal-fired generation is a liability in the age of global warming; 7 natural gas prices are high and unpredictable; 8 nuclear power still poses [*270] storage problems; 9 and there are few rivers in the U.S. left undammed for hydroelectricity. 10 These problems have opened up a market opportunity for wind-generated electricity. Wind power has stepped in to fill the gap left by traditional power sources and provides new generation capacity. 11 Builders of wind farms will add about 2750 megawatts (MW) of generating capacity in 2006, which will produce about as much electricity as is used by the entire state of Rhode Island. 12 Wind enjoys three main advantages: price, environmental benefits and economic benefits. When coupled with federal tax credits, new wind turbine designs are now cost-competitive with new coal plants and natural gas generation. 13 With concerns of global warming rising, wind is an energy source that results in few greenhouse gasses. Wind power also enjoys political support for the positive impact it can have on domestic manufacturing industries. 14 Renewable energy development brings high levels of economic benefits to the local community, when compared to fossil-powered electricity. 15 Renewable energy is particularly popular in rural areas with few [*271] other economic prospects. In 2006, a successful challenger for a U.S. Senate seat in Montana made wind power a prominent part of his campaign. 16There is potential for tribes to play a major role in the U.S. wind industry. As noted above, wind power on tribal lands could provide a substantial portion of U.S. electricity needs. 17 The Great Plains have wind in abundance, and many tribal reservations are located in the Great Plains. Wind developers are interested in working with tribes because tribes are single landowners over vast, windy tracts of land - the area within the Rosebud Reservation boundaries alone is larger than the land area of the entire state of Rhode Island. Additionally, some power purchasers, realizing the economic plight of the reservations, are willing to give the tribes better-than-market prices for tribally generated electricity. 18

Michigan Debate Institute 38 Alderete.Randall.Blank.Farra PTC Affirmative

A2 SPENDING The federal government has already authorized the PTC for wind farms the plan makes tax code revenue neutral allowing natives to compete for investors American Indian Law Review 2008 [Mark Shahinian, third-year law student at the University of Michigan] SPECIAL FEATURE: THE TAX MAN COMETH NOT: HOW THE NON-TRANSFERABILITY OF TAX CREDITS HARMS INDIAN TRIBES American Indian Law Review 2007 / 200832 Am. Indian L. Rev. 267. Under the proposal, the tribes can partner with an outside investor, and no matter what the respective ownership percentages, the outside investor could still get the PTC's full value (and the tribe would be paid consideration in fair exchange for this value). Ideally, the tribe would want to leverage the deal as much as it could - borrowing its share of the project and bringing in an outside investor who could take the tax credits, bring in cash and/or a good credit rating to satisfy the lender as to the project's viability, and drop out after ten years. Importantly, the proposed change is revenue neutral. Very few wind farms of any size are built without access to the PTC. So, whether a wind farm is built under partial tribal ownership or without tribal ownership, the tax credits the wind farm generates - and, therefore, the cost to the U.S. government - would be the same. A tradable PTC may meet some opposition from non-Indian landowners who are afraid of wind projects moving to reservations instead of their land. However, wind sites are chosen for a multitude of factors, including wind speeds and access to transmission - the tribes will be competing with others based on these many factors, and the most economically feasible projects will [*285] go forward. Clearly, the Western Governors' Association did not feel it much of a concern - they have backed the idea of a tradable PTC. 75