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[Senate Report 115-84]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 104
115th Congress      }                                   {       Report
                                 SENATE
 1st Session        }                                   {       115-84

======================================================================

 
 AMENDING THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF DETERMINATION 
                  ACT OF 2005, AND FOR OTHER PURPOSES

                                _______
                                

                  May 24, 2017.--Ordered to be printed

                                _______
                                

    Mr. Hoeven, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 245]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 245) to amend the Indian Tribal Energy Development and 
Self-Determination Act of 2005, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                PURPOSE

    The purpose of S. 245 is to amend certain provisions of the 
Energy Policy Act of 2005\1\ to further enhance the ability of 
Indian tribes to exercise self-determination over the 
development of energy resources located on tribal lands; to 
establish tribal biomass demonstration projects; to improve, 
facilitate, and make more effective the implementation of the 
program in Indian Country under section 413(d) of the Energy 
Conservation and Production Act\2\; and to otherwise facilitate 
Indian tribal governments in their goals to develop both 
renewable and non-renewable energy resources for the benefit of 
current and future generations of Indian people.
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    \1\Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 
(2005) (codified in scattered sections of Title 25 U.S.C., 26 U.S.C., 
and 42 U.S.C.).
    \2\Pub. L. No. 94-385, Sec. 413(d) (codified at 42 U.S.C. 
Sec. 6863(d)).
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                          NEED FOR LEGISLATION

    For several years the Committee has received concerns from 
Indian tribes that the many Federal laws governing the 
development of tribal energy resources are complex and often 
lead to significant cost, delay and uncertainty for all parties 
of tribal energy transactions. These costs, delays, and 
uncertainties tend to discourage development of tribal trust 
energy resources and drive development investments to private 
or non-tribal lands that are not subject to these same Federal 
laws.
    Title V of the Energy Policy Act of 2005\3\ was intended to 
address these concerns by removing much of the bureaucracy and 
shifting the approval requirements for these transactions from 
the Secretary of the Interior to Indian tribes. However, the 
implementation of Title V was more burdensome than Congress 
intended.
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    \3\Indian Tribal Energy Development and Self-Determination Act, 
Title V of the Energy Policy Act of 2005, Pub. L. No. 109-58, 
Sec. Sec. 501-506, 119 Stat. 763 (codified at 25 U.S.C. Sec. Sec. 3501-
3506).
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    Generally, this bill is intended to provide direction and 
clarity in implementing Title V as well as other purposes. The 
bill would remove some of the disincentives to developing 
tribal trust energy resources and assist Indian tribes 
interested in pursuing the development of these resources 
consistent with the policy of Indian self-determination.

                               BACKGROUND

    Global energy demand is expected to increase by 37% by 
2040, with demand increasing for several energy resources such 
as oil, coal, natural gas, and renewables.\4\ In recent years, 
energy supply increased to correspond with increases in demand. 
Most notably, there had been a spectacular growth in ``light 
tight oil'' production from low permeable shale formations.\5\
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    \4\International Energy Agency, World Energy Outlook 2014, 
Executive Summary, November 2014 at 1-2.
    \5\International Energy Agency, World Energy Outlook 2013, November 
2013 at 424.
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    The primary location for light tight oil production in the 
United States has been the Bakken Formation in North Dakota, 
which is the largest known continuous oil accumulation in the 
United States.\6\ In the heart of the Bakken formation lies the 
Fort Berthold Indian Reservation, home to the Mandan, Hidatsa, 
and Arikara tribes.
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    \6\International Energy Agency, World Energy Outlook 2013, November 
2013 at 475.
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    Many other Indian reservations hold an untapped potential 
wealth of energy resources.\7\ In a 2015 report, the Government 
Accountability Office (GAO) indicated that, despite this 
potential, energy development on Indian lands has not been as 
robust as it has been on non-Indian lands.\8\
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    \7\U.S. Gov't Accountability Office, GAO-15-502, Indian Energy 
Development: Poor Management by BIA Has Hindered Energy Development on 
Indian Lands 1 (2015).
    \8\Id. at 2.
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    When tasked with examining the barriers to energy 
development on Indian lands, the GAO confirmed tribal concerns 
in finding that such development is subject to a complex 
regulatory framework and poor management by the governing 
Federal agencies.\9\ These barriers have led to significant 
delays in review and approvals of required agreements such as 
leases, business agreements, or rights-of-ways.
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    \9\Id.
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    In turn, the delays in leasing and permitting for new 
energy production sites were especially costly to Indian 
tribes. Indian tribes lost the opportunity to participate in 
energy development and revenues from the potential project. 
According to the GAO, one tribe estimated that more than $95 
million in possible fees, severance taxes, and royalties were 
lost during one eight-year delay.\10\
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    \10\Id.
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    These impediments increase the need for improvements to the 
tribal energy leasing process so that Indian tribes can compete 
in the energy market. This bill, S. 245, would help level the 
playing field for Indian tribes that can participate, if they 
so choose, in the energy market in the United States. If S. 245 
were enacted, Indian tribes would be able to lease and develop 
their trust energy resources in a timely, responsible, and 
profitable way.

Overview of Indian Energy Development--Leases and agreements under the 
        IMLA and IMDA

    Historically, most energy development on Indian lands has 
been carried out under the authority of the Indian Mineral 
Leasing Act of 1938\11\ (IMLA) and its implementing 
regulations\12\ or the Indian Mineral Development Act of 
1982\13\ (IMDA) and its implementing regulations.\14\ Prior to 
the enactment of the IMLA, minerals on Indian lands were 
developed under a number of Federal statutes dating back to 
1891.\15\
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    \11\Act of May 11, 1938, 52 Stat. 347 (codified at 25 U.S.C. 
Sec. Sec. 396a-396g).
    \12\25 C.F.R. pt. 211.
    \13\Indian Mineral Development Act of 1982, Pub. L. No. 97-382, 96 
Stat. 1938 (codified at 25 U.S.C. Sec. Sec. 2101-2108).
    \14\25 C.F.R. pt. 225.
    \15\See, e.g., Act of February 28, 1891, 26 Stat. 795 (codified at 
25 U.S.C. Sec. 397); Act of June 30, 1919, 41 Stat. 31 (codified at 25 
U.S.C. Sec. 399); Act of September 20, 1922, ch. 347, 42 Stat. 857 
(codified at 25 U.S.C. Sec. 400).
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    The IMLA authorizes only mineral leases, whereas the IMDA 
authorizes a ``joint venture, operating, production sharing, 
service, managerial, lease or other agreement.''\16\ The IMDA 
was specifically intended to provide Indian tribes both with a 
greater role and with more flexibility in the mineral 
development process than is possible under the IMLA, by 
allowing the Indian tribes themselves to negotiate and 
structure mineral agreements. The IMDA was a significant policy 
step in furtherance of the broader Federal policy of Indian 
self-determination.\17\
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    \16\25 U.S.C. Sec. 2102(a).
    \17\See S. Rep. No. 97-472, at 2 (1982). See generally Cohen's 
Handbook of Federal Indian Law Sec. 17.03[2][a]-[b], at 1123-30 (Nell 
Jessup Newton et al. eds., LexisNexis 2012) (1941).
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    Despite the greater flexibility and increased tribal 
involvement provided in the IMDA, the Secretary of the Interior 
(Secretary) retains considerable control over the process of 
finalizing any IMDA agreement. Most notably, the IMDA requires 
the Secretary to review a proposed IMDA agreement between the 
Indian tribe and a third party and determine whether it is in 
the best interest of the Indian tribe in light of several 
economic and non-economic factors.\18\ If the Secretary is not 
satisfied that the proposed agreement meets the statutory test, 
the Secretary may disapprove it.\19\
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    \18\25 U.S.C. Sec. 2103(b).
    \19\Id. Sec. 2103(a)-(b).
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    The IMDA's implementing regulations also authorize the 
Secretary to cancel agreements for a range of violations by an 
operator\20\ and to impose a penalty of up to $1000 for each 
day that a violation or non-compliance ``continues beyond the 
time limits prescribed for corrective action.''\21\ Neither the 
statute nor the regulations require the Secretary to consult 
with the Indian tribe or obtain its consent before taking these 
actions against an operator. In fact, it would appear that the 
Secretary has the authority to cancel the agreement and fine an 
operator even if the Indian tribe were to oppose these 
measures.
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    \20\25 C.F.R. Sec. 225.36.
    \21\25 C.F.R. Sec. 225.37(a).
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    Curiously, under the IMDA, the Secretary decides whether to 
approve, disapprove, or cancel an agreement, and determines 
whether an operator has violated an agreement and whether to 
impose stiff penalties for doing so. Yet, the IMDA nevertheless 
expressly exempts the United States from liability ``for losses 
sustained by a tribe or individual Indian under such 
agreement'' as long as the Secretary approved the agreement in 
accordance with the Act and other applicable law.\22\ 
Therefore, the IMDA provides the Secretary with the ultimate 
control over mineral development decisions, but at the same 
time appears to provide that the United States cannot be held 
accountable financially for those decisions as long as the 
Secretary followed the law.
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    \22\25 U.S.C. Sec. 2103(e). Note, however, the second proviso at 
the end of this subsection: ``[N]othing in this Act shall absolve the 
United States from any responsibility to Indians, including those which 
derive from the trust relationship and from any treaties, Executive 
orders, or agreement between the United States and any Indian tribe.''
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Costly delays due to burdensome Federal processes for energy 
        development on tribal lands

    Approval of leases or agreements involving Indian lands by 
the Secretary is an act of a Federal official that triggers the 
environmental review process under the National Environmental 
Policy Act (NEPA).\23\ The time needed for the Department of 
the Interior to comply with Federal statutes and regulations 
that apply specifically to Indian lands, such as the IMLA and 
the IMDA and the implementing regulations, combined with the 
time needed to comply with the NEPA often leads to 
extraordinary delays in the approval of mineral leases and 
agreements.
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    \23\National Environmental Policy Act of 1969, Pub. L. No. 91-190, 
83 Stat. 852 (1970) (codified at 42 U.S.C. Sec. 4321 et seq.). See 
Davis v. Morton, 469 F.2d 593, 597 (10th Cir. 1972) (approval of long 
term surface lease of Tesuque Pueblo's land requires review under 
NEPA); Manygoats v. Kleppe, 558 F.2d 556, 561 (10th Cir. 1977) 
(approval of an IMLA lease of tribal lands for uranium mining purposes 
requires review under NEPA).
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    The past legislative history of this bill is replete with 
examples of delays due to the agency bureaucracy. Most notably, 
at the Committee's legislative hearing on a prior bill, S. 
2132, held on April 30, 2014, Chairman Howell of the Ute Indian 
tribe of the Uintah and Ouray Reservation submitted written 
testimony about the hindrances of Federal oversight and 
regulations. In his testimony, Chairman Howell stated:

          The Tribe takes an active role in the development of 
        its resources, however, despite our progress, the 
        Tribe's ability to fully benefit from its resources is 
        limited by the federal agencies overseeing oil and gas 
        development on the Reservation. For example, we need 10 
        times as many permits to be approved. Currently, about 
        48 Applications for Permits to Drill (APD) are approved 
        each year for oil and gas operations on the 
        Reservation. We estimate that 450 APDs will be needed 
        each year as we expand operations. As the oil and gas 
        companies who operate on the Tribe's Reservation often 
        tell the Tribe, the federal oil and gas permitting 
        process is the single biggest risk factor to operations 
        on the Reservation. In order for the Tribe to continue 
        to grow and expand our economy the federal permitting 
        process needs to be streamlined and improved.\24\
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    \24\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes, Before the S. Comm. 
on Indian Affairs, 113th Cong. (2014) (testimony submitted from Gordon 
Howell, Chairman, Business Committee for the Ute Indian Tribe of the 
Uintah and Ouray Reservation).

    More egregious results of bureaucratic delays were raised 
at the same legislative hearing. Chairman Olguin of the 
Southern Ute Tribe testified about a letter written to the 
Regional Director of the Bureau of Indian Affairs in 2009 
explaining the impacts of the bureaucratic delays. He stated in 
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his written testimony (quoting the letter) the following:

          [A]pproximately 24 Applications for Permit to Drill 
        (APDs) await BIA concurrence. Additionally, 
        approximately 81 pipeline [Rights-of-way] await 
        issuance by the BIA. Of the 81 pending ROWs, 11 were 
        approved in Tribal Council resolutions adopted in 2006, 
        44 were approved in Tribal Council resolutions adopted 
        in 2007, 22 were approved in Tribal Council resolutions 
        adopted in 2008, and 4 were approved in Tribal Council 
        resolutions adopted in 2009. . . . We estimate that 
        lost revenue attributable to severance taxes and 
        royalties alone exceeds $94,813,739. Significantly, 
        during the period of delay, prices for natural gas rose 
        to an historic high, but have now declined to 
        approximately one-third of that market value. Thus, 
        much of this money will never be recovered by the 
        Tribe.\25\
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    \25\Id. (testimony by James Olguin, Acting Chairman, Southern Ute 
Indian tribe).
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The Government Accountability Office Report

    On June 8, 2015, the GAO issued its Report in response to a 
request by Senator Barrasso in January, 2014.\26\ This Report 
examined the barriers to energy development on Indian lands and 
highlighted several barriers including poor management by the 
Department of the Interior, Bureau of Indian Affairs. Most 
notably, the GAO found that the BIA does not have the data 
needed to verify ownership of natural resources or identify 
where leases are in effect, nor does it have an adequate system 
to track review and response times in approving leases or other 
development-related transactions.\27\
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    \26\U.S. Gov't Accountability Office, GAO-15-502, Indian Energy 
Development: Poor Management by BIA Has Hindered Energy Development on 
Indian Lands (2015).
    \27\Id. at 18, 21.
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    These deficiencies add to the other barriers identified by 
the GAO (and echoed by tribal leaders over the past few years) 
such as the complex regulatory framework. Taken together, these 
barriers severely diminish, if not eliminate, the ability of 
tribes to develop their resources. In fact, the GAO noted that 
one private developer indicated it was nearly 65 percent more 
costly to develop on Indian lands than non-Indian lands.\28\
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    \28\Id. at 25.
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    The TERA process in both the ITEDSDA and (as amended) in 
this bill, S. 245, would serve to reduce much of the 
bureaucratic delays. While it is encouraging that the BIA 
generally agreed with most of the recommendations in the GAO 
Report and has taken some steps to address the issues, the 
Committee remains concerned that a fully developed plan of 
action is not available to continue addressing the issues 
identified in the Report.
    The Committee is indeed troubled that tribes (and 
individual tribal members) are missing opportunities to develop 
resources or receive revenues from these resources. The 
Committee intends to continue working with the Administration 
to determine whether additional legislative action is needed to 
assist in addressing these issues.

Title V of the Energy Policy Act of 2005

    Title V of the Energy Policy Act of 2005, the Indian Tribal 
Energy Development and Self-Determination Act\29\ (ITEDSDA), 
created a new, alternative process for Indian tribes to 
negotiate and approve energy-related agreements and rights-of-
way on tribal trust and restricted lands.\30\ Commonly referred 
to as the ``TERA process,'' section 3504 of the ITEDSDA 
authorizes ``tribal energy resource agreements'' (TERA or 
TERAs) between an Indian tribe and the Secretary of the 
Interior.\31\ When operating under a TERA, an Indian tribe can 
enter into leases, business agreements, and rights-of-way 
without any further approval of the Secretary.
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    \29\Indian Tribal Energy Development and Self-Determination Act, 
Title V of the Energy Policy Act of 2005, Pub. L. No. 109-58, 
Sec. Sec. 501-506, 119 Stat. 763 (codified at 25 U.S.C. Sec. Sec. 3501-
3506).
    \30\25 U.S.C. Sec. 3504.
    \31\25 U.S.C. Sec. 3504(e).
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Legislative history of the TERA

    Past Committee Reports provide an extensive legislative 
history of predecessor bills and elaborate on the development 
of and debate on those predecessor bills which have led to this 
bill.\32\ There are particular provisions of the ITEDSDA 
discussed in those Reports that are of notable significance for 
this bill, S. 245.
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    \32\S. 2132, 113th Cong (2014).
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    The ITEDSDA was enacted in the 109th Congress, but was 
largely developed during the 108th, having originated from two 
separate Indian energy bills. One of these bills, S. 522, was 
introduced by Senator Ben Nighthorse Campbell (then Chairman of 
the Committee), and the other, S. 424, by Senator Jeff Bingaman 
(then ranking member of the Committee on Energy and Natural 
Resources). The Committee held a hearing on the two bills on 
March 19, 2003.\33\
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    \33\Tribal Energy Self-Sufficiency Act and the Native American 
Energy and Self-Determination Act: Hearing on S. 424 and S. 522 Before 
the S. Comm. on Indian Affairs, 108th Cong. (2003).
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    While there were a number of significant differences 
between the two bills, there were also key similarities in both 
bills relating to Secretarial approvals of energy-related 
transactions and rights-of-ways and to waivers of liability. 
Both bills would have authorized Indian tribes to grant rights-
of-way to third parties to serve energy-related facilities 
located on tribal lands without Secretarial approval if done 
pursuant to tribal regulations approved by the Secretary.
    Both bills included provisions that would authorize energy-
related transactions between Indian tribes and third parties 
without approval by the Secretary of the Interior if the 
transactions were carried out in accordance with tribal 
regulations that had been previously approved by the 
Secretary.\34\ Secretarial approval for these types of 
transactions would have been otherwise required under the IMLA, 
IMDA, or, in cases of energy-related surface uses (for example, 
wind or solar energy projects), 25 U.S.C. Sec. 415.
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    \34\Section 103(b) of S. 424 would allow 30-year leases of tribal 
land for siting ``electrical generation, transmission, or 
distribution'' facilities (such as coal-fired power plants) or 
facilities that ``refine or otherwise process renewable or non-
renewable resources'' (such as oil refineries) developed on tribal 
land. S. 522 would allow 30-year leases of tribal land for similar 
purposes as those authorized in S. 424 but also for ``exploration for, 
extraction of, processing of, or other development of energy 
resources'' (i.e., oil, gas, or coal development and production). The 
model for this feature of S. 424 and S. 522--authorizing leases of 
tribal land without Secretarial approval if done pursuant to tribal 
regulations that had been approved by the Secretary--was the Navajo 
Nation Trust Land Leasing Act of 2000, which was enacted as part of the 
Omnibus Indian Advancement Act. See Title XII of Pub. L. No. 106-568, 
114 Stat. 2933 (2000).
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    Both S. 424 and S. 522 included liability waiver clauses 
that would protect the United States from claims arising from 
losses sustained as a result of leases entered into pursuant to 
the authority under the bills. Although worded somewhat 
differently, the waivers in the two bills were fairly broad in 
scope and similar in effect.\35\
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    \35\The liability waiver clauses in S. 424 and S. 522 are similar 
to the liability waiver provision in the IMDA, 25 U.S.C. Sec. 2103(e). 
See supra note 21 and accompanying text.
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    The Committee staff eventually produced a revised version 
of S. 522 that combined many provisions from that bill with 
provisions in S. 424, including the provisions that allowed 
Indian tribes to enter into energy-related leases, agreements, 
and rights-of-way without the Secretary's approval. These 
provisions were modified in several respects--in particular by 
authorizing a ``tribal energy resource agreement'' (TERA) 
between the Indian tribe and the Secretary in lieu of ``tribal 
regulations'' approved by the Secretary, so that leases, 
agreements, and rights-of-way would not require Secretarial 
approval if entered into pursuant to an approved TERA.\36\
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    \36\See note 56, infra, regarding the third-party petitioning 
process for some of the reasons a Secretary-Tribal agreement (i.e., the 
TERA) was used in lieu of tribal regulations.
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    This revised version of the two bills was ultimately 
included as Title III of S. 1005, the Energy Policy Act of 
2003, as reported by the Committee on Energy and Natural 
Resources during the 108th Congress.\37\ None of the Senate or 
House bills addressing comprehensive energy policy were enacted 
into law in the 108th Congress, including S. 1005.\38\
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    \37\See S. Rep. No. 108-43, at 29-36.
    \38\See also S. 14; H.R. 6; H.R. 238; H.R. 1531; H.R. 1644.
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    In the 109th Congress, the Energy Policy Act of 2005 was 
signed into law on August 8, 2005. The Act included, with some 
modifications, the Indian energy title and the TERA process 
that was part of S. 1005 from the previous Congress.\39\
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    \39\See Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119 
Stat. 594 (2005). On March 10, 2008, the Department adopted regulations 
implementing the TERA provisions of the Energy Policy Act of 2005. See 
Tribal Energy Resource Agreements Under the Indian Tribal Energy 
Development and Self-Determination Act, 73 Fed. Reg. 12821 (Mar. 10, 
2008) (codified at 25 C.F.R. pt. 224).
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Key provisions of the TERA process under current law

    The following is a summary of the key provisions of the 
TERA process in the ITEDSDA.\40\
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    \40\The TERA process of the ITEDSDA is set forth in 25 U.S.C. 3504 
but uses some terms defined in Sec. 3501.
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    Tribal trust lands. The TERA provisions of the ITEDSDA only 
apply to ``tribal land'' as defined in 25 U.S.C. Sec. 3501(12). 
Tribal land means trust or restricted land of an Indian tribe 
(i.e., not individual Indian trust or restricted land or tribal 
fee land). While the term ``Indian tribe'' includes Alaska 
Native corporations for many purposes of the ITEDSDA, ``Indian 
tribe'' does not include those corporations for purposes of the 
TERA provisions of section 3504.
    Tribal discretion. The TERA process does not automatically 
apply to the tribal land of an Indian tribe. Whether to pursue 
a TERA is a decision that the Indian tribe makes in its own 
discretion.
    Kinds of agreements authorized. Once a TERA has been 
approved by the Secretary, the Indian tribe may, without 
further approval of the Secretary, enter into energy leases, 
business agreements, and, for certain energy-related purposes, 
rights-of-way.\41\
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    \41\25 U.S.C. Sec. 3504(a)-(b) imposes limitations on the duration 
of the term (30 years for most leases and business agreements and for 
rights-of-way and, in the case of oil and gas leases, ``10 years and as 
long thereafter as oil or gas is produced in paying quantities''). 
However, Indian tribes may renew leases, business agreements, and 
rights-of-way under Sec. 3504(c).
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    Scope of TERA. A TERA may, at the Indian tribe's option, 
address ``all or a part'' of its energy resources, whether 
renewable or nonrenewable.\42\ Conceivably, an Indian tribe 
would also be free to include language in the TERA that would 
limit its application to certain designated geographic areas 
within its tribal lands.
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    \42\See 25 C.F.R. Sec. 224.30 (defining ``Energy Resources'' as 
``including, but not limited to, natural gas, oil, uranium, coal, 
nuclear, wind, solar, geothermal, biomass, and hydrologic resources''). 
25 U.S.C. Sec. 3504(a) itself expressly mentions ``energy mineral 
resources,'' ``electric generation, transmission, or distribution'' 
facilities, and oil and gas resources.
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    Approval of the TERA by the Secretary. The tribal authority 
to approve leases, business agreements, and rights-of-way 
without Secretarial approval requires that the Indian tribe 
have a TERA in place that has been approved by the 
Secretary.\43\
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    \43\25 U.S.C. Sec. 3504(d).
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    Process for obtaining an approved TERA. The following are 
the key steps in the process for obtaining an approved TERA 
under current law.\44\
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    \44\The regulations at 25 C.F.R. Sec. 224.50-224.68 establish the 
process in considerably more detail than the statute.
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          (i) The tribe must submit a proposed TERA to the 
        Secretary.\45\
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    \45\25 U.S.C. Sec. 3504(e)(1).
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          (ii) The Secretary has 270 days after receiving a 
        TERA within which to approve or disapprove the proposed 
        TERA.\46\
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    \46\25 U.S.C. Sec. 3504(e)(2)(A).
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          (iii) The Secretary must provide notice and 
        opportunity for public comment on the proposed TERA. 
        However, the environmental review of the proposed TERA 
        ``shall be limited to activities specified in the 
        provisions of the TERA.''\47\
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    \47\25 U.S.C. Sec. 3504(e)(3); 25 C.F.R. Sec. 224.70.
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          (iv) The Secretary ``shall approve''\48\ a proposed 
        TERA if (1) the Indian tribe has demonstrated its 
        capacity to regulate energy development; (2) the TERA 
        includes provisions requiring a periodic review and 
        evaluation of the tribe's performance under the TERA 
        and, if the Secretary finds ``imminent jeopardy'' to a 
        physical trust asset, allowing the Secretary to take 
        protective measures, including reassumption; and (3) 
        the TERA includes the 16 mandatory clauses or 
        provisions itemized in section 3504(e)(2)(B)(iii)\49\, 
        one of which is the environmental review process 
        required under section 3504(e)(2)(C).
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    \48\25 U.S.C. Sec. 3504(e)(2)(B).
    \49\See also 25 C.F.R. Sec. 224.63.
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          (v) The Secretary must notify the Indian tribe in 
        writing of a disapproval decision within 10 days of the 
        decision, stating the basis for disapproval and 
        identifying the changes or other actions that are 
        required to address the Secretary's concerns and 
        providing the Indian tribe with an opportunity to 
        revise and re-submit the TERA.\50\
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    \50\25 U.S.C. Sec. 3504(e)(4); 25 C.F.R. Sec. 224.75. Under the 
regulations, the Indian tribe has 45 days (or such longer time as the 
tribe and the Secretary may agree) after receiving a notice of 
disapproval to resubmit a revised TERA. 25 C.F.R. Sec. 224.76.
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          (vi) The Secretary ``shall approve'' the revised TERA 
        if it meets the same 3 criteria set forth in paragraph 
        (iv), above, applicable to the original version of the 
        TERA.\51\ The Secretary has only 60 days within which 
        to approve or disapprove a revised TERA.\52\
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    \51\25 U.S.C. Sec. 3504(e)(2).
    \52\Id.; 25 C.F.R. Sec. 224.76. Under the regulations, a 
disapproval of a revised TERA is a ``final agency action'' and subject 
to judicial review. 25 C.F.R. Sec. 224.77. Under the regulations, only 
the Indian tribe has standing to seek judicial review of a decision to 
disapprove a TERA or a revised TERA. 25 C.F.R. Sec. 224.77.
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    Post-approval/TERA implementation matters. There are a 
number of tasks, issues, and considerations addressed in 
section 3504 that arise after a TERA has been approved. The 
following are among the more significant:
          (i) The Secretary must conduct a periodic review and 
        evaluation of the Indian tribe's performance under an 
        approved TERA. (See paragraph 7(iv)(2) above.) The 
        review must be conducted annually unless, after the 
        third annual review, the Indian tribe and the Secretary 
        agree to amend the TERA to allow biannual reviews.\53\
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    \53\25 U.S.C. Sec. 3504(e)(2)(D)-(E).
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          (ii) A copy of each lease, business agreement or 
        right-of-way executed by the Indian tribe pursuant to 
        its TERA must be delivered to the Secretary; the lease, 
        agreement or right-of-way is not effective until that 
        occurs.\54\ If the TERA authorizes ``direct payment'' 
        leases and agreements, the Indian tribe must furnish 
        the Secretary with sufficient information to discharge 
        the Secretary's trust responsibility to enforce the 
        terms of the lease or agreement and protect the rights 
        of the tribe.\55\
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    \54\25 U.S.C. Sec. 3504(e)(2)(B)(iii)(XIII)-(5)(A); 25 C.F.R. 
Sec. 224.83(b).
    \55\25 U.S.C. Sec. 3504(e)(5)(B); 25 C.F.R. Sec. 224.63(k).
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          (iii) The ITEDSDA allows third parties with standing 
        to petition the Secretary if they believe the Indian 
        tribe is not complying with its own TERA. To have 
        standing to invoke this process, the third party must 
        be an ``interested person . . . [who] has demonstrated 
        that an interest of the person has sustained, or will 
        sustain, an adverse environmental impact as a result of 
        the failure of the Indian tribe to comply'' with its 
        TERA.\56\
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    \56\25 U.S.C. Sec. 3504(e)(7)(A)-(B); 25 C.F.R. Sec. 224.100-
224.101 (emphasis added). As discussed supra at note 34 and in the 
accompanying text, the ITEDSDA used TERAs in lieu of tribal regulations 
approved by the Secretary, as in the case of the Navajo Nation Trust 
Land Leasing Act of 2000 (25 U.S.C. Sec. 415(e)) and the Helping 
Expedite and Advance Responsible Tribal Home Ownership Act of 2012 
(Pub. L. No. 112-151, 126 Stat. 1150 [hereinafter HEARTH Act], 
providing similar authority for all Indian tribes to enter into surface 
leases without the Secretary's approval if done pursuant to tribal 
regulations that had been approved by the Secretary. Under the TERA 
process, a third-party petitioner must complain that that the Indian 
tribe has violated an agreement (i.e., a TERA) entered into between the 
United States and the Indian tribe. See 25 U.S.C. Sec. 3504(e)(7)(A)-
(B); 25 C.F.R. Sec. 224.100-224.101. The Indian canons of construction 
dictate that treaties and agreements between the United States and 
Indian tribes must be liberally construed in favor of the tribe; 
therefore, TERAs should be construed in favor of the tribe when the 
Secretary is entertaining a third-party petition. See Worcester v. 
Georgia, 31 U.S. 515, 552-53, 582 (1832); Choate v. Trapp, 224 U.S. 
665, 675 (1912); and County of Oneida v. Oneida Indian Nation, 470 U.S. 
226, 147 (1985). Further, Sec. 3504(e)(6) requires the Secretary to 
carry out the section ``in good faith and in the best interests of the 
Indian tribes.'' See also 25 C.F.R. Sec. 224.40.
---------------------------------------------------------------------------
          Accordingly, the petitioning process is not available 
        as an avenue for persons to air generalized grievances 
        over the Indian tribe's activities under the TERA. 
        Further, before a petition may be filed with the 
        Secretary, the ``interested person'' must first exhaust 
        all applicable tribal remedies, if any.\57\ The 
        regulations set forth the petitioning process in detail 
        and provide the Indian tribe with significant 
        opportunities to deny, address, or otherwise resolve 
        the allegations. If, in the end, the Secretary 
        determines that the tribe is in violation of the TERA, 
        the Secretary must take ``such action as the Secretary 
        determines to be necessary to ensure compliance'' with 
        the TERA, including suspending activities under a 
        lease, agreement, or right-of-way or rescinding 
        approval of all or part of the TERA.\58\
---------------------------------------------------------------------------
    \57\25 U.S.C. Sec. 3504(e)(7)(B); 25 C.F.R. Sec. 224.100.
    \58\25 U.S.C. Sec. 3504(e)(7)(D)(iii); 25 C.F.R. Sec. 224.120.
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          (iv) An Indian tribe with an approved TERA may 
        rescind it in its own discretion.\59\
---------------------------------------------------------------------------
    \59\25 U.S.C. Sec. 3504(e)(8)(B); 25 C.F.R. Sec. 224.170-224.175.
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          (v) Like the IMDA, the Navajo Nation Trust Land 
        Leasing Act, and, the HEARTH Act, the TERA provisions 
        of the ITEDSDA include a liability waiver clause\60\ 
        that protects the United States. However, the liability 
        waiver provision in ITEDSDA is intended to be narrower 
        than the corresponding clauses in those other three 
        acts. The ITEDSDA waiver protects the United States 
        only from liability for those matters over which the 
        Secretary has no control--namely, from losses resulting 
        from the ``negotiated terms'' of leases, business 
        agreements, and rights-of-way.\61\ ``Negotiated term'' 
        is defined for purposes of this clause as ``any term or 
        provision that is negotiated by an Indian tribe and any 
        other party to a lease, business agreement, or right-
        of-way entered into pursuant to an approved'' TERA.\62\ 
        The clause would not protect the United States from 
        losses resulting from the Secretary's own failure to 
        carry out obligations imposed on the Secretary under 
        the ITEDSDA--for example, from failure to conduct a 
        periodic review and evaluation or from a failure to 
        protect the tribe's interests as a result of a breach 
        of a lease or business agreement.\63\
---------------------------------------------------------------------------
    \60\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
    \61\25 U.S.C. Sec. 3504(e)(6)(D)(i).
    \62\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
    \63\Nor would the clause protect the United States from liability 
for losses resulting from a lease, agreement, or right-of-way that was 
entered into by the Indian tribe and a third party but that was not 
authorized under the terms of the tribe's TERA. For instance, as noted 
above, the TERA might only authorize development of a specific kind of 
energy resource, such as wind energy. If the Indian tribe proceeds to 
enter into a solar project agreement or an oil and gas or coal lease, 
and provides a copy of the lease to the Secretary pursuant to 25 C.F.R. 
Sec. 224.83(b), it seems unlikely the United States could argue 
successfully that any losses resulted from the ``negotiated terms'' of 
a lease entered into ``pursuant to an approved tribal energy resource 
agreement.''
---------------------------------------------------------------------------
    Tribal concerns with the TERA process under current law. 
During the listening sessions before the introduction of prior 
bills and subsequently, tribal representatives expressed 
concerns about certain aspects of the TERA process under 
current law. These concerns were, by and large, the same 
concerns discussed in two law review articles about the 
ITEDSDA, one by Professor Judith V. Royster\64\ and the other 
by Benjamin J. Fosland.\65\
---------------------------------------------------------------------------
    \64\Judith V. Royster, Practical Sovereignty, Political 
Sovereignty, and the Indian Tribal Energy Development and Self-
Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008).
    \65\Benjamin J. Fosland, A Case of Not-So-Fatal Flaws: Re-
Evaluating the Indian Tribal Energy and Self-Determination Act, 48 
Idaho L. Rev. 447 (2012).
---------------------------------------------------------------------------
    In her article on the ITEDSDA, Professor Royster identifies 
and discusses four areas of concern raised by tribal 
representatives regarding the TERA process.\66\ In his article, 
Benjamin J. Fosland addresses the same basic areas of concern 
but in three broad categories:
---------------------------------------------------------------------------
    \66\These are (1) not all tribal trust resources are covered by the 
TERA provisions of the ITEDSDA, including non-energy minerals like 
clay, sand and gravel; (2) lack of access to financial, technical, and 
scientific resources to carry out the TERA; (3) the prospect of public 
involvement in tribal decision-making (including during the Secretary's 
review of a proposed TERA, the tribal environmental review process 
required to be covered by a TERA under the ITEDSDA, and the process of 
``interested party'' petitions); and (4) implications for the Federal 
trust responsibility. See Royster, supra note 64 at 1087-1101. Some of 
these concerns were echoed by tribal representatives to Committee staff 
prior to and after the introduction of the bill. The comment most often 
heard was that the ITEDSDA does not include financial assistance for 
Indian tribes that enter into TERA. The trust responsibility concern 
was mentioned but less prominently, perhaps reflecting a growing 
awareness among Indian tribes that the liability waiver in the ITEDSDA 
is narrower than that in the IMDA and that the ITEDSDA requires 
considerable involvement of the Secretary in protecting the tribal 
interest notwithstanding the approval of a TERA.
---------------------------------------------------------------------------
          (1) many Indian tribes ``lack the resources to make 
        the resource agreement system feasible';
          (2) the requirement of public comment in the tribe's 
        decision-making is anathema to tribal sovereignty and 
        self-government; and
          (3) the Federal government is relieved of the trust 
        responsibility after a tribe enters into a TERA.\67\
---------------------------------------------------------------------------
    \67\Fosland, supra note 65 at 449.
---------------------------------------------------------------------------
    He concludes that all three criticisms of the ITEDSDA ``are 
largely unwarranted.'' These concerns and the professors' 
analyses are discussed in significant detail in prior Committee 
Reports.\68\ However, certain key points are reiterated herein.
---------------------------------------------------------------------------
    \68\S. Rep. No. 113-224 (2014); S. Rep. No. 112-263 (2012).
---------------------------------------------------------------------------
    Broad tribal support\69\ for the HEARTH Act\70\ passed in 
2012 suggests that, whatever the concerns over a statutory 
requirement of public input in a tribe's energy development 
process may have been when the ITEDSDA was adopted in the 109th 
Congress, those concerns appear to have diminished somewhat in 
the intervening years in light of the fact that the HEARTH Act 
has similar requirements for public involvement.\71\ The same 
applies to concerns over the ``interested party'' challenges 
authorized in the ITEDSDA. The HEARTH Act, which is similar to 
the TERA process, authorizes interested parties to petition the 
Secretary and complain that an Indian tribe is violating its 
own leasing regulations.\72\
---------------------------------------------------------------------------
    \69\See S. 703, the Helping Expedite and Advance Responsible Tribal 
Homeownership Act of 2011, Hearing Before S. Comm. on Indian Affairs, 
112th Cong. 64 (2011) (statement of Cheryl A. Causley, Chairwoman, 
National American Indian Housing Council); H.R. 205, the HEARTH Act of 
2011: Hearing Before the Subcomm. on Indian and Alaska Native Affairs 
of the H. Natural Resources Comm., 112th Cong. 20-21 (2011) (statement 
of Floyd Tortalita, Vice-Chairman, National American Indian Housing 
Council); S. 703, the Helping Expedite and Advance Responsible Tribal 
Homeownership Act of 2011: Hearing Before S. Comm. on Indian Affairs, 
112th Cong. 59 (2011) (statement of Robert Tippeconnie, Southern Plains 
Area Vice President, National Congress of American Indians).
    \70\Pub. L. No. 112-151, 126 Stat. 1150. Section 2 of the HEARTH 
Act amends 25 U.S.C. Sec. 415 by adding at the end a new subsection 
(h), authorizing tribal leasing of surface tribal trust lands without 
approval of the Secretary if done pursuant to tribal regulations that 
have been approved by the Secretary. The HEARTH Act is essentially the 
same authority as provided in the Navajo Nation Trust Land Leasing Act 
of 2000 (which is set forth in subsection (e) of section 415), except 
that it is available for all Indian tribes with tribal trust lands.
    \71\Id.
    \72\Id.
---------------------------------------------------------------------------
    In regard to concerns over the ITEDSDA and the trust 
responsibility, Professor Royster points out that ``one 
significant difference between the IMDA and the ITEDSDA . . . 
[is that] under the IMDA, the Secretary approves or disapproves 
each specific agreement for mineral development . . . [and] is 
bound not only by the vague best interest of the Indian tribe' 
standard, but is instructed to consider such factors as 
potential economic return, financial effects on the tribe, 
marketability of the minerals, and environmental, social, and 
cultural effects on the tribe.''\73\
---------------------------------------------------------------------------
    \73\Royster, supra note 64 at 1099-1100.
---------------------------------------------------------------------------
    She concludes that, while ``failure to consider or 
adequately account for specified factors might subject the 
government to damages for breach of trust,'' relying on ``the 
good faith of the government can be a dangerous thing'' given 
the outcome of United States v. Navajo Nation\74\ and that 
``tribal trust in the government may, and should be, a thing of 
the past. . . . Tribes need, as a practical matter if nothing 
else, to look out for their own interests.''\75\ Again, despite 
the fact that the recently enacted HEARTH Act has a very 
explicit and more expansive direct liability waiver clause,\76\ 
the Indian tribes vigorously supported the adoption of the Act 
in 2012, suggesting that many tribes have reached some level of 
comfort with the implications of these clauses.
---------------------------------------------------------------------------
    \74\537 U.S. 488 (2003).
    \75\Royster, supra note 64 at 1100-1101. However, to impose 
liability on the government, a court would have to find a way around 
the express waiver in 25 U.S.C. Sec. 2103(e).
    \76\``The United States shall not be liable for losses sustained by 
any party to a lease executed pursuant to tribal regulations under 
paragraph (1).'' HEARTH Act Sec. 2.
---------------------------------------------------------------------------
    At the legislative hearing held by the Committee on S. 2132 
during the 113th Congress, the Administration expressed 
concerns about the waiver of liability provisions in the bill 
and recommended replacing the waiver of liability provisions 
that apply to tribal energy resource agreements with the waiver 
of liability provision in the HEARTH Act.\77\ The 
Administration testified the waiver of liability under a TERA 
and under the HEARTH Act is ``slightly different language to 
reach the same basic meaning'' and that it ``doesn't accomplish 
much difference.''\78\
---------------------------------------------------------------------------
    \77\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes, Before the S. Comm. 
on Indian Affairs, 113th Cong. (2014) (testimony by Kevin Washburn, 
Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, U.S. 
Department of the Interior).
    \78\Id.
---------------------------------------------------------------------------
    The Committee strongly disagrees. The HEARTH Act has a 
liability waiver that is broader than the TERA liability 
waiver. The HEARTH Act absolves the United States of liability 
``for losses sustained by any party to a lease executed 
pursuant to tribal regulations'' approved by the Secretary 
under the HEARTH Act.\79\ In contrast, for TERAs, under both 
the ITEDSDA and this bill, the United States is only absolved 
of liability ``for any negotiated term of a lease, business 
agreement, or right-of-way executed pursuant . . . to a tribal 
energy resource agreement.''\80\
---------------------------------------------------------------------------
    \79\Pub. L. No. 112-151, 126 Stat. 1150 (codified at 25 U.S.C. 
Sec. 415(h)(7)(A)).
    \80\25 U.S.C. Sec. 3504(e)(6)(D).
---------------------------------------------------------------------------
    When an Indian tribe is operating under a TERA, the United 
States is still liable for any actions or losses that are not a 
negotiated term, whereas when a tribe is operating under 
regulations approved by the Secretary under the HEARTH Act the 
liability of the United States is much more limited.\81\he 
Committee is concerned that adopting the waiver of liability in 
the HEARTH Act could compromise the waiver of liability 
applicable to TERAs that was carefully examined, negotiated and 
enacted in Title V of the Energy Policy Act of 2005.\82\ For 
these reasons, the Committee will maintain the liability 
language contained in ITEDSDA and as clarified in S. 245 (and 
S. 2132 from the 113th Congress).
---------------------------------------------------------------------------
    \81\``Negotiated term is defined as ``any term or provision that is 
negotiated by an Indian tribe and any other party to a lease, business 
agreement, or right-of-way entered into pursuant to an approved tribal 
energy resource agreement.'' 25 U.S.C. Sec. 3504(e)(6)(D)(i).
    \82\Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119 
Stat. 594 (2005).
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                     KEY AMENDMENTS TO THE ITEDSDA

    This bill, S.245, is identical to language in approved in 
S. 209 during the 114th Congress. The following is a 
description of the key provisions of the bill S. 245.

Amendments to the TERA process of the ITEDSDA

    Section 103 of the bill would make a number of amendments 
to the TERA process of the ITEDSDA that are intended to address 
tribal and agency concerns, including the concerns discussed in 
the previous sections of this Report. The most significant 
amendments to the ITEDSDA are summarized below.
    Manner of TERA taking effect. The bill would amend the 
ITEDSDA to change the manner in which a TERA goes into effect. 
Under current law, the Secretary must approve or disapprove a 
proposed TERA within 270 days of its receipt by the 
Secretary.\83\ Under the bill, a TERA would go into effect 
automatically on the 271st day after its delivery to the 
Secretary unless the Secretary acts first to disapprove the 
TERA for one of the reasons stated in the ITEDSDA. A revised 
TERA will go into effect on the 91st day unless it is 
disapproved by the Secretary for one of the reasons stated in 
the ITEDSDA.
---------------------------------------------------------------------------
    \83\25 U.S.C. Sec. 3504(e)(2)(A).
---------------------------------------------------------------------------
    Reasons for disapproving a TERA. Upon enactment, there 
would be only four reasons for disapproving a proposed TERA 
(three of which are in current law): (1) the Indian tribe fails 
to demonstrate capacity; (2) a provision of the TERA would 
violate applicable Federal law;\84\ (3) the TERA does not 
include the required periodic review and evaluation 
provisions;\85\ and (4) the TERA does not include any of the 
required enumerated provisions.\86\
---------------------------------------------------------------------------
    \84\This reason is new. It is added because under the bill, a TERA 
goes into effect automatically if the Secretary does not disapprove it 
on the basis of one of the other 3 statutory reasons before the 271st 
day.
    \85\25 U.S.C. Sec. 3504(e)(2)(D).
    \86\25 U.S.C. Sec. 3504(e)(2)(B)(iii).
---------------------------------------------------------------------------
    Categorical exclusions. The bill would amend section 
3504(e) of the ITEDSDA\87\ to clarify that a tribe may identify 
actions that are categorically excluded from the review 
process.
---------------------------------------------------------------------------
    \87\Specifically, 25 U.S.C. Sec. 3504(e)(2)(B)(iii).
---------------------------------------------------------------------------
    Scope of authorized development on tribal land under a 
TERA. The bill would amend section 3504(e)(a)(1) by (1) 
clarifying that the authorized electrical generation facilities 
include those that produce energy from renewable resources; (2) 
clarifying that the energy resources that may be processed or 
refined under a TERA may include resources produced from non-
tribal lands, as long as ``at least a portion'' of the 
resources have been developed or produced from tribal land; and 
(3) authorizing agreements under a TERA for pooling, unitizing 
or communitizing a tribe's energy mineral resources on tribal 
land with any other energy mineral resources, whether in trust 
or restricted or unrestricted fee status. The other energy 
resources may be owned by a tribe, individual Indian or any 
other person or entity, if consent is obtained from the owner.
    Capacity determination. Under current law, the 270-day 
period for approving or disapproving a TERA also governs the 
time within which the Secretary determines a tribe's capacity 
to regulate energy development on its tribal lands. The bill 
would require that a preliminary capacity determination be made 
within 120 days of the date the TERA is submitted to the 
Secretary.
    Deeming of tribal capacity. The bill would add a new 
provision that would consider an Indian tribe to have 
sufficient capacity if the Secretary finds that the tribe has 
carried out, for three consecutive years without material audit 
exceptions, a contract or compact under the Indian Self-
Determination and Education Assistance Act\88\ that includes 
activities related to the management of the environment, tribal 
land, realty, or natural resources, or if the Indian tribe has 
carried out approval of surface leases under the HEARTH Act 
without a finding of a compliance violation within the previous 
calendar year.
---------------------------------------------------------------------------
    \88\25 U.S.C. Sec. Sec. 450 et seq.
---------------------------------------------------------------------------
    Statement of reasons for disapproval. Current law requires 
the Secretary to ``notify the Indian tribe in writing of the 
basis for the disapproval [of a proposed TERA]; . . . identify 
what changes or other actions are required to address the 
concerns of the Secretary; and . . . provide the Indian tribe 
with an opportunity to revise and resubmit'' the TERA.\89\ The 
bill would clarify this notice by requiring a detailed written 
explanation of each reason for disapproval and the revisions or 
changes to the TERA necessary to address each reason.
---------------------------------------------------------------------------
    \89\25 U.S.C. Sec. 3504(e)(4).
---------------------------------------------------------------------------
    Trust responsibility. The bill would clarify the liability 
waiver clause in section 3504(e)(6) principally by (1) 
including language indicating that the obligations of the 
Secretary under section 3504 are part of the trust obligation 
of the United States, and (2) adding a clause at the end to the 
effect that the waiver clause does not absolve, limit, or 
otherwise affect ``the liability, if any, of the United 
States'' for terms that are not ``negotiated terms'' or for 
``losses that are not the result of a negotiated term, 
including losses resulting from the failure of the Secretary to 
perform an obligation of the Secretary under this section.''
    These changes are not intended to affect the substance of 
section 3504(e)(6) in current law, but to clarify that the 
liability waiver clause reaches only losses resulting from 
``negotiated terms'' and that it is not a blanket waiver 
covering all losses.
    Interested party petitions. The bill would make clarifying 
amendments to section 3504(e)(7) relating to petitions to the 
Secretary by ``interested parties.'' The bill would clarify 
that the petitioner must demonstrate his or her status as an 
interested party with ``substantial evidence'' (current law is 
silent on what kind of showing must be made). The bill would 
also clarify that the Secretary must determine interested party 
status before proceeding to the question of whether the Indian 
tribe is or is not out of compliance with the TERA. Finally, 
the bill would require the Secretary to dismiss the petition if 
the Indian tribe and the interested party agree to resolve the 
issues in the petition between themselves.
    Financial assistance. The bill would add a new subsection 
(g) to section 3504, ``Financial Assistance in Lieu of 
Activities by the Secretary.'' This provision, which is modeled 
after a provision in the Indian Self-Determination and 
Education Assistance Act,\90\ would require the Secretary to 
make available to the Indian tribe any amounts that the 
Secretary saves as a result of the tribe carrying out a TERA. 
Accordingly, to the extent that the Secretary no longer has to 
perform a function or activity because the tribe is performing 
the function or activity itself, and as a result realizes a 
savings, the funds saved must be provided to the tribe to carry 
out the TERA. The bill would require the Secretary to develop a 
regulatory methodology for calculating any savings for purposes 
of this provision.
---------------------------------------------------------------------------
    \90\25 U.S.C. Sec. 450j-1(n).
---------------------------------------------------------------------------
    Authorizing amendments to approved TERAs. The bill would 
allow an Indian tribe to amend an approved TERA to assume 
authority for approving leases, business agreements, and 
rights-of-way for development of another energy resource by 
negotiating with the Secretary an amendment to an approved 
TERA.

Other Amendments to the ITEDSDA

    The bill would make other amendments to the ITEDSDA, both 
technical and substantive in nature, which are unrelated to the 
TERA process. The following is a summary of the more 
substantive amendments.
    Tribal energy development organization. The bill would 
amend the definition section of the ITEDSDA (section 3501(11)) 
to provide that ``tribal energy development organization'' 
includes corporations organized under section 17 of the Indian 
Reorganization Act of 1934\91\ and section 3 of the Oklahoma 
Indian Welfare Act\92\ for purposes of the ITEDSDA.
---------------------------------------------------------------------------
    \91\25 U.S.C. Sec. 477.
    \92\25 U.S.C. Sec. 503.
---------------------------------------------------------------------------
    Well spacing; technical assistance. The bill would amend 
the ITEDSDA section establishing the Department of the Interior 
Indian Energy Program\93\ to require the Secretary (1) to 
consult with an Indian tribe before adopting or approving well-
spacing plans affecting its energy resources and (2) to provide 
technical assistance to Indian tribes in planning energy 
resource development.
---------------------------------------------------------------------------
    \93\25 U.S.C. Sec. 3502(a).
---------------------------------------------------------------------------
    Energy development agreements and rights-of-way between the 
tribe and a tribal organization. Section 103 of the bill would 
amend section 3504(a)(2) to allow energy development agreements 
and rights-of-way with terms that do not exceed 30 years (or in 
the case of an oil and gas lease, years and so long thereafter 
as oil or gas are produced in paying quantities) between the 
Indian tribe and a tribal energy development organization that 
is majority owned and controlled by the tribe--and has been 
certified as such by the Secretary--without approval by the 
Secretary.\94\ Such a lease or business agreement with a 
``certified'' tribal energy development organization would be 
authorized without Secretarial approval even in the absence of 
a TERA. In effect, this amendment contemplates that an 
agreement with a certified tribal energy development 
organization should be treated as an agreement with the Indian 
tribe itself or with an agency or instrumentality of the tribe 
for purposes of energy resource development on its tribal 
land.\95\ Under current law, a decision by the Indian tribe to 
develop its own resources (i.e., without relying on a lease or 
agreement with a third, non-tribal party) on its own tribal 
land does not require approval by the Secretary.
---------------------------------------------------------------------------
    \94\25 U.S.C. Sec. 3504(h). The certification by the Secretary is 
intended to provide any minority investor in the organization with the 
certainty that the organization may enter into leases, agreements, and 
rights-of-way with the Indian tribe without Secretarial approval.
    \95\This tribal agency or instrumentality status is assured by the 
certification process under section 3504(h), as added by section 103 of 
the bill. This new subsection would require the Secretary to determine 
that (1) the organization is organized under the laws of the Indian 
tribe and subject to its jurisdiction and authority; (2) the 
organization is majority owned and controlled by the tribe; and (3) the 
organizing document of the organization requires that the tribe own and 
control a majority interest in the organization at all times.
---------------------------------------------------------------------------
    Appraisals. The bill would add a new section at the end of 
the ITEDSDA authorizing appraisals of fair market value of 
energy resources held in trust for an Indian tribe or by the 
tribe subject to Federal restrictions against alienation, for 
purposes of any transaction that requires approval of the 
Secretary, to be prepared by (1) the Secretary, (2) the 
affected tribe, or (3) a certified, third-party appraiser 
pursuant to a contract with the tribe. The Secretary would have 
45 days within which to approve an appraisal prepared by the 
Indian tribe or its contractor or, if disapproved, written 
notice of each reason for the disapproval and how the appraisal 
should be corrected. The Secretary is required to publish 
regulations for implementing the section.

Other amendments to Federal laws

    Amendment to Federal Power Act. Section 201 of the bill 
would amend section 7(a) of the Federal Power Act\96\ to make 
the provisions of that section applicable to Indian tribes 
(along with States and municipalities). However, this section 
of the bill also provides that it does not affect preliminary 
permits or original licenses issued before the enactment date 
of the bill or any application for an original license if the 
Commission has issued a notice of accepting the application for 
filing before the enactment date of the bill. The Committee 
notes that to receive a preference for a preliminary permit 
application, the proposed project must be located in the 
vicinity of the Indian tribe's lands.
---------------------------------------------------------------------------
    \96\16 U.S.C. Sec. 800(a).
---------------------------------------------------------------------------
    Amendments to Federal Weatherization Program. Section 203 
of the bill would amend the Energy Conservation and Production 
Act\97\ to facilitate direct funding of Indian tribes to carry 
out the weatherization program. The amendment leaves intact the 
amount authorized to be reserved from State funding under 
current law but authorizes direct funding (1) if requested by 
the tribal organization and (2) the Secretary of Energy 
determines that the low-income members of the Indian tribe will 
be equally or better served by direct funding rather than 
through the State. The bill would also create a presumption 
that a tribally designated housing entity in good standing 
under the Native American Housing Assistance and Self-
Determination Act of 1996\98\ would presumptively qualify as 
equally or better serving the low-income tribal members.
---------------------------------------------------------------------------
    \97\42 U.S.C. Sec. 6863(d).
    \98\25 U.S.C. Sec. 4101, et. seq.
---------------------------------------------------------------------------
    Biomass demonstration projects. Section 202 of the bill 
would amend the Tribal Forest Protection Act of 2004\99\ (TFPA) 
to add a new section at the end of that Act authorizing a 
biomass demonstration project for Indian tribes. This section 
would also authorize a similar demonstration project for Alaska 
Native corporations (but not as part of the amendment to the 
TFPA). With respect to the demonstration projects under the 
TFPA, the bill would require that at least four new 
demonstration projects be carried out from 2017 to 2021, with 
Indian tribes to be selected based on several enumerated 
criteria. The bill would allow participating tribes to enter 
into stewardship contracts with the Secretary of Agriculture or 
of the Interior that include Federal lands for terms not to 
exceed 20 years and a renewal term not to exceed 10 years, as 
opposed to the 10-year limitation on those contracts under 
current law.
---------------------------------------------------------------------------
    \99\Pub. L. No. 108-278, 118 Stat. 868 (2004).
---------------------------------------------------------------------------
    Amendments to Long-Term Leasing Act for the Navajo Nation. 
Section 205 of the bill would amend subsection (e) of the Long-
Term Leasing Act,\100\ which regards the Navajo Nation, to 
remove a limitation in that subsection on the exploration, 
development, or extraction of mineral resources. With this 
limitation in current law, subsection (e) authorizes only 
surface leases without approval of the Secretary. The bill 
would amend the subsection so that it would also authorize 
mineral leasing with a term not to exceed 25 years or, in the 
case of oil and gas, for 10 years plus any additional time that 
``the Navajo Nation determines to be appropriate where oil or 
gas is produced in a paying quantity.''
---------------------------------------------------------------------------
    \100\25 U.S.C. Sec. 415(e).
---------------------------------------------------------------------------
    Extension of tribal lease period for the Crow Tribe of 
Montana. Section 206 of the bill would add the Crow Tribe to 
the list of Indian tribes that are authorized under 25 U.S.C. 
Sec. 415(a) to enter into public, religious, educational, 
recreational, residential, or business leases for terms up to 
99 years, with the approval of the Secretary.
    Trust status of lease payments. Section 207 of the bill 
would require the Secretary, upon request of the Indian tribe 
or individual Indian, to hold in trust any advance payments, 
bid deposits, or other earnest money received by the Secretary 
of the Interior, in connection with the review and Secretarial 
approval of a sale, lease, or permit. Upon approval or 
disapproval of the conveyance instrument, the funds and the 
interest would be disbursed to the appropriate party.

                          LEGISLATIVE HISTORY

    Previous Congressional Action. In the 110th Congress on May 
1, 2008, the Committee held an oversight hearing on Indian 
Energy Development.\101\ In the 111th Congress on October 22, 
2009, the Committee held a hearing on Indian Energy and Energy 
Efficiency as a follow up to the May 1, 2008 hearing.\102\ On 
April 22, 2010, during the 111th Congress, the Committee held a 
hearing on a discussion draft of the Indian Energy Promotion 
and Parity Act of 2010.\103\
---------------------------------------------------------------------------
    \101\Indian Energy Development, Before the S. Comm. on Indian 
Affairs, 110th Cong. (May 1, 2008).
    \102\Indian Energy and Energy Efficiency, Before the S. Comm. on 
Indian Affairs, 111th Cong. (2009).
    \103\Legislative Hearing on a Discussion Draft of the Indian Energy 
Promotion and Parity Act of 2010, Before the S. Comm. on Indian 
Affairs, 111th Cong. (2010).
---------------------------------------------------------------------------
    The Committee held a listening session during the 112th 
Congress on a Tribal Energy Draft Bill on May 19, 2011. The 
discussion was to consider an Indian energy bill to be 
introduced by Senator Barrasso, where it was ``meant to 
encourage comments, suggestions, and ideas from stakeholders 
for a bill that would facilitate the development of tribal 
energy resources.''\104\
---------------------------------------------------------------------------
    \104\Indian Tribal Energy Development and Self-Determination Act 
Amendments of 2011--Staff Draft--For Discussion Only, S. Comm. on 
Indian Affairs, at 1 (Apr. 12, 2011).
---------------------------------------------------------------------------
    On February 16, 2012, during the 112th Congress, the 
Committee held an oversight hearing on Energy Development in 
Indian Country.\105\ On April 19, 2012, the Committee held a 
legislative hearing on S. 1684, Indian Tribal Energy 
Development and Self-Determination Act Amendments of 2011, a 
bill introduced by Senator Barrasso during the 112th 
Congress.\106\ The Committee also held a roundtable on Energy 
Development in Indian Country on June 5, 2013.
---------------------------------------------------------------------------
    \105\Energy Development in Indian Country Before the S. Comm. on 
Indian Affairs, 112th Cong. (2012).
    \106\Legislative Hearing on S.1684, Indian Tribal Energy 
Development and Self-Determination Act Amendments of 2011 Before the S. 
Comm. on Indian Affairs, 112th Cong. (2012).
---------------------------------------------------------------------------
    During the 113th Congress, Senator Barrasso introduced S. 
2132 on March 13, 2014. The bill had ten bi-partisan co-
sponsors. The Committee held a legislative hearing on S. 2132 
on April 30, 2014.\107\ On May 21, 2014, the Committee held a 
business meeting to consider S. 2132 at which five amendments 
to the bill were offered and adopted,\108\ and the Committee 
ordered the bill, as amended, favorably reported.
---------------------------------------------------------------------------
    \107\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014).
    \108\These amendments were discussed at length in S. Rep. No. 113-
224 (2014).
---------------------------------------------------------------------------
    In the 114th Congress, Senator Barrasso introduced S. 209, 
along with Senators Enzi, Fischer, Hoeven, McCain, Moran, and 
Tester, on January 21, 2015. Senators Bennet, Gardner, and 
Murkowski were later added as co-sponsors.
    The bill was referred to the Committee on Indian Affairs. 
The Committee held a business meeting on February 4, 2015 to 
consider S. 209, along with other bills. By voice vote, the 
Committee ordered the bill favorably reported, without 
amendment.
    In the 115th Congress, Senator Hoeven introduced S. 245, 
along with Senators Barrasso, Heitkamp, Lankford, McCain, and 
Moran, on January 30, 2017. Senators Enzi and Gardner were 
later added as cosponsors. The bill was referred to the 
Committee on Indian Affairs. The Committee held a business 
meeting on February 8, 2017 to consider S. 245, along with 
other bills. By voice vote, the Committee ordered the bill 
favorably reported, without amendment.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 sets forth the short title, the ``Indian Tribal 
Energy Development and Self-Determination Act Amendments of 
2017'' (hereinafter, the ``Act'').

Section 2. Table of contents

    Section 2 sets forth the table of contents.

Section 101. Indian tribal energy resource development

    Section 101(a) of the Act amends section 2602(a) of the 
Energy Policy Act of 1992 by (1) adding a requirement that the 
Secretary of the Interior consult with Indian tribes before 
approving well-spacing programs that affect their energy 
resources; (2) adding a new paragraph that requires that 
Secretary to provide technical assistance to Indian tribes 
interested in developing plans for electrification, permitting 
of oil and gas operations and renewable facilities, energy 
efficiency programs, electrical generation and other activities 
related to energy, plans for protecting natural, cultural and 
other resources, and any other plans that would assist an 
Indian tribe in the development or use of energy resources; and 
(3) requiring the Secretary to carry out the program under 
section 2602 of the Energy Policy Act of 1992 in cooperation 
with the Department of Energy Office of Indian Energy Policy 
and Programs.
    Section 101(b) of the Act amends section 2602(b)(2) of the 
Energy Policy Act of 1992 to add ``intertribal organizations'' 
to the eligible grantees that can participate in the loan 
guarantee program under that section (in addition to Indian 
tribes and tribal energy resource development organizations), 
and to add, as an authorized use of grant funds, ``activities 
to increase capacity of Indian tribes to manage energy 
development and efficiency programs.''
    Section 101(c) of the Act amends section 2602(c) of the 
Energy Policy Act of 1992 to include tribal energy development 
organizations to participate in the loan guarantee program 
under that section. This section also requires the Secretary of 
Energy to adopt regulations to carry out the subsection not 
later than 1 year after the date of enactment of these 
amendments.

Section 102. Indian tribal energy resource regulation

    Section 102 of the Act amends section 2603(c) of the Energy 
Policy Act of 1992 to require the Secretary of the Interior to 
provide assistance, information and expertise to a tribal 
energy development organization (i.e., in addition to an Indian 
tribe) when issuing energy resource development grants under 
that title.

Section 103. Tribal energy resource agreements

    Section 103 of the Act makes several amendments to section 
2604 of the Energy Policy Act of 1992, relating to tribal 
energy resource agreements (``TERAs'').
    Section 103(a)(1) clarifies that the applicable lease or 
business agreement may also include facilities that produce 
electricity from renewable resources and facilities to process 
or refine energy resources that ``at least a portion of which 
have been developed on or produced from tribal land.'' This 
section also allows leases and business agreements to include 
provisions for the voluntary pooling, unitization or 
communization of the Indian tribe's energy resources with the 
energy resources of other parties.
    This section provides that a lease or business agreement 
between the Indian tribe and a tribal energy development 
organization, majority owned and controlled by the Indian tribe 
(or the Indian tribe and 1 or more other Indian tribes the 
tribal land of which is being developed) does not require 
review and approval of the Secretary under 25 U.S.C. Sec. 81 if 
the lease or business agreement is for a term not to exceed 30 
years or, in the case of an oil and gas lease, 10 years and so 
long thereafter as oil and gas is produced in paying 
quantities.
    Section 103(a)(2) clarifies that the applicable right-of-
way may also include facilities that produce electricity from 
renewable resources. This section also provides that a right-
of-way between the Indian tribe and a tribal energy development 
organization, majority owned and controlled by the Indian tribe 
(or the Indian tribe and 1 or more other Indian tribes the 
tribal land of which is being developed) does not require 
review and approval of the Secretary under 25 U.S.C. Sec. 81 if 
the lease or business agreement is for a term not to exceed 30 
years.
    Section 103(a)(2) also clarifies that the right-of-way may 
serve ``the purposes, or facilitate in carrying out the 
purposes, of any lease or agreement entered into for energy 
resource development on tribal land.''
    Section 103(a)(3) makes conforming amendments to section 
2604(d) of the Energy Policy Act of 1992 to clarify when a 
lease, business agreement, or right-of-way is valid under a 
TERA.
    Section 103(a)(4) streamlines the TERA approval process. 
Under current law, the Secretary must either approve or 
disapprove a TERA within 270 days of the date on which an 
Indian tribe submits the TERA. Section 103(a)(4) provides that 
a TERA would automatically take effect 271 days after it is 
submitted by an Indian tribe unless the Secretary disapproves 
it before then. A revised TERA automatically takes effect 91 
days after it is submitted to the Secretary unless disapproved.
    Under this section, the Secretary is required to disapprove 
the TERA only if the Secretary finds that (1) the Indian tribe 
has failed to demonstrate capacity; (2) the TERA would 
``violate applicable Federal law or a treaty of the Indian 
tribe; or (3) the TERA fails to include any of the provisions 
mandated for TERAs under section 2604(e), such as establishing 
an environmental review process or allowing for periodic review 
by the Secretary.
    This section also clarifies and expedites the process for 
determining tribal capacity for a TERA. Current law requires 
the Secretary to determine within 270 days whether an Indian 
tribe has demonstrated sufficient capacity to regulate the 
development of energy resources.
    Section 103(a) changes these requirements. First, this 
section requires the Secretary to determine whether ``the 
Indian tribe has not demonstrated . . . sufficient capacity to 
regulate the development of the specific 1 or more energy 
resources identified for development under the [TERA].'' 
Second, the Secretary is required to make a preliminary 
determination within 120 days of the date on which the Indian 
tribe submits a TERA unless the Secretary and the tribe agree 
to extend that time period. Third, section 103(a)(4) provides 
that an Indian tribe will be deemed to have demonstrated 
sufficient capacity if (1) the tribe has a record of managing 
programs relating to the environment, tribal land, realty, or 
natural resources under the Indian Self-Determination and 
Education Assistance Act in a fiscally responsible manner for 
three consecutive years; (2) the tribe has successfully carried 
out approval of surface leases under the HEARTH Act for the 
previous year without a finding of a compliance violation; or 
(3) the Secretary fails to make the capacity determination 
within the applicable time period.
    This section clarifies that the mitigation measures 
required for a TERA are to be determined in the tribe's 
discretion and adds a provision allowing the Indian tribe to 
identify categorical exclusions from the environmental review 
process.
    This section clarifies that, if the Secretary disapproves a 
TERA, the disapproval must include a detailed, written 
explanation of the reasons for the disapproval. This section 
clarifies that the provisions of this section do not absolve 
the United States from liability arising from terms that are 
not negotiated terms between the Indian tribe and a third party 
or losses that are not the result of the negotiated terms.
    This section clarifies that an interested party who is 
eligible to challenge a tribe's compliance of a TERA must 
demonstrate with substantial evidence that the party would 
sustain an adverse environmental impact. This section further 
clarifies the process for reviewing a petition by an interested 
party by requiring the Secretary to first determine whether the 
petitioner is an ``interested party'' and then whether the 
Indian tribe is in compliance with the TERA. This section also 
adds a provision requiring the Secretary to dismiss the 
petition if the petitioner and the Indian tribe have agreed to 
a resolution of the issues in the petition.
    This section authorizes an Indian tribe to amend an 
approved TERA to assume authority over another energy resource 
that is not included in an approved tribal energy resource 
agreement, and requires the Secretary to promulgate regulations 
implementing the process and requirements for such an 
amendment.
    This section prohibits the Secretary from denying a TERA or 
any amendment to a TERA, and from limiting the effect or 
implementation of this section due to lack of promulgated 
regulations.
    Section 103(a)(5) makes a technical amendment to renumber a 
paragraph.
    Section 103(a)(6) requires the Secretary to provide funding 
to the Indian tribe in an amount equal to any savings that the 
United States will realize as a result of the Indian tribe 
carrying out a TERA. The funding would be made available under 
a separate funding agreement. The methodology for determining 
the funding would be developed through regulations.
    This section also sets forth the requirements for 
certification by the Secretary as a tribal energy development 
organization. The Secretary shall approve a tribal application 
for certification if (1) the tribe has carried out contracts or 
compacts relating to tribal land under the Indian Self-
Determination and Education Assistance Act for three years 
without material audit exceptions; (2) the entity is organized 
under the laws of the Indian tribe and subject to its 
jurisdiction and authority; (3) the majority interest in the 
entity is owned and controlled by the Indian tribe (or the 
Indian tribe and 1 or more other Indian tribes the tribal land 
of which is being developed); and (4) the majority interest 
ownership and control is required under the organizing 
documents of the organization.
    If the Secretary approves an application for certification, 
the Secretary is required to issue a certification, deliver a 
copy of the certification to the Indian tribe, and publish the 
certification in the Federal Register. This section clarifies 
that the TERA provisions do not waive tribal sovereign 
immunity.
    Section 103(b) of the Act requires the Secretary to adopt 
regulations governing the amendments to the TERA process made 
in this section.

Section 104. Technical assistance for Indian tribal governments

    Section 104 amends section 2602(b) of the Energy Policy Act 
of 1992 to require the Secretary to collaborate with the 
Directors of the National Laboratories in making the full array 
of technical and scientific resources of the Department of 
Energy available for tribal energy activities and projects.

Section 105. Conforming amendments

    Section 105 sets forth a number of conforming amendments 
intended to make other provisions of the Energy Policy Act of 
1992 consistent with the amendments contained in sections 101, 
102, and 103 of this bill. In addition, section 105 expands 
Title V's definition of ``tribal energy development 
organization'' to include any enterprise, partnership, 
consortium, corporation, or other type of business organization 
that is engaged in the development of energy resources and is 
wholly owned by an Indian tribe, including organizations 
incorporated pursuant to section 17 of the Indian 
Reorganization Act of 1934 or section 3 of the Oklahoma Indian 
Welfare Act.

Section 201. Issuance of preliminary permits and licenses

    Section 201 amends section 7(a) of the Federal Power Act. 
Under current law, the Federal Energy Regulatory Commission 
(FERC) is authorized to give States and municipalities 
preference when issuing preliminary permits or original 
licenses (where no preliminary permit has been issued) for 
hydroelectric projects. Section 201(a) authorizes FERC to give 
the same preference to Indian tribes. This section, however, 
does not affect the authority of the FERC to address or 
determine sites or locations of any projects or other decisions 
affecting permits or licenses and to receive a preference for a 
preliminary permit application, the proposed project must be 
located in the vicinity of the Indian tribe's lands.
    Section 201(b) states that the tribal preference for 
hydroelectric projects would not affect any preliminary permit 
or original license (where no preliminary permit has been 
issued) issued before the date of enactment of the bill. It 
also states that this preference would have no effect on 
applications for original licenses (where no preliminary permit 
has been issued) deemed complete by FERC before the date of 
enactment of the bill.
    Section 201(c) defines ``Indian tribe'' for section 7(a) of 
the Federal Power Act to have the meaning given the term in 
section 4 of the Indian Self-Determination and Education 
Assistance Act.

Section 202. Tribal biomass demonstration project

    Section 202 of the Act establishes a biomass demonstration 
project for Indian tribes and Alaska Native corporations to 
promote biomass energy production.
    Section 202(b) amends the Tribal Forest Protection Act of 
2004 to promote biomass energy production on Indian forest land 
and in nearby communities. This subsection requires the 
Secretary of the Interior (or, where applicable, the Secretary 
of Agriculture) to enter into stewardship contracts or similar 
agreements for a term of up to 20 years, and a renewal term of 
up to 10 years, with Indian tribes to harvest woody biomass 
from Federal land. During each year, beginning fiscal year 
2017, at least four demonstration projects shall be carried out 
under these contracts or agreements.
    This subsection requires the Secretary of the Interior and 
the Secretary of Agriculture to take into consideration a 
number of factors when considering a proposed demonstration 
project, such as whether a project would improve the forest 
health or watersheds of Federal land or Indian forest land or 
rangeland. The amendment excludes from the demonstration 
projects any merchantable logs that have been identified by the 
Secretary for commercial sale.
    In carrying out the contracts under this subsection, the 
Secretary shall incorporate management plans in effect on 
Indian forest land or rangeland of the respective Indian tribe 
into the agreement. The Secretary would be required to submit 
to Congress a report that describes each individual application 
received and each contract and agreement entered into under 
this subsection.
    Section 202(c) requires the Secretary to enter into a 
stewardship contract or similar agreement with 1 or more tribes 
(as defined by Section 4 of the Indian Self-Determination and 
Education Assistance Act) in Alaska for each of fiscal years 
2017 through 2021. This subsection requires the Secretary to 
enter into a stewardship contract or similar agreement, for a 
term of up to 20 years.
    It also authorizes a renewal term of up to 10 years to 
carry out a demonstration project to promote biomass energy 
production on certain forest lands and in nearby communities 
providing reliable supplies of woody biomass from Federal land. 
Under subsection (c), the Secretary shall take into 
consideration a number of factors when considering a proposed 
demonstration project, such as whether a project would improve 
the forest health or watersheds of Federal land or Indian 
forest land or rangeland.
    The section excludes from the demonstration projects any 
merchantable logs that have been identified by the Secretary 
for commercial sale. The Secretary shall also submit to 
Congress a report that describes each individual application 
received and each contract and agreement entered into under 
this subsection.

Section 203. Weatherization program

    Section 203 of the bill amends the Energy Conservation and 
Production Act to facilitate direct funding of Indian tribes to 
carry out the weatherization program. The amendment leaves 
intact the amount authorized to be reserved from State funding 
under current law but authorizes direct funding (1) if 
requested by the tribal organization and (2) the Secretary of 
Energy determines that the low-income members of the tribe will 
be equally or better served by direct funding rather than 
through the State.
    This section also creates a presumption that a tribally 
designated housing entity under section 4 of the Native 
American Housing Assistance and Self-Determination Act of 1996 
that has operated without material audit exceptions would 
equally or better serve the low-income members of the 
applicable Indian tribe.

Section 204. Appraisals

    Section 204 amends Title XXVI of the Energy Policy Act of 
1992 to require appraisals relating to the fair market value of 
tribal mineral or energy resources prepared by an Indian tribe 
or a certified third-party appraiser pursuant to a contract 
with the Indian tribe to be reviewed and accepted by the 
Secretary not later than 45 days unless the Secretary 
determines that the appraisal fails to meet standards created 
by the Secretary under this section. If the Secretary 
disapproves an appraisal, the Secretary is required to give 
written notice of the disapproval to the Indian tribe and a 
description of each reason for the disapproval and how the 
appraisal should be corrected.

Section 205. Leases of restricted lands for Navajo Nation

    Section 205 amends subsection (e)(1) of the first section 
of the Long-Term Leasing Act to allow the Navajo Nation to 
enter into a lease for the exploration, development, or 
extraction of any mineral resources without the approval of the 
Secretary, if the lease is executed under tribal regulations, 
approved by the Secretary and that meets certain term limits. 
This section further amends the Long-Term Leasing Act by 
extending the maximum authorized term for a business or 
agricultural lease from 25 years to 99 years for the Navajo 
Nation. Finally, this section requires the GAO to report within 
five years of enactment on the progress made in carrying out 
the amendment made by this subsection.

Section 206. Extension of tribal lease period for the Crow Tribe of 
        Montana

    Section 206 adds the Crow Tribe to the list of Indian 
tribes that are authorized under 25 U.S.C. 415(a) to enter into 
public, religious, educational, recreational, residential, or 
business leases for terms up to 99 years, with the approval of 
the Secretary.

Section 207. Trust status of lease payments

    Section 207 requires the Secretary, upon the request of the 
tribe, to hold in trust any advance payments, bid deposits, or 
other earnest money received by the Secretary, in connection 
with the review and Secretarial approval of a sale, lease, 
permit, or any other conveyance of any interest in any trust or 
restricted land of any Indian tribe or individual Indian. If 
the advance payment bid deposit or other earnest money received 
results from competitive bidding, only the funds of the 
successful bidder are to be held in trust, and only upon 
selection of the successful bidder. Upon Secretarial approval 
or disapproval of the contract or instrument, the amounts and 
interest would be disbursed to the Indian tribe or otherwise 
identified party. This section only applies to advance 
payments, bid deposits, or other earnest moneys received on or 
after the date of enactment of this Act.

                   COST AND BUDGETARY CONSIDERATIONS

                                                       May 3, 2017.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 245, the Indian 
Tribal Energy Development and Self-Determination Act Amendments 
of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Aurora 
Swanson.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 245--Indian Tribal Energy Development and Self-Determination Act 
        Amendments of 2017

    S. 245 would make various amendments to existing federal 
energy programs on tribal lands. Under current law, a tribe may 
enter into a tribal energy resource agreement (TERA) with the 
federal government to allow the tribe to complete and manage 
business agreements with third parties for such purposes as 
rights-of-way for energy projects and oil and gas leases. Under 
a TERA a tribe manages activities that would otherwise be 
carried out by the Department of the Interior (DOI). S. 245 
would allow that under most circumstances a TERA application 
would automatically be approved 270 days after submission to 
DOI. Under the bill, DOI also would be required to pay a tribe 
operating under a TERA agreement for carrying out management 
activities. CBO estimates that implementing that provision 
would have no net effect on the federal budget because any 
amounts paid to tribes would have been spent by DOI to conduct 
the same work.
    Under the bill, the Department of Energy would collaborate 
with the national laboratories to provide technical assistance 
to tribal governments. The bill would establish a pilot program 
for tribes to use nonmarketable timber from neighboring federal 
lands for energy development. Based on information from the 
department, CBO estimates that implementing those provisions 
would cost $1 million; such spending would be subject to the 
availability of appropriations.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting S. 245 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    S. 245 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Tribes would benefit from greater flexibility and assistance 
authorized by the bill for energy development. Any costs to 
tribes would be incurred voluntarily as a condition of 
assistance or of participating in a voluntary federal program.
    The CBO staff contact for this estimate is Aurora Swanson 
(for federal costs) and Rachel Austin (for intergovernmental 
mandates). The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 245 would 
have a minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has not received any formal communication on 
S. 245 from the Administration.

                        CHANGES IN EXISTING LAW

    In accordance with Committee Rules, subsection 12 of rule 
XXVI of the Standing Rules of the Senate is waived. In the 
opinion of the Committee, it is necessary to dispense with 
subsection 12 of rule XXVI of the Standing Rules of the Senate 
in order to expedite the business of the Senate.

                                  [all]
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