29–010 

Calendar No. 575 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–263 

AMENDING THE INDIAN TRIBAL ENERGY DEVELOPMENT 

AND SELF-DETERMINATION ACT OF 2005, AND FOR 

OTHER PURPOSES 

DECEMBER 21, 2012.—Ordered to be printed 

Mr. AKAKA, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1684] 

The Committee on Indian Affairs, to which was referred the bill, 

S. 1684, to amend the Indian Tribal Energy Development and SelfDetermination Act of 2005, and for other purposes, having considered the same, reports favorably thereon with amendments, and 

recommends that the bill, as amended, do pass. 

NEED FOR LEGISLATION

In recent years the Committee has heard concerns and complaints from Indian tribes and industry that the many Federal 

laws that govern the development of tribal energy resources are 

complex and often lead to significant cost, delay and uncertainty 

for all parties to proposed 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. Generally, this bill is intended to remove some of the disincentives to developing tribal trust energy resources and assist 

tribes interested in pursuing the development of these resources 

consistent with the policy of Indian self-determination. 


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1 Energy Policy Act of 2005, Pub. L. No. 109–58, 119 Stat. 594 (2005) (codified in scattered 

sections of Titles 25 U.S.C., 26 U.S.C., and 42 U.S.C.). 2Pub. L. No. 94–385, 413(d) (codified at 42 U.S.C. § 6863(d)). 

3 Carol Freedenthal, New Oil, Gas Production Technologies Do More Than Affect Production, 

Pipeline and Gas J., May 2011, at 40. 4 Natural gas production from shale gas formations increased almost 65% from 2007 to 2008. 

Susan L. Sakmar, The Global Shale Gas Initiative: Will the United States be the Role Model 

for the Development of Shale Gas Around the World?, 33 Hous. J. Int’l L. 369, 380 (2011) (citations omitted). 5 Id. at 371 (citing Tom Fowler, Energy Game Changer?, Hous. Chron., Nov. 1, 2009, at A1). 6 International Energy Agency, World Energy Outlook 2012, November 13, 2012 at 75, 81. 7 Id. at 108. 

PURPOSE

The purpose of the bill, S. 1684, 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 a tribal biomass demonstration project 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 good of present and future generations of Indian 

people. 

BACKGROUND

Oil and gas production in the United States is experiencing an 

extraordinary boom, largely driven by advances in technologies 

that allow oil and gas producers to recover resources trapped in 

tight shale formations once thought inaccessible.3 Oil and natural 

gas production from unconventional resources has been on the rise 

over the past decade, especially within the last five years.4 The 

ability to develop these resources has been called a ‘‘game changer’’ 

that will ‘‘revolutionize’’ the global energy markets.5 The International Energy Agency predicts in its World Energy Outlook 2012 

that the United States will overtake Saudi Arabia and Russia to 

become the largest global oil producer by 2020 and will be 97% selfsufficient in net terms of energy needs by 2035.6

The World Energy Outlook 2012 specifically mentions the spectacular increase in production from the Bakken formation in North 

Dakota,7 the heart of which lies beneath the Fort Berthold Indian 

Reservation. However, many of the laws and regulations that apply 

to Indian country are complex and cumbersome, increasing development costs and causing delays and uncertainty to the development of mineral resources on the reservation. On the other hand, 

nearby lands off the reservation are not subject to these laws, making them more attractive for oil and gas development than comparable reservation lands. The bill, S. 1684, would help level the 

playing field for Indian tribes that, if they so choose, they can participate in the expanding energy market in the United States. S. 

1684 is a bill that would assist tribes in leasing and developing 

their trust energy resources in a timely, responsible, and profitable 

way. 


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8 Act of May 11, 1938, 52 Stat. 347 (codified at 25 U.S.C. §§ 396a–396g). 

9 25 C.F.R. pt. 211. 

10 Indian Mineral Development Act of 1982, Pub. L. No. 97–382, 96 Stat. 1938 (codified at 25 

U.S.C. §§ 2101–2108). 11 25 C.F.R. pt. 225. 12See, e.g., Act of February 28, 1891, 26 Stat. 795 (codified at 25 U.S.C. § 397); Act of June 

30, 1919, 41 Stat. 31 (codified at 25 U.S.C. § 399); Act of September 20, 1922, ch. 347, 42 Stat. 

857 (codified at 25 U.S.C. § 400). 13 25 U.S.C. § 2102(a). 14See S. Rep. No. 97–472, at 2 (1982). See generally Cohen’s Handbook of Federal Indian Law 

§ 17.03[2][a]–[b], at 1123–30 (Nell Jessup Newton et al. eds., LexisNexis 2012) (1941). 15 25 U.S.C. § 2103(b). 16 Id. § 2103(a)–(b). 17 25 C.F.R. § 225.36. 18 25 C.F.R. § 225.37(a). 

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 8 (IMLA) and its implementing regulations 9 or the Indian 

Mineral Development Act of 1982 10 (IMDA) and its implementing 

regulations.11 Prior to the enactment of the IMLA, minerals on Indian lands were developed under a number of Federal statutes dating back to 1891.12

The IMLA authorizes only mineral leases, whereas the IMDA authorizes a ‘‘joint venture, operating, production sharing, service, 

managerial, lease or other agreement.’’ 13 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 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.14

Despite the greater flexibility and increased tribal involvement 

in negotiations that the IMDA provides to Indian tribes, 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 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.15 If the Secretary is not satisfied 

that the proposed agreement meets the statutory test, the Secretary may disapprove it.16 The IMDA’s implementing regulations 

also authorize the Secretary to cancel agreements for a range of 

violations by an operator 17 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.’’ 18 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. 

Curiously, under the IMDA, even though the Secretary decides 

whether to approve, disapprove, or cancel an agreement, and to determine whether an operator has violated an agreement and 

whether to impose stiff penalties for doing so, the IMDA nevertheless expressly exempts the United States from liability ‘‘for losses 

sustained by a tribe or individual Indian under such agreement’’ as 


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19 25 U.S.C. § 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.’’ 20 National Environmental Policy Act of 1969, Pub. L. No. 91–190, 83 Stat. 852 (1970) (codified 

at 42 U.S.C. § 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). 21Tribal Development of Energy Resources and the Creation of Energy Jobs on Indian Lands: 

Hearing Before the Subcomm. on Indian and Alaska Native Affairs of the H. Natural Resources 

Comm., 112th Cong. 18–19 (2011) (statement of Tex G. Hall, Chairman, Mandan, Hidatsa and 

Arikara Nation of the Fort Berthold Reservation). 

long as the Secretary approved the agreement in accordance with 

the Act and other applicable law.19 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. 

The National Environmental Policy Act 

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).20 Apart from the question of whether having NEPA 

apply to decisions of the Secretary regarding transactions for the 

development of the trust resources of an Indian tribe provides a net 

benefit to the tribe, what is clear is that compliance with NEPA 

often has the effect of delaying the Secretary’s decision and of creating uncertainty for all parties (including the tribe) to a proposed 

agreement to develop a tribe’s energy resources. 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 NEPA often leads to extraordinary delays in the approval of mineral leases and agreements. 

As Chairman Tex Hall of the Mandan, Hidatsa and Arikara Nation of the Fort Berthold Reservation testified at a hearing in 2011 

before the House Committee on Natural Resources, Subcommittee 

on Indian and Alaska Native Affairs: 

In order to comply with the many Federal laws and regulations that apply to Indian mineral activities, the Interior Department has developed a 49-step process for obtaining Federal approvals involving oil and gas exploration. This 49-step process can take as long as two (2) 

years to complete. In contrast, the process for approving oil 

and gas exploration activities on non-Indian lands in 

North Dakota takes just 4 steps. Oil and gas leases [on 

these non-Indian lands] don’t need governmental approval 

and, according to the North Dakota Industrial Commission, it only takes about a week and a half to process an 

application for a permit to drill. I believe we must find a 

way to streamline the process for federal review and approval of individual Indian and tribal mineral leases and 

agreements and make it less complicated and more efficient.21

At a hearing before this Committee in 2012, Chairman Hall stated: 


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22 Impacts of Environmental Changes on Treaty Rights, Traditional Lifestyles, and Tribal 

Homelands: Hearing Before the S. Comm. on Indian Affairs, 112th Cong. 5 (2012) (statement 

of Tex G. Hall, Chairman, Mandan, Hidatsa and Arikara Nation of the Fort Berthold Reservation) (emphasis added). 23 Energy Development in Indian Country: Hearing Before the S. Comm. on Indian Affairs, 

112th Cong. 7 (2012) (statement of Rex Lee Jim, Vice President, Navajo Nation) (emphasis 

added). 24 Energy Development in Indian Country: Hearing Before the S. Comm. on Indian Affairs, 

112th Cong. 3 (2012) (statement of Thomas Anketell, member of the Tribal Executive Board, 

Assiniboine and Sioux Tribes of the Fort Peck Reservation). In the months prior to the introduction of S. 1684, Committee staff engaged in extensive outreach to receive information and ideas 

for the bill from Indian tribes and energy industry stakeholders. Staff frequently heard complaints about delays and uncertainty associated with the processes under the IMLA and the 

IMDA and with compliance with NEPA. Some commentators noted that developers will avoid 

bidding on leases of Indian lands if nearby non-Indian lands are available for development. 

The application of NEPA and other Federal public land 

laws and policies on our lands displaces the authority of 

[Mandan, Hidatsa and Arikara] Nation to manage and regulate its own resources. The MHA Nation should have the 

right to make its own decisions on how our resources are 

used and developed. 

Indian lands should, at the election of a Tribe, be specifically excluded from the public application of NEPA.22

Similar testimony at another hearing in 2012 before this Committee was provided by Vice President Rex Lee Jim of Navajo Nation: 

Perhaps the greatest hurdle to energy development in 

Indian Country generally is the applicability of the National Environmental Policy Act (NEPA) to the use of tribal lands and resources. 

There is only one way out of the trap of poverty and federal dependence, to allow and encourage Tribes to stand on 

their own and develop their own sustainable economies. In 

times of decreasing federal budgets this imperative is even 

more pronounced. The only way to accomplish this objective 

is to get the federal government out of the way and allow 

tribes to make their own decisions. The Navajo Nation is 

ready. Give us the opportunity.23

Another witness who testified before the Committee at that same 

hearing, Thomas Anketell, a member of the Tribal Executive Board 

of the Assiniboine and Sioux Tribes of the Fort Peck Reservation 

in North Dakota, stated that— 

The Fort Peck Agency’s long delays in processing mineral leases and other critical energy development paperwork often frustrate our energy development plans and 

serve only to push oil, gas and other types of energy and 

mineral development off the Reservation. . . . Time is 

money to energy producers. . . . 

If the costs of ‘‘on-reservation’’ energy production is 

much higher than the cost of ‘‘off-reservation’’ energy production, energy producers will naturally locate where it is 

less expensive to operate.’’ 24


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25 Indian Tribal Energy Development and Self-Determination Act, Title V of the Energy Policy 

Act of 2005, Pub. L. No. 109–58, §§ 501–506, 119 Stat. 763 (codified at 25 U.S.C. §§ 3501–3506). 26 25 U.S.C. § 3502(a)–(c). 27 25 U.S.C. § 3503. 28 25 U.S.C. § 3505. 29 25 U.S.C. § 3506. 30 25 U.S.C. § 3504. 31 25 U.S.C. § 3504(e). 32Tribal 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). 33Section 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). 

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 25 (ITEDSDA), created Indian energy programs within the Department of the Interior 

and the Department of Energy; 26 established energy-related grant 

and technical assistance programs for Indian tribes and Alaska Native corporations; 27 encouraged the Bonneville and Western Power 

Administrations to facilitate the development of tribal energy resources; 28 and authorized a feasibility study for developing tribal 

wind and hydropower demonstration projects on the Missouri 

River.29

The ITEDSDA also 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

a. Legislative history of the TERA 

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, 2003.32

While there were a number of significant differences between the 

two bills, both included provisions that would authorize energy-related transactions between Indian tribes and third parties without 

approval by the Secretary of the Interior—which would otherwise 

be required under the IMLA, IMDA, or, in cases of energy-related 

surface uses (for example, wind or solar energy projects), 25 U.S.C. 

§ 415—if the transactions were carried out in accordance with tribal regulations that previously had been approved by the Secretary.33 Both bills also would have authorized 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. 


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34The liability waiver clauses in S. 424 and S. 522 are similar to the liability waiver provision 

in the IMDA, 25 U.S.C. § 2103(e). See supra note 19 and accompanying text. 35Tribal 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. 75 (2003) 

(statement of Sen. Jeff Bingaman, United States Sen. from New Mexico). 36 Id. at 88. 37See note 58, 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. 38See S. Rep. No. 108–43, at 29–36. 39See also S. 14; H.R. 6; H.R. 238; H.R. 1531; H.R. 1644. 40See 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 CFR 

pt. 224). 41The TERA process of the ITEDSDA is set forth in 25 U.S.C. § 3504 but uses some terms 

defined in § 3501. 

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.34

Senator Bingaman testified at the hearing on S. 424 and S. 522 

and observed that the provision in his bill that would have allowed 

siting facilities on tribal land without secretarial approval was 

‘‘consistent with the sovereign authority of the tribes’’ but noted 

that concerns had been raised about the liability provision in his 

bill. He stated that ‘‘We are glad to work with you, Mr. Chairman, 

to be sure those concerns are addressed. We think there is a way 

to do that.’’ 35 At the close of the hearing, Chairman Campbell stated that there was ‘‘some good in each of these bills and maybe 

some not so good’’ but that he intended to use ‘‘the best of both.’’ 36

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 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.37 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.38

While none of the Senate or House bills addressing comprehensive energy policy were enacted into law in the 108th Congress, including S. 1005 39 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.40

b. Key provisions of the TERA process under current law 

The following is summary of the key provisions of the TERA 

process in the ITEDSDA.41

1. Tribal trust lands. The TERA provisions of the ITEDSDA only 

apply to ‘‘tribal land’’ as defined in 25 U.S.C. § 3501(12). Tribal 

land means trust or restricted land of an Indian tribe (i.e., not indiVerDate Mar 15 2010 05:38 Jan 11, 2013 Jkt 029010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR263.XXX SR263

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42The TERA regulations do not directly address this question but do indicate that the tribe 

is free to choose to include ‘‘all or a part’’ of its energy resources as well as different ‘‘types’’ 

of energy resources in a TERA. See 25 CFR § 224.52(a)–(b). 43 25 U.S.C. § 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, tribes 

may renew leases, business agreements and rights-of-way under § 3504(c). 44See supra note 42; see also 25 CFR 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. § 3504(a) itself expressly mentions ‘‘energy mineral resources,’’ 

‘‘electric generation, transmission, or distribution’’ facilities, and oil and gas resources. 45 25 U.S.C. § 3504(d). 46The regulations at 25 CFR §§ 224.50–224.68 establish the process in considerably more detail than the statute itself. 47 25 U.S.C. § 3504(e)(1). 48 25 U.S.C. § 3504(e)(2)(A). 49 25 U.S.C. § 3504(e)(3); 25 CFR § 224.70. 50 25 U.S.C. § 3504(e)(2)(B). 

vidual 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. 

2. Tribal discretion. The TERA process does not automatically 

apply to the tribal land of an Indian tribe. Whether to pursue the 

TERA process is a decision that the tribe makes in its own discretion. 

3. Not exclusive of other mineral or energy development authority. 

Nothing in the ITEDSDA states that an Indian tribe with a TERA 

may not, at the same time, choose to pursue energy development 

under the IMLA, IMDA, or any other authority under Federal 

law.42

4. Kinds of agreements authorized. Once a TERA has been approved by the Secretary, the tribe may, without further approval 

of the Secretary, enter into energy leases, business agreements, 

and, for certain energy-related purposes, rights-of-way.43

5. Scope of TERA. A TERA may, at the tribe’s option, address 

‘‘all or a part’’ of its energy resources, whether renewable or nonrenewable.44 Conceivably, a tribe would be free to include language 

in the TERA that would limit its application to certain designated 

geographic areas within its tribal lands. 

6. Approval of the TERA by the Secretary. The authority to approve leases, business agreements and rights-of-way without secretarial approval requires that the Tribe have a TERA in place that 

has been approved by the Secretary.45

7. Process for obtaining an approved TERA. The following are the 

key steps in the process for obtaining an approved TERA under 

current law.46

(i) The tribe must submit a proposed TERA to the Secretary.47

(ii) The Secretary has 270 days after receiving a TERA within 

which to approve or disapprove the proposed TERA.48

(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.’’ 49

(iv) The Secretary ‘‘shall approve’’ 50 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 


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51See also 25 C.F.R. § 224.63. 52 25 U.S.C. § 3504(e)(4); 25 C.F.R. § 224.75. Under the regulations, the 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. 224.76. 53 25 U.S.C. § 3504(e)(2). 54 Id.; 25 C.F.R. § 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. § 224.77. Under the regulations, only 

the tribe has standing to seek judicial review of a decision to disapprove a TERA or a revised 

TERA. 25 C.F.R. § 224.77. 55 25 U.S.C. § 3504(e)(2)(D)–(E). 56 25 U.S.C. § 3504(e)(2)(B)(iii)(XIII)–(5)(A); 25 C.F.R. § 224.83(b). 57 25 U.S.C. § 3504(e)(5)(B); 25 C.F.R. § 224.63(k). 58 25 U.S.C. § 3504(e)(7)(A)–(B); 25 C.F.R. §§ 224.100–224.101 (emphasis added). As discussed 

supra at note 31 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. § 415(e)) and the recently enacted 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 the Indian tribe 

Continued 

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),51 one of which is 

the environmental review process required under section 

3504(e)(2)(C). 

(v) The Secretary must notify the 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.52

(vi) The Secretary ‘‘shall approve’’ the revised TERA if it meets 

the same 3 criteria set forth in paragraph d., above, applicable to 

the original version of the TERA.53 The Secretary has only 60 days 

within which to approve or disapprove a revised TERA.54

8. 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.d.(2) above.) The review must be conducted annually 

unless, after the third annual review, the tribe and the Secretary 

agree to amend the TERA to allow biannual reviews.55

(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.56 If the TERA authorizes ‘‘direct payment’’ 

leases and agreements, the 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.57

(iii) ITEDSDA allows third parties with standing to petition the 

Secretary to complain that the 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.58 Accordingly, the petitioning process is 


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has violated an agreement (i.e., a TERA) entered into between the United States and the Indian 

tribe. See 25 U.S.C. § 3504(e)(7)(A)–(B); 25 C.F.R. §§ 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, § 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. 224.40. 59 25 U.S.C. § 3504(e)(7)(B); 25 C.F.R. § 224.100. 60 25 U.S.C. § 3504(e)(7)(D)(iii); 25 C.F.R. § 224.120. 61 25 U.S.C. § 3504(e)(8)(B); 25 C.F.R. §§ 224.170–224.175. 62 25 U.S.C. § 3504(e)(6)(D)(ii). 63 25 U.S.C. § 3504(e)(6)(D)(i). 64 25 U.S.C. § 3504(e)(6)(D)(ii). 65 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 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 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. § 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.’’ 

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.59 The regulations set forth the petitioning process in detail and provide the 

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.60

(iv) A tribe with an approved TERA may rescind the TERA in 

its own discretion.61

(v) Like the IMDA, the Navajo Nation Trust Land Leasing Act, 

and, most recently, the HEARTH Act, the TERA provisions of the 

ITEDSDA include a liability waiver clause62 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.63 ‘‘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.64 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.65

c. Tribal concerns with the TERA process under current law 

During the consultation process before the introduction of the bill 

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 


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66 Judith V. Royster, Practical Sovereignty, Political Sovereignty, and the Indian Tribal Energy Development and Self-Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008). 67 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). 68These 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 66 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 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. 69Fosland, supra note 67 at 449. 70 Id. 71 Id. at 454–55. 72 Id. at 455. 73 25 U.S.C. § 2106. 

review articles about the ITEDSDA, one by Professor Judith V. 

Royster 66 and the other by Benjamin J. Fosland.67

In her article on the ITEDSDA, Professor Royster identifies and 

discusses four areas of concern raised by tribal representatives regarding the TERA process.68 In his article, Benjamin J. Fosland 

addresses same basic areas of concern but in three broad categories: (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.69 He concludes that all three criticisms of the ITEDSDA 

‘‘are largely unwarranted.’’ 70

With regard to funding, Fosland notes that, although grant funding and other support authorized under the ITEDSDA may not be 

sufficient to fully fund the needs of all tribes that might be interested in pursuing the TERA process— 71

it is unlikely that all tribes will attempt to engage in serious energy development simultaneously. And as tribes become better able to regulate their own energy development, the need for funding and technical expertise provided by the Secretary will decrease.72

Moreover, this same lack-of-funding criticism can be leveled 

equally at the IMDA. While the Secretary must review and approve 

all IMDA agreements, what is perhaps the most difficult part of 

the process—preparing for and engaging in negotiations and structuring agreements with third parties—must be carried out by the 

tribe itself. The provision of the IMDA requiring the Secretary to 

provide ‘‘advice, assistance, and information during the negotiation 

of a Minerals Agreement’’ is expressly conditioned upon ‘‘the extent 

of [the Secretary’s] available resources.’’ 73

It is true that the ITEDSDA requires some public involvement 

both in the process of TERA approval by the Secretary and in energy development activities by the Indian tribe after the TERA has 

been approved. However, as Professor Royster points out in regard 

to the Secretary’s TERA approval process, provisions in the 

ITEDSDA and its implementing regulations limiting the scope of 

the Secretary’s review of a proposed TERA, requiring the Secretary 


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74 Royster, supra note 66 at 1089. 75 Id. at 1090 (citations omitted). 76Fosland, supra note 67 at 459. 77See 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). 78Pub. L. No. 112–151, 126 Stat. 1150. Section 2 of the HEARTH Act amends 25 U.S.C. § 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 tribes with tribal trust lands. 79 HEARTH Act § 2. 80 Id. 

to ‘‘act in accordance with the trust responsibility,’’ to act ‘‘in good 

faith and in the best interests of the Indian tribes,’’ and to ‘‘liberally construe’’ the ITEDSDA and its implementing regulations for 

the benefit of the tribes to implement the Federal policy of self-determination— 

obligate the Secretary, in considering the approval of a 

TERA, to place tribal self-determination at the core of the 

decision. Although the Secretary will consider and respond 

to relevant public comments on a proposed TERA, the Secretary should do so in light of the policies and regulations 

promoting tribal self-determination and energy development.74

As for the concern about public involvement in the tribe’s environmental review process, Professor Royster observes that this 

process, which she notes is intended to ‘‘mirror’’ provisions in 

NEPA, ‘‘will be costly, and . . . have the potential to delay implementation of tribal resource decisions,’’ but that ‘‘the environmental 

review provisions are not necessarily incompatible with practical 

sovereignty.’’ 75 Benjamin J. Fosland reaches a similar conclusion 

in his article on the TERA process.76 Moreover, the broad tribal 

support 77 for the recently adopted HEARTH Act 78 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.79 The same applies to concerns over the ‘‘interested party’’ challenges authorized in the ITEDSDA—the HEARTH 

Act, similar to the TERA process, authorizes interested parties to 

petition the Secretary and complain that a tribe is violating its own 

leasing regulations.80

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 

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81 Royster, supra note 66 at 1099–1100. 82 537 U.S. 488 (2003). 83 Royster, supra note 66 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. § 2103(e). 84 ‘‘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 § 2. 85 25 U.S.C. § 3504(e)(2)(A). 

mental, social, and cultural effects on the tribe.’’ 81 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 82 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.’’ 83 Again, despite the 

fact that the recently enacted HEARTH Act has a very explicit and 

direct liability waiver clause,84 the tribes vigorously supported the 

adoption of that act in 2012, suggesting that many tribes have 

reached some level of comfort with the implications of these 

clauses. 

KEY PROVISIONS OF THE BILL AS ORDERED REPORTED

At the business meeting convened on September 13, 2012, the 

Committee approved a number of amendments to the bill (offered 

by Vice Chairman Barrasso and Senators Murkowski and Udall) 

and ordered the bill, as amended, to be reported favorably. The following is a description of the key provisions of the bill as ordered 

by the Committee to be reported. 

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 concerns raised in the outreach regarding the bill, including 

the concerns discussed above. The most significant amendments to 

the ITEDSDA are summarized below. 

a. 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.85 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. If the Secretary does 

not act to disapprove the TERA before the 271st day, the TERA 

goes into effect. 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. 

b. Reasons for disapproving a TERA 

Under S.1684, there are only 4 reasons for disapproving a proposed TERA (3 of which are in current law): (1) the Indian tribe 

fails to demonstrate capacity; (2) a provision of the TERA would 


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86This 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. 87 25 U.S.C. § 3504(e)(2)(D). 88 25 U.S.C. § 3504(e)(2)(B)(iii). 89Specifically, 25 U.S.C. § 3504(e)(2)(B)(iii). 90 25 U.S.C. §§ 450 et seq. 

violate applicable Federal law; 86 (3) the TERA does not include the 

required periodic review and evaluation provisions; 87 and (4) the 

TERA does not include any of the required enumerated provisions.88

c. Categorical exclusions 

The bill would amend section 3504(e) of the ITEDSDA 89 to clarify that a tribe may identify actions that are categorically excluded 

from the review process. 

d. 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 

and regardless of whether the other resources are owned by a tribe, 

individual Indian or any other person or entity. 

e. 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 amend that to require that the 

determination be made within 120 days of the date the TERA is 

submitted to the Secretary. This change would give the tribe notice 

of any capacity concerns earlier in the process, so that it does not 

have to wait out the full 270 days only to learn that the Secretary 

has these concerns. 

f. Self-Determination Act tribes and capacity 

The bill would add a new provision in effect deeming a tribe to 

have capacity if the Secretary finds that the tribe has carried out, 

for 3 consecutive years without material audit exceptions, a contract or compact under the Indian Self-Determination and Education Assistance Act 90 that includes land management activities. 

g. 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 


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91 25 U.S.C. § 3504(e)(4). 92 25 U.S.C. § 450j–1(n). 

an opportunity to revise and resubmit’’ the TERA.91 The bill would 

only clarify this, calling for ‘‘a detailed written explanation of each 

reason for disapproval; and the revisions or changes to [the TERA] 

necessary to address each . . . reason.’’ 

h. 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) as it reads in current law, but are meant instead 

to clarify that the liability waiver clause reaches only losses resulting from ‘‘negotiated terms’’ and is not a blanket waiver covering 

all losses. 

i. 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 tribe 

is or is not out of compliance with the TERA. Finally, the bill 

would require the Secretary to dismiss the petition if the tribe and 

the interested party agree to resolve the issues in the petition between themselves. 

j. 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,92 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. 

Other amendments to the ITEDSDA 

The bill would make other amendments to the ITEDSDA unrelated to the TERA process, both technical and substantive in naVerDate Mar 15 2010 05:38 Jan 11, 2013 Jkt 029010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR263.XXX SR263

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93 25 U.S.C. § 477. 94 25 U.S.C. § 503. 95 25 U.S.C. § 3502(a). 96 25 U.S.C. § 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 tribe without secretarial approval. 97This 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 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. 

ture. The following is a summary of the more substantive amendments. 

a. 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 93 and section 3 of the Oklahoma Indian 

Welfare Act 94 for purposes of the ITEDSDA. 

b. Well spacing; technical assistance 

The bill would amend the ITEDSDA section establishing the Department of the Interior Indian Energy Program 95 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 tribes in planning energy resource 

development. 

c. 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, 10 

years and so long thereafter as oil or gas are produced in paying 

quantities) between the 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 96—without approval by 

the Secretary. 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 tribe itself or with an agency or instrumentality of the tribe for purposes of energy resource development on 

its tribal land.97 Under current law, a decision by the 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. 

d. 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 

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98 16 U.S.C. § 800(a). 99 Energy Policy and Conservation Act of 1975, Pub. L. No. 94–163, 89 Stat. 871 (codified at 

42 U.S.C. §§ 6201 et seq.). 100 42 U.S.C. § 6863(d). 101Pub. L. No. 108–278, 118 Stat. 868 (2004). 

retary, (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 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 

a. Amendment to Federal Power Act 

Section 201 of the bill would amend section 7(a) of the Federal 

Power Act 98 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. 

b. Amendments to Energy Efficiency Act 

Section 105 of the bill would amend Part D of Title III of the Energy Policy and Conservation Act 99 by adding a new section at the 

end authorizing grants to Indian tribes to carry out a tribal energy 

efficiency program as described in the new section. The funding 

would be taken from funding appropriated pursuant to section 

365(f) of Title III of the Energy Policy and Conservation Act. Of 

those funds, ‘‘not less than 2.5%’’ must be allocated for the tribal 

program. 

c. Amendments to Federal weatherization program 

Section 203 of the bill would amend the Energy Conservation 

and Production Act 100 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 Indian tribe and (2) the Secretary of Energy determines that 

the low-income members of the tribe will be equally or better 

served by direct funding to the tribe rather than through the State. 

d. Biomass demonstration projects 

Section 202 of the bill would amend the Tribal Forest Protection 

Act of 2004 101 (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 4 new demonstration projects be 

carried out from 2013 to 2017, with tribes to be selected based on 

several enumerated criteria. The bill would allow participating 


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102See 16 U.S.C. § 2104(c)(2) note. 103 43 U.S.C. § 1602(m). 104 25 U.S.C. § 415(e). 

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.102 A longer term is authorized under the bill to provide sufficient time to recover the investment that is necessary to carry out 

a biomass operation. 

Section 202 would authorize similar demonstration projects with 

Alaska Native corporations (as defined in section 3 of the Alaska 

Native Claims Settlement Act 103) with terms not to exceed 20 

years and a renewal term of up to 10 years. 

e. Amendments to Long-Term Leasing Act 

Section 205 of the bill would amend subsection (e) of the LongTerm Leasing Act 104 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.’’ 

LEGISLATIVE HISTORY

On October 12, 2011, Senator Barrasso introduced S. 1684, along 

with Senators Akaka, Hoeven, and McCain. A legislative hearing 

on the bill was held on April 19, 2012. Senators Enzi and Thune 

were later added as co-sponsors. At a business meeting held on 

September 13, 2012, the Committee on Indian Affairs ordered the 

bill reported with amendments favorably. 

SUMMARY OF THE AMENDMENTS APPROVED BY COMMITTEE

At the business meeting held on September 13, 2012, the Committee approved a number of amendments to the bill described 

below. 

The Committee approved an amendment from Senator Barrasso 

that would allow Indian tribes to prepare their own appraisal process for transactions that require the Department of Energy’s approval. 

The Committee also approved an amendment from Senator Udall 

that would direct the Energy Department to collaborate with national laboratories to make technical and scientific assistance available to American Indian energy production and projects. 

The Committee approved another amendment from Senator 

Udall that would extend the Energy Department’s State Energy 

Program to Indian tribes to allow grants to tribes seeking to reduce 

their fossil fuel emissions and increase energy efficiency in transportation, building or other sectors. The Committee approved a second degree amendment by Senator Udall to this amendment that 

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partment’s State Energy Program would be required to set aside 

for tribal conservation programs from 5 percent to 2.5 percent. 

The Committee approved an amendment from Senator Murkowski that would include Alaska Native corporations in the bill’s 

expansion of federal biomass demonstration projects, thus giving 

such Alaskan corporations the option of applying the projects that 

promote biomass energy production such as biofuels, heat and electricity generation. 

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 2012’’ (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 (1992 EPA) by adding (1) a requirement that the 

Secretary of the Interior consult with Indian tribes before approving well-spacing programs that affect their energy resources, and 

(2) 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. 

Section 101(a) would also require the Secretary to carry out the 

program under section 2602 of the 1992 EPA 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 1992 

EPA 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 ‘‘activities to increase capacity of 

Indian tribes to manage’’ energy development and efficiency programs to the purposes of the grants under that section. 

Section 101(c) of the Act amends section 2602(c) of the 1992 EPA 

to include tribal energy development organizations to participate in 

the loan guarantee program under that section. This section also 

amends section 2602(c) to require 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 of the 1992 EPA to 

require the Secretary of the Interior to provide the assistance, information and expertise to a tribal energy development organization (i.e., in addition to an Indian tribe). 


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Section 103. Tribal energy resource agreements 

Section 103 of the Act makes several amendments to section 

2604 of the 1992 EPA, which relates to tribal energy resource 

agreements (TERAs). 

Section 103(a)(1) makes technical amendments to section 

2604(a)(1)(B) of the 1992 EPA; clarifies that the applicable lease or 

business agreement may be for facilities that produce ‘‘electricity 

from renewable resources’’ and that ‘‘at least a portion’’ of the resources that may be refined at an applicable facility must be developed on ‘‘or produced from’’ tribal land; adds at the end of section 

2604(a)(1) a new subparagraph (C) that states that the business 

agreement may include provisions for the voluntary pooling, unitization or communization of the Indian tribe’s energy resources 

with the energy resources of other parties. 

Section 103(a)(1) amends section 2604(a)(2) to state that, besides 

leases and business agreements executed pursuant to a TERA, a 

lease or business agreement between the Indian tribe and a tribal 

energy development organization that is majority owned and controlled by that Indian tribe—and that has been certified as such by 

the Secretary—does not require review and approval of the Secretary under 25 U.S.C. § 81 if the lease or business agreement is 

for a term that does not 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) amends section 2604(b) of the 1992 EPA with regard to energy rights-of-way in the same ways that it amends section 2604(a) with regard to leases and agreements (see amendments described above). 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 1992 EPA. 

Section 103(a)(4) of the Act amends section 2604(e)(2) of the 1992 

EPA to change 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. The Secretary would be required to disapprove the 

TERA 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 provisions mandated for TERAs under section 

2604(e). 

Section 103(a)(4) of the draft bill would also clarify and expedite 

the process by which the Secretary determines whether an Indian 

tribe has demonstrated sufficient capacity to enter into a TERA. 

Current law requires the Secretary to determine whether ‘‘the Indian tribe has demonstrated . . . sufficient capacity to regulate the 

development of energy resources’’ within 270 days of the date on 

which the tribe submits a TERA. 


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Section 103(a)(4) requires the Secretary to make the determination of 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].’’ 

The Secretary would be required to make such a determination 

within 120 days of the date on which the tribe submits a TERA unless the Secretary and the tribe agree to extend the time period for 

making the determination. Section 103(a)(4) would also provide 

that a tribe will be deemed to have demonstrated sufficient capacity if: (1) the tribe has a record of managing land-related programs 

under the Indian Self-Determination and Education Assistance Act 

in a fiscally responsible manner for three consecutive years; or (2) 

the Secretary fails to make the capacity determination within the 

applicable time period. 

Section 103(a)(4) amends section 2604(e)(2) to clarify the mitigation term required for a TERA (that mitigation measures are to be 

determined in the tribe’s discretion) and adds a provision allowing 

the tribe to identify categorical exclusions. 

Section 103(a)(4) also clarifies that if the Secretary disapproves 

a TERA the disapproval must include ‘‘a detailed, written explanation’’ of the reasons for the disapproval. 

Section 103(a)(4) makes a number of clarifying amendments to 

section 2604(e)(5) and (6) of the 1992 EPA, the liability provisions 

of ITEDSDA. In particular, a paragraph is added to clarify that 

these provisions do not absolve the United States from liability 

arising from terms that are not ‘‘negotiated terms’’ or losses that 

are not the result of ‘‘negotiated terms.’’ 

Section 103(a)(4) amends section 2604(e)(7) of the 1992 EPA to 

clarify the definition of ‘‘interested party’’ and the process for reviewing a petition under this paragraph by an interested party— 

by requiring the Secretary to first determine whether the petitioner 

is an ‘‘interested party’’ and then whether the tribe is not in compliance with the TERA. This section also adds a provision requiring 

the Secretary to dismiss the petition if the petitioner and the tribe 

have agreed to a resolution of the issues in the petition. 

Section 103(a)(5) makes a conforming amendment. 

Section 103(a)(6) adds a new subsection (g) to section 2604 of the 

1992 EPA to provide for funding a tribe’s activities under that section. Generally, the amendment would require 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. 

Section 103(a)(6) also adds a new subsection (h), setting forth the 

requirements for the Secretary to certify that a tribal energy development organizations (i.e., that 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; that the entity is organized under the laws 

of the Indian tribe and subject to its jurisdiction and authority; 

that the majority interest in the entity is owned and controlled by 

the Indian tribe; and that this majority interest ownership and control is required under the entity’s organizing documents). 


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Section 103(b) of the Act requires the Secretary to adopt regulations to implement the amendments made by section 103. 

Section 104. Technical assistance for Indian tribal governments 

Section 104 would amend 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. Indian energy efficiency 

Section 105 would add to Part D of Title III of the Energy Policy 

and Conservation Act an Indian Energy Efficiency Program. The 

Indian Energy Efficiency Program would provide grants to assist 

Indian tribes in implementing strategies to reduce fossil fuel emissions and to increase energy efficiency. 

Section 105 would require the Secretary to allocate not less than 

2.5 percent of the funds authorized to be appropriated for each fiscal year under section 265(f) to be distributed to Indian tribes in 

accordance with subsection (d). 

Section 105 would create guidelines under subsection (d) that 

specify how the grants are to be distributed. The Secretary is required to establish a competitive process for providing grants that 

gives priority to projects that (1) increase energy efficiency and energy conservation rather than new energy generation projects; (2) 

integrate cost-effective renewable energy with energy efficiency; (3) 

move beyond the planning stage and are ready for implementation; 

(4) clearly articulate and demonstrate the ability to achieve measurable goals; (5) have the potential to make an impact in the government buildings, infrastructure, communities, and land of an Indian tribe; and (6) maximize the creation or retention of jobs on Indian land. 

This section would also authorize Indian tribes to use grants to 

achieve the purposes of the Energy Efficiency Program. The bill 

enumerates what potential uses for the grants may include. To 

apply for a grant under this section, an Indian tribe would submit 

to the Secretary a proposed energy efficiency and conservation 

strategy. The proposed strategy would include a description of the 

goals of the Indian tribe for increased energy efficiency and conservation in the jurisdiction of the Indian tribe and the manner in 

which the proposed strategy complies with the restrictions in the 

use of the grants and the manner in which a grant will allow the 

Indian tribe to fulfill the goals of the proposed strategy. 

Section 105 would require the Secretary to approve or disapprove 

a proposed conservation strategy by not later than 120 days after 

the date of submission. If the Secretary disapproves a proposed 

strategy the Secretary would provide to the Indian tribe the reasons for the disapproval and the Indian tribe may revise and resubmit the proposed strategy as many times as necessary. 

Section 105 would limit the amount an Indian tribe may use for 

administrative expenses, excluding the cost of the reporting requirements, to an amount equal to the greater of 10 percent of the 

administrative expenses or $75,000. 

An Indian tribe receiving a grant under section 105 would be required to submit to the Secretary a report describing the status of 


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development and implementation of the energy efficiency and conservation strategy and an assessment of energy efficiency gains 

within the jurisdiction of the Indian tribe. 

Section 106. Conforming amendments 

Section 106 would amend a number of conforming amendments 

to the Indian energy provisions of the 1992 EPA, many of which 

are intended to make other provisions consistent with the amendments made in sections 101, 102, and 103. 

In addition, section 106 would amend 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 106 would amend section 2605(d)(1) of the 1992 EPA to 

require the Administrators of the Bonneville Power Administration 

and the Western Area Power Administration to provide technical 

assistance to Indian tribes seeking to use the high-voltage transmission system for delivery of electrical power. 

Section 201. Issuance of preliminary permits and licenses 

Section 201 of the draft bill would amend section 7(a) of the Federal Power Act. As written, the Federal Power Act authorizes the 

Federal Energy Regulatory Commission (FERC) 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) would authorize FERC to give 

the same preference to Indian tribes. 

Section 201(b) states that the amendment made in subsection (a) 

will 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 includes provisions stating that subsection (a) will 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 202. Tribal biomass demonstration project 

Section 202 of the Act would establish biomass demonstration 

projects for federally recognized Indian tribes and Alaska Native 

corporations to promote biomass energy production. 

Subsection (b) of Section 202 would amend the Tribal Forest Protection Act of 2004 to promote biomass energy production on Indian 

forest land and in nearby communities. 

Specifically, the amendment made by subsection (b) would require that 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. Subsection (b) would oblige the Secretary 

to enter into contracts to carry out at least four new demonstration 

projects annually over five fiscal years beginning in FY 2013. 

Under subsection (b), the Secretary of the Interior and the Secretary of Agriculture would be required to take into consideration 


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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 would exclude 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 would be required to 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. 

Subsection (c) of Section 202 would create one biomass demonstration project each year for 2013 through 2017 which would be 

substantially similar to the projects created under subsection (b), 

except this project would be for Alaska Native corporations and 

would not amend the Tribal Forest Protection Act of 2004. 

Specifically, the amendment made under subsection (c) would require the Secretary, for each of the fiscal years 2013 through 2017, 

to enter into a stewardship contract or similar agreement, for a 

term of up to 20 years, and a renewal term of up to 10 years, with 

1 or more Alaska Native corporations, to carry out a demonstration 

project to promote biomass energy production on forest land of the 

Alaska Native corporations and in nearby communities providing 

reliable supplies of woody biomass from federal land. 

Under subsection (c), the Secretary would take into consideration 

a number of factors when considering a proposed demonstration 

project, all of which are the same or similar to the requirements 

under subsection (b). The amendment would exclude 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 draft bill would amend section 413(d) of the 

Energy Conservation and Production Act to provide direct Federal 

funding to Indian tribes for home weatherization. 

Under current law, tribes are not eligible to receive direct Federal funding for home weatherization (the funding goes to the 

States) unless the Secretary of Energy makes two findings. First, 

the Secretary must find that a State is not providing the low-income members of an Indian tribe with assistance equivalent to that 

received by the State’s other low-income residents. Second, the Secretary must determine that the low-income tribal members would 

be better served by providing funding to the tribe. If the Secretary 

makes these two findings, the Secretary reserves from the allocation to the State an amount that is no less than 100 percent and 

no more than 150 percent of the proportion of the low-income tribal 

members in such State to the total number of low-income people 

in such State. Currently, the Secretary reserves this funding from 

the allocations to the States of Arizona and New Mexico for the 

Navajo Nation and also reserves funding from the allocation to the 

State of Wyoming for the Northern Arapaho Tribe. 


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Section 204 of the Act would require the Secretary to make direct 

funding to the Indian tribe upon the request of the tribe if the Secretary determines that the low income members of the applicable 

Indian tribe would be equally or better served by a direct grant. 

The Secretary’s discretion to determine the amount of the funding 

under current law would remain unchanged. 

Section 204. Appraisals 

Section 204 would amend Title XXVI of the Energy Policy Act of 

1992 to allow appraisals relating to the fair market value of mineral or energy resources to be prepared by the Secretary, an Indian 

tribe, or a certified, third-party appraiser pursuant to a contract 

with the Indian tribe. Not later than 45 days after the date on 

which the Secretary receives an appraisal by or for an Indian tribe, 

the Secretary would be required to review and approve the appraisal unless the Secretary determines that the appraisal fails to 

meet standards created by the Secretary under this section. Furthermore, if the Secretary disapproves an appraisal, the Secretary 

would be 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 would amend subsection (e)(1) of the first section of 

the Long-Term Leasing Act to allow the Navajo Nation 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 the meets certain term limits. This section would also extend 

the maximum term for a business or agricultural lease under this 

subsection of the Long-Term Leasing Act to 99 years. For leases for 

exploration, development, or extraction of mineral resources, other 

than oil and gas resources, the maximum lease term is 25 years, 

with an option to renew for 1 additional term up to 25 years. For 

leases for the exploration, development, or extraction of an oil or 

gas resource, the maximum term is 10 years, plus any such additional period as the Navajo Nation determines to be appropriate in 

any case in which an oil or gas resource is produced in a paying 

quantity. 

COMMITTEE RECOMMENDATION

On April 13, 2012, the Senate Committee on Indian Affairs convened a business meeting to consider S. 1684 and other measures. 

The Committee ordered the bill, as amended, be reported to the full 

Senate with the recommendation that the bill, as amended, do 

pass. 

COST AND BUDGETARY CONSIDERATION

A cost estimate by the Congressional Budget Office is not yet 

available. 

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 reguVerDate Mar 15 2010 05:38 Jan 11, 2013 Jkt 029010 PO 00000 Frm 00025 Fmt 6659 Sfmt 6602 E:\HR\OC\SR263.XXX SR263

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latory and paperwork impact that would be incurred in carrying 

out the bill. The Committee believes that S.1684 would have a 

minimal impact on regulatory or paperwork requirements. 

EXECUTIVE COMMUNICATIONS

There have been no written Executive communications regarding 

the bill. 

CHANGES IN EXISTING LAW

In accordance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill 

S.1684, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter printed in italic): 

25 U.S.C.§ 3501 (Energy Policy Act of 1992) 

§ 3501. Definitions 

In this chapter: 

* * * * * * * 

ø(11) The term ‘‘tribal energy resource development organization’’ means an organization of two or more entities, at least 

one of which is an Indian tribe, that has the written consent 

of the governing bodies of all Indian tribes participating in the 

organization to apply for a grant, loan, or other assistance 

under section 3502 of this title.¿ 

(11) The term ‘tribal energy development organization’ 

means— 

(A) 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 an organization incorporated pursuant to section 17 of the Indian Reorganization Act of 

1934 (25 U.S.C. 477) or section 3 of the Act of June 26, 

1936 (25 U.S.C. 503) (commonly known as the ‘Oklahoma 

Indian Welfare Act’)); or 

(B) any organization of 2 or more entities, at least 1 of 

which is an Indian tribe, that has the written consent of the 

governing bodies of all Indian tribes participating in the 

organization to apply for a grant, loan, or other assistance 

under section 2602 or to enter into a lease or business 

agreement with, or acquire a right-of-way from, an Indian 

tribe pursuant to subsection (a)(2)(A)(ii) or (b)(2)(B) of section 2604. 

25 U.S.C. § 3502 (Energy Policy Act of 1992) 

§ 3502. Indian tribal energy resource development 

(a) DEPARTMENT OF THE INTERIOR PROGRAM.— 

(1) To assist Indian tribes in the development of energy resources and further the goal of Indian self-determination, the 

Secretary shall establish and implement an Indian energy resource development program to assist consenting Indian tribes 

and øtribal energy resource development organizations¿ tribal 


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energy development organizations in achieving the purposes of 

this chapter. 

(2) In carrying out the Program, the Secretary shall— 

(A) provide development grants to Indian tribes and 

øtribal energy resource development organizations¿ tribal 

energy development organizations for use in developing or 

obtaining the managerial and technical capacity needed to 

develop energy resources on Indian land, and to properly 

account for resulting energy production and revenues; 

(B) provide grants to Indian tribes and øtribal energy resource development organizations¿ tribal energy development organizations for use in carrying out projects to promote the integration of energy resources, and to process, 

use, or develop those energy resources, on Indian land; 

(C) provide low-interest loans to Indian tribes and øtribal energy resource development organizations¿ tribal energy development organizations for use in the promotion of 

energy resource development on Indian land and integration of energy resources; øand¿ 

(D) provide grants and technical assistance to an appropriate tribal environmental organization, as determined by 

the Secretary, that represents multiple Indian tribes to establish a national resource center to develop tribal capacity to establish and carry out tribal environmental programs in support of energy-related programs and activities 

under this chapter, including— 

(i) training programs for tribal environmental officials, program managers, and other governmental representatives; 

(ii) the development of model environmental policies 

and tribal laws, including tribal environmental review 

codes, and the creation and maintenance of a clearinghouse of best environmental management practices; 

and 

(iii) recommended standards for reviewing the implementation of tribal environmental laws and policies 

within tribal judicial or other tribal appeals 

systemsø.¿; and 

(E) consult with each applicable Indian tribe before 

adopting or approving a well spacing program or plan applicable to the energy resources of that Indian tribe or the 

members of that Indian tribe. 

(3) There are authorized to be appropriated to carry out this 

subsection such sums as are necessary for each of fiscal years 

2006 through 2016. 

(4) PLANNING.— 

(A) IN GENERAL.—In carrying out the program established by paragraph (1), the Secretary shall provide technical assistance to interested Indian tribes to develop energy plans, including— 

(i) plans for electrification; 

(ii) plans for oil and gas permitting, renewable energy permitting, energy efficiency, electricity generation, 

transmission planning, water planning, and other 

planning relating to energy issues; 


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(iii) plans for the development of energy resources 

and to ensure the protection of natural, historic, and 

cultural resources; and 

(iv) any other plans that would assist an Indian 

tribe in the development or use of energy resources. 

(B) COOPERATION.—In establishing the program under 

paragraph (1), the Secretary shall work in cooperation with 

the Office of Indian Energy Policy and Programs of the Department of Energy. 

(b) DEPARTMENT OF ENERGY INDIAN ENERGY EDUCATION PLANNING AND MANAGEMENT ASSISTANCE PROGRAM.— 

(1) The Director shall establish programs to assist consenting Indian tribes in meeting energy education, research 

and development, planning, and management needs. 

(2) In carrying out this subsection, the Director may provide 

grants, on a competitive basis, to an Indian tribe, intertribal 

organization, or øtribal energy resource development organization¿ tribal energy development organization for use in carrying 

out— 

(A) energy, energy efficiency, and energy conservation 

programs; 

(B) studies and other activities supporting tribal acquisitions of energy supplies, services, and facilities, including 

the creation of tribal utilities to assist in securing electricity to promote electrification of homes and businesses 

on Indian land; 

(C) activities to increase the capacity of Indian tribes to 

manage energy development and energy efficiency programs; 

ø(C)¿(D) planning, construction, development, operation, 

maintenance, and improvement of tribal electrical generation, transmission, and distribution facilities located on Indian land; and 

ø(D)¿(E) development, construction, and interconnection 

of electric power transmission facilities located on Indian 

land with other electric transmission facilities. 

(3) TECHNICAL AND SCIENTIFIC RESOURCES.—In addition to 

providing grants to Indian tribes under this subsection, the Secretary shall 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. 

ø(3)¿(4)(A) The Director shall develop a program to support 

and implement research projects that provide Indian tribes 

with opportunities to participate in carbon sequestration practices on Indian land, including— 

(i) geologic sequestration; 

(ii) forest sequestration; 

(iii) agricultural sequestration; and 

(iv) any other sequestration opportunities the Director 

considers to be appropriate. 

(B) The activities carried out under subparagraph (A) shall 

be— 


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(i) coordinated with other carbon sequestration research 

and development programs conducted by the Secretary of 

Energy; 

(ii) conducted to determine methods consistent with existing standardized measurement protocols to account and 

report the quantity of carbon dioxide or other greenhouse 

gases sequestered in projects that may be implemented on 

Indian land; and 

(iii) reviewed periodically to collect and distribute to Indian tribes information on carbon sequestration practices 

that will increase the sequestration of carbon without 

threatening the social and economic well-being of Indian 

tribes. 

ø(4)¿(5)(A) The Director, in consultation with Indian tribes, 

may develop a formula for providing grants under this subsection. 

(B) In providing a grant under this subsection, the Director 

shall give priority to any application received from an Indian 

tribe with inadequate electric service (as determined by the Director). 

(C) In providing a grant under this subsection for an activity 

to provide, or expand the provision of, electricity on Indian 

land, the Director shall encourage cooperative arrangements 

between Indian tribes and utilities that provide service to Indian tribes, as the Director determines to be appropriate. 

ø(5)¿(6) The Secretary of Energy may issue such regulations 

as the Secretary determines to be necessary to carry out this 

subsection. 

ø(6)¿(7) There is authorized to be appropriated to carry out 

this subsection $20,000,000 for each of fiscal years 2006 

through 2016. 

(c) DEPARTMENT OF ENERGY LOAN GUARANTEE PROGRAM.— 

(1) Subject to paragraphs (2) and (4), the Secretary of Energy 

may provide loan guarantees (as defined in section 661a Title 

2) for an amount equal to not more than 90 percent of the unpaid principal and interest due on any loan made to an Indian 

tribe or a tribal energy development organization for energy development. 

(2) In providing a loan guarantee under this subsection for 

an activity to provide, or expand the provision of, electricity on 

Indian land, the Secretary of Energy shall encourage cooperative arrangements between Indian tribes and utilities that provide service to Indian tribes, as the Secretary determines to be 

appropriate. 

(3) A loan øguarantee¿ guaranteed under this subsection 

shall be made by— 

(A) a financial institution subject to examination by the 

Secretary of Energy; øor¿ 

(B) an Indian tribe, from funds of the Indian tribeø.¿; or 

(C) a tribal energy development organization, from funds 

of the tribal energy development organization. 

(4) The aggregate outstanding amount guaranteed by the 

Secretary of Energy at any time under this subsection shall not 

exceed $2,000,000,000. 


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(5) øThe Secretary of Energy may¿ Not later than 1 year 

after the date of enactment of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2012, the 

Secretary of Energy shall issue such regulations as the Secretary of Energy determines are necessary to carry out this 

subsection. 

25 U.S.C. § 3503 (Energy Policy Act of 1992) 

§ 3503. Indian tribal energy resource regulation 

* * * * * * * 

(c) OTHER ASSISTANCE.— 

(1) In carrying out the obligations of the United States under 

this chapter, the Secretary shall ensure, to the maximum extent practicable and to the extent of available resources, that 

øon the request of an Indian tribe, the Indian tribe¿ on the request of an Indian tribe or a tribal energy development organization, the Indian tribe or tribal energy development organization shall have available scientific and technical information 

and expertise, for use in the regulation, development, and 

management of energy resources of the Indian tribe on Indian 

land. 

(2) The Secretary may carry out paragraph (1)— 

(A) directly, through the use of Federal officials; or 

(B) indirectly, by providing financial assistance to an Indian tribe or tribal energy development organization to secure independent assistance. 

25 U.S.C. § 3504 (Energy Policy Act of 1992) 

§ 3504. Leases, business agreements, and rights-of-way involving energy development or transmission 

(a) Leases and business agreements. In accordance with this section— 

(1) an Indian tribe may, at the discretion of the Indian tribe, 

enter into a lease or business agreement for the purpose of energy resource development on tribal land, including a lease or 

business agreement for— 

(A) exploration for, extraction of, processing of, or other 

development of the energy mineral resources of the Indian 

tribe located on tribal land; øor¿ 

(B) construction or operation of— 

ø(i) an electric generation, transmission, or distribution facility located on tribal land; or¿ 

(i) an electric production, generation, transmission, 

or distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal land; or 

(ii) a facility to process or refine energy resources, at 

least a portion of which have been developed on or produced from tribal land; øand¿ or 

(C) pooling, unitization, or communitization of the energy 

mineral resources of the Indian tribe located on tribal land 

with any other energy mineral resource (including energy 

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vidual Indian in fee, trust, or restricted status or by any 

other persons or entities) if the owner of the resources has 

consented or consents to the pooling, unitization, or 

communitization of the other resources under any lease or 

agreement; and 

ø(2) a lease or business agreement described in paragraph 

(1) shall not require review by or the approval of the Secretary 

under section 81 of this title, or any other provision of law, if— 

ø(A) the lease or business agreement is executed pursuant to a tribal energy resource agreement approved by the 

Secretary under subsection (e); 

ø(B) the term of the lease or business agreement does 

not exceed— 

ø(i) 30 years; or 

ø(ii) in the case of a lease for the production of oil 

resources, gas resources, or both, 10 years and as long 

thereafter as oil or gas is produced in paying quantities; and 

ø(C) the Indian tribe has entered into a tribal energy resource agreement with the Secretary, as described in subsection (e), relating to the development of energy resources 

on tribal land (including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be conducted pursuant to subsection (e)(2)(D)(i)).¿ 

(2) a lease or business agreement described in paragraph (1) 

shall not require review by, or the approval of, the Secretary 

under section 2103 of the Revised Statutes (25 U.S.C. 81), or 

any other provision of law, if the lease or business agreement— 

(A) was executed— 

(i) in accordance with the requirements of a tribal 

energy resource agreement in effect under subsection (e) 

(including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be 

conducted pursuant to subparagraphs (D) and (E) of 

subsection (e)(2)); or 

(ii) by the Indian tribe and a tribal energy development organization— 

(I) for which the Indian tribe has obtained certification pursuant to subsection (h); and 

(II) the majority of the interest in which is, and 

continues to be throughout the full term or renewal 

term (if any) of the lease or business agreement, 

owned and controlled by the Indian tribe (or the 

Indian tribe and 1 or more other Indian tribes); 

and 

(B) has a term that does not exceed— 

(i) 30 years; or 

(ii) in the case of a lease for the production of oil resources, gas resources, or both, 10 years and as long 

thereafter as oil or gas is produced in paying quantities. 

ø(b) Rights-of-way for pipelines or electric transmission or distribution lines. An Indian tribe may grant a right-of-way over tribal land for a pipeline or an electric transmission or distribution line 

without review or approval by the Secretary if— 


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ø(1) the right-of-way is executed in accordance with a tribal 

energy resource agreement approved by the Secretary under 

subsection (e); 

ø(2) the term of the right-of-way does not exceed 30 years; 

ø(3) the pipeline or electric transmission or distribution line 

serves— 

ø(A) an electric generation, transmission, or distribution 

facility located on tribal land; or 

ø(B) a facility located on tribal land that processes or refines energy resources developed on tribal land; and 

ø(4) the Indian tribe has entered into a tribal energy resource agreement with the Secretary, as described in subsection (e), relating to the development of energy resources on 

tribal land (including the periodic review and evaluation of the 

activities of the Indian tribe under an agreement described in 

subparagraphs (D) and (E) of subsection (e)(2)).¿ 

(b) RIGHTS-OF-WAY.—An Indian tribe may grant a right-of-way 

over tribal land without review or approval by the Secretary if the 

right-of-way— 

(1) serves— 

(A) an electric production, generation, transmission, or 

distribution facility (including a facility that produces electricity from renewable energy resources) located on tribal 

land; 

(B) a facility located on tribal land that extracts, produces, processes, or refines energy resources; or 

(C) the purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource development on tribal land; and 

(2) was executed— 

(A) in accordance with the requirements of a tribal energy resource agreement in effect under subsection (e) (including the periodic review and evaluation of the activities 

of the Indian tribe under the agreement, to be conducted 

pursuant to subparagraphs (D) and (E) of subsection 

(e)(2)); or 

(B) by the Indian tribe and a tribal energy development 

organization— 

(i) for which the Indian tribe has obtained certification pursuant to subsection (h); and 

(ii) the majority of the interest in which is, and continues to be throughout the full term or renewal term 

(if any) of the right-of-way, owned and controlled by 

the Indian tribe (or the Indian tribe and 1 or more 

other Indian tribes); and 

(3) has a term that does not exceed 30 years. 

(c) RENEWALS.—A lease or business agreement entered into, or a 

right-of-way granted, by an Indian tribe under this section may be 

renewed at the discretion of the Indian tribe in accordance with 

this section. 

ø(d) Validity. No lease, business agreement, or right-of-way relating to the development of tribal energy resources under this section 

shall be valid unless the lease, business agreement, or right-of-way 

is authorized by a tribal energy resource agreement approved by 

the Secretary under subsection (e)(2).¿ 


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(d) VALIDITY.—No lease or business agreement entered into, or 

right-of-way granted, pursuant to this section shall be valid unless 

the lease, business agreement, or right-of-way is authorized by subsection (a) or (b). 

(e) TRIBAL ENERGY RESOURCE AGREEMENTS.— ø(1) On the date¿ (1) IN GENERAL.—On the date on which 

regulations are promulgated under paragraph (8), an Indian 

tribe may submit to the Secretary øfor approval¿ a tribal energy resource agreement governing leases, business agreements, and rights-of-way under this section. 

ø(2) (A) Not later than 270 days after the date on which the 

Secretary receives a tribal energy resource agreement from an 

Indian tribe under paragraph (1), or not later than 60 days 

after the Secretary receives a revised tribal energy resource 

agreement from an Indian tribe under paragraph (4)(C) (or a 

later date, as agreed to by the Secretary and the Indian tribe), 

the Secretary shall approve or disapprove the tribal energy resource agreement.¿ 

(2) PROCEDURE.— 

(A) EFFECTIVE DATE.— 

(i) IN GENERAL.—On the date that is 271 days after 

the date on which the Secretary receives a tribal energy 

resource agreement from an Indian tribe under paragraph (1), the tribal energy resource agreement shall 

take effect, unless the Secretary disapproves the tribal 

energy resource agreement under subparagraph (B). 

(ii) REVISED TRIBAL ENERGY RESOURCE AGREE- MENT.—On the date that is 91 days after the date on 

which the Secretary receives a revised tribal energy resource agreement from an Indian tribe under paragraph (4)(B), the revised tribal energy resource agreement shall take effect, unless the Secretary disapproves 

the revised tribal energy resource agreement under subparagraph (B). 

ø(B) The Secretary shall approve a tribal energy resource agreement submitted under paragraph (1) if— ¿ 

(B) DISAPPROVAL.—The Secretary shall disapprove a tribal energy resource agreement submitted pursuant to paragraph (1) or (4)(B) only if— 

ø(i) the Secretary determines that the Indian tribe 

has demonstrated that the Indian tribe has sufficient 

capacity to regulate the development of energy resources of the Indian tribe;¿ 

(i) the Secretary determines that the Indian tribe has 

not demonstrated that the Indian tribe has sufficient 

capacity to regulate the development of the specific 1 or 

more energy resources identified for development under 

the tribal energy resource agreement submitted by the 

Indian tribe; 

(ii) a provision of the tribal energy resource agreement would violate applicable Federal law (including 

regulations) or a treaty applicable to the Indian tribe; 

(iii) the tribal energy resource agreement does not include 1 or more provisions required under subparagraph (D); or 


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ø(ii) the tribal energy resource agreement includes 

provisions required under subparagraph (D); and ¿ 

ø(iii)¿(iv) the tribal energy resource agreement øincludes provisions that, with respect to a lease, business agreement, or right-of-way under this section—¿ 

does not include provisions that, with respect to any 

lease, business agreement, or right-of-way to which the 

tribal energy resource agreement applies— (I) ensure the acquisition of necessary information from the applicant for the lease, business 

agreement, or right-of-way; 

(II) address the term of the lease or business 

agreement or the term of conveyance of the rightof-way; 

(III) address amendments and renewals; 

(IV) address the economic return to the Indian 

tribe under leases, business agreements, and 

rights-of-way; 

(V) address technical or other relevant requirements; 

(VI) establish requirements for environmental 

review in accordance with subparagraph (C); 

(VII) ensure compliance with all applicable environmental laws, including a requirement that 

each lease, business agreement, and right-of-way 

state that the lessee, operator, or right-of-way 

grantee shall comply with all such laws; 

(VIII) identify final approval authority; 

(IX) provide for public notification of final approvals; 

(X) establish a process for consultation with any 

affected States regarding off-reservation impacts, 

if any, identified under subparagraph (C)(i); 

(XI) describe the remedies for breach of the 

lease, business agreement, or right-of-way; 

(XII) require each lease, business agreement, 

and right-of-way to include a statement that, if 

any of its provisions violates an express term or 

requirement of the tribal energy resource agreement pursuant to which the lease, business agreement, or right-of-way was executed— 

(aa) the provision shall be null and void; 

and 

(bb) if the Secretary determines the provision to be material, the Secretary may suspend or rescind the lease, business agreement, or right-of-way or take other appropriate action that the Secretary determines to 

be in the best interest of the Indian tribe; 

(XIII) require each lease, business agreement, 

and right-of-way to provide that it will become effective on the date on which a copy of the executed lease, business agreement, or right-of-way is 

delivered to the Secretary in accordance with regulations promulgated under paragraph (8); 


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(XIV) include citations to tribal laws, regulations, or procedures, if any, that set out tribal 

remedies that must be exhausted before a petition 

may be submitted to the Secretary under paragraph (7)(B); and 

ø(XV) specify the financial assistance, if any, to 

be provided by the Secretary to the Indian tribe to 

assist in implementation of the tribal energy resource agreement, including environmental review 

of individual projects; and 

ø(XVI)¿(XV) in accordance with the regulations 

promulgated by the Secretary under paragraph 

(8), require that the Indian tribe, as soon as practicable after receipt of a notice by the Indian tribe, 

give written notice to the Secretary of— 

(aa) any breach or other violation by another party of any provision in a lease, business agreement, or right-of-way entered into 

under the tribal energy resource agreement; 

and 

(bb) any activity or occurrence under a 

lease, business agreement, or right-of-way 

that constitutes a violation of Federal øor 

tribal¿ environmental laws. 

(C) Tribal energy resource agreements submitted under 

paragraph (1) shall establish, and include provisions to ensure compliance with, an environmental review process 

that, with respect to the approval of a lease, business 

agreement, or right-of-way under this section, provides for, 

at a minimum— 

(i) the identification and evaluation of all significant 

environmental effects (as compared to a no-action alternative), including effects on cultural resources; 

ø(ii) the identification of proposed mitigation measures, if any, and incorporation of appropriate mitigation measures into the lease, business agreement, or 

right-of-way;¿ 

(ii) the identification of mitigation measures, if any, 

that, in the discretion of the Indian tribe, the Indian 

tribe might propose for incorporation into the lease, 

business agreement, or right-of-way; 

(iii) a process for ensuring that— 

(I) the public is informed of, and has an opportunity to comment on, the environmental impacts 

of the øproposed action¿ approval of the lease, 

business agreement, or right-of-way; and 

(II) responses to relevant and substantive comments are provided, before tribal approval of the 

lease, business agreement, or right-of-way; 

(iv) sufficient administrative support and technical 

capability to carry out the environmental review process; and 

(v) oversight by the Indian tribe of energy development activities by any other party under any lease, 

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suant to the tribal energy resource agreement, to determine whether the activities are in compliance with 

the tribal energy resource agreement and applicable 

Federal environmental lawsø.¿; and 

(vi) the identification of specific classes or categories 

of actions, if any, determined by the Indian tribe not 

to have significant environmental effects. 

(D) A tribal energy resource agreement between the Secretary and an Indian tribe under this subsection shall include— 

(i) provisions requiring the Secretary to conduct a 

periodic review and evaluation to monitor the performance of the activities of the Indian tribe associated 

with the development of energy resources under the 

tribal energy resource agreement; and 

(ii) if a periodic review and evaluation, or an investigation, by the Secretary of any breach or violation 

described in a notice provided by the Indian tribe to 

the Secretary in accordance with øsubparagraph 

(B)(iii)(XVI)¿ subparagraph (B)(iv)(XV), results in a 

finding by the Secretary of imminent jeopardy to a 

physical trust asset arising from a violation of the 

tribal energy resource agreement or applicable Federal 

laws, provisions authorizing the Secretary to take actions determined by the Secretary to be necessary to 

protect the asset, including reassumption of responsibility for activities associated with the development of 

energy resources on tribal land until the violation and 

any condition that caused the jeopardy are corrected. 

(E) Periodic review and evaluation under subparagraph 

(D) shall be conducted on an annual basis, except that, 

after the third annual review and evaluation, the Secretary and the Indian tribe may mutually agree to amend 

the tribal energy resource agreement to authorize the review and evaluation under subparagraph (D) to be conducted once every 2 years. 

(F) A tribal energy resource agreement that takes effect 

pursuant to this subsection shall remain in effect to the extent any provision of the tribal energy resource agreement 

is consistent with applicable Federal law (including regulations), unless the tribal energy resource agreement is— 

(i) rescinded by the Secretary pursuant to paragraph 

(7)(D)(iii)(II); or 

(ii) voluntarily rescinded by the Indian tribe pursuant to the regulations promulgated under paragraph 

(8)(B) (or successor regulations). 

(G)(i) The Secretary shall make a capacity determination 

under subparagraph (B)(i) not later than 120 days after the 

date on which the Indian tribe submits to the Secretary the 

tribal energy resource agreement of the Indian tribe pursuant to paragraph (1), unless the Secretary and the Indian 

tribe mutually agree to an extension of the time period for 

making the determination. 

(ii) Any determination that the Indian tribe lacks the 

requisite capacity shall be treated as a disapproval 


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under paragraph (4) and, not later than 10 days after 

the date of the determination, the Secretary shall provide to the Indian tribe— 

(I) a detailed, written explanation of each reason 

for the determination; and 

(II) a description of the steps that the Indian 

tribe should take to demonstrate sufficient capacity. 

(H) Notwithstanding any other provision of this section, 

an Indian tribe shall be considered to have demonstrated 

sufficient capacity under subparagraph (B)(i) to regulate 

the development of the specific 1 or more energy resources 

of the Indian tribe identified for development under the 

tribal energy resource agreement submitted by the Indian 

tribe pursuant to paragraph (1) if— 

(i) the Secretary determines that— 

(I) the Indian tribe has carried out a contract or 

compact under title I or IV of the Indian Self-Determination and Education Assistance Act (25 

U.S.C. 450 et seq.); and 

(II) for a period of not less than 3 consecutive 

years ending on the date on which the Indian tribe 

submits the tribal energy resource agreement of the 

Indian tribe pursuant to paragraph (1) or (4)(B), 

the contract or compact— 

(aa) has been carried out by the Indian tribe 

without material audit exceptions (or without 

any material audit exceptions that were not 

corrected within the 3–year period); and 

(bb) has included programs or activities relating to the management of tribal land; or 

(ii) the Secretary fails to make the determination 

within the time allowed under subparagraph (G)(i) (including any extension of time agreed to under that subparagraph). 

ø(3) The Secretary¿ (3) NOTICE AND COMMENT; SECRETARIAL

REVIEW.—The Secretary shall provide notice and opportunity 

for public comment on tribal energy resource agreements submitted for approval under paragraph (1). The Secretary’s review of a tribal energy resource agreement shall be limited to 

activities specified by the provisions of the tribal energy resource agreement. 

ø(4) If the Secretary¿(4) ACTION IN CASE OF DISAPPROVAL.— 

If the Secretary disapproves a tribal energy resource agreement 

submitted by an Indian tribe under paragraph (1), the Secretary shall, not later than 10 days after the ødate of disapproval—¿ date of disapproval, provide the Indian tribe 

with— 

ø(A) notify the Indian tribe in writing of the basis for 

the disapproval; 

ø(B) identify what changes or other actions are required 

to address the concerns of the Secretary; and 

ø(C) provide the Indian tribe with an opportunity to revise and resubmit the tribal energy resource agreement.¿ 

(A) a detailed, written explanation of— 


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(i) each reason for the disapproval; and 

(ii) the revisions or changes to the tribal energy resource agreement necessary to address each reason; 

and 

(B) an opportunity to revise and resubmit the tribal energy resource agreement. 

ø(5) If an Indian tribe¿(5) PROVISION OF DOCUMENTS TO SECRETARY.—If an Indian tribe executes a lease or business agreement, or grants a right-of-way, in accordance with a tribal energy resource agreement øapproved¿ in effect under this subsection, the Indian tribe shall, in accordance with the process 

and requirements under regulations promulgated under paragraph (8), provide to the Secretary— 

(A) a copy of the lease, business agreement, or right-ofway document (including all amendments to and renewals 

of the document); and 

(B) in the case of a tribal energy resource agreement or 

a lease, business agreement, or right-of-way that permits 

payments to be made directly to the Indian tribe, information and documentation of those payments sufficient to enable the Secretary to discharge the trust responsibility of 

the United States to enforce the terms of, and protect the 

rights of the Indian tribe under, the lease, business agreement, or right-of-way. 

ø(6)(A) In carrying out¿ (6) SECRETARIAL OBLIGATIONS AND

EFFECT OF SECTION.— 

(A) In carrying out this section, the Secretary shall— 

(i) act in accordance with the trust responsibility of 

the United States relating to mineral and other trust 

resources; and 

(ii) act in good faith and in the best interests of the 

Indian tribes. 

ø(B) Subject to¿ (B) Subject only to the provisions of subsections (a)(2), (b), and (c) waiving the requirement of Secretarial approval of leases, business agreements, and 

rights-of-way executed pursuant to tribal energy resource 

agreements øapproved¿ in effect under this section, and 

the provisions of øsubparagraph (D)¿ subparagraphs (C) 

and (D), nothing in this section shall absolve the United 

States from any responsibility to Indians or Indian tribes, 

including, but not limited to, those which derive from the 

trust relationship or from any treaties, statutes, and other 

laws of the United States, Executive orders, or agreements 

between the United States and any Indian tribe. 

(C) The Secretary shall continue to fulfill the trust obligation of the United States to perform the obligations of 

the Secretary under this section and to ensure that the 

rights and interests of an Indian tribe are protected if— 

(i) any other party to a lease, business agreement, 

or right-of-way violates any applicable Federal law or 

the terms of any lease, business agreement, or rightof-way under this section; or 

(ii) any provision in a lease, business agreement, or 

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ment pursuant to which the lease, business agreement, or right-of-way was executed. 

(D)(i) In this subparagraph, the term ‘‘negotiated term’’ 

means 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 øan approved tribal energy resource agreement¿ a tribal energy 

resource agreement in effect under this section. 

(ii) Notwithstanding subparagraph (B), the United 

States shall not be liable to any party (including any Indian tribe) for any negotiated term of, or any loss resulting 

from the negotiated terms of, a lease, business agreement, 

or right-of-way executed pursuant to and in accordance 

with a tribal energy resource agreement øapproved by the 

Secretary¿ in effect under paragraph (2). 

(iii) Nothing in this section absolves, limits, or otherwise 

affects the liability, if any, of the United States for any— 

(I) term of any lease, business agreement, or right-ofway under this section that is not a negotiated term; or 

(II) 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. 

ø(7) (A) In this paragraph¿ (7) PETITIONS BY INTERESTED

PARTIES.— 

(A) In this paragraph, the term ‘‘interested party’’ means 

any person (including an entity) that øhas demonstrated¿ 

the Secretary determines has demonstrated with substantial evidence that an interest of the person has sustained, 

or will sustain, an adverse environmental impact as a result of the failure of an Indian tribe to comply with a tribal 

energy resource agreement of the Indian tribe øapproved 

by the Secretary¿ in effect under paragraph (2). 

(B) After exhaustion of øany tribal remedy¿ all remedies 

(if any) provided under the laws of the Indian tribe, and in 

accordance with regulations promulgated by the Secretary 

under paragraph (8), an interested party may submit to 

the Secretary a petition to review the compliance by an Indian tribe with a tribal energy resource agreement of the 

Indian tribe øapproved by the Secretary¿ in effect under 

paragraph (2). 

(C)(i) Not later than 20 days after the date on which the 

Secretary receives a petition under subparagraph (B), the 

Secretary shall— 

(I) provide to the Indian tribe a copy of the petition; 

and 

(II) consult with the Indian tribe regarding any noncompliance alleged in the petition. 

(ii) Not later than 45 days after the date on which a consultation under clause (i)(II) takes place, the Indian tribe 

shall respond to any claim made in a petition under subparagraph (B). 

(iii) The Secretary shall act in accordance with subparagraphs (D) and (E) only if the Indian tribe— 


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(I) denies, or fails to respond to, each claim made in 

the petition within the period described in clause (ii); 

or 

(II) fails, refuses, or is unable to cure or otherwise 

resolve each claim made in the petition within a reasonable period, as determined by the Secretary, after 

the expiration of the period described in clause (ii). 

(D)(i) Not later than 120 days after the date on which 

the Secretary receives a petition under subparagraph (B), 

the Secretary shall ødetermine whether the Indian tribe is 

not in compliance with the tribal energy resource agreement.¿ determine— (I) whether the petitioner is an interested party; and 

(II) if the petitioner is an interested party, whether 

the Indian tribe is not in compliance with the tribal energy resource agreement as alleged in the petition. 

(ii) The Secretary may adopt procedures under paragraph (8) authorizing an extension of time, not to exceed 

120 days, for making the ødetermination¿ determinations 

under clause (i) in any case in which the Secretary determines that additional time is necessary to evaluate the allegations of the petition. 

(iii) Subject to subparagraph (E), if the Secretary determines that the Indian tribe is not in compliance with the 

tribal energy resource øagreement, the Secretary shall 

take such action as the Secretary determines to be necessary to ensure compliance with the tribal energy resource agreement, including¿ agreement pursuant to clause 

(i), the Secretary shall only take such action as the Secretary determines necessary to address the claims of noncompliance made in the petition, including— (I) temporarily suspending any activity under a 

lease, business agreement, or right-of-way under this 

section until the Indian tribe is in compliance with the 

øapproved¿ tribal energy resource agreement; or 

(II) rescinding øapproval of¿ all or part of the tribal 

energy resource agreement, and if all of the agreement 

is rescinded, reassuming the responsibility for approval of any future leases, business agreements, or 

rights-of-way described in øsubsection (a) or (b)¿ subsection 3(a)(2)(A)(i) or (b)(2)(A). 

(E) Before taking an action described in subparagraph 

(D)(iii), the Secretary shall— 

(i) make a written determination that ødescribes the 

manner in which¿, with respect to each claim made in 

the petition, how the tribal energy resource agreement 

has been violated; 

(ii) provide the Indian tribe with a written notice of 

the violations together with the written determination; 

and 

(iii) before taking any action described in subparagraph (D)(iii) or seeking any other remedy, provide the 

Indian tribe with a hearing and a reasonable opportunity to attain compliance with the tribal energy resource agreement. 


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(F) An Indian tribe described in subparagraph (E) shall 

retain all rights to appeal under any regulation promulgated by the Secretary. 

(G) Notwithstanding any other provision of this paragraph, the Secretary shall dismiss any petition from an interested party that has agreed with the Indian tribe to a 

resolution of the claims presented in the petition of that 

party. 

(8) Not later than 1 year after August 8, 2005, the Secretary 

shall promulgate regulations that implement this subsection, 

including— 

(A) criteria to be used in determining the capacity of an 

Indian tribe under paragraph (2)(B)(i), including the experience of the Indian tribe in managing natural resources 

and financial and administrative resources available for 

use by the Indian tribe in implementing the approved tribal energy resource agreement of the Indian tribe; 

(B) a process and requirements in accordance with which 

an Indian tribe may— 

(i) voluntarily rescind a tribal energy resource 

agreement approved by the Secretary under this subsection; and 

(ii) return to the Secretary the responsibility to approve any future lease, business agreement, or rightof-way under this subsection; 

(C) provisions establishing the scope of, and procedures 

for, the periodic review and evaluation described in subparagraphs (D) and (E) of paragraph (2), including provisions for review of transactions, reports, site inspections, 

and any other review activities the Secretary determines 

to be appropriate; and 

(D) provisions describing final agency actions after exhaustion of administrative appeals from determinations of 

the Secretary under paragraph (7). 

(f) NO EFFECT ON OTHER LAW.—Nothing in this section affects 

the application of— 

(1) any Federal environmental law; 

(2) the Surface Mining Control and Reclamation Act of 1977 

(30 U.S.C. 1201 et seq.); or 

(3) except as otherwise provided in this chapter, the Indian 

Mineral Development Act of 1982 (25 U.S.C. 2101 et seq.). 

(g) FINANCIAL ASSISTANCE IN LIEU OF ACTIVITIES BY THE SECRETARY.— 

(1) IN GENERAL.—Any amounts that the Secretary would otherwise expend to operate or carry out any program, function, 

service, or activity (or any portion of a program, function, service, or activity) of the Department that, as a result of an Indian 

tribe carrying out activities under a tribal energy resource 

agreement, the Secretary does not expend, the Secretary shall, 

at the request of the Indian tribe, make available to the Indian 

tribe in accordance with this subsection. 

(2) ANNUAL FUNDING AGREEMENTS.—The Secretary shall 

make the amounts described in paragraph (1) available to an 

Indian tribe through an annual written funding agreement that 


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is negotiated and entered into with the Indian tribe that is separate from the tribal energy resource agreement. 

(3) EFFECT OF APPROPRIATIONS.—Notwithstanding paragraph 

(1)— 

(A) the provision of amounts to an Indian tribe under 

this subsection is subject to the availability of appropriations; and 

(B) the Secretary shall not be required to reduce amounts 

for programs, functions, services, or activities that serve 

any other Indian tribe to make amounts available to an Indian tribe under this subsection. 

(4) DETERMINATION.— 

(A) IN GENERAL.—The Secretary shall calculate the 

amounts under paragraph (1) in accordance with the regulations adopted under section 103(b) of the Indian Tribal 

Energy Development and Self-Determination Act Amendments of 2012. 

(B) APPLICABILITY.—The effective date or implementation 

of a tribal energy resource agreement under this section 

shall not be delayed or otherwise affected by— 

(i) a delay in the promulgation of regulations under 

section 103(b) of the Indian Tribal Energy Development 

and Self-Determination Act Amendments of 2012; 

(ii) the period of time needed by the Secretary to 

make the calculation required under paragraph (1); or 

(iii) the adoption of a funding agreement under paragraph (2). 

(h) CERTIFICATION OF TRIBAL ENERGY DEVELOPMENT ORGANIZATION.— 

(1) IN GENERAL.—Not later than 90 days after the date on 

which an Indian tribe submits an application for certification 

of a tribal energy development organization in accordance with 

regulations promulgated under section 103(b) of the Indian 

Tribal Energy Development and Self-Determination Act Amendments of 2012, the Secretary shall approve or disapprove the 

application. 

(2) REQUIREMENTS.—The Secretary shall approve an application for certification if— 

(A)(i) the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination 

and Education Assistance Act (25 U.S.C. 450 et seq.); and 

(ii) for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application, the contract or compact— 

(I) has been carried out by the Indian tribe without 

material audit exceptions (or without any material 

audit exceptions that were not corrected within the 3- 

year period); and 

(II) has included programs or activities relating to 

the management of tribal land; and 

(B)(i) the tribal energy development organization is organized under the laws of the Indian tribe and subject to the 

jurisdiction and authority of the Indian tribe; 

(ii) the majority of the interest in the tribal energy development organization is owned and controlled by the Indian 


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tribe (or the Indian tribe and 1 or more other Indian 

tribes); and 

(iii) the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and 1 or more other Indian tribes) own and control at all times a majority of the interest in the tribal energy development organization. 

(3) ACTION BY SECRETARY.—If the Secretary approves an application for certification pursuant to paragraph (2), the Secretary shall, not more than 10 days after making the determination— 

(A) issue a certification stating that— 

(i) the tribal energy development organization is organized under the laws of the Indian tribe and subject 

to the jurisdiction and authority of the Indian tribe; 

(ii) the majority of the interest in the tribal energy 

development organization is owned and controlled by 

the Indian tribe (or the Indian tribe and 1 or more 

other Indian tribes); 

(iii) the organizing document of the tribal energy development organization requires that the Indian tribe 

(or the Indian tribe and 1 or more other Indian tribes) 

own and control at all times a majority of the interest 

in the tribal energy development organization; and 

(iv) the certification is issued pursuant this subsection; 

(B) deliver a copy of the certification to the Indian tribe; 

and 

(C) publish the certification in the Federal Register. 

(i) SOVEREIGN IMMUNITY.—Nothing in this section waives the sovereign immunity of an Indian tribe. 

ø(g)¿(j) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Secretary such sums as are necessary for each of fiscal years 2006 through 2016 to carry out this 

section and to make grants or provide other appropriate assistance 

to Indian tribes to assist the Indian tribes in developing and implementing tribal energy resource agreements in accordance with this 

section. 

25 U.S.C. § 3506 (Energy Policy Act of 1992) 

§3506. Wind and hydropower feasibility study 

* * * * * * * 

(c) REPORT.—Not later than 1 year after August 8, 2005, the Secretary of Energy, the Secretary, and the Secretary of the Army 

shall submit to Congress a report that describes the results of the 

study, including— 

* * * * * * * 

(3) if found feasible, recommendations for a demonstration 

project to be carried out by the Western Area Power Administration, in partnership with an Indian tribal government or 

tribal øenergy resource development¿ energy development organization, and Western Area Power Administration customers to 

demonstrate the feasibility and potential of using wind energy 


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produced on Indian land to supply firming energy to the Western Area Power Administration; and 

The Energy Policy Act of 1992 (25 U.S.C. § 3501 et seq.) 

* * * * * * * 

SEC. 2607. APPRAISALS. 

(a) IN GENERAL.—For any transaction that requires approval of 

the Secretary and involves mineral or energy resources held in trust 

by the United States for the benefit of an Indian tribe or by an Indian tribe subject to Federal restrictions against alienation, any appraisal relating to fair market value of those resources required to 

be prepared under applicable law may be prepared by— 

(1) the Secretary; 

(2) the affected Indian tribe; or 

(3) a certified, third-party appraiser pursuant to a contract 

with the Indian tribe. 

(b) SECRETARIAL REVIEW AND APPROVAL.—Not later than 45 days 

after the date on which the Secretary receives an appraisal prepared 

by or for an Indian tribe under paragraph (2) or (3) of subsection 

(a), the Secretary shall— 

(1) review the appraisal; and 

(2) approve the appraisal unless the Secretary determines 

that the appraisal fails to meet the standards set forth in regulations promulgated under subsection (d). 

(c) NOTICE OF DISAPPROVAL.—If the Secretary determines that an 

appraisal submitted for approval under subsection (b) should be 

disapproved, the Secretary shall give written notice of the disapproval to the Indian tribe and a description of— 

(1) each reason for the disapproval; and 

(2) how the appraisal should be corrected or otherwise cured 

to meet the applicable standards set forth in the regulations 

promulgated under subsection (d). 

(d) REGULATIONS.—The Secretary shall promulgate regulations to 

carry out this section, including standards the Secretary shall use 

for approving or disapproving the appraisal described in subsection 

(a). 

16 U.S.C. § 800 (Federal Power Act) 

§ 800. Issuance of preliminary permits or licenses 

(a) PREFERENCE.—In issuing preliminary permits hereunder or 

original licenses where no preliminary permit has been issued, the 

Commission shall give preference to applications therefor by 

øStates and municipalities¿ States, Indian tribes, and municipalities, provided the plans for the same are deemed by the Commission equally well adapted, or shall within a reasonable time to be 

fixed by the Commission be made equally well adapted, to conserve 

and utilize in the public interest the water resources of the region; 

and as between other applicants, the Commission may give preference to the applicant the plans of which it finds and determines 

are best adapted to develop, conserve, and utilize in the public interest the water resources of the region, if it be satisfied as to the 

ability of the applicant to carry out such plans. 


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The Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.) 

* * * * * * * 

SEC. 367. INDIAN ENERGY EFFICIENCY PROGRAM. 

(a) DEFINITION OF INDIAN TRIBE.—In this section, the term ‘Indian tribe’ has the meaning given the term in section 4 of the Indian 

Self-Determination and Education Assistance Act (25 U.S.C. 450b). 

(b) PURPOSE.—The purpose of the grants provided under subsection (d) shall be to assist Indian tribes in implementing strategies— 

(1) to reduce fossil fuel emissions created as a result of activities within the jurisdictions of eligible entities in a manner 

that— 

(A) is environmentally sustainable; and 

(B) to the maximum extent practicable, maximizes benefits for Indian tribes and tribal members; 

(2) to increase the energy efficiency of Indian tribes and tribal 

members; and 

(3) to improve energy efficiency in— 

(A) the transportation sector; 

(B) the building sector; and 

(C) other appropriate sectors. 

(c) TRIBAL ALLOCATION.—Of the amount of funds authorized to be 

appropriated for each fiscal year under section 365(f) to carry out 

this part, the Secretary shall allocate not less than 2.5 percent of the 

funds for each fiscal year to be distributed to Indian tribes in accordance with subsection (d). 

(d) GRANTS.—Of the amounts available for distribution under 

subsection (c), the Secretary shall establish a competitive process for 

providing grants under this section that gives priority to projects 

that— 

(1) increase energy efficiency and energy conservation rather 

than new energy generation projects; 

(2) integrate cost-effective renewable energy with energy efficiency; 

(3) move beyond the planning stage and are ready for implementation; 

(4) clearly articulate and demonstrate the ability to achieve 

measurable goals; 

(5) have the potential to make an impact in the government 

buildings, infrastructure, communities, and land of an Indian 

tribe; and 

(6) maximize the creation or retention of jobs on Indian land. 

(e) USE OF FUNDS.—An Indian tribe may use a grant received 

under this section to carry out activities to achieve the purposes described in subsection (b), including— 

(1) the development and implementation of energy efficiency 

and conservation strategies; 

(2) the retention of technical consultant services to assist the 

Indian tribe in the development of an energy efficiency and conservation strategy, including— 

(A) the formulation of energy efficiency, energy conservation, and energy usage goals; 

(B) the identification of strategies to achieve the goals— 


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(i) through efforts to increase energy efficiency and 

reduce energy consumption; and 

(ii) by encouraging behavioral changes among the 

population served by the Indian tribe; 

(C) the development of methods to measure progress in 

achieving the goals; 

(D) the development and publication of annual reports to 

the population served by the eligible entity describing— 

(i) the strategies and goals; and 

(ii) the progress made in achieving the strategies and 

goals during the preceding calendar year; and 

(E) other services to assist in the implementation of the 

energy efficiency and conservation strategy; 

(3) the implementation of residential and commercial building energy audits; 

(4) the establishment of financial incentive programs for energy efficiency improvements; 

(5) the provision of grants for the purpose of performing energy efficiency retrofits; 

(6) the development and implementation of energy efficiency 

and conservation programs for buildings and facilities within 

the jurisdiction of the Indian tribe, including— 

(A) the design and operation of the programs; 

(B) the identification of the most effective methods of 

achieving maximum participation and efficiency rates; 

(C) the education of the members of an Indian tribe; 

(D) the measurement and verification protocols of the 

programs; and 

(E) the identification of energy efficient technologies; 

(7) the development and implementation of programs to conserve energy used in transportation, including— 

(A) the use of— 

(i) flextime by employers; or 

(ii) satellite work centers; 

(B) the development and promotion of zoning guidelines 

or requirements that promote energy efficient development; 

(C) the development of infrastructure, including bike 

lanes, pathways, and pedestrian walkways; 

(D) the synchronization of traffic signals; and 

(E) other measures that increase energy efficiency and decrease energy consumption; 

(8) the development and implementation of building codes 

and inspection services to promote building energy efficiency; 

(9) the application and implementation of energy distribution 

technologies that significantly increase energy efficiency, including— 

(A) distributed resources; and 

(B) district heating and cooling systems; 

(10) the implementation of activities to increase participation 

and efficiency rates for material conservation programs, including source reduction, recycling, and recycled content procurement programs that lead to increases in energy efficiency; 

(11) the purchase and implementation of technologies to reduce, capture, and, to the maximum extent practicable, use 


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methane and other greenhouse gases generated by landfills or 

similar sources; 

(12) the replacement of traffic signals and street lighting with 

energy-efficient lighting technologies, including— 

(A) light-emitting diodes; and 

(B) any other technology of equal or greater energy efficiency; 

(13) the development, implementation, and installation on or 

in any government building of the Indian tribe of onsite renewable energy technology that generates electricity from renewable 

resources, including— 

(A) solar energy; 

(B) wind energy; 

(C) fuel cells; and 

(D) biomass; and 

(14) any other appropriate activity, as determined by the Secretary, in consultation with— 

(A) the Secretary of the Interior; 

(B) the Administrator of the Environmental Protection 

Agency; 

(C) the Secretary of Transportation; 

(D) the Secretary of Housing and Urban Development; 

and 

(E) Indian tribes. 

(f) GRANT APPLICATIONS.— 

(1) IN GENERAL.— 

(A) APPLICATION.—To apply for a grant under this section, an Indian tribe shall submit to the Secretary a proposed energy efficiency and conservation strategy in accordance with this paragraph. 

(B) CONTENTS.—A proposed strategy described in subparagraph (A) shall include a description of— 

(i) the goals of the Indian tribe for increased energy 

efficiency and conservation in the jurisdiction of the Indian tribe; and 

(ii) the manner in which— 

(I) the proposed strategy complies with the restrictions described in subsection (e); and 

(II) a grant will allow the Indian tribe fulfill the 

goals of the proposed strategy. 

(2) APPROVAL.— 

(A) IN GENERAL.—The Secretary shall approve or disapprove a proposed strategy under paragraph (1) by not 

later than 120 days after the date of submission of the proposed strategy. 

(B) DISAPPROVAL.—If the Secretary disapproves a proposed strategy under paragraph 

(1)— 

(i) the Secretary shall provide to the Indian tribe the 

reasons for the disapproval; and 

(ii) the Indian tribe may revise and resubmit the proposed strategy as many times as necessary, until the 

Secretary approves a proposed strategy. 


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(C) REQUIREMENT.—The Secretary shall not provide to 

an Indian tribe a grant under this section until a proposed 

strategy is approved by the Secretary. 

(3) LIMITATIONS ON USE OF FUNDS.—Of the amounts provided 

to an Indian tribe under this section, an Indian tribe may use 

for administrative expenses, excluding the cost of the reporting 

requirements of this section, an amount equal to the greater 

of— 

(A) 10 percent of the administrative expenses; or 

(B) $75,000. 

(4) ANNUAL REPORT.—Not later than 2 years after the date on 

which funds are initially provided to an Indian tribe under this 

section, and annually thereafter, the Indian tribe shall submit 

to the Secretary a report describing— 

(A) the status of development and implementation of the 

energy efficiency and conservation strategy; and (B) to the 

maximum extent practicable, an assessment of energy efficiency gains within the jurisdiction of the Indian tribe. 

42 U.S.C. § 6863 (Energy Conservation and Production Act) 

§ 6863. Weatherization program 

* * * * * * * 

(d) DIRECT GRANTS TO LOW-INCOME MEMBERS OF INDIAN TRIBAL

ORGANIZATIONS OR ALTERNATE SERVICE ORGANIZATIONS; APPLICATION FOR FUNDS.— 

ø(1) Notwithstanding any other provision of this part, in any 

State in which the Secretary determines (after having taken 

into account the amount of funds made available to the State 

to carry out the purposes of this part) that the low-income 

members of an Indian tribe are not receiving benefits under 

this part that are equivalent to the assistance provided to 

other low-income persons in such State under this part, and if 

he further determines that the members of such tribe would be 

better served by means of a grant made directly to provide 

such assistance, he shall reserve from sums that would otherwise be allocated to such State under this part not less than 

100 percent, nor more than 150 percent, of an amount which 

bears the same ratio to the State’s allocation for the fiscal year 

involved as the population of all low-income Indians for whom 

a determination under this subsection has been made bears to 

the population of all low-income persons in such State.¿ 

(1) RESERVATION OF AMOUNTS.— 

(A) IN GENERAL.—Subject to subparagraph (B) and notwithstanding any other provision of this part, the Secretary 

shall reserve from amounts that would otherwise be allocated to a State under this part not less than 100 percent, 

but not more than 150 percent, of an amount which bears 

the same proportion to the allocation of that State for the 

applicable fiscal year as the population of all low-income 

members of an Indian tribe in that State bears to the population of all low-income individuals in that State. 

(B) RESTRICTIONS.—Subparagraph (A) shall apply only 

if— 


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(i) the tribal organization serving the low-income 

members of the applicable Indian tribe requests that 

the Secretary make a grant directly; and 

(ii) the Secretary determines that the low-income 

members of the applicable Indian tribe would be equally or better served by making a grant directly than a 

grant made to the State in which the low-income members reside. 

(2) øThe sums¿ ADMINISTRATION.—The amounts reserved by 

the Secretary øon the basis of his determination¿ under this 

subsection shall be granted to the tribal organization serving 

the øindividuals for whom such a determination has been 

made¿ low-income members of the Indian tribe, or, where there 

is no tribal organization, to such other entity as øhe¿ the Secretary determines has the capacity to provide services pursuant 

to this part. 

(3) øIn order¿ APPLICATION.—In order for a tribal organization or other entity to be eligible for a grant for a fiscal year 

under this subsection, it shall submit to the Secretary an application meeting the requirements set forth in section 6864 of 

this title. 

(e) TRANSFER OF FUNDS.—Notwithstanding any other provision of 

law, the Secretary may transfer to the Director sums appropriated 

under this part to be utilized in order to carry out programs, under 

section 222(a)(12) of the Economic Opportunity Act of 1964 [42 

U.S.C. 2809(a)(12)], which further the purpose of this part. 

The Tribal Forest Protection Act of 2004 (25 U.S.C. § 3115a) 

* * * * * * * 

SEC. 2. TRIBAL FOREST ASSETS PROTECTION. 

(a) DEFINITIONS.—øIn this section¿ In this Act: 

* * * * * * * 

SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT. 

(a) STEWARDSHIP CONTRACTS OR SIMILAR AGREEMENTS.—For 

each of fiscal years 2013 through 2017, the Secretary shall enter 

into stewardship contracts or similar agreements (excluding direct 

service contracts) with Indian tribes to carry out demonstration 

projects to promote biomass energy production (including biofuel, 

heat, and electricity generation) on Indian forest land and in nearby 

communities by providing reliable supplies of woody biomass from 

Federal land. 

(b) DEMONSTRATION PROJECTS.—In each fiscal year for which 

projects are authorized, at least 4 new demonstration projects that 

meet the eligibility criteria described in subsection (c) shall be carried out under contracts or agreements described in subsection (a). 

(c) ELIGIBILITY CRITERIA.—To be eligible to enter into a contract 

or agreement under this section, an Indian tribe shall submit to the 

Secretary an application— 

(1) containing such information as the Secretary may require; 

and 

(2) that includes a description of— 

(A) the Indian forest land or rangeland under the jurisdiction of the Indian tribe; and 


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(B) the demonstration project proposed to be carried out 

by the Indian tribe. 

(d) SELECTION.—In evaluating the applications submitted under 

subsection (c), the Secretary shall— 

(1) take into consideration— 

(A) the factors set forth in paragraphs (1) and (2) of section 2(e); and 

(B) whether a proposed project would— 

(i) increase the availability or reliability of local or 

regional energy; 

(ii) enhance the economic development of the Indian 

tribe; 

(iii) result in or improve the connection of electric 

power transmission facilities serving the Indian tribe 

with other electric transmission facilities; 

(iv) improve the forest health or watersheds of Federal land or Indian forest land or rangeland; 

(v) demonstrate new investments in infrastructure; or 

(vi) otherwise promote the use of woody biomass; and 

(2) exclude from consideration any merchantable logs that 

have been identified by the Secretary for commercial sale. 

(e) IMPLEMENTATION.—The Secretary shall— 

(1) ensure that the criteria described in subsection (c) are 

publicly available by not later than 120 days after the date of 

enactment of this section; and 

(2) to the maximum extent practicable, consult with Indian 

tribes and appropriate intertribal organizations likely to be affected in developing the application and otherwise carrying out 

this section. 

(f) REPORT.—Not later than September 20, 2015, the Secretary 

shall submit to Congress a report that describes, with respect to the 

reporting period— 

(1) each individual tribal application received under this section; and 

(2) each contract and agreement entered into pursuant to this 

section. 

(g) INCORPORATION OF MANAGEMENT PLANS.—In carrying out a 

contract or agreement under this section, on receipt of a request 

from an Indian tribe, the Secretary shall incorporate into the contract or agreement, to the maximum extent practicable, management 

plans (including forest management and integrated resource management plans) in effect on the Indian forest land or rangeland of 

the respective Indian tribe. 

(h) TERM.—A contract or agreement entered into under this section— 

(1) shall be for a term of not more than 20 years; and 

(2) may be renewed in accordance with this section for not 

more than an additional 10 years. 

25 U.S.C. § 415 

§ 415. Leases of restricted lands 

* * * * * * * 

(e) LEASES OF RESTRICTED LANDS FOR THE NAVAJO NATION.— 


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(1) Any leases by the Navajo Nation for purposes authorized 

under subsection (a), and any amendments theretoø, except a 

lease for¿, including a lease for the exploration, development, 

or extraction of any mineral resources, shall not require the 

approval of the Secretary if the lease is executed under the 

tribal regulations approved by the Secretary under this subsection and the term of the lease does not exceed— 

ø(A) in the case of a business or agricultural lease, 25 

years, except that any such lease may include an option to 

renew for up to two additional terms, each of which may 

not exceed 25 years; and¿ 

(A) in the case of a business or agricultural lease, 99 

years; 

(B) in the case of a lease for public, religious, educational, recreational, or residential purposes, 75 years if 

such a term is provided for by the Navajo Nation through 

the promulgation of regulationsø.¿; and 

(C) in the case of a lease for the exploration, development, 

or extraction of mineral resource (including geothermal resources), 25 years, except that— 

(i) any such lease may include an option to renew for 

1 additional term of not to exceed 25 years; and 

(ii) any such lease for the exploration, development, 

or extraction of an oil or gas resource shall be for a 

term of not to exceed 10 years, plus such additional period as the Navajo Nation determines to be appropriate 

in any case in which an oil or gas resource is produced 

in a paying quantity. 

Æ 


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