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[Senate Report 114-149]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 242
114th Congress     }                                    {       Report
                                 SENATE
 1st Session       }                                    {      114-149

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

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

                                _______
                                

               September 30, 2015.--Ordered to be printed

                                _______
                                

 Mr. Barrasso, from the Senate Committee on Indian Affairs, submitted 
                             the following

                              R E P O R T

                         [To accompany S. 209]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 209) to amend the Indian Tribal Energy Development and 
Self-Determination Act of 2005, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                Purpose

    The purpose of S. 209 is to amend certain provisions of the 
Energy Policy Act of 2005\1\ to further enhance the ability of 
Indian tribes to exercise self-determination over the 
development of energy resources located on tribal lands; to 
establish tribal biomass demonstration projects; to improve, 
facilitate, and make more effective the implementation of the 
program in Indian Country under section 413(d) of the Energy 
Conservation and Production Act\2\; and to otherwise facilitate 
Indian tribal governments in their goals to develop both 
renewable and non-renewable energy resources for the benefit of 
current and future generations of Indian people.
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    \1\Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 
(2005) (codified in scattered sections of Title 25 U.S.C., 26 U.S.C., 
and 42 U.S.C.).
    \2\Pub. L. No. 94-385, Sec. 413(d)(codified at 42 U.S.C. 
Sec. 6863(d)).
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                          Need for Legislation

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

                               Background

    Global energy demand is expected to increase by 37% by 
2040, with demand increasing for several energy resources such 
as oil, coal, natural gas, and renewables.\4\ In recent years, 
energy supply increased to correspond with increases in demand. 
Most notably, there had been a spectacular growth in ``light 
tight oil'' production from low permeable shale formations.\5\
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    \4\International Energy Agency, World Energy Outlook 2014, 
Executive Summary, November 2014 at 1-2.
    \5\International Energy Agency, World Energy Outlook 2013, November 
2013 at 424.
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    The primary location for light tight oil production in the 
United States has been the Bakken Formation in North Dakota, 
which is the largest known continuous oil accumulation in the 
United States.\6\ In the heart of the Bakken formation lies the 
Fort Berthold Indian Reservation, home to the Mandan, Hidatsa, 
and Arikara tribes.
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    \6\International Energy Agency, World Energy Outlook 2013, November 
2013 at 475.
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    Many other Indian reservations hold an untapped potential 
wealth of energy resources.\7\ A recent report by the 
Government Accountability Office (GAO) indicated that, despite 
this potential, energy development on Indian lands has not been 
as robust as it has been on non-Indian lands.\8\
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    \7\U.S. Gov't Accountability Office, GAO-15-502, Indian Energy 
Development: Poor Management by BIA Has Hindered Energy Development on 
Indian Lands 1 (2015).
    \8\Id. at 2.
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    When tasked with examining the barriers to energy 
development on Indian lands, the GAO confirmed tribal concerns 
in finding that such development is subject to a complex 
regulatory framework and poor management by the governing 
Federal agencies.\9\ These barriers have led to significant 
delays in review and approvals of required agreements such as 
leases, business agreements, or rights-of-ways.
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    \9\Id.
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    In turn, the delays in leasing and permitting for new 
energy production sites were especially costly to Indian 
tribes. Indian tribes lost the opportunity to participate in 
energy development and revenues from the potential project. 
According to the GAO, one tribe estimated that more than $95 
million in possible fees, severance taxes, and royalties were 
lost during one eight-year delay.\10\
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    \10\Id.
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    These impediments increase the need for improvements to the 
tribal energy leasing process for Indian tribes to be able to 
compete in the energy market. This bill, S. 209, would help 
level the playing field for Indian tribes that can participate, 
if they so choose, in the energy market in the United States. 
If S. 209 were enacted, Indian tribes would be able to lease 
and develop their trust energy resources in a timely, 
responsible, and profitable way.

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

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

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

          The Tribe takes an active role in the development of 
        its resources, however, despite our progress, the 
        Tribe's ability to fully benefit from its resources is 
        limited by the federal agencies overseeing oil and gas 
        development on the Reservation. For example, we need 10 
        times as many permits to be approved. Currently, about 
        48 Applications for Permits to Drill (APD) are approved 
        each year for oil and gas operations on the 
        Reservation. We estimate that 450 APDs will be needed 
        each year as we expand operations. As the oil and gas 
        companies who operate on the Tribe's Reservation often 
        tell the Tribe, the federal oil and gas permitting 
        process is the single biggest risk factor to operations 
        on the Reservation. In order for the Tribe to continue 
        to grow and expand our economy the federal permitting 
        process needs to be streamlined and improved.\24\
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    \24\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes, Before the S. Comm. 
on Indian Affairs, 113th Cong. (2014) (testimony submitted from Gordon 
Howell, Chairman, Business Committee for the Ute Indian Tribe of the 
Uintah and Ouray Reservation).
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    Among the more egregious results of bureaucratic delays was 
raised at the same legislative hearing. Chairman Olguin of the 
Southern Ute Tribe testified about a letter written to Regional 
Director of the Bureau of Indian Affairs in 2009 explaining the 
impacts of the bureaucratic delays. He stated in his written 
testimony (quoting the letter) the following:

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

    On June 8, 2015, the GAO issued its Report in response to a 
request by Senator Barrasso in January, 2014.\26\ This Report 
examined the barriers to energy development on Indian lands and 
highlighted several barriers including poor management by the 
Department of the Interior, Bureau of Indian Affairs. Most 
notably, the GAO found that the BIA does not have the data 
needed to verify ownership of natural resources or identify 
where leases are in effect, nor does it have an adequate system 
to track review and response times in approving leases or other 
development-related transactions.\27\
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    \26\U.S. Gov't Accountability Office, GAO-15-502, Indian Energy 
Development: Poor Management by BIA Has Hindered Energy Development on 
Indian Lands (2015).
    \27\Id. at 18, 21.
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    These deficiencies add to the other barriers identified by 
the GAO (and echoed by tribal leaders over the past few years) 
such as the complex regulatory framework. Taken together, these 
barriers severely diminish, if not eliminate, the ability of 
tribes to develop their resources. In fact, the GAO noted that 
one private developer indicated it was nearly 65 percent more 
costly to develop on Indian lands than non-Indian lands.\28\
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    \28\Id. at 25.
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    The TERA process in both the ITEDSDA and (as amended) in 
this bill, S.209, would serve to reduce much of the 
bureaucratic delays. While it is encouraging that the BIA 
generally agreed with most of the recommendations in the GAO 
Report and has taken some steps to address the issues, the 
Committee remains concerned that a fully developed plan of 
action is not available to continue addressing the issues 
identified in the Report.
    The Committee is indeed troubled that tribes (and 
individual tribal members) are missing opportunities to develop 
resources or receive revenues from these resources. The 
Committee intends to continue working with the Administration 
to determine whether additional legislative action is needed to 
assist in addressing these issues.

Title V of the Energy Policy Act of 2005

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

    Past Committee Reports provide an extensive legislative 
history of predecessor bills and elaborate on the development 
of and debate on those predecessor bills which have led to this 
bill.\32\ There are particular provisions of the ITEDSDA 
discussed in those Reports that are of notable significance for 
this bill, S. 209.
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    \32\S. 2132, 113th Cong (2014).
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    The ITEDSDA was enacted in the 109th Congress, but was 
largely developed during the 108th, having originated from two 
separate Indian energy bills. One of these bills, S. 522, was 
introduced by Senator Ben Nighthorse Campbell (then Chairman of 
the Committee), and the other, S. 424, by Senator Jeff Bingaman 
(then ranking member of the Committee on Energy and Natural 
Resources). The Committee held a hearing on the two bills on 
March 19, 2003.\33\
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    \33\Tribal Energy Self-Sufficiency Act and the Native American 
Energy and Self-Determination Act: Hearing on S. 424 and S. 522 Before 
the S. Comm. on Indian Affairs, 108th Cong. (2003).
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    While there were a number of significant differences 
between the two bills, there were also key similarities in both 
bills relating to Secretarial approvals of energy-related 
transactions and rights-of-ways and to waivers of liability. 
Both bills would have authorized Indian tribes to grant rights-
of-way to third parties to serve energy-related facilities 
located on tribal lands without Secretarial approval if done 
pursuant to tribal regulations approved by the Secretary.
    Both bills included provisions that would authorize energy-
related transactions between Indian tribes and third parties 
without approval by the Secretary of the Interior if the 
transactions were carried out in accordance with tribal 
regulations that had been previously approved by the 
Secretary.\34\ Secretarial approval for these types of 
transactions would have been otherwise required under the IMLA, 
IMDA, or, in cases of energy-related surface uses (for example, 
wind or solar energy projects), 25 U.S.C. Sec. 415.
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    \34\Section 103(b) of S. 424 would allow 30-year leases of tribal 
land for siting ``electrical generation, transmission, or 
distribution'' facilities (such as coal-fired power plants) or 
facilities that ``refine or otherwise process renewable or non-
renewable resources'' (such as oil refineries) developed on tribal 
land. S. 522 would allow 30-year leases of tribal land for similar 
purposes as those authorized in S. 424 but also for ``exploration for, 
extraction of, processing of, or other development of energy 
resources'' (i.e., oil, gas, or coal development and production). The 
model for this feature of S. 424 and S. 522--authorizing leases of 
tribal land without Secretarial approval if done pursuant to tribal 
regulations that had been approved by the Secretary--was the Navajo 
Nation Trust Land Leasing Act of 2000, which was enacted as part of the 
Omnibus Indian Advancement Act. See Title XII of Pub. L. No. 106-568, 
114 Stat. 2933 (2000).
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    Both S. 424 and S. 522 included liability waiver clauses 
that would protect the United States from claims arising from 
losses sustained as a result of leases entered into pursuant to 
the authority under the bills. Although worded somewhat 
differently, the waivers in the two bills were fairly broad in 
scope and similar in effect.\35\
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    \35\The liability waiver clauses in S. 424 and S. 522 are similar 
to the liability waiver provision in the IMDA, 25 U.S.C. Sec. 2103(e). 
See supra note 21 and accompanying text.
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    The Committee staff eventually produced a revised version 
of S. 522 that combined many provisions from that bill with 
provisions in S. 424, including the provisions that allowed 
Indian tribes to enter into energy-related leases, agreements, 
and rights-of-way without the Secretary's approval. These 
provisions were modified in several respects--in particular by 
authorizing a ``tribal energy resource agreement'' (TERA) 
between the Indian tribe and the Secretary in lieu of ``tribal 
regulations'' approved by the Secretary, so that leases, 
agreements, and rights-of-way would not require Secretarial 
approval if entered into pursuant to an approved TERA.\36\
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    \36\See note 56, infra, regarding the third-party petitioning 
process for some of the reasons a Secretary-Tribal agreement (i.e., the 
TERA) was used in lieu of tribal regulations.
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    This revised version of the two bills was ultimately 
included as Title III of S. 1005, the Energy Policy Act of 
2003, as reported by the Committee on Energy and Natural 
Resources during the 108th Congress.\37\ None of the Senate or 
House bills addressing comprehensive energy policy were enacted 
into law in the 108th Congress, including S. 1005.\38\
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    \37\See S. Rep. No. 108-43, at 29-36.
    \38\See also S. 14; H.R. 6; H.R. 238; H.R. 1531; H.R. 1644.
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    In the 109th Congress, the Energy Policy Act of 2005 was 
signed into law on August 8, 2005. The Act included, with some 
modifications, the Indian energy title and the TERA process 
that was part of S. 1005 from the previous Congress.\39\
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    \39\See Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119 
Stat. 594 (2005). On March 10, 2008, the Department adopted regulations 
implementing the TERA provisions of the Energy Policy Act of 2005. See 
Tribal Energy Resource Agreements Under the Indian Tribal Energy 
Development and Self-Determination Act, 73 Fed. Reg. 12821 (Mar. 10, 
2008) (codified at 25 C.F.R. pt. 224).
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Key provisions of the TERA process under current law

    The following is a summary of the key provisions of the 
TERA process in the ITEDSDA.\40\
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    \40\The TERA process of the ITEDSDA is set forth in 25 U.S.C. 
Sec. 3504 but uses some terms defined in Sec. 3501.
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    Tribal trust lands. The TERA provisions of the ITEDSDA only 
apply to ``tribal land'' as defined in 25 U.S.C. Sec. 3501(12). 
Tribal land means trust or restricted land of an Indian tribe 
(i.e., not individual Indian trust or restricted land or tribal 
fee land). While the term ``Indian tribe'' includes Alaska 
Native corporations for many purposes of the ITEDSDA, ``Indian 
tribe'' does not include those corporations for purposes of the 
TERA provisions of section 3504.
    Tribal discretion. The TERA process does not automatically 
apply to the tribal land of an Indian tribe. Whether to pursue 
a TERA is a decision that the Indian tribe makes in its own 
discretion.
    Kinds of agreements authorized. Once a TERA has been 
approved by the Secretary, the Indian tribe may, without 
further approval of the Secretary, enter into energy leases, 
business agreements, and, for certain energy-related purposes, 
rights-of-way.\41\
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    \41\25 U.S.C. Sec. 3504(a)-(b) imposes limitations on the duration 
of the term (30 years for most leases and business agreements and for 
rights-of-way and, in the case of oil and gas leases, ``10 years and as 
long thereafter as oil or gas is produced in paying quantities''). 
However, Indian tribes may renew leases, business agreements, and 
rights-of-way under Sec. 3504(c).
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    Scope of TERA. A TERA may, at the Indian tribe's option, 
address ``all or a part'' of its energy resources, whether 
renewable or nonrenewable.\42\ Conceivably, an Indian tribe 
would also be free to include language in the TERA that would 
limit its application to certain designated geographic areas 
within its tribal lands.
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    \42\See 25 C.F.R. Sec. 224.30 (defining ``Energy Resources'' as 
``including, but not limited to, natural gas, oil, uranium, coal, 
nuclear, wind, solar, geothermal, biomass, and hydrologic resources''). 
25 U.S.C. Sec. 3504(a) itself expressly mentions ``energy mineral 
resources,'' ``electric generation, transmission, or distribution'' 
facilities, and oil and gas resources.
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    Approval of the TERA by the Secretary. The tribal authority 
to approve leases, business agreements, and rights-of-way 
without Secretarial approval requires that the Indian tribe 
have a TERA in place that has been approved by the 
Secretary.\43\
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    \43\25 U.S.C. Sec. 3504(d).
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    Process for obtaining an approved TERA. The following are 
the key steps in the process for obtaining an approved TERA 
under current law.\44\
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    \44\The regulations at 25 C.F.R. Sec. 224.50-224.68 establish the 
process in considerably more detail than the statute.
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    (i) The tribe must submit a proposed TERA to the 
Secretary.\45\
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    \45\25 U.S.C. Sec. 3504(e)(1).
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    (ii) The Secretary has 270 days after receiving a TERA 
within which to approve or disapprove the proposed TERA.\46\
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    \46\25 U.S.C. Sec. 3504(e)(2)(A).
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    (iii) The Secretary must provide notice and opportunity for 
public comment on the proposed TERA. However, the environmental 
review of the proposed TERA ``shall be limited to activities 
specified in the provisions of the TERA.''\47\
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    \47\25 U.S.C. Sec. 3504(e)(3); 25 C.F.R. Sec. 224.70.
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    (iv) The Secretary ``shall approve''\48\ a proposed TERA if 
(1) the Indian tribe has demonstrated its capacity to regulate 
energy development; (2) the TERA includes provisions requiring 
a periodic review and evaluation of the tribe's performance 
under the TERA and, if the Secretary finds ``imminent 
jeopardy'' to a physical trust asset, allowing the Secretary to 
take protective measures, including reassumption; and (3) the 
TERA includes the 16 mandatory clauses or provisions itemized 
in section 3504(e)(2)(B)(iii),\49\ one of which is the 
environmental review process required under section 
3504(e)(2)(C).
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    \48\25 U.S.C. Sec. 3504(e)(2)(B).
    \49\See also 25 C.F.R. Sec. 224.63.
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    (v) The Secretary must notify the Indian tribe in writing 
of a disapproval decision within 10 days of the decision, 
stating the basis for disapproval and identifying the changes 
or other actions that are required to address the Secretary's 
concerns and providing the Indian tribe with an opportunity to 
revise and re-submit the TERA.\50\
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    \50\25 U.S.C. Sec. 3504(e)(4); 25 C.F.R. Sec. 224.75. Under the 
regulations, the Indian tribe has 45 days (or such longer time as the 
tribe and the Secretary may agree) after receiving a notice of 
disapproval to resubmit a revised TERA. 25 C.F.R. Sec. 224.76.
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    (vi) The Secretary ``shall approve'' the revised TERA if it 
meets the same 3 criteria set forth in paragraph (iv), above, 
applicable to the original version of the TERA.\51\ The 
Secretary has only 60 days within which to approve or 
disapprove a revised TERA.\52\
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    \51\25 U.S.C. Sec. 3504(e)(2).
    \52\Id.; 25 C.F.R. Sec. 224.76. Under the regulations, a 
disapproval of a revised TERA is a ``final agency action'' and subject 
to judicial review. 25 C.F.R. Sec. 224.77. Under the regulations, only 
the Indian tribe has standing to seek judicial review of a decision to 
disapprove a TERA or a revised TERA. 25 C.F.R. Sec. 224.77.
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    Post-approval/TERA implementation matters. There are a 
number of tasks, issues, and considerations addressed in 
section 3504 that arise after a TERA has been approved. The 
following are among the more significant:
    (i) The Secretary must conduct a periodic review and 
evaluation of the Indian tribe's performance under an approved 
TERA. (See paragraph 7(iv)(2) above.) The review must be 
conducted annually unless, after the third annual review, the 
Indian tribe and the Secretary agree to amend the TERA to allow 
biannual reviews.\53\
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    \53\25 U.S.C. Sec. 3504(e)(2)(D)-(E).
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    (ii) A copy of each lease, business agreement or right-of-
way executed by the Indian tribe pursuant to its TERA must be 
delivered to the Secretary; the lease, agreement or right-of-
way is not effective until that occurs.\54\ If the TERA 
authorizes ``direct payment'' leases and agreements, the Indian 
tribe must furnish the Secretary with sufficient information to 
discharge the Secretary's trust responsibility to enforce the 
terms of the lease or agreement and protect the rights of the 
tribe.\55\
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    \54\25 U.S.C. Sec. 3504(e)(2)(B)(iii)(XIII)-(5)(A); 25 C.F.R. 
Sec. 224.83(b).
    \55\25 U.S.C. Sec. 3504(e)(5)(B); 25 C.F.R. Sec. 224.63(k).
---------------------------------------------------------------------------
    (iii) The ITEDSDA allows third parties with standing to 
petition the Secretary if they believe the Indian tribe is not 
complying with its own TERA. To have standing to invoke this 
process, the third party must be an ``interested person . . . 
[who] has demonstrated that an interest of the person has 
sustained, or will sustain, an adverse environmental impact as 
a result of the failure of the Indian tribe to comply'' with 
its TERA.\56\ Accordingly, the petitioning process is not 
available as an avenue for persons to air generalized 
grievances over the Indian tribe's activities under the TERA. 
Further, before a petition may be filed with the Secretary, the 
``interested person'' must first exhaust all applicable tribal 
remedies, if any.\57\ The regulations set forth the petitioning 
process in detail and provide the Indian tribe with significant 
opportunities to deny, address, or otherwise resolve the 
allegations. If, in the end, the Secretary determines that the 
tribe is in violation of the TERA, the Secretary must take 
``such action as the Secretary determines to be necessary to 
ensure compliance'' with the TERA, including suspending 
activities under a lease, agreement, or right-of-way or 
rescinding approval of all or part of the TERA.\58\
---------------------------------------------------------------------------
    \56\25 U.S.C. Sec. 3504(e)(7)(A)-(B); 25 C.F.R. Sec. 224.100-
224.101 (emphasis added). As discussed supra at note 34 and in the 
accompanying text, the ITEDSDA used TERAs in lieu of tribal regulations 
approved by the Secretary, as in the case of the Navajo Nation Trust 
Land Leasing Act of 2000 (25 U.S.C. Sec. 415(e)) and the Helping 
Expedite and Advance Responsible Tribal Home Ownership Act of 2012 
(Pub. L. No. 112-151, 126 Stat. 1150 [hereinafter HEARTH Act], 
providing similar authority for all Indian tribes to enter into surface 
leases without the Secretary's approval if done pursuant to tribal 
regulations that had been approved by the Secretary. Under the TERA 
process, a third-party petitioner must complain that that the Indian 
tribe has violated an agreement (i.e., a TERA) entered into between the 
United States and the Indian tribe. See 25 U.S.C. Sec. 3504(e)(7)(A)-
(B); 25 C.F.R. Sec. 224.100-224.101. The Indian canons of construction 
dictate that treaties and agreements between the United States and 
Indian tribes must be liberally construed in favor of the tribe; 
therefore, TERAs should be construed in favor of the tribe when the 
Secretary is entertaining a third-party petition. See Worcester v. 
Georgia, 31 U.S. 515, 552-53, 582 (1832); Choate v. Trapp, 224 U.S. 
665, 675 (1912); and County of Oneida v. Oneida Indian Nation, 470 U.S. 
226, 147 (1985). Further, Sec. 3504(e)(6) requires the Secretary to 
carry out the section ``in good faith and in the best interests of the 
Indian tribes.'' See also 25 C.F.R. Sec. 224.40.
    \57\25 U.S.C. Sec. 3504(e)(7)(B); 25 C.F.R. Sec. 224.100.
    \58\25 U.S.C. Sec. 3504(e)(7)(D)(iii); 25 C.F.R. Sec. 224.120.
---------------------------------------------------------------------------
    (iv) An Indian tribe with an approved TERA may rescind it 
in its own discretion.\59\
---------------------------------------------------------------------------
    \59\25 U.S.C. Sec. 3504(e)(8)(B); 25 C.F.R. Sec. 224.170-224.175.
---------------------------------------------------------------------------
    (v) Like the IMDA, the Navajo Nation Trust Land Leasing 
Act, and, the HEARTH Act, the TERA provisions of the ITEDSDA 
include a liability waiver clause\60\ that protects the United 
States. However, the liability waiver provision in ITEDSDA is 
intended to be narrower than the corresponding clauses in those 
other three acts. The ITEDSDA waiver protects the United States 
only from liability for those matters over which the Secretary 
has no control--namely, from losses resulting from the 
``negotiated terms'' of leases, business agreements, and 
rights-of-way.\61\ ``Negotiated term'' is defined for purposes 
of this clause as ``any term or provision that is negotiated by 
an Indian tribe and any other party to a lease, business 
agreement, or right-of-way entered into pursuant to an 
approved'' TERA.\62\ The clause would not protect the United 
States from losses resulting from the Secretary's own failure 
to carry out obligations imposed on the Secretary under the 
ITEDSDA--for example, from failure to conduct a periodic review 
and evaluation or from a failure to protect the tribe's 
interests as a result of a breach of a lease or business 
agreement.\63\
---------------------------------------------------------------------------
    \60\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
    \61\25 U.S.C. Sec. 3504(e)(6)(D)(i).
    \62\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
    \63\Nor would the clause protect the United States from liability 
for losses resulting from a lease, agreement, or right-of-way that was 
entered into by the Indian tribe and a third party but that was not 
authorized under the terms of the tribe's TERA. For instance, as noted 
above, the TERA might only authorize development of a specific kind of 
energy resource, such as wind energy. If the Indian tribe proceeds to 
enter into a solar project agreement or an oil and gas or coal lease, 
and provides a copy of the lease to the Secretary pursuant to 25 C.F.R. 
Sec. 224.83(b), it seems unlikely the United States could argue 
successfully that any losses resulted from the ``negotiated terms'' of 
a lease entered into ``pursuant to an approved tribal energy resource 
agreement.''
---------------------------------------------------------------------------
    Tribal concerns with the TERA process under current law. 
During the listening sessions before the introduction of prior 
bills and subsequently, tribal representatives expressed 
concerns about certain aspects of the TERA process under 
current law. These concerns were, by and large, the same 
concerns discussed in two law review articles about the 
ITEDSDA, one by Professor Judith V. Royster\64\ and the other 
by Benjamin J. Fosland.\65\
---------------------------------------------------------------------------
    \64\Judith V. Royster, Practical Sovereignty, Political 
Sovereignty, and the Indian Tribal Energy Development and Self-
Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008).
    \65\Benjamin J. Fosland, A Case of Not-So-Fatal Flaws: Re-
Evaluating the Indian Tribal Energy and Self-Determination Act, 48 
Idaho L. Rev. 447 (2012).
---------------------------------------------------------------------------
    In her article on the ITEDSDA, Professor Royster identifies 
and discusses four areas of concern raised by tribal 
representatives regarding the TERA process.\66\ In his article, 
Benjamin J. Fosland addresses the same basic areas of concern 
but in three broad categories:
---------------------------------------------------------------------------
    \66\These are (1) not all tribal trust resources are covered by the 
TERA provisions of the ITEDSDA, including non-energy minerals like 
clay, sand and gravel; (2) lack of access to financial, technical, and 
scientific resources to carry out the TERA; (3) the prospect of public 
involvement in tribal decision-making (including during the Secretary's 
review of a proposed TERA, the tribal environmental review process 
required to be covered by a TERA under the ITEDSDA, and the process of 
``interested party'' petitions); and (4) implications for the Federal 
trust responsibility. See Royster, supra note 64 at 1087-1101. Some of 
these concerns were echoed by tribal representatives to Committee staff 
prior to and after the introduction of the bill. The comment most often 
heard was that the ITEDSDA does not include financial assistance for 
Indian tribes that enter into TERA. The trust responsibility concern 
was mentioned but less prominently, perhaps reflecting a growing 
awareness among Indian tribes that the liability waiver in the ITEDSDA 
is narrower than that in the IMDA and that the ITEDSDA requires 
considerable involvement of the Secretary in protecting the tribal 
interest notwithstanding the approval of a TERA.
---------------------------------------------------------------------------
           (1) many Indian tribes ``lack the resources to make 
        the resource agreement system feasible'';
           (2) the requirement of public comment in the tribe's 
        decision-making is anathema to tribal sovereignty and 
        self-government; and
           (3) the Federal government is relieved of the trust 
        responsibility after a tribe enters into a TERA.\67\
---------------------------------------------------------------------------
    \67\Fosland, supra note 65 at 449.
---------------------------------------------------------------------------
    He concludes that all three criticisms of the ITEDSDA ``are 
largely unwarranted.'' These concerns and the professors'' 
analyses are discussed in significant detail in prior Committee 
Reports.\68\ However, certain key points are reiterated herein.
---------------------------------------------------------------------------
    \68\S. Rep. No. 113-224 (2014); S. Rep. No. 112-263 (2012).
---------------------------------------------------------------------------
    Broad tribal support\69\ for the HEARTH Act\70\ passed in 
2012 suggests that, whatever the concerns over a statutory 
requirement of public input in a tribe's energy development 
process may have been when the ITEDSDA was adopted in the 109th 
Congress, those concerns appear to have diminished somewhat in 
the intervening years in light of the fact that the HEARTH Act 
has similar requirements for public involvement.\71\ The same 
applies to concerns over the ``interested party'' challenges 
authorized in the ITEDSDA. The HEARTH Act, which is similar to 
the TERA process, authorizes interested parties to petition the 
Secretary and complain that an Indian tribe is violating its 
own leasing regulations.\72\
---------------------------------------------------------------------------
    \69\See S. 703, the Helping Expedite and Advance Responsible Tribal 
Homeownership Act of 2011, Hearing Before S. Comm. on Indian Affairs, 
112th Cong. 64 (2011) (statement of Cheryl A. Causley, Chairwoman, 
National American Indian Housing Council); H.R. 205, the HEARTH Act of 
2011: Hearing Before the Subcomm. on Indian and Alaska Native Affairs 
of the H. Natural Resources Comm., 112th Cong. 20-21 (2011) (statement 
of Floyd Tortalita, Vice-Chairman, National American Indian Housing 
Council); S. 703, the Helping Expedite and Advance Responsible Tribal 
Homeownership Act of 2011: Hearing Before S. Comm. on Indian Affairs, 
112th Cong. 59 (2011) (statement of Robert Tippeconnie, Southern Plains 
Area Vice President, National Congress of American Indians).
    \70\Pub. L. No. 112-151, 126 Stat. 1150. Section 2 of the HEARTH 
Act amends 25 U.S.C. Sec. 415 by adding at the end a new subsection 
(h), authorizing tribal leasing of surface tribal trust lands without 
approval of the Secretary if done pursuant to tribal regulations that 
have been approved by the Secretary. The HEARTH Act is essentially the 
same authority as provided in the Navajo Nation Trust Land Leasing Act 
of 2000 (which is set forth in subsection (e) of section 415), except 
that it is available for all Indian tribes with tribal trust lands.
    \71\Id.
    \72\Id.
---------------------------------------------------------------------------
    In regard to concerns over the ITEDSDA and the trust 
responsibility, Professor Royster points out that ``one 
significant difference between the IMDA and the ITEDSDA . . . 
[is that] under the IMDA, the Secretary approves or disapproves 
each specific agreement for mineral development . . . [and] is 
bound not only by the vague `best interest of the Indian tribe' 
standard, but is instructed to consider such factors as 
potential economic return, financial effects on the tribe, 
marketability of the minerals, and environmental, social, and 
cultural effects on the tribe.''\73\
---------------------------------------------------------------------------
    \73\Royster, supra note 64 at 1099-1100.
---------------------------------------------------------------------------
    She concludes that, while ``failure to consider or 
adequately account for specified factors might subject the 
government to damages for breach of trust,'' relying on ``the 
good faith of the government can be a dangerous thing'' given 
the outcome of United States v. Navajo Nation\74\ and that 
``tribal trust in the government may, and should be, a thing of 
the past. . . . Tribes need, as a practical matter if nothing 
else, to look out for their own interests.''\75\ Again, despite 
the fact that the recently enacted HEARTH Act has a very 
explicit and more expansive direct liability waiver clause,\76\ 
the Indian tribes vigorously supported the adoption of the Act 
in 2012, suggesting that many tribes have reached some level of 
comfort with the implications of these clauses.
---------------------------------------------------------------------------
    \74\537 U.S. 488 (2003).
    \75\Royster, supra note 64 at 1100-1101. However, to impose 
liability on the government, a court would have to find a way around 
the express waiver in 25 U.S.C. Sec. 2103(e).
    \76\``The United States shall not be liable for losses sustained by 
any party to a lease executed pursuant to tribal regulations under 
paragraph (1).'' HEARTH Act Sec. 2.
---------------------------------------------------------------------------
    At the legislative hearing held by the Committee on S. 2132 
during the 113th Congress, the Administration expressed 
concerns about the waiver of liability provisions in the bill 
and recommended replacing the waiver of liability provisions 
that apply to tribal energy resource agreements with the waiver 
of liability provision in the HEARTH Act.\77\ The 
Administration testified the waiver of liability under a TERA 
and under the HEARTH Act is ``slightly different language to 
reach the same basic meaning'' and that it ``doesn't accomplish 
much difference.''\78\
---------------------------------------------------------------------------
    \77\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes, Before the S. Comm. 
on Indian Affairs, 113th Cong. (2014) (testimony by Kevin Washburn, 
Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, U.S. 
Department of the Interior).
    \78\Id.
---------------------------------------------------------------------------
    The Committee strongly disagrees. The HEARTH Act has a 
liability waiver that is broader than the TERA liability 
waiver. The HEARTH Act absolves the United States of liability 
``for losses sustained by any party to a lease executed 
pursuant to tribal regulations'' approved by the Secretary 
under the HEARTH Act.\79\ In contrast, for TERAs, under both 
the ITEDSDA and this bill, the United States is only absolved 
of liability ``for any negotiated term of a lease, business 
agreement, or right-of-way executed pursuant . . . to a tribal 
energy resource agreement.''\80\
---------------------------------------------------------------------------
    \79\Pub. L. No. 112-151, 126 Stat. 1150 (codified at 25 U.S.C. 
Sec. 415(h)(7)(A)).
    \80\25 U.S.C. Sec. 3504(e)(6)(D).
---------------------------------------------------------------------------
    When an Indian tribe is operating under a TERA, the United 
States is still liable for any actions or losses that are not a 
negotiated term, whereas when a tribe is operating under 
regulations approved by the Secretary under the HEARTH Act the 
liability of the United States is much more limited.\81\ The 
Committee is concerned that adopting the waiver of liability in 
the HEARTH Act could compromise the waiver of liability 
applicable to TERAs that was carefully examined, negotiated and 
enacted in Title V of the Energy Policy Act of 2005.\82\ For 
these reasons, the Committee will maintain the liability 
language contained in ITEDSDA and as clarified in S. 209 (and 
S.2132 from the 113th Congress).
---------------------------------------------------------------------------
    \81\``Negotiated term is defined as ``any term or provision that is 
negotiated by an Indian tribe and any other party to a lease, business 
agreement, or right-of-way entered into pursuant to an approved tribal 
energy resource agreement.'' 25 U.S.C. Sec. 3504(e)(6)(D)(i).
    \82\Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119 
Stat. 594 (2005).
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                     Key Amendments to the ITEDSDA

    This bill, S.209, incorporates all but one of the 
amendments approved during the 113th Congress at the Committee 
business meeting convened on February 4, 2014. The bill also 
incorporates provisions developed through subsequent 
negotiations during the 113th Congress which clarified some 
portions of the biomass demonstration project in Alaska. The 
following is a description of the key provisions of the bill 
S.209.

Amendments to the TERA process of the ITEDSDA

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

Other Amendments to the ITEDSDA

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

Other Amendments to Federal Laws

    Amendment to Federal Power Act. Section 201 of the bill 
would amend section 7(a) of the Federal Power Act\96\ to make 
the provisions of that section applicable to Indian tribes 
(along with States and municipalities). However, this section 
of the bill also provides that it does not affect preliminary 
permits or original licenses issued before the enactment date 
of the bill or any application for an original license if the 
Commission has issued a notice of accepting the application for 
filing before the enactment date of the bill. The Committee 
notes that to receive a preference for a preliminary permit 
application, the proposed project must be located in the 
vicinity of the Indian tribe's lands.
---------------------------------------------------------------------------
    \96\16 U.S.C. Sec. 800(a).
---------------------------------------------------------------------------
    Amendments to Federal Weatherization Program. Section 203 
of the bill would amend the Energy Conservation and Production 
Act\97\ to facilitate direct funding of Indian tribes to carry 
out the weatherization program. The amendment leaves intact the 
amount authorized to be reserved from State funding under 
current law but authorizes direct funding (1) if requested by 
the tribal organization and (2) the Secretary of Energy 
determines that the low-income members of the Indian tribe will 
be equally or better served by direct funding rather than 
through the State. The bill would also create a presumption 
that a tribally designated housing entity in good standing 
under the Native American Housing Assistance and Self-
Determination Act of 1996\98\ would presumptively qualify as 
equally or better serving the low-income tribal members.
---------------------------------------------------------------------------
    \97\42 U.S.C. Sec. 6863(d).
    \98\25 U.S.C. Sec. 4101, et. seq.
---------------------------------------------------------------------------
    Biomass demonstration projects. Section 202 of the bill 
would amend the Tribal Forest Protection Act of 2004\99\ (TFPA) 
to add a new section at the end of that Act authorizing a 
biomass demonstration project for Indian tribes. This section 
would also authorize a similar demonstration project for Alaska 
Native corporations (but not as part of the amendment to the 
TFPA). With respect to the demonstration projects under the 
TFPA, the bill would require that at least four new 
demonstration projects be carried out from 2015 to 2019, with 
Indian tribes to be selected based on several enumerated 
criteria. The bill would allow participating tribes to enter 
into stewardship contracts with the Secretary of Agriculture or 
of the Interior that include Federal lands for terms not to 
exceed 20 years and a renewal term not to exceed 10 years, as 
opposed to the 10-year limitation on those contracts under 
current law.
---------------------------------------------------------------------------
    \99\Pub. L. No. 108-278, 118 Stat. 868 (2004).
---------------------------------------------------------------------------
    Amendments to Long-Term Leasing Act for the Navajo Nation. 
Section 205 of the bill would amend subsection (e) of the Long-
Term Leasing Act,\100\ which regards the Navajo Nation, to 
remove a limitation in that subsection on the exploration, 
development, or extraction of mineral resources. With this 
limitation in current law, subsection (e) authorizes only 
surface leases without approval of the Secretary. The bill 
would amend the subsection so that it would also authorize 
mineral leasing with a term not to exceed 25 years or, in the 
case of oil and gas, for 10 years plus any additional time that 
``the Navajo Nation determines to be appropriate where oil or 
gas is produced in a paying quantity.''
---------------------------------------------------------------------------
    \100\25 U.S.C. Sec. 415(e).
---------------------------------------------------------------------------
    Extension of tribal lease period for the Crow Tribe of 
Montana. Section 206 of the bill would add the Crow Tribe to 
the list of Indian tribes that are authorized under 25 U.S.C. 
Sec. 415(a) to enter into public, religious, educational, 
recreational, residential, or business leases for terms up to 
99 years, with the approval of the Secretary.
    Trust status of lease payments. Section 207 of the bill 
would require the Secretary, upon request of the Indian tribe 
or individual Indian, to hold in trust any advance payments, 
bid deposits, or other earnest money received by the Secretary 
of the Interior, in connection with the review and Secretarial 
approval of a sale, lease, or permit. Upon approval or 
disapproval of the conveyance instrument, the funds and the 
interest would be disbursed to the appropriate party.

                          Legislative History

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

                      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 
2014'' (hereinafter, the ``Act'').

Section 2. Table of contents

    Section 2 sets forth the table of contents.

Section 101. Indian tribal energy resource development

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

Section 102. Indian tribal energy resource regulation

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

Section 103. Tribal energy resource agreements

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

Section 104. Technical assistance for Indian tribal governments

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

Section 105. Conforming amendments

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

Section 201. Issuance of preliminary permits and licenses

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

Section 202. Tribal biomass demonstration project

    Section 202 of the Act establishes a biomass demonstration 
project for Indian tribes and Alaska Native corporations to 
promote biomass energy production.
    Section 202(b) amends the Tribal Forest Protection Act of 
2004 to promote biomass energy production on Indian forest land 
and in nearby communities. This subsection requires the 
Secretary of the Interior (or, where applicable, the Secretary 
of Agriculture) to enter into stewardship contracts or similar 
agreements for a term of up to 20 years, and a renewal term of 
up to 10 years, with Indian tribes to harvest woody biomass 
from Federal land. During each year, beginning fiscal year 
2015, at least four demonstration projects shall be carried out 
under these contracts or agreements.
    This subsection requires the Secretary of the Interior and 
the Secretary of Agriculture to take into consideration a 
number of factors when considering a proposed demonstration 
project, such as whether a project would improve the forest 
health or watersheds of Federal land or Indian forest land or 
rangeland. The amendment excludes from the demonstration 
projects any merchantable logs that have been identified by the 
Secretary for commercial sale.
    In carrying out the contracts under this subsection, the 
Secretary shall incorporate management plans in effect on 
Indian forest land or rangeland of the respective Indian tribe 
into the agreement. The Secretary would be required to submit 
to Congress a report that describes each individual application 
received and each contract and agreement entered into under 
this subsection.
    Section 202(c) requires the Secretary to enter into a 
stewardship contract or similar agreement with 1 or more tribes 
(as defined by Section 4 of the Indian Self-Determination and 
Education Assistance Act) in Alaska for each of fiscal years 
2015 through 2019. This subsection requires the Secretary to 
enter into a stewardship contract or similar agreement, for a 
term of up to 20 years.
    It also authorizes a renewal term of up to 10 years to 
carry out a demonstration project to promote biomass energy 
production on certain forest lands and in nearby communities 
providing reliable supplies of woody biomass from Federal land. 
Under subsection (c), the Secretary shall take into 
consideration a number of factors when considering a proposed 
demonstration project, such as whether a project would improve 
the forest health or watersheds of Federal land or Indian 
forest land or rangeland.
    The section excludes from the demonstration projects any 
merchantable logs that have been identified by the Secretary 
for commercial sale. The Secretary shall also submit to 
Congress a report that describes each individual application 
received and each contract and agreement entered into under 
this subsection.

Section 203. Weatherization program

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

Section 204. Appraisals

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

Section 205. Leases of restricted lands for Navajo Nation

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

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

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

Section 207. Trust status of lease payments

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

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated February 25, 2015, was 
prepared for S. 209:

S. 209--Indian Tribal Energy Development and Self-Determination Act 
        Amendments of 2015

    S. 209 would make various amendments to existing energy 
programs on tribal lands. Based on information provided by the 
affected agencies, CBO estimates that implementing the 
legislation would have no significant effect on the federal 
budget over the 2015-2020 period. Because enacting the bill 
would not affect direct spending or revenues, pay-as-you-go 
procedures do not apply.
    The bill would modify the process tribes use to enter into 
energy resource agreements, which shift various management 
functions related to energy development on tribal lands from 
the federal government to tribes. Under the bill, if a tribe 
takes over the management of activities that would have been 
managed by the Department of the Interior (DOI), the Secretary 
would be required to pay the tribe an amount equal to the 
amount that the agency would have spent to carry out those 
activities. Because the bill would require the agency to make 
payments to the tribe only if the agency received appropriated 
funds to carry out those activities, CBO estimates that 
implementing that provision would have no net effect on the 
federal budget.
    S. 209 would make various other changes to how energy 
resources are developed on tribal lands that would have no 
significant effect on the federal budget. Under the bill, the 
Department of Energy would collaborate with the national 
laboratories to provide technical assistance to tribal 
governments. The bill would establish a pilot program for 
tribes to use nonmarketable timber from neighboring federal 
lands for energy development. S. 209 also would authorize the 
Navajo Nation to enter into commercial and agricultural leases 
for up to 99 years. The Navajo Nation also would be authorized 
to enter into mineral resource leases without DOI approval for 
25 years. Any income resulting from those leases would be paid 
directly to the tribal owners or to the appropriate tribal 
government and would have no impact on the federal budget.
    S. 209 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Tribes would benefit from greater flexibility and assistance 
authorized by the bill for energy development. Any cost to 
tribes would be incurred voluntarily.
    The CBO staff contacts for this estimate are Martin von 
Gnechten (for federal costs) and Melissa Merrell (for the 
impact on state, local and tribal governments). The estimate 
was approved by Theresa Gullo, Deputy Assistant Director for 
Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 209 would 
have a minimal impact on regulatory or paperwork requirements.

                        Executive Communications

    The Committee has not received any formal communication on 
S. 209 from the Administration.

                        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 
S. 2132, as ordered reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic):

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

Sec. 3501. Definitions

    In this chapter:

           *       *       *       *       *       *       *

          [(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. Sec. 3502 (Energy Policy Act of 1992)

Sec. 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 [tribal energy 
        resource development organizations] tribal 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 [tribal 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 
                [tribal 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 [tribal 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; and
                  (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;
                          (iii) recommended standards for 
                        reviewing the implementation of tribal 
                        environmental laws and policies within 
                        tribal judicial or other tribal appeals 
                        systems.; 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 in 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;
                          (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 tribal 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;
                  [(C)](D) planning, construction, development, 
                operation, maintenance, and improvement of 
                tribal electrical generation, transmission, and 
                distribution facilities located on Indian land; 
                and
                  [(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.
          [(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--
                  (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.
          [(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.
          [(5)](6) The Secretary of Energy may issue such 
        regulations as the Secretary determines to be necessary 
        to carry out this subsection.
          [(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 [guarantee] guaranteed under this 
        subsection shall be made by--
                  (A) a financial institution subject to 
                examination by the Secretary of Energy; [or]
                  (B) an Indian tribe, from funds of the Indian 
                tribe[.]; 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.
          (5) [The 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 2015, 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. Sec. 3503 (Energy Policy Act of 1992)

Sec. 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 [on 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. Sec. 3504 (Energy Policy Act of 1992)

Sec. 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; [or]
                  (B) construction or operation of--
                          [(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; [and] 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 
                mineral resources owned by the Indian tribe or 
                an individual 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
          [(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--
                  [(A) the lease or business agreement is 
                executed pursuant to a tribal energy resource 
                agreement approved by the Secretary under 
                subsection (e);
                  [(B) the term of the lease or business 
                agreement 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; and
                  [(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 the tribal 
                                land of which is being 
                                developed); 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.
    [(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--
          [(1) the right-of-way is executed in accordance with 
        a tribal energy resource agreement approved by the 
        Secretary under subsection (e);
          [(2) the term of the right-of-way does not exceed 30 
        years;
          [(3) the pipeline or electric transmission or 
        distribution line serves--
                  [(A) an electric generation, transmission, or 
                distribution facility located on tribal land; 
                or
                  [(B) a facility located on tribal land that 
                processes or refines energy resources developed 
                on tribal land; and
          [(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 the tribal 
                        land of which is being developed); 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.
    [(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).]
    (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.--
          [(1) On the date on which regulations are promulgated 
        under paragraph (8), an Indian tribe may submit to the 
        Secretary a tribal energy resource agreement governing 
        leases, business agreements, and rights-of-way under 
        this section.]
          (1) In general.--On or after the date of enactment of 
        the Indian Tribal Energy Development and Self-
        Determination Act Amendments of 2014, an Indian tribe 
        may submit to the Secretary a tribal energy resource 
        agreement governing leases, business agreements, and 
        rights-of-way under this section.
          [(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 
                        agreement.--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).
                  [(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--
                          [(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
                          [(ii) the tribal energy resource 
                        agreement includes provisions required 
                        under subparagraph (D); and]
                          [(iii)](iv) the tribal energy 
                        resource agreement [includes 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 
                                right-of-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);
                                  (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
                                  [(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]
                                  [(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 
                                        [or 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;
                          [(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 [proposed 
                                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, business 
agreement, or right-of-way entered into pursuant to the tribal 
energy resource agreement, to determine whether the activities 
are in compliance with the tribal energy resource agreement and 
applicable Federal environmental laws[.]; 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 [subparagraph 
                        (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 preliminary 
                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 (including any 
                preliminary determination) that the Indian 
                tribe lacks the requisite capacity shall be 
                treated as a disapproval 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)(aa) 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
                                  (bb) 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 the 
                                        environment, tribal 
                                        land, realty, or 
                                        natural resources; or
                                  (II) the Indian tribe has 
                                carried out approval of surface 
                                leases under subsection (h) of 
                                the first section of the Act of 
                                August 9, 1955 (commonly known 
                                as the `Long-Term Leasing Act') 
                                (25 U.S.C. 415(h)) for the 
                                previous calendar year without 
                                a finding of a compliance 
                                violation under 25 U.S.C. 
                                415(h)(8)(B); or
                          (ii) the Secretary fails to make the 
                        preliminary determination within the 
                        time allowed under subparagraph (G)(i) 
                        (including any extension of time agreed 
                        to under that subparagraph).
          [(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.
          [(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 [date of disapproval--] date of 
        disapproval, provide the Indian tribe with--
                  [(A) notify the Indian tribe in writing of 
                the basis for the disapproval;
                  [(B) identify what changes or other actions 
                are required to address the concerns of the 
                Secretary; and
                  [(C) provide the Indian tribe with an 
                opportunity to revise and resubmit the tribal 
                energy resource agreement.]
                  (A) a detailed, written explanation of--
                          (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.
          [(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 
        [approved] 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-of-way 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.
          [(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.
                  [(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 [approved] in effect under this 
                section, and the provisions of [subparagraph 
                (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 right-of-way under this 
                        section; or
                          (ii) any provision in a lease, 
                        business agreement, or right-of-way 
                        violates the tribal energy resource 
                        agreement 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 [an 
                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 [approved 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-of-way 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.
          [(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 [has 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 
                [approved by the Secretary] in effect under 
                paragraph (2).
                  (B) After exhaustion of [any 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 
                [approved 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--
                          (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 
                [determine 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 
                [determination] 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 [agreement, 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 [approved] tribal 
                        energy resource agreement; or
                          (II) rescinding [approval 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 [subsection 
                        (a) or (b)] subsection (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 
                        describes [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.
                  (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 right-of-
                        way under this subsection; and
                          (iii) amend an approved tribal energy 
                        resource agreement to assume authority 
                        for approving leases, business 
                        agreements, or rights-of-way for 
                        development of another energy resource 
                        that is not included in an approved 
                        tribal energy resource agreement 
                        without being required to apply for a 
                        new tribal energy resource agreement;
                  (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).
          (9) Effect.--Nothing in this section authorizes the 
        Secretary to deny a tribal energy resource agreement or 
        any amendment to a tribal energy resource agreement, or 
        limit the effect or implementation of this section, due 
        to lack of promulgated regulations.
    (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 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 2014.
                  (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 
                        2014;
                          (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 
        2014, 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 tribe (or the 
                Indian tribe and 1 or more other Indian tribes 
                the tribal land of which is being developed); 
                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 the tribal land of 
                which is being developed) 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 the 
                        tribal land of which is being 
                        developed);
                          (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 the tribal land of which is 
                        being developed) 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.
    [(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. Sec. 3506 (Energy Policy Act of 1992)

Sec. 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 [energy resource 
        development] energy development organization, and 
        Western Area Power Administration customers to 
        demonstrate the feasibility and potential of using wind 
        energy 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. Sec. 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. Sec. 800 (Federal Power Act)

Sec. 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 [States 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.

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

Sec. 6863. Weatherization program

           *       *       *       *       *       *       *

    (d) Direct Grants to Low-income Members of Indian Tribal 
Organizations or Alternate Service Organizations; Application 
for Funds.--
          [(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--
                          (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.
                  (C) Presumption.--If the tribal organization 
                requesting the grant is a tribally designated 
                housing entity (as defined in section 4 of the 
                Native American Housing Assistance and Self-
                Determination Act of 1996 (25 U.S.C. 4103)) 
                that has operated without material audit 
                exceptions (or without any material audit 
                exceptions that were not corrected within a 3-
                year period), the Secretary shall presume that 
                the low-income members of the applicable Indian 
                tribe would be equally or better served by 
                making a grant directly to the tribal 
                organization than by a grant made to the State 
                in which the low-income members reside.
          (2) [The sums] Administration.--The amounts reserved 
        by the Secretary [on the basis of his determination] 
        under this subsection shall be granted to the tribal 
        organization serving the [individuals 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 [he] the 
        Secretary determines has the capacity to provide 
        services pursuant to this part.
          (3) [In 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, which further the purpose of this 
part.

The Tribal Forest Protection Act of 2004 (25 U.S.C. Sec. 3115a)

           *       *       *       *       *       *       *

SEC. 2. TRIBAL FOREST ASSETS PROTECTION.

    (a) Definitions.--[In this section] In this Act:
          (1) Federal land.--The term ``Federal land'' means--
                  (A) land of the National Forest System (as 
                defined in section 11(a) of the Forest and 
                Rangeland Renewable Resources Planning Act of 
                1974 (16 U.S.C. 1609(a)) administered by the 
                Secretary of Agriculture, acting through the 
                Chief of the Forest Service; and
                  (B) public lands (as defined in section 103 
                of the Federal Land Policy and Management Act 
                of 1976 (43 U.S.C. 1702)), the surface of which 
                is administered by the Secretary of the 
                Interior, acting through the Director of the 
                Bureau of Land Management.
        (2) Indian forest land or rangeland.--The term ``Indian 
        forest land or rangeland'' means land that--
                  (A) is held in trust by, or with a 
                restriction against alienation by, the United 
                States for an Indian tribe or a member of an 
                Indian tribe; and
                  (B) (i)(I) is Indian forest land (as defined 
                in section 304 of the National Indian Forest 
                Resources Management Act (25 U.S.C. 3103)); or
                  (II) has a cover of grasses, brush, or any 
                similar vegetation; or
                          (ii) formerly had a forest cover or 
                        vegetative cover that is capable of 
                        restoration.
          (3) Indian tribe.--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).
          (4) Secretary.--The term ``Secretary'' means--
                  (A) the Secretary of Agriculture, with 
                respect to land under the jurisdiction of the 
                Forest Service; and
                  (B) the Secretary of the Interior, with 
                respect to land under the jurisdiction of the 
                Bureau of Land Management.

           *       *       *       *       *       *       *

SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT.

    (a) Stewardship Contracts or Similar Agreements.--For each 
of fiscal years 2015 through 2019, 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
                  (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, 2017, 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. Sec. 415

Sec. 415. Leases of restricted lands

    (a) Authorized Purposes; Term; Approval by Secretary.--Any 
restricted Indian lands, whether tribally or individually 
owned, may be leased by the Indian owners, with the approval of 
the Secretary of the Interior, for public, religious, 
educational, recreational, residential, or business purposes, 
including the development or utilization of natural resources 
in connection with operations under such leases, for grazing 
purposes, and for those farming purposes which require the 
making of a substantial investment in the improvement of the 
land for the production of specialized crops as determined by 
said Secretary. All leases so granted shall be for a term of 
not to exceed twenty-five years, except leases of land located 
outside the boundaries of Indian reservations in the State of 
New Mexico, leases of land on the Aqua Caliente (Palm Springs) 
Reservation, the Dania Reservation, the Pueblo of Santa Ana 
(with the exception of the lands known as the ``Santa Ana 
Pueblo Spanish Grant''), the reservation of the Confederated 
Tribes of the Warm Springs Reservation of Oregon, land held in 
trust for the Coquille Indian Tribe, land held in trust for the 
Confederated Tribes of Siletz Indians, land held in trust for 
the Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw 
Indians, land held in trust for the Klamath Tribes, and land 
held in trust for the Burns Paiute Tribe, the Moapa Indian 
Reservation, the Swinomish Indian Reservation, the Southern Ute 
Reservation, the Fort Mojave Reservation, the Confederated 
Tribes of the Umatilla Indian Reservation, the Burns Paiute 
Reservation, the Coeur d'Alene Indian Reservation, the Kalispel 
Indian Reservation and land held in trust for the Kalispel 
Tribe of Indians, the Puyallup Tribe of Indians, the pueblo of 
Cochiti, the pueblo of Pojoaque, the pueblo of Tesuque, the 
pueblo of Zuni, the Hualapai Reservation, the Spokane 
Reservation, the San Carlos Apache Reservation, the Yavapai-
Prescott Community Reservation, the Pyramid Lake Reservation, 
the Gila River Reservation, the Soboba Indian Reservation, the 
Viejas Indian Reservation, the Tulalip Indian Reservation, the 
Navajo Reservation, the Cabazon Indian Reservation, the 
Muckleshoot Indian Reservation and land held in trust for the 
Muckleshoot Indian Tribe, the Mille Lacs Indian Reservation 
with respect to a lease between an entity established by the 
Mille Lacs Band of Chippewa Indians and the Minnesota 
Historical Society, leases of the lands comprising the Moses 
Allotment Numbered 8 and the Moses Allotment Numbered 10, 
Chelan County, Washington, and lands held in trust for the Las 
Vegas Paiute Tribe of Indians, and lands held in trust for the 
Twenty-nine Palms Band of Luiseno Mission Indians, and lands 
held in trust for the Reno Sparks Indian Colony, lands held in 
trust for the Torres Martinez Desert Cahuilla Indians, lands 
held in trust for the Guidiville Band of Pomo Indians of the 
Guidiville Indian Rancheria, lands held in trust for the 
Confederated Tribes of the Umatilla Indian Reservation, lands 
held in trust for the Confederated Tribes of the Warm Springs 
Reservation of Oregon, and lands held in trust for the Cow 
Creek Band of Umpqua Tribe of Indians, land held in trust for 
the Prairie Band Potawatomi Nation, lands held in trust for the 
Cherokee Nation of Oklahoma, land held in trust for the Fallon 
Paiute Shoshone Tribes, lands held in trust for the Pueblo of 
Santa Clara, lands held in trust for the Yurok Tribe, lands 
held in trust for the Hopland Band of Pomo Indians of the 
Hopland Rancheria, lands held in trust for the Confederated 
Tribes of the Colville Reservation, lands held in trust for the 
Cahuilla Band of Indians of California, lands held in trust for 
the Confederated Tribes of the Grand Ronde Community of Oregon, 
and the lands held in trust for the Confederated Salish and 
Kootenai Tribes of the Flathead Reservation, Montana, and 
leases to the Devils Lake Sioux Tribe, or any organization of 
such tribe, of land on the Devils Lake Sioux Reservation, land 
held in trust for the Crow Tribe of Montana, and lands held in 
trust for Ohkay Owingeh Pueblo which may be for a term of not 
to exceed ninety-nine years, and except leases of land held in 
trust for the Morongo Band of Mission Indians which may be for 
a term of not to exceed 50 years, and except leases of land for 
grazing purposes which may be for a term of not to exceed ten 
years. Leases for public, religious, educational, recreational, 
residential, or business purposes (except leases the initial 
term of which extends for more than seventy-four years) with 
the consent of both parties may include provisions authorizing 
their renewal for one additional term of not to exceed twenty-
five years, and all leases and renewals shall be made under 
such terms and regulations as may be prescribed by the 
Secretary of the Interior. Prior to approval of any lease or 
extension of an existing lease pursuant to this section, the 
Secretary of the Interior shall first satisfy himself that 
adequate consideration has been given to the relationship 
between the use of the leased lands and the use of neighboring 
lands; the height, quality, and safety of any structures or 
other facilities to be constructed on such lands; the 
availability of police and fire protection and other services; 
the availability of judicial forums for all criminal and civil 
causes arising on the leased lands; and the effect on the 
environment of the uses to which the leased lands will be 
subject.

           *       *       *       *       *       *       *

    (e) Leases of Restricted Lands for the Navajo Nation.--
          (1) Any leases by the Navajo Nation for purposes 
        authorized under subsection (a), and any amendments 
        thereto[, 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--
        --
                  [(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 regulations; 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. 

                                  [all]
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