177
energy resource development organizations in achiev-
ing the purposes of this title.
‘‘(2) In carrying out the Program, the Sec-
retary shall—
‘‘(A) provide development grants to Indian
tribes and tribal energy resource 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 produc-
tion and revenues;
‘‘(B) provide grants to Indian tribes and
tribal energy resource development organiza-
tions for use in carrying out projects to pro-
mote the integration of energy resources, and to
process, use, or develop those energy resources,
on Indian land; and
‘‘(C) provide low-interest loans to Indian
tribes and tribal energy resource development
organizations for use in the promotion of en-
ergy resource development on Indian land and
integration of energy resources.
‘‘(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.
178
‘‘(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 Direc-
tor may provide grants, on a competitive basis, to an
Indian tribe or tribal energy resource development
organization for use in carrying out—
‘‘(A) energy, energy efficiency, and energy
conservation programs;
‘‘(B) studies and other activities sup-
porting tribal acquisitions of energy supplies,
services, and facilities;
‘‘(C) planning, construction, development,
operation, maintenance, and improvement of
tribal electrical generation, transmission, and
distribution facilities located on Indian land;
and
‘‘(D) development, construction, and inter-
connection of electric power transmission facili-
ties located on Indian land with other electric
transmission facilities.
179
‘‘(3)(A) The Director may develop, in consulta-
tion with Indian tribes, a formula for providing
grants under this subsection.
‘‘(B) In providing a grant under this sub-
section, the Director shall give priority to an applica-
tion received from an Indian tribe with inadequate
electric service (as determined by the Director).
‘‘(4) The Secretary of Energy may issue such
regulations as necessary to carry out this subsection.
‘‘(5) There are authorized to be appropriated to
carry out this subsection such sums as are necessary
for each of fiscal years 2006 through 2016.
‘‘(c) DEPARTMENT OF ENERGY LOAN GUARANTEE
PROGRAM.—
‘‘(1) Subject to paragraph (3), the Secretary of
Energy may provide loan guarantees (as defined in
section 502 of the Federal Credit Reform Act of
1990 (2 U.S.C. 661a)) for not more than 90 percent
of the unpaid principal and interest due on any loan
made to any Indian tribe for energy development.
‘‘(2) A loan guarantee under this subsection
shall be made by—
‘‘(A) a financial institution subject to ex-
amination by the Secretary of Energy; or
180
‘‘(B) an Indian tribe, from funds of the In-
dian tribe.
‘‘(3) The aggregate outstanding amount guar-
anteed by the Secretary of Energy at any time under
this subsection shall not exceed $2,000,000,000.
‘‘(4) The Secretary of Energy may issue such
regulations as the Secretary of Energy determines
are necessary to carry out this subsection.
‘‘(5) There are authorized to be appropriated
such sums as are necessary to carry out this sub-
section, to remain available until expended.
‘‘(6) Not later than 1 year from the date of en-
actment of this section, the Secretary of Energy
shall report to Congress on the financing require-
ments of Indian tribes for energy development on In-
dian land.
‘‘(d) FEDERAL AGENCIES-INDIAN ENERGY PREF-
ERENCE.—
‘‘(1) In purchasing electricity or any other en-
ergy product or by-product, a Federal agency or de-
partment may give preference to an energy and re-
source production enterprise, partnership, consor-
tium, corporation, or other type of business organi-
zation the majority of the interest in which is owned
and controlled by 1 or more Indian tribes.
181
‘‘(2) In carrying out this subsection, a Federal
agency or department shall not—
‘‘(A) pay more than the prevailing market
price for an energy product or by-product; or
‘‘(B) obtain less than prevailing market
terms and conditions.
‘‘SEC. 2603. INDIAN TRIBAL ENERGY RESOURCE REGULA-
TION.
‘‘(a) GRANTS.—The Secretary may provide to Indian
tribes, on an annual basis, grants for use in accordance
with subsection (b).
‘‘(b) USE OF FUNDS.—Funds from a grant provided
under this section may be used—
‘‘(1) by an Indian tribe for the development of
a tribal energy resource inventory or tribal energy
resource on Indian land;
‘‘(2) by an Indian tribe for the development of
a feasibility study or other report necessary to the
development of energy resources on Indian land;
‘‘(3) by an Indian tribe (other than an Indian
Tribe in Alaska except the Metlakatla Indian Com-
munity) for the development and enforcement of
tribal laws (including regulations) relating to tribal
energy resource development and the development of
182
technical infrastructure to protect the environment
under applicable law;
‘‘(4) by a Native Corporation for the develop-
ment and implementation of corporate policies and
the development of technical infrastructure related
to energy development and environmental protection
under applicable law; and
‘‘(5) by an Indian tribe for the training of em-
ployees that—
‘‘(A) are engaged in the development of en-
ergy resources on Indian land; or
‘‘(B) are responsible for protecting the en-
vironment.
‘‘(c) OTHER ASSISTANCE.—In carrying out the obli-
gations of the United States under this title, the Secretary
shall ensure, to the maximum extent practicable and to
the extent of available resources, that upon the request
of an Indian tribe, the Indian tribe shall have available
scientific and technical information and expertise, for use
in the Indian tribe’s regulation, development, and manage-
ment of energy resources on Indian land. The Secretary
may fulfill this responsibility either directly, through the
use of Federal officials, or indirectly, by providing finan-
cial assistance to the Indian tribe to secure independent
assistance.
183
‘‘SEC. 2604. LEASES, BUSINESS AGREEMENTS, AND RIGHTS-
OF-WAY INVOLVING ENERGY DEVELOPMENT
OR TRANSMISSION.
‘‘(a) LEASES AND BUSINESS AGREEMENTS.—Subject
to the provisions of this section—
‘‘(1) an Indian tribe may, at its discretion,
enter into a lease or business agreement for the pur-
pose of energy resource development on tribal land,
including a lease or business agreement for—
‘‘(A) exploration for, extraction of, proc-
essing of, or other development of the Indian
tribe’s energy mineral resources located on trib-
al land; and
‘‘(B) construction or operation of an elec-
tric generation, transmission, or distribution fa-
cility located on tribal land or a facility to proc-
ess or refine energy resources developed on trib-
al land; and
‘‘(2) such lease or business agreement described
in paragraph (1) shall not require the approval of
the Secretary under section 2103 of the Revised
Statutes (25 U.S.C. 81) or any other provision of
law, if—
‘‘(A) the lease or business agreement is ex-
ecuted pursuant to a tribal energy resource
184
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 pro-
duction 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 Sec-
retary, as described in subsection (e), relating
to the development of energy resources on tribal
land (including the periodic review and evalua-
tion of the activities of the Indian tribe under
the agreement, to be conducted pursuant to the
provisions required by subsection (e)(2)(D)(i)).
‘‘(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 pipe-
line or an electric transmission or distribution line without
approval by the Secretary if—
185
‘‘(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 ex-
ceed 30 years;
‘‘(3) the pipeline or electric transmission or dis-
tribution 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 de-
scribed in subsection (e), relating to the development
of energy resources on tribal land (including the
periodic review and evaluation of the Indian tribe’s
activities under such agreement described in sub-
paragraphs (D) and (E) of subsection (e)(2)).
‘‘(c) RENEWALS.—A lease or business agreement en-
tered 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
186
resources pursuant to the provisions of this section shall
be valid unless the lease, business agreement, or right-of-
way is authorized by the provisions of a tribal energy re-
source agreement approved by the Secretary under sub-
section (e)(2).
‘‘(e) TRIBAL ENERGY RESOURCE AGREEMENTS.—
‘‘(1) On issuance of regulations under para-
graph (8), an Indian tribe may submit to the Sec-
retary for approval a tribal energy resource agree-
ment governing leases, business agreements, and
rights-of-way under this section.
‘‘(2)(A) Not later than 180 days after the date
on which the Secretary receives a tribal energy re-
source agreement submitted by an Indian tribe
under paragraph (1), or not later than 60 days after
the Secretary receives a revised tribal energy re-
source agreement submitted by an Indian tribe
under paragraph (4)(C), (or such later date as may
be agreed to by the Secretary and the Indian tribe),
the Secretary shall approve or disapprove the tribal
energy resource agreement.
‘‘(B) The Secretary shall approve a tribal en-
ergy resource agreement submitted under paragraph
(1) if—
187
‘‘(i) the Secretary determines that the In-
dian tribe has demonstrated that the Indian
tribe has sufficient capacity to regulate the de-
velopment of energy resources of the Indian
tribe;
‘‘(ii) the tribal energy resource agreement
includes provisions required under subpara-
graph (D); and
‘‘(iii) the tribal energy resource agreement
includes provisions that, with respect to a lease,
business agreement, or right-of-way under this
section—
‘‘(I) ensure the acquisition of nec-
essary 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 convey-
ance of the right-of-way;
‘‘(III) address amendments and re-
newals;
‘‘(IV) address the economic return to
the Indian tribe under leases, business
agreements, and rights-of-way;
188
‘‘(V) address technical or other rel-
evant requirements;
‘‘(VI) establish requirements for envi-
ronmental review in accordance with sub-
paragraph (C);
‘‘(VII) ensure compliance with all ap-
plicable environmental laws;
‘‘(VIII) identify final approval author-
ity;
‘‘(IX) provide for public notification of
final approvals;
‘‘(X) establish a process for consulta-
tion with any affected States concerning
off-reservation impacts, if any, identified
pursuant to the provisions required 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, in the event that any of its
provisions violates an express term or re-
quirement set forth in the tribal energy re-
189
source agreement pursuant to which it was
executed—
‘‘(aa) such provision shall be null
and void; and
‘‘(bb) if the Secretary determines
such provision to be material, the Sec-
retary shall have the authority to sus-
pend or rescind the lease, business
agreement, or right-of-way or take
other appropriate action that the Sec-
retary determines to be in the best in-
terest 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, busi-
ness agreement, or right-of-way is deliv-
ered to the Secretary in accordance with
regulations adopted pursuant to this sub-
section; and
‘‘(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 sub-
190
mitted to the Secretary pursuant to para-
graph (7)(B).
‘‘(C) Tribal energy resource agreements sub-
mitted under paragraph (1) shall establish, and in-
clude provisions to ensure compliance with, an envi-
ronmental review process that, with respect to a
lease, business agreement, or right-of-way under this
section, provides for—
‘‘(i) the identification and evaluation of all
significant environmental impacts (as compared
with a no-action alternative), including effects
on cultural resources;
‘‘(ii) the identification of proposed mitiga-
tion;
‘‘(iii) a process for ensuring that the public
is informed of and has an opportunity to com-
ment on the environmental impacts of the pro-
posed action before tribal approval of the lease,
business agreement, or right-of-way; and
‘‘(iv) sufficient administrative support and
technical capability to carry out the environ-
mental review process.
‘‘(D) A tribal energy resource agreement nego-
tiated between the Secretary and an Indian tribe in
accordance with this subsection shall include—
191
‘‘(i) provisions requiring the Secretary to
conduct a periodic review and evaluation to
monitor the performance of the Indian tribe’s
activities associated with the development of en-
ergy resources under the tribal energy resource
agreement; and
‘‘(ii) when such review and evaluation re-
sult in a finding by the Secretary of imminent
jeopardy to a physical trust asset arising from
a violation of the tribal energy resource agree-
ment or applicable Federal laws, provisions au-
thorizing the Secretary to take appropriate ac-
tions determined by the Secretary to be nec-
essary to protect such asset, which actions may
include reassumption of responsibility for activi-
ties associated with the development of energy
resources on tribal land until the violation and
conditions that gave rise to such jeopardy have
been corrected.
‘‘(E) The periodic review and evaluation de-
scribed in subparagraph (D) shall be conducted on
an annual basis, except that, after the third such an-
nual review and evaluation, the Secretary and the
Indian tribe may mutually agree to amend the tribal
energy resource agreement to authorize the review
192
and evaluation required by subparagraph (D) to be
conducted once every 2 years.
‘‘(3) The Secretary shall provide notice and op-
portunity for public comment on tribal energy re-
source agreements submitted for approval under
paragraph (1). The Secretary’s review of a tribal en-
ergy resource agreement under the National Envi-
ronmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) shall be limited to the direct effects of that ap-
proval.
‘‘(4) If the Secretary disapproves a tribal en-
ergy resource agreement submitted by an Indian
tribe under paragraph (1), the Secretary shall, not
later than 10 days after the date of disapproval—
‘‘(A) notify the Indian tribe in writing of
the basis for the disapproval;
‘‘(B) identify what changes or other ac-
tions are required to address the concerns of
the Secretary; and
‘‘(C) provide the Indian tribe with an op-
portunity to revise and resubmit the tribal en-
ergy resource agreement.
‘‘(5) If an Indian tribe executes a lease or busi-
ness agreement or grants a right-of-way in accord-
ance with a tribal energy resource agreement ap-
193
proved under this subsection, the Indian tribe shall,
in accordance with the process and requirements set
forth in the Secretary’s regulations adopted pursu-
ant to paragraph (8), provide to the Secretary—
‘‘(A) a copy of the lease, business agree-
ment, 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 re-
sponsibility of the United States to enforce the
terms of, and protect the Indian tribe’s rights
under, the lease, business agreement, or right-
of-way.
‘‘(6)(A) For purposes of the activities to be un-
dertaken by the Secretary pursuant to this section,
the Secretary shall—
‘‘(i) carry out such activities in a manner
consistent with the trust responsibility of the
United States relating to mineral and other
trust resources; and
194
‘‘(ii) act in good faith and in the best in-
terests of the Indian tribes.
‘‘(B) Subject to the provisions of subsections
(a)(2), (b), and (c) waiving the requirement of Sec-
retarial approval of leases, business agreements, and
rights-of-way executed pursuant to tribal energy re-
source agreements approved under this section, and
the provisions of subparagraph (D), nothing in this
section shall absolve the United States from any re-
sponsibility 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 In-
dian tribe.
‘‘(C) The Secretary shall continue to have a
trust obligation to ensure that the rights and inter-
ests of an Indian tribe are protected in the event
that—
‘‘(i) any other party to any such lease,
business agreement, or right-of-way violates any
applicable provision of Federal law or the terms
of any lease, business agreement, or right-of-
way under this section; or
195
‘‘(ii) any provision in such lease, business
agreement, or right-of-way violates any express
provision or requirement set forth in the tribal
energy resource agreement pursuant to which
the lease, business agreement, or right-of-way
was executed.
‘‘(D) Notwithstanding subparagraph (B), the
United States shall not be liable to any party (in-
cluding any Indian tribe) for any of the negotiated
terms of, or any losses 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 under paragraph (2). For the purpose of
this subparagraph, the term ‘negotiated terms’
means any terms or provisions that are negotiated
by an Indian tribe and any other party or parties to
a lease, business agreement, or right-of-way entered
into pursuant to an approved tribal energy resource
agreement.
‘‘(7)(A) In this paragraph, the term ‘interested
party’ means any person or entity the interests of
which have sustained or will sustain a significant ad-
verse environmental impact as a result of the failure
of an Indian tribe to comply with a tribal energy re-
196
source agreement of the Indian tribe approved by
the Secretary under paragraph (2).
‘‘(B) After exhaustion of tribal remedies, and in
accordance with the process and requirements set
forth in regulations adopted by the Secretary pursu-
ant to paragraph (8), an interested party may sub-
mit to the Secretary a petition to review compliance
of an Indian tribe with a tribal energy resource
agreement of the Indian tribe approved by the Sec-
retary under paragraph (2).
‘‘(C)(i) Not later than 120 days after the date
on which the Secretary receives a petition under sub-
paragraph (B), the Secretary shall determine wheth-
er 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 deter-
mination under clause (i) in any case in which the
Secretary determines that additional time is nec-
essary to evaluate the allegations of the petition.
‘‘(iii) Subject to subparagraph (D), if the Sec-
retary determines that the Indian tribe is not in
compliance with the tribal energy resource agree-
197
ment as alleged in the petition, the Secretary shall
take such action as is necessary to ensure compli-
ance with the provisions of the tribal energy resource
agreement, which action may include—
‘‘(I) temporarily suspending some or all ac-
tivities under a lease, business agreement, or
right-of-way under this section until the Indian
tribe or such activities are in compliance with
the provisions of the approved tribal energy re-
source agreement; or
‘‘(II) rescinding approval of all or part of
the tribal energy resource agreement, and if all
of such agreement is rescinded, reassuming the
responsibility for approval of any future leases,
business agreements, or rights-of-way described
in subsections (a) and (b).
‘‘(D) Prior to seeking to ensure compliance with
the provisions of the tribal energy resource agree-
ment of an Indian tribe under subparagraph (C)(iii),
the Secretary shall—
‘‘(i) make a written determination that de-
scribes the manner in which the tribal energy
resource agreement has been violated;
198
‘‘(ii) provide the Indian tribe with a writ-
ten notice of the violations together with the
written determination; and
‘‘(iii) before taking any action described in
subparagraph (C)(iii) or seeking any other rem-
edy, provide the Indian tribe with a hearing and
a reasonable opportunity to attain compliance
with the tribal energy resource agreement.
‘‘(E) An Indian tribe described in subparagraph
(D) shall retain all rights to appeal as provided in
regulations issued by the Secretary.
‘‘(8) Not later than 1 year after the date of en-
actment of the Indian Tribal Energy Development
and Self-Determination Act of 2005, the Secretary
shall issue regulations that implement the provisions
of this subsection, including—
‘‘(A) criteria to be used in determining the
capacity of an Indian tribe described in para-
graph (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;
199
‘‘(B) a process and requirements in accord-
ance with which an Indian tribe may—
‘‘(i) voluntarily rescind a tribal energy
resource agreement approved by the Sec-
retary under this subsection; and
‘‘(ii) return to the Secretary the re-
sponsibility to approve any future leases,
business agreements, and rights-of-way de-
scribed in this subsection;
‘‘(C) provisions setting forth 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 defining final agency ac-
tions after exhaustion of administrative appeals
from determinations of the Secretary under
paragraph (7).
‘‘(f) NO EFFECT ON OTHER LAW.—Nothing in this
section affects the application of—
‘‘(1) any Federal environment law;
‘‘(2) the Surface Mining Control and Reclama-
tion Act of 1977 (30 U.S.C. 1201 et seq.); or
200
‘‘(3) except as otherwise provided in this title,
the Indian Mineral Development Act of 1982 (25
U.S.C. 2101 et seq.) and the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
‘‘(g) 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 implement the provisions of this section
and to make grants or provide other appropriate assist-
ance to Indian tribes to assist the Indian tribes in devel-
oping and implementing tribal energy resource agreements
in accordance with the provisions of this section.
‘‘SEC. 2605. INDIAN MINERAL DEVELOPMENT REVIEW.
‘‘(a) IN GENERAL.—The Secretary shall conduct a
review of all activities being conducted under the Indian
Mineral Development Act of 1982 (25 U.S.C. 2101 et
seq.) as of that date.
‘‘(b) REPORT.—Not later than 1 year after the date
of enactment of the Indian Tribal Energy Development
and Self-Determination Act of 2005, the Secretary shall
submit to Congress a report that includes—
‘‘(1) the results of the review;
‘‘(2) recommendations to ensure that Indian
tribes have the opportunity to develop Indian energy
resources; and