[Senate Report 112-263]
[From the U.S. Government Publishing Office]
Calendar No. 575
112th Congress } { Report
2d Session } SENATE { 112-263
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AMENDING THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF-DETERMINATION
ACT OF 2005, AND FOR OTHER PURPOSES
_______
December 21, 2012.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1684]
The Committee on Indian Affairs, to which was referred the
bill, S. 1684, to amend the Indian Tribal Energy Development
and Self-Determination Act of 2005, and for other purposes,
having considered the same, reports favorably thereon with
amendments, and recommends that the bill, as amended, do pass.
Need for Legislation
In recent years the Committee has heard concerns and
complaints from Indian tribes and industry that the many
Federal laws that govern the development of tribal energy
resources are complex and often lead to significant cost, delay
and uncertainty for all parties to proposed tribal energy
transactions. These costs, delays and uncertainties tend to
discourage development of tribal trust energy resources and
drive development investments to private or non-tribal lands
that are not subject to these same Federal laws. Generally,
this bill is intended to remove some of the disincentives to
developing tribal trust energy resources and assist tribes
interested in pursuing the development of these resources
consistent with the policy of Indian self-determination.
Purpose
The purpose of the bill, S. 1684, is to amend certain
provisions of the Energy Policy Act of 2005\1\ to further
enhance the ability of Indian tribes to exercise self-
determination over the development of energy resources located
on tribal lands; to establish a tribal biomass demonstration
project to improve, facilitate, and make more effective the
implementation of the program in Indian Country under section
413(d) of the Energy Conservation and Production Act;\2\ and to
otherwise facilitate Indian tribal governments in their goals
to develop both renewable and non-renewable energy resources
for the good of present and future generations of Indian
people.
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\1\Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005) (codified in scattered sections of Titles 25 U.S.C., 26 U.S.C.,
and 42 U.S.C.).
\2\Pub. L. No. 94-385, 413(d) (codified at 42 U.S.C. Sec. 6863(d)).
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Background
Oil and gas production in the United States is experiencing
an extraordinary boom, largely driven by advances in
technologies that allow oil and gas producers to recover
resources trapped in tight shale formations once thought
inaccessible.\3\ Oil and natural gas production from
unconventional resources has been on the rise over the past
decade, especially within the last five years.\4\ The ability
to develop these resources has been called a ``game changer''
that will ``revolutionize'' the global energy markets.\5\ The
International Energy Agency predicts in its World Energy
Outlook 2012 that the United States will overtake Saudi Arabia
and Russia to become the largest global oil producer by 2020
and will be 97% self-sufficient in net terms of energy needs by
2035.\6\
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\3\Carol Freedenthal, New Oil, Gas Production Technologies Do More
Than Affect Production, Pipeline and Gas J., May 2011, at 40.
\4\Natural gas production from shale gas formations increased
almost 65% from 2007 to 2008. Susan L. Sakmar, The Global Shale Gas
Initiative: Will the United States be the Role Model for the
Development of Shale Gas Around the World?, 33 Hous. J. Int'l L. 369,
380 (2011) (citations omitted).
\5\Id. at 371 (citing Tom Fowler, Energy Game Changer?, Hous.
Chron., Nov. 1, 2009, at A1).
\6\International Energy Agency, World Energy Outlook 2012, November
13, 2012 at 75, 81.
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The World Energy Outlook 2012 specifically mentions the
spectacular increase in production from the Bakken formation in
North Dakota,\7\ the heart of which lies beneath the Fort
Berthold Indian Reservation. However, many of the laws and
regulations that apply to Indian country are complex and
cumbersome, increasing development costs and causing delays and
uncertainty to the development of mineral resources on the
reservation. On the other hand, nearby lands off the
reservation are not subject to these laws, making them more
attractive for oil and gas development than comparable
reservation lands. The bill, S. 1684, would help level the
playing field for Indian tribes that, if they so choose, they
can participate in the expanding energy market in the United
States. S. 1684 is a bill that would assist tribes in leasing
and developing their trust energy resources in a timely,
responsible, and profitable way.
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\7\Id. at 108.
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Overview of Indian Energy Development--Leases and agreements under the
IMLA and IMDA
Historically, most energy development on Indian lands has
been carried out under the authority of the Indian Mineral
Leasing Act of 1938\8\ (IMLA) and its implementing
regulations\9\ or the Indian Mineral Development Act of
1982\10\ (IMDA) and its implementing regulations.\11\ Prior to
the enactment of the IMLA, minerals on Indian lands were
developed under a number of Federal statutes dating back to
1891.\12\
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\8\Act of May 11, 1938, 52 Stat. 347 (codified at 25 U.S.C.
Sec. Sec. 396a-396g).
\9\25 C.F.R. pt. 211.
\10\Indian Mineral Development Act of 1982, Pub. L. No. 97-382, 96
Stat. 1938 (codified at 25 U.S.C. Sec. Sec. 2101-2108).
\11\25 C.F.R. pt. 225.
\12\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.''\13\ The IMDA
was specifically intended to provide Indian tribes both with a
greater role and with more flexibility in the mineral
development process than is possible under the IMLA, by
allowing the tribes themselves to negotiate and structure
mineral agreements. The IMDA was a significant policy step in
furtherance of the broader Federal policy of Indian self-
determination.\14\
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\13\25 U.S.C. Sec. 2102(a).
\14\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 in negotiations that the IMDA provides to Indian
tribes, the Secretary of the Interior (Secretary) retains
considerable control over the process of finalizing any IMDA
agreement. Most notably, the IMDA requires the Secretary to
review a proposed IMDA agreement between the tribe and a third
party and determine whether it is in the best interest of the
Indian tribe in light of several economic and non-economic
factors.\15\ If the Secretary is not satisfied that the
proposed agreement meets the statutory test, the Secretary may
disapprove it.\16\ The IMDA's implementing regulations also
authorize the Secretary to cancel agreements for a range of
violations by an operator\17\ and to impose a penalty of up to
$1000 for each day that a violation or non-compliance
``continues beyond the time limits prescribed for corrective
action.''\18\ Neither the statute nor the regulations require
the Secretary to consult with the Indian tribe or obtain its
consent before taking these actions against an operator. In
fact, it would appear that the Secretary has the authority to
cancel the agreement and fine an operator even if the Indian
tribe were to oppose these measures.
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\15\25 U.S.C. Sec. 2103(b).
\16\Id. Sec. 2103(a)-(b).
\17\25 C.F.R. Sec. 225.36.
\18\25 C.F.R. Sec. 225.37(a).
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Curiously, under the IMDA, even though the Secretary
decides whether to approve, disapprove, or cancel an agreement,
and to determine whether an operator has violated an agreement
and whether to impose stiff penalties for doing so, the IMDA
nevertheless expressly exempts the United States from liability
``for losses sustained by a tribe or individual Indian under
such agreement'' as long as the Secretary approved the
agreement in accordance with the Act and other applicable
law.\19\ Therefore, the IMDA provides the Secretary with the
ultimate control over mineral development decisions but at the
same time appears to provide that the United States cannot be
held accountable financially for those decisions as long as the
Secretary followed the law.
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\19\25 U.S.C. Sec. 2103(e). Note, however, the second proviso at
the end of this subsection: ``[N]othing in this Act shall absolve the
United States from any responsibility to Indians, including those which
derive from the trust relationship and from any treaties, Executive
orders, or agreement between the United States and any Indian tribe.''
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The National Environmental Policy Act
Approval of leases or agreements involving Indian lands by
the Secretary is an act of a Federal official that triggers the
environmental review process under the National Environmental
Policy Act (NEPA).\20\ Apart from the question of whether
having NEPA apply to decisions of the Secretary regarding
transactions for the development of the trust resources of an
Indian tribe provides a net benefit to the tribe, what is clear
is that compliance with NEPA often has the effect of delaying
the Secretary's decision and of creating uncertainty for all
parties (including the tribe) to a proposed agreement to
develop a tribe's energy resources. The time needed for the
Department of the Interior to comply with Federal statutes and
regulations that apply specifically to Indian lands such as the
IMLA and the IMDA and the implementing regulations combined
with the time needed to comply with NEPA often leads to
extraordinary delays in the approval of mineral leases and
agreements.
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\20\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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As Chairman Tex Hall of the Mandan, Hidatsa and Arikara
Nation of the Fort Berthold Reservation testified at a hearing
in 2011 before the House Committee on Natural Resources,
Subcommittee on Indian and Alaska Native Affairs:
In order to comply with the many Federal laws and
regulations that apply to Indian mineral activities, the
Interior Department has developed a 49-step process for
obtaining Federal approvals involving oil and gas exploration.
This 49-step process can take as long as two (2) years to
complete. In contrast, the process for approving oil and gas
exploration activities on non-Indian lands in North Dakota
takes just 4 steps. Oil and gas leases [on these non-Indian
lands] don't need governmental approval and, according to the
North Dakota Industrial Commission, it only takes about a week
and a half to process an application for a permit to drill. I
believe we must find a way to streamline the process for
federal review and approval of individual Indian and tribal
mineral leases and agreements and make it less complicated and
more efficient.\21\
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\21\Tribal Development of Energy Resources and the Creation of
Energy Jobs on Indian Lands: Hearing Before the Subcomm. on Indian and
Alaska Native Affairs of the H. Natural Resources Comm., 112th Cong.
18-19 (2011) (statement of Tex G. Hall, Chairman, Mandan, Hidatsa and
Arikara Nation of the Fort Berthold Reservation).
At a hearing before this Committee in 2012, Chairman Hall
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stated:
The application of NEPA and other Federal public land laws
and policies on our lands displaces the authority of [Mandan,
Hidatsa and Arikara] Nation to manage and regulate its own
resources. The MHA Nation should have the right to make its own
decisions on how our resources are used and developed.
Indian lands should, at the election of a Tribe, be
specifically excluded from the public application of NEPA.\22\
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\22\Impacts of Environmental Changes on Treaty Rights, Traditional
Lifestyles, and Tribal Homelands: Hearing Before the S. Comm. on Indian
Affairs, 112th Cong. 5 (2012) (statement of Tex G. Hall, Chairman,
Mandan, Hidatsa and Arikara Nation of the Fort Berthold Reservation)
(emphasis added).
Similar testimony at another hearing in 2012 before this
Committee was provided by Vice President Rex Lee Jim of Navajo
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Nation:
Perhaps the greatest hurdle to energy development in Indian
Country generally is the applicability of the National
Environmental Policy Act (NEPA) to the use of tribal lands and
resources.
There is only one way out of the trap of poverty and
federal dependence, to allow and encourage Tribes to stand on
their own and develop their own sustainable economies. In times
of decreasing federal budgets this imperative is even more
pronounced. The only way to accomplish this objective is to get
the federal government out of the way and allow tribes to make
their own decisions. The Navajo Nation is ready. Give us the
opportunity.\23\
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\23\Energy Development in Indian Country: Hearing Before the S.
Comm. on Indian Affairs, 112th Cong. 7 (2012) (statement of Rex Lee
Jim, Vice President, Navajo Nation) (emphasis added).
Another witness who testified before the Committee at that
same hearing, Thomas Anketell, a member of the Tribal Executive
Board of the Assiniboine and Sioux Tribes of the Fort Peck
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Reservation in North Dakota, stated that--
The Fort Peck Agency's long delays in processing mineral
leases and other critical energy development paperwork often
frustrate our energy development plans and serve only to push
oil, gas and other types of energy and mineral development off
the Reservation. . . . Time is money to energy producers. . . .
If the costs of ``on-reservation'' energy production is
much higher than the cost of ``off-reservation'' energy
production, energy producers will naturally locate where it is
less expensive to operate.''\24\
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\24\Energy Development in Indian Country: Hearing Before the S.
Comm. on Indian Affairs, 112th Cong. 3 (2012) (statement of Thomas
Anketell, member of the Tribal Executive Board, Assiniboine and Sioux
Tribes of the Fort Peck Reservation). In the months prior to the
introduction of S. 1684, Committee staff engaged in extensive outreach
to receive information and ideas for the bill from Indian tribes and
energy industry stakeholders. Staff frequently heard complaints about
delays and uncertainty associated with the processes under the IMLA and
the IMDA and with compliance with NEPA. Some commentators noted that
developers will avoid bidding on leases of Indian lands if nearby non-
Indian lands are available for development.
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Title V of the Energy Policy Act of 2005
Title V of the Energy Policy Act of 2005, the Indian Tribal
Energy Development and Self-Determination Act\25\ (ITEDSDA),
created Indian energy programs within the Department of the
Interior and the Department of Energy;\26\ established energy-
related grant and technical assistance programs for Indian
tribes and Alaska Native corporations;\27\ encouraged the
Bonneville and Western Power Administrations to facilitate the
development of tribal energy resources;\28\ and authorized a
feasibility study for developing tribal wind and hydropower
demonstration projects on the Missouri River.\29\
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\25\Indian Tribal Energy Development and Self-Determination Act,
Title V of the Energy Policy Act of 2005, Pub. L. No. 109-58,
Sec. Sec. 501-506, 119 Stat. 763 (codified at 25 U.S.C. Sec. Sec. 3501-
3506).
\26\25 U.S.C. Sec. 3502(a)-(c).
\27\25 U.S.C. Sec. 3503.
\28\25 U.S.C. Sec. 3505.
\29\25 U.S.C. Sec. 3506.
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The ITEDSDA also created a new, alternative process for
Indian tribes to negotiate and approve energy-related
agreements and rights-of-way on tribal trust and restricted
lands.\30\ Commonly referred to as the ``TERA process,''
section 3504 of the ITEDSDA authorizes ``Tribal Energy Resource
Agreements'' (TERA or TERAs) between an Indian tribe and the
Secretary of the Interior.\31\
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\30\25 U.S.C. Sec. 3504.
\31\25 U.S.C. Sec. 3504(e).
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a. Legislative history of the TERA
The ITEDSDA was enacted in the 109th Congress but was
largely developed during the 108th, having originated from two
separate Indian energy bills. One of these bills, S. 522, was
introduced by Senator Ben Nighthorse Campbell (then Chairman of
the Committee), and the other, S. 424, by Senator Jeff Bingaman
(then ranking member of the Committee on Energy and Natural
Resources). The Committee held a hearing on the two bills on
March 19, 2003.\32\
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\32\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, both included provisions that would
authorize energy-related transactions between Indian tribes and
third parties without approval by the Secretary of the
Interior--which would otherwise be required under the IMLA,
IMDA, or, in cases of energy-related surface uses (for example,
wind or solar energy projects), 25 U.S.C. Sec. 415--if the
transactions were carried out in accordance with tribal
regulations that previously had been approved by the
Secretary.\33\ Both bills also would have authorized tribes to
grant rights-of-way to third parties to serve energy-related
facilities located on tribal lands without secretarial approval
if done pursuant to tribal regulations approved by the
Secretary.
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\33\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.\34\
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\34\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 19 and accompanying text.
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Senator Bingaman testified at the hearing on S. 424 and S.
522 and observed that the provision in his bill that would have
allowed siting facilities on tribal land without secretarial
approval was ``consistent with the sovereign authority of the
tribes'' but noted that concerns had been raised about the
liability provision in his bill. He stated that ``We are glad
to work with you, Mr. Chairman, to be sure those concerns are
addressed. We think there is a way to do that.''\35\ At the
close of the hearing, Chairman Campbell stated that there was
``some good in each of these bills and maybe some not so good''
but that he intended to use ``the best of both.''\36\
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\35\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. 75 (2003) (statement of
Sen. Jeff Bingaman, United States Sen. from New Mexico).
\36\Id. at 88.
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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 tribe and the Secretary in lieu of ``tribal
regulations'' approved by the Secretary, so that leases,
agreements, and rights-of-way would not require secretarial
approval if entered into pursuant to an approved TERA.\37\ This
revised version of the two bills was ultimately included as
title III of S. 1005, the Energy Policy Act of 2003, as
reported by the Committee on Energy and Natural Resources.\38\
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\37\See note 58, infra, regarding the third-party petitioning
process for some of the reasons a Secretary-Tribal agreement (i.e., the
TERA) was used in lieu of tribal regulations.
\38\See S. Rep. No. 108-43, at 29-36.
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While none of the Senate or House bills addressing
comprehensive energy policy were enacted into law in the 108th
Congress, including S. 1005\39\ in the 109th Congress the
Energy Policy Act of 2005 was signed into law on August 8,
2005. The Act included, with some modifications, the Indian
energy title and the TERA process that was part of S. 1005 from
the previous Congress.\40\
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\39\See also S. 14; H.R. 6; H.R. 238; H.R. 1531; H.R. 1644.
\40\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 CFR pt. 224).
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b. Key provisions of the TERA process under current law
The following is summary of the key provisions of the TERA
process in the ITEDSDA.\41\
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\41\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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1. 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.
2. Tribal discretion. The TERA process does not
automatically apply to the tribal land of an Indian tribe.
Whether to pursue the TERA process is a decision that the tribe
makes in its own discretion.
3. Not exclusive of other mineral or energy development
authority. Nothing in the ITEDSDA states that an Indian tribe
with a TERA may not, at the same time, choose to pursue energy
development under the IMLA, IMDA, or any other authority under
Federal law.\42\
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\42\The TERA regulations do not directly address this question but
do indicate that the tribe is free to choose to include ``all or a
part'' of its energy resources as well as different ``types'' of energy
resources in a TERA. See 25 CFR Sec. 224.52(a)-(b).
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4. Kinds of agreements authorized. Once a TERA has been
approved by the Secretary, the tribe may, without further
approval of the Secretary, enter into energy leases, business
agreements, and, for certain energy-related purposes, rights-
of-way.\43\
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\43\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, tribes may renew leases, business agreements and rights-of-way
under Sec. 3504(c).
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5. Scope of TERA. A TERA may, at the tribe's option,
address ``all or a part'' of its energy resources, whether
renewable or non-renewable.\44\ Conceivably, a tribe would be
free to include language in the TERA that would limit its
application to certain designated geographic areas within its
tribal lands.
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\44\See supra note 42; see also 25 CFR 224.30 (defining ``Energy
Resources'' as ``including, but not limited to, natural gas, oil,
uranium, coal, nuclear, wind, solar, geothermal, biomass, and
hydrologic resources''). 25 U.S.C. Sec. 3504(a) itself expressly
mentions ``energy mineral resources,'' ``electric generation,
transmission, or distribution'' facilities, and oil and gas resources.
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6. Approval of the TERA by the Secretary. The authority to
approve leases, business agreements and rights-of-way without
secretarial approval requires that the Tribe have a TERA in
place that has been approved by the Secretary.\45\
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\45\25 U.S.C. Sec. 3504(d).
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7. Process for obtaining an approved TERA. The following
are the key steps in the process for obtaining an approved TERA
under current law.\46\
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\46\The regulations at 25 CFR Sec. Sec. 224.50-224.68 establish the
process in considerably more detail than the statute itself.
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(i) The tribe must submit a proposed TERA to the
Secretary.\47\
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\47\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.\48\
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\48\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.''\49\
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\49\25 U.S.C. Sec. 3504(e)(3); 25 CFR Sec. 224.70.
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(iv) The Secretary ``shall approve''\50\ a proposed TERA if
(1) the Indian tribe has demonstrated its capacity to regulate
energy development; (2) the TERA includes provisions requiring
a periodic review and evaluation of the tribe's performance
under the TERA and, if the Secretary finds ``imminent
jeopardy'' to a physical trust asset, allowing the Secretary to
take protective measures, including reassumption; and (3) the
TERA includes the 16 mandatory clauses or provisions itemized
in section 3504(e)(2)(B)(iii),\51\ one of which is the
environmental review process required under section
3504(e)(2)(C).
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\50\25 U.S.C. Sec. 3504(e)(2)(B).
\51\See also 25 C.F.R. Sec. 224.63.
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(v) The Secretary must notify the tribe in writing of a
disapproval decision within 10 days of the decision, stating
the basis for disapproval and identifying the changes or other
actions that are required to address the Secretary's concerns
and providing the Indian tribe with an opportunity to revise
and re-submit the TERA.\52\
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\52\25 U.S.C. Sec. 3504(e)(4); 25 C.F.R. Sec. 224.75. Under the
regulations, the tribe has 45 days (or such longer time as the tribe
and the Secretary may agree) after receiving a notice of disapproval to
resubmit a revised TERA. 25 C.F.R. 224.76.
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(vi) The Secretary ``shall approve'' the revised TERA if it
meets the same 3 criteria set forth in paragraph d., above,
applicable to the original version of the TERA.\53\ The
Secretary has only 60 days within which to approve or
disapprove a revised TERA.\54\
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\53\25 U.S.C. Sec. 3504(e)(2).
\54\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 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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8. Post-approval/TERA implementation matters. There are a
number of tasks, issues and considerations addressed in section
3504 that arise after a TERA has been approved. The following
are among the more significant:
(i) The Secretary must conduct a periodic review and
evaluation of the Indian tribe's performance under an approved
TERA. (See paragraph 7.d.(2) above.) The review must be
conducted annually unless, after the third annual review, the
tribe and the Secretary agree to amend the TERA to allow
biannual reviews.\55\
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\55\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.\56\ If the TERA
authorizes ``direct payment'' leases and agreements, the tribe
must furnish the Secretary with sufficient information to
discharge the Secretary's trust responsibility to enforce the
terms of the lease or agreement and protect the rights of the
tribe.\57\
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\56\25 U.S.C. Sec. 3504(e)(2)(B)(iii)(XIII)-(5)(A); 25 C.F.R.
Sec. 224.83(b).
\57\25 U.S.C. Sec. 3504(e)(5)(B); 25 C.F.R. Sec. 224.63(k).
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(iii) ITEDSDA allows third parties with standing to
petition the Secretary to complain that the tribe is not
complying with its own TERA. To have standing to invoke this
process, the third party must be an ``interested person . . .
[who] has demonstrated that an interest of the person has
sustained, or will sustain, an adverse environmental impact as
a result of the failure of the Indian tribe to comply'' with
its TERA.\58\ Accordingly, the petitioning process is not
available as an avenue for persons to air generalized
grievances over the Indian tribe's activities under the TERA.
Further, before a petition may be filed with the Secretary, the
``interested person'' must first exhaust all applicable tribal
remedies, if any.\59\ The regulations set forth the petitioning
process in detail and provide the tribe with significant
opportunities to deny, address, or otherwise resolve the
allegations. If, in the end, the Secretary determines that the
tribe is in violation of the TERA, the Secretary must take
``such action as the Secretary determines to be necessary to
ensure compliance'' with the TERA, including suspending
activities under a lease, agreement, or right-of-way or
rescinding approval of all or part of the TERA.\60\
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\58\25 U.S.C. Sec. 3504(e)(7)(A)-(B); 25 C.F.R. Sec. Sec. 224.100-
224.101 (emphasis added). As discussed supra at note 31 and in the
accompanying text, the ITEDSDA used TERAs in lieu of tribal regulations
approved by the Secretary, as in the case of the Navajo Nation Trust
Land Leasing Act of 2000 (25 U.S.C. Sec. 415(e)) and the recently
enacted Helping Expedite and Advance Responsible Tribal Home Ownership
Act of 2012 (Pub. L. No. 112-151, 126 Stat. 1150 [hereinafter HEARTH
Act], providing similar authority for all Indian tribes to enter into
surface leases without the Secretary's approval if done pursuant to
tribal regulations that had been approved by the Secretary. Under the
TERA process, a third-party petitioner must complain that the Indian
tribe 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. 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. 224.40.
\59\25 U.S.C. Sec. 3504(e)(7)(B); 25 C.F.R. Sec. 224.100.
\60\25 U.S.C. Sec. 3504(e)(7)(D)(iii); 25 C.F.R. Sec. 224.120.
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(iv) A tribe with an approved TERA may rescind the TERA in
its own discretion.\61\
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\61\25 U.S.C. Sec. 3504(e)(8)(B); 25 C.F.R. Sec. Sec. 224.170-
224.175.
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(v) Like the IMDA, the Navajo Nation Trust Land Leasing
Act, and, most recently, the HEARTH Act, the TERA provisions of
the ITEDSDA include a liability waiver clause\62\ that protects
the United States. However, the liability waiver provision in
ITEDSDA is intended to be narrower than the corresponding
clauses in those other three acts. The ITEDSDA waiver protects
the United States only from liability for those matters over
which the Secretary has no control--namely, from losses
resulting from the ``negotiated terms'' of leases, business
agreements, and rights-of-way.\63\ ``Negotiated term'' is
defined for purposes of this clause as ``any term or provision
that is negotiated by an Indian tribe and any other party to a
lease, business agreement, or right-of-way entered into
pursuant to an approved'' TERA.\64\ The clause would not
protect the United States from losses resulting from the
Secretary's own failure to carry out obligations imposed on the
Secretary under the ITEDSDA--for example, from failure to
conduct a periodic review and evaluation or from a failure to
protect the tribe's interests as a result of a breach of a
lease or business agreement.\65\
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\62\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
\63\25 U.S.C. Sec. 3504(e)(6)(D)(i).
\64\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
\65\Nor would the clause protect the United States from liability
for losses resulting from a lease, agreement, or right-of-way that was
entered into by the tribe and a third party but that was not authorized
under the terms of the tribe's TERA. For instance, as noted above, the
TERA might only authorize development of a specific kind of energy
resource, such as wind energy. If the tribe proceeds to enter into a
solar project agreement or an oil and gas or coal lease, and provides a
copy of the lease to the Secretary pursuant to 25 C.F.R.
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.''
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c. Tribal concerns with the TERA process under current law
During the consultation process before the introduction of
the bill and subsequently, tribal representatives expressed
concerns about certain aspects of the TERA process under
current law. These concerns were, by and large, the same
concerns discussed in two law review articles about the
ITEDSDA, one by Professor Judith V. Royster\66\ and the other
by Benjamin J. Fosland.\67\
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\66\Judith V. Royster, Practical Sovereignty, Political
Sovereignty, and the Indian Tribal Energy Development and Self-
Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008).
\67\Benjamin J. Fosland, A Case of Not-So-Fatal Flaws: Re-
Evaluating the Indian Tribal Energy and Self-Determination Act, 48
Idaho L. Rev. 447 (2012).
---------------------------------------------------------------------------
In her article on the ITEDSDA, Professor Royster identifies
and discusses four areas of concern raised by tribal
representatives regarding the TERA process.\68\ In his article,
Benjamin J. Fosland addresses same basic areas of concern but
in three broad categories: (1) many Indian tribes ``lack the
resources to make the resource agreement system feasible''; (2)
the requirement of public comment in the tribe's decision-
making is anathema to tribal sovereignty and self-government;
and (3) the Federal government is relieved of the trust
responsibility after a tribe enters into a TERA.\69\ He
concludes that all three criticisms of the ITEDSDA ``are
largely unwarranted.''\70\
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\68\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 66 at 1087-1101. Some of
these concerns were echoed by tribal representatives to Committee staff
prior to and after the introduction of the bill. The comment most often
heard was that the ITEDSDA does not include financial assistance for
tribes that enter into TERA. The trust responsibility concern was
mentioned but less prominently, perhaps reflecting a growing awareness
among Indian tribes that the liability waiver in the ITEDSDA is
narrower than that in the IMDA and that the ITEDSDA requires
considerable involvement of the Secretary in protecting the tribal
interest notwithstanding the approval of a TERA.
\69\Fosland, supra note 67 at 449.
\70\Id.
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With regard to funding, Fosland notes that, although grant
funding and other support authorized under the ITEDSDA may not
be sufficient to fully fund the needs of all tribes that might
be interested in pursuing the TERA process--\71\
---------------------------------------------------------------------------
\71\Id. at 454-55.
it is unlikely that all tribes will attempt to engage in
serious energy development simultaneously. And as tribes become
better able to regulate their own energy development, the need
for funding and technical expertise provided by the Secretary
will decrease.\72\
---------------------------------------------------------------------------
\72\Id. at 455.
Moreover, this same lack-of-funding criticism can be
leveled equally at the IMDA. While the Secretary must review
and approve all IMDA agreements, what is perhaps the most
difficult part of the process--preparing for and engaging in
negotiations and structuring agreements with third parties--
must be carried out by the tribe itself. The provision of the
IMDA requiring the Secretary to provide ``advice, assistance,
and information during the negotiation of a Minerals
Agreement'' is expressly conditioned upon ``the extent of [the
Secretary's] available resources.''\73\
---------------------------------------------------------------------------
\73\25 U.S.C. Sec. 2106.
---------------------------------------------------------------------------
It is true that the ITEDSDA requires some public
involvement both in the process of TERA approval by the
Secretary and in energy development activities by the Indian
tribe after the TERA has been approved. However, as Professor
Royster points out in regard to the Secretary's TERA approval
process, provisions in the ITEDSDA and its implementing
regulations limiting the scope of the Secretary's review of a
proposed TERA, requiring the Secretary to ``act in accordance
with the trust responsibility,'' to act ``in good faith and in
the best interests of the Indian tribes,'' and to ``liberally
construe'' the ITEDSDA and its implementing regulations for the
benefit of the tribes to implement the Federal policy of self-
determination--
obligate the Secretary, in considering the approval of a TERA,
to place tribal self-determination at the core of the decision.
Although the Secretary will consider and respond to relevant
public comments on a proposed TERA, the Secretary should do so
in light of the policies and regulations promoting tribal self-
determination and energy development.\74\
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\74\Royster, supra note 66 at 1089.
As for the concern about public involvement in the tribe's
environmental review process, Professor Royster observes that
this process, which she notes is intended to ``mirror''
provisions in NEPA, ``will be costly, and . . . have the
potential to delay implementation of tribal resource
decisions,'' but that ``the environmental review provisions are
not necessarily incompatible with practical sovereignty.''\75\
Benjamin J. Fosland reaches a similar conclusion in his article
on the TERA process.\76\ Moreover, the broad tribal support\77\
for the recently adopted HEARTH Act\78\ suggests that, whatever
the concerns over a statutory requirement of public input in a
tribe's energy development process may have been when the
ITEDSDA was adopted in the 109th Congress, those concerns
appear to have diminished somewhat in the intervening years in
light of the fact that the HEARTH Act has similar requirements
for public involvement.\79\ The same applies to concerns over
the ``interested party'' challenges authorized in the ITEDSDA--
the HEARTH Act, similar to the TERA process, authorizes
interested parties to petition the Secretary and complain that
a tribe is violating its own leasing regulations.\80\
---------------------------------------------------------------------------
\75\Id. at 1090 (citations omitted).
\76\Fosland, supra note 67 at 459.
\77\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).
\78\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 tribes with tribal trust lands.
\79\HEARTH Act Sec. 2.
\80\Id.
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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.''\81\ She concludes that, while
``failure to consider or adequately account for specified
factors might subject the government to damages for breach of
trust,'' relying on ``the good faith of the government can be a
dangerous thing'' given the outcome of United States v. Navajo
Nation\82\ and that ``tribal trust in the government may, and
should be, a thing of the past. . . . Tribes need, as a
practical matter if nothing else, to look out for their own
interests.''\83\ Again, despite the fact that the recently
enacted HEARTH Act has a very explicit and direct liability
waiver clause,\84\ the tribes vigorously supported the adoption
of that act in 2012, suggesting that many tribes have reached
some level of comfort with the implications of these clauses.
---------------------------------------------------------------------------
\81\Royster, supra note 66 at 1099-1100.
\82\537 U.S. 488 (2003).
\83\Royster, supra note 66 at 1100-1101. However, to impose
liability on the government, a court would have to find a way around
the express waiver in 25 U.S.C. Sec. 2103(e).
\84\ ``The United States shall not be liable for losses sustained
by any party to a lease executed pursuant to tribal regulations under
paragraph (1).'' HEARTH Act Sec. 2.
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Key Provisions of the Bill as Ordered Reported
At the business meeting convened on September 13, 2012, the
Committee approved a number of amendments to the bill (offered
by Vice Chairman Barrasso and Senators Murkowski and Udall) and
ordered the bill, as amended, to be reported favorably. The
following is a description of the key provisions of the bill as
ordered by the Committee to be reported.
Amendments to the TERA process of the ITEDSDA
Section 103 of the bill would make a number of amendments
to the TERA process of the ITEDSDA that are intended to address
tribal concerns raised in the outreach regarding the bill,
including the concerns discussed above. The most significant
amendments to the ITEDSDA are summarized below.
a. Manner of TERA taking effect
The bill would amend the ITEDSDA to change the manner in
which a TERA goes into effect. Under current law, the Secretary
must approve or disapprove a proposed TERA within 270 days of
its receipt by the Secretary.\85\ Under the bill, a TERA would
go into effect automatically on the 271st day after its
delivery to the Secretary unless the Secretary acts first to
disapprove the TERA for one of the reasons stated in the
ITEDSDA. If the Secretary does not act to disapprove the TERA
before the 271st day, the TERA goes into effect. A revised TERA
will go into effect on the 91st day unless it is disapproved by
the Secretary for one of the reasons stated in the ITEDSDA.
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\85\25 U.S.C. Sec. 3504(e)(2)(A).
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b. Reasons for disapproving a TERA
Under S.1684, there are only 4 reasons for disapproving a
proposed TERA (3 of which are in current law): (1) the Indian
tribe fails to demonstrate capacity; (2) a provision of the
TERA would violate applicable Federal law;\86\ (3) the TERA
does not include the required periodic review and evaluation
provisions;\87\ and (4) the TERA does not include any of the
required enumerated provisions.\88\
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\86\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.
\87\25 U.S.C. Sec. 3504(e)(2)(D).
\88\25 U.S.C. Sec. 3504(e)(2)(B)(iii).
---------------------------------------------------------------------------
c. Categorical exclusions
The bill would amend section 3504(e) of the ITEDSDA\89\ to
clarify that a tribe may identify actions that are
categorically excluded from the review process.
---------------------------------------------------------------------------
\89\Specifically, 25 U.S.C. Sec. 3504(e)(2)(B)(iii).
---------------------------------------------------------------------------
d. Scope of authorized development on tribal land under a
TERA
The bill would amend section 3504(e)(a)(1) by (1)
clarifying that the authorized electrical generation facilities
include those that produce energy from renewable resources; (2)
clarifying that the energy resources that may be processed or
refined under a TERA may include resources produced from non-
tribal lands, as long as ``at least a portion'' of the
resources have been developed or produced from tribal land; and
(3) authorizing agreements under a TERA for pooling, unitizing
or communitizing a tribe's energy mineral resources on tribal
land with any other energy mineral resources, whether in trust
or restricted or unrestricted fee status and regardless of
whether the other resources are owned by a tribe, individual
Indian or any other person or entity.
e. Capacity determination
Under current law, the 270-day period for approving or
disapproving a TERA also governs the time within which the
Secretary determines a tribe's capacity to regulate energy
development on its tribal lands. The bill would amend that to
require that the determination be made within 120 days of the
date the TERA is submitted to the Secretary. This change would
give the tribe notice of any capacity concerns earlier in the
process, so that it does not have to wait out the full 270 days
only to learn that the Secretary has these concerns.
f. Self-Determination Act tribes and capacity
The bill would add a new provision in effect deeming a
tribe to have capacity if the Secretary finds that the tribe
has carried out, for 3 consecutive years without material audit
exceptions, a contract or compact under the Indian Self-
Determination and Education Assistance Act\90\ that includes
land management activities.
---------------------------------------------------------------------------
\90\25 U.S.C. Sec. Sec. 450 et seq.
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g. Statement of reasons for disapproval
Current law requires the Secretary to ``notify the Indian
tribe in writing of the basis for the disapproval [of a
proposed TERA]; . . . identify what changes or other actions
are required to address the concerns of the Secretary; and . .
. provide the Indian tribe with an opportunity to revise and
resubmit'' the TERA.\91\ The bill would only clarify this,
calling for ``a detailed written explanation of each reason for
disapproval; and the revisions or changes to [the TERA]
necessary to address each . . . reason.''
---------------------------------------------------------------------------
\91\25 U.S.C. Sec. 3504(e)(4).
---------------------------------------------------------------------------
h. Trust responsibility
The bill would clarify the liability waiver clause in
section 3504(e)(6) principally by (1) including language
indicating that the obligations of the Secretary under section
3504 are part of the trust obligation of the United States, and
(2) adding a clause at the end to the effect that the waiver
clause does not absolve, limit, or otherwise affect ``the
liability, if any, of the United States'' for terms that are
not ``negotiated terms'' or for ``losses that are not the
result of a negotiated term, including losses resulting from
the failure of the Secretary to perform an obligation of the
Secretary under this section.'' These changes are not intended
to affect the substance of section 3504(e)(6) as it reads in
current law, but are meant instead to clarify that the
liability waiver clause reaches only losses resulting from
``negotiated terms'' and is not a blanket waiver covering all
losses.
i. Interested party petitions
The bill would make clarifying amendments to section
3504(e)(7) relating to petitions to the Secretary by
``interested parties.'' The bill would clarify that the
petitioner must demonstrate his or her status as an interested
party with ``substantial evidence'' (current law is silent on
what kind of showing must be made). The bill would also clarify
that the Secretary must determine interested party status
before proceeding to the question of whether the tribe is or is
not out of compliance with the TERA. Finally, the bill would
require the Secretary to dismiss the petition if the tribe and
the interested party agree to resolve the issues in the
petition between themselves.
j. Financial assistance
The bill would add a new subsection (g) to section 3504,
``Financial Assistance in Lieu of Activities by the
Secretary.'' This provision, which is modeled after a provision
in the Indian Self-Determination and Education Assistance
Act,\92\ would require the Secretary to make available to the
Indian tribe any amounts that the Secretary saves as a result
of the tribe carrying out a TERA. Accordingly, to the extent
that the Secretary no longer has to perform a function or
activity because the tribe is performing the function or
activity itself, and as a result realizes a savings, the funds
saved must be provided to the tribe to carry out the TERA. The
bill would require the Secretary to develop a regulatory
methodology for calculating any savings for purposes of this
provision.
---------------------------------------------------------------------------
\92\ 25 U.S.C. Sec. 450j-1(n).
---------------------------------------------------------------------------
Other amendments to the ITEDSDA
The bill would make other amendments to the ITEDSDA
unrelated to the TERA process, both technical and substantive
in nature. The following is a summary of the more substantive
amendments.
a. Tribal energy development organization
The bill would amend the definition section of the ITEDSDA
(section 3501(11)) to provide that ``tribal energy development
organization'' includes corporations organized under section 17
of the Indian Reorganization Act of 1934\93\ and section 3 of
the Oklahoma Indian Welfare Act\94\ for purposes of the
ITEDSDA.
---------------------------------------------------------------------------
\93\25 U.S.C. Sec. 477.
\94\25 U.S.C. Sec. 503.
---------------------------------------------------------------------------
b. Well spacing; technical assistance
The bill would amend the ITEDSDA section establishing the
Department of the Interior Indian Energy Program\95\ to require
the Secretary (1) to consult with an Indian tribe before
adopting or approving well-spacing plans affecting its energy
resources and (2) to provide technical assistance to tribes in
planning energy resource development.
---------------------------------------------------------------------------
\95\25 U.S.C. Sec. 3502(a).
---------------------------------------------------------------------------
c. Energy development agreements and rights-of-way between
the tribe and a tribal organization
Section 103 of the bill would amend section 3504(a)(2) to
allow energy development agreements and rights-of-way with
terms that do not exceed 30 years (or in the case of an oil and
gas lease, 10 years and so long thereafter as oil or gas are
produced in paying quantities) between the tribe and a tribal
energy development organization that is majority owned and
controlled by the tribe--and has been certified as such by the
Secretary\96\--without approval by the Secretary. Such a lease
or business agreement with a ``certified'' tribal energy
development organization would be authorized without
secretarial approval even in the absence of a TERA. In effect,
this amendment contemplates that an agreement with a certified
tribal energy development organization should be treated as an
agreement with the tribe itself or with an agency or
instrumentality of the tribe for purposes of energy resource
development on its tribal land.\97\ Under current law, a
decision by the tribe to develop its own resources (i.e.,
without relying on a lease or agreement with a third, non-
tribal party) on its own tribal land does not require approval
by the Secretary.
---------------------------------------------------------------------------
\96\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 tribe without secretarial approval.
\97\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 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.
---------------------------------------------------------------------------
d. Appraisals
The bill would add a new section at the end of the ITEDSDA
authorizing appraisals of fair market value of energy resources
held in trust for an Indian tribe or by the tribe subject to
Federal restrictions against alienation, for purposes of any
transaction that 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 tribe or its contractor
or, if disapproved, written notice of each reason for the
disapproval and how the appraisal should be corrected. The
Secretary is required to publish regulations for implementing
the section.
Other amendments to Federal laws
a. Amendment to Federal Power Act
Section 201 of the bill would amend section 7(a) of the
Federal Power Act\98\ to make the provisions of that section
applicable to Indian tribes (along with States and
municipalities). However, this section of the bill also
provides that it does not affect preliminary permits or
original licenses issued before the enactment date of the bill
or any application for an original license if the Commission
has issued a notice of accepting the application for filing
before the enactment date of the bill.
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\98\16 U.S.C. Sec. 800(a).
---------------------------------------------------------------------------
b. Amendments to Energy Efficiency Act
Section 105 of the bill would amend Part D of Title III of
the Energy Policy and Conservation Act\99\ by adding a new
section at the end authorizing grants to Indian tribes to carry
out a tribal energy efficiency program as described in the new
section. The funding would be taken from funding appropriated
pursuant to section 365(f) of Title III of the Energy Policy
and Conservation Act. Of those funds, ``not less than 2.5%''
must be allocated for the tribal program.
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\99\Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163,
89 Stat. 871 (codified at 42 U.S.C. Sec. Sec. 6201 et seq.).
---------------------------------------------------------------------------
c. Amendments to Federal weatherization program
Section 203 of the bill would amend the Energy Conservation
and Production Act\100\ to facilitate direct funding of Indian
tribes to carry out the weatherization program. The amendment
leaves intact the amount authorized to be reserved from State
funding under current law but authorizes direct funding (1) if
requested by the Indian tribe and (2) the Secretary of Energy
determines that the low-income members of the tribe will be
equally or better served by direct funding to the tribe rather
than through the State.
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\100\42 U.S.C. Sec. 6863(d).
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d. Biomass demonstration projects
Section 202 of the bill would amend the Tribal Forest
Protection Act of 2004\101\ (TFPA) to add a new section at the
end of that Act authorizing a biomass demonstration project for
Indian tribes. This section would also authorize a similar
demonstration project for Alaska Native corporations (but not
as part of the amendment to the TFPA).
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\101\Pub. L. No. 108-278, 118 Stat. 868 (2004).
---------------------------------------------------------------------------
With respect to the demonstration projects under the TFPA,
the bill would require that at least 4 new demonstration
projects be carried out from 2013 to 2017, with tribes to be
selected based on several enumerated criteria. The bill would
allow participating tribes to enter into stewardship contracts
with the Secretary of Agriculture or of the Interior that
include Federal lands for terms not to exceed 20 years and a
renewal term not to exceed 10 years, as opposed to the 10-year
limitation on those contracts under current law.\102\ A longer
term is authorized under the bill to provide sufficient time to
recover the investment that is necessary to carry out a biomass
operation.
---------------------------------------------------------------------------
\102\See 16 U.S.C. Sec. 2104(c)(2) note.
---------------------------------------------------------------------------
Section 202 would authorize similar demonstration projects
with Alaska Native corporations (as defined in section 3 of the
Alaska Native Claims Settlement Act\103\) with terms not to
exceed 20 years and a renewal term of up to 10 years.
---------------------------------------------------------------------------
\103\43 U.S.C. Sec. 1602(m).
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e. Amendments to Long-Term Leasing Act
Section 205 of the bill would amend subsection (e) of the
Long-Term Leasing Act\104\ to remove a limitation in that
subsection on the exploration, development, or extraction of
mineral resources. With this limitation in current law,
subsection (e) authorizes only surface leases without approval
of the Secretary. The bill would amend the subsection so that
it would also authorize mineral leasing with a term not to
exceed 25 years or, in the case of oil and gas, for 10 years
plus any additional time that ``the Navajo Nation determines to
be appropriate where oil or gas is produced in a paying
quantity.''
---------------------------------------------------------------------------
\104\25 U.S.C. Sec. 415(e).
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Legislative History
On October 12, 2011, Senator Barrasso introduced S. 1684,
along with Senators Akaka, Hoeven, and McCain. A legislative
hearing on the bill was held on April 19, 2012. Senators Enzi
and Thune were later added as co-sponsors. At a business
meeting held on September 13, 2012, the Committee on Indian
Affairs ordered the bill reported with amendments favorably.
Summary of the Amendments Approved by Committee
At the business meeting held on September 13, 2012, the
Committee approved a number of amendments to the bill described
below.
The Committee approved an amendment from Senator Barrasso
that would allow Indian tribes to prepare their own appraisal
process for transactions that require the Department of
Energy's approval.
The Committee also approved an amendment from Senator Udall
that would direct the Energy Department to collaborate with
national laboratories to make technical and scientific
assistance available to American Indian energy production and
projects.
The Committee approved another amendment from Senator Udall
that would extend the Energy Department's State Energy Program
to Indian tribes to allow grants to tribes seeking to reduce
their fossil fuel emissions and increase energy efficiency in
transportation, building or other sectors. The Committee
approved a second degree amendment by Senator Udall to this
amendment that would reduce the minimum amount of funding that
the Energy Department's State Energy Program would be required
to set aside for tribal conservation programs from 5 percent to
2.5 percent.
The Committee approved an amendment from Senator Murkowski
that would include Alaska Native corporations in the bill's
expansion of federal biomass demonstration projects, thus
giving such Alaskan corporations the option of applying the
projects that promote biomass energy production such as
biofuels, heat and electricity generation.
Section-by-Section Analysis
Section 1. Short title
Section 1 sets forth the short title, the ``Indian Tribal
Energy Development and Self-Determination Act Amendments of
2012'' (hereinafter, the ``Act'').
Section 2. Table of contents
Section 2 sets forth the table of contents.
Section 101. Indian tribal energy resource development
Section 101(a) of the Act amends section 2602(a) of the
Energy Policy Act of 1992 (1992 EPA) by adding (1) a
requirement that the Secretary of the Interior consult with
Indian tribes before approving well-spacing programs that
affect their energy resources, and (2) a new paragraph that
requires that Secretary to provide technical assistance to
Indian tribes interested in developing plans for
electrification, permitting of oil and gas operations and
renewable facilities, energy efficiency programs, electrical
generation and other activities related to energy; plans for
protecting natural, cultural and other resources.
Section 101(a) would also require the Secretary to carry
out the program under section 2602 of the 1992 EPA in
cooperation with the Department of Energy Office of Indian
Energy Policy and Programs.
Section 101(b) of the Act amends section 2602(b)(2) of the
1992 EPA to add ``intertribal organizations'' to the eligible
grantees that can participate in the loan guarantee program
under that section (in addition to Indian tribes and tribal
energy resource development organizations), and to add
``activities to increase capacity of Indian tribes to manage''
energy development and efficiency programs to the purposes of
the grants under that section.
Section 101(c) of the Act amends section 2602(c) of the
1992 EPA to include tribal energy development organizations to
participate in the loan guarantee program under that section.
This section also amends section 2602(c) to require the
Secretary of Energy to adopt regulations to carry out the
subsection not later than 1 year after the date of enactment of
these amendments.
Section 102. Indian tribal energy resource regulation
Section 102 of the Act amends section 2603 of the 1992 EPA
to require the Secretary of the Interior to provide the
assistance, information and expertise to a tribal energy
development organization (i.e., in addition to an Indian
tribe).
Section 103. Tribal energy resource agreements
Section 103 of the Act makes several amendments to section
2604 of the 1992 EPA, which relates to tribal energy resource
agreements (TERAs).
Section 103(a)(1) makes technical amendments to section
2604(a)(1)(B) of the 1992 EPA; clarifies that the applicable
lease or business agreement may be for facilities that produce
``electricity from renewable resources'' and that ``at least a
portion'' of the resources that may be refined at an applicable
facility must be developed on ``or produced from'' tribal land;
adds at the end of section 2604(a)(1) a new subparagraph (C)
that states that the business agreement may include provisions
for the voluntary pooling, unitization or communization of the
Indian tribe's energy resources with the energy resources of
other parties.
Section 103(a)(1) amends section 2604(a)(2) to state that,
besides leases and business agreements executed pursuant to a
TERA, a lease or business agreement between the Indian tribe
and a tribal energy development organization that is majority
owned and controlled by that Indian tribe--and that has been
certified as such by the Secretary--does not require review and
approval of the Secretary under 25 U.S.C. Sec. 81 if the lease
or business agreement is for a term that does not exceed 30
years or, in the case of an oil and gas lease, 10 years and so
long thereafter as oil and gas is produced in paying
quantities.
Section 103(a) amends section 2604(b) of the 1992 EPA with
regard to energy rights-of-way in the same ways that it amends
section 2604(a) with regard to leases and agreements (see
amendments described above). Section 103(a)(2) also clarifies
that the right-of-way may serve ``the purposes, or facilitate
in carrying out the purposes, of any lease or agreement entered
into for energy resource development on tribal land.''
Section 103(a)(3) makes conforming amendments to section
2604(d) of the 1992 EPA.
Section 103(a)(4) of the Act amends section 2604(e)(2) of
the 1992 EPA to change the TERA approval process. Under current
law, the Secretary must either approve or disapprove a TERA
within 270 days of the date on which an Indian tribe submits
the TERA. Section 103(a)(4) provides that a TERA would
automatically take effect 271 days after it is submitted by an
Indian tribe unless the Secretary disapproves it before then. A
revised TERA automatically takes effect 91 days after it is
submitted to the Secretary unless disapproved. The Secretary
would be required to disapprove the TERA if the Secretary finds
that (1) the Indian tribe has failed to demonstrate capacity;
(2) the TERA would ``violate applicable Federal law or a treaty
of the Indian tribe; or (3) the TERA fails to include any of
provisions mandated for TERAs under section 2604(e).
Section 103(a)(4) of the draft bill would also clarify and
expedite the process by which the Secretary determines whether
an Indian tribe has demonstrated sufficient capacity to enter
into a TERA. Current law requires the Secretary to determine
whether ``the Indian tribe has demonstrated . . . sufficient
capacity to regulate the development of energy resources''
within 270 days of the date on which the tribe submits a TERA.
Section 103(a)(4) requires the Secretary to make the
determination of whether ``the Indian tribe has not
demonstrated . . . sufficient capacity to regulate the
development of the specific 1 or more energy resources
identified for development under the [TERA].'' The Secretary
would be required to make such a determination within 120 days
of the date on which the tribe submits a TERA unless the
Secretary and the tribe agree to extend the time period for
making the determination. Section 103(a)(4) would also provide
that a tribe will be deemed to have demonstrated sufficient
capacity if: (1) the tribe has a record of managing land-
related programs under the Indian Self-Determination and
Education Assistance Act in a fiscally responsible manner for
three consecutive years; or (2) the Secretary fails to make the
capacity determination within the applicable time period.
Section 103(a)(4) amends section 2604(e)(2) to clarify the
mitigation term required for a TERA (that mitigation measures
are to be determined in the tribe's discretion) and adds a
provision allowing the tribe to identify categorical
exclusions.
Section 103(a)(4) also clarifies that if the Secretary
disapproves a TERA the disapproval must include ``a detailed,
written explanation'' of the reasons for the disapproval.
Section 103(a)(4) makes a number of clarifying amendments
to section 2604(e)(5) and (6) of the 1992 EPA, the liability
provisions of ITEDSDA. In particular, a paragraph is added to
clarify that these provisions do not absolve the United States
from liability arising from terms that are not ``negotiated
terms'' or losses that are not the result of ``negotiated
terms.''
Section 103(a)(4) amends section 2604(e)(7) of the 1992 EPA
to clarify the definition of ``interested party'' and the
process for reviewing a petition under this paragraph by an
interested party--by requiring the Secretary to first determine
whether the petitioner is an ``interested party'' and then
whether the tribe is not in compliance with the TERA. This
section also adds a provision requiring the Secretary to
dismiss the petition if the petitioner and the tribe have
agreed to a resolution of the issues in the petition.
Section 103(a)(5) makes a conforming amendment.
Section 103(a)(6) adds a new subsection (g) to section 2604
of the 1992 EPA to provide for funding a tribe's activities
under that section. Generally, the amendment would require the
Secretary to provide funding to the Indian tribe in an amount
equal to any savings that the United States will realize as a
result of the Indian tribe carrying out a TERA. The funding
would be made available under a separate funding agreement. The
methodology for determining the funding would be developed
through regulations.
Section 103(a)(6) also adds a new subsection (h), setting
forth the requirements for the Secretary to certify that a
tribal energy development organizations (i.e., that the tribe
has carried out contracts or compacts relating to tribal land
under the Indian Self-Determination and Education Assistance
Act for three years without material audit exceptions; that the
entity is organized under the laws of the Indian tribe and
subject to its jurisdiction and authority; that the majority
interest in the entity is owned and controlled by the Indian
tribe; and that this majority interest ownership and control is
required under the entity's organizing documents).
Section 103(b) of the Act requires the Secretary to adopt
regulations to implement the amendments made by section 103.
Section 104. Technical assistance for Indian tribal governments
Section 104 would amend section 2602(b) of the Energy
Policy Act of 1992 to require the Secretary to collaborate with
the Directors of the National Laboratories in making the full
array of technical and scientific resources of the Department
of Energy available for tribal energy activities and projects.
Section 105. Indian energy efficiency
Section 105 would add to Part D of Title III of the Energy
Policy and Conservation Act an Indian Energy Efficiency
Program. The Indian Energy Efficiency Program would provide
grants to assist Indian tribes in implementing strategies to
reduce fossil fuel emissions and to increase energy efficiency.
Section 105 would require the Secretary to allocate not
less than 2.5 percent of the funds authorized to be
appropriated for each fiscal year under section 265(f) to be
distributed to Indian tribes in accordance with subsection (d).
Section 105 would create guidelines under subsection (d)
that specify how the grants are to be distributed. The
Secretary is required to establish a competitive process for
providing grants that gives priority to projects that (1)
increase energy efficiency and energy conservation rather than
new energy generation projects; (2) integrate cost-effective
renewable energy with energy efficiency; (3) move beyond the
planning stage and are ready for implementation; (4) clearly
articulate and demonstrate the ability to achieve measurable
goals; (5) have the potential to make an impact in the
government buildings, infrastructure, communities, and land of
an Indian tribe; and (6) maximize the creation or retention of
jobs on Indian land.
This section would also authorize Indian tribes to use
grants to achieve the purposes of the Energy Efficiency
Program. The bill enumerates what potential uses for the grants
may include. To apply for a grant under this section, an Indian
tribe would submit to the Secretary a proposed energy
efficiency and conservation strategy. The proposed strategy
would include a description of the goals of the Indian tribe
for increased energy efficiency and conservation in the
jurisdiction of the Indian tribe and the manner in which the
proposed strategy complies with the restrictions in the use of
the grants and the manner in which a grant will allow the
Indian tribe to fulfill the goals of the proposed strategy.
Section 105 would require the Secretary to approve or
disapprove a proposed conservation strategy by not later than
120 days after the date of submission. If the Secretary
disapproves a proposed strategy the Secretary would provide to
the Indian tribe the reasons for the disapproval and the Indian
tribe may revise and resubmit the proposed strategy as many
times as necessary.
Section 105 would limit the amount an Indian tribe may use
for administrative expenses, excluding the cost of the
reporting requirements, to an amount equal to the greater of 10
percent of the administrative expenses or $75,000.
An Indian tribe receiving a grant under section 105 would
be required to submit to the Secretary a report describing the
status of development and implementation of the energy
efficiency and conservation strategy and an assessment of
energy efficiency gains within the jurisdiction of the Indian
tribe.
Section 106. Conforming amendments
Section 106 would amend a number of conforming amendments
to the Indian energy provisions of the 1992 EPA, many of which
are intended to make other provisions consistent with the
amendments made in sections 101, 102, and 103.
In addition, section 106 would amend Title V's definition
of ``tribal energy development organization'' to include any
enterprise, partnership, consortium, corporation, or other type
of business organization that is engaged in the development of
energy resources and is wholly owned by an Indian tribe,
including organizations incorporated pursuant to section 17 of
the Indian Reorganization Act of 1934 or section 3 of the
Oklahoma Indian Welfare Act.
Section 106 would amend section 2605(d)(1) of the 1992 EPA
to require the Administrators of the Bonneville Power
Administration and the Western Area Power Administration to
provide technical assistance to Indian tribes seeking to use
the high-voltage transmission system for delivery of electrical
power.
Section 201. Issuance of preliminary permits and licenses
Section 201 of the draft bill would amend section 7(a) of
the Federal Power Act. As written, the Federal Power Act
authorizes the Federal Energy Regulatory Commission (FERC) to
give States and municipalities preference when issuing
preliminary permits or original licenses (where no preliminary
permit has been issued) for hydroelectric projects. Section
201(a) would authorize FERC to give the same preference to
Indian tribes.
Section 201(b) states that the amendment made in subsection
(a) will not affect any preliminary permit or original license
(where no preliminary permit has been issued) issued before the
date of enactment of the bill. It also includes provisions
stating that subsection (a) will have no effect on applications
for original licenses (where no preliminary permit has been
issued) deemed complete by FERC before the date of enactment of
the bill.
Section 202. Tribal biomass demonstration project
Section 202 of the Act would establish biomass
demonstration projects for federally recognized Indian tribes
and Alaska Native corporations to promote biomass energy
production.
Subsection (b) of Section 202 would amend the Tribal Forest
Protection Act of 2004 to promote biomass energy production on
Indian forest land and in nearby communities.
Specifically, the amendment made by subsection (b) would
require that the Secretary of the Interior (or, where
applicable, the Secretary of Agriculture) to enter into
stewardship contracts or similar agreements for a term of up to
20 years, and a renewal term of up to 10 years, with Indian
tribes to harvest woody biomass from Federal land. Subsection
(b) would oblige the Secretary to enter into contracts to carry
out at least four new demonstration projects annually over five
fiscal years beginning in FY 2013.
Under subsection (b), the Secretary of the Interior and the
Secretary of Agriculture would be required to take into
consideration a number of factors when considering a proposed
demonstration project, such as whether a project would improve
the forest health or watersheds of Federal land or Indian
forest land or rangeland. The amendment would exclude from the
demonstration projects any merchantable logs that have been
identified by the Secretary for commercial sale. In carrying
out the contracts under this subsection, the Secretary would be
required to incorporate management plans in effect on Indian
Forest land or rangeland of the respective Indian tribe into
the agreement. The Secretary would be required to submit to
Congress a report that describes each individual application
received and each contract and agreement entered into under
this subsection.
Subsection (c) of Section 202 would create one biomass
demonstration project each year for 2013 through 2017 which
would be substantially similar to the projects created under
subsection (b), except this project would be for Alaska Native
corporations and would not amend the Tribal Forest Protection
Act of 2004.
Specifically, the amendment made under subsection (c) would
require the Secretary, for each of the fiscal years 2013
through 2017, to enter into a stewardship contract or similar
agreement, for a term of up to 20 years, and a renewal term of
up to 10 years, with 1 or more Alaska Native corporations, to
carry out a demonstration project to promote biomass energy
production on forest land of the Alaska Native corporations and
in nearby communities providing reliable supplies of woody
biomass from federal land.
Under subsection (c), the Secretary would take into
consideration a number of factors when considering a proposed
demonstration project, all of which are the same or similar to
the requirements under subsection (b). The amendment would
exclude from the demonstration projects any merchantable logs
that have been identified by the Secretary for commercial sale.
The Secretary shall also submit to Congress a report that
describes each individual application received and each
contract and agreement entered into under this subsection.
Section 203. Weatherization program
Section 203 of the draft bill would amend section 413(d) of
the Energy Conservation and Production Act to provide direct
Federal funding to Indian tribes for home weatherization.
Under current law, tribes are not eligible to receive
direct Federal funding for home weatherization (the funding
goes to the States) unless the Secretary of Energy makes two
findings. First, the Secretary must find that a State is not
providing the low-income members of an Indian tribe with
assistance equivalent to that received by the State's other
low-income residents. Second, the Secretary must determine that
the low-income tribal members would be better served by
providing funding to the tribe. If the Secretary makes these
two findings, the Secretary reserves from the allocation to the
State an amount that is no less than 100 percent and no more
than 150 percent of the proportion of the low-income tribal
members in such State to the total number of low-income people
in such State. Currently, the Secretary reserves this funding
from the allocations to the States of Arizona and New Mexico
for the Navajo Nation and also reserves funding from the
allocation to the State of Wyoming for the Northern Arapaho
Tribe.
Section 204 of the Act would require the Secretary to make
direct funding to the Indian tribe upon the request of the
tribe if the Secretary determines that the low income members
of the applicable Indian tribe would be equally or better
served by a direct grant. The Secretary's discretion to
determine the amount of the funding under current law would
remain unchanged.
Section 204. Appraisals
Section 204 would amend Title XXVI of the Energy Policy Act
of 1992 to allow appraisals relating to the fair market value
of mineral or energy resources to be prepared by the Secretary,
an Indian tribe, or a certified, third-party appraiser pursuant
to a contract with the Indian tribe. Not later than 45 days
after the date on which the Secretary receives an appraisal by
or for an Indian tribe, the Secretary would be required to
review and approve the appraisal unless the Secretary
determines that the appraisal fails to meet standards created
by the Secretary under this section. Furthermore, if the
Secretary disapproves an appraisal, the Secretary would be
required to give written notice of the disapproval to the
Indian tribe and a description of each reason for the
disapproval and how the appraisal should be corrected.
Section 205. Leases of restricted lands for Navajo Nation
Section 205 would amend subsection (e)(1) of the first
section of the Long-Term Leasing Act to allow the Navajo Nation
enter into a lease for the exploration, development, or
extraction of any mineral resources without the approval of the
Secretary, if the lease is executed under tribal regulations,
approved by the Secretary, and the meets certain term limits.
This section would also extend the maximum term for a business
or agricultural lease under this subsection of the Long-Term
Leasing Act to 99 years. For leases for exploration,
development, or extraction of mineral resources, other than oil
and gas resources, the maximum lease term is 25 years, with an
option to renew for 1 additional term up to 25 years. For
leases for the exploration, development, or extraction of an
oil or gas resource, the maximum term is 10 years, plus any
such additional period as the Navajo Nation determines to be
appropriate in any case in which an oil or gas resource is
produced in a paying quantity.
Committee Recommendation
On April 13, 2012, the Senate Committee on Indian Affairs
convened a business meeting to consider S. 1684 and other
measures. The Committee ordered the bill, as amended, be
reported to the full Senate with the recommendation that the
bill, as amended, do pass.
Cost and Budgetary Consideration
A cost estimate by the Congressional Budget Office is not
yet available.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S.1684 would
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
There have been no written Executive communications
regarding the bill.
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S.1684, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter printed in italic):
25 U.S.C.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; and
(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 by paragraph (1), the Secretary
shall provide technical assistance to
interested Indian tribes to develop energy
plans, including--
(i) plans for electrification;
(ii) plans for oil and gas
permitting, renewable energy
permitting, energy efficiency,
electricity generation, transmission
planning, water planning, and other
planning relating to energy issues;
(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 2012, the Secretary of Energy shall issue
such regulations as the Secretary of Energy determines
are necessary to carry out this subsection.
25 U.S.C. 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); 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); 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] (1) In general.--On the date on
which regulations are promulgated under paragraph (8),
an Indian tribe may submit to the Secretary [for
approval] 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 capacity
determination under subparagraph (B)(i) not
later than 120 days after the date on which the
Indian tribe submits to the Secretary the
tribal energy resource agreement of the Indian
tribe pursuant to paragraph (1), unless the
Secretary and the Indian tribe mutually agree
to an extension of the time period for making
the determination.
(ii) Any determination that the
Indian tribe lacks the requisite
capacity shall be treated as a
disapproval under paragraph (4) and,
not later than 10 days after the date
of the determination, the Secretary
shall provide to the Indian tribe--
(I) a detailed, written
explanation of each reason for
the determination; and
(II) a description of the
steps that the Indian tribe
should take to demonstrate
sufficient capacity.
(H) Notwithstanding any other provision of
this section, an Indian tribe shall be
considered to have demonstrated sufficient
capacity under subparagraph (B)(i) to regulate
the development of the specific 1 or more
energy resources of the Indian tribe identified
for development under the tribal energy
resource agreement submitted by the Indian
tribe pursuant to paragraph (1) if--
(i) the Secretary determines that--
(I) the Indian tribe has
carried out a contract or
compact under title I or IV of
the Indian Self-Determination
and Education Assistance Act
(25 U.S.C. 450 et seq.); and
(II) for a period of not less
than 3 consecutive years ending
on the date on which the Indian
tribe submits the tribal energy
resource agreement of the
Indian tribe pursuant to
paragraph (1) or (4)(B), the
contract or compact--
(aa) has been carried
out by the Indian tribe
without material audit
exceptions (or without
any material audit
exceptions that were
not corrected within
the 3-year period); and
(bb) has included
programs or activities
relating to the
management of tribal
land; or
(ii) the Secretary fails to make the
determination within the time allowed
under subparagraph (G)(i) (including
any extension of time agreed to under
that subparagraph).
[(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 3(a)(2)(A)(i) or
(b)(2)(A).
(E) Before taking an action described in
subparagraph (D)(iii), the Secretary shall--
(i) make a written determination that
[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;
(C) provisions establishing the scope of, and
procedures for, the periodic review and
evaluation described in subparagraphs (D) and
(E) of paragraph (2), including provisions for
review of transactions, reports, site
inspections, and any other review activities
the Secretary determines to be appropriate; and
(D) provisions describing final agency
actions after exhaustion of administrative
appeals from determinations of the Secretary
under paragraph (7).
(f) No Effect on Other Law.--Nothing in this section affects
the application of--
(1) any Federal environmental law;
(2) the Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. 1201 et seq.); or
(3) except as otherwise provided in this chapter, the
Indian Mineral Development Act of 1982 (25 U.S.C. 2101
et seq.).
(g) Financial Assistance in Lieu of Activities by the
Secretary.--
(1) In general.--Any amounts that the Secretary would
otherwise expend to operate or carry out any program,
function, service, or activity (or any portion of a
program, function, service, or activity) of the
Department that, as a result of an Indian tribe
carrying out activities under a tribal energy resource
agreement, the Secretary does not expend, the Secretary
shall, at the request of the Indian tribe, make
available to the Indian tribe in accordance with this
subsection.
(2) Annual funding agreements.--The Secretary shall
make the amounts described in paragraph (1) available
to an Indian tribe through an annual written funding
agreement that is negotiated and entered into with the
Indian tribe that is separate from the tribal energy
resource agreement.
(3) Effect of appropriations.--Notwithstanding
paragraph (1)--
(A) the provision of amounts to an Indian
tribe under this subsection is subject to the
availability of appropriations; and
(B) the Secretary shall not be required to
reduce amounts for programs, functions,
services, or activities that serve any other
Indian tribe to make amounts available to an
Indian tribe under this subsection.
(4) Determination.--
(A) In general.--The Secretary shall
calculate the amounts under paragraph (1) in
accordance with the regulations adopted under
section 103(b) of the Indian Tribal Energy
Development and Self-Determination Act
Amendments of 2012.
(B) Applicability.--The effective date or
implementation of a tribal energy resource
agreement under this section shall not be
delayed or otherwise affected by--
(i) a delay in the promulgation of
regulations under section 103(b) of the
Indian Tribal Energy Development and
Self-Determination Act Amendments of
2012;
(ii) the period of time needed by the
Secretary to make the calculation
required under paragraph (1); or
(iii) the adoption of a funding
agreement under paragraph (2).
(h) Certification of Tribal Energy Development
Organization.--
(1) In general.--Not later than 90 days after the
date on which an Indian tribe submits an application
for certification of a tribal energy development
organization in accordance with regulations promulgated
under section 103(b) of the Indian Tribal Energy
Development and Self-Determination Act Amendments of
2012, the Secretary shall approve or disapprove the
application.
(2) Requirements.--The Secretary shall approve an
application for certification if--
(A)(i) the Indian tribe has carried out a
contract or compact under title I or IV of the
Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.); and
(ii) for a period of not less than 3
consecutive years ending on the date on which
the Indian tribe submits the application, the
contract or compact--
(I) has been carried out by the
Indian tribe without material audit
exceptions (or without any material
audit exceptions that were not
corrected within the 3-year period);
and
(II) has included programs or
activities relating to the management
of tribal land; and
(B)(i) the tribal energy development
organization is organized under the laws of the
Indian tribe and subject to the jurisdiction
and authority of the Indian tribe;
(ii) the majority of the interest in the
tribal energy development organization is owned
and controlled by the Indian tribe (or the
Indian tribe and 1 or more other Indian
tribes); and
(iii) the organizing document of the tribal
energy development organization requires that
the Indian tribe (or the Indian tribe and 1 or
more other Indian tribes) own and control at
all times a majority of the interest in the
tribal energy development organization.
(3) Action by secretary.--If the Secretary approves
an application for certification pursuant to paragraph
(2), the Secretary shall, not more than 10 days after
making the determination--
(A) issue a certification stating that--
(i) the tribal energy development
organization is organized under the
laws of the Indian tribe and subject to
the jurisdiction and authority of the
Indian tribe;
(ii) the majority of the interest in
the tribal energy development
organization is owned and controlled by
the Indian tribe (or the Indian tribe
and 1 or more other Indian tribes);
(iii) the organizing document of the
tribal energy development organization
requires that the Indian tribe (or the
Indian tribe and 1 or more other Indian
tribes) own and control at all times a
majority of the interest in the tribal
energy development organization; and
(iv) the certification is issued
pursuant this subsection;
(B) deliver a copy of the certification to
the Indian tribe; and
(C) publish the certification in the Federal
Register.
(i) Sovereign Immunity.--Nothing in this section waives the
sovereign immunity of an Indian tribe.
[(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.
The Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.)
* * * * * * *
SEC. 367. INDIAN ENERGY EFFICIENCY PROGRAM.
(a) Definition of Indian Tribe.--In this section, the term
`Indian tribe' has the meaning given the term in section 4 of
the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450b).
(b) Purpose.--The purpose of the grants provided under
subsection (d) shall be to assist Indian tribes in implementing
strategies--
(1) to reduce fossil fuel emissions created as a
result of activities within the jurisdictions of
eligible entities in a manner that--
(A) is environmentally sustainable; and
(B) to the maximum extent practicable,
maximizes benefits for Indian tribes and tribal
members;
(2) to increase the energy efficiency of Indian
tribes and tribal members; and
(3) to improve energy efficiency in--
(A) the transportation sector;
(B) the building sector; and
(C) other appropriate sectors.
(c) Tribal Allocation.--Of the amount of funds authorized
to be appropriated for each fiscal year under section 365(f) to
carry out this part, the Secretary shall allocate not less than
2.5 percent of the funds for each fiscal year to be distributed
to Indian tribes in accordance with subsection (d).
(d) Grants.--Of the amounts available for distribution
under subsection (c), the Secretary shall establish a
competitive process for providing grants under this section
that gives priority to projects that--
(1) increase energy efficiency and energy
conservation rather than new energy generation
projects;
(2) integrate cost-effective renewable energy with
energy efficiency;
(3) move beyond the planning stage and are ready for
implementation;
(4) clearly articulate and demonstrate the ability to
achieve measurable goals;
(5) have the potential to make an impact in the
government buildings, infrastructure, communities, and
land of an Indian tribe; and
(6) maximize the creation or retention of jobs on
Indian land.
(e) Use of Funds.--An Indian tribe may use a grant received
under this section to carry out activities to achieve the
purposes described in subsection (b), including--
(1) the development and implementation of energy
efficiency and conservation strategies;
(2) the retention of technical consultant services to
assist the Indian tribe in the development of an energy
efficiency and conservation strategy, including--
(A) the formulation of energy efficiency,
energy conservation, and energy usage goals;
(B) the identification of strategies to
achieve the goals--
(i) through efforts to increase
energy efficiency and reduce energy
consumption; and
(ii) by encouraging behavioral
changes among the population served by
the Indian tribe;
(C) the development of methods to measure
progress in achieving the goals;
(D) the development and publication of annual
reports to the population served by the
eligible entity describing--
(i) the strategies and goals; and
(ii) the progress made in achieving
the strategies and goals during the
preceding calendar year; and
(E) other services to assist in the
implementation of the energy efficiency and
conservation strategy;
(3) the implementation of residential and commercial
building energy audits;
(4) the establishment of financial incentive programs
for energy efficiency improvements;
(5) the provision of grants for the purpose of
performing energy efficiency retrofits;
(6) the development and implementation of energy
efficiency and conservation programs for buildings and
facilities within the jurisdiction of the Indian tribe,
including--
(A) the design and operation of the programs;
(B) the identification of the most effective
methods of achieving maximum participation and
efficiency rates;
(C) the education of the members of an Indian
tribe;
(D) the measurement and verification
protocols of the programs; and
(E) the identification of energy efficient
technologies;
(7) the development and implementation of programs to
conserve energy used in transportation, including--
(A) the use of--
(i) flextime by employers; or
(ii) satellite work centers;
(B) the development and promotion of zoning
guidelines or requirements that promote energy
efficient development;
(C) the development of infrastructure,
including bike lanes, pathways, and pedestrian
walkways;
(D) the synchronization of traffic signals;
and
(E) other measures that increase energy
efficiency and decrease energy consumption;
(8) the development and implementation of building
codes and inspection services to promote building
energy efficiency;
(9) the application and implementation of energy
distribution technologies that significantly increase
energy efficiency, including--
(A) distributed resources; and
(B) district heating and cooling systems;
(10) the implementation of activities to increase
participation and efficiency rates for material
conservation programs, including source reduction,
recycling, and recycled content procurement programs
that lead to increases in energy efficiency;
(11) the purchase and implementation of technologies
to reduce, capture, and, to the maximum extent
practicable, use methane and other greenhouse gases
generated by landfills or similar sources;
(12) the replacement of traffic signals and street
lighting with energy-efficient lighting technologies,
including--
(A) light-emitting diodes; and
(B) any other technology of equal or greater
energy efficiency;
(13) the development, implementation, and
installation on or in any government building of the
Indian tribe of onsite renewable energy technology that
generates electricity from renewable resources,
including--
(A) solar energy;
(B) wind energy;
(C) fuel cells; and
(D) biomass; and
(14) any other appropriate activity, as determined by
the Secretary, in consultation with--
(A) the Secretary of the Interior;
(B) the Administrator of the Environmental
Protection Agency;
(C) the Secretary of Transportation;
(D) the Secretary of Housing and Urban
Development; and
(E) Indian tribes.
(f) Grant Applications.--
(1) In general.--
(A) Application.--To apply for a grant under
this section, an Indian tribe shall submit to
the Secretary a proposed energy efficiency and
conservation strategy in accordance with this
paragraph.
(B) Contents.--A proposed strategy described
in subparagraph (A) shall include a description
of--
(i) the goals of the Indian tribe for
increased energy efficiency and
conservation in the jurisdiction of the
Indian tribe; and
(ii) the manner in which--
(I) the proposed strategy
complies with the restrictions
described in subsection (e);
and
(II) a grant will allow the
Indian tribe fulfill the goals
of the proposed strategy.
(2) Approval.--
(A) In general.--The Secretary shall approve
or disapprove a proposed strategy under
paragraph (1) by not later than 120 days after
the date of submission of the proposed
strategy.
(B) Disapproval.--If the Secretary
disapproves a proposed strategy under paragraph
(1)--
(i) the Secretary shall provide to
the Indian tribe the reasons for the
disapproval; and
(ii) the Indian tribe may revise and
resubmit the proposed strategy as many
times as necessary, until the Secretary
approves a proposed strategy.
(C) Requirement.--The Secretary shall not
provide to an Indian tribe a grant under this
section until a proposed strategy is approved
by the Secretary.
(3) Limitations on use of funds.--Of the amounts
provided to an Indian tribe under this section, an
Indian tribe may use for administrative expenses,
excluding the cost of the reporting requirements of
this section, an amount equal to the greater of--
(A) 10 percent of the administrative
expenses; or
(B) $75,000.
(4) Annual report.--Not later than 2 years after the
date on which funds are initially provided to an Indian
tribe under this section, and annually thereafter, the
Indian tribe shall submit to the Secretary a report
describing--
(A) the status of development and
implementation of the energy efficiency and
conservation strategy; and (B) to the maximum
extent practicable, an assessment of energy
efficiency gains within the jurisdiction of the
Indian tribe.
42 U.S.C. 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.
(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 [42 U.S.C. 2809(a)(12)], which further
the purpose of this part.
The Tribal Forest Protection Act of 2004 (25 U.S.C. Sec. 3115a)
* * * * * * *
SEC. 2. TRIBAL FOREST ASSETS PROTECTION.
(a) Definitions.--[In this section] In this Act:
* * * * * * *
SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT.
(a) Stewardship Contracts or Similar Agreements.--For each
of fiscal years 2013 through 2017, the Secretary shall enter
into stewardship contracts or similar agreements (excluding
direct service contracts) with Indian tribes to carry out
demonstration projects to promote biomass energy production
(including biofuel, heat, and electricity generation) on Indian
forest land and in nearby communities by providing reliable
supplies of woody biomass from Federal land.
(b) Demonstration Projects.--In each fiscal year for which
projects are authorized, at least 4 new demonstration projects
that meet the eligibility criteria described in subsection (c)
shall be carried out under contracts or agreements described in
subsection (a).
(c) Eligibility Criteria.--To be eligible to enter into a
contract or agreement under this section, an Indian tribe shall
submit to the Secretary an application--
(1) containing such information as the Secretary may
require; and
(2) that includes a description of--
(A) the Indian forest land or rangeland under
the jurisdiction of the Indian tribe; and
(B) the demonstration project proposed to be
carried out by the Indian tribe.
(d) Selection.--In evaluating the applications submitted
under subsection (c), the Secretary shall--
(1) take into consideration--
(A) the factors set forth in paragraphs (1)
and (2) of section 2(e); and
(B) whether a proposed project would--
(i) increase the availability or
reliability of local or regional
energy;
(ii) enhance the economic development
of the Indian tribe;
(iii) result in or improve the
connection of electric power
transmission facilities serving the
Indian tribe with other electric
transmission facilities;
(iv) improve the forest health or
watersheds of Federal land or Indian
forest land or rangeland;
(v) demonstrate new investments in
infrastructure; or
(vi) otherwise promote the use of
woody biomass; and
(2) exclude from consideration any merchantable logs
that have been identified by the Secretary for
commercial sale.
(e) Implementation.--The Secretary shall--
(1) ensure that the criteria described in subsection
(c) are publicly available by not later than 120 days
after the date of enactment of this section; and
(2) to the maximum extent practicable, consult with
Indian tribes and appropriate intertribal organizations
likely to be affected in developing the application and
otherwise carrying out this section.
(f) Report.--Not later than September 20, 2015, the
Secretary shall submit to Congress a report that describes,
with respect to the reporting period--
(1) each individual tribal application received under
this section; and
(2) each contract and agreement entered into pursuant
to this section.
(g) Incorporation of Management Plans.--In carrying out a
contract or agreement under this section, on receipt of a
request from an Indian tribe, the Secretary shall incorporate
into the contract or agreement, to the maximum extent
practicable, management plans (including forest management and
integrated resource management plans) in effect on the Indian
forest land or rangeland of the respective Indian tribe.
(h) Term.--A contract or agreement entered into under this
section--
(1) shall be for a term of not more than 20 years;
and
(2) may be renewed in accordance with this section
for not more than an additional 10 years.
25 U.S.C. Sec. 415
Sec. 415. Leases of restricted lands
* * * * * * *
(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.