Tribal Energy Resource Agreements Law

§ 3504

TITLE 25—INDIANS

§ 3504. Leases, business agreements, and rightsof-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
(ii) a facility to process or refine energy
resources developed on tribal land; 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)).
(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

Page 744

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)).
(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).
(e) Tribal energy resource agreements
(1) On the date on which regulations are promulgated under paragraph (8), an Indian tribe
may submit to the Secretary 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.
(B) The Secretary shall approve a tribal energy resource agreement submitted under paragraph (1) 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;
(ii) the tribal energy resource agreement includes provisions required under subparagraph
(D); and
(iii) the tribal energy resource agreement includes provisions that, with respect to a lease,
business agreement, or right-of-way under this
section—
(I) ensure the acquisition of 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;

Page 745

TITLE 25—INDIANS

(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-ofway;
(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);
(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) 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 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 appro-

§ 3504

priate mitigation measures 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; 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 rightof-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.
(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), 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.
(3) 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 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—
(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

§ 3504

TITLE 25—INDIANS

(C) provide the Indian tribe with an opportunity to revise and resubmit the tribal energy resource agreement.
(5) 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 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 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 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
under this section, and the provisions of subparagraph (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 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-ofway entered into pursuant to an approved tribal
energy resource agreement.
(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 nego-

Page 746

tiated terms of, a lease, business agreement, or
right-of-way executed pursuant to and in accordance with a tribal energy resource agreement approved by the Secretary under paragraph (2).
(7)(A) In this paragraph, the term ‘‘interested
party’’ means any person (including an entity)
that has demonstrated 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 under paragraph (2).
(B) After exhaustion of any tribal remedy, 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 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.
(ii) The Secretary may adopt procedures under
paragraph (8) authorizing an extension of time,
not to exceed 120 days, for making the determination 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—
(I) temporarily suspending any activity
under a lease, business agreement, or right-ofway 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

Page 747

§ 3505

TITLE 25—INDIANS

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).
(E) Before taking an action described in subparagraph (D)(iii), the Secretary shall—
(i) make a written determination that describes the manner in which 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.
(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) 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 implement-

ing tribal energy resource agreements in accordance with this section.
(Pub. L. 102–486, title XXVI, § 2604, as added Pub.
L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat.
769.)
REFERENCES IN TEXT
The Surface Mining Control and Reclamation Act of
1977, referred to in subsec. (f)(2), is Pub. L. 95–87, Aug.
3, 1977, 91 Stat. 445, as amended, which is classified generally to chapter 25 (§ 1201 et seq.) of Title 30, Mineral
Lands and Mining. For complete classification of this
Act to the Code, see Short Title note set out under section 1201 of Title 30 and Tables.
The Indian Mineral Development Act of 1982, referred
to in subsec. (f)(3), is Pub. L. 97–382, Dec. 22, 1982, 96
Stat. 1938, which is classified generally to chapter 23
(§ 2101 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 2101 of this title and Tables.
PRIOR PROVISIONS
A prior section 3504, Pub. L. 102–486, title XXVI, § 2604,
Oct. 24, 1992, 106 Stat. 3114, related to Indian energy resource regulation, prior to the general amendment of
this chapter by Pub. L. 109–58.

§ 3505. Federal power marketing administrations
(a) Definitions
In this section:
(1) The term ‘‘Administrator’’ means the Administrator of the Bonneville Power Administration and the Administrator of the Western
Area Power Administration.
(2) The term ‘‘power marketing administration’’ means—
(A) the Bonneville Power Administration;
(B) the Western Area Power Administration; and
(C) any other power administration the
power allocation of which is used by or for
the benefit of an Indian tribe located in the
service area of the administration.
(b) Encouragement of Indian tribal energy development
Each Administrator shall encourage Indian
tribal energy development by taking such actions as the Administrators determine to be appropriate, including administration of programs
of the power marketing administration, in accordance with this section.
(c) Action by Administrators
In carrying out this section, in accordance
with laws in existence on August 8, 2005—
(1) each Administrator shall consider the
unique relationship that exists between the
United States and Indian tribes;
(2) power allocations from the Western Area
Power Administration to Indian tribes may be
used to meet firming and reserve needs of Indian-owned energy projects on Indian land;
(3) the Administrator of the Western Area
Power Administration may purchase non-federally generated power from Indian tribes to
meet the firming and reserve requirements of
the Western Area Power Administration; and
(4) each Administrator shall not—
(A) pay more than the prevailing market
price for an energy product; or
(B) obtain less than prevailing market
terms and conditions.