[Senate Report 112-263]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 575
112th Congress  }                                            {   Report
  2d Session    }            SENATE                          {  112-263

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

                                _______
                                

               December 21, 2012.--Ordered to be printed

                                _______
                                

           Mr. Akaka, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1684]

    The Committee on Indian Affairs, to which was referred the 
bill, S. 1684, to amend the Indian Tribal Energy Development 
and 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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    (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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    (iv) A tribe with an approved TERA may rescind the TERA in 
its own discretion.\61\
---------------------------------------------------------------------------
    \61\25 U.S.C. Sec. 3504(e)(8)(B); 25 C.F.R. Sec. Sec. 224.170-
224.175.
---------------------------------------------------------------------------
    (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\
---------------------------------------------------------------------------
    \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.''
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

             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.
---------------------------------------------------------------------------
    \85\25 U.S.C. Sec. 3504(e)(2)(A).
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
            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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \100\42 U.S.C. Sec. 6863(d).
---------------------------------------------------------------------------
            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).
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
            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).
---------------------------------------------------------------------------

                          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.

                                  
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