[Senate Report 113-224]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 501
113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-224

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

                                _______
                                

                 July 30, 2014.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2132]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 2132) 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 an 
amendment, and recommends that the bill, as amended, do pass.

                          Need for Legislation

    In recent years the Committee has received concerns and 
complaints from Indian tribes that the many Federal laws 
governing the development of tribal energy resources are 
complex and often lead to significant cost, delay and 
uncertainty for all parties of tribal energy transactions. 
These costs, delays and uncertainties tend to discourage 
development of tribal trust energy resources and drive 
development investments to private or non-tribal lands that are 
not subject to these same Federal laws. Generally, this bill is 
intended to remove some of the disincentives to developing 
tribal trust energy resources and assist Indian tribes 
interested in pursuing the development of these resources 
consistent with the policy of Indian self-determination.

                                Purpose

    The purpose of S. 2132 is to amend certain provisions of 
the Energy Policy Act of 2005\1\ to further enhance the ability 
of Indian tribes to exercise self-determination over the 
development of energy resources located on tribal lands; to 
establish tribal biomass demonstration projects; to improve, 
facilitate, and make more effective the implementation of the 
program in Indian Country under section 413(d) of the Energy 
Conservation and Production Act;\2\ and to otherwise facilitate 
Indian tribal governments in their goals to develop both 
renewable and non-renewable energy resources for the benefit of 
current and future generations of Indian people.
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    \1\Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 
(2005) (codified in scattered sections of Titles 25 U.S.C., 26 U.S.C., 
and 42 U.S.C.).
    \2\Pub. L. No. 94-385, Sec. 413(d) (codified at 42 U.S.C. 
Sec. 6863(d)).
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                               Background

    Due to increased population and growing economies, global 
energy demand is expected to increase by one-third from 2011 to 
2035, with increases in oil by 13%, coal by 17%, natural gas by 
48%, nuclear by 66% and renewables by 77%.\3\ Corresponding 
with this increase in demand is an increase in energy supply--
due to new drilling technologies in the United States, there 
has been spectacular growth in ``light tight oil'' production 
from low permeable shale formations in recent years.\4\
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    \3\International Energy Agency, World Energy Outlook 2013, November 
2013 at 55.
    \4\International Energy Agency, World Energy Outlook 2013, November 
2013 at 424.
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    The primary location for light tight oil production in the 
United States is the Bakken Formation in North Dakota, which is 
the largest known continuous oil accumulation in the United 
States.\5\ In the heart of the Bakken formation lies the Fort 
Berthold Indian Reservation, home to the Mandan, Hidatsa, and 
Arikara tribes. Although the Fort Berthold Indian Reservation 
contains an abundance of resources lying within the Bakken 
formation, tribal access to the resources is hindered by the 
complex Federal laws and regulations that apply to Indian 
reservations. The Federal process for obtaining a permit to 
extract Indian energy resources can take up to two years, 
whereas the permitting process for development of non-Indian 
energy resources on adjacent private or non-tribal land 
typically takes less than two weeks.\6\
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    \5\International Energy Agency, World Energy Outlook 2013, November 
2013 at 475.
    \6\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).
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    Delays in leasing and permitting for new energy production 
sites are especially costly to Indian tribes in light of the 
renaissance in light tight oil production. As opposed to 
conventional oil production, the production of light tight oil 
rapidly declines at each well, requiring continuous investment 
and drilling of new wells to maintain production.\7\ It takes 
many wells and continuous drilling to achieve sustainable 
production. Maintaining the energy production at the Bakken 
formation will require drilling around 2,500 wells per year, 
compared to 60 new wells typically required in a conventional 
oil field.\8\ Additionally, new advancements in drilling rigs 
are making it possible for wells to be drilled and resources to 
be tapped at a faster rate, increasing the need for 
improvements to the tribal energy leasing process for Indian 
tribes to be able to compete in the energy market.\9\
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    \7\International Energy Agency, World Energy Outlook 2013, November 
2013 at 467.
    \8\International Energy Agency, World Energy Outlook 2013, November 
2013 at 475-476.
    \9\In North Dakota, 2,086 wells were spudded in 2012, using 200 
drillings, and averaging ten wells per rig over the course of the year. 
This represents a significant improvement on the 2011 average of 8 
wells per rig (1,528 wells with 82 rigs). International Energy Agency, 
World Energy Outlook 2013, November 2013 at 453.
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    This bill, S. 2132, would help level the playing field for 
Indian tribes that, if they so choose, can participate in the 
new and expanding energy market in the United States. If S. 
2132 were enacted, Indian tribes would be able to lease and 
develop their trust energy resources in a timely, responsible, 
and profitable way.

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

    Historically, most energy development on Indian lands has 
been carried out under the authority of the Indian Mineral 
Leasing Act of 1938\10\ (IMLA) and its implementing 
regulations\11\ or the Indian Mineral Development Act of 
1982\12\ (IMDA) and its implementing regulations.\13\ Prior to 
the enactment of the IMLA, minerals on Indian lands were 
developed under a number of Federal statutes dating back to 
1891.\14\
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    \10\Act of May 11, 1938, 52 Stat. 347 (codified at 25 U.S.C. 
Sec. Sec. 396a-396g).
    \11\25 C.F.R. pt. 211.
    \12\Indian Mineral Development Act of 1982, Pub. L. No. 97-382, 96 
Stat. 1938 (codified at 25 U.S.C. Sec. Sec. 2101-2108).
    \13\25 C.F.R. pt. 225.
    \14\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.''\15\ The IMDA 
was specifically intended to provide Indian tribes both with a 
greater role and with more flexibility in the mineral 
development process than is possible under the IMLA, by 
allowing the Indian tribes themselves to negotiate and 
structure mineral agreements. The IMDA was a significant policy 
step in furtherance of the broader Federal policy of Indian 
self-determination.\16\
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    \15\25 U.S.C. Sec. 2102(a).
    \16\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 Indian tribe and a 
third party and determine whether it is in the best interest of 
the Indian tribe in light of several economic and non-economic 
factors.\17\ If the Secretary is not satisfied that the 
proposed agreement meets the statutory test, the Secretary may 
disapprove it.\18\ The IMDA's implementing regulations also 
authorize the Secretary to cancel agreements for a range of 
violations by an operator\19\ 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.''\20\ 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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    \17\25 U.S.C. Sec. 2103(b).
    \18\Id. Sec. 2103(a)-(b).
    \19\25 C.F.R. Sec. 225.36.
    \20\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.\21\ 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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    \21\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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Costly delays due to burdensome Federal processes for energy 
        development on tribal lands

    Approval of leases or agreements involving Indian lands by 
the Secretary is an act of a Federal official that triggers the 
environmental review process under the National Environmental 
Policy Act (NEPA).\22\ 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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    \22\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.\23\
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    \23\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 the Committee's legislative hearing for S. 2132 held on 
April 30, 2014, Chairman Howell of the Ute Indian tribe of the 
Uintah and Ouray Reservation submitted written testimony about 
the hindrances of federal oversight and regulations. In his 
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testimony, Chairman Howell stated:

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

    At the same legislative hearing, Chairman Olguin of the 
Southern Ute Tribe testified about a letter written to Regional 
Director of the Bureau of Indian Affairs in 2009 explaining the 
impacts of the bureaucratic delays. He stated in his written 
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testiomony (quoting the letter) the following:

          [A]pproximately 24 Applications for Permit to Drill 
        (APDs) await BIA concurrence. Additionally, 
        approximately 81 pipeline [Rights-of-way] await 
        issuance by the BIA. Of the 81 pending ROWs, 11 were 
        approved in Tribal Council resolutions adopted in 2006, 
        44 were approved in Tribal Council resolutions adopted 
        in 2007, 22 were approved in Tribal Council resolutions 
        adopted in 2008, and 4 were approved in Tribal Council 
        resolutions adopted in 2009. . . . We estimate that 
        lost revenue attributable to severance taxes and 
        royalties alone exceeds $94,813,739. Significantly, 
        during the period of delay, prices for natural gas rose 
        to an historic high, but have now declined to 
        approximately one-third of that market value. Thus, 
        much of this money will never be recovered by the 
        Tribe.\25\
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    \25\Id. (testimony by James Olguin, Acting Chairman, Southern Ute 
Indian tribe).
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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\26\ (ITEDSDA), 
created Indian energy programs within the Department of the 
Interior and the Department of Energy;\27\ established energy-
related grant and technical assistance programs for Indian 
tribes and Alaska Native corporations;\28\ encouraged the 
Bonneville and Western Power Administrations to facilitate the 
development of tribal energy resources;\29\ and authorized a 
feasibility study for developing tribal wind and hydropower 
demonstration projects on the Missouri River.\30\
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    \26\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).
    \27\25 U.S.C. Sec. 3502(a)-(c).
    \28\25 U.S.C. Sec. 3503.
    \29\25 U.S.C. Sec. 3505.
    \30\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.\31\ 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.\32\ When operating under a TERA, an 
Indian tribe can enter into leases, business agreements, and 
rights-of-way without any further approval of the Secretary.
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    \31\25 U.S.C. Sec. 3504.
    \32\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.\33\
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    \33\Tribal Energy Self-Sufficiency Act and the Native American 
Energy and Self-Determination Act: Hearing on S. 424 and S. 522 Before 
the S. Comm. on Indian Affairs, 108th Cong. (2003).
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    While there were a number of significant differences 
between the two bills, 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.\34\ Both bills also would have authorized Indian 
tribes to grant rights-of-way to third parties to serve energy-
related facilities located on tribal lands without Secretarial 
approval if done pursuant to tribal regulations approved by the 
Secretary.
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    \34\Section 103(b) of S. 424 would allow 30-year leases of tribal 
land for siting ``electrical generation, transmission, or 
distribution'' facilities (such as coal-fired power plants) or 
facilities that ``refine or otherwise process renewable or non-
renewable resources'' (such as oil refineries) developed on tribal 
land. S. 522 would allow 30-year leases of tribal land for similar 
purposes as those authorized in S. 424 but also for ``exploration for, 
extraction of, processing of, or other development of energy 
resources'' (i.e., oil, gas, or coal development and production). The 
model for this feature of S. 424 and S. 522--authorizing leases of 
tribal land without Secretarial approval if done pursuant to tribal 
regulations that had been approved by the Secretary--was the Navajo 
Nation Trust Land Leasing Act of 2000, which was enacted as part of the 
Omnibus Indian Advancement Act. See Title XII of Pub. L. No. 106-568, 
114 Stat. 2933 (2000).
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    Both S. 424 and S. 522 included liability waiver clauses 
that would protect the United States from claims arising from 
losses sustained as a result of leases entered into pursuant to 
the authority under the bills. Although worded somewhat 
differently, the waivers in the two bills were fairly broad in 
scope and similar in effect.\35\
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    \35\The liability waiver clauses in S. 424 and S. 522 are similar 
to the liability waiver provision in the IMDA, 25 U.S.C. Sec. 2103(e). 
See supra note 21 and accompanying text.
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    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.''\36\ 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.''\37\
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    \36\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).
    \37\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 Indian tribe and the Secretary in lieu of ``tribal 
regulations'' approved by the Secretary, so that leases, 
agreements, and rights-of-way would not require Secretarial 
approval if entered into pursuant to an approved TERA.\38\ 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.\39\
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    \38\See note 59, 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.
    \39\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,\40\ 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.\41\
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    \40\See also S. 14; H.R. 6; H.R. 238; H.R. 1531; H.R. 1644.
    \41\See Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119 
Stat. 594 (2005). On March 10, 2008, the Department adopted regulations 
implementing the TERA provisions of the Energy Policy Act of 2005. See 
Tribal Energy Resource Agreements Under the Indian Tribal Energy 
Development and Self-Determination Act, 73 Fed. Reg. 12821 (Mar. 10, 
2008) (codified at 25 C.F.R. pt. 224).
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            b. Key provisions of the TERA process under current law
    The following is a summary of the key provisions of the 
TERA process in the ITEDSDA.\42\
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    \42\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 
Indian 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.\43\
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    \43\The TERA regulations do not directly address this question but 
do indicate that the Indian 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 C.F.R. Sec. 224.52(a)-(b).
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    4. Kinds of agreements authorized. Once a TERA has been 
approved by the Secretary, the Indian tribe may, without 
further approval of the Secretary, enter into energy leases, 
business agreements, and, for certain energy-related purposes, 
rights-of-way.\44\
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    \44\25 U.S.C. Sec. 3504(a)-(b) imposes limitations on the duration 
of the term (30 years for most leases and business agreements and for 
rights-of-way and, in the case of oil and gas leases, ``10 years and as 
long thereafter as oil or gas is produced in paying quantities''). 
However, Indian tribes may renew leases, business agreements, and 
rights-of-way under Sec. 3504(c).
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    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.\45\ Conceivably, an Indian 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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    \45\See supra note 43; see also 25 C.F.R. Sec. 224.30 (defining 
``Energy Resources'' as ``including, but not limited to, natural gas, 
oil, uranium, coal, nuclear, wind, solar, geothermal, biomass, and 
hydrologic resources''). 25 U.S.C. Sec. 3504(a) itself expressly 
mentions ``energy mineral resources,'' ``electric generation, 
transmission, or distribution'' facilities, and oil and gas resources.
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    6. Approval of the TERA by the Secretary. The tribal 
authority to approve leases, business agreements, and rights-
of-way without Secretarial approval requires that the Indian 
tribe have a TERA in place that has been approved by the 
Secretary.\46\
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    \46\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.\47\
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    \47\The regulations at 25 C.F.R. 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.\48\
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    \48\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.\49\
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    \49\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.''\50\
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    \50\25 U.S.C. Sec. 3504(e)(3); 25 C.F.R. Sec. 224.70.
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    (iv) The Secretary ``shall approve''\51\ 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),\52\ one of which is the 
environmental review process required under section 
3504(e)(2)(C).
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    \51\25 U.S.C. Sec. 3504(e)(2)(B).
    \52\See also 25 C.F.R. Sec. 224.63.
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    (v) The Secretary must notify the Indian tribe in writing 
of a disapproval decision within 10 days of the decision, 
stating the basis for disapproval and identifying the changes 
or other actions that are required to address the Secretary's 
concerns and providing the Indian tribe with an opportunity to 
revise and re-submit the TERA.\53\
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    \53\25 U.S.C. Sec. 3504(e)(4); 25 C.F.R. Sec. 224.75. Under the 
regulations, the Indian tribe has 45 days (or such longer time as the 
tribe and the Secretary may agree) after receiving a notice of 
disapproval to resubmit a revised TERA. 25 C.F.R. Sec. 224.76.
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    (vi) The Secretary ``shall approve'' the revised TERA if it 
meets the same 3 criteria set forth in paragraph (iv), above, 
applicable to the original version of the TERA.\54\ The 
Secretary has only 60 days within which to approve or 
disapprove a revised TERA.\55\
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    \54\25 U.S.C. Sec. 3504(e)(2).
    \55\Id.; 25 C.F.R. Sec. 224.76. Under the regulations, a 
disapproval of a revised TERA is a ``final agency action'' and subject 
to judicial review. 25 C.F.R. Sec. 224.77. Under the regulations, only 
the Indian tribe has standing to seek judicial review of a decision to 
disapprove a TERA or a revised TERA. 25 C.F.R. Sec. 224.77.
---------------------------------------------------------------------------
    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(iv)(2) above.) The review must be 
conducted annually unless, after the third annual review, the 
Indian tribe and the Secretary agree to amend the TERA to allow 
biannual reviews.\56\
---------------------------------------------------------------------------
    \56\25 U.S.C. Sec. 3504(e)(2)(D)-(E).
---------------------------------------------------------------------------
    (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.\57\ If the TERA 
authorizes ``direct payment'' leases and agreements, the Indian 
tribe must furnish the Secretary with sufficient information to 
discharge the Secretary's trust responsibility to enforce the 
terms of the lease or agreement and protect the rights of the 
tribe.\58\
---------------------------------------------------------------------------
    \57\25 U.S.C. Sec. 3504(e)(2)(B)(iii)(XIII)-(5)(A); 25 C.F.R. 
Sec. 224.83(b).
    \58\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 if they believe the Indian tribe is not 
complying with its own TERA. To have standing to invoke this 
process, the third party must be an ``interested person . . . 
[who] has demonstrated that an interest of the person has 
sustained, or will sustain, an adverse environmental impact as 
a result of the failure of the Indian tribe to comply'' with 
its TERA.\59\ 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.\60\ The regulations set forth the petitioning 
process in detail and provide the Indian tribe with significant 
opportunities to deny, address, or otherwise resolve the 
allegations. If, in the end, the Secretary determines that the 
tribe is in violation of the TERA, the Secretary must take 
``such action as the Secretary determines to be necessary to 
ensure compliance'' with the TERA, including suspending 
activities under a lease, agreement, or right-of-way or 
rescinding approval of all or part of the TERA.\61\
---------------------------------------------------------------------------
    \59\25 U.S.C. Sec. 3504(e)(7)(A)-(B); 25 C.F.R. Sec. 224.100-
224.101 (emphasis added). As discussed supra at note 34 and in the 
accompanying text, the ITEDSDA used TERAs in lieu of tribal regulations 
approved by the Secretary, as in the case of the Navajo Nation Trust 
Land Leasing Act of 2000 (25 U.S.C. Sec. 415(e)) and the Helping 
Expedite and Advance Responsible Tribal Home Ownership Act of 2012 
(Pub. L. No. 112-151, 126 Stat. 1150 [hereinafter HEARTH Act], 
providing similar authority for all Indian tribes to enter into surface 
leases without the Secretary's approval if done pursuant to tribal 
regulations that had been approved by the Secretary. Under the TERA 
process, a third-party petitioner must complain that that the Indian 
tribe has violated an agreement (i.e., a TERA) entered into between the 
United States and the Indian tribe. See 25 U.S.C. Sec. 3504(e)(7)(A)-
(B); 25 C.F.R. Sec. 224.100-224.101. The Indian canons of construction 
dictate that treaties and agreements between the United States and 
Indian tribes must be liberally construed in favor of the tribe; 
therefore, TERAs should be construed in favor of the tribe when the 
Secretary is entertaining a third-party petition. See Worcester v. 
Georgia, 31 U.S. 515, 552-53, 582 (1832); Choate v. Trapp, 224 U.S. 
665, 675 (1912); and County of Oneida v. Oneida Indian Nation, 470 U.S. 
226, 147 (1985). Further, Sec. 3504(e)(6) requires the Secretary to 
carry out the section ``in good faith and in the best interests of the 
Indian tribes.'' See also 25 C.F.R. Sec. 224.40.
    \60\25 U.S.C. Sec. 3504(e)(7)(B); 25 C.F.R. Sec. 224.100.
    \61\25 U.S.C. Sec. 3504(e)(7)(D)(iii); 25 C.F.R. Sec. 224.120.
---------------------------------------------------------------------------
    (iv) An Indian tribe with an approved TERA may rescind the 
TERA in its own discretion.\62\
---------------------------------------------------------------------------
    \62\25 U.S.C. Sec. 3504(e)(8)(B); 25 C.F.R. Sec. 224.170-224.175.
---------------------------------------------------------------------------
    (v) Like the IMDA, the Navajo Nation Trust Land Leasing 
Act, and, most recently, the HEARTH Act, the TERA provisions of 
the ITEDSDA include a liability waiver clause\63\ 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.\64\ ``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.\65\ 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.\66\
---------------------------------------------------------------------------
    \63\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
    \64\25 U.S.C. Sec. 3504(e)(6)(D)(i).
    \65\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
    \66\Nor would the clause protect the United States from liability 
for losses resulting from a lease, agreement, or right-of-way that was 
entered into by the Indian tribe and a third party but that was not 
authorized under the terms of the tribe's TERA. For instance, as noted 
above, the TERA might only authorize development of a specific kind of 
energy resource, such as wind energy. If the Indian tribe proceeds to 
enter into a solar project agreement or an oil and gas or coal lease, 
and provides a copy of the lease to the Secretary pursuant to 25 C.F.R. 
Sec. 224.83(b), it seems unlikely the United States could argue 
successfully that any losses resulted from the ``negotiated terms'' of 
a lease entered into ``pursuant to an approved tribal energy resource 
agreement.''
---------------------------------------------------------------------------
            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\67\ and the other 
by Benjamin J. Fosland.\68\
---------------------------------------------------------------------------
    \67\Judith V. Royster, Practical Sovereignty, Political 
Sovereignty, and the Indian Tribal Energy Development and Self-
Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008).
    \68\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.\69\ In his article, 
Benjamin J. Fosland addresses the 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.\70\ He 
concludes that all three criticisms of the ITEDSDA ``are 
largely unwarranted.''\71\
---------------------------------------------------------------------------
    \69\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 67 at 1087-1101. Some of 
these concerns were echoed by tribal representatives to Committee staff 
prior to and after the introduction of the bill. The comment most often 
heard was that the ITEDSDA does not include financial assistance for 
Indian tribes that enter into TERA. The trust responsibility concern 
was mentioned but less prominently, perhaps reflecting a growing 
awareness among Indian tribes that the liability waiver in the ITEDSDA 
is narrower than that in the IMDA and that the ITEDSDA requires 
considerable involvement of the Secretary in protecting the tribal 
interest notwithstanding the approval of a TERA.
    \70\Fosland, supra note 68 at 449.
    \71\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 Indian tribes that 
might be interested in pursuing the TERA process\72\--
---------------------------------------------------------------------------
    \72\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.\73\
---------------------------------------------------------------------------
    \73\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 Indian 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.''\74\
---------------------------------------------------------------------------
    \74\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.\75\
---------------------------------------------------------------------------
    \75\Royster, supra note 67 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.''\76\ 
Benjamin J. Fosland reaches a similar conclusion in his article 
on the TERA process.\77\ Moreover, the broad tribal support\78\ 
for the recently adopted HEARTH Act\79\ 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.\80\ 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 
an Indian tribe is violating its own leasing regulations.\81\
---------------------------------------------------------------------------
    \76\Id. at 1090 (citations omitted).
    \77\Fosland, supra note 68 at 459.
    \78\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).
    \79\Pub. L. No. 112-151, 126 Stat. 1150. Section 2 of the HEARTH 
Act amends 25 U.S.C. Sec. 415 by adding at the end a new subsection 
(h), authorizing tribal leasing of surface tribal trust lands without 
approval of the Secretary if done pursuant to tribal regulations that 
have been approved by the Secretary. The HEARTH Act is essentially the 
same authority as provided in the Navajo Nation Trust Land Leasing Act 
of 2000 (which is set forth in subsection (e) of section 415), except 
that it is available for all Indian tribes with tribal trust lands.
    \80\HEARTH Act Sec. 2.
    \81\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.''\82\ 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\83\ 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.''\84\ Again, despite the fact that the recently 
enacted HEARTH Act has a very explicit and direct liability 
waiver clause,\85\ the Indian tribes vigorously supported the 
adoption of the Act in 2012, suggesting that many tribes have 
reached some level of comfort with the implications of these 
clauses.
---------------------------------------------------------------------------
    \82\Royster, supra note 67 at 1099-1100.
    \83\537 U.S. 488 (2003).
    \84\Royster, supra note 67 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).
    \85\``The United States shall not be liable for losses sustained by 
any party to a lease executed pursuant to tribal regulations under 
paragraph (1).'' HEARTH Act Sec. 2.
---------------------------------------------------------------------------
    At the legislative hearing held by the Committee on S. 
2132, the Administration expressed concerns about the waiver of 
liability provisions in the bill and recommended replacing the 
waiver of liability provisions that apply to tribal energy 
resource agreements with the waiver of liability provision in 
the HEARTH Act.\86\ The Administration testified the waiver of 
liability under a TERA and under the HEARTH Act is ``slightly 
different language to reach the same basic meaning'' and that 
it ``doesn't accomplish much difference.'' The Committee 
strongly disagrees. The HEARTH Act has a liability waiver that 
is broader than the TERA liability waiver. The HEARTH Act 
absolves the United States of liability ``for losses sustained 
by any party to a lease executed pursuant to tribal 
regulations'' approved by the Secretary under the HEARTH 
Act.\87\ In contrast, for TERAs, both under the ITEDSDA and S. 
2132, the United States is only absolved of liability ``for any 
negotiated term of a lease, business agreement, or right-of-way 
executed pursuant . . . to a tribal energy resource 
agreement.''\88\ When an Indian tribe is operating under a 
TERA, the United States is still liable for any actions or 
losses that are not a negotiated term, whereas when a tribe is 
operating under regulations approved by the Secretary under the 
HEARTH Act the liability of the United States is much more 
limited.\89\ The Committee is concerned that adopting the 
waiver of liability in the HEARTH Act could compromise the 
waiver of liability applicable to TERAs that was carefully 
negotiated and enacted in Title V of the Energy Policy Act of 
2005.\90\ For these reasons, the Committee continues to support 
the liability language contained in ITEDSDA and as clarified in 
S. 2132.
---------------------------------------------------------------------------
    \86\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014) (testimony by Kevin 
Washburn, Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 
U.S. Department of the Interior).
    \87\Pub. L. No. 112-151, 126 Stat. 1150 (codified at 25 U.S.C. 
Sec. 415(h)(7)(A)).
    \88\25 U.S.C. Sec. 3504(e)(6)(D).
    \89\``Negotiated term is defined as ``any term or provision that is 
negotiated by an Indian tribe and any other party to a lease, business 
agreement, or right-of-way entered into pursuant to an approved tribal 
energy resource agreement.'' 25 U.S.C. Sec. 3504(e)(6)(D)(i).
    \90\Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119 
Stat. 594 (2005).
---------------------------------------------------------------------------

             Key Provisions of the Bill as Ordered Reported

    At a business meeting convened on May 21, 2014, the 
Committee approved a number of amendments to the bill and 
ordered the bill, as amended, to be reported favorably. The 
following is a description of the key provisions of the bill as 
ordered 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.\91\ 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.
---------------------------------------------------------------------------
    \91\25 U.S.C. Sec. 3504(e)(2)(A).
---------------------------------------------------------------------------
            b. Reasons for disapproving a TERA
    Under S. 2132, 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;\92\ (3) the TERA 
does not include the required periodic review and evaluation 
provisions;\93\ and (4) the TERA does not include any of the 
required enumerated provisions.\94\
---------------------------------------------------------------------------
    \92\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.
    \93\25 U.S.C. Sec. 3504(e)(2)(D).
    \94\25 U.S.C. Sec. 3504(e)(2)(B)(iii).
---------------------------------------------------------------------------
            c. Categorical exclusions
    The bill would amend section 3504(e) of the ITEDSDA\95\ to 
clarify that a tribe may identify actions that are 
categorically excluded from the review process.
---------------------------------------------------------------------------
    \95\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. The other energy 
resources may be owned by a tribe, individual Indian or any 
other person or entity, if consent is obtained from the owner.
            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 require that a 
preliminary capacity determination be made within 120 days of 
the date the TERA is submitted to the Secretary.
            f. Deeming of tribal capacity
    The bill would add a new provision that would consider an 
Indian tribe to have sufficient capacity if the Secretary finds 
that the tribe has carried out, for 3 consecutive years without 
material audit exceptions, a contract or compact under the 
Indian Self-Determination and Education Assistance Act\96\ that 
includes activities related to the management of the 
environment, tribal land, realty, or natural resources, or if 
the Indian tribe has carried out approval of surface leases 
under the HEARTH Act without a finding of a compliance 
violation within the previous calendar year.
---------------------------------------------------------------------------
    \96\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.\97\ The bill would clarify this notice by 
requiring a detailed written explanation of each reason for 
disapproval and the revisions or changes to the TERA necessary 
to address each reason.
---------------------------------------------------------------------------
    \97\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) in current law, 
but to clarify that the liability waiver clause reaches only 
losses resulting from ``negotiated terms'' and that it is not a 
blanket waiver covering all losses.
            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 Indian tribe 
is or is not out of compliance with the TERA. Finally, the bill 
would require the Secretary to dismiss the petition if the 
Indian tribe and the interested party agree to resolve the 
issues in the petition between themselves.
            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,\98\ 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.
---------------------------------------------------------------------------
    \98\25 U.S.C. Sec. 450j-1(n).
---------------------------------------------------------------------------
            k. Authorizing amendments to approved TERAs
    The bill would allow an Indian tribe to amend an approved 
TERA to assume authority for approving leases, business 
agreements, and rights-of-way for development of another energy 
resource by negotiating with the Secretary an amendment to an 
approved TERA.

Other Amendments to the ITEDSDA

    The bill would make other amendments to the ITEDSDA, both 
technical and substantive in nature, which are unrelated to the 
TERA process. The following is a summary of the more 
substantive amendments.
            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\99\ and section 3 of 
the Oklahoma Indian Welfare Act\100\ for purposes of the 
ITEDSDA.
---------------------------------------------------------------------------
    \99\25 U.S.C. Sec. 477.
    \100\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\101\ to 
require the Secretary (1) to consult with an Indian tribe 
before adopting or approving well-spacing plans affecting its 
energy resources and (2) to provide technical assistance to 
Indian tribes in planning energy resource development.
---------------------------------------------------------------------------
    \101\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 Indian tribe and a 
tribal energy development organization that is majority owned 
and controlled by the tribe--and has been certified as such by 
the Secretary\102\--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 Indian tribe itself or with an agency or 
instrumentality of the tribe for purposes of energy resource 
development on its tribal land.\103\ Under current law, a 
decision by the Indian tribe to develop its own resources 
(i.e., without relying on a lease or agreement with a third, 
non-tribal party) on its own tribal land does not require 
approval by the Secretary.
---------------------------------------------------------------------------
    \102\25 U.S.C. Sec. 3504(h). The certification by the Secretary is 
intended to provide any minority investor in the organization with the 
certainty that the organization may enter into leases, agreements, and 
rights-of-way with the Indian tribe without Secretarial approval.
    \103\This tribal agency or instrumentality status is assured by the 
certification process under section 3504(h), as added by section 103 of 
the bill. This new subsection would require the Secretary to determine 
that (1) the organization is organized under the laws of the Indian 
tribe and subject to its jurisdiction and authority; (2) the 
organization is majority owned and controlled by the tribe; and (3) the 
organizing document of the organization requires that the tribe own and 
control a majority interest in the organization at all times.
---------------------------------------------------------------------------
            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 Indian tribe or its 
contractor or, if disapproved, written notice of each reason 
for the disapproval and how the appraisal should be corrected. 
The Secretary is required to publish regulations for 
implementing the section.

Other Amendments to Federal Laws

            a. Amendment to Federal Power Act
    Section 201 of the bill would amend section 7(a) of the 
Federal Power Act\104\ to make the provisions of that section 
applicable to Indian tribes (along with States and 
municipalities). However, this section of the bill also 
provides that it does not affect preliminary permits or 
original licenses issued before the enactment date of the bill 
or any application for an original license if the Commission 
has issued a notice of accepting the application for filing 
before the enactment date of the bill.
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    \104\16 U.S.C. Sec. 800(a).
---------------------------------------------------------------------------
            b. Indian Energy Efficiency
    Section 106 of the bill would amend Part D of Title III of 
the Energy Policy and Conservation Act\105\ by adding a new 
section 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.
---------------------------------------------------------------------------
    \105\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\106\ to facilitate direct funding of Indian 
tribes to carry out the weatherization program. The amendment 
leaves intact the amount authorized to be reserved from State 
funding under current law but authorizes direct funding (1) if 
requested by the tribal organization and (2) the Secretary of 
Energy determines that the low-income members of the Indian 
tribe will be equally or better served by direct funding rather 
than through the State. The bill would also create a 
presumption that a tribally designated housing entity in good 
standing under the Native American Housing Assistance and Self-
Determination Act of 1996 would presumptively qualify as 
equally or better serving the low-income members of an Indian 
tribe.
---------------------------------------------------------------------------
    \106\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\107\ (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).
---------------------------------------------------------------------------
    \107\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 Indian tribes 
to be selected based on several enumerated criteria. The bill 
would allow participating tribes to enter into stewardship 
contracts with the Secretary of Agriculture or of the Interior 
that include Federal lands for terms not to exceed 20 years and 
a renewal term not to exceed 10 years, as opposed to the 10-
year limitation on those contracts under current law.\108\ 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.
---------------------------------------------------------------------------
    \108\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)\109\ with terms not to 
exceed 20 years and a renewal term of up to 10 years. The TFPA 
defines ``Indian forest land or rangeland'' as ``land that is 
held in trust by, or with restriction against alienation by, 
the United States'' . . . so the opportunity for Alaska tribes 
and Alaska Native corporations to participate in programs under 
the Act is virtually non-existent.\110\ Subsection 202(c) of 
this bill would assure that Alaska tribes could qualify and 
have the opportunity to participate in the biomass 
demonstration projects under this bill.
---------------------------------------------------------------------------
    \109\43 U.S.C. Sec. 1602(m).
    \110\Pub. L. No. 108-278 Sec. 2(a)(2), 118 Stat. 868 Sec. 2(a)(2) 
(2004).
---------------------------------------------------------------------------
            e. Amendments to Long-Term Leasing Act for the Navajo 
                    Nation
    Section 205 of the bill would amend subsection (e) of the 
Long-Term Leasing Act,\111\ which regards the Navajo Nation, to 
remove a limitation in that subsection on the exploration, 
development, or extraction of mineral resources. With this 
limitation in current law, subsection (e) authorizes only 
surface leases without approval of the Secretary. The bill 
would amend the subsection so that it would also authorize 
mineral leasing with a term not to exceed 25 years or, in the 
case of oil and gas, for 10 years plus any additional time that 
``the Navajo Nation determines to be appropriate where oil or 
gas is produced in a paying quantity.''
---------------------------------------------------------------------------
    \111\25 U.S.C. Sec. 415(e).
---------------------------------------------------------------------------
            f. Extension of tribal lease period for the Crow Tribe of 
                    Montana
    Section 206 of the bill would add the Crow Tribe to the 
list of Indian tribes that are authorized under 25 U.S.C. 
Sec. 415(a) to enter into public, religious, educational, 
recreational, residential, or business leases for terms up to 
99 years, with the approval of the Secretary.
            g. Trust status of lease payments
    Section 207 of the bill would require the Secretary, upon 
request of the Indian tribe or individual Indian, to hold in 
trust any advance payments, bid deposits, or other earnest 
money received by the Secretary of the Interior, in connection 
with the review and Secretarial approval of a sale, lease, or 
permit. Upon approval or disapproval of the conveyance 
instrument, the funds and the interest would be disbursed to 
the appropriate party.

                          Legislative History

    On March 13, 2014, Senator John Barrasso (R-WY) introduced 
S. 2132, along with Senators Michael Enzi (R-WY), John Hoeven 
(R-ND), John McCain (R-AZ), and John Thune (R-SD). Senators 
Lisa Murkowski (R-AK), Jerry Moran (R-KS), John Walsh (D-MT), 
Jon Tester (D-MT), Deb Fischer (R-NE) and Mark Udall (D-CO) 
were later added as co-sponsors. The bill was referred to the 
Committee on Indian Affairs. The Committee held a legislative 
hearing on the bill on April 30, 2014. At a business meeting 
held on May 21, 2014, five amendments to the bill were offered 
and adopted, and the Committee ordered the bill, as amended, 
favorably reported.

                       Summary of the Amendments

    At the business meeting held on May 21, 2014, the Committee 
approved a number of amendments to the bill.\112\ The 
amendments included one substitute amendment by Vice Chairman 
Barrasso, three amendments by Chairman Tester, and one 
amendment by Senator Udall of New Mexico.
---------------------------------------------------------------------------
    \112\Business Meeting on S. 1474, S. 1603, S. 1622, S. 1818, S. 
2040, S. 2132, and H.R. 2388 Before the S. Comm. On Indian Affairs, 
113th Cong. (2014).
---------------------------------------------------------------------------
    The Committee approved a substitute amendment from Senator 
Barrasso that, among other things, would address concerns 
raised by the Department of the Interior Assistant Secretary-
Indian Affairs, Kevin Washburn, at the legislative hearing held 
on April 30, 2014.\113\ In addition to making several 
conforming and technical changes,\114\ the substitute amendment 
would make several substantive changes.
---------------------------------------------------------------------------
    \113\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014) (testimony by Kevin 
Washburn, Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 
U.S. Department of the Interior).
    \114\The technical corrections fix cross reference errors in two 
places: (1) on line 12 of page 30, ``4'' is stricken and ``103'' is 
inserted in its place and (2) on line 13 of page 47 ``(4)'' is 
stricken.
---------------------------------------------------------------------------
    First, the substitute amendment requires a tribal energy 
development organization (TEDO) to be majority owned and 
controlled ``by the Indian tribe (or the Indian tribe and 1 or 
more other Indian tribes the tribal land of which is being 
developed)'' (emphasis added). Under the bill as introduced, 
the TEDO could be majority owned and controlled by ``the Indian 
tribe (or the Indian tribe and 1 or more other Indian 
tribes).'' At the legislative hearing for S. 2132, Assistant 
Secretary Washburn expressed concern about the TEDO concept in 
the bill.\115\ Following the legislative hearing, the 
Department of the Interior staff specified that the concern was 
allowing a TEDO to enter into leases, business agreements, or 
rights-of-way, without Secretarial approval, with entities that 
could be majority owned and controlled by any combination of 
multiple Indian tribes without regard to who owned (and could 
therefore govern activities occurring on) the land. Vice 
Chairman Barrasso's amendment would require the TEDO to be 
majority owned and controlled by the Indian tribe or tribes 
whose tribal land is being developed.
---------------------------------------------------------------------------
    \115\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014) (testimony by Kevin 
Washburn, Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 
U.S. Department of the Interior).
---------------------------------------------------------------------------
    Under S. 2132 as introduced, the Secretary would be 
required to determine whether an Indian tribe has sufficient 
capacity to regulate the development of the energy resources 
specified in the TERA application within 120 days of the tribe 
submitting the TERA application. The purpose of this language 
is to give the Indian tribe notice of any capacity concerns 
early in the process, so that it does not have to wait until 
the expiration (or near expiration) of the 270 days only to 
learn that the Secretary has these concerns. In his testimony 
on S. 2132, Assistant Secretary Washburn stated that the 
process of determining capacity likely cannot be accomplished 
within 120 days unless the issue of capacity is excluded from 
the notice and comment requirement.\116\ Vice Chairman 
Barrasso's amendment would require the Secretary to make a 
preliminary capacity determination within 120 days of the 
submission of a TERA. The Secretary would then have the 
opportunity to issue a final capacity determination anytime 
throughout the application process in compliance with the law. 
This amendment would still give Indian tribes early notice of 
any capacity concerns while providing the Secretary with an 
ample opportunity to make the required determinations.
---------------------------------------------------------------------------
    \116\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014) (testimony by Kevin 
Washburn, Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 
U.S. Department of the Interior).
---------------------------------------------------------------------------
    Additionally, the substitute amendment would require the 
Secretary to consider an Indian tribe to have sufficient 
capacity if the tribe successfully carries out for three 
consecutive years a contract or compact under the Indian Self-
Determination and Education Assistance Act\117\ relating to the 
management of the environment, tribal land, realty, or natural 
resources, or, alternatively, by carrying out approval of 
surface leases under the HEARTH Act for one calendar year 
without a finding of a compliance violation. Under the bill as 
introduced, the Secretary would be required to consider the 
Indian tribe to have sufficient capacity only if the Indian 
tribe has carried out a contract or compact under the Indian 
Self-Determination and Education Assistance Act\118\ relating 
to the management of tribal land. At the legislative hearing on 
S. 2132, Assistant Secretary Washburn recommended streamlining, 
eliminating, or refining the approach to capacity 
determinations including (1) stating ``a capacity determination 
could be based on whether a tribe contracts BIA realty 
functions;'' (2) suggesting ``Tribal authority for approving 
tribal leases . . . under the HEARTH Act may also serve as a 
clear capacity criterion for a Tribal Energy Resource 
Agreement'' because such authority is based on tribal leasing 
under regulations that ``include environmental provisions;'' 
and (3) stating that other considerations for capacity for 
environmental review and compliance could include ``experience 
of the Indian tribe in managing natural resources.''\119\ The 
amendment takes into consideration the concerns and suggestions 
of the Department.
---------------------------------------------------------------------------
    \117\25 U.S.C. Sec. 450 et seq.
    \118\25 U.S.C. Sec. 450 et seq.
    \119\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014) (testimony by Kevin 
Washburn, Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 
U.S. Department of the Interior).
---------------------------------------------------------------------------
    The substitute amendment would allow an Indian tribe to 
amend an approved TERA to assume authority for approving 
leases, business agreements, and rights-of-way for development 
of additional energy resources by negotiating with the 
Secretary an amendment to an approved TERA. This additional 
authority was recommended by the Department in testimony by 
Assistant Secretary Washburn at the legislative hearing on S. 
2132.\120\ The substitute amendment would also require the 
Secretary to implement regulations setting forth the process to 
be followed by an Indian tribe amending an approved TERA.
---------------------------------------------------------------------------
    \120\Legislative Hearing, to receive testimony on the following 
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the 
S. Comm. on Indian Affairs, 113th Cong. (2014) (testimony by Kevin 
Washburn, Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, 
U.S. Department of the Interior) (``It therefore would be helpful to 
clarify that a tribe that wants to perform only a limited function 
initially can phase in new, related functions over time as the tribe's 
capacity increases, by amending its initial, approved TERA and not by 
having to duplicate any of the still relevant elements of its initial 
TERA application'')
---------------------------------------------------------------------------
    Finally, the substitute amendment would prohibit the 
Secretary from denying a TERA or any amendment to a TERA, and 
from limiting the effect or implementation of 25 U.S.C. 
Sec. 3504 due to lack of promulgated regulations. Further, the 
substitute amendment would allow an Indian tribe to submit a 
TERA application upon enactment of this bill, as opposed to 
waiting until regulations are promulgated as required under 
current law.
    At the business meeting held on May 21, 2014, the Committee 
also approved three amendments from Chairman Tester. One 
amendment would allow tribal organizations that operate a 
Department of Housing and Urban Development Indian housing 
program in good standing to be presumed to ``equally or 
better'' serve the low income members of an Indian tribe. The 
second amendment from the Chairman would add the Crow Tribe to 
the list of Indian tribes that are authorized under 25 U.S.C. 
Sec. 415(a) to enter into public, religious, educational, 
recreational, residential, or business leases for terms up to 
99 years, with the approval of the Secretary. The third 
amendment would require the Secretary, upon the request of the 
tribe, to hold in trust any advance payments, bid deposits, or 
other earnest money received by the Secretary, in connection 
with the review and Secretarial approval of a sale, lease, or 
permit, until the contract or other instrument is approved or 
disapproved by the Secretary.
    Finally, Senator Udall of New Mexico's amendment would 
extend the Energy Department's State Energy Program to Indian 
tribes to allow grants to tribes seeking to increase energy 
efficiency in transportation, building or other sectors.\121\ 
The minimum amount of funding to be allocated to tribes is not 
less than 2.5 percent of the funds appropriated for the State 
Energy Conservation Plans under the Energy Policy and 
Conservation Act.\122\
---------------------------------------------------------------------------
    \121\Business Meeting on S. 1474, S. 1603, S. 1622, S. 1818, S. 
2040, S. 2132, and H.R. 2388 Before the S. Comm. On Indian Affairs, 
113th Cong. (2014).
    \122\Pub. L. No. 94-163.
---------------------------------------------------------------------------

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 sets forth the short title, the ``Indian Tribal 
Energy Development and Self-Determination Act Amendments of 
2014'' (hereinafter, the ``Act'').

Section 2. Table of contents

    Section 2 sets forth the table of contents.

Section 101. Indian tribal energy resource development

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

Section 102. Indian tribal energy resource regulation

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

Section 103. Tribal energy resource agreements

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

Section 104. Technical assistance for Indian tribal governments

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

Section 105. Conforming amendments

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

Section 106. Indian energy efficiency

    Section 106 adds to Part D of Title III of the Energy 
Policy and Conservation Act an Indian Energy Efficiency Program 
to provide grants to assist Indian tribes in implementing 
strategies to increase energy efficiency and develop 
alternative and renewable energy resources.
    Section 106 requires the Secretary to allocate not less 
than 2.5 percent of the funds authorized to be appropriated for 
each fiscal year under section 365(f) to be distributed to 
Indian tribes in accordance with subsection (d).
    Section 106 creates 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 authorizes Indian tribes to use grants to 
achieve the purposes of the Energy Efficiency Program and 
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 be required 
to include a description of (1) the goals of the Indian tribe 
for increased energy efficiency and conservation; (2) the 
manner in which the proposed strategy complies with the 
restrictions in the use of the grants; and (3) the manner in 
which a grant will allow the Indian tribe to fulfill the goals 
of the proposed strategy.
    Section 106 requires 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 106 limits 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.
    Under this section, an Indian tribe receiving a grant under 
section 106 is 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.

Section 201. Issuance of preliminary permits and licenses

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

Section 202. Tribal biomass demonstration project

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

Section 203. Weatherization program

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

Section 204. Appraisals

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

Section 205. Leases of restricted lands for Navajo Nation

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

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

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

Section 207. Trust status of lease payments

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

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated June 23, 2014, was prepared 
for S. 2132:

S. 2132--Indian Tribal Energy Development and Self-Determination Act 
        Amendments of 2014

    S. 2132 would require the Secretary of the Interior to 
establish a grant program to assist tribes in the development 
of energy resources on tribal lands and to improve energy 
efficiency on Indian Reservations. The bill also would modify 
the process used to give tribes authority to manage the 
development of energy resources on tribal lands. Based on 
information provided by the affected agencies, CBO estimates 
that implementing the legislation would cost $15 million over 
the 2015-2019 period, assuming appropriation of the necessary 
amounts. Because enacting the bill would not affect direct 
spending or revenues, pay-as-you-go procedures do not apply.
    S. 2132 would require the Secretary to provide grants to 
help tribes develop alternative and renewable energy resources 
on tribal lands and to increase energy efficiency on Indian 
Reservations. Tribes could use those funds for various 
projects, including installing renewable energy technology in 
tribal buildings, developing energy efficiency goals, 
encouraging behavioral changes related to energy use among 
tribal members, and conducting energy audits of buildings on 
tribal lands. Based on information regarding the cost of 
carrying out similar activities, CBO estimates that 
implementing the grant program would cost $3 million a year 
over the 2015-2019 period, assuming appropriation of the 
necessary amounts.
    The bill also would modify the process tribes use to enter 
into energy resource agreements, which shift various management 
functions related to energy development on tribal lands from 
the federal government to tribes. Under the bill, if a tribe 
takes over the management of activities that would have been 
managed by the Department of the Interior, the Secretary would 
be required to pay the tribe an amount equal to the amount that 
the agency would have spent to carry out those activities. 
Because the bill would require the agency to make payments to 
the tribe only if the agency received appropriations to carry 
out those activities, CBO estimates that implementing that 
provision would have no net effect on the federal budget.
    S. 2132 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Tribes would benefit from greater flexibility, grants, and 
technical assistance authorized by the bill for energy 
development. Any cost to tribes would be incurred voluntarily 
as a condition of receiving federal assistance or participating 
in a voluntary federal program.
    On July 9, 2013, CBO transmitted a cost estimate for H.R. 
1548, the Native American Energy Act, as ordered reported by 
the House Committee on Natural Resources on June 12, 2013. The 
two pieces of legislation contain several similar provisions, 
and the CBO cost estimates of those provisions are the same.
    The CBO staff contacts for this estimate are Martin von 
Gnechten, Megan Carroll, and Jeff LaFave. The estimate was 
approved by Theresa Gullo, Deputy Assistant Director for Budget 
Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 2132 
would have a minimal impact on regulatory or paperwork 
requirements.

                        Executive Communications

    The Committee has not received any formal communication on 
S. 2132 from the Administration other than the written 
testimony from the Department of the Interior and the 
Department of Energy submitted at the Legislative Hearing on S. 
2132 on April 30, 2014:

   Testimony of Kevin Washburn, Assistant Secretary--Indian Affairs, 
                       Department of the Interior

    Good afternoon Chairman Tester, Vice-Chairman Barrasso and 
Members of the Committee. My name is Kevin Washburn and I am 
the Assistant Secretary for Indian Affairs at the Department of 
the Interior (Department). Thank you for the opportunity to 
present testimony for the Department on S. 2132, the ``Indian 
Tribal Energy Development and Self-Determination Act Amendments 
of 2014.'' S. 2132 is legislation to amend the Indian Tribal 
Energy Development and Self-Determination Act of 2005.
    The Department believes that it is appropriate to consider 
amendments to Title V of the Energy Policy Act of 2005, 
relating to tribal energy resource agreements (TERAs). The 
Energy Policy Act sought to increase tribal self-governance 
over energy development. That Act authorized TERA which are 
designed to shift authority for the review, approval, and 
management of leases, business agreements, and rights-of-way 
for energy development on tribal lands from the Federal 
government to participating tribes. Sadly, however, the Energy 
Policy Act has not been successful. Indeed, since promulgation 
of the Department's TERA regulations in 2008, the Department 
has not received a single TERA application.
    The Department supports the goal of increasing tribal self-
governance in the area of energy and mineral development. The 
Department believes that environmentally responsible 
development of tribal energy resources is critical to the 
economic viability of many American Indian Tribes and to the 
sustainability of many Alaska Native villages. Energy and 
mineral development represents a near-term solution for many 
tribes to promote economic development, small business, capital 
investment, Indian-owned businesses, and job creation for 
tribal members. TERAs are designed to promote tribal 
sovereignty and economic self-sufficiency by establishing a 
process where tribes can assume a greater role in the 
development of their energy and mineral resources.
    Key to a tribe's ultimate success under a TERA is its 
capacity to perform the functions and responsibilities outlined 
in a TERA--functions and responsibilities historically 
performed by the Department. Under existing law, the Department 
plays a critical role in determining a tribe's capacity to take 
on those functions. S. 2132 seeks among other things to 
simplify and expedite the TERA process. This is a laudable 
goal. While the Department supports this overall goal, the 
Department would like to work with the Committee to further 
improve S. 2132 as described below.


                 implementation of the 2005 amendments


    As noted, the current TERA regime has not been successful. 
This is not for lack of effort by the Department. Under current 
regulations, a tribe can request a pre-application meeting with 
the Office of Indian Energy and Economic Development (OIEED) to 
discuss any regulatory or administrative activities it might 
wish to exercise through a TERA. These informal pre-application 
meetings include discussion of the required content of a TERA 
application, such as identifying the energy resources the tribe 
anticipates developing; what capacity, management, and 
regulation will be needed to develop the energy resource; and 
potential mechanisms for building the capacity and pursuing 
other activities related to the energy resource the tribe 
anticipates developing. Since 2008, the Department has met with 
six tribes who have considered entering into a TERA. Of these 
tribes, one had active oil and gas development occurring on its 
reservation and was considering a TERA for further oil and gas 
development. The other tribes were considering renewable energy 
resource development. We understand that several tribes with 
renewable energy resources have expressed an interest in 
developing a TERA.
    The Department supports several of the provisions in S. 
2132:
     Sec. 101(a)(1)(E), requiring consultation 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. The 
Department notes, however, that this consultation requirement 
could slow the timeframe for adoption or approval of well 
spacing programs or plans.
     Sec. 101(a)(4)(B), promoting cooperation with the 
Department of Energy's Office of Indian Energy Policy and 
Programs in providing assistance to tribes in development of 
energy plans. (The Department also believes that cooperation 
with other federal agencies is important and has made efforts 
to accomplish such cooperation, through the White House Native 
American Affairs Council.)
     Sec. 102(1) that adds ``tribal energy development 
organization'' as an eligible entity for grants under this 
section.
     Sec. 102(2) that adds ``tribal energy development 
organization'' as an eligible entity for technical assistance 
from the Department or eligible for financial assistance to 
procure technical assistance.
     Sec. 103(a)(1) that adds ``production'' to 
``facility'' and specifically includes a facility that produces 
electricity from renewable energy resources. Energy resources 
developed on lands owned by individual Indians in fee, trust, 
or restricted status as well as energy resources developed on 
land owned by any other persons or entities may be included in 
leases, business agreements, and rights-of-way a tribe or 
tribal energy development organization may approve as long as a 
portion of the energy resources have been developed on tribal 
land. The amendment also expands ``facility to process or 
refine energy resources'' to specifically include renewable 
energy resources and to add energy resources that are 
``produced from,'' in addition to energy resources ``developed 
on,'' tribal land. The amendment includes pooling, unitization, 
or communitization of the energy mineral resource(s) of the 
tribe with energy mineral resource(s) owned by individual 
Indians in fee, trust, or restricted status or owned by any 
other persons or entities.
     Sec. 103, which expands purposes for rights-of-way 
under a TERA beyond pipelines, electric transmission or 
distribution lines that serve electric generation, transmission 
or distribution facilities located on tribal land to include 
those lines that also serve an electric production facility or 
a facility located on tribal land that extracts, produces, 
processes, or refines energy resources (not necessarily 
produced on tribal land) and lines that serve the purposes of 
or facilitate the purposes of any lease or business agreement 
entered into for energy resource production on tribal land.
     Sec. 103, which expands the time period for 
Secretarial approval of a revised TERA from 60 days to 90 days.
     Sec. 103, which provides that a Tribal Energy 
Resource Agreement remains in effect until rescinded by the 
tribe or Secretarial re-assumption.
     Sec. 103, which declines to waive the sovereign 
immunity of tribes.
     The Department also supports the provision that 
amends 25 U.S.C. 415(e) to allow the Navajo Nation to approve 
its own leases for business or agricultural purposes for 99 
years. The Department is, however, concerned about the extent 
of the showing needed for the tribe to engage in mineral 
development (exploration, extraction and development) without 
Secretarial approval, as discussed further below.
     The Department supports the proposed changes to 
the existing environmental review process for TERAs, but we 
suggest that the Committee consider addressing environmental 
review similar to the approach Congress utilized in the HEARTH 
Act. Both the Department and the Council on Environmental 
Quality supported the HEARTH Act approach and the Department 
generally supports a similar approach here.
    As noted, the Department is concerned with some of the 
provisions of S. 2132. The Department's concerns include the 
following issues:
A. Allocation of liability
    We are concerned about a lack of clarity in S. 2132 in 
allocating liability for tribes that choose to utilize a TERA. 
According to its terms, the bill would amend 25 U.S.C. 
Sec. 3504(e)(6) to state that nothing in the bill would change 
the liability of the Department for terms of any lease, 
business agreement, or right-of-way that is not a ``negotiated 
term'' or losses that are not the result of a ``negotiated 
term.'' However, the definition of ``negotiated term'' does not 
clearly articulate how liability is allocated and the current 
language regarding the remaining trust responsibility does not 
provide sufficient clarity.
    The Department believes that there is an easy fix to this 
problem. The Department recommends that the Committee replace 
the current and proposed amendment with the recently enacted 
liability provision in the HEARTH Act. This approach will 
clarify for both the Department and tribes the allocation of 
liability.
B. Determining ``capacity''
    S. 2132 seeks to amend the statute's capacity requirement 
by providing that a tribe satisfies the capacity requirement if 
it has carried out a self-determination contract or compact 
``relating to the management of tribal land.'' We recommend 
that this approach be refined to ensure that the function 
performed pursuant to the self-determination contract or 
compact is appropriate given the broad array of functions that 
TERAs may implement.
    The 2005 Act provides a framework under which tribal 
capacity includes not only managerial and technical capacity 
for developing energy resources (which necessarily includes 
realty, environmental, and oversight capabilities), but also 
managerial and technical capacity to account for energy 
production, experience in managing natural resources, and 
financial and administrative resources available for use by the 
tribe in implementing a TERA. Given the scope of functions that 
could be included in a TERA, successful administration of a 
self-governance contract or compact relating to the management 
of tribal lands may or may not be relevant to performing a 
particular TERA function.
    For example, a self-governance contract for realty 
functions on a reservation largely devoted to grazing and 
residential use may not be indicative of regulating the 
development of oil and gas extraction. We recommend an approach 
that relies on experience with specific duties and compliance 
activities to demonstrate capacity for specific functions the 
tribe wishes to undertake with a TERA. Certainly prior 
participation in 638 contracts/compacts for specific duties and 
compliance activities is an important factor, but depending on 
the specific functions to be undertaken by a tribe in a TERA, 
it may not be the only factor that should be considered.
    Additionally, the Department recommends, as an alternative, 
the Committee consider streamlining or eliminating capacity 
determinations. Under existing law the Secretary is required to 
determine ``that the Indian Tribe has demonstrated that the 
Indian Tribe has sufficient capacity to regulate the 
development of energy resources of the Indian tribe.'' To date, 
no tribe has applied for a TERA, so we have no data on how much 
effort a tribe must expend for a positive capacity 
determination for the realty, environmental, and oversight 
activities it may assume.
    However, enactment of the HEARTH Act eliminates this 
determination for entire categories of energy production. 
Because the HEARTH Act applies to surface leasing, it is now 
much simpler for tribes to pursue wind, solar and biomass 
energy projects without Secretarial approval. The HEARTH Act's 
promotion of self-governance for surface leasing should be 
carried forward to mineral development. At a minimum, the 
Indian Energy Development and Self-Determination Act should be 
modified to limit TERAs to oil, gas, coal, geothermal, and 
other mineral-based energy projects, i.e., those that would 
require a lease under the Indian Mineral Leasing Act of 1938, a 
Minerals Agreement under the Indian Mineral Development Act of 
1982, or a right-of-way under the Indian All Rights-of-Way Act 
of 1948.
    If Congress maintains the capacity requirement because 
minerals are a limited and valuable resource, a TERA capacity 
determination could be based on whether the tribe contracts BIA 
realty functions in accordance with Pub.L. 93-638. Utilizing 
this approach would be a well-understood procedure for tribes, 
it would be useful to a tribe regardless of whether a TERA were 
ever obtained, and it is an important component to developing 
energy resources or entering into associated energy leases and 
rights-of-way.
    As currently drafted, S. 2132 uses a similar standard 
(though not necessarily the contracting of BIA realty 
functions) as a ``safe harbor'' standard that would result in 
an automatic finding of tribal capacity. Successfully operating 
a 638 contract ``relating to the management of tribal lands'' 
for 3 years may not be, in and of itself, sufficient to 
demonstrate that the tribe involved is prepared to review, 
approve and manage leases, business agreements and rights-of-
way for energy development. However, operating BIA's realty 
functions on tribal lands represents a component common to all 
energy development activities a tribe may want to undertake 
with a TERA. Amending the Indian Energy Development and Self-
Determination Act to make this an explicit component of a 
favorable capacity determination would be clarify the 
requirement for applicant tribes and streamline the 
Department's review.
    Tribal authority for approving tribal leases for 
residential and business purposes granted under the HEARTH Act 
may also serve as a clear capacity criterion for a Tribal 
Energy Resource Agreement under the Tribal Energy Development 
and Self-Determination Act of 2005. Such tribal authority is 
based on the tribe's submittal of, and the Secretary's approval 
of, tribal leasing regulations consistent with Departmental 
leasing regulations that also include environmental provisions 
for identification and evaluation of significant effects 
leasing may have on the environment and public notice and 
comment on the effects. While HEARTH Act authority for leasing 
does not require any capacity determination by the Secretary, 
tribes that have approved leasing regulations and have issued 
leases under that authority may be assumed to have both the 
structure (regulations) and the ability (personnel qualified to 
carry out the leasing functions) for basic leasing functions.
    In addition, the tribal environmental regulations required 
under the HEARTH Act may form the basis for the environmental 
review process also required for a TERA under the ITEDSD Act. 
Other considerations for capacity for environmental review and 
compliance could include environmental personnel, 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. An amendment specifying tribal 
adoption of an environmental code that includes requirements 
under a TERA would provide clarity for a capacity 
determination.
    We also believe that the proposed 120 day limit for the 
Department to determine capacity may not be adequate to comply 
with the notice requirement required by law. Currently, the 
Secretary must publish in the Federal Register a notice that a 
tribe has applied for a TERA with a copy of the TERA and 
request public comments. The process of seeking and considering 
public comments and to make appropriate changes in the TERA 
based on the public comments likely cannot be accomplished 
within 120 days unless the issue of capacity is excluded from 
the notice and comment requirement. As a result, we would 
request that the 120 period run only after the comment period 
has closed and, if additional changes are then necessary, only 
after a final TERA has been submitted.
C. The structure of the petition process
    The Department suggests that the Committee utilize a review 
process similar to that set forth in the HEARTH Act rather than 
construct a new review process that could lead to confusion and 
inconsistent administration. Aligning the statutory 
authorization for both processes would allow the Department to 
coordinate the corresponding regulations, thereby making the 
process more transparent and consistent for tribes and the 
public. The Department is comfortable with the different 
standing requirements for third party petitions concerning 
TERAs versus such petitions under the HEARTH Act.
D. Approval authority for TEDO's and Tribes without a TERA
    We have strong concerns about the proposed deletion of the 
TERA requirement for a lease, business agreement, or right-of-
way entered into between a tribe and a tribal energy 
development organization (TEDO). This would be the first time 
that Congress has allowed for leases to be exempt from 
Secretarial approval based solely on the identity of the 
lessee, and not on any determination, either through a capacity 
determination under a TERA or through approval of regulations, 
that the tribe has a leasing program that can perform this 
responsibility.

E. Other Concerns

    While the Department has other minor concerns which it 
would be willing to discuss with Committee Staff, the concerns 
discussed above are the primary concerns.

                           ALTERNATIVE IDEAS

    The following represent concepts the Department believes 
may work as alternatives to those in the current bill. We would 
be happy to help develop these concepts in the context of S. 
2132 or a new bill, if requested.

1. Allow the tribes to recover costs from energy developers, e.g., 
        environmental review costs, in the same manner that the Bureau 
        of Land Management can

    The nature of this authority, and any limitations on it, 
would most likely require tribal consultation.
    The BLM has the authority to enter into cost recovery 
agreements so that the labor costs of processing energy 
applications are funded by the applicants and not the 
Department. The BLM's cost recovery authority allows funds from 
developers to supplement existing appropriations. The BIA has a 
form of cost recovery authority in theory. However, any funds 
collected by the BIA must offset appropriated funding, so the 
authority provides no real benefit to tribes or the BIA in 
practice. One immediate concern tribes might have could be 
avoided, however, if this authority specifies that other annual 
funding for participating tribes, such as Tribal Priority 
Allocations, cannot be reduced as a consequence of proceeds 
from cost recovery.
    BLM has used its cost-recovery funds to establish Renewable 
Energy Coordinating Offices (RECOs). The RECO teams include a 
dedicated Project Manager, a Planning and Environmental 
Coordinator and two Realty Specialists who process only 
renewable energy projects within their designated area. The 
Bureau of Indian Affairs could benefit from having its own 
independent cost recovery authority to gain revenues to pursue 
similar initiatives. Staffing issues continue to be an issue in 
the Department's processing of conventional energy development 
in Indian Country as well.

2. Specify that a tribe's initial TERA may be limited in scope, and 
        thus complexity, with subsequent amendments to that TERA 
        focusing only on new and additional responsibilities the tribe 
        wishes to undertake

    As currently provided by law, TERA authority is defined by 
the resource(s) a tribe wants to develop (e.g., oil and gas, 
solar) and/or the function the tribe wants to undertake (e.g., 
entering into leases and business agreements, granting rights-
of-way). We understand that the current law does not clearly 
provide a process for a tribe over time to add to its TERA 
functions without starting over and pursuing an entirely new 
TERA. It therefore would be helpful to clarify that a tribe 
that wants to perform only a limited function initially can 
phase in new, related functions over time as the tribe's 
capacity increases, by amending its initial, approved TERA and 
not by having to duplicate any of the still relevant elements 
of its initial TERA application. Thus, a tribe that wants to 
develop oil and gas resources will not feel obliged to 
demonstrate it has the capacity to handle all conceivable 
aspects of oil and gas development, from exploration to 
production to refinement, just to issue oil and gas leases. 
This is consistent with the way that the Department and the 
Navajo Nation have implemented the Navajo Nation Trust Land 
Leasing Act of 2000 [25 U.S.C. Sec. 415(e)] and the way that 
the Department currently interprets the HEARTH Act of 2012.

                               CONCLUSION

    Thank you for the opportunity to present the Department's 
views on S. 2132. I will be happy to answer any questions you 
may have.
                              ----------                              


   Written Statement of Tracey A. Lebeau, Director, Office of Indian 
            Energy Policy and Programs, Department of Energy

    Chairman Tester, Ranking Member Barrasso, and Members of 
the Committee, thank you for the opportunity to testify on 
behalf of the U.S. Department of Energy (DOE) on S. 2132, 
Indian Tribal Energy Development and Self-Determination Act 
Amendments of 2014. As Director of the Office of Indian Energy 
Policy and Programs (Office), I am responsible for promoting 
Indian self-determination and to provide, direct, foster, 
coordinate, and implement energy planning, education 
management, conservation, and delivery programs of the 
Department that promote Indian tribal energy development, 
efficiency and use and enhance energy infrastructure. In doing 
so, my Office has a unique perspective on energy development 
challenges and opportunities in Indian Country.
    While the Department is still reviewing S. 2132 and does 
not have an official position on the bill at this time, I will 
provide an update to the various energy development and 
management programs under our purview where we believe we are 
making inroads in addition to identifying the continuing 
challenges facing tribal communities in energy and energy 
security.
    The Department of Energy takes seriously its 
responsibilities and commitments to Sovereign Tribal Nations. 
We are committed to strengthening federal-tribal relationships 
to protect tribal rights and interests to promote tribal 
sovereignty and self-sufficiency. And the Department is also 
focused on doing what we can to reduce the serious threat of 
climate change and, with a heightened focus on resilience, 
doing what we can to prepare American communities, including 
tribal communities, for the impacts of a changing climate that 
are already being felt.

   DOE OFFICE OF INDIAN ENERGY: BACKGROUND AND EXECUTIVE SUMMARY OF 
                            ACCOMPLISHMENTS

    The U.S. Department of Energy Office of Indian Energy was 
directed by Congress in Title V of the Energy Policy Act of 
2005 (``Act''), and in previous legislation enacted in 1992, to 
direct, foster, coordinate, and implement energy planning, 
education, management, conservation, and delivery programs that 
assist Tribes with energy development, capacity building, 
energy infrastructure, energy costs, and electrification of 
Indian lands and homes. This Office has specific statutory 
goals:
     Promote Indian tribal energy development, 
efficiency, and use;
     Reduce or stabilize energy costs;
     Enhance and strengthen Indian tribal energy and 
economic infrastructure relating to natural resource 
development and electrification; and
     Bring electrical power and service to Indian land 
and the homes of tribal members.
    To accomplish these goals, the Act conferred on the Office 
the authority to provide grants to assist eligible tribal 
entities in meeting energy education, research and development, 
planning, and management needs, which could include: Energy 
generation, energy efficiency, and energy conservation 
programs; Studies and other activities supporting tribal 
acquisitions of energy supplies, services, and facilities, 
including the creation of tribal utilities; Planning, 
construction, development, operation, maintenance, and 
improvement of tribal electrical generation, transmission, and 
distribution facilities; Development, construction, and 
interconnection of electric power transmission facilities; 
Developing a program to support and implement research projects 
that provide opportunities to participate in carbon 
sequestration practices; and Encouraging cooperative 
arrangements between Indian Tribes and utilities that provide 
service to Tribes.
    Since joining DOE three years ago, I have been fully 
committed to implementing the statutory goals for energy 
development in Indian Country which has included a commitment 
to continually collaborate with Indian Country. The results of 
that collaboration are opportunities to identify and address 
tribal priorities for energy development policies and programs 
and to fill gaps in current Department programs. More details 
about these efforts, as well as future plans, are provided 
below.

       PURSUING SUSTAINABLE ENERGY DEVELOPMENT IN INDIAN COUNTRY

    Our Office facilitates energy development in Indian 
Country--including renewable energy sources such as wind and 
solar, energy efficiency improvements, and fossil-fuel electric 
generation that uses carbon sequestration systems, as well as 
improving the infrastructure needed to deliver this energy. 
Tribes have shown a high motivation to pursue expanded clean 
energy development. It is our experience thus far that the DOE 
Office of Indian Energy Policy and Programs' initiatives that 
are taking root in Indian Country are a direct reflection of 
the innovation and the promise of the next generation of tribal 
energy development. Our priority is focused on providing useful 
information and tools as well as designing and implementing 
innovative programs to accelerate clean energy and energy 
infrastructure development in Indian Country.
    Our office tasked the DOE National Renewable Energy 
Laboratory (NREL) to update all the renewable resource 
estimates in Indian Country. Based on updated data provided by 
using updated analysis and modeling tools, the estimated 
maximum renewable energy resource potential on Indian lands is 
millions of megawatts (MW) of nameplate capacity. These 
comprehensive updated estimates can be found at http://
www.nrel.gov/docs/fy13osti/57748.pdf. It is clear that further 
development of these energy resources in Indian Country can 
provide an opportunity to not only increase tribal energy 
reliability and self-sufficiency but also contribute to the 
President's energy security goals and Climate Action Plan. 
President Obama and Secretary Moniz have been extremely 
supportive of improving the economy of Tribal communities 
through enhanced clean energy development. At the 2013 White 
House Tribal Nations Conference, the President stated:

          The health of tribal nations depends on the health of 
        tribal lands. So it falls on all of us to protect the 
        extraordinary beauty of those lands for future 
        generations. And already, many of your lands have felt 
        the impacts of a changing climate, including more 
        extreme flooding and droughts. That's why, as part of 
        the Climate Action Plan I announced this year, my 
        administration is partnering with you to identify where 
        your lands are vulnerable to climate change, how we can 
        make them more resilient.

    Indian Tribes and Alaskan Native villages have made clear 
to us that resilient energy and energy infrastructure can, as a 
priority, go hand in hand with the vision of a cleaner energy 
future. Providing Indian Country with committed, collaborative 
technical assistance is a keystone of the programs and policies 
of the Office. Our guiding star is to work with Tribes as they 
implement their own strategic, long-term solutions--solutions 
with the potential to reduce energy costs, enhance energy 
security, promote tribal sovereignty and guide Native 
communities towards a sustainable energy future To support this 
tribally articulated vision, we support a number of programs 
that provide energy policy information as well as practical, 
market-based tools to Tribes that are taking tribal projects 
past feasibility discussions and into investment and deployment 
decision-making.
    The Indian Country Energy and Infrastructure Working Group 
was established in August 2011 to ensure these and future 
technical and financial assistance programs are responsive to 
Tribes. The working group provides critical advice and 
recommendations to the Secretary and to the Director of the DOE 
Office of Indian Energy Policy and Programs on the strategic 
planning and implementation of the Department's energy 
resource, energy technology, and energy infrastructure 
development programs.

     PROMOTING STRONG PARTNERSHIPS AND ADDRESSING COMMON CHALLENGES

    We also have taken time to survey, evaluate, coordinate and 
better leverage a variety of DOE energy programs, for example, 
the Office of Electricity Delivery and Energy Reliability, 
Western Area Power and Bonneville Power Administrations, and 
also including the grants offered through the Office of Energy 
Efficiency and Renewable Energy. Below are important lessons 
learned we would like to highlight:
    Prior to 2011, efforts both by DOE and in Indian Country 
largely focused on commercial--scale projects, which are 
typically developed to export from Tribal areas into the 
broader energy marketplace. This focus is understandable, given 
the revenue potential of these large scale projects. In our 
view, however, the capacity-building and community energy 
issues highlighted in the Energy Policy Act of 2005 provisions 
which guide our Office's mission and goals, there was a 
considerable opportunity and continuing need in community-scale 
and facility-scale energy generation, as well as energy 
efficiency. Community-scale and facility-scale projects are 
developed to provide electricity to the local community 
(housing) or on-site (government buildings, community 
buildings), usually in order to address fiscal challenges of 
high energy costs in Native communities. These types of 
projects allow tribes to marshal their resources to cleanly 
generate their own energy and electricity; reduce and/or 
stabilize their energy costs; create jobs in the construction, 
operation, and maintenance of these systems; promote energy 
reliability and self-sufficiency; and promote reservation 
economic development.
    Key obstacles which my Office continues to monitor with 
respect to commercial-scale energy development in Indian 
Country include:
     Cost to build projects and the financing and 
funding options available for projects, particularly renewable 
projects that use financial incentives not well suited to 
tribal governments or their enterprises;
     Frequent congestion on the transmission grid or 
difficulty working through interconnection and transmission 
service agreements with public electric entities whom are not 
FERC jurisdictional and/or open access compliant;
     Being located in markets that do not support, 
require or incentivize renewable energy portfolio standards or 
purchases or markets that are dominated by utilities whom are 
exempted from any renewable incentive programs; and
     Securing whole buyers who are willing to purchase 
renewable energy at the cost to produce the energy and whom are 
unfamiliar with the legalities of financing or contracting with 
tribal businesses.
    Other recent or real-time observations in working closely 
with Tribes and Alaska Native communities on a variety of 
projects and issues include:
    Much of the high visibility, celebrated commercial-scale 
energy development in Indian Country has been almost 
exclusively in the purview of third-party developers who lease 
land from Tribes to build renewable energy projects in Indian 
Country. There are three primary reasons for this: magnitude of 
upfront capital cost; tax and other financial incentives which 
promote third party development and ownership by taxable 
entities; and the extensive expertise required to build 
commercial-scale projects.
    Tribes have become more interested in community-scale, 
facility-scale development for a number of reasons, including 
the success of the Energy Efficiency Community Block Grant 
program, state and utility companies' incentives that pay for 
on-site generation, newly emerging relative ease of tribal 
leasing and permitting for renewable projects under the HEARTH 
Act, and reducing or stabilizing costs.
    The level of energy education and expertise remains a 
challenge for Tribes undertaking often complex energy projects, 
but we are making headway. And the lack of energy business 
acumen is not necessarily based on business capacity. The 
complexity of issues such as renewable energy tax structuring 
and technology risk and operational issues is difficult to 
navigate for even the most business-oriented Tribes, given the 
unique nature of these issues. This is particularly the case 
where Tribes wish to finance, own and operate their own systems 
without third party ownership or participation to address tax 
and related financial incentives. We have provided that 
training to Tribes which has led to affirmative decision 
making.
    In many respects, there are several issues shared between 
Alaska Native villages and smaller tribes in the contiguous 
states, including: remote locations (cannot access transmission 
grids), small land bases (insufficient for commercial-scale and 
even sometimes community-scale development), small populations 
(they lack the human resource capacity for comprehensive energy 
development), and scarce financial resources. Hence, we have 
refocused our efforts on the unique energy situation for Alaska 
Native villages.
    Lastly, given this information, our primary short term goal 
has been to develop several programs to respond to the issues, 
obstacles, and opportunities in Indian Country so that we can 
see more implementation of successful, cost-effective projects.

          DOE OFFICE OF INDIAN ENERGY PROGRAMS AND PRIORITIES

    My Office has recently launched several programs and 
initiatives to promote energy development in Indian Country and 
address the challenges identified above:

DOE Indian Energy START Program

    The Strategic Technical Assistance Response Team (START) 
initiative is a signature and unique DOE Office of Indian 
Energy program aimed at advancing next-generation energy 
development in Indian Country. The START program is focused on 
the 48 contiguous states and Alaska. http://energy.gov/
indianenergy/resources/start-program
    For the 48 contiguous states, early-stage project 
development technical assistance will be provided through the 
START program to selected projects. The goals of the START 
programs are to bring targeted, strategic technical assistance 
to Tribes and Alaska Native governments whom have already 
committed resources and efforts to developing clean energy in 
their communities. This program is the next step in the 
development process as the Department has invested in early-
stage feasibility in many Indian communities and this next-
level development work is providing tribal communities with 
unbiased, expert technical assistance and information which is 
helping tribal decision makers to take the next step towards 
investments and deployment.
    After being competitively selected, DOE and NREL experts 
work directly with tribal community-based teams as well as 
tribal legal and finance specialists to further develop market 
feasibility assessments; due diligence research, analysis, and 
documentation; and early predevelopment work to prepare site 
control, verify resource, prequalify off-take agreements and 
strategy, and produce a permitting plan.
    Our investments in the START Program are starting to 
already see returns. Several START projects have resulted in 
decision-making, tribal investment commitments, construction 
starts and deployment of clean technology solutions. http://
energy.gov/indianenergy/downloads/office-indian-energy-
newsletter-springsummer-2014. In Alaska, we initially teamed up 
with the Denali Commission to specifically assist in the 
development of tribal energy planning for Alaska Native 
entities. Our Alaska START Program continues to actively seek 
programmatic and financial federal and state partners to ensure 
comprehensive collaboration and success for Alaska Native 
communities in need of stabilized energy costs. Alaska START 
Program Summary at http://www.nrel.gov/docs/fy13osti/58879.pdf.

Energy Capacity Building & Tribal Energy Training

    In three years, we have established a robust tribal 
technical assistance and training program which features in-
person, in-depth training to tribal leaders and staff as well 
as web-based, on-demand training for those whom prefer to 
participate at their own pace and in their own offices.
    Since launched in October 2012, our renewable energy web-
based curriculum has had over 1,490 visitors and our resource 
library which hosts dozens of tribally-relevant documents and 
tools has had over 1,250 visitors. Since July 2013, we have 
hosted 49 tribal members for in-person renewable product 
development and finance forums. We have held numerous best 
practice and peer-to-peer forums--ranging from such topics as 
solar energy development to transmission and clean energy 
integration. Since December 2011, approximately 350 tribal 
leaders and staff have attended these in-person best practices 
forums.

Energy Transmission Training and Technical Assistance

    Understanding the transmission grid, interconnection 
issues, and issues related to distribution of clean energy also 
are critical for successful development of energy projects, 
whether commercial or community scale. We are working with our 
partners in DOE's Office of Electricity Delivery and Energy 
Reliability, the Western Area Power Administration, and the 
Office of Energy Efficiency and Renewable Energy to offer a 
webinar series to address the range of issues associated to 
developing clean energy and transmission. Since January 2013, 
we have had over 2,050 participants in our webinar series. We 
have as a team also provided almost a dozen Tribes with 
prefeasibility transmission study assistance and a range of 
other training and technical assistance.

Office of Indian Energy's Enhanced Coordination with the Office of 
        Energy Efficiency and Renewable Energy's (EERE) Tribal Energy 
        Program

    EERE's Tribal Energy Program was originally established 
under the Energy Policy Act of 1992 to implement DOE's 
responsibilities under the Act. Since 2005, the program has 
been implementing the Office of Indian Energy's EPAct Title V 
grant authority and has been providing funding related to 
renewable energy and energy efficiency. Since becoming fully 
operational, the Office of Indian Energy and EERE's tribal 
program have jointly offered coordinated energy programs to 
ensure against duplication, have leveraged grants into START 
projects to accelerate project successes, and have offered free 
technical assistance to Tribes (up to 40 hours) which has 
focused much of its efforts on energy strategic planning and 
hands-on prioritized technical analysis for clean energy 
projects.

Other DOE Office and Interagency Coordination

    As stated earlier, one of our primary goals is to leverage 
existing DOE resources to promote and implement energy 
development in Indian Country. As one recent example, the 
Department high-lighted tribal eligibility and inclusion in our 
$15 million Solar Market Pathways funding opportunity 
announcement. This funding opportunity seeks to help state, 
tribal and local communities develop replicable multi-year 
strategies that spur significant solar deployment, drive down 
solar soft costs, and support local economic development 
efforts. Our experience is the Office's vantage point enhances 
DOE-wide coordination which facilitates more opportunities to 
leverage the considerable technical assistance mechanisms 
developed by our programs for government and community leaders. 
These programs also have created educational materials by 
working with and learning from government leaders on 
implementing renewable energy policies and programs at the 
community level. It is our goal to leverage those lessons and 
best practices in Indian Country, so that we do not have to 
recreate the wheel and can apply proven techniques and 
technical assistance.
    We also intend to build on the many relationships and 
coordination efforts we have initiated with other federal 
agencies that provide support for energy development. Those 
agencies include the Department of the Interior (DOI), 
Department of Agriculture, Denali Commission in Alaska, 
Environmental Protection Agency, and the Department of 
Commerce. For example, in Alaska, we have been actively engaged 
in energy development and management activities over the last 
two years and as part of the National Strategy for the Arctic 
Region, and will take the lead on the implementation plan for 
promoting more renewable energy development in the Alaska 
Native villages in the Arctic Region. This plan includes 
continuing the Office of Indian Energy's Alaska START program, 
comprehensive strategic technical assistance to assist Alaska 
Native villages with community-wide energy issues and project 
opportunities. The Office of Indian Energy will also convene a 
renewable energy development forum in the summer of 2014 to 
bring together key stakeholders in renewable energy development 
and focused on building public-private partnerships as the 
means for structuring and financing renewable energy projects 
remote Alaska Native villages. Also, in support of its Alaska 
efforts, the Office of Indian Energy has stationed a full-time 
program manager in Anchorage.

Setting Priorities in Fiscal Year 2015 Budget and Future Efforts

    The President's FY 2015 budget request, which includes $16 
million for Indian Energy Policy and Programs as a separate 
appropriation, reflects the consolidation of our tribal energy 
programs and Office of Indian Energy into a single office. This 
increased and consolidated budget request will enable DOE to 
maintain key initiatives while leveraging authorized tools and 
build on initiatives developed and executed since 2011. For 
example, we will continue: to support the Indian Country Energy 
and Infrastructure Working Group; the START Program; to expand 
our energy capacity building efforts; and to provide additional 
technical assistance to Tribes in support of tribal energy 
development projects.

                               CONCLUSION

    Thank you for the opportunity to share the exciting things 
we are doing in collaboration and in partnership with Indian 
Country to promote energy development on Indian lands.

                        Changes in Existing Law

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2132, as ordered reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic):

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


Sec. 3501. Definitions

    In this chapter:

           *       *       *       *       *       *       *

          [(11) The term ``tribal energy resource development 
        organization'' means an organization of two or more 
        entities, at least one of which is an Indian tribe, 
        that has the written consent of the governing bodies of 
        all Indian tribes participating in the organization to 
        apply for a grant, loan, or other assistance under 
        section 3502 of this title.]
          (11) The term `tribal energy development 
        organization' means--
                  (A) any enterprise, partnership, consortium, 
                corporation, or other type of business 
                organization that is engaged in the development 
                of energy resources and is wholly owned by an 
                Indian tribe (including an organization 
                incorporated pursuant to section 17 of the 
                Indian Reorganization Act of 1934 (25 U.S.C. 
                477) or section 3 of the Act of June 26, 1936 
                (25 U.S.C. 503) (commonly known as the 
                `Oklahoma Indian Welfare Act')); or
                  (B) any organization of 2 or more entities, 
                at least 1 of which is an Indian tribe, that 
                has the written consent of the governing bodies 
                of all Indian tribes participating in the 
                organization to apply for a grant, loan, or 
                other assistance under section 2602 or to enter 
                into a lease or business agreement with, or 
                acquire a right-of-way from, an Indian tribe 
                pursuant to subsection (a)(2)(A)(ii) or 
                (b)(2)(B) of section 2604.

            25 U.S.C. Sec. 3502 (Energy Policy Act of 1992)


Sec. 3502. Indian tribal energy resource development

    (a) Department of the Interior Program.----
          (1) To assist Indian tribes in the development of 
        energy resources and further the goal of Indian self-
        determination, the Secretary shall establish and 
        implement an Indian energy resource development program 
        to assist consenting Indian tribes and [tribal energy 
        resource development organizations] tribal energy 
        development organizations in achieving the purposes of 
        this chapter.
          (2) In carrying out the Program, the Secretary 
        shall----
                  (A) provide development grants to Indian 
                tribes and [tribal energy resource development 
                organizations] tribal energy development 
                organizations for use in developing or 
                obtaining the managerial and technical capacity 
                needed to develop energy resources on Indian 
                land, and to properly account for resulting 
                energy production and revenues;
                  (B) provide grants to Indian tribes and 
                [tribal energy resource development 
                organizations] tribal energy development 
                organizations for use in carrying out projects 
                to promote the integration of energy resources, 
                and to process, use, or develop those energy 
                resources, on Indian land;
                  (C) provide low-interest loans to Indian 
                tribes and [tribal energy resource development 
                organizations] tribal energy development 
                organizations for use in the promotion of 
                energy resource development on Indian land and 
                integration of energy resources; [and]
                  (D) provide grants and technical assistance 
                to an appropriate tribal environmental 
                organization, as determined by the Secretary, 
                that represents multiple Indian tribes to 
                establish a national resource center to develop 
                tribal capacity to establish and carry out 
                tribal environmental programs in support of 
                energy-related programs and activities under 
                this chapter, including--
                          (i) training programs for tribal 
                        environmental officials, program 
                        managers, and other governmental 
                        representatives;
                          (ii) the development of model 
                        environmental policies and tribal laws, 
                        including tribal environmental review 
                        codes, and the creation and maintenance 
                        of a clearinghouse of best 
                        environmental management practices; 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 in paragraph (1), the Secretary 
                shall provide technical assistance to 
                interested Indian tribes to develop energy 
                plans, including--
                          (i) plans for electrification;
                          (ii) plans for oil and gas 
                        permitting, renewable energy 
                        permitting, energy efficiency, 
                        electricity generation, transmission 
                        planning, water planning, and other 
                        planning relating to energy issues;
                          (iii) plans for the development of 
                        energy resources and to ensure the 
                        protection of natural, historic, and 
                        cultural resources; and
                          (iv) any other plans that would 
                        assist an Indian tribe in the 
                        development or use of energy resources.
                  (B) Cooperation.--In establishing the program 
                under paragraph (1), the Secretary shall work 
                in cooperation with the Office of Indian Energy 
                Policy and Programs of the Department of 
                Energy.
    (b) Department of Energy Indian Energy Education Planning 
and Management Assistance Program.--
          (1) The Director shall establish programs to assist 
        consenting Indian tribes in meeting energy education, 
        research and development, planning, and management 
        needs.
          (2) In carrying out this subsection, the Director may 
        provide grants, on a competitive basis, to an Indian 
        tribe, intertribal organization, or [tribal energy 
        resource development organization] tribal energy 
        development organization for use in carrying out--
                  (A) energy, energy efficiency, and energy 
                conservation programs;
                  (B) studies and other activities supporting 
                tribal acquisitions of energy supplies, 
                services, and facilities, including the 
                creation of tribal utilities to assist in 
                securing electricity to promote electrification 
                of homes and businesses on Indian land;
                  (C) activities to increase the capacity of 
                Indian tribes to manage energy development and 
                energy efficiency programs;
                  [(C)](D) planning, construction, development, 
                operation, maintenance, and improvement of 
                tribal electrical generation, transmission, and 
                distribution facilities located on Indian land; 
                and
                  [(D)](E) development, construction, and 
                interconnection of electric power transmission 
                facilities located on Indian land with other 
                electric transmission facilities.
          (3) Technical and scientific resources.--In addition 
        to providing grants to Indian tribes under this 
        subsection, the Secretary shall collaborate with the 
        Directors of the National Laboratories in making the 
        full array of technical and scientific resources of the 
        Department of Energy available for tribal energy 
        activities and projects.
          [(3)](4)(A) The Director shall develop a program to 
        support and implement research projects that provide 
        Indian tribes with opportunities to participate in 
        carbon sequestration practices on Indian land, 
        including--
                  (i) geologic sequestration;
                  (ii) forest sequestration;
                  (iii) agricultural sequestration; and
                  (iv) any other sequestration opportunities 
                the Director considers to be appropriate.
          (B) The activities carried out under subparagraph (A) 
        shall be--
                  (i) coordinated with other carbon 
                sequestration research and development programs 
                conducted by the Secretary of Energy;
                  (ii) conducted to determine methods 
                consistent with existing standardized 
                measurement protocols to account and report the 
                quantity of carbon dioxide or other greenhouse 
                gases sequestered in projects that may be 
                implemented on Indian land; and
                  (iii) reviewed periodically to collect and 
                distribute to Indian tribes information on 
                carbon sequestration practices that will 
                increase the sequestration of carbon without 
                threatening the social and economic well-being 
                of Indian tribes.
          [(4)](5)(A) The Director, in consultation with Indian 
        tribes, may develop a formula for providing grants 
        under this subsection.
          (B) In providing a grant under this subsection, the 
        Director shall give priority to any application 
        received from an Indian tribe with inadequate electric 
        service (as determined by the Director).
          (C) In providing a grant under this subsection for an 
        activity to provide, or expand the provision of, 
        electricity on Indian land, the Director shall 
        encourage cooperative arrangements between Indian 
        tribes and utilities that provide service to Indian 
        tribes, as the Director determines to be appropriate.
          [(5)](6) The Secretary of Energy may issue such 
        regulations as the Secretary determines to be necessary 
        to carry out this subsection.
          [(6)](7) There is authorized to be appropriated to 
        carry out this subsection $20,000,000 for each of 
        fiscal years 2006 through 2016.
    (c) Department of Energy Loan Guarantee Program.--
          (1) Subject to paragraphs (2) and (4), the Secretary 
        of Energy may provide loan guarantees (as defined in 
        section 661a Title 2) for an amount equal to not more 
        than 90 percent of the unpaid principal and interest 
        due on any loan made to an Indian tribe or a tribal 
        energy development organization for energy development.
          (2) In providing a loan guarantee under this 
        subsection for an activity to provide, or expand the 
        provision of, electricity on Indian land, the Secretary 
        of Energy shall encourage cooperative arrangements 
        between Indian tribes and utilities that provide 
        service to Indian tribes, as the Secretary determines 
        to be appropriate.
          (3) A loan [guarantee] guaranteed under this 
        subsection shall be made by--
                  (A) a financial institution subject to 
                examination by the Secretary of Energy; [or]
                  (B) an Indian tribe, from funds of the Indian 
                tribe[.]; or
                  (C) a tribal energy development organization, 
                from funds of the tribal energy development 
                organization.
          (4) The aggregate outstanding amount guaranteed by 
        the Secretary of Energy at any time under this 
        subsection shall not exceed $2,000,000,000.
          (5) [The Secretary of Energy may] Not later than 1 
        year after the date of enactment of the Indian Tribal 
        Energy Development and Self-Determination Act 
        Amendments of 2014, the Secretary of Energy shall issue 
        such regulations as the Secretary of Energy determines 
        are necessary to carry out this subsection.

            25 U.S.C. Sec. 3503 (Energy Policy Act of 1992)


Sec. 3503. Indian tribal energy resource regulation

           *       *       *       *       *       *       *


    (c) Other Assistance.--
          (1) In carrying out the obligations of the United 
        States under this chapter, the Secretary shall ensure, 
        to the maximum extent practicable and to the extent of 
        available resources, that [on the request of an Indian 
        tribe, the Indian tribe] on the request of an Indian 
        tribe or a tribal energy development organization, the 
        Indian tribe or tribal energy development organization 
        shall have available scientific and technical 
        information and expertise, for use in the regulation, 
        development, and management of energy resources of the 
        Indian tribe on Indian land.
          (2) The Secretary may carry out paragraph (1)--
                  (A) directly, through the use of Federal 
                officials; or
                  (B) indirectly, by providing financial 
                assistance to an Indian tribe or tribal energy 
                development organization to secure independent 
                assistance.

            25 U.S.C. Sec. 3504 (Energy Policy Act of 1992)


Sec. 3504. Leases, business agreements, and rights-of-way involving 
                    energy development or transmission

    (a) Leases and Business Agreements.--In accordance with 
this section--
          (1) an Indian tribe may, at the discretion of the 
        Indian tribe, enter into a lease or business agreement 
        for the purpose of energy resource development on 
        tribal land, including a lease or business agreement 
        for--
                  (A) exploration for, extraction of, 
                processing of, or other development of the 
                energy mineral resources of the Indian tribe 
                located on tribal land; [or]
                  (B) construction or operation of--
                          [(i) an electric generation, 
                        transmission, or distribution facility 
                        located on tribal land; or]
                          (i) an electric production, 
                        generation, transmission, or 
                        distribution facility (including a 
                        facility that produces electricity from 
                        renewable energy resources) located on 
                        tribal land; or
                          (ii) a facility to process or refine 
                        energy resources, at least a portion of 
                        which have been developed on or 
                        produced from tribal land; [and] or
                  (C) pooling, unitization, or communitization 
                of the energy mineral resources of the Indian 
                tribe located on tribal land with any other 
                energy mineral resource (including energy 
                mineral resources owned by the Indian tribe or 
                an individual Indian in fee, trust, or 
                restricted status or by any other persons or 
                entities) if the owner of the resources has 
                consented or consents to the pooling, 
                unitization, or communitization of the other 
                resources under any lease or agreement; and
          [(2) a lease or business agreement described in 
        paragraph (1) shall not require review by or the 
        approval of the Secretary under section 81 of this 
        title, or any other provision of law, if--
                  (A) the lease or business agreement is 
                executed pursuant to a tribal energy resource 
                agreement approved by the Secretary under 
                subsection (e);
                  (B) the term of the lease or business 
                agreement does not exceed--
                          (i) 30 years; or
                          (ii) in the case of a lease for the 
                        production of oil resources, gas 
                        resources, or both, 10 years and as 
                        long thereafter as oil or gas is 
                        produced in paying quantities; and
                  (C) the Indian tribe has entered into a 
                tribal energy resource agreement with the 
                Secretary, as described in subsection (e), 
                relating to the development of energy resources 
                on tribal land (including the periodic review 
                and evaluation of the activities of the Indian 
                tribe under the agreement, to be conducted 
                pursuant to subsection (e)(2)(D)(i)).]
          (2) a lease or business agreement described in 
        paragraph (1) shall not require review by, or the 
        approval of, the Secretary under section 2103 of the 
        Revised Statutes (25 U.S.C. 81), or any other provision 
        of law, if the lease or business agreement--
                  (A) was executed--
                          (i) in accordance with the 
                        requirements of a tribal energy 
                        resource agreement in effect under 
                        subsection (e) (including the periodic 
                        review and evaluation of the activities 
                        of the Indian tribe under the 
                        agreement, to be conducted pursuant to 
                        subparagraphs (D) and (E) of subsection 
                        (e)(2)); or
                          (ii) by the Indian tribe and a tribal 
                        energy development organization--
                                  (I) for which the Indian 
                                tribe has obtained 
                                certification pursuant to 
                                subsection (h); and
                                  (II) the majority of the 
                                interest in which is, and 
                                continues to be throughout the 
                                full term or renewal term (if 
                                any) of the lease or business 
                                agreement, owned and controlled 
                                by the Indian tribe (or the 
                                Indian tribe and 1 or more 
                                other Indian tribes the tribal 
                                land of which is being 
                                developed); and
                  (B) has a term that does not exceed--
                          (i) 30 years; or
                          (ii) in the case of a lease for the 
                        production of oil resources, gas 
                        resources, or both, 10 years and as 
                        long thereafter as oil or gas is 
                        produced in paying quantities.
    [(b) Rights-of-Way for Pipelines or Electric Transmission 
or Distribution Lines.--An Indian tribe may grant a right-of-
way over tribal land for a pipeline or an electric transmission 
or distribution line without review or approval by the 
Secretary if--
          (1) the right-of-way is executed in accordance with a 
        tribal energy resource agreement approved by the 
        Secretary under subsection (e);
          (2) the term of the right-of-way does not exceed 30 
        years;
          (3) the pipeline or electric transmission or 
        distribution line serves--
                  (A) an electric generation, transmission, or 
                distribution facility located on tribal land; 
                or
                  (B) a facility located on tribal land that 
                processes or refines energy resources developed 
                on tribal land; and
          (4) the Indian tribe has entered into a tribal energy 
        resource agreement with the Secretary, as described in 
        subsection (e), relating to the development of energy 
        resources on tribal land (including the periodic review 
        and evaluation of the activities of the Indian tribe 
        under an agreement described in subparagraphs (D) and 
        (E) of subsection (e)(2)).]
    (b) Rights-of-Way.--An Indian tribe may grant a right-of-
way over tribal land without review or approval by the 
Secretary if the right-of-way--
          (1) serves--
                  (A) an electric production, generation, 
                transmission, or distribution facility 
                (including a facility that produces electricity 
                from renewable energy resources) located on 
                tribal land;
                  (B) a facility located on tribal land that 
                extracts, produces, processes, or refines 
                energy resources; or
                  (C) the purposes, or facilitates in carrying 
                out the purposes, of any lease or agreement 
                entered into for energy resource development on 
                tribal land; and
          (2) was executed--
                  (A) in accordance with the requirements of a 
                tribal energy resource agreement in effect 
                under subsection (e) (including the periodic 
                review and evaluation of the activities of the 
                Indian tribe under the agreement, to be 
                conducted pursuant to subparagraphs (D) and (E) 
                of subsection (e)(2)); or
                  (B) by the Indian tribe and a tribal energy 
                development organization--
                          (i) for which the Indian tribe has 
                        obtained certification pursuant to 
                        subsection (h); and
                          (ii) the majority of the interest in 
                        which is, and continues to be 
                        throughout the full term or renewal 
                        term (if any) of the right-of-way, 
                        owned and controlled by the Indian 
                        tribe (or the Indian tribe and 1 or 
                        more other Indian tribes the tribal 
                        land of which is being developed); and
          (3) has a term that does not exceed 30 years.
    (c) Renewals.--A lease or business agreement entered into, 
or a right-of-way granted, by an Indian tribe under this 
section may be renewed at the discretion of the Indian tribe in 
accordance with this section.
    [(d) Validity.--No lease, business agreement, or right-of-
way relating to the development of tribal energy resources 
under this section shall be valid unless the lease, business 
agreement, or right-of-way is authorized by a tribal energy 
resource agreement approved by the Secretary under subsection 
(e)(2).]
    (d) Validity.--No lease or business agreement entered into, 
or right-of-way granted, pursuant to this section shall be 
valid unless the lease, business agreement, or right-of-way is 
authorized by subsection (a) or (b).
    (e) Tribal Energy Resource Agreements.--
          [(1) On the date on which regulations are promulgated 
        under paragraph (8), an Indian tribe may submit to the 
        Secretary a tribal energy resource agreement governing 
        leases, business agreements, and rights-of-way under 
        this section.]
          (1) In general.--On or after the date of enactment of 
        the Indian Tribal Energy Development and Self-
        Determination Act Amendments of 2014, an Indian tribe 
        may submit to the Secretary a tribal energy resource 
        agreement governing leases, business agreements, and 
        rights-of-way under this section.
          [(2)(A) Not later than 270 days after the date on 
        which the Secretary receives a tribal energy resource 
        agreement from an Indian tribe under paragraph (1), or 
        not later than 60 days after the Secretary receives a 
        revised tribal energy resource agreement from an Indian 
        tribe under paragraph (4)(C) (or a later date, as 
        agreed to by the Secretary and the Indian tribe), the 
        Secretary shall approve or disapprove the tribal energy 
        resource agreement.]
          (2) Procedure.--
                  (A) Effective date.--
                          (i) In general.--On the date that is 
                        271 days after the date on which the 
                        Secretary receives a tribal energy 
                        resource agreement from an Indian tribe 
                        under paragraph (1), the tribal energy 
                        resource agreement shall take effect, 
                        unless the Secretary disapproves the 
                        tribal energy resource agreement under 
                        subparagraph (B).
                          (ii) Revised tribal energy resource 
                        agreement.--On the date that is 91 days 
                        after the date on which the Secretary 
                        receives a revised tribal energy 
                        resource agreement from an Indian tribe 
                        under paragraph (4)(B), the revised 
                        tribal energy resource agreement shall 
                        take effect, unless the Secretary 
                        disapproves the revised tribal energy 
                        resource agreement under subparagraph 
                        (B).
                  [(B) The Secretary shall approve a tribal 
                energy resource agreement submitted under 
                paragraph (1) if--]
                  (B) Disapproval.--The Secretary shall 
                disapprove a tribal energy resource agreement 
                submitted pursuant to paragraph (1) or (4)(B) 
                only if--
                          [(i) the Secretary determines that 
                        the Indian tribe has demonstrated that 
                        the Indian tribe has sufficient 
                        capacity to regulate the development of 
                        energy resources of the Indian tribe;]
                          (i) the Secretary determines that the 
                        Indian tribe has not demonstrated that 
                        the Indian tribe has sufficient 
                        capacity to regulate the development of 
                        the specific 1 or more energy resources 
                        identified for development under the 
                        tribal energy resource agreement 
                        submitted by the Indian tribe;
                          (ii) a provision of the tribal energy 
                        resource agreement would violate 
                        applicable Federal law (including 
                        regulations) or a treaty applicable to 
                        the Indian tribe;
                          (iii) the tribal energy resource 
                        agreement does not include 1 or more 
                        provisions required under subparagraph 
                        (D); or
                          [(ii) the tribal energy resource 
                        agreement includes provisions required 
                        under subparagraph (D); and]
                          [(iii)](iv) the tribal energy 
                        resource agreement [includes provisions 
                        that, with respect to a lease, business 
                        agreement, or right-of-way under this 
                        section--] does not include provisions 
                        that, with respect to any lease, 
                        business agreement, or right-of-way to 
                        which the tribal energy resource 
                        agreement applies--
                                  (I) ensure the acquisition of 
                                necessary information from the 
                                applicant for the lease, 
                                business agreement, or right-
                                of-way;
                                  (II) address the term of the 
                                lease or business agreement or 
                                the term of conveyance of the 
                                right-of-way;
                                  (III) address amendments and 
                                renewals;
                                  (IV) address the economic 
                                return to the Indian tribe 
                                under leases, business 
                                agreements, and rights-of-way;
                                  (V) address technical or 
                                other relevant requirements;
                                  (VI) establish requirements 
                                for environmental review in 
                                accordance with subparagraph 
                                (C);
                                  (VII) ensure compliance with 
                                all applicable environmental 
                                laws, including a requirement 
                                that each lease, business 
                                agreement, and right-of-way 
                                state that the lessee, 
                                operator, or right-of-way 
                                grantee shall comply with all 
                                such laws;
                                  (VIII) identify final 
                                approval authority;
                                  (IX) provide for public 
                                notification of final 
                                approvals;
                                  (X) establish a process for 
                                consultation with any affected 
                                States regarding off-
                                reservation impacts, if any, 
                                identified under subparagraph 
                                (C)(i);
                                  (XI) describe the remedies 
                                for breach of the lease, 
                                business agreement, or right-
                                of-way;
                                  (XII) require each lease, 
                                business agreement, and right-
                                of-way to include a statement 
                                that, if any of its provisions 
                                violates an express term or 
                                requirement of the tribal 
                                energy resource agreement 
                                pursuant to which the lease, 
                                business agreement, or right-
                                of-way was executed--
                                          (aa) the provision 
                                        shall be null and void; 
                                        and
                                          (bb) if the Secretary 
                                        determines the 
                                        provision to be 
                                        material, the Secretary 
                                        may suspend or rescind 
                                        the lease, business 
                                        agreement, or right-of-
                                        way or take other 
                                        appropriate action that 
                                        the Secretary 
                                        determines to be in the 
                                        best interest of the 
                                        Indian tribe;
                                  (XIII) require each lease, 
                                business agreement, and right-
                                of-way to provide that it will 
                                become effective on the date on 
                                which a copy of the executed 
                                lease, business agreement, or 
                                right-of-way is delivered to 
                                the Secretary in accordance 
                                with regulations promulgated 
                                under paragraph (8);
                                  (XIV) include citations to 
                                tribal laws, regulations, or 
                                procedures, if any, that set 
                                out tribal remedies that must 
                                be exhausted before a petition 
                                may be submitted to the 
                                Secretary under paragraph 
                                (7)(B); and
                                  [(XV) specify the financial 
                                assistance, if any, to be 
                                provided by the Secretary to 
                                the Indian tribe to assist in 
                                implementation of the tribal 
                                energy resource agreement, 
                                including environmental review 
                                of individual projects; and]
                                  [(XVI)](XV) in accordance 
                                with the regulations 
                                promulgated by the Secretary 
                                under paragraph (8), require 
                                that the Indian tribe, as soon 
                                as practicable after receipt of 
                                a notice by the Indian tribe, 
                                give written notice to the 
                                Secretary of--
                                          (aa) any breach or 
                                        other violation by 
                                        another party of any 
                                        provision in a lease, 
                                        business agreement, or 
                                        right-of-way entered 
                                        into under the tribal 
                                        energy resource 
                                        agreement; and
                                          (bb) any activity or 
                                        occurrence under a 
                                        lease, business 
                                        agreement, or right-of-
                                        way that constitutes a 
                                        violation of Federal 
                                        [or tribal] 
                                        environmental laws.
                  (C) Tribal energy resource agreements 
                submitted under paragraph (1) shall establish, 
                and include provisions to ensure compliance 
                with, an environmental review process that, 
                with respect to the approval of a lease, 
                business agreement, or right-of-way under this 
                section, provides for, at a minimum--
                          (i) the identification and evaluation 
                        of all significant environmental 
                        effects (as compared to a no-action 
                        alternative), including effects on 
                        cultural resources;
                          [(ii) the identification of proposed 
                        mitigation measures, if any, and 
                        incorporation of appropriate mitigation 
                        measures into the lease, business 
                        agreement, or right-of-way;]
                          (ii) the identification of mitigation 
                        measures, if any, that, in the 
                        discretion of the Indian tribe, the 
                        Indian tribe might propose for 
                        incorporation into the lease, business 
                        agreement, or right-of-way;
                          (iii) a process for ensuring that--
                                  (I) the public is informed 
                                of, and has an opportunity to 
                                comment on, the environmental 
                                impacts of the [proposed 
                                action] approval of the lease, 
                                business agreement, or right-
                                of-way; and
                                  (II) responses to relevant 
                                and substantive comments are 
                                provided, before tribal 
                                approval of the lease, business 
                                agreement, or right-of-way;
                          (iv) sufficient administrative 
                        support and technical capability to 
                        carry out the environmental review 
                        process; [and]
                          (v) oversight by the Indian tribe of 
                        energy development activities by any 
                        other party under any lease, business 
                        agreement, or right-of-way entered into 
                        pursuant to the tribal energy resource 
                        agreement, to determine whether the 
                        activities are in compliance with the 
                        tribal energy resource agreement and 
                        applicable Federal environmental 
                        laws[.]; and
                          (vi) the identification of specific 
                        classes or categories of actions, if 
                        any, determined by the Indian tribe not 
                        to have significant environmental 
                        effects.
                  (D) A tribal energy resource agreement 
                between the Secretary and an Indian tribe under 
                this subsection shall include--
                          (i) provisions requiring the 
                        Secretary to conduct a periodic review 
                        and evaluation to monitor the 
                        performance of the activities of the 
                        Indian tribe associated with the 
                        development of energy resources under 
                        the tribal energy resource agreement; 
                        and
                          (ii) if a periodic review and 
                        evaluation, or an investigation, by the 
                        Secretary of any breach or violation 
                        described in a notice provided by the 
                        Indian tribe to the Secretary in 
                        accordance with [subparagraph 
                        (B)(iii)(XVI)] subparagraph 
                        (B)(iv)(XV), results in a finding by 
                        the Secretary of imminent jeopardy to a 
                        physical trust asset arising from a 
                        violation of the tribal energy resource 
                        agreement or applicable Federal laws, 
                        provisions authorizing the Secretary to 
                        take actions determined by the 
                        Secretary to be necessary to protect 
                        the asset, including reassumption of 
                        responsibility for activities 
                        associated with the development of 
                        energy resources on tribal land until 
                        the violation and any condition that 
                        caused the jeopardy are corrected.
                  (E) Periodic review and evaluation under 
                subparagraph (D) shall be conducted on an 
                annual basis, except that, after the third 
                annual review and evaluation, the Secretary and 
                the Indian tribe may mutually agree to amend 
                the tribal energy resource agreement to 
                authorize the review and evaluation under 
                subparagraph (D) to be conducted once every 2 
                years.
                  (F) A tribal energy resource agreement that 
                takes effect pursuant to this subsection shall 
                remain in effect to the extent any provision of 
                the tribal energy resource agreement is 
                consistent with applicable Federal law 
                (including regulations), unless the tribal 
                energy resource agreement is--
                          (i) rescinded by the Secretary 
                        pursuant to paragraph (7)(D)(iii)(II); 
                        or
                          (ii) voluntarily rescinded by the 
                        Indian tribe pursuant to the 
                        regulations promulgated under paragraph 
                        (8)(B) (or successor regulations).
                  (G)(i) The Secretary shall make a preliminary 
                capacity determination under subparagraph 
                (B)(i) not later than 120 days after the date 
                on which the Indian tribe submits to the 
                Secretary the tribal energy resource agreement 
                of the Indian tribe pursuant to paragraph (1), 
                unless the Secretary and the Indian tribe 
                mutually agree to an extension of the time 
                period for making the determination.
                  (ii) Any determination (including any 
                preliminary determination) that the Indian 
                tribe lacks the requisite capacity shall be 
                treated as a disapproval under paragraph (4) 
                and, not later than 10 days after the date of 
                the determination, the Secretary shall provide 
                to the Indian tribe--
                          (I) a detailed, written explanation 
                        of each reason for the determination; 
                        and
                          (II) a description of the steps that 
                        the Indian tribe should take to 
                        demonstrate sufficient capacity.
                  (H) Notwithstanding any other provision of 
                this section, an Indian tribe shall be 
                considered to have demonstrated sufficient 
                capacity under subparagraph (B)(i) to regulate 
                the development of the specific 1 or more 
                energy resources of the Indian tribe identified 
                for development under the tribal energy 
                resource agreement submitted by the Indian 
                tribe pursuant to paragraph (1) if--
                          (i) the Secretary determines that--
                                  (I)(aa) the Indian tribe has 
                                carried out a contract or 
                                compact under title I or IV of 
                                the Indian Self-Determination 
                                and Education Assistance Act 
                                (25 U.S.C. 450 et seq.); and
                                  (bb) for a period of not less 
                                than 3 consecutive years ending 
                                on the date on which the Indian 
                                tribe submits the tribal energy 
                                resource agreement of the 
                                Indian tribe pursuant to 
                                paragraph (1) or (4)(B), the 
                                contract or compact--
                                      (AA) has been carried out 
                                by the Indian tribe without 
                                material audit exceptions (or 
                                without any material audit 
                                exceptions that were not 
                                corrected within the 3-year 
                                period); and
                                      (BB) has included 
                                programs or activities relating 
                                to the management of the 
                                environment, tribal land, 
                                realty, or natural resources; 
                                or
                                  (II) the Indian tribe has 
                                carried out approval of surface 
                                leases under subsection (h) of 
                                the first section of the Act of 
                                August 9, 1955 (commonly known 
                                as the `Long-Term Leasing Act') 
                                (25 U.S.C. 415(h)) for the 
                                previous calendar year without 
                                a finding of a compliance 
                                violation under 25 U.S.C. 
                                415(h)(8)(B); or
                          (ii) the Secretary fails to make the 
                        preliminary determination within the 
                        time allowed under subparagraph (G)(i) 
                        (including any extension of time agreed 
                        to under that subparagraph).
          [(3) The Secretary] (3) Notice and Comment; 
        Secretarial Review.--The Secretary shall provide notice 
        and opportunity for public comment on tribal energy 
        resource agreements submitted [for approval] under 
        paragraph (1). The Secretary's review of a tribal 
        energy resource agreement shall be limited to 
        activities specified by the provisions of the tribal 
        energy resource agreement.
          [(4) If the Secretary](4) Action in Case of 
        Disapproval.--If the Secretary disapproves a tribal 
        energy resource agreement submitted by an Indian tribe 
        under paragraph (1), the Secretary shall, not later 
        than 10 days after the [date of disapproval--] date of 
        disapproval, provide the Indian tribe with--
                  [(A) notify the Indian tribe in writing of 
                the basis for the disapproval;
                  [(B) identify what changes or other actions 
                are required to address the concerns of the 
                Secretary; and
                  [(C) provide the Indian tribe with an 
                opportunity to revise and resubmit the tribal 
                energy resource agreement.]
                  (A) a detailed, written explanation of--
                          (i) each reason for the disapproval; 
                        and
                          (ii) the revisions or changes to the 
                        tribal energy resource agreement 
                        necessary to address each reason; and
                  (B) an opportunity to revise and resubmit the 
                tribal energy resource agreement.
          [(5) If an Indian tribe](5) Provision of Documents to 
        Secretary._If an Indian tribe executes a lease or 
        business agreement, or grants a right-of-way, in 
        accordance with a tribal energy resource agreement 
        [approved] in effect under this subsection, the Indian 
        tribe shall, in accordance with the process and 
        requirements under regulations promulgated under 
        paragraph (8), provide to the Secretary--
                  (A) a copy of the lease, business agreement, 
                or right-of-way document (including all 
                amendments to and renewals of the document); 
                and
                  (B) in the case of a tribal energy resource 
                agreement or a lease, business agreement, or 
                right-of-way that permits payments to be made 
                directly to the Indian tribe, information and 
                documentation of those payments sufficient to 
                enable the Secretary to discharge the trust 
                responsibility of the United States to enforce 
                the terms of, and protect the rights of the 
                Indian tribe under, the lease, business 
                agreement, or right-of-way.
          [(6)(A) In carrying out](6) Secretarial Obligations 
        and Effect of Section._
                  (A) In carrying out this section, the 
                Secretary shall--
                          (i) act in accordance with the trust 
                        responsibility of the United States 
                        relating to mineral and other trust 
                        resources; and
                          (ii) act in good faith and in the 
                        best interests of the Indian tribes.
                  [(B) Subject to] (B) Subject only to the 
                provisions of subsections (a)(2), (b), and (c) 
                waiving the requirement of Secretarial approval 
                of leases, business agreements, and rights-of-
                way executed pursuant to tribal energy resource 
                agreements [approved] in effect under this 
                section, and the provisions of [subparagraph 
                (D)] subparagraphs (C) and (D), nothing in this 
                section shall absolve the United States from 
                any responsibility to Indians or Indian tribes, 
                including, but not limited to, those which 
                derive from the trust relationship or from any 
                treaties, statutes, and other laws of the 
                United States, Executive orders, or agreements 
                between the United States and any Indian tribe.
                  (C) The Secretary shall continue to fulfill 
                the trust obligation of the United States to 
                perform the obligations of the Secretary under 
                this section and to ensure that the rights and 
                interests of an Indian tribe are protected if--
                          (i) any other party to a lease, 
                        business agreement, or right-of-way 
                        violates any applicable Federal law or 
                        the terms of any lease, business 
                        agreement, or right-of-way under this 
                        section; or
                          (ii) any provision in a lease, 
                        business agreement, or right-of-way 
                        violates the tribal energy resource 
                        agreement pursuant to which the lease, 
                        business agreement, or right-of-way was 
                        executed.
                  (D)(i) In this subparagraph, the term 
                ``negotiated term'' means any term or provision 
                that is negotiated by an Indian tribe and any 
                other party to a lease, business agreement, or 
                right-of-way entered into pursuant to [an 
                approved tribal energy resource agreement] a 
                tribal energy resource agreement in effect 
                under this section.
                  (ii) Notwithstanding subparagraph (B), the 
                United States shall not be liable to any party 
                (including any Indian tribe) for any negotiated 
                term of, or any loss resulting from the 
                negotiated terms of, a lease, business 
                agreement, or right-of-way executed pursuant to 
                and in accordance with a tribal energy resource 
                agreement [approved by the Secretary] in effect 
                under paragraph (2).
                  (iii) Nothing in this section absolves, 
                limits, or otherwise affects the liability, if 
                any, of the United States for any--
                          (I) term of any lease, business 
                        agreement, or right-of-way under this 
                        section that is not a negotiated term; 
                        or
                          (II) losses that are not the result 
                        of a negotiated term, including losses 
                        resulting from the failure of the 
                        Secretary to perform an obligation of 
                        the Secretary under this section.
          [(7)(A) In this paragraph] (7) Petitions by 
        Interested Parties._
                  (A) In this paragraph, the term ``interested 
                party'' means any person (including an entity) 
                that [has demonstrated] the Secretary 
                determines has demonstrated with substantial 
                evidence that an interest of the person has 
                sustained, or will sustain, an adverse 
                environmental impact as a result of the failure 
                of an Indian tribe to comply with a tribal 
                energy resource agreement of the Indian tribe 
                [approved by the Secretary] in effect under 
                paragraph (2).
                  (B) After exhaustion of [any tribal remedy] 
                all remedies (if any) provided under the laws 
                of the Indian tribe, and in accordance with 
                regulations promulgated by the Secretary under 
                paragraph (8), an interested party may submit 
                to the Secretary a petition to review the 
                compliance by an Indian tribe with a tribal 
                energy resource agreement of the Indian tribe 
                [approved by the Secretary] in effect under 
                paragraph (2).
                  (C)(i) Not later than 20 days after the date 
                on which the Secretary receives a petition 
                under subparagraph (B), the Secretary shall--
                          (I) provide to the Indian tribe a 
                        copy of the petition; and
                          (II) consult with the Indian tribe 
                        regarding any noncompliance alleged in 
                        the petition.
                  (ii) Not later than 45 days after the date on 
                which a consultation under clause (i)(II) takes 
                place, the Indian tribe shall respond to any 
                claim made in a petition under subparagraph 
                (B).
                  (iii) The Secretary shall act in accordance 
                with subparagraphs (D) and (E) only if the 
                Indian tribe--
                          (I) denies, or fails to respond to, 
                        each claim made in the petition within 
                        the period described in clause (ii); or
                          (II) fails, refuses, or is unable to 
                        cure or otherwise resolve each claim 
                        made in the petition within a 
                        reasonable period, as determined by the 
                        Secretary, after the expiration of the 
                        period described in clause (ii).
                  (D)(i) Not later than 120 days after the date 
                on which the Secretary receives a petition 
                under subparagraph (B), the Secretary shall 
                [determine whether the Indian tribe is not in 
                compliance with the tribal energy resource 
                agreement.] determine--
                          (I) whether the petitioner is an 
                        interested party; and
                          (II) if the petitioner is an 
                        interested party, whether the Indian 
                        tribe is not in compliance with the 
                        tribal energy resource agreement as 
                        alleged in the petition.
                  (ii) The Secretary may adopt procedures under 
                paragraph (8) authorizing an extension of time, 
                not to exceed 120 days, for making the 
                [determination] determinations under clause (i) 
                in any case in which the Secretary determines 
                that additional time is necessary to evaluate 
                the allegations of the petition.
                  (iii) Subject to subparagraph (E), if the 
                Secretary determines that the Indian tribe is 
                not in compliance with the tribal energy 
                resource [agreement, the Secretary shall take 
                such action as the Secretary determines to be 
                necessary to ensure compliance with the tribal 
                energy resource agreement, including] agreement 
                pursuant to clause (i), the Secretary shall 
                only take such action as the Secretary 
                determines necessary to address the claims of 
                noncompliance made in the petition, including--
                          (I) temporarily suspending any 
                        activity under a lease, business 
                        agreement, or right-of-way under this 
                        section until the Indian tribe is in 
                        compliance with the [approved] tribal 
                        energy resource agreement; or
                          (II) rescinding [approval of] all or 
                        part of the tribal energy resource 
                        agreement, and if all of the agreement 
                        is rescinded, reassuming the 
                        responsibility for approval of any 
                        future leases, business agreements, or 
                        rights-of-way described in [subsection 
                        (a) or (b)] subsection (a)(2)(A)(i) or 
                        (b)(2)(A).
                  (E) Before taking an action described in 
                subparagraph (D)(iii), the Secretary shall--
                          (i) make a written determination that 
                        describes [the manner in which], with 
                        respect to each claim made in the 
                        petition, how the tribal energy 
                        resource agreement has been violated;
                          (ii) provide the Indian tribe with a 
                        written notice of the violations 
                        together with the written 
                        determination; and
                          (iii) before taking any action 
                        described in subparagraph (D)(iii) or 
                        seeking any other remedy, provide the 
                        Indian tribe with a hearing and a 
                        reasonable opportunity to attain 
                        compliance with the tribal energy 
                        resource agreement.
                  (F) An Indian tribe described in subparagraph 
                (E) shall retain all rights to appeal under any 
                regulation promulgated by the Secretary.
                  (G) Notwithstanding any other provision of 
                this paragraph, the Secretary shall dismiss any 
                petition from an interested party that has 
                agreed with the Indian tribe to a resolution of 
                the claims presented in the petition of that 
                party.
          (8) Not later than 1 year after August 8, 2005, the 
        Secretary shall promulgate regulations that implement 
        this subsection, including--
                  (A) criteria to be used in determining the 
                capacity of an Indian tribe under paragraph 
                (2)(B)(i), including the experience of the 
                Indian tribe in managing natural resources and 
                financial and administrative resources 
                available for use by the Indian tribe in 
                implementing the approved tribal energy 
                resource agreement of the Indian tribe;
                  (B) a process and requirements in accordance 
                with which an Indian tribe may--
                          (i) voluntarily rescind a tribal 
                        energy resource agreement approved by 
                        the Secretary under this subsection; 
                        [and]
                          (ii) return to the Secretary the 
                        responsibility to approve any future 
                        lease, business agreement, or right-of-
                        way under this subsection; and
                          (iii) amend an approved tribal energy 
                        resource agreement to assume authority 
                        for approving leases, business 
                        agreements, or rights-of-way for 
                        development of another energy resource 
                        that is not included in an approved 
                        tribal energy resource agreement 
                        without being required to apply for a 
                        new tribal energy resource agreement;
                  (C) provisions establishing the scope of, and 
                procedures for, the periodic review and 
                evaluation described in subparagraphs (D) and 
                (E) of paragraph (2), including provisions for 
                review of transactions, reports, site 
                inspections, and any other review activities 
                the Secretary determines to be appropriate; and
                  (D) provisions describing final agency 
                actions after exhaustion of administrative 
                appeals from determinations of the Secretary 
                under paragraph (7).
          (9) Effect.--Nothing in this section authorizes the 
        Secretary to deny a tribal energy resource agreement or 
        any amendment to a tribal energy resource agreement, or 
        limit the effect or implementation of this section, due 
        to lack of promulgated regulations.
    (f) No Effect on Other Law.--Nothing in this section 
affects the application of--
          (1) any Federal environmental law;
          (2) the Surface Mining Control and Reclamation Act of 
        1977 (30 U.S.C. 1201 et seq.); or
          (3) except as otherwise provided in this chapter, the 
        Indian Mineral Development Act of 1982 (25 U.S.C. 2101 
        et seq.).
    (g) Financial Assistance in Lieu of Activities by the 
Secretary.--
          (1) In general.--Any amounts that the Secretary would 
        otherwise expend to operate or carry out any program, 
        function, service, or activity (or any portion of a 
        program, function, service, or activity) of the 
        Department that, as a result of an Indian tribe 
        carrying out activities under a tribal energy resource 
        agreement, the Secretary does not expend, the Secretary 
        shall, at the request of the Indian tribe, make 
        available to the Indian tribe in accordance with this 
        subsection.
          (2) Annual Funding Agreements.--The Secretary shall 
        make the amounts described in paragraph (1) available 
        to an Indian tribe through an annual written funding 
        agreement that is negotiated and entered into with the 
        Indian tribe that is separate from the tribal energy 
        resource agreement.
          (3) Effect of appropriations.--Notwithstanding 
        paragraph (1)--
                  (A) the provision of amounts to an Indian 
                tribe under this subsection is subject to the 
                availability of appropriations; and
                  (B) the Secretary shall not be required to 
                reduce amounts for programs, functions, 
                services, or activities that serve any other 
                Indian tribe to make amounts available to an 
                Indian tribe under this subsection.
          (4) Determination.--
                  (A) In general.--The Secretary shall 
                calculate the amounts under paragraph (1) in 
                accordance with the regulations adopted under 
                section 103(b) of the Indian Tribal Energy 
                Development and Self-Determination Act 
                Amendments of 2014.
                  (B) Applicability.--The effective date or 
                implementation of a tribal energy resource 
                agreement under this section shall not be 
                delayed or otherwise affected by--
                          (i) a delay in the promulgation of 
                        regulations under section 103(b) of the 
                        Indian Tribal Energy Development and 
                        Self-Determination Act Amendments of 
                        2014;
                          (ii) the period of time needed by the 
                        Secretary to make the calculation 
                        required under paragraph (1); or
                          (iii) the adoption of a funding 
                        agreement under paragraph (2).
    (h) Certification of Tribal Energy Development 
Organization.--
          (1) In general.--Not later than 90 days after the 
        date on which an Indian tribe submits an application 
        for certification of a tribal energy development 
        organization in accordance with regulations promulgated 
        under section 103(b) of the Indian Tribal Energy 
        Development and Self-Determination Act Amendments of 
        2014, the Secretary shall approve or disapprove the 
        application.
          (2) Requirements.--The Secretary shall approve an 
        application for certification if--
                  (A)(i) the Indian tribe has carried out a 
                contract or compact under title I or IV of the 
                Indian Self-Determination and Education 
                Assistance Act (25 U.S.C. 450 et seq.); and
                  (ii) for a period of not less than 3 
                consecutive years ending on the date on which 
                the Indian tribe submits the application, the 
                contract or compact--
                          (I) has been carried out by the 
                        Indian tribe without material audit 
                        exceptions (or without any material 
                        audit exceptions that were not 
                        corrected within the 3-year period); 
                        and
                          (II) has included programs or 
                        activities relating to the management 
                        of tribal land; and
                  (B)(i) the tribal energy development 
                organization is organized under the laws of the 
                Indian tribe and subject to the jurisdiction 
                and authority of the Indian tribe;
                  (ii) the majority of the interest in the 
                tribal energy development organization is owned 
                and controlled by the Indian tribe (or the 
                Indian tribe and 1 or more other Indian tribes 
                the tribal land of which is being developed); 
                and
                  (iii) the organizing document of the tribal 
                energy development organization requires that 
                the Indian tribe (or the Indian tribe and 1 or 
                more other Indian tribes the tribal land of 
                which is being developed) own and control at 
                all times a majority of the interest in the 
                tribal energy development organization.
          (3) Action by secretary.--If the Secretary approves 
        an application for certification pursuant to paragraph 
        (2), the Secretary shall, not more than 10 days after 
        making the determination--
                  (A) issue a certification stating that--
                          (i) the tribal energy development 
                        organization is organized under the 
                        laws of the Indian tribe and subject to 
                        the jurisdiction and authority of the 
                        Indian tribe;
                          (ii) the majority of the interest in 
                        the tribal energy development 
                        organization is owned and controlled by 
                        the Indian tribe (or the Indian tribe 
                        and 1 or more other Indian tribes the 
                        tribal land of which is being 
                        developed);
                          (iii) the organizing document of the 
                        tribal energy development organization 
                        requires that the Indian tribe (or the 
                        Indian tribe and 1 or more other Indian 
                        tribes the tribal land of which is 
                        being developed) own and control at all 
                        times a majority of the interest in the 
                        tribal energy development organization; 
                        and
                          (iv) the certification is issued 
                        pursuant this subsection;
                  (B) deliver a copy of the certification to 
                the Indian tribe; and
                  (C) publish the certification in the Federal 
                Register.
    (i) Sovereign Immunity.--Nothing in this section waives the 
sovereign immunity of an Indian tribe.
    [(g)](j) Authorization of Appropriations. There are 
authorized to be appropriated to the Secretary such sums as are 
necessary for each of fiscal years 2006 through 2016 to carry 
out this section and to make grants or provide other 
appropriate assistance to Indian tribes to assist the Indian 
tribes in developing and implementing tribal energy resource 
agreements in accordance with this section.

            25 U.S.C. Sec. 3506 (Energy Policy Act of 1992)


Sec. 3506. Wind and hydropower feasibility study

           *       *       *       *       *       *       *


    (c) Report. Not later than 1 year after August 8, 2005, the 
Secretary of Energy, the Secretary, and the Secretary of the 
Army shall submit to Congress a report that describes the 
results of the study, including--

           *       *       *       *       *       *       *

          (3) if found feasible, recommendations for a 
        demonstration project to be carried out by the Western 
        Area Power Administration, in partnership with an 
        Indian tribal government or tribal [energy resource 
        development] energy development organization, and 
        Western Area Power Administration customers to 
        demonstrate the feasibility and potential of using wind 
        energy produced on Indian land to supply firming energy 
        to the Western Area Power Administration; and

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

           *       *       *       *       *       *       *



SEC. 2607. APPRAISALS.

    (a) In General.--For any transaction that requires approval 
of the Secretary and involves mineral or energy resources held 
in trust by the United States for the benefit of an Indian 
tribe or by an Indian tribe subject to Federal restrictions 
against alienation, any appraisal relating to fair market value 
of those resources required to be prepared under applicable law 
may be prepared by--
          (1) the Secretary;
          (2) the affected Indian tribe; or
          (3) a certified, third-party appraiser pursuant to a 
        contract with the Indian tribe.
    (b) Secretarial Review and Approval.--Not later than 45 
days after the date on which the Secretary receives an 
appraisal prepared by or for an Indian tribe under paragraph 
(2) or (3) of subsection (a), the Secretary shall--
          (1) review the appraisal; and
          (2) approve the appraisal unless the Secretary 
        determines that the appraisal fails to meet the 
        standards set forth in regulations promulgated under 
        subsection (d).
    (c) Notice of Disapproval.--If the Secretary determines 
that an appraisal submitted for approval under subsection (b) 
should be disapproved, the Secretary shall give written notice 
of the disapproval to the Indian tribe and a description of--
          (1) each reason for the disapproval; and
          (2) how the appraisal should be corrected or 
        otherwise cured to meet the applicable standards set 
        forth in the regulations promulgated under subsection 
        (d).
    (d) Regulations.--The Secretary shall promulgate 
regulations to carry out this section, including standards the 
Secretary shall use for approving or disapproving the appraisal 
described in subsection (a).

                 16 U.S.C. Sec. 800 (Federal Power Act)


Sec. 800. Issuance of preliminary permits or licenses

    (a) Preference.--In issuing preliminary permits hereunder 
or original licenses where no preliminary permit has been 
issued, the Commission shall give preference to applications 
therefor by [States and municipalities] States, Indian tribes, 
and municipalities, provided the plans for the same are deemed 
by the Commission equally well adapted, or shall within a 
reasonable time to be fixed by the Commission be made equally 
well adapted, to conserve and utilize in the public interest 
the water resources of the region; and as between other 
applicants, the Commission may give preference to the applicant 
the plans of which it finds and determines are best adapted to 
develop, conserve, and utilize in the public interest the water 
resources of the region, if it be satisfied as to the ability 
of the applicant to carry out such plans.

The Energy Policy and Conservation Act (42 U.S.C. Sec. 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 develop alternative and renewable energy 
        resources 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.
                  (C) Presumption.--If the tribal organization 
                requesting the grant is a tribally designated 
                housing entity (as defined in section 4 of the 
                Native American Housing Assistance and Self-
                Determination Act of 1996 (25 U.S.C. 4103)) 
                that has operated without material audit 
                exceptions (or without any material audit 
                exceptions that were not corrected within a 3-
                year period), the Secretary shall presume that 
                the low-income members of the applicable Indian 
                tribe would be equally or better served by 
                making a grant directly to the tribal 
                organization than by a grant made to the State 
                in which the low-income members reside.
          (2) [The sums] Administration.--The amounts reserved 
        by the Secretary [on the basis of his determination] 
        under this subsection shall be granted to the tribal 
        organization serving the individuals for whom such a 
        determination has been made] low-income members of the 
        Indian tribe, or, where there is no tribal 
        organization, to such other entity as [he] the 
        Secretary determines has the capacity to provide 
        services pursuant to this part.
          (3) [In order] Application.--In order for a tribal 
        organization or other entity to be eligible for a grant 
        for a fiscal year under this subsection, it shall 
        submit to the Secretary an application meeting the 
        requirements set forth in section 6864 of this title. 
        (e) Transfer of funds. Notwithstanding any other 
        provision of law, the Secretary may transfer to the 
        Director sums appropriated under this part to be 
        utilized in order to carry out programs, under section 
        222(a)(12) of the Economic Opportunity Act of 1964, 
        which further the purpose of this part.

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

           *       *       *       *       *       *       *



SEC. 2. TRIBAL FOREST ASSETS PROTECTION.

    (a) Definitions.--[In this section] In this Act:
          (1) Federal Land.--The term ``Federal land'' means--
                  (A) land of the National Forest System (as 
                defined in section 11(a) of the Forest and 
                Rangeland Renewable Resources Planning Act of 
                1974 (16 U.S.C. 1609(a)) administered by the 
                Secretary of Agriculture, acting through the 
                Chief of the Forest Service; and
                  (B) public lands (as defined in section 103 
                of the Federal Land Policy and Management Act 
                of 1976 ( 43 U.S.C. 1702)), the surface of 
                which is administered by the Secretary of the 
                Interior, acting through the Director of the 
                Bureau of Land Management.
          (2) Indian Forest Land or Rangeland.--The term 
        ``Indian forest land or rangeland'' means land that--
                  (A) is held in trust by, or with a 
                restriction against alienation by, the United 
                States for an Indian tribe or a member of an 
                Indian tribe; and(B)
                          (i)(I) is Indian forest land (as 
                        defined in section 304 of the National 
                        Indian Forest Resources Management Act 
                        ( 25 U.S.C. 3103)); or
                          (II) has a cover of grasses, brush, 
                        or any similar vegetation; or
                          (ii) formerly had a forest cover or 
                        vegetative cover that is capable of 
                        restoration.
          (3) Indian Tribe.--The term ``Indian tribe'' has the 
        meaning given the term in section 4 of the Indian Self-
        Determination and Education Assistance Act ( 25 U.S.C. 
        450b).
          (4) Secretary.--The term ``Secretary'' means--
                  (A) the Secretary of Agriculture, with 
                respect to land under the jurisdiction of the 
                Forest Service; and
                  (B) the Secretary of the Interior, with 
                respect to land under the jurisdiction of the 
                Bureau of Land Management.

           *       *       *       *       *       *       *


SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT.

    (a) Stewardship Contracts or Similar Agreements.--For each 
of fiscal years 2015 through 2019, the Secretary shall enter 
into stewardship contracts or similar agreements (excluding 
direct service contracts) with Indian tribes to carry out 
demonstration projects to promote biomass energy production 
(including biofuel, heat, and electricity generation) on Indian 
forest land and in nearby communities by providing reliable 
supplies of woody biomass from Federal land.
    (b) Demonstration Projects.--In each fiscal year for which 
projects are authorized, at least 4 new demonstration projects 
that meet the eligibility criteria described in subsection (c) 
shall be carried out under contracts or agreements described in 
subsection (a).
    (c) Eligibility Criteria.--To be eligible to enter into a 
contract or agreement under this section, an Indian tribe shall 
submit to the Secretary an application--
          (1) containing such information as the Secretary may 
        require; and
          (2) that includes a description of--
                  (A) the Indian forest land or rangeland under 
                the jurisdiction of the Indian tribe; and
                  (B) the demonstration project proposed to be 
                carried out by the Indian tribe.
    (d) Selection.--In evaluating the applications submitted 
under subsection (c), the Secretary shall--
          (1) take into consideration--
                  (A) the factors set forth in paragraphs (1) 
                and (2) of section 2(e); and
                  (B) whether a proposed project would--
                          (i) increase the availability or 
                        reliability of local or regional 
                        energy;
                          (ii) enhance the economic development 
                        of the Indian tribe;
                          (iii) result in or improve the 
                        connection of electric power 
                        transmission facilities serving the 
                        Indian tribe with other electric 
                        transmission facilities;
                          (iv) improve the forest health or 
                        watersheds of Federal land or Indian 
                        forest land or rangeland;
                          (v) demonstrate new investments in 
                        infrastructure; or
                          (vi) otherwise promote the use of 
                        woody biomass; and
          (2) exclude from consideration any merchantable logs 
        that have been identified by the Secretary for 
        commercial sale.
    (e) Implementation.--The Secretary shall--
          (1) ensure that the criteria described in subsection 
        (c) are publicly available by not later than 120 days 
        after the date of enactment of this section; and
          (2) to the maximum extent practicable, consult with 
        Indian tribes and appropriate intertribal organizations 
        likely to be affected in developing the application and 
        otherwise carrying out this section.
    (f) Report.--Not later than September 20, 2017, the 
Secretary shall submit to Congress a report that describes, 
with respect to the reporting period--
          (1) each individual tribal application received under 
        this section; and
          (2) each contract and agreement entered into pursuant 
        to this section.
    (g) Incorporation of Management Plans.--In carrying out a 
contract or agreement under this section, on receipt of a 
request from an Indian tribe, the Secretary shall incorporate 
into the contract or agreement, to the maximum extent 
practicable, management plans (including forest management and 
integrated resource management plans) in effect on the Indian 
forest land or rangeland of the respective Indian tribe.
    (h) Term.--A contract or agreement entered into under this 
section--
          (1) shall be for a term of not more than 20 years; 
        and
          (2) may be renewed in accordance with this section 
        for not more than an additional 10 years.

                           25 U.S.C. Sec. 415


Sec. 415. Leases of restricted lands

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

           *       *       *       *       *       *       *

    (e) Leases of Restricted Lands for the Navajo Nation.--
          (1) Any leases by the Navajo Nation for purposes 
        authorized under subsection (a), and any amendments 
        thereto[, except a lease for], including a lease for 
        the exploration, development, or extraction of any 
        mineral resources, shall not require the approval of 
        the Secretary if the lease is executed under the tribal 
        regulations approved by the Secretary under this 
        subsection and the term of the lease does not exceed--
                  [(A) in the case of a business or 
                agricultural lease, 25 years, except that any 
                such lease may include an option to renew for 
                up to two additional terms, each of which may 
                not exceed 25 years; and]
                  (A) in the case of a business or agricultural 
                lease, 99 years;
                  (B) in the case of a lease for public, 
                religious, educational, recreational, or 
                residential purposes, 75 years if such a term 
                is provided for by the Navajo Nation through 
                the promulgation of regulations[.]; and
                  (C) in the case of a lease for the 
                exploration, development, or extraction of 
                mineral resource (including geothermal 
                resources), 25 years, except that--
                          (i) any such lease may include an 
                        option to renew for 1 additional term 
                        of not to exceed 25 years; and
                          (ii) any such lease for the 
                        exploration, development, or extraction 
                        of an oil or gas resource shall be for 
                        a term of not to exceed 10 years, plus 
                        such additional period as the Navajo 
                        Nation determines to be appropriate in 
                        any case in which an oil or gas 
                        resource is produced in a paying 
                        quantity.

                                  
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