Tribal Energy Resource Agreements (TERAs): Approval Process and Selected Issues for Congress

Tribal Energy Resource Agreements (TERAs):
July 9, 2020
Approval Process and Selected Issues
Tana Fitzpatrick
for Congress
Specialist in Natural
Resources Policy
Congress provided federal y recognized Indian tribes the option to enter into a Tribal

Energy Resource Agreement (TERA) with the federal government in the Indian Tribal
Energy Development and Self-Determination Act of 2005 (ITEDSA 2005; P.L. 109-58,

Title V). TERAs offer tribes increased administrative and regulatory control over Indian energy projects. If the
Secretary of the Interior (Secretary) approves a TERA, a tribe can enter into leases and business agreements for
the purpose of energy resource development on tribal land or grant rights-of-way over tribal lands for pipelines or
for electricity transmission or distribution lines, without requiring the Secretary’s review and approval for each
lease, business agreement, or right-of-way.
ITEDSA 2005 specified the components of a TERA, including requirements applicable to the leases, business
agreements, and rights-of-way to be executed under the agreement. ITEDSA 2005 also established procedural
requirements and criteria for approving a TERA. One criterion, for example, included a requirement for the
Secretary to determine if the tribe demonstrated sufficient capacity to regulate energy resource development. In
2008, the Department of the Interior (DOI) promulgated regulations that further established the process and time
frames for DOI’s review and expanded on components of a proposed TERA. Notably, the 2008 regulations
provided that tribes may propose in a TERA to assume certain federal activities normal y carried out by DOI on
behalf of the tribe for energy resource development, except for inherently federal functions. The regulations,
however, did not specify the functions considered to be inherently federal.
Although a handful of tribes initiated the process after the passage of ITEDSA 2005, no tribes entered into a
TERA and several tribes expressed concerns with the regulatory language and uncertainty regarding the approval
process. In its oversight capacity, Congress requested the U.S. Government Accountability Office (GAO) examine
the Bureau of Indian Affairs’ (BIA’s) management of Indian energy resource development, including factors
deterring tribes from entering into TERAs. In 2015, GAO found that the factors deterring tribes from seeking
TERAs included uncertainty regarding the regulations, a complex application process, and concerns regarding the
costs to tribes of assuming federal functions.
Responding to tribal requests, Congress pursued legislative remedies to address some of these concerns. In
December 2018, Congress enacted the Indian Tribal Energy and Self-Determination Act Amendments of 2017
(ITEDSA 2017; P.L. 115-325), and in December 2019, DOI finalized amendments to its regulations. Among other
provisions, ITEDSA 2017 amends the procedural requirements regarding TERAs; adds a tribal certification of
being a qualified Indian tribe, in lieu of a Secretarial determination of tribal capacity; and provides for financial
assistance to tribes for TERA implementation. Neither ITEDSA 2017 nor the 2019 regulations, however, defines
inherently federal functions. Rather, in December 2019 the Secretary of the Interior issued Secretarial Order 3377,
Contractibility of Federal Functions for Oil and Gas Development on Indian Lands (S.O. 3377), in which the
Secretary directed the Department’s Office of the Solicitor to develop a list of inherently federal functions not
available for inclusion in a TERA.
Congress may consider various issues regarding the TERA approval process and key differences between
statutory and regulatory text. Policy considerations for Congress include (1) processing proposed TERAs; (2); the
Secretary’s discretion in considering TERA criteria; (3) clarifying inherently federal functions; (4) regulatory
treatment of qualified Indian tribe in lieu of Secretarial determination of tribal capacity; and (5) financial
assistance for TERA implementation.
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Contents
Introduction ................................................................................................................... 1
A Note on Terminology .............................................................................................. 3
The Federal Trust Responsibility, Indian Energy Resources, and Tribal Lands..................... 3
TERAs: Statutory and Regulatory Framework ..................................................................... 4
Indian Tribal Energy Development and Self-Determination Act of 2005 and 2008
TERA Regulations .................................................................................................. 5
Time Frames for Processing a Proposed TERA ......................................................... 5
Secretarial Consideration of Criteria to Approve a TERA ........................................... 6
TERA Requirements and Inherently Federal Functions .............................................. 6
Tribal Capacity Determination................................................................................ 8
Concerns Regarding Indian Tribal Energy Development and Self-Determination Act of
2005........................................................................................................................... 9
Complex Application Process ...................................................................................... 9
Secretary’s Discretion in Tribal Capacity Determinations .............................................. 10
Clarifying Inherently Federal Functions ...................................................................... 10
Lack of Funding ...................................................................................................... 11
Indian Tribal Energy and Self-Determination Act Amendments of 2017 and 2019 TERA
Regulations ............................................................................................................... 11
Revised Time Frames for Processing TERAs ............................................................... 12
Revised Secretarial Consideration of TERA Criteria ..................................................... 15
Revised TERA Requirements and Inherently Federal Functions ...................................... 15

Inherently Federal Functions and Secretarial Order 3377 .......................................... 16
Certification of Qualified Indian Tribe in Lieu of Tribal Capacity Determination ............... 17
Financial Assistance via Annual Funding Agreements ................................................... 18
Policy Considerations .................................................................................................... 18
Processing Proposed TERAs ..................................................................................... 19
Secretary’s Discretion in Considering TERA Criteria .................................................... 19
Clarifying Inherently Federal Functions ...................................................................... 20
Regulatory Treatment of Qualified Indian Tribe in Lieu of Secretarial Determination
of Tribal Capacity ................................................................................................. 21
Financial Assistance for TERA implementation ............................................................ 22

Figures
Figure 1. Statutory and Regulatory Timeline Requirements for Approving or
Disapproving a Tribal Energy Resource Agreement (TERA) ............................................. 13

Tables

Table A-1. A Comparison of the Statutory and Regulatory Tribal Energy Resource
Agreement (TERA) Requirements ................................................................................ 24

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Appendixes
Appendix. Tribal Energy Resource Agreement (TERA) Submittal Requirements .................... 24

Contacts
Author Information ....................................................................................................... 28

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Introduction
In 2019, federal y recognized Indian tribes (Indian tribes or tribes) and individual Indian mineral
owners received $1.1 bil ion in energy and mineral revenue—the largest source of revenue
generated from natural resources on trust lands.1 In addition, significant opportunities for energy
resource development for both renewable and nonrenewable energy resources exist on trust
lands.2 Yet tribes cite encountering substantial barriers to developing their energy resources. For
instance, one tribal leader estimated it can take up to 49 steps for oil and gas exploration on trust
lands, whereas there are only 4 steps on private lands under state jurisdiction.3 Development of
energy resources by Indian tribes on trust lands can often require the approval or involvement of
agencies within the Department of the Interior (DOI), primarily the Bureau of Indian Affairs
(BIA), as wel as others.
In 2005, Congress sought to increase tribal control of, and encourage tribal self-determination
over, Indian energy projects by enacting the Indian Tribal Energy Development and Self-
Determination Act (ITEDSA 2005; P.L. 109-58, Title V). ITEDSA 2005 created Tribal Energy
Resource Agreements (TERAs), which al owed tribes, at their option, to enter into an agreement
with the Secretary of the Interior (Secretary). Under an approved TERA, tribes could enter into
leases, business agreements, or rights-of-way for the purpose of energy resource development on
tribal land without requiring the Secretary’s review and approval. By removing the Secretary’s
review and approval, tribes could have increased control and could exercise greater self-
determination over Indian energy projects on tribal lands.
ITEDSA 2005 established statutory requirements for approving a TERA and specified the
components of a TERA. ITEDSA 2005 included, for example, a requirement for the Secretary to
determine if the tribe demonstrated sufficient capacity to regulate energy resource development.
In 2008, DOI promulgated regulations (2008 TERA regulations) that established the process and
time frames for DOI’s review and expanded on components of a proposed TERA.4 Notably, the
2008 TERA regulations provided that a tribe may propose in a TERA to assume certain federal
activities normal y carried out by DOI on behalf of the tribe, except for inherently federal
functions
. The 2008 TERA regulations, however, did not specify the functions considered to be
inherently federal.
Although a handful of tribes initiated the TERA process after the passage of ITEDSA 2005, no
tribes entered into a TERA, and several tribes expressed concerns with the language of the 2008

1 U.S. Department of the Interior (DOI), Bureau of Indian Affairs (BIA), “Budget Justifications and Performance
Information Fiscal Year 2021,” p. IA-ES-4, at https://www.bia.gov/sites/bia.gov/files/assets/as-ia/obpm/
BIA_FY2021_Greenbook-508.pdf. For the purposes of this paragraph only, trust lands refers to land held in trust by
the United States on behalf of both a federally recognized Indian tribe (Indian tribe or tribe) and individual Indians.
T his report, however, addresses only land held in trust by the United States for the benefit of Indian tribes, referred to
as tribal lands.
2 Elizabeth Ann Kronk, “T ribal Energy Resource Agreements: T he Unintended Great Mischief for Indian Energy
Development and the Resulting Need for Reform,” Pace Environmental Law Review, vol. 29, no. 3 (Spring 2012), pp.
814-815.
3 U.S. Congress, Senate Committee on Indian Affairs, report to accompany S. 1684, 112th Congress, Second Session,
December 21, 2012, S.Rept. 112-263, Government Publishing Office (GPO), p.4.
4 BIA, “ T ribal Energy Resource Agreements Under the Indian T ribal Energy Development and Self -Determination
Act; Final Rule,” 73 Federal Register 12807, March 10, 2008, at https://www.federalregister.gov/documents/2008/03/
10/E8-4301/tribal-energy-resource-agreements-under-the-indian-tribal-energy-development -and-self-determination.
Hereinafter, 2008 T ERA regulations.
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TERA regulations and uncertainty regarding the approval process. Congress considered
legislative remedies, and the U.S Government Accountability Office (GAO) issued several
reports examining BIA’s management of the development of Indian energy resources. GAO
examined factors deterring tribes from entering into TERAs, such as uncertainty regarding the
regulations, a complex application process, and concerns regarding the costs to tribes of assuming
federal duties.
After consideration in several Congresses, the Indian Tribal Energy Development and Self-
Determination Act Amendments of 2017 (ITEDSA 2017; P.L. 115-325) became law in December
2018. A year later, DOI finalized amendments to the regulations (2019 TERA regulations).5 In
P.L. 115-325, Congress addressed various tribal concerns regarding TERAs, several of which are
outside the scope of this report.6 This report focuses on and analyzes changes made to the TERA
approval process and how Congress and DOI address some of the common concerns reportedly
inhibiting tribes from entering into a TERA, such as
 process time frames,
 the Secretary’s discretion in the approval process,
 certification that a tribe meets the definition of qualified Indian tribe instead of
demonstrating tribal capacity,
 identification of inherently federal functions, and
 financial assistance for TERA implementation.
To provide context, this report provides a brief overview of the federal trust responsibility in light
of Indian energy resource development. This report also provides
 a review of the statutory and regulatory TERA framework established by
ITEDSA 2005 and the 2008 TERA regulations,
 a review of tribal concerns expressed following passage of ITEDSA 2005, and
 an examination of ITEDSA 2017, the 2019 TERA regulations, and other
Administration actions.
In addition, this report highlights selected issues for congressional consideration: (1) processing
proposed TERAs, (2) the Secretary’s discretion in considering TERA criteria, (3) clarifying
inherently federal functions, (4) regulatory treatment of qualified Indian tribe in lieu of Secretarial
determination of tribal capacity, and (5) financial assistance for TERA implementation. This
section wil highlight key differences in statutory and regulatory text.7

5 BIA, “ T ribal Energy Resource Agreements,” 84 Federal Register 69602, December 18, 2019, at
https://www.federalregister.gov/documents/2019/12/18/2019-27399/tribal-energy-resource-agreements. Hereinafter,
2019 T ERA regulations.
6 T ribal concerns regarding T ERAs that are outside the scope of this report include potential issues after a T ERA is
approved, such as including public input into the tribal environmental review process, U.S. liability, as well as
interested party petitions and the compliance of tribes under an approved T ERA. See generally S.Rept. 112-263, U.S.
Congress, Senate Committee on Indian Affairs, report to accompany S. 2132, 113th Cong., 2nd sess., July 30, 2014;
S.Rept. 113-224, GPO (S.Rept. 113-224); U.S. Congress, Senate Committee on Indian Affairs, report to accompany S.
209, 114th Cong., 1st sess., September 30, 2015; S.Rept. 114-149, GPO (S.Rept. 114-149); U.S. Congress, Senate
Committee on Indian Affairs, report to accompany S. 245, 115th Cong., 1st sess., May 24, 2017; and S.Rept. 115-84,
GPO (S.Rept. 115-84).
7 When Congress enacts laws, it frequently gives regulatory authority to agencies to implement those laws. T he
regulations must be in compliance with, or within the bounds of, the statute, but agencies generally have some
discretion to implement statutory language. For general information on rulemaking authority, see CRS In Focus
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This report does not explore in detail related Indian energy topics, such as other Indian energy
issues on GAO’s High Risk List or the Department of Energy’s (DOE’s) Office of Indian Energy
Policy and Programs and other DOE-administered programs.8 This report also does not discuss
other laws under which tribes can develop their energy resources, such as projects pursuant to the
Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (P.L. 112-151),
the Indian Mineral Development Act of 1982 (P.L. 97-382), and the Indian Mineral Leasing Act
of 1938 (May 11, 1938, c. 198, §1, 52 Stat. 347).
A Note on Terminology
The following terms are defined as such for the purposes of this report. Energy resources refers to
both nonrenewable and renewable energy, including but not limited to natural gas, oil, uranium,
coal, nuclear, wind, solar, geothermal, biomass, and hydrologic resources.9 Energy resources are
located on tribal lands, which are considered lands or interests in land owned by an Indian tribe
that are held in trust by the federal government or restricted from alienation.10 Indian tribe or
tribe means an Indian tribe, including Alaska Native vil ages, recognized as eligible to receive
special programs and services provided by the United States to Indians because of their status as
Indians.11 ITEDSA 2005, as amended by ITEDSA 2017, expressly excludes Alaska Native
corporations from TERAs.12
The Federal Trust Responsibility, Indian Energy Resources, and
Tribal Lands
Indian tribes are “domestic dependent nations” that exercise “inherent sovereign authority.”13
Indian tribes have a unique relationship with the federal government. One aspect of this special
relationship is the doctrine of the federal trust responsibility—a responsibility owed to Indian
tribes by the United States. The federal trust responsibility is a legal obligation under which the

IF10003, An Overview of Federal Regulations and the Rulem aking Process, by Maeve P. Carey.
8 Every two years, the U.S. Government Accountability Office (GAO) issues a High Risk List, which is a list of
programs and operations that GAO considers vulnerable to waste, fraud, abuse, mismanagement, or in need of
transformation. See GAO, “ High Risk List,” at https://www.gao.gov/highrisk/overview.
9 25 C.F.R. §224.30.
10 25 U.S.C. §3501. 25 U.S.C. §3501 also defines Indian reservation and Indian land. Indian land is broadly defined
and includes land conveyances to an Alaska Native corporation. However, only tribal lands, and not Indian lands or
Indian reservations, are discussed in 25 U.S.C. §3504 pertaining to T ERAs. For general background on Indian
reservations and other types of Indian lands, such as allotted lands, see DOI, BIA, “Frequently Asked Questions,” at
https://www.bia.gov/frequently-asked-questions.
11 25 U.S.C. §3501(4)(A), 25 U.S.C. §5304(e). Generally, a federally recognized Indian tribe (Indian tribe or tribe) is a
tribal entity made up of American Indians or Alaska Natives and recognized as having a government -to-government
relationship with the federal government —a relationship that includes eligibility for funding and services from federal
agencies, including BIA. See DOI, BIA, “ Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-
questions. As of January 2020, there were 574 federally recognized Indian tribes and Alaska Native villages (see BIA,
“Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs,” 85
Federal Register 20, January 30, 2020, at https://www.federalregister.gov/documents/2020/01/30/2020-01707/indian-
entities-recognized-by-and-eligible-to-receive-services-from-the-united-states-bureau-of). Often, statutory or regulatory
text will specifically define what constitutes an Indian tribe for its purposes; thus, it is important to consult the
particular statute or regulatory text.
12 25 U.S.C. §3501(4)(B), see also 25 U.S.C. §3501(6)(defining Alaska Native corporation).
13 Oklahoma T ax Comm’n v. Citizen Band Potawatomi T ribe of Okla., 498 U.S. 505, 509 (1991) (quoting Chero kee
Nation v. Georgia, 5 Pet. 1, 17 (1831)).
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United States, through both acts of Congress and court decisions, “has charged itself with moral
obligations of the highest responsibility and trust” toward Indian tribes, and it can include certain
fiduciary obligations on the part of the United States.14 According to BIA, “in several cases
discussing the trust responsibility, the Supreme Court has used language suggesting that it entails
legal duties, moral obligations, and the fulfil ment of understandings and expectations that have
arisen over the entire course of the relationship between the United States and Indian tribes.”15
The federal trust responsibility can include a duty on the part of the United States to protect treaty
rights, lands, assets, and resources on behalf of tribes.16
The federal trust responsibility plays a significant role in the federal government’s management
of tribal lands and natural resources held in trust. BIA is the lead agency responsible for the
administration and management of 55 mil ion surface acres and 57 mil ion acres of subsurface
mineral estates held in trust by the United States for Indian tribes and individual American
Indians and Alaska Natives.17 With a few exceptions, BIA’s approval is required for leases and
agreements to develop tribal lands, including energy resource development. With respect to
energy resource development, some of BIA’s actions and decisions include reviewing and
approving surface and subsurface leases, dril ing permits, rights-of-way, cultural resources
surveys, and environmental studies and surveys.18 The Bureau of Land Management, the Office
of Natural Resources Revenue, and—depending on the energy resource—the Office of Surface
Mining also play key roles in energy development on tribal lands.19
TERAs: Statutory and Regulatory Framework
ITEDSA 2005 became law on August 8, 2005, enacted as part of the Energy Policy Act of 2005
(EPACT 2005; P.L. 109-58). ITEDSA 2005 amended the Indian Energy Resources title in the
Energy Policy Act of 1992 (EPACT 1992; P.L. 102-486, Title XXVI).20 EPACT 1992 established
several financial and technical assistance programs in both DOE and DOI for tribes to pursue
renewable and nonrenewable energy development, including for tribes to develop and implement
tribal laws and regulations regarding energy development.
ITEDSA 2005 amended the provisions enacted in EPACT 1992 and authorized additional
provisions addressing development of Indian energy resources.21 Some of ITEDSA 2005’s
provisions included providing grants, technical assistance, and low-interest loans from DOI and
competitive grants and loan guarantees from DOE to Indian tribes. ITEDSA 2005 also established

14 Seminole Nation v. U.S., 316 U.S. 286, 296-297 (1942). For a general overview of the trust relationship, see U.S. v.
Jicarilla Apache Nation, 564 U.S. 162 (2011).
15 DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions.
16 DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions.
17 DOI, BIA, “About Us,” at https://www.bia.gov/about-us.
18 GAO, Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands,
GAO-15-502, June 8, 2015, p. 4, at https://www.gao.gov/products/GAO-15-502. Hereinafter, GAO-15-502.
19 DOI, BIA, Office of Indian Energy and Economic Development, “Working on Indian Lands,” at
https://www.indianaffairs.gov/as-ia/ieed/division-energy-and-mineral-development/working-indian-lands. Depending
on the circumstances, involvement of other federal agencies o r offices also may be required.
20 T he Energy Policy Act of 1992 (EPACT 1992; P.L. 102-486, T itle XXVI).
21 Section 503 of the Indian T ribal Energy Development and Self-Determination Act of 2005 (ITEDSA 2005; P.L. 109-
58, T itle V) amended and replaced §§2601-2606 of EPACT 1992. Other sections within IT EDSA 2005 also addressed
Indian energy resources.
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the Office of Indian Energy and Programs within DOE and other projects and opportunities for
energy efficiency on Indian lands.22
ITEDSA 2005 also introduced TERAs as an option for tribes seeking to develop energy resources
on their tribal lands. In 2008, DOI promulgated TERA regulations as authorized by ITEDSA
2005. Both the statute and the regulations created a detailed process for approving a proposed
TERA, which included several TERA provision and application requirements and time frames for
approval or disapproval. One key aspect of the process included identifying the federal activities
a tribe could assume and perform under a TERA. These activities, however, could not include
inherently federal functions, which the regulations did not define. Another key aspect of the
approval process required the Secretary to determine a tribe’s capacity to implement energy
resource development. Although a handful of tribes initiated the TERA process, no tribe entered
into a TERA following ITEDSA 2005 and the 2008 regulations.23 Some of these requirements
were later amended by ITEDSA 2017.
This section reviews selected statutory and regulatory provisions stemming from ITEDSA 2005
relating to the TERA approval process. These provisions address the processing timelines of a
proposed TERA, the Secretary’s approval of a proposed TERA, TERA requirements and
inherently federal functions, and the Secretary’s determination of tribal capacity to develop its
proposed energy resource.
Indian Tribal Energy Development and Self-Determination Act of
2005 and 2008 TERA Regulations
ITEDSA 2005 authorized tribes, at their option, to enter into a TERA with the Secretary. Under an
approved TERA, the Secretary’s review and approval of leases, business agreements, and rights-
of-way for energy resource development would not be required. An approved TERA authorized
tribes to enter into a lease or business agreement to develop, process, or refine an energy mineral
resource on tribal lands. Tribes also could enter into a lease or business agreement to construct or
operate electricity generation, transmission, or distribution facilities on tribal land.24 The terms
for a lease or business agreement executed under an approved TERA could not exceed 30 years
for energy development projects, except for lease terms of oil and gas production, which could
not exceed 10 years.25 Under an approved TERA, tribes also could enter into a right-of-way for
pipelines or for electricity transmission or distribution over tribal lands as long as the term did not
exceed 30 years and was serving a facility on tribal land.26
Time Frames for Processing a Proposed TERA
ITEDSA 2005 and the 2008 TERA regulations outlined the procedure for considering a proposed
TERA and set time frames for departmental review. ITEDSA 2005 required the Secretary to
approve or disapprove a TERA no later than 270 days after the Secretary received a tribe’s
proposed TERA. If the Secretary disapproved the TERA, the Secretary had no more than 10 days

22 IT EDSA 2005, §§503-506.
23 GAO-15-502, p. 5. In 2015, GAO reported that six tribes requested pre-application meetings with DOI to discuss
T ERAs.
24 IT EDSA 2005, §503; 2008 T ERA regulations, p. 12830.
25 IT EDSA 2005, §503; 2008 T ERA regulations, p. 12830. Oil and gas leases may extend past the 10-year term as long
as oil or gas is produced in paying quantities.
26 IT EDSA 2005, §503; 2008 T ERA regulations, p. 12830.
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to notify the tribe (in writing) about the basis of the disapproval, identify the changes needed to
address the Secretary’s concerns, and provide the tribe an opportunity to resubmit.27 The
Secretary then had no more than 60 days after receiving a revised TERA to approve or
disapprove.28
The 2008 TERA regulations expanded on the TERA approval process by creating points of
contact, establishing additional time frames for review and consultation of a proposed TERA, and
requiring DOI to meet with tribes at various points in the approval process. For example, tribes
wishing to enter into a TERA could contact the director of the Office of Indian Energy and
Economic Development to schedule a pre-application consultation. During this consultation, the
tribe and the director would discuss matters such as the TERA application process, content of the
application, the energy resource the tribe wished to develop, and the tribe’s capacity to develop
the resource. The director would work with the designated tribal official (DTO) to schedule the
consultation.29 The director had 30 days to determine if the application was complete; if it was,
the director requested an application consultation meeting with the tribe. Otherwise, the director
notified the DTO that the application was incomplete and identified the information required to
complete the application.30 Notably, only upon the receipt of a complete application did the 270-
day time frame to approve or disapprove the TERA begin, a requirement not specified in ITEDSA
2005.31
Secretarial Consideration of Criteria to Approve a TERA
ITEDSA 2005 required the Secretary to approve a TERA if three criteria were met: (1) the
Secretary determined the tribe demonstrated sufficient capacity to regulate energy resource
development; (2) the TERA included provisions relating to the Secretary’s ability to periodical y
review and monitor the tribe’s performance under a TERA and the Secretary’s enforcement
authority; and (3) the TERA included required provisions applicable to leases, business
agreements, or rights-of-way to be executed under the agreement.32
The 2008 TERA regulations further established standards for TERA approval. The regulations
stated the Secretary would consider the best interests of the tribe and the federal government’s
policy on promoting self-determination. Further, the Secretary was to approve the TERA if it
contained the necessary statutory and regulatory requirements and the Secretary determined the
tribe demonstrated sufficient capacity to manage the development of the proposed energy
resource.33
TERA Requirements and Inherently Federal Functions
ITEDSA 2005 required a TERA to include several provisions. Such provisions included (1)
requiring periodic reviews and monitoring of TERA activities and enforcement authority by the
Secretary; (2) ensuring the tribe acquires the necessary information from an applicant for a lease,
business agreement, or right-of-way; (3) addressing the terms of a lease or business agreement or

27 IT EDSA 2005, §503.
28 IT EDSA 2005, §503. T he Secretary of the Interior (Secretary) and the tribe may agree to a later date.
29 2008 T ERA regulations, p. 12824.
30 2008 T ERA regulations, p. 12826.
31 2008 T ERA regulations, pp. 12826, 12829.
32 IT EDSA 2005, §503.
33 2008 T ERA regulations, pp. 12828-12829.
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conveyance of a right-of-way; (4) providing for public notification of final approvals; (5)
specifying the financial assistance, if any, the Secretary may provide to the tribe to assist in TERA
implementation, including environmental review of individual projects; and (6) addressing
various aspects of environmental review and compliance, among others.34
The 2008 TERA regulations required additional information not specified in law, such as auditing
and record-keeping requirements.35 In addition, one key aspect not specified in law states a
TERA
(a) May include development of all or part of a tribe’s energy resources;
(b) Must specify the type of energy resource included;
(c) May include assumption by the tribe of certain activities normally carried out by ..
[DOI], except for inherently Federal functions; and
(d) Must specify the services or resources related to the specific activity related to energy
resource development that the tribe proposes to assume from DOI.36
The 2008 TERA regulations also developed requirements for TERA applications. Among other
requirements, TERA applications must include the proposed TERA itself; statements about the
tribe’s recognition, its tribal land, and its form of government; maps of the tribal land to be
developed; and statements about the tribe’s experience in energy resource development and its
capability to assume federal activities other than inherently federal functions.37
The regulations require the tribe and DOI discuss what services DOI wil continue to provide
after the TERA’s approval.38 Additional y, the regulations denote the activities DOI wil continue
to provide after the TERA’s approval, which include any federal activities not assumed by the
tribe; coordination between the tribe and DOI to maintain accurate real property records;
assistance or support services, such as access to title status information and technical support
services within DOI to assist the tribe in evaluating proposals for leases, business agreements, or
rights-of-way under a TERA; and assistance in appropriately handling third-party violations or
breaches.39 As stated in the Federal Register preamble to the 2008 TERA regulations, the
Secretary declined to define inherently federal functions and instead would determine such
functions on a case-by-case basis, as done in the Indian Self-Determination and Education
Assistance Act (ISDEAA; 25 U.S.C. §§5301 et seq.). The preamble further notes the Secretary’s
policy was to make available to a tribe al the services that are lawfully contractible under
ISDEAA.40

34 IT EDSA 2005, §503.
35 2008 T ERA regulations, p. 12827.
36 2008 T ERA regulations, p. 12824 (emphasis added).
37 2008 T ERA regulations, p. 12824.
38 2008 T ERA regulations, p. 12826-12827 (requirement in the application consultation meeting).
39 2008 T ERA regulations, p. 12830.
40 2008 T ERA regulations, p. 12810.
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Tribal Capacity Determination
Regulatory Sufficient Capacity Factors
Pursuant to the Indian Tribal Energy Development and
As noted, ITEDSA 2005 requires the
Self-Determination Act of 2005 (P.L. 109-58, Title V),
Secretary to determine whether the tribe
the Secretary of the Interior (Secretary) promulgated
regulations addressing the Secretary’s consideration of
demonstrated sufficient tribal capacity to
a tribe’s demonstration of sufficient capacity to regulate
regulate its energy resource development.
its energy resource development. The regulations
ITEDSA 2005 also required the Secretary to
required consideration of the fol owing factors:
promulgate regulations that addressed the

The energy resource the tribe proposes to
standards for tribes to demonstrate capacity.
develop and regulate
The regulations were to include “the

The administrative or regulatory activities the
experience of the Indian tribe in managing
tribe seeks to assume
natural resources and financial and

Materials and information submitted with the
administrative resources available for use by
tribal energy resource agreement (TERA)
the Indian tribe in implementing the approved
application
tribal energy resource agreement of the Indian

The tribe’s history in energy resource
development
tribe.”41 Under the 2008 TERA regulations,

the Secretary considered several factors in

The tribe’s administrative expertise in regulating
the energy resource development described in the
determining whether a tribe demonstrated
proposed TERA
sufficient capacity.42 (See “Regulatory

The tribe’s financial capacity to evaluate proposals
Sufficient Capacity Factors” text box.)
and monitor anticipated activities
The Secretary’s review and determination of

The tribe’s past performance administering
contracts and grants associated with self-
tribal capacity cover each type of energy
determination programs, cooperative agreements,
resource the tribe wants to develop under the
and environmental programs
proposed TERA and the regulatory activities

The tribe’s past performance monitoring activities
the tribe proposes to assume from the federal
undertaken by third parties under approved
government.43 In its TERA application, the
leases, business agreements, or rights-of-way
tribe must include a statement describing the

Other relevant factors
scope and amount of administrative activities
Source: Bureau of Indian Affairs, “Tribal Energy
it intends to conduct and the activities relating
Resource Agreements Under the Indian Tribal Energy
to permitting, approval, and monitoring.
Development and Self-Determination Act; Final Rule,”
73 Federal Register 12807, March 10, 2008, 25 C.F.R.
Further, if the tribe intends to regulate
§224.72
activities, in order for the Secretary to
determine tribal capacity to administer and
manage the regulatory activities, the tribe must describe the scope of its plan for such
administration and management in sufficient detail.44
The regulations require a series of meetings to discuss the tribe’s capacity to manage energy
resource development under the TERA. At the pre-application meeting, the director and the tribe
are to discuss the tribe’s capacity to manage and regulate its proposed energy resource
development and potential funding opportunities for capacity building.45 At the application
consultation meeting, the discussion is to include the tribe’s “administrative, financial, technical,

41 IT EDSA 2005, §503.
42 2008 T ERA regulations, p. 12829.
43 2008 T ERA regulations, p. 12829.
44 2008 T ERA regulations, p. 12824.
45 2008 T ERA regulations, p. 12824.
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and managerial capacities needed to carry out the tribe’s obligations under a TERA.”46 The
Secretary would then use the results of the application consultation meeting to determine the
tribe’s energy resource development capacity.47
Concerns Regarding Indian Tribal Energy
Development and Self-Determination Act of 2005
Members over several Congresses considered amending ITEDSA 2005 in the context of concerns
raised by tribes and DOI.48 For instance, one tribal stakeholder testified that the approval process
for oil and gas leases was cumbersome, involved too many federal agencies, and took too long.49
In June 2015, GAO published the first of several reports on Indian energy development, including
factors hindering the ability of tribes to enter into TERAs, in response to a request from the
Senate Committee on Indian Affairs.50 This section reviews selected issues considered in
Congress while discussing amending ITEDSA 2005. These issues included a complex application
process, tribal capacity determinations, inherently federal functions, and a lack of funding for
TERA implementation.
Complex Application Process
GAO reported that tribes described the TERA application process as “complex, confusing, and
time consuming” and noted that significant tribal resources were required to complete the
application process.51 According to GAO, BIA acknowledged concerns about the application
process but noted that the process could not be simplified due the statutory framework.52
Members considered approaches to streamlining the approval process. For instance, legislation
introduced in the 112th, 113th, and 114th Congresses would have revised the manner in which a
TERA takes effect by having a TERA automatical y take effect 271 days after submittal, unless
the Secretary acts to disapprove the TERA.53 This legislation also would have amended the
criteria by which the Secretary may disapprove or approve a TERA—at one point adding a fourth

46 2008 T ERA regulations, p. 12826-12827.
47 2008 T ERA regulations, p. 12827.
48 T his section addresses only the legislative history of the Indian T ribal Energy Development and Self-Determination
Act Amendments of 2017 (IT EDSA 2017; P.L. 115-325), which includes previous versions introduced into Congress
beginning in the 112th Congress. Congress, however, made prior and at times simultaneous legislative attempts to
streamline Indian energy development. For example, see S. 3752, the Indian Energy Parity Act of 2010, and related
concept paper on Indian energy and energy efficiency issued in September 2009 at https://www.indian.senate.gov/sites/
default/files/upload/files/IndianEnergy.pdf.
49 U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on the Interior, Energy and
the Environment, hearing on Tribal Energy Resources: Reducing Barriers to Opportunity, 115th Cong., 2nd sess., July
17, 2018, H.Hrg. 115-91, Washington, D.C.: GPO, 2018, p. 5 (H.Hrg. 115 -91).
50 GAO-15-502.
51 GAO-15-502, p. 33.
52 GAO-15-502, p. 34.
53 S. 1684, Indian T ribal Energy Development and Self-Determination Act Amendments of 2012; S. 2132, Indian
T ribal Energy Development and Self-Determination Act Amendments of 2014 ; S. 209, Indian T ribal Energy
Development and Self-Determination Act Amendments of 2015.
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criterion (to the three already authorized for TERA approval) in S. 2132 that addressed if the
TERA violated federal law or a treaty.54
Members also considered expediting the Secretary’s determination of tribal capacity. Legislation
proposed in the 112th and 113th Congresses would have required the Secretary to make a
preliminary capacity determination within 120 days from the date a TERA is submitted to the
Secretary, so that a tribe could know sooner than later if the Secretary has concerns about tribal
capacity.55
Secretary’s Discretion in Tribal Capacity Determinations
Congress considered revising the Secretary’s discretion in determining tribal capacity. Instead of
requiring the tribe to demonstrate, and the Secretary to determine, a tribe’s capacity as required
under ITEDSA 2005, legislation proposed in the 112th, 113th, and 114th Congresses would have
required the Secretary to “deem” a tribe to have capacity.
In April 2014, the Assistant Secretary-Indian Affairs of the Department of the Interior testified to
DOI’s recommendations on S. 2132. One of the recommendations addressed capacity
determinations and suggested basing the Secretary’s determination on whether a tribe
 contracts the BIA realty functions;
 has leasing regulations approved by the Secretary under the Helping Expedite
and Advance Responsible Tribal Home Ownership Act of 2012 (P.L. 112-151),
because leasing under such regulations approved by a tribe includes
environmental provisions; and
 has experience in managing natural resources, which demonstrates a tribe’s
capacity for environmental review and compliance.56
Clarifying Inherently Federal Functions
The 2015 GAO report states that tribes sought clarity from DOI about requirements under the
regulations. For instance, the regulations provide the opportunity for tribes to take over activities
from the federal government under a TERA, except for those activities considered inherently
federal functions. GAO’s report states that the regulations do not define inherently federal
functions and, when tribes asked DOI to define the term, DOI informed them that doing so might
have government-wide implications. Without a definition or list of items considered inherently
federal functions, tribes informed GAO that they would be unable to determine what functions
the tribes could take over or what they could work on to demonstrate capacity.57
In 2017, GAO added to its High Risk List federal management of programs serving tribes and
their members, which included BIA’s management of Indian energy resources, including

54 S. 1684, Indian T ribal Energy Development and Self-Determination Act Amendments of 2012; S. 2132, Indian
T ribal Energy Development and Self-Determination Act Amendments of 2014 ; S. 209, Indian T ribal Energy
Development and Self-Determination Act Amendments of 2015.
55 S.Rept. 112-263, p. 14; S.Rept. 113-224, pp. 15, 21.
56 S.Rept. 113-224, p. 21.
57 GAO-15-502, p. 32. T ribal stakeholders also indicated they needed clarity about the tribal environmental review
process and whether or not receiving public input opens up the tribe to liability, which could delay tribal
decisionmaking. Further, tribes were unclear whether their own processes and protocols could be used when taking
over a federal function.
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TERAs.58 In September 2017, the Acting Assistant Secretary–Indian Affairs testified that, in
response to GAO’s request to clarify its regulations, the Office of Indian Energy and Economic
Development reviewed comments received from tribes and determined tribes’ primary issue to be
clarity about inherently federal functions. The Acting Assistant Secretary stated, “[T]he term can
only truly be defined on a case-by-case basis when tribes have made a request to take over a
specific Federal program, function, service or activity.” He also informed the Senate Committee
on Indian Affairs that the Office of Indian Energy and Economic Development had placed
additional information on its website about TERAs and would develop a primer or provide
guidance on training opportunities for tribes interested in pursuing a TERA.59 In June 2018, BIA
testified that GAO closed out this recommendation pertaining to TERAs on March 8, 2018.60
However, tribal stakeholders continued to request that inherently federal functions be defined,
claiming that “BIA failed to resolve this regulatory blockage.”61
Lack of Funding
Tribes interested in pursuing a TERA often commented on the lack of financial assistance for
tribes that have entered into one.62 In addition, GAO’s report highlights that assuming federal
functions under a TERA did not come with federal funding. Tribes indicated to GAO that
assuming the federal government’s activities would require significant tribal resources and,
without additional funding, tribes would not have the resources to assume the functions or
liability associated with taking over these activities.63 Approaches considered in the 112th
Congress included funding language based on statutory text from ISDEAA, which al ows tribes
to contract or compact with the federal government to assume and perform federal functions
carried out on behalf of the tribe.64
Indian Tribal Energy and Self-Determination Act
Amendments of 2017 and 2019 TERA Regulations
In December 2018, Congress enacted ITEDSA 2017 (P.L. 115-325), which modified several
ITEDSA 2005 provisions.65 Specific to the TERA approval process, Congress amended the time
frames for processing a TERA, addressed the Secretary’s discretion in determining a tribe’s
capacity to develop energy projects by al owing a tribe to certify it is a qualified Indian tribe,
reduced the number of TERA provision requirements and al owed tribes to enter into funding
agreements with the Secretary.

58 GAO, High Risk: Federal Management Challenges Related to Indian Energy Resources, GAO-17-434T , February
15, 2017, at https://www.gao.gov/products/GAO-17-434T . Hereinafter, GAO-17-434T.
59 U.S. Congress, Senate Committee on Indian Affairs, hearing on High Risk Indian Programs: Progress and Efforts in
Addressing GAO’s Recommendations
,115th Cong., 1st sess., September 13, 2017, S.Hrg. 115–235, Washington, D.C.:
GPO, 2018, p. 46.
60 U.S. Congress, Senate Committee on Indian Affairs, hearing on GAO High Risk List: Turning Around Vulnerable
Indian Program s
, 115th Cong., 2nd sess., June 13, 2018, S.Hrg. 115-308, Washington, D.C.: GPO, 2018, p.19; GAO,
“Recommendations,” at https://www.gao.gov/products/GAO-15-502.
61 H.Hrg. 115-91, p. 12.
62 S.Rept. 112-263, p. 11, footnote 68.
63 GAO-15-502.
64 S.Rept. 112-263, p. 14.
65 IT EDSA 2017, 132 Stat. 4445, 25 U.S.C. §§3501 et seq.
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ITEDSA 2017 also directed DOI to update the TERA regulations. DOI issued proposed
amendments to the regulations in July 2019 and finalized the regulations in December 2019.
Specific to the TERA approval process, the 2019 TERA regulations amended time frames for
approving a TERA, removed tribal capacity requirements, and required available financial
amounts to be provided to a requesting tribe as per ITEDSA 2017. The 2019 TERA regulations
also include key differences and requirements not specified in law, such as how the Secretary
considers the criteria for approving or disapproving a TERA, when a TERA can take effect,
inherently federal functions and the Administration’s efforts to define the term, reasons for
disapproving a proposed TERA, and certification as a qualified Indian tribe.
This section reviews selected provisions in ITEDSA 2017 and in the 2019 TERA regulations
addressing the TERA approval process and highlights key differences between statutory and
regulatory requirements.
Revised Time Frames for Processing TERAs
ITEDSA 2017 amended the procedure for processing a proposed TERA. ITEDSA 2017 required
the Secretary to notify the tribe if the TERA is complete or incomplete no later than 60 days after
a proposed TERA is submitted.66 The Secretary is to inform the tribe of what information is
needed to complete the submission and identify any financial assistance the Secretary wil
provide to the tribe for implementation of the TERA.67 The agreement takes effect 271 days after
the Secretary receives a TERA from a qualified Indian tribe or 91 days after the receipt of a
revised TERA, unless the Secretary disapproves the TERA before that time.68 (The statutory term
qualified Indian tribe is discussed in more detail under “Certification of Qualified Indian Tribe in
Lieu of Tribal Capacity Determination.”)

66 IT EDSA 2017, §103(a)(4)(A).
67 IT EDSA 2017, §103(a)(4)(A).
68 IT EDSA 2017, §103(a)(4)(B).
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Figure 1. Statutory and Regulatory Timeline Requirements for Approving or
Disapproving a Tribal Energy Resource Agreement (TERA)

Sources: Prepared by CRS using information from the Indian Tribal Energy Development and Self-
Determination Act Amendments of 2017 (P.L. 115-325), 25 U.S.C. §3504, and 25 C.F.R. Part 224, as amended by
U.S. Department of the Interior, Bureau of Indian Affairs, “Tribal Energy Resource Agreements,” 84 Federal
Register
69602, December 18, 2019.
Notes: The left side of the figure provides the statutory requirements as included in the Indian Tribal Energy
Development and Self-Determination Act Amendments of 2017 (ITEDSA 2017; P.L. 115-325). The right side
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provides a list of the regulatory requirements as provided in the 25 C.F.R. Part 224, as amended by the 2019
TERA regulations. References to the “Secretary” refer to the Secretary of the Interior.
1. Notification also includes identification of financial assistance provided by the Secretary to assist in
implementation of the TERA. 25 U.S.C. §3504(e)(1)(B)(i i).
2. Disapproval includes statement that it is a final agency action and subject judicial review. 25 C.F.R.
§224.75(b)(4).
3. Disapproval includes statement that it is a final
agency action and subject to judicial review. 25
Tribal Energy Resource Agreement
C.F.R. §224.76(b)(2).
(TERA) Application Contents Required
The 2019 TERA regulations amended the
by Regulation
TERA approval process to incorporate the
When a tribe submits a TERA for review, the
revised time frames specified by ITEDSA
application needs to include the fol owing:
2017, but the rest of the regulatory time
(1) A proposed TERA containing required statutory
frames created in the 2008 regulations
and regulatory provisions.
remained the same. (See Figure 1 for an
(2) A map, legal description, and general description of
overview of the statutory and regulatory
the tribal land to be included in the TERA.
processing timeline for approving or
(3) A statement describing the administrative activities
disapproving a TERA.) Additional y, one key
related to the permitting, approval, and monitoring of
activities the tribe proposes to undertake in a lease,
difference between the law and the regulations
business agreement, or right-of-way executed under a
is when the review time begins after a
TERA. The intended scope may not include the federal
proposed TERA is initial y submitted to the
government’s responsibilities under the Endangered
Secretary. The 2019 regulations maintained
Species Act or other inherently federal functions.
that the 271-day review period starts once the
(4) Documentation that the tribe meets the definition
Secretary determines a TERA application is
of qualified tribe.
complete, whereas ITEDSA 2017 required the
(5) A statement of the scope of administrative activities
TERA to take effect upon receipt of the TERA
that the tribe intends to conduct and an explanation of
how that meets the requirements of paragraph (d).
by the Secretary (unless the Secretary
(6) A copy of the tribe’s, or tribes’, formal action
disapproves the TERA).69 (See text box for a
approving the TERA application submission. The
summary of required TERA application
regulations require the formal action to include various
contents.)
statements.
(7) The name of the designated tribal official who wil
The 2019 TERA regulations also replaced the
receive notifications from the Secretary regarding the
director of the Office of Indian Energy and
TERA application’s status.
Economic Development with the Secretary or
Source: 25 C.F.R. §224.53.
the Secretary’s designee in processing TERAs.
Notes: Under (5), paragraph (d) no longer exists
For example, under the 2019 regulations,
because DOI removed its requirements when it revised
tribes wishing to enter into a TERA may
the regulations pursuant to the Indian Tribal Energy
contact the Secretary or the Secretary’s
Development and Self-Determination Act Amendments
of 2017 (P.L. 115-325). It is unclear how this
designee rather than the director of the Office
requirement is impacted.
of Indian Energy and Economic Development
to schedule a pre-application consultation.70
BIA indicated that the Indian Energy Service Center within BIA wil be the point of contact
responsible for intake and wil ensure TERAs are processed.71

69 2019 T ERA regulations, 25 C.F.R. §§224.56, 224.57; see also 25 C.F.R. §224.74. T he regulations also clarify that
the Secretary can approve an earlier date for the T ERA to take effect.
70 2019 T ERA regulations, 25 C.F.R. §224.51.
71 Personal communication between CRS and the Indian Energy Service Center (IESC) on February 10, 2020. Fo r more
information on the IESC, see DOI, BIA, “ Indian Energy Service Center,” at https://www.bia.gov/bia/ots/indian-energy-
service-center. T he regulations require tribes submit a T ERA application to T ERA@bia.gov. 25 C.F.R. §224.54.
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Revised Secretarial Consideration of TERA Criteria
ITEDSA 2017 amends the criteria for approving a TERA and how the Secretary can consider
such criteria. ITEDSA 2017 states the Secretary shal disapprove a TERA only if the TERA (1)
violates federal law (including regulations) or a treaty (a new provision); (2) does not include a
provision authorizing the Secretary to annual y review and evaluate the tribe’s performance under
the TERA and take enforcement action in specific situations; or (3) does not include required
provisions applying to leases, business agreements, or rights-of-way to be executed under an
approved TERA.72 In the act, Congress removed the previous requirement for the Secretary to
determine whether the tribe demonstrated sufficient capacity.
DOI also amended the criteria the Secretary considers to approve a TERA. The 2019 TERA
regulations state the Secretary must approve a final proposed TERA, unless
(a) The Tribe does not meet the definition of a “qualified Tribe” in §224.30;
(b) A provision of the TERA violates applicable Federal law (including regulations) or a
treaty applicable to the Tribe; or
(c) The TERA fails to include the provisions required by §224.63.73
Notably, the regulations al ow the Secretary to disapprove a final proposed TERA if a tribe does
not meet the definition of qualified tribe—a provision not required by law. The amended
regulations also removed two requirements that al owed the Secretary to (1) consider the tribe’s
best interests and the federal government’s policy on promoting self-determination and (2)
determine the tribe demonstrated sufficient capacity to manage the development of the proposed
energy resource.74
Revised TERA Requirements and Inherently Federal Functions
ITEDSA 2017 and the 2019 TERA regulations amended the TERA provision requirements. Under
ITEDSA 2017, TERAs have 13 provision requirements with respect to leases, business
agreements, and rights-of-way subject to the TERA (ITEDSA 2005 required 16 provisions).75
(See Appendix for a list and comparison of the statutory and regulatory TERA provision
requirements and authorities.) Congress kept several of the previous requirements and introduced
two new ones.76 One, requiring an Indian tribe to submit a certification that it meets the
requirements of a qualified Indian tribe, is discussed below (see “Certification of Qualified Indian
Tribe in Lieu of Tribal Capacity Determination”)
. The other al ows a tribe, at its option, to
identify in the TERA the operational or development functions it intends to conduct pursuant to a
lease, right-of-way, or business agreement approved by the tribe.77 The 2019 TERA regulations

72 IT EDSA 2017, §103(a)(4)(B)(ii). Italics added for emphasis.
73 2019 T ERA regulations, 25 C.F.R. §224.71.
74 2008 T ERA regulations, pp. 12828-12829.
75 Congress removed three provisions relating to the demonstration of tribal capacity.
76 Congress kept certain requirements, including those ensuring compliance with applicable environmental laws,
establishing a process for consulting with a state for o ff-reservation impacts, and citing tribal laws that require the
exhaustion of tribal remedies before a petition may be submitted to the Secretary regarding a tribe’s compliance under
the T ERA. See 25 U.S.C. §3504(e)(2)(B)(iii) for a complete list of T ERA provision requirements with respect to
leases, business agreements, and rights-of-way subject to the T ERA.
77 IT EDSA 2017, §103(a)(4)(B)(ii)(II)(ee).
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also incorporate this amendment.78 However, ITEDSA 2017 did not address inherently federal
functions and the 2019 TERA regulations do not amend its requirements for inherently federal
functions or define the term.
Inherently Federal Functions and Secretarial Order 3377
DOI did not amend the requirements pertaining to inherently federal functions and did not add a
definition of inherently federal functions.79 In response to tribal comments requesting the term be
defined, the final rule’s preamble indicated the Secretary would undertake efforts to define
inherently federal functions.80 On December 16, 2019, the Secretary signed Secretarial Order
(S.O.) 3377, Contractibility of Federal Functions for Oil and Gas Development on Indian Lands,
which required the Solicitor’s Office to create a list of inherently federal functions that are
contractible—or that tribes could assume from the federal government—under a TERA.81 The
intent of S.O. 3377 is to “provide policy guidance on contractible Federal functions in support of
[TERAs] relating to energy resource development.”82 S.O. 3377 applies to inherently federal oil
and gas functions. It states that the typical process determining whether the functions are
inherently federal for the purposes of an ISDEAA contract or compact begins with the Office of
the Solicitor or the appropriate bureau or office, which reviews the list of functions prepared by
the applicant tribe. Only after this review does DOI inform the tribe which functions are
contractible. S.O. 3377 states that since DOI’s management of energy resources on tribal lands
involves both BIA and the Bureau of Land Management, DOI has not previously received a list of
inherently federal functions regarding TERAs. The order states this created uncertainty about
what functions are contractible for tribes.83
Thus, S.O. 3377 required the Solicitor’s Office to create two lists: one for inherently federal
functions that are not contractible under a TERA and one for federal functions that are. It also
required the Bureau of Land Management and the Office of Natural Resources Revenue to

78 25 C.F.R. §224.63(m).
79 T he 2019 regulations did not amend the 2008 T ERA regulations requiring t hat a tribe may include in its T ERA a
provision addressing the assumption of activities normally carried out by DOI but that such activities cannot include
inherently federal functions. 25 C.F.R. §224.52. T he regulations also did not amend the requirement that a tribe include
a statement in its T ERA application describing the administrative activities related to the permitting, approval, and
monitoring of activities the tribe proposes to undertake in a lease, business agreement, or right -of-way executed under a
T ERA but that the intended scope may not include inherent ly federal functions. 25 C.F.R. §224.53.
80 2019 TERA regulations, p. 69608. The preamble states,
Several T ribes and other commenters expressed the need to define ‘‘inherently Federal functions’’
to clarify what functions are not available for T ribes to un dertake in a T ERA. According to these
T ribes, a definition is necessary for several reasons, including to address issues, provide certainty,
and ensure consistency in interpretation. A few requested that the definition exclude basic minerals
development functions, like applications for permits to drill, thereby allowing T ribes to undertake
these functions through T ERAs. A T ribal organization commenter requested consultation with
T ribes before the Department defines the term.
81 Secretarial Order (S.O.) 3377, Contractibility of Federal Functions for Oil and Gas Development on Indian Lands,
December 16, 2019, at DOI, Electronic Library of the Interior Policies, “Secretary’s Orders,” at https://www.doi.gov/
elips/browse. T he National Congress of American Indians (NCAI) informed CRS that it had requested DOI to engage
in government -to-government consultation about determining the definition of inherently federal functions prior to the
issuance of the secretarial order; however, no such consultation has been conducted. Personal communication between
CRS and NCAI on January 16, 2020.
82 S.O. 3377, §1.
83 S.O. 3377, §4.
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implement an ISDEAA program with the assistance of BIA and the Office of Self Governance. 84
Al actions are to be taken within 90 days from the date of S.O. 3377.85
Certification of Qualified Indian Tribe in Lieu of Tribal Capacity
Determination
ITEDSA 2017 removed the requirement for tribes to demonstrate tribal capacity in order to obtain
an approved TERA. ITEDSA 2005 required the Secretary, as one of three criteria in approving a
TERA, to determine whether a tribe demonstrated “sufficient capacity” to regulate energy
resource development.86 Further, ITEDSA 2005 required the Secretary, when implementing
regulations, to develop criteria for determining a tribe’s capacity to develop energy resources.
ITEDSA 2017 removed these requirements.
In lieu of requiring the Secretary to determine a tribe’s capacity, ITEDSA 2017 required a
qualified Indian tribe to submit in its TERA a certification that it has either operated under an
ISDEAA contract or compact for managing tribal land or natural resources for at least three
consecutive years, or can otherwise demonstrate experience developing, administering,
reviewing, and evaluating energy resource leases or business agreements (ITEDSA 2017 defined
qualified Indian tribe using the same language).87 ITEDSA 2017 authorized a qualified Indian
tribe, rather than any Indian tribe, to submit a TERA to the Secretary.88 ITEDSA 2017 also
provided that the time frames for the TERA effective dates (i.e., the TERA takes effect on the
271st day) begins when the Secretary receives a TERA or revised TERA from a qualified Indian
tribe.89 The law does not otherwise reference qualified Indian tribe or a tribe’s capacity to
administer or manage its energy resources under a TERA.
The 2019 TERA regulations removed most, but not al , tribal capacity requirements. In
accordance with ITEDSA 2017’s amendments, DOI removed several requirements that provided
the criteria for the Secretary’s review and determination of tribal capacity. For example, the
regulations previously included several requirements pertaining to the demonstration of tribal
capacity, namely the list of factors the Secretary would consider in determining sufficient
capacity.90 However, the regulations continued to al ow the Secretary and tribe to discuss the
tribe’s capacity to manage and regulate the tribe’s natural resources and to perform
administrative, technical, financial, and managerial responsibilities needed to carry out the
TERA.91 Although the 2019 TERA regulations no longer required documentation specific to a
tribe’s capacity, they required a tribe to include documentation in its TERA application that it
meets the definition of qualified tribe, rather than a certification as required by ITEDSA 2017.92
The regulations did not expand on the documentation requirements.

84 S.O. 3377, §5.
85 S.O. 3377, §5. As of June 2020, DOI has not issued guidance as required under S.O. 3377.
86 IT EDSA 2005, §503.
87 IT EDSA 2017, §§103 (a)(1)(B)(ii)(II)(ee), 105(a)(2).
88 IT EDSA 2017, §103(a)(4)(A).
89 IT EDSA 2017, §103(a)(4)(B)(i).
90 2008 T ERA regulations, p. 12829.
91 2019 T ERA regulations, 25 C.F.R. §§224.51, 224.58.
92 2019 T ERA regulations, 25 C.F.R. §224.53.
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Financial Assistance via Annual Funding Agreements
ITEDSA 2017 al owed for financial assistance through a written annual funding agreement
(AFA), which is a separate agreement from the TERA.93 ITEDSA 2005 did not include funding to
tribes for taking over a program or activity from the federal government. By contrast, as a result
of a tribe carrying out a federal activity under a TERA, ITEDSA 2017 required the Secretary to
make available, upon a tribe’s request, any amounts the Secretary would have expended to carry
out the same activity on the tribe’s behalf.94 ITEDSA 2017 required the Secretary to address the
calculation of the amounts the Secretary would have expended in the regulations. It also expressly
required provisions in the regulations
 identifying the activities and amounts the Secretary wil not have to carry out or
expend as a result of the tribes carrying out the activity under a TERA and
 addressing how a tribe wil be provided a list and associated amounts of the
activities.95
ITEDSA 2017 states that a TERA’s effective date or implementation shal not be delayed or
affected by the time needed for the Secretary to make such calculations or by the adoption of an
AFA.96
The 2019 TERA regulations address the availability of expenditures to a tribe assuming activities
from the Secretary. Similar to ITEDSA 2017, the new regulatory section provided that the
Secretary wil provide a requesting tribe the amounts the Secretary otherwise would expend to
carry out a federal activity on the tribe’s behalf. However, unlike ITEDSA 2017, the regulation
required that the request must come from a tribe “for whom an approved TERA is in effect.”97
The regulations do not otherwise include provisions as required by ITEDSA 2017. However, the
Secretary addressed annual funding agreements in S.O. 3377, requiring the Bureau of Land
Management and the Office of Natural Resources Revenue to prepare for administering and
implementing annual funding agreements.
Policy Considerations
Congress may consider issues that were raised in the context of ITEDSA 2005 and ITEDSA 2017.
These issues general y focus on process, reducing the Secretary’s discretion, inherently federal
functions, and funding. Tribes commented on the complexity of the TERA approval process,
which presents a number of sub-issues that the legislation and the revised regulations tried to
address. Additional y, issues surrounding what are considered inherently federal functions in
TERAs and in annual funding agreements are interconnected but are presented as two separate
potential issues of concern.

93 IT EDSA 2017, §103(a)(6) (emphasis added). In addition, the amounts are subject to appropriations and the Secretary
is not required to reduce amounts for activities that serve other Indian tribes to make amounts available to an Indi an
tribe for an annual funding agreement under IT EDSA 2017.
94 IT EDSA 2017, §103(a)(6).
95 IT EDSA 2017, §§103(a), (b).
96 IT EDSA 2017, §103(a)(6).
97 2019 T ERA regulation, 25 C.F.R. §224.79. T he Secretary is also to provide the t ribe with a full accounting of the
amounts calculated using the specific terms of the T ERA, the scope of the contracted functions, and the applicable
circumstances.
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Because no tribe has yet entered into a TERA, some policy issues that are not yet apparent may
emerge and require congressional consideration once the DOI processes its first complete
TERA.98
Processing Proposed TERAs
According to GAO, BIA asserts that complex TERA approval and application process could not
be simplified due to the statutory framework authorized under ITEDSA 2005. ITEDSA 2017
amended the process for approving a TERA to make it less complex. DOI amended its regulations
in response to changes in the law but kept many of the same TERA processing requirements as
before. Some of these requirements, such as the deadlines for scheduling the pre-application
meeting and the application consultation meeting, may continue to be an issue for tribes seeking
to further reduce complexity in the TERA process.
Exactly when a TERA may take effect is ambiguous, because what is specified in law and what
the DOI requires in regulation are potential y confusing. The law provides that a TERA takes
effect on the 271st day after the Secretary receives a TERA submission, but the regulations state
that the time does not start until DOI considers the application to be complete—a regulatory
requirement that did not change after enactment of ITEDSA 2017. In January 2019, GAO issued
a report examining DOI’s lengthy review periods of tribal leasing regulations submitted under the
Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (P.L. 112-
151).99 The act required DOI to complete its review within 120 days after the tribe’s regulations
are submitted.100 However, according to GAO’s report, DOI does not consider the time frame to
begin until it has received a final version of the tribe’s regulations. GAO reported that tribal
stakeholders did not know when to expect a final decision approving their regulations. GAO also
reported that the review process could be lengthy and time consuming, sometimes taking longer
than two years.101
Similarly, DOI does not consider a submitted TERA application to necessarily be a complete
application and may require tribes to do additional work after their initial submissions, which
could cause uncertainty among tribes about when exactly the 271-day review period begins and
when the TERA may automatical y take effect if the Secretary does not take action. An option for
Congress is to consider amending the law to more clearly specify when the timeline begins to
eliminate potential ambiguity.
Secretary’s Discretion in Considering TERA Criteria
The ITEDSA 2017 amendments reversed how the Secretary is to consider a proposed TERA,
stipulating that the Secretary must disapprove a TERA only if three criteria are not met. Thus, the
statute appears to set a presumption that a TERA is considered approved unless the Secretary
takes action to disapprove the agreement. Additional y, ITEDSA 2017 removed one criterion
requiring the Secretary make a determination about whether a tribe demonstrated tribal capacity.

98 One option available to Congress is to use the Congressional Review Act (CRA; T itle II, Subtitle E, P.L. 104-121, 5
U.S.C. §§601 et seq.) to overturn regulations. T he CRA is available to Congress for a limited time after a rule is
finalized. No member of Congress introduced a resolution of disapproval to overturn the 2019 TERA regulations. For
more information on the CRA, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked
Questions
, by Maeve P. Carey and Christopher M. Davis .
99 GAO, Indian Programs: Interior Should Address Factors Hindering Tribal Administration of Federal Programs,
GAO-19-87, January 2019, at https://www.gao.gov/products/GAO-19-87. Hereinafter, GAO-19-87.
100 P.L. 112-151, §2.
101 GAO-19-87, pp. 19-22.
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Both revisions presumably made it easier for tribes to enter into a TERA with the Secretary. By
contrast, the 2019 TERA regulations continued to require the Secretary to approve a TERA if
three criteria are met, and the presumption by DOI is that a TERA is considered unapproved
unless the Secretary takes action to approve the agreement. Further, the 2019 TERA regulations
expanded the Secretary’s discretion to al ow the Secretary to disapprove a TERA if the tribe does
not meet the definition of a qualified Indian tribe. However, ITEDSA 2017 provided three criteria
for disapproving a TERA and did not expressly include that a tribe does not meet the definition of
qualified Indian tribe as one of the criteria. An option for Congress is to consider amending the
law to clarify the Secretary’s role in approving a TERA.
Clarifying Inherently Federal Functions
A primary issue for tribes is defining inherently federal functions. According to tribal
stakeholders, knowing what functions a tribe could or could not assume is key to the process of
developing and proposing a TERA.
The phrase inherently federal functions comes from the 2008 TERA regulations as a part of
DOI’s consideration of assessing the administrative and regulatory functions a tribe would
assume from the federal government in implementing a TERA. In promulgating the 2008 TERA
regulations, the Secretary stated that DOI’s policy was to make available to tribes al the services
that are lawfully contractible under ISDEAA. After the 2008 TERA regulations were
implemented, GAO recommended that DOI define inherently federal functions, but DOI did not
expressly do so. Tribal stakeholders insisted on defining inherently federal functions, referring to
the lack of clarity as a “regulatory blockage.”102
Although ITEDSA 2017 al ows a tribe to identify in the proposed TERA what operation and
development functions it wil assume from the federal government, DOI did not define the phrase
inherently federal functions in the 2019 TERA regulatory amendments. Rather, the Secretary
issued S.O. 3377 directing the Office of the Solicitor to issue additional guidance by providing a
detailed list of functions a tribe could or could not assume from the federal government with
respect to energy resource development. The Office of the Solicitor has not published additional
guidance per S.O. 3377 as of June 2020. Congress also may consider that S.O. 3377 focuses only
on inherently federal oil and gas functions, and omits federal functions addressing coal or
renewable resources.
Additional y, in January 2019 GAO issued a report addressing factors that hinder tribes from
entering into funding contracts and compacts under ISDEAA. The report states that, because
inherently federal functions are determined on a case-by-case basis, such determinations are not
consistent across BIA.103 Although S.O. 3377 states its requirements are consistent with the
report’s recommendations, S.O. 3377 only addresses oil and gas, thus it is unclear how inherently
federal functions in coal or renewables could be affected. Without a definition or clarification of
what an inherently federal function is for al energy resources, a tribe may not know whether it is
requesting to take over an inherently federal function or whether what is considered an inherently
federal function in the energy context wil be applied evenly throughout BIA.
Further, ITEDSA 2017 mandated that a TERA’s effective date or implementation may not be
delayed by the amount of time needed for the Secretary to make funding calculations or the

102 H.Hrg. 115-91, p. 12.
103 GAO-19-87, p. 15.
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adoption of an AFA. However, the regulations do not clearly indicate how the Secretary wil
make funding calculations or lay out the process for adopting an AFA.
The lack of clarity about inherently federal functions may discourage tribes from entering into a
TERA. Congress may wish to seek an explanation from DOI about how it is providing
clarification to tribes about inherently federal functions for al energy resources, how DOI wil
consistently address inherently federal functions, and how DOI wil address funding calculations.
Another option may be to revise the statute to define inherently federal functions. However, this
option could affect other agencies involving ISDEAA, such as the Bureau of Indian Education
(BIE) and Indian Health Service (IHS), which regularly contract or compact with tribes for
different purposes. Congress could seek to tailor a definition for inherently federal functions
specific to TERAs and exclude BIE and IHS.
Regulatory Treatment of Qualified Indian Tribe in Lieu of
Secretarial Determination of Tribal Capacity
ITEDSA 2017 removed the requirement for secretarial determination of sufficient tribal capacity
to develop energy resources and al requirements of tribes to demonstrate such capacity. Instead,
ITEDSA 2017 defined the phrase qualified Indian tribe and provided that a tribe need only
submit a certification that it either (1) has managed an ISDEAA contract or compact for three
years involving tribal land management or (2) has sufficient experience in managing energy
development. Pursuant to ITEDSA 2017, the 2019 regulations removed several tribal capacity
requirements and included a similar definition for qualified tribe.
However, a potential issue for Congress could be when the Secretary can disapprove a TERA
because the tribe is not a qualified Indian tribe. ITEDSA 2017 and the 2019 TERA regulations
required that only a qualified Indian tribe—as opposed to any Indian tribe—can submit a
proposed TERA, which could suggest that a determination about whether a tribe is qualified to
submit a TERA requires an upfront determination or that when a tribe submits a certification, it
automatical y becomes qualified. In the legislative history of ITEDSA 2017, Congress considered
a “preliminary capacity determination,” but instead Congress removed the Secretary’s
determination of tribal capacity in its entirety and opted instead for a tribal certification. The 2019
regulations al ow the Secretary to disapprove a TERA at any time because a tribe is not eligible to
be a qualified Indian tribe, including the possibility of waiting until the end of the 270-day review
period to make this determination. Informing a tribe it does not qualify to enter into a TERA at
the end of the review period could defeat the purpose of removing tribal capacity requirements to
make it easier for a tribe to enter into a TERA, which was one of many factors Congress
considered when it amended the prior law. If the treatment of the term qualified Indian tribe is an
issue for tribes or DOI, Congress could consider amending the statutory language to require that
DOI decide on the tribal certification early in the process.
ITEDSA 2017 states that a tribe has only to certify it is a qualified Indian tribe; however, the 2019
TERA regulations required a tribe, as a part of the application contents, to submit documentation
proving it meets the definition of qualified tribe. Both the law and the regulations state that to be
considered a qualified Indian tribe, a tribe must either (1) have experience contracting or
compacting under ISDEAA or (2) have substantial experience in administering energy leases or
managing its energy resources.
The regulations do not specify the types of documents a tribe is required to submit.
Documentation of ISDEAA experience might be the contract or compact itself, which DOI should
already have, but it is unclear what documentation the tribe must provide to demonstrate it has
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substantial experience in administering energy leases or managing its energy resource. This might
include documentation of how the tribe has administered and monitored energy leases or
descriptions of experienced staff and departments within the tribe—al of which were previously
required to demonstrate tribal capacity. In addition, the regulations do not mention how the
Secretary wil consider the tribe’s certification or documentation as a qualified Indian tribe or the
types of documents a tribe wil need to produce to meet the definition of qualified Indian tribe.
Further, such documentation may inadvertently require a tribe to demonstrate to the Secretary it
has sufficient capacity to develop its energy resources, which ITEDSA 2017 sought to mitigate by
removing tribal capacity requirements.
An option for Congress is to clarify how a tribal certification should be treated by the Secretary,
which may result in less confusion for tribes moving forward.
Financial Assistance for TERA implementation
ITEDSA 2017 states that a TERA is separate from an AFA and appears to require an AFA only
when a tribe requests funding amounts from the Secretary that wil not be spent as a result of the
tribe carrying out the federal activity. The regulations state the Secretary wil provide such
amounts only upon written request of the tribe, they do not expressly require an AFA or address
how AFAs are processed separately from a TERA.
Additionally, ITEDSA 2017 expressly required regulatory requirements addressing how the
Secretary wil provide tribes lists and associated amounts of activities the Secretary wil not have
to spend as a result of the tribes carrying out the federal activity. These requirements do not
appear in the 2019 TERA regulations. Instead, the Secretary addressed AFAs and ordered lists of
contractible federal functions to be prepared through S.O. 3377. Although a federal agency has
some discretion in developing and implementing statutory directives, general y speaking, the
more precise statutory directives are, the less discretion an agency has to independently develop
policy objectives. DOI did not incorporate regulatory requirements addressing contractible
federal functions as specified by ITEDSA 2017, which may be a potential issue for Congress.
Another issue for Congress could be whether the implementation of a TERA is ultimately delayed
or affected if DOI does not provide a list of contractible federal functions for al applicable
energy sources, including both renewables and nonrenewables. Like TERAs, DOI and tribes
cannot contract for inherently federal functions in an AFA. ITEDSA 2017 mandates that a
TERA’s effective date or implementation cannot be delayed or affected by the time needed for
the Secretary to make funding calculations or for the adoption of an AFA. The 2019 regulations
require that a TERA must be in effect before the Secretary wil provide funding. Although the
Secretary issued S.O. 3377, which requires a listing of contractible federal functions to be made
available by mid-March 2020, a listing had not been posted publicly on BIA’s website as of June
2020. Additional y, S.O. 3377 is specific to oil and gas only, which could mean a delay in the
funding calculations for tribes wishing to enter into a TERA for coal or renewable energy
development.
Congress also may consider other related GAO findings and recommendations regarding tribal
administration of federal programs. In a 2019 report, GAO stated that a factor hindering tribal
administration of federal programs is a tribe’s capacity to assume a federal program.104 GAO also
found other factors that hinder tribes’ ability to use self-determination contracts and self-
governance compacts, including (1) BIA’s approach for sharing key information with tribes
seeking to assume a federal program, (2) DOI’s process to disburse funds to tribes associated with

104 GAO-19-87, p. 11.
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self-determination contracts and self-governance compacts, and (3) BIA’s management and
maintenance of the federal programs that tribes seek to assume.105 Such hindrances could also be
concerns for tribes wishing to pursue an AFA to assist with TERA implementation.
An option for Congress is to consider seeking clarification from DOI on the status of the listing of
contractible functions and how DOI plans to process AFAs separately from TERAs. Providing
clarity to tribes and removing potential barriers to fully implementing a TERA could bolster a
tribe’s ability to take over a federal activity that may later assist a tribe in relying less on federal
funding in the future. This, in turn, may provide tribes the opportunity to build capacity and take
on additional programs in the energy context.



105 GAO-19-87, p. 13.
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link to page 28 link to page 31 Tribal Energy Resource Agreements (TERAs)

Appendix. Tribal Energy Resource Agreement
(TERA) Submittal Requirements
Table A-1
compares the statutory and regulatory requirements for a tribal energy resource
agreement (TERA). The left column lists the statutory requirements under 25 U.S.C. §3504
applicable to TERA provisions. The right column lists the regulatory requirements under 25
C.F.R. §§224.63 and 224.52 applicable to TERA provisions. Some requirements have been
summarized or condensed.
Table A-1. A Comparison of the Statutory and Regulatory Tribal Energy Resource
Agreement (TERA) Requirements
Statute
Regulation
The tribal energy resource agreement (TERA) must
A provision for the Secretary of the Interior’s
include one or more provisions requiring periodic
(Secretary’s) periodic review and evaluation of the
review and evaluation of the tribe’s performance under
tribe’s performance under a tribal energy resource
the TERA and the Secretary of the Interior’s
agreement (TERA). [25 C.F.R. §224.63(a)]
(Secretary’s) authority to reassume activities upon a
A provision that recognizes the authority of the
finding of imminent threat to physical trust asset. [25
Secretary, upon a finding of imminent jeopardy to a
U.S.C. §§3504(e)(2)(B)(i ); 3504(e)(2)(D)]
physical trust asset, to take actions the Secretary
determines to be necessary to protect the asset. [25
C.F.R. §224.63(b)]
The terms for a lease or business agreement executed
Express limitations on duration of leases, business
under an approved TERA could not exceed 30 years
agreements, and rights-of-way. [25 C.F.R.
for energy development projects, except for lease
§224.63(d)(1)]
terms of oil and gas production, which cannot exceed
10 years (oil and gas leases may extend past the 10-year
term as long as oil or gas is produced in paying
quantities). The term for a right-of-way for a pipeline or
for electricity transmission or distribution under an
approved TERA cannot exceed 30 years. [25 U.S.C.
§§3504(a)(2)(B); (b)(3)]
Address amendments and renewals. [25 U.S.C.
Mechanisms for amendment, transfer, and renewal. [25
§3504(e)(2)(B)(i i)(I)]
C.F.R. §224.63(d)(2)]
Address the economic return to the Indian tribe under
Mechanisms for obtaining, reporting and evaluating the
leases, business agreements, and rights-of-way. [25
economic return to the tribe. [25 C.F.R. §224.63(d)(3)]
U.S.C. §3504(e)(2)(B)(i i)(II)]
Establish requirements for environmental review:
Provisions for an environmental review process that
(1) A process for ensuring that
(1) Informs the public and provides opportunity for

public comment on the environmental impacts of the

the public is informed of, and has reasonable
opportunity to comment on, any significant
approval of the lease, business agreement, or right-of-
environmental impacts of the proposed action;
way;

(2) Provides for tribal responses to relevant and

the tribe provides responses to relevant and
substantive public comments on any impacts
substantive public comments before tribal approval of
before the tribe approves the lease, business
the lease, business agreement, or right-of-way;
agreement, or right-of-way; a
(3) Provides for sufficient tribal administrative support
(2) Sufficient administrative support and technical
and technical capability to carry out the environmental
capability to carry out the environmental review
review process; and
process; and
(4) Develops adequate tribal oversight of energy
(3) the tribes’ oversight of energy development
resource development activities under any lease,
activities by another party under any lease, business
business agreement, or right-of-way under a TERA that
agreement, or right-of-way entered into under a TERA,
any other party conducts to determine whether the
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Statute
Regulation
to determine whether the activities are in compliance
activities comply with the TERA and applicable federal
with the TERA and applicable federal environmental
and tribal environmental laws. [25 C.F.R. §224.63(c)]
laws. [25 U.S.C. §§3504(e)(2)(B)(i i)(III), 3504(e)(2)(C)]
Ensure compliance with al applicable environmental
Assurances of the tribe’s compliance with al applicable
laws, including a requirement that each lease, business
environmental laws. [25 C.F.R. §224.63(d)(4)]
agreement, and right-of-way state that the lessee,
Requirements that the lessee, operator, or right-of-way
operator, or right-of-way grantee shal comply with al
grantee wil comply with al applicable environmental
such laws. [25 U.S.C. §3504(e)(2)(B)(i i)(IV)]
laws. [25 C.F.R. §224.63(d)(5)]
N/A
Identification of tribal representatives with the
authority to approve a lease, business agreement, or
right-of-way and the related energy development
activities. [25 C.F.R. §224.63(d)(6)]
Provide for public notification of final approvals. [25
Public notification that a lease, business agreement, or
U.S.C. §3504(e)(2)(B)(i i)(V)]
right-of-way has received final tribal approval. [25
C.F.R. §224.63(d)(7)]
Establish a process for consultation with any affected
A process for consultation with affected states
states regarding off-reservation impacts, if any. [25
regarding off-reservation impacts, if any. [25 C.F.R.
U.S.C. §3504(e)(2)(B)(i i)(VI)]
§224.63(d)(8)]
Describe the remedies for breach of the lease, business
A description of remedies for breach. [25 C.F.R.
agreement, or right-of-way. [25 U.S.C.
§224.63(d)(9)]
§3504(e)(2)(B)(i i)(VII)]
Require each lease, business agreement, and right-of-
A statement that any provision that violates an express
way to include a statement that, if any of its provisions
term or requirement of the TERA is nul and void. [25
violates an express requirement of the TERA
C.F.R. §224.63(d)(10)]
(1) the provision shal be nul and void; and
A statement that if the Secretary determines that any
(2) if the Secretary determines the provision to be
provision that violates an express term or requirement
material, the Secretary may suspend or rescind the
of the TERA is material, the Secretary may suspend or
lease, business agreement, or right-of-way or take
rescind the lease, business agreement, or right-of-way,
other appropriate action that the Secretary determines
or take any action the Secretary determines to be in
to be in the best interest of the tribe. [25 U.S.C.
the best interest of the tribe, including, with the
§3504(e)(2)(B)(i i)(VIII)]
consent of the parties, revising the nonconforming
provisions so that they conform to the intent of the
applicable portion of the TERA. [25 C.F.R.
§224.63(d)(11)]
Require each lease, business agreement, and right-of-
A statement that the lease, business agreement, or
way to provide that it wil become effective on the date
right-of-way subject to a TERA, unless otherwise
on which a copy of the executed lease, business
provided, goes into effect when the tribe delivers
agreement, or right-of-way is delivered to the
executed copies of the lease, business agreement, or
Secretary. [25 U.S.C. §3504(e)(2)(B)(i i)(IX)]
right-of-way to the Secretary by first class mail return
receipt requested or express delivery. The parties to a
lease, business agreement, or right-of-way may agree in
writing that any provision of their contract may have
retroactive application. [25 C.F.R. §224.63(d)(12)]
Include citations to tribal laws, regulations, or
Citations to any applicable tribal laws, regulations, or
procedures, if any, that set out tribal remedies that
procedures that
must be exhausted before a petition may be submitted
(1) provide opportunity for the public to comment on
to the Secretary. [25 U.S.C. §3504(e)(2)(B)(i i)(X)]
and to participate in public hearings, if any; and
(2) provide remedies that petitioning parties must
exhaust before filing a petition with the Secretary. [25
C.F.R. §224.63(e)]
N/A
Provisions that require a tribe to provide the Secretary
with citations to any tribal laws, regulations, or
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Statute
Regulation
procedures the tribe adopts after the effective date of a
TERA that establish N/A, amend, or supplement tribal
remedies that petitioning parties must exhaust before
filing a petition with the Secretary. [25 C.F.R.
§224.63(f)]
N/A
Provisions that designate a person or entity, together
with contact information, authorized by the tribe to
maintain and disseminate to requesting members of the
public current copies of tribal laws, regulations, or
procedures that establish or describe tribal remedies
that petitioning parties must exhaust before instituting
appeals. [25 C.F.R. §224.63(g)]
Identify and notify the tribe of financial assistance, if any, Identification of financial assistance, if any, that the
to be provided by the Secretary to the tribe to assist in
Secretary has agreed to provide to the tribe to assist in
the TERA implementation, including the environmental
implementation of the TERA, including the tribe’s
review of individual projects. [25 U.S.C.
environmental review of individual energy development
§3504(e)(1)(B)(i i)]
activities. [25 C.F.R. §224.63(h)]
Require that the tribe, as soon as practicable, give
Provisions that require a tribe to notify the Secretary in
written notice to the Secretary of
writing, as soon as practicable after the tribe receives
(1) any breach or other violation by another party of
notice of a violation or breach. [25 C.F.R. §224.63(i);
any provision in a lease, business agreement, or right-
see also 25 C.F.R. §224.87, providing additional
of-way entered into under the TERA, and
information]
(2) any activity or occurrence under a lease, business
agreement, or right-of-way that constitutes a violation
of federal environmental laws. [25 U.S.C.
§3504(e)(2)(B)(i i)(XI)]
N/A
Provisions that require the tribe to adhere to
government auditing standards and to applicable
continuing professional education requirements. [25
C.F.R. §224.63(j)]
If a TERA, or a lease, business agreement, or right-of-
Provisions that require the tribe to submit to the
way, permits payments directly to the tribe,
Secretary information and documentation of payments
information and documentation of those payments
made directly to the tribe in order to enable the
sufficient to enable the Secretary to discharge the trust
Secretary to discharge the trust responsibility of the
responsibility of the U.S. to enforce the terms of, and
U.S. to enforce the terms of, and protect the rights of
protect the rights of the Indian tribe under, the lease,
the tribe under, a lease, business agreement, or right-
business agreement, or right-of-way. [25 U.S.C.
of-way. Required documentation must include
§3504(e)(5)(B)]
documents evidencing proof of payment such as
cancel ed checks; cash receipt vouchers; copies of
money orders or cashiers checks; or verification of
electronic payments. [25 C.F.R. §224.63(k)]
N/A
Provisions that ensure the creation, maintenance and
preservation of records related to leases, business
agreements, or rights-of-way and performance of
activities a tribe assumed under a TERA sufficient to
facilitate the Secretary’s periodic review of the TERA.
The Secretary wil use these records as part of the
periodic review and evaluation process. Tribes may use
departmental records retention procedures under the
Federal Records Act (44 U.S.C. Chapters 29, 31, and
33) as a framework, which enables the Secretary to
discharge the trust responsibility if
(1) Any other party violates the terms of any lease,
business agreement, or right-of-way; or
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Statute
Regulation
(2) Any provision of a lease, business agreement, or
right-of-way violates the TERA. [25 C.F.R. §224.63(l)]
Include a certification by the tribe that it has
[Not a TERA provision requirement in the regulations.

carried out a contract or compact under Title I or
See instead TERA application requirements, 25 C.F.R.
IV of the Indian Self-Determination and Education
§224.53(a)(4).]
Assistance Act (25 U.S.C. §5301 et seq.) for a
period of not less than three consecutive years
ending on the date on which the tribe submits the
application without material audit exception (or
without any material audit exceptions that were
not corrected within the three-year period)
relating to the management of tribal land or
natural resources; or

substantial experience in the administration,
review, or evaluation of energy resource leases or
agreements or has otherwise substantial y
participated in the administration, management, or
development of energy resources located on the
tribal land of the tribe. [25 U.S.C.
§3504(e)(2)(B)(i i)(XII)]
At the option of the tribe, identify which functions, if
At the option of the tribe, identify which functions, if
any, authorizing any operational or development
any, the tribe intends to conduct to authorize any
activities pursuant to a lease, right-of-way, or business
operational or development activities pursuant to a
agreement approved by the tribe, that the tribe intends
lease, business agreement, or right-of-way approved by
to conduct. [25 U.S.C. §3504(e)(2)(B)(i i)(XIII)]
the tribe.
N/A
A TERA under this part

may include development of al or part of a tribe’s
energy resources;

must specify the type of energy resource included;

may include assumption by the tribe of certain
activities normal y carried out by DOI, except for
inherently federal functions; and

must specify the services or resources related to
the specific activity related to energy resource
development that the tribe proposes to assume
from DOI. [25 C.F.R. §224.52]
Source: Prepared by CRS with information from 25 U.S.C. §3504, 25 C.F.R. §224.63, and 25 C.F.R. §224.52.
Notes: Al references to the Secretary refer to the Secretary of the Interior.
a. 25 U.S.C. §3504(e)(2)(C)(i ) appears to be redundant to 25 U.S.C. §3504(e)(2)(C)(i) and is not included
here.






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Tribal Energy Resource Agreements (TERAs)


Author Information

Tana Fitzpatrick

Specialist in Natural Resources Policy



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Congressional Research Service
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