Energy Leasing and Agreement Authorities on Tribal Lands: In Brief

Energy Leasing and Agreement Authorities on Tribal Lands: In Brief

Energy Leasing and Agreement Authorities on
Tribal Lands: In Brief
August 2, 2023
Congressional Research Service
https://crsreports.congress.gov
R47640

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Contents
Introduction ..................................................................................................................................... 1
Congressional Concerns .................................................................................................................. 2
Types of Leases and Agreements..................................................................................................... 4

Figures
Figure 1. Energy Development Process on Tribal Lands ................................................................ 2
Figure 2. Flowchart of Potential Leases or Agreements for Tribal Energy Development on
Tribal Lands ................................................................................................................................. 4

Tables
Table 1. Chronology of Lease and Agreement Authorities for
Tribal Energy Development on Tribal Lands ............................................................................... 3
Table 2. Comparison of Major Lease and Agreement Authorities for Tribal Energy
Development on Tribal Lands ...................................................................................................... 6

Contacts
Author Information .......................................................................................................................... 8

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Introduction
The United States is a major producer of many forms of energy. It produces energy from fossil
fuels such as oil, natural gas, and coal, as well as from renewable energy sources such as wind,
solar, hydropower, geothermal, and biomass, and other low-emission sources such as nuclear
power.1 Federally recognized tribes, in conjunction with the Department of the Interior (DOI),
manage energy production on tribal lands.2 There are several types of tribal lands, including trust,
restricted fee, allotted, and privately owned (fee) lands.3 In FY2022, DOI reported that all tribal
lands (including lands owned by Alaska Native Corporations) produced almost 350 million cubic
feet of natural gas, about 81 million barrels of oil, and more than 7 million tons of coal.4 As of
2017, the Department of Energy found that tribal reservations, which can include various types of
tribal lands, contained almost 30% of the coal reserves west of the Mississippi River, 50% of
potential uranium reserves, and 20% of known oil and gas reserves.5
Congress has enacted many authorities for leasing and agreements that enable energy production
on tribal lands. Various statutes require that the Secretary of the Interior approve tribal leases or
agreements. DOI’s Bureau of Indian Affairs (BIA) has primary authority for negotiating energy
leases or agreements on tribal lands, in coordination with other DOI bureaus and offices.6 This
report focuses on the leasing and agreements stage of the energy development process (see
Figure 1), although tribes and individual tribal members (referred to in the figure as developers)
would likely work with BIA throughout the process.

1 For more on U.S. energy production, see CRS Report R46723, U.S. Energy in the 21st Century: A Primer,
coordinated by Melissa N. Diaz.
2 A federally recognized tribe is an American Indian or Alaska Native entity that is recognized as having a government-
to-government relationship with the United States, which makes the entity eligible for certain programs and services.
See generally CRS Report R47414, The 574 Federally Recognized Indian Tribes in the United States, by Mainon A.
Schwartz.
3 Trust lands are lands or interests in land owned by an Indian tribe or individual tribal member that are held in trust by
the federal government. Restricted fee lands are lands restricted from being sold or transferred. The Department of the
Interior’s (DOI’s) Bureau of Indian Affairs (BIA) is the federal government entity holding lands in trust. Allotted lands
or allotments were established by the General Allotment Act of 1887, which divided tribal reservations into parcels of
40-160 acres and allotted the parcels to individual tribal members. Allotments can include trust land, restricted fee land,
and/or individually owned fee land (private property). Tribal reservations are lands reserved for a tribe (or multiple
tribes) under treaty, statute, or other agreement. Reservations can include a mix of tribal land types. For information on
tribal lands, see CRS Report R46647, Tribal Land and Ownership Statuses: Overview and Selected Issues for
Congress, by Mariel J. Murray.
4 DOI, Office of Natural Resources Revenue, “Natural Resources Revenue Data,” at https://revenuedata.doi.gov/query-
data/?dataType=Production&landType=Native%20American.
5 U.S. Department of Energy (DOE), “Strengthening Tribal Communities, Sustaining Future Generations,” at
https://www.energy.gov/sites/prod/files/2017/09/f36/DOE-IE-brochure_0917.pdf.
6 The Bureau of Land Management and other DOI bureaus and offices typically manage operational aspects of energy
development (Bureau of Indian Affairs, “Onshore Energy and Mineral Lease Management Interagency Standard
Operating Procedures,” pp. F-3 and G-vii, at https://www.bia.gov/sites/default/files/dup/inline-files/
interagency_sop_09-23-13.pdf). See also BIA, “Indian Energy Service Center,” at https://www.bia.gov/bia/ots/iesc.
Note that the DOI Office of Natural Resources Revenue (ONRR)’s Federal Indian Minerals Office primarily manages
oil and gas resources on tribal allotments (ONRR, “Federal Indian Minerals Office [FIMO],” at
https://www.onrr.gov/indian/assistance?tabs=federal-indian-minerals-office.) DOI’s Office of Surface Mining
Reclamation and Enforcement regulates all surface coal mining and reclamation operations on tribal lands, although
tribes can apply to develop their own regulatory program under the Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. §1300).
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Energy Leasing and Agreement Authorities on Tribal Lands: In Brief

Figure 1. Energy Development Process on Tribal Lands

Source: CRS based on U.S. Government Accountability Office, Indian Energy Development: Poor Management by
BIA Has Hindered Energy Development on Indian Lands, GAO-15-502, June 2015, at https://www.gao.gov/assets/gao-
15-502.pdf. See also the National Environmental Policy Act (42 U.S.C. 55).
Notes: BIA = Bureau of Indian Affairs.
As this report discusses below, DOI and tribes may choose from several types of leases or
agreements to develop energy on tribal lands.7 The appropriate type of lease or agreement to use
depends on factors such as the type of tribal land and the ownership and type of energy resource
(i.e., surface [above ground] or subsurface [below ground]).8 Some leases or agreements can be
used for energy development on trust or restricted fee lands, and others can be used for
individually owned allotted lands.9
Congressional Concerns
Congress has debated how federal oversight of energy development on tribal lands should be
balanced against tribal self-determination and the possibility for increased energy development on
tribal lands. Although all of the tribal energy lease or agreement authorities discussed in this
report require DOI oversight, Congress has increasingly provided for tribal self-determination, or
tribes’ participation in decisionmaking about their own affairs. For example, Congress enacted the
Indian Mineral Development Act of 1982 (25 U.S.C. §§2101-2108) to promote self-determination
and tribal financial benefit by allowing tribes to negotiate lease and non-lease mineral
development agreements.10 Congress also has authorized tribes to issue their own leases or

7 This report also briefly discusses the permitting and compliance stages of the energy development process. This report
does not discuss the exploration or development stages.
8 BIA uses its surface and subsurface ownership records to determine tribal land and resource ownership. See U.S.
Government Accountability Office (GAO), Indian Energy Development: Poor Management by BIA Has Hindered
Energy Development on Indian Lands, GAO-15-502, June 2015, p. 12, at https://www.gao.gov/assets/gao-15-502.pdf.
9 Due to Alaska’s unique history, Alaska Native lands are generally owned and managed by Alaska Native
Corporations rather than held in trust by DOI, pursuant to the Alaska Native Claims Settlement Act (P.L. 92-203).
Therefore, Alaska Natives are generally ineligible for the energy leases and agreements featured in this report.
10 U.S. Congress, Senate Indian Affairs Committee, Permitting Indian Tribes to Enter into Certain Agreements for the
Disposition of Tribal Mineral Resources, And for Other Purposes, Report to Accompany S. 1894, 97th Cong., 2nd sess.,
June 10, 1982, S.Rept. 97-472 (Washington: GPO, 1982), pp. 2-4.
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agreements, and even rights of way, after DOI approval of an initial umbrella agreement.11 In
addition, Congress has authorized a range of energy lease or agreement time limits that provide
flexibility for tribes to meet energy development objectives. Finally, Congress has mandated that
tribal energy leases or agreements include some type of environmental review process but has not
always prescribed the exact process, leaving room for interpretation.
Congress continues to express interest in energy development on tribal lands. In 2014, Congress
asked the U.S. Government Accountability Office (GAO) to examine tribal energy development.
GAO found that BIA mismanagement, coupled with unclear or limited tribal energy statutory
authorities, has hindered tribal energy development.12 It also reported that BIA’s process for
reviewing and approving tribal leases and agreements can be lengthy, resulting in “missed
development opportunities.”13 Congress discussed the GAO report’s findings and subsequently
amended several tribal energy authorities to address some of the issues raised in the report.14
Congress also has expressed interest in reforming the tribal leasing and agreement process. For
example, in the 118th Congress, Congress held a hearing about potential legislation that would
amend some tribal energy authorities to extend the duration of some tribal leases and authorize
tribal approval of rights of way.15
Table 1 is a chronology of major laws governing energy development on tribal lands, including
brief summaries of the authorized types of energy leasing or agreements on tribal lands.
Table 1. Chronology of Lease and Agreement Authorities for
Tribal Energy Development on Tribal Lands
1891
1891 Act (25 U.S.C. §397, as amended): Congress authorized tribes or individual tribal members to
enter into 10-year mining leases of lands, subject to the Secretary of the Interior’s approval.
1909
The Allotted Lands Leasing Act of 1909 (25 U.S.C. §396). Congress authorized mineral leasing on
allotted lands owned by individual Indian “allottees.”
1934
Indian Reorganization Act of 1934 (25 U.S.C. §§5123-5124). Congress authorized tribes to adopt
constitutions and create corporate charters (including mining leases, if desired), subject to the
Secretary of the Interior’s approval.
1938
Indian Mineral Leasing Act of 1938 (25 U.S.C. §396a-396g). Congress created a single set of
leasing procedures for all mineral development on tribal lands except allotted lands owned by
individual Indians.
1955
Long Term Leasing Act of 1955 (LTLA; 25 U.S.C. §415). Congress authorized tribes to lease tribal
lands, including for the development or use of certain natural resources (only surface resources).
1982
Indian Mineral Development Act of 1982 (25 U.S.C. §§2101-2108). Congress authorized tribes to
negotiate and enter into any lease or other surface or subsurface development agreement, subject to
the Secretary of the Interior’s approval.

11 See, for example, Indian Tribal Energy Development and Self-Determination Act of 2005, as amended (25 U.S.C.
§§3501-3506).
12 See generally GAO, Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on
Indian Lands, 15-502, June 2015, at https://www.gao.gov/assets/gao-15-502.pdf.
13 Ibid., p. 21.
14 U.S. Congress, Senate Committee on Indian Affairs, The GAO Report on Indian Energy Development: Poor
Management by BIA Has Hindered Energy Development, 115th Cong., 1st sess., October 21, 2015, S. Hrg. 114-240
(Washington: GPO, 2016). See, for example, the Helping Expedite and Advance Responsible Tribal Home Ownership
Act of 2012 (25 U.S.C. §415(h)).
15 U.S. Congress, Senate Indian Affairs Committee, Business Meeting to Consider S. 1308 & Legislative Hearing to
Receive Testimony on S. 195, S. 382 & S. 1322, 118th Cong., 1st sess., May 3, 2023.
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Energy Leasing and Agreement Authorities on Tribal Lands: In Brief

1992
Energy Policy Act of 1992 (EPACT 1992; 42 U.S.C. §13201 note). Congress established several
financial and technical assistance programs in the Departments of Energy and the Interior for tribes to
pursue renewable and nonrenewable energy development.
2005
Indian Tribal Energy Development and Self-Determination Act of 2005 (25 U.S.C. §§3501-
3506, as amended). Congress amended EPACT 1992 to authorize “qualified Indian tribes” and “tribal
energy development organizations” to enter tribal energy resource agreements without the Secretary
of the Interior’s approval.
2012
Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (25
U.S.C. §415h). Congress amended the LTLA to authorize tribes to develop energy resources pursuant
to tribal leasing regulations if approved by the Secretary of the Interior.
Source: Congressional Research Service (CRS).
Note: These authorities enable varying degrees of tribal control over energy development on tribal lands.
Types of Leases and Agreements
Tribes, in conjunction with DOI, have authorities to use various types of leases or agreements to
develop energy resources on tribal lands. The flow chart in Figure 2 includes a potential pathway
to consider which type of tribal energy lease or agreement is appropriate in a given situation.
Figure 2. Flowchart of Potential Leases or Agreements for
Tribal Energy Development on Tribal Lands

Sources: CRS based on 25 U.S.C. §§5123-5124; 25 U.S.C. §396a-396g; 25 U.S.C. §415 and 25 C.F.R. Part 162;
25 U.S.C. §§2101-2108; 25 U.S.C. §§3501-3506; and 25 C.F.R. Part 212.
Notes: These authorities enable varying degrees of tribal control over energy development on tribal lands.
A federally recognized tribe is an American Indian or Alaska Native entity that is recognized as having a
government-to-government relationship with the United States, which makes the entity eligible for special
programs and services.
There are various types of tribal lands, including trust lands (lands or interests in land owned by an Indian tribe or
individual tribal member that are held in trust by the federal government) and restricted fee lands (lands restricted
from being sold or transferred). Allotted lands or allotments were established by the General Allotment Act of
1887, which divided tribal reservations into parcels of 40-160 acres and allotted these parcels to individual tribal
members. Allotments can include trust land, restricted fee land, and/or individually owned fee land (private
property). Tribal reservations are lands reserved for a tribe (or multiple tribes) under treaty, statute, or other
agreement. Reservations can include a mix of tribal land types.
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Table 2 compares major lease and agreement authorities for tribal energy development on tribal
lands. These authorities enable varying degrees of tribal control over energy development on
tribal lands.
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Table 2. Comparison of Major Lease and Agreement Authorities for Tribal Energy Development on Tribal Lands
National
Lease or
Environmental
Eligible
Type of Tribal
Type of
Agreement
Secretary of the
Policy Act (NEPA)
BIA Rights-of-

Entities
Landa
Energy
Duration
Interior’s Approval
Compliance
Way Approval
Lease under the
All federally
Trust, restricted
Surface and
Up to 10 years
Required. The
Required.
Required.
Indian Mineral
recognized
fee, and allotted
subsurface: oil
and as long
Secretary must decide
Development Act
tribes,b with
lands.
and gas,
thereafter as
whether an action
of 1938
statutory
geothermal, and
minerals are
(such as approving a
(25 U.S.C. §396a-
exceptions.
solid mineral
produced in
lease or permit) is in
396g)
resources.
paying
the best interest of the
quantities.c
Indian mineral owner.d
Mineral
All federally
Trust or restricted Surface and
No statutory
Required. The
Required.
Required.
Development
recognized
fee. Under certain
subsurface: oil,
limit.
Secretary must decide

Agreement under
tribes.
conditions, mineral gas, uranium,
whether an action
the Indian Mineral
leasing on allotted
coal,
(such as approving a
Development Act
lands owned by
geothermal, or
mineral development
of 1982
individual Indians
other energy or
agreement) is in the
(25 U.S.C. §§2101-
may be included in
nonenergy
best interest of the
2108)
agreements.
mineral
Indian mineral owner.d
resources.
Lease under the
All federally
Trust or restricted Surface: leases
25 years, with
Required unless lease
Required unless the
Required.
Long Term
recognized
fee. Does not
for business
the possibility of is approved under
lease is pursuant to
Leasing Act of
tribes, with
apply to mineral
purposes,
a 25-year
tribal regulations
tribal regulations
1955 (25 U.S.C.
statutory
leasing on allotted
including
extension
already approved by
approved by the
§415), as amended exceptions.
lands owned by
biomass, as well
(statute
the Secretary.
Secretary of the
by the Helping
individual Indians.
as wind and
provides that
Interior. Those
Expedite and
solar leases.
certain tribes
regulations must
Advance
may have longer
provide for an
Responsible Tribal
leases).
environmental review
Home Ownership
process.
Act of 2012
(25 U.S.C. §415h)
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National
Lease or
Environmental
Eligible
Type of Tribal
Type of
Agreement
Secretary of the
Policy Act (NEPA)
BIA Rights-of-

Entities
Landa
Energy
Duration
Interior’s Approval
Compliance
Way Approval
Tribal Energy
All qualified
Trust or restricted Surface and
Up to 30 years;
Required for the initial Required for the initial
BIA approval is
Resource
federally
fee. Does not
subsurface: both up to 10 years
TERA but not for
TERA. TERAs must
not required for
Agreementg
recognized
apply to mineral
renewable and
for oil and gas
leases tribes enter into undergo an
activities
(TERA) under the
tribes and
leasing on allotted
nonrenewable
and as long
pursuant to the
environmental review
conducted
Indian Tribal
tribal energy
lands owned by
energy sources,
thereafter as
TERA.g
process that is similar
pursuant to the
Energy
development
individual Indians.
including natural minerals are

to the NEPA process.
TERA, such as
Development and
organizations.f
gas, oil, uranium, produced in

pipelines; electric
Self-
Alaska Native
coal, nuclear,
paying
transmission;
Determination
Corporations
wind, solar,
quantities.
distribution lines;
Act of 2005, as
are ineligible.
geothermal,
or facilities that
amended
biomass, and
extract, produce,
(25 U.S.C. §§3501-
hydrologic
process, or refine
3506)
resources.
energy resources.
Source: CRS based on 25 U.S.C. §396a-396g and 25 C.F.R. Part 211; 25 U.S.C. §§2101-2108 et seq. and 25 C.F.R. Part 225; 25 U.S.C. §415 and 25 C.F.R. Part 162; and
25 U.S.C. §§3501-3506 and 25 C.F.R. Part 224.
Notes: BIA = Bureau of Indian Affairs; NEPA = National Environmental Policy Act, 42 U.S.C. 55; TERA = tribal energy resource agreement.
a. See CRS Report R46647, Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress, by Mariel J. Murray.
b. A federally recognized tribe is generally eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
c. Production in paying quantities means production from a lease of oil and/or gas of sufficient value to exceed direct operating costs and the cost of lease rentals or
minimum royalties (43 C.F.R. Part 3160).
d. To determine whether an action is in the best interest of the Indian mineral owner (i.e., tribe or individual tribal member), the Secretary of the Interior shall consider
factors including economic considerations, such as date of lease expiration; probable financial effect on the Indian mineral owner; leasability of land concerned; need
for change in the terms of the existing lease; marketability; and potential environmental, social, and cultural effect (25 C.F.R. Part 211 and 25 C.F.R. Part 225).
e. For more information on TERAs, see CRS Report R46446, Tribal Energy Resource Agreements (TERAs): Approval Process and Selected Issues for Congress, by Mariel J.
Murray.
f.
A tribe can become qualified to enter into a TERA if the tribe has (1) carried out a contract or compact under the Indian Self-Determination and Education
Assistance Act (ISDEAA; 25 U.S.C. §§5301 et seq.) for at least three years without a material audit exception relating to tribal land or natural resources or (2)
substantial experience or participation in the administration, review, or evaluation of energy resource agreements on tribal land (25 U.S.C. §3501(9)).
g. Tribes also may request an ISDEAA contract/compact to assume operation of activities normally carried out by the Secretary of the Interior, except for inherently
federal functions. See Department of the Interior, “Secretarial Order No. 3377,” December 16, 2019, at https://www.doi.gov/sites/doi.gov/files/elips/documents/so-
3377-508-compliant-1_0.pdf.

CRS-7

Energy Leasing and Agreement Authorities on Tribal Lands: In Brief

Author Information

Mariel J. Murray

Specialist in Natural Resources Policy

Disclaimer
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