25 U.S.C. § 2103 — Secretary’s determination on Minerals

Page 434 TITLE 25—INDIANS § 2101 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–95 effective Dec. 10, 2015, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of Title 20, Education. EFFECTIVE DATE Section effective Jan. 8, 2002, except with respect to certain noncompetitive programs and competitive pro- grams, see section 5 of Pub. L. 107–110, set out as a note under section 6301 of Title 20, Education. CHAPTER 23—DEVELOPMENT OF TRIBAL MINERAL RESOURCES Sec. 2101. Definitions. 2102. Minerals Agreements. 2103. Secretary’s determination on Minerals Agree- ments. 2104. Secretary’s review of prior Minerals Agree- ments. 2105. Effect of other provisions. 2106. Assistance to tribes or individuals during Minerals Agreement negotiations. 2107. Regulations; consultation with Indian organi- zations; pending agreements. 2108. Tribal right to develop mineral resources. § 2101. Definitions For the purposes of this chapter, the term— (1) ‘‘Indian’’ means any individual Indian or Alaska Native who owns land or interests in land the title to which is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; (2) ‘‘Indian tribe’’ means any Indian tribe, band, nation, pueblo, community, rancheria, colony, or other group which owns land or in- terests in land title to which is held in trust by the United States or is subject to a restric- tion against alienation imposed by the United States; and (3) ‘‘Secretary’’ means the Secretary of the Interior. (Pub. L. 97–382, § 2, Dec. 22, 1982, 96 Stat. 1938.) Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 97–382, § 1, Dec. 22, 1982, 96 Stat. 1938, provided: ‘‘That this Act [enacting this chapter] may be cited as the ‘Indian Mineral Development Act of 1982’.’’ § 2102. Minerals Agreements (a) Authorization for tribes; approval by Sec- retary Any Indian tribe, subject to the approval of the Secretary and any limitation or provision contained in its constitution or charter, may enter into any joint venture, operating, produc- tion sharing, service, managerial, lease or other agreement, or any amendment, supplement or other modification of such agreement (herein- after referred to as a ‘‘Minerals Agreement’’) providing for the exploration for, or extraction, processing, or other development of, oil, gas, uranium, coal, geothermal, or other energy or nonenergy mineral resources (hereinafter re- ferred to as ‘‘mineral resources’’) in which such Indian tribe owns a beneficial or restricted in- terest, or providing for the sale or other disposi- tion of the production or products of such min- eral resources. (b) Inclusion of individual holdings; approval by parties and Secretary Any Indian owning a beneficial or restricted interest in mineral resources may include such resources in a tribal Minerals Agreement sub- ject to the concurrence of the parties and a find- ing by the Secretary that such participation is in the best interest of the Indian. (Pub. L. 97–382, § 3, Dec. 22, 1982, 96 Stat. 1938.) § 2103. Secretary’s determination on Minerals Agreements (a) Time; enforcement The Secretary shall approve or disapprove any Minerals Agreement submitted to him for ap- proval within (1) one hundred and eighty days after submission or (2) sixty days after compli- ance, if required, with section 4332(2)(C) of title 42 or any other requirement of Federal law, whichever is later. Any party to such an agree- ment may enforce the provisions of this sub- section pursuant to section 1361 of title 28. (b) Factors for consideration; extent of required study In approving or disapproving a Minerals Agreement, the Secretary shall determine if it is in the best interest of the Indian tribe or of any individual Indian who may be party to such agreement and shall consider, among other things, the potential economic return to the tribe; the potential environmental, social, and cultural effects on the tribe; and provisions for resolving disputes that may arise between the parties to the agreement: Provided, That the Secretary shall not be required to prepare any study regarding environmental, socioeconomic, or cultural effects of the implementation of a Minerals Agreement apart from that which may be required under section 4332(2)(C) of title 42. (c) Prior notice of proposed finding; privileged information Not later than thirty days prior to formal ap- proval or disapproval of any Minerals Agree- ment, the Secretary shall provide written find- ings forming the basis of his intent to approve or disapprove such agreement to the affected In- dian tribe. Notwithstanding any other law, such findings and all projections, studies, data or other information possessed by the Department of the Interior regarding the terms and condi- tions of the Minerals Agreement, the financial return to the Indian parties thereto, or the ex- tent, nature, value or disposition of the Indian mineral resources, or the production, products or proceeds thereof, shall be held by the Depart- ment of the Interior as privileged proprietary information of the affected Indian or Indian tribe. (d) Delegation; final action; appeal; burden on Secretary The authority to disapprove agreements under this section may only be delegated to the Assist- Page 435 TITLE 25—INDIANS § 2108 ant Secretary of the Interior for Indian Affairs. The decision of the Secretary or, where author- ity is delegated, of the Assistant Secretary of the Interior for Indian Affairs, to disapprove a Minerals Agreement shall be deemed a final agency action. The district courts of the United States shall have jurisdiction to review the Sec- retary’s disapproval action and shall determine the matter de novo. The burden is on the Sec- retary to sustain his action. (e) Nonliability of United States; continuing obli- gations Where the Secretary has approved a Minerals Agreement in compliance with the provisions of this chapter and any other applicable provision of law, the United States shall not be liable for losses sustained by a tribe or individual Indian under such agreement: Provided, That the Sec- retary shall continue to have a trust obligation to ensure that the rights of a tribe or individual Indian are protected in the event of a violation of the terms of any Minerals Agreement by any other party to such agreement: Provided further, That nothing in this chapter shall absolve the United States from any responsibility to Indi- ans, including those which derive from the trust relationship and from any treaties, Executive orders, or agreement between the United States and any Indian tribe. (Pub. L. 97–382, § 4, Dec. 22, 1982, 96 Stat. 1938.) § 2104. Secretary’s review of prior Minerals Agreements (a) Time; criteria; notice of modifications; time for compliance; effect of noncompliance The Secretary shall review, within ninety days of December 22, 1982, any existing Minerals Agreement, which does not purport to be a lease, entered into by any Indian tribe and approved by the Secretary after January 1, 1975, but prior to December 22, 1982, to determine if such agree- ment complies with the purposes of this chapter. Such review shall be limited to the terms of the agreement and shall not address questions of the parties’ compliance therewith. The Secretary shall notify the affected tribe and other parties to the agreement of any modifications necessary to bring an agreement into compliance with the purposes of this chapter. The tribe and other parties to such agreement shall within ninety days after notice make such modifications. If such modifications are not made within ninety days, the provisions of this chapter may not be used as a defense in any proceeding challenging the validity of the agreement. (b) Review before promulgation of regulations; not Federal action The review required by subsection (a) of this section may be performed prior to the promulga- tion of regulations required under section 2107 of this title and shall not be considered a Federal action within the meaning of that term in sec- tion 4332(2)(C) of title 42. (Pub. L. 97–382, § 5, Dec. 22, 1982, 96 Stat. 1939.) § 2105. Effect of other provisions Nothing in this chapter shall affect, nor shall any Minerals Agreement approved pursuant to this chapter be subject to or limited by, sections 396a to 396g of this title, or any other law au- thorizing the development or disposition of the mineral resources of an Indian or Indian tribe. (Pub. L. 97–382, § 6, Dec. 22, 1982, 96 Stat. 1940.) § 2106. Assistance to tribes or individuals during Minerals Agreement negotiations In carrying out the obligations of the United States, the Secretary shall ensure that upon the request of an Indian tribe or individual Indian and to the extent of his available resources, such tribe or individual Indian shall have avail- able advice, assistance, and information during the negotiation of a Minerals Agreement. The Secretary may fulfill this responsibility either directly through the use of Federal officials and resources or indirectly by providing financial as- sistance to the Indian tribe or individual Indian to secure independent assistance. (Pub. L. 97–382, § 7, Dec. 22, 1982, 96 Stat. 1940.) § 2107. Regulations; consultation with Indian or- ganizations; pending agreements Within one hundred and eighty days of Decem- ber 22, 1982, the Secretary of the Interior shall promulgate rules and regulations to facilitate implementation of this chapter. The Secretary shall, to the extent practicable, consult with na- tional and regional Indian organizations and tribes with expertise in mineral development both in the initial formulation of rules and regu- lations and any future revision or amendment of such rules and regulations. Where there is pend- ing before the Secretary for his approval a Min- erals Agreement of the type authorized by sec- tion 2102 of this title which was submitted prior to December 22, 1982, the Secretary shall evalu- ate and approve or disapprove such agreement based upon section 2103 of this title, but shall not withhold or delay such approval or dis- approval on the grounds that the rules and regu- lations implementing this chapter have not been promulgated. (Pub. L. 97–382, § 8, Dec. 22, 1982, 96 Stat. 1940.) § 2108. Tribal right to develop mineral resources Nothing in this chapter shall impair any right of an Indian tribe organized under section 16 or 17 of the Act of June 18, 1934 (48 Stat. 987), as amended [25 U.S.C. 5123, 5124], to develop their mineral resources as may be provided in any constitution or charter adopted by such tribe pursuant to that Act [25 U.S.C. 5101 et seq.]. (Pub. L. 97–382, § 9, Dec. 22, 1982, 96 Stat. 1940.) Editorial Notes REFERENCES IN TEXT Act of June 18, 1934, referred to in text, popularly known as the Indian Reorganization Act, is classified generally to chapter 45 (§ 5101 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5101 of this title and Tables. CHAPTER 24—INDIAN LAND CONSOLIDATION Sec. 2201. Definitions.