25 U.S.C. § 3504 — Leases, business agreements, and rights-

Page 587 TITLE 25—INDIANS § 3504 loan guarantees under section 2602(c) of the Energy Policy Act of 1992 (25 U.S.C. 3502(c)) may also be used, in this fiscal year and subsequent fiscal years, for the cost of direct loans provided under such section of such Act’’. § 3503. Indian tribal energy resource regulation (a) Grants The Secretary may provide to Indian tribes, on an annual basis, grants for use in accordance with subsection (b). (b) Use of funds Funds from a grant provided under this sec- tion may be used— (1)(A) by an Indian tribe for the development of a tribal energy resource inventory or tribal energy resource on Indian land; (B) by an Indian tribe for the development of a feasibility study or other report necessary to the development of energy resources on Indian land; (C) by an Indian tribe (other than an Indian Tribe in the State of Alaska, except the Metlakatla Indian Community) for— (i) the development and enforcement of tribal laws (including regulations) relating to tribal energy resource development; and (ii) the development of technical infra- structure to protect the environment under applicable law; or (D) by a Native Corporation for the develop- ment and implementation of corporate poli- cies and the development of technical infra- structure to protect the environment under applicable law; and (2) by an Indian tribe for the training of em- ployees that— (A) are engaged in the development of en- ergy resources on Indian land; or (B) are responsible for protecting the envi- ronment. (c) Other assistance (1) In carrying out the obligations of the United States under this chapter, the Secretary shall ensure, to the maximum extent practicable and to the extent of available resources, that on the request of an Indian tribe or a tribal energy development organization, the Indian tribe or tribal energy development organization shall have available scientific and technical informa- tion and expertise, for use in the regulation, de- velopment, and management of energy resources of the Indian tribe on Indian land. (2) The Secretary may carry out paragraph (1)— (A) directly, through the use of Federal offi- cials; or (B) indirectly, by providing financial assist- ance to an Indian tribe or tribal energy devel- opment organization to secure independent as- sistance. (Pub. L. 102–486, title XXVI, § 2603, as added Pub. L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat. 768; amended Pub. L. 115–325, title I, § 102, Dec. 18, 2018, 132 Stat. 4447.) Editorial Notes PRIOR PROVISIONS A prior section 3503, Pub. L. 102–486, title XXVI, § 2603, Oct. 24, 1992, 106 Stat. 3114; Pub. L. 105–388, § 10, Nov. 13, 1998, 112 Stat. 3484, related to promotion of energy re- source development and energy vertical integration on Indian reservations, prior to the general amendment of this chapter by Pub. L. 109–58. AMENDMENTS 2018—Subsec. (c)(1). Pub. L. 115–325, § 102(1), sub- stituted ‘‘on the request of an Indian tribe or a tribal energy development organization, the Indian tribe or tribal energy development organization’’ for ‘‘on the request of an Indian tribe, the Indian tribe’’. Subsec. (c)(2)(B). Pub. L. 115–325, § 102(2), inserted ‘‘or tribal energy development organization’’ after ‘‘Indian tribe’’. § 3504. Leases, business agreements, and rights- of-way involving energy development or transmission (a) Leases and business agreements In accordance with this section— (1) an Indian tribe may, at the discretion of the Indian tribe, enter into a lease or business agreement for the purpose of energy resource development on tribal land, including a lease or business agreement for— (A) exploration for, extraction of, proc- essing of, or other development of the en- ergy mineral resources of the Indian tribe located on tribal land; (B) construction or operation of— (i) an electric production, generation, transmission, or distribution facility (in- cluding a facility that produces electricity from renewable energy resources) located on tribal land; or (ii) a facility to process or refine energy resources, at least a portion of which have been developed on or produced from tribal land; or (C) pooling, unitization, or communitization of the energy mineral re- sources of the Indian tribe located on tribal land with any other energy mineral resource (including energy mineral resources owned by the Indian tribe or an individual Indian in fee, trust, or restricted status or by any other persons or entities) if the owner, or, if appropriate, lessee, of the resources has con- sented or consents to the pooling, unitiza- tion, or communitization of the other re- sources under any lease or agreement; and (2) a lease or business agreement described in paragraph (1) shall not require review by, or the approval of, the Secretary under section 81 of this title, or any other provision of law (in- cluding regulations), if the lease or business agreement— (A) was executed— (i) in accordance with the requirements of a tribal energy resource agreement in effect under subsection (e) (including the periodic review and evaluation of the ac- tivities of the Indian tribe under the agreement, to be conducted pursuant to subparagraphs (D) and (E) of subsection (e)(2)); or (ii) by the Indian tribe and a tribal en- ergy development organization for which the Indian tribe has obtained a certifi- cation pursuant to subsection (h); and (B) has a term that does not exceed— Page 588 TITLE 25—INDIANS § 3504 (i) 30 years; or (ii) in the case of a lease for the produc- tion of oil resources, gas resources, or both, 10 years and as long thereafter as oil or gas is produced in paying quantities. (b) Rights-of-way An Indian tribe may grant a right-of-way over tribal land without review or approval by the Secretary if the right-of-way— (1) serves— (A) an electric production, generation, transmission, or distribution facility (in- cluding a facility that produces electricity from renewable energy resources) located on tribal land; (B) a facility located on tribal land that extracts, produces, processes, or refines en- ergy resources; or (C) the purposes, or facilitates in carrying out the purposes, of any lease or agreement entered into for energy resource develop- ment on tribal land; (2) was executed— (A) in accordance with the requirements of a tribal energy resource agreement in effect under subsection (e) (including the periodic review and evaluation of the activities of the Indian tribe under the agreement, to be con- ducted pursuant to subparagraphs (D) and (E) of subsection (e)(2)); or (B) by the Indian tribe and a tribal energy development organization for which the In- dian tribe has obtained a certification pursu- ant to subsection (h); and (3) has a term that does not exceed 30 years. (c) Renewals A lease or business agreement entered into, or a right-of-way granted, by an Indian tribe under this section may be renewed at the discretion of the Indian tribe in accordance with this section. (d) Validity No lease or business agreement entered into, or right-of-way granted, pursuant to this section shall be valid unless the lease, business agree- ment, or right-of-way is authorized by sub- section (a) or (b). (e) Tribal energy resource agreements (1) IN GENERAL.— (A) AUTHORIZATION.—On or after December 18, 2018, a qualified Indian tribe may submit to the Secretary a tribal energy resource agree- ment governing leases, business agreements, and rights-of-way under this section. (B) NOTICE OF COMPLETE PROPOSED AGREE- MENT.—Not later than 60 days after the date on which the tribal energy resource agreement is submitted under subparagraph (A), the Sec- retary shall— (i) notify the Indian tribe as to whether the agreement is complete or incomplete; (ii) if the agreement is incomplete, notify the Indian tribe of what information or doc- umentation is needed to complete the sub- mission; and (iii) identify and notify the Indian tribe of the financial assistance, if any, to be pro- vided by the Secretary to the Indian tribe to assist in the implementation of the tribal energy resource agreement, including the environmental review of individual projects. (C) EFFECT.—Nothing in this paragraph pre- cludes the Secretary from providing any finan- cial assistance at any time to the Indian tribe to assist in the implementation of the tribal energy resource agreement. (2) PROCEDURE.— (A) EFFECTIVE DATE.— (i) IN GENERAL.—On the date that is 271 days after the date on which the Secretary receives a tribal energy resource agreement from a qualified Indian tribe under para- graph (1), the tribal energy resource agree- ment shall take effect, unless the Secretary disapproves the tribal energy resource agree- ment under subparagraph (B). (ii) REVISED TRIBAL ENERGY RESOURCE AGREEMENT.—On the date that is 91 days after the date on which the Secretary re- ceives a revised tribal energy resource agree- ment from a qualified Indian tribe under paragraph (4)(B), the revised tribal energy resource agreement shall take effect, unless the Secretary disapproves the revised tribal energy resource agreement under subpara- graph (B). (B) DISAPPROVAL.—The Secretary shall dis- approve a tribal energy resource agreement submitted pursuant to paragraph (1) or (4)(B) only if— (i) a provision of the tribal energy resource agreement violates applicable Federal law (including regulations) or a treaty applica- ble to the Indian tribe; (ii) the tribal energy resource agreement does not include one or more provisions re- quired under subparagraph (D); or (iii) the tribal energy resource agreement does not include provisions that, with re- spect to any lease, business agreement, or right-of-way to which the tribal energy re- source agreement applies— (I) address amendments and renewals; (II) address the economic return to the Indian tribe under leases, business agree- ments, and rights-of-way; (III) establish requirements for environ- mental review in accordance with subpara- graph (C); (IV) ensure compliance with all applica- ble environmental laws, including a re- quirement that each lease, business agree- ment, and right-of-way state that the les- see, operator, or right-of-way grantee shall comply with all such laws; (V) provide for public notification of final approvals; (VI) establish a process for consultation with any affected States regarding off-res- ervation impacts, if any, identified under subparagraph (C)(i); (VII) describe the remedies for breach of the lease, business agreement, or right-of- way; (VIII) require each lease, business agree- ment, and right-of-way to include a state- ment that, if any of its provisions violates an express term or requirement of the trib- Page 589 TITLE 25—INDIANS § 3504 1 So in original. Probably should be ‘‘subparagraph (B)(iii)(XI)’’. al energy resource agreement pursuant to which the lease, business agreement, or right-of-way was executed— (aa) the provision shall be null and void; and (bb) if the Secretary determines the provision to be material, the Secretary may suspend or rescind the lease, busi- ness agreement, or right-of-way or take other appropriate action that the Sec- retary determines to be in the best inter- est of the Indian tribe; (IX) require each lease, business agree- ment, and right-of-way to provide that it will become effective on the date on which a copy of the executed lease, business agreement, or right-of-way is delivered to the Secretary in accordance with regula- tions promulgated under paragraph (8); (X) include citations to tribal laws, regu- lations, or procedures, if any, that set out tribal remedies that must be exhausted be- fore a petition may be submitted to the Secretary under paragraph (7)(B); (XI) in accordance with the regulations promulgated by the Secretary under para- graph (8), require that the Indian tribe, as soon as practicable after receipt of a no- tice by the Indian tribe, give written no- tice to the Secretary of— (aa) any breach or other violation by another party of any provision in a lease, business agreement, or right-of-way en- tered into under the tribal energy re- source agreement; and (bb) any activity or occurrence under a lease, business agreement, or right-of- way that constitutes a violation of Fed- eral environmental laws; (XII) include a certification by the In- dian tribe that the Indian tribe has— (aa) carried out a contract or compact under title I or IV of the Indian Self-De- termination and Education Assistance Act (25 U.S.C. 5301 et seq.) for a period of not less than 3 consecutive years ending on the date on which the Indian tribe submits the application without mate- rial audit exception (or without any ma- terial audit exceptions that were not corrected within the 3-year period) relat- ing to the management of tribal land or natural resources; or (bb) substantial experience in the ad- ministration, review, or evaluation of energy resource leases or agreements or has otherwise substantially participated in the administration, management, or development of energy resources located on the tribal land of the Indian tribe; and (XIII) at the option of the Indian tribe, identify which functions, if any, author- izing any operational or development ac- tivities pursuant to a lease, right-of-way, or business agreement approved by the In- dian tribe, that the Indian tribe intends to conduct. (C) Tribal energy resource agreements sub- mitted under paragraph (1) shall establish, and include provisions to ensure compliance with, an environmental review process that, with re- spect to a lease, business agreement, or right- of-way under this section, provides for, at a minimum— (i) a process for ensuring that— (I) the public is informed of, and has rea- sonable opportunity to comment on, any significant environmental impacts of the proposed action; and (II) the Indian tribe provides responses to relevant and substantive public com- ments on any impacts described in sub- clause (I) before the Indian tribe approves the lease, business agreement, or right-of- way; (ii) a process for ensuring that— (I) the public is informed of, and has an opportunity to comment on, the environ- mental impacts of the proposed action; and (II) responses to relevant and sub- stantive comments are provided, before tribal approval of the lease, business agreement, or right-of-way; (iii) sufficient administrative support and technical capability to carry out the envi- ronmental review process; and (iv) oversight by the Indian tribe of energy development activities by any other party under any lease, business agreement, or right-of-way entered into pursuant to the tribal energy resource agreement, to deter- mine whether the activities are in compli- ance with the tribal energy resource agree- ment and applicable Federal environmental laws. (D) A tribal energy resource agreement be- tween the Secretary and an Indian tribe under this subsection shall include— (i) provisions requiring the Secretary to conduct a periodic review and evaluation to monitor the performance of the activities of the Indian tribe associated with the develop- ment of energy resources under the tribal energy resource agreement; and (ii) if a periodic review and evaluation, or an investigation, by the Secretary of any breach or violation described in a notice pro- vided by the Indian tribe to the Secretary in accordance with subparagraph (B)(iv)(XI),1 results in a finding by the Secretary of im- minent jeopardy to a physical trust asset arising from a violation of the tribal energy resource agreement or applicable Federal laws, provisions authorizing the Secretary to take actions determined by the Secretary to be necessary to protect the asset, includ- ing reassumption of responsibility for activi- ties associated with the development of en- ergy resources on tribal land until the viola- tion and any condition that caused the jeop- ardy are corrected. (E) Periodic review and evaluation under subparagraph (D) shall be conducted on an an- nual basis, except that, after the third annual Page 590 TITLE 25—INDIANS § 3504 review and evaluation, the Secretary and the Indian tribe may mutually agree to amend the tribal energy resource agreement to authorize the review and evaluation under subparagraph (D) to be conducted once every 2 years. (F) EFFECTIVE PERIOD.—A tribal energy re- source agreement that takes effect pursuant to this subsection shall remain in effect to the extent any provision of the tribal energy re- source agreement is consistent with applicable Federal law (including regulations), unless the tribal energy resource agreement is— (i) rescinded by the Secretary pursuant to paragraph (7)(D)(iii)(II); or (ii) voluntarily rescinded by the Indian tribe pursuant to the regulations promul- gated under paragraph (8)(B) (or successor regulations). (3) NOTICE AND COMMENT; SECRETARIAL RE- VIEW.—The Secretary shall provide notice and opportunity for public comment on tribal en- ergy resource agreements submitted under para- graph (1). The Secretary’s review of a tribal en- ergy resource agreement shall be limited to ac- tivities specified by the provisions of the tribal energy resource agreement. (4) ACTION IN CASE OF DISAPPROVAL.—If the Secretary disapproves a tribal energy resource agreement submitted by an Indian tribe under paragraph (1), the Secretary shall, not later than 10 days after the date of disapproval, pro- vide the Indian tribe with— (A) a detailed, written explanation of— (i) each reason for the disapproval; and (ii) the revisions or changes to the tribal energy resource agreement necessary to ad- dress each reason; and (B) an opportunity to revise and resubmit the tribal energy resource agreement. (5) PROVISION OF DOCUMENTS TO SECRETARY.—If an Indian tribe executes a lease or business agreement, or grants a right-of-way, in accord- ance with a tribal energy resource agreement in effect under this subsection, the Indian tribe shall, in accordance with the process and re- quirements under regulations promulgated under paragraph (8), provide to the Secretary— (A) a copy of the lease, business agreement, or right-of-way document (including all amendments to and renewals of the docu- ment); and (B) in the case of a tribal energy resource agreement or a lease, business agreement, or right-of-way that permits payments to be made directly to the Indian tribe, information and documentation of those payments suffi- cient to enable the Secretary to discharge the trust responsibility of the United States to en- force the terms of, and protect the rights of the Indian tribe under, the lease, business agreement, or right-of-way. (6) SECRETARIAL OBLIGATIONS AND EFFECT OF SECTION.— (A) In carrying out this section, the Sec- retary shall— (i) act in accordance with the trust respon- sibility of the United States relating to min- eral and other trust resources; and (ii) act in good faith and in the best inter- ests of the Indian tribes. (B) Subject only to the provisions of sub- sections (a)(2), (b), and (c) waiving the require- ment of Secretarial approval of leases, busi- ness agreements, and rights-of-way executed pursuant to tribal energy resource agreements in effect under this section, and the provisions of subparagraphs (C) and (D), nothing in this section shall absolve the United States from any responsibility to Indians or Indian tribes, including, but not limited to, those which de- rive from the trust relationship or from any treaties, statutes, and other laws of the United States, Executive orders, or agreements be- tween the United States and any Indian tribe. (C) The Secretary shall continue to fulfill the trust obligation of the United States to perform the obligations of the Secretary under this section and to ensure that the rights and interests of an Indian tribe are protected if— (i) any other party to a lease, business agreement, or right-of-way violates any ap- plicable Federal law or the terms of any lease, business agreement, or right-of-way under this section; or (ii) any provision in a lease, business agreement, or right-of-way violates the trib- al energy resource agreement pursuant to which the lease, business agreement, or right-of-way was executed. (D)(i) In this subparagraph, the term ‘‘nego- tiated term’’ means any term or provision that is negotiated by an Indian tribe and any other party to a lease, business agreement, or right-of-way entered into pursuant to a tribal energy resource agreement in effect under this section. (ii) Notwithstanding subparagraph (B), the United States shall not be liable to any party (including any Indian tribe) for any negotiated term of, or any loss resulting from the nego- tiated terms of, a lease, business agreement, or right-of-way executed pursuant to and in accordance with a tribal energy resource agreement in effect under paragraph (2). (iii) Nothing in this section absolves, limits, or otherwise affects the liability, if any, of the United States for any— (I) term of any lease, business agreement, or right-of-way under this section that is not a negotiated term; or (II) losses that are not the result of a nego- tiated term, including losses resulting from the failure of the Secretary to perform an obligation of the Secretary under this sec- tion. (7) PETITIONS BY INTERESTED PARTIES.— (A) In this paragraph, the term ‘‘interested party’’ means any person (including an entity) that the Secretary determines has dem- onstrated with substantial evidence that an interest of the person has sustained, or will sustain, an adverse environmental impact as a result of the failure of an Indian tribe to com- ply with a tribal energy resource agreement of the Indian tribe in effect under paragraph (2). (B) After exhaustion of all remedies (if any) provided under the laws of the Indian tribe, and in accordance with regulations promul- gated by the Secretary under paragraph (8), an interested party may submit to the Secretary Page 591 TITLE 25—INDIANS § 3504 a petition to review the compliance by an In- dian tribe with a tribal energy resource agree- ment of the Indian tribe in effect under para- graph (2). (C)(i) Not later than 20 days after the date on which the Secretary receives a petition under subparagraph (B), the Secretary shall— (I) provide to the Indian tribe a copy of the petition; and (II) consult with the Indian tribe regarding any noncompliance alleged in the petition. (ii) Not later than 45 days after the date on which a consultation under clause (i)(II) takes place, the Indian tribe shall respond to any claim made in a petition under subparagraph (B). (iii) The Secretary shall act in accordance with subparagraphs (D) and (E) only if the In- dian tribe— (I) denies, or fails to respond to, each claim made in the petition within the period described in clause (ii); or (II) fails, refuses, or is unable to cure or otherwise resolve each claim made in the pe- tition within a reasonable period, as deter- mined by the Secretary, after the expiration of the period described in clause (ii). (D)(i) Not later than 120 days after the date on which the Secretary receives a petition under subparagraph (B), the Secretary shall determine— (I) whether the petitioner is an interested party; and (II) if the petitioner is an interested party, whether the Indian tribe is not in compli- ance with the tribal energy resource agree- ment as alleged in the petition. (ii) The Secretary may adopt procedures under paragraph (8) authorizing an extension of time, not to exceed 120 days, for making the determinations under clause (i) in any case in which the Secretary determines that addi- tional time is necessary to evaluate the alle- gations of the petition. (iii) Subject to subparagraph (E), if the Sec- retary determines that the Indian tribe is not in compliance with the tribal energy resource agreement pursuant to clause (i), the Sec- retary shall only take such action as the Sec- retary determines necessary to address the claims of noncompliance made in the petition, including— (I) temporarily suspending any activity under a lease, business agreement, or right- of-way under this section until the Indian tribe is in compliance with the tribal energy resource agreement; or (II) rescinding all or part of the tribal en- ergy resource agreement, and if all of the agreement is rescinded, reassuming the re- sponsibility for approval of any future leases, business agreements, or rights-of-way described in subsection (a)(2)(A)(i) or (b)(2)(A). (E) Before taking an action described in sub- paragraph (D)(iii), the Secretary shall— (i) make a written determination that de- scribes, with respect to each claim made in the petition, how the tribal energy resource agreement has been violated; (ii) provide the Indian tribe with a written notice of the violations together with the written determination; and (iii) before taking any action described in subparagraph (D)(iii) or seeking any other remedy, provide the Indian tribe with a hearing and a reasonable opportunity to at- tain compliance with the tribal energy re- source agreement. (F) An Indian tribe described in subpara- graph (E) shall retain all rights to appeal under any regulation promulgated by the Sec- retary. (G) Notwithstanding any other provision of this paragraph, the Secretary shall dismiss any petition from an interested party that has agreed with the Indian tribe to a resolution of the claims presented in the petition of that party. (8) Not later than 1 year after August 8, 2005, the Secretary shall promulgate regulations that implement this subsection, including— (A) a process and requirements in accord- ance with which an Indian tribe may— (i) voluntarily rescind a tribal energy re- source agreement approved by the Secretary under this subsection; (ii) return to the Secretary the responsi- bility to approve any future lease, business agreement, or right-of-way under this sub- section; and (iii) amend an approved tribal energy re- source agreement to assume authority for approving leases, business agreements, or rights-of-way for development of another en- ergy resource that is not included in an ap- proved tribal energy resource agreement without being required to apply for a new tribal energy resource agreement; (B) provisions establishing the scope of, and procedures for, the periodic review and evalua- tion described in subparagraphs (D) and (E) of paragraph (2), including provisions for review of transactions, reports, site inspections, and any other review activities the Secretary de- termines to be appropriate; and (C) provisions describing final agency ac- tions after exhaustion of administrative ap- peals from determinations of the Secretary under paragraph (7). (9) EFFECT.—Nothing in this section author- izes the Secretary to deny a tribal energy re- source agreement or any amendment to a tribal energy resource agreement, or to limit the ef- fect or implementation of this section, due to lack of promulgated regulations. (f) No effect on other law Nothing in this section affects the application of— (1) any Federal environmental law; (2) the Surface Mining Control and Reclama- tion Act of 1977 (30 U.S.C. 1201 et seq.); or (3) except as otherwise provided in this chap- ter, the Indian Mineral Development Act of 1982 (25 U.S.C. 2101 et seq.). (g) Financial assistance in lieu of activities by the Secretary (1) In general Any amounts that the Secretary would oth- erwise expend to operate or carry out any pro- Page 592 TITLE 25—INDIANS § 3504 gram, function, service, or activity (or any portion of a program, function, service, or ac- tivity) of the Department that, as a result of an Indian tribe carrying out activities under a tribal energy resource agreement, the Sec- retary does not expend, the Secretary shall, at the request of the Indian tribe, make available to the Indian tribe in accordance with this subsection. (2) Annual funding agreements The Secretary shall make the amounts de- scribed in paragraph (1) available to an Indian tribe through an annual written funding agreement that is negotiated and entered into with the Indian tribe that is separate from the tribal energy resource agreement. (3) Effect of appropriations Notwithstanding paragraph (1)— (A) the provision of amounts to an Indian tribe under this subsection is subject to the availability of appropriations; and (B) the Secretary shall not be required to reduce amounts for programs, functions, services, or activities that serve any other Indian tribe to make amounts available to an Indian tribe under this subsection. (4) Determination (A) In general The Secretary shall calculate the amounts under paragraph (1) in accordance with the regulations adopted under section 103(b) of the Indian Tribal Energy Development and Self-Determination Act Amendments of 2017. (B) Applicability The effective date or implementation of a tribal energy resource agreement under this section shall not be delayed or otherwise af- fected by— (i) a delay in the promulgation of regula- tions under section 103(b) of the Indian Tribal Energy Development and Self-De- termination Act Amendments of 2017; (ii) the period of time needed by the Sec- retary to make the calculation required under paragraph (1); or (iii) the adoption of a funding agreement under paragraph (2). (h) Certification of tribal energy development or- ganization (1) In general Not later than 90 days after the date on which an Indian tribe submits an application for certification of a tribal energy develop- ment organization in accordance with regula- tions promulgated under section 103(b) of the Indian Tribal Energy Development and Self- Determination Act Amendments of 2017, the Secretary shall approve or disapprove the ap- plication. (2) Requirements The Secretary shall approve an application for certification if— (A)(i) the Indian tribe has carried out a contract or compact under title I or IV of the Indian Self-Determination and Edu- cation Assistance Act (25 U.S.C. 5301 et seq.); and (ii) for a period of not less than 3 consecu- tive years ending on the date on which the Indian tribe submits the application, the contract or compact— (I) has been carried out by the Indian tribe without material audit exceptions (or without any material audit exceptions that were not corrected within the 3-year period); and (II) has included programs or activities relating to the management of tribal land; and (B)(i) the tribal energy development orga- nization is organized under the laws of the Indian tribe; (ii)(I) the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and one or more other In- dian tribes) the tribal land of which is being developed; and (II) the organizing document of the tribal energy development organization requires that the Indian tribe with jurisdiction over the land maintain at all times the control- ling interest in the tribal energy develop- ment organization; (iii) the organizing document of the tribal energy development organization requires that the Indian tribe (or the Indian tribe and one or more other Indian tribes) the tribal land of which is being developed own and control at all times a majority of the inter- est in the tribal energy development organi- zation; and (iv) the organizing document of the tribal energy development organization includes a statement that the organization shall be subject to the jurisdiction, laws, and author- ity of the Indian tribe. (3) Action by Secretary If the Secretary approves an application for certification pursuant to paragraph (2), the Secretary shall, not more than 10 days after making the determination— (A) issue a certification stating that— (i) the tribal energy development organi- zation is organized under the laws of the Indian tribe and subject to the jurisdic- tion, laws, and authority of the Indian tribe; (ii) the majority of the interest in the tribal energy development organization is owned and controlled by the Indian tribe (or the Indian tribe and one or more other Indian tribes) the tribal land of which is being developed; (iii) the organizing document of the trib- al energy development organization re- quires that the Indian tribe with jurisdic- tion over the land maintain at all times the controlling interest in the tribal en- ergy development organization; (iv) the organizing document of the trib- al energy development organization re- quires that the Indian tribe (or the Indian tribe and one or more other Indian tribes the tribal land of which is being developed) own and control at all times a majority of the interest in the tribal energy develop- ment organization; and Page 593 TITLE 25—INDIANS § 3504 (v) the certification is issued pursuant this subsection; (B) deliver a copy of the certification to the Indian tribe; and (C) publish the certification in the Federal Register. (i) Sovereign immunity Nothing in this section waives the sovereign immunity of an Indian tribe. (j) Authorization of appropriations There are authorized to be appropriated to the Secretary such sums as are necessary for each of fiscal years 2006 through 2016 to carry out this section and to make grants or provide other ap- propriate assistance to Indian tribes to assist the Indian tribes in developing and imple- menting tribal energy resource agreements in accordance with this section. (Pub. L. 102–486, title XXVI, § 2604, as added Pub. L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat. 769; amended Pub. L. 115–325, title I, §§ 103(a), 105(d), Dec. 18, 2018, 132 Stat. 4447, 4456.) Editorial Notes REFERENCES IN TEXT The Indian Self-Determination and Education Assist- ance Act, referred to in subsecs. (e)(2)(B)(iii)(XII)(aa) and (h)(2)(A)(i), is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203. Titles I and IV of the Act are classified principally to subchapter I (§ 5321 et seq.) and generally to sub- chapter IV (§ 5361 et seq.), respectively, of chapter 46 of this title. For complete classification of this Act to the Code, see section 1 of Pub. L. 93–638, set out as a Short Title note under section 5301 of this title and Tables. The Surface Mining Control and Reclamation Act of 1977, referred to in subsec. (f)(2), is Pub. L. 95–87, Aug. 3, 1977, 91 Stat. 445, which is classified generally to chapter 25 (§ 1201 et seq.) of Title 30, Mineral Lands and Mining. For complete classification of this Act to the Code, see Short Title note set out under section 1201 of Title 30 and Tables. The Indian Mineral Development Act of 1982, referred to in subsec. (f)(3), is Pub. L. 97–382, Dec. 22, 1982, 96 Stat. 1938, which is classified generally to chapter 23 (§ 2101 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2101 of this title and Tables. Section 103(b) of the Indian Tribal Energy Develop- ment and Self-Determination Act Amendments of 2017, referred to in subsecs. (g)(4) and (h)(1), is section 103(b) of Pub. L. 115–325, which is set out as a note under this section. PRIOR PROVISIONS A prior section 3504, Pub. L. 102–486, title XXVI, § 2604, Oct. 24, 1992, 106 Stat. 3114, related to Indian energy re- source regulation, prior to the general amendment of this chapter by Pub. L. 109–58. AMENDMENTS 2018—Subsec. (a)(1)(A). Pub. L. 115–325, § 103(a)(1)(A)(i), struck out ‘‘or’’ at end. Subsec. (a)(1)(B)(i). Pub. L. 115–325, § 103(a)(1)(A)(ii)(I), added cl. (i) and struck out former cl. (i) which read as follows: ‘‘an electric generation, transmission, or dis- tribution facility located on tribal land; or’’. Subsec. (a)(1)(B)(ii). Pub. L. 115–325, § 103(a)(1)(A)(ii)(II), substituted ‘‘energy resources, at least a portion of which have been developed on or pro- duced from tribal land; or’’ for ‘‘energy resources devel- oped on tribal land; and’’. Subsec. (a)(1)(C). Pub. L. 115–325, § 103(a)(1)(A)(iii), added subpar. (C). Subsec. (a)(2). Pub. L. 115–325, § 103(a)(1)(B), added par. (2) and struck out former par. (2) which set out condi- tions under which a lease or business agreement de- scribed in par. (1) would not require review or approval. Subsec. (b). Pub. L. 115–325, § 103(a)(2), added subsec. (b) and struck out former subsec. (b) which related to rights-of-way for pipelines or electric transmission or distribution lines. Subsec. (d). Pub. L. 115–325, § 103(a)(3), added subsec. (d) and struck out former subsec. (d). Prior to amend- ment, text read as follows: ‘‘No lease, business agree- ment, or right-of-way relating to the development of tribal energy resources under this section shall be valid unless the lease, business agreement, or right-of-way is authorized by a tribal energy resource agreement ap- proved by the Secretary under subsection (e)(2).’’ Subsec. (e)(1). Pub. L. 115–325, § 103(a)(4)(A), added par. (1) and struck out former par. (1) which read as follows: ‘‘On the date on which regulations are promulgated under paragraph (8), an Indian tribe may submit to the Secretary for approval a tribal energy resource agree- ment governing leases, business agreements, and rights-of-way under this section.’’ Subsec. (e)(2). Pub. L. 115–325, § 103(a)(4)(B)(i), inserted heading. Subsec. (e)(2)(A). Pub. L. 115–325, § 103(a)(4)(B)(i), added subpar. (A) and struck out former subpar. (A) which read as follows: ‘‘Not later than 270 days after the date on which the Secretary receives a tribal en- ergy resource agreement from an Indian tribe under paragraph (1), or not later than 60 days after the Sec- retary receives a revised tribal energy resource agree- ment from an Indian tribe under paragraph (4)(C) (or a later date, as agreed to by the Secretary and the Indian tribe), the Secretary shall approve or disapprove the tribal energy resource agreement.’’ Subsec. (e)(2)(B). Pub. L. 115–325, § 103(a)(4)(B)(ii)(I), inserted heading and substituted ‘‘The Secretary shall disapprove a tribal energy resource agreement sub- mitted pursuant to paragraph (1) or (4)(B) only if’’ for ‘‘The Secretary shall approve a tribal energy resource agreement submitted under paragraph (1) if’’ in intro- ductory provisions. Subsec. (e)(2)(B)(i), (ii). Pub. L. 115–325, § 103(a)(4)(B)(ii)(I), added cls. (i) and (ii) and struck out former cls. (i) and (ii) which read as follows: ‘‘(i) the Secretary determines that the Indian tribe has demonstrated that the Indian tribe has sufficient capacity to regulate the development of energy re- sources of the Indian tribe; ‘‘(ii) the tribal energy resource agreement includes provisions required under subparagraph (D); and’’. Subsec. (e)(2)(B)(iii). Pub. L. 115–325, § 103(a)(4)(B)(ii)(II)(bb), (cc), redesignated subcls. (III), (IV), (VI), (VII), (IX) to (XIV), and (XVI) as (I), (II), (III), (IV), (V) to (X), and (XI), respectively, and struck out former subcls. (I), (II), (V), (VIII), and (XV) which read as follows: ‘‘(I) ensure the acquisition of necessary information from the applicant for the lease, business agreement, or right-of-way; ‘‘(II) address the term of the lease or business agree- ment or the term of conveyance of the right-of-way; ‘‘(V) address technical or other relevant require- ments; ‘‘(VIII) identify final approval authority; ‘‘(XV) specify the financial assistance, if any, to be provided by the Secretary to the Indian tribe to assist in implementation of the tribal energy resource agree- ment, including environmental review of individual projects; and’’. Pub. L. 115–325, § 103(a)(4)(B)(ii)(II)(aa), substituted ‘‘does not include provisions that, with respect to any lease, business agreement, or right-of-way to which the tribal energy resource agreement applies’’ for ‘‘includes provisions that, with respect to a lease, business agree- ment, or right-of-way under this section’’ in introduc- tory provisions. Subsec. (e)(2)(B)(iii)(XI)(bb). Pub. L. 115–325, § 103(a)(4)(B)(ii)(II)(dd), substituted ‘‘Federal environ- Page 594 TITLE 25—INDIANS § 3504 mental laws;’’ for ‘‘Federal or tribal environmental laws.’’ Subsec. (e)(2)(B)(iii)(XII), (XIII). Pub. L. 115–325, § 103(a)(4)(B)(ii)(II)(ee), added subcls. (XII) and (XIII). Former subcls. (XII) and (XIII) redesignated (VIII) and (IX), respectively. Subsec. (e)(2)(C). Pub. L. 115–325, § 103(a)(4)(B)(iii), added cl. (i), redesignated cls. (iii) to (v) as (ii) to (iv), respectively, and struck out former cls. (i) and (ii) which read as follows: ‘‘(i) the identification and evaluation of all signifi- cant environmental effects (as compared to a no-action alternative), including effects on cultural resources; ‘‘(ii) the identification of proposed mitigation meas- ures, if any, and incorporation of appropriate mitiga- tion measures into the lease, business agreement, or right-of-way;’’. Subsec. (e)(2)(D)(ii). Pub. L. 115–325, § 103(a)(4)(B)(iv), substituted ‘‘subparagraph (B)(iv)(XI)’’ for ‘‘subpara- graph (B)(iii)(XVI)’’. Subsec. (e)(2)(F). Pub. L. 115–325, § 103(a)(4)(B)(v), added subpar. (F). Subsec. (e)(3). Pub. L. 115–325, § 105(d)(1), inserted heading and struck out ‘‘for approval’’ after ‘‘sub- mitted’’. Subsec. (e)(4). Pub. L. 115–325, § 105(d)(2), inserted heading. Pub. L. 115–325, § 103(a)(4)(C), substituted ‘‘date of dis- approval, provide the Indian tribe with’’ for ‘‘date of disapproval’’ in introductory provisions, added subpars. (A) and (B), and struck out former subpars. (A) to (C) which read as follows: ‘‘(A) notify the Indian tribe in writing of the basis for the disapproval; ‘‘(B) identify what changes or other actions are re- quired to address the concerns of the Secretary; and ‘‘(C) provide the Indian tribe with an opportunity to revise and resubmit the tribal energy resource agree- ment.’’ Subsec. (e)(5). Pub. L. 115–325, § 105(d)(3), inserted heading and substituted ‘‘in effect’’ for ‘‘approved’’ in introductory provisions. Subsec. (e)(6). Pub. L. 115–325, § 105(d)(4)(A), inserted heading. Subsec. (e)(6)(A)(i), (ii). Pub. L. 115–325, § 105(d)(4)(B), realigned margins. Subsec. (e)(6)(B). Pub. L. 115–325, §§ 103(a)(4)(D)(i), 105(d)(4)(C), substituted ‘‘Subject only to’’ for ‘‘Subject to’’, ‘‘in effect’’ for ‘‘approved’’, and ‘‘subparagraphs (C) and (D)’’ for ‘‘subparagraph (D)’’. Subsec. (e)(6)(C). Pub. L. 115–325, § 103(a)(4)(D)(ii), in- serted ‘‘to perform the obligations of the Secretary under this section and’’ before ‘‘to ensure’’ in introduc- tory provisions. Subsec. (e)(6)(D)(i). Pub. L. 115–325, § 105(d)(4)(D)(i), substituted ‘‘a tribal energy resource agreement in ef- fect under this section’’ for ‘‘an approved tribal energy resource agreement’’. Subsec. (e)(6)(D)(ii). Pub. L. 115–325, § 105(d)(4)(D)(ii), substituted ‘‘in effect’’ for ‘‘approved by the Sec- retary’’. Subsec. (e)(6)(D)(iii). Pub. L. 115–325, § 103(a)(4)(D)(iii), added cl. (iii). Subsec. (e)(7). Pub. L. 115–325, § 105(d)(5)(A), inserted heading. Subsec. (e)(7)(A). Pub. L. 115–325, §§ 103(a)(4)(E)(i), 105(d)(5)(B), substituted ‘‘the Secretary determines has demonstrated with substantial evidence’’ for ‘‘has dem- onstrated’’ and ‘‘in effect’’ for ‘‘approved by the Sec- retary’’. Subsec. (e)(7)(B). Pub. L. 115–325, §§ 103(a)(4)(E)(ii), 105(d)(5)(C), substituted ‘‘all remedies (if any) provided under the laws of the Indian tribe’’ for ‘‘any tribal rem- edy’’ and ‘‘in effect’’ for ‘‘approved by the Secretary’’. Subsec. (e)(7)(D)(i). Pub. L. 115–325, § 103(a)(4)(E)(iii)(I), substituted ‘‘determine—’’ for ‘‘de- termine whether the Indian tribe is not in compliance with the tribal energy resource agreement.’’ and added subcls. (I) and (II). Subsec. (e)(7)(D)(ii). Pub. L. 115–325, § 103(a)(4)(E)(iii)(II), substituted ‘‘determinations’’ for ‘‘determination’’. Subsec. (e)(7)(D)(iii). Pub. L. 115–325, § 103(a)(4)(E)(iii)(III), in introductory provisions, sub- stituted ‘‘agreement pursuant to clause (i), the Sec- retary shall only take such action as the Secretary de- termines necessary to address the claims of noncompli- ance made in the petition, including’’ for ‘‘agreement, the Secretary shall take such action as the Secretary determines to be necessary to ensure compliance with the tribal energy resource agreement, including’’. Subsec. (e)(7)(D)(iii)(I). Pub. L. 115–325, § 105(d)(5)(D)(i), struck out ‘‘approved’’ before ‘‘tribal energy resource agreement’’. Subsec. (e)(7)(D)(iii)(II). Pub. L. 115–325, § 105(d)(5)(D)(ii), struck out ‘‘approval of’’ before ‘‘all or part of’’ and substituted ‘‘subsection (a)(2)(A)(i) or (b)(2)(A)’’ for ‘‘subsection (a) or (b)’’. Subsec. (e)(7)(E)(i). Pub. L. 115–325, § 103(a)(4)(E)(iv), substituted ‘‘, with respect to each claim made in the petition, how’’ for ‘‘the manner in which’’. Subsec. (e)(7)(G). Pub. L. 115–325, § 103(a)(4)(E)(v), added subpar. (G). Subsec. (e)(8). Pub. L. 115–325, § 103(a)(4)(F)(i), (ii), re- designated subpars. (B) to (D) as (A) to (C), respec- tively, and struck out former subpar. (A) which read as follows: ‘‘criteria to be used in determining the capac- ity of an Indian tribe under paragraph (2)(B)(i), includ- ing the experience of the Indian tribe in managing nat- ural resources and financial and administrative re- sources available for use by the Indian tribe in imple- menting the approved tribal energy resource agreement of the Indian tribe;’’. Subsec. (e)(8)(A)(iii). Pub. L. 115–325, § 103(a)(4)(F)(iii), added cl. (iii). Subsec. (e)(9). Pub. L. 115–325, § 103(a)(4)(G), added par. (9). Subsecs. (g) to (j). Pub. L. 115–325, § 103(a)(5), (6), added subsecs. (g) to (i) and redesignated former subsec. (g) as (j). Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 115–325, title I, § 103(b), Dec. 18, 2018, 132 Stat. 4454, provided that: ‘‘Not later than 1 year after the date of enactment of the Indian Tribal Energy Develop- ment and Self-Determination Act Amendments of 2017 [Dec. 18, 2018], the Secretary shall promulgate or up- date any regulations that are necessary to implement this section, including provisions to implement— ‘‘(1) section 2604(e)(8) of the Energy Policy Act of 1992 (25 U.S.C. 3504(e)(8)), including the process to be followed by an Indian tribe amending an existing tribal energy resource agreement to assume author- ity for approving leases, business agreements, or rights-of-way for development of an energy resource that is not included in the tribal energy resource agreement; ‘‘(2) section 2604(g) of the Energy Policy Act of 1992 (25 U.S.C. 3504(g)) including the manner in which the Secretary, at the request of an Indian tribe, shall— ‘‘(A) identify the programs, functions, services, and activities (or any portions of programs, func- tions, services, or activities) that the Secretary will not have to operate or carry out as a result of the Indian tribe carrying out activities under a tribal energy resource agreement; ‘‘(B) identify the amounts that the Secretary would have otherwise expended to operate or carry out each program, function, service, and activity (or any portion of a program, function, service, or activity) identified pursuant to subparagraph (A); and ‘‘(C) provide to the Indian tribe a list of the pro- grams, functions, services, and activities (or any portions of programs, functions, services, or activi- ties) identified pursuant [to] subparagraph (A) and the amounts associated with each program, func- tion, service, and activity (or any portion of a pro- gram, function, service, or activity) identified pur- suant to subparagraph (B); and Page 595 TITLE 25—INDIANS § 3506 ‘‘(3) section 2604(h) of the Energy Policy Act of 1992 (25 U.S.C. 3504(h)), including the process to be fol- lowed by, and any applicable criteria and documenta- tion required for, an Indian tribe to request and ob- tain the certification described in that section.’’ § 3505. Federal power marketing administrations (a) Definitions In this section: (1) The term ‘‘Administrator’’ means the Ad- ministrator of the Bonneville Power Adminis- tration and the Administrator of the Western Area Power Administration. (2) The term ‘‘power marketing administra- tion’’ means— (A) the Bonneville Power Administration; (B) the Western Area Power Administra- tion; and (C) any other power administration the power allocation of which is used by or for the benefit of an Indian tribe located in the service area of the administration. (b) Encouragement of Indian tribal energy devel- opment Each Administrator shall encourage Indian tribal energy development by taking such ac- tions as the Administrators determine to be ap- propriate, including administration of programs of the power marketing administration, in ac- cordance with this section. (c) Action by Administrators In carrying out this section, in accordance with laws in existence on August 8, 2005— (1) each Administrator shall consider the unique relationship that exists between the United States and Indian tribes; (2) power allocations from the Western Area Power Administration to Indian tribes may be used to meet firming and reserve needs of In- dian-owned energy projects on Indian land; (3) the Administrator of the Western Area Power Administration may purchase non-fed- erally generated power from Indian tribes to meet the firming and reserve requirements of the Western Area Power Administration; and (4) each Administrator shall not— (A) pay more than the prevailing market price for an energy product; or (B) obtain less than prevailing market terms and conditions. (d) Assistance for transmission system use (1) An Administrator may provide technical assistance to Indian tribes seeking to use the high-voltage transmission system for delivery of electric power. (2) The costs of technical assistance provided under paragraph (1) shall be funded— (A) by the Secretary of Energy using non- reimbursable funds appropriated for that pur- pose; or (B) by any appropriate Indian tribe. (e) Power allocation study Not later than 2 years after August 8, 2005, the Secretary of Energy shall submit to Congress a report that— (1) describes the use by Indian tribes of Fed- eral power allocations of the power marketing administration (or power sold by the South- western Power Administration) to or for the benefit of Indian tribes in a service area of the power marketing administration; and (2) identifies— (A) the quantity of power allocated to, or used for the benefit of, Indian tribes by the Western Area Power Administration; (B) the quantity of power sold to Indian tribes by any other power marketing admin- istration; and (C) barriers that impede tribal access to and use of Federal power, including an as- sessment of opportunities to remove those barriers and improve the ability of power marketing administrations to deliver Fed- eral power. (f) Authorization of appropriations There are authorized to be appropriated to carry out this section $750,000, non-reimburs- able, to remain available until expended. (Pub. L. 102–486, title XXVI, § 2605, as added Pub. L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat. 776.) Editorial Notes PRIOR PROVISIONS A prior section 3505, Pub. L. 102–486, title XXVI, § 2605, Oct. 24, 1992, 106 Stat. 3115; Pub. L. 103–437, § 10(e)(1), (2)(D), Nov. 2, 1994, 108 Stat. 4589, related to Indian En- ergy Resource Commission, prior to the general amend- ment of this chapter by Pub. L. 109–58. § 3506. Wind and hydropower feasibility study (a) Study The Secretary of Energy, in coordination with the Secretary of the Army and the Secretary, shall conduct a study of the cost and feasibility of developing a demonstration project that uses wind energy generated by Indian tribes and hy- dropower generated by the Army Corps of Engi- neers on the Missouri River to supply firming power to the Western Area Power Administra- tion. (b) Scope of study The study shall— (1) determine the economic and engineering feasibility of blending wind energy and hydro- power generated from the Missouri River dams operated by the Army Corps of Engineers, in- cluding an assessment of the costs and bene- fits of blending wind energy and hydropower compared to current sources used for firming power to the Western Area Power Administra- tion; (2) review historical and projected require- ments for, patterns of availability and use of, and reasons for historical patterns concerning the availability of firming power; (3) assess the wind energy resource potential on tribal land and projected cost savings through a blend of wind and hydropower over a 30-year period; (4) determine seasonal capacity needs and associated transmission upgrades for integra- tion of tribal wind generation and identify costs associated with these activities; (5) include an independent tribal engineer and a Western Area Power Administration