Pursuant to the federal trust responsibility and various federal statutes, the Department of the Interior (DOI) and federally recognized Tribes (hereinafter Tribes) manage energy production on tribal lands. The federal trust responsibility is a legal obligation under which the United States, through both acts of Congress and court decisions, “has charged itself with moral obligations of the highest responsibility and trust” toward Tribes. Federal statutes generally require DOI (as delegated to the Bureau of Indian Affairs [BIA]) approval and oversight of tribal energy resources development on tribal lands. BIA often reviews and approves surface and subsurface leases, drilling permits, rights-of-way, cultural resources surveys, and environmental studies and surveys related to tribal energy development. The Bureau of Land Management and other DOI bureaus typically manage operational aspects of energy development. Certain Tribes have successfully developed energy and mineral resources on tribal lands. In FY2025, DOI reported that tribal lands produced about 373 million cubic feet of natural gas, about 73 million barrels of oil, and more than 4 million tons of coal. Yet some Tribes have expressed concern that federal approval processes are barriers to energy development. For example, some Tribes have testified that the approval process for tribal energy development is cumbersome, involves too many federal agencies, and takes too long. To address these tribal concerns, in 2005, Congress passed the Indian Tribal Energy Development and Self-Determination Act (ITEDSA 2005; P.L. 109-58, Title V). Among other provisions, ITEDSA 2005 allows Tribes to enter into tribal energy resource agreements (TERAs) with the Secretary of the Interior (hereinafter Secretary). If the Secretary approves a TERA, a Tribe can enter into leases, business agreements, or rights-of-way to develop energy resources on tribal land without requiring the Secretary’s review and approval for each lease, business agreement, or right-of-way. TERAs therefore offer Tribes increased administrative and regulatory control over tribal energy projects. After proposals to clarify and simplify the TERA process were considered 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. In 2019, DOI amended the 2008 TERA regulations. Congress and others continue to deliberate the implementation of the TERA authority. A handful of Tribes have initiated the process of entering into a TERA; to date, DOI has approved one TERA. In May 2026, DOI approved the first-ever TERA agreement, from the Southern Ute Indian Tribe. Common concerns reportedly inhibiting Tribes from entering into TERAs include ambiguity surrounding the criteria for reviewing TERA applications, the scope of activities in a TERA, time frames for processing TERA applications, and financial assistance for TERA implementation. For example, ITEDSA 2017 allows a Tribe to identify in a TERA application what operation and development functions it will assume from the federal government as long as they are not inherently federal functions. However, neither ITEDSA 2017 nor its implementing regulations specify the functions considered to be inherently federal. One specific source of ambiguity is the difference between the TERA statute (ITEDSA 2017) and DOI’s implementing regulations (2019 TERA regulations). For example, ITEDSA 2017 amended the process for approving a TERA to make it less complex; however, the 2019 TERA regulations maintained many of the old process requirements. In addition, before submitting a TERA application, the regulations (but not the statute) require Tribes to request a “pre-application consultation” in writing to the Secretary. Similarly, the regulations indicate that DOI does not necessarily consider a submitted TERA application to be complete but does not explicitly define the term complete application. Finally, ITEDSA 2017 and the 2019 TERA regulations direct the Secretary to provide a requesting Tribe the amounts the Secretary otherwise would expend to carry out a federal activity on the Tribe’s behalf. However, despite ITEDSA 2017’s direction to DOI to address the calculation of these amounts in regulations, the 2019 TERA regulations do not include a formula.
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