TELGP - Code 25 USC 3502(c)

Page 801

Intergovernmental Personnel Act of 1970 [42
U.S.C. 4701 et seq.], may deem appropriate to
help ensure the success of such program.
(Pub. L. 102–477, § 18, Oct. 23, 1992, 106 Stat. 2306.)
REFERENCES IN TEXT
The Intergovernmental Personnel Act of 1970, referred to in text, is Pub. L. 91–648, Jan. 5, 1971, 84 Stat.
1909, as amended, which enacted sections 3371 to 3376 of
Title 5, Government Organization and Employees, and
chapter 62 (§ 4701 et seq.) of Title 42, The Public Health
and Welfare, amended section 1304 of Title 5 and section
246 of Title 42, repealed sections 1881 to 1888 of Title 7,
Agriculture, and section 869b of Title 20, Education,
and enacted provisions set out as notes under section
3371 of Title 5. For complete classification of this Act
to the Code, see Short Title note set out under section
4701 of Title 42 and Tables.

CHAPTER 37—INDIAN ENERGY
Sec.

3501.
3502.
3503.
3504.
3505.
3506.

§ 3501

TITLE 25—INDIANS

Definitions.
Indian tribal energy resource development.
Indian tribal energy resource regulation.
Leases, business agreements, and rights-ofway involving energy development or transmission.
Federal power marketing administrations.
Wind and hydropower feasibility study.
CODIFICATION

Title XXVI of the Energy Policy Act of 1992, comprising this chapter, was originally enacted by Pub. L.
102–486, title XXVI, Oct. 24, 1992, 106 Stat. 3113, and
amended by Pub. L. 103–437, Nov. 2, 1994, 108 Stat. 4581;
Pub. L. 105–388, Nov. 13, 1998, 112 Stat. 3477. Title XXVI
is shown herein, however, as having been added by Pub.
L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat. 764,
without reference to such intervening amendments because of the extensive revision of the title’s provisions
by Pub. L. 109–58.

§ 3501. Definitions
In this chapter:
(1) The term ‘‘Director’’ means the Director
of the Office of Indian Energy Policy and Programs, Department of Energy.
(2) The term ‘‘Indian land’’ means—
(A) any land located within the boundaries
of an Indian reservation, pueblo, or rancheria;
(B) any land not located within the boundaries of an Indian reservation, pueblo, or
rancheria, the title to which is held—
(i) in trust by the United States for the
benefit of an Indian tribe or an individual
Indian;
(ii) by an Indian tribe or an individual
Indian, subject to restriction against
alienation under laws of the United States;
or
(iii) by a dependent Indian community;
and
(C) land that is owned by an Indian tribe
and was conveyed by the United States to a
Native Corporation pursuant to the Alaska
Native Claims Settlement Act (43 U.S.C. 1601
et seq.), or that was conveyed by the United
States to a Native Corporation in exchange
for such land.
(3) The term ‘‘Indian reservation’’ includes—
(A) an Indian reservation in existence in
any State or States as of August 8, 2005;

(B) a public domain Indian allotment; and
(C) a dependent Indian community located
within the borders of the United States, regardless of whether the community is located—
(i) on original or acquired territory of
the community; or
(ii) within or outside the boundaries of
any State or States.
(4)(A) The term ‘‘Indian tribe’’ has the
meaning given the term in section 450b of this
title.
(B) For the purpose of paragraph (12) and
sections 3503(b)(1)(C) and 3504 of this title, the
term ‘‘Indian tribe’’ does not include any Native Corporation.
(5) The term ‘‘integration of energy resources’’ means any project or activity that
promotes the location and operation of a facility (including any pipeline, gathering system,
transportation system or facility, or electric
transmission or distribution facility) on or
near Indian land to process, refine, generate
electricity from, or otherwise develop energy
resources on, Indian land.
(6) The term ‘‘Native Corporation’’ has the
meaning given the term in section 3 of the
Alaska Native Claims Settlement Act (43
U.S.C. 1602).
(7) The term ‘‘organization’’ means a partnership, joint venture, limited liability company, or other unincorporated association or
entity that is established to develop Indian energy resources.
(8) The term ‘‘Program’’ means the Indian
energy resource development program established under section 3502(a) of this title.
(9) The term ‘‘Secretary’’ means the Secretary of the Interior.
(10) The term ‘‘sequestration’’ means the
long-term separation, isolation, or removal of
greenhouse gases from the atmosphere, including through a biological or geologic method
such as reforestation or an underground reservoir.
(11) The term ‘‘tribal energy resource development organization’’ means an organization
of two or more entities, at least one of which
is an Indian tribe, that has the written consent of the governing bodies of all Indian
tribes participating in the organization to
apply for a grant, loan, or other assistance
under section 3502 of this title.
(12) The term ‘‘tribal land’’ means any land
or interests in land owned by any Indian tribe,
title to which is held in trust by the United
States, or is subject to a restriction against
alienation under laws of the United States.
(Pub. L. 102–486, title XXVI, § 2601, as added Pub.
L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat.
764.)
REFERENCES IN TEXT
The Alaska Native Claims Settlement Act, referred
to in par. (2)(C), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat.
688, as amended, which is classified generally to chapter 33 (§ 1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short
Title note set out under section 1601 of Title 43 and
Tables.

§ 3502

TITLE 25—INDIANS
PRIOR PROVISIONS

A prior section 3501, Pub. L. 102–486, title XXVI, § 2601,
Oct. 24, 1992, 106 Stat. 3113, defined terms, prior to the
general amendment of this chapter by Pub. L. 109–58.
CONSULTATION WITH INDIAN TRIBES
Pub. L. 109–58, title V, § 504, Aug. 8, 2005, 119 Stat. 778,
provided that: ‘‘In carrying out this title [enacting this
chapter, section 7144e of Title 42, The Public Health and
Welfare, and subchapter V (§ 16001) of chapter 149 of
Title 42, amending section 4132 of this title and section
5315 of Title 5, Government Organization and Employees, and enacting provisions set out as a note under
section 15801 of Title 42] and the amendments made by
this title, the Secretary [of Energy] and the Secretary
of the Interior shall, as appropriate and to the maximum extent practicable, involve and consult with Indian tribes.’’

§ 3502. Indian tribal energy resource development
(a) Department of the Interior program
(1) To assist Indian tribes in the development
of energy resources and further the goal of Indian self-determination, the Secretary shall establish and implement an Indian energy resource development program to assist consenting Indian tribes and tribal energy resource development organizations in achieving the purposes of this chapter.
(2) In carrying out the Program, the Secretary
shall—
(A) provide development grants to Indian
tribes and tribal energy resource development
organizations for use in developing or obtaining the managerial and technical capacity
needed to develop energy resources on Indian
land, and to properly account for resulting energy production and revenues;
(B) provide grants to Indian tribes and tribal
energy resource development organizations for
use in carrying out projects to promote the integration of energy resources, and to process,
use, or develop those energy resources, on Indian land;
(C) provide low-interest loans to Indian
tribes and tribal energy resource development
organizations for use in the promotion of energy resource development on Indian land and
integration of energy resources; and
(D) provide grants and technical assistance
to an appropriate tribal environmental organization, as determined by the Secretary, that
represents multiple Indian tribes to establish
a national resource center to develop tribal
capacity to establish and carry out tribal environmental programs in support of energy-related programs and activities under this chapter, including—
(i) training programs for tribal environmental officials, program managers, and
other governmental representatives;
(ii) the development of model environmental policies and tribal laws, including
tribal environmental review codes, and the
creation and maintenance of a clearinghouse
of best environmental management practices; and
(iii) recommended standards for reviewing
the implementation of tribal environmental
laws and policies within tribal judicial or
other tribal appeals systems.

Page 802

(3) There are authorized to be appropriated to
carry out this subsection such sums as are necessary for each of fiscal years 2006 through 2016.
(b) Department of Energy Indian energy education planning and management assistance
program
(1) The Director shall establish programs to
assist consenting Indian tribes in meeting energy education, research and development, planning, and management needs.
(2) In carrying out this subsection, the Director may provide grants, on a competitive basis,
to an Indian tribe or tribal energy resource development organization for use in carrying out—
(A) energy, energy efficiency, and energy
conservation programs;
(B) studies and other activities supporting
tribal acquisitions of energy supplies, services,
and facilities, including the creation of tribal
utilities to assist in securing electricity to
promote electrification of homes and businesses on Indian land;
(C) planning, construction, development, operation, maintenance, and improvement of
tribal electrical generation, transmission, and
distribution facilities located on Indian land;
and
(D) development, construction, and interconnection of electric power transmission facilities located on Indian land with other electric transmission facilities.
(3)(A) The Director shall develop a program to
support and implement research projects that
provide Indian tribes with opportunities to participate in carbon sequestration practices on Indian land, including—
(i) geologic sequestration;
(ii) forest sequestration;
(iii) agricultural sequestration; and
(iv) any other sequestration opportunities
the Director considers to be appropriate.
(B) The activities carried out under subparagraph (A) shall be—
(i) coordinated with other carbon sequestration research and development programs conducted by the Secretary of Energy;
(ii) conducted to determine methods consistent with existing standardized measurement
protocols to account and report the quantity
of carbon dioxide or other greenhouse gases sequestered in projects that may be implemented on Indian land; and
(iii) reviewed periodically to collect and distribute to Indian tribes information on carbon
sequestration practices that will increase the
sequestration of carbon without threatening
the social and economic well-being of Indian
tribes.
(4)(A) The Director, in consultation with Indian tribes, may develop a formula for providing
grants under this subsection.
(B) In providing a grant under this subsection,
the Director shall give priority to any application received from an Indian tribe with inadequate electric service (as determined by the Director).
(C) In providing a grant under this subsection
for an activity to provide, or expand the provision of, electricity on Indian land, the Director

Page 803

§ 3503

TITLE 25—INDIANS

shall encourage cooperative arrangements between Indian tribes and utilities that provide
service to Indian tribes, as the Director determines to be appropriate.
(5) The Secretary of Energy may issue such
regulations as the Secretary determines to be
necessary to carry out this subsection.
(6) There is authorized to be appropriated to
carry out this subsection $20,000,000 for each of
fiscal years 2006 through 2016.
(c) Department of Energy loan guarantee program
(1) Subject to paragraphs (2) and (4), the Secretary of Energy may provide loan guarantees
(as defined in section 661a of title 2) for an
amount equal to not more than 90 percent of the
unpaid principal and interest due on any loan
made to an Indian tribe for energy development.
(2) In providing a loan guarantee under this
subsection for an activity to provide, or expand
the provision of, electricity on Indian land, the
Secretary of Energy shall encourage cooperative
arrangements between Indian tribes and utilities that provide service to Indian tribes, as the
Secretary determines to be appropriate.
(3) A loan guarantee under this subsection
shall be made by—
(A) a financial institution subject to examination by the Secretary of Energy; or
(B) an Indian tribe, from funds of the Indian
tribe.
(4) The aggregate outstanding amount guaranteed by the Secretary of Energy at any time
under this subsection shall not exceed
$2,000,000,000.
(5) The Secretary of Energy may issue such
regulations as the Secretary of Energy determines are necessary to carry out this subsection.
(6) There are authorized to be appropriated
such sums as are necessary to carry out this
subsection, to remain available until expended.
(7) Not later than 1 year after August 8, 2005,
the Secretary of Energy shall submit to Congress a report on the financing requirements of
Indian tribes for energy development on Indian
land.
(d) Preference
(1) In purchasing electricity or any other energy product or byproduct, a Federal agency or
department may give preference to an energy
and resource production enterprise, partnership,
consortium, corporation, or other type of business organization the majority of the interest in
which is owned and controlled by 1 or more Indian tribes.
(2) In carrying out this subsection, a Federal
agency or department shall not—
(A) pay more than the prevailing market
price for an energy product or byproduct; or
(B) obtain less than prevailing market terms
and conditions.
(Pub. L. 102–486, title XXVI, § 2602, as added Pub.
L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat.
765.)

was translated as meaning the date of enactment of
Pub. L. 109–58, which amended this chapter generally,
to reflect the probable intent of Congress.
PRIOR PROVISIONS
A prior section 3502, Pub. L. 102–486, title XXVI, § 2602,
Oct. 24, 1992, 106 Stat. 3113, related to tribal consultation in implementing provisions, prior to the general
amendment of this chapter by Pub. L. 109–58.

§ 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 section 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 infrastructure to protect the environment under
applicable law; or
(D) by a Native Corporation for the development and implementation of corporate policies and the development of technical infrastructure to protect the environment under
applicable law; and
(2) by an Indian tribe for the training of employees that—
(A) are engaged in the development of energy resources on Indian land; or
(B) are responsible for protecting the environment.
(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, the Indian tribe
shall have available scientific and technical information and expertise, for use in the regulation, development, 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 officials; or
(B) indirectly, by providing financial assistance to an Indian tribe to secure independent
assistance.
(Pub. L. 102–486, title XXVI, § 2603, as added Pub.
L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat.
768.)

CODIFICATION

PRIOR PROVISIONS

August 8, 2005, referred to in subsec. (c)(7), was in the
original ‘‘the date of enactment of this section’’, which

A prior section 3503, Pub. L. 102–486, title XXVI, § 2603,
Oct. 24, 1992, 106 Stat. 3114; Pub. L. 105–388, § 10, Nov. 13,

§ 3504

TITLE 25—INDIANS

1998, 112 Stat. 3484, related to promotion of energy resource development and energy vertical integration on
Indian reservations, prior to the general amendment of
this chapter by Pub. L. 109–58.

§ 3504. Leases, business agreements, and rightsof-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, processing of, or other development of the energy
mineral resources of the Indian tribe located
on tribal land; or
(B) construction or operation of—
(i) an electric generation, transmission,
or distribution facility located on tribal
land; or
(ii) a facility to process or refine energy
resources developed on tribal land; 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, if—
(A) the lease or business agreement is executed pursuant to a tribal energy resource
agreement approved by the Secretary under
subsection (e);
(B) the term of the lease or business agreement does not exceed—
(i) 30 years; or
(ii) in the case of a lease for the production of oil resources, gas resources, or
both, 10 years and as long thereafter as oil
or gas is produced in paying quantities;
and
(C) the Indian tribe has entered into a tribal energy resource agreement with the Secretary, as described in subsection (e), relating to the development of energy resources
on tribal land (including the periodic review
and evaluation of the activities of the Indian
tribe under the agreement, to be conducted
pursuant to subsection (e)(2)(D)(i)).
(b) Rights-of-way for pipelines or electric transmission or distribution lines
An Indian tribe may grant a right-of-way over
tribal land for a pipeline or an electric transmission or distribution line without review or
approval by the Secretary if—
(1) the right-of-way is executed in accordance with a tribal energy resource agreement
approved by the Secretary under subsection
(e);
(2) the term of the right-of-way does not exceed 30 years;
(3) the pipeline or electric transmission or
distribution line serves—
(A) an electric generation, transmission,
or distribution facility located on tribal
land; or
(B) a facility located on tribal land that
processes or refines energy resources developed on tribal land; and

Page 804

(4) the Indian tribe has entered into a tribal
energy resource agreement with the Secretary, as described in subsection (e), relating
to the development of energy resources on
tribal land (including the periodic review and
evaluation of the activities of the Indian tribe
under an agreement described in subparagraphs (D) and (E) of subsection (e)(2)).
(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, business agreement, 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 approved by the Secretary under subsection (e)(2).
(e) Tribal energy resource agreements
(1) 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 agreement governing leases,
business agreements, and rights-of-way under
this section.
(2)(A) Not later than 270 days after the date on
which the Secretary receives a tribal energy resource agreement from an Indian tribe under
paragraph (1), or not later than 60 days after the
Secretary receives a revised tribal energy resource agreement 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.
(B) The Secretary shall approve a tribal energy resource agreement submitted under paragraph (1) if—
(i) the Secretary determines that the Indian
tribe has demonstrated that the Indian tribe
has sufficient capacity to regulate the development of energy resources of the Indian
tribe;
(ii) the tribal energy resource agreement includes provisions required under subparagraph
(D); and
(iii) the tribal energy resource agreement includes provisions that, with respect to a lease,
business agreement, or right-of-way under this
section—
(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 agreement or the term of conveyance of
the right-of-way;
(III) address amendments and renewals;
(IV) address the economic return to the Indian tribe under leases, business agreements,
and rights-of-way;
(V) address technical or other relevant requirements;
(VI) establish requirements for environmental review in accordance with subparagraph (C);
(VII) ensure compliance with all applicable
environmental laws, including a require-

Page 805

TITLE 25—INDIANS

ment that each lease, business agreement,
and right-of-way state that the lessee, operator, or right-of-way grantee shall comply
with all such laws;
(VIII) identify final approval authority;
(IX) provide for public notification of final
approvals;
(X) establish a process for consultation
with any affected States regarding off-reservation impacts, if any, identified under
subparagraph (C)(i);
(XI) describe the remedies for breach of
the lease, business agreement, or right-ofway;
(XII) require each lease, business agreement, and right-of-way to include a statement that, if any of its provisions violates
an express term or requirement of the tribal
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, business
agreement, or right-of-way or take other
appropriate action that the Secretary determines to be in the best interest of the
Indian tribe;
(XIII) require each lease, business agreement, 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 regulations
promulgated under paragraph (8);
(XIV) include citations to tribal laws, regulations, or procedures, if any, that set out
tribal remedies that must be exhausted before a petition may be submitted to the Secretary under paragraph (7)(B);
(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 agreement, including environmental review of individual
projects; and
(XVI) in accordance with the regulations
promulgated by the Secretary under paragraph (8), require that the Indian tribe, as
soon as practicable after receipt of a notice
by the Indian tribe, give written notice 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 entered into under the tribal energy resource
agreement; and
(bb) any activity or occurrence under a
lease, business agreement, or right-of-way
that constitutes a violation of Federal or
tribal environmental laws.
(C) Tribal energy resource agreements submitted under paragraph (1) shall establish, and include provisions to ensure compliance with, an
environmental review process that, with respect
to a lease, business agreement, or right-of-way
under this section, provides for, at a minimum—
(i) the identification and evaluation of all
significant environmental effects (as com-

§ 3504

pared to a no-action alternative), including effects on cultural resources;
(ii) the identification of proposed mitigation
measures, if any, and incorporation of appropriate mitigation measures into the lease,
business agreement, or right-of-way;
(iii) a process for ensuring that—
(I) the public is informed of, and has an opportunity to comment on, the environmental impacts of the proposed action; and
(II) responses to relevant and substantive
comments are provided, before tribal approval of the lease, business agreement, or
right-of-way;
(iv) sufficient administrative support and
technical capability to carry out the environmental review process; and
(v) oversight by the Indian tribe of energy
development activities by any other party
under any lease, business agreement, or rightof-way entered into pursuant to the tribal energy resource agreement, to determine whether the activities are in compliance with the
tribal energy resource agreement and applicable Federal environmental laws.
(D) A tribal energy resource agreement between 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 development
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 provided by
the Indian tribe to the Secretary in accordance with subparagraph (B)(iii)(XVI), results
in a finding by the Secretary of imminent
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, including reassumption of
responsibility for activities associated with
the development of energy resources on tribal
land until the violation and any condition
that caused the jeopardy are corrected.
(E) Periodic review and evaluation under subparagraph (D) shall be conducted on an annual
basis, except that, after the third annual 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.
(3) The Secretary shall provide notice and opportunity for public comment on tribal energy
resource agreements submitted for approval
under paragraph (1). The Secretary’s review of a
tribal energy resource agreement shall be limited to activities specified by the provisions of
the tribal energy resource agreement.
(4) 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—

§ 3504

TITLE 25—INDIANS

(A) notify the Indian tribe in writing of the
basis for the disapproval;
(B) identify what changes or other actions
are required to address the concerns of the
Secretary; and
(C) provide the Indian tribe with an opportunity to revise and resubmit the tribal energy resource agreement.
(5) If an Indian tribe executes a lease or business agreement, or grants a right-of-way, in accordance with a tribal energy resource agreement approved under this subsection, the Indian
tribe shall, in accordance with the process and
requirements 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 document); 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 sufficient to enable the Secretary to discharge the
trust responsibility of the United States to enforce the terms of, and protect the rights of
the Indian tribe under, the lease, business
agreement, or right-of-way.
(6)(A) In carrying out this section, the Secretary shall—
(i) act in accordance with the trust responsibility of the United States relating to mineral and other trust resources; and
(ii) act in good faith and in the best interests of the Indian tribes.
(B) Subject to the provisions of subsections
(a)(2), (b), and (c) waiving the requirement of
Secretarial approval of leases, business agreements, and rights-of-way executed pursuant to
tribal energy resource agreements approved
under this section, and the provisions of subparagraph (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 derive from the trust relationship or from any treaties, statutes, and
other laws of the United States, Executive orders, or agreements between the United States
and any Indian tribe.
(C) The Secretary shall continue to fulfill the
trust obligation of the United States 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 applicable
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 tribal energy resource agreement pursuant to which
the lease, business agreement, or right-of-way
was executed.
(D)(i) In this subparagraph, the term ‘‘negotiated term’’ means any term or provision that
is negotiated by an Indian tribe and any other
party to a lease, business agreement, or right-ofway entered into pursuant to an approved tribal
energy resource agreement.

Page 806

(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 negotiated terms of, a lease, business agreement, or
right-of-way executed pursuant to and in accordance with a tribal energy resource agreement approved by the Secretary under paragraph (2).
(7)(A) In this paragraph, the term ‘‘interested
party’’ means any person (including an entity)
that has demonstrated 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 comply with a tribal energy
resource agreement of the Indian tribe approved
by the Secretary under paragraph (2).
(B) After exhaustion of any tribal remedy, and
in accordance with regulations promulgated by
the Secretary under paragraph (8), an interested
party may submit to the Secretary a petition to
review the compliance by an Indian tribe with a
tribal energy resource agreement of the Indian
tribe approved by the Secretary under paragraph (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 Indian 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 petition within a reasonable period, as determined
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
whether the Indian tribe is not in compliance
with the tribal energy resource agreement.
(ii) The Secretary may adopt procedures under
paragraph (8) authorizing an extension of time,
not to exceed 120 days, for making the determination under clause (i) in any case in which
the Secretary determines that additional time is
necessary to evaluate the allegations of the petition.
(iii) Subject to subparagraph (E), if the Secretary determines that the Indian tribe is not in
compliance with the tribal energy resource
agreement, the Secretary shall take such action
as the Secretary determines to be necessary to
ensure compliance with the tribal energy resource agreement, including—
(I) temporarily suspending any activity
under a lease, business agreement, or right-ofway under this section until the Indian tribe is

Page 807

§ 3505

TITLE 25—INDIANS

in compliance with the approved tribal energy
resource agreement; or
(II) rescinding approval of all or part of the
tribal energy resource agreement, and if all of
the agreement is rescinded, reassuming the responsibility for approval of any future leases,
business agreements, or rights-of-way described in subsection (a) or (b).
(E) Before taking an action described in subparagraph (D)(iii), the Secretary shall—
(i) make a written determination that describes the manner in which 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 attain
compliance with the tribal energy resource
agreement.
(F) An Indian tribe described in subparagraph
(E) shall retain all rights to appeal under any
regulation promulgated by the Secretary.
(8) Not later than 1 year after August 8, 2005,
the Secretary shall promulgate regulations that
implement this subsection, including—
(A) criteria to be used in determining the capacity of an Indian tribe under paragraph
(2)(B)(i), including the experience of the Indian
tribe in managing natural resources and financial and administrative resources available for
use by the Indian tribe in implementing the
approved tribal energy resource agreement of
the Indian tribe;
(B) a process and requirements in accordance with which an Indian tribe may—
(i) voluntarily rescind a tribal energy resource agreement approved by the Secretary
under this subsection; and
(ii) return to the Secretary the responsibility to approve any future lease, business
agreement, or right-of-way under this subsection;
(C) provisions establishing the scope of, and
procedures for, the periodic review and evaluation 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 determines to be appropriate; and
(D) provisions describing final agency actions after exhaustion of administrative appeals from determinations of the Secretary
under paragraph (7).
(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 Reclamation Act of 1977 (30 U.S.C. 1201 et seq.); or
(3) except as otherwise provided in this chapter, the Indian Mineral Development Act of
1982 (25 U.S.C. 2101 et seq.).
(g) 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 appropriate assistance to Indian tribes to assist
the Indian tribes in developing and implementing 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.)
REFERENCES IN TEXT
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, as amended, 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.
PRIOR PROVISIONS
A prior section 3504, Pub. L. 102–486, title XXVI, § 2604,
Oct. 24, 1992, 106 Stat. 3114, related to Indian energy resource regulation, prior to the general amendment of
this chapter by Pub. L. 109–58.

§ 3505. Federal power marketing administrations
(a) Definitions
In this section:
(1) The term ‘‘Administrator’’ means the Administrator of the Bonneville Power Administration and the Administrator of the Western
Area Power Administration.
(2) The term ‘‘power marketing administration’’ means—
(A) the Bonneville Power Administration;
(B) the Western Area Power Administration; 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 development
Each Administrator shall encourage Indian
tribal energy development by taking such actions as the Administrators determine to be appropriate, including administration of programs
of the power marketing administration, in accordance 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 Indian-owned energy projects on Indian land;
(3) the Administrator of the Western Area
Power Administration may purchase non-federally generated power from Indian tribes to
meet the firming and reserve requirements of
the Western Area Power Administration; and

§ 3506

TITLE 25—INDIANS

(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 nonreimbursable funds appropriated for that purpose; 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 Federal power allocations of the power marketing
administration (or power sold by the Southwestern 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 administration; and
(C) barriers that impede tribal access to
and use of Federal power, including an assessment of opportunities to remove those
barriers and improve the ability of power
marketing administrations to deliver Federal power.
(f) Authorization of appropriations
There are authorized to be appropriated to
carry out this section $750,000, non-reimbursable, 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.)
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 Energy Resource Commission, prior to the general amendment 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 hydropower generated by the Army Corps of Engineers on the Missouri River to supply firming
power to the Western Area Power Administration.
(b) Scope of study
The study shall—
(1) determine the economic and engineering
feasibility of blending wind energy and hydro-

Page 808

power generated from the Missouri River dams
operated by the Army Corps of Engineers, including an assessment of the costs and benefits of blending wind energy and hydropower
compared to current sources used for firming
power to the Western Area Power Administration;
(2) review historical and projected requirements 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 integration of tribal wind generation and identify
costs associated with these activities;
(5) include an independent tribal engineer
and a Western Area Power Administration
customer representative as study team members; and
(6) incorporate, to the extent appropriate,
the results of the Dakotas Wind Transmission
study prepared by the Western Area Power Administration.
(c) Report
Not later than 1 year after August 8, 2005, the
Secretary of Energy, the Secretary, and the Secretary of the Army shall submit to Congress a
report that describes the results of the study, including—
(1) an analysis and comparison of the potential energy cost or benefits to the customers
of the Western Area Power Administration
through the use of combined wind and hydropower;
(2) an economic and engineering evaluation
of whether a combined wind and hydropower
system can reduce reservoir fluctuation, enhance efficient and reliable energy production,
and provide Missouri River management flexibility;
(3) if found feasible, recommendations for a
demonstration project to be carried out by the
Western Area Power Administration, in partnership with an Indian tribal government or
tribal energy resource development organization, and Western Area Power Administration
customers to demonstrate the feasibility and
potential of using wind energy produced on Indian land to supply firming energy to the
Western Area Power Administration; and
(4) an identification of—
(A) the economic and environmental costs
of, or benefits to be realized through, a Federal-tribal-customer partnership; and
(B) the manner in which a Federal-tribalcustomer partnership could contribute to
the energy security of the United States.
(d) Funding
(1) Authorization of appropriations
There is authorized to be appropriated to
carry out this section $1,000,000, to remain
available until expended.
(2) Nonreimbursability
Costs incurred by the Secretary in carrying
out this section shall be nonreimbursable.

Page 809

TITLE 25—INDIANS

(Pub. L. 102–486, title XXVI, § 2606, as added Pub.
L. 109–58, title V, § 503(a), Aug. 8, 2005, 119 Stat.
777.)
PRIOR PROVISIONS
A prior section 3506, Pub. L. 102–486, title XXVI, § 2606,
Oct. 24, 1992, 106 Stat. 3118, related to tribal government
energy assistance program, prior to the general amendment of this chapter by Pub. L. 109–58.

CHAPTER 38—INDIAN TRIBAL JUSTICE
SUPPORT
Sec.

3601.
Findings.
3602.
Definitions.
SUBCHAPTER I—TRIBAL JUSTICE SYSTEMS
3611.
3612.
3613.
3614.

Office of Tribal Justice Support.
Survey of tribal judicial systems.
Base support funding for tribal justice systems.
Tribal judicial conferences.
SUBCHAPTER II—AUTHORIZATIONS OF
APPROPRIATIONS

3621.

Tribal justice systems.
SUBCHAPTER III—DISCLAIMERS

3631.

Tribal authority.

§ 3601. Findings
The Congress finds and declares that—
(1) there is a government-to-government relationship between the United States and each
Indian tribe;
(2) the United States has a trust responsibility to each tribal government that includes
the protection of the sovereignty of each tribal government;
(3) Congress, through statutes, treaties, and
the exercise of administrative authorities, has
recognized the self-determination, self-reliance, and inherent sovereignty of Indian
tribes;
(4) Indian tribes possess the inherent authority to establish their own form of government,
including tribal justice systems;
(5) tribal justice systems are an essential
part of tribal governments and serve as important forums for ensuring public health and
safety and the political integrity of tribal governments;
(6) Congress and the Federal courts have repeatedly recognized tribal justice systems as
the appropriate forums for the adjudication of
disputes affecting personal and property
rights;
(7) traditional tribal justice practices are essential to the maintenance of the culture and
identity of Indian tribes and to the goals of
this chapter;
(8) tribal justice systems are inadequately
funded, and the lack of adequate funding impairs their operation; and
(9) tribal government involvement in and
commitment to improving tribal justice systems is essential to the accomplishment of the
goals of this chapter.
(Pub. L. 103–176, § 2, Dec. 3, 1993, 107 Stat. 2004.)
SHORT TITLE
Section 1 of Pub. L. 103–176 provided that: ‘‘This Act
[enacting this chapter] may be cited as the ‘Indian
Tribal Justice Act’.’’

§ 3611

§ 3602. Definitions
For purposes of this chapter:
(1) The term ‘‘Bureau’’ means the Bureau of
Indian Affairs of the Department of the Interior.
(2) The term ‘‘Courts of Indian Offenses’’
means the courts established pursuant to part
11 of title 25, Code of Federal Regulations.
(3) The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, pueblo, or other organized group or community, including any
Alaska Native entity, which administers justice under its inherent authority or the authority of the United States and which is recognized as eligible for the special programs
and services provided by the United States to
Indian tribes because of their status as Indians.
(4) The term ‘‘judicial personnel’’ means any
judge, magistrate, court counselor, court
clerk, court administrator, bailiff, probation
officer, officer of the court, dispute resolution
facilitator, or other official, employee, or volunteer within the tribal justice system.
(5) The term ‘‘Office’’ means the Office of
Tribal Justice Support within the Bureau of
Indian Affairs.
(6) The term ‘‘Secretary’’ means the Secretary of the Interior.
(7) The term ‘‘tribal organization’’ means
any organization defined in section 450b(l) of
this title.
(8) The term ‘‘tribal justice system’’ means
the entire judicial branch, and employees
thereof, of an Indian tribe, including (but not
limited to) traditional methods and forums for
dispute resolution, lower courts, appellate
courts (including intertribal appellate courts),
alternative dispute resolution systems, and
circuit rider systems, established by inherent
tribal authority whether or not they constitute a court of record.
(Pub. L. 103–176, § 3, Dec. 3, 1993, 107 Stat. 2004.)
SUBCHAPTER I—TRIBAL JUSTICE SYSTEMS
§ 3611. Office of Tribal Justice Support
(a) Establishment
There is hereby established within the Bureau
the Office of Tribal Justice Support. The purpose of the Office shall be to further the development, operation, and enhancement of tribal justice systems and Courts of Indian Offenses.
(b) Transfer of existing functions and personnel
All functions performed before December 3,
1993, by the Branch of Judicial Services of the
Bureau and all personnel assigned to such
Branch as of December 3, 1993, are hereby transferred to the Office of Tribal Justice Support.
Any reference in any law, regulation, executive
order, reorganization plan, or delegation of authority to the Branch of Judicial Services is
deemed to be a reference to the Office of Tribal
Justice Support.
(c) Functions
In addition to the functions transferred to the
Office pursuant to subsection (b) of this section,
the Office shall perform the following functions: