On Jan. 29, the Osage Minerals Council authorized legal counsel to research the pros and cons of contracting or compacting (PL 93-638) the Bureau of Indian Affairs Minerals Branch, including the legal processes involved in such an effort. Following an assessment and evaluation, the Minerals Council was to then decide whether or not to proceed in contracting administrative control of the BIA Minerals Branch.
Accordingly, the OMC determined it not to be in the best interest of the Osage Minerals Estate nor the annuitants to contract or compact the B.I.A. Minerals Branch. The Council members I spoke with said that contracting the minerals branch could weaken the trust relationship. Further, according to legal counsel, there are no provisions under PL 93-638 allowing tribes to assume responsibility for approving oil and gas leases.
There are provisions whereby tribes can be authorized to approve mineral lease agreements. This authority must be obtained through entering into a Tribal Energy Resource Agreement (TERA). The provision, TERA, was brought about by an amendment of the Energy Policy Act of 2005 requiring, “that the U.S. Department of the Interior (DOI) establish a process by which a tribe can obtain a Tribal Energy Resource Agreement (TERA) granting authority to the tribe to review, approve, and manage leases, business agreements, and rights-of-way for energy development on tribal lands.”
Not one tribe has entered into a Tribal Energy Resource Agreement. It is my understanding, through the OMC, that the costs are too prohibitive, and the requirements are too complex. One-hundred percent failure on the part of Interior to gain program participation, and to make offers which could be reasonably accepted is perplexing. It would seem almost impossible to have 100 percent failure. Programs usually accomplish at least part of what they were designed to do. Were they designed to fail? If they were designed to fail, can it be said that the design was successful, but the program failed?
There is nothing written in PL 93-638 legislation that weakens the trust responsibility. However, experience continues to teach that government responsibilities can and sometimes may be sidestepped when and if possible. Granting authority to the Tribe, rather than to the Secretary, for reviewing, approving, and managing leases, for energy development may prompt false claims by the Government of “not responsible”. Authorizing minerals program oversight could provide the perfect red herring for Government to run through their tangled machinations during any future damage claims.