The Osage Minerals Council’s recent decision to consider entering into a TERA has prompted questions about what exactly such an agreement would offer.
First approved in 2005, a Tribal Energy Resource Agreement between a tribe and the Department of Interior allows a tribe to review, approve and manage leases, business agreements and rights of way for energy development on tribal land without having to go through the Secretary of Interior every step of the way.
In December, the terms were amended as part of the Indian Tribal Energy Development and Self-Determination Act. Along with new provisions for biomass projects and hydroelectric licenses, the law explicitly directs the Department of Interior to provide technical support to tribes that are attempting to develop energy resource development programs. It also calls for the expansion of tribal management and planning programs under the Department of Energy.
If a TERA is signed, the Department of Interior would still be responsible for coordinating with the tribe regarding maintenance of real estate records and title status information needed to evaluate property for potential projects or right of way leases. Additionally, the language explicitly states that the federal government’s trust obligations are not absolved if a tribe agrees to pursue a TERA.
To date, no tribes have entered into a TERA, in large part due to questions over the scope of such an agreement’s regulations and how to take on costs for activities normally conducted by the federal government.
Thanks to the lack of participation and ongoing questions, Secretary of Interior for Indian Affairs Tara Sweeney has submitted amendments to section 225, part 224 of the Code of Federal Regulations, which oversees TERAs.
Should the secretarial draft be enacted, the Department of Interior would have 270 days to act on a TERA application. If no action is taken by the end of that waiting period, the TERA would automatically take effect as written.
The agreement would remain in effect until either the tribe cancels the agreement or the Department of Interior takes back the obligations listed in the agreement without the tribe’s consent. The latter is only allowed if it is confirmed that the tribe is either breaking federal law or putting trust assets in physical jeopardy and even then, the tribe must be notified in writing and given an opportunity to fix the situation before the federal government reassumes any services covered by the TERA.
Should a tribe choose to rescind a TERA, it has to be done in writing and would apply to all programs and services included within the agreement.
The BIA is accepting written feedback through Sept. 3 and the Osage Minerals Council has indicated that it will not draft a TERA until the final language is enacted later this year. The topic is also on the agenda for the Osage Shareholders Association’s Aug. 18 meeting, scheduled to start at 1 p.m. at Osage Casino Tulsa.
“We need to make sure people understand what a TERA is not,” Councilwoman Margo Gray said at the July 17 Osage Minerals Council meeting. “A TERA is not going to take away our headrights.”
The Osage Shareholder Association will have their quarterly meeting Aug. 18 at the Osage Casino & Hotel in Tulsa at 1 p.m. The main topic of the meeting is TERA with informational speakers.