WASHINGTON, D.C. — The Bureau of Indian Affairs (BIA) is considering the first-ever Tribal Energy Resource Agreement (TERA), more than 20 years after the program became law.

A notice being published in the Federal Register on Thursday announces receipt of a TERA from the Southern Ute Tribe, headquartered in Colorado. According to the document, the tribe wants to be able to enter into energy-related leases, business agreements, and rights-of-way without seeking review from the BIA for each and every transaction.

“A TERA allows Tribes to enter and manage energy-related leases, business agreements, and rights-of-way on Tribal land under 25 CFR part 224,” the forthcoming notice reads.

According to the document, the TERA was submitted on January 30. The BIA must provide a decision to the tribe within 270 days, as required by 25 CFR part 224.

While the TERA is under consideration, the public can submit comments to the BIA. The comment period is open for 30 days following publication of the notice in the Federal Register on Thursday.

The notice was signed by Assistant Secretary for Indian Affairs Billy Kirkland, a political appointee of President Donald Trump. Speaking to the National Congress of American Indians executive council session in Washington, D.C, last week, he encouraged tribes to pursue “energy dominance and energy independence.”

“As many of you may know, Indian Country has over $1.5 trillion of untapped energy resources on our lands,” Kirkland, a citizen of the Navajo Nation, said on February 10. “Thirty percent of the known coal reserves west of the Mississippi are on Indian land, and 20 percent of the known oil and gas reserves are on Indian land.

“I also know that we don’t want to be a hindrance to developing those resources,” Kirkland continued. “If a tribe wants to utilize their land to develop these resources and create an economic opportunity for their their members, we don’t want to slow that down. We want to speed that up. So if there are ways that we are slowing that down, let us know.”

The Southern Ute Tribe is known as a leader in energy development. The effort began with mineral leases overseen by the federal government in the 1950s but the tribe believes true growth came after exercising more control over its own affairs starting in the 1980s.

“Through the use of federal self-determination policy, our tribe has learned that we can do a better job of developing programs and providing services to our members than federal agencies can,” Chairman Melvin J. Baker said in testimony to the House Subcommittee on Indian and Insular Affairs on September 28, 2023. “Conservation is fundamental to our Ute identity, and we have been proactive in overseeing the environmental protection of our lands while effectively managing our energy resources.”

Baker’s testimony focused on the TERA program, which was authorized by Congress more than 20 years ago through the Energy Policy Act of 2005. Despite considerable debate about the bill and subsequent law, no tribe up until now had ever submitted an agreement to the BIA, which is part of the Department of the Interior, the federal agency with the most trust and treaty responsibilities in Indian Country.

“Energy-producing tribes like the Southern Ute are still waiting for promised clarification regarding inherent federal functions,” Baker testified. “The lack of clarity on this item shows a disregard by the Interior for the ambiguous objectives of Congress. It also undermines the time, expense, and the lost opportunities associated with participating in the uncertain TERA process.”

Congress subsequently passed the Indian Tribal Energy Development and Self-Determination Act in 2018 to help clear up concerns. And the BIA issued new TERA regulations that became final in July 2021.

Still, it would take another five years before the first TERA would land on the desk of the BIA.

“I have worked with tribes for over three decades on both renewable energy and fossil fuel projects,” Rep. Teresa Leger Fernández (D-New Mexico), the highest-ranking Democrat on the House Subcommittee on Indian and Insular Affairs, said at the September 2023 hearing.

“I worked on trying to get one of those TERAs written and passed,” Leger Fernández said of her work as an attorney for tribal clients. “But throughout those decades, I always heard the same thing, tribes want and need to be in control of their projects.”

“Tribes have incredible opportunities for energy development, and when tribes are in control, we know they do a better job protecting their environment and cultural resources,” Leger Fernández added.

Congress is currently considering additional ways to remove federal hurdles from development in Indian Country. They include bills to allow tribes to enter into long-term leases and other agreements on their lands for up to 99 years.

“Our people have a very hard time finding affordable housing and otherwise making ends meet, and our tribe has had very few resources with which to develop a tribal economy to support them,” Chairman Brian Weeden of the Mashpee Wampanoag Tribe told the Senate Committee on Indian Affairs on December 17.

Known as S.236, the bill applies to the Weeden’s tribe and to the Aquinnah Wampanoag Tribe, both in Massachusetts. Congress has already approved similar measures for more than 50 other tribes, a goal supported by the Department of the Interior.

“The Department supports the authority for the tribes to enter into leases for 99 years as tribal governments are in the best position to determine the duration of such leases,” Trina Locke, the Directorate of Environmental and Natural Resources at the BIA, said in testimony for the Senate hearing in December.

At a business meeting on the same day, the committee approved S.3383, the Unlocking Native Lands and Opportunities for Commerce and Key Economic Developments Act. The bill, also known as the UNLOCKED Act, would apply to every tribe that chooses to enter into long-term leases and agreements on their lands

“In today’s economy, a 50-year lease is just often not long enough to secure financing for major infrastructure and economic development projects,” said Sen. Lisa Murkowski (R-Alaska), the chair of the committee.

“And it also doesn’t make sense for Congress to keep passing separate stand-alone bills for individual tribes,” said Murkowski. “We’ve already done that for about 60 tribes, and later today we’ll hear bills that would extend this authority to even more.”

In addition to taking testimony on S.236, the committee also heard S.1508, a bill addressing jurisdiction issues for the Shivwits Band of Paiutes in Utah. A provision in the measure extends the 99-year lease authority to the tribe.

The companion version of the long-term leasing bill in the U.S. House of Representatives is H.R.5910. The measure was approved by House Committee on Natural Resources on December 17 and awaits further action in the chamber.

“This is the committee where we strive to pass laws to uphold the federal government’s trust responsibility,” Rep. Leger Fernández, one of the Democratic leaders of the legislative panel, said at NCAI’s meeting last Tuesday.