The final version of the new Tribal Energy Resource Agreement regulations is out and the Osage Minerals Council is now on the clock.
“The Osage Minerals Council is going to have to make some decisions about what, if anything, they want to do,” council attorney Wilson Pipestem said.
Released in the Dec. 18 edition of the Federal Register, the new TERA regulations lay out parameters for tribes to pursue self-governance agreements for some or all of the services associated with energy development, including oil and gas drilling.
First approved in 2005, a TERA 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.
Published just hours before its regular December meeting, the council has not made any decision whether to pursue a TERA, in part because the regulations still do not include a definition as to what services are ineligible to be taken over by tribes. No definitive timetable has been set for when that list of inherently federal functions will be made available.
Citing both the Osage Nation constitution and a 2015 Osage Supreme Court ruling, the comments published with the regulations also explicitly state that the Minerals Council does not constitute a “tribal governing body” and would not have unilateral authority to change the scope of a TERA should one be pursued. Instead, both the executive branch and the Osage Nation Congress would have that authority.
At the council’s Dec. 18 meeting, Principal Chief Geoffrey Standing Bear advised the council that they would need to act quickly if interested in pursuing such an agreement in the next fiscal year, which starts on Oct. 1, 2020.
Without opposition, a resolution was approved to convene a meeting in January among the Executive Branch, the Osage Minerals Council and the Congress’ Land, Commerce and Economic Development Committee to discuss the possibility of pursuing a TERA and what that would look like for the Osage mineral estate.
“We need to know what your wishes are so we can prepare accordingly,” Principal Chief Standing Bear said. “This can’t be done halfway. This could be a huge step for the Osage.”
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 must act on TERA applications within 270 days and its trust obligations are not absolved should a tribe decide to pursue a TERA.