Tallgrass Institute Releases Tribal Benefit Agreements Report

New Research Examines Best Practices and Provides Historical Context for Designing Agreements with Tribal Nations in the U.S.

“As Tribes and companies grow in their focus on creating objective, measurable, enforceable agreements and on effective implementation, Tribal Benefit Agreements are better able to deliver on their promises.” –Tribal Benefit Agreements: Designing for Sovereignty

Benefit agreements designed with and by Tribes have increasingly centered Tribal nations’ priorities, which can maximize operational stability and long-term project success. However there remains a lack of knowledge and consistency throughout sectors and industries when designing agreements that center Tribes’ priorities and sovereignty.

Tallgrass Institute and Lepwe Inc. has published Tribal Benefit Agreements: Designing for Sovereignty to provide essential context and considerations for Tribal Benefit Agreements (TBAs) that respect self-determination and provide benefits in accordance with Native Peoples’ own goals.

The report – written by Kate R. Finn, Maranda Compton, and Melanie Matteliano, and produced with generous support from the 11th Hour Project – examines the complex legal and historical landscapes surrounding TBAs, gives key context for project development in the U.S., describes patterns and trends in the current uses, and shares best practices for companies and Tribes to support positive outcomes in negotiations and in agreements.

“Tribal Benefit Agreements have become increasingly utilized in the U.S., yet many successes and their mechanics remain unknown,” said Finn, Founder and Executive Director of Tallgrass Institute. “This report brings together available data and new interviews towards pathways that ensure Tribes have decision-making authority and full participation in agreements that align with sovereignty.”

The long history of agreements in Indian Country has been shaped by treaties and U.S. policy, which largely left negotiating functions in the hands of the federal government and often created inequity and even detrimental impacts. The report notes that “none of the laws passed during the removal and reservation or allotment and assimilation eras encouraged or focused on Tribal development – only on how Tribal consent and/or federal approval could be garnered or coerced by third parties coming into Indian Country to develop.”

Since the renaissance of Tribal self-determination in the late 20th Century, the private sector has increasingly recognized the capacity to decrease risks for projects that impacted Tribal lands, territories, communities, and resources by negotiating directly with Tribal nations. “In this new era, Tribal nations are negotiating for and receiving benefits that support their self-determined goals, and are evaluating project opportunities cumulatively and holistically to choose economic development opportunities that are a best fit for their communities, or to decline projects that are not aligned,” says the report.

As companies are increasingly seeing the value of fulsome Tribal partnerships, the TBA paradigm has shifted from risk mitigation towards meaningful collaboration. According to the report, “the driving factor underlying the shifts in TBA terms over time is the respect for Tribal sovereignty, allowing the economic, energy, and cultural priorities of Native nations to surface.” 

Compton – an attorney and founder of Lepwe Inc., a consulting boutique that advises Tribal Nations and non-Native entities in the development and permitting of energy and technology projects nationwide –  sees this trend as a new opportunity for durable partnership.

“Although it is becoming common practice for companies to negotiate directly with Tribes, a stronger understanding within the private sector of Tribal sovereignty and the history of shifting U.S. Indian policy is needed,” she said. “Only through the appropriate contextual lens can Tribal Nations and private entities craft agreements that understand and design for the unique differences, historical precedents, and innovations and opportunities that private-Tribal partnerships provide. In this report, we have gathered the key context and guiding principles that will aid Tribal Benefit Agreement designers.”

The report highlights case studies that look at successful benefit agreements with Tribes concerning land usage (e.g. right-of-way agreements), energy development, and infrastructure. These show how partnering with a Tribe in a way that respects sovereignty can create commercial and financial benefits, grow interest in Indigenous co-ownership models, and provide projects with increased chance for success and mutual benefit. One case study examines the long-term instability that occurs when projects “fail to acknowledge the history of policies or find mutual benefit for contemporary Tribal nations.”

Discussing the significant dearth of information and detail from benefit agreements made with Tribes in the U.S., Matteliano, Research Manager at Tallgrass Institute, shared gratitude to all who were involved with the report.

“Our research participants were aware of many more agreements with Tribal entities than what is available when searching public data,” she said. “In the U.S., it is rare for agreements to be announced publicly or for the entirety of their contents to be published. This report makes available agreement parameters, insights, and expertise where little has been collated.”  

As calls for partnerships with Indigenous Peoples on development projects increase — whether for energy and infrastructure development, or from land and resource usage – Tribal Benefit Agreements: Designing for Sovereignty provides companies and Tribes a critical overview to initiate, negotiate, and complete equitable and right-based agreement design. 

More from the report:

Tribal Benefit Agreements and Community Benefit Agreements

The term Tribal Benefit Agreements (TBAs) has become increasingly used for agreements made through meaningful engagement with Tribes for projects on Tribal lands and those within treaty lands and culturally significant areas. TBAs differ in significant ways from Community Benefit Agreements (CBAs) by recognizing Tribes as sovereign nations, acknowledging the history and contemporary contexts of how Tribal sovereigns exist in the U.S., and providing a broader scope for negotiation given the sovereign authority of Tribal nations. Companies and external parties must consider that TBAs require more than just federal, state, and local knowledge; they require knowledge of tribal regulatory, legal, and environmental policies.  

Tribal Benefit Agreements: Trends and Best Practices

Several positive trends have emerged with TBAs, such as agreements being made directly with Tribes, benefits designed to support the Tribal nation’s broader goals, evaluation of projects cumulatively and holistically, and companies seeing Tribal partnership as a real benefit to their project. Specifically, Tribes have seen more objective and enforceable agreements, more focus on implementation, integration of workforce and career development, direct payments and community development partnerships as additional benefits, and royalties based on revenue or volume of production.

Best practices for Tribes include the need to build consensus within the Tribe and to create safeguards when taking equity in projects. For companies, best practices are manifold:

• Prepare well in advance with research and seek education;
• Be transparent, clear, and honest/forthright;
• Allow ample time and resources for substantive engagement;
• Begin with community engagement that centers on learning Tribe’s goals, priorities and interests
• Obtain FPIC at the beginning of project and throughout its lifetime;
• Build and maintain good relationships – relationships that are multifaceted and include multiple points of contact with parity;
• Respect the option of not negotiating;
• Make Tribal nations’ position the starting point for negotiations;
• Work with an intermediary where useful;
• Ensure Tribe has access to good technical information and advice;
• Address accountability and make agreements that are objective, measurable and enforceable; and
• Meet commitments through effective design and implementation.

The process for engagement and designing TBAs will be “unique with each Tribal nation, and cannot be rushed–respect and relationship-building are paramount. It is essential for companies to start early and have regular internal updates so the project team is aware of the status of engagement and how it may impact project timelines and financing,” says the report.

FPIC and Tribal Benefit Agreements

The report discusses free, prior and informed consent (FPIC) as integral to the effectiveness of TBAs. FPIC safeguards equity in participation and decision-making, is an essential part of the negotiation process, and is a best practice to initiate engagements. In the U.S. legal context, consent is legally required in some situations, but in other situations, consultation is required instead of consent, which creates uncertainty for companies due to increased risks. By respecting FPIC, developers shift the paradigm towards Tribal sovereignty and self-determination – allowing TBAs to fully achieve their function as tools to provide clarity, stability, and equity.