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.
Tribal Benefit Agreement: 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.’
Downloaded the TBA report here.
Tallgrass Institute is a Center for Indigenous Economic Stewardship. The Institute creates pathways between Indigenous leaders and investors to ensure respect for Indigenous Peoples’ rights – including their rights to self-determination and free, prior and informed consent (FPIC) – in development projects that impact Indigenous lands and communities. By centering Indigenous Peoples’ power, participation, and self-determination, we integrate Indigenous priorities and perspectives to solve for today’s most pressing global challenges.