Native American and Indian tribes hold a unique position in the United States, both as sovereign entities and as major stakeholders in the use and development of natural resources, including gas, oil, and land-use agreements. These rights are often governed by federal laws, treaties, and contracts, and one of the most significant economic benefits available to tribes is the ability to collect royalties from companies that extract resources from tribal lands. This blog post explores the types of royalties tribes are entitled to, whether there is a statutory audit right to ensure accurate payments, and how audits can ensure that royalties from these resources are correctly reported and paid.
Types of Royalties Tribes Are Entitled to Collect
Tribes often own substantial land and mineral resources, and they are entitled to various types of royalties based on their land's use for resource extraction, particularly oil, gas, and minerals. The types of royalties may vary depending on the nature of the resource and the specific agreements in place:
- Oil and Gas Royalties: Tribes can lease their lands for oil and gas production, and in return, they receive royalties from the revenue generated. These royalties are typically calculated as a percentage of the gross value of the extracted resources, usually ranging from 12.5% to 20%, depending on the agreement.
- Mineral Royalties: Similar to oil and gas royalties, tribes can receive payments for the extraction of minerals like coal, uranium, and precious metals. Mineral royalties can vary based on the resource, the method of extraction, and the negotiated lease terms.
- Land Use Royalties: Tribes may receive compensation for land use, such as grazing, forestry, and other surface activities. These royalties may be less substantial than those derived from mineral extraction but can still form an important revenue source.
- Renewable Energy Royalties: With the rise of renewable energy, some tribes are entering into agreements for wind, solar, and geothermal projects. These arrangements also typically include royalty payments based on the energy produced.
Federal Laws Governing Tribal Royalties
Tribal royalty rights are shaped by a complex framework of federal laws, regulations, and treaties, including:
- The Indian Mineral Leasing Act of 1938 (IMLA): IMLA gives tribes the right to lease their lands for mineral extraction, including oil and gas. The Act ensures that tribes benefit financially from their land and mineral resources. See link here for details.
- The Indian Tribal Energy Development and Self-Determination Act: This legislation allows tribes more control over energy projects on their lands, enabling them to negotiate royalty rates and terms directly. See link here for details.
- The Federal Oil and Gas Royalty Management Act (FOGRMA): FOGRMA ensures that accurate payments are made to tribes for oil and gas extracted from their lands. Under FOGRMA, the Department of the Interior oversees the collection and distribution of royalties owed to tribes. See link here for details.
Statutory Audit Rights for Tribes
FOGRMA also grants tribes the right to audit companies that lease their lands for resource extraction. Click here for a summary. This statutory audit right is critical for ensuring that royalty payments are accurate and fully reflect the terms of the lease. The act provides tribes with access to the records of lessees, enabling them to conduct audits and ensure compliance with the terms of the lease.
In addition to FOGRMA, many contracts between tribes and resource extraction companies include specific audit clauses, which give tribes the right to verify the accuracy of royalty payments. These clauses often specify the time frames, frequency, and scope of audits, allowing tribes to ensure that all production is accounted for.
How Audits Can Identify Amounts Owed to Tribes
Audits are an essential tool for tribes to claim royalty underpayments owed for the value of the resources extracted from their lands. See an example of public claims by clicking here. Forensic auditors with expertise in royalty, profit participation, and contract compliance can review a variety of records, including:
- Production Reports: Auditors verify that the volume of oil, gas, or minerals extracted matches the reported figures used to calculate royalty payments.
- Revenue Records: Auditors check whether the revenue reported by the lessee accurately reflects the sales price of the extracted resources.
- Deductions and Allowances: Some leases permit companies to deduct certain costs (such as transportation and processing) before calculating royalties. Auditors review these deductions to ensure they are appropriate and comply with the contract terms.
- Payments: Auditors compare payment records to the royalty statements provided to tribes, ensuring that payments are timely, accurate, and in accordance with the agreed-upon rates and/or minimums.
Conclusion
Native American and Indian tribes have significant rights to royalties derived from the use of their lands for resource extraction. Through federal laws like FOGRMA and contract-based audit rights, tribes can ensure that the companies extracting these resources pay what is owed. Forensic audits play a key role in verifying the accuracy of reported production and revenue, helping tribes protect their valuable resources and secure their economic interests.
A proactive approach, including regular audits, can help tribes assert their rights and ensure they receive full and accurate royalty payments. My firm Boschan Corp. provides this service. To clear conflicts and discuss your matter - please click here or call (424) 248-8866.
