Input from Tribes Sought on Proposed Revisions to BIA Regulations for Leases and Permits on Indian Land

On February 15, 2011, the Department of the Interior sent a “Dear Tribal Leader” letter, signed by Principal Deputy Assistant Secretary – Indian Affairs Del Laverdure, announcing a preliminary draft of proposed revisions to the regulations governing leases and permits on Indian lands, codified at 25 CFR Part 162, and inviting input from tribes. A copy of that letter is attached, as well as a document captioned “Tribal Consultation Supplement” which provides a summary of the proposed changes in the leasing regulations. The changes include the establishment of new subparts to 25 CFR Part 162 addressing residential leasing, business leasing, and wind and solar resource permitting and leasing. The Tribal Consultation Supplement also includes a list of questions on which the Assistant Secretary’s Office has requested input from tribes. As noted in the “Dear Tribal Leader” letter, the Preliminary Draft of Part 162 is available on the internet at The deadline for submitting comments on the preliminary draft is April 18.

The Department has several goals in developing the draft leasing regulations, including: increasing the efficiency and transparency of the Bureau of Indian Affairs’ (BIA) approval process for leasing of trust or restricted Indian land (and Federal Government land); increasing flexibility in compensation and valuations associated with leasing Indian land; creating clearly delineated leasing regulations for residential and business leasing; creating a separate process for processing wind and solar resource (WSR) permits and leases; and facilitating the management of direct pay opportunities for lease payments.

Based on our preliminary review of the draft regulations, we think that in order to achieve the objective of streamlining and expediting the leasing process, there is room for improvement in the linkage between the leasing regulations and the BIA’s procedures for compliance with federal environmental laws. More specifically, one key way to expedite the leasing process, at least for certain kinds of leases, would be for the BIA to review its procedures for compliance with the National Environmental Policy Act, in consultation with tribes, with a view toward expanding its list of categorical exclusions. See our General Memorandum 11-005 (January14, 2011).

If you would like further information regarding the changes proposed in the draft leasing regulations, or assistance in preparing comments, please contact us.