GM 12-066

Would Authorize Tribes to Lease Trust Lands without Secretarial Approval

On May 15, 2012, the House of Representatives unanimously passed HR 205, the “Helping Expedite and Advance Responsible Tribal Homeownership” Act (HEARTH Act). We attach the floor discussion.

HR 205, sponsored by Representative Heinrich (D-NM), would amend 25 U.S.C. § 415, the statute that serves as the primary authority for leasing Indian trust lands, subject to approval by the Secretary of the Interior. As provided in the bill, a new subsection 415(h) would authorize any tribe, at its own option, to lease its tribal trust land without Secretarial approval, subject to certain limitations. To avail itself of this option, a tribe would have to adopt regulations governing the leasing process, which would be subject to approval by the Secretary.

The standards for Secretarial approval of a tribe’s regulations would be set out in paragraph (3) of the new subsection 415(h). The Secretary is directed to approve a tribe’s regulations if they:

(i) are consistent with any regulations issued by the Secretary under subsection (a) [of section 415] (including any amendments to the subsection or regulations); and
(ii) provide for an environmental review process that includes –
(I) identification and evaluation of any “significant” effects of the proposed action on the environment; and
(II) a process for ensuring that –
(aa) the public is informed of, and has a reasonable opportunity to comment on, any “significant” environmental impacts of the proposed action identified by the Indian tribe; and
(bb) the Indian tribe provides responses to relevant and substantive public comments on any such impacts before the Indian tribe approves the lease.

The bill calls for an environmental review process under tribal law because, in the absence of a requirement for Secretarial approval, the review processes under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) would not apply, unless, that is, the proposed action requires some other federal agency action or involves federal funding. If a proposed action does involve federal funding, the bill would allow a tribe to rely on the federal agency’s environmental review process in lieu of the process under the tribal regulations. In addition, the bill would authorize the Secretary, at the request of a tribe, to provide technical assistance for developing a regulatory environmental review process.

Leases for business and agricultural purposes could be for a term as long as 25 years and could include an option to renew for up to two additional terms. Leases for public, religious, educational, recreational, or residential purposes could be as long as 75 years, if authorized in tribal regulations.

Leases for exploration, development, or extraction of any mineral resources are excluded from the authority provided in the bill. Leases of individually owned allotted Indian lands are also excluded. If the bill becomes law, such leases will still require Secretarial approval. The exclusion of leases for energy minerals from the bill would not prevent tribes from leasing land for renewable energy purposes. As noted in the statement by Representative Markey (D-MA) in the CONGRESSIONAL RECORD, tribes could use the new leasing authority to expedite renewable energy projects such as solar and wind.

The bill includes language on the federal trust responsibility, explicitly providing that the United States will not be liable for losses sustained by any party. In addition, the Secretary could enforce or cancel a lease if necessary to fulfill the trust obligation.

The bill would allow an interested party, after exhaustion of tribal remedies, to petition the Secretary to review a tribe’s compliance with its regulations. If the Secretary were to find a violation, approval of the tribal leasing program could be rescinded, after a hearing on the record and an opportunity for the tribe to cure the alleged violation.

In addition to the amendments to the leasing statute, HR 205 would direct the Bureau of Indian Affairs to consult with tribes who have chosen to assume operation of the Indian Land Title and Records Office, and then prepare a report to Congress concerning the history and experience of those tribes.

On the Senate side, a nearly identical bill, S 703, was marked-up in the Senate Committee on Indian Affairs on July 28, 2011, although a Committee report has not yet been issued. In mark-up, that Committee added an amendment by Vice Chairman Barrasso (R-WY) making some technical revisions, as well as an amendment by Chairman Akaka (D-HI) that would enact a fix for the Supreme Court’s decision in the Carcieri case.

Please let us know if we may provide additional information regarding this legislation.