GM 12-089

Congress Passes the HEARTH Act: Will Authorize Tribes to Lease Trust Lands without Secretarial Approval

On July 17, 2012, the Senate unanimously passed HR 205, the “Helping Expedite and Advance Responsible Tribal Homeownership” Act (HEARTH Act). As we reported in General Memorandum 12-066 (May 18, 2012), the House of Representatives unanimously passed this bill on May 15, 2012. The Senate passed the House version without amendment, so there is no need for a conference committee, and the President has announced that he will sign the bill. Thus the HEARTH Act will soon become law. A copy of the bill as passed is attached.

The HEARTH Act authorizes any tribe, at its own option, to lease its tribal trust land without approval by the Secretary of the Interior. To take advantage of this option, a tribe would have to adopt regulations governing the leasing process, which would be subject to approval by the Secretary. This new option has the potential for the tribes to streamline the process of granting leases of their tribal trust lands by eliminating the requirement for approval of each and every lease by the Bureau of Indian Affairs (BIA).

Leases for exploration, development, or extraction of any mineral resources are excluded from the authority provided in the Act. Leases of individually owned allotted Indian lands are also excluded. Such leases will still require Secretarial approval. The exclusion of leases for energy minerals from the Act would not prevent tribes from using this new authority to lease land for renewable energy purposes.

The Act amends 25 U.S.C. § 415, the statute that serves as the primary authority for leasing Indian trust lands, and which provides that such leases are subject to approval by the Secretary. Most of the substantive law on tribal approval of leases is set out in a new subsection 415(h), including the standards and the process that the Secretary is directed to apply in deciding whether to approve a tribe’s regulations.

Please let us know if we may provide additional information regarding the HEARTH Act.