II Calendar No. 719 111th CONGRESS 2d Session S. 3235 IN THE SENATE OF THE UNITED STATES April 20, 2010 Mr. Dorgan (for himself, Mr. Johnson, Mr. Tester, Mr. Udall of New Mexico, Mr. Baucus, Mr. Bingaman, and Mr. Dodd) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs December 20, 2010 Reported by Mr. Dorgan, with an amendment Omit the part struck through and insert the part printed in italic A BILL To amend the Act titled An Act to authorize the leasing of restricted Indian lands for public, religious, educational, recreational, residential, business, and other purposes requiring the grant of long-term leases, approved August 9, 1955, to provide for Indian tribes to enter into certain leases without prior express approval from the Secretary of the Interior.

1.

Short title

This Act may be cited as the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2010 or the HEARTH Act of 2010.

2.

Approval of, and regulations related to, tribal leases

The first section of the Act titled An Act to authorize the leasing of restricted Indian lands for public, religious, educational, recreational, residential, business, and other purposes requiring the grant of long-term leases, approved August 9, 1955 (25 U.S.C. 415) is amended as follows: (1)In subsection (d)— (A)by striking paragraph (2) and inserting the following: (2)the term Indian tribe has the meaning given such term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a); ; (B)in paragraph (3)— (i)in the matter preceding subparagraph (A), by striking Navajo Indian; (ii)in subparagraph (A), by striking the Navajo Nation and inserting an Indian tribe; (iii)in subparagraph (B), by striking Navajo Indians or members of another Indian tribe and inserting an Indian tribe or a member of an Indian tribe; and (iv)in subparagraph (C)(i), by striking Navajo Indian and inserting member of an Indian tribe; (C)in paragraph (4), by striking the Navajo Nation and inserting an applicable Indian tribe; (D)by striking paragraph (5) and redesignating paragraphs (6), (7), and (8) as paragraphs (5), (6), and (7), respectively; (E)in paragraph (5) (as redesignated), by striking the Navajo Nation and inserting an Indian tribe; and (F)in paragraph (7) (as redesignated)— (i)by striking the Navajo Nation; and (ii)by striking with Navajo Nation law and inserting with applicable tribal law. (2)In subsection (e)— (A)by amending the subsection heading to read as follows: Approval of leases—Tribal discretion.—; (B)in paragraph (1)— (i)in the matter preceding subparagraph (A), by striking Any leases by the Navajo Nation and inserting At the discretion of any Indian tribe, any leases by the applicable Indian tribe; (ii)by striking except a lease for the exploration, development, or extraction of any mineral resources,; and (iii)in subparagraph (B), by striking Navajo Nation and inserting applicable Indian tribe; (C)in paragraph (2), by striking Navajo; (D)in paragraph (3)— (i)in the second sentence, by inserting , similar to the process established by the Department of the Interior under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) after process; (ii)in the third sentence, by striking the regulations of the Navajo Nation and inserting such regulations; and (iii)in the fifth sentence, by striking with the Navajo Nation and inserting with the applicable Indian tribe; (E)in paragraph (4), by striking Navajo Nation each place it appears and inserting applicable Indian tribe; (F)in paragraph (5)— (i)by striking paragraph (1), including the Navajo Nation. and inserting paragraph (1).; and (ii)by striking the second sentence and inserting Pursuant to the Secretary's authority to fulfill the trust obligation of the United States to the applicable Indian tribe as defined in other statutory or regulatory authorizations, the Secretary may, upon reasonable notice from the applicable Indian tribe and in the discretion of the Secretary, enforce the provisions of a lease or cancel a lease.; (G)in paragraph (6)(A)— (i)by striking of the Navajo Nation and inserting of the applicable Indian tribe; and (ii)by striking Navajo Nation tribal and inserting tribal; and (H)in paragraph (6)(B), by striking Navajo Nation each place it appears and inserting applicable Indian tribe. (A)in paragraph (4), by striking the Navajo Nation and inserting an applicable Indian tribe; (B)in paragraph (6), by striking the Navajo Nation and inserting an Indian tribe; (C)in paragraph (7), by striking and after the semicolon at the end; (D)in paragraph (8)— (i)by striking the Navajo Nation; (ii)by striking with Navajo Nation law and inserting with applicable tribal law; and (iii)by striking the period at the end and inserting a semicolon; and (E)by adding at the end the following: (9)the term Indian tribe has the meaning given such term in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a); and (10)the term individually owned allotted land means a parcel of land that— (A)(i)is located within the jurisdiction of an Indian tribe; or (ii)is held in trust or restricted status by the United States for the benefit of an Indian tribe or a member of an Indian tribe; and (B)is allotted to a member of an Indian tribe. . (2)By adding at the end the following: (h)

Tribal approval of leases

(1)

In general

At the discretion of any Indian tribe, any lease by the Indian tribe for the purposes authorized under subsection (a) (including any amendments to subsection (a)), except a lease for the exploration, development, or extraction of any mineral resources, shall not require the approval of the Secretary, if the lease is executed under the tribal regulations approved by the Secretary under this subsection and the term of the lease does not exceed— (A)in the case of a business or agricultural lease, 25 years, except that any such lease may include an option to renew for up to 2 additional terms, each of which may not exceed 25 years; and (B)in the case of a lease for public, religious, educational, recreational, or residential purposes, 75 years, if such a term is provided for by the regulations issued by the Indian tribe. (2)

Allotted land

Paragraph (1) shall not apply to any lease of individually owned Indian allotted land. (3)

Authority of Secretary over tribal regulations

(A)

In general

The Secretary shall have the authority to approve or disapprove any tribal regulations issued in accordance with paragraph (1). (B)

Considerations for approval

The Secretary shall approve any tribal regulation issued in accordance with paragraph (1), if the tribal regulations— (i)are consistent with any regulations issued by the Secretary under subsection (a) (including any amendments to the subsection or regulations); and (ii)provide for an environmental review process that includes— (I)the 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. (4)

Review process

(A)

In general

Not later than 120 days after the date on which the tribal regulations described in paragraph (1) are submitted to the Secretary, the Secretary shall review and approve or disapprove the regulations. (B)

Written documentation

If the Secretary disapproves the tribal regulations described in paragraph (1), the Secretary shall include written documentation with the disapproval notification that describes the basis for the disapproval. (C)

Extension

The deadline described in subparagraph (A) may be extended by the Secretary, after consultation with the Indian tribe. (5)

Federal environmental review

Notwithstanding paragraphs (3) and (4), if an Indian tribe carries out a project or activity funded by a Federal agency, the Indian tribe shall have the authority to rely on the environmental review process of the applicable Federal agency rather than any tribal environmental review process under this subsection. (6)

Documentation

If an Indian tribe executes a lease pursuant to tribal regulations under paragraph (1), the Indian tribe shall provide the Secretary with— (A)a copy of the lease, including any amendments or renewals to the lease; and (B)in the case of tribal regulations or a lease that allows for lease payments to be made directly to the Indian tribe, documentation of the lease payments that are sufficient to enable the Secretary to discharge the trust responsibility of the United States under paragraph (7). (7)

Trust responsibility

(A)

In general

The United States shall not be liable for losses sustained by any party to a lease executed pursuant to tribal regulations under paragraph (1). (B)

Authority of Secretary

Pursuant to the authority of the Secretary to fulfill the trust obligation of the United States to the applicable Indian tribe under Federal law (including regulations), the Secretary may, upon reasonable notice from the applicable Indian tribe and at the discretion of the Secretary, enforce the provisions of, or cancel, any lease executed by the Indian tribe under paragraph (1). (8)

Compliance

(A)

In general

An interested party, after exhausting of any applicable tribal remedies, may submit a petition to the Secretary, at such time and in such form as the Secretary determines to be appropriate, to review the compliance of the applicable Indian tribe with any tribal regulations approved by the Secretary under this subsection. (B)

Violations

If, after carrying out a review under subparagraph (A), the Secretary determines that the tribal regulations were violated, the Secretary may take any action the Secretary determines to be necessary to remedy the violation, including rescinding the approval of the tribal regulations and reassuming responsibility for the approval of leases of tribal trust lands. (C)

Documentation

If the Secretary determines that a violation of the tribal regulations has occurred and a remedy is necessary, the Secretary shall— (i)make a written determination with respect to the regulations that have been violated; (ii)provide the applicable Indian tribe with a written notice of the alleged violation together with such written determination; and (iii)prior to the exercise of any remedy, the rescission of the approval of the regulation involved, or the reassumption of lease approval responsibilities, provide the applicable Indian tribe with— (I)a hearing that is on the record; and (II)a reasonable opportunity to cure the alleged violation. (9)

Savings clause

Nothing in this subsection shall affect subsection (e) or any tribal regulations issued under that subsection. .

3.

Land Title Reports—Review and Report to Congress

Not later than 180 days after funds are made available for this section, the Bureau of Indian Affairs shall prepare and submit to the Committees on Financial Services and Natural Resources in the House of Representatives and the Committees on Banking, Housing, and Urban Affairs and Indian Affairs in the Senate a report regarding the history and experience of Indian tribes that have chosen to assume responsibility for operating the Indian Land Title and Records Office (hereafter referred to as the “LTRO”) functions from the Bureau of Indian Affairs. In conducting the review, the Bureau of Indian Affairs shall consult with the Department of Housing and Urban Development Office of Native American Programs and those Indian tribes that are managing LTRO functions (hereafter referred to as the “managing Indian tribes”). The review shall include an analysis of the following factors: (1)Whether and how tribal management of the LTRO functions has expedited the processing and issuance of Indian land title certifications as compared to when the Bureau of Indian Affairs managed these programs. (2)Whether and how tribal management of the LTRO functions has increased home ownership among the managing Indian tribe’s population. (3)What internal preparations and processes were required of the managing Indian tribes prior to assuming management of the LTRO functions. (4)Whether tribal management of the LTRO functions resulting in a transfer of financial resources and manpower from the Bureau of Indian Affairs to the managing Indian tribes and, if so, what transfers were undertaken. (5)Whether, in appropriate circumstances and with the approval of geographically proximate Indian tribes, the LTRO functions may be performed by a single Indian tribe or a tribal consortium in a cost effective manner.

December 20, 2010 Reported with an amendment