[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 1246, TO AUTHORIZE LEASES OF UP TO 99 YEARS FOR LAND HELD IN
TRUST FOR FEDERALLY RECOGNIZED INDIAN TRIBES; AND H.R. 1532, TO
AUTHORIZE ANY INDIAN TRIBE TO LEASE, SELL, CONVEY, WARRANT, OR
OTHERWISE TRANSFER REAL PROPERTY TO WHICH THAT INDIAN TRIBE HOLDS FEE
TITLE WITHOUT THE CONSENT OF THE FEDERAL GOVERNMENT, AND FOR OTHER
PURPOSES
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Friday, March 24, 2023
__________
Serial No. 118-11
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-692 PDF WASHINGTON : 2023
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COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
HARRIET M. HAGEMAN, WY, Chair
JENNIFFER GONZALEZ-COLON, PR, Vice Chair
TERESA LEGER FERNANDEZ, NM, Ranking Member
Aumua Amata C. Radewagen, AS Gregorio Kilili Camacho Sablan,
Doug LaMalfa, CA CNMI
Jenniffer Gonzalez-Colon, PR Ruben Gallego, AZ
Jerry Carl, AL Nydia M. Velazquez, NY
Jim Moylan, GU Ed Case, HI
Bruce Westerman, AR, ex officio Raul M. Grijalva, AZ, ex officio
----------
CONTENTS
----------
Page
Hearing held on Friday, March 24, 2023........................... 1
Statement of Members:
Hageman, Hon. Harriet, a Representative in Congress from the
State of Wyoming........................................... 1
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 3
Statement of Witnesses:
Newland, Hon. Bryan, Assistant Secretary of Indian Affairs,
U.S. Department of the Interior, Washington, DC............ 4
Prepared statement of.................................... 5
Questions submitted for the record....................... 7
Osceola, Hon. Marcellus, Chairman, Seminole Tribe of Florida,
Hollywood, Florida......................................... 7
Prepared statement of.................................... 9
Williams, Hon. John, Vice Chairman, United Auburn Rancheria,
Auburn, California......................................... 10
Prepared statement of.................................... 12
Additional Materials Submitted for the Record:
Submission for the Record by Representative Westerman
Michael Chavarria, Governor of the Pueblo of Santa Clara,
New Mexico, Statement for the Record................... 22
LEGISLATIVE HEARING ON H.R. 1246, TO AUTHORIZE LEASES OF UP TO 99 YEARS
FOR LAND HELD IN TRUST FOR FEDERALLY RECOGNIZED INDIAN TRIBES; AND H.R.
1532, TO AUTHORIZE ANY INDIAN TRIBE TO LEASE, SELL, CONVEY, WARRANT, OR
OTHERWISE TRANSFER REAL PROPERTY TO WHICH THAT INDIAN TRIBE HOLDS FEE
TITLE WITHOUT THE CONSENT OF THE FEDERAL GOVERNMENT, AND FOR OTHER
PURPOSES
----------
Friday, March 24, 2023
U.S. House of Representatives
Subcommittee on Indian and Insular Affairs
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 9:05 a.m., in
Room 1324, Longworth House Office Building, Hon. Harriet
Hageman [Chairwoman of the Subcommittee] presiding.
Present: Representatives Hageman, LaMalfa, Gonzalez-Colon;
and Grijalva.
Ms. Hageman. Good morning. The Subcommittee on Indian and
Insular Affairs will come to order. Without objection, the
Chair is authorized to declare a recess of the Subcommittee at
any time.
The Subcommittee is meeting today to hear testimony on H.R.
1246 and H.R. 1532. Under Committee Rule 4(f), any oral opening
statements at hearings are limited to the Chairman and the
Ranking Minority Member. I therefore ask unanimous consent that
all other Members' opening statements be made part of the
hearing record if they are submitted in accordance with
Committee Rule 3(o). Without objection so ordered.
I will now recognize myself for an opening statement.
STATEMENT OF THE HON. HARRIET HAGEMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Ms. Hageman. Today, we are meeting to consider two bills
I've introduced to ensure all tribes have access to economic
tools: H.R. 1246 to authorize leases of up to 99 years for land
held in trust for federally recognized Indian tribes, and H.R.
1532, to authorize any Indian tribe to lease, sell, convey,
warrant, or otherwise transfer real property to which that
Indian tribe holds fee title, without the consent of the
Federal Government, and for other purposes.
I want to thank Ranking Member Leger Fernandez, Mr.
Grijalva, Mr. LaMalfa, Mrs. Gonzalez-Colon, and Mr. Sablan for
their support of H.R. 1246, and I look forward to working with
you all and other members of the Committee on both of these
bills.
The first bill on the agenda, H.R. 1246, would amend the
Long-Term Leasing Act to authorize any federally recognized
Indian tribe to lease land held in trust for their benefit for
terms up to 99 years, subject to approval of the Secretary of
the Interior. For many Indian tribes and Alaskan Natives, real
property holdings are the basis for social, cultural, and
religious life and often their single most important economic
resource.
In 1834, with the enactment of the Indian Non-Intercourse
Act, land transactions with Indians were prohibited, unless
authorized by Congress. Over time, these restrictions came to
apply primarily to lands held in trust by the United States for
the benefit of individual Indians or Indian tribes, and to
lands with a title that was subject to a restriction against
alienation.
In 1955, Congress passed the Long-Term Leasing Act which
generally authorizes any Indian land held in trust or land
subject to a restriction against alienation to be leased by the
Indian owner, subject to the approval of the Secretary of the
Interior. These leases were generally only allowed for 25
years, with an option to renew for one additional term, for a
total lease term of up to 50 years.
Unfortunately, lease authority up to 99 years is often
needed for today's long-term commercial leases and for some
financing contracts. And the fact is, a 50-year lease term is
simply too short. H.R. 1246 will ensure that all tribes can
negotiate effectively and on the same playing field as other
landholders for long-term leases. This can clear the way for
further economic development, especially in rural or extra
rural areas.
H.R. 1246 will also end the practice of individual tribes
needing Congress to pass legislation so that the tribe can
offer these long-term leases. In other words, we trust the
tribes to make the right decisions for their own people.
Congress has amended the Long-Term Leasing Act more than 50
times to adjust the terms and conditions of leases of Indian
lands and to authorize specific Indian land or tribes to lease
land for a term of up to 99 years. It is time to end this
piecemeal approach of the past 67 years. By proactively
extending this authority to all federally recognized tribes,
economic development plans can proceed on a more expedited
path.
The second bill on our agenda is H.R. 1532, which would
exempt lands held in fee simple by any federally recognized
Indian tribe from the limitations imposed by the Indian Non-
Intercourse Act. This bill would clarify that any tribe has the
legal ability to lease, sell, convey, warrant, or transfer any
portion of the interest in real property that the tribe owns
that is not held in trust.
In recent years, the Indian Non-Intercourse Act has
generally not interfered with the ability of tribes to buy,
sell, or lease land that it owns in fee simple. However, it has
generated a great deal of litigation throughout history, which
has resulted in several court decisions on the issue.
The U.S. Supreme Court in 2005 said that the Indian Non-
Intercourse Act remains substantially in force today and can
bar sales of tribal land without the consent of the Federal
Government. Some tribes have also encountered interference with
economic development and job creation when titled insurance
companies have interpreted the Indian Non-Intercourse Act to
apply to fee simple real estate owned by the tribes and would
not grant title insurance.
Congress has waived the application of the Indian Non-
Intercourse Act to several tribes, but it has been needed on a
case-by-case basis. Again, this piecemeal approach requires
Congress to go back again and again to do something that should
be clear already. Tribal governments already seek to make the
best decisions for their members, for their social, cultural,
and economic security.
We should ensure that Indian lands, whether owned in fee,
owned in restricted fee, or held in trust for the benefit of
the tribes are able to be used as tribes want to use them. I
believe these two bills are a good step forward to ensure that.
I am glad to see the Assistant Secretary here to testify on
these bills and would appreciate his insight on whether further
technical changes to the bills are needed.
I also want to thank our tribal witnesses for being here to
tell your stories, to tell us how these bills would be
beneficial to all tribes, and if they need to be improved.
The Chair now recognizes the Ranking Minority Member for
his statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you very much, Madam Chair. Thank you
for the hearing on these two pieces of legislation. I'm a co-
sponsor of H.R. 1246, and I thank the Chair and the Ranking
Member of this Subcommittee, Representative Leger Fernandez,
for their work on it. Today, we will hope to hear more from the
witnesses.
We are discussing the other piece of legislation, H.R.
1532, which authorizes tribal governments to lease, sell,
convey, warrant, or otherwise transfer real property to which
they hold fee title, without the consent of the Federal
Government. I think both bills address existing barriers to
tribal economic development and were previewed at the
Subcommittee's first oversight hearing earlier this month.
And on the research committee if there is an area in which
cooperation, and compromise, and moving forward--it is going to
be around the issues that we are addressing today, and other
issues. But this is a very important one and a step addressing
the paternalism of the Federal Government with regard to
tribes, amplifying tribal self-determination and amplifying the
very critical issue of sovereignty for federally recognized
tribes.
The Chair has outlined both pieces of legislation, and I
look forward to the witnesses and thank them very much for
being here. With that, I yield back to you, Madam Chair.
Ms. Hageman. Thank you so much. I'm now going to introduce
the witnesses. The Honorable Bryan Newland, Assistant Secretary
of Indian Affairs, U.S. Department of the Interior, Washington
DC; the Honorable Marcellus Osceola, Chairman of the Seminole
Tribe of Florida, Hollywood, Florida; and the Honorable John
Williams, Vice Chairman, United Auburn Rancheria, Auburn,
California.
Let me remind the witnesses that under Committee Rules they
must limit their oral statements to 5 minutes, but your entire
statement will appear in the hearing record.
To begin your testimony, please press the talk button on
the microphone. We use timing lights. When you begin, the light
will turn green. When you have 1 minute left, the light turns
yellow. At the end of the 5 minutes, the light will turn red,
and I will ask you to please complete your statement. I will
also allow all witnesses on the panel to testify before Member
questioning.
The Chair now recognizes Assistant Secretary Bryan Newland
for 5 minutes.
STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT SECRETARY OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Newland. Thank you, Madam Chair.
[Speaking Native language]. Good morning, members of the
Committee. Thank you for having me here today to offer the
Department of the Interior's testimony.
Madam Chair, also I want to apologize for my tardiness this
morning. I know I kept you waiting; it won't happen again.
Thank you.
The Department is here to present testimony on H.R. 1246
and H.R. 1532. These two bills seek to address concerns raised
by many tribes that have encountered barriers in the
development and use of their lands due to laws designed to
ensure the Federal Government fulfilled its responsibility as
trustee.
The Long-Term Leasing Act provides the authority for tribes
to enter into surface leases with third parties with the
approval of the Secretary of the Interior. This Act limits
lease agreements, as Madam Chair indicated, to 25-year terms
with an option to renew for an additional 25 years.
Over the years, tribes have engaged in a wide range of
activities to promote economic development and many leases
require terms longer than 50 years to promote economic
development. Since its enactment in 1955, Congress has added 60
tribes to the Long-Term Leasing Act for this purpose, and each
addition, as you've noted, Madam Chair, has required separate
legislation, which is time-consuming and resource-draining for
tribes.
H.R. 1246 amends the Long-Term Leasing Act to add any other
tribes listed pursuant to the List Act to enter into leases for
up to 99 years, and the inclusion of all tribes will be in
addition to the 60 tribes already listed through previously
enacted legislation. The Department supports the goal of this
legislation as it would promote economic development
opportunities and avoid tribes having to acquire separate
legislation for this purpose.
Congress previously amended the Long-Term Leasing Act in
2012 by passing the HEARTH Act which restored tribes' ability
to control and lease their land under their approved tribal
regulations without further approval from the Secretary of the
Interior. Since that time, 82 tribes have adopted their own
leasing regulations to regulate the use of their lands, and the
implementation of this program has been a huge success for
tribes across the country.
While the Department recognizes and supports revising laws
governing tribal land use, amending these laws must be done
carefully to ensure that there are not unintended consequences.
The Non-Intercourse Act was passed to ensure that the Federal
Government had an orderly process to acquire lands from
Indians, and over the past two centuries, a significant amount
of case law and Federal law has been built on top of that Act.
Any legislation that would change the operation of the Non-
Intercourse Act, however well-intentioned, may create more
confusion around the status of Indian lands and inadvertently
harm tribes in the process. H.R. 1532 would expressly allow
tribes to lease, sell, or transfer tribal lands not held in
trust by the United States, without any further action of the
Department to validate that transaction. At this time, the
Department cannot support H.R. 1532.
While H.R. 1532 does not directly amend the Non-Intercourse
Act, it expressly exempts land from restrictions in the Non-
Intercourse Act and may have unintended consequences. The
Department understands that some tribes may ask for legislative
relief, as commercial lenders and title companies often ask
tribes to confirm that the Non-Intercourse Act is inapplicable
to their fee land. We believe this is an unnecessary step,
which unfortunately is used to raise the cost of transactions
and business deals for tribes across the country.
The Department appreciates the opportunity to present its
views on H.R. 1532 and H.R. 1246. And Madam Chair and Ranking
Members of the Committee, I look forward to answering your
questions this morning and I will yield back the rest of my
time
[Speaking Native language].
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Bryan Newland, Assistant Secretary--Indian
Affairs, United States Department of the Interior
Aanii (Hello)! Good afternoon, Chair Hageman, Ranking Member Leger
Fernandez, and Members of the Subcommittee. My name is Bryan Newland. I
am the Assistant Secretary for Indian Affairs at the Department of the
Interior (Department).
Thank you for the opportunity to present testimony regarding H.R.
1246, a bill to authorize leases of up to 99 years for land held in
trust for federally recognized Indian Tribes, and H.R. 1532, a bill to
authorize any Indian Tribe to lease, sell, convey, warrant, or
otherwise transfer real property to which that Indian Tribe holds fee
title without the consent of the Federal Government, and for other
purposes.
H.R. 1246, a bill to authorize leases of up to 99 years for land held
in trust for federally recognized Indian Tribes
Since the enactment of the Non-Intercourse Act of June 30, 1834,
and predecessor statutes, land transactions with Indian Tribes were
prohibited unless specifically authorized by Congress. The Act of
August 9, 1955, or the Long-Term Leasing Act (LTLA provides the
authority for Indian Tribes to enter into surface leases with third
parties with the approval of the Secretary of the Interior. The LTLA
limits lease agreement to 25-year terms with an option to renew for an
additional 25 years.
Since 1955, Indian Tribes have engaged in a diverse array of
activities to facilitate economic development, and many have required
lease agreements for terms longer than 50 years on their lands.
Authorizing Indian Tribes to lease their trust lands for terms longer
than the 50-year maximum requires Congress to amend the LTLA to add
Tribes' names to it. Since its enactment in 1955, Congress has added 60
Indian Tribes to the LTLA for this purpose. Each addition has required
separate legislation, which is time consuming and resource draining for
Tribes.
H.R. 1246 amends the LTLA to add all Indian Tribes on the list
published by the Secretary of the Interior as required by the Federally
Recognized Indian Tribe List Act to enter into agreements for up to 99
years. The inclusion of all Indian Tribes will be in addition to the 60
Indian Tribes already listed through previously enacted legislation.
In addition to legislation allowing certain Tribes to enter into
leases of up to 99 years, Congress amended the LTLA in 2012, by passing
the Helping Expedite and Advance Responsible Tribal Home Ownership Act
of 2012 (HEARTH Act), which restored Indian Tribes ability to control
and lease their land under their approved HEARTH Act regulations
without further approval from the Department. So far, 82 Tribes have
adopted and regulate the leasing of their Tribal trust lands. The
implementation of this program has been a success, and a great help to
Indian Tribes in facilitating economic development.
The Department supports the goal of H.R. 1246 to authorize any
Indian Tribe to lease lands for up 99 years as it would facilitate
economic development opportunities and avoid individual Tribes having
to acquire separate legislation for this purpose. The Department looks
forward to continuing working with the Subcommittee and sponsors of the
legislation to ensure the language in the bill achieves the goal of
removing barriers to economic development.
H.R. 1532, a bill to authorize any Indian Tribe to lease, sell, convey,
warrant, or otherwise transfer real property to which that Indian Tribe
holds fee title without the consent of the Federal Government, and for
other purposes
H.R. 1532 would expressly allow Indian Tribes to lease, sell,
convey, warrant, or otherwise transfer all or part of the Tribe's real
property that is not held in trust by the United States without further
approval, ratification, or authorization by the United States. Under
H.R. 1532, action by the United States is not required to validate the
Tribe's land transactions for Tribally owned fee land. The legislation
clearly states that H.R. 1532 does not authorize the Tribe to lease,
sell, convey, warrant, or otherwise transfer lands held in trust or
affect the operation of any law governing such transactions.
The Department does not support H.R. 1532. While H.R. 1532 does not
directly amend the Non-Intercourse Act, 25 U.S.C. Sec. 177, the bill
expressly exempts land from restrictions in the Non-Intercourse Act and
may have unintended consequences. The Department understands that some
Tribes may ask for legislative relief as commercial lenders and title
companies are asking Tribes to confirm that the Non-Intercourse Act is
inapplicable to Tribally-owned fee land. This is an unnecessary step
which, unfortunately, can raise the cost of business deals for Tribes.
The Non-Intercourse Act was passed to ensure that the Federal
Government had an orderly process to acquire lands from Indians, and
over the past two centuries, a significant amount of case law has been
built on this Act. Any legislation that would change the operation of
the Non-Intercourse Act, however well-intentioned, may create more
confusion around the status of Indian lands and inadvertently harm
Tribes in the process.
The Department appreciates the opportunity to present its views on
H.R. 1532.
Conclusion
Chair Hageman, Ranking Member Leger Fernandez, and Members of the
Subcommittee, thank you for the opportunity to provide the Department's
views on these important bills. I look forward to answering any
questions that you may have.
______
Questions Submitted for the Record to Bryan Newland, Assistant
Secretary--Indian Affairs, U.S. Department of the Interior
Mr. Newland did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. How many inquiries on title insurance related to land
owned by tribes in fee simple has the Department received over:
1a) the past 5 years?
1b) the past 10 years?
1c) Please estimate the amount of staff time has been spent
responding to those inquiries, including but not limited to time spent
researching, drafting, and reviewing solicitor opinions.
Question 2. How many leases has the Department approved under the
Long-Term Leasing Act for a tribe that had 99-year lease authority
over:
2a) the past 5 years?
2b) the past 10 years?
2c) Please estimate the average length of time it takes a lease
under the above authority to be approved or denied by the Department
once it is submitted for approval by the Secretary.
Questions Submitted by Representative Grijalva
Question 1. Could you provide to the Committee examples of the
``unintended consequences'' in the case law related to the Non-
Intercourse Act that may arise under the passage of H.R. 1532, To
authorize any Indian Tribe to lease, sell, convey, warrant, or
otherwise transfer real property to which that Indian Tribe holds fee
title without the consent of the Federal Government, and for other
purposes.
______
Ms. Hageman. Thank you.
The Chair now recognizes Chairman Marcellus Osceola for 5
minutes.
STATEMENT OF HON. MARCELLUS OSCEOLA, CHAIRMAN, SEMINOLE TRIBE
OF FLORIDA, HOLLYWOOD, FLORIDA
Mr. Osceola. Thank you, Madam Chair. Good morning Ranking
Member Leger Fernandez, Ranking Minority Member Grijalva, and
members of the Subcommittee.
My name is Marcellus Osceola, Jr. I am the Tribal Council
Chairman for the Seminole Tribe of Florida. In 2021, this
Subcommittee advanced legislation to allow the Seminole Tribe
to lease, sell, or otherwise transfer real property owned by
the Tribe in simple fee. On November 23 of that year, the bill
was signed into law.
I am here today to provide an update on what that law has
meant for the Seminole Tribe and to urge Congress to move
quickly to enact H.R. 1532. That bill would give all federally
recognized tribes the authority to lease and transfer certain
fee lands without requiring prior congressional approval.
Seminoles have lived in Florida for thousands of years. We
are a sovereign government with our own schools, police, and
courts. We run one of the largest cattle operations in the
United States. We own Hard Rock International in 70 countries.
We will continue our traditions of sewing, patchwork, chickee
building, and alligator wrestling, but the world has changed,
and we have adapted as well.
A key part of the strategy has been to diversify our
investments. Toward that end, we set up a sovereign wealth fund
to invest in commercial real estate, but after identifying our
first investment opportunity, the plan was stalled due to
concerns raised by lender and title insurance companies over
the Indian Non-Intercourse Act. The NIA dates back to the 1800s
and in part was designed to prevent tribes from being
defrauded.
Today, it is interfering with the ability to encourage a
normal business activity for tribes that are eminently capable
of making their own business decisions. The title insurance
companies we approached for our first transaction would not
insure the lien of the mortgage due to the concerns about the
NIA. This was completely unacceptable to mortgage lenders and
effectively brought our ability to finance real estate
acquisitions to a grinding halt. One title insurer eventually
took the risk of ensuring titles, however if that insurer had
changed their mind, failed, or been acquired by one of the
other carriers, we would have not been able to proceed.
The sustainable economic independence of the Seminole Tribe
or any other federally recognized tribe should not depend on
one title company's willingness to provide title insurance to
lenders or buyers without an Act of Congress. In January 2021,
in order to address this issue, Florida Representative Darren
Soto, then a member of this Subcommittee, introduced H.R. 164.
Florida Senators Rubio and Scott introduced a companion bill,
S. 108. In November of that year, Congress approved the
legislation and the President signed Public Law 11-65.
That law gave the Seminole Tribe the opportunity to shop
carriers and lenders and have the confidence to continue to
acquire real estate investments. There have been other positive
outcomes as well. Due to the lack of availability of housing on
our reservations, the Seminole Housing Authority previously has
purchased off-reservation homes for tribal members. Since then,
we have been able to add to our trust land and build on-
reservation home sites for these tribal members.
Thanks to Public Law 11-65, when off-reservation homes were
no longer needed, we have the ability to sell them without
having to seek an Act of Congress to provide a lengthy
explanation to the title companies, so the law has eased the
path of home ownership for tribal members and has cleared the
barriers to the ability to diversify and provide for future
generations. However, most tribes still face these barriers I
have described.
It is time for Congress to grant federally recognized
tribes the authority and the ability to make their own
decisions about managing tribal resources and generating tribal
income without needing to obtain congressional approval.
For these reasons, I want to thank the Subcommittee and
Congress for enacting Public Law 117-65. I further commend
Subcommittee Chair Hageman for introducing H.R. 1532 and
encourage Congress to act quickly to approve the bill and
ensure that NIA language is no longer hindering economic
opportunities for the federally recognized Indian tribes.
Thank you for the opportunity to appear before you today,
and I am happy to answer any questions you may have.
[The prepared statement of Mr. Osceola follows:]
Prepared Statement of Marcellus Osceola Jr., Tribal Council Chairman,
Seminole Tribe of Florida
Chair Hageman, Ranking Member Leger Fernandez and Members of the
Subcommittee, my name is Marcellus Osceola, Jr., and I am chairman of
the Tribal Council of the Seminole Tribe of Florida. In 2021, this
Committee advanced legislation to allow the Seminole Tribe to lease,
sell, convey, warrant, or otherwise transfer real property owned by the
Tribe in fee simple. On November 23rd of that year, that bill was
signed into law. I am here today to provide an update on what that
authority has meant for the Seminole Tribe, and to urge Congress to
move quickly to enact H.R. 1532, broader legislation that will give all
federally recognized tribes the authority to lease or transfer certain
fee lands without requiring prior congressional approval.
Seminoles have lived in Florida for thousands of years. When
President Andrew Jackson signed into law the Indian Removal Act in
1830, we resisted efforts to displace us from our native lands.
Instead, we settled deep into the Florida Everglades where we
maintained our ways and traditions. Since then, we have grown and
prospered and today number more than four thousand Tribal members. We
are a sovereign government with our own schools, police, and courts. We
run one of the largest cattle operations in the United States. We own
Hard Rock International, with locations in 74 countries. We still
continue our traditions of sewing, patchwork, chickee building, and
alligator wrestling, but the world has changed, as it always has; and
we have adapted, as we always have.
A key strategy we have chosen to pursue in adapting to a changing
world is diversification of our investments and revenue sources. Toward
that end, in 2020 the Seminole Tribe established a sovereign wealth
fund to invest in commercial real estate properties in order to create
sustainable income and generational wealth for the Seminole Tribe. We
set up a state chartered subsidiary entity to act as a holding company.
The holding company, in turn, creates subsidiary entities to purchase
and hold title to our investment properties, enter into typical
mortgage financing transactions and grant lenders mortgage liens on
each of the investment properties we acquire.
After identifying the first investment opportunity, this investment
diversification plan stalled due to concerns raised by the lender and
proposed title insurance company over the Indian Non-Intercourse Act
(NIA). The NIA states in part:
``No purchase, grant, lease, or other conveyance of lands, or
of any title or claim thereto, from any Indian nation or tribe
of Indians, shall be of any validity in law or equity, unless
the same be made by treaty or convention entered into pursuant
to the Constitution.''
The NIA dates back to the 1800's and in part was designed to
prevent Indian tribes from being defrauded. Today, it is interfering
with the ability to engage in normal and regular commerce and generate
and diversify income streams for tribes that are eminently capable of
making their own business decisions.
Here is the problem we encountered with the NIA: For the properties
we acquire through the investment fund, lenders require that they be
granted a first-mortgage lien on the properties financed and that the
first lien position be insured with a mortgagee title insurance policy.
The title insurance companies we approached for that first transaction
interpreted the NIA to apply to all real estate owned by the Tribe,
even non-reservation lands owned by a state-chartered subsidiary entity
of the Tribe. The title companies would not insure the lien of the
mortgage without an exception for the NIA. This was completely
unacceptable to mortgage lenders and effectively brought our ability to
finance real estate acquisitions to a grinding halt.
One title insurer eventually took the risk of insuring title.
However, if that title insurer had a change of position, failed or was
acquired by one of the other carriers, the Tribe would not have been
able to proceed. The sustainable economic independence of the Seminole
Tribe--or any other federally recognized Indian tribe--should not
depend on one title company's ``current'' willingness to provide title
insurance to lenders and buyers absent an act of Congress.
In order to address this issue and provide certainty to lenders and
title insurers as well as buyers of properties that the NIA does not
apply to the Seminole Tribe's real estate transactions, Representative
Soto introduced H.R. 164 in January, 2021 and Senators Rubio and Scott
introduced the companion bill S. 108. In November of that year,
Congress approved the legislation and the President signed into law
Public Law 117-65.
Prior to enactment of this law, all of the major title companies
except for one had a specific policy that precluded them from insuring
mortgage liens and sales undertaken by Indian tribes because of the
potential application of the NIA. Only one company was willing to
provide such insurance, but there is always the chance that the company
could have a change of position, fail, or be acquired by another
company with a different policy that prohibits insuring title to
properties owned by an Indian tribe. P.L. 117-65 served to open the
title insurance market to the Seminole Tribe giving us the opportunity
to shop carriers and lenders and have the confidence to continue with
the acquisition of real estate investments in the ordinary course of
business, just like any other real estate investor, knowing that title
insurance will be available.
There have been other positive outcomes, as well. The Seminole
Tribe previously established the Seminole Housing Authority (the
``Authority''). The Authority, a sub-governmental unit of the Seminole
Tribe, had authority over housing matters and had purchased certain
off-reservation homes for Tribal Members, which homes are no longer
needed. P.L. 117-65 has allowed the Seminole Tribe to dispose of these
properties without the lengthy process of seeking an exception to the
Non-Intercourse Act or explanation to the title companies.
As you can see, enactment of P.L. 117-65 has eased the path to
homeownership for Seminole Tribal members and has cleared away barriers
to our ability to diversify and provide for future generations through
real estate investment. The law is consistent with our goals of self-
determination and economic independence.
However, most tribes still face the barriers I have described. It
is time for Congress to free tribes from the NIA and grant all
federally recognized tribes the authority and ability to make their own
decisions about managing tribal resources and generating tribal income
without needing to obtain congressional approval for what otherwise are
routine real estate transactions.
For all these reasons, I want to thank this subcommittee and the
Congress for enacting P.L. 117-65. I further commend Subcommittee Chair
Hageman for introducing in this Congress H.R. 1532, to extend authority
to encumber land held by a tribe in fee simple to all federally
recognized Indian tribes. I encourage Congress to act quickly to
approve the bill. Your prompt action will assure that this outdated and
paternalistic NIA language will no longer hinder economic opportunities
for any federally recognized Indian tribe.
Thank you for the opportunity to appear before you today.
Sho-Na-Bish.
______
Ms. Hageman. Thank you. I appreciate your comment that you
are eminently capable of making your own decisions. I think
that is absolutely correct, and that is why we are here to make
sure that you can.
The Chair now recognizes Vice Chairman John Williams for 5
minutes.
STATEMENT OF HON. JOHN WILLIAMS, VICE CHAIRMAN, UNITED AUBURN
RANCHERIA, AUBURN, CALIFORNIA
Mr. Williams. Thank you, Chair Hageman, Ranking Member
Grijalva, Ranking Member Leger Fernandez, and members of the
Subcommittee. My name is John Williams, and I am the Tribal
Vice Chairman of the United Auburn Indian Community. Joining me
today from our Tribal Council are Honorable Tribal Secretary
Gabe Cayton and Honorable Council Member Leonard Osorio.
United Auburn is a separate band of Nisenan, Pomo, Washo,
Maidu, and Miwok Indians. We originally occupied a village on
the outskirts of Auburn, California. Along with many other
California tribes, United Auburn was terminated by the 1958
Rancheria Act. We were then restored by the 1994 Auburn Indian
Restoration Act.
United Auburn is here today to express our strong support
for H.R. 1532. As you know, this bill addresses a problem that
tribes can have when they try to lease or sell real property
that they hold in fee simple status. A very outdated statute
called the Indian Non-Intercourse Act prohibits tribes from
engaging in these types of real estate transactions without
formal approval from either the Interior Department or the
Congress.
H.R. 1532 would waive these requirements of the Non-
Intercourse Act and permit federally recognized tribes to lease
and sell real property that they hold in fee simple status
without the consent of the Federal Government. The original
purpose of the Non-Intercourse Act was to protect tribes from
losing their land through unfair real estate transactions.
While tribes may have needed this protection centuries ago,
there is no longer any need for the Federal Government to
oversee or approve transactions on real property that is
located outside of tribes' reservation or trust lands.
Unfortunately, attempts to lease or sell fee lands owned by
tribes have run into challenges with title insurance companies.
According to our legal counsel, at least seven of the largest
title insurance companies are known to have policies against
allowing tribes to sell their fee lands without approval from
the Interior Department. Tribes facing these problems are then
forced to request a legal opinion from the Interior Department
or persuade Congress to enact an exemption from the Act's
restrictions.
United Auburn is going through this process today with the
Interior Department, as we are attempting to sell a public golf
course on fee land that we purchased in 2012. The golf course
is located outside of our other United Auburn lands. It is more
than 16 miles from our tribal headquarters and more than 5
miles from our casino resort, Thunder Valley.
The title company involved with this real estate
transaction is unwilling to write a title insurance policy
without a legal opinion from the Interior Department that the
land is not subject to the Non-Intercourse Act. The issuance of
such an opinion will allow United Auburn's sale to go through,
but the Department should not have to allocate its limited
resources. Drafting an issue that cures this problem for all
federally recognized tribes is a better solution.
Over the past two decades, Congress has passed Non-
Intercourse Act waivers for specific tribes in Florida, Oregon,
Oklahoma, Minnesota, and Michigan. However, instead of adopting
a tribe-specific approach to curing this problem, H.R. 1532
addresses this issue for all federally recognized tribes and
avoids the need for Congress to continue to pass legislation
for individual tribes.
For all these reasons, United Auburn strongly supports H.R.
1532 and urges the members of the Committee on Natural
Resources to support this legislation and vote it favorably out
of Committee. Thank you for the opportunity to present United
Auburn's views on H.R. 1532.
At the appropriate time, I'm happy to answer any questions
that Members of this Subcommittee may have. Thank you.
[The prepared statement of Mr. Williams follows:]
Prepared Statement of the Honorable John Williams, Tribal Council Vice
Chairperson, United Auburn Indian Community
Chair Hageman, Ranking Member Leger Fernandez, and Members of the
Subcommittee, my name is John Williams, and I am the Tribal Vice
Chairperson of the United Auburn Indian Community (``United Auburn'' or
``Tribe''). Joining me today from our Tribal Council are Tribal
Secretary Gabe Cayton and Council Member Leonard Osorio.
United Auburn is a separate band of Maidu and Miwok Indians, who
originally occupied a village on the outskirts of the City of Auburn,
California. In 1917, the United States acquired land in trust for the
Auburn Band near the City of Auburn and formally established a
reservation, known as the Auburn Rancheria. Tribal members continued to
live on the reservation as a community despite great adversity.
In 1958, the United States enacted the Rancheria Acts, authorizing
the termination of Federal trust responsibilities to a number of
California Indian tribes, including the Auburn Band.\1\ With the
exception of a 2.8-acre parcel containing a tribal church and a park,
the government sold the land comprising the Auburn Rancheria. The
United States formally terminated Federal recognition of the Auburn
Band in 1967.\2\
---------------------------------------------------------------------------
\1\ California Rancheria Termination Act, Public Law 85-671 (Aug.
18, 1958).
\2\ Auburn Rancheria in California, Notice of Termination of
Federal Supervision Over Property and Individual Members Thereof, 32
Fed. Reg. 11,964 (Aug. 18, 1967).
---------------------------------------------------------------------------
In 1970, President Richard Nixon declared the policy of termination
a failure. In 1976, both the U.S. Senate and House of Representatives
expressly repudiated this policy in favor of a new Federal policy
entitled Indian Self-Determination.
In 1991, surviving members of the Auburn Band reorganized their
tribal government as the United Auburn Indian Community and requested
that the United States restore their Federal recognition. In 1994,
Congress passed the Auburn Indian Restoration Act, which restored the
Tribe's Federal recognition and confirmed that United Auburn may
acquire additional trust lands in Placer County.\3\
---------------------------------------------------------------------------
\3\ Auburn Indian Restoration Act, Title II, Public Law 103-434
(Oct. 31, 1994).
---------------------------------------------------------------------------
H.R. 1532 and the Indian Non-Intercourse Act
United Auburn is here today to express our strong support of H.R.
1532. As you know, this bill addresses a problem that Indian tribes can
have when they try to lease, sell, or otherwise transfer real property
that they hold in fee simple status. A very outdated statute, called
the Indian Non-Intercourse Act (``Non-Intercourse Act''), prohibits
Indian tribes from engaging in these types of real estate transactions
without formal approval from either the Interior Department or the
Congress.
H.R. 1532 would pre-empt the requirements of the Non-Intercourse
Act and permit federally recognized Indian tribes to lease, sell,
convey warrant, or otherwise transfer real property they hold in fee
simple status without the consent of the Federal government.
This is a somewhat complicated issue and let me provide the
Subcommittee with background on this issue.
The Non-Intercourse Act Problem
The Non-Intercourse Act comprises a series of laws enacted by
Congress between 1790 and 1834. The Non-Intercourse Act is codified at
25 U.S.C. Sec. 177, which states:
No purchase, grant, lease, or other conveyance of lands, or of
any title or claim thereto, from any Indian nation or tribe of
Indians, shall be of any validity in law or equity, unless the
same be made by treaty or convention entered into pursuant to
the Constitution.
The original purpose of the Act was to protect Indian tribes from
losing their lands through disadvantageous real estate transactions,
except by treaty, an act of Congress, or some other form of Federal
consent.\4\
---------------------------------------------------------------------------
\4\ See, e.g., Federal Power Comm'n v. Tuscarora Indian Nation, 362
U.S. 99, 119 (1960) (stating that the original purpose of the Non-
Intercourse Act was to ``prevent unfair, improvident or improper
disposition by Indians of lands owned or possessed by them to other
parties'' without Federal consent.).
---------------------------------------------------------------------------
While Indian tribes may have needed this protection in the 18th and
19th centuries, much has changed in Indian Country since the early
years of the United States. Tribal governments now have sophisticated
electoral and governance processes, operate leading-edge enterprises,
and use their resources to offer wide-ranging programs to benefit their
members.
There is no longer any need for the Federal government to oversee
or approve real estate transactions on parcels held in fee simple and
located outside of an Indian tribe's reservation, rancheria, or trust
lands. Individual tribal governments are in the best position to ensure
the financial well-being of their tribes and their members.
Unfortunately, attempts to lease, sell, or otherwise transfer fee
lands owned by an Indian tribe have run into challenges with title
insurance companies. On a number of occasions, these companies have not
been willing to write title insurance for the buyer of real property
held in fee status by an Indian tribe, citing the Non-Intercourse Act.
And the problem is widespread across the United States. According to
our legal counsel, at least seven (7) of the largest title insurance
companies are known to have policies against allowing Indian tribes to
sell their fee lands without approval from the Interior Department.\5\
Tribes facing this problem are then forced to request a lands opinion
from the Interior Department, or persuade Congress to enact an
exemption from the Act's restrictions.
---------------------------------------------------------------------------
\5\ The seven (7) title companies known to have a Non-Intercourse
Act policy are: Chicago Title Insurance Company, Commonwealth Land
Title Insurance Company, Fidelity National Title Insurance Company,
First American Title Insurance Company, Old Republic National Title
Insurance Company, Stewart Title Guaranty Company, and Westcor Land
Title Insurance Company.
---------------------------------------------------------------------------
The Role of the Interior Department
The Interior Department is a sympathetic partner to tribes facing
this problem and has determined that fee lands owned by a tribe are not
subject to the Non-Intercourse Act.
Solicitor's Opinion M-37023, issued in 2009, states the current
legal position of the Department that ``Federal restrictions under the
Non-Intercourse Act do not automatically attach to off-reservation
parcels acquired by a tribe in fee simple absolute.'' \6\
---------------------------------------------------------------------------
\6\ U.S. Department of the Interior, Office of the Solicitor,
Applicability of 25 U.S.C. Sec. 2719 to Restricted Fee Lands, at 6
(Jan. 18, 2009).
---------------------------------------------------------------------------
Solicitor's Opinion M-37023 also cited a 2008 letter from a senior
Interior official to a tribal leader in Wisconsin regarding the status
of fee lands located outside of reservation or trust lands. In this
letter, the Department ``agreed with the Tribe that off-reservation
land[s] the Tribe acquired in 2000 which were never owned by the Tribe
or its members in restricted status, and never held by the United
States for the Tribe or its members in trust status were not subject to
the Non-Intercourse Act and the Tribe was not required to obtain
Federal approval to convey the property.'' \7\
---------------------------------------------------------------------------
\7\ Id. at 7, citing Letter from George Skibine, Acting Deputy
Assistant Secretary--Policy and Economic Development, U.S. Department
of the Interior, to Carl W. Edwards, President, Lac du Flambeau Band of
Lake Superior Chippewa Indians of Wisconsin (Dec. 19, 2008).
---------------------------------------------------------------------------
Any tribe that is facing a Non-Intercourse Act problem with a real
estate transaction involving lands outside of its reservation,
rancheria, or trust lands can request that the Office of the Solicitor
issue a legal opinion that the specific lands at issue are not subject
to the Non-Intercourse Act and are freely alienable.
United Auburn is going through this process today, as the Tribe is
attempting to sell a public golf course on fee land that it purchased
on the open market in 2012. After more than 10 years, the Tribe has
determined, based on its business needs, that it no longer needs to own
this property. The golf course is also located remotely from other
United Auburn lands, more than 16 miles from our tribal headquarters
and more than 5 miles from Thunder Valley, our casino resort located on
trust lands.
The title company involved with this real estate transaction is
unwilling to write a title insurance policy for the purchaser of this
public golf course without a legal opinion from the Interior Department
that the land is not subject to the Non-Intercourse Act. The issuance
of such an opinion will allow United Auburn's sale to go through, but
the Department should not have to allocate its limited resources to
draft and issue these Non-Intercourse Act opinions. A legislative
solution that cures this problem for all federally recognized Indian
tribes is far more preferable.
Legislation to Exempt Individual Tribes from the Non-Intercourse Act
Congress has already been active in this area, enacting legislation
to exempt specific tribes from the restrictions in the Non-Intercourse
Act and permitting these tribes to lease, sell, or otherwise transfer
their fee lands. Specific examples include:
A 2021 statute to authorize the Seminole Tribe of Florida
to lease or transfer any real property that is not held in
trust by the United States; \8\
---------------------------------------------------------------------------
\8\ Public Law No. 117-65 (Nov. 23, 2021).
A 2018 statute, the Oregon Tribal Economic Development
Act, to allow 7 tribes in Oregon to lease or transfer their
fee lands; \9\
---------------------------------------------------------------------------
\9\ Public Law No. 115-179 (June 1, 2018).
A 2016 statute to allow the Miami Tribe of Oklahoma to
lease or transfer its fee lands; \10\
---------------------------------------------------------------------------
\10\ Public Law No. 114-127 (Feb. 29, 2016).
A 2014 statute to allow the Fond du Lac Band of Lake
Superior Chippewa in Minnesota to lease or transfer their
fee lands; \11\
---------------------------------------------------------------------------
\11\ Public Law No. 113-88 (Mar. 21, 2014).
A 2007 statute authorizing the Coquille Indian Tribe in
Oregon to convey land and interests in land owned by the
Tribe; \12\
---------------------------------------------------------------------------
\12\ Public Law No. 110-75 (Aug. 13, 2007).
A 2007 statute authorizing the Saginaw Chippewa Tribe in
Michigan to convey land and interests in land owned by the
Tribe; \13\ and
---------------------------------------------------------------------------
\13\ Public Law No. 110-76 (Aug. 13, 2007).
A 2000 statute providing that fee land owned by the Lower
Sioux Indian Community in Minnesota may be leased or
transferred by the Community without further approval by
the United States.\14\
---------------------------------------------------------------------------
\14\ Public Law No. 106-217 (June 20, 2000).
---------------------------------------------------------------------------
Summary of H.R. 1532
Instead of adopting a tribe-specific approach to curing this
problem, H.R. 1532 authorizes any federally recognized Indian tribe to
lease, sell, or otherwise transfer any fee lands that it owns without
the consent of the Federal government.
A national approach to this issue will avoid the need for Congress
to continue to pass legislation for individual tribes to exempt them
from the Non-Intercourse Act. Additionally, the Interior Department
will no longer need to respond to individual tribal requests for legal
opinions confirming that real estate transactions involving fees lands
are not subject to the Non-Intercourse Act.
Conclusion
For all these reasons, United Auburn strongly supports H.R. 1532
and urges the Members of the Committee on Natural Resources to support
this legislation and vote it favorably out of Committee.
Thank you for the opportunity to present United Auburn's views on
H.R. 1532.
______
Ms. Hageman. Thank you so much for that very important
insight as to the situation that you are dealing with.
The Chair will now recognize Members for 5 minutes for
questions, and the first Member this morning to ask questions
will be Congressman Doug LaMalfa from California.
Mr. LaMalfa. Thank you, Madam Chair. First, let me welcome
our friends and colleagues from my neighborhood at home. Vice
Chairman Williams, great to have you here today, thank you. And
is Elijah present here? Elijah Montez?
Mr. Montez. Hey.
Mr. LaMalfa. Welcome. Thanks for coming all the way to
Washington, DC with your dad today. And I think it is a very
special day for another one of your colleagues. Raymond? Hey
Raymond, 10 years old today. Congratulations, right? Raymond
and Ceenas, good to see you. I hope your birthday is a lot of
fun. You can have fun in this town; it is possible.
So, anyway, thank you, Madam Chair. To the questions here,
I'd like to--well one sidebar, I need to take advantage of the
opportunity here with Assistant Secretary Newland in the room
here. A very important issue affecting my constituents and some
just north of my district as well; you are reviewing a gaming
proposal by the Coquille Tribe about 170 miles from the Tribe's
current location, and it was previously rejected by the
Department for failing to meet Department requirements. It is
opposed by several legislators in Northern California and
Oregon, and your office has found that 11 tribes, including the
Karuk in my district, and the Tolowa to the west of me, would
be seriously impacted by the project, as would hundreds of
their employees. But your office, from what we can tell, has
yet to meet with these tribes and talk about what the effect is
going to be on them.
Can you commit to sitting down or meeting with these tribes
and hearing what their issues are going to be with a tribe that
is going to be 170 miles from its current location if approved?
Mr. Newland. Thank you, Congressman. Under our current
regulations, the Department is required to consult with tribes
that are located within 25 miles of a proposed gaming site, but
as a general matter, I generally have an open door when it
comes to tribal leaders about matters of importance and am
generally happy to meet with tribal leaders.
When it comes to the formal consultation required by our
regulations, that is a little bit different, so again, happy to
hear from them on issues of importance and just that there is a
differentiation between the formal process required by our
regulations and----
Mr. LaMalfa. Understood. I understand that well, the 25
miles, and in the past it has been pretty effective, but indeed
there are 11 tribes, including the two I mentioned right in my
immediate neighborhood: the Karuk and Tolowa, so when you are
talking about a project that Coquille is doing 170 miles from
their current location, it seems like that would kind of open
the window that the 25 miles isn't necessarily something you
have to adhere to as tightly, right? Does that seem fair?
Mr. Newland. Congressman, again I've met with other tribes
who have expressed concerns about that project, or that
proposal, and others, and I'm happy to do that.
Mr. LaMalfa. Alright, I urge you to please meet with the
others involved.
Let me jump to H.R. 1532. I think this is a very good piece
of legislation. What we are reflecting upon is, and what our
panel has talked about, we are talking about an 1834 law. This
country looked a whole lot different.
The relationship between the people that were settling here
from Europe at that time and the folks that were native to the
country looked a whole lot different at that time as well. So,
what we are looking at is an issue where H.R. 1532, where it
applies to fee land, I would like to know how does that look
any different, where tribes are trying to make autonomous
decisions on fee land--we will set aside restricted or trust
land in the conversation for a moment--how is that any
different than me, for example, as a U.S. citizen making a
transaction having to do with farmland or something like that?
Why should it be different for tribes to have to have a third
party intervene?
Mr. Newland. Thank you, Congressman, for that question. We
don't believe that it is different. We believe, at the
Department, that tribes have the ability to buy and sell fee
lands off the reservation under existing legal authority today.
So, it is not that the Department disagrees with the esteemed
tribal leaders here today about the challenges posed by private
lenders and title insurance companies. It is that the
Department disagrees with whether this legislation is necessary
in the first place.
Mr. LaMalfa. My neighbor, United Auburn, is running into
issues just dealing with the piece of golf course property, so
we will explore this more in a little bit, as my 5 minutes have
already eclipsed here, but it doesn't seem right, we are
talking fee land, that they should have these challenges that
have to have a sign-off from a congressional action or
Department action the same as anybody else would. I yield back.
Thank you, Madam Chair.
Ms. Hageman. Thank you. The Chair now recognizes the
Ranking Minority Member, Mr. Grijalva, from the beautiful state
of Arizona.
Mr. Grijalva. Thank you very much for the ``beautiful state
of Arizona,'' that was nice. Chairman Osceola, you spoke about
in your testimony, as the Department stated today, that the
Non-Intercourse Act does not apply to fee lands, and that this
is still a point of concern and a point of contention with
yourself and your members.
And your communications are particularly a point of concern
for title insurance and lender companies. So, in your
communications with these companies, did they make it clear to
the Tribe that clarifying this legislation from Congress was
necessary in order for them to proceed and do business with the
Tribe as they do with any other entity?
Mr. Osceola. In a roundabout way, yes sir, they have made
that mention. We have visited with several title companies and
insurers for the liens and mortgages on any of these properties
that we have purchased in the past, and we have been met with a
lot of red tape, so to speak. And it all comes back to the NIA,
and we introduced legislation with Representative Soto back in
2021 to help clarify that for us.
And other tribes have sought this path as well as we have;
we are not the first one to do it, and we hope we are not the
last, but we just want to make sure that in what we have
accomplished at the Seminole Tribe of Florida, and we want
everyone else to accomplish the same thing and to remove those
hurdles that are in the way of us prospering in a way that
everybody else has.
Mr. Grijalva. Assistant Secretary, welcome. Good to see you
again. At the outset to me, let me thank you. Your office and
your team have been very responsive as tribal leaders and
communities have made inquiries into our offices, we have been
able to refer them to yours, and maybe there isn't a resolution
at this moment, but the attention, the time, the effort, and
the respect that was given to those communities and tribal
leaders is very much appreciated by all of us; thank you very
much.
Other than H.R. 1532, Mr. Secretary: specifically, the
Department is kind of wary of impacting the existing case law
pertaining to the Non-Intercourse Act. Maybe there is not a
legal need for clarifying the Act; it is a question, the Act's
effect on fee lands, but going back to the question I asked the
Chairman, there seems to be a reaction from title and lending
institutions, title insurance. They interpreted it as
differently, and it then becomes an impediment.
Given that issue, does the Department have any
recommendations in terms of the legislation and working with
the author of the legislation, the Chair, with text changes
that would thread that needle, if it is even possible.
Mr. Newland. Thank you, Ranking Member. Thank you for your
kind words, I really appreciate that.
Again, when it comes to recommendations on how to address
that, I'd be happy to sit down with you and your team and other
members of the Committee to talk about that and give that some
thought. The Department doesn't dispute that this is an issue
from lenders and title insurance companies, and oftentimes,
including in my own experience, the attorneys who are advancing
this theory that if the Seminole Tribe were to buy a business
office here in Washington, DC that there has to be an extra
transaction cost on top of it, to the company, because it is an
Indian tribe buying the land, the attorneys need to take an
Indian law class, because it is a solution in search of a
problem and what we have done over the past two centuries is
build all this body of law on top of the Non-Intercourse Act,
and it is still relevant today in a lot of cases we are seeing,
and even in the Supreme Court in the past several years, that
deal with Indian land tenure, so that the concern the
Department has is unintended consequences on that body of law
which benefits and protects tribes.
And the real issue are these attorneys and lending
institutions that add these transaction costs on tribes without
any basis.
Mr. Grijalva. So, the issue is potentially undoing a
precedent that could be, on the other side, harmful to the
issues of self-determination, sovereignty, and to tribal
governments and tribes, correct?
Mr. Newland. Yes, sir.
Mr. Grijalva. I yield back, thank you.
Ms. Hageman. Thank you. The Chair now recognizes Jenniffer
Gonzalez-Colon from Puerto Rico.
Mrs. Gonzalez-Colon. Thank you, Madam Chair, and good
morning to everybody here. Happy birthday to one of our guests
today.
Vice Chairman Williams and Chairman Osceola--in his
testimony, the Assistant Secretary raised Department concerns
that any changes to the operation of the Non-Intercourse Act
may have unintended consequences. I would like to give you both
the opportunity to comment on that. Do either of you have any
concerns at all that were raised with this bill that will cause
any unintended consequences?
Mr. Osceola. Good morning, Congresswoman. Thank you for the
time. We appreciate the ability to be here this morning. The
concern raised by the Interior, I think, are not our concerns
at this time of the Seminole Tribe, and I think we recognize
the benefits of the bill that was passed in 2021.
The Tribe has flourished in its sovereign wealth fund
activities. We have bought nine properties total--we sold one
and we have kept eight. At this point, we hope to continue to
further expand on that. Our hurdle was that every title company
we went to except for the exception of one, told us that we
needed to have congressional approval to get the insurance of
the lien or even title, anything of that property, in our name.
That was a challenge that we had, and again, as I stated in
my statement, the ability for us to do that without
congressional approval put many hurdles in the way and stalled,
and we actually lost deals. If anyone knows how a deal works,
it doesn't sit on the table for long, and we lose the
opportunity to bid, purchase, and acquire any of that stuff in
the future.
So, the removal of that helped us, and I am sure it helped
a lot of other tribes, because we weren't the first ones. There
were other tribes that came before us, and I think that every
other tribe that had come before us would probably share the
same sentiment that I'm sharing with you today on behalf of the
Seminole Tribe and the tribes that will come after me and the
Seminole Tribe will probably express the same thing. I do agree
there might be some challenges for other tribes, but again, I
think the sophistication of the world that we live in today
that we adapted, and we are ready to conquer. Thank you.
Mrs. Gonzalez-Colon. I do agree with you 100 percent.
Chairman Williams, do you want to add something?
Mr. Williams. Yes Madam, we would just like to work with
the Department to make sure this goes through. We always enjoy
working with our partners to make things easier for Native
American tribes. Thank you.
Mrs. Gonzalez-Colon. Thank you. Very politically correct. I
do believe in both bills, and they will ensure clarity to the
process and, of course, allow you guys to have an expedited
process to make those deals.
The remainder of my time I wanted to yield to my fellow
Member and colleague from California, Mr. LaMalfa.
Mr. LaMalfa. Thank you, my great colleague from Puerto
Rico, I appreciate it. I agree with you on your positions there
too. So, to Assistant Secretary Newland, just following up:
bottom line, is it the Department's position that this
legislation will change how the Department administers on trust
land or land held in restricted fee?
Mr. Newland. Thank you, Congressman. The Department's
position, I wouldn't say yes to that, but the challenge we face
with this legislation is we don't know the consequences and how
it would interact with two centuries of case law that have been
built on top of the Non-Intercourse Act and how it would affect
Indian land tenure and other places in other contexts.
Mr. LaMalfa. OK, so not a clear yes, but indeed an issue
``unintended consequence''; I've heard it several times
alright, and again we are talking about--the original law in
1834, the United States only had 24 states at that time. Only
two of them, I think, were west of the Mississippi. So, there
were a whole bunch of states that didn't have a legal status at
the time.
I think tribes these days are certainly up to the task of
figuring out how to protect themselves. We have heard testimony
a couple times here too about the ability to do simple
transactions, to get title insurance, is tainted or maybe seen
as impossible, so that really restricts their ability to
directly do business in a modern age. I don't know that they
really need that much protection from themselves as the
Department is asserting here, so I appreciate the time, and I
will yield back. Thank you.
Ms. Hageman. Thank you. The Chair now recognizes herself
for my questions.
Mr. Newland, over the past 10 years, do you know how many
leases the Department has approved under the Long-Term Leasing
Act that were for a period of up to 99 years?
Mr. Newland. I don't, Madam Chair, but will be happy to
follow up with an answer to that.
Ms. Hageman. But you are aware that there have been some?
Mr. Newland. Yes.
Ms. Hageman. OK, from your experience and professional
knowledge, have these leases been beneficial to the tribes?
Mr. Newland. On the whole I believe so, yes.
Ms. Hageman. Good. And how has the BIA supported efforts
for tribal leaders to have longer term leases?
Mr. Newland. Ten years ago, we reformed the BIA's leasing
regulations to try to make that process faster, and I believe
that has been successful and provides more deference to tribes
in making decisions about leases, both in terms of compensation
and term, as well as implementing the HEARTH Act, which we are
almost to 100 tribes that have taken over the leasing under
tribal law and we try to get those requests approved
expeditiously so that we are not interfering with tribal land
use decisions.
Ms. Hageman. You have voiced some concerns about H.R. 1532
and you have mentioned that you believe that there were
potentially unintended consequences and that is in relation to
how this particular Act would play out against the existing
case law. Is that correct?
Mr. Newland. Yes, Madam Chair.
Ms. Hageman. Is there anything beyond your concern about
the inter-relationship between this Act and the long history of
case law that we have?
Mr. Newland. Not at this time. What I can add, if you'd
like Madam Chair, is I don't dispute, and the Department
doesn't dispute, that the issues raised by the tribal leaders
on the panel are real, because I've experienced those myself.
The issue is not the law. The law as it exists right now
allows tribes to purchase and sell fee land for business
purposes, home sites. That already exists. The issue is the
lack of understanding of the law by some of these lending
institutions and title insurance companies, and we are happy
to, again, continue this discussion and assist tribes, as the
Vice Chairman noted, but the law itself is not the impediment--
it is the companies' lack of understanding of it.
Ms. Hageman. Well, that raises an interesting point, which
is it isn't necessarily unusual for Congress to clarify a
particular law to address those kinds of concerns, isn't that
right?
Mr. Newland. Correct.
Ms. Hageman. OK, so I see the role of Congress that if
there is confusion or there is something that needs to be
addressed, because as you say, they just need to go and read
the case law, I don't necessarily disagree with that, but if we
have the opportunity to clarify something that is going to give
our tribes the autonomy that they seek, don't you think that
that could be beneficial?
Mr. Newland. I do. Generally, Madam Chair, we saw again
just last year, the Supreme Court made decisions about the
status of reservations in Indian land tenure and it is all
built upon the Non-Intercourse Act, which was one of the very
first laws that this country's Congress enacted to address the
acquisition of Indian lands. So much that we rely upon in
Indian Country rests on top of that law, and our concern is if
we pulled a Jenga block out from the bottom row, we don't know
how that affects everything else.
Ms. Hageman. Mr. Newland, could I request a commitment from
you to work with us to address what some of those concerns may
be so that we can clarify and make this easier and better for
our tribes to be able to have the autonomy that they so
rightfully deserve?
Mr. Newland. Madam Chair, I would be happy to have those
conversations and to help tribes not have to endure the hassle
and the expense that are imposed by some of these companies
that they deal with.
Ms. Hageman. And Chairman Osceola, I have a couple of
questions for you. Your testimony detailed how uncertain it was
to work with title insurance and lenders without the certainty
of the Tribe having Non-Intercourse Act waiver legislation
signed into law. Do you know why the one title insurer took the
risk of insuring title, and did they have a different
understanding than the other title companies?
Mr. Osceola. We did what we could to try to get them to
understand the law, but I think the question that is raised is
that there are so many other lending agencies that weren't up
to speed, as Secretary Newland has mentioned, that is a
challenge that we all face as tribes, that maybe one might
understand how it works, but not all understand how it works,
and they are not keeping up with legislation.
And I think that is a challenge, that they are not willing
to go and look at the legislation, and yes it calls for
additional fees, attorney fees and closing fees, because we
have to try to educate them, and if we didn't do a good job or
they didn't do a good job understanding what that education
process was from our side or their side, then they deny it and
we are not able to move forward. Then we were able to find just
that one company out of so many that we looked for, and it was
not only in the state of Florida, but all across the country,
just to find somebody and the local areas where we were buying
real estate, so the challenges are faced not only by us, but by
the tribes. I understand the concerns raised by the Department,
but again we are all moving fast and the world is growing way
beyond us, so we need to keep up as tribes, and this is one of
the ways that we believe at the Seminole Tribe that we can
advance ourselves even further if we can get this removed, if
not amended, as you are so speaking with Secretary Newland on
how we can make it easier for everybody, because what we have
experienced since 2021 and that law being introduced and
passed, we have experienced a lot easier path to acquiring
lands off-reservation.
Ms. Hageman. Well, H.R. 1532 is quite simple and
straightforward, and I would assume that our title insurance
companies could read that and understand it, and perhaps that
just takes away one of those moving parts that we don't need.
Mr. Osceola. Agreed.
Ms. Hageman. With that, I believe that--please go ahead.
Mr. Grijalva. Thank you, Madam Chair for indulgence. Mr.
Secretary, it is the two issues, the two pieces of legislation.
I support one very much and will continue to do so. The second
one, I support the concept and the intention on the title
companies, and insurance, and the lenders, that you have to
treat federally recognized tribes and their representatives
with equity as you do any other, whether it is the
municipality, or an individual, or whatever. So, I support that
intent.
The challenge to some precedents and the Intercourse Act
causes me hesitation in the sense that, as my colleague said,
unintended consequences. The unintended consequences could be
pretty big in terms of tenure and other issues that have been
established by case law. Could you provide to the Committee
perhaps in that overview and that discussion about text that
the Chair is going to engage with you in, some examples that
that potentially could be. And I say that because as we go
further through this legislation and it moves along, those
examples are going to come up, and then there are going to be
the challenges to the legislation based on an unintended
consequence and an example of what could happen to dilute self-
determination and sovereignty for tribes. I want to avoid that
and I know the Chair does as well, so if you could provide us
some examples and that maybe leads to the conversation about
what needs to be done with text and how we can legislate the
intent to title, and insurance, and lenders in terms of how
they deal with tribes specifically and generally not have to
rely on a piece-by-piece legislation that a given Senator might
hold up for years because they are worried about market share
or competition to their region. So, if you would, I would
appreciate it.
Thank you, Madam Chair, for the indulgence.
Ms. Hageman. Wonderful, thank you. I'm just going to ask
one more question that I want to make sure, I have a question
for Vice Chairman Williams. You mentioned in your remarks that
a title company is refusing to provide title insurance to the
company that wants to purchase your public golf course. They
are telling you that the Interior Department needs to issue a
legal opinion stating that the sale is not subject to the Non-
Intercourse Act. Is the Department of the Interior being
cooperative in responding to your request for this legal
opinion?
Mr. Williams. Yes, Madam Chair, they have been very
responsive, and we are in the process of getting a legal
opinion that our golf course property is not subject to the
Non-Intercourse Act. However, as the problem becomes more
widespread, the Department could be overwhelmed with these
types of requests. It makes more sense for Congress to act and
address this problem up front. H.R. 1532 does that.
Ms. Hageman. OK. Thank you very much, and I want to thank
the witnesses for your valuable testimony and for traveling to
Washington, DC. I hope that you have an opportunity to see some
of the beautiful cherry trees, the cherry blossoms out there.
It was a gorgeous day coming in this morning.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
these in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Committee Clerk by 5
p.m. on Thursday, March 30, and the hearing record will be held
open for 10 business days for these responses.
If there is no further business, without objection the
Subcommittee stands adjourned.
[Whereupon, at 9:57 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submission for the Record by Rep. Westerman
Statement for the Record
Michael Chavarria
Governor of the Pueblo of Santa Clara, New Mexico
Introduction
Thank you, Chairperson Hageman, Ranking Member Leger Fernandez, and
Subcommittee Members for the opportunity to share our experience with
99 year leasing authority for our lands. My name is J. Michael
Chavarria and I am the Governor of the Pueblo of Santa Clara in New
Mexico. The ability to negotiate leases with a period that may last up
to 99 years better respects our status as a sovereign Tribal Nation and
has produced vital benefits to the Pueblo in the forms of economic
development and building long-term business relationships with
nationally known and diverse companies.
Our Pueblo
The Pueblo is a sovereign Tribal Nation located in north-central
New Mexico. The Pueblo and our sister Pueblos have operated as
sovereign governments since time immemorial. We have formed political
relationships with foreign governments dating back to at least the 16th
century, when we negotiated treaties with the Spanish conquistadores
during their early explorations of the southwest. Both the Spanish
Crown and the United States recognized the Pueblos' right to self-rule
and declared that Pueblos be presided over by tribal Governors with
ownership of their land. In acknowledgment of our intimate and time-
honored connection to our land and nation-to-nation relationship,
President Lincoln bestowed each pueblo with a silver-tipped cane, which
we proudly carry today. The Pueblo has land sites that can be traced
back to our original land grant which we now hold in restricted fee
simple status. The Pueblo's land base includes land sites within a
major metropolitan area in Northern New Mexico.
The Pueblo actively pursued the expansion of its 99-year leasing
authority resulting in the enactment of Public Law 115-227 in 2018.
Prior to the enactment of Public Law 115-227, the Pueblo's 99-year
leasing authority was limited to lands held in trust by the federal
government, but that excluded our restricted fee lands, which encompass
the most attractive locations for potential business lessees. The 2018
Act extended 99-year leasing authority to all of our lands.
In coordination with our wholly owned Santa Clara Development
Corporation (SCDC), the Pueblo currently utilizes the ability to
negotiate 99-year leases to create economic opportunities on our land
for the benefit of our citizens and community. In 2019, the Secretary
of the Interior approved our 99-year leases between the Pueblo and
SCDC. SCDC now uses its approved leases to enter into diverse business
arrangements and subleases with other entities to support the essential
governmental and community services of the Pueblo. As discussed below,
the Pueblo's ability to leverage its 99-year leases has furthered our
sovereignty, incentivized investments on our land, and allowed us to
attract businesses to build valuable partnerships.
Sovereignty
Our Pueblo's ability to negotiate leases for a duration that best
meets our community's needs, as determined by our leaders, is key to
our sovereign status. Current restrictions under 25 U.S.C. Sec. 415(a)
limit a Tribal Nation's ability to negotiate longer term leases even if
Tribal leaders determine that negotiating a longer lease term is
appropriate. The current limitation of 25-year leases for those Tribal
Nations not listed in the exceptions under Section 415(a) substantially
restricts those Tribal Nations from exercising their sovereignty to
determine whether to negotiate a lease with a term that exceeds 25
years. The Pueblo, not subject to the 25-year limit, is able to
exercise its sovereignty to determine whether to negotiate leases with
a longer term in light of the various considerations in leasing
arrangements.
Incentivizing Investments
The Pueblo's ability to enter into leases for a longer duration
incentivizes much-needed outside investment in our community. A common
challenge for tribal leaders across Indian Country is finding
successful business opportunities, particularly from non-Indian
companies, that can be leveraged to grow our local economies. The
ability to negotiate leases for up to 99 years better reflects current
realities within the business world and allows Tribal land to better
attract business opportunities that can benefit our citizens and
community.
In our experience, businesses generally expect commercial property
leases to have a duration that justifies the investments required to
operate their business at a profit. Currently, restrictions on Tribal
land leases do not reflect current market expectations and, therefore,
poses a challenge to economic development. For example, the Helping
Expedite and Advance Responsible Tribal Home Ownership Act of 2012
(HEARTH Act) only permits business leases for up to 25 years with the
potential to renew for up to two additional terms which may not
individually exceed 25 years. While the HEARTH Act represents
significant legislation for Tribal self governance, it is constrained
by applicable lease term limits that prevent the law from reaching its
full potential and reflecting current business realities. Therefore,
H.R. 1246 is an important step in amending federal law to reflect
current business expectations by permitting longer term property
leases. The Pueblo hopes that other relevant federal statutes, such as
the HEARTH Act, can be amended to permit longer term leases of Tribal
land to further promote Tribal sovereignty and economic development.
For example, the Pueblo recently partnered with a national
telecommunications provider to lease our land for a cellular tower. As
a result of this transaction, the telecommunications provider would pay
the costs to build the cell tower which is owned by the Pueblo. In
exchange, the Pueblo agreed to allow the telecommunications provider to
use the tower for their services without paying a fee for a specified
number of years.
The crucial component to this arrangement was the term of the lease
which allowed the transaction to be mutually beneficial. As a result of
a long-term lease, the telecommunications provider is able to recover
its investments in building the tower and is then able to enhance its
services through using the Pueblo's tower. The Pueblo benefits from
this transaction as it receives a cellular tower without having to pay
for its construction. Additionally, the Pueblo can then use this tower
to enter into agreements with other telecommunications providers to use
the tower for their services at a fee. This is a valuable opportunity
to the Pueblo which was made possible by the ability to negotiate
leases for a longer term.
Looking forward, the Pueblo and SCDC plan to leverage our 99-year
leasing authority to negotiate and attract a regional or national
retailer to our land. The flexibility in negotiation from our 99-year
lease can incentivize a retailer to invest in a business on our land
with the ability to recover that initial investment throughout the term
of a lease.
Building Relationships
The Pueblo's ability to negotiate long-term leases supports strong
relationships with our business partners and encourages other
businesses to partner with the Pueblo. Longer term leases allow the
Pueblo to develop trusted partnerships with those businesses that
decide to operate on our land. These trusted partnerships improve the
Pueblo's standing in the business community and our ability to enter
into new profitable relationships.
For example, SCDC has entered into an arrangement by which a
Fatburger restaurant franchise has opened up on our land. Longevity in
our partnership with Fatburger was core to this arrangement for both
SCDC and the Fatburger chain. Fatburger, like all other businesses, is
working to grow its brand and expand its business operations in a
sustainable manner. A longer term lease not only allows the Fatburger
franchise to grow but also demonstrates the Pueblo's commitment to
supporting the Fatburger chain as a valued business partner.
The ability to negotiate a longer term lease can enable Tribal
Nations to build strong and trusting relationships with their partners.
A shorter term lease can be subject to disruption that prevents the
partnership from reaching its full potential such as premature lease
expiration. The Pueblo has experienced significant interest in entering
conversations on economic partnerships when outside companies are aware
of potential lease lengths.
Conclusion
Thank you for the opportunity to testify on the Pueblo's experience
with its 99-year leases. The Pueblo's ability to leverage its 99-year
leases has furthered our sovereignty, incentivized investments on our
land, and allowed us to attract businesses to build valuable
partnerships. On behalf of the Pueblo of Santa Clara, kuunda and thank
you.
[all]