[Senate Report 108-48]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 99
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-48
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 AMENDING THE ACT OF AUGUST 9, 1955, TO EXTEND THE TERMS OF LEASES OF 
         CERTAIN RESTRICTED INDIAN LAND, AND FOR OTHER PURPOSES

                                _______
                                

                  May 15, 2003.--Ordered to be printed

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 521]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 521) to amend the Act of August 9, 1955, to extend the 
terms of leases of certain restricted Indian land, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment in the nature of a substitute and 
recommends that the bill (as amended) do pass.

                                Purpose

    The purpose of S. 521 is to amend the Act of August 9, 
1955, 25 U.S.C. 415, Pub. L. 83-255 to expedite the leasing of 
tribal lands by eliminating duplicative Federal and tribal 
procedures for the leasing of Indian reservation lands.

                               Background

    Article I, section 8, clause 3 of the United States 
Constitution authorizes Congress to regulate commerce with 
Indian tribes. Under current law, the approval of the Secretary 
of the Interior is required for any lease of Indian lands held 
in trust by the United States for any Federally-recognized 
Indian tribe in the United States for a term of up to 25 
years.\1\
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    \1\ 25 U.S.C. 415(a).
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    Indian tribes have long complained of the bureaucratic 
delays in securing secretarial approvals and the loss of 
economic opportunities resulting from those delays.
    To attract and retain investment and encourage 
entrepreneurial activity, Indian tribes require an efficient 
leasing process that is less time-consuming than the current 
Interior Department review. In addition, tribes need the 
flexibility to execute leases for terms longer than the current 
25 year limit.
    Since its enactment in 1955, the original Act has been 
amended over 38 separate times to reflect the tribes' wishes 
that their leases include terms longer than 25 years.\2\
---------------------------------------------------------------------------
    \2\ Id.
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    Because many tribes have established land leasing 
regulations, in many cases a typical lease on Indian 
reservation land must be approved twice--once by the tribe and 
then again by the Secretary. This results in serious delays 
that become a barrier to economic development on Indian lands.
    The new framework included in the substitute amendment to 
S. 521 authorizes the Secretary to approve an Indian tribe's 
regulations governing the leasing of its tribal lands--except 
for leases involving the exploration or development of mineral 
resources--and, once approved, leases of Indian trust lands 
will no longer require Secretarial approval. The terms of such 
leases may not exceed the time frames specified in the bill.

                          Legislative History

    The Indian Lands Leasing Act of 2003 was introduced on 
March 5, 2003 by Senator Campbell, for himself and for Senator 
Inouye, and was referred to the Committee on Indian Affairs. On 
April 10, 2003, the Committee on Indian Affairs convened a 
business meeting to consider S. 521 and other measures that had 
been referred to it. On that date the Committee favorably 
reported an amendment in the nature of a substitute to S. 521.

            Committee Recommendation and Tabulation of Vote

    On April 10, 2003, the Committee on Indian Affairs, in an 
open business session, adopted an amendment in the nature of a 
substitute to S. 521 by voice vote and ordered the bill, as 
amended, reported favorably to the Senate.

        Section-by-Section Analysis of the Substitute Amendment

    A section-by-section analysis of the amendment in the 
nature of a substitute follows.

Section 1. Short title

    This Act may be cited as the Indian Lands Leasing Act of 
2003.

Section 2. Authorization of 99-year leases

    This section amends subsection (a) of the Act of August 9, 
1955, 25 U.S.C. 415, to provide that leases of restricted lands 
held by the Confederated Tribes of the Umatilla Indian 
Reservation, the Yurok Tribe, the Hopland Rancheria, and the 
Muckleshoot Tribe may be of terms not to exceed 99 years.

Section 3. Lease of tribally-owned land by the Assiniboine and Sioux 
        Tribes of the Fort Peck Reservation

    This section authorizes the Assiniboine and Sioux Tribes of 
the Fort Peck Reservation of Montana to lease land to the 
Northern Border Pipeline Company land for one or more gas 
pipelines for a term of 25 years beginning in 2011. The lease 
may be renewed for another 25 years and the rental rate for 
land shall be increased by 3 percent per annum for each 5-year 
period.

Section 4. Certification of rental proceeds

    This section provides that any revenue accrued from renting 
land acquired under Farmers Home Administration Direct Loan 
Act, 25 U.S.C. 488 shall be considered the rental value of that 
land and considered the appraisal value of that land.

Section 5. Montana Indian Tribes; agreement with Dry Prairie Rural 
        Water Association, Incorporated

    Section 5 provides that the Assiniboine and Sioux Tribes of 
the Fort Peck Indian Reservation of Montana may enter into a 
lease agreement with the Dry Prairie Rural Water Association 
for the temporary conveyance of water rights recognized under 
the Fort Peck-Montana Compact to meet the water needs of the 
association for a term not to exceed 100 years.

Section 6. Leases of restricted Indian land; non-Indian land business 
        partners on Indian land

    This section amends the Act of August 9, 1955 regarding 
leases of restricted Indian lands to provide that, at the 
discretion of any Indian tribe, any lease approved by a tribe 
for any use permitted under 25 U.S.C. 415 shall not require the 
Secretary of the Interior's approval if the lease is executed 
pursuant to tribal regulations approved by the Secretary. The 
lease term may not exceed 99 years.
    Section 6 also authorizes the Secretary to approve or 
disapprove such tribal regulations, and sets forth the process 
for the Secretary to review and approve or disapprove the 
regulations. This section also provides that the United States 
shall not be liable for losses sustained by any party--
including the Indian tribe--to a lease executed pursuant to 
such tribal regulations.

                    Cost and Budgetary Consideration

    The cost estimate for S. 521 as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 28, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 521, the Indian Land 
Leasing Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker.
            Sincerely,
                                          Barry B. Anderson
                                  (For Doug Holtz-Eakin, Director).
    Enclosure.

S. 521--Indian Land Leasing Act of 2003

    CBO estimates that enacting S. 521 would have no 
significant impact on the federal budget. Enacting S. 521 would 
not affect direct spending or revenues. The bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impost no costs on 
state, local, or tribal governments.
    S. 521 would add four Indian tribes to the list of tribes 
that can lease lands held in trust for up to 99 years. Under 
current law, these tribes may only enter into leases on lands 
in trust that do not exceed 25 years. S. 521 also would allow 
other tribes to enter into such long-term leases without the 
approval of the Secretary if certain requirements are met. 
Based on information provided by the Bureau of Indian Affairs, 
CBO expects that implementing this change in lease terms could 
result in a small administrative cost savings to that agency 
because of less frequent lease renewals. However, CBO estimates 
that any such savings would be less than $500,000 a year over 
the 2003-2008 period.
    The CBO staff contact for this estimate is Lanette J. 
Walker. This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

    Paragraph 11(b) of the rule XXVI of the Standing Rules of 
the Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in implementing the legislation. The Committee has 
concluded that enactment of S. 521 will create only de minimis 
regulatory or paperwork burdens.

                        Executive Communications

    The Committee has received no official communication from 
the Administration on the provisions of the amendment in the 
nature of a substitute to S. 521.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 521 will result in the following changes in 25 
U.S.C. Sec. 415 et seq., (with existing law proposed to be 
omitted is enclosed in black brackets and the new language to 
be added in italic):

                            25 U.S.C. 415(a)

    (a) Authorized Purposes; Term; Approval by Secretary.--Any 
restricted Indian lands, whether tribally, or individually 
owned, may be leased by the Indian owners, with the approval of 
the Secretary of the Interior, for public, religious, 
educational, recreational, residential, or business purposes, 
including the development or utilization of natural resources 
in connection with the operations under such leases, for 
grazing purposes, and for those farming purposes which require 
the making of a substantial investment in the improvement of 
the land for the production of specialized crops as determined 
by said Secretary. All leases so granted shall be for a term of 
not to exceed twenty-five years, except leases of land located 
outside the boundaries of Indian reservations in the State of 
New Mexico, leases of land on the Agua Caliente (Palm Springs) 
Reservation, the Dania Reservation, the Pueblo of Santa Ana 
(with the exception of the lands known as the ``Santa Ana 
Pueblo Spanish Grant'') the Moapa Indian Reservation, the 
Swinomish Indian Reservation, the Southern Ute Reservation, the 
Fort Mojave Reservation, the Reservation of the Confederated 
Tribes of the Umatilla Indian Reservation, the Burns Paiute 
Reservation, the Coeur d'Alene Indian Reservation, the Kalispel 
Indian Reservation, the Pueblo of Cochiti, the Pueblo of 
Pojoaque, the Pueblo of Tesuque, the Pueblo of Zuni, the 
Hualapai Reservation, the Spokane Reservation, the San Carlos 
Apache Reservation, the Yavapai-Prescott Community Reservation, 
the Pyramid Lake Reservation, the Gila River Reservation, the 
Soboba Indian Reservation, the Viejas Indian Reservation, the 
Tulalip Indian Reservation, the Navajo Reservation, the Cabazon 
Indian Reservation, The Muckleshoot Indian Reservation and land 
held in trust for the Muckleshoot Indian Tribe, the Mille Lacs 
Indian Reservation with respect to a lease between an entity 
established by the Mille Lacs Band of Chippewa Indians and the 
Minnesota Historical Society, leases of the lands compromising 
the Moses Allotment Numbered 10, Helen County, Washington[,], 
and lands held in trust for the Twenty-Nine Palms Band of 
Luiseno Mission Indians, and lands held in trust for the Reno 
Sparks Indian Colony, lands held in trust for the Torres 
Martinez Desert Cahuilla Indians, lands held in trust for the 
Guidiville Band of Pomo Indians of the Guidiville Indian 
Rancheria, lands held in trust for the Confederated Tribes of 
the Umatilla Reservation, lands held in trust for the Pueblo of 
Santa Clara, lands held in trust for the Yurok Tribe, lands 
held in trust for the Hopland Band of Pomo Indians of the 
Hopland Rancheria, lands held in trust for the Confederated 
Tribes of the Coville Reservation, lands held in trust for the 
Cahuilla Band of Indians of California, lands held in trust for 
the Confederated Tribes of the Grand Ronde Community of Oregon, 
and the lands held in trust for the Confederated Salish and 
Kootenai Tribes of the Flathead Reservation, Montana, and 
leases to the Devils Lake Sioux Tribe, or any organization of 
such tribe, of land on the Devils Lake Sioux Reservation which 
may be for a term of not to exceed ninety-nine years, and 
except leases of land for grazing purposes which may be for a 
term of not to exceed ten years. Leases for public, religious, 
educational, recreational, residential, or business purposes 
(except leases the initial term of which extends for more than 
seventy-four years) with the consent of both parties may 
include provisions authorizing their renewal for one additional 
term of not to exceed twenty-five years, and all leases and 
renewals shall be made under such terms and regulations as may 
be prescribed by the Secretary of the Interior. Prior to 
approval of any lease or extension of an existing lease 
pursuant to this section, the Secretary of the Interior shall 
first satisfy himself that adequate consideration has been 
given to the relationship between the use of the leased lands 
and the use of neighboring lands; the height, quality, and 
safety of any structures or other facilities to be constructed 
on such lands; the availability of police and fire protection 
and other services; the availability of judicial forums for all 
criminal and civil causes arising on the leased lands; and the 
effect on the environment of the uses to which the leased lands 
will be subject.

                            25 U.S.C. 415(f)

    (f) Approval of, and Regulations Relating to, Tribal 
Leases.--
          (1) Definitions. In this subsection:
                  (A) Indian tribe.--The Term ``Indian tribe'' 
                has the meaning given the term in section 4 of 
                the Indian Self-Determination and the Education 
                Assistance Act (25 U.S.C. 450b).
                  (B) Secretary.--The term ``Secretary'' means 
                the Secretary of the Interior.
          (2) Approval of leases.--At the discretion of any 
        federally recognized Indian tribe, a lease by the 
        federally recognized Indian tribe for a purpose 
        authorized under subsection (a) (not including any 
        lease for the exploration, development, or extraction 
        of any mineral resource) shall not require the approval 
        of the Secretary if--
                  (A) the lease is executed under the tribal 
                regulations approved by the Secretary under 
                paragraph (3); and
                  (B) the term of the lease does not exceed--
                          (i) in the case of a business or 
                        agricultural lease, 99 years; and
                          (ii) in the case of a lease for a 
                        public, religious, educational, 
                        recreational, or residential purpose, 
                        99 years, if such a term is provided 
                        for by the federally recognized Indian 
                        tribe in the tribal regulations.
          (3) Tribal regulations.--
                  (A) In general.--The Secretary may approve or 
                disapprove tribal regulations referred to in 
                paragraph (2)(B)(ii).
                  (B) Approval and disapproval.--Not later than 
                90 days after the date on which the Secretary 
                receives tribal regulations described in 
                paragraph (2)(B)(ii) from a federally 
                recognized Indian tribe (or such later date as 
                may be established by the Secretary, after 
                consultation with the Indian tribe), the 
                Secretary shall--
                          (i) review the tribal regulations; 
                        and
                          (ii)(I) if the Secretary determines 
                        that the tribal regulations are 
                        consistent with the regulations of the 
                        Secretary promulgated under subsection 
                        (a)--
                                  (aa) approve the regulations; 
                                and
                                  (bb) provide for an 
                                environmental review process 
                                with respect to the 
                                regulations; or
                          (II) if the Secretary determines that 
                        the regulations are not consistent with 
                        the regulations of the Secretary 
                        promulgated under subsection (a)--
                                  (aa) disapprove the 
                                regulations; and
                                  (bb) provide to the Indian 
                                tribe that submitted the tribal 
                                regulations a written 
                                explanation that describes the 
                                basis for the disapproval.
          (4) Executed leases.--If a federally recognized 
        Indian tribe has executed a lease under paragraph (2) 
        in accordance with tribal regulations approved under 
        paragraph (3), the Indian tribe shall provide to the 
        Secretary--
                  (A) a copy of the lease (including all 
                amendments to and renewals of the lease); and
                  (B) in the case of a tribal regulation or 
                lease that permits payments for the lease to be 
                made directly to the Indian tribe, 
                documentation of the payments that is 
                sufficient to enable the Secretary to discharge 
                the trust responsibility of the United States 
                under paragraph (5)(B).
          (5) Liability and trust responsibility.--
                  (A) Liability.--The United States shall not 
                be liable for any loss sustained by any party 
                to a lease approved under paragraph (2) in 
                accordance with tribal regulations approved 
                under paragraph (3) (including any loss by an 
                Indian tribe).
                  (b) Trust responsibility.--Nothing in this 
                paragraph diminishes or otherwise affects the 
                authority of the secretary to take appropriate 
                actions, including the cancellation of a lease, 
                in furtherance of the trust obligation of the 
                United States to an Indian tribe.
          (6) Compliance review.--
                  (A) In general.--After exhaustion of tribal 
                remedies, any person may submit to the 
                Secretary, in a timely manner, a petition to 
                review compliance of an Indian tribe with 
                tribal regulations of the Indian tribe approved 
                under paragraph (3).
                  (B) Action by secretary.--The Secretary 
                shall--
                          (i) review compliance of an Indian 
                        tribe described in subparagraph (A); 
                        and
                          (ii) on completion of the review, if 
                        the Secretary determines that an Indian 
                        tribe is not in compliance with tribal 
                        regulations approved under this 
                        subsection, take such action as is 
                        necessary to compel compliance, 
                        including--
                                  (I) rescinding a lease 
                                approved under paragraph (2); 
                                or
                                  (II)(aa) suspending a lease 
                                approved under paragraph (2) 
                                until an Indian tribe is in 
                                compliance with tribal 
                                regulations; and
                                  (bb) rescinding approval of 
                                the tribal regulations and 
                                reassuring the responsibility 
                                for approval of leases under 
                                paragraph (2).
                  (C) Compliance.--If the Secretary seeks to 
                compel compliance of an Indian tribe with 
                tribal regulations under subparagraph (B)(ii), 
                the Secretary shall--
                          (i) make a written determination that 
                        describes the manner in which the 
                        tribal regulations have been violated;
                          (ii) provide the Indian tribe with a 
                        written notice of the violation 
                        together with the written 
                        determination; and
                          (iii) before taking any action 
                        described in subparagraph (B)(ii) or 
                        seeking any other remedy, provide the 
                        Indian tribe with a hearing and a 
                        reasonable opportunity to attain 
                        compliance with the tribal regulations.
          (7) Applicability.--This subsection shall not apply 
        to individually owned Indian allotted land.

                            25 U.S.C. 415(g)

          (1) In general.--Notwithstanding subsection (a) and 
        any regulations under part 162 of title 25, Code of 
        Federal Regulations (or any successor regulation), 
        subject to paragraph (2), the Assiniboine and Sioux 
        Tribes of the Fort Peck Reservation may lease to the 
        Northern Border Pipeline Company tribally-owned land on 
        the Fort Peck Indian Reservation for 1 or more 
        interstate gas pipelines.
          (2) Conditions.--A lease entered into under paragraph 
        (1)--
                  (A) shall commence during fiscal year 2011 
                for an initial term of 25 years;
                  (B) may be renewed for an additional term of 
                25 years; and
                  (C) shall specify in the terms of the lease 
                an annual rental rate--
                          (i) which rate shall be increased by 
                        3 percent per year on a cumulative 
                        basis for each 5-year period; and
                          (ii) the adjustment of which in 
                        accordance with clause (i) shall be 
                        considered to satisfy any review 
                        requirement under part 162 of title 25, 
                        Code of Federal Regulations (or a 
                        successor regulation).

                            25 U.S.C. 415(h)

    Notwithstanding any other provision of law, any actual 
rental proceeds from the lease of land acquired under section 1 
of Public Law 91-229 (25 U.S.C. 488) certified by the Secretary 
of the Interior shall be deemed--
          (1) to constitute the rental value of that land; and
          (2) to satisfy the requirement for appraisal of that 
        land.

                            25 U.S.C. 415(i)

    (a) In General.--The Assiniboine and Sioux Tribes of the 
Fort Peck Indian Reservation (referred to in this section as 
the ``Tribes'') may, with the approval of the Secretary of the 
Interior, enter into a lease or other temporary conveyance of 
water rights recognized under the Fort Peck-Montana Compact 
(Montana Code Annotated 84-20-201) for the purpose of meeting 
the water needs of the Dry Prairie Rural Water Association, 
Incorporated (or any successor entity), in accordance with 
section 5 of the Fort Peck Reservation Rural Water System Act 
of 2000 (114 Stat. 1454).
    (b) Conditions of Lease.--With respect to a lease or other 
temporary conveyance described in subsection (a)--
          (1) the term of the lease or conveyance shall not 
        exceed 100 years; and
          (2)(A) the lease or conveyance may be approved by the 
        Secretary of the Interior without monetary compensation 
        to the Tribes; and
          (B) the Secretary of the Interior shall not be 
        subject to liability for any claim or cause of action 
        relating to the compensation or consideration received 
        by the Tribes under the lease or conveyance.
    (c) No Permanent Alienation of Water.--Nothing in this 
section authorizes any permanent alienation of any water by the 
Tribes.

                                
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