[House Report 112-427]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-427
======================================================================
 
 HELPING EXPEDITE AND ADVANCE RESPONSIBLE TRIBAL HOME OWNERSHIP ACT OF 
                                  2011

                                _______
                                

 April 16, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 205]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 205) to amend the Act titled ``An Act to 
authorize the leasing of restricted Indian lands for public, 
religious, educational, recreational, residential, business, 
and other purposes requiring the grant of long-term leases'', 
approved August 9, 1955, to provide for Indian tribes to enter 
into certain leases without prior express approval from the 
Secretary of the Interior, having considered the same, report 
favorably thereon with amendments and recommend that the bill 
as amended do pass.
    The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Helping Expedite and Advance 
Responsible Tribal Home Ownership Act of 2011'' or the ``HEARTH Act of 
2011''.

SEC. 2. APPROVAL OF, AND REGULATIONS RELATED TO, TRIBAL LEASES.

  The first section of the Act titled ``An Act to authorize the leasing 
of restricted Indian lands for public, religious, educational, 
recreational, residential, business, and other purposes requiring the 
grant of long-term leases'', approved August 9, 1955 (25 U.S.C. 415), 
is amended as follows:
          (1) In subsection (d)--
                  (A) in paragraph (4), by striking ``the Navajo 
                Nation'' and inserting ``an applicable Indian tribe'';
                  (B) in paragraph (6), by striking ``the Navajo 
                Nation'' and inserting ``an Indian tribe'';
                  (C) in paragraph (7), by striking ``and'' after the 
                semicolon at the end;
                  (D) in paragraph (8)--
                          (i) by striking ``the Navajo Nation'';
                          (ii) by striking ``with Navajo Nation law'' 
                        and inserting ``with applicable tribal law''; 
                        and
                          (iii) by striking the period at the end and 
                        inserting a semicolon; and
                  (E) by adding at the end the following:
          ``(9) the term `Indian tribe' has the meaning given such term 
        in section 102 of the Federally Recognized Indian Tribe List 
        Act of 1994 (25 U.S.C. 479a); and
          ``(10) the term `individually owned allotted land' means a 
        parcel of land that--
                  ``(A)(i) is located within the jurisdiction of an 
                Indian tribe; or
                  ``(ii) is held in trust or restricted status by the 
                United States for the benefit of an Indian tribe or a 
                member of an Indian tribe; and
                  ``(B) is allotted to a member of an Indian tribe.''.
          (2) By adding at the end the following:
  ``(h) Tribal Approval of Leases.--
          ``(1) In general.--At the discretion of any Indian tribe, any 
        lease by the Indian tribe for the purposes authorized under 
        subsection (a) (including any amendments to subsection (a)), 
        except a lease for the exploration, development, or extraction 
        of any mineral resources, shall not require the approval of the 
        Secretary, if the lease is executed under the tribal 
        regulations approved by the Secretary under this subsection and 
        the term of the lease does not exceed--
                  ``(A) in the case of a business or agricultural 
                lease, 25 years, except that any such lease may include 
                an option to renew for up to 2 additional terms, each 
                of which may not exceed 25 years; and
                  ``(B) in the case of a lease for public, religious, 
                educational, recreational, or residential purposes, 75 
                years, if such a term is provided for by the 
                regulations issued by the Indian tribe.
          ``(2) Allotted land.--Paragraph (1) shall not apply to any 
        lease of individually owned Indian allotted land.
          ``(3) Authority of secretary over tribal regulations.--
                  ``(A) In general.--The Secretary shall have the 
                authority to approve or disapprove any tribal 
                regulations issued in accordance with paragraph (1).
                  ``(B) Considerations for approval.--The Secretary 
                shall approve any tribal regulation issued in 
                accordance with paragraph (1), if the tribal 
                regulations--
                          ``(i) are consistent with any regulations 
                        issued by the Secretary under subsection (a) 
                        (including any amendments to the subsection or 
                        regulations); and
                          ``(ii) provide for an environmental review 
                        process that includes--
                                  ``(I) the identification and 
                                evaluation of any significant effects 
                                of the proposed action on the 
                                environment; and
                                  ``(II) a process for ensuring that--
                                          ``(aa) the public is informed 
                                        of, and has a reasonable 
                                        opportunity to comment on, any 
                                        significant environmental 
                                        impacts of the proposed action 
                                        identified by the Indian tribe; 
                                        and
                                          ``(bb) the Indian tribe 
                                        provides responses to relevant 
                                        and substantive public comments 
                                        on any such impacts before the 
                                        Indian tribe approves the 
                                        lease.
                  ``(C) Technical assistance.--The Secretary may 
                provide technical assistance, upon request of the 
                Indian tribe, for development of a regulatory 
                environmental review process under subparagraph 
                (B)(ii).
                  ``(D) Indian self-determination act.--The technical 
                assistance to be provided by the Secretary pursuant to 
                subparagraph (C) may be made available through 
                contracts, grants, or agreements entered into in 
                accordance with, and made available to entities 
                eligible for, such contracts, grants, or agreements 
                under the Indian Self-Determination Act (25 U.S.C. 450 
                et seq).
          ``(4) Review process.--
                  ``(A) In general.--Not later than 120 days after the 
                date on which the tribal regulations described in 
                paragraph (1) are submitted to the Secretary, the 
                Secretary shall review and approve or disapprove the 
                regulations.
                  ``(B) Written documentation.--If the Secretary 
                disapproves the tribal regulations described in 
                paragraph (1), the Secretary shall include written 
                documentation with the disapproval notification that 
                describes the basis for the disapproval.
                  ``(C) Extension.--The deadline described in 
                subparagraph (A) may be extended by the Secretary, 
                after consultation with the Indian tribe.
          ``(5) Federal environmental review.--Notwithstanding 
        paragraphs (3) and (4), if an Indian tribe carries out a 
        project or activity funded by a Federal agency, the Indian 
        tribe shall have the authority to rely on the environmental 
        review process of the applicable Federal agency rather than any 
        tribal environmental review process under this subsection.
          ``(6) Documentation.--If an Indian tribe executes a lease 
        pursuant to tribal regulations under paragraph (1), the Indian 
        tribe shall provide the Secretary with--
                  ``(A) a copy of the lease, including any amendments 
                or renewals to the lease; and
                  ``(B) in the case of tribal regulations or a lease 
                that allows for lease payments to be made directly to 
                the Indian tribe, documentation of the lease payments 
                that are sufficient to enable the Secretary to 
                discharge the trust responsibility of the United States 
                under paragraph (7).
          ``(7) Trust responsibility.--
                  ``(A) In general.--The United States shall not be 
                liable for losses sustained by any party to a lease 
                executed pursuant to tribal regulations under paragraph 
                (1).
                  ``(B) Authority of secretary.--Pursuant to the 
                authority of the Secretary to fulfill the trust 
                obligation of the United States to the applicable 
                Indian tribe under Federal law (including regulations), 
                the Secretary may, upon reasonable notice from the 
                applicable Indian tribe and at the discretion of the 
                Secretary, enforce the provisions of, or cancel, any 
                lease executed by the Indian tribe under paragraph (1).
          ``(8) Compliance.--
                  ``(A) In general.--An interested party, after 
                exhausting of any applicable tribal remedies, may 
                submit a petition to the Secretary, at such time and in 
                such form as the Secretary determines to be 
                appropriate, to review the compliance of the applicable 
                Indian tribe with any tribal regulations approved by 
                the Secretary under this subsection.
                  ``(B) Violations.--If, after carrying out a review 
                under subparagraph (A), the Secretary determines that 
                the tribal regulations were violated, the Secretary may 
                take any action the Secretary determines to be 
                necessary to remedy the violation, including rescinding 
                the approval of the tribal regulations and reassuming 
                responsibility for the approval of leases of tribal 
                trust lands.
                  ``(C) Documentation.--If the Secretary determines 
                that a violation of the tribal regulations has occurred 
                and a remedy is necessary, the Secretary shall--
                          ``(i) make a written determination with 
                        respect to the regulations that have been 
                        violated;
                          ``(ii) provide the applicable Indian tribe 
                        with a written notice of the alleged violation 
                        together with such written determination; and
                          ``(iii) prior to the exercise of any remedy, 
                        the rescission of the approval of the 
                        regulation involved, or the reassumption of 
                        lease approval responsibilities, provide the 
                        applicable Indian tribe with--
                                  ``(I) a hearing that is on the 
                                record; and
                                  ``(II) a reasonable opportunity to 
                                cure the alleged violation.
          ``(9) Savings clause.--Nothing in this subsection shall 
        affect subsection (e) or any tribal regulations issued under 
        that subsection.''.

SEC. 3. LAND TITLE REPORTS.

  (a) In General.--The Bureau of Indian Affairs shall prepare and 
submit to the Committee on Natural Resources of the House of 
Representatives and the Committee on Indian Affairs of the Senate a 
report regarding the history and experience of Indian tribes that have 
chosen to assume responsibility for operating the Indian Land Title and 
Records Office (referred to in this section as the ``LTRO'') functions 
from the Bureau of Indian Affairs.
  (b) Consultation.--In conducting the review under subsection (a), the 
Bureau of Indian Affairs shall consult with the Department of Housing 
and Urban Development Office of Native American Programs and the Indian 
tribes that are managing LTRO functions (referred to in this section as 
the ``managing Indian tribes'').
  (c) Contents.--The review under subsection (a) shall include an 
analysis of the following factors:
          (1) Whether and how tribal management of the LTRO functions 
        has expedited the processing and issuance of Indian land title 
        certifications as compared to the period during which the 
        Bureau of Indian Affairs managed the programs.
          (2) Whether and how tribal management of the LTRO functions 
        has increased home ownership among the population of the 
        managing Indian tribe.
          (3) What internal preparations and processes were required of 
        the managing Indian tribes prior to assuming management of the 
        LTRO functions.
          (4) Whether tribal management of the LTRO functions resulted 
        in a transfer of financial resources and manpower from the 
        Bureau of Indian Affairs to the managing Indian tribes and, if 
        so, what transfers were undertaken.
          (5) Whether, in appropriate circumstances and with the 
        approval of geographically proximate Indian tribes, the LTRO 
        functions may be performed by a single Indian tribe or a tribal 
        consortium in a cost effective manner.

      Amend the title so as to read:

      A bill to amend the Act titled ``An Act to authorize the 
leasing of restricted Indian lands for public, religious, 
educational, recreational, residential, business, and other 
purposes requiring the grant of long-term leases'', approved 
August 9, 1955, to provide for Indian tribes to enter into 
certain leases without prior express approval from the 
Secretary of the Interior, and for other purposes.

                          Purpose of the Bill

    The purpose of H.R. 205, as ordered reported, is to amend 
the Act titled ``An Act to authorize the leasing of restricted 
Indian lands for public, religious, educational, recreational, 
residential, business, and other purposes requiring the grant 
of long-term leases,'' approved August 9, 1955, to provide for 
Indian tribes to enter into certain leases without prior 
express approval from the Secretary of the Interior.

                  Background and Need for Legislation

    It might surprise most Americans to know that ``Indian 
lands'' are not actually owned by Indians: legal title to the 
lands are held by the federal government in trust for the 
benefit of Indians. Indians do enjoy exclusive use and benefit 
of their lands, but such enjoyment is limited because the 
government will not, as a general rule, authorize leases or 
other uses of such lands if they entail any more than minimal 
risks, as taxpayers may be held liable for any losses. Minimal 
risk has, predictably, yielded minimal benefits. On top of 
this, the Bureau of Indian Affairs (BIA), which is responsible 
for managing these lands, must work within a federal legal 
system rife with confusing, outdated, and inconsistent laws, 
regulations, and policies.
    When traveling in the Western United States, where most 
Indian lands are located, it is not difficult to identify the 
boundaries of an Indian reservation: vacant space on one side, 
and development on the other. Private investment within Indian 
reservations--except in the anomalous case of Indian gaming (an 
issue not related to H.R. 205)--is about as scarce as it is in 
any nation where ownership of property is highly restricted by 
national governments. Investors cannot afford to wait the 
months or years it may take for BIA approval of a simple lease 
executed with a tribe. Investors simply put their money on the 
non-Indian side of the reservation.
    Fortunately, there are exceptions. In reservations where 
tribes have wisely contracted with the BIA to manage their own 
lands, productivity and health of the property dramatically 
improve. Tribes with timberlands are now usually the ones with 
healthy forests, while the National Forest lands abutting a 
reservation are unhealthy and prone to wildfires. But even 
where a tribe manages its lands under such a contract, in the 
end the BIA ultimately decides whether it may be leased.
    The evolution of federal Indian land policy is long and 
complex. In the earliest days of the Union, Congress passed a 
series of laws restricting the alienation of Indian lands to 
``protect'' tribes from losing their land base through 
coercion, fraud, and trade conducted in bad faith. Indians at 
that time were not considered U.S. citizens or experienced in 
Western practices of establishing ownership of land. These laws 
generally restricted a tribe from selling or leasing its land 
without permission from Congress. Over time, this federal 
policy began to take on the form of paternalism over tribes, 
which persists to this day.
    The current federal statute governing the leasing of tribal 
lands is the Act of August 9, 1955 (25 U.S.C. 415), commonly 
called the Long-Term Indian Leasing Act. Under this Act, each 
and every lease of a tribe's lands must undergo federal review 
and approval by the Secretary of the Interior under a 
sprawling, burdensome set of regulations. For years, Indian 
Country has complained that under these regulations it takes 
too long for the Secretary to approve leases of tribal lands. 
It takes so long because the federal regulations are such that 
compliance with them requires a lot of time. A tribe who wants 
to govern its trust lands under free market principles cannot, 
in practice, do so. For example, if a lease approval by the 
Secretary constitutes a ``major federal action affecting the 
quality of the human environment,'' then a full environmental 
impact statement under the National Environmental Policy Act 
(NEPA) must first occur, along with the usual delays and the 
opportunity for any group to file a lawsuit over the 
sufficiency of the environmental review. The result is a 
textbook example of impoverishment and joblessness caused by 
overregulation. Simple leases to build a home for an Indian 
family may take months to approve, frustrating the start, let 
alone completion, of needed housing projects. Private 
investment in virtually every kind of non-mineral and non-
casino development project in Indian Country has been deterred 
to such an extent by the current system that unemployment rates 
exceeding 50% on reservations are common.
    In 2000, the Long-Term Indian Leasing Act was amended to 
allow the Navajo Nation to lease its lands without the 
Secretary's approval as long as such leasing is executed under 
tribal regulations approved by the Secretary, in accordance 
with a few basic standards (see 25 U.S.C. 415(e)). Under the 
Navajo provision, the United States is absolved of liability 
for any losses sustained by any party to a lease executed under 
the tribe's regulations. The Navajo may perform their own 
environmental review of a lease rather than a full-blown NEPA 
review. If the Navajo fail to adhere to their regulations, the 
Secretary may intervene and rescind a lease or reassume leasing 
authority.
    The Navajo amendment has enabled this tribe to lease its 
lands more easily than under a system where the Secretary 
reviews and approves each and every tribal lease. It has proven 
to be a success and has led other tribes to ask Congress for 
the same treatment. In fact, the Long-Term Indian Leasing Act 
has also been amended to enable a handful of other tribes to 
lease their lands for limited terms under more liberal 
standards that even the Navajo amendments.
    H.R. 205 is modeled on the Navajo leasing amendments. Under 
the bill, any Indian tribe may lease its lands for any non-
mineral development purpose without review and approval of the 
Secretary, as long as its leasing is conducted under tribal 
regulations that have been approved by the Secretary. The 
Secretary must approve a tribe's leasing regulations if they 
are ``consistent with'' the Department of the Interior's 
regulations governing tribal lands, including the opportunity 
for public notice and comment. Under the bill, taxpayers would 
not be liable for any loss sustained by any party to a tribal 
lease executed through a tribe's approved leasing regulations. 
H.R. 205 thus affords a tribe flexibility to adapt lease terms 
to suit its business and cultural needs, it enables a tribe to 
approve leases quickly and efficiently, and it protects 
taxpayers from liability for a tribe's business decisions.
    The bill enjoys strong bipartisan Congressional support, 
and the support of the Administration, major tribal 
organizations including the National Congress of American 
Indians and the National American Indian Housing Council, and 
individual recognized tribes.
    During the Committee markup of H.R. 205, an amendment was 
filed by Congressman Martin Heinrich (D-NM) that would have 
increased the difficulties for a tribe to lease its lands 
efficiently. As introduced, H.R. 205 requires the Secretary to 
approve tribal leasing regulations if they are ``consistent 
with'' the Secretary's own regulations for the leasing of 
tribal lands. This language is critical to ensure a tribe has 
the flexibility to write regulations that result in more 
expeditious lease approvals than what the Secretary's 
regulations result in. The Heinrich amendment would change 
``consistent with'' to ``meet or exceed.'' This means that a 
tribe would have to craft leasing regulations that are 
identical to, or more burdensome than, the Secretary's 
regulations. Rather than improve the bill, the amendment 
undercuts the incremental--yet important--policy step 
undertaken in H.R. 205.
    Under the proposed Heinrich amendment, tribal regulations 
would have to be at least as demanding, restrictive, and 
controlling as the Interior regulations are . . . or more so. 
Indian Country did not ask for something that is going to be 
equally or more restrictive than a regulatory regime that is 
not working for them. Just before the Committee markup, the 
National Congress of American Indians, the oldest and largest 
national tribal government organization in the country, wrote 
the Committee to say it preferred the bill as introduced 
because the ``Interior Solicitor's office will construe the 
amendment to require that tribal regulations must be identical 
to the Department's leasing regulations, or even more 
restrictive, and this would defeat the purpose of the 
legislation to increase tribal flexibility and speed up the 
leasing process.'' (November 16, 2011, letter from Jefferson 
Keel, President, National Congress of American Indians).
    The Majority opposed the amendment because it would simply 
maintain the current level of regulatory control exercised by 
the Department of the Interior over a tribe's lands, defeating 
the purpose of the bill.
    During the Committee markup of the bill, the Heinrich 
amendment was modified to eliminate the ``meet or exceed'' 
language. The Chairman and Ranking Member stated their 
intention to discuss the concerns of several Minority Members 
who believe the ``meet or exceed'' language is needed by Indian 
Country. However, since the markup, not a single tribe or 
tribal organization is on record as requesting, let alone 
supporting, this language. Not even the Obama Administration 
has requested this change. In fact, since the bill was ordered 
reported, several tribal organizations submitted letters asking 
for expedited action on the bill with no mention of a need to 
amend it further.
    The Majority is happy to discuss the Minority's concerns 
with the bill; however, absent any compelling justification, no 
further changes to the tribal leasing process are warranted.
    Fortunately, the Majority was able to adopt an amendment to 
authorize technical assistance to tribes wishing to craft 
tribal leasing regulations. In addition, another amendment was 
adopted to require a Bureau of Indian Affairs (BIA) report on 
the history and experience of tribes taking over land title 
records functions from the BIA.

                            Committee Action

    H.R. 205 was introduced on January 6, 2011, by Congressman 
Martin Heinrich (D-NM). The bill was referred to the Committee 
on Natural Resources, and within the Committee to the 
Subcommittee on Indian and Alaska Native Affairs. On November 
3, 2011, the Subcommittee held a hearing on the bill. On 
November 17, 2011, the Natural Resources Committee met to 
consider the bill. The Subcommittee on Indian and Alaska Native 
Affairs was discharged by unanimous consent. Congressman Martin 
Heinrich offered amendment designated .035, as modified, to the 
bill; the amendment was adopted by unanimous consent. 
Congressman Heinrich offered amendment designated .036 to the 
bill; the amendment was adopted by unanimous consent. The bill, 
as amended, was then ordered favorably reported to the House of 
Representatives by unanimous consent.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

CH.R. 205--Helping Expedite and Advance Responsible Tribal Home 
        Ownership Act of 2011

    H.R. 205 would allow Indian tribes to enter into certain 
leases of trust lands without approval from the Bureau of 
Indian Affairs (BIA).\1\ Based on information from the 
Department of the Interior, CBO estimates that implementing the 
legislation would have no significant effect on the federal 
budget. Enacting H.R. 205 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
---------------------------------------------------------------------------
    \1\Trust lands are tribally owned lands that are legally held by 
the federal government for the benefit of tribal governments or 
individual tribal members.
---------------------------------------------------------------------------
    Under current law, most tribes can lease trust lands to 
certain entities for up to 25 years, subject to the approval of 
BIA. Under the bill, tribes could enter into leases without BIA 
approval if those leases were subject to tribal regulations 
approved by the agency. Any lease granted under that authority 
would be limited to 25 years for agricultural use and business 
purposes and 75 years for other purposes. Any lease involving 
the exploration for or extraction of natural resources would 
still require approval from BIA. H.R. 205 would also authorize 
the Secretary of the Interior to provide technical assistance 
for the environmental review process. CBO expects that those 
provisions would have a negligible effect on BIA's workload.
    H.R. 205 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Enacting the legislation would benefit tribes by streamlining 
the process for leasing certain tribal lands.
    On August 31, 2011, CBO transmitted a cost estimate for S. 
703, the Helping Expedite and Advance Responsible Tribal 
Homeownership Act of 2011, as ordered reported by the Senate 
Committee on Indian Affairs on July 28, 2011. The two pieces of 
legislation are similar, and the CBO cost estimates are the 
same.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures. Based on 
information from the Department of the Interior, CBO estimates 
that implementing the legislation would have no significant 
effect on the federal budget.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill, as ordered reported, is to amend the 
Act titled ``An Act to authorize the leasing of restricted 
Indian lands for public, religious, educational, recreational, 
residential, business, and other purposes requiring the grant 
of long-term leases,'' approved August 9, 1955, to provide for 
Indian tribes to enter into certain leases without prior 
express approval from the Secretary of the Interior.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                         ACT OF AUGUST 9, 1955


         (Commonly known as the ``Indian Long-Term Leasing Act)

AN ACT To authorize the leasing of restricted Indian lands for public, 
religious, educational, recreational, residential, business, and other 
           purposes requiring the grant of long-term leases.

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That (a) * 
* *

           *       *       *       *       *       *       *

  (d) Definitions.--For purposes of this section--
          (1) * * *

           *       *       *       *       *       *       *

          (4) the term ``interested party'' means an Indian or 
        non-Indian individual or corporation, or tribal or non-
        tribal government whose interests could be adversely 
        affected by a tribal trust land leasing decision made 
        by [the Navajo Nation] an applicable Indian tribe;

           *       *       *       *       *       *       *

          (6) the term ``petition'' means a written request 
        submitted to the Secretary for the review of an action 
        (or inaction) of [the Navajo Nation] an Indian tribe 
        that is claimed to be in violation of the approved 
        tribal leasing regulations;
          (7) the term ``Secretary'' means the Secretary of the 
        Interior; [and]
          (8) the term ``tribal regulations'' means [the Navajo 
        Nation] regulations enacted in accordance [with Navajo 
        Nation law] with applicable tribal law and approved by 
        the Secretary[.];
          (9) the term ``Indian tribe'' has the meaning given 
        such term in section 102 of the Federally Recognized 
        Indian Tribe List Act of 1994 (25 U.S.C. 479a); and
          (10) the term ``individually owned allotted land'' 
        means a parcel of land that--
                  (A)(i) is located within the jurisdiction of 
                an Indian tribe; or
                  (ii) is held in trust or restricted status by 
                the United States for the benefit of an Indian 
                tribe or a member of an Indian tribe; and
                  (B) is allotted to a member of an Indian 
                tribe.

           *       *       *       *       *       *       *

  (h) Tribal Approval of Leases.--
          (1) In general.--At the discretion of any Indian 
        tribe, any lease by the Indian tribe for the purposes 
        authorized under subsection (a) (including any 
        amendments to subsection (a)), except a lease for the 
        exploration, development, or extraction of any mineral 
        resources, shall not require the approval of the 
        Secretary, if the lease is executed under the tribal 
        regulations approved by the Secretary under this 
        subsection and the term of the lease does not exceed--
                  (A) in the case of a business or agricultural 
                lease, 25 years, except that any such lease may 
                include an option to renew for up to 2 
                additional terms, each of which may not exceed 
                25 years; and
                  (B) in the case of a lease for public, 
                religious, educational, recreational, or 
                residential purposes, 75 years, if such a term 
                is provided for by the regulations issued by 
                the Indian tribe.
          (2) Allotted land.--Paragraph (1) shall not apply to 
        any lease of individually owned Indian allotted land.
          (3) Authority of secretary over tribal regulations.--
                  (A) In general.--The Secretary shall have the 
                authority to approve or disapprove any tribal 
                regulations issued in accordance with paragraph 
                (1).
                  (B) Considerations for approval.--The 
                Secretary shall approve any tribal regulation 
                issued in accordance with paragraph (1), if the 
                tribal regulations--
                          (i) are consistent with any 
                        regulations issued by the Secretary 
                        under subsection (a) (including any 
                        amendments to the subsection or 
                        regulations); and
                          (ii) provide for an environmental 
                        review process that includes--
                                  (I) the identification and 
                                evaluation of any significant 
                                effects of the proposed action 
                                on the environment; and
                                  (II) a process for ensuring 
                                that--
                                          (aa) the public is 
                                        informed of, and has a 
                                        reasonable opportunity 
                                        to comment on, any 
                                        significant 
                                        environmental impacts 
                                        of the proposed action 
                                        identified by the 
                                        Indian tribe; and
                                          (bb) the Indian tribe 
                                        provides responses to 
                                        relevant and 
                                        substantive public 
                                        comments on any such 
                                        impacts before the 
                                        Indian tribe approves 
                                        the lease.
                  (C) Technical assistance.--The Secretary may 
                provide technical assistance, upon request of 
                the Indian tribe, for development of a 
                regulatory environmental review process under 
                subparagraph (B)(ii).
                  (D) Indian self-determination act.--The 
                technical assistance to be provided by the 
                Secretary pursuant to subparagraph (C) may be 
                made available through contracts, grants, or 
                agreements entered into in accordance with, and 
                made available to entities eligible for, such 
                contracts, grants, or agreements under the 
                Indian Self-Determination Act (25 U.S.C. 450 et 
                seq).
          (4) Review process.--
                  (A) In general.--Not later than 120 days 
                after the date on which the tribal regulations 
                described in paragraph (1) are submitted to the 
                Secretary, the Secretary shall review and 
                approve or disapprove the regulations.
                  (B) Written documentation.--If the Secretary 
                disapproves the tribal regulations described in 
                paragraph (1), the Secretary shall include 
                written documentation with the disapproval 
                notification that describes the basis for the 
                disapproval.
                  (C) Extension.--The deadline described in 
                subparagraph (A) may be extended by the 
                Secretary, after consultation with the Indian 
                tribe.
          (5) Federal environmental review.--Notwithstanding 
        paragraphs (3) and (4), if an Indian tribe carries out 
        a project or activity funded by a Federal agency, the 
        Indian tribe shall have the authority to rely on the 
        environmental review process of the applicable Federal 
        agency rather than any tribal environmental review 
        process under this subsection.
          (6) Documentation.--If an Indian tribe executes a 
        lease pursuant to tribal regulations under paragraph 
        (1), the Indian tribe shall provide the Secretary 
        with--
                  (A) a copy of the lease, including any 
                amendments or renewals to the lease; and
                  (B) in the case of tribal regulations or a 
                lease that allows for lease payments to be made 
                directly to the Indian tribe, documentation of 
                the lease payments that are sufficient to 
                enable the Secretary to discharge the trust 
                responsibility of the United States under 
                paragraph (7).
          (7) Trust responsibility.--
                  (A) In general.--The United States shall not 
                be liable for losses sustained by any party to 
                a lease executed pursuant to tribal regulations 
                under paragraph (1).
                  (B) Authority of secretary.--Pursuant to the 
                authority of the Secretary to fulfill the trust 
                obligation of the United States to the 
                applicable Indian tribe under Federal law 
                (including regulations), the Secretary may, 
                upon reasonable notice from the applicable 
                Indian tribe and at the discretion of the 
                Secretary, enforce the provisions of, or 
                cancel, any lease executed by the Indian tribe 
                under paragraph (1).
          (8) Compliance.--
                  (A) In general.--An interested party, after 
                exhausting of any applicable tribal remedies, 
                may submit a petition to the Secretary, at such 
                time and in such form as the Secretary 
                determines to be appropriate, to review the 
                compliance of the applicable Indian tribe with 
                any tribal regulations approved by the 
                Secretary under this subsection.
                  (B) Violations.--If, after carrying out a 
                review under subparagraph (A), the Secretary 
                determines that the tribal regulations were 
                violated, the Secretary may take any action the 
                Secretary determines to be necessary to remedy 
                the violation, including rescinding the 
                approval of the tribal regulations and 
                reassuming responsibility for the approval of 
                leases of tribal trust lands.
                  (C) Documentation.--If the Secretary 
                determines that a violation of the tribal 
                regulations has occurred and a remedy is 
                necessary, the Secretary shall--
                          (i) make a written determination with 
                        respect to the regulations that have 
                        been violated;
                          (ii) provide the applicable Indian 
                        tribe with a written notice of the 
                        alleged violation together with such 
                        written determination; and
                          (iii) prior to the exercise of any 
                        remedy, the rescission of the approval 
                        of the regulation involved, or the 
                        reassumption of lease approval 
                        responsibilities, provide the 
                        applicable Indian tribe with--
                                  (I) a hearing that is on the 
                                record; and
                                  (II) a reasonable opportunity 
                                to cure the alleged violation.
          (9) Savings clause.--Nothing in this subsection shall 
        affect subsection (e) or any tribal regulations issued 
        under that subsection.

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

    H.R. 205 enables tribes to exercise their powers of 
inherent tribal sovereignty to lease their own lands without 
federal oversight under certain conditions. One of these 
conditions requires the Secretary of the Interior to approve or 
disapprove tribal regulations that would regulate leasing 
activity before leasing activity could begin. As introduced, 
the bill requires the Secretary to approve the tribal 
regulations if they are ``consistent'' with existing 
regulations issued by the Secretary and provide for an 
``environmental review process'' that includes the 
identification of any ``significant effects'' of the lease on 
the environment.\1\ Because this ``process'' could be 
inadequate for the broad purposes for which tribes are 
authorized to lease their lands without Secretarial approval 
under the legislation, Subcommittee staff, Mr. Heinrich's staff 
and key tribal organizations worked together on amendments that 
would enhance tribal authority to further develop the 
environmental review process under their regulations so that 
whether the leasing activity contemplated projects ranging from 
simple residential leasing to complex wind farm development, 
any tribal regulatory scheme submitted to the Secretary for 
approval would likely be considered adequate. In short, the 
goal in developing these amendments was to provide tribes with 
the necessary tools to provide flexible, yet appropriate, 
environmental review without imposing additional bureaucratic 
requirements on tribal governments or contribute to delay in 
the leasing process.
---------------------------------------------------------------------------
    \1\Notably, the bill authorizes a tribe to rely on the 
environmental review process of a federal agency if the tribe is 
carrying out a project or activity funded by that agency instead of 
relying on its own environmental review process under its regulations. 
This provision could be triggered, for example, when a tribe is 
required to conduct agency environmental review processes as a 
condition of receiving federal funding, such as the Department of 
Housing and Urban Development's required NEPA analysis for Indian 
Housing Block Grant recipients.
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    Two amendments to achieve this goal were proposed by Mr. 
Heinrich, one of which was accepted by the Republican Majority 
as part of a unanimous consent package. The first amendment 
authorizes tribes to seek the Secretary's technical assistance 
in developing a regulatory environmental review process, which 
may be made available using the self-determination contracting 
and compacting under the Indian Self-Determination and 
Education Assistance Act, 25 U.S.C. 450 et seq. It is the 
expectation that tribes with environmental review processes 
already in place, such as the Navajo Nation and Tulalip Tribes, 
could provide models for those tribes that seek to engage in 
similar leasing activities. But for tribes that seek to use 
HEARTH authority for different purposes, such as renewable 
energy development, they should be able to seek the guidance of 
their trustee, the United States, to assist in developing an 
environmental review process that is appropriate for those 
activities.
    The second proposed amendment, which was rejected by the 
Majority, would have replaced language in the bill that 
requires tribal regulations to simply be ``consistent'' with 
existing federal regulations with language authorizing such 
regulations to ``meet or exceed'' any regulations issued by the 
Secretary. The ``meet or exceed'' language would trigger 
Secretarial review of its own regulations as a guidepost for 
examining tribes' proposed regulations, while giving tribes the 
authority to exceed the Bureau of Indian Affairs' (BIA) 
regulations, as appropriate, in an exercise of tribal 
sovereignty. The idea is that tribes know how to best manage 
their own lands and that the Secretary should take that into 
consideration when reviewing proposed tribal regulations for 
approval.
    To be clear, the ``meet or exceed'' proposal was not 
intended to require the Secretary to ensure that tribal 
regulations mirror the BIA's regulations found at 25 CFR Part 
162. Such a requirement would be inappropriate and frustrate 
the aims of the bill, which is to put tribes in the decision-
making role and expedite surface leasing so responsible 
development can occur in tribal communities. The amendment was 
proposed in order to strike a balance between the need for 
adequate environmental review that is flexible to adjust to the 
variety of projects HEARTH authorizes and tribes' needs for 
economic development without unnecessary federal oversight. 
While this proposed amendment was ultimately not accepted, 
Chairman Hastings committed in a colloquy with Mr. Heinrich to 
work toward common ground on the ``meet or exceed'' issue with 
the Minority in order to provide baseline environmental 
standards on which tribes may rely by regulation, while 
providing the necessary flexibility for tribes to meet their 
own unique business development needs through leasing activity.

                                   Edward Markey.
                                   Rush Holt.
                                   Madeleine Bordallo.
                                   Gregorio Sablan.
                                   Frank Pallone, Jr.
                                   Raul Grijalva.
                                   Grace Napolitono.
                                   Niki Tsongas.
                                   Dale Kildee.
                                   John Garamendi.

                                  
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