[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.
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\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.