Tribal Law Alert: All Indian Tribes Can Lease Tribal Land Without BIA Approval

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On July 30, 2012, President Obama signed the HEARTH Act of 2012, Public Law No. 112-151, amending the Indian Long Term Leasing Act, 25 U.S.C. § 415. The HEARTH Act authorizes Indian tribes to lease tribal land for business and other purposes for up to 75 years (25-year base term with two renewal terms of 25 years each for business and agricultural leases) without review and approval by the Secretary of the Interior, acting through the Bureau of Indian Affairs (BIA). The HEARTH Act eliminates delays, costs, federal environmental reviews, federal administrative and judicial litigation, and risks associated with BIA review and approval of tribal leases of tribal land.

To exercise this authority, Indian tribes must adopt tribal leasing regulations, subject to BIA approval, consistent with those adopted by the BIA, including future amendments to leasing regulations codified at 25 C.F.R. Part 162. Tribal regulations must include an environmental review process providing for identification and evaluation of "any significant environmental effects of the proposed action on the environment." Tribal regulations also must include a process to ensure that the public is informed of and has a reasonable opportunity to comment on any significant environmental impacts of the proposed action and that the Indian tribe responds to relevant and substantive comments before the tribe approves a lease. Federal safeguards are included in the HEARTH Act to ensure that a tribe complies with its regulations and that a lessee complies with its lease.

Previously, the Tulalip Tribes, Navajo Nation, and four other Indian tribes had similar authority. Time is money, and in some cases too much time, cost, and uncertainty for BIA lease approval have meant no project and no money. Experience with existing statutory authorizations confirms that projects on tribal land can be developed in less time and with less cost and risk when BIA lease review and approval are not required.

Under the HEARTH Act, the BIA must take action on tribal lease regulations within 120 days of submittal by a tribe. This time may be extended by the BIA "after consultation with the Indian tribe."

Projects on tribal land remain subject to applicable federal environmental regulatory requirements, including Clean Water Act and Clean Air Act permits and federal reviews triggered by federal agency action.

The HEARTH Act applies to surface leases for business, agricultural, recreational, educational, religious, or residential purposes. Mineral resource exploration, development, or extraction leases are not covered by this authorization or other provisions of section 415. Some tribal leaders are considering a legislative proposal to streamline tribal mineral development. Leases of Indian-owned allotments remain subject to BIA review and approval.

For more information on business transactions with Indian tribes and Alaska Native Corporations, contact a key contributor.

Key Contributors

Kevin J. Beaton
Timothy M. Taylor
James E. Torgerson
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