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On July 17, the Senate passed HR. 205, the Helping Expedite and
Advance Responsible Tribal Homeownership Act of 2011 (HEARTH Act)
by a unanimous vote. The House of Representatives previously
approved the Act by a vote of 400-0 in May. The President will sign
the bill into law shortly.
Under the Long Term Leasing Act of 1955, 25 U.S.C. § 415, all
leases of tribal trust land must be approved by the Bureau of
Indian Affairs (BIA). While the BIA has attempted to defer to
tribal governments in most cases, the approval requirement has
inevitably added cost and delay to the leasing process. The HEARTH
Act amends Section 415 to provide that:
Tribes that adopt leasing regulations approved by the Secretary
of the Interior (Secretary) will no longer need BIA approval for
non-mineral leases;
Tribal leasing regulations may provide for the lease of lands
for business or agriculture for up to 25 years, with an option to
renew for up to two additional 25-year terms;
Tribal leasing regulations may provide for the lease of lands
for public, religious, educational, recreational, or residential
purposes for up to 75 years;
The Secretary is required to approve or disapprove tribal
leasing regulations within 120 days; the Secretary
"shall" approve tribal regulations that:
are consistent with regulations issued by the Secretary under
Section 415(a);
require the identification and evaluation of any significant
effects of the proposed action on the environment;
require that the public be informed of, and have a reasonable
opportunity to comment on, any significant environmental impacts of
the proposed lease; and
require the tribe to respond to relevant and substantive public
comments on any such impacts before the lease is approved;
Where the federal government has undertaken an environmental
review process in connection with a federally funded activity, the
tribe can rely on the federal environmental review; and
Tribes issuing leases under approved tribal leasing regulations
are required to provide BIA with copies of the leases issued so
that BIA can carry out its Land Titles and Records Office's
responsibilities.
The HEARTH Act represents a major shift of authority over tribal
lands from the federal government to tribes. On a more practical
level, the Act will enable tribes to pursue economic development
more expeditiously and better meet the home ownership needs of
their members. The Act also requires that BIA report to Congress on
means by which tribes can assume control over the records relating
to their lands.
Godfrey & Kahn assists tribes in drafting leasing
regulations that are consistent with BIA regulations and which also
address circumstances and concerns unique to the tribal
community.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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