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Easing Federal Paternalism Over Indian Land Leasing

WASHINGTON – In a move requested by tribes for decades, the federal government is easing its rules for the approval of leases on lands that the federal government holds in trust for tribes and individuals.

Secretary of the Interior Ken Salazar and Assistant Secretary for Indian Affairs Larry Echo Hawk announced November 28 what they called a “sweeping reform of federal surface leasing regulations for American Indian lands that will streamline the approval process for home ownership, expedite economic development and spur renewable energy development in Indian country.”

In doing so, the Interior Department is proposing a rule that would modify regulations governing the Bureau of Indian Affairs’ current process for land leasing to tribes and Indians. According to Interior officials, the department currently manages approximately 56 million surface acres in Indian country.

The rule calls for enforceable timelines by which the Bureau of Indian Affairs must review leases, and it establishes separate, simplified processes for residential, business, and renewable energy development, so that leases for small mortgages are distinguishable from much larger projects.

The rule offers a 30 day-limit for the BIA to issue decisions on residential leases, subleases, and mortgages. The agency would have 60-days to review leases and subleases for commercial or industrial development. The rule says that if the BIA does not complete its review of subleases in these timeframes, the agreements will automatically go into effect.

“Other proposed changes would eliminate the requirement for BIA approval of permits for short-term activities on Indian lands, such as parades; and requires the BIA to approve leases unless it finds a compelling reason to disapprove,” noted a press release from the Interior Department. “Under the new rule, the BIA would defer to the tribe’s negotiated value for a lease of tribal land and would not require additional, costly appraisals.”

Echo Hawk said the rule goes a long way to break the chains of paternalism that the federal government has held over tribes for too long. “In times past, a lot of federal laws and regulations have exhibited a paternalistic-like attitude from the federal government to First Nations leaders and communities,” Echo Hawk said in response to a question from Indian Country Today Media Network. “What you’re seeing in these regulations is that we’re no longer trying to exercise federal authority. In consultation with tribal leaders, we have come up with a plan to transfer much of the decision-making that occurs to let tribal leaders be able to make calls about how to develop their lands and resources….”

Echo Hawk added in a conference call with the press that the department believes the regulations will dramatically reduce BIA interference in tribal land use by eliminating the discretion to disapprove leases—or referring to tribal governments how much they want to charge. “So, we’re restoring the agency of these important decisions back where it belongs—to the tribes, he said.

In sum, Echo Hawk said the proposed rule show “much greater respect” for tribal self-determination: “At its core, this reform is about good government and supporting self-determination for Indian Nations,” he said. “The revised regulations will bring greater transparency, efficiency and workability to the Bureau of Indian Affairs approval process, and will provide tribal communities and individuals certainty and flexibility when it comes to decisions on the use of their land.”

Salazar said the proposed rule would replace established rules that he called “frankly outdated.” He explained that current regulations, adopted by the federal government over five decades ago, take a “one-size fits all” approach to processing all surface leases.

Congressional testimony from tribal leaders and consultation from them has indicated that under the current system simple mortgage applications have sometimes stalled for several years waiting approval from the federal government. Plus, energy and other economic development projects have been slow and difficult to establish under the old way.

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Salazar said he expects the change to have a “real impact for individuals and families who want to own a home or build a business.”

“This reform underscores President Obama’s commitment to empower Indian nations and strengthen their economies by expanding opportunities for individual landowners and tribal governments – generating investment, new jobs and revenues,” Salazar said during the November 28 press conference call.

Answering a question from ICTMN, Salazar said the Obama administration has worked hard to reform the federal government’s relationship with Indian country. “I think that our deeds over the past three years speak for themselves,” he said.

“The proposed regulation incorporates numerous changes requested by tribal leaders during extensive consultations this past year and better meets the goals of facilitating and expediting the leasing process for trust lands,” added Principal Deputy Assistant for Indian Affairs Del Laverdure.

Interior officials said that during the initial consultation period more than 2,300 comments were received from more than 70 tribes as well as several federal agencies, including the Department of Housing & Urban Development, the USDA, and the IRS.

The publication of the proposed rule in the Federal Register begins a 60-day public comment period. A BIA regulatory drafting workgroup is scheduled to review the comments and publish the final rule in 2012.

Interior officials said that comments and recommendations may be submitted during the tribal consultation meetings, by e-mail at, or by U.S. Postal Service, overnight carrier or hand-delivery to:

Del Laverdure, Principal Deputy Assistant Secretary-Indian Affairs, U.S. Department of the Interior, 1849 C St., N.W., MS-4141-MIB, Washington, D.C. 20240.

A Q & A document on the proposed rule is offered by Interior Here.

A comparison of existing and proposed regulations is offered by Interior Here.

The proposed rule is online Here.