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Pierson: Pass the leasing reform bill

House Bill 2523, introduced by Rep. Martin Heinrich, D-N.M., and titled the Helping Expedite and Advance Responsible Tribal Homeownership (“HEARTH”) Act, would amend the Long Term Leasing Act of 1955 to enable tribes to assume authority over the leasing of their lands. The bill should be swiftly enacted by Congress and implemented by the Department of the Interior.

Section 415 currently requires that the BIA approve all leases of tribal trust or restricted fee land. The BIA approval requirement not only undermines tribes’ right of self-government but also causes extensive delays in connection with home ownership and economic development.

Ten years ago, Congress amended Section 415 to authorize the Navajo Nation to enact a leasing ordinance that, once approved by the Interior, would permit the nation to issue leases (other than extraction of minerals) without further Interior approval. The HEARTH Act would give all tribes the same option currently available to the Navajo Nation. Tribes so desiring could continue to submit leases for BIA approval.

The proposed HEARTH Act is common sense legislation that promotes the federal government’s 40-year-old policy of tribal self-determination.

In addition to enhancing tribal sovereignty and facilitating home ownership and economic development, the act promises to relieve BIA realty officers of the considerable burden of approving tribally-issued leases. At the Oct. 21, 2009 hearing before the House Natural Resources Committee, however, a BIA representative testified that the department “could” support the proposed law if BIA’s concerns were addressed relating to the government’s responsibility for enforcing tribally-approved leases, the government’s potential liability for losses under leases approved by a tribe, and the “impacts on [BIA] operations, the secretary’s process for approving new department regulations, and a secretarial process for approving tribal regulations.”

It should be possible to address BIA’s three concerns without unduly delaying enactment of the bill. In its Feb. 12 decision in Oenga v. United States, the Court of Federal Claims held the government liable for failing to monitor and enforce an oil lease it had negotiated on behalf of multiple owners of a Native Alaska allotment. The Oenga decision highlights the obvious distinctions between leases of tribal lands by tribal governments exercising governmental authority, and leases of land owned by individual allottees.

BIA control infringes the tribes’ right of self-government in the former case but is irrelevant in the latter, where the need for fiduciary oversight is obvious. The government, as the holder of fee title to trust lands, should assist tribes in connection with enforcement actions, if necessary, but the tribes, not the government, should be responsible for monitoring compliance with leases they have negotiated and issued. A short amendment to the HEARTH Act to clarify this point should be considered.

Potential federal liability should not be a concern. In its 2003 decision in United States v. Navajo Nation, the Supreme Court found the government had no liability to the Navajo Nation even though the court acknowledged that the secretary of Interior had actively favored the interests of a coal company in connection with approval of a lease of Navajo Nation land for extraction of coal under the Indian Mineral Leasing Act of 1938.

The Navajo Nation had no remedy, the court held, because IMLA did not give the secretary a “comprehensive managerial role,” only the power to approve coal leases already negotiated by tribes. Under the HEARTH Act, BIA would approve only leasing regulations, not leases. If, as the Navajo decision shows, the government cannot be held liable for unfair leases that it has actually approved, BIA needn’t worry that it might be held liable for losses flowing from tribal HEARTH Act leases that it has not approved.

The BIA approval requirement not only undermines tribes’ right of self-government but also causes extensive delays in connection with home ownership and economic development.

Finally, BIA expressed concern over the effect of the HEARTH Act on “operations, the secretary’s process for approving new department regulations, and a secretarial process for approving tribal regulations.” The act provides that the secretary “shall” approve tribal regulations that are “consistent with” the Part 162 regulations and provide for an environmental review process. Section 162.109(b) permits tribal laws to supersede the Part 162 regulations provided the tribal laws (1) are consistent with the tribe’s governing documents, (2) have been communicated to the BIA, (3) do not violate federal law or the government’s “general trust responsibility,” and (4) apply only to tribal land.

It should be possible for BIA to publish a very short checklist of provisions that, if included in tribal leasing regulations, assure prompt approval by BIA. Section 415 itself currently provides that the secretary must consider five issues before approving a lease:

  • relationship between the use of the leased lands and the use of neighboring lands;
  • height, quality and safety of any structures or other facilities to be constructed on

  • such lands;

  • availability of police and fire protection and other services;

  • availability of judicial forums for all criminal and civil causes arising on the leased lands; and

  • the effect on the environment of the uses to which the leased lands will be subject.

Trial leasing regulations should also define lessee rights, such as lease eligibility, transferability of leaseholds, rights of non-member relatives, succession upon death or divorce, and ownership of improvements. In the case of business leases, a mechanism to determine fair rental value is an obvious necessity. Since Interior serves as the repository for Indian land records, leasing regulations should also provide for submission of executed leases to BIA for recording. Inclusion of the five Section 415 considerations, plus these three additional features, should guarantee swift approval of tribal leasing regulations by the secretary.

The proposed HEARTH Act is common sense legislation that promotes the federal government’s 40-year-old policy of tribal self-determination. It is an important step in the process of returning to tribes’ sovereign authority over their territories and citizens. As a practical matter, it will enhance tribes’ ability to serve the needs of tribal citizens and promote home ownership. It should be possible to meet BIA’s concerns without unduly delaying passage of the bill.

Brian Pierson leads the Indian Nations Law team at Godfrey & Kahn, S.C., in Milwaukee, Wis.