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The HEARTH Act of 2012 Puts Tribal Sovereignty at Stake

On July 30, 2012, President Barack Obama signed into effect the HEARTH Act of 2012. This Act, cited as the “Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012”, creates an alternative land leasing process that amends the Indian Long-Term Leasing Act of 1955, 25 U.S.C. Sec. 415. In brief, the HEARTH Act allows tribes, with tribal leasing provisions preapproved by the U.S. Secretary of the Interior, to lease tribal land without Secretarial approval required for each individual lease. Specifically, the Act authorizes tribes to execute agricultural and business leases of tribal trust lands for residential, public, religious, educational, recreational or more importantly, alternative and renewable energy purposes without the approval of the U.S. Secretary of the Interior. While the Act is intended to alleviate some of the delays and costs associated with the pre-existing federal regulatory scheme, it imposes even greater obstacles to effective energy development in Indian Country. The Act should be reformed to maintain the federal government’s trust responsibility to Native nations by allowing tribes to take full control of their environmental regulations, defining their own terms and conditions for environmental protections in their communities in the manner in which they deem appropriate for their tribe.

The area that offers tribes tremendous growth through the HEARTH Act is around alternative and renewable energy. If done correctly, it has the capacity to provide stable economic growth that will create jobs while promoting tribal sovereignty. Worth noting, tribal lands are estimated to have 10% of the nation’s traditional and renewable energy resources. At the same time, the federal government’s search for domestic energy sources continues to intensify.

Renewable energy development in Indian Country has not been occurring largely in part due to the burdensome regulatory scheme. Even though tribes can see a decrease in the bureaucratic steps it takes to process a lease, they must adhere to the environmental regulations required under the HEARTH Act, which are costly and time consuming. Tribes are encouraged to seek legal advice in creating their leasing and environmental regulations. Currently, no money has been appropriated from Congress to tribes through the HEARTH Act of 2012. Some legal advisors for tribes have stated that the costs associated with establishing the environmental protections, in accordance with federal regulations, are too great. Tribes simply do not have the capacity necessary to fulfill the federal requirements to obtain Secretarial approval for their environmental regulations. These regulations may require the expertise, as well as expense, of geologists, engineers, and hydrologists.

In addition, tribal sovereignty is under attack if tribes cannot afford the legal support and instead opt to incorporate federal environmental law. Under the Act, tribal leasing provisions must include an environmental review requirement that is “consistent with” existing federal law. Although the HEARTH Act is expected to strengthen tribal self-determination, the Act forces tribes to essentially adopt and apply federal environmental law. This forced adoption of federal law undermines tribal sovereignty by forcing tribes to accept foreign law as their own rather than developing law that relies on their own tribal law, ethics, culture and customs.

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For instance, the HEARTH Act states that “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.” The Act does not specify who the “public” is, it could be implied to be both tribal and nontribal citizens. Therefore, this would give non-tribal citizens a role in tribal decision-making which upsets tribal sovereignty by creating room for alternative cultures and traditions on tribes. In this way, the federal government is denying their trust obligations with Native nations to protect tribal lands, resources and native ways of life.

Although on the surface there may seem to be time and cost saving benefits with the passage of the HEARTH Act, tribal sovereignty is at stake if tribal governments do not consider the grave implications of adopting federal environmental law. The HEARTH Act should be reformed so that it promotes tribal sovereignty by relinquishing its obtrusive role in the establishment of tribal environmental regulations and allow tribes to take full control of this important regulatory role, defining the terms and conditions for environmental protections in their communities in the manner in which they deem appropriate for their tribe. After all, tribal cultures and traditions are uniquely tied to their environment and their lands in a manner that is significantly different than other communities. The spiritual connection tribes have shared with their environment for time immemorial is a crucial and defining component to their sovereignty, thus granting them the unalienable right to govern their environment as they see fit.