NCAI Webinar: Tribal Leasing and Self-Governance Under the HEARTH Act

Please register for Tribal Leasing and Self-Governance Under the HEARTH Act on Dec 07, 2017 3:00 PM EST at:

https://attendee.gotowebinar.com/register/2858751509657713153

The Helping Expedite and Advance Responsible Tribal Home Ownership (HEARTH) Act was enacted by Congress in 2012 and provides tribal nations the flexibility to manage their own leases on tribal trust lands. In order to exercise this leasing authority, Tribes must first develop their own leasing regulations, consistent with Bureau of Indian Affairs (BIA) regulations at 25 C.F.R. Part 162, and have them approved by the Secretary of the Interior. Once the leasing regulations have been approved, the Tribe is able to negotiate and enter into leases of tribal trust land without further BIA approval.

Presenters:

  • Cynthia Morales, Trust Services Director, Agua Caliente Band of Cahuilla Indians
  • Matthew Carriaga, Realty Director, Ho-Chunk Nation
  • Jody Cummings, Partner, Steptoe & Johnson
  • Moderator – Jacob Schellinger, NCAI Staff Attorney & Legislative Counsel

This informative webinar will discuss tribal leasing and self-governance under the HEARTH Act.

After registering, you will receive a confirmation email containing information about joining the webinar.

Interior Approves Four HEARTH Act Applications

Assistant Secretary Washburn Approves Four HEARTH Act Applications
to Help Spur Economic Development in Tribal Communities (PDF)

Dry Creek Rancheria, Jamestown S’Klallam, Mohegan, and Wichita and Affiliated Tribes join eight others already cleared to process economic development leases without BIA approval

WASHINGTON, D.C. — Assistant Secretary – Indian Affairs Kevin K. Washburn today approved leasing regulations submitted by four federally recognized tribes, restoring their authority to control the leasing of their trust lands and promoting their self-determination and economic development. This streamlined process for restoring tribal leasing authority is consistent with the objectives of the Helping Expedite and Advance Responsible Tribal Homeownership Act, or HEARTH Act.

“Thanks to the HEARTH Act, more tribes have been empowered to take over leasing on their lands,” Assistant Secretary Washburn said. “Tribal governments are the drivers of economic self-sufficiency and prosperity on their reservations and in their communities. The HEARTH Act restores their ability to directly control how their lands can and should be used for the good of their people, now and in the future.”

The four tribes, submitted requests for Secretarial approval of their leasing regulations, are: Dry Creek Rancheria Band of Pomo Indians in California, Jamestown S’Klallam Tribe in Washington State, Mohegan Indian Tribe of Connecticut, and Wichita and Affiliated Tribes in Oklahoma. Each tribe plans to authorize leases for general economic development.

The HEARTH Act was signed by President Obama in July 2012. It restores the authority of federally recognized tribes to develop and implement their own laws governing long-term leasing of federal Indian trust lands for residential, business, renewable energy and other purposes, which greatly expedites the approval of leases for homes and small businesses in Indian Country. Upon one-time approval of its regulations by the Department of the Interior, a tribe may process land leases without having to first gain approval from the Bureau of Indian Affairs (BIA).

The Assistant Secretary’s action brings to 12 the number of tribes who have had their tribal leasing regulations approved under the Act. The others are: Federated Indians of Graton Rancheria, California (Feb. 1, 2013); Pueblo of Sandia, New Mexico (March 14, 2013); Pokagon Band of Potawatomi Indians, Michigan (April 11, 2013); Ak-Chin Indian Community; California (Nov. 10, 2013); Santa Rosa Band of Cahuilla Indians, California (Nov. 10, 2013); Citizen Potawatomi Nation, Oklahoma (Nov. 25, 2013); Ewiiaapaayp Band of Kumeyaay Indians, California (Dec. 10, 2013); and Kaw Nation, Oklahoma (Dec. 13, 2013).

In November 2012, the Department announced new regulations resulting from a comprehensive reform of the BIA’s antiquated regulations governing its process for approving surface leases on lands held in trust by the Federal Government for Indian tribes and individuals. As trustee, Interior manages about 56 million surface acres in Indian Country.

The new regulations streamlined the leasing approval process on Indian land, spurring increased homeownership and expediting business and commercial development, including renewable energy projects.

The Assistant Secretary – Indian Affairs oversees the BIA, which is headed by a director who is responsible for managing day-to-day operations through four offices – Indian Services, Justice Services, Trust Services and Field Operations. These offices directly administer or fund tribally based infrastructure, law enforcement, social services, tribal governance, natural and energy resources, and trust management programs for the nation’s federally recognized American Indian and Alaska Native tribes and villages through 12 regional offices and 85 agencies.

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New Scholarship on the HEARTH Act

Elizabeth Kronk Warner has posted “Tribal Renewable Energy Development Under the Hearth Act: An Independently Rational, But Collectively Deficient Option,” forthcoming in the Arizona Law Review, on SSRN.

The abstract:

Increased domestic energy production is of enhanced importance to the United States. Given the growing focus on domestic energy development, many, including tribal governments, have increasingly looked to Indian country for potential energy development opportunities. Such attention is warranted, as abundant alternative and renewable energy sources exist within Indian country. Many tribes are increasingly exploring possible opportunities related to alternative and renewable energy development. Despite this interest, large alternative and renewable energy projects are virtually absent from Indian country. This article explores why, despite the great potential for alternative and renewable energy development in Indian country and strong tribal interest in such development, such little development is occurring.

Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in July 2012 to address one of the obstacles to alternative and renewable energy development in Indian country — federal approval for leases of tribal lands. In brief, the HEARTH Act allows tribes with tribal leasing provisions pre-approved by the Secretary of the Interior to lease tribal land without Secretarial approval required for each individual lease.

To fully understand the potential implications of the HEARTH Act, this Article explores obstacles to effective energy development in Indian country, what the HEARTH Act is and how it supposedly addresses those obstacles, and some significant problems associated with enactment of the HEARTH Act — specifically, the mandatory environmental review provisions and waiver of federal liability, and the impact of the liability waiver on the federal government’s trust responsibility to federally recognized tribes. The article ends with some concluding thoughts on how the HEARTH Act and potential future reforms to the existing federal regulatory scheme applicable to energy development in Indian country might better address tribal sovereignty and the federal trust responsibility to Indian country.

New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations

Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.

Here is the abstract:

The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.

This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.

Upcoming NCAI Webinars: VAWA, HEARTH Act, & Tribal-State Public Safety Agreements

The National Congress of American Indians will host a series of webinars which will focus on the implementation of recently passed legislation as well as the continued importance of working with federal, state, and local governments. These webinars will address implementation of the expanded jurisdiction provisions within VAWA (April 5), implementation of the HEARTH Act (March 28), and working with states and local governments to develop strong public safety agreements (March 26).
Please register for each of these informative webinars:
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ICT Article on Paul Ryan’s American Indian Outlook

Here.