INDIAN LAND WORKING GROUP 17TH ANNUAL INDIAN LAND CONSOLIDATION SYMPOSIUM October 30- November 1, 2007 Oneida Reservation, Wisconsin Radisson ESTABLISHING A TRIBAL LEGAL FRAMEWORK TO SUPPORT HOUSING AND ECONOMIC DEVELOPMENT IN INDIAN COUNTRY Brian L. Pierson Godfrey & Kahn, S.C. 780 N. Water St. Milwaukee, WI 53202 414 287 9456 (direct) [email protected] FEDERAL GENERAL TRIBAL LEASING LAW 25 USC § 415(a) • Enacted in 1955 • Requires approval of the Secretary of the Interior (delegated by the Secretary to the agency superintendents) for all leases of tribal trust land • Maximum term is 25/25 for most tribes- about 43 tribes have obtained authority for 99 year leases • NAHASDA permits 50 years for housing purposes • Regulations for business and residential leases proposed by BIA in 2004- still not final • BIA regulations for grazing, mining still at the consultation stage FEDERAL TULALIP LEASING LAW 25 USC §415(b) ENACTED 1970 • Authorizes leases, except for those relating to exploitation of natural resources, without secretarial approval. • Term can be up to 15 years if there is no renewal option • Term can be up to 30 years if there is no option to renew and if the lease is issued pursuant to tribal regulations approved by the Secretary • Term can be up to 75 years, including any period under an option to renew, if issued under tribal regulations approved by the Secretary • Tulalip Tribe enacted regulations in 1981 that were approved by the Secretary FEDERAL NAVAJO LEASING LAW Navajo Leasing Act of 2000 25 U.S.C. 415(e) • Authorizes leases of tribal (not individual) trust or restricted land without secretarial approval. • Does not apply to leases for exploration, development or extraction of mineral resources, which still require secretarial approval • Tribe must enact leasing regulations approved by the Secretary of the Interior • Term can be up to 25 years for business or agricultural purposes and can include two additional renewal terms of up to 25 years (75 year cumulative term) • Term can be up to 75 years for public, religious, educational, recreational, or residential purposes if tribal law permits NAVAJO (continued) • Tribal regulations must be “consistent with” federal regulations under 25 U.S.C. §415(a) • Tribal regulations must provide environmental review process • Tribe must provide BIA with a copy of approved lease and evidence of any lease payments made directly to the Tribe • U.S. has no liability for losses sustained by any party under a tribally-issued lease • Secretary reserves authority to terminate a lease if trust responsibility so requires • An “interested party” can, after exhausting tribal remedies, petition the Secretary of the Interior to challenge the Nation’s compliance with its tribal regulations • Remedies of Secretary include reassumption of leasing authority INDIAN TRIBAL ENERGY AND SELFDETERMINATION ACT (ITEDSDA) • Enacted August 8, 2005 • Authorizes leases, rights or way and business agreements relating to tribal trust land, without Secretarial approval pursuant to Tribal Energy Resource Agreements, if certain conditions are met • Leases, business agreements, rights of way for purposes of “exploration for, extraction of, processing of, or other development of the energy mineral resources of the Indian tribe located on tribal land.” Or “construction or operation of -- (i) an electric generation, transmission, or distribution facility located on tribal land; or (ii) a facility to process or refine energy resources developed on tribal land.” • Term of the lease or business agreement does not exceed -- (i) 30 years; or (ii) in the case of a lease for the production of oil resources, gas resources, or both, 10 years and as long thereafter as oil or gas is produced in paying quantities; ITEDSDA (continued) • Copies of leases, rights or way or business agreements entered into pursuant to the authority of an energy resource agreement must be provided to Secretary • An “interested party” under a lease, right of way or business agreement can, after exhausting tribal remedies, petition the Secretary to challenge tribe’s compliance with energy resource agreement • Secretary’s remedies include reassumption of authority • According to the Act, the opportunity to enter into energy resource agreements begins with publication of federal regulations, which the Secretary of the Interior was required to promulgate within one year, ie., by August 7, 2006. • On August 21, 2006, the Bureau of Indian Affairs published proposed regulations to implement provisions of the Act and addressing the process under which the Secretary of the Interior will review and approve Tribal Energy Resource Agreements (TERAs). SUMMARY OF CURRENT LAWS RELATING TO LEASING OF TRUST LANDS • Two tribes have authority to enter into leases, except for mineral extraction leases, under ordinances approved by the Secretary. • Beginning in August, all tribes will have the ability to apply for the right to approve leases for energy development, including leases for mineral extraction, under energy resource agreements with the Interior Department. • But under current law, tribes (other than Tulalip and Navajo) can’t issue leases for residential or business purposes without the permission of the BIA. POTENTIAL ADVANTAGE OF TAKING CONTROL OVER LEASING OF TRIBAL TRUST LANDS • The requirement that tribal governments obtain the approval of the BIA in order to issue leases of their own lands is a paternalistic relic that undermines tribal sovereignty and contradicts the policy of selfdetermination declared to be official federal policy more than 35 years ago. • The delays associated with the requirement of BIA approval of leases discourage economic activity and home ownership. Despite the availability of federal guarantees, most mortgage lenders stay out of Indian country because of the cumbersome red-tape, including the BIA approval requirement. THE POINT • In order to honor tribes’ right of selfdetermination, promote economic development and facilitate home ownership, tribes should consider supporting an amendment to Section 415 that would give all tribes the right, but not the obligation, to issue leases under tribal leasing law, without the approval of the Secretary of the Interior.