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)
bpierson@gklaw.com
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.