With much tribal and media fanfare, on Monday the President signed into law the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act, Pub. L. No. 112-151 (2012). It was signed less than two weeks after the Senate passed the Act by unanimous consent. According to the House Report on the bill:
Private investment within Indian reservations . . . is about as scarce as it is in any nation where ownership of property is highly restricted by national governments. Investors cannot afford to wait the months or years it may take for BIA approval of a simple lease executed with a tribe. . . . Fortunately, there are exceptions. In reservations where tribes have wisely contracted with the BIA to manage their own lands, productivity and health of the property dramatically improve.
As it stands, under 25 U.S.C. § 415 each and every lease of a tribe’s lands must still undergo federal review and approval by the Secretary of the Interior under a sprawling, burdensome set of regulations. Approval is also subject to the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., along with the usual delays and court controversies that protract the process. It is not unheard of for several years to pass before Indian land can be leased, if at all. Thus, a tribe who wants to govern its trust lands under free market principles cannot, in practice, do so.
Needless to say, the HEARTH Act has great expectations. The Act seeks to change the current scheme of Indian land leasing by – commonsensically – allowing tribes to lease their own land. (The “Homeownership” moniker to the Act is actually misleading; the HEARTH Act potentially applies to all non-mineral tribal land leases, not just those pertaining to Indian homesteads). The Act will give tribal governments the discretion to lease restricted lands for business, agricultural, public, religious, educational, recreational, or residential purposes without the approval of the Secretary of the Interior. Tribes are able to do so with a primary term of 25 years, and up to two renewal terms of 25 years each (or a primary term of up 75 years if the lease is for residential, recreational, religious or educational purposes).
The Act has been lauded as something that will “open the door to badly needed housing development on reservations, as well as wind and solar energy projects that tribes have been eager to launch.” Senator John Barrasso (R-WY) says that it will once and for all “remove bureaucratic red tape and clear the way for Indian tribes to pursue homeownership and economic development opportunities”; Interior Secretary Ken Salazar says the Act “will have a real impact for individuals and families who want to own a home or build a business – generating investment, new jobs and revenues”; National Congress of American Indians President Jefferson Keel echoes the applaud, stating that the Act “will streamline business development and housing development and create jobs on reservations across the country.”
Although a good first step – a very good first step, with much potential – I am not as sold that the HEARTH Act will have such immediate effects, if it will have any effect at all. First, before any tribal government can approve a lease, the Secretary must approve the tribal regulations under which those leases are executed (and mining leases will still require the Secretary's approval). Second, before the Secretary can approve those tribal regulations, the tribe must have implemented an environmental review process – a “tribal,” or “mini” NEPA –that identifies and evaluates any significant effects a proposed lease may have on the environment and allows public comment on those effects.
One need only look to the energy arena to determine the future of the HEARTH Act. In 2005, Congress enacted 25 U.S.C. § 3504, which included provisions for implementation of a Tribal Energy Resource Agreement (“TERA”). Essentially, the law operates much like the HEARTH Act. It (1) allows tribes to enter into a master agreement (the TERA) with the Secretary of the Interior, which then (2) grants the tribe the ability to enter into leases and to grant rights of way across tribal lands without Secretarial approval.
To date, however, not one tribe has entered into a TERA. For many tribes, the cost simply outweighs the benefits – TERAs allow tribes the leeway to skip Secretarial approval, “but only on terms dictated by the federal government rather than on the tribes’ own terms.” Like the HEARTH Act, the TERA requires that tribes create a NEPA-like environmental review process and comply “with all applicable environmental laws.” And tribes simply do not have the resources necessary to fulfill the host of NEPA requirements, which impose an extremely heavy burden on tribal governments to demonstrate that they have the requisite expertise, experience, laws, and administrative structures in place to assume the responsibility of a TERA. According to Indian law scholar Judith V. Royster, “[f]ew tribes at present have the in-house geologists, engineers, hydrologists, and other experts, or the financial wherewithal to hire or train them,” in order to provide the tribe with the capacity necessary to obtain Secretarial approval under the TERA regulations.
Of course, the HEARTH Act authorizes the Secretary to provide a tribe, upon the tribe’s request, technical assistance in developing a regulatory environmental review process. But this takes time and money. And the Secretary, given all of the BIA’s other demands, is perennially short on time when it comes to launching new initiatives such as this one. Further, Congress has shown time and time again that it is willing to pass these laws, but not to fund them; Congress should not be expected to authorize one red cent to support the HEARTH Act’s implementation.
Time will tell whether the HEARTH Act proves to be any success at all. Until then, the “Expedite” part of the HEARTH Act’s title seems a bit too optimistic.
Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or firstname.lastname@example.org.