Land Development Business Agreement

							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 SELF-
 DETERMINATION 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 self-
   determination 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 self-
  determination, 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.