Opinion

Jay Daniels: From paternalism to maternalism in HEARTH Act





"Recently I wrote about the new Code of Federal Regulations and the change to leasing of Indian trust land. Now I want to go a little further into recent changes also applicable to Indian trust land leasing. From the beginning of time, the U.S. Government has acted in a paternalistic manner concerning Indian Country and land. Paternalism is defined as “telling people what is best: a style of government or management.” Maternalism is defined as “caring, giving and nurturing.” The U.S. Government believed that Native Americans needed someone telling them what to do and how to do it. Now we will be able to show them that we can take care of business as well.

By the stroke of pen, President Obama placed into law the “Helping Expedite and Advance Responsible Tribal Homeownership” Act, or HEARTH Act of 2012 at 25 U.S.C. § 415(h). This action has provided a change, not entirely but partly, where paternalistic treatment in managing tribal lands is being reduced. Here are my observations about the application of the statute in authorizing “tribal authority to approve leases” (Tribal Authority). Finally, tribes will be able to manage their leasing affairs in a more timely fashion competitively in the same manner as non-Indian landowners.

First of all, Tribal Authority does not apply to any lease for the exploration, development, or extraction of any mineral resources meaning oil and gas, sand and gravel, or other mineral. Leases of this nature continue to require Secretarial approval. Your oil rights can’t be leased without continued BIA management, oversight, and approval. Here are my other observations and comments about the changes."

Get the Story:
Jay Daniels: From Paternalism to Maternalism by the stroke of a pen (Round House Talk 12/23)

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