After the Indian Mineral Leasing Act was enacted in 1935, it took nearly 50 years for Indian tribes and their champions in Congress to push for reforms that authorized a more prominent role for tribes when it comes to leasing of their own land and assets to third parties. The result was the Indian Mineral Development Act of 1982 and, incredibly, the Department of the Interior did not finalize implementing regulations to the 1982 Act until 1993!

Leasing improvements continued in fits and starts in the 1990s and beyond. In 1999, the Navajo Nation proposed, and Congress enacted, the Navajo Surface Leasing Act which puts the Navajo Nation in the driver’s seat by authorizing it to develop and manage its own surface leasing laws without the prior review or approval by the Interior Secretary. This was a major breakthrough and provided the intellectual basis for the Tribal Energy Resource Agreement (TERA) mechanism contained in the Indian Tribal Energy Development and Self-Determination Act of 2005, as well as the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH) of 2012.

While the TERA law continues to undergo fine tuning and amendment, to date, 14 tribes have had their surface leasing ordinance approved by the Interior Secretary – as required by the HEARTH Act --- and another seven have submitted tribal ordinances to the Department. These tribes no longer endure the lengthy and costly delays associated with the federal leasing approval process, and the resulting flexibility will help them attract outside investment and jobs for their members.

All of these structural reforms were proposed by Indian country leaders and enacted by a Congress motivated by a desire to increase tribal self-determination as a means to facilitate investment, job creation and improved household incomes for Indian people.

In a larger sense, these efforts are in a very real way “trust reform,” if we define that term to include a recalibration of the federal – tribal relationship based on a determination of the appropriate federal role in the lives and business of the Indian people themselves.