Jay Daniels: HEARTH Act is another step to self-determination

Friday, December 7, 2012  

"On July 30, 2012, President Barack Obama signed into law the Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012, also known as the HEARTH Act of 2012, H.R. 205 (Act), to provide for Indian tribes to enter into certain leases without approval from the Secretary of the Interior. Another step toward true Indian Self-Determination.

The Act amended 25 U.S.C. § 415, more commonly referred to as the Long-Term Leasing Act, approved August 9, 1955, provides authority for tribes to negotiate and approve leases on tribally owned and possibly tribal interests in allotted lands without Bureau of Indian Affairs (BIA) approval. Tribal interests in allotted lands should be a policy call by the BIA because the Act is ambiguous on this issue. Canon’s Rule of Construction states that in the event that the law is ambiguous, federal or local government authority prevails in the absence of a defined rule. If a tribe owns any interest, and the required percent of owner(s) consent is obtained, the tribe could reasonably approve the lease. Mineral leases such as oil or gas, or rights-of-way grants must continue to be approved by the BIA.

Tribes are required to draft tribal regulations for leasing compliant with federal law, develop a environmental review process that identifies 1) evaluation of any significant effects to the environment; 2) inform the public by: a) giving reasonable opportunity to comment on any significant environmental impacts; and b) provide responses to relevant and substantive public comments on any impacts before approving the lease. BIA has drafted a policy memo intended to streamline environmental reviews for residential lease applications."

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Jay Daniels: HEARTH Act: Another Step Toward True Indian Self-Determination (Indian Country Today 12/7)