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.
The tribe would be responsible for recording lease documents with the BIA Land Title and Recording Office (LTRO). The legal encumbrance must appear on Trust Assets and Accounting Management System (TAAMS) Title Status Reports. This is a requirement by banking and guaranteed lending programs for mortgaging trust property.
BIA previously issued a memorandum of agreement to assist tribes in connecting to TAAMS with initial costs for training, equipment and connectivity. TAAMS provides key reports and data for use in managing tribal land. Access to TAAMS would allow tribes to obtain a non-certified TSR for immediate processing of a mortgage application in the interim until LTRO can compile a true and correct certified TSR necessary before release of funds by the lender.
My thought is interested tribes should submit a resolution to adopt current or soon to be published new federal regulations at 25 C.F.R. § 162, and replace every reference to “secretarial approval” with “tribal approval.” Tribes would remove all reference to allotted or individually owned lands as these lands are excluded from the Act. The Secretary has to approve or disapprove tribal regulations within 120 days after submission from the tribe.
New 25 C.F.R. § 162 regulations will be implemented most likely in the next few weeks, if not days. The tribe would then have time to review all present and proposed federal regulations awaiting final publication in the Federal Register. This would minimize use of time and resources in developing tribal regulations while awaiting the new regulations.
Also, 25 C.F.R. § 162 provides that the BIA or tribes, if tribes expend funds in negotiating, approving, and managing trust lands, can assess administrative fees to be paid by the applicant/lessee based upon a fee schedule that is critically outdated. Tribes may establish their own fee schedule and use these dollars to fund their tribal leasing program. The fees could be waived for tribal member lease applications.
The Act is beneficial for Indian Country and should resolve many issues in streamlining lease approval, mortgages, recording of documents, and development of provisions in leases specific to tribal needs. The Act can quickly place tribal members into homes that are available, or could be built or moved onto trust property. The Act also lessens the impact upon tribal members who encounter difficulty “locking” into a loan interest rate because the current approval process usually exceeds the time period allowed for a guaranteed.
Another issue is who would approve the mortgage loan document? Logic would be that the tribe would approve the leasehold interest mortgage because the Secretary isn’t a party to the lease agreement. But what does logic mean in Indian country? This question needs to be asked as the BIA is currently implementing the Act.
Can you imagine being able to secure a temporary or permanent home and move in before the snow flies? There really is no reason for tribal members to be displaced, placed on a waiting list, secure funds, and purchase housing during emergencies or other critical needs. Tribes should act soon to implement this Act, and if not for agricultural, business, or recreational purposes, at least now for residential leases. Your tribal members will benefit tremendously and immediately.
Working and living in Indian Country exposes a person to the critical need for housing. We may not have much, but a home gives us a sense of belonging. It’s like drawing a line in the dirt and knowing that we are still here. This Act truly moves Indian Country towards Indian Self-Determination.
Jay Daniels has 30 years of experience working in Indian country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at his site RoundHouseTalk.com.