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Indian Nations Law Update - August 2012

August 09, 2012

The HEARTH Act Becomes Law: An Opportunity to Strengthen Tribal Sovereignty
On July 30, the President signed into law HR. 205, the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act or Act). Under the Long Term Leasing Act of 1955, 25 U.S.C. § 415, the Bureau of Indian Affairs (BIA) must approve all leases of tribal trust land. While the BIA has attempted to defer to tribal governments in most cases, the approval requirement has inevitably added cost and delay to the leasing process. The HEARTH Act amends Section 415 to provide that:

- Tribes that adopt leasing regulations approved by the Secretary of the Interior thereafter will no longer need BIA approval to issue non-mineral leases;
- Tribal leasing regulations may provide for the lease of lands for business or agriculture for up to 25 years, with an option to renew for up to two additional terms, each of which may not exceed 25 years;
- Tribal leasing regulations may provide for the lease of lands for public, religious, educational, recreational, or residential purposes for up to 75 years;
- The Secretary is required to approve or disapprove tribal leasing regulations within 120 days; the Secretary of DOI "shall" approve tribal regulations that:

  • are consistent with regulations issued by the Secretary under Section 415(a);
  • require the identification and evaluation of any significant effects of the proposed action on the environment;
  • require that the public be informed of, and have a reasonable opportunity to comment on, any significant environmental impacts of the proposed lease; and
  • require the tribe to respond to relevant and substantive public comments on any such impacts before the lease is approved;

- Where the federal government has undertaken an environmental review process in connection with a federally funded activity, the tribe can rely on the federal environmental review; and
- Tribes issuing leases under approved tribal leasing regulations are required to provide BIA with copies of the leases issued.

The HEARTH Act represents a major shift of authority over tribal lands from the federal government to tribes. On a more practical level, the Act will enable tribes to pursue economic development more expeditiously and better meet the home ownership needs of their members.

Godfrey & Kahn has assisted tribes in drafting leasing regulations that are consistent with BIA regulations and also address circumstances and concerns unique to the community. For assistance, or more information, contact Brian Pierson, chair of Godfrey & Kahn's Indian Nations Law team at 414.287.9456 or bpierson@gklaw.com.

Pierson and Godfrey & Kahn Receive "Service to Indian Country" Award
The American Indian Chamber of Commerce of Wisconsin (AICCW) has awarded Brian Pierson and Godfrey & Kahn its 2012 "Service to Wisconsin Indian Country" Award. At its 19th annual awards luncheon at Potawatomi Bingo Casino in Milwaukee on July 26th, AICCW cited Pierson's and Godfrey & Kahn's involvement in treaty rights issues, pro bono efforts relating to religious rights of prisoners, pro bono assistance to Indian-owned businesses, recent pro bono amicus brief defending Wisconsin's Indian mascot law, and ongoing representation of AICCW in a suit challenging recent revisions to Milwaukee's small business contracting ordinance that resulted in loss of contracts by Indian contractors. G&K also funded a scholarship for a Native student, which Matt Kemp of Godfrey & Kahn's Environment & Energy Strategies team awarded at the luncheon.

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