Interior Proposes Revisions to Non-Agricultural Leasing of Indian Lands

On November 29, 2011, the Bureau of Indian Affairs (BIA) proposed to revise federal regulations addressing non-agricultural leasing of Indian land. The proposed rule would add new subparts to address residential leases, business leases, wind resource evaluation and development leases, and solar resource development leases on Indian land, and would therefore remove the existing subpart for non-agricultural leases. A preliminary draft of the proposed changes were published earlier this year and is available for download here.

The federal government holds approximately 56 million acres of land in trust for Indian tribes and individual Indians. The Department of Interior owns these lands and holds them in a trust for the benefit of tribes and individual Indians. As trustee of those lands, the Department must ensure that the lands are protected, and that they are used for the benefit of Native-Americans. Congress has enacted laws that require the Department to approve leases on Indian lands. The Department's regulations are intended to implement its trust responsibility under those laws.

The existing regulations were originally adopted fifty (50) years ago and, according to the Department of Interior are "ill-suited to the modern needs of tribes and individual Indians in using their lands for housing, economic, and wind & solar energy development." In addition, the existing regulations do not impose timelines for the Interior Department to complete its review of leases, often resulting in delays in approving leases, lease amendments, subleases, mortgages, and assignments.

Finally, the existing regulations "do not make a distinction between leases for single-family residences and large business developments – meaning the Department reviews leases under a "one-size fits all" structure.  The current leasing regulations require the Department to heavily scrutinize the judgment of Indian landowners in the development of their own lands."

Early next year, starting on January 10, 2012, in Seattle, Washington, BIA will hold a series of consultations through the United States. Additional information and the complete schedule is available at the BIA website. The proposed rule is available for download here.