JAY DANIELS: Another Change – But this time one for the better!

Well, it’s finally official as the new regulations for 25 C.F.R. § 162 (“new regulations”), including residential, business agricultural, religious, recreational and other purposes have become. Another change, but it is a change for the better compared to the prior regulations.


Recently, the Secretary of the Interior issued a press release about the finalization of the new regulations. The press release provided documentation at the following links:

For a Fact Sheet on the final rule, click here.


For a Q & A document on the final rule, download pdf here.


For a comparison of existing and new regulations, download pdf here.


For the final rule, click here.


The Part 162 new regulations major changes were identified in a two page table. In reviewing the tables, the following are highlights:


If BIA does not approve a sublease for a house, when a complete application package has been provided within 30 days, the sublease is considered to have been deemed approved, and automatically goes into effect.


Does not require BIA approval of assignments if a lease is for housing for public purposes or the assignment is to certain parties.


Provides flexibility by allowing original lease to provide for up-front or deemed consent of leasehold mortgages, subleases, etc.


Permits for activities on Indian lands for special events or one time use of land are exempt from BIA approval.


Requires BIA to defer to tribal decisions on rental rates, and does not require an appraisal of land unless the tribe requests one. Allows for more flexibility in determining and requiring fair market value for individually-owned land. Allows rent for wind energy evaluation leases to be at any amount negotiated by the landowners.


Federal statutes require the Secretary to approve leases of Indian land. The new regulations replace the general subpart with subparts specifically addressing the different categories of leasing on Indian land. Specifically:


Revises Subpart A, General Provisions by creating a new 1) Subpart C, Residential Leases; 2) new Subpart D, Business Leases; 3) new Subpart E, Wind Energy Evaluation Leases (WEELs) and Wind and Solar Resource (WSR) Leases; 4) deletes Subpart F, Non-agricultural Leases; 5) moves the current Subpart E, Special Requirements for Certain Indian Reservations, to Subpart F; and 6) creates a new Subpart G, Records.


The rule does not affect Subpart B, Agricultural Leases. The new General Provisions do not affect agricultural lease regulations and the previous General Provisions section is being moved to Subpart B, where they apply only to agricultural leases.


And finally, the regulations provide for a 60-day time frame within which BIA must issue a decision on a complete business lease application. Also, new regulations provide for a 20-day time frame within which BIA must issue a decision on a complete WEEL and a 60-day time frame within which BIA must issue a decision on a complete WSR lease application.


All of these changes make the leasing process somewhat better for tribal and Indian landowners just for the fact that the BIA is giving up more control to landowners make decisions affecting their lands. It is somewhat lacking in facilitating owner’s rights with limitations that impede landowner ability to negotiate and agree to leases without requiring approval on agreements the landowner feels meets their needs. Of course, this ability should be granted to those landowners who don’t request BIA assistance in negotiating leases.

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 will greatly enhance tribal leasing authority to manage their own lands. But, it would be beneficial to individual Indian landowners if the Act was amended in the future to provide individually-owned Indian lands to be approved by their Tribe if the tribe has lease approval authority from the Secretary. An amendment could be only for those lease applications where the landowners have consented to tribal leasing authority in lieu of BIA approval authority.

Now, one question still looming in my mind is how will lease violations be managed? It appears that the language in Part 162.364(b), the provision says that the BIA will investigate lease non-compliance if the Indian landowner reports a lease violation. Although Part 162.364(a) alludes that the BIA has authority to enter the leased premises to protect the interests of the Indian landowner, it could be interpreted to mean that lease violations may be investigated if the Indian landowner requests BIA to investigate, rather than BIA performing lease compliance activities uncovers a violation. Federal Lease Compliance and Other Rights Protection funds have been zeroed out in the past two BIA budgets for distribution to the each of the 12 BIA regions. So, if funds to cover routine lease compliance isn’t available, is BIA released from performing routine field investigations or drafting reports of site visits to ensure compliance with leasing requirements?


But the new regulations are an improvement overall to leasing Indian lands. No one knows how long Indian Country will have to live with these new regulations, but, at least the new changes are better than they used to be. Change always consists of no change, some change and complete change. Some change is always better than no change. Complete change is always just down the road and eventually we should bump in to it. Got to think positive!


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 http://roundhousetalk.com/