The Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act) creates a voluntary, alternative land-leasing process for Tribes by amending 25 U.S.C. § 415.
Once their governing Tribal leasing regulations have been submitted and approved by the Secretary of the Interior, Tribes can negotiate and approve surface leases under their HEARTH Act regulations without further approvals by the Secretary.
Specifically, the HEARTH Act authorizes Tribes to execute agricultural, business, and Wind and Solar Resource (WSR) leases of Tribal trust lands for a primary term of 25 years and up to two renewal terms of 25 years each. Leases of Tribal trust lands for residential, recreational, religious, or educational purposes may be executed for a primary term of up to 75 years. Wind Energy Evaluation Leases (WEELs) may be executed for a primary term of three years and up to one renewal term of three years.
What You Need
- An original cover letter that includes:
- A request for review and approval of the regulations under the HEARTH Act
- Contact information for parties with decision-making authority for the regulations (e.g., Tribal officers, legal counsel)
- Any special circumstances related to submission of the regulations (e.g., an urgent need for approval; a unique provision included in the regulations)
- The original, signed regulations approved by the Tribe and executed by the authorized Tribal officials, along with an original, signed Tribal Resolution authorizing those regulations. The original cover letter must confirm that all submitted documents are originals and not copies. If the Tribe submits copies or the submission is incomplete in any way, the regulations will be considered unofficial and will not be reviewed or forwarded for decision until the completed originals are received.
How to Apply
By Mail
The Tribe must submit a complete HEARTH Act Leasing Regulation application package to the Division of Real Estate Services (DRES) Bureau of Indian Affairs (BIA) Central Office.
The initial submission should not be emailed, mailed, or hand delivered to a BIA Regional Office or Agency.
Applicants are required to submit completed application packages via postal mail.
Steps
- Prepare a cover letter that includes all required information (What You Need).
- Provide one original, signed version of the Tribe-approved regulations executed by the authorized Tribal officials.
- Submit the original, signed Tribal Resolution authorizing the regulations.
- Confirm in the cover letter that all submitted documents are original, not copies.
- Mail all required documents to the designated address:
ATTN: Division Chief
Bureau of Indian Affairs, Office of Trust Services
Division of Real Estate Services
1849 C Street, NW, MS 4620-MIB
Washington, DC 20240
After receiving your documentation in the mail, the HEARTH Act Coordinator will request that the Tribe email PDF and Word versions of the submission as well.
Next Steps
After receiving a Tribe's initial submission for HEARTH Act approval, the Tribe will receive a confirmation email that the package was received at DRES BIA Central Office. In addition, an acknowledgement letter will be sent to the Tribe.
To meet the goal to approve or deny regulations within 120-days from receipt, strict timelines are incorporated into the process.
Review and approval step normally process in 30-day increments:
- Days 1-30: Initial internal review
- Days 31-60: External review and modifications
- Days 61-90: Final review
- Days 91-120: Surname and approval
When the regulations are in the Tribe’s possession for modification or further consideration of the review comments, the 120-days is paused until the Tribe submits their modifications to the BIA.
Tribes will be notified in writing of approval or disapproval. Tribal HEARTH Act regulations are effective upon written notification of approval by the Assistant Secretary-Indian Affairs.
Approval determinations are published in the Federal Register. Disapproval determinations will identify the basis for the disapproval.
An incomplete determination will identify the required documents not included in the initial Tribal submission.
Once a Tribe’s leasing regulations are approved, the Tribe is no longer required to obtain the Secretary’s approval for leases executed under the HEARTH Act. However, the Tribe still must provide their BIA Agency or Regional Office with copies of official documents for recordation purposes (e.g., leases, amendments, assignments, and leasehold mortgages).
Elevated Review for Wind and Solar Leases
Consistent with applicable Executive Orders and Secretary’s Orders,[1] Tribal leasing regulations that authorize wind energy evaluation leases (WEEL) or wind and solar resource leases (WSR) will undergo an elevated HEARTH Act review process. The process will consist of review by Office of the Executive Secretariat and Regulatory Affairs, subsequent review by the Office of the Deputy Secretary, and final review by the Office of the Secretary. The elevated review will occur after the initial review by the Bureau of Indian Affairs and the Office of the Solicitor.
The review will be based on information that the Tribe provides to the Secretary regarding the reasons the Tribe wishes to pursue WEEL or WSR leasing authority, whether the Tribe has a Power Purchase Agreement in place, if applicable whether the applicant has the technical capability to construct, operate, maintain, and terminate the proposed project, if applicable the applicant’s ability to successfully design, construct, and obtain the funding for a project similar to the proposed project, and whether energy resources other than wind and solar are available to meet the Tribe’s needs, and whether those other energy resources are feasible alternatives to wind and solar for the Tribe. The specific information Tribes must provide is available in the Indian Affairs Manual at 51 IAM Chapter 13 (Approval of Tribal Leasing Regulations under the HEARTH Act).
Non-WEEL and Non-WSR leasing regulations are not subject to elevated review. Therefore, Tribes that intend to seek approval for other types of leasing authority, such as business or agricultural, may consider whether it would be advantageous to submit those regulations for review and approval separately from their WEEL and WSR regulations.
