Sen. Daniel Akaka, D-Hawaii (AP)

Tribal Lease Bill Clears Senate After Carcieri Wrangling

Rob Capriccioso
7/18/12

WASHINGTON – The U.S. Senate on July 17 passed the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act of 2011 by unanimous consent. The bill allows tribes to enter into certain surface leases without prior expressed approval of the U.S. Secretary of the Interior, promising to speed up a bureaucratic process long considered broken. Similar legislation already passed the U.S. House in May. To become law, President Barack Obama now must sign it, which he is expected to do in short order.

Passage in the Senate came after the unusual move by Majority Leader Harry Reid to hotline the bill over the wishes of Sen. Daniel Akaka, D-Hawaii, and chairman of the Senate Committee on Indian Affairs.

Akaka – while a fan of the HEARTH Act and an original co-sponsor of the bill offered by Sen. John Barrasso, R-Wyoming – had recently put a hold on its consideration in the Senate because he wanted to see a clean Carcieri fix bill move in Congress before other tribal legislation, according to those familiar with his decision. The clean Carcieri fix that Akaka strongly supports is a proposed remedy to a 2009 U.S. Supreme Court that put in to doubt the U.S. Department of the Interior’s ability to put land into trust for tribes recognized by the federal government after 1934.

Reid, wanting to gain favor for Democrats who were being lobbied hard by tribal constituents to pass the widely bipartisan piece of legislation, ended up going over Akaka’s head. The move, while a slight to Akaka’s leadership, allows an important victory for Rep. Martin Heinrich, D-New Mexico, with tribes in his region. Heinrich is currently running for Senate, and Reid’s maneuver gives him a solid tribal legislative success to point to as his election heats up.

In the end, Akaka said he applauded the passage, but in the immediate aftermath of the Senate wrangling, a clean Carcieri fix appeared ever more difficult to achieve—especially with some tribes and their lobbyists said to be working with legislators to get a remedy that could limit gaming for other tribes. In other words, a non-clean fix.

Akaka did not hint at the underlying Carcieri issues involving his HEARTH positioning in his official statement: “I am pleased that the Senate took a stand today to advance tribal self-determination and economic development through passage of the HEARTH Act,” he said. “Currently, each individual lease of Indian lands requires approval by the Secretary of the Interior, but the HEARTH Act allows tribes to develop their own leasing regulations so long as they are consistent with the Secretary of the Interior’s regulations.”

Akaka said the legislation will streamline the leasing process for tribes and will reduce delays to economic development opportunities on Indian lands, and he noted that it clears the way for all tribes to pursue homeownership on tribal lands held in trust by the United States.

Heinrich was quick to take his victory lap, saying in a statement: “This is about building homes, creating jobs and protecting tribal sovereignty. Indian country faces a serious housing shortage, and this bill will help bring new investment in housing and economic development to tribal communities across New Mexico. The HEARTH Act will give tribes the authority to make their own decisions about leases for homes and businesses on their tribal lands. The last thing the federal government should do is stand in the way of a family who wants to buy a home, and this bill will help make it easier for Native families to buy houses in the communities where their families have lived for generations.”

White House Press Secretary Jay Carney said that Obama “welcomes the passage of this legislation and looks forward to signing it into law,” adding that the HEARTH Act promotes greater tribal self-determination and is expected to help create jobs in Indian country.

“Under the Act, federally recognized tribes can develop and implement their own regulations governing certain leasing on Indian lands,” Carney said. “This new authority has the potential to significantly reduce the time it takes to approve leases for homes and small businesses in Indian country.”

Tribes and Native organizations were also quick to praise the passage, although some will no doubt be saddened to learn of the possible Carcieri fix implications.

"Today's passage of the HEARTH Act is a great victory for tribal housing programs in New Mexico and throughout Indian country," Floyd Tortalita, National American Indian Housing Council Region (NAIHC) VIII Board Member and Acoma Housing Authority Executive Director, said in a statement released by Heinrich. "This bill promotes self-determination by giving tribes the opportunity to handle their own long-term leasing, and will expand housing opportunities for more tribal members—especially those who hold the dream of homeownership."

"The passage of the HEARTH Act is a long awaited victory for tribes and tribal housing programs across Indian country,” added NAIHC Chairwoman Cheryl A. Causley. “NAIHC was on the front-line of this bill and I am so proud of our members and all tribal leaders who sent hundreds of letters to Congress, testified to Congress about the need for this bill as a means to fix long-standing delays in home-site leasing and brought together Congressional staff and leaders from both sides of the aisle to agree on critical provisions. Today we savor this victory and extend our thanks to Congressman Heinrich, House and Senate leadership and the Indian housing advocates who have worked diligently to advance a piece of legislation that will change the face of surface site leasing in Indian country."

The current system, by which the Bureau of Indian Affairs (BIA) processes lease requests, has long been deemed problematic by tribal leaders and citizens. In some cases, the BIA bureaucracy has taken years to process leases.

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