Tribal Trust Evaluations and Hearth Act Authority Overview

TRIBAL TRUST EVALUATIONS AND HEARTH /ITARA BUREAU OF TRUST FUNDS ADMINISTRATION OFFICE OF TRUST RISK EVALUATION AND COMPLIANCE DIVISION OF TRUST EVALUATION AND REVIEW

ISSUE What is the role of the Tribal Self Governance Evaluations and the P.L 93-638 Compact Tribes who are approved to administer and conduct leasing activities without Secretarial approval under the HEARTH Act or the ITARA Act? Several Self-Governance Tribes have taken the position that this authority prohibits the Secretary (BTFA) from reviewing tribal leases or lease transactions pursuant to this authority

SHORT ANSWER The ITARA/HEARTH Act(s) do not waive, cancel or preclude any requirements mandated in the Indian Self-Determination Act (ISDEA) or the Tribal Self Governance Act . On March 25, 2021, in a joint meeting with several DOI Solicitors, BTFA-DTER and OSG, were advised that Tribes who have leasing authority pursuant to ITARA and the HEARTH ACT are still bound by the requirements under ISDEA and the Tribal Self-Governance Act, respectively. Therefore, pursuant to the Tribal Self Governance authority in 25 USC 5363 and 25 CFR 1000.350, DTER will continue to review Tribal HEARTH ACT or ITARA tribal leases and leasing transactions as a part of the Annual Tribal Trust Evaluation requirement.

BTFA AUTHORITY The annual trust evaluation is required under section 458(cc) of the Indian Self-determination and Education Assistance Act (25 U.S.C. 5363(d)). The federal code of regulations prescribes the process for conducting the trust evaluations in 25 CFR 1000.350.

TRIBAL AUTHORITY HEARTH ACT Agriculture/Business Leases 25 USC 415 (h) Tribal approval of leases (1) In general At the discretion of any Indian tribe, any lease by the Indian tribe for the purposes authorized under subsection (a) (including any amendments to subsection (a)), except a lease for the exploration, development, or extraction of any mineral resources, shall not require the approval of the Secretary . Tribal Regulations must be submitted for Secretarial approval and are required to be consistent with 25 CFR 162. The Act requires that Tribes must provide a copy of each lease and documentation of lease payments if made directly to tribe; see 25 USC 415, sec,2 (h)(6). ITARA---Surface Leasing and Forestry Management 25 USC 5601-Demonstration Project participation upon approval of Indian Trust Asset Management Plan (ITAMP).ITAMP-or regulations must be consistent with Indian Forestry Management Act at 25 U.S.C. 3101 and in 25 CFR 163. (f) DOCUMENTATION If an Indian tribe executes a surface leasing transaction or a forest land management activity pursuant to tribal regulations under subsection (b)(2), the Indian tribe shall provide to the Secretary(1) a copy of the surface leasing transaction or forest land management activity documents, including any amendments to, or renewals of, the applicable transaction; and(2) in the case of tribal regulations, a surface leasing transaction, or forest land management activities that allow payments to be made directly to the Indian tribe, documentation of the payments that is sufficient to enable the Secretary to discharge the trust responsibility of the United States under subsection (g); see 25 USC 5614,sec 205(f) .

TRUST EVALUATION PROCESS Trust evaluations are conducted in accordance with 25 CFR 1000.355(d) 1-7 Scope of the Trust Review Process for HEARTH /ITARA Tribes for leasing transactions: Tribal Leases will only be reviewed for the following: - - - Compliance with 25 CFR 162 and/or 163 Environmental compliance Compliance with the documentation requirements under the HEARTH ACT ( 25 USC 415(h) and ITARA (25 USC 5601). The Tribal Trust Evaluation will not do the following: - - - Review or request the approved Tribal Regulations. Review or request the approved Tribal Indian Trust Asset Management Plans ( ITAMP) Review for any approval of the Secretary

CONCLUSION Based on Solicitor advice and direction, BTFA will continue to review HEARTH / ITARA Act tribal leases. BTFA, however, will not review or request copies of any HEARTH/ITARA Act approved tribal regulations, and ITAMPs. The lease reviews will be limited to a review compliance with federal laws for leasing, and the documentation requirements under HEARTH/ITARA rules.

QUESTIONS Please feel free to contact me at: Email: Elizabeth_wellshollenberger@btfa.gov Phone: Office: 505-815-1286 or Cell: 505-270-3152