[Senate Report 106-511]
[From the U.S. Government Publishing Office]
Calendar No. 954
106th Congress Report
SENATE
2d Session 106-511
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TO ESTABLISH A STREAMLINED PROCESS TO ENABLE THE NAVAJO NATION TO LEASE
TRUST LANDS WITHOUT HAVING TO OBTAIN THE APPROVAL OF THE SECRETARY OF
THE INTERIOR OF INDIVIDUAL LEASES, EXCEPT LEASES FOR EXPLORATION,
DEVELOPMENT, OR EXTRACTION OF ANY MINERAL RESOURCES
_______
October 31 (legislative day, September 22), 2000.--Ordered to be
printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2665]
The Committee on Indian Affairs, to which was referred the
bill S. 2665, to establish a streamlined process to enable the
Navajo Nation to lease trust lands without having to obtain the
approval of the Secretary of the Interior of individual leases,
except leases for exploration, development, or extraction of
any mineral resources, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill as amended, do pass.
Purpose
The purpose of S. 2665 is to expedite the leasing of Navajo
Nation (Nation) lands by eliminating duplicative and
overlapping federal and tribal procedures for the leasing of
Nation lands.
Background
Under present law, the Secretary of Interior may approve a
lease of lands that are held in trust by the United States for
the Navajo for a term of up to 99 years.\1\ Like other Indian
tribes, the Nation has an administrative process for
determining whether it should approve the leases held in trust
for its benefit by the United States. Federal law also requires
the Secretary of Interior to determine that a lease is in the
best interest of a tribe before approving a lease of trust
lands. In most instances, the Bureau of Indian Affairs (BIA) is
responsible for reviewing a proposed lease to make this
determination. The BIA approves leases of tribal land to ensure
consistency with Federal law, including the Federal
government's trust obligation. The process and standards
employed by the BIA are very similar to the process the Nation
employs before it approves the lease of lands held in trust for
its benefit. Because the BIA only needs to approve leases of
tribal land which are approved by the Nation and submitted for
Federal approval, the Nation and BIA lease approval processes
generally run consecutively. This results in serious and often
needless delays as the applicant for a lease of tribal land
must obtain seriatim and often identical reviews from two
different entities.
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\1\ 25 U.S.C. Sec. 415(a).
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Under the proposed substitute amendment approved by the
Committee, the Secretary may approve the Nation's regulations
for the leases of tribal lands, except for leases involving the
exploration or development of mineral resources. After the
Secretary approves these regulations, leases of Nation trust
lands will no longer require Secretarial approval if they are
approved by the Nation pursuant to the regulations. Such leases
may not exceed the time frames specified in the bill.
The Nation's current regulations include a process for
reviewing the environmental impact of proposed leases. The
Nation informs the Committee that the tribal regulations
submitted for approval to the Secretary will include such
provisions. Because the BIA's current leasing regulations
contain requirements for environmental review, the Secretary
can only approve tribal regulations if they included such a
requirement. Nevertheless, in its October 2, 2000 letter to
Chairman Campbell, Assistant Secretary-Indian Affairs Kevin
Gover requested two amendments to the text of the substitute
amendment approved by the Committee. Mr. Gover's letter
requests with respect to the National Environmental Policy Act
(NEPA) to require a clause to ensure that any regulations
approved by the Secretary contain an environmental review
process similar to NEPA. The nature of environmental review
required for Secretarial approval of the leasing of trust and
restricted lands has been a subject of controversy since the
Federal appellate court ruling in 1972, Davis v. Morton, 469
F.2d 593 (10th Cir. 1972). The 1972 decision has been
criticized for its result, reasoning, and premises. It has been
suggested that Congress should review the application of NEPA
to Indian tribes, especially with respect to the Federal
government's approval of the lease of land held in trust for
Indian tribes. For example, one legal scholar points out,
subordinating the best interest of an Indian tribe in favor of
national or public interests may constitute a breach of the
Federal government's trust obligation to Indian tribes.\2\ A
breach of trust may occur because there is a tension between
NEPA, a Federal statute that directs agencies to consider the
broad national interests when making decisions, and the Federal
government's trust obligation to Indian tribes and their
members, which is directed at each Indian tribe's objectives,
whether they are consistent with broad national or public goals
or not.\3\ Because the Nation does not object to including
NEPA-based environmental review of its proposed leases, there
is no need at this time, for the Committee to undertake the
review suggested.
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\2\ Royster, Equivocal Obligations: The Federal-Tribal Trust
Relationship and Conflicts of Interest in the Development of Mineral
Resources, 71 N.D.L. Rev. 327 (1995).
\3\ Ibid.
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The Administration's second requested change in the
Committee's amendment involves the Federal government's
liability. The Department proposes striking the text of
Sec. 415(e)(5)(B), as reported by the Committee. This provision
in the amendment approved by the Committee is savings provision
concerning the Federal government's trust obligation. At the
Nation's request, this provision was included in the introduced
version of the bill to eliminate any possibility of
interpreting the bill as altering the Federal government's
trust obligation to the tribe. Because the Federal government's
trust obligation exists even where the United States may not
have any legal liability, there is no need to explicitly state
that the Federal government's trust obligation is not affected
by a provision which defines that liability in greater detail.
Neither the Committee nor the Nation believe that the Federal
government's trust obligation is affected by whether this
provision is explicit or not.
In many respects, the approach taken in the amendment
approved by the Committee is similar to other recent Federal
statutes. These statutes include the American Indian Trust Fund
Management Reform Act, P.L. 103-412 and the American Indian
Agricultural Resources Management Act, P.L. 103-177. In each of
these statutes, tribal governments may receive some of the
Federal government's authority with respect to the management
of their resources, often with a corresponding reduction in the
Federal government's liability with respect to tribal decisions
that are no longer within Federal control. By crafting a
careful balance on these issues, Congress can eliminate
burdensome Federal oversight on those Indian tribes that are
not in need of direct oversight, while leaving this review in
place for those tribes that do not wish to take such steps.
Summary of the Amendment in the Nature of a Substitute
Section 1. Short title
Section 1 cites the short title of the bill as the Navajo
Nation Trust Land Leasing Act of 2000.
Section 2. Congressional findings and declaration of purposes
Subsection (a) provides seven Findings that address the
context for the bill. As these Findings demonstrate, the
Federal government has assumed the responsibility to review and
approve the leasing of lands held in trust for Indian tribes.
In some instances, however, the full exercise of the
government's authority may be inconsistent with other Federal
objectives.
Subsection (b) defines the bill's objectives and purposes.
These include, the streamlining of the process for approving
the lease of lands held in trust for the Navajo Nation.
Section 3. Lease of restricted lands for the Navajo Nation
Section 3 adds six definitions to the Long Term Leasing
Act, 25 U.S.C. Sec. 415, for the following terms:
``individually owned Navajo Nation allotted land,''
``interested party,'' ``Navajo Nation,'' ``petition,''
``Secretary,'' and ``tribal regulations.''
Section 4 also provision amends the Long Term Leasing Act
by providing that Secretarial review of a lease is not required
if the Nation ratifies the lease pursuant to tribal regulations
approved by the Secretary under Sec. 415(e). The Secretary is
to approve the Nation's leasing regulations if they are
consistent with the regulations promulgated by the Department
pursuant to 25 U.S.C. Sec. 415(a).
In determining whether the regulations to be promulgated by
the Navajo Nation meet the requirements of 25 U.S.C.
Sec. 415(e)(3) the Secretary is to consider the following
factors to ensure that the Navajo Nation regulations are
consistent with the BIA's leasing regulations:
1. The Nation regulations should protect and preserve
the Nation's trust assets from loss, damage, unlawful
alienation, waste and depletion;
2. The regulation should promote the interest of the
Nation and support the Nation's intended use of the
trust asset;
3. The regulations must provide for the enforcement
of all leases or other agreements that provide for the
use of trust assets and address a remedy for trespass
on tribal trust lands;
4. The regulations should promote Nation control and
self-determination over tribal trust lands and
resources;
5. The regulations should protect and prudently
manage Nation trust assets;
6. The regulations should provide oversight and
review of the trust assets, the asset management
system, the operational and information system;
7. The regulations should account for and timely
identify, collect, deposit and distribute income from
the trust assets to the Nation;
8. The regulations should provide a verifiable system
of records that is capable of identifying:
A. The location of the trust asset
B. The user of the trust asset;
C. The rents or other monies paid to the
Nation;
D. The value of the trust asset;
E. The dates of collection of rental payments
and disbursement;
F. Any documents pertaining to actions taken
to prevent or compensate for any diminishment
in value of the trust asset;
G. Any documents that evidence actions taken
regarding the management and disposition of
Nation trust assets.
Any regulations promulgated by the Nation that address the
above in a manner consistent with, though not necessarily
congruent with, 25 CFR Part 162, as amended, shall satisfy the
requirement that the Nation's regulations be ``consistent
with'' the BIA leasing regulations
The Committee has included these factors to demonstrate
that the Nation's regulations need not be identical to the BIA
regulations to be consistent with those regulations. Rather,
the Nation's regulations may be devised to respond to the
unique and special needs of the Nation.
Within 120 days, the Secretary is to review the regulations
submitted by the Nation and issue a decision indicating his
approval or disapproval. If the Secretary disapproves the
regulations, this decision is to be accompanied by a written
explanation of the basis for this decision.
To assist the Secretary in carrying out his continuing
responsibilities with respect to the use of tribal lands, the
amendment approved by the Department requires the Nation to
provide the Secretary with copies of all approved leases and
information concerning any direct lease payments.
With respect to Federal liability, the approved amendment
also clarifies that the United States is not responsible for
any losses resulting from a lease approved under the procedures
authorized by S. 2665. To eliminate any ambiguity with respect
to the effect of the provision limiting liability,
Sec. 415(e)(5)(A) and (B) state that the limit on liability
should be construed to diminish the Secretary's authority to
protect the rights of the Nation or to absolve the United
States from its trust obligation to the tribe.
Under Sec. 415(e)(6), interested parties may petition the
Secretary to review compliance with the Nation's compliance
with the regulations approved by the Secretary. The Secretary
is authorized to take appropriate action to remedy any
violation. This may include the rescinding of the Secretary's
approval of the regulations approved under this subsection.
This would result in the Secretary having to reassume
responsibility for the approval of land held in trust for the
Nation. Before seeking to remedy such a violation, the
Secretary is to provide the Nation with a written determination
concerning which regulation is alleged to have been violated.
The Nation is to be given an opportunity to cure the possible
violation. Also, if the Nation wishes to have a hearing on the
record, it is to be afforded such an opportunity.
Legislative History
S. 2665 was introduced on May 25, 2000, by Senator Jon Kyl,
and referred to the Committee on Indian Affairs. At an open
business meeting on September 27, 2000, Senator Campbell
proposed an amendment to S. 2665 in the nature of a substitute.
Senators Pete Domenici and Jeff Bingaman were joined as co-
sponsors of the proposed amendment.
Committee Recommendation and Tabulation of Vote
In an open business session on September 27, 2000, the
Committee on Indian Affairs, by a voice vote, adopted the
amendment in the nature of a substitute offered by Senator
Campbell and ordered the bill reported to the Senate, with the
recommendation that the Senate do pass S. 2665 as reported.
Section-by-Section Analysis of the Substitute Amendment
Section 1 of the bill provides a short title.
Section 2 of the bill provides Findings and Purposes.
Section 3 of the bill makes the following amendments to 25
U.S.C. 415, commonly known as the ``Long Term Leasing Act'':
(1) Definitions for the following terms:
``Individually owned Navajo Indian allotted land,''
interested party,'' ``Navajo Nation,'' ``petition,''
``Secretary,'' and ``tribal regulations.''
(2) The Nation is authorized to approve business and
agricultural leases for an initial lease period of 25
years, with options to renew a lease for up to two
additional 25 year periods if the lease is executed
pursuant to approved regulations. The tribal
regulations may also provide for lease terms of 75
years for the following purposes: public, educational,
recreational, or residential purposes.
(3) The Secretary is to review the proposed tribal
leasing regulations within 120 days. If they are not
approved, the Secretary must explain the basis for that
decision in writing.
(4) The Nation is to provide the Secretary with
appropriate documents needed to carry out remaining
Federal obligations.
(5) The United States is not liable for losses to
parties to leases approved under the tribal
regulations. However, this does not diminish the
government's trust obligation.
(6) Interested parties may submit timely petitions to
the Secretary to review the Nation's compliance with
the approved regulations. The Secretary may find that a
lease was approved in a manner inconsistent with the
proposed regulations and take necessary action to
remedy the violation. However, the Secretary must first
notify the tribe and provide it with an opportunity to
address any violation.
Cost and Budgetary Consideration
The cost estimate for S. 2665, as amended, as calculated by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 2, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2665, the Navajo
Nation Trust Land Leasing Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Keith (for federal costs), and Marjorie Miller (for the impact
on state, local, and tribal governments).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 2665--Navajo Nation Trust Land Leasing Act of 2000
S. 2665 would authorize tribes in the Navajo Nation to
lease lands in trust for certain purposes. Under current law,
the tribes must seek the approval of the Secretary of the
Interior before leasing lands in trust. Based on information
from the Bureau of Indian Affairs, CBO estimates that
implementing this legislation would not significantly affect
the federal budget. Implementing S. 2665 would not affect
direct spending or receipts, because any income resulting from
leasing agreements entered into under this legislation would be
paid directly to the appropriate tribal government. Hence, pay-
as-you-go procedures would not apply to the bill.
S. 2665 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
Enactment of this legislation would benefit the Navajo Nation
by streamlining the process of leasing tribal lands.
The CBO staff contacts for this estimate are Lanette J.
Keith (for federal costs), and Marjorie Miller (for the impact
on state, local, and tribal governments). This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of XXVI of the Standing Rules of the Senate
requires that each report accompanying a bill evaluate the
regulatory paperwork impact that would be incurred in carrying
out the bill. The Committee believes that S. 2665 will have de
minimis regulatory or paperwork impact.
Executive Communications
The Committee has received a letter in support of S. 2665
from the Department of Interior on October 2, 2000, which
letter is set forth below:
Department of the Interior,
Office of the Secretary,
Washington, DC, October 2, 2000.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Department of the Interior has
reviewed S. 2665, the ``Navajo Nation Trust Leasing Act,'' as
amended. We would like to express our views on this
legislation.
Staff from the Bureau of Indian Affairs have worked closely
with the Navajo Nation, the Committee staff and Senator Kyl's
staff in the development of this amended version of the
legislation. We appreciate the thoughtful deliberation and
cooperative effort that went into drafting the language within
S. 2665.
The purpose of this legislation is to establish a
streamlined process for the leasing of certain Navajo Nation
trust lands and we believe S. 2665 will accomplish this goal.
Furthermore, this legislation, by authorizing the Navajo Nation
to lease tribal trust land, pursuant to approved tribal
regulations, without Secretarial approval, will further the
Administration's policies supporting Indian self-government and
economic development. The Department requests the following two
text changes to S. 2665 as marked out of the Senate Indian
Affairs Committee September 27, 2000.
Sec. 3. page 7, line 3, insert ``and provide for an
environmental review process'' following ``amendments
thereto''.
Sec. 3. page 7, line 22, strike paragraph (5)(A) and
(B) and replace with the following (5) ``the United
States shall not be liable for losses sustained by any
party to a lease executed pursuant to tribal
regulations under paragraph (1), including the Navajo
Nation. Nothing in this paragraph shall be construed to
diminish the Secretary's authority to take appropriate
actions, including canceling a lease, in furtherance of
its trust obligations to the Navajo Nation.''
With the addition of these amendments, we have no objection
to the legislation, and fully support its passage. In addition,
the Department requests the accompanying report language to
Sec. 3. page 7, line 3, to read ``The environmental review
process established by the Navajo Nation shall be compatible
with the process established by the National Environmental
Policy Act.''
The Office of Management and Budget has advised that there
is no objection from the standpoint of the Administration's
program to the presentation of this report.
Sincerely,
Kevin Gover,
Assistant Secretary--Indian Affairs.
Changes in Existing Law
In compliance with subsection 12 of rule XXXVI of the
Standing Rules of the Senate, the Committee notes the following
changes in existing law (existing law proposed to be omitted is
enclosed in black brackets, new matter printed in italic):
25 U.S.C. 415(c)
Leases involving the Hopi Tribe and the Hopi partitioned
lands accommodation agreement.
Notwithstanding subsection (a) of this section, a lease of
land by the Hopi Tribe to Navajo Indians on the Hopi
Partitioned Lands may be for a term of 75 years, and may be
extended at the conclusion of the term of the lease.
* * * * * * *
25 U.S.C. 415(d)
Definitions
For purposes of this section--
(1) the term ``Hopi Partitioned Lands'' means lands
located in the Hopi Partitioned Area, as defined in
section 168.1(g) of title 25, Code of Federal
Regulations (as in effect on October 11, 1996); [and]
(2) the term ``Navajo Indians'' means members of the
Navajo Tribe[.];
(3) the term ``individually owned Navajo Indian
allotted lands'' means Navajo Indian allotted land that
is owned by 1 or more individuals located within the
Navajo Nation;
(4) the term ``Navajo Nation'' means the Navajo
Nation government that is in existence on the date of
enactment of this Act;
(5) the term ``Secretary'' means the Secretary of the
Interior; and
(6) the term ``tribal regulations'' means the Navajo
Nation regulations as enacted by the Navajo Nation
Council or its standing committees and approved by the
Secretary.
* * * * * * *
25 U.S.C. 415(e)
* * * * * * *
(1) Any leases by the Navajo Nation for purposes
authorized under subsection (a), except a lease for the
exploration, development, or extraction of any mineral
resources, shall not require the approval of the
Secretary if the term of the lease does not exceed 75
years (including options to renew), and the lease is
executed under tribal regulations that are approved by
the Secretary under this subsection.
(2) Paragraph (1) shall not apply to individually
owned Navajo Indian allotted land located within the
Navajo Nation.
(3) The Secretary shall have the authority to approve
or disapprove tribal regulations required under
paragraph (1). The Secretary shall not have approval
authority over individual leases of Navajo trust lands,
except for the exploration, development, or extraction
of any mineral resources. The Secretary shall perform
the duties of the Secretary under this subsection in
the best interest of the Navajo Nation.
(4) If the Navajo Nation has executed a lease
pursuant to tribal regulations under paragraph (1), the
United States shall not be liable for losses sustained
by any party to such lease, including the Navajo
Nation, except that--
(A) the Secretary shall continue to have a
trust obligation to ensure that the rights of
the Navajo Nation are protected in the event of
a violation of the terms of any lease by any
other party to such lease, including the right
to cancel the lease if requested by the Navajo
Nation; and
(B) nothing in this subsection shall be
construed to absolve the United States from any
responsibility to the Navajo Nation, including
responsibilities that derive from the trust
relationship and from any treaties, Executive
Orders, or agreements between the United States
and the Navajo Nation, except as otherwise
specifically provided in this subsection.
* * * * * * *