On Tuesday, May 15, 2012, the House is scheduled to consider H.R. 205, the HEARTH Act of 2011, under a suspension of the rules requiring a two-thirds majority for approval. The bill was introduced on January 6, 2011, by Rep. Marin Heinrich (D-NM) and referred to the committee on Natural Resources, which held a mark up and reported the bill as amended by unanimous consent on November 17, 2011.

H.R. 205 would allow Indian tribes to lease certain lands held in trust for business, agricultural, public, religious, educational, recreational, or residential purposes without approval from the Secretary of the Interior. Under current law, Indian lands are held in trust by the U.S. government that for the benefit of the Indians and leases of those lands must be approved by the Secretary. Under the legislation, any lease for authorized purposes—other than a lease for the exploration, development, or extraction of any mineral resources—would not require the approval of the Secretary if the term of the lease did not exceed 25 years for a business or agricultural lease or 75 years for a lease for public, religious, educational, recreational, or residential purposes.

Under the bill, any Indian tribe may lease its lands for any non-mineral development purpose without review and approval of the Secretary, as long as its leasing is conducted under tribal regulations that have been approved by the Secretary through the Bureau of Indian Affairs (BIA). The Secretary must approve a tribe's leasing regulations if they are consistent with the Department of the Interior’s regulations governing tribal lands, including the opportunity for public notice and comment. Under the bill, taxpayers would not be liable for any loss sustained by any party to a tribal lease executed through a tribe's approved leasing regulations.

According to Committee Report 112-427, Indian lands are not actually owned by the Indian tribes who live on them. The legal title to the lands is held by the federal government in trust for the benefit of Indians. Indians do enjoy exclusive use and benefit of their lands, but such an exclusive use of the lands is limited because the government will not, as a general rule, authorize leases or other uses of such lands if they entail any more than minimal risks, as taxpayers may be held liable for any losses. Minimal risk has, predictably, yielded minimal benefits, according to the Committee’s report. In addition, the Bureau of Indian Affairs (BIA), which is responsible for managing these lands, must work within a federal legal system with inconsistent laws, regulations, and policies in order to approve leases for Indian tribes. In reservations where tribes have contracted with the BIA to manage their own lands and authorize their own leases, use of property has dramatically improved according to the Committee. But even where a tribe manages its lands under such a contract, in the end the BIA ultimately decides whether it may be leased.

In 2000, the Long-Term Indian Leasing Act was amended to allow the Navajo Nation to lease its lands without the Secretary’s approval as long as such leasing is executed under tribal regulations approved by the Secretary, in accordance with a few basic standards. Under the Navajo provision, the United States is absolved of liability for any losses sustained by any party to a lease executed under the tribe's regulations. The Navajo may perform their own environmental review of a lease rather than a full-blown NEPA review. If the Navajo fail to adhere to their regulations, the Secretary may intervene and rescind a lease or reassume leasing authority.

According to CBO, “implementing the legislation would have no significant effect on the federal budget.”