Case Study: HEARTH Act Implementation

The recently established (2016) Ho-Chunk Realty Division provides land, leasing, title, and realty services within the boundaries of the Ho-Chunk reservation, comprised of 15,037 acres, with approximately 6,633 acres in tribal trust land status.

The Ho-Chunk Realty Division reports directly to the Department of Administration under the Office of the President. Ho-Chunk Realty is supported by six staff: Director; Register of Deeds; Leasing Specialist; Lands Specialist; GIS Coordinator and a GIS Specialist, including one staff dedicated to HEARTH Act leasing.

Project description

The Ho-Chunk Nation has assumed responsibility for leasing activities on its tribal lands through the implementation of the HEARTH Act. The HEARTH Act acronym stands for (H)elping (E)xpedite and (A)dvance (R)esponsible (T)ribal (H)omeownership Act.

Signed into law in 2012 (PL 112-151), the HEARTH Act encourages tribes to assume self-governance over leases on tribal trust and restricted lands without the intermediary steps of seeking review by the Bureau of Indian Affairs (BIA) or the approval by the Secretary of the Department of the Interior. To exercise this authority, tribes must first approve leasing regulations and submit them for approval to the BIA Central Office.

Tribal leasing regulations require: (1) consistency with the BIA’s current regulations and (2) an environmental review process. This process includes the identification and evaluation of significant effects of the proposed lease on the environment, along with notice to the public and an opportunity to comment on the impact of the proposed lease prior to tribal approval.

A multitiered final approval process includes review by the BIA Division of Real Estate Services and the Office of the Solicitor, with final approval from the Assistant Secretary of Indian Affairs and the Secretary of the Department of the Interior.

Beginning in 2012, the Ho-Chunk Nation recognized two significant benefits in the HEARTH Act:

• The Act’s central policy objectives are to support tribal self-determination and sovereignty. Ho-Chunk Nation leadership believes that the nation is in the best position to make decisions about how its lands are used and for what period of time.
• Tribal leadership also believes that affording tribal citizens the opportunity to lease lands for residential, agricultural, and business purposes is in the nation’s best interests – and to do so in an expedited manner rather than waiting as long as a year or more for lease approval from BIA.

The Ho-Chunk Nation submitted its proposed leasing regulations to the Department of the Interior in late 2014, opting for all of the flexibility afforded under the Act to administer leasing for all land purposes – residential, business, and agricultural. In February 2015, the Assistant Secretary of Indian Affairs issued final approval to all of the nation’s leasing ordinances. Within the first month, the Nation authorized three residential leases.

Residential leasing and titling comprise about 75 percent of the Ho-Chunk Realty Division’s current workload, and is supported by one full-time leasing specialist. Residential leases are typically for 75 years. Agricultural and Business leases are typically two to three years in duration.

In 2017, the Ho-Chunk Realty Leasing Specialist processed 57 leases, with more than 75 percent for residential purposes. This is a manageable volume.

The Ho-Chunk Realty Division continues to submit all of the lease and title documents to the BIA for recording. This arrangement still maintains an efficient processing of leases, however, because the three certified TAAMS users on staff in the Ho-Chunk Realty Division work closely with the BIA Realty Office, which provides the administrative capacity to expedite the response time to obtain a certified TSR.

Ho-Chunk Nation is quite satisfied with the collaboration between its highly skilled TAAMS-certified staff and the BIA Realty Office. Overall, this team arrangement has achieved a one-month approval time for residential leases.

For allotted lands, the Nation relies on the regulations in 25 CFR Part 162 to manage and process leases. According to the Realty Division’s director, these leases are inherently more complicated and time-consuming.

Promising approach

• Tribal leadership and support: The Realty Division is situated at the Tribal Office Building in the Ho-Chunk Executive Branch. When a lease is ready to be finalized, the packet is brought directly to the tribal legislature for approval, with the tribal vice president signing off on the lease on behalf of the Nation. This is an efficient and effective process.
• Capacity: Incorporating the administration of all land, title, and leasing processes into the Realty Division reduces the administrative burden on the Nation.
• Flexibility and options: The HEARTH Act allows tribes to choose their starting point with the leasing process and to add additional responsibilities as demand grows or rely on regulations in 25 CFR Part 162 when appropriate.
• Certified TAAMs users: Currently Ho-Chunk Nation Realty Division has three certified TAAMS users on staff. Having trained TAAMS users in the tribe’s office significantly reduces the turn-around time to get leases entered into the BIA system.

Impacts

• Reduction in time to acquire leases: All leases are processed and completed in-house. The time it takes to acquire a lease has been dramatically reduced from as long as 18 months to four to six weeks.
• Minimal federal oversight: Apprehension about federal oversight is eliminated, which may lead to more interest in using the Nation’s lands for development purposes.
• Sovereignty and self-determination: The HEARTH Act restored the authority of tribes to make their own land use decisions. Now, the Ho-Chunk Nation no longer needs to ask permission to use its own lands.
• One-time approval from DOI: After receiving approval of tribal leasing regulations, no updates are required unless the tribe chooses to update its own regulations.
• Flexibility and adaptability: Tribes choose what type of land development and leasing suits their needs and administrative capacity. Additional leasing responsibilities can be assumed later, and 25 CFR Part 162 is available to address unique circumstances.
• Investment encouraged: More streamlined and efficient processes encourage investments.
• Implementation support from BIA: The BIA provided up front support and training to Ho-Chunk staff to develop business processes and tools to manage its leasing process. On-going BIA support and training is important to the Ho-Chunk Nation’s success.
• Focus on greatest area of need: the HEARTH Act enables the Ho-Chunk Nation to focus on the areas of great need and importance to the community, mainly residential, business, and agriculture.

Lessons learned

• The HEARTH Act generally has not been adopted by tribes on a large scale, perhaps because:
  • Large land-based tribes with smaller populations and high overhead costs may not have the capacity to administer the HEARTH Act.
  • Tribal leaders need more information about the HEARTH Act and how it can support economic development. Some tribal leaders believe the Act is a step toward termination because it eliminates the need for the BIA. Here the issue is framed in terms of whether the role of the BIA in tribal affairs is synonymous with the federal trust responsibility to the tribes.
  • The Ho-Chunk Nation’s perspective is that the HEARTH Act promotes sovereignty and self-determination by restoring decision making authority and management responsibility over the Nation’s lands. Importantly, the Nation believes that the reduction in the time it takes to provide residential leases is in the best interests of the Ho-Chunk people.
• There’s an ongoing need to bring existing leases up to date.
• Lease management takes time, especially for lease cancellations and enforcing leasing violations.

Ongoing challenges

• Ho-Chunk Nation still must submit all the leasing documents to the BIA to enter the data into the TAAMS system for recording.
• Lease enforcement for violations or cancellations of the lease.
• Situations outside the approved tribal regulations still require BIA action (e.g., trespass from an unapproved right of way).
• Funding and program support is an ongoing concern. While the Ho-Chunk Nation established its Realty Division with existing staff and resources, the proposed budget decreases in federal funding for Indian Country housing are concerning.