[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Proposed Rules]
[Pages 30560-30570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14640]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
25 CFR Part 162
RIN 1076-AA29
Leasing and Permitting
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rulemaking action will revise the leasing and permitting
regulations in 25 CFR Part 162, and incorporate the general grazing
permit regulations now found in 25 CFR Part 166. The rule will also
implement the relevant provisions in a number of statutes of general
application, including the American Indian Agricultural Resource
Management Act (AIARMA). Finally, the rule will implement many policy
decisions, legal opinions, and administrative actions which have been
issued or implemented by the Bureau of Indian Affairs (BIA) since the
last publication of these regulations in the 1960's.
DATE: Comments must be submitted on or before October 15, 1996.
ADDRESSES: Mail comments to: Mark Bradford, Bureau of Indian Affairs,
Division of Land and Water, 1849 C Street, N.W., Mail Stop 4559 MIB,
Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Stan Webb, Branch of Real Estate
Services, Phoenix Area Office, Bureau of Indian Affairs, at 602-379-
6781, or Virgil Dupuis, Lands Division, Confederated Salish and
Kootenai Tribes of the Flathead Nation, at 406-675-2700.
SUPPLEMENTARY INFORMATION: Section 301 of the AIARMA requires that the
act be implemented through the promulgation of final regulations within
24 months, and that such regulations be ``developed by the Secretary
with the participation of the affected Indian tribes.'' Four work
groups (including a leasing and permitting group) were established by a
steering committee, with the work groups and the steering committee
each being comprised of BIA and tribal representatives. The work groups
met in March 1994, and a first set of draft regulations was distributed
for comment to some 3000 addressees on April 29, 1994. The first draft
did not provide for a consolidation of the permitting provisions in 25
CFR Parts 162 and 166, although such a consolidation had been planned
by the BIA since 1988; it did, however, include a number of proposed
revisions (unrelated to the AIARMA) intended to address questions
raised during the past 25 years by other statutory enactments and
various administrative actions and judicial decisions.
After five formal hearings were conducted throughout the nation, a
second mailing was distributed for comment on June 28, 1994. The second
mailing included a cross-references summary sheet which indicated how
most of the permitting provisions in the existing 25 CFR Part 166 would
be incorporated in Subpart D of the proposed 25 CFR Part 162, but it
did not include the text of the proposed Subpart D. The text of a
revised Subpart D--and all of the other proposed regulations drafted to
implement the AIARMA--were distributed for a final round of comments on
November 30, 1994. The leasing and permitting work group met in
September 1994 and March 1995, respectively, to review the written
comments and public testimony received in response to the mass
mailings.
[[Page 30561]]
The Statutory Framework
Early Statutes--Tribal Land
Under the trade and intercourse acts which are codified at 25
U.S.C. 177, valid leases of tribal land may be made only with specific
statutory authorization. The first general leasing statute for Indian
land was enacted on February 28, 1891 (26 Stat. 795, 25 U.S.C. 397),
and a proviso in that act authorized tribal councils to lease tribal
``purchased'' land (on treaty reservations) for grazing purposes, for
up to five years. These tribal leases, unlike the leases of allotments
authorized by the same statute, were expressly made subject to approval
by we of the Interior. A proviso in an August 15, 1894, appropriations
act (28 Stat. 305) authorized tribal councils to lease any unallotted
``surplus'' land for farming purposes, for up to five years. By act
dated July 3, 1926 (44 Stat. 894, 25 U.S.C. 402a), leases of irrigable
tribal land were authorized for up to ten years, ``with the consent of
the tribal council, business committee, or other authorized body.'' By
Section 17 of the Indian Reorganization Act (IRA) of June 18, 1934 (48
Stat. 988, 25 U.S.C. 477), tribes which did not vote to reject the IRA
were authorized to adopt corporate charters (to be ``issued'' by us).
Among other things, these charters initially allowed tribes to grant
leases for up to ten years, without further secretarial approval.
Section 17 of the IRA was amended on May 24, 1990 (104 Stat. 207), to
eliminate the need for a special tribal election to support a proposed
corporate charter, and to allow tribes which rejected the IRA to
nonetheless adopt a charter pursuant to Section 17. The amendment also
authorized 25-year leases of tribal land without secretarial approval,
where such leases are authorized by a secretarially-issued charter. The
legislative history of the amendment does not reveal why corporate
leases were limited to 25 years, when longer terms would have been
consistent with the long-term leasing statutes enacted between 1934 and
1990.
Early Statutes--Allotted Land
Leases and other dispositions of allotted land are generally
prohibited by the treaties and statutes which authorized the allotments
and established the periods during which the land would be held in
trust or restricted status. These prohibitions were modified by a
series of statutes which authorized the leasing of allotments, subject
to various limitations as to the lease purpose, maximum lease term, the
leasing authority of the individual Indian landowners, and our approval
power. The Act of February 28, 1891, authorized an allottee who could
not personally occupy and improve his land--``by reason of age or other
disability''--to lease the allotment for farming and grazing purposes.
The statute limited the maximum term of the authorized leases to three
years, and the legislative history dictated that applications to lease
be made directly to us (rather than to the ``agent in charge of any
reservation'').
In its August 15, 1894, appropriations act, Congress lessened the
1891 act's restrictions by authorizing farming and grazing leases by
any allottee with an ``inability'' to personally occupy and improve his
land. In this statute, Congress also extended the maximum term of
farming and grazing leases to five years, and authorized leases of up
to ten years for business purposes. In appropriations acts from 1897
and 1900, however, Congress vacillated in defining the restrictions to
be imposed on the owners of allotted land. In the 1897 act (30 Stat.
85), the ``inability'' provision was dropped, and the maximum terms for
farming/grazing and business leases were reduced to three and five
years, respectively. Then, in the 1900 act (31 Stat. 229, 25 U.S.C.
395), the ``inability'' provision was restored, and five-year farming
leases were re-authorized.
A more expansive leasing statute was enacted on June 25, 1910 (36
Stat. 856, 25 U.S.C. 403), authorizing five-year leases of allotments
held under trust patents, without regard to the purpose of the lease or
the Indian landowner's age, ``disability,'' or ``inability.'' This act
also provided that lease ``proceeds'' could be paid directly to the
allottee or his/her heirs, or expended for their benefit by us.
Congress attempted to both expand and limit its leasing policy in the
Act of May 18, 1916 (39 Stat. 128, 25 U.S.C. 394), which authorized
leases of irrigable allotted land for up to ten years, but made such
leases subject to the ``age or other disability'' restrictions set
forth in the Act of February 28, 1891. By statute enacted on March 3,
1921 (41 Stat. 1232, 25 U.S.C. 393), allottees and their heirs were
authorized to grant farming and grazing leases of ``restricted''
allotments (which were not covered by trust patents, and thus fell
outside the scope of the 1910 act). (In earlier statutes, the leasing
authority of the heirs of allottees had been left to inference.) Leases
granted under the 1921 act were expressly made subject to ``the
approval of the superintendent or other officer in charge of the
reservation where the land is located.'' A September 21, 1922, statute
(42 Stat. 995, 25 U.S.C. 392) subsequently authorized us to approve
leases of allotments wherever the patents covering such allotments
prohibited any type of alienation without the consent of the President.
When the IRA was enacted in 1934, its purposes included the
prohibition of the further allotment of Indian reservations and the
curtailment of the future alienation of allotted land. Although none of
the provisions in the final version of the IRA specifically addressed
the leasing or permitting of allotments, Section 6 (48 Stat. 986, 25
U.S.C. 466) directed us to make rules ``to restrict the number of
livestock grazed on Indian range units to the estimated carrying
capacity * * *, to protect the range from deterioration, to prevent
soil erosion, to assure full utilization of the range, and like
purposes.''
A statute was enacted on July 8, 1940 (54 Stat. 745, 25 U.S.C.
380), to address questions which had arisen about our authority to
approve leases that had not been executed by all of the individual
Indian owners. This act expressly authorized us to grant leases of
heirship land (owned by the heirs or devisees of the original allottee)
under specific circumstances. The act provided, in its entirety, as
follows:
[R]estricted allotments of deceased Indians may be leased,
except for oil and gas mining purposes, by the superintendent of the
reservation within which the lands are located (1) when the heirs or
devisees of such decedents have not been determined and (2) when the
heirs or devisees of the decedents have been determined, and such
lands are not in use by any of the heirs and the heirs have not been
able during a three-months' period to agree upon a lease by reason
of the number of the heirs, their absence from the reservation, or
for other cause, under such rules and regulations as the Secretary
of the Interior may prescribe. The proceeds derived from such leases
will be credited to the estates or other accounts of the individuals
entitled thereto in accordance with their respective interests.
The 3 month negotiation period required by the 1940 act is now
subject to modification by tribes, insofar as agricultural leases are
concerned, through the enactment of the American Indian Agricultural
Resource Management Act on December 3, 1993. The provisions of this act
are described in some detail below.
The Long-Term Leasing Act
Before 1955, leases for more than five years were generally
prohibited on both tribal and individually-owned land; 10 year leases
were authorized only where irrigable land was involved, or where the
leases were made pursuant to a
[[Page 30562]]
tribal corporate charter or a reservation-specific statute. Section 1
of the Act of August 9, 1955 (69 Stat. 539, 25 U.S.C. 415), authorized
long-term leases of both tribal and individually-owned land, but
Section 6 (25 U.S.C. 415d) expressly provided that previously-enacted
statutes would not be repealed. Specifically, ten-year leases were
authorized for grazing purposes, and 25-year leases were authorized
``for public, religious, educational, recreational, residential, or
business purposes, * * * and for those farming purposes which require
the making of a substantial investment in the improvement of the land
for the production of specialized crops.'' Single renewal periods of up
to 25 years were authorized in leases made for purposes other than
farming or grazing.
Section 1 of the 1955 act authorized leases by the Indian
landowners, subject to the approval of the Secretary, and Section 2 (25
U.S.C. 415a) confirmed that long-term leases of heirship land could be
granted by the Secretary pursuant to the Act of July 8, 1940. Section 2
also provided that if this grant authority was delegated by the
Secretary, any ``heirs and devisees'' whose interests were leased under
such authority would have a right to appeal. Section 4 (25 U.S.C. 415b)
generally prohibited the payment of rentals more than one year in
advance of the rental period, and Section 5 (25 U.S.C. 415c) absolutely
prohibited lease provisions which would prevent or delay a termination
of federal trust responsibilities during the lease term.
The legislative history of the 1955 act indicates that it was
intended to facilitate the long-term financing of development on Indian
land, and to thereby increase the rental income payable to Indian
landowners. The House Report reflects that Section 4 was intended to
serve the termination-era ``objective of removing restrictions from
Indian lands as rapidly as the Indian owners become able to handle
their own affairs without assistance from the Federal Government.'' The
House Report also indicates that a statutory provision which would have
mandated rental adjustment clauses in long-term leases (``to insure
adjustments * * * reflecting appreciation or depreciation of real and
personal property values'') was deleted in favor of a committee
recommendation to that effect. Specifically, the House Committee on
Interior and Insular Affairs recommended that adjustment provisions be
included in leases wherever ``applicable and appropriate,'' and that
decisions not to include such provisions be documented on a case-by-
case basis. Finally, the Conference Report indicates that the ten-year
maximum term for grazing leases was established in the belief it would
provide adequate security for private loans to livestock operators.
To date, the 1955 act has been amended numerous times, and 99-year
leasing authority now exists on several reservations. A June 2, 1970,
amendment (84 Stat. 303) added the following sentence at the end of
Section 1 of the 1955 act:
Prior to approval of any lease or extension of an existing lease
* * *, the Secretary of the Interior will first satisfy himself that
adequate consideration has been given to the relationship between
the use of the leased lands and the use of neighboring lands; the
height, quality, and safety of any structures or other facilities to
be constructed on such lands; the availability of police and fire
protection and other services; the availability of judicial forums
for all criminal and civil causes arising on the leased lands; and
the effect on the environment of the uses to which the leased lands
will be subject.
Miscellaneous Statutes--The American Indian Agricultural Resource
Management Act
The AIARMA was enacted on December 3, 1993 (107 Stat. 2011, 25
U.S.C. 3701 et seq.), and amended on November 2, 1994 (108 Stat. 4572).
Section 102(a) of the AIARMA requires that all ``land management
activities''--defined in Section 4(12)(D) to include the
``administration and supervision of agricultural leasing and permitting
activities, including a determination of proper land use, * * *
appraisal, advertisement, negotiation, contract preparation,
collecting, recording, and distributing lease rental receipts''--
conform to agricultural resource management plans, integrated resource
management plans, and all tribal laws and ordinances. Section 102(b)
requires that we recognize and enforce all tribal laws and ordinances
which regulate land use or pertain to Indian agricultural land, and
provide notice of such laws and ordinances to individuals or groups
``undertaking activities'' on any affected land. Section 102(c)
authorizes--but does not require--waivers of federal regulations or
administrative policies which conflict with an agricultural resource
management plan or a tribal law. It should be noted, however, that
Sections 102(a)-(c) expressly provide for the recognition of only those
tribal enactments which are not contrary to federal law or our trust
responsibility.
Section 105 of the AIARMA confirms and expands the existing leasing
and permitting authority of both us and Indian landowners, and it also
limits the authority of tribes to regulate such activities under
Section 102. First, Section 105(a)(1) extends the existing 25-year
authority for farming leases requiring a ``substantial investment'' to
grazing leases that meet the same requirement. Second, Section
105(a)(2) confirms existing authority to grant or approve a lease or
permit at less than the appraised rental value of the land, when the
land has been advertised and it has been determined that the lease or
permit would serve the best interests of the Indian landowners. Third,
Section 105(b)(5) of the amended AIARMA confirms that tribes may
determine the rentals to be paid under agricultural leases and permits
of tribal land. Fourth, the negotiation rights of the owners of
heirship land are expanded by Section 105(c)(2), which authorizes the
owners of a ``majority interest'' to grant an agricultural lease or
permit which will bind the remaining owners (so long as the minority
owners receive ``fair market value'' for their interests). Finally,
while Sections 105(b)(1)-(4) confirm the newly-recognized authority of
tribes to supersede federal rules and regulations on preferences,
bonding, and the leasing or permitting of heirship land, Section
105(c)(3) allows individual landowners to exempt their land from these
specific types of tribal actions where the owners of at least a 50
percent interest in such land object in writing.
Although renewals of farming and grazing leases and permits were
not previously authorized by statute, Section 105(b)(1) of the AIARMA
implicitly authorizes such renewals, at least on land under the
jurisdiction of a tribe which has established preferences for
individual Indian lessees and permittees. Moreover, the three-month
negotiation period required by the Act of July 8, 1940, has been
expressly made subject to modification by tribes under Section
105(b)(4), insofar as ``highly fractionated'' heirship land is
concerned; the three-month period may only be modified, however, where
a tribe defines ``highly fractionated'' and establishes an alternative
plan for providing the individual Indian owners of heirship land with
notice of our intent to lease their land pursuant to the 1940 act. In
an apparent reference to the newly-recognized authority of tribes to
establish alternative notice/negotiation periods, Section 105(c)(1)
originally confirmed the rights of individual ``allottees'' to use
their own property and negotiate their own leases and permits. (By
contrast, the 1940 act allowed the ``heirs and devisees'' of
[[Page 30563]]
allottees to prevent us from exercising our broad grant authority on
heirship land, by putting the land to direct use or by entering into a
lease or permit during a three-month negotiation period.) Section
105(c)(1) was subsequently amended to clarify that nothing in the
AIARMA should be construed as ``limiting or altering'' the use and
negotiation rights of either an ``allottee'' or a tribe, but the
amendment failed to address the question of whether the ``heirs and
devisees'' of allottees (or individual Indian landowners who acquired
their interests by deed) may exercise ``owner's use'' rights under the
1940 act.
Interpretation and Implementation
Audits and Opinions
Since 1984, the Department of the Interior's Office of Inspector
General (OIG) has completed audit reports on: (1) Agricultural leasing
and permitting activities in Montana, South Dakota, and North Dakota;
(2) conservation problems on leased property within the Crow Indian
Reservation in Montana; and (3) the administration of commercial leases
on the Agua Caliente Indian Reservation in California. In the latter
report (from 1992), the OIG expressed concern about whether lessees
should benefit from favorable or subsidized lease rentals by entering
into ``sandwich'' leases which allow them to retain all or part of the
differential between market (sublease) and contract (lease) rents.
While the Agua Caliente audit report criticized existing regulations as
providing ``insufficient guidance for commercial leasing activities,''
it also asserted that such regulations now make us responsible for
ensuring that: (1) All lease rentals (including percentage rentals and
interest on delinquencies) are paid; (2) adequate security for such
payments is maintained throughout the lease term; (3) negotiated leases
provide for a fair rental throughout the lease term, without fixed (or
capped) rental adjustments; and (4) all leases and subleases are
recorded in accordance with 25 CFR 150.
In three audit reports from 1984--1986, the OIG reviewed the
agricultural leasing and permitting activities on six reservations in
North and South Dakota. In two reports pertaining to the Fort Berthold
Reservation, the OIG criticized the BIA's failure to: (1) Identify
unleased agricultural land and advertise such land for lease or permit;
(2) advertise land on which leases or permits will be expiring, where
the landowners have not granted a new lease or permit (to the existing
lessee/permittee or anyone else) within a three-month period; (3) issue
timely notices of delinquent rentals; (4) require a minimum cash rental
where cropshare rentals are authorized; and (5) monitor and document
crop production where cropshare rentals are to be paid. In a 1986
report pertaining to five other reservations in North and South Dakota,
the OIG reiterated most of the Fort Berthold criticisms, and also
recommended that: (1) Minimum grazing rentals be set at a higher rate,
with adjustments to off-reservation market data based on such
``factors'' as seasonal limitations, tribal taxes, interest on rental
``advances,'' administrative fees, and bonding requirements; (2) the
``brokering'' of unauthorized ``subleases'' on allocated range units be
monitored, so that minimum grazing rentals are paid for all livestock
owned by non-Indians; (3) the grazing rentals for the various tracts
within a range unit reflect any differences in the production
capabilities of such tracts; and (4) stocking rates be continuously
reviewed and adjusted as range conditions warrant.
In four audit reports from 1985--1988, the OIG reviewed selected
leasing and permitting activities on three reservations in Montana (as
well as the Turtle Mountain Chippewa allotments in eastern Montana),
focusing primarily on trespass, conservation, and income collection
issues. Two of these reports also reiterated the above-referenced
concerns about unleased land, expiring leases, and delinquent rentals.
Two of the reports dealt solely with conservation issues on the Crow
Indian Reservation, with specific reference to (unapproved) leases
granted by competent Indian landowners pursuant to the amended Crow
allotment act. Based on its review of the legislative history--and its
view of our continuing trust responsibility to the allotments in
question--the OIG recommended that the BIA clarify its responsibility
and authority over land under leases granted by competent Indian
landowners, by legislation if necessary.
National Environmental Policy Act
Sec. 162.16(c)(1) provides that the lessee must comply with the
National Environmental Policy Act (42 U.S.C. 4371 et seq.). The courts
have held in Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), that the
National Environmental Policy Act applies to the Bureau of Indian
Affairs approval of leases of trust land.
List of Subjects in 25 CFR Part 162
Agriculture and agricultural products; Grazing lands; Indian-lands.
For the reasons set out in the preamble, we propose to revise Part
162 of Title 25 of the Code of Federal Regulations, as follows:
PART 162--LEASING AND PERMITTING
Subpart A--General Provisions
Sec.
162.1 Definitions.
162.2 Objectives.
162.3 Scope.
162.4 Tribal laws.
162.5 Information collection.
Subpart B--Administrative Provisions
162.10 How are leasing and permitting units created?
162.11 How are leasing and permitting units advertised?
162.12 Can landowners grant leases or permits?
162.13 When do we grant leases or permits?
162.14 What land is exempt from leasing and permitting?
162.15 What administrative fees are required?
162.16 Who reviews and approves leases or permits?
162.17 What happens if you default?
162.18 When can leases or permits be canceled?
Subpart C--General Requirements
162.20 Who can obtain a lease or permit?
162.21 How do we describe leased or permitted areas?
162.22 What uses of leased or permitted areas are allowed?
162.23 For how long are leases or permits valid?
162.4 What provisions must be in every lease or permit?
162.25 How much will the lease or permit cost?
162.26 Will you have to provide a security deposit?
162.27 How can leases or permits be amended or modified?
162.28 Can leases or permits be assigned, transferred, or sublet?
162.29 Can you use a lease or permit as collateral for a loan?
162.30 What restrictions apply if you acquire interest in a lease
or permit?
162.31 What fees, taxes and assessments must you pay?
162.32 What happens if your lease or permit includes improvements?
162.33 Do you need insurance?
162.34 What remedies are available if there is a default or
dispute?
Subpart D--Special Provisions for Grazing Permits
162.40 How are grazing units established?
162.41 How many animals can you graze?
162.42 When do we issue grazing permits?
162.43 What happens when we implement a tribal allocation program?
[[Page 30564]]
162.44 When will we give stocking rate credit?
162.45 How much will grazing rental cost?
162.46 When will permits or tracts be revoked or withdrawn?
Subpart E--Special Provisions for Specific Reservations
162.50 Crow Reservation
162.51 Cabazon, Augustine, and Torres-Martinez Reservations
162.52 Salt River and San Xavier Reservations
162.53 Tulalip Reservation.
Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9.
Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs.
1, 2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015,
1034, 35 Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat.
128, 41 Stat. 415, as amended, 751, 1232, sec. 17, 43 Stat. 636,
641, 44 Stat. 658, as amended, 894, 1365, as amended, 47 Stat. 1417,
sec. 17, 48 Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 Stat.
781, sec. 3, 49 Stat. 1967, 54 Stat. 745, 1057, 60 Stat. 308, secs.
1, 2, 60 Stat. 962, sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64
Stat. 470, 69 Stat. 539, 540, 72 Stat. 968; 25 U.S.C. 380, 393,
393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c, 413, 415,
415a, 415b, 415c, 415d, 477, 635. 25 U.S.C. 3701, 3702, 3703, 3715,
107 Stat. 2018, 108 Stat. 4572.
Subpart A--General Provisions
Sec. 162.1 Definitions.
Adult means an individual Indian who is 18 years or older.
Agricultural land means farmland, rangeland, or other land which is
used in conjunction with farmland or rangeland.
Agricultural lease or permit means a lease or permit or permit for
farming and/or grazing purposes.
Allocation means the apportionment of grazing units to tribal
members or tribal entities, including the tribal designation of
permittees and the number and kind of livestock to be grazed.
Conservation plan means a statement of management objectives for an
agricultural lessee or permittee, including contract stipulations
defining required uses, operations, and improvements. A conservation
plan may be prepared or adopted by us, and will be reviewable on an
annual basis.
Fair annual rental means consideration for a lease or permit which
provides a reasonable return on land value, as may be determined by an
appraisal of comparable properties, advertisement and/or competitive
bidding, or a negotiated percentage of the income to be derived from
the land. Fair annual rental will reflect the highest and best use of
the land, consistent with applicable law, and will take into account
the costs associated with the proposed use and the reversionary value
of any improvements to be made by the lessee or permittee.
Farmland means land which is used for the development of crops,
pasture, or other agricultural products grown or harvested for personal
consumption or for commercial purposes.
Government land means the surface estate of a tract of land, or any
interest therein, which is owned by the United States and administered
by the Bureau of Indian Affairs, not including tribal land which has
been reserved for the Bureau's administrative purposes but is not
immediately needed for such purposes.
Grazing permit means a permit of specified duration, granting the
permittee a privilege to use tribal, individually-owned, and/or
Government land for grazing purposes. Unless otherwise provided by
agreement, a grazing permit will be assignable by the permittee, with
the consent of the owners and our approval, and may only be canceled or
revoked by us pursuant to Secs. 162.18 and 162.46 of this part,
respectively.
Grazing unit means one or more tracts which have been designated
for grazing purposes, pursuant to Sec. 162.40.
Heirship land means the surface estate of a tract of land having
two or more owners, in which any interest is owned by an individual
Indian in trust or restricted status. Any such interest will be
characterized as individually-owned land, while the entire tract will
be considered to be heirship land. Other interests in a tract of
heirship land may be owned by Indian or non-Indian individuals or
entities, in unrestricted status, or by tribes, in trust or restricted
status.
Individual Indian means any person for whom the United States holds
title in trust status, or who holds title subject to federal
restrictions against alienation or encumbrance.
Individually-owned land means the surface estate of a tract of
land, or any interest therein, which is held by the United States in
trust for an individual Indian, or a tract of land, or any interest
therein, which is owned by an individual Indian subject to federal
restrictions against alienation or encumbrance.
Interest means an undivided fractional share in the ownership of
heirship land.
Lease means a grant to a lessee of a right to possession of tribal
and/or individually-owned land, for a specified purpose and duration.
Majority interest means an aggregate of tribal and individually-
owned interests totaling more than 50 percent of the total ownership in
heirship land.
Owner means the tribe or individual Indian holding beneficial or
restricted title to tribal or individually-owned land.
Permit means a grant to a permittee of a privilege to enter on and
use tribal, individually-owned, and/or Government land for a specified
purpose.
Rangeland means land on which the native vegetation is
predominantly grasses, forbs, or shrubs suitable for grazing.
Secretary means the Secretary of the Interior or his authorized
representative, acting pursuant to delegated authority.
Tract means a distinct parcel of Government or heirship land, or a
distinct parcel of tribal or individually-owned land in which the full
beneficial or restricted title is held by or on behalf of a single
tribe or individual Indian owner. A tract may be leased or permitted
either in all or in part, or it may be incorporated in a unit for
leasing or permitting purposes.
Tribal corporation means a corporation chartered by us under
Section 17 of the Indian Reorganization Act of June 18, 1934 (48 Stat.
984, 25 U.S.C. 477).
Tribal land means a tract of land, or any interest therein, which
is held by the United States in trust for a tribe or tribal
corporation, or a tract of land, or any interest therein, which is
owned by a tribe subject to federal restrictions against alienation or
encumbrance.
Tribal law means an ordinance or other enactment by a tribe, which
applies to leasing and permitting activities on tribal land and/or
individually-owned agricultural land and is applicable under
Sec. 162.4.
Tribe means any Indian tribe, band, nation, or other organized
Indian group or community, including any Alaskan Native village, which
is recognized by us as having special rights and responsibilities, and
as being eligible for the services provided by the United States to
Indians because of their status as Indians.
Unit means two or more tracts which have been combined for leasing
or permitting purposes, pursuant to Sec. 162.10 of this part.
We means the Secretary of the Interior or a Federal official with
delegated authority.
Sec. 162.2 Objectives.
(a) We will prepare and administer leases and permits in accordance
with tribal laws which are not contrary to Federal law or our trust
responsibility to protect the resources of individual
[[Page 30565]]
Indian owners. That means we will manage tribal and individually owned
agricultural land in a manner which is consistent with recognized
principles of sustained yield management, integrated resource
management planning, sound conservation practices, and other community
goals as expressed in tribal laws.
(b) We will assist owners in the granting of leases and permits
through negotiation, advertisement, or allocation. We will also
recognize the rights of owners to use their own land, if the other
owners receive a fair annual rental for this use and the long term
value of the land is preserved.
(c) We will ensure that lessees and permittees comply with the
terms of their leases and permits, through cancellation or other action
necessary to protect the interest of the owners. If the effective use
of the land requires, we may grant leases and permits on behalf of the
owners and obtain a fair annual rental.
Sec. 162.3 Scope.
(a) The regulations in this part prescribe the procedures, terms,
and conditions under which non-mineral leases and permits covering
tribal, individually owned, and government land may be granted,
approved, and administered. The regulations in subparts A through C of
this part apply to all leases and permits, except as otherwise
indicated, and the regulations in subpart D also apply to grazing
permits. Mineral leases and permits will be subject to the regulations
in subchapter I of this chapter.
(b) The regulations in subpart E prescribe certain procedures,
terms, and conditions which apply to leasing and permitting activities
on specific reservations. The provisions in subparts A through D will
also apply on these reservations, unless superseded by subpart E.
(c) The regulations in this part will not apply if a lease or
permit is granted by an owner without our approval being required. Such
leases and permits must be recorded according to part 150 of this
chapter.
Sec. 162.4 Tribal laws.
(a) Tribal laws may apply to tribal land and individually owned
agricultural land under the jurisdiction of the enacting tribe. To be
applicable, the law must apply equally to all land under the
jurisdiction of the tribe.
(b) Tribes must notify us of the content, record of public notices
and hearings, and effective date of new tribal laws. If the new tribal
law applies to individually owned agricultural land, we will notify the
affected owners. Either actual or constructive notice may be provided,
depending on whether the tribe afforded any notice and hearing rights
to the owners before enactment. Actual notice is required if the tribal
law is of the type described in paragraphs (c) (1) through (3) of this
section.
(c) A tribal law may supersede the regulations in this part, except
when the law conflicts with a Federal statute or with the objectives in
Sec. 162.2. Also, owners of individually-owned land or the owners of at
least a 50 percent interest in heirship land may exempt their land from
a tribal law if it:
(1) Provides a preference for Indians or tribal members in issuing
or renewing agricultural leases or permits;
(2) Establishes specific security requirements for agricultural
leases or permits, or waives our security requirements; or
(3) Defines ``highly fractionated'' heirship land and establishes a
plan to provide the owners with notice of our intent to grant an
agricultural lease or permit under Sec. 162.13(b).
(d) The owners of a tract of individually owned or 50 percent
interest in heirship land may exempt their land from a tribal law by
submitting a written statement or petition to us. We will notify the
tribe of your request. The same procedure applies to changing your
request for exemption.
Sec. 162.5 Information collection.
The information collection requirements contained in this part do
not require the review and approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Subpart B--Administrative Provisions
Sec. 162.10 How are leasing and permitting units created?
We may establish a unit if it is consistent with prudent management
or efficient administration of tribal, individually owned, or
Government land. If the value of each tract is not identified in a
lease or permit, the value of each tract will be proportionate to its
acreage within the unit.
Sec. 162.11 How are leasing and permitting units advertised?
(a) If necessary to establish a fair annual rental, we will
advertise a tract of individually owned or heirship land before
granting or approving a lease or permit. Advertisements will require
sealed bids, and may also provide for competitive bidding among the
potential lessees.
(b) Advertisements will provide potential lessees with notice of
the applicable tribal laws, and the basic terms and conditions of the
lease or permit. Advertisements will state if there is preference for
Indians or members of the tribe that has jurisdiction over the land.
Sec. 162.12 Can landowners grant leases or permits?
(a) We will approve a lease or non grazing permit of individually
owned land negotiated and granted by:
(1) Adult owners, except those under a legal disability;
(2) Parents and other persons standing in loco parentis to minor
children owners; and
(3) Guardians, conservators, and other fiduciaries appointed by
courts of competent jurisdiction to act on behalf of individual Indian
owners.
(b) We will approve leases or permits of tribal land negotiated and
granted by tribes and tribal corporations. If allowed by its charter, a
tribal corporation may grant a lease or permit for up to 25 years,
including any option period, without our approval. If tribal land
assigned to a tribal member under tribal law or custom which authorizes
further leasing and permitting, the assignee and tribe may jointly
grant a lease or permit with our approval.
(c) We will approve agricultural leases or permits granted by
owners of a majority interest in heirship land to owners of a minority
interest. The lease or permit must provide a fair annual rental to the
other owners who do not grant the lease or permit.
Sec. 162.13 When do we issue leases or permits?
(a) We may grant leases or non grazing permits, or join in
agreements which have been negotiated by other owners under
Sec. 162.12(a), on behalf of the following owners of individually owned
land:
(1) Adults who are legally disabled;
(2) Orphaned minors;
(3) The undetermined heirs or devisees of individual Indian
decedents;
(4) Individual Indians who have given us written authority to act
on their behalf; and
(5) Individual Indians whose whereabouts are unknown.
(b) We may grant a lease or permit covering all tribal and
individually owned interests in heirship land, if a lease or permit
cannot be granted for each interest under paragraph (a) of this section
and/or Sec. 162.12.
(c) When a tribal law applies, we may only grant a lease or permit
after providing the tribal and individual
[[Page 30566]]
Indian owners with written notice, and allowing owners 3 months to
grant a lease or permit pursuant to Sec. 162.12. We may grant a non-
grazing permit covering all trust and restricted interests in a tract
of heirship land if it is impractical to provide notice to the owners
and no substantial injury to the land would occur. If we grant a lease
or permit for 10 years or more, we will notify the owners of their
right to appeal under part 2 of this chapter.
(d) We will grant permits for Government land.
Sec. 162.14 What land is exempt from leasing and permitting?
(a) The parent, guardian, or other person standing in loco parentis
to minor children may use a tract of individually owned or heirship
land without charge, if the minor children are the only owners and will
directly benefit from the use. This use may continue until one of the
owners becomes an adult.
(1) In that event a lease or permit must be obtained for the use to
continue.
(2) The user must provide evidence of a direct benefit to the minor
children, or we will proceed to lease or permit.
(b) We will not grant a lease or permit pursuant to Secs. 162.13(b)
or 162.42(b), if the land is used by an individual Indian owner and the
other owners are receiving a fair annual rental. An individual Indian
owner who is personally using heirship land must notify us of the use
and provide evidence of an accounting to the other owners before the
end of the applicable notice period.
Sec. 162.15 What administrative fees are required?
(a) We will collect an administrative fee before we approve any
lease, permit, sublease, assignment, encumbrance, modification, or
other related document. The fee will be based on the annual rental
payable by the lessee or permittee, calculated as follows: 3 percent of
the first $500, 2 percent of the next $4500, and 1 percent of all
rentals exceeding $5000. Grazing permittees will also pay an annual
administrative fee for the duration of their permits, at the same
rates. In no event will an administrative fee be less than $2, nor
exceed $250.
(b) For leases or permits with percentage rentals, we will collect
an administrative fee based on the minimum annual rental or an
estimated percentage rental. For crop share rental or another type of
special consideration is authorized by a lease or permit, we will
establish a cash rental value. We will collect an administrative fee
based on the cash rental value.
(c) If a tribe performs all or part of the administrative duties,
the tribe may establish an alternate fee schedule. We must approve the
alternative schedule if any of the fees collected will not be deposited
in the U.S. Treasury.
(d) If less than fair annual rental is payable under a lease or
permit, or if a document is being processed primarily for the benefit
of the owners, we will waive collection of the administrative fee. No
refund of previously collected fees is allowed.
Sec. 162.16 Who reviews and approves leases or permits?
(a) We must identify potential impacts and ensure compliance with
all applicable environmental and land use laws and ordinances before we
grant or approve a lease or permit. Usually a formal assessment of
potential impacts is not required if the proposed action will not
result in a physical alteration of the land or a change in the land
use.
(b) To assess potential impacts of approving a permit or lease, we
will consider the following:
(1) Relationship between the proposed land use and the use of
adjoining land;
(2) Type of improvements;
(3) Availability of essential community services; and
(4) Existence of appropriate regulatory controls and forums for
adjudicating disputes.
(c) We may conditionally approve a permit or lease and reserve the
right to further modify or rescind it as necessary to mitigate
significant environmental impacts. You must not take possession or
start operations until:
(1) You complete an environmental analysis under the National
Environmental Policy Act (42 U.S.C. 4371 et seq.) and we approve it and
decide to approve the permit or lease;
(2) The lease or permit is modified to incorporate mitigation
measures identified in the record of decision; and
(3) We certify that all conditions in the original grant or
approval are satisfied, and we authorize you to take possession and
commence operations.
(d) There is no standard format for a lease or permit. The
provisions must conform to the general and special requirements in
subparts (C) through (E) of this part. A lease or permit must include a
citation of the authority used to grant or approve it and the
delegation authority to the granting or approving official.
(e) We will not grant or approve a lease or permit more than one
year before its starting date. If a lease or permit is granted or
approved after its starting date, it is retroactive to that starting
date except when another date is stipulated.
Sec. 162.17 What happens if you default?
(a) We will determine when a default occurs. We will then notify
you and any sureties or encumbrancers.
(b) You have 30 days from the receipt of the notice to cure the
default or provide information to justify not canceling the lease or
permit. We may grant you additional time to complete corrective
actions, but you must immediately begin the work necessary to cure the
default and diligently proceed to completion within the time allowed.
(c) You have the right to appeal our decision on whether you
defaulted under part 2 of this chapter.
Sec. 162.18 When can leases or permits be canceled?
(a) We will cancel a lease or permit if you fail to justify extra
time to correct or fail to complete required corrective actions. We
will notify you and any sureties or encumbrancers of our decision to
cancel.
(b) In our notice, we will advise you of your right to appeal under
part 2 of this chapter, and we will demand the payment of delinquent
rentals and damages due. An appeal bond may be required, the amount of
the bond will be the amount of delinquent rentals, damages, and
additional rentals expected to accrue during the settlement of the
appeal. An appeal filed without the required bond will be dismissed.
Subpart C--General Requirements
Sec. 162.20 Who can obtain a lease or permit?
(a) The lease or permit must identify all parties, including the
owners, the lessee or permittee, and representatives. If a
representative executes a lease or permit, it must be clearly stated
who is represented and under what authority the representation is
allowed.
(b) We may grant a lease or permit to an individual who has ability
to contract under applicable law. If a lease or permit is granted to
several individuals or an informal association of individuals, the
lease or permit will be executed by each individual.
(c) Where a lease or permit is granted to a partnership, all of the
general partners must execute the lease or permit in the absence of
evidence that all partners are not authorized to bind the lessee or
permittee.
(1) A lease or permit to a partnership will indicate whether
general partners whose partnership interests are later
[[Page 30567]]
terminated will continue to be liable for the debts of the lessee or
permittee.
(2) A lease or permit to a limited partnership, corporation, or
other limited liability company will identify the place where the
organizational documents of the lessee or permittee have been filed.
(d) If a lease or permit is granted to a governmental entity, that
is prohibited by law from complying with any of the requirements in
this part, we may waive those requirements. But, we must ensure that
your sovereign immunity has been waived to the extent necessary to
protect the interests of the owners.
Sec. 162.21 How do we describe leased or permitted areas?
A legal description or the parcel number of the premises must be in
the lease or permit. If you propose any development or a metes and
bounds description is used, you must provide a current survey plat
showing encroachments and the natural features of the land.
Sec. 162.22 What uses of leased or permitted areas are allowed?
(a) A lease or permit must include:
(1) Authorized uses;
(2) Restricted uses;
(3) Prohibited uses; and
(4) Prohibition of creating a nuisance, any illegal activity, and
negligent use or the waste of resources.
(b) You must conduct farming and grazing operations in accordance
with the principles of sustained yield management, integrated resource
management planning, sound conservation practices, and other community
goals as expressed in tribal laws.
(c) You must comply with all applicable laws, ordinances, rules,
regulations, and other legal requirements. You must also pay all costs
if you do not comply.
Sec. 162.23 For how long are leases or permits valid?
(a) Leases and permits will specify the beginning and ending dates.
The length of time allowed will be the shortest possible considering
the purpose, your investment, prudent management, and efficient
administration.
(b) The maximum term will depend on the purpose for the lease or
permit, the location of the land, and the leasing and permitting
authority.
(1) The maximum primary term for public, religious, educational,
recreational, residential, or business purposes is 25 years, unless a
longer term is specifically authorized by Federal statute. The maximum
term for renewals and extensions is 25 years.
(2) We will usually grant agricultural leases or permits not to
exceed 10 years including renewals and extensions. The maximum term is
25 years, including renewals and extensions, if substantial investment
in development or production of a specialized crop is required. To
determine if a long term is justified, we will consider the feasibility
of the proposed development or crop production.
(3) The maximum term is 2 years when we grant a lease or permit for
the undetermined heirs of an individual Indian decedent, under
Sec. 162.13(a)(3).
(c) You cannot extend a lease or permit by holdover. The only ways
a lease or permit can be extended is by renewal or automatic extension.
Only one extension is allowed. Leases or permits may provide multiple
options for unilateral termination. The lease or permit must specify
the time and manner an option to renew or terminate is allowed.
Sec. 162.24 What provisions must be in every lease or permit?
A lease or permit must include provisions stating that:
(a) If the land has trust or restricted status, you and your
sureties obligations will be to the United States and the owners;
(b) The lease will not delay or prevent the issue of a fee patent;
and
(c) If a fee patent is issued, our responsibilities are assumed by
the owners; and
(d) We will notify you of any change land status.
Sec. 162.25 How much will the lease or permit cost?
(a) We will not approve leases or permits at less than fair annual
rental by individual Indian owners or their representatives except:
(1) For religious, educational, recreational, or other public
purposes;
(2) For a homesite for the owner's spouse, brother, sister, lineal
ancestor, lineal descendent or co-owner.
(3) When a special relationship exists between the parties; or
(4) When we determine it is in the best interest of the owners.
(b) We will not approve leases or permits at less than fair annual
rental by a tribe or tribal corporation for tribal land, except:
(1) For religious, educational, recreational, or other public
purposes;
(2) For housing or agriculture to a tribal member or tribal entity;
or
(3) For a business subsidy for a tribal member or tribal entity.
(c) We will specify in the lease or permit the dates that rents are
due and payable. We will also develop a formula for apportionment and/
or abatement of rent when you are unable to take possession for the
entire rental period. We will not collect rent or other consideration
more than one year before its due date unless agreed to by all parties.
(d) We will specify who receives rental payments. If we do not
receive the rental payments, you must provide us proof of payment. We
may suspend direct payment provisions at any time. If an owner that
receives direct payments dies, you must make all future payments to us
until the estate is probated.
(e) All leases or permits of more than 5 years duration must have
periodic rental adjustments, except when the rental is less than fair
annual rental, or if rentals are a percentage of income. We will
specify how, and when the adjustments are made, who will make them, and
how disputes will be settled. Unless agreed to before hand, adjustments
will not:
(1) Give consideration to the value of improvements or developments
completed;
(2) Be retroactive if not made on time; and
(3) Be appealable under part 2 of this chapter.
Sec. 162.26 Will you have to provide a security deposit?
(a) We will usually require that you provide a deposit of cash or
marketable securities, a surety bond, an irrevocable letter of credit,
a chattel mortgage on personal property located on the premises, or
some other type of security, to ensure:
(1) Payment of one year's rental;
(2) Construction of improvements; and
(3) Performance of additional obligations, including the
restoration of the land to its original condition.
(b) Tribal laws may establish specific security requirements for
agricultural leases or permits, or waive our requirements.
(c) We may waive security requirements for agricultural leases or
permits if annual rental is payable in advance, and if performance is
secured by compliance to a conservation plan and participation in
conservation programs administered by other Federal agencies.
(d) We can adjust security requirements at any time. If you
default, we may apply the security and seek replenishment, or we may
retain the security and proceed with a notice of default under
Sec. 162.17. We may release a security required to ensure the
[[Page 30568]]
construction of improvements after completion of construction.
Sec. 162.27 How can leases or permits be amended or modified?
(a) We will amend leases and permits the same way we approve them
under Secs. 162.12 and 162.13(a).
(b) Some owners of heirship land may designate one or more of their
fellow owners to negotiate and/or agree to amendments or permits on
their behalf. In these cases the designated owner:
(1) May negotiate or agree to amendments or permits;
(2) May consent to or approve other items as necessary; and
(3) Cannot negotiate or agree to amendments that reduce the rentals
payable to the other owners or terminate or modify the term of the
lease or permit.
Sec. 162.28 Can leases or permits be assigned, transferred, or sublet?
(a) We will approve subleases or assignments of a lease or permit
only with the written consent of all parties and sureties.
(b) Under a lease or permit for business purposes, you may sublet a
portion of the premises without the consent of the owners, sureties, or
us, if the owners receive a fair annual rental for this additional use.
A sublease will not relieve you of any liability under the lease or
permit, nor will it diminish our supervisory authority.
(c) A tribal housing authority leasing tribal land may make
assignments without the consent of the tribe or our approval, if the
assignment is to a tribal member and associated with the transfer of a
home.
Sec. 162.29 Can you use a lease or permit as collateral for a loan?
Yes. You may use a lease or grazing permit as loan collateral if
you get our approval and the written consent of the owners and
sureties. The lease or permit then has an approved encumbrance.
Sec. 162.30 What restrictions apply if you acquire interest in a lease
or permit?
(a) If you acquire interest in a lease or permit by sale or
foreclosure of an approved encumbrance:
(1) You may give amortization of the loan priority over your rental
payments; and
(2) You may assign your interest without consent or approval, if
the assignee agrees in writing to be bound by the terms of the lease or
permit.
(b) If you acquire interest in a lease or permit other than by sale
of foreclosure of an approved encumbrance:
(1) You need our approval and the consent of the owners and
sureties before you may assign your interest; and
(2) The assignee must agree in writing to be bound by the terms of
the lease or permit.
Sec. 162.31 What fees, taxes and assessments must you pay?
(a) If you lease or permit tribal land, you must pay all tribal
fees, taxes, and assessments associated with the use of the premises.
If you lease or permit individually owned land, you may have to pay
also. You will make the payments to the appropriate tribal official.
(b) If you lease or permit land within an Indian irrigation project
or drainage district, you will have to pay all charges accruing during
the term of the lease or permit, except if part 171 of this chapter
supersedes this section. You will make payment to the appropriate
Federal official.
Sec. 162.32 What happens if your lease or permit includes
improvements?
(a) We will set starting and ending dates for development of the
premises or the construction of improvements. We will also require
plans and specifications be submitted before work begins.
(b) Permanent improvements will remain on the premises at the
termination of a lease or permit. You can remove other improvements
within a set time period if all parties agree. You must restore the
premises after removal.
Sec. 162.33 Do you need insurance?
You must provide enough insurance to protect all insurable
improvements on the premises. You must also obtain liability insurance
to protect the interests of the owners. All insurance policies must
identify the individual Indian and tribal owners and the United States
as insured parties.
Sec. 162.34 What remedies are available if there is a default or
dispute?
(a) A lease or permit covering a tract of tribal land may provide a
tribe with self-help remedies such as a right of entry. Upon default, a
tribe may elect to exercise its rights under the lease or permit, or it
may request that we cancel the lease or permit pursuant to Sec. 162.18.
(b) If a lease or permit covering a tract of tribal land authorizes
termination pursuant to state or tribal law, or provides for the
resolution of certain types of disputes through arbitration, the lease
or permit provisions will govern the termination or dispute
arbitration.
Subpart D--Special Provisions for Grazing Permits
Sec. 162.40 How are grazing units established?
We will establish and modify grazing units boundaries to provide
for the conservation, development, and effective use of Indian, and
Government rangeland. We will consult with the tribe having
jurisdiction to comply with tribal land management policies.
Sec. 162.41 How many animals can you graze?
(a) We will prescribe the maximum number of livestock that can
graze on a grazing unit, and the seasons of authorized grazing use
consistent with tribal land management policies. We will continuously
review stocking rates and adjust them to meet changing conditions.
(b) A tribe may prescribe the kind of livestock that graze on
rangeland within its jurisdiction. But, we may require other kinds of
livestock if it is essential to the prudent management or efficient
administration of the permitted land.
Sec. 162.42 When do we issue grazing permits?
(a) We may include one or more tracts of individually owned
rangeland in a grazing unit, and grant a grazing permit covering such
land, on behalf of the following owners:
(1) Adults who are legally disabled;
(2) Orphaned minors;
(3) The undetermined heirs or devisees of individual Indian
decedents;
(4) Individual Indians who have given us written authority to act
on their behalf; and
(5) Individual Indians whose whereabouts are unknown.
(b) We must notify the Indian owners before we grant a grazing
permit on heirship rangeland. They must have 90 days to agree to the
permit, withdraw their tract from the grazing unit, or stipulate a
higher rental than we proposed.
(c) We may include tribal rangeland within a grazing unit, and
grant a grazing permit if the tribe has given us written authority.
Without tribal authority, we can only include tribal rangeland if it is
essential to the prudent management or efficient administration of the
land. We must give the tribe written notice 60 days before the start of
a permit. We will not issue the permit if the tribe files a written
objection to the proposed permit within the notice period.
[[Page 30569]]
Sec. 162.43 What happens when we implement a tribal allocation
program?
(a) A tribe may authorize us to allocate rangeland under its
jurisdiction without negotiation or advertisement. We may grant permits
under Sec. 162.42(a) and (b), to implement a tribal allocation program,
despite there not being an applicable tribal law. The minimum grazing
rentals established under Sec. 162.45(a) will generally be payable to
any individual Indian owners of allocated land.
(b) The tribe having jurisdiction will prescribe eligibility
requirements with our concurrence. If a tribe fails to establish its
eligibility requirements on time, we may establish the requirements
after a 60-day notice.
Sec. 162.44 When will we give stocking rate credit?
A grazing permit may grant a permittee a stocking rate credit where
the permittee owns or controls other rangeland which adjoins or lies
within the grazing unit, and which is grazed in common with the
permitted land. The stocking rate credit will be reflected in the
grazing capacity of the grazing unit, established pursuant to
Sec. 162.40 of this part.
Sec. 162.45 How much will grazing rental cost?
(a) We will determine fair annual rentals for reservations with
rangeland by establishing its minimum grazing rental. These minimum
grazing rentals will apply to all livestock owned by non Indians or
nonmembers when their livestock grazes on tribal land.
(b) Owners may set alternative minimum rentals, when we grant a
grazing permit under Sec. 162.42(a) and (b). Except when lower rentals
are authorized under Sec. 162.25(a), the alterative minimum rentals may
not be lower than the minimum we set.
Sec. 162.46 When will permits or tracts be revoked or withdrawn?
(a) If you default, we may cancel the grazing permit under
Sec. 162.18, unless we agree to an alternative remedy.
(b) We may revoke or withdraw tracts from a permit if the tribe
wants to include the land in its allocation program or an individual
Indian owner wants his/her land exempt from permitting under
Sec. 162.14(b). The new user must compensate the previous user for any
improvements completed before the revocation or withdrawal, and adopt
an established conservation plan or develop a new plan acceptable to
us. Owners may only withdraw a tract after it is fenced.
(c) We must notify the user 180 days before a revocation or
withdrawal is executed. The effective date will be the next anniversary
date after notice period, unless a different date is agreed to.
Subpart E--Special Requirements for Specific Reservations
Sec. 162.50 Crow Reservation.
(a) Some Crow Indians are classified as competent under the Act of
June 4, 1920 (41 Stat. 751), as amended. They may lease their trust
lands and the trust lands of their minor children for farming or
grazing without our approval per the Act of May 26, 1926 (44 Stat.
658), as amended by the Act of March 15, 1948 (62 Stat. 80). We must
issue a public notice if competent Crow Indians authorize us to lease
or permit, or assist in the leasing and permitting their lands. When
this occurs, we will comply with the regulations in this part. We must
approve leases or permits signed by non competent Crow Indians and
leases or permits on inherited or devised trust lands owned by more
than five competent devisees or heirs.
(b) The Act of May 26, 1926 (44 Stat. 658), as amended by the Act
of March 15, 1948 (62 Stat. 80), sets five years as the maximum lease
term for farming or grazing. The maximum term for leases or permits of
irrigable lands under the Big Horn Canal is 10. You will not have a
preference right to future leases or permits if the total period of
encumbrance would exceed the maximum terms allowed.
(c) All leases or permits entered into by competent Crow Indians
must be recorded at the Crow Agency. Recording will constitute public
notice.
(1) Under these special statutes, Crow Indians classified as
competent are free to lease their property within certain limitations.
The 5-year (10-year in the case of lands under the Big Horn Canal)
limitation is intended to afford a protection to the Indians. The
essence of this protection is the right to deal with the property free,
clear, and unencumbered at intervals at least as frequent as those
provided by law. If lessees or permittees are able to obtain new leases
or permits long before the termination of existing leases or permits,
they may set their own term. In these circumstances, lessees could
perpetuate their leaseholds and bypass the statutory limitations on
terms.
(2) In implementation of the interpretation, in paragraph (c)(1) of
this section we will not record any lease which:
(i) On its face, violates statutory limitations or requirements;
(ii) Is executed more than 12 months (if a grazing lease) or 18
months (if a farming lease), before its term begins; or
(iii) Purports to cancel an existing lease with the same lessee as
of a future date and take effect upon cancellation.
(3) Under a Crow tribal program, competent Crow Indians may enter
into agreements which require that, for a specified term, their leases
or permits be approved. Information about whether a competent Crow
Indian has executed such an instrument is available at the office of
the Superintendent of the Crow Agency, Bureau of Indian Affairs, Crow
Agency, Montana. We will return without recordation any lease entered
into with a competent Crow Indian during the time such instrument is in
effect that is not in accordance with the instrument.
(d) Where any of the following conditions are found to exist,
leases will be recorded but the lessee and lessor will be notified upon
discovery of the condition:
(1) The lease in single or counterpart form has not been executed
by all owners of the land described in the lease;
(2) There is, of record, a lease on the land for all or a part of
the same term;
(3) The lease does not contain stipulations requiring sound land
utilization plans and conservation practices; or
(4) There are other deficiencies such as, but not limited to,
erroneous land descriptions, and alterations which are not clearly
endorsed by the lessor.
(e) Any competent adult Crow Indian will have the full
responsibility for obtaining compliance with the terms of any lease
made by him/her under this section. This will not preclude action by us
to ensure conservation and protection of these trust lands.
(f) Leases made by competent Crow Indians will be subject to the
right to issue permits and leases to prospect for, develop, and mine
oil, gas, and other minerals, and to grant rights of way and easements,
in accordance with applicable law and regulations. In issuing or
granting of permits, leases, rights of way or easements we will give
due consideration to the interests of lessees and to the adjustment of
any damages to such interests. If there is a dispute over the amount of
damage, the matter will be referred to us. Our determination of the
amount of damage will be final.
Sec. 162.51 Cabazon, Augustine, and Torres-Martinez Reservations.
(a) We may grant a lease of trust or restricted land on the
Cabazon, Augustine, and Torres-Martinez Indian
[[Page 30570]]
reservations, if the land is irrigable by the Coachella Valley County
Water District and we determine that the owners are not benefitting
from its use.
(b) You must file a lease of trust or restricted land on the
Cabazon, Augustine, and Torres-Martinez Indian reservations with the
appropriate county recorder. You must also file the lease with the
Coachella Valley County Water District or other appropriate irrigation
or water district.
Sec. 162.52 Salt River and San Xavier Reservations.
(a) A lease of trust or restricted land on the Salt River or San
Xavier reservation may authorize more than one renewal period, but the
maximum term allowable by law can not be exceeded. A lease for public,
religious, educational, recreational, residential, or business purposes
may run for a maximum term of 99 years, and a lease for farming
purposes may run for up to 40 years where a substantial investment in
the development of the land or the production of a specialized crop is
required.
(b) If we determine that the governmental interests of a
municipality contiguous to either the Salt River or San Xavier
reservation would be substantially affected by the grant or approval of
a lease, and these interests cannot be adequately assessed on the basis
of the information available (under Sec. 162.16), we must notify the
municipality of the proposed action and give them 30 days to comment.
(c) The scenic, historic, and religious values of the Mission San
Xavier del Bac on the San Xavier Reservation must be protected.
Sec. 162.53 Tulalip Reservation.
The Tulalip Tribes may grant a lease without our approval, if the
term of the lease does not exceed 15 years including renewal or
extension periods. The Tulalip Tribes may grant a lease without our
approval for up to 30 years, including renewal or extension periods,
under tribal law approved by us.
Date: May 31, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-14640 Filed 6-14-96; 8:45 am]
BILLING CODE 4310-02-P
