Law360 Quotes Allison Binney on Tribal Leasing Opportunities

Allison Binney, a partner in the firm’s American Indian law and policy practice, commented in a recent article in Law360 on new economic possibilities for Native American tribes as a result of the U.S. Senate’s passage of the HEARTH Act (Helping Expedite and Advance Responsible Tribal Home Ownership Act). The HEARTH Act is intended to facilitate home ownership by Native Americans on tribal lands by removing the need for approval from the secretary of the interior, but could also allow tribes to attract real estate and energy project developers previously reluctant to wait years for federal government approval of leases.

Binney notes that, since most tribal land is held in trust by the U.S. government, or is controlled by the United States on behalf of the Indian tribe that occupies it, the land cannot be used as collateral in obtaining a loan to construct a home or other development. She notes, “There aren’t many banks that are going to sit around and wait” to process loans while the Department of the Interior takes up to two years to approve encumbrances on tribal lands, such as the long-term leases some tribes present to banks in lieu of title to the property.

Long wait times and cumbersome regulations have also deterred non-Indian businesses from occupying existing and new commercial developments. Binney says, “If you’re a non-Indian business, like Chevron looking space, why would you lease office space on tribal land when it would take a year to approve?” Under the HEARTH Act, it is projected that tribe-specific regulations would allow surface leases and subleases to take place in seven to 10 days—the same amount of time needed to process leases on non-Indian land.