UNLOCKED Act Provides 99-Year Leasing Authority

May 31, 2023 | Insights

As a part of permitting reforms in Congress, on April 26, 2023, the Chairman and Vice-Chairman of the Senate Committee on Indian Affairs, Brian Schatz (D-HI) and Lisa Murkowski (R-AK) introduced S. 1322, the Unlocking Native Lands and Opportunities for Commerce and Key Economic Developments Act of 2023 (UNLOCKED Act). The bill would amend the laws governing surface leasing and rights-of-way. In general, this does not include subsurface leases and rights-of-way related to energy development.

The Senate Committee on Indian Affairs held a hearing on the bill on May 3, 2023. Assistant Secretary for Indian Affairs Bryan Newland provided testimony during the hearing and stated that the Department of the Interior supports the Act. Newland testified that providing more self-governance and authority to tribes over leasing and rights-of-way can help speed up housing and other infrastructure projects.

The UNLOCKED Act intends to remove two barriers to economic development on tribal lands by amending the Indian Long-Term Leasing Act of 1955 and the Indian Rights-of-Way Act of 1948. Both Acts involve leasing Indian lands for business, residential, agricultural, and other surface uses. The UNLOCKED Act would do two primary things:

  • Provide every tribe with the ability to enter into surface leases for 99 years; and
  • Provide tribes with the authority to approve certain types of rights-of-way without obtaining individual approvals from the Secretary.

First, the UNLOCKED Act would amend the Indian Long-Term Leasing Act of 1955, codified at 25 U.S.C. § 415, to allow all tribes and individual Indian owners of restricted land to lease their land for up to 99 years, subject to the approval of the Secretary of the Interior. The Long-Term Leasing Act initially allowed tribal leases for up to 25 years. In the years since 1955, several individual tribes sought specific amendments to the law so that each of these tribes could offer longer-term leases. The UNLOCKED Act would eliminate these amendments and provide every tribe with 99-year leasing authority. 

Second, the UNLOCKED Act would provide Indian tribes with authority to approve rights-of-way across Indian land without Secretarial approval. The UNLOCKED Act would give authority for Indian tribes to approve rights-of-way without obtaining Secretarial approval, similar to the authority provided under the Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act). The amendment essentially expands HEARTH Act leasing authority to rights-of-way.

The changes are intended to “UNLOCK” economic development on Indian lands. The UNLOCKED Act is available here

Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients. To learn more about how we can assist your tribe, contact our DC office at (202-434-8903).