Procedural Handbook - Leasing And Permitting Chapter 1 - General Information - Department Of The Interior Bureau Of Indian Affairs - 2006 Page 9
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13Leasing and Permitting Chapter 1 – General Information
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discretion.
Current Delegation of Authority can be found on-line at the Bureau of Indian Affairs Homepage
2.5
Landowner Consent Requirements
Subsections 219(a) – (b) of the Indian Land Consolidation Act (ILCA) provide the Secretary
with general authority to approve leases and permits, except in Alaska, which have been
negotiated or agreed to by the owners of a sliding percentage of the trust/restricted ownership of
a given tract, as long as the transaction is expressly found to be in the owners’ best interest. On
October 27, 2004, the President signed the American Indian Probate Reform Act of 2004, which
amends the minimum consent requirements for these transactions to (1) 90%, if there are five or
fewer owners; (2) 80%, if there are between six and ten owners; (3) 60%, if there are between
eleven and nineteen owners; and (4) a simple majority, if there are twenty or more owners. For
purposes of determining what percentage is needed to satisfy these consent requirements,
Section 219(b)(2) indicates that the number of owners will be that which is reflected in the BIA’s
records as of the date on which all of the necessary transaction documents have been received.
Finally, it should be noted that Section 219(d) allows the BIA to approve a lease transaction
without tribal consent (where the requisite minimum consent has been obtained, and the tribe
owns a minority interest). However, even if the ILCA authority is utilized, obtaining tribal
consent is encouraged whenever the tribe owns a fractional interest.
Nothing in section 2218 of ILCA, as amended by AIPRA, “shall be construed to amend or
modify the provisions of Public Law 105-188 (25 U.S.C. 396 note), the American Indian
Agricultural Resources Management Act (25 U.S.C. 3701 et seq.), Title II of the Indian Land
Consolidation Act amendments of 2000, or any other act that provides specific standards for the
percentage of ownership interest that must approve a lease or agreement on a specified
reservation.” For example, AIARMA only requires majority consent, and ILCA as amended by
AIPRA does not modify that requirement.
Pursuant to 25 CFR 162.209 and 25 CFR 162.601, the Secretary can consent on behalf of the
following:
Persons who are non compos mentis;
Orphaned minors;
The undetermined heirs of a decedent’s estate;
The heirs or devisees to individually owned land who have not been able to agree upon a
lease during the three-month period immediately following the date on which a lease may
be entered into; provided that the land is not in use by any of the heirs or devisees;
Indians who have given the Secretary written authority to execute leases on their behalf;
and
Adult Indians whose whereabouts is unknown when necessary to protect and preserve
such property.
The BIA may assist in procuring the consent requirements; however, in order to expedite this
process, it is recommended that the landowner or potential lessee procure the necessary
documentation. The BIA can provide a list of the landowners’ names and addresses to the lessee
if requested in writing.
Issued: March 6, 2006
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