73784 Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 162 

[Docket ID BIA–2011–0001] 

RIN 1076–AE73 

Residential, Business, and Wind and 

Solar Resource Leases on Indian Land 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: The Bureau of Indian Affairs 

(BIA) is proposing to revise the 

regulations addressing non-agricultural 

leasing of Indian land. This rule would 

add new subparts to address residential 

leases, business leases, wind resource 

evaluation and development leases, and 

solar resource development leases on 

Indian land, and would therefore 

remove the existing subpart for nonagricultural leases. 

DATES: Comments on this proposed rule 

must be received by January 30, 2012. 

Comments on the information 

collections contained in this proposed 

regulation are separate from those on 

the substance of the rule. Comments on 

the information collection burden 

should be received by December 29, 

2011 to ensure consideration, but must 

be received no later than January 30, 

2012. 

ADDRESSES: You may submit comments 

by any of the following methods: 

Federal rulemaking portal: http:// 

www.regulations.gov. The rule is listed 

under the agency name ‘‘Bureau of 

Indian Affairs.’’ The rule has been 

assigned Docket ID: BIA–2011–0001. If 

you would like to submit comments 

through the Federal e-Rulemaking 

Portal, go to http://www.regulations.gov 

and do the following. Go to the box 

entitled ‘‘Enter Keyword or ID,’’ type in 

‘‘BIA–2011–0001,’’ and click the 

‘‘Search’’ button. The next screen will 

display the Docket Search Results for 

the rulemaking. If you click on BIA– 

2011–0001, you can view this rule and 

submit a comment. You can also view 

any supporting material and any 

comments submitted by others. 

—Email: consultation@bia.gov. Include 

the number 1076–AE73 in the subject 

line of the message. 

—Mail: Del Laverdure, Principal Deputy 

Assistant Secretary—Indian Affairs, 

U.S. Department of the Interior, Mail 

Stop 4141, 1849 C Street NW., 

Washington, DC 20240. Include the 

number 1076–AE73 on the outer 

envelope. 

—Hand delivery: Del Laverdure, 

Principal Deputy Assistant 

Secretary—Indian Affairs, U.S. 

Department of the Interior, Room 

4141, 1849 C Street NW., Washington, 

DC 20240. Include the number 1076– 

AE73 on the outer envelope. 

We cannot ensure that comments 

received after the close of the comment 

period (see DATES) will be included in 

the docket for this rulemaking and 

considered. Comments sent to an 

address other than those listed above 

will not be included in the docket for 

this rulemaking. 

Comments on the information 

collections contained in this proposed 

regulation are separate from those on 

the substance of the rule. Send 

comments on the information collection 

burden to OMB by facsimile to (202) 

395–5806 or email to the OMB Desk 

Officer for the Department of the 

Interior at OIRA_DOCKET@ 

omb.eop.gov. Please send a copy of your 

comments to the person listed in the 

FOR FURTHER INFORMATION CONTACT

section of this notice. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Appel, Office of Regulatory 

Affairs & Collaborative Action, (202) 

273–4680; Elizabeth.appel@bia.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This proposed rule would revise the 

current 25 CFR part 162, Leases and 

Permits, to establish subparts 

specifically addressing the following 

categories of leasing on Indian land: 

residential; business; wind resource 

evaluation and development; and solar 

resource development. Specifically, this 

rule would: 

• Revise Subpart A, General 

Provisions 

• Create a new Subpart C, Residential 

Leases 

• Create a new Subpart D, Business 

Leases 

• Create a new Subpart E, Wind 

Energy Evaluation Leases (WEELs) and 

Wind and Solar Resource (WSR) Leases 

• Delete Subpart F, Non-agricultural 

Leases (because that subpart was 

intended to address residential and 

business leasing, which this proposed 

rule addresses specifically in subparts C 

and D, respectively) 

• Move the current Subpart E, Special 

Requirements for Certain Indian 

Reservations, to Subpart F 

• Create a new Subpart G, Records. 

The proposed rule does not affect 

Subpart B, Agricultural Leases. Subpart 

B may be revised at a later time. In 

addition, to ensure that changes to the 

General Provisions do not affect 

agricultural lease regulations, the 

current General Provisions sections are 

being moved to Subpart B, where they 

apply only to agricultural leases. Minor 

edits were made to these General 

Provisions to delete redundancies and 

clarify that they now apply only to 

agricultural leases. 

II. Summary of Substantive Revisions 

This rule makes the procedures for 

leasing as explicit and transparent as 

possible. The consent requirements in 

the proposed regulations are consistent 

with the Indian Land Consolidation Act 

of 2000 (ILCA), as amended by the 

American Indian Probate Reform Act 

(AIPRA). Because this statute does not 

apply to tribes in Alaska, the consent 

requirements for Alaska remain the 

same as the previous regulations 

governing leasing. The proposed 

regulations provide procedures for 

approval of lease amendments, 

assignments, subleases and leasehold 

mortgages. The current regulations 

provide for the approval of such 

instruments, but do not specify the 

procedure for such approval, leading to 

the possibility of inconsistencies 

nationwide, to the detriment of lessees 

and lenders. 

This rule provides that leases on tribal 

land may be approved for the 

compensation established in the lease. 

Leases for less than fair market rental 

may be approved on individually 

owned Indian land under certain 

circumstances. 

Subpart C, Residential Leases, 

addresses leasing for single-family 

homes and housing for public purposes 

on Indian land. The proposed 

regulations provide for a 30-day time 

frame within which BIA must issue a 

decision on a complete residential lease 

application. Bonds are not required for 

leases for housing for public purposes 

and otherwise may be waived by BIA 

upon a determination that it is in the 

best interest of the landowner(s). 

Subpart C also includes provisions for 

enforcement of lease violations. 

Subpart D, Business Leases, addresses 

leasing for business purposes, 

including: (1) Leases for residential 

purposes that are not covered in Subpart 

C; (2) leases for business purposes not 

covered by Subpart E (wind energy 

evaluation and wind and solar resource 

development); (3) leases for religious, 

educational, recreational, cultural, and 

other public purposes; and (4) 

commercial or industrial leases for 

retail, office, manufacturing, storage, 

biomass, waste-to-energy, and/or other 

business purposes. The proposed 

regulations provide for a 60-day time 

frame within which BIA must issue a 


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decision on a complete business lease 

application. 

Subpart E, WEELs and WSR Leases, 

establishes procedures for obtaining BIA 

review and approval of wind energy 

evaluation leases (WEELs) and wind 

and solar resource (WSR) development 

leases. For wind energy, this proposed 

rule establishes a two-part process 

whereby developers obtain BIA 

approval of a short-term lease for 

possession of Indian land for the 

purposes of installation and 

maintenance of wind evaluation 

equipment, such as meteorological 

towers. The WEEL may provide the 

developer with an option to lease the 

Indian land for wind energy 

development purposes. The 

environmental reviews conducted for 

the short-term lease, which would only 

evaluate the impacts of the evaluation 

equipment, not the full development of 

the wind project, may be rolled into 

environmental reviews conducted for a 

lease for full development of the wind 

project. This two-part process is not 

necessary for solar resource 

development because solar evaluation 

does not require possession of the land. 

Some of the more notable crosscutting substantive changes include: 

BIA Approval Process 

• Eliminating the requirement for BIA 

approval of permits of Indian land; 

• Eliminating the requirement for BIA 

approval of subleases and assignments 

where certain conditions are met; 

• Imposing time limits on BIA to act 

on requests to approve lease 

amendments, lease assignments, 

subleases, and leasehold mortgages; 

• Establishing that BIA has 30 days to 

act on a request to approve a lease 

amendment or sublease, or the 

document will be deemed approved; 

• Establishing that BIA must approve 

amendments, assignments, leasehold 

mortgages, and subleases unless it finds 

a compelling reason not to, based on 

certain specified findings. 

Compensation and Valuations 

• Providing that BIA will defer to the 

tribe’s negotiated value for a lease of 

tribal land and will not require 

valuation of tribal land; 

• Allowing for waivers of valuation 

for residential leases of individually 

owned land if the individual 

landowners provide 100 percent 

consent and a waiver and BIA 

determines it is in the best interest of 

the landowners (100 percent consent is 

necessary because non-consenting 

owners receive fair market value, so a 

valuation will be necessary if any 

individual does not consent); 

• Allowing short-term leases for wind 

resource evaluation purposes at the 

value negotiated by the Indian 

landowners (whether tribal or 

individual Indians); 

• Allowing alternative forms of rental 

(other than monetary compensation) if 

BIA determines it is in the best interest 

of the Indian landowners; 

• Allowing other types of valuation 

(other than appraisals) under certain 

circumstances; 

• Allowing for automatic rental 

adjustments and restricting the need for 

reviews of the lease compensation (to 

determine if an adjustment is needed) to 

certain circumstances. 

Improvements 

• Requiring plans of development 

and schedules for construction of 

improvements to assist the BIA and 

Indian landowners in enforcement of 

diligent development of the leased 

premises. 

• Clarifying that improvements on 

trust or restricted land are not taxable by 

States or localities, without regard to 

ownership. The purposes of residential, 

business, and WSR leasing on Indian 

land are to promote Indian housing and 

to allow Indian landowners to use their 

land profitably for economic 

development. These regulations are 

intended to preempt the field of leasing 

of Indian lands. The Federal statutory 

and regulatory scheme for leasing, 

including the regulation of 

improvements, is so pervasive as to 

preclude the additional burden of State 

taxation. The assessment of State taxes 

would obstruct Federal policies 

supporting tribal economic 

development and self-determination, 

and tribal interests in effective tribal 

government and economic selfsufficiency. 

Direct Pay 

• Allowing for direct pay only where 

there are 10 or fewer landowners, and 

all landowners consent to direct pay; 

• Continuing direct pay unless and 

until 100 percent of the owners agree to 

discontinue direct pay, but suspending 

direct pay for any one Indian landowner 

who dies, is declared non compos 

mentis, or whose whereabouts become 

unknown. 

These changes are intended to 

increase the efficiency and transparency 

of the BIA approval process for leasing 

of Indian land, support tribal decisions 

regarding the use of their land, increase 

flexibility in compensation and 

valuations, and facilitate management of 

direct pay. 

III. Procedural Requirements 

A. Regulatory Planning and Review (E.O. 

12866) 

B. Regulatory Flexibility Act 

C. Small Business Regulatory Enforcement 

Fairness Act 

D. Unfunded Mandates Reform Act 

E. Takings (E.O. 12630) 

F. Federalism (E.O. 13132) 

G. Civil Justice Reform (E.O. 12988) 

H. Consultation With Indian Tribes (E.O. 

13175) 

I. Paperwork Reduction Act 

J. National Environmental Policy Act 

K. Effects on the Energy Supply (E.O. 13211) 

L. Clarity of This Regulation 

M. Public Availability of Comments 

III. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866) 

The Office of Management and Budget 

(OMB) has determined that this rule is 

significant under Executive Order 

12866. This rule replaces provisions 

that apply to non-agricultural leasing of 

Indian land, generally, with provisions 

that apply specifically to the different 

types of non-agricultural leasing: 

Residential, business, and wind and 

solar resource leasing of Indian land. 

This rule describes how the BIA will 

administer residential, business, and 

wind and solar resource leases on trust 

and restricted land. Thus, the impact of 

the rule is confined to the Federal 

Government and individual Indian and 

tribal landowners and does not impose 

a compliance burden on the economy 

generally or create any inconsistencies 

or budgetary impacts to any other 

agency or Federal program. 

(1) This rule will not have an annual 

effect of $100 million or more on the 

economy or adversely affect in a 

material way the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities. 

This rule makes changes to promote 

economic development on Indian land 

through, for example, providing greater 

transparency to procedures for obtaining 

BIA approval, imposing timelines on 

BIA to act on certain lease requests, and 

establishing that BIA will defer to tribes’ 

negotiated values. The rule’s changes 

will not have direct effects on the 

economy as a whole; however, the 

changes should result in increased 

leasing of Indian land, which will have 

a beneficial effect on tribal economies 

and communities. 

(2) This rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency because the Department 

is the only agency with authority for 

approving leases on Indian land. We 


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have coordinated with the Department 

of Housing and Urban Development 

(HUD) to ensure that the leasing 

procedures will not impede Indian 

landowners’ ability to obtain HUDfunding for residences. 

(3) This rule does involve 

entitlements, grants, user fees, or loan 

programs or the rights or obligations of 

their recipients. The revisions have no 

budgetary effects and do not affect the 

rights or obligations of any recipients. 

(4) This rule may raise novel legal or 

policy issues because it alters 

established procedures for reviewing 

and approving leases of Indian land. 

B. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this proposed rule will not 

have a significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). Small entities are not 

likely to enter into residential leases on 

Indian land because tribal housing 

authorities and tribal members usually 

enter into such leases. It is possible that 

small entities may enter into business 

leases or wind or solar resources leases 

but this rule does not impose any new 

requirements in obtaining or complying 

with a lease that would have a 

significant economic effect on those 

entities. 

C. Small Business Regulatory 

Enforcement Fairness Act 

This rule is not a major rule under 

5 U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. It 

will not result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The rule’s requirements will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. The 

rule continues to require lessees to pay 

at least fair market rental, with certain 

exceptions, and adds that lessees agree 

to some other amount negotiated by the 

Indian tribe under certain 

circumstances. Nor will this rule have 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of the U.S.-based enterprises to compete 

with foreign-based enterprises because 

the rule is limited to Indian land and is 

intended to promote economic 

development. 

D. Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or tribal 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

E. Takings (E.O. 12630) 

Under the criteria in Executive Order 

12630, this rule does not affect 

individual property rights protected by 

the Fifth Amendment nor does it 

involve a compensable ‘‘taking.’’ A 

takings implication assessment is not 

required. 

F. Federalism (E.O. 13132) 

Under the criteria in Executive Order 

13132, this rule has no substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. This rule 

governs leasing on Indian land, which is 

land held by the Federal Government in 

trust or restricted status for individual 

Indians or Indian tribes. Such land is 

subject to tribal law and Federal law, 

only, except in limited circumstances 

and areas where Congress or a Federal 

court has made State law applicable. 

This rule therefore does not affect the 

relationship between the Federal 

Government and States or among the 

various levels of government. 

G. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule has been reviewed 

to eliminate errors and ambiguity and 

written to minimize litigation; and is 

written in clear language and contains 

clear legal standards. 

H. Consultation With Indian Tribes 

(E.O. 13175) 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments,’’ Executive Order 13175 

(59 FR 22951, November 6, 2000), and 

512 DM 2, we have evaluated the 

potential effects on federally recognized 

Indian tribes and Indian trust assets. 

During the development of this 

proposed rule, the Department 

discussed the rule with tribal 

representatives at several consultation 

sessions. We distributed a preliminary 

draft of the rule to tribes in February 

2011 and held three consultation 

sessions: Thursday, March 17, 2011 at 

the Reservation Economic Summit 

(RES) 2011 in Las Vegas; March 31, 

2011 in Minnesota; and April 6, 2011, 

in Albuquerque, New Mexico. We 

requested that tribes submit written 

comments by April 18, 2011. We 

received written and oral comments 

from over 70 Indian tribes during tribal 

consultation. We reviewed each 

comment in depth and revised the rule 

accordingly. This proposed rule 

incorporates those revisions. We also 

compiled a summary of tribal comments 

received and our responses to those 

comments and are making that 

document available to tribes at: http:// 

www.bia.gov/WhoWeAre/AS-IA/ 

Consultation/index.htm. We plan to 

hold additional tribal consultation 

sessions, particularly in the geographic 

areas we were not able to reach prior to 

this proposed rule. We will announce 

the dates and locations of the additional 

tribal consultation sessions by letter to 

tribal leaders. 

I. Paperwork Reduction Act 

OMB Control No. 1076–0155 

currently authorizes the collections of 

information contained in 25 CFR part 

162, totaling an estimated 106,065 

annual burden hours. If this proposed 

rule is finalized, the annual burden 

hours will increase by an estimated 

2,910 hours. Because the sections where 

the information collections occur 

changes, we are including a table 

showing the section changes and 

whether a change to the information 

collection requirement associated with 

those sections has changed. 


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Current CFR cite New CFR cite Information collection requirement Explanation of change 

162.109, 162.204, 162.205 162.109, 162.204, 

162.205, 162.338(e), 

162.438(e), 162.528(d), 

162.568(e).

Provide notice of tribal leasing laws, regulations, exemptions.No change. Previously required, but now 

listed in specific subparts. 

162.320(a), 321(a), 

162.420(a), 421(a), 

162,546(a), 162.547(a).

Request for fair market rental/valuation 

on tribal land.

New. 

162.320(b), 321(b), 

162.420(b), 421(b), 

162,546(b), 162.547(b).

Request for waiver of fair market rental/ 

valuation for individually owned land.

New. 

162.324, 162.424, 162.550 Agreement to suspend direct pay ........... New. 

162.368, 162.468, 162.593 Notification of good faith negotiations 

with holdover.

New. 

162.207, 162.242–244, 

162.604(a), 162.610.

162.009, 162.207, 

162.242–244, 162. 345, 

350, 353, 357, 162. 445, 

450, 453, 457, 162. 530, 

162.570, 574, 578, 582.

Submit lease, assignment, amendment, 

leasehold mortgage for approval.

No change. Previously required, but now 

listed in separate subparts. 

162.213, 162.604(a) ............ 162.024, 162.213, 

162.338, 162.438, 

162.528, 162.563.

Provide supporting documentation .......... No change. Previously required, but now 

listed in separate subparts. 

162.004 .............................. Submit permits to BIA for file .................. Permits must now be submitted to BIA 

for file. 

162.217, 162.246 ................. 162.217, 162.246, 

162.341, 162.441, 

162.566.

Submit lease for recording ...................... No change. Previously required, but now 

listed in separate subparts. 

162.234, 162.604(c) ............ 162.234, 162.334, 

162.434, 162.525, 

162.559.

Provide a bond ........................................ No change. Previously required, but now 

listed in separate subparts. 

162.237, 162.604(d) ............ 162.237, 162.337, 

162.437, 162.527, 

162.562.

Provide information for acceptable insurance.No change. Previously required, but now 

listed in separate subparts. 

162.241 ................................ 162.241 .............................. Administrative fees .................................. No change. 

162.247, 162.613 ................. 162.247, 162.325, 329, 

162.425, 429, 162.523, 

551, 555.

Pay rent ................................................... No change. Previously required, but now 

listed in separate subparts. 

162.248, 162.616 ................. 162.248, 162.365, 

162.465, 162.590.

Pay penalties for late payment ............... No change. Previously required, but now 

listed in separate subparts. 

162.212, 162.606 ................. 162.009, 162.212 .............. Bidding on advertised lease .................... No change. Previously required, but now 

listed in separate subparts. 

162.603 ................................ 162.008(b)(2) ..................... Use of minor’s land ................................. No change. Previously required, but now 

listed in separate subparts. 

162.251, 162.618 ................. 162.251, 162.363, 

162.463, 162.588.

Provide notice of curing violation ............ No change. Previously required, but now 

listed in separate subparts. 

162.256, 162.623 ................. 162.256, 162.368, 

162.468, 162.593.

Respond to notice of trespass ................ No change. Previously required, but now 

listed in separate subparts. 

162.113 ................................ 162.022, 162.113 .............. Appealing decisions ................................ No change. Previously required, but now 

listed in separate subparts. 

The table showing the burden of the 

information collection is included 

below for your information. 

BILLING CODE 4310–6W–P 


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BILLING CODE 4310–6W–C 

BIA invites comments on the 

information collection requirements in 

the proposed regulation. You may 

submit comments to OMB by facsimile 

to (202) 395–5806 or you may send an 

email to the attention of the OMB Desk 

Officer for the Department of the 

Interior: OIRA_DOCKET@omb.eop.gov. 

Please send a copy of your comments to 

the person listed in the FOR FURTHER

INFORMATION CONTACT section of this 

notice. Note that the request for 

comments on the rule and the request 

for comments on the information 

collection are separate. To best ensure 

consideration of your comments on the 

information collection, we encourage 

you to submit them by December 29, 

2011; while OMB has 60 days from the 

date of publication to act on the 

information collection request, OMB 

may choose to act on or after 30 days. 

Comments on the information collection 

should address: (a) The necessity of this 

information collection for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(b) the accuracy of the agency’s estimate 

of the burden (hours and cost) of the 

collection of information, including the 

validity of the methodology and 

assumptions used; (c) ways we could 

enhance the quality, utility and clarity 

of the information to be collected; and 

(d) ways we could minimize the burden 

of the collection of the information on 

the respondents, such as through the 

use of automated collection techniques 

or other forms of information 

technology. Please note that an agency 

may not sponsor or request, and an 

individual need not respond to, a 

collection of information unless it has a 

valid OMB Control Number. 

J. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because these are ‘‘regulations * * * 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase.’’ 43 CFR 46.210(j). No 

extraordinary circumstances exist that 

would require greater NEPA review. 

K. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

L. Clarity of This Regulation 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the 

‘‘COMMENTS’’ section. To better help 

us revise the rule, your comments 

should be as specific as possible. For 

example, you should tell us the 

numbers of the sections or paragraphs 

that are unclearly written, which 

sections or sentences are too long, the 

sections where you believe lists or 

tables would be useful, etc. 

M. Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

List of Subjects in 25 CFR Part 162 

Indians—lands. 

For the reasons stated in the 

preamble, the Department of the 

Interior, Bureau of Indian Affairs, 

proposes to amend part 162 in Title 25 

of the Code of Federal Regulations as 

follows: 

PART 162—LEASES AND PERMITS 

1. Revise the authority citation for 

part 162 to read as follows: 

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 


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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, 107 Stat. 

2011, 108 Stat. 4572, March 20, 1996, 110 

Stat. 4016; 25 U.S.C. 380, 393, 393a, 394, 395, 

397, 402, 402a, 403, 403a, 403b, 403c, 409a, 

413, 415, 415a, 415b, 415c, 415d, 477, 635, 

2201 et seq., 3701, 3702, 3703, 3712, 3713, 

3714, 3715, 3731, 3733, 4211; 44 U.S.C. 3101 

et seq. 

§ 162.100 [Removed] 

2. Remove § 162.100. 

§§ 162.101.162.113 [Redesignated] 

3. Redesignate § 162.101–§ 162.113 in 

subpart A as § 162.101–§ 162.113 in 

subpart B. 

4. Revise subpart A to read as follows: 

PART 162—LEASES AND PERMITS 

Subpart A—General Provisions 

Purpose, Definitions, and Scope 

Sec. 

162.001 What is the purpose of this part? 

162.002 How is this part subdivided? 

162.003 What key terms do I need to know? 

162.004 May BIA approve or grant permits 

under this part? 

When to Get a Lease 

162.005 When does this part apply? 

162.006 To what land does this part apply? 

162.007 To what types of land use 

agreements does this part not apply? 

162.008 When do I need a lease to authorize 

possession of Indian land? 

How to Get a Lease 

162.009 How do I obtain a lease? 

162.010 How does a prospective lessee 

identify and contact Indian landowners 

to negotiate a lease? 

162.011 What are the consent requirements 

for a lease? 

162.012 Who is authorized to consent to a 

lease? 

Lease Administration 

162.013 What laws apply to leases 

approved under this part? 

162.014 Will BIA comply with tribal laws 

in making decisions regarding leases? 

162.015 May tribes administer this part on 

BIA’s behalf? 

162.016 May a lease address access to the 

leased premises by roads or other 

infrastructure? 

162.017 May a lease combine tracts with 

different Indian landowners? 

162.018 What are BIA’s responsibilities in 

approving leases? 

162.019 What are BIA’s responsibilities in 

administering and enforcing leases? 

162.020 What may BIA do if an individual 

or entity takes possession of or uses 

Indian land without an approved lease or 

other proper authorization? 

162.021 May BIA take emergency action if 

Indian land is threatened? 

162.022 May decisions under this part be 

appealed? 

162.023 Who may I contact with questions 

concerning the leasing process? 

162.024 What documentation may BIA 

require in approving, administering, and 

enforcing leases? 

Subpart A—General Provisions 

Purpose, Definitions, and Scope 

§ 162.001 What is the purpose of this part? 

This part identifies: 

(a) Conditions and authorities under 

which we will approve leases of Indian 

land and may issue permits on 

Government land; 

(b) How to obtain leases; 

(c) Terms and conditions required in 

leases; 

(d) How we administer and enforce 

leases; and 

(e) Special requirements for leases 

made under special acts of Congress that 

apply only to certain Indian 

reservations. 

§ 162.002 How is this part subdivided? 

(a) This part includes multiple 

subparts relating to: 

(1) General Provisions (Subpart A); 

(2) Agricultural Leases (Subpart B); 

(3) Residential Leases (Subpart C); 

(4) Business Leases (Subpart D); 

(5) Wind Energy Evaluation, Wind 

Resource, and Solar Resource Leases 

(Subpart E); 

(6) Special Requirements for Certain 

Reservations (Subpart F); 

(7) Records (Subpart G). 

(b) Subpart F identifies special 

provisions applicable only to leases 

made under special acts of Congress that 

apply only to certain Indian 

reservations. Leases covered by Subpart 

F are also subject to the provisions in 

subparts A through G, except to the 

extent that subparts A through G are 

inconsistent with the provisions in 

subpart F or any act of Congress under 

which the lease is made. 

(c) Leases covered by Subpart B are 

not subject to the provisions in subpart 

A. Leases covered by subpart B are 

subject to the provisions in subpart G, 

except that if a provision in subpart B 

conflicts with a provision of subpart G, 

then the provision in subpart B will 

govern. 

§ 162.003 What key terms do I need to 

know? 

Adult means a person who is 18 years 

of age or older. 

Appeal bond means a bond posted 

upon filing of an appeal that provides a 

security or guaranty if an appeal creates 

a delay in implementing a BIA decision 

that could cause a significant and 

measurable financial loss to another 

party. 

Approval means written authorization 

by the Secretary or a delegated official 

or, where applicable, the ‘‘deemed 

approved’’ authorization of an 

amendment or sublease. 

Assignment means an agreement 

between a lessee and an assignee, 

whereby the assignee acquires all or 

some of the lessee’s rights, and assumes 

all or some of the lessee’s obligations, 

under a lease. 

BIA means the Secretary of the 

Interior or the Bureau of Indian Affairs 

within the Department of the Interior 

and any tribe acting on behalf of the 

Secretary or Bureau of Indian Affairs 

under § 162.015, except that this term 

means only the Secretary of the Interior 

or Bureau of Indian Affairs if the 

function is an inherently Federal 

function. 

Business day means Monday through 

Friday, excluding federally recognized 

holidays and other days that the 

applicable office of the Federal 

Government is closed to the public. 

Consent or consenting means written 

authorization by an Indian landowner to 

a specified action. 

Constructive notice means: 

(1) Public notice posted at the tribal 

government office, tribal community 

building, and/or the United States Post 

Office; and 

(2) Notice published in the local 

newspaper(s) nearest to the affected 

land and/or announced on a local radio 

station(s). 

Court of competent jurisdiction means 

a Federal, tribal, or State court with 

jurisdiction. 

Day means a calendar day, unless 

otherwise specified. 

Emancipated minor means a person 

less than 18 years of age who is married 

or who is determined by a court of 

competent jurisdiction to be legally able 

to care for himself or herself. 

Equipment installation plan means a 

plan that describes the type and location 

of any improvements to be installed by 

the lessee to evaluate the resources and 

a schedule showing the tentative 

commencement and completion dates 

for installation of those improvements. 

Fair market rental means the amount 

of rental income that a leased tract of 

Indian land would most probably 

command in an open and competitive 

market, or as determined by competitive 

bidding. 

Fee interest means an interest in land 

that is owned in unrestricted fee status, 

and is thus freely alienable by the fee 

owner. 

Fractionated tract means a tract of 

Indian land owned in common by 

Indian landowners and/or fee owners 

holding undivided interests therein. 


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Government land means any tract, or 

interest therein, in which the surface 

estate is owned and administered by the 

United States, not including tribal land 

that has been reserved for 

administrative purposes. 

Holdover means circumstances in 

which a lessee remains in possession of 

the leased premises after the lease term 

expires. 

Housing for public purposes means 

multi-family developments and singlefamily residential developments (i) 

administered by a tribe, TriballyDesignated Housing Entity, or a triballysponsored or tribally sanctioned not-forprofit entity; or (ii) substantially 

financed using a tribal, Federal, or State 

housing assistance program or not-for 

profit entity. 

Immediate family means a spouse, 

brother, sister, aunt, uncle, niece, 

nephew, first cousin, lineal ancestor, 

lineal descendant, or member of the 

household. 

Improvements means buildings, other 

structures, and associated infrastructure 

constructed or installed under a lease to 

serve the purposes of the lease. 

Indian means: 

(1) Any person who is a member of 

any Indian tribe, is eligible to become a 

member of any Indian tribe, or is an 

owner as of October 27, 2004, of a trust 

or restricted interest in land; 

(2) Any person meeting the definition 

of Indian under the Indian 

Reorganization Act (25 U.S.C. 479) and 

the regulations promulgated thereunder; 

and 

(3) With respect to the inheritance 

and ownership of trust or restricted land 

in the State of California pursuant to 25 

U.S.C. 2206, any person described in 

paragraph (1) or (2) or any person who 

owns a trust or restricted interest in a 

parcel of such land in that State. 

Indian land means any tract in which 

any interest in the surface estate is 

owned by a tribe or individual Indian in 

trust or restricted status and includes 

both individually owned Indian land 

and tribal land. 

Indian landowner means a tribe or 

individual Indian who owns an interest 

in Indian land. 

Individually owned Indian land 

means any tract, or interest therein, in 

which the surface estate is owned by an 

individual Indian in trust or restricted 

status. 

Indian tribe means an Indian tribe 

under section 102 of the Federally 

Recognized Indian Tribe List Act of 

1994 (25 U.S.C. 479a). 

Interest, when used with respect to 

Indian land, means an ownership right 

to the surface estate of Indian land. 

Lease means a written contract 

between Indian landowners and a 

lessee, whereby the lessee is granted a 

right to possession of Indian land, for a 

specified purpose and duration. 

Leasehold mortgage means a 

mortgage, deed of trust, or other 

instrument that pledges a lessee’s 

leasehold interest as security for a debt 

or other obligation owed by the lessee 

to a lender or other mortgagee. 

Lessee means person or entity who 

has acquired a legal right of possession 

to Indian land by a lease under this part. 

Life estate means an interest in 

property held only for the duration of a 

designated person’s life. A life estate 

may be created by a conveyance 

document or by operation of law. 

LTRO means the Land Titles and 

Records Office of the BIA. 

Mail means mailing by U.S. Postal 

Service or commercial delivery service. 

Minor means an individual who is 

less than 18 years of age. 

Nominal rental or nominal 

compensation means a rental amount 

that is so insignificant that it bears no 

relationship to the value of the property 

that is being leased. 

Non compos mentis means a person 

who has been legally determined by a 

court of competent jurisdiction to be of 

unsound mind or incapable of managing 

his or her own affairs. 

Notice of violation means a letter 

notifying the lessee of a violation of the 

lease and providing the lessee with a 

specified period of time to show cause 

why the lease should not be cancelled 

for the violation. A 10-day show cause 

letter is one type of notice of violation. 

Orphaned minor means a minor who 

does not have one or more guardians 

duly appointed by a court of competent 

jurisdiction. 

Performance bond means security for 

the performance of certain lease 

obligations, as furnished by the lessee, 

or a guaranty of such performance as 

furnished by a third-party surety. 

Permit means a written, nonassignable agreement between Indian 

landowners or BIA and the permittee, 

whereby the permittee is granted a 

temporary, revocable privilege to use 

Indian land or Government land, for a 

specified purpose. 

Permittee means a person or entity 

who has acquired a legal right of use to 

Indian land or Government land by a 

permit. 

Power of attorney means an authority 

by which one person enables another to 

act for him/her as attorney in fact. 

Remainder interest means an interest 

in Indian land that is created at the same 

time as a life estate, for the use and 

enjoyment of its owner after the life 

estate terminates. 

Restoration and reclamation plan 

means a plan that defines the 

reclamation, revegetation, restoration, 

and soil stabilization requirements for 

the project area, and requires the 

expeditious reclamation of construction 

areas and revegetation of disturbed areas 

to reduce invasive plant infestation and 

erosion. 

Secretary means the Secretary of the 

Interior. 

Single-family residence means a 

building with one to four dwelling units 

on a tract of land under a single 

residential lease, or as defined by tribal 

zoning law or other tribal authorization. 

Single-family residential development 

means one or more single-family 

residences owned, managed, or 

developed by a single entity. 

Sublease means a written agreement 

by which the lessee grants to an 

individual or entity a right to possession 

less than that held by the lessee under 

the lease. 

Surety means one who guarantees the 

performance of another. 

Trespass means any unauthorized 

occupancy, use of, or action on any 

Indian land or Government land. 

Tribal authorization means a duly 

adopted tribal resolution, tribal 

ordinance, or other appropriate tribal 

document authorizing the specified 

action. 

Tribally Designated Housing Entity 

means a tribally designated housing 

entity under 25 U.S.C. 4103(21). 

Tribal land means the surface estate 

of lands or any interest therein, title to 

which is held by the United States in 

trust for one or more tribes, or title to 

which is held by one or more tribes 

subject to Federal restrictions against 

alienation or encumbrance, and 

includes such lands reserved for BIA 

administrative purposes. The term also 

includes the surface estate of lands held 

by the United States in trust for an 

Indian corporation chartered under 

section 17 of the Act of June 18, 1934 

(48 Stat. 988; 25 U.S.C. 477). 

Tribal law means the body of nonFederal law that governs lands and 

activities under the jurisdiction of a 

tribe, including ordinances or other 

enactments by the tribe, and tribal court 

rulings. 

Tribal land assignment means a 

contract or agreement that conveys to 

tribal members any rights for the 

temporary use of tribal lands, assigned 

by an Indian tribe in accordance with 

tribal laws or customs. 

Trust or restricted land or trust or 

restricted status means any tract, or 

interest therein, that the United States 


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holds in trust for the benefit of one or 

more tribes or individual Indians, or any 

tract, or interest therein, that one or 

more tribes or individual Indians holds 

title to, but can only alienate or 

encumber with the approval of the 

United States because of limitations 

contained in the conveyance instrument 

pursuant to Federal law or limitations 

contained in Federal law. 

Undivided interest means a fractional 

share in the surface estate of Indian 

land, where the surface estate is owned 

in common with other Indian 

landowners or fee owners. 

Us/we/our means the Secretary or the 

Bureau of Indian Affairs (BIA) and any 

tribe acting on behalf of the Secretary or 

BIA under § 162.015, except that this 

term means only the Secretary or BIA if 

the function is an inherently Federal 

function. 

Uniform Standards of Professional 

Appraisal Practice (USPAP) means the 

standards promulgated by the Appraisal 

Standards Board of the Appraisal 

Foundation to establish requirements 

and procedures for professional real 

property appraisal practice. 

Violation means a failure to take an 

action, including payment of 

compensation, when required by the 

lease, or to otherwise not comply with 

a term of the lease. This definition 

applies for purposes of this part no 

matter how ‘‘violation’’ or ‘‘default’’ is 

defined in the lease. 

§ 162.004 May BIA approve or grant 

permits under this part? 

(a) Permits for the use of Indian land 

do not require our approval; however, 

you must fulfill the following 

requirements: 

(1) Ensure that permitted activities 

comply with all applicable 

environmental and cultural resource 

laws; and 

(2) Submit all permits to the 

appropriate BIA office for us to confirm 

that the document meets the definition 

of ‘‘permit’’ and does not grant an 

interest in Indian land and allow us to 

maintain a copy of the permit in our 

records. 

(b) The following table provides 

characteristics of permits versus leases. 

Permit Lease 

Does not grant a legal 

interest in Indian 

land.

Grants a legal interest in Indian land. 

Shorter term .............. Longer term. 

Limited use ................ Broader use with associated infrastructure. 

Permit Lease 

Subject to unlimited 

access by others.

Lessee has right of 

possession, ability 

to limit or prohibit 

access by others. 

Indian landowner may 

terminate at any 

time.

Indian landowner 

may terminate 

under limited circumstances. 

(c) We may grant permits for the use 

of Government land. The leasing 

regulations in this part will apply to 

such permits, as appropriate. 

When to Get a Lease 

§ 162.005 When does this part apply? 

(a) This part applies to all leases, 

amendments, assignments, subleases, 

and leasehold mortgages submitted to 

BIA for approval after [INSERT FINAL 

RULE EFFECTIVE DATE]. 

(b) If the terms of a lease document 

approved by BIA prior to [INSERT 

FINAL RULE EFFECTIVE DATE] 

conflict with this part, the terms of the 

lease document govern. 

(c) We may amend this part at any 

time. 

§ 162.006 To what land does this part 

apply? 

(a) This part applies to Indian land 

and Government land, including any 

tract in which an individual Indian or 

tribe owns an interest in trust or 

restricted status. 

(1) We will not lease fee interests or 

collect rent on behalf of fee interest 

owners. We will not condition our 

approval of a lease of the trust and 

restricted interests on a lease having 

been obtained from the owners of any 

fee interests. 

(2) We will not include the fee 

interests in a tract in calculating the 

applicable percentage of interests 

required for consent to a lease 

document. 

(b) This paragraph applies if there is 

a life estate on the land to be leased. 

(1) When all of the trust or restricted 

interests in a tract are subject to a life 

estate, the life tenant may lease the land 

without our approval, for the duration 

of the life estate. The following 

conditions apply: 

(i) Such a lease must be recorded; 

(ii) The lessee must pay rent directly 

to the life tenant under the terms of the 

lease; 

(iii) We may monitor the use of the 

land on behalf of the owners of the 

remainder interests, as appropriate, but 

will not be responsible for enforcing the 

lease on behalf of the life tenant. 

(iv) We will not lease the remainder 

interests or join in a lease by the life 

tenant on behalf of the owners of the 

remainder interests except as needed to 

preserve the value of the land; 

(v) We will not lease on the life 

tenant’s behalf, but we may collect rents 

on behalf of the life tenant; and 

(vi) We will be responsible for 

enforcing the terms of the lease on 

behalf of the owners of the remainder 

interests. 

(2) When less than all of the trust or 

restricted interests in a tract are subject 

to a life estate, the life tenant may not 

lease the land unless the remainder 

interests are also leased. The following 

conditions apply: 

(i) We will not lease on the life 

tenant’s behalf, but we may collect rents 

on behalf of the life tenant; and 

(ii) We will be responsible for 

enforcing the terms of the lease on 

behalf of the owners of the remainder 

interests. 

(3) Rent payable under the lease will 

be paid to the life tenant in accordance 

with Part 179 of this chapter, unless the 

document creating the life estate 

provides otherwise. 

(4) All leases entered into by life 

tenants must be recorded in our Land 

Titles and Records Office, even where 

our approval is not required. 

§ 162.007 To what types of land use 

agreements does this part not apply? 

(a) This part does not apply to the 

following types of land use agreements: 

This part does not 

apply to . . . 

which are covered by 

. . . 

Mineral leases, 

prospecting permits, 

or mineral development agreements.

25 CFR parts 211, 

212 and 225. 

Grazing permits ......... 25 CFR part 166. 

Timber contracts ........ 25 CFR part 163. 

Contracts or agreements that encumber tribal land.25 U.S.C. 81. 

Rights-of-way ............. 25 CFR part 169. 

Tribal land assignments and similar 

instruments authorizing temporary 

uses.

tribal laws. 

Traders’ licenses ....... 25 CFR part 140. 

(b) This part does not apply to leases 

of water rights associated with Indian 

land, except to the extent the use of 

such water rights is incorporated in a 

lease of the land itself. 

§ 162.008 When do I need a lease to 

authorize possession of Indian land? 

(a) You need a lease under this part 

to possess Indian land if you meet one 

of the criteria in the following table. 


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If you are . . . then you must obtain a lease under this part . . . 

(1) A person or legal entity (including an independent legal entity 

owned and operated by a tribe) who is not an owner of the Indian 

land.

from the owners of the land before taking possession of the land or 

any portion thereof. 

(2) An Indian landowner of a fractional interest in the land ..................... from the owners of other trust and restricted interests in the land, unless those owners have given you permission to take or continue in 

possession without a lease. 

(b) You do not need a lease to possess 

Indian land if you meet any of the 

criteria in the following table. 

You do not need a lease if you are . . . but the following conditions apply . . . 

(1) An Indian landowner who owns 100 percent of the trust or restricted 

interests in a tract.

(1) We may require you to provide evidence of a direct benefit to the 

minor child; and 

(2) A parent or guardian of a minor child who owns 100 percent of the 

trust interests in the land.

(2) When the child is no longer a minor, you must obtain a lease to authorize continued possession. 

(3) A 25 U.S.C. 477 corporate entity that holds the Indian land directly 

under its Federal charter (not pursuant to a lease from the Indian 

tribe).

You must record documents in accordance with § 162.341, § 162.441, 

and § 162.566. 

(4) A person or legal entity that is leasing Indian land under a special 

act of Congress authorizing leases without our approval.

You must record documents in accordance with § 162.341, § 162.441, 

and § 162.566. 

(c) Landowners who enter into an 

agreement under paragraph (a)(2) may 

wish to consider documenting such an 

agreement and recording it in the LTRO. 

How to Get a Lease 

§ 162.009 How do I obtain a lease? 

(a) This section establishes the basic 

steps to obtain a lease. 

(1) Prospective lessees must: 

(i) Directly negotiate with Indian 

landowners for a lease; and 

(ii) Notify all Indian landowners and 

obtain the consent of the Indian 

landowners of the applicable percentage 

of interests, for fractionated tracts; and 

(2) Prospective lessees and Indian 

landowners must: 

(i) Prepare the required information 

and analyses, including information to 

facilitate BIA’s analysis under 

applicable environmental and cultural 

resource requirements; and 

(ii) Ensure the lease complies with the 

requirements in subpart B for 

agricultural leases, subpart C for 

residential leases, subpart D for business 

leases, and subpart E for wind energy 

evaluation, wind resource, or solar 

resource leases; and 

(3) Prospective lessees and/or Indian 

landowners must submit the lease, and 

required information and analyses, to 

the BIA office with jurisdiction over the 

lands covered by the lease for our 

review and approval. 

(b) Generally, residential, business, 

wind energy evaluation, wind resource, 

and solar resource leases will not be 

advertised for competitive bid. 

§ 162.010 How does a prospective lessee 

identify and contact Indian landowners to 

negotiate a lease? 

(a) Prospective lessees may submit a 

written request to us to obtain the 

following information for the purpose of 

negotiating a lease: 

(1) Names and addresses of the Indian 

landowners or their representatives; 

(2) Information on the location of the 

parcel; and 

(3) The percentage of undivided 

interest owned by each Indian 

landowner. 

(b) We may assist prospective lessees 

in contacting the Indian landowners or 

their representatives for the purpose of 

negotiating a lease, upon request. 

(c) We will assist the Indian 

landowners in those negotiations, upon 

their request. 

§ 162.011 What are the consent 

requirements for a lease? 

(a) For fractionated tracts: 

(1) Except in Alaska, the owners of 

the following percentage of undivided 

trust or restricted interests in a 

fractionated tract of Indian land must 

consent to a lease of that tract: 

If the number of owners of the undivided 

trust or restricted interest in the tract is 

Then the required 

percentage of the undivided trust or restricted interest is 

(i) One to five ............ 90 percent; 

(ii) Six to 10 ............... 80 percent; 

(iii) 11 to 19 ............... 60 percent; 

(iv) 20 or more ........... Over 50 percent. 

(2) Leases in Alaska require consent of 

all of the Indian landowners in the tract. 

(3) If the prospective lessee is also an 

Indian landowner, their consent will be 

included in the percentages in 

paragraphs (a)(1) and (a)(2). 

(4) Where owners of the applicable 

percentages in paragraph (a)(1) consent 

to a lease document: 

(i) That lease document binds all nonconsenting owners to the same extent as 

if those owners also consented to the 

lease document. 

(ii) That lease document will not bind 

a non-consenting Indian tribe, except 

with respect to the tribally owned 

fractional interest, and the nonconsenting Indian tribe will not be 

treated as a party to the lease. Nothing 

in this paragraph shall be construed to 

affect the sovereignty or sovereign 

immunity of the Indian tribe. 

(5) We will determine the number of 

owners of, and undivided interests in, a 

fractionated tract of Indian land, for the 

purposes of calculating the percentages 

in paragraph (a)(1) based on our records 

on the date on which the lease is 

submitted to us for approval. 

(b) Tribal land subject to a tribal land 

assignment may only be leased with the 

consent of the tribe. 

§ 162.012 Who is authorized to consent to 

a lease? 

(a) Indian tribes, adult Indian 

landowners, or emancipated minors, 

may consent to a lease of their land, 

including undivided interests in 

fractionated tracts. 

(b) The following individuals or 

entities may consent on behalf of an 

individual Indian landowner: 

(1) An adult with legal custody acting 

on behalf of his or her minor children; 

(2) A guardian, conservator, or other 

fiduciary appointed by a court of 


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competent jurisdiction recognized to act 

on behalf of an individual Indian 

landowner; 

(3) Any person who is authorized to 

practice before the Department of the 

Interior under 43 CFR part 1 and has 

been retained by the Indian landowner; 

(4) BIA, under the circumstances in 

paragraph (c) of this section; or 

(5) An adult or legal entity who has 

been given a written power of attorney 

that: 

(i) Meets all of the formal 

requirements of any applicable law 

under § 162.013; and 

(ii) Identifies the attorney-in-fact; and 

(iii) Describes the scope of the powers 

granted, to include leasing land, and 

any limits on those powers. 

(c) BIA may give written consent to a 

lease, and that consent must be counted 

in the percentage ownership described 

in § 162.011, on behalf of: 

(1) The individual owner if the owner 

is deceased and the heirs to, or devisees 

of, the interest of the deceased owner 

have not been determined; 

(2) Individuals whose whereabouts 

are unknown to us, after we make a 

reasonable attempt to locate such 

individuals; 

(3) Individuals who are found to be 

non compos mentis, or determined to be 

an adult in need of assistance or under 

legal disability as defined in part 115 of 

this chapter; 

(4) Orphaned minors who do not have 

guardians duly appointed by a court of 

competent jurisdiction; 

(5) Individuals who have given us a 

written power of attorney to lease their 

land; or 

(6) The individual Indian landowners 

of a fractionated tract where: 

(i) We have given the Indian 

landowners written notice of our intent 

to consent to a lease on their behalf; 

(ii) The Indian landowners are unable 

to agree upon a lease during a three 

month negotiation period following the 

notice; and 

(iii) The land is not being used by an 

Indian landowner under § 162.008(b)(1). 

Lease Administration 

§ 162.013 What laws will apply to leases 

approved under this part? 

(a) In addition to the regulations in 

this part, leases approved under this 

part are subject to: 

(1) Applicable Federal laws and any 

specific Federal statutory requirements 

that are not incorporated in this part; 

(2) Tribal law, subject to paragraph (b) 

of this section; and 

(3) State law, in the specific areas and 

circumstances in Indian country where 

Congress or a Federal court has made it 

expressly applicable. 

(b) If any regulation in this part 

conflicts with a tribal law, the Secretary 

may waive the application of such 

regulation to tribal land, unless the 

waiver would: 

(1) Violate a Federal statute or judicial 

decision; or 

(2) Conflict with the United States’ 

trust responsibility under Federal law. 

(c) The parties to a specific lease may 

subject it to State or local law in the 

absence of Federal or tribal law, if: 

(1) The lease includes a provision to 

this effect; and 

(2) The Indian landowners expressly 

agree to the application of State or local 

law. 

(d) An agreement under paragraph (c) 

of this section does not waive a tribe’s 

sovereign immunity unless the tribe 

expressly states its intention to waive 

sovereign immunity in the lease of tribal 

land. 

§ 162.014 Will BIA comply with tribal laws 

in making decisions regarding leases? 

Unless contrary to Federal law, BIA 

will comply with tribal laws in making 

decisions regarding leases, including 

tribal laws regulating activities on 

leased land under tribal jurisdiction, 

including, but not limited to, tribal laws 

relating to land use, environmental 

protection, and historic or cultural 

preservation. 

§ 162.015 May tribes administer this part 

on BIA’s behalf? 

A tribe or tribal organization may 

contract or compact under the Indian 

Self-Determination and Education 

Assistance Act (25 U.S.C. 450f et seq.) 

to administer any portion of this part 

that is not an inherent Federal function. 

§ 162.016 May a lease address access to 

the leased premises by roads or other 

infrastructure? 

A lease may address access to the 

leased premises by roads or other 

infrastructure, as long as the access 

complies with applicable statutory and 

regulatory requirements, including 25 

CFR part 169. 

§ 162.017 May a lease combine tracts with 

different Indian landowners? 

(a) We may approve a lease that 

combines multiple tracts of Indian land 

into a unit, if we determine that 

unitization is: 

(1) In the Indian landowners’ best 

interest; and 

(2) Consistent with the efficient 

administration of the land. 

(b) For a lease that covers multiple 

tracts, the minimum consent 

requirements apply to each tract 

separately. 

(c) Unless the lease provides 

otherwise, the rent or other 

compensation will be prorated in 

proportion to each tract acreage 

contribution to the entire lease. Once 

prorated per tract, the rent will be 

distributed to the owners of each tract 

based upon their respective percentage 

interest in that particular tract. 

§ 162.018 What are BIA’s responsibilities 

in approving leases? 

(a) We will work to provide assistance 

to Indian landowners in leasing their 

land, either through negotiations or 

advertisement. 

(b) We will promote tribal control and 

self-determination over tribal land and 

other land under the tribe’s jurisdiction, 

including through contracts and selfgovernance compacts entered into under 

the Indian Self-Determination and 

Education Assistance Act, as amended, 

25 U.S.C. 450f et. seq. 

(c) We will promptly respond to 

requests for BIA approval of leases, as 

specified in § 162.339, § 162.439, 

§ 162.529, and § 162.564. 

(d) We will work to ensure that the 

use of the land is consistent with the 

Indian landowners’ wishes. 

§ 162.019 What are BIA’s responsibilities 

in administering and enforcing leases? 

(a) Upon notification from the Indian 

landowner that the lessee has failed to 

comply with the terms and conditions 

of the lease, we will promptly take 

appropriate action, as specified in 

§ 162.362, § 162.462, and § 162.587. 

(b) We will promptly respond to 

requests for BIA approval of 

amendments, assignments, leasehold 

mortgages, and subleases, as specified in 

subparts B, C, D, and E. 

(c) We will respond to Indian 

landowners’ concerns regarding the 

management of their land. 

(d) We will take emergency action as 

needed to preserve the value of the land. 

§ 162.020 What may BIA do if an individual 

or entity takes possession of or uses Indian 

land without an approved lease or other 

proper authorization? 

If an individual or entity takes 

possession of, or uses, Indian land 

without a lease and a lease is required, 

the unauthorized possession or use is a 

trespass. We may take action to recover 

possession on behalf of the Indian 

landowners and pursue any additional 

remedies available under applicable 

law. The Indian landowner may pursue 

any available remedies under tribal law. 

§ 162.021 May BIA take emergency action 

if Indian land is threatened? 

(a) We may take appropriate 

emergency action if there is a natural 

disaster or if an individual or entity 

causes or threatens to cause immediate 


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and significant harm to Indian land. 

Emergency action may include judicial 

action seeking immediate cessation of 

the activity resulting in or threatening 

the harm. 

(b) We will make reasonable efforts to 

notify the Indian landowners before and 

after taking emergency action. In all 

cases, we will notify the Indian 

landowners after taking emergency 

action by constructive notice. 

§ 162.022 May decisions under this part be 

appealed? 

Appeals from BIA decisions under 

this part may be taken pursuant to part 

2 of this chapter, except where 

otherwise provided in this part. For 

purposes of appeals from BIA decisions 

under this part, ‘‘interested party’’ is 

defined as any person whose own direct 

economic interest is adversely affected 

by an action or decision. 

§ 162.023 Who may I contact with 

questions concerning the leasing process? 

The Indian landowner or prospective 

lessee may contact the local BIA realty 

office with jurisdiction over the land for 

answers to questions about the leasing 

process. 

§ 162.024 What documentation may BIA 

require in approving, administering, and 

enforcing leases? 

(a) We may require that the parties 

provide any pertinent environmental 

and technical records, reports, and other 

information (e.g., records of lease 

payments), related to approval, 

administration, and enforcement of 

leases. 

(b) We will adopt environmental 

assessments and environmental impact 

statements prepared by another Federal 

agency, entity, or person under 43 CFR 

46.320 and 42 CFR 1506.3, but may 

require a supplement. We shall use any 

reasonable evidence that another 

Federal agency has accepted the 

environmental report, including but not 

limited to, letters of approval or 

acceptance. 

(c) Upon our request, the parties must 

make appropriate records, reports, or 

information available for our inspection 

and duplication. We will keep 

confidential any such information that 

is marked confidential or proprietary 

and is exempt from public release, to 

the extent allowed by law. Failure to 

cooperate with such request, provide 

data, or grant access to information or 

records, may, at our discretion, be 

treated as a lease violation. All 

approved leases must include such 

disclosure provisions. 

5. In § 162.101, revise the section 

heading and the introductory language 

to read as follows: 

§ 162.101 What key terms do I need to 

know for this subpart? 

For the purposes of this subpart: 

* * * * * 

§§ 162.102–162.104 [Removed] 

6. Remove § 162.102–§ 162.104. 

§§ 162.105 and 162.106 [Amended] 

7. In § 162.105 and § 162.106, remove 

the word ‘‘lease’’ and add in its place 

the words ‘‘agricultural lease’’ and 

remove the word ‘‘leasing’’ and add in 

its place the words ‘‘agricultural 

leasing’’ wherever they appear. 

8. In § 162.107, revise the section 

heading and the introductory language 

in paragraph (a) to read as follows: 

§ 162.107 What are BIA’s objectives in 

granting and approving agricultural leases? 

(a) We will assist Indian landowners 

in leasing their land for agricultural 

purposes. For the purposes of 

§§ 162.102 through 162.256: 

* * * * * 

§§ 162.108–162.110 [Amended] 

9. In § 162.108–§ 162.110 remove the 

word ‘‘lease’’ wherever it appears and 

add in its place the words ‘‘agricultural 

lease’’. 

10. In § 162.111, revise the section 

heading, the introductory language in 

paragraph (a), and paragraph (b) to read 

as follows: 

§ 162.111 Who owns the records 

associated with this subpart? 

(a) Records associated with this 

subpart are the property of the United 

States if they: 

* * * * * 

(b) Records associated with this 

subpart not covered by paragraph (a) of 

this section that are made or received by 

a tribe or tribal organization in the 

conduct of business with the 

Department of the Interior under this 

subpart are the property of the tribe. 

11. Revise the heading of § 162.112 to 

read as follows: 

§ 162.112 How must records associated 

with this part be preserved? 

§ 162.113 [Amended] 

12. In § 162.113 remove the word 

‘‘part’’ wherever it appears and add in 

its place the word ‘‘subpart’’. 

13. Add new subparts C through D to 

read as follows: 

Subpart C—Residential Leases 

Residential Leasing General Provisions 

Sec. 

162.301 What types of leases does this 

subpart cover? 

162.302 Is there a model residential lease 

form? 

Lease Requirements 

162.311 How long may the term of a 

residential lease run? 

162.312 What must the lease include if it 

contains an option to renew? 

162.313 Are there mandatory provisions 

that a residential lease must contain? 

162.314 May improvements be made under 

a residential lease? 

162.315 How must a residential lease 

address ownership of improvements? 

162.316 How will BIA enforce removal 

requirements in a residential lease? 

162.317 How must a residential lease 

describe the land? 

Rental Requirements 

162.320 How much rent must be paid under 

a residential lease? 

162.321 Will BIA require a valuation to 

determine fair market rental for a 

residential lease? 

162.322 What type of valuation may be 

used to determine fair market rental for 

a residential lease? 

162.323 When are rental payments due 

under a residential lease? 

162.324 Must a residential lease specify to 

whom rental payments may be made? 

162.325 What form of payment may be 

accepted under a residential lease? 

162.326 May a residential lease provide for 

non-monetary or varying types of 

compensation? 

162.327 Will BIA notify a lessee when a 

payment is due under a residential lease? 

162.328 Must a residential lease provide for 

rental reviews or adjustments? 

162.329 What other types of payments are 

required under a residential lease? 

Bonding and Insurance 

162.334 Must a lessee or assignee provide a 

performance bond for a residential lease? 

162.335 What forms of performance bonds 

may be accepted under a residential 

lease? 

162.336 What is the bond release process 

under a residential lease? 

162.337 Must a lessee provide insurance for 

a residential lease? 

Approval 

162.338 What documents must the parties 

submit to obtain BIA approval of a 

residential lease? 

162.339 What is the approval process for a 

residential lease? 

162.340 When will a residential lease be 

effective? 

162.341 Must residential lease documents 

be recorded? 

162.342 What action may BIA take if a 

residential lease disapproval decision is 

appealed? 

Amendments 

162.343 May the parties amend a 

residential lease? 

162.344 What are the consent requirements 

for an amendment of a residential lease? 

162.345 What is the approval process for an 

amendment of a residential lease? 

162.346 How will BIA decide whether to 

approve an amendment of a residential 

lease? 


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Assignments 

162.347 May a lessee assign a residential 

lease? 

162.348 What are the consent requirements 

for an assignment of a residential lease? 

162.349 What is the approval process for an 

assignment of a residential lease? 

162.350 How will BIA decide whether to 

approve an assignment of a residential 

lease? 

Subleases 

162.351 May a lessee sublease a residential 

lease? 

162.352 What are the consent requirements 

for a sublease of a residential lease? 

162.353 What is the approval process for a 

sublease of a residential lease? 

162.354 How will BIA decide whether to 

approve a sublease of a residential lease? 

Leasehold Mortgages 

162.355 May a lessee mortgage a residential 

lease? 

162.356 What are the consent requirements 

for a leasehold mortgage of a residential 

lease? 

162.357 What is the approval process for a 

leasehold mortgage of a residential lease? 

162.358 How will BIA decide whether to 

approve a leasehold mortgage of a 

residential lease? 

Effectiveness, Compliance, and Enforcement 

162.359 When will an amendment, 

assignment, sublease, or leasehold 

mortgage under a residential lease be 

effective? 

162.360 What happens if BIA disapproves 

an amendment, assignment, sublease, or 

leasehold mortgage? 

162.361 May BIA investigate compliance 

with a residential lease? 

162.362 May a residential lease provide for 

negotiated remedies in the event of a 

violation? 

162.363 What will BIA do about a violation 

of a residential lease? 

162.364 What will BIA do if the lessee does 

not cure a violation of a residential lease 

on time? 

162.365 Will late payment charges or 

special fees apply to delinquent 

payments due under a residential lease? 

162.366 How will payment rights relating to 

a residential lease be allocated between 

the Indian landowners and the lessee? 

162.367 When will a cancellation of a 

residential lease be effective? 

162.368 What will BIA do if a lessee 

remains in possession after a residential 

lease expires or is cancelled? 

162.369 Will BIA regulations concerning 

appeal bonds apply to cancellation 

decisions involving residential leases? 

162.370 When will BIA issue a decision on 

an appeal from a residential leasing 

decision? 

162.371 What happens if the lessee abandons 

the leased premises? 

Subpart D—Business Leases 

Business Leasing General Provisions 

Sec. 

162.401 What types of leases does this 

subpart cover? 

162.402 Is there a model business lease 

form? 

Lease Requirements 

162.411 How long may the term of a 

business lease run? 

162.412 What must the lease include if it 

contains an option to renew? 

162.413 Are there mandatory provisions 

that a business lease must contain? 

162.414 May improvements be made under 

a business lease? 

162.415 How must a business lease address 

ownership of improvements? 

162.416 How will BIA enforce removal 

requirements in a business lease? 

162.417 What requirements for due 

diligence must a business lease include? 

162.418 May a business lease allow 

compatible uses? 

162.419 How must a business lease describe 

the land? 

Monetary Compensation Requirements 

162.420 How much monetary compensation 

must be paid under a business lease? 

162.421 Will BIA require a valuation to 

determine fair market rental for a 

business lease? 

162.422 What type of valuation may be 

used to determine fair market rental for 

a business lease? 

162.423 When are monetary compensation 

payments due under a business lease? 

162.424 Must a business lease specify to 

whom monetary compensation payments 

may be made? 

162.425 What form of monetary 

compensation payment may be accepted 

under a business lease? 

162.426 May the business lease provide for 

non-monetary or varying types of 

compensation? 

162.427 Will BIA notify a lessee when a 

payment is due under a business lease? 

162.428 Must a business lease provide for 

compensation reviews or adjustments? 

162.429 What other types of payments are 

required under a business lease? 

Bonding and Insurance 

162.434 Must a lessee provide a 

performance bond for a business lease? 

162.435 What forms of performance bond 

may be accepted under a business lease? 

162.436 What is the bond release process 

under a business lease? 

162.437 Must a lessee provide insurance for 

a business lease? 

Approval 

162.438 What documents must the parties 

submit to obtain BIA approval of a 

business lease? 

162.439 What is the approval process for a 

business lease? 

162.440 When will a business lease be 

effective? 

162.441 Must business lease documents be 

recorded? 

162.442 What action may BIA take if a lease 

disapproval decision is appealed? 

Amendments 

162.443 May the parties amend a business 

lease? 

162.444 What are the consent requirements 

for an amendment to a business lease? 

162.445 What is the approval process for an 

amendment to a business lease? 

162.446 How will BIA decide whether to 

approve an amendment to a business 

lease? 

Assignments 

162.447 May a lessee assign a business 

lease? 

162.448 What are the consent requirements 

for an assignment of a business lease? 

162.449 What is the approval process for an 

assignment of a business lease? 

162.450 How will BIA decide whether to 

approve an assignment of a business 

lease? 

Subleases 

162.451 May a lessee sublease a business 

lease? 

162.452 What are the consent requirements 

for a sublease of a business lease? 

162.453 What is the approval process for a 

sublease of a business lease? 

162.454 How will BIA decide whether to 

approve a sublease of a business lease? 

Leasehold Mortgages 

162.455 May a lessee mortgage a business 

lease? 

162.456 What are the consent requirements 

for a leasehold mortgage under a 

business lease? 

162.457 What is the approval process for a 

leasehold mortgage under a business 

lease? 

162.458 How will BIA decide whether to 

approve a leasehold mortgage under a 

business lease? 

Effectiveness, Compliance, and Enforcement 

162.459 When will an amendment, 

assignment, sublease, or leasehold 

mortgage under a business lease be 

effective? 

162.460 What happens if BIA disapproves 

an amendment, assignment, sublease, or 

leasehold mortgage under a business 

lease? 

162.461 May BIA investigate compliance 

with a business lease? 

162.462 May a business lease provide for 

negotiated remedies in the event of a 

violation? 

162.463 What will BIA do about a violation 

of a business lease? 

162.464 What will BIA do if the lessee does 

not cure a violation of a business lease 

on time? 

162.465 Will late payment charges or 

special fees apply to delinquent 

payments due under a business lease? 

162.466 How will payment rights relating to 

a business lease be allocated between the 

Indian landowners and the lessee? 

162.467 When will a cancellation of a 

business lease be effective? 

162.468 What will BIA do if a lessee 

remains in possession after a business 

lease expires or is cancelled? 

162.469 Will BIA regulations concerning 

appeal bonds apply to cancellation 

decisions involving business leases? 


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162.470 When will BIA issue a decision on 

an appeal from a business leasing 

decision? 

162.471 What happens if the lessee 

abandons the leased premises? 

Subpart C—Residential Leases 

Residential Leasing General Provisions 

§ 162.301 What types of leases does this 

subpart cover? 

(a) This subpart covers both ground 

leases (undeveloped land) and leases of 

developed land (together with the 

improvements thereon) on Indian land, 

for housing purposes. Leases covered by 

this subpart would authorize the 

construction or use of: 

(1) A single-family residence; and 

(2) Housing for public purposes. 

(b) Leases for other residential 

development (for example, single-family 

residential developments that are not 

housing for public purposes and multifamily developments) are covered under 

subpart D of this part. 

§ 162.302 Is there a model residential lease 

form? 

We will make available one or more 

model lease forms that satisfy the formal 

requirements of this part, including, as 

appropriate, the model tribal lease form 

jointly developed by BIA, the 

Department of Housing and Urban 

Development, the Department of 

Veterans’ Affairs, and the Department of 

Agriculture. Use of a model lease form 

is not mandatory, provided all 

requirements of this part are met. If a 

model lease form is not used, we will 

assist the Indian landowners in drafting 

lease provisions or in using tribal lease 

forms that conform to the requirements 

of this part. 

Lease Requirements 

§ 162.311 How long may the term of a 

residential lease run? 

(a) A residential lease must provide 

for a definite lease term, state if there is 

an option to renew and, if so, provide 

for a definite term for the renewal 

period. 

(b) Unless otherwise provided by 

paragraphs (b)(1) or (b)(2) of this 

section, the maximum term may not 

exceed 50 years. The lease may provide 

for a primary term of less than 50 years 

with a provision for one or more 

renewals, so long as the maximum term, 

including all renewals, does not exceed 

50 years. 

(1) If a Federal statute provides for a 

longer maximum term (e.g., 25 U.S.C. 

415(a) allows for a maximum term of 99 

years for certain tribes), the lease may 

provide for a primary term, and one 

renewal not to exceed 25 years, so long 

as the maximum term, including the 

renewal, does not exceed the maximum 

term established by statute. 

(2) Where all of the trust or restricted 

interests in a tract are owned by a 

deceased Indian whose heirs and 

devisees have not yet been determined, 

the maximum term may not exceed two 

years. 

(c) A residential lease may not be 

extended by holdover. 

§ 162.312 What must the lease include if it 

contains an option to renew? 

(a) If the lease provides for an option 

to renew, the lease must specify: 

(1) The time and manner in which the 

option must be exercised or is 

automatically effective; 

(2) That confirmation of the renewal 

will be submitted to us; 

(3) Whether landowner consent to the 

renewal is required; 

(4) That the lessee must provide 

notice to the Indian landowner and any 

mortgagees of the renewal; 

(5) The additional consideration, if 

any, that will be due upon the exercise 

of the option to renew or the 

commencement of the renewal term; 

(6) That any change in the terms of 

the lease will be considered an 

amendment subject to consent and BIA 

approval requirements pursuant to 

§§ 162.343 through 162.346; and 

(7) Any other conditions for renewal 

(e.g., the lessee may not be in violation 

of the lease at the time of renewal). 

(b) We must record any renewal of a 

lease in the Land Titles and Records 

Office. 

§ 162.313 Are there mandatory provisions 

that a residential lease must contain? 

(a) All residential leases must 

identify: 

(1) The tract or parcel of land being 

leased; 

(2) The purpose of the lease and 

authorized uses of the leased premises; 

(3) The parties to the lease; 

(4) The term of the lease; 

(5) The owner being represented and 

the authority under which such action 

is being taken, where one executes a 

lease in a representative capacity; 

(6) The citation of the statute that 

authorizes our approval; 

(7) Who is responsible for 

constructing, owning, operating, 

maintaining, and managing 

improvements; 

(8) Payment requirements and late 

payment charges, including interest; 

(9) Insurance requirements under 

§ 162.337; and 

(10) Bonding requirements under 

§ 162.334. If a performance bond is 

required, the lease must state that the 

lessee must obtain the consent of the 

surety for any legal instrument that 

directly affects their obligations and 

liabilities. 

(b) All residential leases must include 

the following provisions: 

(1) The obligations of the lessee and 

its sureties to the Indian landowners are 

also enforceable by the United States, so 

long as the land remains in trust or 

restricted status; 

(2) Nothing in the lease would 

prevent or delay termination of Federal 

trust responsibilities for the land during 

the lease’s term; 

(3) There must not be any unlawful 

conduct, creation of a nuisance, illegal 

activity, or negligent use or waste of the 

leased premises; 

(4) The lessee must comply with all 

applicable laws, ordinances, rules, 

regulations, and other legal 

requirements under § 162.013; 

(5) The lessee indemnifies and holds 

the United States and the Indian 

landowners harmless from any loss, 

liability, or damages resulting from the 

lessee’s use or occupation of the leased 

premises (this provision is not 

mandatory if the lessee would be 

prohibited by law from making such an 

agreement); 

(6) The lessee indemnifies the United 

States and the Indian landowners 

against all liabilities or costs relating to 

the use, handling, treatment, removal, 

storage, transportation, or disposal of 

hazardous materials, or the release or 

discharge of any hazardous material 

from the leased premises that occurs 

during the lease term, regardless of 

fault, unless the liability or cost arises 

from the gross negligence or willful 

misconduct of the Indian landowner 

(this provision is not mandatory if the 

lessee would be prohibited by law from 

making such an agreement); 

(7) In the event that historic 

properties, archeological resources, 

human remains, or other cultural items 

not previously reported are encountered 

during the course of any activity 

associated with this lease, all activity in 

the immediate vicinity of the properties, 

resources, remains, or items will cease 

and the lessee will contact BIA and the 

tribe that has jurisdiction to determine 

how to proceed and appropriate 

disposition; 

(8) BIA has the right, at any 

reasonable time during the term of the 

lease and upon reasonable notice, to 

enter upon the leased premises for 

inspection and compliance; and 

(9) Unless otherwise indicated, this is 

a lease of the trust and restricted 

interests in the property described and 

is not a lease of any undivided fee 

interests. All rental payments by the 


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lessee will be distributed to the trust 

and restricted landowners and life estate 

holders on trust and restricted land 

only. The lessee will be responsible for 

accounting to the owners of any fee 

interests that may exist in the property 

being leased. 

(c) We may treat any provision of a 

lease, sublease, amendment, 

assignment, or leasehold mortgage that 

is in violation of Federal law as a 

violation of the lease. 

§ 162.314 May improvements be made 

under a residential lease? 

(a) The lessee may construct 

improvements under a residential lease 

if the residential lease authorizes the 

construction and generally describes the 

type and location of the improvements 

to be constructed during the lease term. 

(b) The lessee must provide 

reasonable notice to the Indian 

landowners of the construction of any 

major improvements not generally 

described in the lease. We will treat any 

attempt by the lessee to construct major 

improvements, without the necessary 

notice, as a lease violation. 

§ 162.315 How must a residential lease 

address ownership of improvements? 

(a) A residential lease must specify 

who will own any improvements the 

lessee constructs during the lease term. 

In addition, the lease must indicate 

whether each specific improvement the 

lessee constructs will, upon the 

expiration or termination of the lease: 

(1) Remain on the leased premises, in 

a condition satisfactory to the Indian 

landowners and become the property of 

the Indian landowner; 

(2) Be removed immediately or within 

a time period specified in the lease, at 

the lessee’s expense, with the leased 

premises to be restored as close as 

possible to their condition before 

construction of such improvements; or 

(3) Be disposed of by other means. 

(b) A lease that requires the lessee to 

remove the improvements must also 

provide the Indian landowners with an 

option to take possession of and title to 

the improvements if the improvements 

are not removed within the specified 

time period. 

(c) Any permanent improvements on 

the leased land shall be subject to 25 

CFR 1.4 and, in addition, shall not be 

subject to any fee, tax, assessment, levy, 

or other such charge imposed by any 

State or political subdivision of a State, 

without regard to ownership of those 

improvements. Improvements may be 

subject to taxation by the Indian tribe 

with jurisdiction. 

§ 162.316 How will BIA enforce removal 

requirements in a residential lease? 

We may take appropriate enforcement 

action in consultation with the tribe for 

tribal land or, where feasible, with 

Indian landowners for individually 

owned Indian land, to ensure removal of 

the improvements or restoration of the 

premises at the lessee’s expense. We 

may take such enforcement action after 

termination or expiration of the lease. 

We may collect and hold the 

performance bond until removal and 

restoration are completed. 

§ 162.317 How must a residential lease 

describe the land? 

(a) A residential lease must describe 

the leased premises by reference to a 

public or private survey, if possible. If 

the land cannot be so described, the 

lease must include a legal description or 

other description that is sufficient to 

identify the leased premises, subject to 

our approval. 

(b) If the tract is fractionated, we will 

describe the undivided trust or 

restricted interest in the leased 

premises. 

Rental Requirements 

§ 162.320 How much rent must be paid 

under a residential lease? 

(a) A residential lease of tribal land 

may allow for any payment amount 

negotiated by the tribe, if the tribe 

submits a signed certification stating 

that it has determined the negotiated 

amount to be in its best interest. The 

tribe may request, in writing, that we 

require fair market rental, in which case 

we will determine fair market rental in 

accordance with § 162.322 and will 

approve the lease only if it requires 

payment of not less than fair market 

rental. Unless the tribe makes such a 

request, BIA will not require a valuation 

or appraisal or determine fair market 

rental, but instead will defer to the 

tribe’s determination that the negotiated 

compensation is in its best interest. 

(b) A residential lease of individually 

owned Indian land must require 

payment of not less than fair market 

rental except that we may approve a 

lease of individually owned Indian land 

that provides for the payment of 

nominal rent, or less than a fair market 

rental, if: 

(1) The Indian landowners execute a 

written waiver of the right to receive fair 

market rental; and 

(2) We determine it is in the Indian 

landowners’ best interest, based on 

factors including but not limited to: 

(i) The lessee is a member of the 

Indian landowner’s immediate family as 

defined in § 162.003; 

(ii) The lessee is a co-owner of the 

leased tract; or 

(iii) A special relationship or 

circumstances exist that we believe 

warrant approval of the lease. 

(c) Where the owners of the 

applicable percentage of interests 

consent to a residential lease on behalf 

of all the Indian landowners of a 

fractionated tract, the lease must 

provide that the non-consenting Indian 

landowners and those on whose behalf 

we have consented receive fair market 

rental. 

§ 162.321 Will BIA require a valuation to 

determine fair market rental for a residential 

lease? 

(a) We will not require valuations for 

negotiated residential leases of tribal 

land, or of any undivided tribal interest 

in a fractionated tract, if the tribe 

submits a signed certification. The tribe 

may request, in writing, that we require 

a valuation, in which case we will 

determine fair market rental in 

accordance with § 162.322. 

(b) We will require valuations for 

individually owned Indian land, except 

that we may waive the valuation 

requirement when: 

(1) 100 percent of the Indian 

landowners submit to us a written 

request to waive the valuation 

requirement; and 

(2) We determine that the waiver is in 

the best interest of the Indian 

landowners, taking into consideration 

the landowners’ written request. 

(c) We have 30 days from receipt of 

the waiver request in paragraph (b) of 

this section to make a determination. 

Our determination whether to approve 

the request will be in writing and will 

state the basis for our approval or 

disapproval. If we fail to meet the 30- 

day deadline, the lessee or Indian 

landowners may take appropriate action 

under part 2 of this chapter. 

§ 162.322 What type of valuation may be 

used to determine fair market rental for a 

residential lease? 

(a) We will use a market analysis, 

appraisal, or other appropriate valuation 

method to determine the fair market 

rental for residential leases of 

individually owned Indian land, or at 

the request of the tribe for tribal land. 

(b) We will either: 

(1) Prepare a market analysis, 

appraisal, or other appropriate valuation 

method; or 

(2) Use an approved market analysis, 

appraisal, or other appropriate valuation 

method from the Indian landowner or 

lessee. 

(c) We will approve a market analysis, 

appraisal, or other appropriate valuation 

method for use only if it: 


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(1) Has been prepared in accordance 

with USPAP or a valuation method 

developed by the Secretary pursuant to 

25 U.S.C. 2214; and 

(2) Complies with Department 

policies. 

§ 162.323 When are rental payments due 

under a residential lease? 

(a) A residential lease must specify 

the dates on which all payments are 

due. 

(b) Unless otherwise provided in the 

lease, payments may not be made or 

accepted more than one year in advance 

of the due date. 

§ 162.324 Must a residential lease specify 

to whom rental payments may be made? 

(a) A residential lease must specify 

whether the lessee will make payments 

directly to the Indian landowners (direct 

pay) or to us on their behalf. 

(b) The lessee may make payments 

directly to the Indian landowners whose 

trust accounts are unencumbered when 

there are 10 or fewer beneficial owners 

and 100 percent of the beneficial owners 

agree to receive payment from the lessee 

at the commencement of the lease. 

(1) If the lease provides that the lessee 

will directly pay the Indian landowners, 

the lease must include provisions for 

proof of payment. 

(2) When we consent on behalf of an 

Indian landowner, the lessee must make 

payment to us. 

(3) The lessee must send direct 

payments to the parties and addresses 

specified in the lease, unless the lessee 

receives notice of a change of ownership 

or address. 

(4) Unless otherwise provided in the 

lease, payments may not be made 

payable directly to anyone other than 

the Indian landowners. 

(5) Direct payments must continue 

through the duration of the lease, except 

if: 

(i) 100 percent of the Indian 

landowners agree to suspend direct pay 

and provide us with documentation of 

their agreement, then the lessee must 

make all Indian landowners’ payments 

to us; or 

(ii) If any individual Indian 

landowner dies, is declared non compos 

mentis, becomes whereabouts unknown, 

or owes a debt resulting in a trust 

account encumbrance, then the lessee 

must make that individual Indian 

landowner’s payment to us. 

§ 162.325 What form of payment may be 

accepted under a residential lease? 

(a) When payments are made directly 

to Indian landowners, the form of 

payment must be acceptable to the 

Indian landowners. 

(b) When payments are made to us, 

we will accept: 

(1) Money orders; 

(2) Personal checks; 

(3) Certified checks; 

(4) Cashier’s checks; or 

(5) Electronic funds transfer 

payments. 

(c) We will not accept cash, foreign 

currency, or third-party checks, except 

that we will accept third-party checks 

from financial institutions or Federal 

agencies. 

(d) The preferred method of payment 

is electronic funds transfer payments. 

§ 162.326 May a residential lease provide 

for non-monetary or varying types of 

compensation? 

(a) With our approval, the lease may 

provide for: 

(1) Alternative forms of rental, 

including, but not limited to in-kind 

consideration; or 

(2) Varying types of compensation at 

specific stages during the life of the 

lease. 

(b) For individually owned land, we 

will approve alternative forms of rental 

and varying types of compensation if we 

determine that it is in the best interest 

of the Indian landowners. For tribal 

land, we will defer to the tribe’s 

determination that the alternative forms 

of rental and varying types of 

consideration are in its best interest, if 

the tribe submits a signed certification 

stating that it has determined the 

alternative forms of rental and varying 

types of consideration to be in its best 

interest. 

§ 162.327 Will BIA notify a lessee when a 

payment is due under a residential lease? 

Upon request of the Indian 

landowner, we may issue invoices to a 

lessee in advance of the dates on which 

payments are due under a residential 

lease, but the lessee’s obligation to make 

such payments in a timely manner will 

not be excused if such invoices are not 

issued, delivered, or received. 

§ 162.328 Must a residential lease provide 

for rental reviews or adjustments? 

(a) For a residential lease with a term 

of five years or less, the parties may 

agree in the lease to provide for periodic 

reviews of the adequacy of rent in the 

lease. For a residential lease with a term 

of more than five years, a review of the 

adequacy of rent must occur at least 

every fifth year, in the manner specified 

in the lease, unless the conditions in 

paragraph (b) of this section are met. 

The lease must specify: 

(1) When adjustments take effect; 

(2) Who is authorized to make 

adjustments; 

(3) What the adjustments are based 

on; and 

(4) How to resolve disputes arising 

from the adjustments. 

(b) A review of the adequacy of rent 

is not required if: 

(1) The lease provides for automatic 

rental adjustments; or 

(2) We determine it is in the best 

interest of the Indian landowners not to 

require a review or automatic 

adjustment based on circumstances 

including, but not limited to, where the 

lease provides for payment of less than 

fair market rental or the lease provides 

for most or all rent to be paid during the 

first five years of the lease term or prior 

to the date the review would be 

conducted. 

(c) When a review results in the need 

for adjustment of rent, we must approve 

the adjustment and Indian landowners 

must consent to the adjustment in 

accordance with § 162.011, unless 

otherwise provided in the lease. 

§ 162.329 What other types of payments 

are required under a residential lease? 

(a) The lessee may be required to pay 

additional fees, taxes, and/or 

assessments associated with the use of 

the land, as determined by entities 

having jurisdiction, except as provided 

in § 162.315(c). The lessee must pay 

these amounts to the appropriate office. 

(b) If the leased premises are within 

an Indian irrigation project or drainage 

district, except as otherwise provided in 

part 171 of this chapter, the lessee must 

pay all operation and maintenance 

charges that accrue during the lease 

term. The lessee must pay these 

amounts to the appropriate office in 

charge of the irrigation project or 

drainage district. Failure to make such 

payments will be treated as a violation 

of the lease. 

Bonding and Insurance 

§ 162.334 Must a lessee or assignee 

provide a performance bond for a 

residential lease? 

(a) Except for leases for housing for 

public purposes or as provided in (f), 

the lessee must provide a performance 

bond in an amount sufficient to secure 

the contractual obligations including: 

(1) No less than the highest annual 

rental specified in the lease, if the rent 

is paid annually, or other amount 

established by BIA in consultation with 

the tribe for tribal land or, where 

feasible, with Indian landowners for 

individually owned Indian land, if the 

rent is to be paid on a non-annual 

schedule; 

(2) The operation and maintenance 

charges for any land located within an 

irrigation project; and 

(3) As appropriate, the restoration and 

reclamation of the leased premises to 


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their condition at the commencement of 

the lease term or some other specified 

condition. 

(b) The performance bond must be 

deposited with us and made payable 

only to us, and may not be modified 

without our approval. 

(c) The lease must provide that we 

may adjust security or performance 

bond requirements at any time to reflect 

changing conditions. 

(d) We may require that the surety 

provide any supporting documents 

needed to show that the performance 

bond will be enforceable, and that the 

surety will be able to perform the 

guaranteed obligations. 

(e) The surety must provide notice to 

us at least 60 days before canceling a 

performance bond so that we may notify 

the lessee of its obligation to provide a 

substitute performance bond. Failure to 

provide a substitute performance bond 

will be a violation of the lease. 

(f) We may waive the requirement for 

a performance bond upon the request of 

the Indian landowner, if the waiver is in 

the best interest of the Indian 

landowner, including if the lease is for 

less than fair market rental or nominal 

rent. We may revoke the waiver and 

require a performance bond at any time 

if the waiver is no longer in the best 

interest of the Indian landowner. 

§ 162.335 What forms of performance 

bonds may be accepted under a residential 

lease? 

(a) We will only accept a performance 

bond in one of the following forms: 

(1) Cashiers’ checks; 

(2) Certificates of deposit issued by a 

federally insured financial institution 

authorized to do business in the United 

States; 

(3) Irrevocable letters of credit issued 

by a federally insured financial 

institution authorized to do business in 

the United States; 

(4) Negotiable Treasury securities; or 

(5) Surety bond issued by a company 

approved by the U.S. Department of the 

Treasury. 

(b) All forms of performance bonds 

must: 

(1) Indicate on their face that BIA 

approval is required for redemption; 

(2) Be accompanied by a statement 

granting full authority to BIA to make an 

immediate claim upon or sell them if 

lessee violates the lease; 

(3) Be irrevocable during the term of 

the performance bond; and 

(4) Be automatically renewable during 

the term of the lease. 

§ 162.336 What is the bond release 

process under a residential lease? 

(a) Upon expiration, termination, or 

cancellation of the lease, the lessee must 

submit a written request for a 

performance bond release to BIA. 

(b) Upon receipt of a request under 

paragraph (a) of this section, BIA will 

confirm with the tribe, for tribal land or, 

where feasible, with the Indian 

landowners for individually owned 

Indian land, that the lessee has 

complied with all lease obligations, then 

release the performance bond to the 

lessee unless we determine that the 

bond must be redeemed to fulfill the 

contractual obligations. 

§ 162.337 Must a lessee provide insurance 

for a residential lease? 

Except as provided in paragraph (c) of 

this section, a lessee must provide 

insurance necessary to protect the 

interests of the Indian landowners and 

in an amount sufficient to protect all 

insurable improvements on the 

premises. 

(a) The insurance may include 

property, liability and/or casualty 

insurance, depending on the Indian 

landowners’ interests to be protected. 

(b) Both the Indian landowners and 

the United States must be identified as 

additional insured parties. 

(c) We may waive the requirement for 

insurance upon the request of the Indian 

landowner, if a waiver is in the best 

interest of the Indian landowner, 

including if the lease is for less than fair 

market rental or nominal compensation. 

We may revoke the waiver and require 

insurance at any time if the waiver is no 

longer in the best interest of the Indian 

landowner. 

Approval 

§ 162.338 What documents must the 

parties submit to obtain BIA approval of a 

residential lease? 

A lessee or the Indian landowner 

must submit the following documents to 

us to obtain BIA approval of a 

residential lease: 

(a) A lease executed by the Indian 

landowner and the lessee that complies 

with the requirements of this part; 

(b) A valuation, if required under 

§ 162.321; 

(c) Organizational documents, 

certificates, filing records, and 

resolutions or other authorization 

documents, including evidence of the 

representative’s authority to execute a 

lease, if the lessee is a corporation, 

limited liability company, partnership, 

joint venture, or other legal entity, 

except a tribal entity, to show that the 

lease will be enforceable and that the 

legal entity is in good standing and 

authorized to conduct business in the 

jurisdiction where the land is located; 

(d) A performance bond, where 

required; 

(e) Statement from the appropriate 

tribal authority that the proposed use is 

in conformance with applicable tribal 

law; 

(f) Reports, surveys, and site 

assessments as needed to facilitate 

compliance with applicable Federal and 

tribal land use requirements; 

(g) A preliminary site plan identifying 

the proposed location of residential 

development, roads and utilities, if 

applicable; 

(h) Information to assist us in our 

evaluation of the factors in 25 U.S.C. 

415(a); 

(i) Information to facilitate BIA’s 

analysis under applicable 

environmental and cultural resources 

laws; and 

(j) Any additional documentation we 

determine to be reasonably necessary for 

approval. 

§ 162.339 What is the approval process for 

a residential lease? 

(a) Before we approve a residential 

lease, we must determine that the lease 

is in the best interest of the Indian 

landowners. In making that 

determination, we will: 

(1) Review the lease and supporting 

documents; 

(2) Ensure compliance with all 

applicable laws and ordinances; 

(3) Assure ourselves that adequate 

consideration has been given to the 

factors in 25 U.S.C. 415(a); 

(4) Require any lease modifications or 

mitigation measures necessary to satisfy 

any requirements including any other 

Federal or tribal land use requirements; 

and 

(5) If the lease is a negotiated lease, 

defer to the Indian landowners’ 

determination that the lease is in their 

best interest, to the maximum extent 

possible. 

(b) When we receive a residential 

lease proposal and all of the supporting 

documents that conform to this part, we 

will, within 30 days of receiving the 

documents at the appropriate BIA office, 

approve, disapprove, return the 

submission for revision, or notify the 

parties in writing that we need 

additional time to review the lease. Our 

letter notifying the parties that we need 

additional time to review the lease must 

identify our initial concerns and invite 

the parties to respond within 15 days. 

We have 30 days from sending the 

notification to make a determination 

whether to approve or disapprove the 

lease. 

(c) If we fail to meet the deadlines in 

this section, then the parties may take 

appropriate action under part 2 of this 

chapter. 

(d) We will make any lease approval 

or disapproval determination and the 


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basis for the determination, along with 

notification of appeal rights under part 

2 of this chapter, in writing and will 

send the determination and notification 

to the parties to the lease. 

(e) Any residential lease issued under 

the authority of the Native American 

Housing Assistance and SelfDetermination Act, 25 U.S.C. 4211(a), 

whether on tribal land or on 

individually owned Indian land, must 

be approved by us and by the affected 

tribe. 

(f) We will provide approved 

residential leases on tribal land to the 

lessee and provide a copy to the tribe. 

We will provide approved residential 

leases on individually owned Indian 

land to the lessee, and make copies 

available to the Indian landowners upon 

written request. 

§ 162.340 When will a residential lease be 

effective? 

(a) A residential lease will be effective 

on the date that we approve the lease, 

notwithstanding any appeal that may be 

filed under part 2 of this chapter. 

(b) The lease may specify a date on 

which the obligations between the 

parties are triggered. Such date may be 

before or after the approval date under 

paragraph (a) of this section. 

§ 162.341 Must residential lease 

documents be recorded? 

(a) A residential lease, amendment, 

assignment, leasehold mortgage, and 

sublease must be recorded in our Land 

Titles and Records Office with 

jurisdiction over the leased land. 

(1) We will record the lease or other 

document immediately following our 

approval. 

(2) When our approval of an 

assignment or sublease is not required, 

the parties must record the assignment 

or sublease in the Land Title and 

Records Office with jurisdiction over 

the leased land. 

(b) The tribe must record the 

following leases in the Land Titles and 

Records Office with jurisdiction over 

the leased lands, even though BIA 

approval is not required: 

(1) Leases of tribal land that a 

corporate entity leases to a third party 

under 25 U.S.C. 477; and 

(2) Leases of tribal land under a 

special act of Congress authorizing 

leases without our approval under 

certain conditions. 

§ 162.342 What action may BIA take if a 

residential lease disapproval decision is 

appealed? 

(a) If a party appeals our decision to 

disapprove a lease, assignment, 

amendment, sublease, or leasehold 

mortgage, then the official to whom the 

appeal is made may require the lessee 

to post an appeal bond in an amount 

necessary to protect the Indian 

landowners against financial losses and 

damage to trust resources likely to result 

from the delay caused by an appeal. The 

requirement to post an appeal bond will 

apply in addition to all of the other 

requirements in part 2 of this chapter. 

(b) The appellant may not appeal the 

appeal bond decision. The appellant 

may, however, request that the official 

to whom the appeal is made reconsider 

the bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

Amendments 

§ 162.343 May the parties amend a 

residential lease? 

(a) The parties may amend a 

residential lease by obtaining: 

(1) The lessee’s signature; 

(2) The Indian landowners’ consent 

pursuant to the requirements contained 

in § 162.344; and 

(3) BIA approval of the amendment 

under § 162.345 and § 162.346. 

(b) The parties may not amend a 

residential lease if the lease expressly 

prohibits amendments. 

§ 162.344 What are the consent 

requirements for an amendment of a 

residential lease? 

(a) The Indian landowners, or their 

representatives under § 162.012, must 

consent to an amendment of a 

residential lease in the same percentages 

and manner as a new residential lease 

under § 162.011, unless the 

requirements in paragraphs (a)(1) or 

(a)(2) of this section are met. 

(1) The approved residential lease 

establishes that individual Indian 

landowners are deemed to have 

consented if they do not object in 

writing to the amendment after a 

specified period of time following 

Indian landowners’ receipt of the 

amendment. If the lease provides for 

deemed consent, it must require the 

parties to submit to us: a copy of the 

executed amendment or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the amendment to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information to us for review. 

(2) The approved residential lease 

authorizes one or more representatives 

to consent to an amendment on behalf 

of all Indian landowners. The lease may 

also designate us as the Indian 

landowners’ representative for the 

purposes of consent to an amendment. 

(b) Unless specifically authorized in 

the lease, the written power of attorney, 

or court document, Indian landowners 

may not be deemed to have consented 

to, and an Indian landowner’s 

designated representative may not 

negotiate or consent to, an amendment 

that would: 

(1) Reduce the payment obligations or 

terms to the Indian landowners; 

(2) Increase or decrease the lease area; 

or 

(3) Terminate or change the term of 

the lease. 

§ 162.345 What is the approval process for 

an amendment of a residential lease? 

We have 30 days from receipt of the 

executed amendment, proof of required 

consents, and required documentation 

to make a determination whether to 

approve the amendment or notify the 

parties in writing that we need 

additional time to review the 

amendment. 

(a) Our letter notifying the parties that 

we need additional time to review the 

amendment must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 

make a determination whether to 

approve or disapprove the amendment. 

(b) If we fail to send either a 

determination or notification within 30 

days from receipt of the required 

documents or 30 days from sending the 

notification, the amendment is deemed 

approved to the extent consistent with 

Federal law. We will retain our full 

enforcement authority for amendments 

that are deemed approved. 

(c) Our determination whether to 

approve the amendment will be in 

writing and will state the basis for our 

approval or disapproval. 

§ 162.346 How will BIA decide whether to 

approve an amendment of a residential 

lease? 

(a) We may only disapprove a 

residential lease amendment if: 

(1) The required consents have not 

been obtained from the parties to the 

lease and any mortgagees or sureties; 

(2) The lessee is in violation of the 

lease; or 

(3) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) We may not unreasonably 

withhold approval of an amendment. 

Assignments 

§ 162.347 May a lessee assign a residential 

lease? 

A lessee may assign a residential lease 

by meeting the consent requirements in 


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§ 162.348 and obtaining our approval of 

the assignment under § 162.349 and 

§ 162.350, unless the lease expressly 

prohibits assignments. 

§ 162.348 What are the consent 

requirements for an assignment of a 

residential lease? 

(a) The Indian landowners, or their 

representatives under § 162.012, must 

consent to an assignment of a residential 

lease in the same percentages and 

manner as a new residential lease under 

§ 162.011, unless the requirements in 

paragraphs (a)(1), (a)(2), or (a)(3) of this 

section are met. 

(1) The assignee agrees in writing to 

assume all of the lessee’s obligations 

under the lease, including bonding 

requirements, and: 

(i) The lease provides for assignments 

without further consent of the Indian 

landowners or with consent in specified 

percentages and manner; or 

(ii) The assignee is a leasehold 

mortgagee or its designee, acquiring the 

lease either through foreclosure or by 

conveyance. 

(2) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the 

assignment after a specified period of 

time following landowners’ receipt of 

the assignment. If the lease provides for 

deemed consent, it must require the 

parties to submit to us: a copy of the 

executed assignment or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the assignment to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information for us to review. 

(3) The lease authorizes one or more 

of the Indian landowners to consent on 

behalf of all Indian landowners. The 

lease may also designate us as the 

Indian landowners’ representative for 

the purposes of consenting to an 

assignment. 

(b) The lessee must obtain the consent 

of the holders or any bonds or 

mortgages. 

§ 162.349 What is the approval process for 

an assignment of a residential lease? 

(a) The lessee may assign the lease 

without our approval if: 

(1) The assignee is a leasehold 

mortgagee or its designee, acquiring the 

lease either through foreclosure or by 

conveyance; 

(2) The assignee agrees in writing to 

assume all of the obligations of the 

lease; and 

(3) The assignee agrees in writing that 

any transfer of the lease will be in 

accordance with applicable law under 

§ 162.013. 

(b) We have 30 days from receipt of 

the executed assignment, proof of 

required consents, and required 

documentation to make a determination 

whether to approve the assignment or 

notify the parties that we need 

additional information. Our 

determination whether to approve the 

assignment will be in writing and will 

state the basis for our approval or 

disapproval. 

(c) If we fail to meet the deadline in 

this section, the lessee or Indian 

landowners may take appropriate action 

under part 2 of this chapter. 

§ 162.350 How will BIA decide whether to 

approve an assignment of a residential 

lease? 

(a) We may only disapprove an 

assignment of a residential lease if: 

(1) The Indian landowners have not 

consented, and their consent is 

required; 

(2) The lessee’s mortgagees or sureties 

have not consented; 

(3) The lessee is in violation of the 

lease; 

(4) The assignee does not agree to be 

bound by the terms of the lease; 

(5) The proposed use by the assignee 

will require an amendment to the lease; 

or 

(6) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(6) of this section, we may 

consider whether: 

(1) The value of any part of the leased 

premises not covered by the assignment 

would be adversely affected; and 

(2) If a performance bond is required, 

the assignee has bonded its performance 

and provided supporting documents 

that demonstrate that the lease will be 

enforceable against the assignee, and 

that the assignee will be able to perform 

its obligations under the lease or 

assignment. 

(c) If the lease was approved at less 

than fair market rental and the assignee 

is not a co-owner or member of the 

Indian landowners’ immediate family, 

the assignment must provide for the 

assignee to pay fair market rental to the 

Indian landowner. 

(d) We may not unreasonably 

withhold approval of an assignment. 

Subleases 

§ 162.351 May a lessee sublease a 

residential lease? 

(a) A lessee may sublease a residential 

lease by meeting the consent 

requirements in § 162.352 and obtaining 

our approval of the sublease under 

§ 162.353 and § 162.354, or by meeting 

the conditions in paragraph (b) of this 

section, unless the lease expressly 

prohibits subleases. 

(b) Where the sublease is part of a 

housing development for public 

purposes, the lessee may sublease 

without meeting consent requirements 

or obtaining BIA approval of the 

sublease, as long as: 

(1) The lease provides for subleasing 

without meeting consent requirements 

or obtaining BIA approval; 

(2) We have approved a general plan 

for the development; and 

(3) We have approved a sublease form 

and general rent schedule for use in the 

project. 

§ 162.352 What are the consent 

requirements for a sublease of a residential 

lease? 

(a) The Indian landowners must 

consent to a sublease of a residential 

lease in the same percentages and 

manner as a new residential lease 

pursuant to § 162.011, unless the 

requirements in paragraphs (a)(1) or 

(a)(2) of this section are met. 

(1) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the sublease 

after a specified period of time 

following landowners’ receipt of the 

sublease. If the lease provides for 

deemed consent, it must require the 

parties to submit to us: a copy of the 

executed sublease or other 

documentation of the landowners’ 

consent; proof of mailing of the sublease 

to any Indian landowners who are 

deemed to have consented; and any 

other pertinent information for us to 

review. 

(2) The lease authorizes one or more 

of the Indian landowners to consent on 

behalf of all Indian landowners. The 

lease may also designate us as the 

Indian landowners’ representative for 

the purposes of consenting to a 

sublease. 

(b) The lessee must obtain the consent 

of any sureties. 

§ 162.353 What is the approval process for 

a sublease of a residential lease? 

We have 30 days from receipt of the 

executed sublease, proof of required 

consents, and required documentation 

to make a determination whether to 

approve the sublease or notify the 

parties in writing that we need 

additional time to review the sublease. 

(a) Our letter notifying the parties that 

we need additional time to review the 

sublease must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 


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make a determination whether to 

approve or disapprove the sublease. Our 

determination whether to approve the 

sublease will be in writing and will state 

the basis for our approval or 

disapproval. 

(b) If we fail to send either a 

determination or notification within 30 

days from receipt of required documents 

or from sending the notification, the 

sublease is deemed approved to the 

extent consistent with Federal law. We 

will retain our full enforcement 

authority for subleases that are deemed 

approved. 

§ 162.354 How will BIA decide whether to 

approve a sublease of a residential lease? 

(a) We may only disapprove a 

sublease of a residential lease if: 

(1) The Indian landowners have not 

consented, and their consent is 

required; 

(2) The lessee’s mortgagees or sureties 

have not consented; 

(3) The lessee is in violation of the 

lease; 

(4) The lessee will not remain liable 

under the lease; 

(5) The sublessee does not agree to be 

bound by the terms of the lease; 

(6) The proposed use by the sublessee 

will require an amendment of the lease; 

or 

(7) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(7) of this section, we will 

consider whether: 

(1) The value of any part of the leased 

premises not covered by the sublease 

would be adversely affected; and 

(2) If a performance bond is required 

by the sublease, the sublessee has 

bonded its performance and provided 

supporting documents that demonstrate 

that the lease will be enforceable against 

the sublessee, and that the sublessee 

will be able to perform its obligations 

under the lease or sublease. 

(c) If the lease was approved at less 

than fair market rental, and the 

sublessee is not a co-owner or a member 

of the Indian landowner’s immediate 

family, the sublease must provide for 

the sublessee to pay fair market rental 

to the Indian landowner. 

(d) We may not unreasonably 

withhold approval of a sublease. 

Leasehold Mortgages 

§ 162.355 May a lessee mortgage a 

residential lease? 

A lessee may mortgage a residential 

lease by meeting the consent 

requirements in § 162.356 and obtaining 

BIA approval of the leasehold mortgage 

under in § 162.357 and § 162.358, unless 

the lease expressly prohibits leasehold 

mortgages. 

§ 162.356 What are the consent 

requirements for a leasehold mortgage of a 

residential lease? 

The Indian landowners, or their 

representatives under § 162.012, must 

consent to a leasehold mortgage under 

a residential lease in the same 

percentages and manner as a new 

residential lease under § 162.011, unless 

the requirements in paragraphs (a), (b), 

or (c) of this section are met. 

(a) The lease contains a general 

authorization for a leasehold mortgage 

and states what law would apply in case 

of foreclosure. 

(b) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the leasehold 

mortgage after a specified period of time 

following landowners’ receipt of the 

leasehold mortgage. If the lease provides 

for deemed consent, it must require the 

parties to submit to us: A copy of the 

executed leasehold mortgage or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the leasehold mortgage to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information for us to review. 

(c) The lease authorizes one or more 

representatives to consent to a leasehold 

mortgage on behalf of all Indian 

landowners. The lease may also 

designate us as the Indian landowners’ 

representative for the purposes of 

consenting to a leasehold mortgage. 

§ 162.357 What is the approval process for 

a leasehold mortgage of a residential lease? 

(a) We have 30 days from receipt of 

the executed leasehold mortgage, proof 

of required consents, and required 

documentation to make a determination 

whether to approve the leasehold 

mortgage or notify the parties that we 

need additional information. Our 

determination whether to approve the 

leasehold mortgage will be in writing 

and will state the basis for our approval 

or disapproval. 

(b) If we fail to meet the deadline in 

this section, the lessee may take 

appropriate action under part 2 of this 

chapter. 

§ 162.358 How will BIA decide whether to 

approve a leasehold mortgage of a 

residential lease? 

(a) We may only disapprove the 

leasehold mortgage if: 

(1) The Indian landowners have not 

consented, and their consent is 

required; 

(2) The holders of lessee’s bond have 

not consented; or 

(3) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(3) of this section, we will 

consider whether: 

(1) The lessee’s ability to comply with 

the lease would be adversely affected by 

any new loan obligations; 

(2) Any lease provisions would 

require modification to be consistent 

with the mortgage; 

(3) The remedies available to us or to 

Indian landowners would be limited 

(beyond any additional notice and cure 

rights to be afforded to the mortgagee) 

in the event of a lease violation; and 

(4) Any rights of the Indian 

landowners would be subordinated or 

adversely affected in the event of a loan 

default by the lessee. 

(c) We may not unreasonably 

withhold approval of a leasehold 

mortgage. 

Effectiveness, Compliance, and 

Enforcement 

§ 162.359 When will an amendment, 

assignment, sublease, or leasehold 

mortgage under a residential lease be 

effective? 

(a) An amendment, assignment, 

sublease, or leasehold mortgage under a 

residential lease will be effective upon 

our approval, notwithstanding any 

appeal that may be filed under part 2 of 

this chapter, unless approval is not 

required under § 162.008(b), 

§ 162.349(a), or § 162.351(b), or the 

conditions in paragraph (b) of this 

section apply. We will provide copies of 

approved documents to the party 

requesting approval, and upon request, 

to other parties to the agreement. 

(b) If the amendment or sublease was 

deemed approved pursuant to 

§ 162.345(b) or § 162.353(b), the 

amendment or sublease becomes 

effective 45 days from the date the 

parties mailed or delivered the 

document to us for our review. 

(c) An assignment or sublease that 

does not require landowner consent or 

BIA approval shall be effective upon 

execution by the parties. 

§ 162.360 What happens if BIA 

disapproves an amendment, assignment, 

sublease, or leasehold mortgage? 

If we disapprove an amendment, 

assignment, sublease, or leasehold 

mortgage of a residential lease, we will 

notify the parties immediately and 

advise them of their right to appeal the 

decision under part 2 of this chapter. 


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§ 162.361 May BIA investigate compliance 

with a residential lease? 

(a) We may enter the leased premises 

at any reasonable time, upon reasonable 

notice, to protect the interests of the 

Indian landowners and ensure that the 

lessee is in compliance with the 

requirements of the lease. 

(b) If the Indian landowner notifies us 

that a specific lease violation has 

occurred, we will promptly initiate an 

appropriate investigation. 

§ 162.362 May a residential lease provide 

for negotiated remedies in the event of a 

violation? 

(a) A residential lease of tribal land 

may provide either or both parties with 

negotiated remedies in the event of a 

lease violation, including, but not 

limited to, the power to terminate the 

lease. If the lease provides the parties 

with the power to terminate the lease, 

BIA approval of the termination is not 

required and the termination is effective 

without BIA cancellation. The parties 

must notify us of the termination so that 

we may record it in the Land Titles and 

Records Office. 

(b) A residential lease of individually 

owned Indian land may provide either 

or both parties with negotiated 

remedies, so long as the lease also 

specifies the manner in which those 

remedies may be exercised by or on 

behalf of the Indian landowners of the 

applicable percentage of interests under 

§ 162.011 of this part. If the lease 

provides the parties with the power to 

terminate the lease, BIA concurrence 

with the termination is required to 

ensure that the Indian landowners of the 

applicable percentage of interests have 

consented. BIA will record the 

termination in the Land Titles and 

Records Office. 

(c) The parties must notify any surety 

or mortgagee of a termination of a 

residential lease. 

(d) Negotiated remedies may apply in 

addition to, or instead of, the 

cancellation remedy available to us, as 

specified in the lease. 

(e) A residential lease may provide for 

lease disputes to be resolved in tribal 

court or any other court of competent 

jurisdiction, by a tribal governing body 

in the absence of a tribal court, or 

through an alternative dispute 

resolution method. We may not be 

bound by decisions made in such 

forums, but we will defer to ongoing 

proceedings, as appropriate, in deciding 

whether to exercise any of the remedies 

available to us. 

162.363 What will BIA do about a violation 

of a residential lease? 

(a) If we determine there has been a 

violation of the conditions of a 

residential lease other than a violation 

of payment provisions covered by 

paragraph (b) of this section, we will 

promptly send the lessee and its sureties 

and any mortgagee a notice of violation 

by certified mail, return receipt 

requested. 

(1) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to Indian 

landowners for individually owned 

Indian land. 

(2) Within 10 business days of the 

receipt of a notice of violation, the 

lessee must: 

(i) Cure the violation and notify us in 

writing that the violation has been 

cured; 

(ii) Dispute our determination that a 

violation has occurred; or 

(iii) Request additional time to cure 

the violation. 

(3) If a violation is determined to have 

occurred, we will make a reasonable 

attempt to notify the Indian landowners. 

(4) We may order the lessee to stop 

work. 

(b) A lessee’s failure to pay rent in the 

time and manner required by a 

residential lease is a violation of the 

lease, and we will issue a notice of 

violation in accordance with this 

paragraph. 

(1) We will send the lessees and its 

sureties a notice of violation by certified 

mail, return receipt requested: 

(i) Promptly following the date on 

which the payment was due, if the lease 

requires that rental payments be made 

to us; or 

(ii) Promptly following the date on 

which we receive actual notice of nonpayment from the Indian landowners, if 

the lease provides for payment directly 

to the Indian landowners. 

(2) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to Indian 

landowners for individually owned 

Indian land. 

(3) The lessee must provide adequate 

proof of payment as required in the 

notice of violation. 

(c) The lessee and its sureties will 

continue to be responsible for the 

obligations contained in the lease until 

the lease is terminated, cancelled, or 

expires. 

§ 162.364 What will BIA do if the lessee 

does not cure a violation of a residential 

lease on time? 

(a) If the lessee does not cure a 

violation of a residential lease within 

the requisite time period, or provide 

adequate proof of payment as required 

in the notice of violation, we will 

consult with the tribe for tribal land or, 

where feasible, with Indian landowners 

for individually owned Indian land, and 

determine whether: 

(1) We should cancel the lease; 

(2) The Indian landowners wish to 

invoke any remedies available to them 

under the lease; 

(3) We should invoke other remedies 

available under the lease or applicable 

law, including, collection on any 

available performance bond or, for 

failure to pay rent, referral of the debt 

to the Department of the Treasury for 

collection; or 

(4) The lessee should be granted 

additional time in which to cure the 

violation. 

(b) We may take action to recover 

unpaid rent and any associated late 

payment charges. 

(1) We do not have to cancel the lease 

or give any further notice to the lessee 

before taking action to recover unpaid 

rent. 

(2) We may still take action to recover 

any unpaid rent if we cancel the lease. 

(c) If we decide to cancel the lease, we 

will send the lessee and its sureties and 

any mortgagees a cancellation letter by 

certified mail, return receipt requested 

within 5 business days of our decision. 

We will send a copy of the cancellation 

letter to the tribe for tribal land, and will 

provide Indian landowners for 

individually owned Indian land with 

actual or constructive notice of the 

cancellation. The cancellation letter 

will: 

(1) Explain the grounds for 

cancellation; 

(2) If applicable, notify the lessee of 

the amount of any unpaid rent or late 

payment charges due under the lease; 

(3) Notify the lessee of their right to 

appeal under part 2 of this chapter, 

including the possibility that the official 

to whom the appeal is made may 

require the lessee to post an appeal 

bond; 

(4) Order the lessee to vacate the 

property within 31 days of the date of 

receipt of the cancellation letter, if an 

appeal is not filed by that time; and 

(5) Require any other action BIA 

deems necessary to protect the Indian 

landowners. 

(d) We may invoke any other 

remedies available to us under the lease, 

including collecting on any available 

performance bond, and the Indian 

landowner may pursue any available 

remedies under tribal law. 

§ 162.365 Will late payment charges or 

special fees apply to delinquent payments 

due under a residential lease? 

(a) Late payment charges will apply as 

specified in the lease. The failure to pay 

such amounts will be treated as a lease 

violation. 


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(b) The following special fees may be 

assessed to cover administrative costs 

incurred by the United States in the 

collection of the debt, if rent is not paid 

in the time and manner required, in 

addition to late payment charges that 

must be paid to the Indian landowners 

under the lease: 

The lessee will 

pay . . . For . . . 

(a) $50.00 .................. Dishonored checks. 

(b) $15.00 .................. Processing of each 

notice or demand 

letter. 

(c) 18 percent of balance due.Treasury processing 

following referral 

for collection of delinquent debt. 

§ 162.366 How will payment rights relating 

to a residential lease be allocated between 

the Indian landowners and the lessee? 

The residential lease may allocate 

rights to payment for insurance 

proceeds, trespass damages, 

condemnation awards, settlement funds, 

and other payments between the Indian 

landowners and the lessee. If not 

specified in the insurance policy, order, 

award, judgment, or other document 

including the lease, the Indian 

landowners will be entitled to receive 

such payments. 

§ 162.367 When will a cancellation of a 

residential lease be effective? 

(a) A cancellation involving a 

residential lease will not be effective 

until 31 days after the lessee receives a 

cancellation letter from us, or 41 days 

from the date we mailed the letter, 

whichever is earlier. 

(b) The cancellation decision will be 

stayed if an appeal is filed unless the 

cancellation is made immediately 

effective under part 2 of this chapter. 

While a cancellation decision is stayed, 

the lessee must continue to pay rent and 

comply with the other terms of the 

lease. 

§ 162.368 What will BIA do if a lessee 

remains in possession after a residential 

lease expires or is cancelled? 

If a lessee remains in possession after 

the expiration or cancellation of a 

residential lease, we may treat the 

unauthorized possession as a trespass 

under applicable law. Unless the 

applicable percentage of Indian 

landowners under § 162.011 have 

notified us in writing that they are 

engaged in good faith negotiations with 

the holdover lessee to obtain a new 

lease, we may take action to recover 

possession on behalf of the Indian 

landowners, and pursue any additional 

remedies available under applicable 

law, such as forcible entry and detainer 

action. 

§ 162.369 Will BIA regulations concerning 

appeal bonds apply to cancellation 

decisions involving residential leases? 

(a) Except as provided in paragraph 

(b) of this section, the appeal bond 

provisions in part 2 of this chapter will 

apply to appeals from lease cancellation 

decisions. 

(b) The lessee may not appeal the 

appeal bond decision. The lessee may, 

however, request that the official to 

whom the appeal is made reconsider the 

appeal bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

§ 162.370 When will BIA issue a decision 

on an appeal from a residential leasing 

decision? 

BIA will issue a decision on an appeal 

from a leasing decision within 30 days 

of receipt of all pleadings. 

§ 162.371 What happens if the lessee 

abandons the leased premises? 

If a lessee abandons the leased 

premises, we will treat the 

abandonment as a violation of the lease. 

The lease may specify a period of nonuse after which the lease premises will 

be considered abandoned. 

Subpart D—Business Leases 

Business Leasing General Provisions 

§ 162.401 What types of leases does this 

subpart cover? 

(a) This subpart covers both ground 

leases (undeveloped land) and leases of 

developed land (together with the 

improvements thereon) on Indian land, 

including: 

(1) Leases for residential purposes 

that are not covered in subpart C; 

(2) Leases for business purposes that 

are not covered in subpart E; 

(3) Leases for religious, educational, 

recreational, cultural, or other public 

purposes; and 

(4) Commercial or industrial leases for 

retail, office, manufacturing, storage, 

biomass, waste-to-energy, or other 

business purposes. 

(b) Leases covered by this subpart 

may authorize the construction of 

single-purpose or mixed use projects 

designed for use by any number of 

lessees or occupants. 

§ 162.402 Is there a model business lease 

form? 

There is no model business lease 

because of the need for flexibility in 

negotiating and writing business leases; 

however, we may provide other 

guidance, such as checklists and sample 

lease provisions to assist in the lease 

negotiation process. Additionally, we 

may assist the Indian landowners, upon 

their request, in developing appropriate 

lease provisions or in using tribal lease 

forms that conform to the requirements 

of this part. 

Lease Requirements 

§ 162.411 How long may the term of a 

business lease run? 

(a) A business lease must provide for 

a definite term, state if there is an option 

to renew and, if so, provide for a 

definite term for the renewal period. 

Unless authorized by paragraph (b), a 

business lease may have an initial term 

not to exceed 25 year and one renewal 

period not to exceed 25 years. 

(b) If a Federal statute provides for a 

longer maximum term (e.g., 25 U.S.C. 

415(a) allows for a maximum term of 99 

years for certain tribes), the lease may 

provide for a primary term, and one 

renewal not to exceed 25 years, so long 

as the maximum term, including the 

renewal, does not exceed the maximum 

term established by statute. 

(c) The lease term, including any 

renewal, must be reasonable, given the: 

(1) Purpose of the lease; 

(2) Type of financing; and 

(3) Level of investment. 

(d) Where all of the trust or restricted 

interests in a tract are owned by a 

deceased Indian whose heirs and 

devisees have not yet been determined, 

the maximum term may not exceed two 

years. 

(e) The lease may not be extended by 

holdover. 

§ 162.412 What must the lease include if it 

contains an option to renew? 

(a) If the lease provides for an option 

to renew, the lease must specify: 

(1) The time and manner in which the 

option must be exercised or is 

automatically effective; 

(2) That confirmation of the renewal 

will be submitted to us; 

(3) Whether Indian landowner 

consent to the renewal is required; 

(4) That the lessee must provide 

notice to the Indian landowner and any 

mortgagees of the renewal; 

(5) The additional consideration, if 

any, that will be due upon the exercise 

of the option to renew or the 

commencement of the renewal term; 

(6) That any change in the terms of 

the lease will be considered an 

amendment subject to consent and BIA 

approval requirements pursuant to 

§ 162.444; and 

(7) Any other conditions for renewal 

(e.g., the lessee may not be in violation 

of the lease at the time of renewal). 


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(b) We must record any renewal of a 

lease in the Land Title and Records 

Office. 

§ 162.413 Are there mandatory provisions 

that a business lease must contain? 

(a) All business leases must identify: 

(1) The tract or parcel of land being 

leased; 

(2) The purpose of the lease and 

authorized uses of the leased premises; 

(3) The parties to the lease; 

(4) The term of the lease; 

(5) The owner being represented and 

the authority under which such action 

is being taken, where one executes a 

lease in a representative capacity; 

(6) The citation of the statute that 

authorizes our approval; 

(7) Who is responsible for 

constructing, owning, operating, 

maintaining, and managing 

improvements pursuant to § 162.415; 

(8) Payment requirements and late 

payment charges, including interest; 

(9) Due diligence requirements under 

§ 162.417 (unless the lease is for 

religious, educational, recreational, 

cultural, or other public purposes); 

(10) Insurance requirements under 

§ 162.437; and 

(11) Bonding requirements under 

§ 162.434. If a performance bond is 

required, the lease must state that the 

lessee must obtain the consent of the 

surety for any legal instrument that 

directly affects their obligations and 

liabilities. 

(b) All business leases must include 

the following provisions: 

(1) The obligations of the lessee and 

its sureties to the Indian landowners are 

also enforceable by the United States, so 

long as the land remains in trust or 

restricted status; 

(2) Nothing in the lease would 

prevent or delay termination of Federal 

trust responsibilities for the land during 

the lease’s term; 

(3) There must not be any unlawful 

conduct, creation of a nuisance, illegal 

activity, or negligent use or waste of the 

leased premises; 

(4) The lessee must comply with all 

applicable laws, ordinances, rules, 

regulations, and other legal 

requirements under § 162.013; 

(5) The lessee indemnifies and holds 

the United States and the Indian 

landowners harmless from any loss, 

liability, or damages resulting from the 

lessee’s use or occupation of the leased 

premises (this provision is not 

mandatory if the lessee would be 

prohibited by law from making such an 

agreement); 

(6) The lessee indemnifies the United 

States and the Indian landowners 

against all liabilities or costs relating to 

the use, handling, treatment, removal, 

storage, transportation, or disposal of 

hazardous materials, or the release or 

discharge of any hazardous material 

from the leased premises that occurs 

during the lease term, regardless of 

fault, unless the liability or cost arises 

from the gross negligence or willful 

misconduct of the Indian landowner 

(this provision is not mandatory if the 

lessee would be prohibited by law from 

making such an agreement); 

(7) In the event that historic 

properties, archeological resources, 

human remains, or other cultural items 

not previously reported are encountered 

during the course of any activity 

associated with this lease, all activity in 

the immediate vicinity of the properties, 

resources, remains, or items will cease 

and the lessee will contact BIA and the 

tribe that has jurisdiction over the land 

to determine how to proceed and 

appropriate disposition; 

(8) BIA has the right, at any 

reasonable time during the term of the 

lease and upon reasonable notice, to 

enter upon the leased premises for 

inspection; and 

(9) Unless otherwise indicated, this is 

a lease of the trust and restricted 

interests in the property described and 

is not a lease of any undivided fee 

interests. All rental payments by the 

lessee will be distributed to the trust 

and restricted landowners and life estate 

holders on trust and restricted land 

only. The lessee will be responsible for 

accounting to the owners of any fee 

interests that may exist in the property 

being leased. 

(c) We may treat any provision of a 

lease, sublease, amendment, 

assignment, or leasehold mortgage that 

is in violation of Federal law as a 

violation of the lease. 

§ 162.414 May improvements be made 

under a business lease? 

The lessee may construct 

improvements under a business lease if 

the business lease specifies, or provides 

for the development of: 

(a) A plan that describes the type and 

location of any improvements to be built 

by the lessee; and 

(b) A schedule for construction of the 

improvements. 

§ 162.415 How must a business lease 

address ownership of improvements? 

(a) A business lease must specify who 

will own any improvements the lessee 

builds during the lease term and may 

specify that any improvements the 

lessee builds may be conveyed to the 

Indian landowners during the lease 

term. In addition, the lease must 

indicate whether each specific 

improvement the lessee builds will, 

upon the expiration or termination of 

the lease: 

(1) Remain on the leased premises, in 

a condition satisfactory to the Indian 

landowners, and become the property of 

the Indian landowners; 

(2) Be removed within a time period 

specified in the lease, at the lessee’s 

expense, with the leased premises to be 

restored as close as possible to their 

condition before construction of such 

improvements; or 

(3) Be disposed of by other specified 

means. 

(b) A lease that requires the lessee to 

remove the improvements must also 

provide the Indian landowners with an 

option to take possession of and title to 

the improvements if the improvements 

are not removed within the specified 

time period. 

(c) Any permanent improvements on 

the leased land shall be subject to 25 

CFR 1.4 and, in addition, shall not be 

subject to any fee, tax, assessment, levy, 

or other such charge imposed by any 

State or political subdivision of a State, 

without regard to ownership of those 

improvements. Improvements may be 

subject to taxation by the Indian tribe 

with jurisdiction. 

§ 162.416 How will BIA enforce removal 

requirements in a business lease? 

We may take appropriate enforcement 

action in consultation with the tribe for 

tribal land or, where feasible, with 

Indian landowners for individually 

owned Indian land, to ensure removal of 

the improvements or restoration of the 

premises at the lessee’s expense. We 

may take such enforcement action after 

termination or expiration of the lease. 

We may collect and hold the 

performance bond until removal and 

restoration are completed. 

§ 162.417 What requirements for due 

diligence must a business lease include? 

(a) If improvements are to be built, the 

business lease must include due 

diligence requirements that require the 

lessee to complete construction of any 

improvements within the schedule 

specified in the lease. The lessee must 

provide the Indian landowners and BIA 

good cause as to the nature of any delay, 

the anticipated date of construction of 

facilities, and evidence of progress 

toward commencement of construction, 

if construction does not occur, or is not 

expected to be completed, within the 

time period specified in the lease. 

(b) Failure of the lessee to comply 

with the due diligence requirements of 

the lease is a violation of the lease and 

may lead to cancellation of the lease 

under § 162.464. 


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(c) BIA may waive the requirements 

in this section if such waiver is in the 

best interest of the Indian landowners. 

(d) The requirements of this section 

do not apply to leases for religious, 

educational, recreational, cultural, or 

other public purposes. 

§ 162.418 May a business lease allow 

compatible uses? 

A business lease may provide for the 

Indian landowner to use, or authorize 

others to use, the leased premises for 

other uses compatible with the purpose 

of the business lease and consistent 

with the terms of the business lease. 

Any such use or authorization by the 

Indian landowner will not reduce or 

offset the monetary compensation for 

the business lease. 

§ 162.419 How must a business lease 

describe the land? 

(a) A business lease must describe the 

leased premises by reference to an 

official or certified survey pursuant to 

§ 162.438(j) of this part. 

(b) If the tract is fractionated we will 

describe the undivided trust interest in 

the leased premises. 

Monetary Compensation Requirements 

§ 162.420 How much monetary 

compensation must be paid under a 

business lease? 

(a) A business lease of tribal land may 

allow for any payment amount 

negotiated by the tribe as long as the 

tribe provides the tribal authorization 

required by § 162.421(a). The tribe may 

request, in writing, that we require fair 

market rental, in which case we will 

determine fair market rental in 

accordance with § 162.422 and will 

approve the lease only if it requires 

payment of not less than fair market 

rental. Unless the tribe makes such a 

request, BIA will not require a valuation 

or appraisal or determine fair market 

rental, but instead will defer to the 

tribe’s determination that the negotiated 

compensation is in its best interest. 

(b) A business lease of individually 

owned Indian land must require 

payment of not less than fair market 

rental before any adjustments, based on 

a fixed amount, a percentage of the 

projected income, or some other 

method, unless paragraphs (1) or (2) of 

this section permit a lesser amount. The 

lease must establish how the fixed 

amount, percentage, or combination will 

be calculated and the frequency at 

which the payments will be made. 

(1) We may approve a lease of 

individually owned Indian land that 

provides for the payment of nominal 

compensation, or less than a fair market 

rental, if: 

(i) The Indian landowners execute a 

written waiver of the right to receive fair 

market rental; and 

(ii) We determine it is in the Indian 

landowners’ best interest, based on 

factors including, but not limited to: 

(A) The lessee is a member of the 

individual Indian landowner’s 

immediate family as defined in 

§ 162.003; 

(B) The lessee is a co-owner in the 

leased tract; 

(C) A special relationship or 

circumstances exist that we believe 

warrant approval of the lease; or 

(D) The lease is for religious, 

educational, recreational, cultural, or 

other public purposes. 

(2) We may approve a lease that 

provides for payment of less than a fair 

market rental during the predevelopment or construction periods, if 

we determine it is in the Indian 

landowners’ best interest. The lease 

must specify the amount of the 

compensation and the applicable 

periods. 

(3) Where the owners of the 

applicable percentage of interests under 

§ 162.011 of this part execute a business 

lease on behalf of all of the Indian 

landowners of a fractionated tract, the 

lease must provide that the nonconsenting Indian landowners, and 

those on whose behalf we have 

consented, receive a fair market rental. 

§ 162.421 Will BIA require a valuation to 

determine fair market rental for a business 

lease? 

(a) We will not require valuations or 

appraisals for negotiated business leases 

of tribal land, or of any undivided tribal 

interest in a fractionated tract, if the 

tribe submits a tribal authorization 

expressly stating that it: 

(1) Has negotiated compensation 

satisfactory to the tribe; 

(2) Waives valuation and appraisal; 

and 

(3) Has determined that accepting 

such negotiated compensation and 

waiving valuation and appraisal is in its 

best interest. 

(b) The tribe may request that BIA 

require a valuation or appraisal, in 

which case BIA must determine fair 

market rental in accordance with 

§ 162.422. 

(c) We may only waive the valuation 

requirement for business leases on 

individually owned Indian land if: 

(1) The lease is for religious, 

educational, recreational, cultural, or 

other public purposes; and 

(2) 100 percent of the Indian 

landowners submit to us a written 

request to waive the valuation 

requirement; and 

(3) We determine that the waiver is in 

the best interest of the Indian 

landowners, taking into consideration 

the landowners’ written request. 

(d) We have 30 days from receipt of 

the waiver request in paragraph (c) of 

this section to make a determination. 

Our determination whether to approve 

the request will be in writing and will 

state the basis for our approval or 

disapproval. If we fail to meet the 30- 

day deadline, the lessee or Indian 

landowners may take appropriate action 

under part 2 of this chapter. 

§ 162.422 What type of valuation may be 

used to determine fair market rental for a 

business lease? 

(a) We will use an appraisal to 

determine the fair market rental before 

we approve a business lease of 

individually owned Indian land, or at 

the request of the tribe for tribal land, 

unless we approve another type of 

valuation pursuant to paragraph (d). 

(b) We will either: 

(1) Prepare an appraisal; or 

(2) Use an approved appraisal from 

the Indian landowner or lessee. 

(c) We will approve an appraisal for 

use only if it: 

(1) Has been prepared in accordance 

with USPAP or a valuation method 

developed by the Secretary pursuant to 

25 U.S.C. 2214; and 

(2) Complies with Departmental 

policies regarding appraisals, including 

third-party appraisals. 

(d) Upon receipt of a tribal 

authorization, we may use some other 

type of valuation for a business lease on 

tribal land, if it conforms to USPAP or 

a valuation method developed by the 

Secretary pursuant to 25 U.S.C. 2214. 

§ 162.423 When are monetary 

compensation payments due under a 

business lease? 

(a) A business lease must specify the 

dates on which all payments are due. 

(b) Unless otherwise provided in the 

lease, payments may not be made or 

accepted more than one year in advance 

of the due date. 

§ 162.424 Must a business lease specify to 

whom monetary compensation payments 

may be made? 

(a) A business lease must specify 

whether the lessee will make payments 

directly to the Indian landowners (direct 

pay) or to us on their behalf. 

(b) The lessee may make payments 

directly to the Indian landowners whose 

trust accounts are unencumbered when 

there are 10 or fewer beneficial owners 

and 100 percent of the beneficial owners 

agree to receive payment directly from 

the lessee. 

(1) If the lease provides that the lessee 

will directly pay the Indian landowners, 


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the lease must also require that the 

lessee provide us with certification of 

payment. 

(2) When we consent on behalf of an 

Indian landowner, the lessee must make 

payment to us. 

(3) The lessee must send direct 

payments to the parties and addresses 

specified in the lease, unless the lessee 

receives notice of a change of ownership 

or address. 

(4) Unless otherwise provided in the 

lease, compensation payments may not 

be made payable directly to anyone 

other than the Indian landowners. 

(5) Direct payments must continue 

through the duration of the lease, except 

if: 

(i) 100 percent of the Indian 

landowners agree to suspend direct pay 

and provide us with documentation of 

their agreement, then the lessee must 

make all Indian landowners’ payments 

to us; or 

(ii) If any individual Indian 

landowner dies, is declared non compos 

mentis, becomes whereabouts unknown, 

or owes a debt resulting in a trust 

account encumbrance, then the lessee 

must make that individual Indian 

landowner’s payment to us. 

§ 162.425 What form of monetary 

compensation payment may be accepted 

under a business lease? 

(a) When payments are made directly 

to Indian landowners, the form of 

payment must be acceptable to the 

Indian landowners. 

(b) When payments are made to us, 

we will accept: 

(1) Money orders; 

(2) Certified checks; 

(3) Cashier’s checks; or 

(4) Electronic funds transfer 

payments. 

(c) We will not accept cash, personal 

checks, foreign currency, or third-party 

checks except for third-party checks 

from financial institutions. 

(d) The preferred method of payment 

is electronic funds transfer payments. 

§ 162.426 May the business lease provide 

for non-monetary or varying types of 

compensation? 

(a) With our approval, the lease may 

provide for: 

(1) Alternative forms of 

compensation, including but not limited 

to payments based on percentage of 

income or in-kind consideration; or 

(2) Varying types of compensation at 

specific stages during the life of the 

lease, including but not limited to fixed 

annual payments during construction 

and payments based on income during 

an operational period. 

(b) For individually owned land, we 

will approve alternative forms of 

compensation and varying types of 

compensation if we determine that it is 

in the best interest of the Indian 

landowners. For tribal land, we will 

defer to the tribe’s determination that 

the alternative forms of rental and 

varying types of consideration are in its 

best interest, if the tribe submits a 

signed certification stating that it has 

determined the alternative forms of 

rental and varying types of 

consideration to be in its best interest. 

§ 162.427 Will BIA notify a lessee when a 

payment is due under a business lease? 

Upon request of the Indian 

landowner, we may issue invoices to a 

lessee in advance of the dates on which 

payments are due under a business 

lease, but the lessee’s obligation to make 

such payments in a timely manner will 

not be excused if such invoices are not 

issued, delivered, or received. 

§ 162.428 Must a business lease provide 

for compensation reviews or adjustments? 

(a) A review of the adequacy of 

compensation must occur at least every 

fifth year, in the manner specified in the 

lease, unless the conditions in 

paragraph (b) of this section are met. 

The lease must specify: 

(1) When adjustments take effect; 

(2) Who is authorized to make 

adjustments; 

(3) What the adjustments are based 

on; and 

(4) How disputes arising from the 

adjustments are resolved. 

(b) A review of the adequacy of 

compensation is not required if: 

(1) The lease provides for automatic 

adjustments; or 

(2) We determine it is in the best 

interest of the Indian landowners not to 

require a review or automatic 

adjustment based on circumstances 

including, but not limited to, the 

following: 

(1) The lease provides for payment of 

less than fair market rental; 

(2) The lease is for religious, 

educational, recreational, cultural, or 

other public purposes; or 

(3) The lease provides for most or all 

of the compensation to be paid during 

the first five years of the lease term or 

prior to the date the review would be 

conducted. 

(c) When a review results in the need 

for adjustment of compensation, we 

must approve the adjustment and Indian 

landowners must consent to the 

adjustment in accordance with 

§ 162.011, unless otherwise provided in 

the lease. 

§ 162.429 What other types of payments 

are required under a business lease? 

(a) The lessee may be required to pay 

additional fees, taxes, and/or 

assessments associated with the use of 

the land, as determined by entities 

having jurisdiction, except as provided 

in § 162.415(c). The lessee must pay 

these amounts to the appropriate office. 

(b) If the leased premises are within 

an Indian irrigation project or drainage 

district, except as otherwise provided in 

part 171 of this chapter, the lessee must 

pay all operation and maintenance 

charges that accrue during the lease 

term. The lessee must pay these 

amounts to the appropriate office in 

charge of the irrigation project or 

drainage district. Failure to make such 

payments will be treated as a violation 

of the lease. 

(c) Where the property is subject to at 

least one other lease for another 

compatible use, the lessees may agree 

among themselves as to how to allocate 

payment of the Indian irrigation 

operation and maintenance charges. 

Bonding and Insurance 

§ 162.434 Must a lessee provide a 

performance bond for a business lease? 

(a) Except as provided in paragraph (f) 

of this section, the lessee must provide 

a performance bond in an amount 

sufficient to secure the contractual 

obligations including: 

(1) No less than the highest annual 

rental specified in the lease, if 

compensation is paid annually, or other 

amount established by BIA in 

consultation with the tribe for tribal 

land or, where feasible, with Indian 

landowners for individually owned 

Indian land, if the compensation is to be 

paid on a non-annual schedule; 

(2) The construction of any required 

improvements; 

(3) The operation and maintenance 

charges for any land located within an 

irrigation project; and 

(4) The restoration and reclamation of 

the leased premises, to their condition 

at the commencement of the lease term 

or some other specified condition. 

(b) The performance bond must be 

deposited with us and made payable 

only to us, and may not be modified 

without our approval. 

(c) The lease must provide that we 

may adjust security or performance 

bond requirements at any time to reflect 

changing conditions. 

(d) We may require that the surety 

provide any supporting documents 

needed to show that the performance 

bond will be enforceable, and that the 

surety will be able to perform the 

guaranteed obligations. 


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(e) The surety must provide notice to 

us at least 60 days before canceling a 

performance bond so that we may notify 

the lessee of its obligation to provide a 

substitute performance bond and 

require collection of the bond prior to 

the cancellation date. Failure to provide 

a substitute performance bond will be a 

violation of the lease. 

(f) We may waive the requirement for 

a performance bond if the lease is for 

religious, educational, recreational, 

cultural, or other public purposes, or 

upon the request of the Indian 

landowner, if a waiver is in the best 

interest of the Indian landowner. We 

may revoke the waiver and require a 

performance bond at any time if the 

waiver is no longer in the best interest 

of the Indian landowner. 

§ 162.435 What forms of performance 

bond may be accepted under a business 

lease? 

(a) We will only accept a performance 

bond in one of the following forms: 

(1) Certificates of deposit issued by a 

federally insured financial institution 

authorized to do business in the United 

States; 

(2) Irrevocable letters of credit issued 

by a federally insured financial 

institution authorized to do business in 

the United States; 

(3) Negotiable Treasury securities; or 

(4) Surety bond issued by a company 

approved by the U.S. Department of the 

Treasury. 

(b) All forms of performance bonds 

must: 

(1) Indicate on their face that BIA 

approval is required for redemption; 

(2) Be accompanied by a statement 

granting full authority to BIA to make an 

immediate claim upon or sell them if 

the lessee violates the lease; 

(3) Be irrevocable during the term of 

the performance bond; and 

(4) Be automatically renewable during 

the term of the lease. 

§ 162.436 What is the bond release 

process under a business lease? 

(a) Upon expiration, termination, or 

cancellation of the lease, the lessee may 

submit a written request for a 

performance bond release to BIA. 

(b) Upon receipt of a request under 

paragraph (a) of this section, BIA will 

confirm with the tribe, for tribal land or, 

where feasible, with the Indian 

landowners for individually owned 

Indian land, that the lessee has 

complied with all lease obligations, then 

release the performance bond to the 

lessee, unless we determine that the 

bond must be redeemed to fulfill the 

contractual obligations. 

§ 162.437 Must a lessee provide insurance 

for a business lease? 

Except as provided in paragraph (c) of 

this section, a lessee must provide 

insurance necessary to protect the 

interests of the Indian landowners and 

in the amount sufficient to protect all 

insurable improvements on the 

premises, unless otherwise provided in 

the lease. 

(a) Such insurance may include 

property, crop, liability and/or casualty 

insurance, depending on the Indian 

landowners’ interests to be protected. 

(b) Both the Indian landowners and 

the United States must be identified as 

additional insured parties. 

(c) We may waive the requirement for 

insurance upon the request of the Indian 

landowner, if a waiver is in the best 

interest of the Indian landowner, 

including if the lease is for less than fair 

market rental or nominal compensation. 

We may revoke the waiver and require 

insurance at any time if the waiver is no 

longer in the best interest of the Indian 

landowner. 

Approval 

§ 162.438 What documents must the 

parties submit to obtain BIA approval of a 

business lease? 

A lessee or the Indian landowner 

must submit the following documents to 

us to obtain BIA approval of a business 

lease: 

(a) A lease executed by the Indian 

landowner and the lessee that complies 

with the requirements of this part; 

(b) An appraisal or other valuation 

under § 162.421, if appropriate; 

(c) Organizational documents, 

certificates, filing records, and 

resolutions or other authorization 

documents, including evidence of the 

representative’s authority to execute a 

lease, if the lessee is a corporation, 

limited liability company, partnership, 

joint venture, or other legal entity, to 

show that the lease will be enforceable 

and that the legal entity is in good 

standing and authorized to conduct 

business in the jurisdiction where the 

land is located; 

(d) A performance bond, where 

required: 

(e) Statement from appropriate tribal 

authority that the proposed use is in 

conformance with applicable tribal law; 

(f) Environmental and archeological 

reports, surveys, and site assessments as 

needed to facilitate compliance with 

applicable Federal and tribal 

environmental and land use 

requirements; 

(g) A restoration and reclamation plan 

(and any subsequent modifications to 

the plan), if appropriate; 

(h) Documents that demonstrate the 

lessee’s technical capability to 

construct, operate, maintain, and 

terminate the proposed project and the 

lessee’s history in successfully 

designing, constructing, or obtaining the 

funding for a project similar to the 

proposed project, if appropriate; 

(i) A preliminary plan of development 

that describes the type and location of 

any improvements the lessee plans to 

construct and a schedule showing the 

tentative commencement and 

completion dates for those 

improvements, if appropriate; 

(j) An official or a certified survey of 

the leased premises that includes the 

legal description of the land 

encumbered by the lease and a 

description of each tract of trust or 

restricted land in the lease and the 

acreage of each. We will review the 

survey under the DOI Standards for 

Indian Trust Land Boundary Evidence; 

(k) Information to assist us in our 

evaluation of the factors in 25 U.S.C. 

415(a); and 

(l) Any additional documentation we 

determine to be reasonably necessary for 

approval. 

§ 162.439 What is the approval process for 

a business lease? 

(a) Before we approve a business 

lease, we must determine that the lease 

is in the best interest of the Indian 

landowners. In making that 

determination, we will: 

(1) Review the lease and supporting 

documents; 

(2) Identify potential environmental 

impacts and ensure compliance with all 

applicable environmental laws, land use 

laws, and ordinances; 

(3) Assure ourselves that adequate 

consideration has been given to the 

factors in 25 U.S.C. 415(a). 

(4) Require any lease modifications or 

mitigation measures necessary to satisfy 

any requirements including any other 

Federal or tribal land use requirements; 

and 

(5) If the lease is a negotiated lease, 

defer to the Indian landowners’ 

determination that the lease is in their 

best interest, to the maximum extent 

possible. 

(b) When we receive a business lease 

and all of the supporting documents 

that conform to this part, we will, 

within 60 days of the date of receipt of 

the documents at the appropriate BIA 

office, approve, disapprove, return the 

submission for revision, or notify the 

parties in writing that we need 

additional time to review the lease. Our 

letter notifying the parties that we need 

additional time to review the lease must 

identify our initial concerns and invite 


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the parties to respond within 15 days. 

We have 30 days from sending the 

notification to make a determination 

whether to approve or disapprove the 

sublease. 

(c) If we fail to the deadlines in this 

section, then the parties may take 

appropriate action under part 2 of this 

chapter. 

(d) Any lease approval or disapproval 

determination and the basis for the 

determination, along with notification 

of appeal rights under part 2 of this 

chapter, will be made in writing and 

will be sent to the parties to the lease. 

(e) We will provide approved 

business leases on tribal land to the 

lessee and provide a copy to the tribe. 

We will provide approved business 

leases on individually owned Indian 

land to the lessee, and make copies 

available to the Indian landowners upon 

written request. 

§ 162.440 When will a business lease be 

effective? 

(a) A business lease will be effective 

on the date on which we approve the 

lease, notwithstanding any appeal that 

may be filed under part 2 of this 

chapter. 

(b) The lease may specify a date on 

which the obligations between the 

parties to a business lease are triggered. 

Such date may be before or after the 

approval date under paragraph (a) of 

this section. 

§ 162.441 Must business lease documents 

be recorded? 

(a) A business lease, amendment, 

assignment, leasehold mortgage, and 

sublease must be recorded in our Land 

Titles and Records Office with 

jurisdiction over the leased land. 

(1) We will record the lease or other 

document immediately following our 

approval. 

(2) If our approval is not required, the 

parties must record the assignment or 

sublease in the Land Title and Records 

Office with jurisdiction over the leased 

land. 

(b) The tribe must record the 

following leases in the Land Title and 

Records Office with jurisdiction over 

the leased lands, even though BIA 

approval is not required: 

(1) Leases of tribal land a corporate 

entity leases to a third party under 25 

U.S.C. 477; and 

(2) Leases of tribal land under a 

special act of Congress authorizing 

leases without our approval under 

certain conditions. 

§ 162.442 What action may BIA take if a 

lease disapproval decision is appealed? 

(a) If a party appeals our decision to 

disapprove a lease, assignment, 

amendment, sublease or leasehold 

mortgage, then the official to whom the 

appeal is made may require the lessee 

to post an appeal bond in an amount 

necessary to protect the Indian 

landowners against financial losses and 

damage to trust resources likely to result 

from the delay caused by an appeal. The 

requirement to post an appeal bond will 

apply in addition to all of the other 

requirements in part 2 of this chapter. 

(b) The appellant may not appeal the 

appeal bond decision. The appellant 

may, however, request that the official 

to whom the appeal is made reconsider 

the bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

Amendments 

§ 162.443 May the parties amend a 

business lease? 

(a) The parties may amend a business 

lease by obtaining: 

(1) The lessee’s signature; 

(2) The Indian landowners’ consent 

pursuant to the requirements contained 

in § 162.444; and 

(3) BIA approval of the amendment 

under § 162.445 and § 162.446. 

(b) The parties may not amend a 

business lease if the lease expressly 

prohibits amendments. 

§ 162.444 What are the consent 

requirements for an amendment to a 

business lease? 

(a) The Indian landowners, or their 

representatives under § 162.012, must 

consent to an amendment in the same 

percentages and manner as a new 

business lease pursuant to § 162.011, 

unless the requirements in paragraphs 

(a)(1) or (a)(2) of this section are met. 

(1) The approved business lease 

establishes that individual Indian 

landowners are deemed to have 

consented where they do not object in 

writing to the amendment after a 

specified period of time following 

landowners’ receipt of the amendment. 

If the lease provides for deemed 

consent, it must require the parties to 

submit to us: A copy of the executed 

amendment or other documentation of 

the Indian landowners’ consent; proof of 

mailing of the amendment to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information for us to review. 

(2) The approved business lease 

authorizes one or more representatives 

to consent to an amendment on behalf 

of all Indian landowners. The lease may 

also designate us as the Indian 

landowners’ representative for the 

purposes of consenting to an 

amendment. 

(b) Unless specifically authorized in 

the lease, the written power of attorney, 

or court document, Indian landowners 

may not be deemed to have consented, 

and an Indian landowner’s designated 

representative may not negotiate or 

consent to an amendment that would: 

(1) Reduce the payment obligations or 

terms to the Indian landowners; 

(2) Increase or decrease the lease area; 

or 

(3) Terminate or change the term of 

the lease. 

§ 162.445 What is the approval process for 

an amendment to a business lease? 

We have 30 days from receipt of the 

executed amendment, proof of required 

consents, and required documentation 

to make a determination whether to 

approve the amendment or notify the 

parties in writing that we need 

additional time to review the 

amendment. 

(a) Our letter notifying the parties that 

we need additional time to review the 

amendment must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 

make a determination whether to 

approve or disapprove the amendment. 

(b) If we fail to send either a 

determination or a notification within 

30 days from receipt of required 

documents and completion of 

environmental reviews or 30 days from 

sending the notification, the amendment 

is deemed approved to the extent 

consistent with Federal law. We will 

retain our full enforcement authority for 

amendments that are deemed approved. 

(c) Our determination whether to 

approve the amendment will be in 

writing and will state the basis for our 

approval or disapproval. 

§ 162.446 How will BIA decide whether to 

approve an amendment to a business 

lease? 

(a) We may only disapprove a 

business lease amendment if: 

(1) The required consents have not 

been obtained from the parties to the 

lease and any mortgagees or sureties; 

(2) The lessee is in violation of the 

lease; or 

(3) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) We may not unreasonably 

withhold approval of an amendment. 

Assignments 

§ 162.447 May a lessee assign a business 

lease? 

(a) A lessee may assign a business 

lease by meeting the consent 


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requirements contained in § 162.448 

and obtaining our approval of the 

assignment under § 162.449 and 

§ 162.450, or by meeting the conditions 

in paragraphs (b) or (c) of this section, 

unless the lease expressly prohibits 

assignments. 

(b) Where provided in the lease, the 

lessee may assign the lease to the 

following without meeting consent 

requirements or obtaining BIA approval 

of the assignment, as long as the lessee 

notifies BIA of the assignment within 30 

days: 

(1) Not more than two distinct legal 

entities specified in the lease; or 

(2) The lessee’s wholly owned 

subsidiaries. 

(c) If a sale or foreclosure under an 

approved mortgage of the leasehold 

interest occurs and the mortgagee is the 

purchaser, the mortgagee/purchaser may 

assign the leasehold interest without 

meeting the consent requirements or 

obtaining BIA approval, as long as the 

assignee accepts and agrees in writing to 

be bound by all the terms and 

conditions of the lease. 

§ 162.448 What are the consent 

requirements for an assignment of a 

business lease? 

(a) The Indian landowners, or their 

representatives under § 162.012, must 

consent to an assignment of a business 

lease in the same percentages and 

manner as a new business lease 

pursuant to § 162.011, unless the 

requirements in paragraphs (a)(1) or 

(a)(2) of this section are met. 

(1) The approved business lease 

establishes that individual Indian 

landowners are deemed to have 

consented where they do not object in 

writing to the assignment after a 

specified period of time following 

landowners’ receipt of the assignment. If 

the lease provides for deemed consent, 

it must require the parties to submit to 

us: A copy of the executed assignment 

or other documentation of the Indian 

landowners’ consent; proof of mailing to 

any Indian landowners who are deemed 

to have consented; and any other 

pertinent information to us for review. 

(2) The approved business lease 

authorizes one or more representatives 

to consent to an assignment on behalf of 

all Indian landowners. The lease may 

also designate us as the Indian 

landowners’ representative for the 

purposes of consenting to an 

assignment. 

(b) The lessee must obtain the consent 

of the holders of any bonds or 

mortgages. 

§ 162.449 What is the approval process for 

an assignment of a business lease? 

(a) We have 30 days from receipt of 

the executed assignment, proof of 

required consents, and required 

documentation to make a determination 

whether to approve the assignment or 

notify the parties that we need 

additional information. Our 

determination whether to approve the 

assignment will be in writing and will 

state the basis for our approval or 

disapproval. 

(b) If we fail to meet the deadline in 

this section, the lessee or Indian 

landowners may take appropriate action 

under part 2 of this chapter. 

§ 162.450 How will BIA decide whether to 

approve an assignment of a business 

lease? 

(a) We may only disapprove an 

assignment of a business lease if: 

(1) The required consents have not 

been obtained from the parties to the 

lease or the lessee’s mortgagees or 

sureties; 

(2) The lessee is in violation of the 

lease; 

(3) The assignee does not agree to be 

bound by the terms of the lease; or 

(4) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(4) of this section, we may 

consider whether: 

(1) The value of any part of the leased 

premises not covered by the assignment 

would be adversely affected; and 

(2) If a performance bond is required, 

the assignee has bonded its performance 

and provided supporting documents 

that demonstrate that the lease will be 

enforceable against the assignee, and 

that the assignee will be able to perform 

its obligations under the lease or 

assignment. 

(c) We may not unreasonably 

withhold approval of an assignment. 

Subleases 

§ 162.451 May a lessee sublease a 

business lease? 

(a) A lessee may sublease a business 

lease by meeting the consent 

requirements contained in § 162.452 

and obtaining our approval of the 

sublease under § 162.453 and § 162.454, 

or by meeting the conditions in 

paragraph (b) of this section, unless the 

lease expressly prohibits subleases. 

(b) Where the sublease is part of a 

commercial development or residential 

development, the lessee may sublease 

without meeting consent requirements 

or obtaining BIA approval of the 

sublease, as long as: 

(1) The lease provides for subleasing 

without meeting consent requirements 

or obtaining BIA approval; 

(2) We have approved a general plan 

and rent schedule for the development; 

(3) We have approved a sublease form 

for use in the project; and 

(4) The parties provide BIA with a 

copy of the executed sublease within 30 

days. 

§ 162.452 What are the consent 

requirements for a sublease of a business 

lease? 

The Indian landowners must consent 

to a sublease of a business lease in the 

same percentages and manner as a new 

business lease under § 162.011, unless 

the requirements in paragraphs (a) or (b) 

of this section are met. 

(a) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the sublease 

after a specified period of time 

following landowners’ receipt of the 

sublease. If the lease provides for 

deemed consent, it must require the 

parties to submit to us: A copy of the 

executed sublease or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the sublease to any Indian landowners 

who are deemed to have consented; and 

any other pertinent information for us to 

review. 

(b) The lease authorizes one or more 

representatives to consent to a sublease 

on behalf of all Indian landowners. The 

lease may also designate us as the 

Indian landowners’ representative for 

the purposes of consenting to a 

sublease. 

§ 162.453 What is the approval process for 

a sublease of a business lease? 

BIA has 30 days from receipt of the 

executed sublease, proof of required 

consents, and required documentation 

to make a determination whether to 

approve the sublease or notify the 

parties in writing that we need 

additional time to review the sublease. 

(a) Our letter notifying the parties that 

we need additional time to review the 

sublease must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 

make a determination whether to 

approve or disapprove the sublease. 

(b) If we fail to send either a 

determination or a notification within 

30 days from receipt of required 

documents or 30 days from sending the 

notification, the sublease is deemed 

approved to the extent consistent with 

Federal law. We will retain our full 

enforcement authority for subleases that 

are deemed approved. 


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§ 162.454 How will BIA decide whether to 

approve a sublease of a business lease? 

(a) We may only disapprove a 

sublease of a business lease if: 

(1) The required consents have not 

been obtained from the parties to the 

lease and any mortgagees or sureties; 

(2) The lessee is in violation of the 

lease; 

(3) The lessee will not remain liable 

under the lease; 

(4) The sublessee does not agree to be 

bound by the terms of the lease; or 

(5) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding requirement 

by paragraph (a)(5) of this section, we 

will consider whether: 

(1) The value of any part of the leased 

premises not covered by the sublease 

would be adversely affected; and 

(2) If a performance bond is required 

by the sublease, the sublessee has 

bonded its performance and provided 

supporting documents that demonstrate 

that the lease will be enforceable by the 

lessee against the sublessee, and that the 

sublessee will be able to perform its 

obligations under the lease. 

(c) We may not unreasonably 

withhold approval of a sublease. 

Leasehold Mortgages 

§ 162.455 May a lessee mortgage a 

business lease? 

(a) A lessee may mortgage a business 

lease by meeting the consent 

requirements contained in § 162.456 

and obtaining our approval of the 

leasehold mortgage under § 162.457 and 

§ 162.458, unless the lease expressly 

prohibits leasehold mortgages. 

(b) Refer to § 162.447(c) for 

information on what happens if a sale 

or foreclosure under an approved 

mortgage of the leasehold interest 

occurs. 

§ 162.456 What are the consent 

requirements for a leasehold mortgage 

under a business lease? 

The Indian landowners, or their 

representatives under § 162.012, must 

consent to a leasehold mortgage under 

a business lease in the same percentages 

and manner as a new business lease 

under § 162.011, unless the 

requirements in paragraphs (a), (b), or 

(c) of this section are met. 

(a) The lease contains a general 

authorization for a leasehold mortgage 

and states what law would apply in case 

of foreclosure. 

(b) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the leasehold 

mortgage after a specified period of time 

following landowners’ receipt of the 

leasehold mortgage. If the lease provides 

for deemed consent, it must require the 

parties to submit to us: A copy of the 

executed leasehold mortgage or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the leasehold mortgage to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information for us to review. 

(c) The lease authorizes one or more 

representatives to consent to a leasehold 

mortgage on behalf of all Indian 

landowners. The lease may also 

designate us as the Indian landowners’ 

representative for the purposes of 

consenting to a leasehold mortgage. 

§ 162.457 What is the approval process for 

a leasehold mortgage under a business 

lease? 

(a) We have 30 days from receipt of 

the executed leasehold mortgage, proof 

of required consents, and required 

documentation to make a determination 

whether to approve the leasehold 

mortgage or notify the parties in writing 

that we need additional time to review 

the leasehold mortgage. Our 

determination whether to approve the 

leasehold mortgage will be in writing 

and will state the basis for our approval 

or disapproval. 

(b) If we fail to meet the deadline in 

this section, the lessee may take 

appropriate action under part 2 of this 

chapter. 

§ 162.458 How will BIA decide whether to 

approve a leasehold mortgage under a 

business lease? 

(a) We may only disapprove a 

leasehold mortgage under a business 

lease if: 

(1) The required consents have not 

been obtained from the parties to the 

lease and the lessee’s sureties; 

(2) The leasehold mortgage covers 

more than the lessee’s interest in the 

leased premises or encumbers unrelated 

collateral; or 

(3) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(3) of this section, we will 

consider whether: 

(1) The lessee’s ability to comply with 

the lease would be adversely affected by 

any new loan obligations; 

(2) Any lease provisions would be 

modified by the leasehold mortgage; 

(3) The remedies available to us or to 

the Indian landowners would be limited 

(beyond any additional notice and cure 

rights to be afforded to the mortgagee), 

in the event of a lease violation; and 

(4) Any rights of the Indian 

landowners would be subordinated or 

adversely affected in the event of a loan 

default by the lessee. 

(c) We may not unreasonably 

withhold approval of a leasehold 

mortgage. 

Effectiveness, Compliance, and 

Enforcement 

§ 162.459 When will an amendment, 

assignment, sublease, or leasehold 

mortgage under a business lease be 

effective? 

(a) An amendment, assignment, 

sublease, or leasehold mortgage under a 

business lease will be effective when 

approved, notwithstanding any appeal 

that may be filed under part 2 of this 

chapter, unless approval is not required 

under § 162.008(b), § 162.447(b), or 

§ 162.451(b), or the conditions in 

paragraph (b) of this section apply. We 

will provide the approved documents to 

the party requesting approval and, upon 

request, to the other parties to the 

agreement. 

(b) If the amendment or sublease was 

deemed approved pursuant to 

§ 162.445(b) or § 162.453(b), the 

amendment or sublease becomes 

effective 45 days from the date the 

parties mailed or delivered the 

document to us for our review. 

(c) An assignment or sublease that 

does not require landowner consent or 

BIA approval shall be effective upon 

execution by the parties. 

§ 162.460 What happens if BIA 

disapproves an amendment, assignment, 

sublease, or leasehold mortgage under a 

business lease? 

If we disapprove an amendment, 

assignment, sublease, or leasehold 

mortgage of a business lease, we will 

notify the parties immediately and 

advise them of their right to appeal the 

decision under part 2 of this chapter. 

§ 162.461 May BIA investigate compliance 

with a business lease? 

(a) We may enter the leased premises 

at any reasonable time, upon reasonable 

notice, to protect the interests of the 

Indian landowners and to determine if 

the lessee is in compliance with the 

requirements of the lease. 

(b) If the Indian landowner notifies us 

that a specific lease violation has 

occurred, we will promptly initiate an 

appropriate investigation. 

§ 162.462 May a business lease provide for 

negotiated remedies in the event of a 

violation? 

(a) A business lease of tribal land may 

provide either or both parties with 

negotiated remedies in the event of a 

lease violation, including, but not 


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limited to, the power to terminate the 

lease. If the lease provides the parties 

with the power to terminate the lease, 

BIA approval of the termination is not 

required and the termination is effective 

without BIA cancellation. The parties 

must notify us of the termination so that 

we may record it in the Land Titles and 

Records Office. 

(b) A business lease of individually 

owned Indian land may provide either 

or both parties with negotiated 

remedies, so long as the lease also 

specifies the manner in which those 

remedies may be exercised by or on 

behalf of the applicable percentage of 

Indian landowners under § 162.011 of 

this part. If the lease provides the 

parties with the power to terminate the 

lease, BIA concurrence with the 

termination is required to ensure that 

the Indian landowners of the applicable 

percentage of interests have consented. 

BIA will record the termination in the 

Land Titles and Records Office. 

(c) The parties must notify any surety 

or mortgagee of a termination of a 

business lease. 

(d) Negotiated remedies may apply in 

addition to, or instead of, the 

cancellation remedy available to us, as 

specified in the lease. 

(e) A business lease may provide for 

lease disputes to be resolved in tribal 

court or any other court of competent 

jurisdiction, by a tribal governing body 

in the absence of a tribal court, or 

through an alternative dispute 

resolution method. We may not be 

bound by decisions made in such 

forums, but we will defer to ongoing 

proceedings, as appropriate, in deciding 

whether to exercise any of the remedies 

available to us. 

§ 162.463 What will BIA do about a 

violation of a business lease? 

(a) If we determine there has been a 

violation of the conditions of a business 

lease, other than a violation of payment 

provisions covered by paragraph (b) of 

this section, we will promptly send the 

lessee and its sureties and any 

mortgagee a notice of violation by 

certified mail, return receipt requested. 

(1) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to Indian 

landowners for individually owned 

Indian land. 

(2) Within 10 business days of the 

receipt of a notice of violation, the 

lessee must: 

(i) Cure the violation and notify us in 

writing that the violation has been 

cured; 

(ii) Dispute our determination that a 

violation has occurred; or 

(iii) Request additional time to cure 

the violation. 

(3) If a violation is determined to have 

occurred, we will make a reasonable 

attempt to notify the Indian landowners. 

(4) We may order the lessee to stop 

work. 

(b) A lessee’s failure to pay 

compensation in the time and manner 

required by a residential lease is a 

violation of the lease, and we will issue 

a notice of violation in accordance with 

this paragraph. 

(1) We will send the lessees and its 

sureties a notice of violation by certified 

mail, return receipt requested: 

(i) Promptly following the date on 

which the payment was due, if the lease 

requires that payments be made to us; 

or 

(ii) Promptly following the date on 

which we receive actual notice of nonpayment from the Indian landowners, if 

the lease provides for payment directly 

to the Indian landowners. 

(2) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to the 

Indian landowners for individually 

owned Indian land. 

(3) The lessee must provide adequate 

proof of payment as required in the 

notice of violation. 

(c) The lessee and its sureties will 

continue to be responsible for the 

obligations contained in the lease until 

the lease is terminated, cancelled, or 

expires. 

§ 162.464 What will BIA do if the lessee 

does not cure a violation of a business 

lease on time? 

(a) If the lessee does not cure a 

violation of a business lease within the 

requisite time period, or provide 

adequate proof of payment as required 

in the notice of violation, we will 

consult with the tribe for tribal land or, 

where feasible, Indian landowners for 

individually owned Indian land, and 

determine whether: 

(1) We should cancel the lease; 

(2) The Indian landowners wish to 

invoke any remedies available to them 

under the lease; 

(3) We should invoke other remedies 

available under the lease or applicable 

law, including, collection on any 

available performance bond or, for 

failure to pay compensation, referral of 

the debt to the Department of the 

Treasury for collection; or 

(4) The lessee should be granted 

additional time in which to cure the 

violation. 

(b) We may take action to recover 

unpaid compensation and any 

associated late payment charges. 

(1) We do not have to cancel the lease 

or give any further notice to the lessee 

before taking action to recover unpaid 

compensation. 

(2) We may still take action to recover 

any unpaid compensation if we cancel 

the lease. 

(c) If we decide to cancel the lease, we 

will send the lessee and its sureties and 

any mortgagees a cancellation letter by 

certified mail, return receipt requested, 

within 5 business days of our decision. 

We will send a copy of the cancellation 

letter to the tribe for tribal land, and will 

provide Indian landowners for 

individually owned Indian land with 

actual or constructive notice of the 

cancellation. The cancellation letter 

will: 

(1) Explain the grounds for 

cancellation; 

(2) If applicable, notify the lessee of 

the amount of any unpaid compensation 

or late payment charges due under the 

lease; 

(3) Notify the lessee of their right to 

appeal under part 2 of this chapter, 

including the possibility that the official 

to whom the appeal is made may 

require the lessee to post an appeal 

bond; 

(4) Order the lessee to vacate the 

property within 31 days of the date of 

receipt of the cancellation letter, if an 

appeal is not filed by that time; and 

(5) Require any other action BIA 

deems necessary to protect the Indian 

landowners. 

(d) We may invoke any other 

remedies available to us under the lease, 

including collecting on any available 

performance bond, and the Indian 

landowner may pursue any available 

remedies under tribal law. 

§ 162.465 Will late payment charges or 

special fees apply to delinquent payments 

due under a business lease? 

(a) Late payment charges will apply as 

specified in the lease. The failure to pay 

such amounts will be treated as a lease 

violation. 

(b) The following special fees may be 

assessed to cover administrative costs 

incurred by the United States in the 

collection of the debt, if compensation 

is not paid in the time and manner 

required, in addition to the late payment 

charges that must be paid to the Indian 

landowners under the lease: 

The lessee will 

pay . . . For . . . 

(a) $50.00 .................. Dishonored checks. 

(b) $15.00 .................. Processing of each 

notice or demand 

letter. 

(c) 18 percent of balance due.Treasury processing 

following referral 

for collection of delinquent debt. 


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§ 162.466 How will payment rights relating 

to a business lease be allocated between 

the Indian landowners and the lessee? 

The business lease may allocate rights 

to payment for insurance proceeds, 

trespass damages, condemnation 

awards, settlement funds, and other 

payments between the Indian 

landowners and the lessee. If not 

specified in the insurance policy, order, 

award, judgment, or other document 

including the lease, the Indian 

landowners or lessees will be entitled to 

receive such payments. 

§ 162.467 When will a cancellation of a 

business lease be effective? 

(a) A cancellation involving a 

business lease will not be effective until 

31 days after the lessee receives a 

cancellation letter from us, or 41 days 

from the date we mailed the letter, 

whichever is earlier. 

(b) The cancellation decision will be 

stayed if an appeal is filed unless the 

cancellation is made immediately 

effective under part 2 of this chapter. 

While a cancellation decision is stayed, 

the lessee must continue to pay 

compensation and comply with the 

other terms of the lease. 

§ 162.468 What will BIA do if a lessee 

remains in possession after a business 

lease expires or is cancelled? 

If a lessee remains in possession after 

the expiration or cancellation of a 

business lease, we may treat the 

unauthorized possession as a trespass 

under applicable law. Unless the 

applicable percentage of Indian 

landowners under § 162.011 have 

notified us in writing that they are 

engaged in good faith negotiations with 

the holdover lessee to obtain a new 

lease, we may take action to recover 

possession on behalf of the Indian 

landowners, and pursue any additional 

remedies available under applicable 

law, such as forcible entry and detainer 

action. 

§ 162.469 Will BIA regulations concerning 

appeal bonds apply to cancellation 

decisions involving business leases? 

(a) Except as provided in paragraph 

(b) of this section, the appeal bond 

provisions in part 2 of this chapter will 

apply to appeals from lease cancellation 

decisions. 

(b) The lessee may not appeal the 

appeal bond decision. The lessee may, 

however, request that the official to 

whom the appeal is made reconsider the 

appeal bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

§ 162.470 When will BIA issue a decision 

on an appeal from a business leasing 

decision? 

BIA will issue a decision on an appeal 

from a business leasing decision within 

60 days of receipt of all pleadings. 

§ 162.471 What happens if the lessee 

abandons the leased premises? 

If a lessee abandons the leased 

premises, we will treat the 

abandonment as a violation of the lease. 

The lease may specify a period of nonuse after which the lease premises will 

be considered abandoned. 

14. Remove subpart F in its entirety 

(§ 162.600–§ 162.623) and redesignate 

§ 162.500–§ 162.503 in subpart E as 

§ 162.600–§ 162.603 in subpart F under 

the following heading: 

Subpart F—Special Requirements for 

Certain Reservations 

15. Add a new subpart E to read as 

follows: 

Subpart E—Wind and Solar Resource 

Leases 

General Provisions Applicable to Both 

WEELs and WSR Leases 

Sec. 

162.501 What types of leases does this 

subpart cover? 

162.502 Who must obtain a WEEL or WSR 

lease? 

162.503 Is there a model WEEL or WSR 

lease? 

WEELs 

162.511 What is the purpose of a WEEL? 

162.512 How long may the term of a WEEL 

run? 

162.513 Are there mandatory provisions a 

WEEL must contain? 

162.514 May improvements be made under 

a WEEL? 

162.515 How must a WEEL address 

ownership of improvements? 

162.516 How will BIA enforce removal 

requirements in a WEEL? 

162.517 What requirements for due 

diligence must a WEEL include? 

162.518 May a WEEL allow for compatible 

uses by the Indian landowner? 

162.519 Who owns the energy resource 

information obtained under the WEEL? 

162.520 May a lessee incorporate its WEEL 

analyses into its WSR lease analyses? 

162.521 May a WEEL contain an option for 

a lessee to enter into a WSR lease? 

162.522 How may a lessee obtain an 

extension of an option period? 

Monetary Compensation Requirements 

162.523 How much compensation must be 

paid under a WEEL? 

162.524 Will BIA require a valuation for a 

WEEL? 

Bonding and Insurance 

162.525 Must a lessee provide a 

performance bond for a WEEL? 

162.526 Reserved. 

162.527 Must a lessee provide insurance for 

a WEEL? 

Approval 

162.528 What documents must the parties 

submit to obtain BIA approval of a 

WEEL? 

162.529 What is the approval process for a 

WEEL? 

Administration 

162.530 May the parties amend, assign, 

sublease, or mortgage a WEEL? 

162.531 Reserved. 

Compliance and Enforcement 

162.532 How does BIA ensure compliance 

with a WEEL? 

162.533 What will BIA do if a lessee does 

not cure a violation of a WEEL on time? 

162.534 Under what circumstance may a 

WEEL be terminated or cancelled? 

WSR Leases 

162.535 What is the purpose of a WSR 

lease? 

162.536 Must I obtain a WEEL before 

obtaining a WSR lease? 

162.537 How long may the term of a WSR 

lease run? 

163.538 What must the lease include if it 

contains an option to renew? 

162.539 Are there mandatory provisions a 

WSR lease must contain? 

162.540 May improvements be made under 

a WSR lease? 

162.541 How must a WSR lease address 

ownership of improvements? 

162.542 How will BIA enforce removal 

requirements in a WSR lease? 

162.543 What requirements for due 

diligence must a WSR lease include? 

162.544 May a WSR lease allow compatible 

uses? 

162.545 How must a WSR lease describe 

the land? 

Monetary Compensation Requirements 

162.546 How much monetary compensation 

must be paid under a WSR lease? 

162.547 Will BIA require a valuation to 

determine fair market rental of a WSR 

lease? 

162.548 What type of valuation may be 

used to determine fair market rental for 

a WSR lease? 

162.549 When are monetary compensation 

payments due under a WSR lease? 

162.550 Must a WSR lease specify to whom 

monetary compensation payments may 

be made? 

162.551 What form of monetary 

compensation payment may be accepted 

under a WSR lease? 

162.552 May the WSR lease provide for 

non-monetary or varying types of 

compensation? 

162.553 Will BIA notify a lessee when a 

payment is due under a WSR lease? 

162.554 Must a WSR lease provide for 

compensation reviews or adjustments? 

162.555 What other types of payments are 

required under a WSR lease? 

Bonding and Insurance 

162.559 Must a lessee provide a 

performance bond for a WSR lease? 


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162.560 What forms of performance bond 

may be accepted under a WSR lease? 

162.561 What is the bond release process 

under a WSR lease? 

162.562 Must a lessee provide insurance for 

a WSR lease? 

Approval 

162.563 What documents must the parties 

submit to obtain BIA approval of a WSR 

lease? 

162.564 What is the approval process for a 

WSR lease? 

162.565 When will a WSR lease be 

effective? 

162.566 Must WEEL and WSR lease 

documents be recorded? 

162.567 What action may BIA take if a lease 

disapproval decision is appealed? 

Amendments 

162.568 May the parties amend a WSR 

lease? 

162.569 What are the consent requirements 

for an amendment to a WSR lease? 

162.570 What is the approval process for an 

amendment to a WSR lease? 

162.571 How will BIA decide whether to 

approve an amendment to a WSR lease? 

Assignments 

162.572 May a lessee assign a WSR lease? 

162.573 What are the consent requirements 

for an assignment of a WSR lease? 

162.574 What is the approval process for an 

assignment of a WSR lease? 

162.575 How will BIA decide whether to 

approve an assignment of a WSR lease? 

Subleases 

162.576 May a lessee sublease a WSR lease? 

162.577 What are the consent requirements 

for a sublease of a WSR lease? 

162.578 What is the approval process for a 

sublease of a WSR lease? 

162.579 How will BIA decide whether to 

approve a sublease of a WSR lease? 

Leasehold Mortgages 

162.580 May a lessee mortgage a WSR 

lease? 

162.581 What are the consent requirements 

for a leasehold mortgage of a WSR lease? 

162.582 What is the approval process for a 

leasehold mortgage of a WSR lease? 

162.583 How will BIA decide whether to 

approve a leasehold mortgage of a WSR 

lease? 

Effectiveness, Compliance, and Enforcement 

162.584 When will an amendment, 

assignment, sublease, or leasehold 

mortgage under a WSR lease be effective? 

162.585 What happens if BIA disapproves 

an amendment, assignment, sublease, or 

leasehold mortgage of a WSR lease? 

162.586 May BIA investigate compliance 

with a WSR lease? 

162.587 May a WSR lease provide for 

negotiated remedies in the event of a 

violation? 

162.588 What will BIA do about a violation 

of a WSR lease? 

162.589 What will BIA do if a lessee does 

not cure a violation of a WSR lease on 

time? 

162.590 Will late payment charges or 

special fees apply to delinquent 

payments due under a WSR lease? 

162.591 How will payment rights relating to 

WSR leases be allocated between the 

Indian landowners and the lessee? 

162.592 When will a cancellation of a WSR 

lease be effective? 

162.593 What will BIA do if a lessee 

remains in possession after a WSR lease 

expires or is cancelled? 

162.594 Will BIA regulations concerning 

appeal bonds apply to cancellation 

decisions involving WSR leases? 

162.595 When will BIA issue a decision on 

an appeal from a WSR leasing decision? 

162.596 What happens if the lessee 

abandons the leased premises? 

Subpart E—Wind and Solar Resource 

Leases 

General Provisions Applicable to 

WEELs and WSR Leases 

§ 162.501 What types of leases does this 

subpart cover? 

(a) This subpart covers: 

(1) Wind energy evaluation leases 

(WEELs), which are short-term leases 

that authorize possession of Indian land 

for the purpose of installing, operating, 

and maintaining instrumentation, and 

associated infrastructure, such as 

meteorological towers, to evaluate wind 

resources for electricity generation; and 

(2) Wind and solar resource (WSR) 

leases, which are leases that authorize 

possession of Indian land for the 

purpose of installing, operating, and 

maintaining instrumentation, facilities, 

and associated infrastructure, such as 

wind turbines and solar panels, to 

harness wind and/or solar energy to 

generate and supply electricity: 

(i) For resale on a for-profit or nonprofit basis; 

(ii) To a utility grid serving the public 

generally; or 

(iii) To users within the local 

community (e.g., on and adjacent to a 

reservation). 

(b) If the generation of electricity is 

solely to support a use approved under 

subpart B, Agricultural Leases; subpart 

C, Residential Leases; or subpart D 

Business Leases (including religious, 

educational, recreational, cultural, or 

other public purposes), for the same 

parcel of land, then the installation, 

operation, and maintenance of 

instrumentation, facilities, and 

associated infrastructure are governed 

by subpart B, C, or D, as appropriate. 

§ 162.502 Who must obtain a WEEL or 

WSR lease? 

(a) Except as provided in § 162.008(b) 

and 162.501, anyone seeking to possess 

Indian land to conduct activities 

associated with the evaluation of wind 

resources must obtain a WEEL. 

(b) Except as provided in § 162.008(b) 

and 162.501, anyone seeking to possess 

Indian land to conduct activities 

associated with the development of 

wind and/or solar resources must obtain 

a WSR lease. 

(c) A tribe that conducts wind and 

solar resource activities on its tribal 

land does not need a WEEL or WSR 

under this subpart. 

§ 162.503 Is there a model WEEL or WSR 

lease? 

There is no model WEEL or WSR 

lease because of the need for flexibility 

in negotiating and writing WEELs and 

WSR leases; however, we may provide 

other guidance, such as checklists and 

a sample lease to assist in the lease 

negotiation process. Additionally, we 

may assist the Indian landowners, upon 

their request, in developing appropriate 

lease provisions or in using tribal lease 

forms that conform to the requirements 

of this part. 

WEELs 

§ 162.511 What is the purpose of a WEEL? 

A WEEL is a short-term lease that 

allows the lessee to use trust or 

restricted lands for the purpose of 

evaluating wind resources. The lessee 

may use information collected under the 

WEEL to assess the potential for wind 

energy development, and determine 

future placement and type of wind 

energy technology to use in developing 

the energy resource potential of the 

leased area. 

§ 162.512 How long may the term of a 

WEEL run? 

(a) A WEEL must provide for a 

definite term, state if there is an option 

to renew and, if so, provide for a 

definite term for the renewal period. 

WEELs are for project evaluation 

purposes, and therefore may have: 

(1) An initial term that is no longer 

than 3 years; and 

(2) One renewal period not to exceed 

3 years. 

(b) The exercise of the option to 

renew must be in writing and the WEEL 

must specify: 

(1) The time and manner in which the 

option must be exercised; and 

(2) Additional consideration, if any, 

that will be due upon the exercise of the 

option to renew or the commencement 

of the renewal term. 

§ 162.513 Are there mandatory provisions 

a WEEL must contain? 

(a) All WEELs must identify: 

(1) The tract or parcel of land being 

leased; 

(2) The purpose of the WEEL and 

authorized uses of the leased premises; 


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(3) The parties to the WEEL; 

(4) The term of the WEEL; 

(5) The owner being represented and 

the authority under which such action 

is being taken, where one executes the 

WEEL in a representative capacity; 

(6) The citation of the statute that 

authorizes our approval; 

(7) Who is responsible for 

constructing, owning, operating, 

maintaining, and managing 

improvements, pursuant to § 162.515; 

(8) Payment requirements and late 

payment charges, including interest; 

and 

(9) Due diligence requirements, 

pursuant to § 162.517; 

(b) All WEELs must include the 

provisions: 

(1) There must not be any unlawful 

conduct, creation of a nuisance, illegal 

activity, or negligent use or waste of 

leased premises; 

(2) The obligations of the lessee and 

its sureties to the Indian landowners are 

also enforceable by the United States, so 

long as the land remains in trust or 

restricted status; 

(3) Nothing in the lease would 

prevent or delay termination of Federal 

trust responsibilities for the land during 

the lease’s term; 

(4) The lessee must comply with all 

applicable laws, ordinances, rules, 

regulations, and other legal 

requirements under § 162.013; 

(5) The lessee indemnifies and holds 

the United States and the Indian 

landowners harmless from any loss, 

liability, or damages resulting from the 

lessee’s use of the leased premises, 

unless the lessee would be prohibited 

by law from making such an agreement; 

(6) In the event that historic 

properties, archeological resources, 

human remains, or other cultural items, 

not previously reported are encountered 

during the course of any activity 

associated with this lease, all activity in 

the immediate vicinity of the properties, 

resources, remains, or items will cease, 

and the lessee will contact BIA and the 

tribe that has jurisdiction to determine 

how to proceed and appropriate 

disposition; and 

(7) BIA has the right, at any 

reasonable time during the term of the 

lease, and upon reasonable notice, to 

enter upon the leased premises for 

inspection. 

§ 162.514 May improvements be made 

under a WEEL? 

(a) A WEEL anticipates the 

installation of facilities and associated 

infrastructure of a size and magnitude 

necessary for evaluation of wind 

resource capacity and potential effects 

of development. These facilities and 

associated infrastructure are considered 

improvements. An equipment 

installation plan must be submitted 

with the lease pursuant to § 162.528(f). 

(b) If any of the following changes are 

made to the equipment installation 

plan, the Indian landowners must 

approve the revised plan and the lessee 

must provide a copy of the revised plan 

to BIA: 

(1) Location of improvements; 

(2) Type of improvements; or 

(3) Delay of 90 days or more in any 

phase of development. 

§ 162.515 How must a WEEL address 

ownership of improvements? 

(a) A WEEL must specify who will 

own any improvements the lessee 

installs during the lease term. In 

addition, the WEEL must indicate 

whether any improvements the lessee 

installs: 

(1) Will remain on the premises upon 

expiration or termination of the lease 

whether or not there is conversion of the 

WEEL to a WSR lease, in a condition 

satisfactory to the Indian landowners; 

(2) May be conveyed to the Indian 

landowners during the WEEL term; 

(3) Will be removed within a time 

period specified in WEEL, at the lessee’s 

expense, with the leased premises to be 

restored as close as possible to their 

condition before installation of such 

improvements; or 

(4) Will be disposed of by other 

specified means. 

(b) A WEEL that requires the lessee to 

remove the improvements must also 

provide the Indian landowners with an 

option to take possession and title to the 

improvements if the improvements are 

not removed within the specified time 

period. 

(c) Any permanent improvements on 

the leased land shall be subject to 25 

CFR 1.4 and, in addition, shall not be 

subject to any fee, tax, assessment, levy, 

or other such charge imposed by any 

State or political subdivision of a State, 

without regard to ownership of those 

improvements. Improvements may be 

subject to taxation by the Indian tribe 

with jurisdiction. 

§ 162.516 How will BIA enforce removal 

requirements in a WEEL? 

We may take appropriate enforcement 

action in consultation with the tribe for 

tribal land or, where feasible, Indian 

landowners for individually owned 

Indian land, to ensure removal of the 

improvements or restoration of the 

premises at the lessee’s expense. We 

may take such enforcement action after 

termination or expiration of the WEEL. 

§ 162.517 What requirements for due 

diligence must a WEEL include? 

(a) A WEEL must require the lessee to 

undertake the following due diligence: 

(1) Install testing and monitoring 

facilities within 12 months after the 

effective date of the WEEL or other 

period designated in the WEEL and 

consistent with the plan of 

development; and 

(2) Provide the Indian landowners 

and BIA with an explanation as to good 

cause for any delay, the anticipated date 

of installation of facilities, and evidence 

of progress toward installing or 

completing testing and monitoring 

facilities, if installation does not occur, 

or is not expected to be completed, 

within the time period specified in 

paragraph (a)(1) of this section. 

(b) Failure of the lessee to comply 

with the due diligence requirements of 

the WEEL is a violation of the WEEL 

and may lead to cancellation of the 

WEEL and the requirement that the 

lessee transfer of ownership of energy 

resource information collected under 

the WEEL to the Indian landowner 

under § 162.519. 

§ 162.518 May a WEEL allow for 

compatible uses by the Indian landowner? 

The WEEL may provide for the Indian 

landowner to use the leased premises 

for other noncompeting uses compatible 

with the purpose of the WEEL. This may 

include the right to lease the premises 

for other compatible purposes. Any 

such use by the Indian landowner will 

not reduce or offset the monetary 

compensation for the WEEL. 

§ 162.519 Who owns the energy resource 

information obtained under the WEEL? 

(a) The WEEL must specify the 

ownership of any energy resource 

information the lessee obtains during 

the WEEL term. 

(b) Unless otherwise specified in the 

WEEL, the energy resource information 

the lessee obtains through the leased 

activity becomes the property of Indian 

landowner at the termination or 

expiration of the WEEL or upon failure 

by the lessee to diligently install testing 

and monitoring facilities on the leased 

premises in accordance with § 162.517. 

(c) BIA will keep confidential any 

information it is provided that is 

marked confidential or proprietary and 

that is exempt from public release, to 

the extent allowed by law. 

§ 162.520 May a lessee incorporate its 

WEEL analyses into its WSR lease 

analyses? 

Any analyses a lessee uses to bring a 

WEEL activity into compliance with 

applicable laws, ordinances, rules, 

regulations under § 162.013 and any 


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other legal requirements may be 

incorporated by reference, as 

appropriate, into the analyses of a 

proposed WSR lease. 

§ 162.521 May a WEEL contain an option 

for the lessee to enter into a WSR lease? 

(a) A WEEL may provide for an option 

period following the expiration of the 

WEEL term during which time the 

lessee and the Indian landowner have 

the option to enter into a WSR lease if: 

(1) The option period is no more than 

3 years, except as provided in § 162.522; 

(2) The intent to install energy 

resource development facilities is stated 

at the time of the initial WEEL 

application; 

(3) The WSR lease will be limited to 

the land covered by the WEEL, or a 

portion thereof; 

(4) The WEEL imposes due diligence 

requirements on the lessee; 

(5) The WEEL states the 

circumstances in which the option 

period may be terminated; and 

(6) The WSR lease will be the direct 

result of energy resource information 

gathered from the WEEL activities and 

associated data. 

(b) Our approval of a WEEL that 

contains an option to enter into a WSR 

lease does not guarantee or imply our 

approval of any WSR lease. 

§ 162.522 How may a lessee obtain an 

extension of an option period? 

(a) A lessee may request extension of 

the option period for a term of no more 

than 3 years. 

(b) We will approve the extension if: 

(1) The parties agree in writing to the 

extension and have already submitted a 

proposed WSR lease to us for approval; 

and 

(2) The extension is necessary for us 

to complete the lease approval process. 

Monetary Compensation Requirements 

§ 162.523 How much compensation must 

be paid under a WEEL? 

(a) The WEEL must state how much 

compensation will be paid. 

(b) A WEEL must specify the date on 

which compensation will be due. 

(c) Failure to make timely payments is 

a violation of the WEEL and may lead 

to cancellation of the WEEL. 

(d) The lease compensation 

requirements of §§ 162.549 through 

162.555, also apply to WEELs. 

§ 162.524 Will BIA require a valuation for a 

WEEL? 

BIA will not require a valuation for a 

WEEL. 

Bonding and Insurance 

§ 162.525 Must a lessee provide a 

performance bond for a WEEL? 

The lessee is not required to provide 

a performance bond for a WEEL. 

§ 162.526 [Reserved]. 

§ 162.527 Must a lessee provide insurance 

for a WEEL? 

Except as provided in paragraph (d) of 

this section, a lessee must provide 

insurance necessary to protect the 

interests of Indian landowners and in 

the amount sufficient to protect all 

insurable improvements on the leased 

premises, unless otherwise provided in 

the WEEL. 

(a) Such insurance may include 

property, crop, liability and/or casualty 

insurance, depending on the Indian 

landowners’ interests to be protected. 

(b) Both the Indian landowners and 

the United States must be identified as 

additional insured parties. 

(c) Lease insurance may be increased 

and extended for use as the required 

WSR lease insurance. 

(d) We may waive the requirement for 

insurance upon the request of the Indian 

landowner, if a waiver is in the best 

interest of the Indian landowner, 

including if the lease is for less than fair 

market rental or nominal compensation. 

We may revoke the waiver and require 

insurance at any time if the waiver is no 

longer in the best interest of the Indian 

landowner. 

Approval 

§ 162.528 What documents must the 

parties submit to obtain BIA approval of a 

WEEL? 

A lessee or the Indian landowner 

must submit the following documents to 

us to obtain BIA approval of a WEEL: 

(a) A WEEL executed by the Indian 

landowners and the lessee that complies 

with the requirements of this part; 

(b) Organizational documents, 

certificates, filing records, and 

resolutions or other authorization 

documents, including evidence of the 

representative’s authority to execute a 

lease, if the lessee is a corporation, 

limited liability company, partnership, 

joint venture, or other legal entity, to 

show that the WEEL will be enforceable 

and that the legal entity is in good 

standing and authorized to conduct 

business in the jurisdiction where the 

land is located; 

(c) Proof of insurance, as required by 

§ 162.527; 

(d) Statement from the appropriate 

tribal authority that the proposed use is 

in conformance with applicable tribal 

law; 

(e) Environmental and archeological 

reports, surveys, and site assessments as 

needed to facilitate compliance with 

applicable Federal and tribal 

environmental and land use 

requirements; 

(f) An equipment installation plan; 

(g) A restoration and reclamation plan 

(and any subsequent modifications to 

the plan); 

(h) An official or certified survey of 

the leased premises that includes the 

legal description of the land 

encumbered by the WEEL and a 

description of each tract of trust or 

restricted land in the WEEL and the 

acreage of each. We will review the 

survey under the DOI Standards for 

Indian Trust Land Boundary Evidence; 

(i) Documents that demonstrate the 

technical capability of the lessee or 

lessee’s agent to construct, operate, 

maintain, and terminate resource 

evaluation facilities and history in 

successfully designing, constructing, or 

obtaining the funding for a resource 

evaluation project (for example, 

documents evidencing lessee’s actual 

ownership, development, or 

management of a successful similar size 

project within the last 5 years); 

(j) Information to assist us in our 

evaluation of the factors in 25 U.S.C. 

415(a); and 

(k) Any additional documentation we 

determine to be reasonably necessary for 

approval. 

§ 162.529 What is the approval process for 

a WEEL? 

(a) Before we approve a WEEL, we 

must determine that the WEEL is in the 

best interest of the Indian landowners. 

In making that determination, we will: 

(1) Review the WEEL and supporting 

documents; 

(2) Identify potential environmental 

impacts and ensure compliance with all 

applicable environmental laws, land use 

laws, and ordinances; 

(3) Assure ourselves that adequate 

consideration has been given to the 

factors in 25 U.S.C. 415(a); and 

(4) Require any lease modifications or 

mitigation measures necessary to satisfy 

any requirements including any other 

Federal or tribal land use requirements. 

(b) When we receive a WEEL and all 

of the supporting documents that 

conform to this part, we will, within 20 

days of the date of receipt of the 

documents at the appropriate BIA office, 

approve, disapprove, return the 

submission for revision, or notify the 

parties in writing that we need 

additional time to review the WEEL. 

Our letter notifying the parties that we 

need additional time to review the 

WEEL must identify our initial concerns 


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and invite the parties to respond within 

15 days. We have 30 days from sending 

the notification to make a determination 

whether to approve or disapprove the 

sublease. 

(c) If we fail to meet the deadline in 

this section, then the parties may take 

appropriate action under part 2 of this 

chapter. 

(d) In reviewing a WEEL for approval, 

we will defer to the Indian landowners’ 

determination that the WEEL is in their 

best interest, to the maximum extent 

possible. 

(e) Any WEEL approval or 

disapproval determination and the basis 

for the determination, along with 

notification of rights to appeal the 

determination under part 2 of this 

chapter, will be made in writing and 

will be sent to the parties. 

Administration 

§ 162.530 May the parties amend, assign, 

sublease, or mortgage a WEEL? 

The parties may amend, assign, 

sublease, or mortgage a WEEL by 

following the procedures and 

requirements for amending, assigning, 

subleasing, or mortgaging a WSR lease. 

§ 162.531 [Reserved] 

Compliance and Enforcement 

§ 162.532 How does BIA ensure 

compliance with a WEEL? 

(a) If we determine that a WEEL has 

been violated, we will promptly send 

the lessee and its sureties a notice of 

violation. We may also order the lessee 

to stop work. The notice of violation 

must be provided by certified mail, 

return receipt requested. 

(b) Within 5 days of the receipt of the 

notice of violation, the lessee must: 

(1) Cure the violation and notify us in 

writing that the violation has been 

cured; 

(2) Dispute our determination that a 

violation has occurred; or 

(3) Request additional time to cure the 

violation. 

(c) If we determine that a violation 

has occurred, we will make a reasonable 

attempt to notify the Indian landowners. 

§ 162.533 What will BIA do if a lessee does 

not cure a violation of a WEEL on time? 

(a) If the lessee does not cure a 

violation of a WEEL within the requisite 

time period, we will consult with the 

tribe for tribal land or, where feasible, 

Indian landowners for individually 

owned Indian land, and determine 

whether: 

(1) We should cancel the WEEL, or 

(2) The Indian landowners wish to 

invoke any remedies available to them 

under the WEEL; or 

(3) We should invoke any other 

remedies available to us under the 

WEEL. 

(b) If we decide to cancel the WEEL, 

we will send the lessee and its sureties 

and any mortgagees a cancellation letter 

by certified mail, return receipt 

requested, within 5 business days of our 

decision. We will send a copy of the 

cancellation letter to the tribe for tribal 

land, and will provide Indian 

landowners for individually owned 

Indian land with actual or constructive 

notice of the cancellation. The 

cancellation letter will: 

(1) Explain the grounds for 

cancellation; 

(2) If applicable, notify the lessee of 

the amount of any unpaid compensation 

or late payment charges due under the 

WEEL; 

(3) Notify the lessee of their right to 

appeal under part 2 of this chapter; 

(4) Order the lessee to vacate the 

property within 31 days of the date of 

receipt of the cancellation letter, if an 

appeal is not filed by that time; and 

(5) Order the lessee to take any other 

action we deem necessary to protect the 

Indian landowners. 

(c) The cancellation will not be 

effective until 31 days after the lessee 

receives a cancellation letter from us, or 

41 days from the date the letter is 

mailed, whichever is earlier. 

(d) The cancellation decision will be 

stayed if the lessee files an appeal 

unless the cancellation is made 

immediately effective under part 2 of 

this chapter. While a cancellation 

decision is stayed, the lessee must 

continue to pay compensation and 

comply with the other terms of the 

WEEL. 

(e) Nothing in this part affects BIA’s 

ability to take emergency action to 

protect the leased premises under 

§ 162.021. 

§ 162.534 Under what circumstances may 

a WEEL be terminated or cancelled? 

(a) A WEEL must state whether, and 

under what conditions, an Indian 

landowner may terminate the WEEL. 

(b) We may cancel the WEEL if we 

have determined cancellation is 

appropriate under § 162.523 (failure to 

make timely payments) or § 162.533 

(failure to cure a violation within the 

requisite time). 

WSR Leases 

§ 162.535 What is the purpose of a WSR 

lease? 

A WSR lease authorizes a lessee to 

possess Indian land to conduct activities 

related to the installation, operation, 

and maintenance of wind and/or solar 

energy resource development projects. 

Activities include installing 

instrumentation facilities, and 

infrastructure associated with the 

generation, transmission, and storage of 

electricity and other related activities. 

§ 162.536 Must I obtain a WEEL before 

obtaining a WSR lease? 

You may enter into a WSR lease 

independent of a WEEL. While you may 

enter into a lease as a direct result of 

energy resource information gathered 

from a WEEL activity, obtaining a WEEL 

is not a precondition to entering into a 

WSR lease. 

§ 162.537 How long may the term of a WSR 

lease run? 

(a) A WSR lease must provide for a 

definite lease term, state if there is an 

option to renew and, if so, provide for 

a definite term for the renewal period. 

Unless authorized by paragraph (b), 

leases for WSR development purposes 

may have an initial term not to exceed 

25 years and one renewal period not to 

exceed 25 years. 

(b) If a statute provides for a longer 

maximum term (e.g., 25 U.S.C. 415(a) 

allows for a maximum term of 99 years 

for certain tribes), the lease may provide 

for a primary term, and one renewal not 

to exceed 25 years, so long as the 

maximum term, including the renewal, 

does not exceed the maximum term 

established by statute. 

(c) The lease term, including any 

renewal, must be reasonable, given the 

(1) Purpose of the lease; 

(2) Type of financing; and 

(3) Level of investment. 

(d) Where all of the trust or restricted 

interests in a tract are owned by a 

deceased Indian whose heirs and 

devisees have not yet been determined, 

the maximum term may not exceed two 

years. 

(e) The lease may not be extended by 

holdover. 

§ 162.538 What must the lease include if it 

contains an option to renew? 

(a) If the lease provides for an option 

to renew, the lease must specify: 

(1) The time and manner in which the 

option must be exercised or is 

automatically effective; 

(2) That confirmation of the renewal 

will be submitted to us; 

(3) Whether Indian landowner 

consent to the renewal is required; 

(4) That the lessee must provide 

notice to the Indian landowner and any 

mortgagees of the renewal; 

(5) The additional consideration, if 

any, that will be due upon the exercise 

of the option to renew or the 

commencement of the renewal term; 

and 


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(6) That any change in the terms of 

the lease will be considered an 

amendment subject to consent and BIA 

approval requirements pursuant to 

§§ 162.568 to 162.571; and 

(7) Any other conditions for renewal 

(e.g., the lessee may not be in violation 

of the lease at the time of renewal). 

(b) We must record any renewal of a 

lease in the Land Titles and Records 

Office. 

§ 162.539 Are there mandatory provisions 

a WSR lease must contain? 

(a) All WSR leases must identify: 

(1) The tract or parcel of land being 

leased; 

(2) The purpose of the lease and 

authorized uses of the leased premises; 

(3) The parties to the lease; 

(4) The term of the lease; 

(5) The owner being represented and 

the authority under which such action 

is being taken, where one executes a 

lease in a representative capacity; 

(6) The citation of the statute that 

authorizes our approval; 

(7) Who is responsible for 

constructing, owning, operating, 

maintaining, and managing, WSR 

equipment, roads, transmission lines 

and related facilities; 

(8) Who is responsible for evaluating 

the leased premises for suitability; 

purchasing, installing, operating, and 

maintaining WSR equipment; 

negotiating power purchase agreements; 

and transmission; 

(9) Payment requirements and late 

payment charges, including interest; 

(10) Due diligence requirements, 

pursuant to § 162.543; 

(11) Insurance requirements; and 

(12) Bonding requirements under 

§ 162.559. If a performance bond is 

required, the lease must state that the 

lessee must obtain the consent of the 

surety or guarantor for any legal 

instrument that directly affects their 

obligations and liabilities. 

(b) All WSR leases must include the 

following provisions: 

(1) The obligations of the lessee and 

its sureties to the Indian landowners are 

also enforceable by the United States, so 

long as the land remains in trust or 

restricted status; 

(2) Nothing in the lease would 

prevent or delay termination of Federal 

trust responsibilities for the land during 

the lease’s term; 

(3) There must not be any unlawful 

conduct, creation of a nuisance, illegal 

activity, or negligent use or waste of the 

leased premises; 

(4) The lessee must comply with all 

applicable laws, ordinances, rules, 

regulations, and other legal 

requirements under § 162.013; 

(5) The lessee indemnifies and holds 

the United States and the Indian 

landowners harmless from any loss, 

liability, or damages resulting from the 

lessee’s use or occupation of the leased 

premises (this provision is not 

mandatory if the lessee would be 

prohibited by law from making such an 

agreement); 

(6) In the event that historic 

properties, archeological resources, 

human remains, or other cultural items 

not previously reported are encountered 

during the course of any activity 

associated with the lease, all activity in 

the immediate vicinity of the properties, 

resources, remains, or items will cease 

and the lessee will contact BIA and the 

tribe that has jurisdiction to determine 

how to proceed and appropriate 

disposition; 

(7) BIA has the right, at any 

reasonable time during the term of the 

lease and upon reasonable notice, to 

enter upon the leased premises for 

inspection; and 

(8) Unless otherwise indicated, this is 

a lease of the trust and restricted 

interests in the property described and 

is not a lease of any undivided fee 

interests. All compensation payments 

by the lessee will be distributed to the 

trust and restricted landowners and life 

estate holders on trust and restricted 

land only. The lessee will be 

responsible for accounting to the owners 

of any fee interests that may exist in the 

property being leased. 

(c) We may treat any provision of a 

lease, sublease, assignment, amendment 

or mortgage that is in violation of 

Federal law as a violation of the lease. 

§ 162.540 May improvements be made 

under a WSR lease? 

(a) A WSR lease must provide for the 

installation of a facility and associated 

infrastructure of a size and magnitude 

necessary for the generation and 

delivery of electricity. These facilities 

and associated infrastructure are 

considered improvements. A resource 

development plan must be submitted for 

approval with the lease pursuant to 

§ 162.563(g). 

(b) If any of the following changes are 

made to the resource development plan, 

the Indian landowner and BIA must 

approve the revised plan: 

(1) Location of improvements; 

(2) Type of improvements; or 

(3) Delay of 90 days or more in any 

phase of development. 

§ 162.541 How must a WSR lease address 

ownership of improvements? 

(a) A WSR lease must specify who 

will own any improvements the lessee 

installs during the lease term and may 

specify that any improvements the 

lessee installs may be conveyed to the 

Indian landowners during the lease term 

and under what conditions the 

improvements may be conveyed. In 

addition, the lease must indicate 

whether each specific improvement the 

lessee installs will, upon the expiration 

or termination of the lease: 

(1) Remain on the leased premises, in 

a condition satisfactory to the Indian 

landowners and become the property of 

the Indian landowner; 

(2) Be removed within a time period 

specified in the lease, at the lessee’s 

expense, with the leased premises to be 

restored as close as possible to their 

condition before installation of such 

improvements; or 

(3) Be disposed of by other specified 

means. 

(b) A lease that requires the lessee to 

remove the improvements must also 

provide the Indian landowners with an 

option to take possession of and title to 

the improvements if the improvements 

are not removed within the specified 

time period. 

§ 162.542 How will BIA enforce removal 

requirements in a WSR lease? 

We may take appropriate enforcement 

action in consultation with the tribe, for 

tribal land or, where feasible, Indian 

landowners for individually owned 

Indian land, to ensure removal of the 

improvements or restoration of the 

premises at the lessee’s expense. We 

may take such enforcement action after 

termination or expiration of the lease. 

We may collect and hold the 

performance bond until removal and 

restoration are completed. 

§ 162.543 What requirements for due 

diligence must a WSR lease include? 

(a) A WSR lease must include due 

diligence requirements that require the 

lessee to: 

(1) Commence installation of energy 

facilities within 2 years after the 

effective date of the lease or consistent 

with a timeframe contained in the 

resource development plan; 

(2) Provide the Indian landowners 

and BIA good cause as to the nature of 

any delay, the anticipated date of 

installation of facilities, and evidence of 

progress toward commencement of 

installation, if installation does not 

occur, or is not expected to be 

completed, within the time period 

specified in paragraph (a)(1) of this 

section; 

(3) Maintain all on-site electrical 

generation equipment and facilities and 

related infrastructure in accordance 

with the design standards in the 

resource development plan; and 


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(4) Repair, place into service, or 

remove from the site within 30 days any 

idle, improperly functioning, or 

abandoned equipment or facilities that 

have been inoperative for any 

continuous period of 3 months (unless 

the equipment or facilities were idle as 

a result of planned suspension of 

operations, for example, for grid 

operations or during bird migration 

season). 

(b) Failure of the lessee to comply 

with the due diligence requirements of 

the lease is a violation of the lease and 

may lead to cancellation of the lease 

under § 162.589. 

§ 162.544 May a WSR lease allow 

compatible uses? 

The lease may provide for the Indian 

landowner to use, or authorize others to 

use, the leased premises for other uses 

compatible with the purpose of the WSR 

lease and consistent with the terms of 

the WSR lease. This may include the 

right to lease the premises for other 

compatible purposes. Any such use or 

authorization by the Indian landowner 

will not reduce or offset the monetary 

compensation for the WSR lease. 

§ 162.545 How must a WSR lease describe 

the land? 

(a) A WSR lease must describe the 

leased premises by reference to an 

official or certified survey as required by 

§ 162.563(i) of this part. 

(b) If the tract is fractionated, we will 

describe the undivided trust interest in 

the leased premises. 

Monetary Compensation Requirements 

§ 162.546 How much monetary 

compensation must be paid under a WSR 

lease? 

(a) A WSR lease of tribal land may 

allow for any payment negotiated by the 

tribe as long as the tribe provides the 

tribal authorization required by 

§ 162.547(a). The tribe may request, in 

writing, that we require fair market 

rental, in which case we will determine 

fair market rental in accordance with 

§ 162.548 and will approve the lease 

only if it requires payment of not less 

than fair market rental. Unless the tribe 

makes such a request, BIA will not 

require a valuation or appraisal or 

determine fair market rental, but instead 

will defer to the tribe’s determination 

that the negotiated compensation is in 

its best interest. 

(b) A WSR lease of individually 

owned Indian land must require 

payment of not less than fair market 

rental before any adjustments, based on 

a fixed amount, a percentage of the 

projected gross income, megawatt 

capacity fee, or some other method, 

unless paragraphs (a)(1) or (a)(2) of this 

section permit a lesser amount. The 

lease must establish how the fixed 

amount, percentage or combination will 

be calculated and the frequency at 

which the payments will be made. 

(1) We may approve a lease of 

individually owned Indian land that 

provides for the payment of nominal 

compensation, or less than a fair market 

rental, if: 

(i) The Indian landowners execute a 

written waiver of the right to receive fair 

market rental; and 

(ii) We determine it is in the Indian 

landowners’ best interest, based on 

factors including, but not limited to: 

(A) The lessee is a member of the 

Indian landowners’ immediate family as 

defined in § 162.003; 

(B) The lessee is a co-owner of the 

leased tract; 

(C) A special relationship or 

circumstances exist that we believe 

warrant approval of the lease; or 

(D) The lease is for public purposes. 

(2) We may approve a lease that 

provides for the payment of less than a 

fair market rental during the periods 

before the generation and transmission 

of electricity begins, if we determine it 

is in the Indian landowners’ best 

interest. The lease must specify the 

amount of the compensation and the 

applicable periods. 

(3) Where the owners of the 

applicable percentage of interests under 

§ 162.011 of this part grant a WSR lease 

on behalf of all of the Indian 

landowners of a fractionated tract, the 

lease must provide that the nonconsenting Indian landowners, and 

those on whose behalf we have 

consented, receive a fair market rental. 

§ 162.547 Will BIA require a valuation to 

determine fair market rental of a WSR 

lease? 

(a) We will not require valuations or 

appraisals for negotiated WSR leases of 

tribal land, or of any undivided tribal 

interest in a fractionated tract, if the 

tribe submits a tribal authorization 

expressly stating that it: 

(1) Has negotiated compensation 

satisfactory to the tribe; 

(2) Waives valuation and appraisal; 

and 

(3) Has determined that accepting 

such negotiated compensation and 

waiving valuation and appraisal is in its 

best interest. 

(b) The tribe may request that BIA 

require a valuation or appraisal, in 

which case BIA must determine fair 

market rental in accordance with 

§ 162.548. 

(c) We will not waive the valuation 

requirement for WSR leases on 

individually owned Indian land, but we 

may accept an economic analysis in lieu 

of an appraisal if we determine it to be 

in the best interest of the Indian 

landowners and: 

(1) The Indian landowners submit a 

written statement to us requesting an 

economic analysis in lieu of an 

appraisal and explaining the basis for 

the request and their willingness to 

accept nominal or less than fair market 

rental; 

(2) After receiving an estimated 

timeframe for completion of the analysis 

from the Office of Indian Energy & 

Economic Development (IEED), the 

Indian landowner submits a written 

request for economic analysis to IEED; 

and 

(3) IEED prepares an economic 

analysis of the project. 

§ 162.548 What type of valuation may be 

used to determine fair market rental for a 

WSR lease? 

(a) We will use an appraisal to 

determine the fair market rental before 

we approve a WSR lease of individually 

owned Indian land, or at the request of 

the tribe for tribal land, unless we 

approve another type of valuation under 

paragraph (d) of this section. 

(b) We will either: 

(1) Prepare an appraisal; or 

(2) Use an approved appraisal from 

the Indian landowner or lessee. 

(c) We will approve an appraisal for 

use only if it: 

(1) Has been prepared in accordance 

with USPAP or a valuation method 

developed by the Secretary pursuant to 

25 U.S.C. 2214; and 

(2) Complies with Department 

policies regarding appraisals, including 

third-party appraisals. 

(d) Upon receipt of a tribal 

authorization, we may use some other 

type of valuation for a WSR lease on 

tribal land, if it conforms to USPAP or 

a valuation method developed by the 

Secretary pursuant to 25 U.S.C. 2214. 

§ 162.549 When are monetary 

compensation payments due under a WSR 

lease? 

(a) A WSR lease must specify the 

dates on which all payments are due. 

(b) Unless otherwise provided in the 

lease, payments may not be made or 

accepted more than one year in advance 

of the due date. 

(c) Payments are due at the time 

specified in the lease, regardless of 

whether the lessee receives an advance 

billing or other notice that a payment is 

due. 


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§ 162.550 Must a WSR lease specify to 

whom monetary compensation payments 

may be made? 

(a) A WSR lease must specify whether 

the lessee will make payments directly 

to the Indian landowners (direct pay) or 

to us on their behalf. 

(b) The lessee may make payments 

directly to the Indian landowners whose 

trust accounts are unencumbered when 

there are 10 or fewer beneficial owners 

and 100 percent of the beneficial owners 

agree to receive payment directly from 

the lessee. 

(1) If the lease provides that the lessee 

will directly pay the Indian landowners, 

the lease must also require that the 

lessee provide us with certification of 

payment. 

(2) When we consent on behalf of an 

Indian landowner, the lessee must make 

payment to us. 

(3) The lessee must send direct 

payments to the parties and addresses 

specified in the lease, unless the lessee 

receives notice of a change of ownership 

or address. 

(4) Unless otherwise provided in the 

lease, payments may not be made 

payable directly to anyone other than 

the Indian landowners. 

(5) Direct payments must continue 

through the duration of the lease, except 

if: 

(i) 100 percent of the Indian 

landowners agree to suspend direct pay 

and provide us with documentation of 

their agreement, then the lessee must 

make all Indian landowners’ payments 

to us; or 

(ii) If any individual Indian 

landowner dies, is declared non compos 

mentis, becomes whereabouts unknown, 

or owes a debt resulting in a trust 

account encumbrance, then the lessee 

must make that individual Indian 

landowner’s payment to us. 

§ 162.551 What form of monetary 

compensation payment may be accepted 

under a WSR lease? 

(a) When payments are made directly 

to Indian landowners, the form of 

payment must be acceptable to the 

Indian landowners. 

(b) When payments are made to us, 

we will accept: 

(1) Money orders; 

(2) Certified checks; 

(3) Cashier’s checks; or 

(4) Electronic funds transfer 

payments. 

(c) We will not accept cash, foreign 

currency, or third-party checks except 

for third-party checks from financial 

institutions. 

(d) The preferred method of payment 

is electronic funds transfer payments. 

§ 162.552 May the WSR lease provide for 

non-monetary or varying types of 

compensation? 

(a) With our approval, the lease may 

provide for: 

(1) Alternative forms of 

compensation, including but not limited 

to in-kind consideration and payments 

based on percentage of income; or 

(2) Varying types of consideration at 

specific stages during the life of the 

lease, including but not limited to fixed 

annual payments during installation, 

payments based on income during an 

operational period, and bonuses. 

(b) For individually owned land, we 

will approve alternative forms of 

compensation and varying types of 

consideration if we determine that it is 

in the best interest of the Indian 

landowners. For tribal land, we will 

defer to the tribe’s determination that 

the alternative forms of rental and 

varying types of consideration are in its 

best interest, if the tribe submits a 

signed certification stating that it has 

determined the alternative forms of 

rental and varying types of 

consideration to be in its best interest. 

§ 162.553 Will BIA notify a lessee when a 

payment is due under a WSR lease? 

Upon request of the Indian 

landowner, we may issue invoices to a 

lessee in advance of the dates on which 

payments are due under a WSR lease, 

but the lessee’s obligation to make such 

payments in a timely manner will not be 

excused if such invoices are not 

delivered or received. 

§ 162.554 Must a WSR lease provide for 

compensation reviews or adjustments? 

(a) A review of the adequacy of 

compensation must occur at least every 

fifth year, in the manner specified in the 

lease, unless the conditions in 

paragraph (b) of this section are met. 

The lease must specify: 

(1) When adjustments take effect; 

(2) Who is authorized to make 

adjustments; 

(3) What the adjustments are based 

on; and 

(4) How to resolve disputes arising 

from the adjustments. 

(b) A review of the adequacy of 

compensation is not required if: 

(1) The lease provides for automatic 

adjustments; or 

(2) We determine it is in the best 

interest of the Indian landowners not to 

require a review or automatic 

adjustment based on circumstances 

including, but not limited to, the 

following: 

(i) The lease provides for payment of 

less than fair market rental; 

(ii) The lease is for public purposes; 

or 

(iii) The lease provides for most or all 

of the compensation to be paid during 

the first five years of the lease term or 

prior to the date the review would be 

conducted. 

(c) When a review results in the need 

for adjustment of compensation, we 

must approve the adjustment and Indian 

landowners must consent to the 

adjustment in accordance with 

§ 162.011, unless otherwise provided in 

the lease. 

§ 162.555 What other types of payments 

are required under a WSR lease? 

(a) The lessee may be required to pay 

additional fees, taxes, and/or 

assessments associated with the use of 

the land, as determined by entities 

having jurisdiction, except as provided 

in § 162.515(c). The lessee must pay 

these amounts to the appropriate office. 

(b) If the leased premises are within 

an Indian irrigation project or drainage 

district, except as otherwise provided in 

part 171 of this chapter, the lessee must 

pay all operation and maintenance 

charges that accrue during the lease 

term. The lessee must pay these 

amounts to the appropriate office in 

charge of the irrigation project or 

drainage district. Failure to make such 

payments will be treated as a violation 

of the lease. 

(c) Where the property is subject to at 

least one other lease for another 

compatible use, such as grazing, the 

lessees may agree among themselves as 

to how to allocate payment of the 

operation and maintenance charges. 

Bonding and Insurance 

§ 162.559 Must a lessee provide a 

performance bond for a WSR lease? 

(a) Except as provided in paragraph (f) 

of this section, the lessee must provide 

a performance bond in an amount 

sufficient to secure the contractual 

obligations including: 

(1) No less than the highest annual 

rental specified in the lease, if the 

compensation is paid annually, or other 

amount established by BIA in 

consultation with the tribe, for tribal 

land or, where feasible, with Indian 

landowners for individually owned 

Indian land, if the compensation is to be 

paid on a non-annual schedule; 

(2) The performance and payment for 

the installation of any required 

improvements; 

(3) The operation and maintenance 

charges for any land located within an 

irrigation project; and 

(4) The restoration and reclamation of 

the leased premises, to their condition 

at the commencement of the lease term 

or some other specified condition. 


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(b) The performance bond must be 

deposited with us and made payable 

only to us, and may not be modified 

without our approval. 

(c) The lease must provide that we 

may adjust security or performance 

bond requirements at any time to reflect 

changing conditions. 

(d) We may require that the surety 

provide any supporting documents 

needed to show that the performance 

bond will be enforceable, and that the 

surety will be able to perform the 

guaranteed obligations. 

(e) The surety must provide notice to 

us at least 60 days before canceling a 

performance bond so that we may notify 

the lessee of its obligation to provide a 

substitute performance bond and 

require collection of the bond prior to 

the cancellation date. Failure to provide 

a substitute performance bond will be a 

violation of the lease. 

(f) We may waive the requirement for 

a performance bond upon the request of 

the Indian landowner, if a waiver is in 

the best interest of the Indian 

landowner, including if the lease is for 

less than fair market rental or nominal 

compensation. We may revoke the 

waiver and require a performance bond 

at any time if the waiver is no longer in 

the best interest of the Indian 

landowner. 

§ 162.560 What forms of performance 

bond may be accepted under a WSR lease? 

(a) We will only accept a performance 

bond in one of the following forms: 

(1) Certificates of deposit issued by a 

federally insured financial institution 

authorized to do business in the United 

States; 

(2) Irrevocable letters of credit issued 

by a federally insured financial 

institution authorized to do business in 

the United States; 

(3) Negotiable Treasury securities; or 

(4) Surety bond issued by a company 

approved by the U.S. Department of the 

Treasury. 

(b) All forms of performance bonds 

must: 

(1) Indicate on their face that BIA 

approval is required for redemption; 

(2) Be accompanied by a statement 

granting full authority to BIA to make an 

immediate claim upon or sell them if 

the lessee violates the terms of the lease; 

(3) Be irrevocable during the term of 

the performance bond; and 

(4) Be automatically renewable during 

the term of the lease. 

§ 162.561 What is the bond release 

process under a WSR lease? 

(a) Upon expiration, termination, or 

cancellation of the lease, the lessee must 

submit a written request for a 

performance bond release to BIA. 

(b) Upon receipt of the request under 

paragraph (a) of this section, BIA will 

confirm with the tribe, for tribal land or, 

where feasible, with the Indian 

landowners for individually owned 

Indian land, that the lessee has 

complied with all lease obligations, then 

release the performance bond to the 

lessee unless we determine that the 

performance bond must be redeemed to 

fulfill the contractual obligations. 

§ 162.562 Must a lessee provide insurance 

for a WSR lease? 

Except as provided in paragraph (c) of 

this section, a lessee must provide 

insurance when necessary to protect the 

interests of Indian landowners and in 

the amount sufficient to protect all 

insurable improvements on the leased 

premises. 

(a) Such insurance may include 

property, liability and/or casualty 

insurance, depending on the Indian 

landowners’ interests to be protected. 

(b) Both the Indian landowners and 

the United States must be identified as 

additional insured parties. 

(c) We may waive the requirement for 

insurance upon the request of the Indian 

landowner, if a waiver is in the best 

interest of the Indian landowner, 

including if the lease is for less than fair 

market rental or nominal compensation. 

We may revoke the waiver and require 

insurance at any time if the waiver is no 

longer in the best interest of the Indian 

landowner. 

Approval 

§ 162.563 What documents must the 

parties submit to obtain BIA approval of a 

WSR lease? 

A lessee or the Indian landowner 

must submit the following documents to 

us to obtain BIA approval of a WSR 

lease: 

(a) A lease executed by the Indian 

landowner and the lessee that complies 

with the requirements of this part; 

(b) An appraisal or other valuation 

under § 162.547, if appropriate; 

(c) Organizational documents, 

certificates, filing records, and 

resolutions or other authorization 

documents, including evidence of the 

representative’s authority to execute a 

lease, if the lessee is a corporation, 

limited liability company, partnership, 

joint venture, or other legal entity, to 

show that the lease will be enforceable 

and that the legal entity is in good 

standing and authorized to conduct 

business in the jurisdiction where the 

land is located; 

(d) A performance bond, where 

required; 

(e) Statement from the appropriate 

tribal authority that the proposed use is 

in conformance with applicable tribal 

law; 

(f) Environmental and archeological 

reports, surveys, and site assessments as 

needed to facilitate compliance 

applicable Federal and tribal 

environmental and land use 

requirements; 

(g) A resource development plan that 

describes the type and location of any 

improvements the lessee plans to install 

and a schedule showing the tentative 

commencement and completion dates 

for those improvements; 

(h) A restoration and reclamation plan 

(and any subsequent modifications to 

the plan); 

(i) An official or a certified survey of 

the leased premises that includes the 

legal description of the land 

encumbered by the lease and a 

description of each tract of trust or 

restricted land in the lease and the 

acreage of each. We will review the 

survey under the DOI Standards for 

Indian Trust Land Boundary Evidence; 

(j) Documents that demonstrate the 

technical capability of the lessee or 

lessee’s agent to construct, operate, 

maintain, and terminate resource 

development facilities and the lessee’s 

history in successfully designing, 

constructing, or obtaining the funding 

for a resource development project (for 

example, documents evidencing lessee’s 

actual ownership, development, or 

management of a successful similarlysized project within the last 5 years); 

(k) Information to assist us in our 

evaluation of the factors in 25 U.S.C. 

415(a); and 

(l) Any additional documentation we 

determine to be reasonably necessary for 

approval. 

§ 162.564 What is the approval process for 

a WSR lease? 

(a) Before we approve a WSR lease, 

we must determine that the lease is in 

the best interest of the Indian 

landowners. In making that 

determination, we will: 

(1) Review the lease and supporting 

documents; 

(2) Identify potential environmental 

impacts and ensure compliance with all 

applicable environmental laws, land use 

laws, and ordinances; 

(3) Assure ourselves that adequate 

consideration has been given to the 

factors in 25 U.S.C. 415(a); 

(4) Require any lease modifications or 

mitigation measures necessary to satisfy 

any requirements including any other 

Federal or tribal land use requirements; 

and 

(5) If the lease is a negotiated lease, 

defer to the Indian landowners’ 

determination that the lease is in their 


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best interest, to the maximum extent 

possible. 

(b) When we receive a WSR lease 

proposal and all of the supporting 

documents that conform to this part, we 

will, within 60 days of the date of 

receipt of the documents at the 

appropriate BIA office, approve, 

disapprove, return the submission for 

revision, or notify the parties in writing 

that we need additional time to review 

the lease. Our letter notifying the parties 

that we need additional time to review 

the lease must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 

make a determination whether to 

approve or disapprove the sublease. 

(c) If we fail to meet the deadlines in 

this section, then the parties may take 

appropriate action under part 2 of this 

chapter. 

(d) We will make any lease approval 

or disapproval determination and the 

basis for the determination, along with 

notification of appeal rights under part 

2 of this chapter, in writing and will 

send the determination and notification 

to the parties to the lease. 

(e) We will provide approved WSR 

leases on tribal land to the lessee and 

provide a copy to the tribe. We will 

provide approved WSR leases on 

individually owned Indian land to the 

lessee, and make copies available to the 

Indian landowners upon written 

request. 

§ 162.565 When will a WSR lease be 

effective? 

(a) A WSR lease will be effective on 

the date on which we approve the lease, 

notwithstanding any appeal that may be 

filed under part 2 of this chapter. 

(b) The lease may specify a date on 

which the obligations between the 

parties to a WSR lease are triggered. 

Such date may be before or after the 

approval date under paragraph (a). 

§ 162.566 Must WEEL and WSR lease 

documents be recorded? 

(a) A WEEL and WSR lease, 

amendment, assignment, leasehold 

mortgage, and sublease must be 

recorded in our Land Titles and Records 

Office with jurisdiction over the leased 

land. 

(1) We will record the lease or other 

document immediately following our 

approval. 

(2) If our approval is not required, the 

parties must record the assignment or 

sublease in the Land Title and Records 

Office with jurisdiction over the leased 

land. 

(b) The tribe must record the 

following leases in the Land Titles and 

Records Office with jurisdiction over 

the tribal lands, even though BIA 

approval is not required: 

(1) Leases of tribal land that a 

corporate entity leases to a third party 

under 25 U.S.C. 477; and 

(2) Leases of tribal land under a 

special act of Congress authorizing 

leases without our approval. 

§ 162.567 What action may BIA take if a 

lease disapproval decision is appealed? 

(a) If a party appeals our decision to 

disapprove a lease, assignment, 

amendment, sublease or leasehold 

mortgage, then the official to whom the 

appeal is made may require the lessee 

to post an appeal bond in an amount 

necessary to protect the Indian 

landowners against financial losses and 

damage to trust resources likely to result 

from the delay caused by an appeal. The 

requirement to post an appeal bond will 

apply in addition to all of the other 

requirements in part 2 of this chapter. 

(b) The appellant may not appeal the 

appeal bond decision. The appellant 

may, however, request that the official 

to whom the appeal is made reconsider 

the bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

Amendments 

§ 162.568 May the parties amend a WSR 

lease? 

(a) The parties may amend a WSR 

lease by obtaining: 

(1) The lessee’s signature; 

(2) The Indian landowners’ consent 

pursuant to the requirements contained 

in § 162.569; and 

(3) BIA approval of the amendment 

under § 162.570 and § 162.571. 

(b) The parties may not amend a WSR 

lease if the lease expressly prohibits 

amendments. 

§ 162.569 What are the consent 

requirements for an amendment to a WSR 

lease? 

(a) The Indian landowners, or their 

representatives under § 162.012, must 

consent to an amendment of a WSR 

lease in the same percentages and 

manner as a new WSR lease pursuant to 

§ 162.011, unless the requirements in 

paragraphs (a)(1) or (a)(2) are met. 

(1) The approved WSR lease 

establishes that individual Indian 

landowners are deemed to have 

consented if they do not object in 

writing to the amendment after a 

specified period of time following 

landowners’ receipt of the amendment. 

If the lease provides for deemed 

consent, it must require the parties to 

submit to us: A copy of the executed 

amendment or other documentation of 

the Indian landowners’ consent; proof of 

mailing of the amendment to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information to us for review. 

(2) The approved WSR lease 

authorizes one or more representatives 

to consent to an amendment on behalf 

of all Indian landowners. The lease may 

also designate us as the Indian 

landowners’ representative for the 

purposes of consenting to an 

amendment. 

(b) Unless specifically authorized in 

the lease, the written power of attorney, 

or court document, Indian landowners 

may not be deemed to have consented, 

and an Indian landowner’s designated 

representative may not negotiate or 

consent to an amendment that would: 

(1) Reduce the payment obligations or 

terms to the Indian landowners; 

(2) Increase or decrease the lease area; 

or 

(3) Terminate or change the term of 

the lease. 

§ 162.570 What is the approval process for 

an amendment to a WSR lease? 

We have 30 days from receipt of the 

executed assignment, proof of required 

consents, and required documentation 

to make a determination whether to 

approve the amendment or notify the 

parties in writing that we need 

additional time to review the 

amendment. 

(a) Our letter notifying the parties that 

we need additional time to review the 

amendment must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 

make a determination whether to 

approve or disapprove the amendment. 

(b) If we fail to send either a 

determination or a notification within 

30 days from receipt of required 

documents and the completion of any 

environmental reviews or 30 days from 

sending the notification, the amendment 

is deemed approved to the extent 

consistent with Federal law. We will 

retain our full enforcement authority for 

amendments that are deemed approved. 

(c) Our determination whether to 

approve the amendment will be in 

writing and will state the basis for our 

approval or disapproval. 

§ 162.571 How will BIA decide whether to 

approve an amendment to a WSR lease? 

(a) We may only disapprove a WSR 

lease amendment if: 

(1) The required consents have not 

been obtained from the parties to the 

lease and any mortgagees or sureties; 

(2) The lessee is in violation of the 

lease; or 


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(3) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) We may not unreasonably 

withhold approval of an amendment. 

Assignments 

§ 162.572 May a lessee assign a WSR 

lease? 

(a) A lessee may assign a WSR lease 

by meeting the consent requirements 

contained in § 162.573 and obtaining 

our approval of the assignment under 

§ 162.574 and § 162.575 or by meeting 

the conditions in paragraphs (b) or (c) of 

this section, unless the lease expressly 

prohibits assignments. 

(b) Where provided in the lease, the 

lessee may assign the lease to the 

following without meeting consent 

requirements or obtaining BIA approval 

of the assignment, as long as the lessee 

notifies BIA of the assignment within 30 

days: 

(1) Not more than two distinct legal 

entities specified in the lease; or 

(2) The lessee’s wholly owned 

subsidiaries. 

(c) If a sale or foreclosure under an 

approved mortgage of the leasehold 

interest occurs and the mortgagee is the 

purchaser, the mortgagee/purchaser may 

assign the leasehold interest without 

meeting the consent requirements or 

obtaining our approval, as long as the 

assignee accepts and agrees in writing to 

be bound by all the terms and 

conditions of the lease. 

§ 162.573 What are the consent 

requirements for an assignment of a WSR 

lease? 

The Indian landowners, or their 

representatives under § 162.012, must 

consent to an assignment in the same 

percentages and manner as a new WSR 

lease, unless the requirements in 

paragraphs (a) or (b) of this section are 

met. 

(a) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the 

assignment after a specified period of 

time following landowners’ receipt of 

the assignment. If the lease provides for 

deemed consent, it must require the 

parties to submit to us: a copy of the 

executed assignment or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the assignment to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information for us to review. 

(b) The approved WSR lease 

authorizes one or more representatives 

to consent to an assignment on behalf of 

all Indian landowners. The lease may 

also designate us as the Indian 

landowners’ representative for the 

purposes of consenting to an 

assignment. 

§ 162.574 What is the approval process for 

an assignment of a WSR lease? 

(a) We have 30 days from receipt of 

the executed assignment, proof of 

required consents, and required 

documentation to make a determination 

whether to approve the assignment or 

notify the parties that we need 

additional information. Our 

determination whether to approve the 

assignment will be in writing and will 

state the basis for our approval or 

disapproval. 

(b) If we fail to meet any of the 

deadlines in this section, the lessee or 

Indian landowners may take appropriate 

action under part 2 of this chapter. 

§ 162.575 How will BIA decide whether to 

approve an assignment of a WSR lease? 

(a) We may only disapprove an 

assignment of a WSR lease if: 

(1) The required consents have not 

been obtained from the parties to the 

lease or the lessee’s mortgagees or 

sureties; 

(2) The lessee is in violation of the 

lease; 

(3) The assignee does not agree to be 

bound by the terms of the lease; or 

(4) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(4) of this section, we will 

consider whether: 

(1) The value of any part of the leased 

premises not covered by the assignment 

would be adversely affected; and 

(2) If a performance bond is required, 

the assignee has bonded its performance 

and provided supporting documents 

that demonstrate that the lease will be 

enforceable against the assignee, and 

that the assignee will be able to perform 

its obligations under the lease or 

assignment. 

(c) We may not unreasonably 

withhold approval of an assignment. 

Subleases 

§ 162.576 May a lessee sublease a WSR 

lease? 

A lessee may sublease a WSR lease by 

meeting the consent requirements 

contained in § 162.577 and obtaining 

our approval of the sublease under 

§ 162.578 and § 162.579, unless the 

lease expressly prohibits subleases. 

§ 162.577 What are the consent 

requirements for a sublease of a WSR 

lease? 

The Indian landowners, or their 

representatives under § 162.012, must 

consent to a sublease in the same 

percentages and manner as a new WSR 

lease under § 162.011, unless the 

requirements in paragraphs (a) or (b) of 

this section are met. 

(a) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the sublease 

after a specified period of time 

following landowners’ receipt of the 

sublease. If the lease provides for 

deemed consent, it must require the 

parties to submit to us: a copy of the 

executed sublease or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the sublease to any Indian landowners 

who are deemed to have consented; and 

any other pertinent information for us to 

review. 

(b) The approved WSR lease 

authorizes one or more representatives 

to consent to a sublease on behalf of all 

Indian landowners. The lease may also 

designate us as the Indian landowners’ 

representative for the purposes of 

consenting to a sublease. 

§ 162.578 What is the approval process for 

a sublease of a WSR lease? 

We have 30 days from receipt of the 

executed sublease, proof of required 

consents, and required documentation 

to make a determination whether to 

approve the sublease or notify the 

parties to the sublease and Indian 

landowners in writing that we need 

additional time to review the sublease. 

Our determination whether to approve 

the sublease will be in writing and will 

state the basis for our approval or 

disapproval. 

(a) Our letter notifying parties that we 

need additional time to review the 

sublease must identify our initial 

concerns and invite the parties to 

respond within 15 days. We have 30 

days from sending the notification to 

make a determination whether to 

approve or disapprove the sublease. 

(b) If we fail to send either a 

determination or a notification within 

30 days from receipt of required 

documents or 30 days from sending the 

notification, the sublease is deemed 

approved to the extent consistent with 

Federal law. We will retain our full 

enforcement authority for subleases that 

are deemed approved. 

§ 162.579 How will BIA decide whether to 

approve a sublease of a WSR lease? 

(a) We will only disapprove a 

sublease of a WSR lease if: 


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(1) The required consents have not 

been obtained from the parties to the 

lease and the lessee’s mortgagees or 

sureties; 

(2) The lessee is in violation of the 

lease; 

(3) The lessee will not remain liable 

under the lease; 

(4) The sublessee does not agree to be 

bound by the terms of the lease; and 

(5) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(5) of this section, we will 

consider whether: 

(1) The value of any part of the leased 

premises not covered by the sublease 

would be adversely affected; and 

(2) The sublessee has bonded its 

performance and provided supporting 

documents that demonstrate that the 

lease will be enforceable against the 

sublessee, and that the sublessee will be 

will be able to perform its obligations 

under the lease or sublease. 

(c) We may not unreasonably 

withhold approval of a sublease. 

Leasehold Mortgages 

§ 162.580 May a lessee mortgage a WSR 

lease? 

A lessee may mortgage a WSR lease 

by meeting the consent requirements 

contained in § 162.581 and obtaining 

our approval of the leasehold mortgage 

under § 162.582 and § 162.583, unless 

the lease expressly prohibits leasehold 

mortgages. 

§ 162.581 What are the consent 

requirements for a leasehold mortgage of a 

WSR lease? 

The Indian landowners, or their 

representatives under § 162.012, must 

consent to a leasehold mortgage in the 

same percentages and manner as a new 

WSR lease under § 162.011, unless the 

requirements in paragraphs (a), (b), or 

(c) of this section are met. 

(a) The lease contains a general 

authorization for a leasehold mortgage 

and states what law would apply in case 

of foreclosure. 

(b) The lease establishes that 

individual Indian landowners are 

deemed to have consented where they 

do not object in writing to the leasehold 

mortgage after a specified period of time 

following landowners’ receipt of the 

leasehold mortgage. If the lease provides 

for deemed consent, it must require the 

parties to submit to us: a copy of the 

executed leasehold mortgage or other 

documentation of the Indian 

landowners’ consent; proof of mailing of 

the leasehold mortgage to any Indian 

landowners who are deemed to have 

consented; and any other pertinent 

information for us to review. 

(c) The approved WSR lease 

authorizes one or more representatives 

to consent to a leasehold mortgage on 

behalf of all Indian landowners. The 

lease may also designate us as the 

Indian landowners’ representative for 

the purposes of consenting to a 

leasehold mortgage. 

§ 162.582 What is the approval process for 

a leasehold mortgage of a WSR lease? 

(a) We have 30 days from receipt of 

the executed leasehold mortgage, proof 

of required consents, and required 

documentation to make a determination 

whether to approve the leasehold 

mortgage or notify the parties in writing 

that we need additional time to review 

the leasehold mortgage. Our 

determination whether to approve the 

leasehold mortgage will be in writing 

and will state the basis for our approval 

or disapproval. 

(b) If we fail to meet the deadline in 

this section, the lessee may take 

appropriate action under part 2 of this 

chapter. 

§ 162.583 How will BIA decide whether to 

approve a leasehold mortgage of a WSR 

lease? 

(a) We may only disapprove a 

leasehold mortgage under a WSR lease 

if: 

(1) The required consents have not 

been obtained from the parties to the 

lease under or the lessee’s sureties; 

(2) The leasehold mortgage covers 

more than the lessee’s interest in the 

leased premises collateral or encumbers 

unrelated collateral; or 

(3) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(3) of this section, we will 

consider whether: 

(1) The lessee’s ability to comply with 

the lease would be adversely affected by 

any new loan obligations; 

(2) Any lease provisions would be 

modified by the leasehold mortgage; 

(3) The remedies available to us or to 

the Indian landowners would be limited 

(beyond any additional notice and cure 

rights to be afforded to the mortgagee), 

in the event of a lease violation; and 

(4) Any rights of the Indian 

landowners would be subordinated or 

adversely affected in the event of a loan 

default by the lessee. 

(c) We may not unreasonably 

withhold approval of a leasehold 

mortgage. 

Effectiveness, Compliance, and 

Enforcement 

§ 162.584 When will an amendment, 

assignment, sublease, or leasehold 

mortgage under a WSR lease be effective? 

(a) An amendment, assignment, 

sublease, or leasehold mortgage under a 

WSR lease will be effective when 

approved, notwithstanding any appeal 

that may be filed under part 2 of this 

chapter, unless approval is not required 

under § 162.008(b) or the conditions in 

paragraph (b) apply. We will provide 

copies of approved documents to the 

party requesting approval and, upon 

request, to the other parties to the 

agreement. 

(b) If the amendment or sublease was 

deemed approved pursuant to 

§ 162.570(b) or § 162.578(b), the 

amendment or sublease becomes 

effective 45 days from the date the 

parties mailed or delivered the 

document to us for our review. 

(c) An assignment that has does not 

require landowner consent or BIA 

approval shall be effective upon 

execution by the parties. 

§ 162.585 What happens if BIA 

disapproves an amendment, assignment, 

sublease, or leasehold mortgage of a WSR 

lease? 

If we disapprove an amendment, 

assignment, sublease, or leasehold 

mortgage of a WSR lease, we will notify 

the parties immediately and advise 

them of their right to appeal the 

decision under part 2 of this chapter. 

§ 162.586 May BIA investigate compliance 

with a WSR lease? 

(a) We may enter the leased premises 

at any reasonable time, upon reasonable 

notice, to protect the interests of the 

Indian landowners and to determine if 

the lessee is in compliance with the 

requirements of the lease. 

(b) If the Indian landowner notifies us 

that a specific lease violation has 

occurred, we will promptly initiate an 

appropriate investigation. 

§ 162.587 May a WSR lease provide for 

negotiated remedies in the event of a 

violation? 

(a) A WSR lease of tribal land may 

provide either or both parties with 

negotiated remedies in the event of a 

lease violation, including, but not 

limited to, the power to terminate the 

lease. If the lease provides the parties 

with the power to terminate the lease, 

BIA approval of the termination is not 

required and the termination is effective 

without BIA cancellation. The parties 

must notify us of the termination so that 

we may record it in the Land Titles and 

Records Office. 


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(b) A WSR lease of individually 

owned Indian land may provide either 

or both parties with negotiated 

remedies, so long as the lease also 

specifies the manner in which those 

remedies may be exercised by or on 

behalf of the applicable percentage of 

Indian landowners under § 162.011 of 

this part. If the lease provides the 

parties with the power to terminate the 

lease, BIA concurrence with the 

termination is required to ensure that 

the Indian landowners of the applicable 

percentage of interests have consented. 

BIA will record the termination in the 

Land Titles and Records Office. 

(c) The parties must notify any surety 

or mortgagee of a termination of a WSR 

lease. 

(d) Negotiated remedies may apply in 

addition to, or instead of, the 

cancellation remedy available to us, as 

specified in the lease. 

(e) A WSR lease may provide for lease 

disputes to be resolved in tribal court or 

any other court of competent 

jurisdiction, by a tribal governing body 

in the absence of a tribal court, or 

through an alternative dispute 

resolution method. We may not be 

bound by decisions made in such 

forums, but we will defer to ongoing 

proceedings, as appropriate, in deciding 

whether to exercise any of the remedies 

available to us. 

§ 162.588 What will BIA do about a 

violation of a WSR lease? 

(a) If we determine there has been a 

violation of the conditions of a WSR 

lease, other than a violation of payment 

provisions covered by paragraph (b) of 

this section, we will promptly send the 

lessee and its sureties and any 

mortgagee a notice of violation. The 

notice of violation must be provided by 

certified mail, return receipt requested. 

(1) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to Indian 

landowners for individually owned 

Indian land. 

(2) Within 10 business days of the 

receipt of a notice of violation, the 

lessee must: 

(i) Cure the violation and notify us in 

writing that the violation has been 

cured; 

(ii) Dispute our determination that a 

violation has occurred; or 

(iii) Request additional time to cure 

the violation. 

(3) If a violation is determined to have 

occurred, we will make a reasonable 

attempt to notify the Indian landowners. 

(4) We may order the lessee to stop 

work. 

(b) A lessee’s failure to pay 

compensation in the time and manner 

required by a residential lease is a 

violation of the lease, and we will issue 

a notice of violation in accordance with 

this paragraph. 

(1) We will send the lessees and its 

sureties a notice of violation by certified 

mail, return receipt requested: 

(i) Promptly following the date on 

which payment was due, if the lease 

requires that payments be made to us; 

or 

(ii) Promptly following the date on 

which we receive actual notice of nonpayment from the Indian landowners, if 

the lease provides for payment directly 

to the Indian landowners. 

(2) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to the 

Indian landowners for individually 

owned Indian land. 

(3) The lessee must provide adequate 

proof of payment as required in the 

notice of violation. 

(c) The lessee and its sureties will 

continue to be responsible for the 

obligations contained in the lease until 

the lease is terminated, cancelled, or 

expires. 

(d) Nothing in this part affects BIA’s 

ability to take emergency action to 

protect the leased premises under 

§ 162.021. 

§ 162.589 What will BIA do if a lessee does 

not cure a violation of a WSR lease on 

time? 

(a) If the lessee does not cure a 

violation of a WSR lease within the 

requisite time period, or provide 

adequate proof of payment as required 

in the notice of violation, we will 

consult with the tribe for tribal land or, 

where feasible, Indian landowners for 

individually owned Indian land, and 

determine whether: 

(1) We should cancel the lease; 

(2) The Indian landowners wish to 

invoke any remedies available to them 

under the lease; 

(3) We should invoke other remedies 

available under the lease or applicable 

law, including collection on any 

available performance bond or, for 

failure to pay compensation, referral of 

the debt to the Department of the 

Treasury for collection; or 

(4) The lessee should be granted 

additional time in which to cure the 

violation. 

(b) We may take action to recover 

unpaid compensation and any 

associated late payment charges. 

(1) We do not have to cancel the lease 

or give any further notice to the lessee 

before taking action to recover unpaid 

compensation. 

(2) We may still take action to recover 

any unpaid compensation if we cancel 

the lease. 

(c) If we decide to cancel the lease, we 

will send the lessee and its sureties and 

any mortgagees a cancellation letter by 

certified mail, return receipt requested, 

within 5 business days of our decision. 

We will send a copy of the cancellation 

letter to the tribe for tribal land, and will 

provide Indian landowners for 

individually owned Indian land with 

actual or constructive notice of the 

cancellation. The cancellation letter 

will: 

(1) Explain the grounds for 

cancellation; 

(2) If applicable, notify the lessee of 

the amount of any unpaid compensation 

or late payment charges due under the 

lease; 

(3) Notify the lessee of their right to 

appeal under part 2 of this chapter, 

including the possibility that the official 

to whom the appeal is made may 

require the lessee to post an appeal 

bond; 

(4) Order the lessee to vacate the 

property within 31 days of the date of 

receipt of the cancellation letter, if an 

appeal is not filed by that time; and 

(5) Require any other action BIA 

deems necessary to protect the Indian 

landowners. 

(d) We may invoke any other 

remedies available to us under the lease, 

including collecting on any available 

performance bond, and the Indian 

landowner may pursue any available 

remedies under tribal law. 

§ 162.590 Will late payment charges or 

special fees apply to delinquent payments 

due under a WSR lease? 

(a) Late payment charges will apply as 

specified in the lease. The failure to pay 

such amounts will be treated as a lease 

violation. 

(b) The following special fees may be 

assessed to cover administrative costs 

incurred by the United States in the 

collection of the debt, if compensation 

is not paid in the time and manner 

required, in addition to late payment 

charges that must be paid to the Indian 

landowners under the lease: 

The lessee will pay . . . For . . . 

(a) $50.00 .................. Dishonored checks. 

(b) $15.00 .................. Processing of each 

notice or demand 

letter. 

(c) 18 percent of balance due.Treasury processing 

following referral 

for collection of delinquent debt. 

§ 162.591 How will payment rights relating 

to WSR leases be allocated between the 

Indian landowners and the lessee? 

The WSR lease may allocate rights to 

payment for insurance proceeds, 


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trespass damages, compensation 

awards, settlement funds, and other 

payments between the Indian 

landowners and the lessee. If not 

specified in the insurance policy, order, 

award, judgment, or other document 

including the lease, the Indian 

landowners will be entitled to receive 

such payments. 

§ 162.592 When will a cancellation of a 

WSR lease be effective? 

(a) A cancellation involving a WSR 

lease will not be effective until 31 days 

after the lessee receives a cancellation 

letter from us, or 41 days from the date 

we mailed the letter, whichever is 

earlier. 

(b) The cancellation decision will be 

stayed if an appeal is filed unless the 

cancellation is made immediately 

effective under part 2 of this chapter. 

While a cancellation decision is stayed, 

the lessee must continue to pay 

compensation and comply with the 

other terms of the lease. 

§ 162.593 What will BIA do if a lessee 

remains in possession after a WSR lease 

expires or is cancelled? 

If a lessee remains in possession after 

the expiration or cancellation of a lease, 

we may treat the unauthorized 

possession as a trespass under 

applicable law. Unless the applicable 

percentage of Indian landowners under 

§ 162.011 have notified us in writing 

that they are engaged in good faith 

negotiations with the holdover lessee to 

obtain a new lease, we may take action 

to recover possession on behalf of the 

Indian landowners, and pursue any 

additional remedies available under 

applicable law, such as forcible entry 

and detainer action. 

§ 162.594 Will BIA regulations concerning 

appeal bonds apply to cancellation 

decisions involving WSR leases? 

(a) Except as provided in paragraph 

(b) of this section, the appeal bond 

provisions in part 2 of this chapter will 

apply to appeals from lease cancellation 

decisions. 

(b) The lessee may not appeal the 

appeal bond decision. The lessee may, 

however, request that the official to 

whom the appeal is made reconsider the 

appeal bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

§ 162.595 When will BIA issue a decision 

on an appeal from a WSR leasing decision? 

BIA will issue a decision on an appeal 

from a leasing decision within 60 days 

of receipt of all pleadings. 

§ 162.596 What happens if the lessee 

abandons the leased premises? 

If a lessee abandons the leased 

premises, we will treat the 

abandonment as a violation of the lease. 

The lease may specify a period of nonuse after which the lease premises will 

be considered abandoned. 

16. Add a new subpart G to read as 

follows: 

Subpart G—Records 

Sec. 

162.701 Who owns the records associated 

with this part? 

162.702 How must records associated with 

this part be preserved? 

162.703 How does the Paperwork 

Reduction Act affect this part? 

Subpart G—Records 

§ 162.701 Who owns the records 

associated with this part? 

(a) Records are the property of the 

United States if they: 

(1) Are made or received by a tribe or 

tribal organization in the conduct of a 

Federal trust function under 25 U.S.C. 

450f et. seq., including the operation of 

a trust program; and 

(2) Evidence the organization, 

functions, policies, decisions, 

procedures, operations, or other 

activities undertaken in the performance 

of a Federal trust function under this 

part. 

(b) Records not covered by paragraph 

(a) of this section that are made or 

received by a tribe or tribal organization 

in the conduct of business with the 

Department of the Interior under this 

part are the property of the tribe. 

§ 162.702 How must records associated 

with this part be preserved? 

(a) Any organization, including tribes 

and tribal organizations, that has 

records identified in § 162.701(a) of this 

part, must preserve the records in 

accordance with approved Departmental 

records retention procedures under the 

Federal Records Act, 44 U.S.C. Chapters 

29, 31 and 33. These records and related 

records management practices and 

safeguards required under the Federal 

Records Act are subject to inspection by 

the Secretary and the Archivist of the 

United States. 

(b) A tribe or tribal organization 

should preserve the records identified 

in § 162.701(b) of this part, for the 

period of time authorized by the 

Archivist of the United States for similar 

Department of the Interior records in 

accordance with 44 U.S.C. Chapter 33. 

If a tribe or tribal organization does not 

preserve records associated with its 

conduct of business with the 

Department of the Interior under this 

part, it may prevent the tribe or tribal 

organization from being able to 

adequately document essential 

transactions or furnish information 

necessary to protect its legal and 

financial rights or those of persons 

directly affected by its activities. 

§ 162.703 How does the Paperwork 

Reduction Act affect this part? 

The collections of information 

contained in this part, have been 

approved by the Office of Management 

and Budget under 44 U.S.C. 3501 et seq. 

and assigned OMB Control Number 

1076–0155. Response is required to 

obtain a benefit. A Federal agency may 

not conduct or sponsor, and you are not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB Control Number. 

Dated: September 22, 2011. 

Larry Echo Hawk, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2011–29991 Filed 11–28–11; 8:45 am] 

BILLING CODE 4310–6W–P 


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