# HEARTH ACT BUSINESS LEASE ORDINANCE CIIAPTER ONE (2021)

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- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

HEARTH ACT BUSINESS LEASE ORDINANCE CIIAPTER ONE
INTRODUCTION

1.1

Authority and Delegation. This Ordinance is enacted by the Colville
Business Council pursuant to tlle powers vested to it under Article V, Section 1 ofthe
Constitution ofthe Confederated Tribes of the Colville Reservation ("Colville Tribes" or the
"Tribes"), as approved by the Commissioner of Indian Affairs on April 19, 1938, as amended
and as may be amended from time to time ("Constitution"). This Ordinance be effective
immediately upon approval by the Assistant Secretary-Indian Affairs, or her designee.
1.2 Scope. The scope of application ofthis Ordinance shall be limited to Business Leases
approved by the Colville Business Council, in accordance with all applicable federal regulations
and laws of the Colville Tribes where such approval indicates that the Lease is to be govemed by
this Ordinance. Nothing herein shall be construed to affect the terms and conditions ofexisting
leases.

1.3 Purpose. The purposes ofthis Ordinance are to:
(a) Implement the Helping Expedite and Advance Responsible Tribal Home
Ownership (HEARTH) Actof 2012, Pub. L. 112-151, codified at 25 U.S.C.

$alsG);

(b)

Recognize the authority of the Colville Tribes to issue, review, approve, and
enforce Business Site Leases without BIA approval under the HEARTH Act
and establish streamlined procedures for environmental review; and

(c)

Promote self-determination, encourage economic self-suffrciency, and increase
business activity and employment on and around the Colville Reservation and on
and around other lands held in trust for the benefit of the Colville Tribes, including
such lands in the North Half, the former Moses Columbia Reservation, the Tribes'
aboriginal areas, and elsewhere outside the boundaries of the Colville Reservation.

1.4

Leases Subject to Ordinance: Only those Business Site Leases of surface
lands held in trust for the benefit of the Colville Tribes identifred in a resolution duly
enacted by the Colville Business Council shall be subject to this ordinance. Such Leases
shall not be effective until the date identified in the duly enacted Tribal Resolution. All
other Leases shall proceed through the default BIA review and approval process.

1.5 Short Title. This Ordinance shall be known and cited as the "Confederated
Tribes of the Colville Reservation HEARTH Act Business Lease Ordinance."
1.6 Applicable Law. Except where otherwise required by agreement or applicable law,
the Colville Business Council shall manage all Leases pursuant to this Ordinance. The law that
will apply to all Leases authorized under this Ordinance will be in the following order: the laws,
regulations, and ordinances ofthe Colville Tribes and any appiicable federal regulations.

HEARTH Act Business Lease C)rdinancc

Page I

CHAPTER TWO DEFINITIONS
2.1 Delinitions. As used in this Ordinance, the capitalized terms set lorth below shall
have the following meanings:

(a)

"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 Business Site Lease.

(b)

"Best Interest of the Tribes" means the balancing of interests in order to attain the
highest economic income, provide incentives to increase economic development,
preserve and enhance the value of Tribal Land, increase employment and jobs on
the Tribal Land, and preserve the sovereignty ofthe Colville Tribes.

(c)

"B1l " means the Bureau of Indian Affairs, United States Department of the
Interior.

(d)

"Business Site Lease(s)" means the same as "Lease."

(e)

" Change

in Land Use" means the change from residential to non-residential,

commercial to industrial, or one industrial use to another that significantly differs
from the former use.

(f)
(g)

"Development Period" means the period from when a Lease is executed to when
improvements are expected to be substantially completed.

Review Process" means the process for conducting tribal
environmental review to assess whether a proposed development or project as
defined under applicable Tribal law or regulations will have a Significant Effect
" Environmental

on the Environment.

(h)

"Environmental Reviewer" means the Tribes' lntegrated Resources Management
Plan (IRMP) Coordinator, or his or her designee, or any other individual otherwise
designated by the Colville Business Council.

(D

"Execuling Oficial" means the Director of the Tribal Realty Department, who
shall execute all Business Site Leases ofthe Colville Tribes and take all necessary
and proper action on Leases and Subleases, including amendments, modifications,
Assignments and cancellations of Leases and Subleases.

0)

"Fair Annual Lease Value" means the most probable dollar amount a property
should bring in a competitive and open market reflecting all conditions and
restrictions of the specified Lease agreement including term, rental adjustment and
revaluation, permitted uses, use restrictions, and expense obligations; the Lessee
and Lessor each acting prudently and knowledgeably, and assuming

rIEARTII Act Business Lease Ordinance

Page 2

consummation of a Lease contract as of a specified date and the passing of the
leasehold from Lessor to Lessee under conditions whereby:

(i)
(ii)

Lessee and Lessor are typically motivated;

Both parties are well-informed or well-advised, and acting in what they
consider their best interests;

(iii)

A reasonable time is allowed for exposure in the open market;

(iv)

The rent payment is made in terms of cash in United States dollars, and is
expressed as an amount per time period consistent with the payment
schedule of the Lease conlract; and the rental amount represents the
normal consideration for the property leased unaffected by special fees or
concessions granted by anyone associated with the transaction.

(k) "Holdover" means circumstances in which a Lessee remains in possession of the
leased premises after the Lease term expires.

0)

written agreement or contract between the Lessor and a Lessee
whereby the Lessee is granted a right to possess Tribal Land for a specified
purpose and duration. The Lessee's right to possess will limit the Lessor's right to
possess the leased premises only to the extent provided in the Lease.
'' Lease" means a

(m) " Leasehold Morlgage" 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.

(n)

Leasing Decision" means the following type of lease transactions that will be
acted on by the Tribal Realty Department: lease issuance, lease amendment or
modification, subleasing, lease assignment or transfer and tenanl leases.

(o)

"Lessee" means a person or entity who has acquired a legal right to possess Tribal
Land by a Lease pursuant to this Ordinance.

(p)

"Lessor" means the Tribal Realty Department, on behalf of the Tribes. who holds
property title and conveys the right to use and occupy the property under a Lease.

"

(q) "Land Title and Records Ofiice" or "I1"RO" means the office within the Bureau of
Indian Affairs charged with the Federal responsibility to record, provide custody,
and maintain records that affect titles to Indian lands, to examine titles, and to
provide title status reports for such land.

G)
(s)

"Project" means the activity contemplated by the proposed Lease.

"Public" for the purposes of the Environmental Review Process means the
enrolled members of the Colville Tribes and other individuals that have a concrete
interest that may reasonably be affected by a proposed Lease.

IIEARTI I Act Business lxase Ordinance

Page 3

(t)

"Restricted Land' means any tract held by the U.S. in restricted status for the
benefit ofthe Tribes.

(u) "SigniJicant Effict on lhe Environmenl" means a substantial, or potentially

substantial, adverse change in the environment, including land, air, water,
minerals, flora, fauna" ambient noise, cultural areas and objects ofhistoric, cultural
or aesthetic significance, as determined by the Director ofthe Environmental Trust
Department.

(v)

"Space Lease" means a Lease of space within existing facilities on Tribal Land
that is not already leased, i.e., not Subleases.

(w) "Sublease" means a written agreement by which the Lessee grants to an individual
or entity a right to possession no greater than that held by the Lessee under a
Business Site Lease.

(*)

"Tribal Land' means the surface estate of any tract of land held by the United
States in trust or restricted status for the beneht ofthe Colville Tribes.

(V) "Tribal Realty Department" means the administrative depanment of the Colville
Tribes that carries out realty transactions on the Tribes' behatf, including those
tribal personnel that perform BIA realty functions under a contract, compact,
cooperative agreement, or other instrument under the Indian Self-Determination
and Education Assistance Act of 1975. The Director of the Tribal Realty
Department has the authority to perform the duties and responsibilities of the Lessor
on behalf of the Tribes, and to approve or disapprove leasing transactions, which
include but are not limited to: lease issuance, bond, Iease amendment or modification.

(r)

"Trust or Restricted Land' means any tract held by the U.S. in trust or restricted
status for the benefit ofa tribe.

(aa) "Trust or Restricted Status" means that the U.S. holds title to the tract in trust for
the benefit ofa tribe; or a tribe holds title to the tract, but can alienate or encumber
it only with the approval of the U.S. because of limitations in the conveyance
instrument under Federal law or limitations in Federal law.

CHAPTERTHREE
BUSINESS SITE LEASE REQUIREMENTS

3.1

Terms and Conditions, Leases shall be govemed by the terms and conditions
set forth in the Business Site Lease agreement, this Ordinance, and applicable law. The terms
and conditions may be modified only with the approval olthe Office of the Colville Business
Council, its designee, or the Office of the Reservation Attomey. The Lessee is responsible for
understanding these terms and conditions.
3.2 Duration and Renewal. No Lease shall be approved more than 12 months prior
to the commencement of the term of the Business Site Lease. The term shall not be more

IIEARTH Act Business tlasc Ordinancc

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than 25 years except that any such Lease may include an option to renew for up to two
additional terms, each of which may not exceed 25 years. If the Lease includes an option to
renew. the Lease must specify:

(l) 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 the Tribal Realty
Departmentus, unless the lease provides for automatic renewal;

(3) Whether Colville Tribes' consent to the renewal is required;
(4) That the Lessee must provide notice ofthe renewal to the Colville Tribes and any
sureties and mortgagees;

(5) The additional consideration, if any, that will be due upon the exercise of the
option to renew or the start ofthe renewal term; and
(6) Any other conditions for renewal (e.g., that the Lessee is not in violation of the
lease at the time of renewal).
The Lessee shall notiff the Tribal Realty Department of the intent to renew, at least
one year before such Lease is due to expire.
3.3 Obtaining a Business Site Lease. Information on obtaining a Business Site Lease
shall be available from the Director ofthe Tribal Realty Department, or his or her designee.

(a) All applicants for a Business Site Lease shall submit the following documents to
the Tribal Realty Department:
(D

(ii)

financial statements, suflicient to inform the Colville Business Council of
the economic position of the applicant, including by not limited to bank
statements dating back twenty-four (24) months;
site survey and legal description, ifapplicable;

(iii) tribal environmental review where required under Chapter 7 ofthis
Ordinance; and

(i")

(b)

other documents as may be required by the Tribal Realty Department and
pursuant to the Tribal Realty Departrnent's Business Site Leasing
procedures.

All Business Site Leases shall contain, at a minimum, the following provisions:

HIARIII Act Eusiness I-ease Ordinance

Page 5

(i)

(iD

a legal description of the land that meets the requirements of the Land
Title Records Offrce and, at the request of the Land Title Records Office,
any additional information needed by the LTRO to enable the LTRO to
ascertain the location ofthe land;
The purpose ofthe Lease and authorized uses ofthe leased premises;

(iii) The parties to the Lease;
(iv)

The term ofthe Lease and the effective date ofthe Lease;

(v)

Identification of the responsible party for constructing, owning, operating,
removing, and maintaining any improvements to the leased premises;

(vi)

Indemnification and hold-harmless provision in favor of United States and
the Tribes, as Lessor;

(vii)

Payment requirements, acceptable forms of payments, and provisions
relating to late payments, including interest and penalties;

iii)

Unless otherwise provide for in the Lease, the Lessee shall make
payments directly to the Tribal Realty Departrnent using an acceptable
form of payment listed in Section 3.7(f) of this Ordinance;

(ix)

Due diligence, insurance and bonding requirements as provided in this

(v

Section; and

(x)

(c)

All powers of the Tribal Realty Department that are necessary and proper
to enforce the Lease terms, laws, ordinances, regulations, rules, policies,
and covenants, consistent with their business site leasing management
plans. This includes the power 1o enter the premises at a reasonable time,
with or without notice, assess penalties, and assess late payments.

The Colville Business Council shall approve or disapprove a Lease within sixty
(60) days of receiving a complete Business Site Lease application. Following
Colville Business Council approval of a Lease, the Tribal Realty Department
shall record Business Site Leases, Subleases, Assignments, amendments,
encumbrances, renewals, modifications, and cancellations with:

(i)

Land Title and Records Office
Confederated Tribes of the Colville Reservation
P.O. Box 150
Nespelem, WA 99155

(ii)

The Tribal Realty Department is responsible for maintaining all
records of all Business Site Leases and for disseminating recorded
lease documents to the Colville Business Council, the Environmental

IIEARTH Act Business l-casc Gdinance

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Trust Department, the Office of the Reservation Attorney, and if
required by the Colville Business Council, to the Colville Indian
Housing Authority.

(iiD The Tribal Realty Department shall send a copy of these Leases and
all amendments and renewals for information purposes only, to:
Superintendent, Colville Indian Agency, Bureau of Indian Affairs,
Post Office Box 111, Nespelem, WA 99155-0111.

(iu) The Tribal Realty Department shall send a copy ofthis Ordinance and
a Lease that allows for lease payments directly to the Colville Tribes
to: Superintendent, Colville Indian Agency, Bureau of Indian Affairs,
Post Office Box 111, Nespelem, WA 99155-01 11.
(c)

Records of activities taken pursuant to this Ordinance are the property of the
United States, the Tribal Realty Department, and the Tribes' Records compiled,
developed, or received by the Tribal Realty Department in the course of business
with the Secretary are the property of the Tribes.

(d) A Lease may include, consistent with tribal law, a provision to give Indian
preference in hiring for employment purposes.

3.4

Space Leases. To the extent these Leases require approval pursuant to federal
laws and policies, Space Leases shall be reviewed and approved pursuant to this Ordinance.

3.5

Land Descriptions. Business Site Leases shali contain a legal description ofthe
land that meets the requirements of the Land Title Records Office. Space Leases shall contain
adequate descriptions of the location and square footage of the space being leased and may
include renderings, architectural drawings, or other schematics to illustrate the location of the
space.

3.6 Appraisal; Local Studies.
(a) The Fair Annual Lease Value shall be determined by an appraisal or
equivalent procedure performed by the Tribal Realty Department utilizing the
following data: improvement cost, replacement cost, eaming capacity, sales and
lease data of comparable sites or by similar methodology as approved by the Tribal
Realty Department and deemed to be in the best interest of the Colville Tribes. An
appraisal log reporting the methods of appraisal and value of Tribal Land shall be
attached to every Business Site Lease.

(b)

Altematively, the Fair Annual Lease value shall be determined by an
appraisal performed by a licensed appraiser utilizing the Uniform Standards of
Professional Appraisal Practice or commonly accepted method of appraisal. An
appraisal log describing the method of appraisal and value of Tribal Land and shall
be attached to every Business Site Lease.

3.7

Fair Annual Lease Value.

HEARTH Act Busincss Lcasc Ordinarce

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(a) No Lease shall be approved for less than the present Fair Annual Lease Value as set

forth in the appraisal, except as follows:

(i)

The Lease is in the Development Period;

(iD

The Lessee is the Colville Tribal Federal Corporation or any other
business entity established by the Colville Business Council for the benefit

of the Tribes, and any of their affiliates or subsidiaries, provided the
Colville Business Council determines the Lease is in the Best Interest of
the Tribes; or

(iii)

The Colville Business Council has negotiated compensation satisfactory to
the Tribes, has waived valuation, and has determined that accepting such
negotiated compensation and waiving valuation is in its best interest..

(b)

A Lease may be structured at a flat lease rate.

(c)

A Lease may be structured at a flat lease rate plus a percentage ofgross receips.

(d)

A Lease may be structured based on a percentage ofgross receipts, or based on a
market indicator.

(e)

A Lease must specify the dates on which all payments are due.

(0

A Lease must specify that the Lessee shall make payments directly to the Tribal
Realty Departrnent using an acceptable form of payment. Acceptable forms of
payment include money orders, personal checks, certified checks, or cashier's
checks.

(e)

Unless otherwise provided in the Lease, payments may not be made or accepted
more tlan one year in advance of the due date.

(h)

The Lease may provide for periodic review and such review may give

consideration to the economic conditions, exclusive of improvement or
development required by the contract or the contribution value of such
improvements.
(D

Leases may be structured to allow for lease rate adjustments. The Lease shall

specify how adjustments will be made, who will make such adjustments, when
adjustments will go into effect, and how disputes shall be resolved.

C)

Leases may be amended to allow for lease rate adjustments.

(k)

The Tribal Realty Department shall keep written records of the basis used in
determining the Fair Annual Lease value, as well as the basis for adjustments.
These records shall be presented to the Lessee for its review and acceptance or
non-acceptance and included in any lease file.

HEARTH Act Business Lease Ordinance

Page 8

3.8 Environmental Review Process. Unless exempted from this requirement under
this Ordinance, the Colville Business Council shall not approve a Business Site Lease until
the proposed business site Lessee has completed the Environmental Review Process under
Chapter Seven of this Ordinance. Leases approved and executed without complying with
this section shall be null and void
3.9 Insurance and Indemnffication.
(a)

A Lessee shall provide insurance necessary to protect the interests of the
Colville Tribes and in amounts sufficient to protect all insurable improvements
on the premises. The insurance may include, but is not limited to, property,
liability or casualty insurance or other insurance as specified in the Business Site
Lease. The Colville Tribes and the United States must be identified as
additional insured parties. The Tribal Realty Department may waive this
requirement if the waiver is in the best interest of the Tribes. The waiver may be
revoked at any time if the waiver ceases to be in the Tribes' best interest.

(b)

Unless the Lessee would be prohibited by law from doing so, the Lease must
also contain the lollowing provisions:

(1) The Lessee holds the United States and the Colville Tribes harmless from
any loss, liability, or damages resulting from the Lessee's use or occupation of
the leased premises; and

(2) The Lessee indemnifies the United States and the Colville Tribes 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, with the exception that the Lessee is not required to
indemnifu the Colville Tribes for liability or cost arising from the Colville
Tribes' negligence or willful misconduct.

3.10 Performance Bond.
(a)

Unless waived in writing by the Colville Business Council in accordance with
this Ordinance, the Lessee shall obtain a satisfactory performance bond in an
amount sufficient to secure the contractual obligations ofthe Lease. Such bond
shall be for the purpose of securing the Lessee's contractual obligations under
the Business Site Lease and may guarantee the annual lease payment;, the
estimated development cost of improvements; and any additional amount
necessary to ensure compliance with the Lease.

If a performance bond is required
(1) the Lease must state that the Lessee must obtain the consent ofthe surety for
any legal instrument that directly affects their obligations and liabilities; and

HHAR l H Act Uusiness L€ase Ordinance

Page 9

(2) The performance bond or other security instrument must require the srrety to
provide notice to the Tribal Realty Office at least 60 days before canceling a
performance bond or other security. This will allow the Tribal Realty
Department to notifu the Lessee of its obligation to provide a substitute
performance bond or other security and require collection of the bond or
security before the cancellation date. Failure to provide a substitute
performance bond or security is a violation ofthe Lease.

(b)

(c)

The Colville Business Council may waive the bond requirement, or reduce the
amount, if it determines that doing so is in the Best Interest of the Colville
Tribes. The Tribal Realty Department shall maintain written records of waivers
and reductionsThe performance bond may be in one of the following forms:

(l)

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)
(4)

Negotiable Treasury securities; or

Surety bond issued by a company approved by the U.S.
Department of the Treasury.

3.ll Improvements. All Business Site Leases shall require the Lessee to exercise
due diligence and best efforts to complete construction of any improvements within the
schedule specified in the Business Site Lease.

(a)

Lessee, at Lessee's expense or as otherwise provided in the Business Site
Lease, may construct improvements under a Business Site Lease if the Lease
specifies, or provides for the development of:

(i)

a plan that describes the type and location ofany improvements to be built

by the Lessee; and

(ii)
(b)
.

a general schedule for construction of the improvements.

Lessee shall provide the Tribal Realty Department written justification as to

the nature of any delay, the anticipated date of construction of the
improvements, and evidence of progress toward commencement of
construction.

(c)

When requested by the Tribal Realty Department or otherwise required in the

Business Site Lease, Lessee shall further provide the Tribal Realty
Department, in writing, an updated schedule for construction.
HEARTH Acl Busin€ss I-ease Ordinance

Page l0

(d)

(e)

Failure of the Lessee to comply with these requirements will be deemed a
violation of the Business Site Lease and may lead to cancellation of the
Business Site Lease pursuant to Chapter 5 of this Ordinance.
Improvements to the premises shall become the property of the Colville Tribes
unless otherwise provided for in the Business Site Lease. If improvements will be

removed, the Business Site Lease must specify the Lessee's responsibility for
such removal, the maximum time allowed for such removal, and the Lessee's
obligations to restore and reclaim the property to conditions acceptable to the
Tribes.

(0

A Lessee may develop equity value in the improvements, and sell its interest in
the Business Site Lease based on the equity value. The Colville Business Council
has a right offirst refusal to purchase the interest.

(e)

The Business Site Lease may provide that at expiration, cancellation, or
termination of the Business Site Lease, the Lessor shall purchase
improvements to the premises at fair market value. Any Business Site Lease
that includes this provision shall also include a depreciation schedule.

(h)

Improvements may be subject to taxation by the Colville Tribes.

3.12

Subleases, Assignments, Amendments and Encumbrances.

(a)

Subleases, Assignments, amendments or encumbrances of any Business Site
Lease shall be by written consent of the Tribal Realty Department and Lessee
and shall not be effective until approved by the Colville Business Council.

(b)

The Business Site Leases may authorize Subleases and Assignments, in whole
or in part, with the written approval of the Colville Business Council, provided a
copy of the Sublease or Assignment is provided to the Tribal Realty Department
and the following conditions, where applicable, are met and stated in the
Business Site Lease:

(D

There is no event of default under the Business Site Lease or this
Ordinance;

(ii)

Any restrictions and use limitations on the use of the premises shall
continue to apply to any subtenant or assignee;

(iii) The proposed assignee or sublessee submits a current financial statement
showing financial adequacy; and

(iv)

The Lessee shall not be relieved or released from any of its obligations
under the Business Site Lease.

This Section 3.12(b) in no way relieves the parties from carrying out their duties under
the Business Site Lease, which may contain additional restrictions and conditions.
HEARIH Act Business Lease Ordinance

Page 1 I

(c)

The Lease may authorize encumbrances to the leasehold interest for the purpose
of financing to develop and improve the premises subject to approval by the
Tribal Realty Department and execution from the Executing Oflicial.

(d)

If a sale or foreclosure of the Lessee's business or assets occurs and the
encumbrancer is also the purchaser, the encumbrancer may assign the Lease
without approval ol the Tribal Realty Department or Lessee, provided the
assignee agrees in writing to be bound by all the terms and conditions of the
Lease. If the purchaser is a party other than the encumbrancer, approval by the
Tribal Realty Department and execution from the Executing Official is required,
provided the purchaser agrees in writing to be bound by all terms and conditions
of the Lease.

CHAPTER TOUR BUSINESS LEASE MANAGEMENT

4.1 Management generally: Except where required otherwise by the terms ofthe Lease,
applicable law, or the Colville Business Council, the Tribal Realty Department shall manage all
Business Site Leases pursuant to this Ordinance. The terms of the Environmental Review Process
shall be managed by the Environmental Reviewer.

4.2 Administrative Fees. The Tribal Realty Department may charge administrative
fees for costs associated with issuing a Lease, Sublease, Assignment, amendment, mortgage or

other administrative transaction.

CHAPTER FIVE ENFORCEMENT

5.1 Generally. Following approval ofa Lease by the Colville Business Council, the
Tribal Realty Department shall have all powers necessary and proper to enforce the Lease
terms, laws, ordinances, regulations, rules, policies, and covenants, consistent with their
business site leasing management plans. This includes the power to enter the premises at a
reasonable time, with or without notice, assess penalties, and assess late payments. The
obligations of the Lessee and its sureties to the Colville Tribes are also enforceable by the
United States, so long as the land remains in trust or restricted status.

3.2 Default.
(a) The Lessee is in default if:
(i)
(iD

The Lessee has failed to make payments required by the Lease; or

The Lessee is otherwise in breach of the terms of the Lease or any other
requirement of this Ordinance.

(b) If the Tribal Realty Department determines the Lessee is in default, the Tribal
Realty Departrnent shall send the Lessee a notice of default within five (5)
business days of the determination. The notice of default may be provided by
certified mail, retum receipt requested.
HEARTH Acl Business kase Ordinance

Page 12

(c)

Within ten (10) days of the mailing, the Lessee shall:

(i)

Cure the default and notiry the Tribal Realty Department in writing that
the default has been cured.

(ii)

Dispute the Tribal Realty Department's determination that the Lease is in
default and explain why the Lease should not be canceled; or

(iii) Request additional time to cure the default.
5.3

Remedies.

(a)

If the Lessee fails to cure the default within the prescribed period, the Tribal
Realty Department may:

(D

Cancel the Lease pursuant to these regulations: Additionally, the BIA
may, upon reasonable notice from the Tribes and at the discretion of the
BIA, enter the leased premises for inspection and enforce the provisions of,
or cancel, any Lease executed by the Tribes;

(ii)

Grant an extension of time to cure the defaultl

(iii)

Pursue other remedies, including execution on bonds, collection of
insurance proceeds, or use of collateral under Section 5.8 of this
Ordinance;

(iv) Any combination of remedies listed above; or
(v) Any other remedy set forth in the business site lease management plan or
policy.

(b) If the Tribal Realty Department cancels a Business Site Lease, the Tribal
Realty Department shall send the Lessee a cancellation letter within a
reasonable time period. The cancellation letter may be sent to the Lessee by
certified mail, retum receipt requested. The cancellation letter shall:

(D
(ii)

Explain the grounds for cancellation;

Nodry the Lessee of unpaid amounts, interest charges or late payment
penalties due under the Lease;

(iiD Notifu the Lessee ofits right to appeal; and
(iv) Order the Lessee to vacate the premises within thirty (30) days of mailing
of receipt ofthe cancellation letter, if an appeal is not hled by that time.

(c)

A cancellation shall become effective thirty (30) days after mailing. The
filing of an appeal shall not change the effective date of the cancellation.

HEARTII Acl Business L€ase Ordinance

Page 13

Pending the outcome of an appeal, the Lessee shall make all requisite
payments, as well as comply with the terms of the Lease.

(d) If the Tribal Realty Department decides to grant an extension oftime to cure a
default, the Lessee shall proceed diligently to perform and complete the
corrective actions within a reasonable time period.

5.4

Penalties. The Lease shall specify the rate of interest to be charged if the
Lessee lails to make payments in a timely manner. The Lease shall identifu additional late
payment penalties. Unless the Lease provides otherwise, interest charges and late payment
penalties shall apply in the absence of any specific notice to the Lessee lrom the Tribal
Realty Department, and the failure to pay such amount shall be treated as a breach of the
Lease.

5.5 Harmful or Threatening Activities. If a Lessee or other party causes or
threatens to cause immediate and significant harm to the premises, or undertakes criminal
activity thereon, the Tribal Realty Department may take appropriate emergency action. The
BIA may, upon reasonable notice from the Tribes and at the discretion of the BIA, enter the
leased premises for inspection and enforce the provisions of, or cancel, any Lease executed
by the Tribes.

5.6 Holdover. If a Lessee remains in possession after the expiration or
cancellation of a Lease, the Tribal Realty Department shall treat such occupation as a
trespass. The Tribal Realty Department shall act to recover possession and pursue additional
remedies. Filing shall be pursuant to Tribal laws, or altematively, the Tribal Realty
Department may make a written request sent by certified mail to the BIA for resolution under
any applicable federal laws.

5.7 Trespass. If a person occupies the premises without the Tribal Realty
Depanment's approval, the Tribal Realty Department or t}Ie Colville Business Council may
pursue appropriate remedies, including the filing of a trespass action to regain possession
under tribal law.

5.8 Use of Collateral to Satisfy Obligations. The Colville Tribes may hold,
convert and apply toward unpaid balances, or otherwise utilize the assets of a Lessee or
person to satisfy any applicable provision of this Section 5.

CHAPTER SIX
APPEALS
6.1 Appeals. The Lessee or interested party may appeal a determination of the Tribal
Realty Department, within ten (10) days of the determination. Appeals may be filed with the
Colville Tribal Court or other hearing body or entity designated by the Colville Business
Council. Such appeals shall be effectuated by a wriuen notice setting forth the basis for the

appeal, a short statement indicating the nature and circumstances of the appeal, and a short
statement indicating the remedy being sought.
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6.2 Scope of Review. The Colville Tribal Court or other hearing body designated by
the Colville Business Council shall review whether the determination was arbitrary,
capricious, or an abuse of discretion; not supported by substantial evidence in the record; or
otherwise, not in accordance with the law. The decision of the Colville Tribal Court or other
hearing body shall be frnal and shall not be subject to appeal. The BIA shall have
discretionary authority to review a determination of the Tribal Realty Department once the
Lessee or interested party has exhausted the Tribes' appeal process.

CHAPTER SEVEN
ENVIRONMENTAL REVIEW PROCESS
7.1 Generally. Unless exempt under this Chapter, the Tribal Realty Department shall
not submit a Business Site Lease to the Colville Business Council for review and approval
until the proposed Business Site Lease has completed the Environmental Review Process,

administered by the Environmental Reviewer and pursuant to this Chapter and applicable
Tribal regulations. Leases approved and executed without compliance with this Chapter shall
be null and void.

7.2
(a)

ThresholdDetermination.

Lessee Not Subject to Environmental Review Process: If the
Environmental Reviewer determines that the Leasing Decision by its natue
would not have a Significant Effect on the Environment, the Leasing Decision
is exempt fiom additional requirements of the Environmental Review Process,
subject to the environmental record requirements of applicable Tribal
environmental regulations.

(b)

Lessee Subject to Environmental Review Process: If the Environmental
Reviewer determines that the Leasing Decision might be expected to have a
Significant Effect on the Environment, the Lessee must fulfill the requirements
of the Environmental Review Process. The physical disturbances must be
direct, such as land clearing, new building construction, or discharge of
emission or effluent associated with the project.
historic properties.
archeological resources, human remains, or other cultual 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 the Tribal Realty
Department to determine how to proceed and appropriate disposition.

If

(c)

Other Exemptions. The Environmental Review Process shall not apply to
any Business Site Lease where such review is exempt under any other
applicable federal [aw, regulation, or administrative authority.

7.3 Action on Leasing Decision Subject to Completion of Environmental
Review Process. If the Environmental Reviewer determines that the Leasing Decision is
subject to the Environmental Review Process, the Tribal Realty Department may not
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consider the Leasing Decision until the Environmental Reviewer closes the Environmental
Review Process in accordance with this Ordinance.
7.4 Environmental Review Process.

(a)

Unless an exemption applies or a Lease is otherwise not subject to the
Environmental Review Process, then, before the execution of any Business
Site Lease, the Environmental Trust Department shall cause to be prepared a
tribal environmental impact report ("TEIR"), that analyzes the potentially
significant effects of the proposed action on the environment; provided,
however, that information or data that is relevant to such a TEIR and is a
matter of public record or is generally available to the Public need not be
repeated in its entirety in the TEIR, but may be specifically cited as the source
for conclusions stated therein; and provided further that such information or
data shall be briefly described, that its relationship to the TEIR shall be
indicated, and that the source thereof shall be reasonably available for
inspection at a public place or public building. The TEIR shall include a
detailed statement setting forth all of the following:

(i)

A description of the physical environmental conditions near the
Project (the environmental setting and existing baseline conditions), as
they exist at the time the notice of preparation is issued;

(iD All Significant Effects on the Environment ofthe proposed Lease; (iii)
In a separate section:

(l)

Any Significant Effect on the Environment that cannot be
avoided if the Lease is executed; and

(2)

Any Significant Effect on the Environment that would be
irreversible if the Lease is executed.

(3)
(b)

Any mitigation measures proposed, recommended, or required.

In addition to the information required pursuant to subdivision (a), the TEIR
shall also contain a statement indicating the reasons for determining that
various effects of the Lease on the off-reservation enviroffnent are not
significant and consequently have not been discussed in detail in the TEIR. In
the TEIR, the direct and indirect Significant Effects on the Environment shall
be clearly identified and described, giving due consideration to both the shortterm and long-term effects.

7.5 Notice of Completion of Draft TEIR.
(a) Within no less than thirty (30) days following the completion of the draft
TEIR, the Environmental Trust Department shall file a copy of the draft TEIR
and a Notice of Completion with the Tribes. The Environmental Trust
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Department shall also post the Notice of Completion and a copy of the draft
TEIR on the Tribes' website. The Notice of Completion shall include the
following information:

(b)

(i)

A brief description ofthe Project;

(iD

The proposed location ofthe Project;

(iii)

An address where copies ofthe draft TEIR are available; and

(iv)

Notice ofa period of thirty (30) days during which the Tribes will receive
comments on the draft TEIR.

To satisfu the requirement for public notice and oppommity to comment under
this Ordinance, the Environmental Trust Departrnent will provide public
notice by the procedures specified below:

(i)
(ii)

Publication ofthe draft TEIR in on the Tribes' public website; or
Publication ofthe Tribes' draft TEIR in the Tribal Tribune.

7.6 Response to Public Comments. After the thirty (30) day comment period has
ended, the Environmental Trust Department will review all comments received from the
Public. Prior to the approval and execution of the Business Site Lease, the Environmental
Reviewer will provide written reports detailing the responses to relevant and substantive
public comments on any Significant Effect on tlre Environment arising as a result of the
proposed project and proposed or recommended mitigation measures addressing any such
impacts. Such written report shall include a restoration and reclamation plan, as approved
by the Tribes. Upon completion of the Environmental Review Process, the Environmental
Trust Departrnent's written reports and final decision shall be posted on the Tribes' public
website as notice to the Public.

CHAPTEREIGHT
SOVEREIGN IMMUNITY
Nothing in this Ordinance shall be deemed to waive the sovereign immunity of the
Colville Tribes or any of its enterprises, authorities, oflicers, agents, or employees.

CHAPTER NINE
SEVERABILITY
lfany provision of this Ordinance, or the application thereofto any person or circumstance,
shall be held unconstitutional or invalid by the Colville Tribal Court or any other court of

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competent jurisdiction, only the invalid provision shall be severed and the remaining provisions and
language ofthis Ordinance shall remain in full force and effecl.

CHAPTERTEN
EFFECTIVE DATE; AMENDMENT
This Ordinance shall take effect upon its adoption by the Colville Business Council and
approval by the Secretary of the Interior and may be amended by the Colville Business
Council. All substantive amendments to this Ordinance must be submitted to and approved by
the Secretary of the Interior.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A2dc31afb850cffac. Public record. Not legal advice.