Title 6. Property and Land – Chapter 602

Title 6. Property and Land – Chapter 602

LEASING

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we’re loaning/leasing law

602.1.

602.2.

602.3.

602.4.

602.5.

602.6.

Purpose and Policy

Adoption, Amendment, Repeal

Definitions

General Provisions

Lease Document Requirements

Residential Leases

602.7.

602.8.

602.9.

602.10.

602.11.

602.12.

Agricultural Leases

Business Leases

Environmental and Cultural Reviews

Lease Management

Enforcement

Leasing Actions

602.1.

Purpose and Policy

602.1-1. Purpose. The purpose of this law is to set out the Nation’s authority to issue, review,

approve and enforce leases. In addition, the purpose of this law is to meet the requirements of

the Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH

Act) by establishing a process under which the Nation will be able to approve leases on tribal

land without additional approval of the Secretary of the Interior.

602.1-2. Policy. It is the policy of the Nation to set out the expectations and responsibilities of

the lessor and lessees of tribal land and to ensure the leasing of tribal land results in minimal risk

to the Nation.

602.2.

Adoption, Amendment, Repeal

602.2-1. This law was adopted by the Oneida Business Committee by resolution BC-05-13-15C and amended by resolution BC-10-26-16-C and becomes effective thirty (30) calendar days

after approval by the Secretary of the Interior.

602.2-2. This law may be amended or repealed by the Oneida Business Committee pursuant to

the procedures set out in the Legislative Procedures Act. Major, substantive changes to this law

may not take effect until they have been approved by the Secretary of the Interior. Minor,

technical amendments may take effect upon adoption by the Oneida Business Committee.

602.2-3. Should a provision of this law or the application thereof to any person or

circumstances be held as invalid, such invalidity shall not affect other provisions of this law

which are considered to have legal force without the invalid portions.

602.2-4. In the event of a conflict between a provision of this law and a provision of another

law, the provisions of this law shall control.

(a) To the extent that this law conflicts with any applicable federal statutes or regulations,

the federal statute or regulation controls.

(b) To the extent that any lease to which this law applies conflicts with this law, this law

controls.

602.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

602.3.

Definitions

602.3-1. This section shall govern the definitions of words and phrases used within this law.

All words not defined herein shall be used in their ordinary and everyday sense.

(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 lease.

(b) “Cultural Heritage Department” means the entity responsible for conducting cultural

reviews as required under this law.

6 O.C. 602 – Page 1

(c) “Cultural Review” means a review of the anticipated effects of a proposed lease

document on archaeological, cultural and/or historic resources.

(d) “Environmental, Health and Safety Division” means the entity responsible for

conducting environmental reviews as required under this law.

(e) “Environmental Review” means a review of the anticipated environmental effects of

a proposed lease document.

(f) “Guardian” means one who has legal authority and duty, as appointed by a court of

competent jurisdiction, to care for another’s person or property because of the other’s

infancy, incapacity or disability.

(g) “Improvements” means buildings, other structures, and associated infrastructure

attached to the leased premises.

(h) “Judiciary” means the judicial system that was established by Oneida General Tribal

Council resolution GTC-01-07-13-B to administer the judicial authorities and

responsibilities of the Nation.

(i) “Land Management” means the Division of Land Management or other entity

responsible for entering into leases of tribal land.

(j) “Lease” means a written contract between the Nation and a lessee, whereby the lessee

is granted a right to use or occupy tribal land, for a specified purpose and duration.

(k) “Lease Document” means a lease, lease amendment, assignment, sublease or

leasehold mortgage.

(l) “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.

(m) “Lessee” means a person or entity who has acquired a legal right to use or occupy

tribal land by a lease under this law, or one who has the right to use or occupy a property

under a lease.

(n) “Lessor” means the Nation, in its capacity as the legal, beneficial and/or equitable

owner of tribal land subject to a lease.

(o) “Nation” means the Oneida Nation.

(p) “Performance Bond” means a bond given to ensure the timely performance of a lease.

(q) “Rule” means a set of requirements, including fee schedules, enacted jointly by Land

Management and the Oneida Land Commission in accordance with the Administrative

Rulemaking law based on authority delegated in this law in order to implement, interpret

and/or enforce this law.

(r) “Secretary” means the Secretary of the Interior, U.S. Department of the Interior, or its

authorized representative.

(s) “Sublease” means a written agreement by which the lessee grants to a person or entity

a right to use or occupy no greater than that held by the lessee under the lease.

(t) “Tribal Land” means the surface estate of land or any interest therein held by the

United States in trust for the Nation; land held by the Nation subject to federal

restrictions against alienation or encumbrance; land reserved for federal purposes; and/or

land held by the United States in trust for the Nation under Section 17 of the Indian

Reorganization Act, 25 U.S.C §477, et. seq.

602.4.

General Provisions

602.4-1. Applicable Land. This law applies to all tribal land.

602.4-2. Applicable Leases.

(a) Except as excluded in (b) below, or as contrary to applicable federal statutes and

6 O.C. 602 – Page 2

regulations, this law applies to all residential, agricultural and business leases executed by

the Nation and to all actions and decisions taken in connection with those leases.

Provided that, nothing herein may be construed to affect the terms and conditions of

leases existing when this law goes into effect or amendments, assignments, subleases or

encumbrances made to those leases.

(b) This law does not apply to mineral leases, any lease of individually owned Indian

allotted land in accordance with 25 U.S.C. 415(h)(2), leases included in the Nation’s

home ownership programs administered using federal funding or leases lasting one (1)

year or less.

602.4-3. Applicable Law. In addition to this law, leases approved under this law are subject to:

(a) all of the Nation’s laws, except to the extent those laws are inconsistent with

applicable federal law; and

(b) applicable federal laws.

602.4-4. Pursuant to the authority of the Secretary to fulfill the trust obligation of the United

States to the Nation under federal law, the Secretary may, upon reasonable notice from the

Nation and at the discretion of the Secretary, enforce the provisions of, or cancel, any residential,

agricultural or business lease on tribal land executed by the Nation. The United States may not

be liable for losses sustained by any party to a residential, agricultural or business lease executed

pursuant to this law.

602.4-5. Lease parties shall resolve all disputes over residential, agricultural and business leases

under the Nation’s laws and in accordance with federal law. Nothing in this law may be

construed to waive the Nation’s sovereign immunity.

602.4-6. After the Secretary approves this law, all leases of tribal land approved and executed

under this law may become effective without federal approval under 25 U.S.C. 415(h), unless the

Secretary rescinds approval of this law and reassumes responsibility for such approval.

602.5.

Lease Document Requirements

602.5-1. Information and Application. Land Management shall approve and execute all leases.

Land Management shall make available information on obtaining residential, agricultural or

business lease documents. Parties interested in obtaining a residential, agricultural or business

lease document shall submit an application to Land Management pursuant to the rules which

Land Management and the Oneida Land Commission shall jointly develop.

(a) Land Management shall develop, and the Oneida Land Commission shall approve,

the format and requirements set out in the lease document applications for different types

of leases, as well as additional procedures and processes to be followed when offering

and awarding lease documents.

602.5-2. Terms and Conditions. Land Management shall ensure leases are in writing and

contain, at a minimum, the following:

(a) A description of the land or building being leased including surveys and legal

descriptions based on metes and bounds, rectangular, or lot and block systems which

meet the requirements of the Land Titles and Records Office of the Bureau of Indian

Affairs;

(b) The effective date and term of the lease;

(c) The purpose of the lease and authorized uses of the leased premises;

(d) The parties to the lease;

(e) How much rent is due, when it is due, who receives it, what form(s) of payment is

acceptable, and whether any late payment charges or special fees apply and the rate of

interest to be charged if the lessee fails to make payments in a timely manner;

6 O.C. 602 – Page 3

(f) Whether there will be rental reviews or adjustments, how and when they will be done,

when any adjustments will be effective and how disputes regarding adjustments will be

resolved;

(g) Who is responsible for any taxes applied to the property and/or improvements;

(h) Due diligence requirements that apply, if any;

(i) Performance bond and insurance requirements that apply, if any;

(j) Land Management has the right, at any reasonable time during the term of the lease

and upon reasonable notice, in accordance with this law and any other applicable laws,

policies and rules of the Nation, to enter the leased premises for inspection and to ensure

compliance with the lease;

(k) The lessee holds the United States and the Nation harmless from any loss, liability or

damages resulting from the lessee’s use or occupation of the leased premises;

(l) The lessee indemnifies the United States and the Nation 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 indemnify the Nation for liability or cost arising from the

Nation’s negligence or willful misconduct; and

(m) Land Management may, at its discretion, treat as a lease violation any failure by the

lessee to cooperate with a request to make appropriate records, reports or information

available for inspection and duplication.

602.5-3. Improvements. Land Management shall ensure lease documents set out requirements

related to improvements, including:

(a) whether improvements may be constructed;

(b) ownership of improvements;

(c) responsibility for constructing, operating, maintaining and managing improvements;

(d) whether the lessee shall submit development plans and/or construction management

schedules to Land Management for approval prior to beginning construction of any

improvements;

(e) removal of improvements;

(f) whether a lessee may develop equity in improvements and sell its interest in the lease

based on the equity; and

(g) the lessor’s right of first refusal to purchase the lessee’s interest, if any.

602.5-4. Obtaining a Lease Document. Land Management shall ensure lease documents are

entered into by written consent of the lessor and the lessee unless otherwise provided herein and

that the lease documents contain effective dates.

(a) The lease may authorize subleases only upon approval and execution from Land

Management. This in no way relieves the parties from carrying out their duties under the

lease.

(b) The lease may authorize leasehold mortgages on the leasehold interest for the purpose

of financing to develop and improve the premises. Land Management shall approve the

leasehold mortgage.

(c) The lease may not authorize mortgages that encumber title to tribal land.

602.5-5. Payments. For any lease requiring payments to be made to the lessor, the lessor shall

provide the Secretary with such documentation of the lease payments as the Secretary may

request to enable the Secretary to discharge the trust responsibility of the United States.

602.5-6. Environmental and Cultural Reviews. Land Management may not approve a lease

until an environmental review and a cultural review, as required under section 602.9, have been

6 O.C. 602 – Page 4

completed. Leases approved and executed in violation of this section are null and void.

602.5-7. Documentation. The following are required for a party to enter into a lease:

(a) a signed lease; and

(b) any reports, surveys and site assessments needed to comply with the Nation’s

environmental, cultural resource and land use requirements.

602.6.

Residential Leases

602.6-1. In addition to the requirements that apply to all leases under section 602.5, the

requirements of this section also apply to residential leases.

602.6-2. A residential lease is required for the lease of land suited or used for the construction,

improvement, and/or maintenance of a dwelling and related structures on the premises, and

otherwise to use or occupy said premises for residential purposes.

602.6-3. Duration. Residential leases may not exceed seventy-five (75) years.

602.6-4. Appraisal, Local Studies.

(a) Land Management shall determine the fair annual lease value using an appraisal or

equivalent procedure performed by Land Management utilizing the following data:

improvement cost, replacement cost, earning capacity, and sales and lease data of

comparable sites. Land Management shall ensure that an appraisal log reporting the

methods of appraisal and value of the tribal land is attached to every residential lease.

(b) Alternatively, Land Management shall determine the fair annual lease value using an

appraisal performed by a licensed appraiser utilizing the Uniform Standards of

Professional Appraisal Practice or another commonly accepted method of appraisal.

Land Management shall ensure that an appraisal log describing the method of appraisal

and value of the tribal land is attached to every residential lease.

602.6-5. Fair Annual Lease Value. Land Management may offer residential leases at reduced

rates if it determines that doing so is in the best interest of the Nation. Under such circumstances

an appraisal is not required. In all other circumstances, a residential lease may not be approved

for less than the present fair annual lease value as set forth in the appraisal.

602.6-6. Lease by Guardian. A parent or legal guardian may enter into a residential lease on

behalf of his or her child or ward.

602.7.

Agricultural Leases

602.7-1. In addition to the requirements that apply to all leases under section 602.5, the

requirements of this section also apply to agricultural leases.

602.7-2. An agricultural lease is required for the lease of land suited or used for the production

of crops, livestock or other agricultural products, or land suited or used for a business that

supports the surrounding agricultural community.

602.7-3. Duration and Renewal. Agricultural leases may not exceed twenty-five (25) years,

except that any such lease may include an option to renew for up to two (2) additional terms,

which may not exceed twenty-five (25) years each.

602.7-4. Management of Land. Land Management shall ensure that agricultural leases require

the lessee to manage land in accordance with the conservation plan that the Nation shall develop

and any agricultural resource management plan and/or other appropriate stipulations developed

by the Nation.

602.7-5. Lease Valuation. Agricultural leases are valued based on the bidding process required

as part of the lease award process included in the rules, which Land Management and the Oneida

Land Commission shall jointly develop.

6 O.C. 602 – Page 5

602.8.

Business Leases

602.8-1. In addition to the requirements that apply to all leases under section 602.5, the

requirements of this section also apply to business leases.

602.8-2. A business lease is required for the lease of land suited or used for business purposes

including retail, office, manufacturing, storage, or other business purposes; and public purposes,

including religious, educational, recreational, cultural, or other public purposes.

602.8-3. Duration and Renewal. Business leases may not exceed twenty-five (25) years, except

that any such lease may include an option to renew for up to two (2) additional terms, which may

not exceed twenty-five (25) years each.

602.8-4. Supporting Documents. All applicants for business leases shall submit the following

documents to Land Management:

(a) financial statement;

(b) site survey and legal description, if applicable;

(c) other documents as may be required by any business leasing management plan

developed by the Nation.

602.8-5. Appraisal, Local Studies.

(a) Land Management shall determine the fair annual lease value using an appraisal or

equivalent procedure performed by Land Management utilizing the following data:

improvement cost, replacement cost, earning capacity, and sales and lease data of

comparable sites. Land Management shall ensure that an appraisal log reporting the

methods of appraisal and value of the tribal land is attached to every business site lease.

(b) Alternatively, Land Management shall determine the fair annual lease value using an

appraisal performed by a licensed appraiser utilizing the Uniform Standards of

Professional Appraisal Practice or another commonly accepted method of appraisal.

Land Management shall ensure that an appraisal log describing the method of appraisal

and value of the tribal land is attached to every business site lease.

602.8-6. Fair Annual Lease Value.

(a) No lease may be approved for less than the present fair annual lease value as set forth

in the appraisal, except as follows:

(1) The lessee is in the development period;

(2) Land Management is providing an incentive for businesses to locate on tribal

land, and is providing lease concessions, lease improvement credits, and lease

abatements to attract such business; or

(3) Land Management determines such action is in the best interest of the Nation.

(b) A lease may:

(1) Be structured at a flat lease rate; and/or

(2) Be structured at a flat lease rate plus a percentage of gross receipts, if the

lessee is a business located in a shopping center, or the lessee generates over one

million dollars ($1,000,000.00) annually in gross receipts; and/or

(3) Be structured based on a percentage of gross receipts, or based on a market

indicator; and/or

(4) Be structured to allow for lease rate adjustments; Land Management shall

ensure that the lease specifies how adjustments will be made, who will make such

adjustments, when adjustments go into effect, and how disputes may be resolved;

and/or

(5) Be amended to allow for lease rate adjustments; and/or

(6) Provide for periodic review giving consideration to the economic conditions,

exclusive of improvement or development required by the contract or the

6 O.C. 602 – Page 6

contribution value of such improvements.

(c) Land Management shall keep written records of the basis used in determining the fair

annual lease value, as well as the basis for adjustments and shall present such records to

the lessee and include them in any lease file.

602.8-7. Performance Bond. If a performance bond is required under a business lease, the

lessee shall obtain the performance bond in an amount that reasonably assures performance on

the lease. Land Management may require performance bonds for the purpose of guaranteeing

any of the following:

(a) The annual lease payment;

(b) The estimated development cost of improvements; and

(c) Any additional amount necessary to ensure compliance with the lease.

602.9.

Environmental and Cultural Reviews

602.9-1. Applicability. Land Management may not consider approving a lease document until

an environmental review and a cultural review have been completed.

602.9-2. Environmental Reviews. The Nation is solely responsible for ensuring that the

environmental review has been completed in accordance with this law. The Environmental,

Health and Safety Division or its designee shall conduct an environmental review on all

proposed lease documents in accordance with the process established under the National

Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq, to evaluate environmental effects of

federal undertakings and, at a minimum, the process shall:

(a) Identify and evaluate any significant effects of the proposed action on the

environment;

(b) Establish a process for notifying the public of significant environmental impacts;

(c) Ensure that the public has a reasonable opportunity to provide comments regarding

the action and its environmental impacts;

(d) Require the Nation to respond to relevant and substantive comments received from

the public.

602.9-3. Cultural Reviews. The Cultural Heritage Department or its designee shall conduct a

cultural review on all proposed lease documents in accordance with the permit review

requirements for undertakings established in the Protection and Management of Archeological &

Historical Resources law.

602.9-4. Environmental and Cultural Review Completion. The Environmental, Health and

Safety Division shall forward a completed environmental review and the cultural review to Land

Management for consideration in the approval or denial of a lease document.

(a) Before approving a lease document, Land Management may require any reasonable

actions, as recommended within the environmental review or cultural review, be

completed.

(b) The Environmental, Health and Safety Division shall prepare an updated

environmental review and the Cultural Heritage Department shall prepare an updated

cultural review upon completion of any reasonable actions.

602.10. Lease Management

602.10-1. Management Plan. Land Management shall:

(a) manage existing leases as well as those executed pursuant to this law; and

(b) institute a leasing management plan that employs sound real estate management

practices, and addresses accounting, collections, monitoring, enforcement, relief, and

remedies.

6 O.C. 602 – Page 7

602.10-2. Accounting. Land Management shall implement an accounting system that generates

invoices, accounts for payments, and dates of when rate adjustments should be made. Nothing in

this section may be construed to absolve the lessee of its duties under a lease.

602.10-3. Recording Lease Documents. Land Management shall provide all lease documents of

tribal land, except residential subleases, to the Bureau of Indian Affairs for encoding and to be

forwarded to the Land Titles and Records Office. Land Management shall record all lease

documents of tribal land with the Oneida Nation Register of Deeds. Land Management shall

also distribute a copy of the recorded lease documents to the lessee.

602.10-4. Ownership of Records. Records of activities taken pursuant to this law with respect to

tribal land are the property of the United States and the Nation. Records compiled, developed or

received by the lessor in the course of business with the Secretary are the Nation’s property.

602.10-5. Administrative Fees. Land Management and the Oneida Land Commission may

jointly develop rules requiring administrative fees for costs associated with issuing a lease

document, or conducting any other administrative transaction.

602.11. Enforcement

602.11-1. Land Management is delegated all powers necessary and proper to enforce the lease

terms, this law and any rules developed pursuant to this law. This includes, but is not limited to,

the power to enter the premises, assess penalties, assess late payments and cancel leases. Land

Management may request the Oneida Law Office assist in enforcement of this law, rules and

leases.

602.11-2. 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,

Land Management or another interested party may take appropriate emergency action, which

may include cancelling the lease and/or securing judicial relief.

602.11-3. Holdovers and Trespass. If a lessee remains in possession of a property after the

expiration or cancellation of a lease, or a person occupies a property without Land

Management’s approval, Land Management shall take action to recover possession of the

property; and/or pursue additional remedies, such as damages, if applicable.

602.11-4. Defaults. If Land Management determines a lessee is in default, Land Management

shall take action to have the lessee cure the default or, if the default is not cured, cancel the lease

pursuant to the Eviction and Termination law.

602.11-5. Penalties. Unless the lease provides otherwise, interest charges and late payment

penalties apply in the absence of any specific notice to the lessee from Land Management, and

Land Management shall treat the failure to pay such amounts as a breach of the lease.

602.12. Leasing Actions

602.12-1. The Oneida Judiciary is granted jurisdiction to hear complaints filed regarding actions

taken pursuant to this law and/or a lease document.

602.12-2. No administrative hearing body, including a board, committee or commission, is

authorized to hear a complaint regarding actions taken pursuant to this law and/or a lease

document.

602.12-3. The lessor is the Division of Land Management in regards to taking actions authorized

under this law and complaints filed with the Oneida Judiciary shall name the Division of Land

Management and the specific lease program.

End.

6 O.C. 602 – Page 8

Adopted-BC-05-13-15-C, pending BIA approval

Adopted by the Nation-BC-10-26-16-C; approved and published by the BIA 04-19-18

6 O.C. 602 – Page 9