Rule2023-27077
Land Acquisitions
Primary source
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Published
December 12, 2023
Effective
January 11, 2024
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
Section 5 of the Indian Reorganization Act (IRA or Act) authorizes the Secretary of the Interior (Secretary) to acquire lands in trust for the benefit of Tribal governments and individual Indians. This final rule provides the procedures governing the discretionary acquisition of lands into trust, often referred to as the fee-to-trust process, under the Act. Since these regulations were first promulgated in 1980, the Bureau of Indian Affairs (BIA) has developed extensive experience in the fee-to-trust acquisition process. Relying on that experience and input from multiple stakeholders, this final rule makes the fee-to-trust process more efficient, simpler, and less expensive to support restoration of Tribal homelands.
Full Text
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<title>Federal Register, Volume 88 Issue 237 (Tuesday, December 12, 2023)</title>
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[Federal Register Volume 88, Number 237 (Tuesday, December 12, 2023)]
[Rules and Regulations]
[Pages 86222-86255]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27077]
[[Page 86221]]
Vol. 88
Tuesday,
No. 237
December 12, 2023
Part II
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 151
Land Acquisitions; Final Rule
Federal Register / Vol. 88 , No. 237 / Tuesday, December 12, 2023 /
Rules and Regulations
[[Page 86222]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
[245A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF71
Land Acquisitions
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: Section 5 of the Indian Reorganization Act (IRA or Act)
authorizes the Secretary of the Interior (Secretary) to acquire lands
in trust for the benefit of Tribal governments and individual Indians.
This final rule provides the procedures governing the discretionary
acquisition of lands into trust, often referred to as the fee-to-trust
process, under the Act. Since these regulations were first promulgated
in 1980, the Bureau of Indian Affairs (BIA) has developed extensive
experience in the fee-to-trust acquisition process. Relying on that
experience and input from multiple stakeholders, this final rule makes
the fee-to-trust process more efficient, simpler, and less expensive to
support restoration of Tribal homelands.
DATES: This final rule is effective on January 11, 2024.
FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of
Regulatory Affairs and Collaborative Action (RACA), Office of the
Assistant Secretary--Indian Affairs; Department of the Interior,
telephone (202) 738-6065, <a href="/cdn-cgi/l/email-protection#99cbd8dad8d9fbf0f8b7fef6ef"><span class="__cf_email__" data-cfemail="7e2c3f3d3f3e1c171f50191108">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This final rule is published in exercise of
authority delegated by the Secretary of the Interior to the Assistant
Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209
Departmental Manual (DM) 8.
Table of Contents
I. Statutory Authority and Background
II. Acquisition of Land in Trust Process
III. Overview of the Final Rule
IV. Summary of Final Rule and Changes From the Proposed Rule to the
Final Rule
V. Public Comments on the Proposed Rule and Response to Comments
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
B. Regulatory Flexibility Act
C. Congressional Review Act (CRA)
D. Unfunded Mandates Reform Act of 1995
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 (NEPA)
K. Energy Effects (E.O. 13211)
L. Clarity of This Regulation
M. Small Business Regulatory Enforcement Fairness Act
N. Regulatory Impact Analysis
I. Statutory Authority and Background
Congress enacted the Indian Reorganization Act (IRA) in 1934 to
address the devasting effects of prior policies and to secure a land
base for Indian tribes to engage in economic development and self-
determination. Act of June 18, 1934, Pub. L. 73-383, 48 Stat. 984
(codified as amended at 25 U.S.C. 5101 through 5129). Congress
expressly authorized ``the Secretary, in his discretion,'' under
section 5 of the IRA, to ``acquire through purchase, relinquishment,
gift, exchange, or assignment, any interest in lands, water rights or
surface rights to lands, within or without existing reservations,
including trust or otherwise restricted allotments whether the allottee
be living or deceased, for the purpose of providing land for Indians''
as the term is defined in section 19 of the IRA Id. at section 5,
codified at 25 U.S.C. 5108; id. at section 19, codified at 25 U.S.C.
5129. The regulations at 25 CFR part 151 (part 151) implement this
authority and provide the process by which Tribes submit applications
to the Department and the criteria under which the Secretary will
review the applications.
In October 2021, the Department of the Interior (Department) held
consultations on the protection and restoration of tribal homelands and
used the feedback from these consultations to inform draft revisions to
the part 151 regulations. The Department then held four consultation
sessions on the draft revisions in May 2022. Utilizing feedback from
those consultations, the Department published the proposed rule on
December 5, 2022, 87 FR 74334, and held three Tribal consultation
sessions during the public comment period. The first Tribal
consultation was held in person on January 13, 2023, at the Bureau of
Land Management Training Center in Phoenix, Arizona. The next two
Tribal consultations were conducted virtually on Zoom, which occurred
on January 19, 2023, and January 30, 2023. Following the consultation
sessions, the Department accepted written comments until March 1, 2023.
II. Acquisition of Land in Trust Process
The acquisition of land in trust is the transfer of fee land title
from an eligible Indian Tribe or eligible Indian individual(s) to the
United States of America, in trust, for the benefit of the eligible
Indian Tribe or eligible Indian individual(s). Indian Tribes and
individual Indian people who meet the requirements established by
Federal statutes and further defined in Federal regulations are
eligible to apply for a fee-to-trust land acquisition. All applications
for a fee-to-trust acquisition must be in writing and specifically
request that the Secretary of the Interior take land into trust for the
benefit of the applicant. Applications shall be submitted to the BIA
office that has jurisdiction over the lands contained in the
application.
The applicant must provide a legal description of the land to be
acquired, the legal name of the eligible Indian Tribe or individual,
proof of an eligible Indian Tribe or eligible individual(s), the
specific reason the applicant is requesting that the United States of
America acquire the land for the applicant's benefit, title evidence
addressing the lands to be acquired and information that allows the
Secretary of the Interior to comply with the National Environmental
Policy Act (NEPA) (43 U.S.C. 4321 et seq.) and 602 Departmental Manual
2 (602 DM 2)--Hazardous Substances. Each application is evaluated to
determine if the applicable criteria defined in part 151 have been
addressed. State and local governments having regulatory jurisdiction
over the land contained in the application will be notified upon
written receipt of an application for a fee-to-trust acquisition. The
notice will inform the entities that each will be given 30 days in
which to provide written comments as to the acquisition's potential
impacts on regulatory jurisdiction, real property taxes and special
assessments. The official authorized to accept the request to fee-to-
trust acquisition will decide whether to approve the application and
acquire the land in trust. All decisions to accept or deny a fee-to-
trust acquisition shall be in writing. The length of time to complete
the process varies depending on completion of the required steps by the
applicant and the BIA.
III. Overview of the Final Rule
This final rule updates the Department's part 151 regulations which
govern how the BIA responds to, considers, and processes applications
from Tribal governments and individual Indians to acquire land in trust
status. The Bureau of Indian Affairs (BIA) has acquired over a million
acres of land into trust for Tribes and individual Indians since
Congress passed the IRA in 1934. See 87 FR 74334, 74335 (Dec.
[[Page 86223]]
5, 2022). This final rule is intended to make the fee-to-trust process
less burdensome and more cost-efficient. In addition, the Department
seeks to improve the fee-to-trust land acquisition process because of
the many benefits afforded to Tribal governments and their citizens,
such as heightened regulatory jurisdiction over the lands, exemptions
from State and local taxation, and restoration of Tribal homelands.
This final rule addresses delays in the current land acquisition
process. The average length of time to receive a final fee-to-trust
decision is approximately 985 days. Currently, there are 941 cases
pending approval by the Department--the majority of which are for non-
controversial, on-reservation acquisitions. This final rule will reduce
the time it takes BIA to process land into trust applications going
forward and address the existing backlog.
The final rule affirms the Secretary's policy to actively implement
the IRA's discretionary land into trust authority in a manner that
supports self-determination and strengthens Tribal sovereignty. The
final rule also furthers implementation of subsequent congressional
enactments, such as the Indian Land Consolidation Act (ILCA) and the
American Indian Probate Reform Act's (AIPRA) amendments to ILCA, which
sought to ``prevent further fractionation of Indian trust allotments,
consolidate fractional interests and their ownership into usable
parcels, consolidate those interests in a manner that enhances Tribal
sovereignty, promote Tribal self-sufficiency and self-determination,
and reverse the effects of the allotment policy on Indian Tribes.''
Indian Land Consolidation Act, Public Law 97-459, 96 Stat. 2515;
American Indian Probate Reform Act of 2004, Public Law 110-453, 118
Stat. 1804 (codified as amended at 25 U.S.C. 2201 through 2221). The
Secretary's land acquisition policy recognizes these objectives and
that a Tribal land base ``enhances Tribal sovereignty by accreting land
to the Tribes on which they can offer Tribal services and engage in
enterprises that promote Tribal self-sufficiency and self-
determination.'' See, e.g., Quinault Indian Nation v. Northwest
Regional Director, Bureau of Indian Affairs, 48 IBIA 186, 203 (2008).,
48 IBIA 186, 203 (2008).
Through this rulemaking, the Department seeks to improve processing
timelines by establishing a 120-day time frame for issuing a decision
once the BIA receives a complete application package. This contrasts
with no timeline in the current rule. The average length of time to
receive a final fee-to-trust decision is approximately 985 days.
Currently, there are 941 cases pending approval by the Department--the
majority of which are for non-controversial, on-reservation
acquisitions. The final rule also incorporates the Department's process
for determining whether a Tribe was ``under Federal jurisdiction'' in
1934, as required under Carcieri v. Salazar, 555 U.S. 379 (2009).
The final rule articulates criteria for processing four different
types of land acquisition: on-reservation, contiguous, off-reservation,
and the newly identified initial acquisition. Each acquisition includes
certain presumptions intended to improve efficiency based on the BIA's
longstanding practices and experience. Several other changes to the
regulations seek to solve problems and remove obstacles for Tribes and
individual Indians engaged in the BIA's land acquisition process.
IV. Summary of Final Rule and Changes From Proposed Rule to Final Rule
On December 5, 2022, the Department published the proposed rule, 87
FR 74334. The sections below discuss the changes from the proposed rule
to the final rule.
Sec. 151.1 What is the purpose of this part?
The final rule clarifies that this regulation does not govern
acquisitions mandated by Federal law. The Department has issued
guidance concerning such mandatory acquisitions, including the guidance
found in the BIA's Fee-to-Trust Handbook (FTT Handbook), and does not
believe regulations are necessary at this time. This is because there
are many, varying authorities for mandatory acquisitions, and it is
difficult to draft regulations that would be consistent with all
current and future mandatory acquisitions. We avoid the risk of
creating inconsistency with statutory authorities and judicial orders
mandating acquisitions by employing simple guidance on how we approach
such acquisitions rather than one-size-fits-all regulations.
Changes from the proposed rule to the final rule in Sec. 151.1
include:
<bullet> The opening paragraph of Sec. 151.1 was revised to
reference ``acquisition of land mandated by Federal law'' instead of
``acquisition of land mandated by Congress or a Federal court.''
Sec. 151.2 How are key terms defined?
The final rule adds new definitions for the following terms:
contiguous, fee interest, fractionated tract, Indian land, Indian
landowner, initial Indian acquisition, interested party, marketable
title, preliminary title opinion, preliminary title report, and
undivided interest.
The definitions are also now listed in alphabetical order in Sec.
151.2.
Initial Indian acquisition. Among the new definitions, we note that
the term ``initial Indian acquisition'' refers to a new category of
acquisitions provided under Sec. 151.12. BIA wishes to support
acquisitions for Tribes that do not currently have land held in trust,
furthering the BIA's policy of supporting restoration of Tribal
homelands. The regulatory criteria for considering initial Indian
acquisitions provide a new, more supportive process for Tribes without
trust land, as discussed further in Sec. 151.12. Tribal consultation
commenters expressed concern that the consultation draft of this
revision used the word ``yet'' rather than ``currently'' when referring
to land held in trust status. Commenters wanted to ensure that Tribes
which may have had land in trust in the past but do not have land in
trust now would be covered by the initial Tribal acquisition provision
and asked that ``yet'' be changed to ``currently'' to clarify that
approach. We have done so here in the final rule. We clarify, in
response to the comments, that the final rule's intention is to treat
Tribes that previously held land in trust but do not currently hold
land in trust in the same manner as Tribes which have never held land
in trust.
Marketable title. Tribal consultation commenters also expressed
concern regarding the term ``marketable title'', and so we have added a
definition for that term to the final rule. Commenters believed that
requiring marketable title was inappropriate because land held in trust
will not likely ever be sold on the market again, and Tribes may seek
to acquire land for cultural, conservation, spiritual, or other reasons
that are entirely separate from commercial concerns. BIA appreciates
and supports those purposes for an acquisition but notes that the term
marketable title is used here in a strictly legal sense rather than a
commercial sense, referring to title that a reasonable buyer would
accept because it is sufficiently free from substantial defects and
covers the entire property that the seller purports to sell.
Individual Indian. The definition of ``individual Indian'' has been
modified to remove Sec. 151.2(g)(4), which covered acquisitions
outside of Alaska by an Alaska Native. This definition implied that
acquisitions of land in trust within Alaska was not permissible under
these regulations which is inconsistent with
[[Page 86224]]
Sol. Op. M-37076, The Secretary's Land Into Trust Authority for Alaska
Natives and Alaska Tribes Under the Indian Reorganization Act and the
Alaska Indian Reorganization Act and Akiachak Native Community v.
Jewell, 935 F. Supp. 2d 195 (D.D.C. 2013) (finding that the
Department's part 151 Alaska exception violated the privileges and
immunities clause of the IRA), vacated as moot, Akiachak Native Cmty.
v. U.S. Dep't of the Interior, 827 F.3d 100 (D.C. Cir. 2016) (the State
of Alaska's appeal was deemed moot after the Department's rulemaking
eliminated the Alaska exception from 25 CFR part 151).
Tribe. The definition of ``Tribe'' has been modified such that an
Indian Tribe is any Tribe listed under section 102 of the Federally
Recognized Indian Tribe List Act of 1994 (List Act) or slated to be
included in the next publication of that list. The List Act was not in
place when these regulations were first promulgated in 1980 but should
be used now as it is the official record of federally recognized
Tribes.
Indian reservation. The definition of ``Indian reservation'' has
been modified slightly to ensure a comprehensive understanding of
reservation status in Oklahoma after the Supreme Court's decision in
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The new definition provides
that in the State of Oklahoma, ``wherever historic reservations have
not yet been reaffirmed'', the term Indian reservation means land
constituting the former reservation of the Tribe as defined by the
Secretary. By including this phrase, the final rule makes clear that
the Secretary will consider all historic Oklahoma reservations,
consistent with McGirt and its progeny, as Indian reservations for
purposes of this regulation, regardless of whether courts have
concluded reaffirmation litigation addressing such historic
reservations.
Tribal consolidation area. Finally, we removed the definition of
``Tribal consolidation area''. This term was used only once in the
existing rule, regarding the Department's land acquisition policy. The
final rule's updated statement of the Department's land acquisition
policy will cover any acquisitions in such an area.
Marketable title. The definition of ``marketable title'' was
revised for clarity to read ``defect and that covers the entire
property'' instead of ``defect and to cover the entire property.''
Sec. 151.3 What is the Secretary's land acquisition policy?
The existing rule's statement concerning when the Secretary will
exercise the discretion to acquire land in trust does not reflect
congressional policy clearly in favor of trust acquisition for Tribes
and individual Indians, nor does it capture the broad range of purposes
for which the lands are used to further Tribal welfare. The revision
makes plain that the Secretary's policy is to support acquisitions of
land in trust for the benefit of Tribes and individual Indians and that
it is the policy of the Department that the Secretary exercise the
discretion to acquire land in trust when doing so furthers the broad
range of interests outlined in the final rule. The prior technical
introductory language has been moved to Sec. 151.3(a).
In Sec. 151.3(b)(3), the Department added additional policy
reasons that support an acquisition on behalf of a Tribe, including any
reason the Secretary determines will support Tribal welfare, consistent
with the goals of the IRA and other statutes authorizing trust
acquisitions. We note, however, that none of these policy reasons are
required if the subject land is within a reservation (per Sec.
151.3(b)(1)) or if the Tribe already owns an interest in the land, such
as a fee interest (per Sec. 151.3(b)(2)). We received comment during
the 2022 Tribal consultation encouraging us not to use the word
``establish'' in regard to homelands, and therefore we have changed
language to use the word ``protect.'' We also included the policy goal
of establishing a Tribal land base and providing for climate change-
related acquisitions. Commenters also suggested adding ``cultural
practices'' to the list of policy reasons in addition to ``cultural
resources,'' and we have done so.
In Sec. 151.3(c), several Tribal consultation commenters pointed
out that the word ``adjacent'' is used where the intended meaning was
``contiguous.'' We have changed the text to read ``contiguous,'' to be
consistent with commenters' recommendations and our understanding of
the existing rule's meaning.
There were no other changes in this section from the proposed rule
to the final rule.
Sec. 151.4 How will the Secretary determine that statutory authority
exists to acquire land in trust status?
Section 151.4 lays out in regulatory text the Department's approach
to determining statutory authority for acquisitions as required by the
Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379 (2009),
which determined that the word ``now'' in the phrase ``now under
Federal jurisdiction'' in the IRA refers to the time of the passage of
the IRA in 1934. The final rule incorporates caselaw and analysis by
the Department interpreting the Department's statutory authority as
guided by Carcieri.
The final rule identifies three categories of evidence used to
evaluate whether a Tribe was under Federal jurisdiction: conclusive;
presumptive; and probative. Conclusive evidence establishes in and of
itself both that a Tribe was placed under Federal jurisdiction in or
before 1934 and that this jurisdictional status persisted in 1934. If
conclusive evidence exists, no further analysis is required.
Presumptive evidence strongly indicates that a Tribe was placed under
Federal jurisdiction in or before 1934 and may indicate that such
jurisdictional status persisted in 1934. Even where presumptive
evidence exists, the Department will engage in a detailed review of the
historical record to address whether the Tribal applicant came under
Federal jurisdiction in or before 1934 and whether that jurisdictional
status remained extant in 1934. If neither conclusive nor presumptive
evidence exists, the Department will consider all probative evidence in
concert, i.e., in a holistic manner to determine whether the historical
record, in whole, supports a finding that the Tribal applicant was
under Federal jurisdiction in 1934 and retained such status in 1934.
Examples of probative evidence are listed in Sec. 151.4(a)(3)(i).
We note that Sec. 151.4(c) explains that, if the Department has
previously issued a favorable ``under Federal jurisdiction'' analysis
for a Tribe, no additional analysis is needed unless there has been a
change in law. Such prior determinations remain valid under the
revision.
Section 151.4(e) clarifies that where a statute other than the IRA
has authorized trust land acquisitions, the ``under Federal
jurisdiction'' IRA analysis provided for in Sec. 151.4(a) through (d)
does not apply, and the Secretary may acquire land in trust as
permitted by the other Federal law.
Finally, we note that existing Sec. 151.4, ``Acquisitions in trust
of lands owned in fee by an Indian,'' has been deleted in the final
rule as unnecessary. The rule provides for such acquisitions, and
existing Sec. 151.4 adds no additional information or process
regarding such acquisitions.
Changes from the proposed rule to the final rule in Sec. 151.4
include:
<bullet> Adding an introductory paragraph explaining when Sec.
151.4 is applicable.
<bullet> Adding ``land held in trust by the United States in 1934''
as conclusive
[[Page 86225]]
evidence a Tribe was under Federal jurisdiction in 1934.
<bullet> Adding ``land claim settlements'' as an example of
``Federal legislation for a specific Tribe, which acknowledges the
existence of jurisdictional relationship with a Tribe in or before
1934'' as presumptive evidence in Sec. 151.4(a)(2)(v).
<bullet> Adding ``efforts by the Federal Government to conduct a
vote under section 18 of the IRA to accept or reject the IRA where no
vote was held;'' Federal ``approval of contracts between a Tribe and
non-Indians;'' and Federal ``enforcement of the Trade and Intercourse
Acts (Indian trader, liquor laws, and land transactions)'' as examples
of probative evidence in Sec. 151.4(a)(3)(i).
<bullet> Revising Sec. 151.4(a)(2)(vi) and adding a new provision,
Sec. 151.4(a)(4), to confirm that the Secretary may rely on any
evidence within the part 83 record that the Tribe was under Federal
jurisdiction, consistent with Sec. 151.4(a)(2) and (3).
<bullet> Renumbering proposed Sec. 151.4(a)(4) as Sec.
151.4(a)(5) and revising it to state that evidence of executive
officials disavowing Federal jurisdiction over a Tribe in certain
instances is not conclusive evidence of a Tribe's Federal
jurisdictional status because such disavowals cannot themselves revoke
Federal jurisdiction over a Tribe.
<bullet> Revising Sec. 151.4(c) to reference the ``Department''
instead of the ``Office of the Solicitor.''
<bullet> Additional technical edits were made to make language
consistent throughout Sec. 151.4.
Sec. 151.5 May the Secretary acquire land in trust status by exchange?
Minor stylistic changes were made to Sec. 151.5. There were no
changes from the proposed rule to the final rule.
Sec. 151.6 May the Secretary approve acquisition of a fractional
interest?
A modification to Sec. 151.6 has been made to clarify how its
provisions are consistent with section 2216(c) of ILCA. ILCA at section
2216(c) allows for mandatory acquisitions of fractional interests of a
parcel at least a portion of which was in trust or restricted status on
November 7, 2000, and is located within a reservation. Tribal
consultation commenters were concerned that existing Sec. 151.6
requires use of the discretionary process for such acquisitions, in
contravention of past practice and section 2216(c) of ILCA. We assure
commenters this is not the case; where section 2216(c) of ILCA provides
for mandatory acquisitions of fractional interests, the Department will
continue to employ that statutory authority. However, where a
fractional interest is off-reservation or trust or restricted status of
another fractional interest in the same parcel did not exist on
November 7, 2000, section 2216(c) of ILCA does not provide authority
for mandatory trust acquisitions, and thus the Department must
typically rely on the discretionary acquisition authority provided by
the IRA and developed in these regulations. Consistent clarifying
language has been added to the introduction of Sec. 151.6.
The proposed rule and the final rule replace the term ``buyer''
with ``applicant.'' The term ``buyer'' is inapposite here; the
individual or Tribe is not typically buying any property, but rather
applying to the Department to take the individual's or Tribe's
fractional interest into trust for the individual's or Tribe's benefit.
Changes from the proposed rule to the final rule in Sec. 151.6
include:
<bullet> The opening paragraph of Sec. 151.6 was revised to read
``[t]he Secretary may approve the acquisition of a fractional interest
in a fractionated tract in trust status by an individual Indian or a
Tribe including when:'' instead of ``[t]he Secretary may approve the
acquisition of a fractional interest in a fractionated tract in trust
status by an individual Indian or a Tribe only if:''.
Sec. 151.7 Is Tribal consent required for nonmember acquisitions?
There are no changes to Sec. 151.7. Section 151.8 in the existing
rule is redesignated as Sec. 151.7 in the final rule.
Sec. 151.8 What documentation is included in a trust acquisition
package?
Section 151.8 expands substantially upon existing rule Sec. 151.9,
``Requests for approval of acquisitions.'' Sec. 151.8 describes all
the pieces of information necessary for the Department to assemble a
complete trust acquisition package. Once a complete package is
assembled, the final rule requires the Department to notify the
applicant and then issue a decision on the application within 120 days.
Many Tribal consultation commenters were concerned that no timing
deadline was applied to the Department's responsibility to notify
applicants of a complete acquisition package; therefore, the final rule
includes a requirement that the BIA provides tribes such notification
within 30 days.
Tribal consultation commenters also pointed out that Sec. 151.8
may be confusing in that some pieces of a complete application package
are provided by the applicant, while some are developed by the
Department. The following chart clarifies how the Department and
applicants work together to develop a complete application package.
------------------------------------------------------------------------
Department
Paragraph No. Applicant contribution contribution
------------------------------------------------------------------------
Sec. 151.8(a)(1)..... A signed letter from None.
the Tribal government
supported by a Tribal
resolution or other
act, or if an
individual applicant,
a signed letter.
Sec. 151.8(a)(2)..... Documentation from the No Department
applicant explaining contribution is
purpose, and, if an needed to complete
individual, need. this component of the
package. Rather, the
Department will
consider this
information in coming
to a decision.
Sec. 151.8(a)(3)..... Statement identifying The Department will
statutory authority determine whether
for the acquisition. statutory authority
If the acquisition exists based on the
relies on satisfying Tribe's submission.
the IRA's first If the Tribe relies
definition of Indian, on the IRA's first
the statement should definition of
include evidence that ``Indian,'' to
the Tribe was under establish such
Federal jurisdiction authority, then the
in 1934 consistent Department will
with Sec. 151.4. review all relevant
evidence to determine
whether the Tribe was
under Federal
jurisdiction
consistent with Sec.
151.4.
Sec. 151.8(a)(4)..... An aliquot legal Concurrence that the
description of the description is
land and a map, or a legally sufficient.
metes and bounds land
description and
survey, including a
statement of the
estate to be acquired,
e.g., all surface and
mineral rights,
surface rights only,
surface rights and a
portion of the mineral
rights, etc.
[[Page 86226]]
Sec. 151.8(a)(5)..... Information, or The Department will
permission to access develop or adopt and
the land to gather complete NEPA
such information, analyses, including
allowing the any required public
Department to comply process, and develop
with NEPA and 602 DM 2 or adopt Phase I and
regarding hazardous Phase II
substances. Environmental Site
Assessments produced
under 602 DM 2.
Sec. 151.8(a)(6)..... Evidence of marketable Preliminary Title
title. Opinion.
Sec. 151.8(a)(7)..... None (applicant replies Notification letters
to comment letters are to State and local
invited but not governments and any
required for a response letters.
complete acquisition
package).
Sec. 151.8(a)(8)..... Statement that any None.
existing encumbrances
on title will not
interfere with the
applicant's intended
use.
Sec. 151.8(a)(9)..... None unless warranted None unless warranted
by specific by specific
application. application.
------------------------------------------------------------------------
Regarding the requirement under Sec. 151.8(a)(3) that the
Department concur that a description is legally sufficient, many
commenters were concerned that this adds a novel requirement to the
land into trust process that may present obstacles. The Department
clarifies that concurrence with the land description presented by the
applicant was and has always been a necessary part of the acquisition
process. See BIA National Policy Memorandum: Modernizing the Land
Description Review Process for Fee-to-Trust Acquisitions, NPM-TRUS-43
(April 6, 2023). The Department has always reviewed land descriptions
to ensure they are accurate, that the parcel ``closes,'' and that,
generally, the description describes with sufficient specificity what
land is to be acquired. The Department's land description concurrence
listed in Sec. 151.8 is needed primarily to be comprehensive in the
requirements for a complete acquisition package. Without such a
provision, a flawed or otherwise insufficient land description could be
construed as completing an acquisition package, forcing the Department
to deny a request if not resolved before the 120-day time frame
expires.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Sec. 151.8(a)(1) through (6), (8), and (9) were revised
to read ``[t]he applicant must submit''.
<bullet> Clarification, in new Sec. 151.8(a)(3), that the Tribe is
responsible for submitting a statement and any evidence to support a
finding of it being under Federal jurisdiction in 1934 to satisfy Sec.
151.4 and renumbering of subsequent provisions of Sec. 151.8(a).
<bullet> Clarifying language that an acquisition package is not
complete until a pre-acquisition Phase I environmental site assessment,
and if necessary, a Phase II environmental site assessment completed
pursuant to 602 DM 2 is determined to be sufficient by the Secretary,
the Secretary completes a Preliminary Title Opinion, and the Secretary
determines that the legal description or survey is sufficient.
<bullet> Deleting ``including any associated responses where
requested by the Secretary'' from proposed Sec. 151.8(a)(6), now
renumbered as Sec. 151.8(a)(7).
<bullet> Stylistic changes.
Sec. 151.9 How will the Secretary evaluate a request involving land
within the boundaries of an Indian reservation?
Section 151.9 is the first of four sections providing process for
the Secretary's consideration of different types of acquisition
applications based on the location of the subject land in relation to
an Indian reservation or, in the case of initial Indian acquisitions,
the fact that the Tribe has no land currently in trust.
The existing rule considers both on-reservation and contiguous
applications under the on-reservation criteria in Sec. 151.10. In the
new final rule, the on-reservation acquisition process has been
simplified and designed to result in faster decisions in several ways.
First, under Sec. 151.9(a), the Secretary is no longer required to
consider some of the issues that Sec. 151.10 of the current
regulations requires her to consider, such as the need for a Tribal
government's acquisition, the impact on State and local government tax
rolls, and jurisdictional problems or conflicts of land use which may
arise, except as described below. BIA is making this change based on
decades of experience showing that on-reservation acquisitions are
generally not contentious or challenged because the acquisition may be
within existing reservation boundaries, may help to lessen
jurisdictional complexities arising from privately-held fee tracts
adjacent to tracts held in trust, may help to consolidate Tribal land
interests, or may be mandatory under other statutory processes, such as
the Indian Land Consolidation Act, as amended. See Public Law 97-459,
tit. II, codified at 25 U.S.C. 2201 et seq. Moreover, the Department
believes that this change in policy better aligns with the purpose of
the IRA. Indeed, the IRA was passed to address ``[t]he disastrous
condition peculiar to the Indian situation in the United States'' that
was ``directly and inevitably the result of existing.'' Readjustment of
Indian Affairs: Hearings Before the Committee on Indian Affairs, House
of Representatives on H.R. 7902, 73d Cong., 2d Sess., at 15-16 (Feb 22,
1934), cited in Sol. Op. M-37029 ``The Meaning of `Under Federal
Jurisdiction' for Purposes of the Indian Reorganization Act'' (March
12, 2014), at 6 (discussing the (General Allotment Act of 1887, Pub. L.
49-105, 24 Stat. 388 (formerly codified at 25 U.S.C. 331-357)). Section
5 of the IRA says nothing about whether restoring these lands to Tribal
ownership satisfied a particular need, would negatively impact State
and local tax revenue, or would complicate jurisdiction or create
conflicts in land use. Given that the subject land is within an Indian
reservation set aside by the United States government for the use and
welfare of a Tribe and based on the long experience of BIA in
processing such applications and then administering land placed into
trust, these factors need not be considered for every acquisition.
However, under Sec. 151.9(d), the final rule retains notice and an
invitation to State and local governments to comment on the
acquisition's potential impact on regulatory jurisdiction, real
property taxes, and special assessments. If such comments are received,
the Secretary will consider them in a holistic analysis of the
application. More specifically, the Secretary will no longer be
required to consider impacts to State and local taxes for on-
reservation acquisitions unless it is raised by a State or local
government. The Department also notes and confirms that any comments
received on an application, even if not requested, will be considered
as part of the overall decision-making process. If no such comments are
received, no consideration of these factors is required under the final
rule. We note that some commenters wished to eliminate the purpose
criterion in Sec. 151.9(a) as well. Because an understanding of
purpose is necessary to comply with NEPA and to support the approach
described in
[[Page 86227]]
Sec. 151.9(b), BIA is retaining this criterion.
Second, under Sec. 151.9(b), the Secretary will apply great weight
to applications pursuing certain important purposes for Tribal welfare,
including, for instance, the need to protect Tribal homelands. This
will allow the Secretary to appropriately consider which acquisitions
will most directly further the critical interests identified in Sec.
151.3. This approach recognizes and incorporates the Secretary's policy
to support acquisition of land in trust for the benefit of Tribes. The
existing rule's land acquisition policy in Sec. 151.3 was established
when the first fee-to-trust regulations were promulgated in 1980. See
45 FR 62034. The land acquisition policy in the existing rule is
virtually unchanged from the 1980 version and does not account for the
many important reasons, many of which were not contemplated in 1980,
for which Tribes acquire land in trust today to further self-
determination and self-governance. This final rule incorporates these
important reasons in the revised Sec. 151.3, which the Secretary's
policy is intended to support. Under the new final rule, the Secretary
will expressly consider the listed Tribal purposes for land acquisition
as part of the holistic consideration applied to land into trust
acquisitions under the discretionary authority of the IRA. If an
application seeks to have land taken into trust for one of the purposes
set forth in Sec. 151.9(b), the Secretary will give great weight to
this fact and, because such acquisitions further the policy purposes
set out in Sec. 151.3, will provide a detailed explanation of the
basis for any disapproval decision, taking into account the important
purposes that such an acquisition would serve.
Third, under Sec. 151.9(c), the Secretary will now presume that
on-reservation acquisitions will benefit Tribal interests, and
therefore should be approved. BIA believes this presumption will
further the purpose of the IRA, which, as noted above, Congress enacted
in 1934 to address the devasting effects of prior policies and to
secure a land base for Indian tribes to engage in economic development
and self-determination. Given that the subject land is within an Indian
reservation set aside by the United States government for the use and
welfare of a Tribe, and given the long history of such lands being
removed from Tribal ownership through improper sale or the government's
efforts to allot land originally held by the Tribal government, a
presumption of benefits from restoring reservation lands to trust
status is appropriate and consistent with the Department's policy on
land into trust acquisitions. Where a Tribe takes land into trust
within its reservation boundaries, that land nearly always serves an
important economic, cultural, self-determination, or sovereignty
purpose that supports Tribal welfare.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Making stylistic changes in Sec. 151.9 (b) to emphasize
the Secretary's recognition that applications that are for the listed
purposes will further the important policy goals identified in Sec.
151.3.
<bullet> Clarifying in Sec. 151.9(c) that the Secretary will
presume that the acquisition will ``further the Tribal interests
described in paragraph (b) of this section and adverse impacts to local
governments' regulatory jurisdiction, real property taxes, and special
assessments will be minimal, therefore the application should be
approved.''
<bullet> Adding in Sec. 151.9(d) that the notice to State and
local governments will provide 30 calendar days in which to provide
written comments to rebut the presumption of minimal adverse impacts to
regulatory jurisdiction, real property taxes, and special assessments.
If the State or local government responds within 30 calendar days, a
copy of the comments will be provided to the applicant, who will be
given a reasonable time in which to reply, if they choose to do so in
their discretion, or request that the Secretary issue a decision. In
considering such comments, the Secretary presumes that the Tribal
community will benefit from the acquisition.
<bullet> Minor stylistic changes.
Sec. 151.10 How will the Secretary evaluate a request involving land
contiguous to the boundaries of an Indian reservation?
For reasons similar to those noted above, the process for approving
acquisitions contiguous to an Indian reservation has also been
simplified and designed to result in faster decisions. Under the
current regulation at Sec. 151.10(a), the Secretary must consider the
need for a Tribal government's acquisition of contiguous land, the
impact on State and local government tax rolls, and jurisdictional
problems or conflicts of land use which may arise when considering
acquisition of land contiguous to the Indian reservation. Under final
rule Sec. 151.10(a) through (c), like on-reservation acquisitions
under final rule Sec. 151.9(a) through (c), the Secretary is no longer
required to consider the need for a Tribal government's acquisition of
contiguous land, the impact on State and local government tax rolls,
and jurisdictional problems or conflicts of land use which may arise,
except as described below, because such impacts, problems or conflicts
are presumed to have a minimal adverse impact. Given that the subject
land is contiguous to an Indian reservation set aside by the United
States government for the use and welfare of a Tribe, and would, after
acquisition, form a contiguous parcel, and based on the long experience
of BIA in processing such applications and then administering land
placed into trust, these factors need not be considered for every
acquisition. However, the final rule retains notice and an invitation
to State and local governments to comment on the acquisition's
potential impact on regulatory jurisdiction, real property taxes, and
special assessments. If such comments are received, the Secretary will
consider them in a holistic analysis of the application. If no such
comments are received, no consideration of these factors is required
under the final rule.
Under Sec. 151.10(b), the same approach of granting great weight
to important Tribal purposes will be applied in the same manner as for
on-reservation acquisitions (i.e., within the boundaries of an Indian
reservation) under Sec. 151.9(b). The Secretary also presumes, based
on decades of experience in acquiring and administering contiguous
trust lands, that the Tribal community will benefit from the
acquisition. The existing rule considers both on-reservation and
contiguous applications under the on-reservation criteria in Sec.
151.10. The presumption that a community will benefit from acquisition
of land in trust reflects an update based on the Secretary's practice
and is a change from the current regulations, which contain no
presumption of whether a Tribal community will benefit from an
acquisition. Trust acquisition of land benefits Tribes because Tribes
have new opportunities to pursue self-determination and self-governance
on the land, and Tribes can access the Federal programs and services
that are available only on trust lands.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Making stylistic changes in Sec. 151.10(b) to emphasize
the Secretary's recognition that applications that are for the listed
purposes will further the important policy goals identified in Sec.
151.3. Clarifying in Sec. 151.10(c) that the Secretary will presume
that the acquisition ``will further the Tribal interests described
above in paragraph (b) of this section, and adverse impacts to local
governments' regulatory
[[Page 86228]]
jurisdiction, real property taxes, and special assessments will be
minimal, therefore the application should be approved.''
<bullet> Clarifying in Sec. 151.10(d) that the notice to State and
local governments will provide 30 calendar days in which to provide
written comments to rebut the presumption of minimal adverse impacts to
regulatory jurisdiction, real property taxes, and special assessments.
<bullet> Minor stylistic changes.
Sec. 151.11 How will the Secretary evaluate a request involving land
outside of and noncontiguous to the boundaries of an Indian
reservation?
Off-reservation acquisitions have been streamlined and designed to
result in faster decisions through the same reductions in review
criteria described for on-reservation and contiguous acquisitions
appearing in Sec. 151.11(a), and by applying the same great weight
standard to important Tribal purposes in Sec. 151.11(b). The average
length of time to receive a final fee-to-trust decision is now
approximately 985 days. The expected time to receive a final decision
is expected to significantly decrease, particularly given the new 120-
day timeframe in which BIA must issue a decision as established in
Sec. 151.8(9)(b).
In addition, existing Sec. 151.11(b) applied a ``bungee cord''
approach, increasing the scrutiny applied to an acquisition as distance
from a Tribe's reservation increased. In 1995, the Department amended
part 151 to establish a new policy for the acquisition of land in trust
when such lands are located outside of and noncontiguous to a tribe's
existing reservation boundaries. See 60 FR 32874 (June 13, 1995). The
proposed rule noted the need to eliminate adverse impacts on
surrounding local governments as justification for increasing scrutiny
of tribal benefits while giving greater weight to the concerns of State
and local governments. See 56 FR 32278 (July 15, 1991).
The final rule abandons this approach, providing in new Sec.
151.11(c) that the Secretary presumes the Tribe will benefit from the
acquisition, and will consider the location of the land and potential
conflicts of land use when reviewing State and local comments as part
of the holistic analysis of the application. This revision is
consistent with the BIA's long experience in implementing the land into
trust authorities under the IRA. Where a Tribe takes land into trust
off-reservation, that land nearly always serves an important economic,
cultural, self-determination, or sovereignty purpose that supports
Tribal welfare. Tribal governments are rational actors that make
acquisition decisions carefully based on available resources, such as
tribal funds or financing to purchase the land, planning, and purposes
valued by the Tribe. Accordingly, the Secretary will no longer apply
heightened scrutiny based on distance from the Tribe's reservation but
will instead consider the location of the land broadly before issuing a
decision.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Making stylistic changes in Sec. 151.10(b) to emphasize
the Secretary's recognition that applications that are for the listed
purposes will further the important policy goals identified in Sec.
151.3.
<bullet> Deleting ``without regard to distance of the land from a
Tribe's reservation boundaries or trust land'' in Sec. 151.11(c).
<bullet> Adding in Sec. 151.11(c) that ``the Secretary will
consider the location of the land and potential conflicts of land use''
instead of ``the Secretary will consider the location of the land.''
<bullet> Stylistic changes.
Sec. 151.12 How will the Secretary evaluate a request involving land
for an initial Indian acquisition?
Section 151.12 is designed to streamline decision-making and
support Tribes which do not currently have land in trust. In 1995, the
Department amended part 151 to establish a new policy for the placement
of lands in trust status for Indian tribes when such lands are located
outside of and noncontiguous to a tribe's existing reservation
boundaries. See 60 FR 32874 (June 13, 1995). This amendment did not,
however, account for tribes without reservations. Since that time,
applications from tribes without reservations have been processed under
the existing rule's off-reservation provisions event though Sec.
151.11(b) does not apply to tribes without reservations. The final rule
includes provisions that more appropriately apply to the Secretary's
review of applications from tribes without reservations, thus,
eliminating confusion. The final rule removes any consideration of the
location of the land, except if such consideration is necessary given
State and local comments, while also providing the reduced criteria for
analysis in Sec. 151.12(a) and great weight granted to important
purposes in Sec. 151.12(b). The final rule also establishes a
presumption of Tribal benefits for such requests.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Making stylistic changes in Sec. 151.10(b) to emphasize
the Secretary's recognition that applications that are for the listed
purposes will further the important policy goals identified in Sec.
151.3. Clarifying in Sec. 151.12(c) that the Secretary will presume
that the acquisition ``will further the Tribal interests described in
paragraph (b) of this section, and adverse impacts to local
governments' regulatory jurisdiction, real property taxes, and special
assessments will be minimal, therefore the application should be
approved.''
<bullet> Clarifying in Sec. 151.12(d) that the notice to State and
local governments will provide 30 calendar days in which to provide
written comments to rebut the presumption of minimal adverse impacts to
regulatory jurisdiction, real property taxes, and special assessments.
<bullet> Adding in Sec. 151.12(d) that ``the Secretary will
consider the location of the land and potential conflicts of land use''
instead of ``the Secretary will consider the location of the land''.
Sec. 151.13 How will the Secretary act on requests?
Minor clarifying changes to language were made in Sec. 151.13,
including the use of ``Office of the Secretary'' rather than
``Secretary'' in Sec. 151.13(c) and (d). Because the final rule uses
the defined term Secretary in its inclusive sense to mean all
Department staff with delegated authority from the Secretary, here in
Sec. 151.13 where we refer to the unusual instance where the Secretary
herself and her immediate office have taken over review of an
application, we specify that circumstance by using ``Office of the
Secretary.''
In addition, the final rule adds new information on the steps that
occur after a decision to take land into trust but before signature on
the acceptance of conveyance document, described in paragraphs
(c)(2)(iii) and (d)(2)(iv). This change is explained in detail below
with regard to new Sec. 151.15. Before the BIA may accept a
conveyance, the BIA must confirm that the environmental site assessment
is current. The environmental site assessment is conducted to determine
whether a parcel or parcels in question contain any environmental
liabilities. This assessment is different than the BIA's
responsibilities under NEPA. The final rule has been revised at Sec.
151.13(c)(2)(iii) and (d)(2)(iv) to eliminate any confusion and to
clarify that NEPA must be completed before a decision is made but that
a second environmental site review can be
[[Page 86229]]
completed after the decision is made but before the land is accepted in
trust.
Changes from the proposed rule to the final rule in this section
include minor stylistic changes.
Sec. 151.14 How will the Secretary review title?
Two significant changes were made to the Secretary's title review
process. First, our understanding is that in certain jurisdictions,
including California, many title insurance companies decline to provide
abstracts of title to Tribal applicants. This market failure has
created substantial obstacles for such applicants to bring land into
trust. Section 151.14(a)(2)(ii) is designed to address that issue by
allowing applicants who cannot obtain an abstract of title to instead
provide evidence of a title insurance company's declination. In such
cases the Secretary may accept the applicant's preliminary title report
in place of an abstract of title as sufficient proof of good title
under this section. Evidence of declination may be provided as a letter
or email from the applicant's title insurance company declining to
provide an abstract based on their business practices.
Second, Sec. 151.14(b) allows the Secretary to seek additional
action, if necessary, to address liens, encumbrances, or infirmities on
title. The existing rule mandates disapproval if the Secretary
determines title is unmarketable. The new rule makes this choice
discretionary by replacing ``shall'' with ``may.'' While we expect the
Department will need to disapprove if title is so deficient as to be
unmarketable, the Secretary retains discretion here. The new rule
balances the United States interest in obtaining marketable title with
the legal consequence that land held in trust is inalienable. The
current rule can serve as a barrier to an acquisition when there are
infirmities to title that may not be acceptable to a reasonable buyer
but would otherwise be acceptable to the Secretary if certain
conditions are met (e.g., limiting liability through an indemnification
agreement).
Many Tribal consultation commenters were concerned that
encumbrances on the land which cannot be conveniently eliminated may
prevent acquisition in trust. We clarify here that the Department may
accept, in its discretion, some encumbrances on title and, should those
encumbrances have the potential to impose costs in the future, the
Department may enter into indemnification agreements with the applicant
to facilitate the processing of fee-to-trust applications. Under the
Checklist for Solicitor's Office Review of Fee-to-Trust Applications,
issued by Solicitor Tompkins on January 5, 2017, an indemnification
agreement between the BIA and a Tribal applicant to address a
responsibility that runs with the land may be appropriate if the Tribal
applicant is willing to enter into the indemnification agreement, the
risk of liability for the responsibility is low, and the
indemnification agreement is the only device that will allow the
Department to continue processing the land into trust application. The
Department has completed many such agreements and is willing to
consider them whenever necessary to further an acquisition.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Adding in Sec. 151.14(a)(2)(ii) that the Secretary may
accept either a preliminary title report or an equivalent document
prepared by a title company in place of an abstract of title in certain
circumstances.
<bullet> Removing the requirement in Sec. 151.14(a)(2)(ii) that
the policy of title insurance be less than five years old.
<bullet> Updating Sec. 151.14(a) to read ``[t]he applicant submit
title evidence as part of a complete acquisition package as described
in Sec. 151.8 as follows:''.
<bullet> Stylistic changes.
Sec. 151.15 How will the Secretary conduct a review of environmental
conditions?
Section 151.15 covers the Department's environmental
responsibilities under NEPA and the Departmental Manual at 602 DM 2.
Paragraph (a) simply states that the Department will comply with NEPA;
no changes to BIA's practices are created through this paragraph.
Section 151.15(b) creates a new process in relation to 602 DM 2. That
Departmental policy helps ensure that the Department does not acquire
land that has been contaminated by hazardous substances, or that if it
does acquire such land unknowingly, its due diligence in examining the
property will ensure an innocent landowner defense to liability under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) of 1980 (42 U.S.C. 9601 et seq.).
The innocent landowner defense is only available where
environmental site assessments developed pursuant to 602 DM 2 are
performed or updated within 180 days of an acquisition. Under the
existing regulations, many applicants have, therefore, needed to
continually update their environmental site assessments while waiting
for a decision on their application. Environmental consultant fees in
performing this work added significantly to the cost of an acquisition.
To address this problem, the proposed revisions anticipate a maximum of
two environmental site assessments. One assessment should be prepared
to develop a complete application package. Section 151.15(b) provides
that, if this assessment will be more than 180 days old at the time of
acquisition and thus an update is needed, then a single additional
update may be performed after the Secretary issues her notice of
decision approving the acquisition, but before the acceptance of
conveyance document is signed. Based on lengthy experience in such
acquisitions, if no recognized environmental conditions are identified
in the first environmental site assessment, the chances are low that
any such conditions will have emerged by the time of acceptance.
Repeated updates are, therefore, an unnecessary expense for the
applicant that will be avoided through new Sec. 151.15(b). We note
that Sec. 151.15(b) states that this single additional update ``may''
be required by the Secretary; we use the term ``may'' because if the
original environmental site assessment was performed less than six
months before the acceptance of conveyance, there is no need to perform
an update.
Changes from the proposed rule to the final rule include:
<bullet> Adding in Sec. 151.15(b)(1) ``or before formalization of
acceptance and all other requirements of this section, Sec. Sec.
151.13 and 151.14 are met, the Secretary shall acquire the land in
trust.''
<bullet> Adding in Sec. 151.15(b)(2) ``or before formalization of
acceptance'' in the first sentence. And revising the second sentence to
reference ``prior to the formalization of acceptance'' instead of
``prior to taking the land in trust status''.
Sec. 151.16 How is formalization of acceptance and trust status
attained?
Section 151.16 explains in greater detail how the final process of
accepting land into trust occurs and when. This section replaces
existing Sec. 151.14 and expands on its description of formalization
of acceptance.
In brief, this section explains that after all procedural steps are
completed, including notice of intent to acquire the land in trust,
title review, environmental review, and the expiration of the appeal
period, the Secretary will sign an instrument of conveyance. That
signature places the land into trust for the benefit of the applicant.
[[Page 86230]]
Changes from the proposed rule to the final rule in this section
include:
<bullet> Clarifying in Sec. 151.16(a) that ``[t]he Secretary shall
sign the instrument of conveyance after the requirements of Sec. Sec.
151.13, 151.14, and 151.15 have been met''.
<bullet> Clarifying in Sec. 151.16(c) that ``[t]he Secretary shall
record the deed with LTRO pursuant to part 150 of this chapter.''
Sec. 151.17 What effect does this part have on pending requests and
final agency decisions already issued?
Section 151.17(a) addresses pending applications, offering a choice
to applicants. By default, the Department will continue processing such
applications under the existing regulations, with the understanding
that altering the applicable process midstream might be an unnecessary
disruption, especially for applications that are near the end of the
process or awaiting decision.
However, if an applicant wishes to apply the new regulations to its
pending application, the applicant may do so by informing us of their
choice, with the single exception that the 120-day time frame created
in Sec. 151.8(b)(2) will not apply. Given the number of pending
applications before the Department, if a large number of such
applications were placed at once under the 120-day time frame, the
volume could potentially cause serious problems for agency decision-
making.
Section 151.17(b) explains that any decisions already made under
the existing regulations are not altered by the new regulation.
Changes from the proposed rule to the final rule in this section
include:
<bullet> Adding that ``[t]he Secretary shall consider the comments
of State and local governments submitted under the notice provisions of
the previous version of this regulation''.
<bullet> Clarifying that the new regulations do not alter decisions
made by BIA officials that are undergoing appeal ``on January 11,
2024''.
Sec. 151.18 Severability
Section 151.18 provides that if any provision of this subpart, or
any application of a provision, is stayed or determined to be invalid
by a court of competent jurisdiction, it is the Secretary's intent that
the remaining provisions shall continue in effect. The Secretary
believes this is appropriate because the regulations are largely
procedural and that if specific sections were stricken the Secretary
would still be able to render decisions in compliance with statutory
authority.
V. Public Comments on the Proposed Rule and Response to Comments
Individual comments were separated and categorized after the
closing of the comment period on March 1, 2023. Over 95 different
entities commented on part 151, including Tribal, State, and local
governments, industry organizations, and individual citizens. In total,
the submissions were separated into 650 individual comments. Generally,
around 81 comments were exclusively supportive, 114 were not
supportive, and 455 were neutral or provided general support along with
constructive feedback on how the rule may be improved. All public
comments received in response to the proposed rule are available for
public inspection. To view all comments, search by Docket Number ``BIA-
2022-0004'' in <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The AS-IA has decided to
proceed to the final rule stage after careful consideration of all
comments. The AS-IA's responses to significant comments that were not
supportive, neutral, or provided general support along with
constructive criticism are detailed below. No responses are provided
for comments that were exclusively supportive.
Indian Tribes
In general, Tribes who commented were supportive of the proposed
part 151 regulations. However, many Tribes included constructive
criticism. Commenting Tribes appreciated the Department's inclusion of
community benefits and presumptions for approval, the Department's
efforts to reduce burdensome requirements, the new tiered categories of
acquisitions, and the establishment of timelines.
While Tribes were generally supportive, some comments raised
concerns. For example, some Tribes were concerned about applying
presumptions to applications for the acquisition of land outside of an
applicant Tribe's aboriginal territory. Some Tribes also suggested that
Tribal governments should have the same opportunity to comment on
acquisitions that State and local governments do. Other Tribes
advocated for more flexibility around land descriptions.
State and Local Government
State and local governments that commented opposed the regulations
on multiple fronts, including questioning the authority of the
Department to implement portions of the regulations under the
Administrative Procedure Act (APA), caselaw, and principles of
federalism. State and local governments were particularly concerned
that the presumptions afforded Tribal applicants as well as the removal
of certain provisions including: the scrutiny applied to Tribal
benefits in relation to State and local government concerns as the
distance of the land at issue from a Tribe's reservation or trust land
increased; the requirement that Tribes demonstrate the need for
additional land; and the requirement that Tribes supply business plans
for review. They also opposed a perceived decreased role for State and
local governments in the process, such as eliminating the consideration
of jurisdictional problems or potential conflicts over land use and the
removal of solicitations for State and local governments to comment on
on-reservation acquisitions. State and local governments also provided
detailed suggestions for how the Department should notify State and
local governments. This rulemaking comports with the APA and is within
contemplated congressionally delegated authority of the Assistant
Secretary--Indian Affairs. Multiple Federal courts of appeals have
rejected claims that section 5 of the IRA violates the nondelegation
doctrine or that it otherwise violates constitutional concepts of
federalism. See Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23,
30 (D.C. Cir. 2008); Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir.
2007), rev'd on other grounds, Carcieri v. Salazar, 555 U.S. 379
(2009); South Dakota v. U.S. Dep't of Interior, 487 F.3d 548 (8th Cir.
2007); South Dakota v. U.S. Dep't of Interior, 423 F.3d 790 (8th Cir.
2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999);
see also Confederated Tribes of Siletz Indians v. United States, 110
F.3d 688, 698 (9th Cir. 1997) (stating in dicta that the land into
trust power is a valid delegation).
Sec. 151.1 What is the purpose of this part?
Comment. Many Tribes see this as a necessary revision because ``the
fee-to-trust regulations normally do not apply to transactions in these
categories because of the legal framework governing them,'' including
acquisition of fee land by Tribes and acquisitions mandated by statute.
They suggest that numbering this section may improve comprehension--
like so: ``This part does not cover: (1) acquisition of land by
individual Indians and Tribes in fee simple even though such land may,
by operation of law, be held in restricted status following
acquisition; (2) acquisition of land mandated by Federal law; (3)
acquisition of land in trust status by inheritance or escheat; or (4)
[[Page 86231]]
transfers of land into restricted fee status unless required by Federal
law.''
<bullet> Response: The Department agrees that clarifying when the
Secretary will apply the part 151 regulations is an important addition
to the final rule. The final rule clarifies that this regulation does
not govern acquisitions mandated by Federal law. The Department has
issued guidance concerning such mandatory acquisitions, including the
guidance found in the FTT Handbook, and does not believe regulations
are necessary at this time. The formatting in the section is consistent
with the rest of the rule therefore the Department declines to make the
suggested formatting revision.
Comment. One Tribe noted that the regulations do not set out the
procedures in a comprehensive manner. The Tribe suggested that this
section reference all applicable procedures, letting applicants know
exactly what will be applied and when.
<bullet> Response: Specific instructions regarding the fee-to-trust
process are contained in guidance outside the regulation (e.g., FTT
Handbook). However, policy and guidance change over time, including
where it is located, so the regulation does not identify specific
policy and guidance documents. BIA will be updating the FTT Handbook to
reflect the changes made in this final rule.
Comment: One Tribe suggested that consideration should be given to
the terms ``trust'' and ``restricted'' for clarity.
<bullet> Response: The final rule is sufficiently clear and
articulates the scope of the rule without the need for additional
definitions.
Comment: One commenter suggested that this section include a
baseline process for fee-to-trust, including a provision stating that
acquisitions mandated by Federal law be exempt. The commenter also
pointed out that Federal courts have no authority to acquire land in
trust for Indians without some action by the Congress.
<bullet> Response: The final rule makes clear that the new
regulations govern discretionary decisions to acquire land into trust.
The FTT Handbook clarifies how the Department will process acquisitions
mandated by Federal law.
Comment: One Tribe noted a concern that the proposed regulations
may unintentionally advantage some Tribes at the expense of others. The
Tribe suggested an addition to this section clarifying that neither the
definitions and terminology in the part 151 regulations nor the
findings and decisions made in the applications of the part 151
regulations are intended to be binding for purposes of other decision-
making processes conducted under other authorities, including, without
limitation, 25 U.S.C. 2719 and 25 CFR part 292 (part 292).
<bullet> Response: The Department agrees that the definitions and
terminology are not intended to be binding for other decision-making
processes, including those made under 25 U.S.C. 2719 and part 292 but
disagrees that the rule requires additional clarification of that
point.
Comment: One Tribe suggested that this section specify that the
Secretary's land acquisition regulations should apply to mandatory and
discretionary acquisitions to the extent that it does not conflict with
Federal legislation resolving land claims.
<bullet> Response: The Department acknowledges that Congress often
addresses both mandatory and discretionary trust acquisitions as part
of legislation. The regulations as written apply solely to
discretionary acquisitions provided for in legislation. The
requirements for discretionary acquisitions set forth in this rule, and
mandatory acquisitions set forth in the FTT Handbook, aim to ensure the
Department's compliance with applicable requirements, including the
National Environmental Policy Act (NEPA) and the Departmental Manual at
602 DM 2.
Sec. 151.2 How are key terms defined?
Contiguous
Comment: Several commenting Tribes proposed the addition of
``navigable rivers'' to the definition of ``contiguous'' as follows:
``Contiguous means two parcels of land having a common boundary
notwithstanding the existence of non-navigable waters or navigable
rivers or a public road or right-of-way and includes parcels that touch
at a point.'' One Tribe suggested adding the following phrase:
``Contiguous shall include two parcels of land separated by navigable
water if the navigable water is subject to the Tribe's treaty or other
fishing rights and each parcel is accessible by water.''
<bullet> Response: Under the rule, the process for approving
acquisitions contiguous to an Indian reservation has been simplified.
The definition of contiguous is intended to formalize long-standing BIA
practice with respect to evaluating contiguity and is sufficiently
clear to guide the Department and applicants regarding whether a parcel
is contiguous. There of course will be fact patterns that require
additional analysis. The Department declines to add ``navigable
rivers'' to the definition because in some instances such a change
could result in parcels that are a significant distance from one
another being considered contiguous.
Comment: One Tribe requested more clarity on what constitutes a
``public road'' for this definition. The Tribe also suggested that the
Department address whether there is a distinction between
``contiguous'' and ``adjacent.''
<bullet> Response: The Department agrees that the nature of a
public road could be dramatically different depending on the location
and may require additional analysis. Separation of two parcels by a
public road does not necessarily render the parcels noncontiguous for
purposes of part 151. The definition is sufficiently clear to guide the
Department and applicants regarding whether a parcel is contiguous.
There of course will still be instances that require additional
analysis. We acknowledge that the terms ``adjacent'' and ``contiguous''
are similar but have slightly different meanings, i.e., adjacent
generally means close to or near something rather than sharing a common
boundary. The Department believes the definition of contiguous is
sufficient to cover lands that are contiguous and no separate
definition of adjacent is necessary.
Comment: Another Tribe urged the Department to clarify that land
accepted into trust as ``contiguous'' pursuant to 25 CFR 151.10 is
``contiguous'' for gaming purposes under 25 CFR 292.2.
<bullet> Response: The definition of contiguous is consistent with
the part 292 definition, and in general should result in a similar
analysis; however, determinations made under part 151 and part 292 are
separate and rely on different statutory authority.
Comment: Other Tribes also requested clarification on whether the
definition should include two or more parcels of land and whether
parcels with common corners or those separated only by a road or right
of way are included.
<bullet> Response: The use of the phrase two ``or more'' parcels
could cause confusion where, for example, parcels may share more than
one border. To avoid confusion, the definition was not changed. This
definition includes parcels that touch at their corners. Separation of
two parcels by a public road or right-of-way does not necessarily
render the parcels noncontiguous for purposes of part 151. There of
course will still be instances that require additional analysis.
Comment: One Tribe recommended the addition of the following
definition for ``adjacent'' property to Sec. 151.2: Adjacent means two
parcels of land connected by natural, social, cultural, or economic
ties, though they are not
[[Page 86232]]
contiguous, as determined by any of the following factors: (1) the
physical distance between parcels, (2) the ease of travel between
parcels, (3) the parcels sharing the same natural characteristics or
supporting the natural functions of each other, (4) the cultural
connection between the parcels, or (5) the parcels being part of a
larger economic plan or strategy.
<bullet> Response: The definition of contiguous is sufficient to
guide the analysis. There of course will still be instances that
require more in-depth review. The rule only uses the term contiguous.
We acknowledge that the terms ``adjacent'' and ``contiguous'' are
similar but have slightly different meanings, i.e., adjacent generally
means close to or near something rather than sharing a common boundary.
The Department believes the definition of contiguous is sufficient to
cover lands that are contiguous and no separate definition of adjacent
is necessary.
Indian Land
Comment: One Tribe pointed out that including a definition of the
term Indian land could lead to confusion in the future because the term
``Indian Lands'' is a term from the Indian Gaming Regulatory Act
(IGRA), which is not at issue here and suggested the definition might
not be necessary.
<bullet> Response: The definition clarifies that Indian land as it
relates to the part 151 regulations includes those held in trust or
restricted status. IGRA provides a separate definition for the term
Indian lands which is applicable in the gaming context. See 25 U.S.C.
2703(4). The Department believes there is sufficient statutory clarity
and distinction for how the term is used in the IGRA context such that
the part 151 definition will not lead to confusion. The part 151
definition should not be used in the gaming context or to determine
gaming eligibility; it is for the purpose of land into trust.
Indian Reservation or Tribe's Reservation
Comment: Some Tribes would like clarification on whether ``The
Secretary will consider all historic Oklahoma Reservations consistent
with McGirt'' is intended to include all Oklahoma Tribes or just the
Five Tribes.
<bullet> Response: This provision applies to all Oklahoma Tribes.
Comment: One Tribe suggested that the principles of McGirt are
broadly applicable. Therefore, the regulations' language should apply
in Oklahoma and to any place where historic reservations have yet to be
reaffirmed. The Tribe suggested the following language:
(1) That area of land set aside for the use and occupancy of an
Indian Tribe(s) by treaty, statute, executive order, or Secretarial
proclamation or order, including both formal and informal reservations
as well as dependent Indian communities, allotments, and restricted fee
lands;
(2) That area of land over which a Tribe is recognized by the
United States as having governmental jurisdiction; or
(3) That area of land constituting the former reservation of a
Tribe as defined by the Secretary, including:
(a) In Oklahoma, where there has been no final determination
affirming the Tribe's reservation; or
(b) Elsewhere, where there has been a final determination the
Tribe's reservation has been diminished or disestablished.
<bullet> Response: The proposed language in section (1) could, in
some instances, go beyond what is intended to be included within the
definition. The Department therefore declines to include the proposed
revision. The proposed language in section (2) is part of the proposed
rule and articulates the general definition that an Indian reservation
or Tribe's reservation, for purposes of part 151, includes those lands
over which the Tribe is recognized by the United States as having
governmental jurisdiction. Specific to Oklahoma, the rule provides for
a concise statement consistent with the McGirt decision as well as
agency precedent. See, e.g., Shawano County, Wisconsin v. Acting
Midwest Regional Director, BIA, 53 IBIA 62 (2011) (because there was a
judicial determination that the Tribe's reservation was disestablished
and the parcels were within the original boundaries of the
disestablished reservation, BIA's consideration under the ``on-
reservation'' criteria was appropriate). The Department therefore
declines to adopt the proposed language in section (3).
Individual Indian
Comment: One Tribe pointed out a possible error in the definition
of Individual Indian, noting that it requires that an individual be
both (1) a descendent of an enrolled Tribal member, and (2) personally
have lived on a reservation in 1934. Under this definition, only a
person above the age of 88 (the youngest possible age to have been
alive in 1934) would be eligible. The Tribe suggested the following
revision to proposed Sec. 151.2(c)(2): ``any person who is a
descendent of an enrolled Tribal member who, on June 1, 1934, was
physically residing on an Indian reservation.''
<bullet> Response: This language is adapted from the IRA, 25 U.S.C.
5129, and is sufficiently clear to guide the Department and applicants.
The Department agrees the second category in the definition constitutes
a closed class of individuals consistent with Sol. Op. M-37054,
``Interpreting the Second Definition of `Indian' In Section 19 of the
Indian Reorganization Act of 1934'' (Mar. 9, 2020).
Comment: One commenter stated that the third definition of
Individual Indian appears to be based on racial or ethnic criteria and
asked what processes and procedures are used to determine the degree of
Indian blood?
<bullet> Response: The language is taken from the IRA and the
process for determining eligibility under the third definition is
separate from the part 151 regulations.
Initial Indian Acquisition
Comment: While some Tribes supported the definition of Initial
Indian acquisition, others pointed out that where land has been
acquired or held in trust, but for various reasons, the United States
no longer holds land in trust for a Tribe, it is not technically an
initial acquisition.
<bullet> Response: The Department believes the definition provides
sufficient clarity that an initial acquisition applies to Tribes with
no land currently held in trust status and no revision is necessary.
Interested Party
Comment: Several Tribes raised questions regarding terms within the
definition of Interested party, including what constitutes a legally
protected interest and to what extent such an interest must be affected
to meet the definition. There was general concern that the definition
was overly broad.
<bullet> Response: The Department weighed these concerns and looked
at the effect of adopting a narrower definition of the term Interested
party. Interested party is used in Sec. 151.13 to define those parties
entitled to notice of a decision and any appeal rights. The commenters'
suggestion to narrow the definition unnecessarily limits those parties
who should receive notice of the decision. As a result, the substance
of the final rule is the same as the proposed rule. We note that it is
possible for a party to satisfy the definition of Interested party yet
have no right to appeal a decision, i.e., have no standing to do so.
The Department also notes that providing notice to a party does not
confer legal standing to bring a challenge.
Comment: Some commenting Tribes suggested that the Department
clarify that an interested party must show its
[[Page 86233]]
legally protected interests would be adversely affected by a decision.
<bullet> Response: The 25 CFR part 2 (part 2) regulations further
define those parties adversely affected by a decision. For purposes of
part 151, it is not necessary for an interested party to be adversely
affected, instead an interested party is one with a legally protected
interest affected by a decision. The Department has not adopted the
specific language suggested by the commenter, nor added a definition of
legally protected interest.
Comment: Several Tribes suggested merging the definition of
Interested party in proposed Sec. 151.2 with part 2. One Tribe
included a detailed description of how the language from part 2 could
be incorporated into the part 151 regulations.
<bullet> Response: The part 151 Interested party definition closely
resembles the part 2 regulation, wherein interested party is defined as
``a person or entity whose legally protected interests are adversely
affected by the decision on appeal or may be adversely affected by the
decision of the reviewing official.'' See Proposed Rule, Appeals from
Administrative Actions, 87 FR 73688 (Dec. 1, 2022). The part 2
regulation further defines those entities adversely affected by a
decision. For purposes of part 151, it is not necessary for an
interested party to be adversely affected but instead that they have a
legally protected interest affected by a decision. We note that it is
possible for a party to satisfy the definition of Interested party and
yet have no right to appeal a decision, i.e., have no standing to do
so. The Department also notes that providing notice to a party does not
confer legal standing to bring a challenge.
Comment: One Tribe recommended the following definition for
Interested party: ``any person, organization or other entity who can
establish a legal, factual or property interest in a determination and
who requests in writing to the decision maker an opportunity to submit
comments or evidence or to be kept informed of general actions
regarding a specific application or action. In addition to showing a
legal interest, an interested party needs to demonstrate an
individualized right or interest--some interest distinct from any other
members of the public that they have been adversely affected in a
concrete and particularized way.''
<bullet> Response: The Department has not adopted the specific
language suggested by the commenter because it limits the definition to
those adversely affected. The final rule is written to aid in
understanding which parties will receive written notice of a decision
not to identify those parties that have standing to challenge the
decision in an administrative appeal. We note that it is possible for a
party to satisfy the definition of Interested Party and yet have no
right to appeal a decision, i.e., have no standing to do so. The
Department also notes that providing notice to a party does not confer
legal standing to bring a challenge.
Comment: Another Tribe said that appellants that do not or would
not, due to the decision, exercise jurisdiction over or have the right
to use the property subject to appeal, should lack standing to bring an
appeal. The Tribe also asserted that status as a government does not
confer standing to bring such an appeal and that an appellant's basis
for appeal should not be purely economic.
<bullet> Response: The Department weighed these concerns and looked
at the effect of adopting a narrower definition. The term Interested
party is used in Sec. 151.13 to define those parties entitled to
notice of a decision. The commenter's suggestion is too narrow and
eliminates parties that should receive notice of the decision if made
known to the decision maker. As a result, the substance of the final
rule is the same as the proposed rule. We note that it is possible for
a party to be an interested party yet not have the right to appeal a
decision i.e., lack standing to do so. The Department also notes that
providing notice to a party does not confer standing.
Comment: Some Tribes expressed concern that the proposed language
opens the possibility that if a group of neighbors opposes and appeals
a final decision on a fee-to-trust application, the acceptance of their
appeal may give them the perception that they have a legally protected
interest. They further recommended that the definition track the
language used in Sec. 151.13, that an ``interested party'' must have
``made themselves known, in writing, to the official, prior to a
decision being made.''
<bullet> Response: While agreeing with the premise, the Department
believes that definition of Interested party is sufficient to identify
the parties entitled to notice of a decision and that issues of
standing are more appropriately addressed as part of the appellate
authority vested in the agency and the Federal courts. The suggested
revision to the definition would complicate Sec. 151.13 because the
term Interested party is also used to identify appeal periods for
``unknown interested parties'' provided notice via publication.
Marketable Title
Comment: Multiple commenting Tribes expressed support for the new
proposed definition of ``marketable title.'' One Tribe pointed out a
possible grammatical mistake in the definition of marketable title:
``to cover'' as it appears to disagree with the preceding clause. They
recommended substituting ``to cover'' with ``that covers'' instead.
<bullet> Response: The Department agrees and has made this change
in the final rule.
Comment: One Tribe requested that marketable title be clarified as
including all easements and rights of way of record, including any
shared maintenance and other agreements that are part of those
interests of record.
<bullet> Response: The definition serves to protect the United
States from acquiring land in trust with title infirmities a reasonable
buyer would not accept. In general, most easements, rights of way of
record and shared maintenance agreements of record are acceptable but
still must be evaluated on a case-by-case basis.
Preliminary Title Opinion
Comment: One Tribe commented that preliminary title opinions (PTO)
should be defined as non-privileged communications by the Solicitor
regarding the existing title status. Because proposed Sec. 151.8
requires a PTO as part of a complete application, the Tribe said it
would not make sense to include privileged material. The lack of
clarity in the current regulations causes unnecessary delays.
<bullet> Response: The PTO is a lawyer-client privileged
communication between the Office of the Solicitor and BIA. That said,
any exceptions to title that must be met prior to acquisition will be
communicated to the applicant.
Tribal Homelands
Comment: Some Tribes requested a definition of ``Tribal
Homelands,'' as the term is used throughout the regulations. Tribes
noted that specific criteria to establish Tribal Homelands would help
avoid confusion or conflict in instances where Tribes have overlapping
historical territories.
<bullet> Response: The IRA authorizes the Secretary to acquire
lands ``for the purpose of providing land for Indians.'' The
regulations articulate the Department's general support for the
restoration of Tribal homelands consistent with the IRA's purpose of
providing land for Indians and, as such, Tribal homelands is not a term
of art that requires definition. The Department agrees that it can be
difficult to
[[Page 86234]]
demarcate a Tribe's historical territory and that it may overlap with
the historical territory of other Tribes, but adding a requirement that
the Department render ``Tribal homeland'' determinations in connection
with land into trust decisions would unnecessarily lengthen and
complicate the review process. The Department therefore declines to
include a definition of ``Tribal homelands'' in the final rule.
Tribe
Comment: One Tribe commented that while the List Act contains
recognized Tribes eligible for IRA benefits, it also contains Tribes
not eligible for IRA benefits.
<bullet> Response: The Department agrees that the availability of
IRA section 5 fee-to-trust authority depends on more than just Federal
recognition under the List Act. The definition of federally recognized
Tribe is still useful; however, in that acquisitions are limited to
federally recognized Tribes.
Other
Comment: Many Tribes expressed support for inclusion of definitions
for the terms ``Fee Interest,'' ``Fractionated Tract,'' ``Secretary,''
``Restricted Land,'' ``Trust Land or Land in Trust Status,'' and
``Tribe.''
<bullet> Response: The final rule will include the same definitions
as the proposed rule.
Sec. 151.3 What is the Secretary's land acquisition policy?
Comment: Many commenting Tribes expressed support for the land
acquisition policy. One Tribe also encouraged the Department to apply
Sec. 151.3(b) as broadly as possible.
<bullet> Response: The broad policy statement in Sec. 151.3 is
grounded in the statutory text and authority of the IRA which the
Secretary will actively implement to the extent permissible.
Comment: One Tribe referred to the land acquisition policy as
``inappropriately limited and does not describe the policy articulated
by the Indian Reorganization Act (IRA),'' codified at 25 U.S.C. 5108.
Consequently, the Tribe recommended that the proposed rule use section
5 of the IRA as the authority for the policy.
<bullet> Response: The Secretary's land acquisition policy
articulated in Sec. 151.3 relies on IRA Section 5 authority codified
at 25 U.S.C. 5108 and provides a broad range of purposes for acquiring
land that meet the intent of the IRA. Therefore, the substance of the
final rule is the same as the proposed rule.
Comment: A few Tribes commented that the land acquisition policy
should include language like the following: ``When the Secretary
determines that the acquisition of the land will further Tribal
interests by . . . advancing environmental justice for Tribal
communities that have been disproportionately impacted by climate
change, pollution, dumping of industrial waste, and other
environmentally destructive practices, by helping them to secure safe
and usable land.'' Another commenter suggested that the policy is an
exercise of the Secretary's fiduciary obligation and should therefore
be informed by the Department's desire to address the devastating
effects of the Federal Government's treaty, allotment, and termination
periods and policies, as well as decisions beyond a Tribe's control
that threaten the safety of current Tribal land.
<bullet> Response: The Department appreciates the commenter's
additional basis for the Secretary to acquire land into trust. However,
we decline to incorporate the additional language because Sec.
151(b)(3) already includes broad language allowing the Secretary to
acquire land in trust status if it is ``for other reasons the Secretary
determines will support Tribal welfare.''
Comment: Several Tribes noted the importance of including explicit
language stating that the land acquisition policy is intended to
``protect sacred sites and Tribal cultural resources, establish or
maintain conservation areas, burial grounds or cemeteries, consolidate
land ownership to strengthen Tribal governance over reservation lands
and reduce checkerboarding, protect treaty or subsistence rights, and
facilitate Tribal self-determination, economic development or Indian
housing.'' It was further noted that many Tribes are seeking new
acquisitions to bury ancestors being repatriated or excavated from
their resting places due to development outside of Tribal lands.
<bullet> Response: The Department agrees that the purposes listed
by the commenters are important considerations in the discretionary
land into trust process. Section 151.3(b)(3) articulates these broad
purposes as reasons the Secretary may acquire land into trust and
includes the broad statement that includes ``for other reasons the
Secretary determines will support Tribal welfare.''
Comment: One Tribe proposed adding the phrase ``increasing a
Tribe's resilience to climate change'' as another reason for the
Secretary to approve an acquisition.
<bullet> Response: The Department agrees that there are purposes
not specifically identified that may be important considerations in the
discretionary land into trust process. Section 151.3(b)(3) articulates
that the Secretary may acquire land into trust ``for other reasons the
Secretary determines will support Tribal welfare.''
Comment: Several Tribes recommended Sec. 151.3(b)(3) be revised to
read, in pertinent part: ``. . . if the acquisition will further Tribal
interests by establishing a land base or protecting Tribal homelands,
protecting sacred sites or cultural resources and practices,
establishing or maintaining conservation or environmental mitigation
areas, consolidating land ownership, acquiring land lost through
allotment, reducing checkerboarding, protecting rights secured by
treaty, Executive Order, or other Federal or subsistence rights, or
facilitating self-determination, economic development, or Indian
housing.'' These same Tribes also suggested making this change to all
sections where this language appears: Sec. Sec. 151.9(b), 151.10(b),
151.11(b), and 151.12(b).
<bullet> Response: The Department agrees that Tribes may have
rights beyond those secured under treaty. Section 151.3(b)(3) however
is not exhaustive and articulates that the Secretary may acquire land
into trust ``for other reasons the Secretary determines will support
Tribal welfare.''
Comment: Some non-Tribal entities asserted that the Secretary was
applying a blanket policy, stating ``the Department appears to draw
little or no differentiation between vastly different types of
potential trust acquisitions, including those with considerably
different land uses, which invariably result in dramatically different
impacts to communities.''
<bullet> Response: The broad policy statement in Sec. 151.3 is
grounded in the statutory text and authority of the IRA. NEPA requires
Federal agencies to examine the environmental effects of proposed
actions before making a decision. The Department's NEPA process
requires the BIA to examine environmental and related social and
economic effects. The use of the land identified in an application will
dictate the level of environmental review that is appropriate to comply
with the Department's obligations under NEPA.
Comment: One Tribe commented that language should be added to make
clear that even though an acquisition may be authorized under Federal
law there may nevertheless be other Federal law or binding agreements
(e.g., Tribal-State compacts) that prohibit the Secretary from
acquiring land into trust.
[[Page 86235]]
<bullet> Response: Whether a separate agreement (e.g., a gaming
compact) constrains the Secretary's authority is a fact specific
analysis. For that reason, the Department declines to add the suggested
language to the final rule.
Comment: One Tribe commented that lands acquired within a Tribe's
reservation or Tribal consolidation area should be deemed to be
reservation land without further action. This would avoid any question
of whether an on-reservation acquisition requires a Reservation
Proclamation.
<bullet> Response: A reservation proclamation is a separate action
under the authority of section 7 of the IRA. The Department notes,
however, that an area of land over which a Tribe is recognized by the
United States as having governmental jurisdiction (e.g., lands held in
trust for the Tribe) are considered reservation under the Sec. 151.2
definition of Indian reservation or Tribe's reservation. There is no
requirement that there be a formal proclamation before a parcel may be
considered Indian reservation or the Tribe's reservation for purposes
of a land acquisition under part 151. The final rule provides for a
concise statement and the Department declines to make the suggested
change.
Sec. 151.4 How will the Secretary determine that statutory authority
exists to acquire land in trust status?
Comment: Numerous Tribes expressed appreciation for the clarity
about how the Department will ensure that it has statutory authority to
acquire land into trust status. One supportive commenter suggested that
the Department elaborate on or provide a non-exhaustive list of ``other
forms of evidence.'' Another commenter suggested that the Department
include ``Evidence of determinations by appropriate Federal officials
that a Tribe or Tribal members were eligible for benefits under the
IRA.'' One Tribe expressed support for proposed Sec. 151.4(a)(4) (now
renumbered as Sec. 151.4(a)(5)), which gives no legal force or effect
to past disavowals of a jurisdictional relationship by executive
officials. Another Tribe suggested that evidence of treaty
negotiations, non-ratified treaties, and termination legislation should
all be considered conclusive rather than presumptive evidence. Another
Tribe suggested that this section specifically include Federal
legislation settling land claims as conclusive evidence where the
legislation provides for mandatory or discretionary acquisitions.
Another Tribe suggested that Federal efforts to conduct an accept or
reject vote under section 18 of the IRA, even where no vote was held,
should be treated as conclusive evidence.
<bullet> Response: Section 151.4 includes non-exhaustive lists of
evidence to meet the conclusive and presumptive standards, as well as a
third category for making a determination in the absence of conclusive
or presumptive evidence. The ``other forms of evidence'' category is
intended to be a catch-all category that allows the Secretary to give
appropriate weight to forms of evidence not identified in the lists of
``conclusive'' or ``presumptive'' evidence.
The Department finds that Federal legislation settling tribal land
claims is indicative that a Tribe was under Federal jurisdiction in or
before 1934, therefore the Department has included such settlements as
presumptive evidence. The Department finds that evidence of Federal
efforts to conduct elections under section 18 of the IRA, even where no
vote was held, should be treated as probative evidence of Federal
jurisdiction in the absence of conclusive or presumptive evidence.
Presumptive evidence is rebuttable and, even where presumptive
evidence exists, the Department will engage in a detailed review of the
historical record. If there is evidence that a Tribe was not under
Federal jurisdiction in 1934, the Department will review all available
evidence in concert to determine whether, as a whole, the evidentiary
record supports a finding that the Tribe was under Federal jurisdiction
in 1934.
Comment: One Tribal community requested that the Department publish
a list of Tribes that met these thresholds so that future applicants on
that list could reference that publication. Another commenter suggested
that the rules clarify that proposed Sec. 151.4(c) applies to all
Tribes with favorable ``under Federal jurisdiction'' determinations and
not just those ``eligible under section 5 of the IRA.'' A Tribe
suggested that the Department clarify that past unfavorable ``under
Federal jurisdiction'' determinations receive no precedential effect,
and that the Department will review such applicants' future
applications under this newly articulated standard.
<bullet> Response: Each Tribe is notified when they receive a
positive ``under Federal jurisdiction'' determination and that analysis
is maintained by the Department for future applications. Tribes that
receive a positive determination from the Department will not need a
future ``under Federal jurisdiction'' analysis for subsequent fee-to-
trust applications. Such prior determinations remain valid under the
proposed revision. If a Tribe has received a negative ``under Federal
jurisdiction'' determination from the Department prior to the issuance
of the final rule, the Tribe may request a new determination under
Sec. 151.4. Because the Department provides notice as described here,
the Department declines to provide a separate publication of Tribes
that have met the threshold.
Comment: A Tribe requested clarification that proposed Sec. 151.4
``incorporates existing case law'' and that the tests described have
been ``repeatedly upheld by the Federal courts'' and suggested language
to further clarify how the IRA and related laws are treated under this
section.
<bullet> Response: Section 151.4 is based on the legal analysis
articulated in Sol. Op. M-37029, ``The Meaning of `Under Federal
Jurisdiction' for Purposes of the Indian Reorganization Act,'' as well
as the Secretary's experience applying IRA's first definition of
``Indian'' under section 19 in the almost fifteen years since the
Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379 (2009).
The Department agrees that the legal analysis and the types of evidence
articulated in Sol. Op. M-37029 have been upheld as a reasonable
interpretation of the IRA in Federal district and circuit courts. As
such, future determinations made under Sec. 151.4 criteria will
benefit from the jurisprudence developed around Sol. Op. M-37029.
Because Sec. 151.4 is sufficiently clear on this point, the Department
declines to make the suggested revision.
Comment: Several Tribes believe that the current language in Sec.
151.4, as it relates to the acquisitions of trust lands owned in fee by
an Indian, was replaced without providing additional details or clarity
for these types of acquisitions. Therefore, they suggested that the
text from the existing Sec. 151.4 be maintained and further clarified
in the new proposed section to account for this issue.
<bullet> Response: Existing Sec. 151.4, ``Acquisitions in trust of
lands owned in fee by an Indian,'' was deleted as unnecessary, since
the rule already provides for such acquisitions and no additional
process or information was established.
Comment: A commenting town suggested that the presumption that
Tribes acknowledged through 25 CFR part 83 (part 83) were ``under
Federal jurisdiction'' in 1934 should be eliminated, or a process
should be established where this rebuttable presumption may be
challenged. Others believe this provision is ``arbitrary and
capricious'' and should be withdrawn,
[[Page 86236]]
noting that Federal acknowledgment materials reviewed under part 83
could show instead that the Tribe was under State jurisdiction in 1934.
<bullet> Response: The final rule revises proposed Sec.
151.4(a)(2)(vi)), and adds a new provision, Sec. 151.4(a)(4), to
confirm that the Secretary may rely on evidence submitted in a 25 CFR
part 83 proceeding to demonstrate the assertion of Federal jurisdiction
in or before 1934. Depending on the nature of the evidence, it may be
considered presumptive or probative, consistent with Sec. 151.4(a)(2)
and (3).
At the outset, the Department reiterates the principle that there
is no temporal limitation on the term ``recognized'' in 25 U.S.C. 5129,
and therefore a Tribe need not have been recognized by the Federal
Government in 1934 to meet the IRA's definition of Indian. See
Confederated Tribes of the Grande Cmty. Of Oregon v. Jewell, 830 F. 3d
552, 561 (D.C. Cir. 2016). The question and analysis of whether the
Federal Government acknowledges a Tribe under part 83 is a wholly
different question than whether Federal jurisdiction existed over a
Tribe in 1934. See id. at 565 (``Whether the government acknowledged
Federal responsibilities toward a Tribe through a specialized,
political relationship is a different question from whether those
responsibilities in fact existed. And as the Secretary explained, we
can understand the existence of such responsibilities sometimes from
one Federal action that in and of itself will be sufficient, and at
other times from a ``variety of actions when viewed in concert.'');
Carcieri v. Salazar, 555 U.S. 379, 398 (2009) (Breyer, J., concurring)
(noting that a Tribe may have been `` `under Federal jurisdiction in
1934'--even though the Department did not know it at the time.'').
By relying on evidence that supports both recognition under part 83
and an ``under Federal jurisdiction'' determination for purposes of
part 151, the Department is in no way suggesting that these inquiries
are equivalent. Rather, when the evidence gathered as part of the part
83 process includes evidence that the Federal Government had asserted
jurisdiction over a Tribe in or before 1934, such evidence is relevant
and the Secretary may consider it as part of her analysis under Sec.
151.4.
The Department declines to establish a new process for challenges
to an ``under Federal jurisdiction'' analysis, as the process is
internal to the Department and can be challenged through administrative
appeal or Federal litigation after final decisions are issued.
Comment: One Tribe provided suggested edits on how treaty
negotiations should be treated under these regulations and proposed
that Sec. 151.4(a)(2)(i) be moved to Sec. 151.4(a)(1) ``as conclusive
evidence of Federal jurisdiction.'' The Tribe applauded the elevated
treatment of ``[c]ontinuing existence of treaty rights . . .'' from
presumptive evidence to conclusive evidence.
<bullet> Response: The Department declines to accept the
commenter's suggestion to move evidence of treaty negotiations from
presumptive to conclusive evidence. The Department has generally
treated evidence of treaty negotiations in concert with other
supporting evidence to evaluate whether a Tribe was under Federal
jurisdiction in 1934.
Comment: One non-Tribal commenter urged the rule to be limited to
within reservation boundaries and, where outside those boundaries, to
require consistency with enumerated policies. This commenter requested:
examples of evidence in the regulations that would indicate Federal
jurisdiction did not exist in 1934; and the elimination of any
reference to ``climate change'' acquisitions.
<bullet> Response: The Department declines to accept the
commenter's suggestions. Under the IRA, the Secretary's discretionary
authority to acquire land in trust status is not limited to on-
reservation acquisitions. The Department believes that it is
unnecessary to list evidence that may indicate Federal jurisdiction did
not exist and declines to eliminate references to climate change.
Comment: Alaska Tribes suggested specific language exempting them
from the under Federal jurisdiction analysis.
<bullet> Response: This is addressed in the Sol. Op. M-37076 and
the revised FTT Handbook. Because Alaska Tribes are eligible to have
land taken into trust under 25 U.S.C. 5119 and a separate stand-alone
definition of Indian in the IRA, it is not necessary that Alaska Tribes
show they were under Federal jurisdiction and Sec. 151.4 does not
apply.
Comment: One Tribe requested that the Department further clarify
what types of legislation are included in legislation enacted ``after
1934 making the IRA applicable to the Tribe'' within the meaning of
Sec. 151.4(b).
<bullet> Response: There are several statutes under which Congress
expanded the Secretary's authority to take land into trust under the
IRA. Determining whether a statute extended this authority to a
specific Tribe, thereby eliminating the need for an under Federal
jurisdiction analysis, requires a close examination of the statute's
language and purpose. Because each statute varies in the language used,
it is not feasible to identify in the final rule which types of
legislation make the IRA and its fee-to-trust provisions applicable.
One specific example of a subsequent statute extending section 5 of the
IRA, and further underpinning the identification of a section 18
election as conclusive evidence, is the ILCA. In the 1980s, Congress
amended the IRA through ILCA, 25 U.S.C. 2202, to extend section 5 to
all Tribes who voted in section 18 elections, notwithstanding the
outcome of those elections.
Comment: Some Tribes questioned whether the under Federal
jurisdiction analysis provided for in Sec. 151.4 would be applied to a
mandatory acquisition.
<bullet> Response: Per Sec. 151.1, the part 151 regulations do not
apply to the acquisition of land mandated by Federal law. Therefore, no
under Federal jurisdiction determination is required for a mandatory
acquisition.
Sec. 151.5 May the Secretary acquire land in trust status by exchange?
Comment: One Tribe commented that Sec. 151.5 only contemplates a
situation where a fee land-owning party and an individual Indian or
Tribe might exchange lands with each other. However, the Tribe noted
that another important instance involving an exchange of lands occurs
when the small reservations of some Tribes, including the commenting
Tribe, are bounded by and contiguous to other Federal lands, such as
National Forest and Bureau of Land Management lands. For the commenting
Tribe to add lands to their Reservation, they must acquire Federal
lands through a land exchange with a Federal agency. Consequently, the
Tribe requested that the following language be added to proposed Sec.
151.5: ``The Secretary may acquire land in trust status on behalf of an
individual Indian or Tribe by exchange under this part if authorized by
Federal law and within the terms of this part. The secretary may
directly acquire land to be conveyed to an individual Indian or Tribe
pursuant to a Federal land exchange upon the individual Indian or Tribe
authorizing the direct transfer of title from the Federal agency
involved in the land exchange to the United States in trust for the
individual Indian or Tribe. The disposal aspects of an exchange are
governed by part 152 of this title, as applicable.''
<bullet> Response: The purpose of the regulations is to detail the
process the Secretary will use in acquiring lands in trust. It is
beyond the scope of these regulations to grant substantive rights
[[Page 86237]]
without statutory authority and the Department declines to make the
suggested revision.
Sec. 151.6 May the Secretary approve acquisition of a fractional
interest?
Comment: While one Tribe commented that they have no problem with
the proposed changes, another objected to the revisions in proposed
Sec. 151.6. While the objecting Tribe appreciated the Department's
replacement of the term ``buyer'' with ``applicant'' (which they
believe better reflects the nature of such acquisitions), they
expressed concern that the Department has taken no action to expand
opportunities for the acquisition of a fractional interest through the
discretionary process. The Tribe believes that both Federal law and the
general principles of self-determination favor the idea that Tribal
governments should be free to purchase fractional interests in their
members' restricted Indian land over time and have such land taken into
trust. Accordingly, they recommend revising proposed Sec. 151.6 to use
``including, but not limited to'' language prior to the list of
circumstances under which the Secretary may approve a fractional
interest, signaling that the regulatory list is not exhaustive. In the
alternative, they also recommended supplementing this section with
additional categories that may extend opportunities for such
acquisitions to Tribal governments that may be otherwise excluded under
the current scheme.
<bullet> Response: The regulations are intended to guide the
applicant and the agency in determining which fractional interests in
lands are eligible for trust acquisition. The list is not intended to
be exhaustive, and the enumerated categories covers the range of
applicable conditions authorizing such acquisitions. Therefore, the
Department has changed the language prior to the list of circumstances
from ``only if'' to ``including when.''
Sec. 151.7 Is Tribal consent required for nonmember acquisitions?
Comment: Many Tribes requested that the ``consent provision'' be
clarified to state that it does not apply to Tribes with shared
jurisdictions.
<bullet> Response: The Department understands that in certain
instances Congress may have overridden the consent requirement provided
for in the rule; however, the Department views the consent requirement
as consistent with the IRA in that it supports Tribal self-governance.
Sec. 151.8 What documentation is included in a trust acquisition
package?
Comment: Most comments expressed overwhelming support for the new
120-day time frame for decision, although many commenting Tribes also
suggested that the regulations include a provision that an application
will be deemed approved if the Secretary fails to meet this deadline or
allow Tribe's recourse if a decision is not issued within the
prescribed time frame.
<bullet> Response: The 120-day time frame for a decision is not
intended to establish an independent cause of action but instead
ensures the agency issues a decision on a completed application as
efficiently and expeditiously as practicable. Because there are certain
prerequisites that must be completed prior to acquiring land into trust
(e.g., environmental analysis under NEPA) a deemed approved provision
would be inappropriate.
Comment: A few Tribes commented that the changes to proposed Sec.
151.8(a)(5) impose no deadline on the Department to prepare a PTO to
render the application ``complete'', which subsequently they assert
makes the 120-day time frame illusory. To address this, they suggested
that the proposed regulations be changed to permit a Tribe to prepare
the PTO and require the Solicitor's Office to review and approve it
within 30 days of receipt from the Tribe.
<bullet> Response: The FTT Handbook will include a time frame for
completing the PTO but the Department notes it is outside BIA's
authority to impose deadlines on other Departmental bureaus or offices.
Comment: Several Tribes also noted that the proposed changes to
Sec. 151.8(a)(4) impose no deadline on the Department to conduct a
public review process under the National Environmental Policy Act
(NEPA) and issue a final Environmental Assessment (EA) or an
Environmental Impact Statement (EIS) document to render an application
``complete.'' They suggested that where no categorical exclusion is
issued, the proposed regulation should be changed to require the
Department to name the applicant Tribe as a cooperating agency in a
NEPA public review process; begin that process no later than 30 days
after the Department receives a specific request from the Tribe; and
conclude any EA process within six months and any EIS process within 12
months.
<bullet> Response: Because each application contains different
circumstances, the time for completing each NEPA document is different
and cannot be mandated. The Secretary will grant Tribal requests for
cooperating agency status where applicable and appropriate.
Comment: One Tribe suggested that the Department consider adding
additional clarification to the proposed regulations concerning the
applicant's required contribution to the Secretary's environmental
review under proposed Sec. 151.8(a)(4).
<bullet> Response: As written, this section maintains flexibility
regarding the type of information the applicant must submit to comply
with NEPA.
Comment: One Tribe requested that the Department make clear that
``many of the application requirements may be carried out
simultaneously and need not proceed in sequential order as they are
listed in the proposed rule.''
<bullet> Response: The FTT Handbook will specify the process for
consideration of a Tribe's application. The Department notes that the
fee-to-trust process is not always the same for each parcel. As
described in Sec. 151.8(b), the Secretary will issue a decision on an
application ``within 120 calendar days after issuance of the notice of
a complete acquisition package.''
Comment: Several Tribes noted that under proposed Sec.
151.8(a)(3)(i), there is a requirement for a Tribe to ``include a
statement of the estate to be acquired,'' but that this is not also
mentioned for metes and bounds and survey descriptions.
<bullet> Response: The requirement for a Tribe to ``include a
statement of the estate to be acquired'' has been added to the metes
and bounds survey description in the renumbered Sec. 151.8(a)(4)(ii).
Comment: One Tribe noted that requests for additional information
under proposed Sec. 151.8(a)(8) that delay the acceptance of an
application as complete may greatly extend the timeline. The Tribe
suggests that proposed Sec. 151.8(a)(8) should be adjusted to read as
follows: ``Any additional information or action reasonably requested by
the Secretary in writing if warranted by unique and unusual
circumstances in the specific application.''
<bullet> Response: The Department notes the section to which the
Tribe refers now appears at proposed Sec. 151.8(a)(9). The Department
declines to adopt the proposal. This section maintains flexibility to
address the circumstances of each application and the need to ensure
that the Secretary's final decision is legally sufficient.
Comment: The Tribe also suggested that the Department maintain
metrics following the final adoption of the
[[Page 86238]]
proposed rule, showing the entire timeline from original submission to
approval (or denial) and examining whether significant delays occur
before acceptance.
<bullet> Response: The Department maintains the official records of
each application, including evidence of the timeline from original
submission to decision. This information allows examination of delays
prior to acceptance.
Comment: A Tribal consortium requested more flexibility in
environmental issues and suggested that Tribes be given the option to
assume liability for environmental issues that remain on land being
taken into trust.
<bullet> Response: In certain instances, the Department can accept
land into trust with an encumbrance, lien, or infirmity when the Tribe
agrees to enter into an indemnification agreement in favor of the BIA.
While not expressly stated in the regulations, the ability exists with
the Department on a case-by-case basis.
Comment: Some commenting Tribes noted concerns over fee-to-trust
acquisitions for gaming, suggesting that such applications be denied
when gaming on the land in question would be prohibited by IGRA.
<bullet> Response: An application to take land in trust
specifically for gaming purposes cannot proceed for gaming purposes if
the land is determined to be ineligible for gaming pursuant to IGRA.
Sec. 151.9 How will the Secretary evaluate a request involving land
within the boundaries of an Indian reservation?
Comment: Several Tribes suggested that the Department remove ``any
requirement to show the BIA has the capacity to carry out its
responsibilities if the land was placed in trust'' proposed Sec.
151.9(a)(4)).
<bullet> Response: Because trust land acquisitions are
discretionary, the Secretary must demonstrate support for their
decision in the record. To ensure a complete evaluation, the Secretary
will consider whether the BIA is equipped to fulfill its trust
responsibilities for land acquired in trust and to provide the Federal
programs and services that it makes available on trust lands.
Comment: One Tribe commented that the Department should clarify
what is meant by ``great weight'' under Sec. 151.9(b).
<bullet> Response: Section 151.9(b) acknowledges that certain
purposes for land acquisition are particularly salient in light of the
purposes of the IRA and the Secretary's land acquisition policy as
articulated in Sec. 151.3. The Secretary will apply great weight to
applications pursing these listed purposes by recognizing, and
appropriately considering, the particular importance of acquiring land
for these purposes. The Secretary would thus need to take the
importance of the proposed acquisition into consideration in reviewing
a request and would need to address this in any disapproval decision.
Comment: One Tribe commented that while it welcomes a presumption
in favor of approval for requests for acquisition of land within and
contiguous to reservation boundaries, the proposed presumption should
be clarified.
<bullet> Response: The Department has revised Sec. 151.9(c) to
clarify that the Secretary presumes that an acquisition within the
boundaries of a reservation will: (1) further at least one of the
Tribal interests described in Sec. 151.9(b); (2) that adverse impacts
to local governments' regulatory jurisdiction, real property taxes, and
special assessments will be minimal; and (3) that the application
should therefore be approved. The revised language clarifies which
factors the presumption applies to and when the Secretary presumes an
acquisition will be approved.
Comment: One Tribe commented that if the effects on a State or
local government's regulatory jurisdiction, real property taxes, and
special assessments will be minimal, then the burden shifts to those
opposing the acquisition to either prove that the acquisition does not
meet one of the criteria listed at Sec. 151.9(b) or that the
acquisition would adversely impact State or local governments.
<bullet> Response: The Department has revised Sec. 151.9(d) to
include a comment period for State and local governments to submit
written comments to rebut the presumption that the acquisition will
have minimal adverse impacts to regulatory jurisdiction, real property
taxes and special assessments.
Comment: One Tribe believes the policies afforded great weight
under proposed Sec. 151.9(b) may unduly limit the needs and uses for
which Tribes may acquire land under the IRA. The Tribe suggests adding
the following to the IRA's purpose: ``for the purpose of providing land
for the Indians,'' along with the prior listing of ``housing'' and
``economic development'' needs. The Tribe also suggests a rewording of
the ``no change in use'' category.
<bullet> Response: The regulation does not limit the needs or uses
for which a Tribe may acquire land within the boundaries of its
reservation. The Department intended that Sec. 151.9(b) be broad by
including the broad purpose of ``facilitating self-determination.''
Section 151.9(b) states that the Secretary will give great weight to
acquisitions that ``will further Tribal interests by establishing a
Tribal land base or protecting Tribal homelands.'' Establishing a
Tribal land base or protecting Tribal homelands is equivalent to the
IRA's purpose of ``providing land for Indians.'' Section 151.9(b) also
includes housing and economic development as a purpose.
Comment: One Tribe strongly suggested that proposed Sec.
151.9(a)(3) be removed entirely, asserting that it second-guesses the
Tribal applicant's self-governance decisions and is not necessary under
NEPA. Another Tribe suggested that it is unclear what must be submitted
to comply with proposed Sec. 151.9(a)(3), specifically concerning NEPA
compliance implications referenced in the ``Summary of Changes'' in the
Federal Register. Several Tribes also suggested edits to proposed Sec.
151.9(b) that account for Tribes with rights tied to executive orders
or other Federal laws.
<bullet> Response: It is important for the Secretary to understand
the current proposed use of the land to be acquired. The use of the
land will dictate the level of environmental review that is appropriate
to comply with the Department's obligations under NEPA. NEPA requires
Federal agencies to examine the environmental effects of proposed
actions before making a decision. The Department's NEPA process
requires the BIA to examine environmental and related social and
economic effects. In some instances, they also require the Department
to seek public comment. We do not agree that this undermines Tribal
self-governance. In conducting an analysis under NEPA, the Department
is not rejecting a Tribes reason for wanting the Department to accept
the land in trust. But rather, it is reviewing the impacts of such an
acquisition.
Comment: Several counties, towns, and States expressed opposition
to proposed Sec. 151.9, specifically expressing concern over how
notice is afforded to States and local governments. Collectively, they
asserted that: (1) it is not clear what will be included in the notice,
(2) whether the notice is merely a courtesy, given the presumption to
acquire on-reservation lands, or whether they will be given an
opportunity to comment; and (3) whether the new presumptions for
acquiring land, when coupled with the removal of the consideration of
jurisdictional problems, potential conflicts of land use, the removal
of considering the effects on a State and
[[Page 86239]]
local government's regulatory jurisdiction, real property taxes, and
special assessments, and the expressed needs of Tribal applicants for
additional land, are lawful. One commenter also suggested that the term
``State and local governments with regulatory jurisdiction over the
land to be acquired'' could result in a lack of any notice where
jurisdiction is complicated or debatable, because the Department makes
its own interpretation on that question.
<bullet> Response: Section 151.9(d) has been revised to solicit
comments from State and local governments to rebut the presumption that
an acquisition within the reservation boundary will have minimal
adverse impacts to regulatory jurisdiction, real property taxes, and
special assessments. The Department also notes and confirms that any
comments received on an application, even if not requested, will be
considered as part of the overall decision-making process. While not
included in the regulation, the BIA will publish guidance in the FTT
Handbook outlining how notice will be provided.
Comment: Several Tribes commented that the Department should
clarify in the preamble or the final rule that ``State and local
governments only have regulatory jurisdiction over on-reservation fee
land owned by non-Indians.'' One Tribe also urged the Department to not
allow State and local comments on their own to overcome ``a decision to
approve a trust acquisition.''
<bullet> Response: The scope of State and local jurisdiction over
fee lands within the boundaries of Indian reservations is outside the
scope of these regulations and, for that reason, the Department
declines to adopt the recommendation. With respect to the role of State
and local comments, the decision to approve or disapprove an
application will be based on whether the application complies with the
regulatory criteria and other applicable statutory or regulatory
requirements. The Department will consider comments submitted on
pending applications.
Sec. 151.10 How will the Secretary evaluate a request involving land
contiguous to the boundaries of an Indian reservation?
Comment: One Tribe suggested that ``great weight'' should be
afforded contiguous acquisitions ``within the original boundary of the
Tribal applicant's reservation.''
<bullet> Response: The Department understands the policy reasons
for the requested change. However, the process for determining the
``original boundary'' could add significant complexity and time to the
acquisition process. Because the intent behind this rulemaking is to
provide a more efficient process, the Department declines to make this
change.
Comment: Another Tribe suggested the Department should give greater
weight to the presumptions in proposed Sec. 151.10(c) and (d) when
evaluating State and local comments for impacts to their regulatory
jurisdiction, real property taxes, and special assessments.
<bullet> Response: The final rule already provides for a
presumption in favor of approval in Sec. 151.10(c) and a presumption
that the Tribe will benefit from the acquisition in Sec. 151.10(d). No
additional weight is necessary to facilitate the intent of the
rulemaking.
Comment: A Tribe also suggested that the Department should clarify
that State and local comments alone are insufficient to ``overcome a
decision to approve a trust acquisition''.
<bullet> Response: The Department agrees that State and local
governments do not have veto authority over the decisions to acquire
land in trust contemplated by this part. The Secretary will consider
comments received on pending applications consistent with this part.
Comment: This same Tribe also suggested technical edits to
harmonize proposed Section 151.10(b) with the proposed changes to Sec.
151.3(b)(3).
<bullet> Response: The final rule was revised to harmonize the
purposes for acquiring land into trust listed in Sec. Sec. 151.10(b)
and 151.3(b)(3).
Comment: Another Tribe stated that the Department should not even
solicit State and local government comments, which they assert is
consistent with the process described for on-reservation acquisitions.
<bullet> Response: It is appropriate for the Secretary to consider
comments received from State and local governments for acquisitions
evaluated under this part. The Department also notes that the final
rule has been revised to provide an opportunity for State and local
governments to provide comments for acquisition within reservation
boundaries. The Secretary's consideration of comments received on
pending applications ensures they have a complete view of the
complexities surrounding an acquisition. It also provides an
opportunity for the applicant to address concerns raised as part of the
process, thereby reducing the likelihood of legal challenges when those
concerns are considered prior to the acquisition.
Comment: One Tribe suggested that when the Department receives and
reviews State and local government comments, it should be both mindful
and give great weight to the fact that the local Tribe and the
Department ``are already providing services to the contiguous parcel.''
<bullet> Response: As with the existing regulation, the Secretary
will consider all factors relevant to understanding the potential
impact on regulatory jurisdiction, real property taxes, special
assessment and services to a particular parcel as identified by the
commenting State or local government. While the final rule does not
give a specific weight to comments and concerns raised by local
governments or States, it is not true that it gives them no weight. The
Secretary will consider any and all comments and concerns raised by
local communities or States in making a decision to acquire land in
trust for a Tribe.
Comment: One Tribe opposed the proposed changes to Sec.
151.10(a)(3), stating that allowing the Secretary to evaluate the
purposes for which a Tribe will use its own land within its own
reservation is inconsistent with self-determination policy.
<bullet> Response: The Secretary needs to know the purpose for
which the land is to be used to determine the appropriate level of
environmental review to comply with NEPA. NEPA requires Federal
agencies to examine the environmental effects of proposed actions
before making a decision. The Department's NEPA process requires the
BIA to examine environmental and related social and economic effects.
In some instances, they also require the Department to seek public
comment. We do not agree that this undermines Tribal self-governance.
In conducting an analysis under NEPA, the Department is not rejecting a
Tribes reason for wanting the Department to accept the land in trust.
But rather, it is reviewing the impacts of such an acquisition.
Comment: Additionally, the same Tribe opposed proposed Sec.
151.10(a)(4), stating that it is ``outdated and perpetuates a callous
and abusive Federal policy discarded decades ago because of its moral
bankruptcy.''
<bullet> Response: Acquisitions under section 5 of the IRA are
discretionary and have been subject to Federal resource considerations
since the IRA was first enacted. When the United States takes land into
trust, it exercises trust responsibilities as to those lands and
extends Federal programs and services to those lands. Therefore, in
exercising her discretion, the Secretary must decide whether BIA is
equipped to assume these fiduciary obligations and discharge the
additional responsibilities associated with the acquisition. Section
151.10(a)(4) is a legitimate consideration
[[Page 86240]]
as part of the acquisition process Department declines to make the
suggested revision.
Comment: Another Tribe submitted comments seeking a specific tax
exemption under the regulations to address a longstanding fee-to-trust
issue they have been dealing with.
<bullet> Response: The purpose of the regulations is to detail the
process the Secretary will use in acquiring lands in trust. It is
beyond the scope of these regulations to grant substantive rights
without statutory authority.
Comment: Another Tribe requested a time frame for when BIA must
provide the Tribal applicant a copy of any comments received from State
or local governments (suggesting a 10-day window to provide such copies
to the Tribal applicant). Another Tribe requested that other affected
Tribes be included in the notice for comment sent to State and local
governments.
<bullet> Response: The BIA is in the process of updating the FTT
Handbook to reflect the changes made by this final rule. The FTT
Handbook is a more appropriate location to include any intermediate
time frames designed to ensure compliance with the broader 120-day time
frame to issue a decision on a complete acquisition package.
Comment: One Tribe suggested a new category of ``adjacent'' lands
be added to the ``contiguous'' acquisition analysis to account for that
category of lands that are currently ``off-reservation'' lands, but
that should be afforded greater weight as lands that are ``closely
connected or intrinsically linked to lands held in trust'' for the
applicant Tribe.
<bullet> Response: The Department acknowledges that lands adjacent
to a reservation may be closely connected to or linked to lands held in
trust; however, the definition of contiguous provides sufficient
clarity to determine the appropriate criteria to use to evaluate the
application. The Department also notes that establishing a standard for
what constitutes ``adjacent'' would be difficult considering the
differences in geography between Tribal land holdings. Applying such a
standard would also add a layer of complexity and time to the fee-to-
trust process, which would undercut the purpose of this rulemaking to
make the process more efficient.
Comment: Another Tribe suggested that the Department clarify that
``contiguous'' acquisitions are also ``contiguous'' for gaming purposes
under 25 CFR 292.2 (the Tribe offered draft edits for consideration).
<bullet> Response: The definition of contiguous is consistent with
the part 292 definition, and in general should result in a similar
analysis; however, part 151 and part 292 determinations are separate
and rely on different statutory authority.
Comment: Several Tribes also suggested edits to proposed Sec.
151.10(b) that account for Tribes with rights tied to executive orders
or other Federal laws.
<bullet> Response: The final rule does not relieve the Department
of its obligations to adhere to any relevant executive order or any
other Federal laws. The final rule provides sufficient clarity, and
thus no additional language is necessary.
Comment: One Tribe commented that while it welcomed a presumption
in favor of approval for requests for acquisition of land within and
contiguous to reservation boundaries, the proposed presumption in
Sec. Sec. 151.9 and 151.10 should be further clarified as they believe
it is not clear which of the criteria in these sections an applicant
Tribe would no longer need to affirmatively prove, and what an opposing
party would need to produce or persuade to overcome the presumption.
The Tribe consequently proposed the following change to proposed Sec.
151.10: ``When reviewing a Tribe's request for land within the
boundaries of an Indian reservation, the Secretary presumes that the
acquisition will further the Tribal interests described above in
subsection (b), and adverse impacts to local governments' regulatory
jurisdiction, real property taxes, and special assessments will be
minimal, therefore the application should be approved.''
<bullet> Response: This language has been incorporated into
Sec. Sec. 151.9(c), 151.10(c), and 151.12(c).
Comment: Several State and local governments opposed the proposed
changes in Sec. 151.10 and expressed concern about whether the new
presumptions for acquiring land, when coupled with the removal of the
consideration of jurisdictional problems, potential conflicts of land
use, and the expressed needs of Tribal applicants for additional land,
are lawful. Commenters' specific legal concerns include that ``BIA will
also not consider as a factor possible jurisdictional and land use
conflicts that may arise between local governments and the Tribes''
which may ``lead to costly and time-consuming litigation for both
Tribes and local governments on jurisdictional and land use issues'';
that the removal of the consideration of jurisdictional problems
``would have the effect of obfuscating the legitimate function and role
of county governments, which are responsible for land use planning and
the provision of important local services''; and would generate
``conflicts that go straight to the heart of the considerations
Congress intended the Department to weight in exercising its judgment
under the Indian Reorganization Act of 1934 (IRA) to approve or deny a
request to take land into trust.''
<bullet> Response: We disagree with the premise that including
presumptions would make the acquisitions unlawful. Congress has
provided the Secretary with the authority to acquire land into trust
for Tribes. See Act of June 18, 1934, Public Law 73-383, 48 Stat. 984
(codified as amended at 25 U.S.C. 5101 through 5129). Congress enacted
the IRA to ``establish machinery whereby Indian Tribes would be able to
assume a greater degree of self-government, both politically and
economically.'' Morton v. Mancari, 417 U.S. 535, 542 (1972).
Restoration of Tribal homelands through trust acquisition is pivotal to
achieving the Tribal self-government, self-determination, and economic
goals of the statute. See, e.g., Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 226 (2012) (describing
section 5 as the ``capstone'' of the Indian Reorganization Act's land
provisions). The addition of a presumption in favor of acquisitions
within reservation boundaries is thus consistent with the goals of the
IRA of Tribal land restoration and consolidation. The statute does not
include any presumption; however, it is within the Secretary's
discretion to include one that supports the overall goals of the
statute. Commentors, including State and local governments, may submit
comments and evidence for the Secretary's consideration seeking to
rebut the presumption. Upon receipt of a comment from any interested
party, including a State or local government, the Department would then
be positioned to consider any jurisdictional and land use conflicts
that may arise, to consider function and role of county governments as
they relate to a putative acquisition, and to consider all viewpoints
in exercising its delegated authority under the Indian Reorganization
Act.
Comment: They also expressed concerns about the 30-day comment
period being too short to meaningfully comment on acquisitions, as well
as the need for criteria defining how notice will be provided to State
and local governments.
<bullet> Response: We disagree. In the Department's experience, 30
days is sufficient time to provide comments on pending applications.
The 30-day
[[Page 86241]]
comment period was codified in the 1995 part 151 regulations. The
preamble to that regulation noted that the timeframe was based on BIA's
past experience with informal consultation. See 60 FR 32874, 32877
(June 23, 1995). The Department continues to believe, based on its
experience, that 30 days is sufficient. Indeed, the information
requested by the Secretary is more likely retrievable within 30 days
using current information technology and electronic means.
Comment: Separately, several of these commenters noted that State
and local comments are not afforded ``great weight'' and assert that
they should be.
<bullet> Response: The Department considers all comments but
declines to accept the proposal which would specify the weight that
must be given to these comments. Through the IRA and other Federal
statutes authorizing trust acquisitions, Congress has authorized the
Secretary to acquire land in trust for Indian Tribes and individual
Indians, subject to the requirements set forth in the statutes. The
regulations contemplate that the Secretary will consider comments
submitted by State and local governments on pending applications as
part of the decision-making process. The Department declines to expand
or elevate the role of State or local governments in this process.
Comment: Additionally, a State Attorney General proposed language
for Sec. 151.10(d) that prescribes a process for providing notice to
State and local governments and what that notice should include.
<bullet> Response: The specific manner for providing notice and
seeking comment from third parties is better suited to internal
guidance documents such as the BIA's Fee-To-Trust Handbook. The process
proposed by the commenter would have the effect of slowing down the
processing of applications and greatly expand the role of States and
municipalities far beyond what is in the current regulations. The
Department therefore declines to make the suggested revision in the
proposed regulation. The Department will consider this proposed
language as internal guidance documents are revised, including the Fee-
To-Trust Handbook.
Comment: One State commented that they believed the ``presumption
that contiguous lands be approved'' is unclear, i.e., there is ``no
description of the weight of the presumption.'' The State also noted
that it is unclear whether the presumption is rebuttable and--if so--
how is it rebutted?
<bullet> Response: Section 151.10(c) clarifies that the Secretary
will presume that the acquisition ``will further the Tribal interests
described in paragraph (b) of this section, and adverse impacts to
local governments' regulatory jurisdiction, real property taxes, and
special assessments will be minimal, therefore the application should
be approved.'' The revised language clarifies which factors the
presumption applies to and when the Secretary presumes an acquisition
will be approved. Presumptions are rebuttable by providing evidence
that does more than simply support an alternative conclusion.
Commentors, including State and local governments, may submit comments
and evidence for the Secretary's consideration seeking to rebut the
presumption. The Secretary will consider such evidence in making a
decision on the Tribe's application.
Sec. 151.11 How will the Secretary evaluate a request involving land
outside of and noncontiguous to the boundaries of an Indian
reservation?
Comment: One Tribe suggested that the Department give ``great
weight'' to off-reservation acquisitions ``within the aboriginal or
`ceded' lands of the Tribal applicant.'' One Tribe proposed that the
Secretary consider the community benefits and give the greatest weight
to the interests and concerns of Tribes with aboriginal ties to the
proposed location.''
<bullet> Response: Determining the location and extent of a Tribe's
aboriginal lands often requires a lengthy review of applicable law and
fact. Such a change is inconsistent with the intent to streamline the
fee-to-trust process.
Comment: Several Tribes suggested that local Tribal governments
receive notice of a Tribe's application and be given an opportunity to
provide comments.
<bullet> Response: Given the differences in geography between all
Tribal land holdings, it would be difficult to establish a national
regulatory standard that defines ``local Tribal governments'' in a
consistent and equitable manner, therefore the Department declines to
define ``local Tribal governments'' for the purpose of notice and
comment. Tribes may, however, submit comments to the Department on an
application that will be considered by the Department as part of the
application review process.
Comment: A Tribal consortium suggested that ``given Alaska's unique
history, land acquisitions within Alaska Native Village Statistical
Areas should be treated as `on-reservation acquisitions' and not off-
reservation acquisitions.''
<bullet> Response: Initial trust acquisitions in Alaska will be
analyzed under Sec. 151.12 if they are the first trust acquisition for
an Alaska Tribe. Because very little land is held in trust for Alaska
Tribes, this likely will be the standard for almost all initial
acquisitions for Alaska Tribes. After the initial acquisition, however,
Alaska acquisitions will be evaluated using the criteria articulated in
this final rule. This supports a uniform application of the land
acquisition process in Alaska and the lower 48 States.
Comment: One Tribe suggested that the Department clarify that State
and local government comments alone are insufficient to overcome a
decision to approve a trust acquisition.
<bullet> Response: State and local comments opposing an off-
reservation acquisition do not serve as a veto.
Comment: Several Tribes expressed support for retaining the 30-day
comment period, requiring that those comments be provided to Tribal
governments for rebuttal, and that States and local governments be
limited to commenting only on impacts to their regulatory jurisdiction,
real property taxes, and special assessments. One Tribe requested that
a timeframe be included for when BIA must provide a Tribal applicant
with a copy of any comments received from State or local governments
(suggesting a 10-day window).
<bullet> Response: We decline to limit the subject areas any party
may comment on regarding a specific application. We also believe that
timelines for providing a Tribal applicant a copy of any comments
received are better addressed in the BIA Fee-To-Trust Handbook.
Comment: Several Tribes suggested edits to proposed Sec. 151.11(b)
that account for Tribes with rights tied to Executive orders or other
Federal laws.
<bullet> Response: The final rule does not relieve the Department
of its obligations to adhere to any relevant Executive order or any
other Federal laws.
Comment: Several State, local and Tribal governments opposed the
removal of the current Sec. 151.11(b), which they assert increases
scrutiny the further from a reservation the land is while giving
greater weight to State and local government concerns. In a related
comment, one Tribe suggested adding a presumption of approval for land
located outside of and noncontiguous to an Indian reservation.
<bullet> Response: In enacting the IRA, Congress did not limit
trust acquisitions to within a certain distance from a Tribe's
reservation. The Department recognizes, however, that off-reservation
acquisitions may present different issues than on-reservation or
contiguous acquisitions. The existing Sec. 151.11(b)
[[Page 86242]]
unnecessarily applies heightened scrutiny to off-reservation
acquisitions based on distance alone. There are numerous factors other
than distance from a Tribe's existing reservation that should be
considered as part of an off-reservation acquisition. Therefore, the
Secretary will not presume that an off-reservation application will be
approved but will consider the location of the land along with the
other criteria in Sec. 151.11 before issuing a decision. In addition,
this sentence was edited for clarity and succinctness: ``[t]he
Secretary presumes that the Tribal community will benefit from the
acquisition without regard to distance of the land from a Tribe's
reservation boundaries or trust lands,'' to ``[t]he Secretary presumes
that the Tribe will benefit from the acquisition.''
Comment: Several commenters found the proposed language ``in
reviewing such comments, the Secretary will consider the location of
the land'' in Sec. 151.11(c) vague. A local county stated that ``that
there are far greater considerations than location to consider, such as
the financial impact on local governments, local taxing authorities and
local taxpayers as lands are proposed for acquisition as trust lands.''
A county opposed the purported removal of consideration of
``jurisdiction problems and potential conflicts of land use'' from
consideration.
<bullet> Response: The sentence was edited for clarity to: ``[i]n
reviewing such comments, the Secretary will consider the location of
the land and potential conflicts of land use.'' The Secretary will
consider potential conflicts of land use for proposed trust acquisition
located outside of and non-contiguous to a Tribe's reservation or trust
land. Consideration of an acquisition's potential impact on regulatory
jurisdiction, real property taxes, and special assessments is already
included in this section. Consideration of ``jurisdiction problems and
potential conflicts of land use'' is retained for Sec. Sec. 151.11(c)
and 151.12(c).
Comment: One non-Tribal commenter suggested a gaming carve-out,
which would apply the current Sec. 151.11(b) equivalent to
acquisitions where gaming will be conducted. There are concerns from
non-Tribal entities that Tribes can conceivably acquire land across the
United States, and these concerns are also expressed as gaming concerns
in certain comments.
<bullet> Response: This final rule applies to all fee-to-trust
acquisitions. Where a fee-to-trust application is for the purpose of
conducting Indian gaming, a determination whether the land is eligible
for gaming is required by the IGRA and its implementing regulations at
25 CFR part 292. Thus, there is no need for this rule to address gaming
matters.
Comment: Several commenting State and local governments oppose the
removal of the requirement that Tribal applicants submit business plans
for review, suggesting it would eliminate a source of information used
to evaluate local impacts of the putative acquisition.
<bullet> Response: Requiring a Tribal applicant to disclose its
business plan is inconsistent with Tribal self-determination. Tribes
and State and local governments may share information to evaluate local
impacts even without a requirement and Tribal applicants and State and
local governments are encouraged to discuss issues of common concern.
Comment: They also expressed concerns that the 30-day comment
period was too short to provide meaningful comments, as well as the
need for criteria defining how notice will be provided to State and
local governments.
<bullet> Response: In the Department's experience 30 days is
sufficient time to provide the type of comments that will inform the
Secretary's decision. The 30-day comment period was codified in the
1995 part 151 regulations. The preamble to that regulation noted that
the timeframe was based on BIA's past experience with informal
consultation. See 60 FR 32874, 32877 (June 23, 1995). The Department
continues to believe, based on its experience, that 30 days is
sufficient. Indeed, the information requested by the Secretary is more
likely retrievable within 30 days using current electronic means.
Comment: A State Attorney General suggested revisions for proposed
Sec. 151.11(d) that would prescribe a process for providing notice to
State and local governments and what that notice would include.
<bullet> Response: The specific manner for providing notice and
seeking comment from third parties is better suited to internal
guidance documents such as the Fee-To-Trust Handbook. The regulations
provide a timeframe in which States and local governments can submit
comments on an application. Therefore, we do not see why it would be
necessary to put a deadline on when the BIA sends notification of an
application to States or local governments. The Department therefore
declines to make the suggested revision.
Comment: A town expressed skepticism regarding the blanket
presumption of community benefits for off-reservation acquisitions and
noted that it is unclear how this presumption can be rebutted.
<bullet> Response: Where a Tribe takes land into trust off-
reservation, that land nearly always serves an important economic,
cultural, self-determination, or sovereignty purpose that supports
Tribal welfare. Tribal governments are rational actors that make
acquisition decisions carefully based on available resources, planning,
and purposes valued by the Tribe.
Comment: A local jurisdiction commented that while the proposed
rule would give ``great weight'' to Tribal concerns, it would give no
weight to the comments or concerns of the local community or to the
State in the decision-making process. Several commenters noted that
State and local comments are not afforded ``great weight'' and asserted
that they should be.
<bullet> Response: Through the IRA, Congress has authorized the
Secretary to acquire land in trust for Tribes and individual Indians,
subject to the requirements set forth in the statute. The regulations
contemplate that the Secretary will consider comments submitted by
State and local governments on pending applications as part of the
decision-making process. The Department declines to expand or elevate
the role of State or local governments in this process coequal to
Tribal concerns because the IRA sets forth an explicit ``purpose of
providing land for Indians'' and includes no such purpose for State or
local governments.
Comment: One Tribe recommend that Tribes with dispersed trust lands
be accommodated by adding a provision that if the proposed acquisition
is within five miles of a Tribe's existing trust land, that the
application will be considered a contiguous application.
<bullet> Response: It would be difficult to establish a national
regulatory standard to accommodate all Tribes with dispersed lands
considering the differences in geography between all Tribal land
holdings.
Sec. 151.12 How will the Secretary evaluate a request involving land
for an initial Indian acquisition?
Comment: Most commenting Tribes expressed general support for the
proposed changes to Sec. 151.12. One Tribe appreciated the addition of
``economic development and Indian housing'' and ``self-determination,''
as reflected in the proposed changes to Sec. 151.12(b). They also
supported the ``presumption of community benefits in Sec. 151.12.''
However, some Tribes suggested that the Department's presumption of
[[Page 86243]]
community benefits should only apply where the initial acquisition is
within the Tribal applicant's ``aboriginal territory.'' Another Tribe
would like this section expanded beyond an ``initial Indian
acquisition'' to include acquisitions for ``a modest or minimal
homeland.''
<bullet> Response: Determining the location and extent of a Tribe's
aboriginal lands often requires a lengthy review of applicable law and
fact. Such a change is inconsistent with the intent to streamline the
fee-to-trust process.
Comment: One Tribe suggested that the Department clarify that the
receipt of State and local comments alone is insufficient to ``overcome
a decision to approve a trust acquisition.'' Tribes also expressed
support for retaining the 30-day comment period, requiring that those
comments be provided to Tribes for rebuttal, and that States and local
governments be limited to commenting only on impacts to their
regulatory jurisdiction, real property taxes, and special assessments.
<bullet> Response: In the Department's experience, 30 days is
adequate for the purposes of implementing the IRA. The solicitation of
comments from State and local governments is to assist the Secretary in
assessing the regulatory criteria. The Department agrees that State and
local governments do not have veto authority over the decisions to
acquire land in trust contemplated by this part. The Secretary will
consider comments received on pending applications consistent with this
part.
Comment: Several Tribes suggested edits to proposed Sec. 151.12(b)
that account for Tribes with rights tied to executive orders or other
Federal laws.
<bullet> Response: The final rule does not relieve the Department
of its obligations to adhere to any relevant executive order or any
other Federal laws.
Comment: One Tribe provided edits it believed would better
harmonize proposed Sec. 151.12(b) with proposed Sec. 151.3(b)(3).
<bullet> Response: Edits have been incorporated to harmonize the
purposes for accepting land into trust listed in Sec. Sec. 151.12(b)
and 151.3(b)(3).
Comment: Several State and local governments expressed concerns
about the 30-day comment period being too short to allow them to
provide meaningful comments, as well as the need for criteria defining
how notice will be provided to State and local governments. Separately,
several commenters noted that State and local comments are not afforded
``great weight'' and asserted that they should be.
<bullet> Response: In the Department's experience, 30 days is
sufficient time to provide the type of comments that will inform the
Secretary's decision. The 30-day comment period was codified in the
1995 part 151 regulations. The preamble to that regulation noted that
the timeframe was based on BIA's past experience. See 60 FR 32874,
32877 (June 23, 1995). The Department continues to believe, based on
its experience, that 30 days is sufficient. Indeed, the information
requested by the Secretary is more likely retrievable within 30 days
using current electronic means.
Through the IRA and other Federal statutes authorizing trust
acquisitions, Congress has authorized the Secretary to acquire land in
trust for Tribes and individual Indians, subject to the requirements
set forth in the statutes. The regulations contemplate that the
Secretary will consider comments submitted by State and local
governments on pending applications as part of the decision-making
process. The Department declines to expand or elevate the role of State
or local governments in this process.
Sec. 151.13 How will the Secretary act on requests?
Comment: One Tribe requested that the definition of interested
party also match the definition of interested party in the part 2
regulations. They also requested that interested parties be required to
obtain a bond.
<bullet> Response: The Department declines the proposed additions.
The part 151 interested party definition closely resembles proposed 25
CFR part 2 regulation, wherein interested party is defined as ``a
person or entity whose legally protected interests are adversely
affected by the decision on appeal or may be adversely affected by the
decision of the reviewing official.'' See Proposed Rule, Appeals from
Administrative Actions, 87 FR 73688 (Dec. 1, 2022). The part 2
regulation further defines those entities adversely affected by a
decision. As set forth above, for purposes of part 151, it is not
necessary for an interested party to be adversely affected but instead
that they have a legally protected interest affected by a decision. We
note that it is possible for a party to satisfy the definition of
Interested party yet have no right to appeal a decision i.e., have no
standing to do so. The Department also notes that providing notice to a
party does not confer legal standing to bring a challenge. Bonding
requirements related to administrative appeals under part 2 is outside
the scope of these regulations.
Comment: Several Tribes expressed concern about the definition of
interested party and one expressed concern about the standing
requirements for interested parties, suggesting that purely economic
interests should not be sufficient.
<bullet> Response: As explained herein, the definition of
interested party tracks the definition of ``interested party'' in part
2--the regulations which govern the appeals process, except that for
part 151 purposes, a person or entity may be an interested party and
thus entitled to notice of the decision if they make themselves known
in writing to the BIA in advance of the decision, even if they are not
``adversely affected'' by a potential decision. We note that it is
possible for a party to satisfy the definition of interested party in
part 151 yet have no right to appeal a decision i.e., have no standing
to do so. The Department also notes that providing notice to a party
does not confer legal standing to bring a challenge. The standing
requirements to pursue an administrative appeal are outside the scope
of these regulations.
Comment: One Tribe and an individual commenter both requested that
paragraph (d) be removed.
Response: The Department declines to remove Sec. 151.13(d). A
decision made by a BIA Regional Director or other BIA official does not
represent the consummation of the agency's decision-making process
until either administrative remedies have been exhausted or the appeal
period has expired. Furthermore, eliminating Sec. 151.13(d) would
require the Assistant Secretary--Indian Affairs to sign each fee-to-
trust decision, a responsibility that has been delegated to BIA
regional directors to increase efficiency in the process. The majority
of fee-to-trust decisions are not challenged, and if the responsibility
to decide every application rested on Assistant Secretary--Indian
Affairs, it would put a burden on the process and create further
backlog of applications.
Comment: One Tribe requested that digital publication be accepted
for notification along with written publication in Sec.
151.13(d)(2)(iii).
<bullet> Response: The final rule includes the requirement that
written notice be sent to ensure receipt. The final rule does not
foreclose using email as an additional form of notification. The Fee-
to-Trust Handbook will include discussion of instances when email
notice can be provided as a courtesy. The Department declines to
digitally publish notice of a decision and the right of interested
parties to file an appeal in addition to written
[[Page 86244]]
notification in the local newspaper. The Department believes that
digital publication on the BIA website is unnecessary given that
written notice will be provided. Under Sec. 151.13(d)(2)(ii), the
Department provides direct written notice of the decision and the
opportunity to appeal to interested parties who have made themselves
known in writing to the BIA in advance of the decision and State and
local governments with regulatory jurisdiction over the land. The
Department believes that these direct notices in addition to
publication in the local newspaper to notify other potentially
interested parties is sufficient notice.
Comment: One Tribal commenter expressed strong support for the
provision in Sec. 151.13(c)(iii) to immediately acquire land into
trust status.
<bullet> Response: Per these regulations, land will be immediately
acquired into trust when the requirements of part 151 have been met. If
the decision to take land into trust is made by a BIA official, then
the appeal period must expire, or administrative remedies must be
exhausted before the land is accepted into trust.
Comment: An association of counties expressed concern that the
proposed changes to Sec. 151.13 would limit their ability to fully
participate in the comment process.
<bullet> Response: Under the final rule counties can participate in
the process through submission of comments.
Sec. 151.14 How will the Secretary review title?
Comment: One Tribe commented that proposed Sec. 151.14, as
written, seems to require applicants to submit title evidence only
after ``the Secretary approves a request for the acquisition of land''
and requested further clarification.
<bullet> Response: Pursuant to Sec. 151.8(a)(6), title evidence as
described under Sec. 151.14 must be submitted as part of an
acquisition package in order for the Department to consider the
acquisition package complete and ready for review. Additionally,
pursuant to Sec. 151.8(a)(6)(i), an acquisition package is not
complete until the Secretary completes a PTO based on the title
evidence submitted. The Department amended Sec. 151.14 to reflect that
title evidence must be submitted as part of the complete acquisition
package described in Sec. 151.8.
Comment: Two Tribes requested that DOI clarify the standards for
title evidence. One Tribe specifical asked that DOI include reference
to Department of Justice (DOJ) title standards.
<bullet> Response: The Department understands these requests to be
seeking confirmation that the DOJ title standards will be included in
Sec. 151.14. Section 151.14(a)(3) aligns with these requests because
Sec. 151.14(a)(3) includes reference to DOJ's title standards.
Comment: One Tribe requested that PTOs be shared directly with the
applicant Tribe. Additionally, the Tribe requested an additional change
to proposed Sec. 151.14 to prevent continued practices that do not
align with accepted real estate best practices. Finally, the Tribe
requested that qualified Tribal officials be permitted to complete the
Certifications of Inspection.
Response: The PTO is a lawyer client privileged document. To the
extent any issues are identified in the PTO those issues are shared
with the applicant so that they can be addressed. It is the policy of
the BIA to ensure compliance with all applicable real estate service
regulation, requirements, and standards, and to promote sustainable
practices. See 52 IAM 1.3. Additionally, based on years of experience
in trust transactions, the procedures found in Sec. 151.14 are
consistent with accepted real estate best practices. To ensure full
compliance with this regulation, BIA will retain responsibilities to
complete Certificates of Inspection.
Comment: One Tribe suggested a new section regarding
indemnification agreements: If a Tribe is willing to accept an
encumbrance, liens, or infirmity, the Department will accept the
Tribe's judgment and allow the application to proceed, provided (a) the
Tribe enters an indemnification agreement in favor of the BIA with
respect to the issue, (b) the risk of liability is low or the magnitude
of the liability is low, and (c) the Tribe agrees it can use the
property for its intended purpose while the encumbrance remains.
<bullet> Response: In certain instances, the Department can accept
into trust land with an encumbrance, lien or infirmity when the Tribe
agrees to enter into an indemnification agreement in favor of the BIA.
While not expressly written into the regulations, the ability exists
with the Department on a case-by-case basis.
Comment: One Tribe suggested that clarification is still needed on
what documents of title evidence are sufficient for the acquisition
package and whether they are the same as those required if the request
for acquisition is approved.
<bullet> Response: Sufficient documents of title evidence are
listed in Sec. 151.14. Section 151.8(a)(6) now explicitly refers to
including title evidence listed in Sec. 151.14. The Department
understands that the documentation available to satisfy the criteria
under Sec. 151.14(a)(2)(ii) can vary by title company and what type of
title document it is willing to issue. For that reason, we have
included the term ``or equivalent'' to provide discretion in
determining whether the documentation provided is sufficient to ensure
marketable title. Additionally, the Department removed the requirement
that the policy of title insurance be less than five (5) years old
because the intent is to ensure marketable title which will require an
individualized analysis rather than a bright line time limit on the
issuance of the policy of title insurance.
Sec. 151.15 How will the Secretary conduct a review of environmental
conditions?
Comment: One county requested that a socio-economic impact report
be included as part of the NEPA environmental impact analysis.
<bullet> Response: In determining the information to be analyzed in
an environmental impact analysis, the Secretary shall comply with the
requirements of NEPA (43 U.S.C. 4321 et seq.), applicable Council on
Environmental Quality regulations (40 CFR parts 1500-1508), and
Department regulations (43 CFR part 46) and guidance.
Comment: Several Tribes recommended that the Department clarify
that Phase I environmental site assessments would not need to be
updated except when an evaluation of the pre-acquisition determines
environmental conditions exist.
<bullet> Response: The Department declines to adopt the proposal.
The final rule sets forth criteria for Phase I environmental site
assessments that aim to simplify such review consistent with the
requirements of Departmental Manual 602 DM 2. The Phase I environmental
site assessment is the tool the Department uses to identify any
environmental liabilities that may be a barrier to acquisition of real
property. In many instances the site assessment will need to be updated
to account for any remediation completed since the first site
assessment or to confirm that no new environmental liabilities are
evident on the property.
Comment: A Tribal consortium requested additional flexibility
around environmental issues, specifically requesting that Tribes be
able to assume liability for environmental issues on lands taken into
trust.
[[Page 86245]]
<bullet> Response: Nothing in the regulations prohibits a Tribe
from assuming liabilities on lands to be taken into trust.
Comment: An association of counties and others requested that NEPA
analyses be submitted as part of a ``complete application.''
<bullet> Response: The regulation states that an acquisition
package is not complete until the public review period for a final EIS
or EA has concluded, or the categorical exclusion documentation is
completed.
Comment: One Tribe requested various clarifications to proposed
Sec. 151.15, including why environmental assessments ``end load''
review of a Phase I environmental site assessment rather than requiring
it as a component of a complete application required in Sec. 151.8.
<bullet> Response: Section 151.8 requires that a complete
application include information that allows the Secretary to comply
with NEPA and 602 DM 2. Section 151.15(b), however, provides that the
Secretary may require the applicant to provide information updating a
prior pre-acquisition environmental site assessment (i.e., a Phase I
environmental site assessment). This is not an end loading of the
process but instead a recognition that certain environmental documents
may need to be updated prior to formalizing acceptance of title.
Sec. 151.16 How are formalization of acceptance and trust status
attained?
Comment: A private individual requested that the entirety of
proposed Sec. 151.16 be redone and include the six-year statute of
limitation timeframes in line with the APA.
<bullet> Response: The Department respectfully disagrees. Section
151.13(c) explains that the Assistant Secretary's decision constitutes
a final agency action for purposes of the APA. Interior is retaining
the requirement that, if the request will be approved, notice of such
approval will be published in the Federal Register. Such publication
makes clear that a final agency action has occurred. The Department
believes this provides a sufficient timeframe for any interested party
to challenge the decision and that explaining the APA's statute of
limitations in the proposed regulation would be unnecessary
duplicative.
Comment: One Tribe requested that proposed Sec. 151.16(b) require
formal notification to the applicable Tribe, so the date of official
trust status is certain.
<bullet> Response: While not included in the regulation, the BIA
will publish updated guidance in the FTT Handbook outlining how it will
provide notice of the placement of the property in trust. BIA will be
updating the FTT Handbook to reflect the changes made by this final
rule.
Comment: A county requested that the proposed changes to Sec.
151.16 include a final step that all land conveyance documents must be
recorded in the county's land records for the conveyance to be
officially recognized.
<bullet> Response: The final rule does not address recordation in
the county records because fee-to-trust is an inherently Federal
process. The BIA Division of Land Title Records is responsible for and
serves as the office of record for all trust land and restricted land
titles for Indian Tribes and individuals. Therefore, the primary
requirement under Sec. 151.16 is to record the trust deed with the
appropriate Land Title Records Office (LTRO). BIA recognizes that
recordation in the county can be beneficial and will publish a handbook
outlining how title will be recorded. BIA will be updating the FTT
Handbook to reflect the changes made by this final rule.
Sec. 151.17 What effect does this part have on pending requests and
final agency decisions already issued?
Comment: Numerous Tribes expressed concern that under proposed
Sec. 151.17, Tribes who submitted prior to the new rules would not
benefit from the 120-day time frame. One Tribe also requested that
Tribes who previously submitted should have a mechanism to benefit from
timely processing.
<bullet> Response: This is addressed in Sec. 151.17. While the
120-day time frame does not apply to applications submitted prior to
this final rule, the Department strives to process pending applications
as quickly and efficiently as possible. Also, with the existing
backlog, placing all applications on the 120-day timeline at once would
present an enormous, if not impossible challenge for the Department.
Comment: One Tribe expressed concerned that the language in
proposed Sec. 151.17(b) is unclear as to whether presently pending
matters in the IBIA will need to start over based on new requirements.
<bullet> Response: Section 151.17(b) makes it clear that this part
does not alter BIA decisions currently on appeal on January 11, 2024.
Thus, matters pending in the IBIA will not be affected.
Comment: One Tribe requested that Tribes who have pending
applications be afforded a choice between the now-in-place rule and the
draft rule, should the draft rule be adopted.
<bullet> Response: Section 151.17(a), addresses how applications
pending at the time the final rule is promulgated are affected by the
final rule.
Comment: A State requested that all interested parties be required
to consent before Tribes with pending applications can proceed under
the new regulations. The State also requested that a pending
application processed under the new regulations be reopened for
comment.
<bullet> Response: The Department declines to accept the proposal.
The Tribal applicant is best positioned to determine whether it wants
its application to be evaluated under prior regulations or the final
rule. Proceeding under the final rule does not limit the ability of
State and local governments to submit comments on the application.
Moreover, reopening the comment period is unwarranted as the final rule
contemplates that State and local governments will submit comments on
the same topics enumerated under the existing regulations, i.e., ``the
acquisition's potential impacts on regulatory jurisdiction, real
property taxes and special assessments.'' 25 CFR 151.10 (2022).
Comments on General Issues
Comment: One State commented that the proposed rule does not comply
with Federal laws intended to allow States and local governments
meaningful and timely input because the BIA allowed Tribes to comment
on a draft prior to the draft being published for public comment.
Specifically, the comment alleges that the BIA failed to comply with
the Unfunded Mandates Reform Act and Executive Order 13132 which
requires Federal agencies to have a process to meaningfully engage with
State and local officials on action that have federalism implications.
<bullet> Response: The process used in formulating the regulation
did not deprive States or local governments the ability to comment on
the proposed regulation. Executive Order 13175 requires the BIA to
consult with Tribes prior to taking any action that would have an
impact on tribal governments. The BIA's consultation sessions with
Tribes complied with that executive order. There is no requirement that
the BIA engage in a similar process with States or local governments.
Regardless, the BIA published a proposed notice of rulemaking in the
Federal Register that provided a reasonable time for the submission of
comments from the public. Many States and local governments, including
the commenter, availed themselves of this opportunity and the BIA
considered all submitted comments. Because the proposed
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changes to the rule are largely procedural and do not expand the
authority granted to the Secretary under the statute, they would not
have a substantial direct effect or impose substantial compliance costs
on States or local governments. Therefore, the proposed changes would
not implicate the types of federalism concerns contemplated by
Executive Order 13132.
Comment: A State government commented that the proposed rule
eliminates the requirement that the Secretary consider the distance of
the acquisition by removing the requirement that the Secretary give
greater weight to the concerns'' raised for off-reservation
acquisitions as the distance increases.
<bullet> Response: The rule does not eliminate the Secretary
ability to consider distance in any decision. The rule only eliminates
the requirement that the Secretary must give greater weight to concerns
raised for those acquisitions that are off-reservation.
Comment: A State government commented that the IRA raises serious
concerns under the nondelegation doctrine and that several lower court
judges have expressed concern that the IRA is an unconstitutional
delegation.
<bullet> Response: Numerous courts have considered and rejected the
argument that the IRA violates principles of nondelegation, reasoning
that the statute places ``adequate limits'' on the Secretary's
discretion and that it is ``possible to ascertain whether the will of
Congress has been obeyed.'' South Dakota v. U.S. Dep't of Interior, 423
F.3rd 790 (8th Cir. 2005) (quotations marks omitted); see also Mich.
Gambling Opposition v. Kempthorne, 525 F.3d 23, 30 (D.C. Cir. 2008),
Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007), rev'd on other
grounds, Carcieri v. Salazar, 555 U.S. 379 (2009), United States v.
Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999); Confederated Tribes of
Siletz Indians v. United States, 110 F.3d 688, 698 (9th Cir. 1997)
(stated in dicta that the land into trust power is a valid delegation).
We are not aware of any court decision holding that the IRA is an
unconstitutional delegation of authority.
Comment: A State government provided a detailed process for
notification of new applications to State and local governments as well
as for receiving and responding to comments on the application. This
proposed process includes notification to States and local governments
of an application, requires providing a those governments with a copy
of the application along with unspecified other information the BIA may
possess, notification to State and local governments that an
applicant's package is complete and then provide that package to them
within 10 calendar days upon request, requires the Secretary to
consider any and all written comments by State or local governments
regardless of the location of the land, and provide the applicant a
reasonable time frame in which to respond to the State or local
government comments.
<bullet> Response: We reject the proposed process because it would
add to the timeline for action on an application beyond even the
current regulations. One of the goals of revising these regulations is
to shorten the timeline for processing applications. We believe that
the process for notifying States and local governments and the timeline
for receiving response from them is adequate for the Secretary to
receive relevant information and to make an informed decision. Further,
the final rule does not limit the Secretary's ability to consider any
comments on any issues submitted by a State or local government.
Comment: One town expressed concerns that if a specific group of
Indians became federally recognized and then were allowed to take land
into trust in the town, that would result in severe consequences for
the town.
<bullet> Response: These regulations do not provide a process for
Federal recognition of any tribal group. The regulations only apply to
already recognized Indian Tribes. Further, the final rule clarifies
that if a Tribe is recognized under the part 83 process, that any
historical evidence submitted during that process demonstrating that
they were under Federal jurisdiction in 1934 may be used to determine
whether the Secretary has authority to take land into trust for a
particular tribe.
Comment: One town commented that while the regulations give ``great
weight'' to tribal concerns they do not give any weight to the comments
or concerns of a local community or State in the decision-making
process.
<bullet> Response: The final rule provides that the Secretary will
give great weight if the acquisition was for specific stated purposes.
While the final rule does not give a specific weight to comments and
concerns raised by local governments or States it is not true that it
gives them no weight. The Secretary will consider any and all comments
and concerns raised by local communities or States in making a decision
to acquire land in trust for a tribe.
Comment: One Tribe suggested that ``interested parties,'' like
State and local governments, be afforded notice and an opportunity to
comment on acquisitions because the lack of that accommodation for
``interested parties'' often ensures that they ultimately file a formal
appeal of a favorable decision.
<bullet> Response: The Department declines to adopt this proposal.
In the Department's experience, most trust acquisition decisions issued
by BIA officials are not challenged by any party. Given the changes in
regulatory jurisdiction that occur as a result of acquiring land into
trust, notice to State and local governments and consideration of
comments received from them inform the Secretary's review of
applications. Private individuals or entities have no regulatory
jurisdiction over land and thus the same considerations are not present
with respect to private parties. Such private parties can nevertheless
submit comments on pending applications to the extent they want to.
Comment: Many counties, States, and local governments expressed
general and broad opposition to the proposed regulations. One commenter
asked that the Regulations include a citation to Constitutional
provisions that provide authority for Congress to acquire lands for
Indians. Another suggested the proposed rule would be invalid due to
uncertainties regarding constitutional and statutory authority for the
United States to take land into trust. That same commenter expressed
significant concerns about federalism implications of the proposed
rule. A separate commenter expressed concern that the proposed rule
would unravel NEPA because it may result in decreased communication and
cooperation between Tribes and local governments. Finally, a State
commented that the proposed rule is unlawful under the APA because the
Department must consider impacts on State and local governments.
<bullet> Response: We disagree with comments suggesting the final
rule violates the APA or raises federalism concerns. The rulemaking
complies with the APA. Notice of the proposed rulemaking provided an
accurate picture of the Department's reasoning and provided interested
parties an opportunity to meaningfully commend upon the proposed rule.
The Department has considered potential impacts to State and local
governments, including those raised in comments, and this Notice
memorializes that consideration. Section 5 of the IRA does not violate
principles of federalism because the Indian Commerce Clause grants
Congress the power ``[t]o regulate commerce . . . with the Indian
Tribes.'' U.S. Const. art. I, section 8, cl. 3. The Supreme Court has
consistently
[[Page 86247]]
interpreted Congress' authority to legislate in matters involving
Indian affairs broadly. See, e.g., United States v. Lara, 541 U.S. 193,
200, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004). The Secretary's
exercise of their discretionary land into fee-to-trust authority under
section 5 of the IRA is a valid exercise of the power delegated to
Congress by the Constitution. Under Department regulations, the
promulgation of regulations is categorically excluded from NEPA. See 43
CFR 46.210(i) and Environmental Statement Memorandum 13-4, Use of
Departmental Categorical Exclusion for Policies, Directives,
Regulations, and Guidelines, Michaela E. Noble, Director Office of
Environmental Policy and Compliance (Sept. 24, 2018). Furthermore, the
proposed rule does not modify the procedural requirements of NEPA.
Comment: Some State and local governments argued that the
presumptions unlawfully strip the Secretary of the case-by-case
discretion required under the IRA.
<bullet> Response: The policy presumptions in the final rule cannot
divest the Secretary's statutory discretion as authorized in the IRA.
As explained herein, the presumptions adopted through the final rule
are consistent with the purposes of the IRA and the policy goals of
Tribal self-determination, self-government, and economic development
reflected in that statute and other laws authorizing trust
acquisitions. The Secretary retains statutory discretion to approve or
deny an application after a holistic review of trust acquisition
applications, supporting materials, and comments submitted on
applications, which of course may demonstrate that a particular
presumption should be rebutted.
Comment: A Tribal consortium expressed concern over how the process
would work in Alaska, the need to account for the Alaska Native Claims
Settlement Act, as well as other unique issues surrounding land in
Alaska. It was also suggested that the expedited timelines in the
proposed rule might be too short to allow the Department to effectively
exercise fee-to-trust trust authorities in Alaska.
<bullet> Response: The Department is working with the BIA Alaska
Regional Office to ensure it has all the necessary skills and equipment
to process fee-to-trust applications in Alaska. In November 2022, the
Department approved the first land into trust acquisition in Alaska in
five years, and the second fee-to-trust acquisition in Alaska since the
passage of the Alaska Native Claims Settlement Act in 1971. The
Department anticipates further applications may be filed for land into
trust in Alaska and the BIA will continue to provide resources to the
Region for assistance with processing applications consistent with this
final rule, Sol. Op. M-37076, and Akiachak Native Community v. Jewell,
935 F. Supp. 2d 195 (D.D.C. 2013), vacated as moot, 827 F.3d 100 (D.C.
Cir. 2016).
Comment: A former attorney general submitted comments expressing
disapproval of the removal of BIA consideration of ``jurisdictional
problems and potential conflicts of land use.'' These concerns are
rooted in law enforcement jurisdiction issues, which they assert are
complicated in Indian country and the proposed changes would affect
these issues.
<bullet> Response: The Secretary must consider ``jurisdictional
problems and potential conflicts of land use'' when State and local
governments raise these issues in comments submitted under Sec. Sec.
151.11(c) and 151.12(d). The Secretary will carefully consider the
potential conflicts and any associated impact on public safety and law
enforcement jurisdiction.
Comment: Many Tribes suggested that an electronic filing system
would be helpful in providing a streamlined platform for reviewing
applications and following where applications are in the process.
<bullet> Response: The Department is mindful that improving the
technologies used to implement these regulations is key to meeting the
goal of improving efficiency and reducing the time it takes to process
an application. The BIA is working to improve the current system--
TAAMS--used to track fee-to-trust applications, and ensure it is up to
date, and will continue to explore technological improvements including
electronic filing systems to improve efficiency and applicant customer
service.
Comment: Some comments identified minor grammatical or punctuation
errors.
<bullet> Response: The Department made minor non-substantive
corrections identified by commenters.
Comment: Several comments were received that were not directly
responsive to the proposed regulations.
<bullet> Response: The Department has reviewed all comments
received in response to the part 151 Notice of Proposed Rulemaking.
Comments not directly responsive to the proposed regulations were not
considered as part of the rulemaking and are not responded to here.
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is significant under E.O.
12866 section 3(f), but not significant under section 3(f)(1).
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. The Department and BIA developed this final rule in a manner
consistent with these requirements.
B. Regulatory Flexibility Act
The Department certifies that this document 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.). The final
rule would not change current funding requirements and would not impose
any economic effects on small governmental entities because it makes no
change to the status quo. The final rule codifies longstanding
Departmental policies and interpretation of case law.
Tribal governments and individual Indians seeking to have fee-lands
placed in trust by the United States for the benefit of Tribal
governments and individual Indians will be able rely on the substantive
provisions in the final rule for guidance on what may or may not be
included in a land acquisition request package. Both Sec. 151.9, which
addresses on-reservation acquisitions, and Sec. 151.10, which
addresses acquisition of lands contiguous to reservation boundaries,
are consistent with existing case law and are presumed to further
Tribal interests and the adverse impacts to local governments and small
entities are presumed to be minimal. Local governments, after receiving
notice from the BIA that a Tribal government or individual Indian
[[Page 86248]]
submitted a land acquisition request package, are free to provide
written comments, within 30 calendar days, to rebut the presumption of
minimal adverse impacts to regulatory jurisdiction, real property
taxes, and special assessments.
Furthermore, under both Sec. 151.1, acquisition of lands outside
of o
[…truncated; see source link]Indexed from Federal Register on December 12, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.