On December 5, 2022, the Interior Department's Bureau of
Indian Affairs (BIA) published proposed revisions to 25 C.F.R. Part
151—the regulations governing the United States'
discretionary acquisition of land in trust for the benefit of
tribal governments or individual Indians. (The revisions affect
discretionary trust acquisitions only; they do not affect
mandatory acquisitions, which typically are governed by statute or
court order.) Tribal leaders and other interested
parties—including tribal organizations, gaming interests, and
surrounding communities—should familiarize themselves with
the changing regulatory framework, and are invited to help shape that framework by
submitting public comments to the BIA on or before March 1, 2023,
or by participating in consultation sessions open to tribal
leadership and representatives of federally recognized tribes or
Alaska Native Corporations.
According to its notice in the Federal Register, the BIA is
seeking "to make the land into trust process more efficient,
simpler, and less expensive," in keeping with President
Biden's pledge to "make it easier for Tribes to
place land into trust." The existing regulations do not
express any policy in favor of trust acquisition. In contrast, the
proposed new regulations would affirm that "[i]t is the
[Interior] Secretary's policy to acquire land in trust ... for
individual Indians and tribes." The proposed regulations also
list a number of policy reasons that could support a given
acquisition, including that the acquisition would create a tribal
land base, protect tribal homelands, preserve cultural resources,
facilitate Indian housing, or promote economic development.
The balance of the BIA's proposed revisions would make both
procedural and substantive changes to the existing Part 151
regulations. For instance, the BIA proposes to speed up its
decision-making process by requiring the agency to notify
applicants when their acquisition package is complete and then to
issue a final decision within 120 days. Other revisions seek to
remove certain obstacles that have hampered applicants in the past.
For example, many applicants have had to continually update their
environmental site assessments in order to keep those assessments
valid during the pendency of their application. The proposed
revisions anticipate only one such assessment at the beginning of
the process, and allow for a single update, if necessary, after an
application's approval.
The BIA has also proposed revisions to place a substantive thumb on
the scale in favor of trust acquisition. The existing regulations
contemplate three categories of land-into-trust applications: those
involving land (1) within an Indian reservation, (2) contiguous to
the boundaries of a reservation, or (3) outside a reservation. For
applications in each of those categories, the BIA proposes to place
increased weight on expected benefits to tribal welfare and
eliminate existing requirements to consider an applicant's need
for the proposed acquisition, the impact on state and local
government tax rolls, and any jurisdictional problems or land-use
conflicts that could arise. For applications in the first two
categories, the proposed revisions would also create a presumption
in favor of approval. For applications in the third category, the
BIA has proposed replacing what it describes as an existing
"bungee cord" approach (under which applications are
viewed less favorably the farther the subject land is from the
tribe's reservation) with a presumption that acquisition would
lead to community benefits without regard to the location of the
land.
In addition, the proposed revisions would introduce a new, fourth
category of acquisition—labeled "initial Indian
acquisitions"—to facilitate the acquisition of trust
lands for tribes that do not currently have any land in trust.
Applications in this fourth category would enjoy similar
presumptions to those afforded applications in the other
three.
Finally, the notice states that the BIA seeks to reduce regulatory
uncertainty by formally incorporating into its regulations the
factors identified by the U.S. Supreme Court in Carcieri v.
Salazar, 555 U.S. 379 (2009), as relevant to determining
whether a tribe was under federal jurisdiction in 1934 and thus is
eligible under the Indian Reorganization Act of 1934 to have land
taken into trust. Drawing on case law and existing agency analysis,
the proposed regulations set forth discrete categories of
"conclusive," "presumptive," and
"probative" evidence of a tribe's statutory
eligibility for trust lands.
Parties that may have a land-into-trust application pending when
the new regulations ultimately take effect should pay special
attention to the BIA's proposed revisions, as the revisions
would (if adopted) allow such parties to choose between continuing
to proceed under the current regulations or proceeding instead
under the new rules. And whether or not any land-into-trust
application is pending, parties seeking to understand, litigate, or
comply with the revised regulations may wish to engage counsel with
experience navigating the administrative process, preparing
comments on proposed regulations, and litigating and advising on
tribal land-acquisition issues. Attorneys in WilmerHale's Native American Law Practice have extensive
experience in these areas—including experience litigating the
Carcieri factors for determining trust eligibility—and are
well-equipped to assist tribal governments and other interested
parties with these issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
