[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Rules and Regulations]
[Pages 18082-18083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9922]



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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 151

[1076-AD65]


Land Acquisitions

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final Rule.

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SUMMARY: This rule establishes a 30-day waiting period after final 
administrative decisions to acquire land into trust under the Indian 
Reorganization Act and other federal statutes. The Department is 
establishing this waiting period so that parties seeking review of 
final decisions by the Interior Board of Indian Appeals or of decisions 
of the Assistant Secretary-Indian Affairs, will have notice of 
administrative decisions to take land into trust before title is 
actually transferred. This notice allows interested parties to seek 
judicial or other review under the Administrative Procedure Act and 
applicable regulations.

EFFECTIVE DATE: April 24, 1996.

FOR FURTHER INFORMATION CONTACT: Mary Jane Sheppard, Staff Attorney, 
Office of the Solicitor, Division of Indian Affairs, Room 6456, Main 
Interior Building, 1849 C Street, NW, Washington, DC 20240; Telephone 
(202) 208-6260.

SUPPLEMENTARY INFORMATION: On July 15, 1991, the proposed rule for off-
reservation land acquisitions for Indian tribes was published in the 
Federal Register (56 FR 32278-32280). On June 23, 1995, the final rule 
was published at 60 FR 32878. That rulemaking supplemented the existing 
regulations in part 151. This procedural rule adds a subsection to 
existing 25 CFR 151.12, Action on requests.

Background

    In response to a recent court decision, State of South Dakota v. 
U.S. Department of the Interior, 69 F.3d 878 (8th Cir. 1995), the 
Department of the Interior is establishing a procedure to ensure the 
opportunity for judicial review of administrative decisions to acquire 
title to lands in trust for Indian tribes and individual Indians under 
section 5 of the Indian Reorganization Act (IRA) (Pub. L. 73-383, 48 
Stat. 984-988, 25 U.S.C. 465). Following consideration of the factors 
in the current regulations and completion of the title examination, the 
Department, through Federal Register notice, or other notice to 
affected members of the public, will announce any final administrative 
determination to take land in trust. The Secretary will not acquire 
title to the land in trust until at least 30 days after publication of 
the announcement. This procedure permits judicial review before 
transfer of title to the United States. The Quiet Title Act (QTA), 28 
U.S.C. 2409a, precludes judicial review after the United States 
acquires title. See, e.g., United States v. Mottaz, 476 U.S. 834 
(1986); North Dakota v. Block, 461 U.S. 273 (1983); Florida v. 
Department of Interior, 768 F.2d 1248 (11th Cir. 1985).
    Section 5 of the IRA authorizes the Secretary to acquire land in 
trust for Indians and Indian tribes: (1) Within or adjacent to an 
Indian reservation; or (2) for purposes of facilitating tribal self-
determination, economic development, or Indian housing. State of South 
Dakota, a case involving an off-reservation trust land acquisition, 
held Section 5 of the IRA unconstitutional on the ground that it 
violates the nondelegation doctrine. The court's decision was based in 
substantial part on the understanding that judicial review is not 
available to challenge the Secretary's action. The court noted that 
``judicial review is a factor weighing in favor of upholding a statute 
against a nondelegation challenge.'' This rule ensures that such review 
is available before formal conveyance of title to land to the United 
States, when the QTA's bar to judicial review becomes operative. 
Judicial review is available

[[Page 18083]]

under the APA because the IRA does not preclude judicial review and the 
agency action is not committed to agency discretion by law within the 
meaning of the APA.
    While the Eighth Circuit decision precludes the Secretary from 
taking into trust the land at issue in that particular case, new trust 
acquisitions will be made on a case-by-case basis. The procedure 
announced in today's rule, however, will apply to all pending and 
future trust acquisitions.
    The Department certifies that this procedural rule meets the 
standards provided in Sections 2(a) and 2(b)(2) of Executive Order 
12778.
    The Department has determined that this rule:

--Does not have significant federalism effects.
--Will not have significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).
--Does not have significant takings implications under E.O. 12630.
--Does not have significant effects on the economy, nor will it result 
in increases in costs or prices for consumers, individual industries, 
Federal, State, or local governments, agencies, or geographical 
regions.
--Does not have any adverse effects on competition, employment, 
investment, productivity, innovation, or the export/import market.
--Is categorically excluded from the National Environmental Policy Act 
of 1969 because it is of an administrative, technical, and procedural 
nature. Therefore, neither an environmental assessment nor an 
environmental impact statement is warranted.

    This rule is not a significant rule under E.O. 12866 and does not 
require approval by the Office of Management and Budget.
    This rule is not a major rule as defined in 5 U.S.C. 804. The 
annual number of tribal requests to place lands in trust is small. 
There will be costs incurred by a party seeking judicial review. The 
author of this rule is: Mary Jane Sheppard, Office of the Solicitor, 
U.S. Department of the Interior.
    Because this is a procedural rule under Section 553(b)(3)(A) of the 
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., it is exempt 
from requirements for notice and comment rulemaking.

List of Subjects in 25 CFR Part 151

    Indians--lands.

    For reasons set out in the preamble, Part 151 of Title 25, Chapter 
I of the Code of Federal Regulations is amended as set forth below.

PART 151--LAND ACQUISITIONS (NONGAMING)

    1. The authority for part 151 continues to read as follows:

    Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 
1106, as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as 
amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 
Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 
Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, 
as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 
86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716; 
88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 450h, 451, 464, 
465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a, 
622, 624, 640d-10, 1466, 1495, and other authorizing acts.

    2. Section 151.12, Action on requests, is amended by designating 
the existing text as paragraph (a) and by adding a new paragraph (b) to 
read as follows:


Sec. 151.12  Title examination.

* * * * *
    (b) Following completion of the Title Examination provided in 
Sec. 151.13 of this part and the exhaustion of any administrative 
remedies, the Secretary shall publish in the Federal Register, or in a 
newspaper of general circulation serving the affected area a notice of 
his/her decision to take land into trust under this part. The notice 
will state that a final agency determination to take land in trust has 
been made and that the Secretary shall acquire title in the name of the 
United States no sooner than 30 days after the notice is published.

    Dated: April 17, 1996.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 96-9922 Filed 4-29-96; 8:45 am]
BILLING CODE 4310-02-M