[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Proposed Rules]
[Pages 74334-74346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25735]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF71
Land Acquisitions
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) seeks input on changes to
its regulations governing the discretionary acquisition of land into
trust for the benefit of tribal governments and individual Indians.
Since these regulations were first promulgated in 1980, the BIA has
developed extensive experience in the fee-to-trust acquisition process.
Relying on that experience and input from tribal governments and
individual Indians, this proposed rule seeks to make the land into
trust process more efficient, simpler, and less expensive to support
restoration of tribal homelands.
DATES: Interested persons are invited to submit comments on or before
March 1, 2023.
ADDRESSES: You may submit comments by any one of the following methods.
Federal eRulemaking Portal: Please upload comments to
https://www.regulations.gov by using the ``search'' field to find the
rulemaking and then following the instructions for submitting comments.
Email: Please send comments to consultation and include
``RIN 1076-AF71, 25 CFR part 151'' in the subject line of your email.
Mail: Please mail comments to Indian Affairs, RACA, 1001
Indian School Road NW, Suite 229, Albuquerque, NM 87104.
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, [email protected].
SUPPLEMENTARY INFORMATION: This proposed 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
II. Executive Summary
III. Overview of Proposed Rule
IV. Summary of Changes by Section
A. Section 151.1 What is the purpose of this part?
B. Section 151.2 How are key terms defined?
C. Section 151.3 Land Acquisition Policy
D. Section 151.4 How will the Secretary determine that statutory
authority exists to acquire land in trust status?
E. Section 151.5 May the Secretary acquire land in trust status
by exchange?
F. Section 151.6 May the Secretary approve acquisition of a
fractional interest?
G. Section 151.7 Is tribal consent required for nonmember
acquisitions?
H. Section 151.8 What documentation is included in a trust
acquisition package?
I. Section 151.9 How will the Secretary evaluate a request
involving land within the boundaries of an Indian reservation?
J. Section 151.10 How will the Secretary evaluate a request
involving land contiguous to the boundaries of an Indian
reservation?
K. Section 151.11 How will the Secretary evaluate a request
involving land outside the boundaries of an Indian reservation?
L. Section 151.12 How will the Secretary evaluate a request
involving land for an initial Indian acquisition?
M. Section 151.13 How will the Secretary act on requests?
N. Section 151.14 How will the Secretary review title?
O. Section 151.15 How will the Secretary conduct a review of
environmental conditions?
P. Section 151.16 How is formalization of acceptance and trust
status attained?
Q. Section 151.17 What effect does this part have on pending
requests and final agency decisions already issued?
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
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. Effects on the Energy Supply (E.O. 13211)
L. Clarity of This Regulation
M. Public Availability of Comments
I. Statutory Authority
Congress granted the Assistant Secretary--Indian Affairs (then, the
Commissioner of Indian Affairs) authority to ``have management of all
Indian affairs and of all matters arising out of Indian relations.''
\1\ Through section 5 of the Indian Reorganization Act of 1934 (IRA),
Congress further empowered the Department of the Interior (Department)
to acquire, in its discretion, any interest in lands, water rights or
surface rights to lands, within or without existing reservations,
including trust or otherwise restricted allotments for the purpose of
providing land for tribal governments and individual Indians.\2\
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\1\ 25 U.S.C. 2 and 9, and 43 U.S.C. 1457.
\2\ See 25 U.S.C. 5108.
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II. Executive Summary
This proposed rule would update regulations at 25 CFR part 151 that
address how the Bureau of Indian Affairs (BIA) considers and processes
applications for the discretionary
[[Page 74335]]
acquisition of land into trust for the benefit of tribal governments
and individual Indians, often referred to in shorthand as fee-to-trust
or land into trust. The BIA has processed thousands of applications
placing over a million acres of land into trust for tribes and
individual Indians since the passage of the IRA in 1934. Holding land
in trust greatly benefits tribes and individual Indians in various
ways, including through exemption from state and local taxation and
clearer tribal jurisdiction over the land. The revisions proposed here
should allow BIA to process applications more quickly and with less
expense to applicants.
These revisions also reflect input and recommendations provided by
tribes during tribal consultations hosted by the Department. On March
28, 2022, the Department published a Dear Tribal Leader Letter
announcing tribal consultation regarding proposed changes to 25 CFR
part 151. The Department held two listening sessions and four formal
consultation sessions. The Department also accepted written comments
until June 30, 2022.
The Dear Tribal Leader Letter included a Consultation Draft of the
proposed revisions to 25 CFR part 151; a Consultation Summary Sheet of
Draft Revisions to Part 151; and a redline reflecting proposed changes.
The Dear Tribal Leader Letter asked for comments on the Consultation
Draft as well as responses to seven consultation questions. The
Department received comments from tribal leaders.
III. Overview of Proposed Rule
In general, the proposed rule seeks to make the process of
acquiring land into trust for the benefit of tribal governments and
individual Indians more efficient, simpler, and less expensive. The BIA
has attempted to do so here through extensive changes to the
regulation, best explained in a section-by-section review as provided
below in section IV. However, we summarize the major, overarching
changes briefly here.
First, BIA affirms that it is the Secretary of the Interior's
(Secretary) policy to take land into trust for many reasons supporting
tribal and Indian welfare. The prior regulation lacked any affirmative
policy in favor of acquisition; it will now be clear Departmental
policy to support land into trust, subject to the discretion provided
by the IRA. Second, BIA seeks to speed the decision-making process by
requiring a decision within 120 days of assembling a complete
application package. Third, the proposed rule streamlines the process
for the four different forms of acquisitions--on-reservation,
contiguous to reservations, off-reservation, and initial Indian
acquisitions. For each form, the proposed rule eliminates certain
former criteria, and establishes certain presumptions designed to make
the process more efficient, based on BIA's longstanding practice and
experience in trust acquisitions. We have also developed a new fourth
category of acquisition, ``initial Indian acquisitions,'' designed to
ease the process of acquiring first trust lands for those tribes who do
not currently possess any land in trust. Fourth, the revised rule lays
out in regulatory text the process for determining whether a tribe was
``under federal jurisdiction'' in 1934, as required by Carcieri v.
Salazar, 555 U.S. 379 (2009). The revised Carcieri analysis should make
assessing statutory authority here simpler and faster. Fifth, BIA has
made many minor changes throughout the rule intended to solve problems
and remove obstacles that tribes and individual Indians have faced in
the trust acquisition process. For example, many applicants have
conducted Phase I Environmental Site Assessments multiple times to keep
those assessments valid while their application is pending. The
proposed rule would anticipate only one such assessment at the
beginning of the process, and allow for a single update, if necessary,
after the notice of decision has been signed.
IV. Summary of Changes by Section
A. Section 151.1 What is the purpose of this part?
The proposed revision clarifies that this regulation does not
govern acquisitions mandated by Congress or a Federal court order. The
agency has issued guidance concerning such mandatory acquisitions,
including the guidance found in BIA's Fee-to-Trust 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 and judicial orders mandating
acquisitions by employing simple guidance on how we approach such
acquisitions rather than one-size-fits-all regulations.
B. Section 151.2 How are key terms defined?
The BIA proposes adding or revising many definitions for important
terms, including terms used in the previous version of the regulations
as well as new terms used in the proposed revision.
The proposed 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. Definitions are also now listed in alphabetical
order.
i. Clarifying Certain New Definitions
Among the new definitions, we note that initial Indian acquisition
refers to a new category of acquisitions provided under new Sec.
151.12. The 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 homelands. Initial Indian acquisitions
provide a new, more supportive process for tribes without trust land,
as discussed further regarding the new 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
proposed rule. We clarify, in response to these comments, that the
proposed 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.
Tribal consultation commenters also expressed concern regarding the
term marketable title, and so we have added a clarifying definition for
that term to the proposed 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. The 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.
[[Page 74336]]
ii. Clarifying Changes to Existing Definitions
The definition of individual Indian has been modified to remove
paragraph (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. By
removing paragraph (g)(4), BIA clarifies that these regulations do not
address that issue. As an additional clarification, the removal of
paragraph (g)(4) does not limit trust acquisition by Alaska Natives in
any way. Rather, such individuals qualify for individual Indian trust
acquisitions in the same manner and to the same extent as any eligible
individual Indian under these regulations.
We also clarify here that a person possessing a total of one-half
or more degree of Indian blood of a tribe under paragraph (g)(3) may
possess such degree of Indian blood through combined heritage from more
than one 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. The List Act was not in place when these
regulations were first promulgated but should be used now as it is the
official record of federally recognized tribes.
The definition of Indian reservation has been modified slightly to
ensure a comprehensive understanding of reservation status in Oklahoma
after 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, we make 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.
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 proposed rule's expansive
understanding of the Department's land acquisition policy will cover
any acquisitions in such an area.
C. Section 151.3 Land Acquisition Policy
The existing rule does not express any policy clearly in favor of
trust acquisition for tribes and individual Indians. The proposed
revision makes plain that the Secretary's policy is to support
acquisitions of land in trust for the benefits of tribes and individual
Indians. The prior technical introductory language has been moved to
new paragraph (a).
In paragraph (b)(3), BIA proposes adding an expansive list of
policy reasons that would support an acquisition on behalf of a tribe,
including any reason the Secretary determines will support tribal
welfare. We note, however, that none of these policy reasons are
required if the subject land is within a reservation (per paragraph
(b)(1)) or if the tribe already owns an interest in the land, such as a
fee interest (per paragraph (b)(2)). We received comment during the
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 paragraph (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,''
consistent with commenters' recommendations and our understanding of
the existing rule's meaning.
D. Section 151.4 How will the Secretary determine that statutory
authority exists to acquire land in trust status?
This new section lays out in regulatory text the Department's
approach to determining statutory authority for acquisitions in trust
as required by the Supreme Court's opinion in Carcieri v. Salazar, 555
U.S. 379 (2009), which determined that the IRA only authorized
acquisitions for tribes that were under Federal jurisdiction at the
time of the IRA's passage, June 18, 1934. The proposed approach
incorporates caselaw and analysis by the Office of the Solicitor
interpreting the Department's statutory authority as guided by
Carcieri.
The proposed rule identifies three categories of evidence.
Conclusive evidence establishes in and of itself both that a tribe was
placed under Federal jurisdiction and that this jurisdiction persisted
in 1934. If conclusive evidence exists, no further analysis is
required. Presumptive evidence indicates that a tribe was placed under
Federal jurisdiction and may indicate that such jurisdiction persisted
in 1934. Where presumptive evidence exists, further analysis must focus
only on whether there is evidence indicating that Federal jurisdiction
did not exist or did not exist in 1934, such as a statute expressly
removing Federal jurisdiction. If neither conclusive nor presumptive
evidence exists, the Department will consider available probative
evidence, a comprehensive category for which many examples are listed
in paragraph (a)(3)(i).
In response to tribal consultation comments, we have added
paragraph (a)(4) to clarify that Federal executive officials cannot
disavow a government-to-government relationship with a tribe, as that
power belongs solely to Congress.
We note that paragraph (c) explains that, if the Office of the
Solicitor has previously issued a favorable Carcieri analysis for a
tribe, no additional analysis is needed. Such prior determinations
remain valid under the proposed revision, which is broader and more
inclusive than previous guidance governing the Solicitor's analyses.
Paragraph (e) clarifies that where a statute other than the IRA has
authorized trust land acquisitions, the Carcieri-based IRA analysis
provided for in paragraphs (a) through (d) is not relevant, 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 proposed
rule as unnecessary. The rule already provides for such acquisitions,
and this section adds no additional information or process regarding
such acquisitions.
E. Section 151.5 May the Secretary acquire land in trust status by
exchange?
Minor stylistic changes have been proposed to this section.
F. Section 151.6 May the Secretary approve acquisition of a fractional
interest?
This section, Sec. 151.7 in the existing regulation, has been
modified to clarify how its provisions are consistent with 25 U.S.C.
2216(c), a provision of the Indian Lands Consolidation Act. Section
2216(c) allows for mandatory
[[Page 74337]]
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). We assure commenters this is not the case; where
section 2216(c) 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) 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
this section.
The proposed revision also replaces 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 or tribe's fractional interest into
trust for the individual or tribe's benefit.
G. Section 151.7 Is tribal consent required for nonmember acquisitions?
No changes are proposed to this section, numbered in the existing
regulations as Sec. 151.8.
H. Section 151.8 What documentation is included in a trust acquisition
package?
This section expands substantially upon existing Sec. 151.9,
``Requests for approval of acquisitions.'' The new section describes
all the pieces of information necessary for the Department to assemble
a complete trust acquisition package. Once a complete package is
assembled, the proposed rule requires the Department to notify the
applicant and then make 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, this proposed
revision requires such notification within 30 days.
Tribal consultation commenters also pointed out that this section
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.
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Paragraph No. Applicant contribution Department contribution
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Section 151.8(a)(1).......................... A signed letter from the tribal None.
government supported by a
tribal resolution or other act,
or if an individual applicant,
a signed letter.
Section 151.8(a)(2).......................... Documentation from the applicant No Department contribution is
explaining purpose, and if an needed to complete this
individual, need. component of the package.
Rather, the Department will
consider this information in
coming to a decision.
Section 151.8(a)(3).......................... An aliquot legal description of Concurrence that the
the land and a map, or a metes description is legally
and bounds land description and sufficient.
survey.
Section 151.8(a)(4).......................... Information, or permission to The Department will develop or
access the land to gather such adopt and complete NEPA
information, allowing the analyses, including any
Department to comply with NEPA required public process, and
and 602 DM 2 regarding develop or adopt Phase I and
hazardous substances. Phase II Environmental Site
Assessments produced under 602
DM 2.
Section 151.8(a)(5).......................... Evidence of marketable title.... Preliminary Title Opinion
Section 151.8(a)(6).......................... None (applicant replies to Notification letters to state
comment letters are invited but and local governments and any
not required for a complete response letters.
acquisition package).
Section 151.8(a)(7).......................... Statement that any existing None.
encumbrances on title will not
interfere with the applicant's
intended use.
Section 151.8(a)(8).......................... None unless warranted by None unless warranted by
specific application. specific application.
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Regarding the requirement in 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 BIA clarifies that concurrence
with the land description presented by the applicant was and has always
been a necessary part of the acquisition process. The BIA 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. It is listed in new
Sec. 151.8 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 deadline.
I. Section 151.9 How will the Secretary evaluate a request involving
land within the boundaries of an Indian reservation?
This section is the first of four sections providing the process
for the Secretary's consideration of different types of acquisition
applications based on the location of the subject land related to an
Indian reservation or, in the case of initial Indian acquisitions, the
fact that the tribe has no land currently in trust.
The on-reservation acquisition process has been simplified and
designed to result in faster acquisitions in several ways. First, under
paragraph (a), the Secretary is no longer required to consider 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. 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 considerations are not necessary.
We note that some commenters wished to eliminate the purpose
criterion in paragraph (a) as well. Because an understanding of purpose
is necessary to comply with the National Environmental Policy Act
(NEPA) and to support the approach described in
[[Page 74338]]
paragraph (b), BIA is retaining this criterion.
Second, under paragraph (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
approach recognizes and incorporates the Secretary's policy to support
acquisition of land in trust for the benefit of tribes. In applying
great weight, the Secretary will expressly consider and closely
scrutinize the importance of the listed tribal purposes for land
acquisition, and in the holistic consideration applied to land into
trust acquisitions under the discretionary authority of the IRA, if
reaching a disapproval decision, explain in detail why an acquisition
for such purposes should not be approved.
Third, under paragraph (c), the Secretary will now apply a
presumption of approval for on-reservation acquisitions. 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 approval restoring
reservation lands to trust status is appropriate and consistent with
the proposed rule's policy on land into trust acquisitions.
Fourth, under paragraph (d), while the Secretary will notify state
and local governments of a request to have land acquired in trust, the
Secretary will no longer invite comment regarding on-reservation
acquisitions.
J. Section 151.10 How will the Secretary evaluate a request involving
land contiguous to the boundaries of an Indian reservation?
The process for approving acquisitions contiguous to an Indian
reservation has also been simplified and designed to result in faster
review and decision-making. Paragraphs (a) through (c) are the same for
contiguous and on-reservation acquisitions. Under paragraph (a), the
Secretary is no longer required to consider the need for a tribal
government's acquisition. Under paragraph (b), granting great weight to
important tribal purposes will be applied. 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. Under paragraph (c), the Secretary will now apply a
presumption of approval for on-reservation acquisitions. 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 of the tribal nation, and
based on the long experience of BIA in processing such applications and
then administering land placed into trust, these considerations applied
under the existing regulations are warranted. However, the proposed
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 her holistic
analysis of the application. If no such comments are received, no
consideration of these factors is required by the proposed rule.
Section 151.11 How will the Secretary evaluate a request involving land
outside the boundaries of an Indian reservation?
Off-reservation acquisitions have been streamlined and designed to
result in faster review and decision-making through the same reductions
in review criteria described for on-reservation and contiguous
acquisitions appearing in paragraph (a), and by applying the same great
weight standard to important tribal purposes in new paragraph (b).
In addition, existing paragraph (b) applied a ``bungee cord''
approach, increasing the difficulty of approving an acquisition as
distance from a tribe's reservation increased. The proposed rule
abandons this approach, providing in new paragraph (c) that the
Secretary presumes community benefits without regard to distance of the
land from a tribe's reservation boundaries or trust lands. This
understanding fits with the BIA's long experience in implementing the
land into trust authorities under the IRA. Where a tribe takes off-
reservation land into trust, 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. Accordingly, the
Secretary will no longer apply a limiting understanding of distance
from a tribal reservation, but will instead consider the location of
the land in her holistic analysis of the application as she considers
comments received from state and local governments.
K. Section 151.12 How will the Secretary evaluate a request involving
land for an initial Indian acquisition?
This new section is designed to support and speed review and
decision-making for acquisitions for tribes which do not currently have
land in trust. In the past, initial Indian acquisitions would have been
processed under the existing rule's off-reservation provisions. The
proposed 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
paragraph (a) and great weight granted to important purposes in
paragraph (b). The proposed rule also establishes a presumption of
approval for such requests in paragraph (c).
L. Section 151.13 How will the Secretary act on requests?
Minor clarifying changes to language were made in this section,
including the use of ``Office of the Secretary'' rather than
``Secretary'' in paragraphs (c) and (d). Because this rule uses the
defined term Secretary in its inclusive sense to mean all Department
staff with delegated authority from the Secretary, here in Sec. 151.12
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 proposed rule adds new Sec. 151.15, regarding
environmental review, to the steps that occur after a decision to take
land into trust but before signature on the acceptance of conveyance
document, described in paragraph (c)(2)(iii). This change is explained
in detail below regarding the new Sec. 151.15.
N. Section 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. New paragraph (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, and a
policy of title insurance less than five years old. In such cases the
Secretary shall accept the applicant's preliminary title report in
[[Page 74339]]
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, in paragraph (b) the proposed rule 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.
We note also that 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.
O. Section 151.15 How will the Secretary conduct a review of
environmental conditions?
New Sec. 151.15 covers the Department's environmental
responsibilities under NEPA and the Departmental Manual at 602 DM 2,
Land Acquisitions: Hazardous Substances Determinations. Paragraph (a)
simply states that the Department will comply with NEPA; no changes to
BIA's practices are created through this paragraph. Paragraph (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).
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.
P. Section 151.16 How is formalization of acceptance and trust status
attained?
Proposed Sec. 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.
Q. Section 151.17 What effect does this part have on pending requests
and final agency decisions already issued?
Paragraph (a) of proposed Sec. 151.17 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 applications 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 timeline created in
new 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 timeline, the volume
could potentially cause serious problems for agency decision-making.
Paragraph (b) explains that any decisions already made under the
existing regulations are not altered by the new regulation.
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. 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. We have developed this rule in a manner consistent with these
requirements.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not
[[Page 74340]]
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
It 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.
C. Congressional Review Act (CRA)
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
(a) Would not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act of 1995
This rule would not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule would not have a significant or unique effect on State,
local, or tribal governments or the private sector because this rule
affects only individual Indians and tribal governments that petition
the Department to take land into trust for their benefit. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
This rule would not affect a taking of private property or
otherwise have taking implications under E.O. 12630. A takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule would not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department will conduct two virtual session, one in-person
consultation, and will accept oral and written comments. The
consultations sessions will be open to tribal leadership and
representatives of federally recognized Indian Tribes and Alaska Native
Corporations.
In-Person Session: The in-person consultation will be held
on January 13, 2023, from 9 a.m. to 12 p.m. MST, at the BLM National
Training Center (NTC), 9828 N 31st Ave. Phoenix, AZ 85051.
1st Virtual Session: The first virtual consultation
session will be held on January 19, 2023, from 1 p.m. to 4 p.m. EST.
Please visit https://www.zoomgov.com/meeting/register/vJIsd-2qrjwiH2bVXpLvS2VPUZESt2HgtKk to register in advance.
2nd Virtual Session: The second virtual consultation will
be held on January 30, 2023, from 2 p.m. to 5 p.m. EST. Please visit
https://www.zoomgov.com/meeting/register/vJIsduGtqzgtE1hw9EIFrDf3-X_1gy5wGR0 to register in advance.
Comment Deadline: Please see DATES and ADDRESSES for
submission instructions.
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have hosted extensive consultation with federally
recognized Indian Tribes in preparation of this proposed rule,
including through a Dear Tribal Leader letter delivered to every
federally-recognized tribe in the country, and through three
consultation sessions held on May 9, 13, and 23, 2022.
I. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) is not
required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
J. National Environmental Policy Act (NEPA)
This rule would not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because this is an administrative and procedural regulation.
(For further information see 43 CFR 46.210(i).) We have also determined
that the rule would not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
K. Energy Effects (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
L. Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(l)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that you find unclear, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, and so forth.
M. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 25 CFR Part 151
Administrative practice and procedure, Indians, Indians--land
acquisition, Indians--law, Indians--tribal government.
0
For the reasons stated in the preamble, the Department of the Interior,
Bureau
[[Page 74341]]
of Indian Affairs, proposes to revise 25 CFR part 151 to read as
follows:
PART 151--LAND ACQUISITIONS
Sec.
151.1 What is the purpose of this part?
151.2 How are key terms defined?
151.3 What is the Secretary's land acquisition policy?
151.4 How will the Secretary determine that statutory authority
exists to acquire land in trust status?
151.5 May the Secretary acquire land in trust status by exchange?
151.6 May the Secretary approve acquisition of a fractional
interest?
151.7 Is tribal consent required for nonmember acquisitions?
151.8 What documentation is included in a trust acquisition package?
151.9 How will the Secretary evaluate a request involving land
within the boundaries of an Indian reservation?
151.10 How will the Secretary evaluate a request involving land
contiguous to the boundaries of an Indian reservation?
151.11 How will the Secretary evaluate a request involving land
outside the boundaries of an Indian reservation?
151.12 How will the Secretary evaluate a request involving land for
an initial Indian acquisition?
151.13 How will the Secretary act on requests?
151.14 How will the Secretary review title?
151.15 How will the Secretary conduct a review of environmental
conditions?
151.16 How is formalization of acceptance and trust status attained?
151.17 What effect does this part have on pending requests and final
agency decisions already issued?
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.
Sec. 151.1 What is the purpose of this part?
This part sets forth the authorities, policies, and procedures
governing the acquisition of land by the United States in trust status
for individual Indians and tribes. This part does not cover acquisition
of land by individual Indians and tribes in fee simple status even
though such land may, by operation of law, be held in restricted status
following acquisition; acquisition of land mandated by Congress or a
Federal court; acquisition of land in trust status by inheritance or
escheat; or transfers of land into restricted fee status unless
required by Federal law.
Sec. 151.2 How are key terms defined?
Contiguous means two parcels of land having a common boundary
notwithstanding the existence of non-navigable waters or a public road
or right-of-way and includes parcels that touch at a point.
Fee interest means an interest in land that is owned in
unrestricted fee simple status and is, thus, freely alienable by the
fee owner.
Fractionated tract means a tract of Indian land owned in common by
Indian landowners and/or fee owners holding undivided interests
therein.
Indian land means any tract in which any interest in the surface
estate is owned by a tribe or individual Indian in trust or restricted
status and includes both individually owned Indian land and tribal
land.
Indian landowner means a tribe or individual Indian who owns an
interest in Indian land.
Indian reservation or tribe's reservation means, unless another
definition is required by Federal law authorizing a particular trust
acquisition, that area of land over which the tribe is recognized by
the United States as having governmental jurisdiction, except that, in
the State of Oklahoma wherever historic reservations have not yet been
reaffirmed, or where there has been a final judicial determination that
a reservation has been disestablished or diminished, Indian reservation
means that area of land constituting the former reservation of the
tribe as defined by the Secretary.
Individual Indian means:
(1) Any person who is an enrolled member of a tribe;
(2) Any person who is a descendent of such a member and said
descendant was, on June 1, 1934, physically residing on a federally
recognized Indian reservation; or
(3) Any other person possessing a total of one-half or more degree
Indian blood of a tribe.
Initial Indian acquisition means an acquisition of land in trust
status for the benefit of a tribe that has no land currently held in
trust status.
Interested party means a person or other entity whose legally
protected interests would be affected by a decision.
Land means real property or any interest therein.
Marketable title means title that a reasonable buyer would accept
because it appears to lack substantial defect and to cover the entire
property that the seller has purported to sell.
Preliminary Title Opinion means an opinion issued by the Office of
the Solicitor that reviews the existing status of title, examining both
record and non-record title evidence and any encumbrances or liens
against the land, and sets forth requirements to be met before
acquiring land in trust status.
Preliminary title report means a report prepared by a title company
prior to issuing a policy of title insurance that shows the ownership
of a specific parcel of land together with the liens and encumbrances
thereon.
Restricted land or land in restricted status means land the title
to which is held by an individual Indian or a tribe and which can only
be alienated or encumbered by the owner with the approval of the
Secretary due to limitations contained in the conveyance instrument
pursuant to Federal law or because a Federal law directly imposes such
limitations.
Secretary means the Secretary of the Interior or authorized
representative.
Tribe means any Indian tribe listed under section 102 of the
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
For purposes of acquisitions made under the authority of 25 U.S.C. 5136
and 5138, or other statutory authority which specifically authorizes
trust acquisitions for such corporations, tribe also means a
corporation chartered under section 17 of the Act of June 18, 1934 (25
U.S.C. 5124) or section 3 of the Act of June 26, 1936 (25 U.S.C. 5203).
Trust land or land in trust status means land the title to which is
held in trust by the United States for an individual Indian or a tribe.
Undivided interest means a fractional share of ownership in an
estate of Indian land where the estate is owned in common with other
Indian landowners or fee owners.
Sec. 151.3 What is the Secretary's land acquisition policy?
It is the Secretary's policy to acquire land in trust status
through direct acquisition or transfer for individual Indians and
tribes to strengthen self-determination and sovereignty, ensure that
every tribe has protected homelands where its citizens can maintain
their tribal existence and way of life, and consolidate land ownership
to strengthen tribal governance over reservation lands and reduce
checkerboarding. The Secretary retains discretion whether to acquire
land in trust status where discretion is granted under Federal law.
(a) Land not held in trust or restricted status may only be
acquired for an individual Indian or a tribe in trust status when the
acquisition is authorized by Federal law. No
[[Page 74342]]
acquisition of land in trust status under this part, including a
transfer of land already held in trust or restricted status, shall be
valid unless the acquisition is approved by the Secretary.
(b) Subject to the provisions of Federal law authorizing trust land
acquisitions, the Secretary may acquire land for a tribe in trust
status:
(1) When the land is located within the exterior boundaries of the
tribe's reservation or contiguous thereto;
(2) When the tribe already owns an interest in the land; or
(3) When the Secretary determines that the acquisition of the land
will further tribal interests by establishing a tribal 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, reducing
checkerboarding, acquiring land lost through allotment, protecting
treaty or subsistence rights, or facilitating tribal self-
determination, economic development, Indian housing, or for other
reasons the Secretary determines will support tribal welfare.
(c) Subject to the provisions contained in Federal law which
authorize land acquisitions or holding land in trust or restricted
status, the Secretary may acquire land in trust status for an
individual Indian:
(1) When the land is located within the exterior boundaries of an
Indian reservation, or contiguous thereto; or
(2) When the land is already in trust or restricted status.
Sec. 151.4 How will the Secretary determine that statutory authority
exists to acquire land in trust status?
(a) In determining whether a tribe was under Federal jurisdiction
in 1934 within the meaning of section 19 of the Indian Reorganization
Act of June 18, 1934 (IRA) (25 U.S.C. 5129), and is, thus, eligible for
trust acquisition under section 5 of the IRA (25 U.S.C. 5108), the
Secretary shall consider evidence of Federal jurisdiction in the manner
provided in paragraphs (a)(1) through (4) of this section.
(1) Conclusive evidence establishes in and of itself both that a
tribe was placed under Federal jurisdiction and that this jurisdiction
persisted in 1934. If such evidence exists, no further analysis under
this section is needed. The following is conclusive evidence that a
tribe was under Federal jurisdiction in 1934:
(i) A vote under section 18 of the IRA (25 U.S.C. 5125) to ratify
or reject the IRA as recorded in Ten Years of Tribal Government Under
I.R.A., Theodore Haas, United States Indian Service (Jan. 1947) (Haas
List) or other Federal Government document;
(ii) Secretarial approval of a tribal constitution under section 16
of the IRA as recorded in the Haas List or other Federal Government
document;
(iii) Secretarial approval of a charter of incorporation issued to
a tribe under section 17 of the IRA as recorded in the Haas List or
other Federal Government document;
(iv) An Executive order for a specific tribe that was still in
effect in 1934;
(v) Treaties to which a tribe is a party, ratified by the United
States and still in effect as to that party in 1934;
(vi) Continuing existence in 1934 or later of treaty rights
guaranteed by a treaty ratified by the United States; or
(vii) Other forms of evidence deemed conclusive by the Secretary.
(2) Presumptive evidence is indicative that a tribe was placed
under Federal jurisdiction and may indicate that such jurisdiction
persisted in 1934. In the absence of evidence indicating that Federal
jurisdiction did not exist or did not exist in 1934, presumptive
evidence satisfies the analysis under this section. The following is
presumptive evidence that a tribe was under Federal jurisdiction in
1934:
(i) Evidence of treaty negotiations or evidence a tribe signed a
treaty with the United States whether or not such treaty was ratified
by Congress;
(ii) Listing of a tribe in the Department of the Interior's 1934
Indian Population Report;
(iii) Evidence that the United States took efforts to acquire lands
on behalf of a tribe in the years leading up to the passage of the IRA;
(iv) Inclusion in Volume V of Charles J. Kappler's Indian Affairs,
Laws and Treaties;
(v) Federal legislation for a specific tribe, including termination
legislation enacted after 1934, which acknowledges the existence of a
government-to-government relationship with a tribe in or before 1934;
(vi) When a tribe is recognized under the process in part 83 of
this chapter with a finding that the tribe has been identified as an
American Indian entity on a substantially continuous basis since 1900
pursuant to Sec. 83.11(a) of this chapter; or
(vii) Other forms of evidence deemed presumptive by the Secretary.
(3) In the absence of conclusive or presumptive evidence, the
Secretary may find that a tribe was under Federal jurisdiction in 1934
when the United States in 1934 or at some point in the tribe's history
prior to 1934, took an action or series of actions that, when viewed in
concert through a course of dealings or other relevant acts on behalf
of a tribe, or in some instances tribal members, establishes or
generally reflects Federal obligations, or duties, responsibility for
or authority over the tribe, and that such jurisdictional status
remained intact in 1934.
(i) Examples of Federal actions that exhibit probative evidence of
Federal jurisdiction may include but are not limited to, the Department
of the Interior's acquisition of land for a tribe in implementing the
Indian Reorganization Act of 1934, the attendance of tribal members at
Bureau of Indian Affairs operated schools, Federal decisions regarding
whether to remove or not remove a tribe from its homelands, the
inclusion of a tribe in Federal reports and surveys, the inclusion of a
tribe or tribal members in Federal census records prepared by the
Office of Indian Affairs, and the provision of health and social
services to a tribe or tribal members.
(ii) [Reserved]
(4) Evidence of executive officials disavowing legal responsibility
for a tribe in certain instances cannot, in itself, revoke Federal
jurisdiction over a tribe without express congressional action.
(b) For some tribes, Congress enacted legislation after 1934 making
the IRA applicable to the tribe. The existence of such legislation
making the IRA and its trust acquisition provisions applicable to a
tribe eliminates the need to determine whether a tribe was under
Federal jurisdiction in 1934.
(c) In order to be eligible for trust acquisitions under section 5
of the IRA, no additional ``under Federal jurisdiction'' analysis is
required under this part for tribes for which the Office of the
Solicitor has previously issued an analysis finding the tribe was under
Federal jurisdiction.
(d) Land may be acquired in trust status for an individual Indian
or a tribe in the State of Oklahoma under section 5 of the IRA if the
acquisition comes within the terms of this part. This authority is in
addition to all other statutory authority for such an acquisition.
(e) The Secretary may also acquire land in trust status for an
individual Indian or a tribe under this part when specifically
authorized by Federal law other than section 5 of the IRA, subject to
any limitations contained in that Federal law.
Sec. 151.5 May the Secretary acquire land in trust status by
exchange?
The Secretary may acquire land in trust status on behalf of an
individual
[[Page 74343]]
Indian or tribe by exchange under this part if authorized by Federal
law and within the terms of this part. The disposal aspects of an
exchange are governed by part 152 of this title.
Sec. 151.6 May the Secretary approve acquisition of a fractional
interest?
Where the mandatory acquisition process provided under 25 U.S.C.
2216(c) is not applicable to a fractional interest acquisition, e.g.,
where the acquisition proposed is located outside the boundaries of an
Indian reservation, this section applies to discretionary acquisitions
of fractional interests. The 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:
(a) The applicant already owns a fractional interest in the same
parcel of land;
(b) The interest being acquired by the applicant is in fee status;
(c) The applicant offers to purchase the remaining undivided trust
or restricted interests in the parcel at not less than their fair
market value;
(d) There is a specific law which grants to the applicant the right
to purchase an undivided interest or interests in trust or restricted
land without offering to purchase all such interests; or
(e) The owner or owners of more than fifty percent of the remaining
trust or restricted interests in the parcel consent in writing to the
acquisition by the applicant.
Sec. 151.7 Is tribal consent required for nonmember acquisitions?
An individual Indian or tribe may acquire land in trust status on
an Indian reservation other than its own only when the governing body
of the tribe having jurisdiction over such reservation consents in
writing to the acquisition; provided, that such consent shall not be
required if the individual Indian or the tribe already owns an
undivided trust or restricted interest in the parcel of land to be
acquired.
Sec. 151.8 What documentation is included in a trust acquisition
package?
An individual Indian or tribe seeking to acquire land in trust
status must file a written request, i.e., application, with the
Secretary. The request need not be in any special form but must set out
the identity of the parties, a description of the land to be acquired,
and other information which would show that the acquisition fulfills
the requirements of this part. The Secretary will prepare the
acquisition package using information provided by the applicant and
assessments developed by the Secretary, as described in paragraphs (a)
and (b) of this section:
(a) A complete acquisition package consists of the following:
(1) The applicant's request that the land be acquired in trust, as
follows:
(i) If the applicant is an Indian tribe, the tribe's written
request must be a signed tribal letter for trust acquisition supported
by a tribal resolution or other act of the governing body of the tribe;
and
(ii) If the applicant is an individual Indian, the individual's
written request must be a signed letter requesting trust status;
(2) Documentation from the applicant providing the information
assessed by the Secretary under Sec. 151.9(a)(2) and (3), Sec.
151.10(a)(2) and (3), Sec. 151.11(a)(2) and (3), or Sec. 151.12(a)(2)
and (3), depending on which section applies to the application;
(3) A description of the land as follows:
(i) An aliquot part legal description of the land and a map from
the applicant, 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.; or
(ii) A metes and bounds land description and survey if the land
cannot be described by an aliquot legal description. The survey may be
completed by a land surveyor registered in the jurisdiction in which
the land is located when the land being acquired is fee simple land;
and
(iii) Concurrence by the Secretary that the legal description or
survey is sufficient;
(4)(i) Information from the applicant that allows the Secretary to
comply with the National Environmental Policy Act and 602 Departmental
Manual (DM) 2, Land Acquisitions: Hazardous Substances Determinations
pursuant to Sec. 151.15; and
(ii) An acquisition package is not complete until the public review
period of a final environmental impact statement or, where appropriate,
a final environmental assessment has concluded, or the categorical
exclusion documentation is complete;
(5) Title evidence submitted by the applicant, and a completed
Preliminary Title Opinion prepared by the Secretary based on such
evidence;
(6) Notification letters prepared and sent by the Secretary
pursuant to Sec. 151.9, Sec. 151.10, Sec. 151.11, or Sec. 151.12,
including any associated responses where requested by the Secretary;
(7) Statement from the applicant that any existing covenants,
easements, or restrictions of record will not interfere with the
applicant's intended use of the land; and
(8) Any additional information or action requested by the
Secretary, in writing, if warranted by the specific application.
(b) After the Bureau of Indian Affairs is in possession of a
complete acquisition package, we will:
(1) Notify the applicant within 30 calendar days in writing that
the acquisition package is complete; and
(2) Issue a decision on a request within 120 calendar days after
issuance of the notice of a complete acquisition package.
Sec. 151.9 How will the Secretary evaluate a request involving land
within the boundaries of an Indian reservation?
(a) The Secretary will consider the criteria in this section when
evaluating requests for the acquisition of land in trust status when
the land is located within the boundaries of an Indian reservation.
(1) The existence of statutory authority for the acquisition and
any limitations contained in such authority, as identified in Sec.
151.4;
(2) If the applicant is an individual Indian, the need for
additional land, the amount of trust or restricted land already owned
by or for that individual, and the degree to which the individual needs
assistance in handling their affairs;
(3) The purposes for which the land will be used; and
(4) If the land to be acquired is in fee status, whether the Bureau
of Indian Affairs is equipped to discharge the additional
responsibilities resulting from the acquisition of the land in trust
status.
(b) The Secretary shall give great weight to any of the following
in accordance with Sec. 151.3: 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 treaty or subsistence
rights, or facilitating self-determination, economic development, or
Indian housing.
(c) When reviewing a tribe's request for land within the boundaries
of an Indian reservation, the Secretary presumes that the acquisition
will be approved.
(d) Upon receipt of a written request to have lands acquired in
trust within the boundaries of an Indian reservation,
[[Page 74344]]
the Secretary will notify the state and local governments with
regulatory jurisdiction over the land to be acquired of the applicant's
request.
Sec. 151.10 How will the Secretary evaluate a request involving land
contiguous to the boundaries of an Indian reservation?
(a) The Secretary will consider the criteria in this section when
evaluating requests for the acquisition of land in trust status when
the land is located contiguous to an Indian reservation:
(1) The existence of statutory authority for the acquisition and
any limitations contained in such authority, as identified in Sec.
151.4;
(2) If the applicant is an individual Indian, the need for
additional land, the amount of trust or restricted land already owned
by or for that individual, and the degree to which the individual needs
assistance in handling their affairs;
(3) The purposes for which the land will be used; and
(4) If the land to be acquired is in fee status, whether the Bureau
of Indian Affairs is equipped to discharge the additional
responsibilities resulting from the acquisition of the land in trust
status.
(b) The Secretary shall give great weight to any of the following
in accordance with Sec. 151.3: if the acquisition will further tribal
interests by establishing a land base or protecting tribal homelands,
protect sacred sites or cultural resources and practices, establish or
maintain conservation or environmental mitigation areas, consolidate
land ownership, acquire land lost through allotment, reduce
checkerboarding, protect treaty or subsistence rights, or facilitate
self-determination, economic development, or Indian housing.
(c) When reviewing a tribe's request for land is located contiguous
to an Indian reservation, the Secretary presumes that the acquisition
will be approved.
(d) Upon receipt of a written request to have lands contiguous to
an Indian reservation acquired in trust status, the Secretary will
notify the state and local governments having regulatory jurisdiction
over the land to be acquired. The notice will inform the state or local
government that each will be given 30 calendar days in which to provide
written comments on the acquisition's potential impact on 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.
Sec. 151.11 How will the Secretary evaluate a request involving land
outside the boundaries of an Indian reservation?
(a) The Secretary shall consider the following requirements in
evaluating requests for the acquisition of lands in trust status, when
the land is located outside of and noncontiguous to an Indian
reservation:
(1) The existence of statutory authority for the acquisition and
any limitations contained in such authority, as identified in Sec.
151.4;
(2) If the applicant is an individual Indian and the land is
already held in trust or restricted status, the need for additional
land, the amount of trust or restricted land already by or for that
individual, and the degree to which the individual needs assistance in
handling their affairs;
(3) The purposes for which the land will be used; and
(4) If the land to be acquired is in fee status, whether the Bureau
of Indian Affairs is equipped to discharge the additional
responsibilities resulting from the acquisition of the land in trust
status.
(b) The Secretary shall give great weight to any of the following
in accordance with Sec. 151.3: if the acquisition will further the
establishment of a land base or protect tribal homelands, protect
sacred sites or cultural resources and practices, establish or maintain
conservation or environmental mitigation areas, consolidate land
ownership, acquire land lost through allotment, reduce checkerboarding,
protect treaty or subsistence rights, or facilitate self-determination,
economic development, or Indian housing.
(c) Upon receipt of a written request to have lands outside the
boundaries of an Indian reservation acquired in trust status, the
Secretary will notify the state and local governments having regulatory
jurisdiction over the land to be acquired. The notice will inform the
state or local government that each will be given 30 calendar days in
which to provide written comments on the acquisition's potential impact
on 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 reviewing such comments, the Secretary will
consider the location of the land. The 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.
Sec. 151.12 How will the Secretary evaluate a request involving land
for an initial Indian acquisition?
(a) The Secretary will consider the criteria in this section when
evaluating requests for the acquisition of land in trust status when a
tribe does not have a reservation or land held in trust.
(1) The existence of statutory authority for the acquisition and
any limitations contained in such authority, as identified in Sec.
151.4;
(2) The purposes for which the land will be used; and
(3) If the land to be acquired is in fee status, whether the Bureau
of Indian Affairs is equipped to discharge the additional
responsibilities resulting from the acquisition of the land in trust
status.
(b) The Secretary shall give great weight to any of the following
in accordance with Sec. 151.3: 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 treaty or subsistence
rights, or facilitating self-determination, economic development, or
Indian housing.
(c) When reviewing a tribe's request for when a tribe does not have
a reservation or land held in trust, the Secretary presumes that the
acquisition will be approved.
(d) Upon receipt of a written request for land to be acquired in
trust when a tribe does not have a reservation or land held in trust,
the Secretary will notify the state and local governments having
regulatory jurisdiction over the land to be acquired. The notice will
inform the state or local government that each will be given 30
calendar days in which to provide written comments on the acquisition's
potential impact on 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
[[Page 74345]]
reasonable time in which to reply if they choose to do so in their
discretion, or request that the Secretary issue a decision. In
reviewing such comments, the Secretary will consider the location of
the land. The Secretary presumes that the tribal community will benefit
from the acquisition.
Sec. 151.13 How will the Secretary act on requests?
(a) The Secretary shall review each request and may request any
additional information or justification deemed necessary to reach a
decision.
(b) The Secretary's decision to approve or deny a request shall be
in writing and state the reasons for the decision.
(c) A decision made by the Office of the Secretary, or the
Assistant Secretary--Indian Affairs pursuant to delegated authority, is
a final agency action under 5 U.S.C. 704 upon issuance.
(1) If the Office of the Secretary or Assistant Secretary denies
the request, the Assistant Secretary shall promptly provide the
applicant with the decision.
(2) If the Office of the Secretary or Assistant Secretary approves
the request, the Assistant Secretary shall:
(i) Promptly provide the applicant with the decision;
(ii) Promptly publish in the Federal Register notice of the
decision to acquire land in trust status under this part; and
(iii) Immediately acquire the land in trust status under Sec.
151.16 after the date such decision is issued and upon fulfillment of
the requirements of Sec. Sec. 151.14 and 151.15 and any other
Department of the Interior requirements.
(d) A decision made by a Bureau of Indian Affairs official, rather
than the Office of the Secretary or Assistant Secretary, pursuant to
delegated authority is not a final agency action of the Department of
the Interior under 5 U.S.C. 704 until administrative remedies are
exhausted under part 2 of this chapter and under 43 CFR part 4, subpart
D, or until the time for filing a notice of appeal has expired and no
administrative appeal has been filed. Administrative appeals are
governed by part 2 of this chapter and by 43 CFR part 4, subpart D.
(1) If the official denies the request, the official shall promptly
provide the applicant with the decision and notification of the right
to file an administrative appeal.
(2) If the official approves the request, the official shall:
(i) Promptly provide the applicant with the decision;
(ii) Promptly provide written notice of the decision and the right,
if any, to file an administrative appeal of such decision:
(A) Interested parties who have made themselves known, in writing,
to the official prior to the decision being made; and
(B) The state and local governments having regulatory jurisdiction
over the land to be acquired;
(iii) Promptly publish a notice in a newspaper of general
circulation serving the affected area of the decision and the right, if
any, of interested parties who did not make themselves known, in
writing, to the official to file an administrative appeal of the
decision; and
(iv) Immediately acquire the land in trust status under Sec.
151.16 upon expiration of the time for filing a notice of appeal or
upon exhaustion of administrative remedies under part 2 of this chapter
and under 43 CFR part 4, subpart D, and upon the fulfillment of the
requirements of Sec. Sec. 151.14 and 151.15 and any other Department
of the Interior requirements.
(3) The administrative appeal period begins on:
(i) The date of receipt of written notice by the applicant or
interested parties entitled to notice under paragraphs (d)(1) and
(d)(2)(ii) of this section; or
(ii) The date of first publication of the notice for unknown
interested parties under paragraph (d)(2)(iii) of this section, which
shall be deemed receipt of the decision.
(4) Any party who wishes to seek judicial review of an official's
decision must first exhaust administrative remedies under part 2 of
this chapter and under 43 CFR part 4, subpart D.
Sec. 151.14 How will the Secretary review title?
(a) If the Secretary approves a request for the acquisition of land
in trust status, the Secretary shall require the applicant to furnish
title evidence as follows:
(1) The deed or other conveyance instrument providing evidence of
the applicant's title or, if the applicant does not yet have title, the
deed providing evidence of the transferor's title and a written
agreement or affidavit from the transferor that title will be
transferred to the United States on behalf of the applicant to complete
the acquisition in trust status; and
(2) Either:
(i) A current title insurance commitment issued by a title company;
or
(ii) The policy of title insurance issued by a title company to the
applicant or current owner and an abstract of title issued by a title
compact dating from the time of the policy of title insurance was
issued to the applicant or current owner to the present. The Secretary
will accept a preliminary title report prepared by a title company in
place of an abstract of title for purposes of this paragraph (a)(2)(ii)
if the applicant provides evidence that the title company will not
issue an abstract of title based on practice in the local jurisdiction,
and the policy of title insurance issued to the applicant or current
owner is less than five years old.
(3) The applicant may choose to provide title evidence meeting the
``Standards for the Preparation of Title Evidence in Land Acquisitions
by the United States'' in effect at the time of conveyance, in lieu of
the evidence required by paragraph (a)(2) of this section.
(b) After reviewing title evidence, the Secretary shall notify the
applicant of any liens, encumbrances, or infirmities that the Secretary
identified and may seek additional information or action from the
applicant needed to address such issues. The Secretary may require the
elimination of any such liens, encumbrances, or infirmities prior to
acceptance of the land in trust status if the Secretary determines that
the liens, encumbrances, or infirmities make title to the land
unmarketable.
Sec. 151.15 How will the Secretary conduct a review of environmental
conditions?
(a) The Secretary shall comply with the requirements of the
National Environmental Policy Act (NEPA) (43 U.S.C. 4321 et seq.),
applicable Council on Environmental Quality regulations (40 CFR parts
1500 through 1508), and Department of the Interior regulations (43 CFR
part 46) and guidance. The Secretary's compliance may require
preparation of an environmental impact statement, an environmental
assessment, a categorical exclusion, or other documentation that
satisfies the requirements of NEPA.
(b) The Secretary shall comply with the terms of 602 DM 2, Land
Acquisitions: Hazardous Substances Determinations, or its successor
policy if replaced or renumbered, so long as such guidance remains in
place and binding. If the Secretary approves a request for the
acquisition of land in trust status, the Secretary may then require,
before formalization of acceptance pursuant to Sec. 151.16, that the
applicant provide information updating a prior pre-acquisition
environmental site assessment conducted under 602 DM 2.
[[Page 74346]]
(1) If no recognized environmental conditions and other
environmental issues of concern are identified in the pre-acquisition
environmental site assessment and all other requirements of this
section are met, the Secretary shall acquire the land in trust.
(2) If recognized environmental conditions or other environmental
issues of concern are identified in the pre-acquisition environmental
site assessment, the Secretary shall notify the applicant and may seek
additional information or action from the applicant to address such
issues of concern. The Secretary may require the elimination of any
such issues of concern prior to taking the land in trust status.
Sec. 151.16 How is formalization of acceptance and trust status
attained?
(a) The Secretary will accept land in trust status by signing an
instrument of conveyance. The Secretary will sign the instrument of
conveyance after publication of a notice of intent to acquire the land
in trust status pursuant to Sec. 151.13(c)(2)(ii) or (d)(2)(ii) and
(iii), the requirements of Sec. Sec. 151.13, 151.4, and 151.15 have
been met, and upon expiration of the time for filing a notice of appeal
or upon exhaustion of administrative remedies under part 2 of this
chapter and under 43 CFR part 4, subpart D.
(b) The land will attain trust status when the Secretary signs the
instrument of conveyance.
Sec. 151.17 What effect does this part have on pending requests and
final agency decisions already issued?
(a) Requests pending on [EFFECTIVE DATE OF FINAL RULE], will
continue to be processed under 25 CFR part 151 revised April 1, 2022,
unless the applicant requests in writing to proceed under this part.
Upon receipt of such a request, the Secretary shall process the pending
application under this part, except for Sec. 151.8(b)(2).
(b) This part does not alter decisions of Bureau of Indian Affairs
officials under appeal or final agency decisions made before [EFFECTIVE
DATE OF FINAL RULE].
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-25735 Filed 12-2-22; 8:45 am]
BILLING CODE 4337-15-P