Indian Issues: BIA's Efforts to Impose Time Frames and Collect
Better Data Should Improve the Processing of Land in Trust
Applications (28-JUL-06, GAO-06-781).
In 1980, the Department of the Interior (Interior) established
regulations to provide a uniform approach for taking land in
trust. Trust status means the government holds title to the land
in trust for tribes and individual Indians. Trust land is exempt
from state and local taxes. The Secretary of the Interior has
delegated primary responsibility for processing, reviewing, and
deciding on applications to take land in trust to the Bureau of
Indian Affairs (BIA). As part of this process, BIA must seek
comments from affected state and local governments. Congress
directed GAO to study BIA's processing of land in trust
applications to determine the extent to which (1) BIA followed
its regulations, (2) applications were processed in a timely
manner, and to (3) identify any concerns raised by state and
local governments about land in trust applications. GAO is also
providing information on problems with BIA's data on the
processing of land in trust applications.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-781
ACCNO: A57627
TITLE: Indian Issues: BIA's Efforts to Impose Time Frames and
Collect Better Data Should Improve the Processing of Land in
Trust Applications
DATE: 07/28/2006
SUBJECT: Data collection
Data integrity
Federal regulations
Indian lands
Land management
Native Americans
Policy evaluation
Strategic planning
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GAO-06-781
* Report to Congressional Committees
* July 2006
* INDIAN ISSUES
* BIA's Efforts to Impose Time Frames and Collect Better Data
Should Improve the Processing of Land in Trust Applications
* Contents
* Results in Brief
* Background
* BIA Generally Followed the Regulations for Taking Land in Trust,
and These Regulations Provide BIA with Wide Discretion
* BIA Generally Followed the Regulations for Taking Land in
Trust
* Criteria in the Regulations Provide BIA Wide Discretion
Because They Are Not Specific and Do Not Include Guidelines
for How BIA Should Apply Them
* One BIA Office Did Not Properly Document Its Decisions and
Two Other Offices Have Entered Into Agreements with Tribes
That Have Raised Concerns
* Many Land in Trust Applications Have Not Been Processed in a
Timely Manner
* Some Applications with Decisions in Fiscal Year 2005 Were
Decided in a Timely Manner, While Others Took an Exceedingly
Long Time
* Off-Reservation Applications Have Not Been Processed in a
Timely Manner
* It Appears that Appeals Have Not Been Resolved in a Timely
Manner by BIA Regional Directors
* Citing Taxes and Jurisdictional Issues, State and Local
Governments Opposed Applications in Fiscal Year 2005
* Citing Primarily Taxes and Jurisdictional Issues, State and
Local Governments Opposed Only a Small Percentage of the
Applications with Decisions in Fiscal Year 2005
* State or Local Governments Have Also Cited Primarily Tax and
Jurisdictional Issues When Opposing BIA Land in Trust
Decisions through Administrative Appeals
* State and Local Governments Want More Information about
Applications as Early as Possible and More Time to Comment
* BIA's Land in Trust Database Is Incomplete and Inaccurate, and
BIA is Planning to Redesign It
* Conclusions
* Recommendations for Executive Action
* Agency Comments
* Objectives, Scope, and Methodology
* BIA's Process for Placing Land in Trust
* Processing Times for 87 Land in Trust Applications with Decisions in
Fiscal Year 2005
* Processing Times for 28 Off-Reservation Land in Trust Applications
Awaiting Consideration by BIA Central Office
* Processing Times for 34 Appealed Land in Trust Decisions Awaiting
Resolution by a BIA Regional Director
* Comments from the Department of the Interior
* GAO Contact and Staff Acknowledgments
Report to Congressional Committees
July 2006
INDIAN ISSUES
BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve
the Processing of Land in Trust Applications
Contents
Tables
Figures
July 28, 2006Letter
The Honorable Conrad Burns Chairman The Honorable Byron L. Dorgan Ranking
Minority Member Subcommittee on Interior and Related Agencies Committee on
Appropriations United States Senate
The Honorable Charles H. Taylor Chairman The Honorable Norman D. Dicks
Ranking Minority Member Subcommittee on Interior, Environment, and Related
Agencies Committee on Appropriations House of Representatives
In 1980, the Department of the Interior (Interior) established a
regulatory process intended to provide a uniform approach for taking land
in trust.1 Trust status means that the federal government holds title to
the land in trust for tribes or individual Indians. Land taken in trust is
no longer subject to state and local property taxes and zoning ordinances.
Many Indians believe that having their land placed in trust status is
fundamental to safeguarding it against future loss and ensuring their
sovereignty. While some state and local governments support the federal
government's taking additional land in trust for tribes or individual
Indians, others strongly oppose it because of concerns about the impacts
on their tax base and jurisdictional control. Further, the growth of
Indian gaming, its impacts on local communities, and the possibility that
newly acquired land taken in trust could be used for gaming have led to
heightened concerns about Indian land acquisitions by some members of the
public and some state and local governments.
Taking land in trust can be mandated by Congress through legislation or at
the discretion of the Secretary of the Interior. Under the regulations,
tribes or individual Indians who purchase or own property on which they
pay property taxes can submit a written request to the Secretary of the
Interior to have the land taken in trust. If approved, the ownership
status of the property would be converted from taxable status to
nontaxable Indian trust status. For requests made by tribes or individual
Indians under Interior's discretionary authority, the regulations
establish criteria that the Secretary of the Interior must consider in
evaluating whether to approve or deny the request. The criteria differ
slightly for requests involving land located within or contiguous to an
existing Indian reservation-referred to as on-reservation acquisitions-and
land located outside of and not contiguous to an existing Indian
reservation-referred to as off-reservation acquisitions. The
on-reservation criteria require that the Secretary consider, among other
things, the impact on the state and its political subdivisions resulting
from removing the land from the tax rolls and jurisdictional problems and
potential conflicts surrounding land use that could arise.2 As part of the
process, state and local governments must be notified of a request and
allowed 30 days to provide written comments on the potential impacts of
regulatory jurisdiction, real property taxes, and special assessments. For
off-reservation requests, the regulations also require the Secretary to,
among other things, give greater scrutiny to the tribe's justification of
anticipated benefits from the acquisition as the distance away from the
reservation increases and give greater weight to concerns raised by state
and local governments.3
The Secretary of the Interior has delegated to the Assistant Secretary for
Indian Affairs, primarily through the Bureau of Indian Affairs (BIA), the
day-to-day responsibility for processing, reviewing, and deciding on
applications to take land in trust. Written applications are submitted to
BIA regional offices and local agency offices across the country.4 In most
cases, the decision maker for on-reservation applications is the
superintendent of the local agency office. For off-reservation
applications, the decision maker is the applicable BIA regional director.
However, under Interior's policy, the Assistant Secretary for Indian
Affairs is to review all off-reservation applications and provide input
before the regional director issues a decision. On- and off-reservation
applications are generally processed by a combination of BIA realty staff
at BIA's Central Office in Washington, D.C., a BIA regional office, and a
local agency office. Decisions by BIA superintendents and regional
directors are not Interior's final position until the administrative
appeals process has been exhausted. Decisions may be appealed to the
applicable BIA regional director or to Interior's Board of Indian Appeals
(IBIA), depending on who the decision maker was.5 Ultimately, disputes
over taking land in trust may be litigated in federal court.
To be able to provide agencywide data on the processing of land in trust
applications, BIA created a land in trust database in the summer of 2004.
Each BIA office is responsible for entering key dates and information
about the processing of their land in trust applications, such as the date
comments were requested and received from state and local governments and
the date of BIA's decision. By the end of fiscal year 2005, BIA officials
had entered information on over 1,000 applications into the database. The
applications cover tracts of land that are less than an acre to tracts
that are thousands of acres, located in both rural and urban areas. The
database shows most of the applications are pending. However, the
information in the database is not complete or accurate enough to use in
describing the status or condition of applications overall. Therefore, to
provide such a description for this report, we primarily relied upon
applications with decisions in fiscal year 2005, as we were able to verify
the accuracy and completeness of these applications by reviewing the
actual documents in select BIA offices across the country. In this manner
we were able to ensure that we had the complete population for
applications with decisions in fiscal year 2005. In fiscal year 2005, BIA
superintendents and regional directors issued decisions on 87 applications
covering more than 5,800 acres for 31 tribes or their members in 12
states. Since 1934, the total acreage held in trust by the federal
government for the benefit of tribes and their members has increased from
about 49 million to about 54 million.
The fiscal year 2006 House Appropriations Committee Report for Interior's
appropriation bill directed GAO to study BIA's procedures and practices in
implementing the land in trust regulations.6 In response to this direction
and subsequent discussions with congressional offices, we (1) assessed the
extent to which BIA's processing of land in trust applications followed
its regulations, (2) determined the extent to which applications were
processed in a timely manner, and (3) identified any state and local
government concerns about land in trust applications and how they were
addressed in BIA's decision-making process. In addition, we are providing
information on the problems we encountered with the data BIA collects on
the processing of land in trust applications. We also agreed to review the
Department of the Interior's Bureau of Land Management's process for
issuing allotments of land to individual Indians out of the public domain.
We will report on that issue separately because it involves a different
agency and different legislative authority.
In conducting our work, we reviewed applicable laws, regulations, and land
in trust applications. We reviewed applications and interviewed BIA realty
staff at six regional offices-Eastern, Midwest, Northwest, Pacific,
Southern Plains, and Southwest-and eight agency offices-Blackfeet
(Browning, Montana), Chickasaw (Ada, Oklahoma), Great Lakes (Ashland,
Wisconsin), Horton (Horton, Kansas), Minnesota (Bemidji, Minnesota),
Siletz (Siletz, Oregon), Warm Springs (Warm Springs, Oregon), and Wind
River (Fort Washakie, Wyoming). We visited all of the BIA offices with 10
or more land in trust applications decided in fiscal year 2005. From the
offices we visited, we collected 67 of the 87 discretionary nongaming land
in trust applications decided in fiscal year 2005, or 77 percent. BIA
staff from the locations we did not visit made copies of an additional 18
applications and mailed them to us. We obtained the remaining two
applications from the IBIA. We analyzed these applications in the
following ways:
o To determine how BIA processed land in trust applications, we reviewed
the 87 applications with decisions in fiscal year 2005, and we compared
how the applications were processed with the requirements in the
regulations.
o To determine whether applications were processed in a timely manner, we
compared the processing times for (1) 87 applications with decisions in
fiscal year 2005 and (2) 28 complete off-reservation applications awaiting
comments from the Office of the Assistant Secretary for Indian Affairs to
120 business days, or about 6 months, the time frame BIA is considering
imposing for making decisions on on- and off-reservation land in trust
applications. In addition, we compared the length of time that 34 appealed
decisions had been awaiting resolution by BIA regional directors with the
current 60-day time frame set forth in the regulations on appeals. We also
interviewed BIA officials and tribal representatives involved in the
process to obtain their views on the time taken for processing
applications.
o To determine whether state and local governments had any concerns about
land in trust applications, we analyzed the content of comments made by
these governments for the 87 applications with decisions in fiscal year
2005. We also reviewed the issues raised by state and local governments in
all 45 appeals pending as of September 30, 2005-34 appeals pending before
BIA regional directors and 11 appeals pending before the IBIA. In
addition, we obtained the perspectives of representatives of the National
Governors Association and the National Association of Counties.
o To determine the accuracy and reliability of BIA's land in trust
database, we compared the information in the database with other data
sources: spreadsheets used by a number of the BIA offices we visited to
track land in trust applications, BIA realty reports prepared under the
Government Performance and Results Act, and BIA annual acreage reports. We
also discussed the development of the current database and the proposed
redesign of the database with staff in the Office of the Chief Information
Officer within the Office of the Assistant Secretary for Indian Affairs.
A more detailed description of our objectives, scope and methodology can
be found in appendix I. We performed our work between August 2005 and June
2006 in accordance with generally accepted government auditing standards.
Results in Brief
BIA generally followed its regulations for processing land in trust
applications. In processing these applications, BIA realty staff notified
and obtained comments from affected state and local governments, ensured
that required environmental reviews were performed, and obtained title
reviews from Interior's Office of the Solicitor. After reaching its
decision, BIA normally provided a decision letter to the applicant and the
affected state and local governments documenting BIA's consideration of
the applicable criteria in the regulations. Decision letters also included
an explanation of the appeals process. Generally all of the 87
applications with decisions in fiscal year 2005 were approved, except for
1 application that was denied based on failure to meet the criteria and 6
applications that were closed by BIA because the applications were
incomplete. While BIA realty staff generally followed the necessary
procedural steps, the criteria in the regulations provide BIA's decision
makers with wide discretion in deciding to take land in trust. Most of the
criteria are not specific and do not offer clear guidelines for what
constitutes an unacceptable result. For example, one criterion requires
BIA to consider the impact of lost tax revenues on state and local
governments. However, there is no guidance on how to evaluate lost tax
revenue, such as comparing it with a county's total budget or evaluating
its impact on particular tax-based services. In addition, there is no
threshold for what might constitute an unacceptable level of lost tax
revenue-an amount that might lead BIA to deny an application. BIA is
considering revisions to the regulations that states that applications
will generally be approved "...unless the record shows clear and
demonstrable evidence that the trust acquisition will result in
significant negative impact to the environment or to the local
government." These revisions would make BIA's decision-making process more
transparent. While we found that BIA procedurally followed the regulations
for the 87 applications with decisions in fiscal year 2005, there was an
issue that is not specifically addressed in the regulations that raised a
concern at one office. We found that one BIA agency office did not
document its decision-making process, including the consideration of the
criteria in the regulations, despite BIA's policy to do so.
While BIA's current regulations do not set a specific time frame for
making an initial decision on an application, BIA is considering revisions
to the regulations that would impose a time frame of 120-business days, or
about 6 months, for making a decision for both on- and off-reservation
applications once an application is complete. In addition, the existing
regulations on appeals of a decision set forth a 60-day time frame for
resolution "...after all time for pleadings (including all extensions
granted) has expired." Based on these time frames, it appears that many
land in trust applications have not been decided in a timely manner.
First, for the 87 applications with decisions in fiscal year 2005, the
median time from the start of the application until BIA officials made a
decision was 1.2 years. The processing times ranged from a low of 58 days
to a high of almost 19 years. At least 10 of the 87 applications with
decisions in fiscal year 2005 were decided within the time frame under
consideration; however, a number of applications took an exceedingly long
time because of delays on the part of either the applicant or BIA. Second,
28 complete off-reservation applications had been pending review at the
Central Office an average of 1.4 years from the date of the draft decision
to September 30, 2005. Twenty-two of these 28 off-reservation applications
had not been processed in a timely manner, as of September 30, 2005, based
on the time frames under consideration. Third, 34 appealed decisions
awaiting resolution by a BIA regional director have been pending an
average of 2.8 years from the time of the decision to September 30, 2005.
When opposing land in trust applications or appealing decisions, state and
local governments principally cited concerns about lost tax revenues and
jurisdictional issues. In commenting on applications prior to decisions
made in fiscal year 2005, state and local governments opposed 12 of 87
applications, or about 14 percent, mainly citing concerns about lost tax
revenues and jurisdictional issues. For example, the state of Kansas
raised questions about who would be responsible for providing road
maintenance and fire protection if the land was taken in trust. BIA
generally reviewed the comments it received on pending applications and
considered them in its decision-making process. Ten of the 12 applications
with some initial opposition were approved by BIA in its decision in
fiscal year 2005; the remaining 2 applications were closed by BIA because
the applications were incomplete. State and local governments have also
opposed some applications through administrative appeals, again primarily
citing lost tax revenues and jurisdictional issues. As of the end of
fiscal year 2005, a total of 45 decisions were pending review on appeal,
including 5 appealed decisions from fiscal year 2005. Although we found
little opposition to the applications with decisions in fiscal year 2005,
some state and local government representatives we contacted regarding
land in trust issues said that (1) they did not have access to sufficient
information about the land in trust applications to provide comments and
(2) the 30-day comment period was not sufficient time in which to provide
comments. For example, according to some state and local governments,
BIA's notifications on pending applications provide no information about
the tribe's proposed use of the land once it is approved for trust status.
Interior is considering revisions to the regulations that would provide
state and local governments with additional information about the
applications and 60 and 90 days, respectively, to provide comments for on-
and off-reservation applications.
During the course of our review, we found the data in BIA's land in trust
database, which was implemented agencywide in August 2004, were frequently
incomplete and inaccurate. As a result, the data are of questionable value
to Interior and BIA management; we did not rely on these data. The
database was hastily developed and deployed agencywide in the summer of
2004 without defining and documenting user requirements and clearly
defining data fields. In a June 2005 memo, almost a year after the system
was put in place, BIA's Deputy Director for Trust Services noted that only
4 of the possible 11 regions had entered any data into the database. The
memo directed each BIA regional and agency office to enter all of its land
in trust applications into the database within 5 days. By the end of
fiscal year 2005, the database contained information on more than 1,000
applications, but we still found that not all of the applications had been
entered into the database. Furthermore, the status of an application, as
either approved, denied, or pending, was frequently incorrect in the
database. While some of these errors were simply data entry errors, others
were the result of systemic problems, such as the lack of common
definitions for key terms. A properly designed and implemented database
with accurate data would provide BIA with important information to help
better manage the land in trust process. BIA has already recognized these
shortcomings and initiated an effort to reevaluate and redesign the
database, as necessary.
We are recommending that the Secretary of the Interior direct BIA to (1)
reinforce the requirement that all decisions be fully documented; (2)
adopt revisions to the regulations under consideration to include specific
time frames for the decision-making process, as well as guidelines for
providing state and local governments with more information and a longer
period of time to provide meaningful comments on the applications; and (3)
implement appropriate internal controls to help ensure the accuracy and
reliability of the data in the land in trust database. In commenting on a
draft of this report, Interior agreed with our findings, conclusions, and
recommendations. Interior commented that BIA is working to address the
recommendations and that a corrective action plan will be developed and
implemented in response to the report. Specifically, BIA is taking steps
to finalize the regulations under consideration. After the regulations are
completed, BIA will develop a handbook to ensure consistent application of
the regulations. The handbook will also include specific internal control
procedures to ensure all decisions are properly and completely documented,
as well as entered into the land in trust database accurately and in a
timely manner. See appendix VI for Interior's written comments.
Background
Since the early days of American colonization, Indian lands have
diminished significantly, in large part because of federal policy. By
1886, Indian lands had been reduced to about 140 million acres, largely on
reservations west of the Mississippi River. Federal policy encouraging
assimilation in the late 1800s and early 1900s further reduced Indian
lands by two-thirds, to about 49 million acres by 1934. However, in 1934,
the enactment of the Indian Reorganization Act changed the government's
Indian policy to encourage tribal self-governance.7 Section 5 of the act
provided the Secretary of the Interior the discretionary authority to take
land in trust on behalf of federally recognized tribes or their members.
Specifically, section 5 states:
Since 1934, the total acreage held in trust by the federal government for
the benefit of tribes and their members has increased from about 49
million to about 54 million acres.8
Within Interior, BIA is responsible for the administration and management
of all land held in trust by the United States and for serving the 561
federally recognized tribes and about 1.9 million individual Indians and
Alaska Natives.9 The Assistant Secretary for Indian Affairs has primary
responsibility for BIA while the BIA Director oversees its day-to-day
operations. BIA has over 9,600 staff and an annual budget of about $2.39
billion. BIA's responsibilities include the administration of education
systems, social services, and natural resource management, among other
things. BIA is organized by 12 regions with 58 underlying agencies located
throughout the country. One region covers the state of Alaska, and the
remaining 11 cover the continental United States.10 (See fig. 1.) A
regional director is in charge of each regional office and a
superintendent is in charge of each agency office.
Figure 1: BIA Regions in the Continental United States and the Number of
Tribes They Serve
Note: BIA's Western Region serves the Hopi Indian Reservation, which is
located within the boundaries of the Navajo Region. Also, one of the
tribes served by BIA's Northwest Region-the Metlakatla Indian Community of
the Annette Island Reserve-is located in Alaska.
The Office of Trust Services, which includes BIA's Central Office realty
staff, provides overall guidance for the land in trust program as one of
its many responsibilities.11 Real estate services staff, about 390 total
with an annual budget near $41 million, are located at BIA offices across
the country and are responsible for processing land in trust applications,
as well as other functions, including property management, land leasing
and title activity, and lease compliance. Real estate services staff are
under the line authority of regional directors and agency superintendents.
In 1980, Interior established a regulatory process intended to provide a
uniform approach for taking land in trust.12 For on-reservation
applications under the Secretary's discretionary authority, the deciding
official must consider
o the statutory authority to take land into trust;
o the need for the land;
o the purpose of acquiring the land;
o for individual Indians, the amount of land already held in trust and the
individual's need for assistance in handling business matters;
o the implications for state and local governments of removing land from
the tax rolls;
o the potential jurisdictional concerns of state and local governments;
o BIA's ability to discharge its duties on the newly acquired land; and
o environmental compliance, particularly with the National Environmental
Policy Act (NEPA).
For off-reservation applications under the Secretary's discretionary
authority, BIA must also place greater weight on the concerns of state and
local governments as the distance of the land from the tribe's reservation
increases and review a business plan if the land is to be acquired for
business purposes. Once these steps have been completed, BIA provides a
decision to the applicant and affected parties. Several additional steps
follow, including publication of the decision in the Federal Register or a
local newspaper, and possible administrative appeals and litigation.
In 1988, about 8 years after the regulations for taking land in trust were
issued, the Indian Gaming Regulatory Act was enacted.13 The act provided
the statutory basis for the operation and regulation of certain gaming
activities on Indian lands. It generally prohibits gaming activities on
Indian trust lands acquired by the Secretary after October 17, 1988, the
date the act was signed into law. However, the act does provide several
exceptions that allow gaming on lands acquired in trust after its
enactment.14 For fiscal year 2005, gaming revenues from Indian gaming
facilities totaled $22.6 billion.
On applications for land in trust, applicants must declare the anticipated
use of the property, particularly whether the property will be for gaming
or nongaming purposes. Applications to take land in trust for gaming
purposes are handled by the Office of Indian Gaming Management within the
Office of the Assistant Secretary for Indian Affairs. In September 2005,
Interior's Office of the Inspector General reported on the processing of
applications for land in trust for gaming purposes.15 The Inspector
General reported that while the review and approval process for gaming
applications was "sufficient," the process took an average of 17 months-or
about 1.4 years-from the time BIA received the application until its final
action. Furthermore, the Inspector General reported 10 instances where
tribes had converted lands acquired for nongaming purposes to gaming
without first getting the necessary approvals pursuant to the Indian
Gaming Regulatory Act. Interior subsequently determined that five of these
conversions were eligible for gaming under the Indian Gaming Regulatory
Act, one was not, and four were still under review at the time of the
Inspector General's report. The gaming facility on the one ineligible
conversion was later closed.
Our report focuses on discretionary nongaming land in trust applications,
which fall into three categories-on-reservation, off-reservation, and
"gaming related" applications. The gaming related category was added in
2001, and it refers to applications involving support facilities for
gaming establishments, such as parking lots and maintenance buildings, but
not the actual gaming activity itself. By directive of the Assistant
Secretary for Indian Affairs, each category of applications is processed
slightly differently or by a different office. In most cases, the decision
maker for on-reservation applications is the superintendent of the local
BIA agency office. For the remaining on-reservation applications and for
the off-reservation applications, the decision maker is the applicable BIA
regional director. Off-reservation applications are processed using the
criteria in 25 C.F.R. S:151.11 and the Assistant Secretary for Indian
Affairs is to review the draft decision and supporting materials and
provide input before the regional director issues a decision. On- and
off-reservation applications are generally processed by a combination of
BIA realty staff at BIA's Central Office in Washington, D.C.; a BIA
regional office; or a local BIA agency office. Finally, gaming-related
applications are processed by the Office of Indian Gaming Management in
Washington, D.C., and the decision maker is the Assistant Secretary for
Indian Affairs.
During the land in trust process, administrative appeals must be filed
within 30 days of receipt by the applicant of the notice of the decision,
and parties have at least 30 days to file judicial challenges after the
decision is published in the Federal Register or a local newspaper.
Administrative appeals can be filed with the applicable BIA regional
director or the IBIA, depending on who the BIA deciding official was.
First, if a superintendent was the deciding official, parties can appeal
the decision to a regional director. The regional director then reviews
the application's administrative record and any other available
information and renders a ruling. The regulations governing appeals state
that a regional director must make a ruling within 60 days after all times
for pleadings, including extensions, have expired.16 The regional
director's ruling can then be further appealed to the IBIA, the
administrative review body at Interior. The IBIA's ruling is the final
position for Interior. Second, if a regional director was the decision
maker, parties may appeal the decision to the IBIA.17 Once a decision is
final for Interior, it is published in the Federal Register or a local
newspaper and parties have at least 30 days to file judicial challenges to
the decision. Appendix II provides an overview of the land in trust
process.
Interior is considering revisions to the land in trust regulations, among
a number of other possible regulation changes.18 Preliminary revisions
under consideration were distributed to tribes on December 27, 2005.
Changes are under consideration throughout the regulations, including the
institution of a trust acquisition request form, new criteria for
considering on- and off-reservation acquisitions, extended state and local
government comment periods, and time frames for issuing a decision.
Although Interior held tribal consultations in February and March to
discuss draft regulations, the land in trust regulations were not part of
the meetings' agendas. Interior set the date of March 31, 2006, for tribes
to submit comments on the proposed changes. According to the Associate
Deputy Secretary, Interior is planning to hold consultation meetings in
the last quarter of calendar year 2006, followed by publishing a proposed
rule in the Federal Register for public comment.
BIA Generally Followed the Regulations for Taking Land in Trust, and These
Regulations Provide BIA with Wide Discretion
BIA generally followed its regulations for processing the 87 land in trust
applications with decisions in fiscal year 2005, such as properly
notifying affected state and local governments and providing time for
comments and appeals. The criteria in the regulations for taking land in
trust are not specific and do not include guidelines for how BIA should
apply them. Apart from the regulations, we found one BIA agency office did
not properly document its decision-making process, including the
consideration of the criteria in the regulations. Furthermore, we found
that two separate agreements between groups of tribes and two BIA regional
offices, designed to expedite the processing of certain applications, have
raised concerns and were under investigation by Interior's Office of
Inspector General at the time of our review.
BIA Generally Followed the Regulations for Taking Land in Trust
BIA generally followed its regulations for the 87 land in trust
applications with decisions in fiscal year 2005. Specifically, BIA
o notified affected state and local governments and provided a 30-day
comment period for them to submit information on potential tax and
jurisdictional impacts;
o obtained a preliminary title opinion from Interior's Office of the
Solicitor;
o usually issued a decision letter to the applicant and interested parties
based on an evaluation of the criteria in the regulations, including
determining compliance with NEPA requirements,
o provided 30 days for the applicant or interested parties to appeal the
decision and an explanation of the appeals process in its decision letter;
and,
o published a notice of its decision in the Federal Register or local
newspaper providing at least 30 days for interested parties to seek
judicial review.
Of these 87 decisions, 80 were approvals, and 7 were denials. The
Superintendent of the Wewoka Agency, Eastern Oklahoma Region, denied one
application because the applicant failed to meet the criteria. The
Superintendent of the Horton Agency, Southern Plains Region, officially
withdrew six applications, in effect denying them, because the tribe did
not submit additional necessary information for several years.
Applicants and state and local governments can file appeals and judicial
challenges if they believe that BIA failed to properly follow the
regulations. Eight of the 87 decisions in fiscal year 2005 had been
appealed as of September 30, 2005. Three of the appeals were not filed
within the required 30-day appeal period; therefore, they were dismissed
as untimely. The remaining five appeals were pending as of September 30,
2005. The appellants generally asserted that BIA did not adequately
consider tax and jurisdictional impacts. While these most recent appeals
were pending at the end of the fiscal year 2005, some other appeals of
decisions from fiscal year 2004 are illustrative in demonstrating how the
appeal process works. For example, the local government of Union Township,
in the state of Michigan, appealed three land in trust applications to the
Midwest Regional Director, asserting that BIA had not addressed, among
other things, the township's jurisdictional and land use concerns in its
decision. The township argued that the proposed acquisition would create
"an island (of trust land) in the middle of the township in a prime
commercial corridor" that might be subject to different zoning and
building regulations and that this might create "serious difficulties for
rational land use planning." BIA's decision stated only that primary law
enforcement and fire protection would be provided by the tribe and that
the tribal council has good relations with local planning officials and
made no mention of the township's concerns. The Midwest Regional Director
agreed that the decision had not adequately addressed the issues raised by
Union Township and returned the applications to the Superintendent of the
Michigan Agency to better address those concerns. In addition, the Midwest
Regional Director determined that the Michigan Agency had not provided
sufficient information on environmental compliance.
Criteria in the Regulations Provide BIA Wide Discretion Because They Are
Not Specific and Do Not Include Guidelines for How BIA Should Apply Them
In general, we found that the criteria in the regulations provide BIA with
wide discretion in deciding to take land in trust, primarily because they
are not specific, and BIA has not provided clear guidelines for applying
them. For example, one criterion requires BIA to consider the impact of
lost tax revenues on state and local governments. However, the criterion
does not indicate a threshold for what might constitute an unacceptable
level of lost tax revenue and, therefore, a denial of an application.
Furthermore, BIA does not provide guidance on how to evaluate lost tax
revenue, such as comparing lost revenue with a county's total budget or
evaluating the lost revenue's impact on particular tax-based services,
such as police and fire services. In addition, the criterion does not
require deciding officials to consider the cumulative impact of tax losses
resulting from multiple parcels taken in trust over time-a practice some
state and local governments would like to see instituted.19 Table 1 shows
our analysis of the criteria.
Table 1: Analysis of the Eight Criteria BIA Considers in Making Its
Decision for On-Reservation Land in Trust Applications
Criteria GAO's analysis of the criteria
The existence of statutory Criterion is clear; BIA must have
authority for the acquisition statutory authority for taking the land
and any limitations contained in in trust. In most cases, the statutory
such authority. authority is the general authority in
Section 5 of the Indian Reorganization
Act.
The need of the individual For tribal applications, 25 C.F.R.
Indian or the tribe for S:151.3(a)(3) provides some additional
additional land. clarification on need and purpose by
stating that Secretary must determine
that the acquisition is necessary to
facilitate tribal self-determination,
economic development, or Indian housing.
However, the regulations do not define or
provide guidance on the type of need to
be considered and how the level of need
should be evaluated.
The purposes for which the land Of the three categories mentioned in 25
will be used. C.F.R. S:151.3(a)(3) for tribal
applications, Indian housing is clear,
but self-determination and economic
development are broad categories and open
to interpretation. The regulations do not
provide any guidance on how the criterion
applies to applications from individual
Indians.
If the land is to be acquired No guidance in the regulations on how the
for an individual Indian, the amount of land owned by an individual
amount of trust or restricted Indian should be weighted against their
land already owned by or for need for assistance in handling their
that individual and the degree business matters.
to which the individual needs
assistance in handling business
matters.a
If the land to be acquired is in No guidance in the regulations on what
unrestricted fee status,b the constitutes an acceptable level of tax
impact on the state and its loss or how to evaluate the tax loss for
political subdivisions resulting approving an application.
from the removal of the land
from the tax rolls.
Jurisdictional problems and No guidance in the regulations on what
potential conflicts of land use types of jurisdictional and land use
that may arise. concerns might warrant denial of the
application.
If the land to be acquired is in No guidance in the regulations on how BIA
fee status, whether BIA is should evaluate its ability to discharge
equipped to discharge the additional duties.
additional responsibilities
resulting from the acquisition
of the land in trust.
The extent to which the No guidance provided on the amount or
applicant has provided type of information needed by BIA to make
information that allows the the required environmental
Secretary to comply with determinations.
environmental requirements,
particularly NEPA.
Source: GAO analysis of the criteria in 25 C.F.R. S: 151.10.
aUnder BIA's current regulations, restricted status refers to land held in
title by an individual Indian or tribe that can only be alienated or
encumbered by the owner with the approval of the Secretary of the
Interior.
bUnder BIA's regulation revisions under consideration, fee (or "fee
simple") land is defined as meaning that the owner has unconditional power
of disposition over the land.
In addition, the criteria are not pass/fail questions and, therefore, the
responses to the criteria do not necessarily result in an approval or
denial of an application. For example, should BIA decide that an
application has "failed" to meet one or more of the criteria, the BIA
deciding official still has discretionary authority under the regulations
to approve the application. However, we found no instances in which an
official decided that an applicant did not meet one or more criteria but
still approved the application.
Revisions to the regulations under consideration make it clearer that,
because it is difficult to develop specific thresholds for most criteria,
BIA intends to assume that most on-reservation applications will
eventually receive approval unless a major failing is evident, such as an
environmental hazard on a property that would leave the federal government
liable to environmental clean-up costs. Conversely, the draft changes make
it more difficult to approve off-reservation applications.20
One BIA Office Did Not Properly Document Its Decisions and Two Other
Offices Have Entered Into Agreements with Tribes That Have Raised Concerns
While we found that BIA procedurally followed the regulations for the 87
applications with decisions in fiscal year 2005, there were two areas not
specifically addressed in the regulations that raised concerns.
o First, BIA's Fort Peck Agency, in the Rocky Mountain Region, did not
document its decision-making process for two applications decided in
fiscal year 2005, including the consideration of the criteria in the
regulations. Although not in the regulations, BIA policy calls for offices
to include an analysis of each of the criteria in their decision letters
for approving or denying applications. This policy stems from a 1999 IBIA
statement that failure to provide an analysis of the criteria to
interested parties would potentially lead to the IBIA vacating future
decisions.21 BIA realty staff at the Fort Peck Agency were unable to
provide us with documentation showing they considered the criteria for two
applications approved in fiscal year 2005. The Fort Peck Agency reported
it also has some pending applications as of the end of fiscal year 2005.
By not documenting its consideration of the applicable criteria, the Fort
Peck Agency is not fully disclosing its rationale for its decisions and
is, therefore, making the process less transparent.
o Two separate agreements between groups of tribes and two BIA regional
offices designed to expedite the processing of certain applications were
under investigation by Interior's Office of Inspector General at the time
of our review. Specifically, agreements signed by tribes and BIA regional
offices in the Pacific and Midwest regions created land in trust
consortiums. In both cases, consortium tribes agreed to use a portion of
their budget to pay for additional staff positions at BIA dedicated to
processing consortium members' land in trust applications.22 According to
staff with the Inspector General's office, the Pacific Region's land in
trust consortium agreement was not reviewed or approved by Interior's
Office of the Solicitor before BIA entered into it. The staff further
stated that the Midwest Region's agreement, created several years after
the Pacific Region's agreement, did undergo review and approval by the
Solicitor's Office. Interior's Office of Inspector General was conducting
an investigation of these consortium arrangements to determine whether the
tribes' allocation of money to fund the consortiums was legally authorized
and whether BIA was favoring land in trust applications from those tribes.
Many Land in Trust Applications Have Not Been Processed in a Timely Manner
While BIA's current regulations do not set a specific time frame for
making an initial decision on an application, BIA is considering revisions
to the regulations that would impose a time frame of 120-business days, or
about 6 months, for making a decision for both on- and off-reservation
applications once an application is complete. According to our analysis of
three categories of land in trust applications, BIA did not decide most
applications within the proposed time frames the agency is now
considering, or within existing time frames for appeals. First, for the 87
applications with decisions in fiscal year 2005, the median length of time
from submission of an application to a BIA decision was a little over 1
year. Second, the 28 complete off-reservation applications currently
awaiting review have been at the BIA Central Office for an average of 1.4
years, as of the end of fiscal year 2005. Finally, for applications on
appeal, current federal regulations call for regional directors to rule on
an appeal within 60 days after all time for pleadings has expired. For the
34 appealed applications awaiting a BIA decision that we reviewed, the
average time pending from the BIA decision to the end of fiscal year 2005
was almost 3 years.
Some Applications with Decisions in Fiscal Year 2005 Were Decided in a
Timely Manner, While Others Took an Exceedingly Long Time
While the current land in trust regulations do not provide a time frame
for BIA's review of land in trust applications, BIA is considering
revisions to the regulations that would establish a time frame of 120
business days, or about 6 months, for BIA to issue a decision once a
complete application has been assembled. For the 87 applications with
decisions in fiscal year 2005, the median length of time from submission
of an application to a BIA decision was 1.2 years, twice as long as the
proposed time frame.23 Using the time frame under consideration as a
guide, and allowing 30 days for state and local governments to provide
comments, we determined that at least 10 of the 87 applications we
reviewed were processed in a timely manner. Additional applications may
have been decided in a timely manner, but the files we reviewed did not
clearly document the date when an application was complete. Figure 2 shows
the amount of time BIA took to process applications with decisions in
fiscal year 2005.
Figure 2: Processing Times for Land in Trust Applications with Decisions
in Fiscal Year 2005
Table 2 shows the processing times for the 87 applications we reviewed by
region. As the table shows, the shortest processing time-58 days-occurred
in the Midwest Region, while the longest processing time-almost 19
years-occurred in the Pacific Region. (App. III provides additional
details on the 87 land in trust applications with decisions in fiscal year
2005.)
Table 2: Processing Times for Land in Trust Applications with Decisions in
Fiscal Year 2005 by BIA Region
Processing
time in years
Region Number of Shortest application Longest Median
applications processing time application processing
processed processing time
time
Eastern 14 0.5 2.8 1.0
Oklahoma
Eastern 7 1.2 1.5 1.2
Midwest 16 0.2 12.8 3.4
Northwest 11 0.4 8.2 6.1
Pacific 9 0.6 18.7 1.5
Rocky 20 0.6 1.3 1.0
Mountain
Southern 10 1.3 14.0 3.5
Plains
Total 87 0.2 18.7 1.2
Source: GAO analysis of land in trust applications with decisions in
fiscal year 2005.
According to our analysis of BIA files, processing times for applications
with decisions in fiscal year 2005 were lengthened by inaction on the part
of either the applicant or BIA. For example, according to BIA files, the
Pacific Region application that took almost 19 years to process was
submitted in 1986 by an individual tribal member to place 5.42 acres of
land in trust. BIA found that the application lacked required documents
and, therefore, could not process the application until it received these
documents. The applicant did not provide the necessary documents until
1991. While the application was deemed complete in 1991, according to our
file review, the regional office did not issue a notice to interested
parties of the proposed trust acquisition until 2002. However, in the same
year, the BIA Pacific Regional Director ordered processing stopped on the
application because the applicant's tribal affiliation was uncertain. BIA
and the applicant worked to resolve this issue, and BIA approved the
application on February 25, 2005, almost 19 years after its submission.
While the BIA file stated clearly that processing on the file was halted
initially due to inaction on the part of the applicant, it did not provide
an explanation regarding why the application was not acted upon by the BIA
from 1991 to 2002. In other cases processed at the Horton Agency Office in
Kansas, our file review showed several applications were closed by the
agency in 2005 because of inaction on the part of the tribe; one of these
applications had been submitted in 1991. BIA officials also noted that
access to the Internet would increase their ability to process land in
trust applications in a timely manner.24
Off-Reservation Applications Have Not Been Processed in a Timely Manner
Off-reservation applications awaiting review by BIA's Central Office have
not been processed in a timely manner. Again, BIA is considering imposing
a 120-business day time frame, or about 6 months, for issuing a decision
on off-reservation applications once an application is complete. According
to BIA Central Office staff, there was nearly a 2-year period between
December 2003 and November 2005 when no off-reservation land in trust
applications were cleared by the Assistant Secretary.25 On average, the 28
off-reservation applications we reviewed had been pending in the Central
Office for 1.4 years by the end of fiscal year 2005-almost three times
longer than the 6-month time frame under consideration. Using the time
frame under consideration as a guide, and allowing 30 days for state and
local comments, we found that at least 22 of the 28 off-reservation
applications pending at the Central Office were not processed in a timely
manner. The most recent application forwarded to the Central Office had
been pending for about 1 month, while the oldest application had been
pending for over 3 years.
This analysis is based solely on the time the applications were pending at
the BIA Central Office and does not include the time the applications
spent at a BIA agency or regional office before they were forwarded to the
Central Office. In total, from the time of their initial submission at a
BIA agency or regional office until the end of fiscal year 2005, these
applications had been pending an average of 4.6 years. These applications
originated from 17 tribes covering 1,832 acres of land in 11 states,
primarily in BIA's Northwest and Southern Plains Regions. (See app. IV for
more detailed information on these 28 applications.)
Turnover in the position of the Assistant Secretary for Indian Affairs may
have contributed to the length of time involved in processing
off-reservation applications. The current Central Office review process
was instituted in February 2002. According to the February 2002 memorandum
instituting this process, "[e]very effort will be made to complete the
overview within one week." The Assistant Secretary who instituted this
process held the position for about 1-1/2 years before retiring in
December 2002. Since then, the position of Assistant Secretary of Indian
Affairs has been held by three different people: an acting Assistant
Secretary; a permanent Assistant Secretary; and, since February 2005, an
Associate Deputy Secretary at Interior has served as the Acting Assistant
Secretary.
It Appears that Appeals Have Not Been Resolved in a Timely Manner by BIA
Regional Directors
Federal regulations require regional directors to "render written
decisions in all cases appealed to them within 60 days after all time for
pleadings (including all extensions granted) have expired."26 According to
our review of 34 appealed decisions awaiting resolution by a BIA regional
director, the average time pending from the time of the decision to the
end of fiscal year 2005 was 2.8 years. While our file review did not allow
us to determine at what point "all time for pleadings" had expired in each
case, it appears, based on the lengthy time period, that none of the 34
appealed decisions awaiting a regional director's ruling were resolved in
a timely manner. However, in cases in which a ruling has not been rendered
by a regional director within the required time frame, the regulations
provide a process to appeal the inaction of the regional director to the
IBIA.27 Under these circumstances, the IBIA has stated that it could use
its authority to order a Regional Director to issue a final decision on a
tribe's trust acquisition request.28 Typically, however, the IBIA has
instead ordered the regional director to provide a status report on the
requested action. If satisfied that the matter is being addressed or has
already been resolved by the regional director, the IBIA has dismissed the
appeal.29 Most of the appealed decisions we reviewed originated from BIA's
Southern Plains Region. (App. V provides additional details on these
applications.)
When applications are not processed in a timely manner because of delays
by BIA or the applicant, information in the applications can become
outdated, particularly environmental assessments, comments from state and
local governments, and tax data. When this happens, BIA must devote
additional resources to obtain updated information and reprocess the
applications-an inefficient and time-consuming process for BIA, Indian
applicants, and state and local governments. The applicants also bear a
direct financial cost because they continue to pay property taxes on the
land while BIA is processing their applications. The applicant may face
additional financial burdens due to processing delays, such as the
opportunity costs associated with delayed economic development activities.
Citing Taxes and Jurisdictional Issues, State and Local Governments
Opposed Applications in Fiscal Year 2005
When opposing land in trust applications or appealing decisions, state and
local governments principally cited concerns about lost tax revenues and
jurisdictional issues. In commenting on applications prior to decisions
made in fiscal year 2005, state and local governments opposed 12 of 87
applications, or about 14 percent, mainly citing concerns about lost tax
revenues and jurisdictional issues. State and local governments have also
opposed some applications through administrative appeals, again primarily
citing lost tax revenues and jurisdictional issues. As of the end of
fiscal year 2005, a total of 45 decisions were pending review on appeal,
including 5 decisions from fiscal year 2005. Although we found little
opposition to the applications with decisions in fiscal year 2005, some
state and local governments we contacted said (1) they did not have access
to sufficient information about the land in trust applications and (2) the
30-day comment period was not sufficient time in which to comment.
Citing Primarily Taxes and Jurisdictional Issues, State and Local
Governments Opposed Only a Small Percentage of the Applications with
Decisions in Fiscal Year 2005
For the 87 land in trust applications with decisions in fiscal year 2005,
state and local governments opposed or raised concerns-primarily involving
taxes and jurisdictional issues-on 12 applications prior to BIA's
decision. For example, the state of Kansas opposed the Kickapoo tribe's
application for placing about 75 acres in trust because trust status would
cause a loss of tax revenue, which amounted to $172 for the county in
2000. Despite the tax loss, Kansas said its local government would still
bear the cost of continuing to provide services, such as road maintenance
and fire protection. The county of jurisdiction-Brown County,
Kansas-opposed trust status, saying "...further erosion of the real estate
base is always a concern." The tribe responded in a letter to BIA in 2001,
saying it disagreed with the state's arguments. In April 2005, the
Superintendent of BIA's Horton Agency in the Southern Plains Region closed
the application because the tribe did not respond to BIA's requests for
additional information for several years.
BIA generally reviewed the comments it received on pending applications
and considered them in its decision-making process. Table 3 describes the
Indian tribe, the acreage, proposed use of land to be taken in trust, and
the tax losses state and local governments expressed concern about prior
to BIA's decision on 12 applications.
Table 3: Applications with State or Local Government Opposition Prior to
BIA's Decision in Fiscal Year 2005
Current year
dollars
Applicant County and Acreage and proposed Date Annual
state use comments tax
provided amount
Approved and not
appealed
Confederated Okanogan 40 acres for Nov. 2004 $221
Tribes of the County, undeveloped land
Colville Washington
Reservation,
Washington
Misccosukee Tribe Miami-Dade 180 acres to increase Feb. 2004 7,958
of Indians, County, land base
Florida Florida
Upper Sioux Yellow 2 acres for housing June 2002 104
Community, Medicine and governmental or
Minnesota County, institutional use
Minnesota
Approved but
subsequently
appealed
Picayune Madera County, 111.7 acres for Dec. 2001 $11,743
Rancheria of the California parking lot, road, and
Chukchansi undeveloped land
Indiansa
Prairie Band of Jackson 40 acres for Oct. 2001 63
Potawatomi County, Kansas agriculture
Nation, Kansasb
Prairie Band of Jackson 80 acres for Sept. 2000 161
Potawatomi County, Kansas agriculture
Nation, Kansasb
Prairie Band of Jackson 160 acres for Dec. 2002 312
Potawatomi County, Kansas agriculture
Nation, Kansasa
Prairie Band of Jackson 160 acres for Oct. 2001 909
Potawatomi County, Kansas agriculture
Nation, Kansasb
Santa Ynez Band Santa Barbara 6.9 acres for a June 2001 43,240
of Chumash County, cultural center,
Mission California museum, park, and
retail building
Indians of the
Santa Ynez
Reservation,
Californiaa, c
Stockbridge Shawano 404 acres for Mar. 2003 11,387
Munsee Community, County, government facilities,
Wisconsina Wisconsin housing, forestry and
restoration of land
base
Denied (closed
due to
inactivity)
Kickapoo Tribe of Brown County, 160 acres for May 2001 $793
Indians of the Kansas agriculture
Kickapoo
Reservation in
Kansas
Kickapoo Tribe of Brown County, 75.6 acres for May 2001 172
Indians of the Kansas agriculture
Kickapoo
Reservation in
Kansas
Source: GAO analysis of land in trust applications with decisions in
fiscal year 2005.
Note: The county, the state, or both entities were opposed. Also, two
additional land in trust applications from the Ho-Chunk Nation involving
land in Jackson County, Wisconsin, had initial opposition, but when the
BIA Superintendent made a decision he believed there were no
jurisdictional and potential conflicts of the land use that would arise.
These two applications are not included in the table because the
opposition was eliminated prior to BIA's decision.
aThe appeals of four decisions were awaiting resolution as of September
30, 2005. Two of the decisions were appealed to BIA regional directors,
and the other two decisions on applications by the Picayune Rancheria of
the Chukchansi Indians of California and the Santa Ynez Band of Chumash
Mission Indians of the Santa Ynez Reservation were appealed to the IBIA.
bBIA officials continued to process three applications after Jackson
County appealed the decisions of the Horton Superintendent. An agency
official said BIA continued to process the approved applications because
the county incorrectly filed the appeals with the Horton Agency rather
than the Southern Plains Region.
cThe decision on the application by the Santa Ynez Band of Chumash Mission
Indians of the Santa Ynez Reservation was appealed by citizen groups. The
IBIA ruled that the groups did not have standing to appeal the decision.
Santa Ynez Valley Concerned Citizens v. Pacific Regional Director, BIA, 42
IBIA 189 (2006).
As table 3 shows, while most lost annual tax revenue was less than $1,000,
Santa Barbara County, California, opposed the Santa Ynez Band of Chumash
Mission Indians' application for 6.9 acres to be placed in trust because
of a tax loss of about $43,000 per year. Before the decision, the county
held a public hearing in June 2004 on the environmental assessment for the
proposed trust acquisition. More than 50 speakers commented, mostly in
opposition to the application. BIA and county officials held a joint
meeting to discuss the issues the county raised. BIA ultimately approved
the trust application in January 2005, and the county did not oppose the
decision at that time. However, several citizen groups appealed the
decision, and in August 2005 the county filed a motion to intervene or
alternatively file an amicus brief. The IBIA dismissed the motion for
intervention as untimely and dismissed the citizens' appeals for lack of
jurisdiction in February 2006.30
State or Local Governments Have Also Cited Primarily Tax and
Jurisdictional Issues When Opposing BIA Land in Trust Decisions through
Administrative Appeals
As of September 30, 2005, 45 appeals were pending either before BIA
regional directors or the IBIA. All but two appeals involved decisions
approving land in trust applications, and all but three appeals were filed
by state or local governments.31 These appeals echo the tax, jurisdiction,
and other types of issues that were raised before BIA's decision. Most of
the pending appeals were made by a state or local government that
frequently or routinely appeal BIA's decisions on land in trust
applications. BIA's Southern Plains Region had the highest number of
appeals that were pending as of September 30, 2005. (See table 4.) The
appeals in the Southern Plains Region generally involve the state of
Kansas and Jackson County, Kansas.
Table 4: Number of Appeals Pending, by Region, as of September 30, 2005
BIA region Appeals awaiting rulings Appeals awaiting rulings Total
by BIA by the IBIA
regional directors
Eastern Oklahoma 0 1 1
Midwest 6 4a 10
Northwest 0 1 1
Pacific 0 2b 2
Southern Plains 28c 1 29
Western 0 2 2
Total 34 11 45
Source: GAO analysis of appeals pending at the end of fiscal year 2005.
Note: The Eastern, Great Plains, Navajo, Rocky Mountain, and Southwest
Regions did not have appeals pending as of September 30, 2005.
aIn March 2006, the IBIA affirmed the Midwest Regional Director's decision
to take the land in trust in three of these cases. Cass County, Minnesota
v. Midwest Regional Director, BIA, 42 IBIA 243 (2006). The IBIA
consolidated five appeals on three decisions into one ruling.
bIn February 2006, the IBIA dismissed the appeal of citizen groups seeking
a review of the Pacific Regional Director's decision to take land in trust
in one case. 42 IBIA 189 (2006).
cThe appeals in the Southern Plains Region generally involve the state of
Kansas and Jackson County, Kansas.
See appendix V for detailed information on the 34 appeals awaiting
resolution by a BIA regional director and table 5 for detailed information
on the 11 appeals awaiting resolution by the IBIA.
Table 5: Administrative Appeals of BIA Land in Trust Decisions Awaiting
Resolution by the IBIA as of September 30, 2005
Original land in Appellant(s) Acreage and IBIA docket
trust applicant proposed use number(s)
Ho-Chunk Nation of Sauk County, Wisconsin 5 acres for IBIA
Wisconsin continued use as 05-053-A
housing and
community center
Kickapoo Tribe of Kickapoo Tribe of 74.81 acres for IBIA
Indians of the Indians of the agriculture and 04-098-A
Kickapoo Reservation Kickapoo Reservation economic
in Kansas in Kansas development
Individual member of The applicant, an 139.73 acres; use IBIA
the Seminole Nation individual Indian not indicated 06-002-A
of Oklahoma
Minnesota Chippewa Cass County and City 0.016 acres for IBIA
Tribe (Leech Lake of Cass Lake, housing 04-120-A
Band), Minnesotaa Minnesota
IBIA
04-128-A
Minnesota Chippewa Cass County, Minnesota 0.96 acres for an IBIA
Tribe (Leech Lake office for 04-121-A
Band), Minnesotaa reservation
women's services
Minnesota Chippewa Cass County and City 0.02 acres for a IBIA
Tribe (Leech Lake of Cass Lake, tribal health 04-122-A
Band), Minnesotaa Minnesota office
IBIA
04-125-A
Pascua Yaqui Tribe Arizona State Land 436.18 acres for IBIA
of Arizona Department a government 03-067-A
offices, health
services,
education
complex, and a
park
Picayune Rancheria Madera County Board of 111.7 acres for IBIA
of Chukchansi Supervisors and the parking lot, 05-029-A
Indians of Madera County Tax road, and
California Assessor, California undeveloped land
Santa Ynez Band of Santa Ynez Concerned 6.9 acres for a IBIA 05-50-A
Chumash Mission Citizens, Preservation cultural center,
Indians of the Santa of Los Olivos, museum, park and
Ynez Reservation, Preservation of Santa retail building
Californiab Ynez, and Women's
Environmental Watch of
the Santa Ynez Valley
Swinomish Indians of Skagit County, 350 acres for a IBIA
the Swinomish Washington marina and mixed 02-102-A
Reservation, use commercial
Washington activity
Yavapai-Apache Arizona State Land 1,168.9 acres for IBIA
Nation of the Camp Department, Arizona agriculture, 04-133-A
Verde Indian Department of Water housing, and
Reservation, Arizona Resources, Salt River commercial use IBIA
Project, and Eric 04-136-A
Eberhard, Arizona
IBIA
04-134-A
IBIA
04-135-A
Source: GAO analysis of appeals of BIA land in trust decisions.
aThe decisions on the three applications by the Minnesota Chippewa Tribe
(Leech Lake Band) resulted in five appeals, which were consolidated by the
IBIA. The IBIA affirmed the Midwest Regional Director's approval of the
applications. 42 IBIA 243 (2006).
bThe decision on the application by the Santa Ynez Band of Chumash Mission
Indians of the Santa Ynez Reservation was appealed by citizen groups. The
IBIA ruled that the groups did not have standing to appeal the decision.
42 IBIA 189 (2006).
The following example illustrates the types of concerns raised on appeal.
In 2002, the state of Kansas appealed a decision by the Horton Agency
Superintendent to allow 7.85 acres in trust on the Sac & Fox reservation.
The state argued that BIA's decision (1) reduces the tax rolls by $492;
(2) violates the Tenth Amendment to the Constitution, since states
surrendered many powers to the federal government but retained residual
sovereignty; and (3) violates the Act for Admission of Kansas into the
United States because it would compel the state to relinquish its
sovereign jurisdiction over the land.32 The tribe stated that (1) Brown
County, the recipient of the $492 per year in taxes, did not file an
appeal and the amount is insubstantial; (2) the Regional Director, like
the IBIA, lacked jurisdiction to declare federal statutes
unconstitutional, and this issue has been addressed in several other
appeals to the IBIA; and (3) Kansas had accepted admission into the United
States on the condition that the federal government retained its power to
regulate Indian affairs; therefore, BIA did not infringe on the state's
sovereignty. The Southern Plains Regional Director was still considering
the appeal as of June 8, 2006.
Similar arguments about loss of tax revenues and jurisdictional issues
have been made in appeals before the IBIA. For example, Cass County and
the City of Cass Lake, Minnesota, appealed three decisions of the
Minnesota Agency Superintendent to place 1.28 acres of land of the
Minnesota Chippewa Tribe (Leech Lake Band) in trust in 2001. The land was
to be used for residential housing, women's services programs, and a
tribal health office. The county and the city said the loss of the land
would have a negative impact on the tax rolls and that the land might not
be within the reservation boundaries; consequently, the applications would
be subject to additional criteria. When the matter was appealed to the
Regional Director, he concluded that the tax loss of about $5,000 annually
was not significant and that the tribe's services to the entire community,
including non-Indians, reduced the financial burden on local
governments.33
State and Local Governments Want More Information about Applications as
Early as Possible and More Time to Comment
Some state and local government officials want more information about
applications early in the process, and they want more time to comment. In
a July 2005 paper, the National Governors Association stated that any new
regulations should include, among other things, a requirement that states
and local governments be able to review tribal submissions and evidence,
just as tribes are able to review state submissions.34 The governors also
said that language in the regulations should ensure that states have the
right to provide data challenging assertions made in the proposals to take
land in trust. According to some state and county officials, the current
process does not work well in providing them with information and an
opportunity to comment. During a meeting with staff of various state
governors, arranged by the National Governors Association, an attorney
with the South Dakota Office of the Attorney General told us that while
the governor's office receives notification of land in trust applications,
the state does not have access to a tribe's application except through a
Freedom of Information Act request, which often takes too long. He said
BIA does not consistently allow for extensions in these cases. In a
meeting with county officials arranged by the National Association of
Counties, a representative from a New York county said that BIA's process
was unfamiliar, so the state, the two counties involved, and other local
governments paid for extra legal, economic, and environmental consultants.
However, he said it was not possible for these government entities to
respond adequately to the initial BIA notice within 30 days. BIA provided
an extension of time for the county to respond.
Similarly, some state and local governments raised the following access
and timing issues in comments on the applications that we reviewed:
o In 1999, Cass County told the Minnesota Agency Superintendent that
further documentation on the application from the Minnesota Chippewa Tribe
(Leech Lake Band) was needed for the county to provide specific comments
other than the amount of taxes. The county asked for more documents under
the Freedom of Information Act and for an additional 60 days to comment
following receipt of the documents. BIA provided the documents and more
time.
o In June 2001, Santa Barbara County, California, responded to a notice of
an application that, without information regarding how the Santa Ynez Band
of Chumash Mission Indians of the Santa Ynez Reservation intended to
regulate activity on trust land, the county could only speculate that
jurisdictional and land use conflicts would arise.
o In December 2002, an assistant legal counsel to the governor of Kansas
wrote to the BIA representative in the Horton, Kansas, field office that
to effectively represent the state, it was necessary to have each tribe's
resolution plan that accompanies the initial application for land to be
taken into trust.
o Also, in a January 2005 letter, the General Counsel to the Governor of
Minnesota told BIA that it could not fully comment on an application by
the Minnesota Chippewa Tribe (Grand Portage Band) without an opportunity
to review the proposed purpose for conversion and potential uses.
In the revisions to the regulations, Interior is considering providing
some additional information to state and local governments and lengthening
the period for comments. One provision under consideration would require
that a tribe complete a form called a "request for trust acquisition." BIA
would provide the form, along with a description of the land and the
proposed use of the land, to the state and local governments having
jurisdiction. Another provision would lengthen the time period for state
and local governments to comment after BIA provided notice of an
application. The time periods would change from 30 days to 60 days for
on-reservation applications and to 90 days for off-reservation
applications.
BIA's Land in Trust Database Is Incomplete and Inaccurate, and BIA is
Planning to Redesign It
During the course of our review, we found the data in BIA's land in trust
database, which was implemented agencywide in August 2004, were frequently
incomplete and inaccurate.35 As a result, the data are of questionable
value to Interior and BIA management, and we did not rely on it. BIA has
already recognized some shortcomings and initiated an effort to
re-evaluate and redesign the database, as necessary. The database was
hastily developed and deployed without defining and documenting user
requirements throughout the agency and clearly defining data fields. Staff
with Interior's Office of Information Development said a contractor
developed the database in about a month to address the information needs
of the Deputy Assistant Secretary for Indian Affairs in the summer of
2004. In a June 2005 memo, almost a year after the system was put in
place, BIA's Deputy Director for Trust Services noted that only 4 of the
possible 11 regions had entered any data into the database, and the memo
directed each BIA regional and agency office to enter all of its land in
trust applications into the database within 5 days. By the end of fiscal
year 2005, the database contained more than 1,000 applications.
We found that not all of the applications had been entered into the
database, and the status of an application, as either approved, denied, or
pending, was frequently incorrect in the database. Specifically, we found
the following issues:
o Not all of the applications had been entered into the database.
Twenty-nine of the 87 applications with decisions in fiscal year 2005, or
33 percent, were not in the database. About half of these applications not
in the database, 13, were from the Eastern Oklahoma Region's Chickasaw
Agency. No one at the office had access to the database when we initially
inquired and, therefore, they could not enter information. Also 9
applications at the Pacific Region were not in the database, and no one
there had access when we inquired. We also found instances at the Midwest
and Southwest Regions where some pending applications had not been entered
into the database. The high rate of applications that had not been entered
into the database is one of the factors that led us to conclude that
database information was unreliable.
o Status of applications was frequently incorrect. During the course of
our review, we found that 30 of the 41 applications identified as denied
in the database were miscoded, an error rate of almost 75 percent. Most of
the remaining "denied" applications were applications that were closed by
realty staff with the Southern Plains Region's Horton Agency because the
tribal applicants had not responded for more than a year to BIA's requests
for the additional information needed to process the applications. The
applications were not processed and denied based on the criteria in the
regulations; rather, they were closed due to inactivity. However, as
currently designed, there is no category in the database to show this type
of resolution other than denied. In addition, we found that some offices
interpreted "approved" differently. For example, two agency offices in
BIA's Rocky Mountain Region used an application form that required the
agency superintendent to approve the application for filing and
processing. As defined by these offices, some applications being processed
had been "approved," but they were actually pending applications. Other
BIA offices considered an application approved when the superintendent
actually approved taking the land in trust. While some of the problems we
encountered with the status of the applications in the database were
simply data entry errors, others were the result of systematic problems,
such as the lack of common definitions for key terms.
Furthermore, at the time of our review, regional and agency realty staff
did not use the new database as the primary tool for managing their
applications. According to BIA regional and agency realty staff, they do
not use or do not like to use the database because it is cumbersome, slow,
and does not meet their needs. They continue to use their office-specific
spreadsheets to manage and track their applications. These office
spreadsheets were one of the tools we used to try and verify the
information in the database. However, trying to reconcile the office
spreadsheets with the database was difficult because the office
spreadsheets usually identified applications only by parcel name, whereas
the database identified applications with different unique identification
numbers by region, agency, and tribe.
We believe that data need to be accurate, valid, complete, consistent, and
timely enough to document performance, support decision making, and
respond to the needs of internal and external stakeholders. According to
Interior officials, the database has been used to respond to questions
about the program from various levels of management and from Congress.
Further, data quality depends on how readily users can access data, aided
by clear data definitions and user-friendly software. When significant
data limitations exist, it is important to make stakeholders and Congress
aware of the limitations so they can judge the credibility of the data for
their use. During the course of our review, BIA recognized that the
database has limitations, and it asked Interior's Office of Information
Development to improve the database. In April 2006, the Deputy Director
for Information Development conducted a 3-day workshop for program
managers on BIA's land in trust database. The session served as a basis
for making improvements and, in May 2006, the office was preparing a plan
to (1) involve regional and headquarters officials in changing the
database, (2) better define terms and fields, and (3) increase the number
of fields in the database. A properly designed and implemented database
with accurate data would provide BIA with important information to help
better manage the land in trust process.
Conclusions
The land in trust regulations were intended to provide a clear, uniform,
and objective approach for Interior to evaluate land in trust
applications. However, the regulations provide wide discretion to the
decision maker because the criteria are not specific, and BIA has not
provided clear guidelines for applying them. Given the wide discretion
that exists and the increased scrutiny that the land in trust process has
come under with the growth of Indian gaming, it is important that the
process be as open and transparent as possible. Clearly documenting each
decision and providing that information to state and local governments is
a critical component of having an open and transparent process. However,
contrary to BIA policy and admonishments from the IBIA, we found one BIA
office that did not document its consideration of the criteria in the
regulations. While this office only accounted for 2 of the 87 decisions in
fiscal year 2005, it omitted documentation of the most important part of
the process. State and local governments need information on how BIA
reaches its decisions to effectively execute their role in the process,
including holding the federal government accountable for its decisions and
having adequate information to decide whether or not to appeal a decision
if it believes that the federal government did not adequately follow the
process.
A lack of specific time frames for BIA to make decisions on land in trust
applications results in a lack of predictability about the process and
contributes to the perception, on the part of Indian applicants and state
and local governments, that the process is not open and transparent.
Lengthy application processing times can place a burden on BIA, Indian
applicants, and state and local governments. If applications are not
processed in a timely manner because of delays by BIA or the applicant,
information in the applications can become outdated, particularly
environmental assessments, comments from state and local governments, and
tax data. When this happens, BIA must devote additional resources to
obtaining updated information and reprocessing the applications-an
inefficient and time-consuming process for BIA, Indian applicants, and
state and local governments. To the extent that BIA is the cause of some
of these delays, imposing specific time frames on the decision-making
process should improve the processing of the land in trust applications.
In addition, some state and local governments have been unable to
adequately participate in the process because they did not have enough
information on the pending applications or the necessary length of time to
provide substantive comments. Interior is considering changes to the
regulations that would address these issues.
Finally, federal agencies need data that are accurate, valid, complete,
consistent, and timely enough to document performance, support decision
making, and respond to the needs of internal and external stakeholders.
During the course of our review, BIA recognized the shortcomings with the
data in its land in trust database and initiated a process to improve the
database. A properly designed and implemented database with accurate data
would provide important information to (1) BIA to help it better manage
the land in trust process and (2) other stakeholders, particularly
Congress, to help carry out oversight of the land in trust process.
Recommendations for Executive Action
To improve timeliness and transparency and ensure better management of
BIA's land in trust process, we recommend that the Secretary of the
Interior direct the Assistant Secretary for Indian Affairs to take the
following three actions:
o reinforce the requirement that all decisions be fully documented;
o move forward with adopting revisions to the land in trust regulations
that include (1) specific time frames for BIA to make a decision once an
application is complete and (2) guidelines for providing state and local
governments more information on the applications and a longer period of
time to provide meaningful comments on the applications; and
o institute internal controls to help ensure the accuracy and reliability
of the data in the land in trust database, as part of the redesign of the
existing system.
Agency Comments
Interior's Associate Deputy Secretary commented on a draft of this report
in a letter dated July 12, 2006 (see app. VI). In general, Interior agreed
with our findings, conclusions, and recommendations. The Associate Deputy
Secretary commented that BIA is working to address the recommendations and
that a corrective action plan will be developed and implemented in
response to the report. Specifically, BIA is taking steps to finalize the
regulations under consideration. After the regulations are completed, BIA
will develop a handbook to ensure consistent application of the
regulations. The handbook will also include specific internal control
procedures to ensure all decisions are properly and completely documented,
as well as entered into the land in trust database accurately and in a
timely manner.
We are sending copies of this report to interested congressional
committees, the Secretary of the Interior, the Assistant Secretary for
Indian Affairs, BIA regional and agency offices we visited, and other
interested parties. We will also make copies available to others upon
request. In addition, the report will be available at no charge on the GAO
Web site at http://www.gao.gov .
If you or your staff have any questions about this report, please contact
me at (202) 512-3841 or n [email protected] . Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the last
page of this report. GAO staff who made major contributions to this report
are listed in appendix VII.
Robin M. Nazzaro Director, Natural Resources and Environment
Appendix I: Objectives, Scope, and Methodology
The fiscal year 2006 House Appropriations Committee Report for the
Department of the Interior's (Interior) appropriation bill directed GAO to
study the Bureau of Indian Affairs (BIA) procedures and practices in
implementing the land in trust regulations.1 In response to this direction
and subsequent discussions with congressional staff, we (1) assessed the
extent to which BIA's processing of land in trust applications followed
its regulations, (2) determined the extent to which applications were
processed in a timely manner, and (3) identified any state and local
government concerns about land in trust applications and how they were
addressed in BIA's decision-making process.
For all of the objectives, we reviewed applicable laws, regulations, and
land in trust applications. We reviewed applications at six BIA regional
offices-Eastern, Midwest, Northwest, Pacific, Southern Plains, and
Southwest-and eight BIA agency offices-Blackfeet (Browning, Montana),
Chickasaw (Ada, Oklahoma), Great Lakes (Ashland, Wisconsin), Horton
(Horton, Kansas), Minnesota (Bemidji, Minnesota), Siletz (Siletz, Oregon),
Warm Springs (Warm Springs, Oregon), and Wind River (Fort Washakie,
Wyoming). We selected those offices because our general intent was to
visit all BIA offices with 10 or more land in trust applications described
as approved or denied in BIA's land in trust database. However, interviews
with realty officials at these offices and at the Western, Great Plains,
Navajo, and Rocky Mountain Regions and our examination of documents they
provided led us to conclude that the database was frequently incomplete
and inaccurate. During the course of our work, we found many examples of
inaccuracies in the database that showed data were missing, incorrectly
described, or inconsistently reported. Therefore, our scope was limited to
the groups of applications in which we had greater confidence that we had
obtained all of the applications. We examined (1) 87 discretionary
nongaming land in trust applications with decisions in fiscal year 2005,
(2) 28 off-reservation applications awaiting comments from the Office of
the Assistant Secretary for Indian Affairs, (3) 34 appealed decisions
pending before BIA regional directors at the end of fiscal year 2005, and
(4) 11 appealed decisions pending before the Interior Board of Indian
Appeals (IBIA) at the end of fiscal year 2005. In an effort to collect all
of the applications in these categories, we relied on interviews with BIA
realty officials in the relevant offices, examination of their localized
spreadsheets for tracking applications, and some comparisons with other
BIA databases. To identify the pending appeals at the IBIA, we relied on
these methods and the selections provided by the Chief Judge and an
examination of the IBIA's informal log.
We collected 67 of the 87 discretionary nongaming land in trust
applications with decisions in fiscal year 2005, or 77 percent, during our
site visits. From telephone discussions with realty staff, we identified
the remaining relevant applications at five agencies-Colville (Colville,
Washington), Fort Peck (Fort Peck, Montana), Michigan (Sault Ste. Marie,
Michigan), Southern California (Riverside, California), and Puget Sound
(Everett, Washington). Staff at locations we did not visit made copies of
an additional 18 applications and mailed them to us. We contacted realty
officials at the Navajo Region and the Great Plains Region, including its
agencies-Rosebud (Rosebud, South Dakota), Lower Brule (Lower Brule, South
Dakota) and Pine Ridge (Pine Ridge, South Dakota) and verified that they
had no applications with decisions in fiscal year 2005. In addition, we
obtained applications that were appealed to BIA regional directors and
pending in fiscal year 2005 based on discussions with realty officials in
the various field offices and regions and from examining their files. We
used a similar method to identify and collect applications appealed to the
IBIA that were pending at the end of fiscal year 2005. Also, we
interviewed the Chief Judge of the IBIA to identify pending applications;
he provided copies of relevant applications. In doing so, we obtained
information on the two remaining applications with BIA decisions in fiscal
year 2005.
Besides interviews with BIA and Interior officials, we obtained views from
various interested parties including representatives of the National
Governors Association, the National Association of Counties, National
Congress of American Indians, and several individual tribes. The National
Governors Association invited their members to meet with us, and they
hosted a teleconference, which included representatives from 12
states-Arkansas, California, Colorado, Connecticut, Kentucky, New Mexico,
New York, Ohio, Oklahoma, South Carolina, South Dakota, and Washington.
The National Association of Counties included a panel session with GAO at
their annual meeting in March 2006. The six participants were from the
California State Association of Counties; Kitsap County, Washington;
Madison County, New York; Navajo County, Arizona; Seneca County, New York;
and Ziebach County, South Dakota.
For discussions with tribal leaders, we used a nonprobability sample to
select tribes that submitted applications in recent years to BIA locations
we visited. We met with representatives of the 13 tribes listed in table
6.
Table 6: Representatives of Tribes and Bands Interviewed By GAO
Tribe State BIA region
Blackfeet Tribe of the Blackfeet Indian Montana Rocky Mountain
Reservation of Montana
Chickasaw Nation, Oklahoma Oklahoma Eastern Oklahoma
Ho-Chunk Nation of Wisconsin Wisconsin Midwest
Iowa Tribe of Kansas and Nebraska Kansas Southern Plains
Kickapoo Tribe of Indians of the Kickapoo Kansas Southern Plains
Reservation in Kansas
Lac du Flambeau Band of Lake Superior Chippewa Wisconsin Midwest
Indians of the Lac du Flambeau Reservation of
Wisconsin
Minnesota Chippewa Tribe, Mille Lacs Band Minnesota Midwest
Prairie Band of Potawatomi Nation, Kansas Kansas Southern Plains
Sac & Fox Nation of Missouri in Kansas and Kansas Southern Plains
Nebraska
St. Croix Chippewa Indians of Wisconsin Wisconsin Midwest
Confederated Tribes of the Siletz Reservation, Oregon Northwest
Oregon
Confederated Tribes of the Warm Springs Oregon Northwest
Reservation of Oregon
Arapaho Tribe of the Wind River Reservation, Wyoming Rocky Mountain
Wyoming
Source: GAO.
In addition, we obtained Interior's and Indians' views on the land in
trust process by participating in a panel session on the subject at the
Self-Governance Tribes' Fall Conference in 2005.
For each of the objectives we took the following specific actions:
o To determine how BIA processed land in trust applications, we reviewed
the 87 applications with decisions in fiscal year 2005 and compared how
the applications were processed with the requirements in the regulations
and departmental guidance. In addition, we interviewed Interior's field
solicitors in Minnesota and Oregon to obtain their perspectives on how BIA
followed procedures during their reviews of applications.
o To determine whether applications were processed in a timely manner, we
compared the processing times for (1) 87 applications with decisions in
fiscal year 2005 and (2) 28 complete off-reservation applications awaiting
comments from the Office of the Assistant Secretary for Indian Affairs to
the 120-business days, or about 6 months, time frame BIA is considering
imposing for making decisions on on- and off-reservation land in trust
applications. The reported minimum, median, and maximum processing times
are for fiscal year 2005 only and might not be indicative of other years.
For each of the applications with decisions in fiscal year 2005, we tried
to use the date of the application as the initial point to calculate the
processing time. For the few applications where we could not determine the
date of the application, we used either the date of the tribal resolution
requesting that the land be placed in trust or the date BIA notified state
and local governments about an application. We used the decision date as
the end date for calculating the processing time of these applications.
For off-reservation applications, we calculated the time from the date of
the draft decision to the end of fiscal year 2005. In addition, we
compared the length of time that 34 appealed decisions had been awaiting
resolution by BIA regional directors with the current 60-day time frame
set forth in the regulations on appeals. For the appealed decisions, we
calculated the time from the date of the decision to the end of fiscal
year 2005. We also interviewed BIA officials and tribal representatives
involved in the process to obtain their views on the time taken for
processing applications.
o To determine whether state and local governments had concerns, we
analyzed the content of comments made by these governments for the 87
applications with decisions in fiscal year 2005 and 45 appeals pending at
the end of fiscal year 2005. Moreover, we reviewed the National Governors
Association 2005 position paper on revisions to the regulations for
processing land in trust, and we obtained draft revisions to the
regulations from a Counselor to the Assistant Secretary for Indian Affairs
at Interior.
o As described above, we decided that the BIA database was not reliable
for our purposes. To determine the accuracy and reliability of the
database, we compared the information in the database with other data
sources, including spreadsheets used by a number of the BIA offices we
visited to track land in trust applications, BIA realty reports under the
Government Performance and Results Act, and BIA annual acreage reports. We
also discussed the development of the current database and the proposed
redesign of the database with staff in the Office of the Chief Information
Officer within the Office of the Assistant Secretary for Indian Affairs.
We performed our work between August 2005 and June 2006 in accordance with
generally accepted government auditing standards.
Appendix II: BIA's Process for Placing Land in Trust
Note: This flowchart represents BIA's land in trust process for
on-reservation acquisitions. Off-reservation and gaming-related
applications follow slightly different processes. The flowchart also shows
some of the possible scenarios for an appeal and judicial review.
aThis flowchart assumes that the BIA superintendent is the initial
decision maker. The initial decision maker can also be the regional
director or the Assistant Secretary for Indian Affairs.
bIn the case of a denial by the superintendent and no appeal, the process
would end here.
cThis flowchart assumes all application remands are directed back to the
BIA superintendent. Remands could also be directed to other decision
makers, such as the regional director or Assistant Secretary for Indian
Affairs.
Appendix III: Processing Times for 87 Land in Trust Applications with Decisions in
Fiscal Year 2005
Source: GAO analysis of BIA land in trust applications with decisions in
fiscal year 2005.
aBIA's file did not contain information on the date of the application. In
these cases, the date of the tribal resolution was used for calculating
processing times.
bOff-reservation land in trust application processed under 25 C.F.R.
S:151.11.
cBIA's file did not contain information on either the date of the
application or the date of the tribal resolution. In these cases, the date
of the BIA's letter seeking comments from state and local governments was
used for calculating processing times.
Appendix IV: Processing Times for 28 Off-Reservation Land in Trust Applications
Awaiting Consideration by BIA Central Office
Applicant Parcel name Proposed use Acreage Number
of days
awaiting
review
at BIA
Central
Office
as of
Sept.
30, 2005
Bay Mills Dafter M28 Commercial and housing 110.73 36
Indian
Community,
Michigan
Karuk Tribe Oak Knoll Present: vacant lot; 2.64 86
of California future: men's treatment,
rehabilitation, shelter
transitional facility
Karuk Tribe Ishi Pishi, Cultural/ceremonial/burial 20.70 114
of California Elliott Creek, grounds
Upper Katamin
Lac Court LCO Herman's Recreational/fishing 26.05 129
Oreillas Band Landing
of Lake
Superior
Chippewa
Indians of
Wisconsin
Confederated Grand Mound Present: undeveloped; 42.99 190
Tribes of future: hotel and
Chehalis convention center
Reservation,
Washington
Kaw Nation, B-07-810-100486 Health, Wellness, and 95.39 204
Oklahoma Community Center
Cabazon Band Commercial Commercial storage 3.98 233
of Mission storage
Indians,
California
Confederated Coop Cultural and natural 299.33 287
Tribes of the resources
Siletz
Reservation,
Oregon
Delaware Chesapeake Present: depleted sand and 454.00 310
Nation of Terrace gravel operation; future:
Oklahoma rubble landfill
Miccosukee Kendale Lakes Golf course and club house 229.30 353
Tribe of Golf Course
Indians of Tracts A and B
Florida
Koosharem Richfield Tribal housing and 1.72 406
Band of community center
Paiute
Indians of
Utah
Individual 183-C Timber production 20.00 408
member of the
Kootenai
Tribe of
Idaho
(fractional
interest)
Kootenai Undivided 2/3 Agriculture 86.97 413
Tribe of interest in
Idaho 183.12
Shingle Shingle Present: undeveloped; 77.03 457
Springs Band Springs/Lower 50 future: health clinic and
of Miwok housing
Indians,
Shingle
Springs
Rancheria
(Verona
Tract),
California
Confederated Otis Cemetery Cemetery 0.12 458
Tribes of the
Siletz
Reservation,
Oregon
Tulalip Faris Traditional harvesting of 1.25 541
Tribes of the shellfish
Tulalip
Reservation,
Washington
Tulalip Rasmussen Natural resource habitat 10.15 561
Tribes of the enhancement
Tulalip
Reservation,
Washington
Puyallup Wilkeson Creek A Steel head fish hatchery 12.27 564
Tribe of the
Puyallup
Reservation,
Washington
Puyallup Wilkeson Creek B Steel head fish hatchery 4.31 564
Tribe of the
Puyallup
Reservation,
Washington
Tulalip Baby Island Shellfish harvesting and 1.00 578
Tribes of the canoe landing
Tulalip
Reservation,
Washington
Tulalip Camano Head Shellfish harvesting and 20.78 676
Tribes of the canoe landing
Tulalip
Reservation,
Washington
Cow Creek Cullet Vacant property, storage 78.42 809
Band of space
Umpqua
Indians of
Oregon
Cow Creek DC Coop Commercial rental leasing 2.48 816
Band of
Umpqua
Indians of
Oregon
Sac & Fox Block 11 Present: vacant housing; unknown 840
Nation of future: fire station and
Missouri in EMT Community Service
Kansas and Center
Nebraska
Prairie Band Prairie Land Agriculture 26.37 960
of Potawatomi
Nation,
Kansas
Prairie Band Bohannon Agriculture 101.00 1,044
of Potawatomi
Nation,
Kansas
Prairie Band Bernasek Agriculture 33.00 1,171
of Potawatomi
Nation,
Kansas
Prairie Band Chesney-Green Agriculture and housing 70.00 1,173
of Potawatomi
Nation,
Kansas
Source: GAO analysis of BIA pending off-reservation land in trust
applications.
Appendix V: Processing Times for 34 Appealed Land in Trust Decisions Awaiting
Resolution by a BIA Regional Director
Applicant Parcel name Proposed use Acreage Number of
days between
decision and
Sept. 30,
2005
Stockbridge Munsee Bartelme Government 404.03 290
Community, Wisconsin Township facilities,
housing,
forestry
Prairie Band of Slattery Agriculture 160.00 311
Potawatomi Nation,
Kansas
Kickapoo Tribe of Bowhay Agriculture 150.00 406
Indians of the
Kickapoo Reservation
in Kansas
Prairie Band of Reamer Agriculture 80.00 428
Potawatomi Nation,
Kansas
Sac & Fox Nation of Becker Agriculture 80.00 428
Missouri in Kansas
and Nebraska
Prairie Band of Plants PT 95/58 Agriculture 120.00 437
Potawatomi Nation,
Kansas
Prairie Band of Crow Agriculture 40.00 437
Potawatomi Nation,
Kansas
Prairie Band of HD Zibell PT-83 Agriculture 80.00 445
Potawatomi Nation,
Kansas
Prairie Band of HD Zibell PT-85 Agriculture 80.00 445
Potawatomi Nation,
Kansas
Prairie Band of HD Zibell PT-87 Agriculture 40.00 445
Potawatomi Nation,
Kansas
Minnesota Chippewa Kareen Assisted living 40.00 451
Tribe, Mille Lacs center
Band
Prairie Band of Bernasek 1 Agriculture 80.00 493
Potawatomi Nation,
Kansas
Prairie Band of HD Zibell #86 Agriculture 80.00 548
Potawatomi Nation,
Kansas
Prairie Band of HD Zibell #84 Agriculture 40.00 549
Potawatomi Nation,
Kansas
Saginaw Chippewa Ervin Governmental 0.25 696
Indian Tribe of offices,
Michigan businesses,
housing
Saginaw Chippewa Weckesser Governmental 4.44 708
Indian Tribe of offices,
Michigan businesses,
housing
Saginaw Chippewa Bielski Economic 9.00 816
Indian Tribe of development
Michigan
Prairie Band of Brunner Agriculture 75.00 1,050
Potawatomi Nation,
Kansas
Prairie Band of Stalker 2001 Agriculture 622.00 1,235
Potawatomi Nation,
Kansas
Prairie Band of Parr 1999 Agriculture 48.97 1,239
Potawatomi Nation,
Kansas
Prairie Band of Calderwood 2 Agriculture 160.00 1,325
Potawatomi Nation,
Kansas
Sac & Fox Nation of Deroin Agriculture 7.85 1,331
Missouri in Kansas
and Nebraska
Prairie Band of Beckwith Agriculture, 160.00 1,361
Potawatomi Nation, housing
Kansas
Prairie Band of Bailey/Zibell Agriculture 600.00 1,438
Potawatomi Nation,
Kansas
Minnesota Chippewa Walker Day care center 5.76 1,512
Tribe, Leech Lake
Band
Prairie Band of ABC Exteriors Agriculture 40.00 1,591
Potawatomi Nation,
Kansas
Prairie Band of Parr Agriculture, 79.00 1,626
Potawatomi Nation, housing
Kansas
Prairie Band of Buck Agriculture 1.18 1,627
Potawatomi Nation,
Kansas
Prairie Band of Haag Agriculture 80.00 1,663
Potawatomi Nation,
Kansas
Sac & Fox Nation of Blocks 4 and 5 Community center unknown 1,715
Missouri in Kansas
and Nebraska
Prairie Band of Ribelin Agriculture unknown 1,771
Potawatomi Nation,
Kansas
Prairie Band of Bailey 1999 Agriculture 80.00 1,778
Potawatomi Nation,
Kansas
Prairie Band of Walder Agriculture 120.00 1,800
Potawatomi Nation,
Kansas
Prairie Band of Daugherty Agriculture 55.00 1,801
Potawatomi Nation,
Kansas
Source: GAO analysis of pending appeals of BIA land in trust decisions.
Appendix VI: Comments from the Department of the Interior
Appendix VII: GAO Contact and Staff Acknowledgments
Robin M. Nazzaro, (202) 512-3841, [email protected]
In addition to the individual named above, Jeffery D. Malcolm, Assistant
Director; Jean Cook; Mark Keenan; Daniel J. Semick; Carol Herrnstadt
Shulman; and Susan Swearingen made key contributions to this report. Also
contributing to the report were Jennifer DuBord, Susanna Kuebler, Greg
Marchand, Justin Monroe, George Quinn, Anne Rhodes-Kline, Jena Y.
Sinkfield, Ashanta Williams, and Greg Wilmoth.
(360603)
www.gao.gov/cgi-bin/getrpt? GAO-06-781 .
To view the full product, including the scope
and methodology, click on the link above.
For more information, contact Robin M. Nazzaro at (202) 512-3841 or
[email protected].
Highlights of GAO-06-781 , a report to congressional committees
July 2006
INDIAN ISSUES
BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve
the Processing of Land in Trust Applications
In 1980, the Department of the Interior (Interior) established regulations
to provide a uniform approach for taking land in trust. Trust status means
the government holds title to the land in trust for tribes and individual
Indians. Trust land is exempt from state and local taxes. The Secretary of
the Interior has delegated primary responsibility for processing,
reviewing, and deciding on applications to take land in trust to the
Bureau of Indian Affairs (BIA). As part of this process, BIA must seek
comments from affected state and local governments.
Congress directed GAO to study BIA's processing of land in trust
applications to determine the extent to which (1) BIA followed its
regulations, (2) applications were processed in a timely manner, and to
(3) identify any concerns raised by state and local governments about land
in trust applications. GAO is also providing information on problems with
BIA's data on the processing of land in trust applications.
What GAO Recommends
GAO is making a number of recommendations to improve the timeliness and
transparency of the land in trust process and to ensure that BIA has
accurate and reliable data in the land in trust database.
In commenting on the draft report, Interior agreed with our findings and
recommendations.
BIA generally followed its regulations for processing land in trust
applications, although most of the criteria in the regulations are not
specific and thus do not offer clear guidance for how BIA should apply
them. For example, there are no guidelines on how to weigh the impact of
lost tax revenues on local governments. As a result, the BIA decision
maker has wide discretion. Generally, all of the 87 applications with
decisions in fiscal year 2005 were approved, except for 1 denial and 6
that were closed because the applications were incomplete. BIA is
considering revisions to the regulations that would clarify that
applications will generally be approved unless there is clear evidence of
significant negative impacts. These revisions would make BIA's
decision-making process more transparent.
Currently, BIA has no deadlines for making decisions on land in trust
applications, but BIA is considering imposing about a 6-month time frame.
In addition, there is also a 60-day time frame for BIA regional directors
to rule on appeals. Based on these time frames, it appears that many land
in trust applications have not been processed in a timely manner. First,
the median processing time for the 87 applications with decisions in
fiscal year 2005 was 1.2 years-ranging from 58 days to almost 19 years.
Second, 28 complete off-reservation applications had been waiting an
average of 1.4 years for a decision as of September 30, 2005. Third, 34
appeals had been waiting an average of about 3 years for resolution by a
BIA regional director as of September 30, 2005.
When opposing land in trust applications or appealing decisions, state and
local governments principally cited concerns about lost tax revenues and
jurisdictional issues. In commenting on applications prior to decisions
made in fiscal year 2005, state and local governments opposed 12 of 87
applications, or about 14 percent. Also, as of September 30, 2005, 45
decisions were on administrative appeal to either a BIA regional director
or Interior's Board of Indian Appeals, including 5 appealed decisions from
fiscal year 2005. Although GAO found little opposition to applications
with decisions in fiscal year 2005, some state and local governments we
contacted said (1) they did not have access to sufficient information
about the land in trust applications and (2) the 30-day comment period was
not sufficient time in which to comment.
GAO found the data in BIA's land in trust database, which was implemented
in August 2004, were frequently incomplete and inaccurate. The database
was hastily developed without defining user requirements and data fields.
Specifically, (1) not all of the applications had been entered into the
database and (2) the status of an application, as either approved or
denied, was frequently incorrect. A properly designed and implemented
database with accurate data would provide BIA with important information
to help better manage the land in trust process. BIA has already
recognized the shortcomings and initiated an effort to redesign the
database as necessary.
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