To: IGA Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director Re: BIA Publishes Proposed Rule Regarding Land Acquisitions Date: December 5, 2022
On December 5, 2022, the Bureau of Indian Affairs (“BIA”) published a proposed rule in the Federal Register that would amend regulations governing the discretionary acquisition of land into trust for the benefit of tribal governments and individual Indians. The proposed rule seeks to make the land-into-trust process more efficient, simpler, and less expensive to support restoration of tribal homelands. The BIA will conduct two virtual and one in-person consultation with representatives of all federally recognized tribes and Alaska Native Corporations, in addition to accepting oral and written comments from these parties. The in-person consultation will be held on January 13, 2023, from 9 a.m. to 12 p.m. MST at the BLM National Training Center in Phoenix Arizona, and the two virtual consultations will be held on January 19, 2023, from 1 p.m. to 4 p.m. and January 30, 2023, from 2 p.m. to 5 p.m. The proposed rule would update regulations at 25 CFR part 151, addressing how the BIA considers and processes applications for the discretionary acquisition of land into trust for the benefit of tribal governments and individual Indians. First, the proposed revision would clarify in the Purpose section that the regulation does not govern acquisitions mandated by Congress or a federal court order. The BIA also proposed removing, adding, and clarifying multiple definitions and terms to update the previous version of the regulations. The revisions would also expand the existing § 151.8, “Requests for Approval of Acquisitions” to describe all the pieces of information necessary for the Department of the Interior (“Department”) to assemble a complete trust acquisition package. Section 151.14 has also been changed to address issues in obtaining abstracts of title by allowing applicants to provide an abstract of title or evidence of a title insurance company’s declination to provide one. This section would also allow the Secretary to seek additional action to address liens, encumbrances, or infirmities on title. The BIA also proposed adding a new section that would lay out the Department’s approach to determining statutory authority for acquisitions in trust, as required by to the 2009 Supreme Court decision Carcieri v. Salazar . This approach would incorporate caselaw and analysis by the Office of the Solicitor, interpreting the Department’s statutory authority under Carcieri , focusing on 3 categories of evidence: conclusive, presumptive, and probative. A new §§ 151.9–12, would provide the process for the Secretary’s consideration of different types of acquisition based on the location of the subject land related to an Indian reservation, or the fact that the tribe has no land in trust. For example, the proposed rule would simplify and expedite the process of approving land acquisitions contiguous to the boundaries of an Indian reservation. Finally, in addition to some other minor revisions, the existing § 151.14 would be replaced with § 151.16, expanding upon the existing description of how and when land is accepted into trust.
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