Proposed Rule to Amend 25 C.F.R. Part 151 – Fee to Trust Process On December 5, 2022, the Interior Department published a proposed rule to amend regulations governing the discretionary acquisition of Tribal fee to trust applications at 25 C.F.R. Part 151. These regulations implement the land into trust provision included in the Indian Reorganization Act of 1934 (“IRA”). Interior states that the proposed rule seeks to streamline the Tribal land to trust process, reduce costs for Tribal Government applicants, and establish clear decision-making criteria. The proposed rule is part of the Biden Administration’s two-year initiative to help restore Tribal Government homelands. In October 2021, Interior held Tribal Leader consultation sessions that discussed the need to improve the administrative process to restore Tribal homelands. On March 28, 2022, the Department released draft revisions to Part 151. The Department then held four Tribal Leader consultations, which led to the current proposed rule. The proposed rule makes minor changes throughout the existing land into trust regulations, which were last substantially amended in 1995. Proposed Part 151.3 establishes that it is the Department’s policy to acquire Tribal trust land to strengthen self-determination and sovereignty, ensure that every Tribe has protected homelands where its citizens can maintain their Tribal existence and way of life, and consolidate land ownership to strengthen Tribal governance over reservation lands and reduce checkerboarding. To help expedite the process and increase certainty, Proposed Part 151.8 would require the Department to make a final determination on Tribal fee-to-trust applications within 120 calendar days of assembling a complete application package. To help reduce costs, Proposed Part 151.15 would limit trust land applications to a single environmental assessment, with a potential update - if necessary - after notice of the decision has been signed. The proposed rule, at Part 151.9 – 12, would establish clear criteria by requiring that great weight be given to establishing a Tribal land base or protecting Tribal homelands, protecting sacred sites or cultural resources and practices, establishing or maintaining conservation or environmental mitigation areas, consolidating land ownership, acquiring land lost through allotment, protecting treaty or subsistence rights, or facilitating Tribal self-determination, economic development, and Indian housing. One significant change, set forth at Proposed Part 151.4, would set criteria for the Department to determine whether a Tribe was “under federal jurisdiction” in 1934. The lack of a regulatory definition for the term “under federal jurisdiction” (“UFJ”) has plagued the land into trust process since the Supreme Court’s 2009 Carcieri v. Salazar decision. Codifying this definition in regulation would make this critical determination more durable than the existing M-Opinion that Interior currently employs to make a determination of whether an Indian Tribe was “under federal jurisdiction” for purposes of the Indian Reorganization Act. Text of the federal register notice of the proposed rule and Interior’s Executive summary can be found at this link: https://www.govinfo.gov/content/pkg/FR-2022-12-05/pdf/2022-25735.pdf. The Department hosted in-person consultations on January 13, 2023, and two virtual consultations on January 19 and January 30, 2023. The comment period ended on March 1, 2023. The Interior Department is reviewing comments and may issue a final rule in the coming weeks or months.
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