Proposed Changes to Off-Reservation Trust Application Criteria and Acquisition Process

October 30, 2017

In early October, the Department of the Interior (Interior) announced that it is considering revisions to 25 CFR Part 151, the regulations that guide discretionary fee-to-trust acquisitions for tribes and individual Indians. In a “Consultation Draft” aimed to solicit comments from tribal governments, Interior has proposed revisions to 25 CFR §151.11, which covers off-reservation acquisitions, and §151.12, which governs Interior’s process for acting on fee-to-trust requests. 

If finalized, the proposal would make significant changes to these sections. Among the proposed changes, the off-reservation application process would be bifurcated into separate “initial review” and “final review” processes requiring applicants to address a range of new criteria, such as whether a tribe has any “historical or modern connection” to the land that would be acquired. Further, Interior would use different criteria to evaluate the application depending on whether it is gaming-related. The proposal would also reinstate a 30-day waiting period for putting land into trust once an application is approved, a requirement that was first made part of the regulations in 1996 but was then repealed by Interior in 2013. 

Interior states that the proposed changes will give tribes more certainty as to the possibility of an approval for off-reservation trust applications before expending significant resources, and limit the risk of using resources developing land after it has been taken into trust only to face protracted litigation and the possibility that Interior’s approval is reversed by a court and the land is taken out of trust.

Interior is undertaking a series of tribal consultations on the Consultation Draft during November 2017 and has requested that tribes provide written comments by December 15, 2017.

Proposed Changes to §151.11
The proposed revisions create a two-step review and approval process for off-reservation acquisitions (“initial review” and “final review”), and make further distinctions between gaming and non-gaming applications. Under the proposal, Interior would be required to deny the application if the agency determines as part of its initial review that the applicant has not adequately addressed the initial review criteria. If Interior does not deny the application, the applicant would be required to submit additional information prior to the final review by Interior to approve or deny the application.

Step One Information – Gaming Applications
The proposed revisions would require that a trust application for gaming purposes describe:

  • the tribal applicant’s historical or modern connection to the land, if any
  • the statutory authority for the acquisition
  • the applicant’s need for the land
  • a map showing the location of the land to be acquired and the tribe’s reservation boundaries, along with the shortest distance between the reservation and the land to be acquired, and the shortest distance between the tribe’s trust lands and the land to be acquired
  • an analysis of whether the acquisition will facilitate consolidation of tribal land holdings and reduce jurisdictional checkerboard patterns
  • an analysis of whether the tribe can effectively exercise governmental and regulatory authority at the site proposed for acquisition
  • a plan specifying anticipated economic benefits for the tribe and its members resulting from the gaming to occur on the acquired land
  • information on economic benefits, if any, to the local community from the project
  • the reservation’s current unemployment rate, and an analysis of how the gaming project would affect that rate
  • the on-reservation benefits of the proposed gaming project, including whether any revenue will be used to create on-reservation job opportunities
  • evidence of cooperative efforts with state and local governments to mitigate the project’s impacts on the local community, or an explanation as to why no intergovernmental agreements or efforts exist.

Step One Information – Non-Gaming Applications
The proposed revisions would require that a trust application for non-gaming purposes describe:

  • the tribal applicant’s historical or modern connection to the land, if any
  • the statutory authority for the acquisition
  • the applicant’s need for the land
  • a map showing the location of the land to be acquired in trust and the tribe’s reservation boundaries, along with the shortest distance between the reservation and the land to be acquired, and the shortest distance between the tribe’s trust lands and the land to be acquired
  • an analysis of whether the acquisition will facilitate consolidation of tribal land holdings and reduce jurisdictional checkerboard patterns
  • an analysis of whether the tribe can effectively exercise governmental and regulatory authority at the site proposed for acquisition
  • economic development-related applications, a plan that specifies anticipated economic benefits for the tribe, its members, and the local community.

Individual Applications
The proposal also sets out criteria for taking into trust off-reservation restricted fee lands that are owned by individual Indians. Applicants would be required to address the statutory authority for the acquisition, the applicant’s need for the land, the amount of trust or restricted fee land already owned by the applicant, and the degree to which the applicant needs assistance in managing his or her affairs. 

Interior’s Initial Review
Interior’s proposed changes would require that its initial review of an application precede any effort to comply with the National Environmental Policy Act (NEPA) or other Interior review obligations under Departmental Manual 602 DM 2. As part of the agency review at this stage, Interior would give greater scrutiny to the applicant’s justification of anticipated benefits from the acquisition and greater weight to concerns raised by state and local governments who hold regulatory jurisdiction over the land at issue as the distance between the tribe’s reservation and the subject land increases. 

Step Two Information
If an application is not rejected after Interior’s initial review, the proposed changes would require applicants to submit:

  • documents needed for Interior to comply with NEPA and 602 DM 2
  • if applicable, information as to whether the tribal applicant was “under federal jurisdiction” in 1934 per Carcieri v. Salazar
  • if an application is for gaming purposes, whether the land is gaming-eligible consistent with 25 C.F.R. Part 292.

Interior’s Final Review
In making a final decision on the application, the proposed draft would require Interior to consider whether the BIA is equipped to handle the additional responsibilities resulting from acquisition of the land (if the land is in fee status). And as with the initial review stage, the proposal calls for Interior to give greater scrutiny to the applicant’s justification of anticipated benefits from the acquisition, and greater weight to concerns raised by state and local governments, who hold regulatory jurisdiction over the land at issue, as the distance between the tribe’s reservation and the subject land increases.

Proposed Changes to §151.12
Interior’s proposed changes to §151.12 in most significant part seek to undo modifications made to that section during the Obama Administration following the US Supreme Court’s decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. In that case, the Court held that APA challenges to Interior’s trust acquisition approvals are not barred as a result of the United States taking title to property unless the challenging party asserts an ownership interest in the property as the reason for the challenge. As a result, in 2013 Interior abolished the previously existing 30-day waiting period before taking land into trust after an Interior approval. 

Interior’s current proposal would restore the 30-day waiting period for acquisition approvals made by the assistant secretary for Indian Affairs, as well as those approvals made by the BIA. Further, the proposal would add a provision to §151.12 expressly acknowledging that Interior will comply with court ordered remedies when Interior’s trust acquisition approvals are found to be in error, including orders that require Interior to take the land out of trust.

Questions Raised for Input
Interior has also proposed a series of questions for input from tribal commenters, including:

  • Under what circumstances should Interior approve or disapprove an off-reservation trust application?
  • What criteria should Interior consider when approving or disapproving an off-reservation trust application?
  • Should different criteria and/or procedures be used in processing off-reservation applications based on:
    • Whether the application is for economic development as distinguished from non-economic development purposes (g. tribal government buildings or tribal health care, or tribal housing)?
    • Whether the application is for gaming purposes as distinguished from other (non-gaming) economic development?
    • Whether the application involves no change in use?
  • Should pending applications be subject to new revisions if/when they are finalized?
  • Do MOUs and other cooperative agreements between tribes and state/local governments help facilitate improved tribal/state/local relationships in off-reservation economic developments? If MOUs help facilitate improved government-to-government relationships, should that be reflected in the off-reservation application process?

Next Steps
Interior has scheduled three formal consultation sessions with tribes in November 2017 to receive comments on the proposal. Additional consultation sessions could be scheduled as some tribes have already expressed concern that the locations currently scheduled for consultation (Seattle, Sacramento, and Phoenix) are not convenient for a large number of tribes. Interior seeks written comments from tribes by December 15, 2017. Before moving to finalize any changes to Part 151, it seems more likely than not that Interior would publish a proposed rule that will be subject to a public comment process in which tribes, as well as state and local governments, and other stakeholders may participate.

If you have any questions, or if you’d like more information on discretionary fee-to-trust Indian land acquisitions, please contact Jody Cummings at +1 202 429 8106.