In December 2023, the Bureau of Indian Affairs (BIA) made significant revisions to its land acquisition regulations (also known as the “fee-to-trust” or FTT process), as published in the Federal Register (88 FR 86249). These regulations were final as of January 2024. According to the BIA, the changes are intended to make the fee-to-trust process less burdensome and more cost-efficient. 88 FR 86223(III). The regulations serve as the framework for acquiring lands held in trust by the United States for tribes and individual Indians. This article summarizes key modifications introduced by the BIA and best practices in FTT applications.

Carcieri  Criteria

The new regulations incorporate the “under Federal jurisdiction” analysis first issued by Solicitor Hilary Tompkins in M-37029 (March 12, 2014). That analysis was withdrawn and a new one issued by Solicitor Daniel Jorjani in M-37055 (March 9, 2020). In turn, M-37055 was withdrawn and M-37029 reinstated by Solicitor Robert Anderson under M-37070 (April 27, 2021). By memorializing the current “under Federal jurisdiction” analysis in the federal regulations, Tribes will hopefully be relieved of the effects of changes to federal policy over the last several years.

Under the new regulations, three types of evidence may be used to establish the Tribe was “under federal jurisdiction” in 1934: conclusive evidence, presumptive evidence, and probative evidence. 25 C.F.R. § 151.4.

Conclusive evidence alone establishes that a Tribe was under Federal jurisdiction in 1934, and includes:

• A vote to accept or reject the Indian Reorganization Act as recorded in Ten Years of Tribal Government Under I.R.A., Theodore Haas, U.S. Indian Service ( 1947) (Haas List) or other Federal government document;
• Land held in trust by the United States for the Tribe in 1934;
• Secretarial approval of a Tribal constitution under section 16 of the IRA as recorded in the Haas List or other Federal government document;
• Secretarial approval of a charter of incorporation issued to a Tribe under section 17 of the IRA as recorded in the Haas List or other Federal government document;
• An Executive Order for a specific Tribe that was still in effect in 1934;
• Treaties to which a Tribe is a party, ratified by the United States and still in effect as to that party in 1934; or
• Continuing existence in 1934 or later of treaty rights guaranteed by a treaty ratified by the United 25 C.F.R. § 151.4(a)(1).

Presumptive evidence indicates a Tribe was under Federal jurisdiction in 1934, and may include:

• Evidence of treaty negotiations or that a Tribe signed a treaty with the United States, whether such treaty was ratified by Congress or not;
• Listing of a Tribe in the Department of the Interior’s 1934 Indian Population Report;
• Evidence that the United States made efforts to acquire lands on behalf of a Tribe prior to 1934;
• Inclusion in Kappler’s Indian Affairs, Laws and Treaties;
• Federal legislation for a specific Tribe enacted after 1934; or
• Acknowledgment through the process outlined in 25 F.R. Part 83. 25 C.F.R. § 151.4(a)(2).

Probative evidence enables the Secretary to find that in or prior to 1934, the United States undertook some action that generally reflects Federal obligations, duties, responsibility for, or authority over the Tribe. Such evidence may include:

• The Department’s acquisition of land for a Tribe in implementing the Indian Reorganization Act of 1934;
• Efforts by the Federal government to conduct a vote under section 18 of the IRA to accept or reject the IRA where no vote was held;
• Attendance of Tribal members at Bureau of Indian Affairs-operated schools;
• Federal decisions regarding whether to remove or not remove a Tribe from its homelands;
• Inclusion of a Tribe in Federal reports and surveys;
• Inclusion of a Tribe or Tribal members in Federal census records prepared by the Office of Indian Affairs;
• Approval of contracts between a Tribe and non-Indians;
• Enforcement of the Trade and Intercourse Acts (Indian trader, liquor laws, and land transactions); or
• Provision of health and social services to a Tribe or Tribal mem- 25 C.F.R. § 151.4(a)(3).

If a Tribe has previously received a positive determination from the Department that it was “under Federal jurisdiction” in 1934, it does not have to submit additional information under the new regulations to show that it meets the criteria listed above.

Types of Discretionary Acquisitions

Under the prior regulations, there were only two types of discretionary acquisitions: on-reservation and off-reservation. Parcels that were contiguous or adjacent to the reservation were processed as on-reservation acquisitions. The new regulations establish four different types of discretionary acquisitions: on-reservation, con- tiguous, off-reservation, and initial Indian acquisitions. 25 C.F.R.

Importantly, the Department has eliminated the “bungee cord” analysis that was applied to off-reservation applications in the prior regulations. The analysis required the BIA to apply greater scrutiny to an off-reservation FTT application, based on the distance of the parcel from the Tribe’s reservation. The greater the distance from the reservation, the greater the scrutiny applied by the BIA and the less likely the agency would accept the parcel into trust. Under the new regulations, the BIA will simply consider the location of the land in a broad sense rather than applying the “bungee cord.” 25 C.F.R. § 151.11.

State & Local Impacts Analysis

Under the prior regulations, the BIA was required to weigh the impacts of acquiring land in trust for state and local governments, including financial impacts to tax rolls, jurisdictional problems, or potential land use conflicts that might arise as a result of the acquisition. The applicant was required to submit this information in their FTT application.

The new regulations create a presumption for on-reservation and contiguous parcels that the acquisition will have minimal adverse impacts on state and local governments. 25 C.F.R. § 151.9(c), § 151.10(c). This presumption was intended to improve efficiency and streamline the FTT process for both the BIA and the applicant.

The burden of proving state and local impacts has now shifted to the state and local governments and they are required to provide evidence to the BIA as to why the agency should not presume the impacts would be minimal. Id. The BIA will then consider the impacts analysis and comments submitted by those governments in a “holistic analysis” of the application. If no comments are received, then the BIA has no further responsibility to affirmatively determine or consider the impacts to state and local governments.

Deadlines

Prior to the changes to the regulations, the BIA had found that the average length of time an applicant had to wait to receive a final decision on their FTT application was 985 days—almost three years. The Department also found that the majority of the 941 pending FTT applications it had received were for non-controversial, on-reservation acquisitions—the type of acquisition it should not take three years for the BIA to process and approve.

There are now two deadlines the BIA must meet during the FTT process. 25 C.F.R. § 151.8(b). One is a 30-day deadline to notify the applicant that the application is complete. Then, 120 days after the notice of a complete package has been issued, the BIA must issue a Notice of Decision on whether to take the property into trust.

Though there has been much fanfare about the establishment of deadlines to push the BIA to make decisions on applications, it should be noted that these deadlines are not triggered until the application package is complete. 25 C.F.R. § 151.8. A complete application package includes an array of documents that must be provided by either the applicant or BIA.

The applicant must submit:

1. A written letter from the applicant to request that the land be taken into trust;
2. A Tribal Council resolution that supports the acquisition, if the applicant is a Tribe;
3. Documentation that meets the requirements of 25 C.F.R. §9, § 151.10, § 151.11, or § 151.12;
4. Identification of the statutory authority for the acquisition;
5. Evidence that the Tribe was “under Federal jurisdiction” in 1934 under § 151.4;
6. Legal description, map, and survey (if the legal description is a metes and bounds description);
7. Statement of the estate to be acquired (e.g., surface rights only, surface and mineral rights, );
8. A document that complies with the National Environmental Policy Act (NEPA) (e.g. categorical exclusion, environmental assessment, or environmental impact statement);
9. A Phase I environmental site assessment and, if necessary, a Phase II environmental site assessment;
10. Title evidence, such as a preliminary title commitment or title abstract; and
11. A statement that any existing covenants, easements, or restrictions or record will not interfere with the intended use of the 25 C.F.R. § 151.8.

In addition, the BIA must prepare and complete the following reviews and documentation:

12. An under Federal jurisdiction analysis;

13. A legal description review that results in the BIA’s issuance of an Land Description Evaluation and Validation (LDEV) or Realty Land Description Review (RLDR);

14. Acceptance of the NEPA document;

15. Acceptance of the Phase I environmental site assessment and Phase II environmental site assessment (if required);

16. Issuance of a Preliminary Title Opinion on the title evidence that was submitted; and

17. A Certificate of Inspection (CIP).2 Id

Thus, it is only after the applicant has submitted documents 1-11, and the BIA has reviewed, accepted, approved, and issued the documents in 12-17 that an application may be considered “complete” for purposes of § 151.8, such that the BIA must issue notice that the application is complete. Id. The 120-day Notice of Decision deadline is not triggered until the application is complete and that notice has been issued by the BIA.

Conclusion

The changes to the BIA land acquisition regulations represent a significant milestone in streamlining processes, clarifying application criteria, and establishing deadlines for BIA action. These revisions should enable Tribes and individual Indians to have their land accepted into trust much faster than the three-year period that is the current BIA average. However, it is essential that both applicants and the BIA have a thorough understanding and working knowledge of these new regulations in order to realize the full potential and breadth of these changes.

Endnotes

1“Each Tribe is notified when they receive a positive ‘under Federal jurisdiction’ determination, and that analysis is maintained by

the Department for future applications. Tribes that receive a positive determination from the Department will not need a future ‘under Federal jurisdiction’ analysis for subsequent fee-to- trust applications. Such prior determinations remain valid under the proposed revision. If a Tribe has received a negative ‘under

Federal jurisdiction’ determination from the Department prior to the issuance of the final rule, the Tribe may request a new determination under § 151.4.” 88 FR 86222, 86235 (Dec. 12, 2023).

2The DOJ title standards handbook expressly states that a CIP is not required for a FTT application. Nevertheless, the BIA has continued to require a CIP for every FTT application simply because the 2016 BIA FTT Acquisition Handbook requires it. The BIA is currently updating the FTT Handbook to meet the requirements of the current regulations, so this disparity should be resolved in the new FTT Handbook.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

This article was originally published in The Federal Lawyer magazine.