[Federal Register Volume 64, Number 69 (Monday, April 12, 1999)]
[Proposed Rules]
[Pages 17574-17588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8851]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
RIN 1076-AD90
Acquisition of Title to Land in Trust
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: On September 18, 1980, we issued the first regulations
governing the exercise of the Secretary of the Interior's authority to
accept title to land in the name of the United States to be held in
trust for the benefit of Indian tribes and individual Indians (i.e., to
``take land into trust''). These regulations have not undergone
substantial revision since their adoption. We now propose to amend
these regulations to make clearer that we will follow a process that is
somewhat different, and we will apply a standard which is somewhat more
demanding when a land-into-trust application involves title to lands
which are located outside the boundaries of a reservation (``off-
reservation lands''). In contrast, when the application involves lands
located inside the boundaries of a reservation (``on-reservation
lands''), we will apply a process and a standard which reflect a
presumption in favor of acquisition of trust title to those lands. In
addition, the proposed rule sets out the process we will use to comply
with a mandate from Congress directing us to use our administrative
procedures to place a particular tract of land into trust. Finally, the
proposed rule establishes a framework in which a tribe without a
reservation can establish a geographic boundary within which it may
acquire land under the on-reservation provisions of the regulation.
DATES: Send comments before July 12, 1999.
ADDRESSES: If you wish to comment, you may submit your comments by any
[[Page 17575]]
one of several methods. See SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Terry Virden, Director, Office of
Trust Responsibilities, Bureau of Indian Affairs, MS-4513, Main
Interior Building, 1849 C Street, NW, Washington, DC 20240; by
telephone at (202) 208-5831; or by telefax at (202) 219-1065.
SUPPLEMENTARY INFORMATION:
General Comments
You may mail comments to the Office of Trust Responsibilities,
Bureau of Indian Affairs, 1849 C Street, NW, MS-4513-MIB, Washington,
DC 20240.
Electronic Access and Filing
You may also comment via the Internet to
[land__comments@ios.doi.gov]. Please submit Internet comments as an
ASCII file avoiding the use of special characters and any form of
encryption. Please also include ``Attn: 1076-AD90'' and your name and
return address in your Internet message. If you do not receive a
confirmation from the system that we have received your Internet
message, contact the Office of Trust Responsibilities directly at (202)
208-5831.
Finally, you may hand-deliver comments to the Office of Trust
Responsibilities, Bureau of Indian Affairs, 1849 C Street, N.W., MS-
4513-MIB, Washington, D.C. 20240.
Our practice is to make comments, including the names and addresses
of persons commenting, available for public review during regular
business hours. Persons commenting as private individuals may request
that we withhold their home address from the rulemaking record, which
we will honor to the extent allowable by law. There may also be
circumstances in which we would withhold from the rulemaking record a
commenter's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comment. We will not consider anonymous comments.
Comments from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, will be available for public inspection in their
entirety.
Specific Comments on Information Collection Aspects of the
Rulemaking
Indian tribes and individuals must submit the information required
under Secs. 151.4, 151.9, 151.12, 151.15, and 151.18 to acquire land
into trust, and 151.26 for approval of Tribal Acquisition Plans. We
will use the information in making a determination on an application to
take land into trust. The applicant must respond to this request to
obtain a benefit. This table represents our estimate of the burden
hours for reporting information collection under each section of this
proposed rule.
----------------------------------------------------------------------------------------------------------------
Average Annual
Citation 25 CFR 151 Information number of Average number per burden
hours year hours
----------------------------------------------------------------------------------------------------------------
151.4--For all applications....... Submit completed written 4-8 6,941 28,635
request as specified in
sections 151.9, .12, and
.15.
151.9--For on reservation Applicants must submit:... 4 95%=6,594 26,376
acquisitions. (a) Copy of authority.....
(b) Explanation of need...
(c) Explanation of
ownership status (Tribe).
(d) Explanation of
ownership status
(Individual).
(e) Title Insurance.......
(f) Documentation for NEPA
151.12--For off reservation Applicants must submit:... 8 4%=278 2,224
acquisitions. (a) Copy of authority.....
(b) Explanation of need...
(c) Description of
proposed use.
(d) Description of
location of land.
(e) Description of effect
on state & political
subdivisions.
(f) Description of
jurisdictional issues.
(g) Title Insurance.......
(h) Documentation for NEPA
(i) Documentation that
individual's request
meets 151.13.
151.15--For mandatory acquisitions Applicants must submit:... .5 1%=69 \2\ 35
(a) Copy of authority.....
(b) Title Insurance.......
(c) Additional information
upon request.
151.18--For Tribal Land Applicants must submit:... 8 .05%=325 \3\ 2,600
Acquisition Plans (TLAP). (a) Copy of authority.....
(b) Copy of tribal
documents to establish
TLAP.
(c) Summary of purposes &
goals.
(d) Summary of tribe's
history.
(e) Description of TLAP...
(f) Location of Rights-of-
Way.
(g) Description of effect
on State & political
subdivisions.
(h) Description of
jurisdictional & land use
issues.
151.26--Recordkeeping............. Maintaining each case file (\1\) 6,941 578
----------------------------------------------------------------------------------------------------------------
\1\ 5 minutes=\1/12\ hour.
\2\ Rounded.
\3\ Not included in total burden hours.
We invite your comments as to:
(1) Whether the collection of information is necessary for the
proper performance of the functions of the
[[Page 17576]]
Bureau, including whether the information will have practical utility;
(2) The accuracy of the Bureau's estimate of the burden of the
collection of information, including the validity of the methodology
and assumptions used;
(3) The quality, utility, and clarity of the information to be
collected; and
(4) How to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated
electronic, mechanical, or other forms of information technology.
Your comments regarding the burden estimate or any other aspect of
this information collection should be sent to: Attention: Desk Officer
for the Interior Department, Office of Information and Regulatory
Affairs, Office of Management and Budget, Docket Library, Room 10102,
725 17th Street, NW, Washington DC 20503. Please note that OMB has up
to 60 days to approve or disapprove the information collection but may
respond after 30 days; therefore, public comments should be submitted
to OMB within 30 days in order to assure their maximum consideration.
Comments should also be sent to the Bureau of Indian Affairs, Office of
Trust Responsibilities, 1849 C Street, NW, MS-4513-MIB, Washington, DC
20240.
Introduction and Summary
Congress has given the Secretary of the Interior discretionary
authority to acquire title to land to be held in trust by the United
States for the benefit of Indian tribes and individual Indians.
Acquiring such title is commonly referred to as ``taking land into
trust.'' General statutory authority giving the Secretary discretion to
acquire trust title to land is found in Section 5 of the Indian
Reorganization Act of 1934 (the IRA), 25 U.S.C. 465:
The Secretary of the Interior is hereby authorized, in his
discretion, to acquire, through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights, or
surface rights to land, within or without existing reservations,
including trust or otherwise restricted allotments, whether the
allottee be living or deceased, for the purpose of providing land to
Indians.
Occasionally, Congress enacts other legislation granting the Secretary
authority to take land into trust for some specific purpose. We refer
to acquisitions of trust title under the IRA, and under other
specialized statutes that grant discretionary authority to the
Secretary, as ``discretionary acquisitions of title.''
The regulations proposed here would restructure how we review
proposed discretionary acquisitions of title. We believe this
restructuring will facilitate land-into-trust decisions which better
reflect the modern-day needs and concerns of tribes, individual
Indians, and surrounding non-Indian communities. Specifically, the
proposed regulation sets forth an application process and review
criteria which is more demanding when the land at issue is located
outside the boundaries of an existing reservation or outside a
Secretarially-approved Tribal Land Acquisition Area (collectively,
``off-reservation acquisitions''), but which is less demanding when the
land is located inside the boundaries of an existing reservation or
inside a Secretarially-approved Tribal Land Acquisition Area
(collectively, ``on-reservation acquisitions''). In other words, the
proposed regulations would make the application process easier for on-
reservation acquisitions, while conversely requiring a more detailed
analysis of a greater number of criteria for off-reservation
acquisitions.
The purpose of creating these differing processes and criteria is
two-fold. First, we intend to better carry out our responsibility to
assist tribes in reestablishing ownership of, and jurisdiction over,
land located within their own reservations. Second, we also intend to
create a framework that adequately addresses the particular concerns
that non-Indian governments have about the ramifications of placing
off-reservation land into trust.
In addition, the proposed regulations delineate the procedure by
which we process mandatory acquisitions of title. Mandatory
acquisitions of title are trust acquisitions which Congress, by
explicit statutory direction, requires the Secretary to accept through
the administrative process. In other words, mandatory acquisitions are
those which Congress has directed the Secretary to complete by removing
any discretion in the administrative decision-making process.
(Mandatory acquisitions of title are distinguishable from legislative
transfers of title. Legislative transfers of title are those in which
Congress directly places a parcel of land in trust, thereby removing
the need for any administrative action to effectuate the transfer of
title into trust status.)
Finally, the proposed regulations address the unique difficulties
encountered by tribes which do not have reservations by including new
provisions which set out a process by which those tribes may benefit
from the on-reservation provisions of this regulation. In this process,
a tribe without a reservation can designate a ``Tribal Land Acquisition
Area'' in which it plans to acquire land. If the tribe obtains
Secretarial approval of its Tribal Land Acquisition Area, the tribe
will be able to apply to have title to the lands located within the
Tribal Land Acquisition Area taken into trust under the on-reservations
provisions of this regulation.
Discretionary Acquisitions On-Reservation
The General Allotment Act of 1887, 25 U.S.C. 331 et seq.,
authorized the division, and distribution to individuals, of lands
located within the boundaries of most Indian reservations across the
country. This allotment policy was based in part on the theory that fee
ownership of land would improve the economic condition of Indians,
which at the time was acknowledged to be very poor. Unfortunately, in
practice the primary beneficiaries of the Allotment Act were land
speculators who quickly acquired large portions of land within Indian
reservations, often at prices well below market value. Institute for
Government Research, The Problem of Indian Administration 460-462 (L.
Meriam, ed.) (Johnson Reprint Corporation 1971) (1928) (Meriam Report).
Implementation of the Allotment Act resulted in the alienation of
as much as 90 million acres of land originally reserved to tribes by
treaties and Executive Orders. Felix S. Cohen, Handbook of Federal
Indian Law 138 (Michie Company) (1982 ed.) (Cohen). The loss of these
tribal lands was catastrophic and generally is regarded by historians
and others as being responsible for a precipitous decline in the
economic, cultural, social and physical health of tribes and their
members. E.g., Charles F. Wilkinson, American Indians, Time and the Law
19-21 (Yale University Press 1987). To combat this downward spiral, in
1934 Congress passed the Indian Reorganization Act (IRA). Comment,
Tribal Self-Government and Indian Reorganization Act of 1934, 70 Mich.
L. Rev. 955, 960 (1972). One of the primary goals of the IRA was the
restoration to tribal ownership of allotted land within existing
reservations. See, Readjustment of Indian Affairs, Hearing before the
Committee on Indian Affairs, 73d Cong. 2nd Sess. on H.R. 7902, at 16-1;
Cohen, supra at 147. Although the IRA authorized appropriation to the
Department of the Interior of two million dollars a year for land
acquisition, since 1934 only $5.5 million has been appropriated by
Congress for that purpose, all of it before 1950. Cohen at 150, note
51.
[[Page 17577]]
In the modern era tribes have taken full responsibility for
rebuilding their reservation land bases, purchasing land from willing
sellers and then applying to the Secretary to request that the land be
taken into trust. Yet to date, less than eight percent of lands lost
through allotment have been returned to tribal ownership. Cohen at 138,
BIA's Annual Report for Indian Lands, 1996. Indeed, most applications
requesting that we take land into trust have involved relatively small
amounts of land. For example, in 1996 (the latest year for which data
is available), the average amount of land involved in an application to
take land in trust was about 30 acres. BIA's Annual Report for Indian
Lands, 1996.
The proposed regulations are intended to promote the health and
welfare of tribes and their members by better facilitating the
restoration of on-reservation Indian lands into trust status. For
example, the on-reservation provisions of the regulation provide that
the tribe's stated need for the land will be accorded additional weight
in recognition of the tribe's reasonable expectation that it benefit
from the lands originally promised to it by treaty or Executive Order.
For the same reason, because lands within reservation boundaries are
subject to tribal governmental jurisdiction, the portion of the
proposed rule governing on-reservation acquisitions does not
specifically require submission of information concerning impacts on
non-Indian communities, although State and local governments may
comment on these impacts if they so desire. (In which case, the tribe
will be given a copy of the comments and a reasonable amount of time in
which to respond.)
Discretionary Acquisitions Off-Reservation
Congressional adoption of the land acquisition provisions of the
IRA was based in part on Congress' understanding that the decimation of
the tribal land base had resulted in substantial economic hardship for
Indian tribes and their members. Hence, the regulations implementing
the IRA anticipate the potential need for tribal trust land for
economic development outside the boundaries of a reservation,
particularly in situations in which a tribe's reservation is isolated
or otherwise remote from centers of economic activity.
The acquisition of title by the United States in off-reservation
circumstances can, however, have significant ramifications for local
non-Indian communities. In particular, important jurisdictional matters
(e.g., those involving law enforcement, land use planning, public
education, and maintenance of utilities and roads) can become blurred.
The effects of off-reservation acquisitions are in contrast to those
caused by on-reservation acquisitions, as the effects of on-reservation
acquisitions are just incremental additions to an already established
set of circumstances, and not marked by the establishment of a new
sovereign or jurisdictional presence.
For this reason, the proposed rule requires tribes wishing to take
off-reservation land into trust to submit a substantial amount of
information about how the proposed acquisition would impact the
surrounding non-Indian community, and about how the tribe would address
that impact. Requiring submission of this detailed information helps
ensure that the concerns of local non-Indian governments are
identified, reviewed and evaluated in our decision-making process.
Unlike the regulations currently in effect, the proposed
regulations do not treat applications concerning land which is adjacent
(contiguous) to a reservation as if the land were located on-
reservation. Rather, applications concerning adjacent parcels are to be
treated as off-reservation acquisitions, and will be subject to the
same process and local non-Indian government consultation as are
applications concerning other off-reservation lands. Of particular note
is that we will require consultation with the state and local non-
Indian governments in the state in which the adjacent land is located
(even if the main body of the reservation lies across a state line).
The proposed regulation, however, would continue our policy (as
articulated in the existing regulations) of giving greater weight to
the tribe's need (vis-a-vis the objections of the local non-Indian
community) the closer the land is to the tribe's reservation. Thus, the
stated need for land adjacent to a reservation will be given greater
weight in the context of the off-reservation criteria. In addition,
tribal applicants wishing to conduct gaming on a parcel adjacent to
land which has held reservation status since October 17, 1988 will
continue to benefit from the ``contiguity exception'' mandated by
Congress in the Indian Gaming Regulatory Act (IGRA) Section 20
requirements. (See 25 U.S.C. 2719(a)(1).)
The IRA land acquisition provisions authorize us to take off-
reservation land into trust for the benefit of individual Indians.
However, as a matter of general policy, we will approve applications
from individual Indians for title to land located outside the
boundaries of a reservation only under certain limited circumstances,
in our discretion. For example, we will continue to accept title to
interests in off-reservation land for the purpose of consolidating
fractioned ownership of such land. Additionally, we will continue to
accept title to lands purchased with funds obtained as the result of
the voluntary sale of non-taxable Indian lands to any State, county, or
municipality, or as the result of condemnation of such property by a
State, county, or municipality, under 25 U.S.C. 409a.
Off-Reservation Acquisitions and Indian Gaming
If a tribe intends to use off-reservation land for gaming purposes,
it must comply with the applicable requirements of Section 20 of the
Indian Gaming Regulatory Act, 25 U.S.C. 2719 (IGRA) before gaming may
occur on that land. In most cases, compliance with Section 20 of IGRA
requires additional consultation with local non-Indian governments, a
determination by the Secretary that the acquisition is ``in the best
interest of the tribe and not detrimental to the surrounding
community,'' and a concurrence in that determination from the Governor
of the State in which the land is located. Id.
If a tribe applies under these regulations to have title acquired
in trust for a non-gaming purpose, and then at a later date decides
that it would like to conduct gaming on that parcel, it will be
authorized to engage in such gaming only if it complies with the
requirements of Section 20 of IGRA. In other words, to game on a parcel
of trust land acquired after October 17, 1988 (i.e., the date of
passage of IGRA), the tribe must submit to the same Section 20 analysis
and obtain the same gubernatorial consent as would have been required
if the parcel were originally taken into trust for the purpose of
gaming.
Discretionary Acquisitions in Alaska
Both the current and the proposed regulations bar the acquisition
of trust title in land in Alaska, unless an application for such
acquisition is presented by the Metlakatla Indian Community or one of
its members. (The lands of the Metlakatla Indian Community comprise the
only Native land in Alaska currently designated as a ``reservation'' by
the federal government.) The regulatory bar to acquisition of title in
trust in Alaska in the original version of these regulations was
predicated on an opinion of the Associate Solicitor, Indian Affairs
(``Trust Land for the Natives of Venetie
[[Page 17578]]
and Arctic Village,'' September 15, 1978), which concluded that the
Alaska Native Claims Settlement Act (ANCSA) precluded the Secretary
from taking land into trust for Natives in Alaska (again, except for
Metlakatla).
Although that opinion has not been withdrawn or overruled, we
recognize that there is a credible legal argument that ANCSA did not
supersede the Secretary's authority to take land into trust in Alaska
under the IRA (see relevant IRA provision at 25 U.S.C. 473a). See also
the Petition of Chilkoot Indian Association, Native Village of Larsen
Bay, and Kenaitze Indian Tribe, requesting the Department to undertake
a rulemaking to remove the prohibition on taking land in trust in
Alaska (60 FR 1956 (1995). However, even if it were held that the
Secretary retained authority to take land in trust in Alaska, whether
to exercise that authority remains in the sound discretion of the
Secretary.
In recent years blue-ribbon commissions and working groups (such as
the State of Alaska's Rural Governance Commission) have been formed to
address various related issues concerning tribal governments and Native
lands in Alaska and to address such issues in the wake of the decision
in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520,
118 S. Ct. 948 (1998). In that decision, the court held that former
Native Corporation lands owned in fee simple by the Native Village of
Venetie Tribal Government were not validly set apart for the use of
Indians as such, nor were they under the superintendence of the federal
government, and thus did not meet the definition of ``dependent Indian
communities.'' Id. At 955. Since the lands did not qualify as dependent
Indian communities, they did not meet the definition of Indian country
and the Native Village of Venetie Tribal Government was not authorized
to tax non-members. Of course, if land were taken in trust by the
Secretary, such trust land then would qualify as Indian country and an
Alaskan tribe would have all the powers that pertain within Indian
country. We invite comment on the continued validity of the Associate
Solicitor's opinion and issues raised by the petition noticed at 60 FR
1956 (1995) in light of the Supreme Court's ruling in the Venetie case.
The proposed regulations would make no change in the current
regulations and would continue the bar against taking Native land in
Alaska in trust. However, that bar would be subject to review pending
the report of the Rural Governance Commission, or Congressional action
clarifying that ANSCA lands are Indian country.
Mandatory Acceptance of Title
The implementation of specific statutes containing congressional
mandates to acquire title to land in trust through our administrative
process has not always been well-understood. To provide more clarity,
the proposed rule includes new language that specifically identifies
the types of acquisitions we consider ``mandatory,'' and sets out the
process by which we will acquire title.
The proposed regulation clarifies that an acquisition of title is
``mandatory'' if Congress has removed all discretion in determining
whether to accept title to a particular tract of land. Situations in
which all discretion has been removed include those situations in which
Congress dictates that the Secretary ``shall'' acquire title to a
parcel of land which is specifically identified by legal description,
or to land which is purchased with certain, specified funds. In
contrast, a statute which merely directs that the Secretary ``shall''
accept title to unidentified land within some broader geographic
boundary, e.g. within certain named counties, still allows for some
discretion. Hence we do not view acquisitions under such a statute as
``mandatory'' for the purposes of this regulation. By definition,
mandatory acceptances of title rely on statutory authority which
preempts the discretionary authority granted to the Secretary by the
IRA. The Department will evaluate each statute on a case-by-case basis
to determine whether it requires a mandatory acceptance of trust title.
The process for completing a mandatory acceptance of title is
relatively simple. A tribe must submit an application that includes the
identification of the federal statute which mandates the acquisition of
title and include the same sort of title insurance information required
for discretionary acquisition applications. Because of the mandatory
character of such acquisitions, the regulation does not require
compliance with the National Environmental Policy Act (NEPA). However,
we strongly advise applicants, for their own protection, to conduct the
same type of environmental assessment generally done under NEPA prior
to acquisition of the property, or at least prior to submitting an
application to have the property taken into trust.
As a final matter, we note the distinction between mandatory
acquisitions where Congress directs the Secretary to complete the
administrative process of accepting trust title, and ``legislative
transfers of title,'' where Congress directly transfers land into trust
status on behalf of tribes or individual Indians. In the latter type of
title transfer, Congress has removed the need for any administrative
action to effectuate the title transfer.
Tribal Land Acquisition Areas for Tribes Without Reservations
There are a few tribes which do not benefit from the basic rights
and opportunities inherent in having a reservation. For the most part,
these are tribes recently restored to federal recognition by a federal
statute which does not specifically designate a reservation, or they
are tribes that have obtained federal recognition through the
administrative Federal Acknowledgment Process, which as a matter of
course does not provide for the designation of a reservation.
Federal policy for many decades has viewed the existence of a
tribal land base as integral to the cultural, political, and economic
well-being of a tribe. For example, most federal programs for Indians
are in one way or another tied to the tribal land base. Because of the
overwhelming importance of the tribal land base, and because the new
regulations make it less burdensome for tribes to take land into trust
on (as opposed to off-) reservation, we are proposing in these
regulations an alternative mechanism by which reservation-less tribes
may benefit from the on-reservation acquisition provisions to create a
homeland.
The alternative mechanism is the use of a ``Tribal Land Acquisition
Area.'' A Tribal Land Acquisition Area is a geographic boundary
designated by a reservation-less tribe within which the tribe plans to
acquire land within a specified period of time under the more lenient
on-reservation provisions of the proposed rule. In other words, the
Tribal Land Acquisition Area would create a geographic boundary within
which individual parcels would be treated as on-reservation for the
purposes of acquiring trust title under these regulations.
Because establishment of a Tribal Land Acquisition Area will affect
local non-Indian governments, we will require that the concerns of
local non-Indian governmental entities be addressed before the
Secretary will approve the creation of the Tribal Land Acquisition Area
boundaries. For that reason, an application for Secretarial approval of
a Tribal Land Acquisition Area requires submission of information
similar to that required in applications for off-reservation
acquisitions. However, because we view the need for
[[Page 17579]]
a homeland as fundamental, we will accord greater weight to the
application of a reservation-less tribe, particularly in situations in
which the tribe benefits from a federal statute directing the Secretary
to acquire some land base for the tribe.
However, while off-reservation land located within a Tribal Land
Acquisition Area may be treated as on-reservation land for acquisition
purposes, such lands legally cannot be treated as on-reservation for
the purposes of IGRA. In other words, title to land which is inside a
Tribal Land Acquisition Area cannot be taken into trust for the purpose
of gaming unless and until the requirements of section 20 of IGRA have
been satisfied.
Part 151 of Title 25, Chapter I of the Code of Federal Regulations
is proposed to be amended for the reasons set out below:
1. The authority for part 151 is revised to include the False
Statements Accountability Act of 1996, 18 U.S.C. 1001.
2. Section 151.1 Purpose and Scope, is retitled as What is the
purpose of this part?, and is reformatted and simplified.
3. Section 151.2 Definitions, is retitled as How are key terms
defined in this part?, and is revised to update some of the definitions
of terms used in this part and to include new terms used in this part.
The definitions in this section apply only to this part.
4. Section 151.3 Land acquisition policy, has been deleted,
although some of the substantive portions of the current Sec. 151.3
have been incorporated into other parts of the proposed rule. A new
Sec. 151.3 is added entitled To what types of transactions do these
regulations apply? The new Sec. 151.3 incorporates some of the
information that is in the current Sec. 151.1.
5. Section 151.4 Acquisitions in trust of lands owned in fee by an
Indian, is deleted because it is unnecessary given the rest of the
proposed changes to this regulation. A new Sec. 151.4 entitled How does
an individual Indian or a tribe apply to have title to land conveyed to
the United States in trust? is added to explain how to apply to have
land taken into trust.
6. Section 151.5 Trust acquisitions in Oklahoma under Section 5 of
the I.R.A., is deleted because it is unnecessary. A new Sec. 151.5
entitled How do we process the request? is added to provide more
clarity about how we review requests to take land into trust.
7. Section 151.6 Exchanges is deleted because it is no longer
necessary given the other sections of the part. A new Sec. 151.6,
entitled How do we proceed after making a decision on the request? is
added.
8. Section 151.7 Acquisition of fractional interests, is
renumbered and retitled as Sec. 151.8, Will we accept and hold in trust
an undivided fractional interest in land for an individual Indian or a
tribe?, is reformatted to include acquisitions of ``undivided''
interest under the Indian Land Consolidation Act, and is revised for
clarity. ``Undivided fractional'' is substituted for the word
``fractional'' to clarify that the ``fractional'' interest being
acquired is not a geographically separate parcel of land. A new
Sec. 151.7 is added, When does land attain trust status?, to provide
clarification as to how land technically attains trust status after we
have decided to take it into trust.
9. Section 151.8 Tribal consent for nonmember acquisitions is
renumbered and retitled as Sec. 151.11 Can an individual Indian or a
tribe acquire land inside a reservation inside or an approved Tribal
Land Acquisition Area of another tribe? and is revised for clarity.
10. Section 151.9 Requests for approval of acquisitions is
renumbered and retitled as Sec. 151.4 How does an individual Indian or
a tribe apply to have title to land conveyed to the United States in
trust? A new Sec. 151.9, What information must be provided in a request
involving land inside a reservation or inside an approved Tribal Land
Acquisition Area? is added.
11. Section 151.10 On-reservation acquisitions, is renumbered,
retitled, and has been separated for clarity as Sec. 151.5 How do we
process the application?, Sec. 151.9 What information must be provided
in a request involving land inside a reservation or inside an approved
Tribal Land Acquisition Area?, and Sec. 151.10, What criteria will we
use to evaluate requests involving land inside a reservation or inside
an approved Tribal Land Acquisition Area? The new Sec. 151.10 is
revised to establish a uniform, nationwide, ``minimum standard'' set of
criteria for the decision maker to consider in the evaluation of an
application for an on-reservation trust acquisition. The requirement to
furnish title evidence is transferred from the current Sec. 151.13 to
this section to incorporate title evidence as part of a complete
application request.
12. Section 151.11 Off-reservation acquisitions, is renumbered,
retitled, and has been separated for clarity as Sec. 151.5 How do we
process a request?, Sec. 151.12 What information must be provided in
an application involving land outside a reservation and outside a
Tribal Land Acquisition Area?, and Sec. 151.14 What criteria will we
use to evaluate a request involving land outside a reservation and
outside a Tribal Land Acquisition Area? The requirement to furnish
title evidence is transferred from the current Sec. 151.13 to this
section to incorporate title evidence as part of a complete application
request. In addition, a new Sec. 151.11, Can an individual Indian or a
tribe acquire land inside a reservation or inside an approved Indian
Land Acquisition Area of another tribe?, is added, replacing the
current Sec. 151.8.
13. Section 151.12 Action on requests has been separated for
clarity and is included as part of Sec. 151.6 How do we proceed after
making a decision on the request? A new Sec. 151.12, What information
must be provided in a request involving land outside a reservation and
outside a Tribal Land Acquisition Area?, is added.
14. Section 151.13 Title examination, is renumbered, reorganized,
and revised for clarity. The requirement to furnish title evidence is
transferred from this section and incorporated in the new Secs. 151.9
and 151.12 as part of a complete application request. Section (b),
governing situations in which the title to the land has any liens,
encumbrances, or infirmaties, has been integrated into
Sec. 151.6(c)(1). A new Sec. 151.13, entitled Can an individual Indian
acquire land outside his or her own reservation?, has been added to
clarify the Secretary's policy regarding the acquisition of off-
reservation lands by an individual Indian.
15. Section 151.14 Formalization of acceptance is renumbered and
retitled as Sec. 151.7 When does the land attain trust status? A new
Sec. 151.14, entitled What criteria will we use to evaluate a request
involving land outside a reservation or outside a Tribal Land
Acquisition Area?, is added to establish a uniform, basic, nationwide,
``minimum standard'' set of criteria for the decision maker to consider
in the evaluation of an application for an off-reservation trust
acquisition.
16. Section 151.15 Information collection, is renumbered and
retitled as Sec. 151.27 Do information collections under this part
have Office of Management and Budget approval? Paragraph (a) is revised
to include the new information collection requirements. A new
Sec. 151.15 entitled What information must be provided in a request to
process a mandatory transfer of title into trust status, and how will
we process the request? has been added to clarify the information
needed to process mandatory acquisitions.
[[Page 17580]]
17. A new Sec. 151.16 entitled Can our determination that a
transfer of title into trust status is mandatory be appealed? is added
for clarity.
18. A new Sec. 151.17 entitled What is a Tribal Land Acquisition
Area? has been added to clarify how a Tribal Land Acquisition Area can
be used by tribes without reservations to benefit from the on-
reservation provisions of this regulation.
19. A new Sec. 151.18 entitled What must be included in a request
for Secretarial approval of a Tribal Land Acquisition Area? has been
added to describe what information must be submitted in the request.
20. A new Sec. 151.19 entitled How is a tribal request for
Secretarial approval processed? is added to describe how we will
process the request for Secretarial approval of the Tribal Acquisition
Area.
21. A new Sec. 151.20 entitled What criteria will we use to decide
whether to approve a proposed Tribal Land Acquisition Area? has been
added to set out the criteria the Secretary will use to evaluate a
Tribal Land Acquisition Area.
22. A new Sec. 151.21 entitled Can a tribe include in its Tribal
Land Acquisition Area land inside another tribe's reservation or Tribal
Land Acquisition Area? is added for clarity.
23. A new Sec. 151.22 entitled If a Tribal Land Acquisition Area is
not approved, is the tribe prohibited from acquiring land within it? is
added for clarity.
24. A new Sec. 151.23 entitled If a Tribal Land Acquisition Area is
approved, does the land taken into trust within it attain reservation
status? is added for clarity.
25. A new Sec. 151.24 entitled Can a Tribal Land Acquisition Area
be modified after approval? has been added to state that a Tribal Land
Acquisition Area can be modified after approval by submitting a request
for Secretarial approval of the modifications in compliance with the
criteria in this part.
26. A new Sec. 151.25 entitled What is the penalty for making false
statements in connection with a request that we place land in trust?
has been added to notify applicants that they are subject to
prosecution for knowingly and willfully making false statements on an
application.
27. A new Sec. 151.26 entitled What recordkeeping and reporting
requirements apply to acquisitions of trust title under this part? has
been added to notify contracted or compacted tribes that documents
created in the application process are permanent federal records.
28. A new Sec. 151.27 entitled Do information collections under
this Part have Office of Management and Budget approval? is added for
clarity.
Clarity of this regulation.
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of questions as headings, paragraphing, etc.) aid or
reduce its clarity? (4) Would the rule be easier to understand if it
were divided into more (but shorter) sections? (A ``section'' appears
in bold type and is preceded by the symbol ``Sec. '' and a numbered
heading; for example, Sec. 151.1 What is the purpose of this part?) (5)
Is the description of the rule in the Supplementary Information section
of the preamble helpful in understanding the proposed rule? What else
could we do to make the rule easier to understand?
Regulatory Planning and Review (E.O. 12866)
In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action and is not subject to review by
the Office of Management and Budget.
(a) The proposed amendments to this rule basically conform to the
policies and practices that currently guide the Department's decision
making on land into trust applications. Hence, we do not anticipate
that this regulation will have a significant effect on the net amount
of land taken into trust. The rule will not have an annual effect of
$100 million or more on the economy. It will not adversely affect in a
material way the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. This rule simply identifies a ``minimum
standard'' of criteria and requirements to be considered in the
exercise of the Secretary's discretion to place lands in trust for
individual Indians and tribes.
Looking at the overall picture of how much land we have taken into
trust historically, the annual number of requests to place lands in
trust has been small. Based on the BIA's Annual Report of Indian Lands
for 1996, only 35 States have Indian lands, four of which have fewer
than 1,000 acres of Indian lands. The 1996 report indicated that there
were 6,941 total applications involving 212,000 acres cumulatively,
i.e., the average amount of land involved in an application was only
about 30 acres. Based on the annual caseload report for FY 1996, the
total dollar amount Indians paid for acquisitions of land in trust is
$19,420,303.81, less than 20% of $100 million. Some States and local
governments may have a decrease in revenues derived from taxes.
However, the loss in annual revenues for State and local jurisdictions
will only be a fraction of the value of the land involved. Moreover,
some tribes may choose to offset this loss by making payments in lieu
of taxes, or supplying services to the local communities. In addition,
the proposed rule would alter the final disposition of only a portion
of the applications. Finally, any losses or gains to State or local tax
rolls would be spread over several states. Thus, overall, the net
changes in tax rolls due to this rule will be minimal, and will not
significantly affect State or local governments.
(b) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another Federal agency.
Actions taken by this rule will affect tribal or individual Indian land
titles. The Department of the Interior, Bureau of Indian Affairs is the
only governmental agency that makes the determination whether to take
land into trust.
(c) This rule does not alter the budgetary effects or entitlement,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule sets out the criteria and procedures the
Secretary uses in determining whether to accept title of certain Indian
lands to the United States, as trustee, for the benefit of an
individual Indian or a tribe.
(d) This rule does not raise novel legal or policy issues. This
rule is of an administrative, technical, and procedural nature. The
land acquisition regulations have been in effect since 1980. We are
proposing to amend them in order to clarify procedures and
requirements.
Regulatory Flexibility Act
The Department of the Interior certifies that this regulation will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A
Regulatory Flexibility analysis is not required. See our initial
analysis above item 1(a) under Regulatory Planning and Review. The
effect on small entities will be minimal.
(a) It does not have an annual effect on the economy of $100
million or
[[Page 17581]]
more. As stated above, the effect on the economy will be minimal.
(b) It does not result in a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Actions taken by this rule will only
affect title to tribal or individual Indian owned lands. While it may
affect revenues collected by State or local jurisdictions, the effect
as noted above, should be minimal.
(c) It does not result in significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. As stated above, actions under this rule will only affect
title to tribal or individual Indian owned lands. This rule is of an
administrative, technical, and procedural nature.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. See the initial analysis
above, item 1(a) under Regulatory Planning and Review. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. An economic analysis is not required.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Actions under this rule will only
affect title to tribal or individual Indian owned lands.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Actions under this rule will only affect title to tribal or individual
Indian owned lands.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.):
(a) The rule will not significantly or uniquely affect small
governments, or the private sector. A Small Government Agency Plan is
not required. Additional expenses may be incurred by the requesting
tribe or individual Indian to provide information to the Secretary.
Tribes or an individual Indian provide information in order to receive
a benefit.
(b) This rule will not produce a federal mandate of a $100 million
or greater in any year. The overall effect of this rule will be
negligible to the State, local, or tribal governments or the private
sector. See our analysis under Regulatory Planning and Review.
Takings (E.O. 12630)
With respect to Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required because actions under this rule do not constitute a
taking. Tribes or individual Indians are voluntarily transferring title
to the United States for their own benefit.
Federalism (E.O. 13083)
With respect to Executive Order 13083, the rule does not have
significant federalism implications to warrant the preparation of a
Federalism Assessment. The local tax base may be affected. However,
this rule should not affect the relationship between State and Federal
governments because actions in this rule apply only to a relatively
small amount of land. Due to the loss of tax revenue, the relationship
between the State and local governments with tribes and/or the Federal
Government may be affected. However, because the loss of revenue is
minimal and most of the land to be acquired will be within the
boundaries of reservations where there is already a measure of Indian
sovereignty, the effects are ``insignificant'' within the meaning of E.
O. 13083. See the analysis under the Regulatory Planning and Review
section.
Civil Justice Reform (E.O. 12988)
With respect to Executive Order 12988, the Office of the Solicitor
has determined that this rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order. This rule contains no drafting errors or ambiguity and is
written to minimize litigation, provides clear standards, simplifies
procedures, reduces burden, and is clearly written. These regulations
do not preempt any statute. They do supersede the current land
acquisition regulations and the current procedure for establishing
Indian Land Consolidation Areas. They would not be retroactive with
respect to any land already taken into trust, but would apply to
pending applications.
Paperwork Reduction Act
This regulation does require an information collection from ten or
more parties and a submission under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). The information collection requirements in
Secs. 151.4; 151.9; 151.12, 151.15, 151.18, and 151.26 under 44 U.S.C.
3501 et seq. have been submitted to the Office of Management and Budget
for approval and assigned clearance number 1076-xxxx. This information
is required from Indian tribes and individual Indians who wish to
convey land into trust status.
The burden associated with these requests is presented in a table
in the ADDRESSES section of the preamble, and public comments are
requested on these collections.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required
because this rule is of an administrative, technical, and procedural
nature.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of May 14, 1998,
``Consultation and Coordination with Indian Tribal Governments'' (FR
Vol. 63, No. 96, Pages 27655-27657) and 512 DM 2, we have evaluated any
potential effects upon Federally recognized Indian tribes and have
determined that there are no potential adverse effects. No action is
taken under this rule unless a tribe or an individual Indian
voluntarily requests that the United States place land in trust for
their benefit. Tribes will be asked for comments prior to publication
as a final regulation of this rule and their comments will be
considered prior to publication.
List of Subjects in 25 CFR Part 151
Indians--lands.
For the reasons set out in the preamble, we are proposing to revise
Part 151 in Chapter I of Title 25, of the Code of Federal Regulations
so that it will read as follows:
PART 151--ACQUISITION OF TITLE TO LAND IN TRUST
Subpart A--Purpose, Definitions, General
Sec.
151.1 What is the purpose of this part?
151.2 How are key terms defined in this part?
151.3 To what types of transactions does this part apply?
151.4 How does an individual Indian or a tribe apply to have title
to land conveyed to the United States in trust?
151.5 How do we process a request?
151.6 How do we proceed after making a decision on a request?
151.7 When does the land attain trust status?
[[Page 17582]]
151.8 Will we accept and hold in trust an undivided fractional
interest in land for an individual Indian or a tribe?
Subpart B--Discretionary Acquisitions of Title On-Reservation
151.9 What information must be provided in a request involving land
inside a reservation or inside an approved Tribal Land Acquisition
Area?
151.10 What criteria will we use to evaluate a request involving
land inside a reservation or inside an approved Tribal Land
Acquisition Area?
151.11 Can an individual Indian or a tribe acquire land inside a
reservation or inside an approved Tribal Land Acquisition Area of
another tribe?
Subpart C--Mandatory Acceptance of Title Off-Reservation
151.12 What information must be provided in a request involving
land outside a reservation or outside a Tribal Land Acquisition
Area?
151.13 Can an individual Indian acquire land outside his or her own
reservation?
151.14 What criteria will we use to evaluate a request involving
land outside a reservation or outside an approved Tribal Land
Acquisition Area?
Subpart D--Mandatory Acquisitions of Title
151.15 What information must be provided in a request to process a
mandatory transfer of title into trust status, and how will we
process the request?
151.16 Can our determination that a transfer of title into trust
status is mandatory be appealed?
Subpart E--Tribal Land Acquisition Areas
151.17 What is a Tribal Land Acquisition Area?
151.18 What must be included in a request for Secretarial approval
of a Tribal Land Acquisition Area?
151.19 How is a tribal request for Secretarial approval processed?
151.20 What criteria will we use to decide whether to approve a
proposed Tribal Land Acquisition Area?
151.21 Can a tribe include in its Tribal Land Acquisition Area land
inside another tribe's reservation or Tribal Land Acquisition Area?
151.22 If a Tribal Land Acquisition Area is not approved, is the
tribe prohibited from acquiring land within it?
151.23 If a Tribal Land Acquisition Area is approved, does the land
taken into trust within it attain reservation status?
151.24 Can a Tribal Land Acquisition Area be modified after
approval?
Subpart F--False Statements, Recordkeeping, Information Collection
151.25 What is the penalty for making false statements in
connection with a request that we place land in trust?
151.26 What recordkeeping and reporting requirements apply to
acquisitions of trust title under this part?
151.27 Do information collections under this part have Office of
Management and Budget approval?
Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat.
1106, as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as
amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69
Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75
Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174,
as amended; 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216;
86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716;
88 Stat. 2203; 88 Stat. 2207; 18 U.S.C. 1001; 25 U.S.C. 2, 9, 409a,
450h, 451, 464, 465, 467, 487, 488, 489, 501, 502, 573, 574, 576,
608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other
authorizing acts.
Subpart A--Purpose, Definitions, General
Sec. 151.1 What is the purpose of this part?
The purpose of this part is to describe the authorities, policies,
and procedures that we use to decide whether to accept title to land in
the name of the United States to be held in trust for the benefit of an
individual Indian or a tribe.
Sec. 151.2 How are key terms defined in this part?
Alienation means a conveyance or transfer of title to property.
Bureau means the Bureau of Indian Affairs within the Department of
the Interior.
Discretionary acquisitions of title means those acquisitions of
trust title which we are authorized, but are not required, to accept
administratively.
Encumbrance means a limitation on the title of property, such as a
claim, lien, easement, charge, or restriction of any kind.
Fee simple land means title to land is absolute and clear of any
condition or restriction, and with unconditional power of disposition.
Host tribe means the tribe having jurisdiction over the land being
acquired.
Individual Indian means a person who:
(1) Is a member of a federally recognized tribe; or
(2) Was physically residing on a federally recognized Indian
reservation as of June 1, 1934, and is a descendant of an enrolled
member of a federally recognized tribe; or
(3) Possesses a total of one-half degree or more Indian blood of a
federally recognized tribe.
Land means real property or any title interest therein, as defined
by the statute that authorizes the land acquisition.
Legislative transfer of title means the direct transfer of title to
land into trust status for the benefit of an individual Indian or
Indian tribe by Congress through legislation. The regulations in this
part do not apply to legislative transfers of title.
Mandatory acceptance of title means a conveyance of trust title
which Congress has required the Secretary to accept if certain
specified conditions over which the Secretary has no control are met.
Reservation means that area of land which has been set aside or
which has been acknowledged as having been set aside by the United
States for the use of the tribe, the exterior boundaries of which are
more particularly defined in the final tribal treaty, agreement,
Executive Order, federal statute, Secretarial Order, or judicial
determination, except that in the State of Oklahoma, ``reservation''
means that area of land constituting the former reservation of the
tribe. ``Former reservation'' means lands that are within the
jurisdictional area of an Oklahoma Indian tribe and that are within the
boundaries of the last reservation established by treaty, Executive
Orders, or Secretarial Orders.
Restricted fee land means land for which an individual Indian or a
tribe holds fee simple title subject to limitations or restrictions
against alienation or encumbrance as set forth in the title and/or by
operation of law.
Secretary means the Secretary of the Interior or an authorized
representative.
Tribal Land Acquisition Area means a geographic boundary designated
by a tribe that does not have a reservation, within which the tribe
plans to acquire land over a specified period of time.
Tribe means any Indian tribe, nation, band, pueblo, town,
community, rancheria, colony, or other group of Indians, which is
recognized by the Secretary as eligible for the special programs and
services provided by the Bureau of Indian Affairs, and listed in the
Federal Register under Pub. L. 103-454, Act of Nov. 2, 1994 (108 Stat.
4791; 25 U.S.C. 479a (1994)).
Trust land means land, or an interest therein, for which the United
States holds fee title in trust for the benefit of an individual Indian
or a tribe.
Undivided fractional interest means that the interest of co-owners
is in the entire property and that such interest is indistinguishable.
The interest has not been divided out from the whole parcel. (Example:
If you own \1/4\ interest in 160 acres, you do not own 40 acres. You
own \1/4\ of the whole 160 acres because your \1/4\ interest has not
been divided out from the whole 160 acres.)
We means the Secretary of the Interior or an authorized
representative.
Sec. 151.3 To what types of transactions does this part apply?
(a) Except as provided in paragraphs (b) and (c) of this section,
this part
[[Page 17583]]
applies to all fee simple land-to-trust, restricted fee land-to-trust,
trust-to-trust, and land exchange transactions.
(b) This part does not apply to the following transactions:
(1) Fee to restricted fee or restricted fee to restricted fee;
(2) The transfer of title of trust land through inheritance or
escheat; or
(3) The Legislative transfer of title into trust status.
(c) We will not accept title to land in trust in the State of
Alaska, except for the Metlakatla Indian Community of the Annette
Island Reserve of Alaska or its members.
Sec. 151.4 How does an individual Indian or a tribe apply to have
title to land conveyed to the United States in trust?
Individual Indians and tribes must send us a written request asking
that we accept title and place the land into trust.
(a) The request must:
(1) Identify the applicant (including the applicant's tribal
affiliation);
(2) Include the legal description of the land to be acquired; and
(3) Include all information which shows that the proposed
acquisition meets the applicable requirements in this section.
(b) The request does not need to be in any special form. However,
we strongly urge the applicant to address each section of this part
that is relevant to the type of acquisition (e.g., on- or off-
reservation, discretionary or mandatory), in the order it appears here.
Constructing the request in this way will enable us to review the
request more efficiently.
(c) We may also ask for additional information to aid us in
reaching a decision.
Sec. 151.5 How do we process the request?
(a) After we receive the request, we will notify the State, county,
and municipal governments having regulatory jurisdiction over the land.
We will send all notices under this section by certified mail, return
receipt requested. The notice will contain the information described in
paragraph (a)(1) or (a)(2) of this section, as appropriate.
(1) If the request is for on-reservation lands or lands inside an
approved Tribal Land Acquisition Area, the notice we send under this
section will:
(i) Include the name of the applicant;
(ii) Describe the lands proposed to be taken in trust;
(iii) State the proposed use of the land; and
(iv) Invite the State and local governments from the State in which
the land is located to comment in writing within 30 days on the
proposed acquisition.
(2) If the request is for land outside a reservation and outside a
Tribal Land Acquisition Area, the notice we send under this section
will:
(i) Include the name of the applicant;
(ii) Describe the lands proposed to be taken in trust;
(iii) Describe the proposed use of the land; and
(iv) Invite the State and local governments from the State in which
the land is located to comment in writing within 60 days on the
acquisition's potential effects on the State and local governments,
including on their regulatory jurisdiction, real property taxes, and
special assessments.
(b) After the comment period has ended, we will send to the
applicant copies of any comments made by State or local governments on
the applicant's request. We will give the applicant a reasonable time
in which to reply to the comments.
(c) Subject to restrictions on disclosure required by the Freedom
of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and
the Trade Secrets Act (18 U.S.C. 1905) the request will be available
for review at the local BIA agency or area office having administrative
jurisdiction over the land.
(d) We will consider all the documentation that the applicant
submits.
Sec. 151.6 How do we proceed after making a decision on the request?
(a) We will send the applicant a certified letter describing our
decision to accept or deny a request. We will also send a copy of the
decision letter to everyone (including State and local governments) who
sent us written comments on the request. The notice to interested
parties will explain that they have a right to appeal our decision
under part 2 of this title.
(b) If our decision is to deny the request, we will take no further
action.
(c) If our decision is to approve the request, after the exhaustion
of administrative remedies we will:
(1) Complete a preliminary title examination. For both
discretionary and mandatory acquisitions, after we examine the title
evidence, we will notify the applicant of any liens, encumbrances, or
infirmities. If the liens, encumbrances, or infirmities make title to
the land unmarketable, we will require the applicant to eliminate the
liens, encumbrances, or infirmities before we act on the application.
(2) Publish in the Federal Register, or in a newspaper of general
circulation serving the affected area, a notice of the decision to take
land into trust under this part. The notice will state that we have
made a final decision to take land in trust and that we will accept
title in the name of the United States no sooner than 30 days after the
notice is published;
(3) Act on any judicial appeals that may be filed; and
(4) After the exhaustion of judicial remedies, accept trust title
to the land by issuing or approving an appropriate instrument of
conveyance.
Sec. 151.7 When does land attain trust status?
After the Secretary has published notice of intent to take the land
into trust pursuant to Sec. 151.6 (c)(2), the time period for appeal
has run, all appeals rights have been exhausted, and all title
objections have been cleared, we will approve or issue the appropriate
instrument of conveyance. Only after these steps have been completed
will the land attain trust status. The approved deed will then be
recorded in the county where located, title evidence will be updated, a
final title opinion will be issued and the deed will be recorded in the
appropriate Bureau of Indian Affairs title plant under part 150 of this
chapter.
Sec. 151.8 Will we accept and hold in trust an undivided fractional
interest in land for an individual Indian or a tribe?
We will not accept and hold in trust for an individual Indian or a
tribe an undivided fractional interest in land, except under one of the
following conditions:
(a) The individual Indian or tribe already owns an undivided
fractional restricted or trust interest in the land, and is acquiring
the additional interest(s) to consolidate ownership.
(b) The individual Indian or tribe acquires the undivided
fractional interest as the result of a gift under Sec. 152.25(d) of
this chapter and the conveyance does not result in further
fractionation of interest in the land.
(c) The individual Indian or tribe is acquiring interest in fee and
there are existing undivided fractional trust or restricted interests
in the same land.
(d) The individual Indian or tribe offers and agrees to purchase
the remaining undivided fractional trust or restricted interest in the
land, at not less than fair market value.
(e) A specific statute grants the individual Indian or tribe the
right to purchase an undivided fractional interest in trust or
restricted land without offering to purchase all interests.
[[Page 17584]]
(f) A majority of the owners of the remaining undivided trust or
restricted fractional interest agree in writing that the individual
Indian or tribe may acquire the interest.
(g) Under the Indian Land Consolidation Act, 25 U.S.C. 2201 et
seq., a tribe may acquire an undivided fractional interest in trust or
restricted land under these conditions:
(1) The land is inside the tribe's reservation, or inside an
approved Tribal Land Consolidation Area, or is otherwise subject to the
tribe's jurisdiction, and
(2) The tribe acquires the land:
(i) At not less than the fair market value; and
(ii) With the written consent of a majority of the owners of the
remaining undivided fractional trust or restricted interest of this
land.
(h) The tribe acquires, at not less than the fair market value,
part or all of the undivided fractional interests in a parcel of trust
or restricted land within the tribe's reservation, or subject to the
tribe's jurisdiction and:
(1) Over 50 percent of the owners of the undivided fractional
interests consent in writing to the acquisition; or
(2) An individual Indian makes an offer under paragraph (e) of this
section.
(i) An individual Indian:
(1) Already owns an undivided fractional interest in the land;
(2) Offers to match a tribal offer to purchase under paragraph (d)
of this section; and
(3) Has used and possessed the land for at least 3 years preceding
the tribe's offer to purchase.
Subpart Part B--Discretionary Acquisitions of Title On-Reservation
Sec. 151.9 What information must be provided in a request involving
land inside a reservation or inside an approved Tribal Land Acquisition
Area?
A request from an individual Indian or a tribe asking that the
United States accept title to land inside a reservation boundary or to
land inside an approved Tribal Land Acquisition Area must include:
(a) A complete description, or a copy, of the federal statute that
authorizes the United States to accept the land in trust and any
limitations contained in the authority.
(b) An explanation of why the individual Indian or tribe needs land
to be in trust and how the land will be used. This explanation is a
crucial factor in determining if the request should be approved.
(c) If the applicant is a tribe, an explanation of whether the
tribe:
(1) Already owns an undivided fractional trust or restricted
interest in the land; and
(2) Maintains jurisdiction over the land.
(d) If the applicant is an individual Indian, an explanation of:
(1) Whether the applicant already owns an undivided fractional
trust or restricted interest in the land;
(2) The amount of land that the applicant already owns and the
status of the land (fee, restricted, or trust); and
(3) Whether the applicant needs assistance in handling real estate
affairs. For example, tell us if the applicant is a minor or has been
declared legally incompetent.
(e) Title insurance or an abstract of title that meets the
Standards for the Preparation of Title Evidence in Land Acquisitions by
the United States, issued by the U. S. Department of Justice.
(f) Documentation that we need to comply with 516 DM 6, Appendix 4,
National Environmental Policy Act (NEPA) Revised Implementing
Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substances
Determinations. (For copies of these directives, see the Department of
Interior, Bureau of Indian Affairs web site at: http://www.doi.gov/
bureau-indian-affairs.html>.) Include a record of consultation with
appropriate authorities regarding environmental, endangered species,
water quality, fish and wildlife, wetlands, transportation, air
quality, cultural, historical value, hazardous waste, and toxic
material issues.
Sec. 151. 10 What criteria will we use to evaluate requests involving
land inside a reservation or inside an approved Tribal Land Acquisition
Area?
We will review all information submitted under Sec. 151.9. We may
decide to accept trust title to the land if the acquisition meets all
of the following criteria:
(a) We determine that the conveyance is necessary to facilitate
tribal self-determination, economic development, Indian housing, or
land consolidation;
(b) There is legal authority that authorizes us to accept the land
in trust;
(c) The request is complete (including all supporting documents);
(d) The request will benefit the economic and/or social condition
of the applicant;
(e) There is title insurance or an abstract of title that meets the
Standards for the Preparation of Title Evidence in Land Acquisitions by
the United States, issued by the U. S. Department of Justice;
(f) There is information sufficient for compliance with 516 DM 6,
Appendix 4, National Environmental Policy Act (NEPA) Revised
Implementing Procedures, and 602 DM 2, Land Acquisitions: Hazardous
Substances Determinations, including, a record of coordination with
agencies having jurisdiction over cultural, historic, or natural
resources; and
(g) We determine after mitigation of effects on the environment,
cultural resources, historic resources, and endangered or threatened
species, that the conveyance is consistent with applicable
environmental, cultural, historic, or natural resources law.
Sec. 151.11 Can an individual Indian or a tribe acquire land inside a
reservation or inside an approved Tribal Land Acquisition Area of
another tribe?
An individual Indian or a tribe, including individual Indians and
tribes in Oklahoma, may acquire land in trust on another tribe's
reservation, or inside another tribe's approved Tribal Land Acquisition
Area, if the host tribe's governing body consents in writing. No
consent is required if:
(a) An individual Indian or tribe already owns an undivided
fractional trust or restricted interest in the parcel of land to be
acquired; or
(b) The proposed acquisition is inside a reservation or an approved
Tribal Land Acquisition Area that is shared by two or more tribes, and
the acquisition is for one of these tribes, or one of these tribes'
members.
Subpart C--Discretionary Acquisitions Off-Reservation
Sec. 151.12 What information must be provided in a request involving
land outside a reservation or outside a Tribal Land Acquisition Area?
A request from an individual Indian or a tribe asking that the
United States accept title to land outside a reservation boundary and
outside an approved Tribal Land Acquisition Area, must include:
(a) A complete description, or a copy of, the statutory authority
that authorizes the United States to accept land in trust and any
limitations contained in the authority;
(b) An explanation of the need of the individual Indian or tribe
for land in trust and how the land will be used. This explanation is a
crucial factor in determining if the request should be approved. The
request must explain:
(1) Why the present land base is not appropriate for the activity
contemplated in the request;
(2) Why the applicant needs the land in trust for the proposed use;
and
[[Page 17585]]
(3) How trust status will benefit the applicant's economic and/or
social conditions.
(c) A description of how the applicant will use the land. This
description must include an explanation of:
(1) The past uses of the land;
(2) The present use of the land;
(3) The anticipated future uses of the land;
(4) The cultural or historical interest in the land;
(5) The objectives that the individual Indian or tribe hopes to
attain; and
(6) If the acquisition is for housing:
(i) The projected number of units to be built; and
(ii) The number of members who will benefit.
(7) If the applicant is acquiring the land for business purposes,
the tribe must provide a business plan that specifies the anticipated
economic benefits of the proposed use.
(d) A description of the following:
(1) The location of the land relative to State boundaries;
(2) The distance of the land from the boundaries of the tribe's
reservation;
(3) The distance of the land from the Bureau's agency or area
office;
(4) The location of roads and rights-of-way that provide access to
the land; and
(5) The location of land in relation to the tribe's other trust
lands.
(e) A description of the effect on the State and its political
subdivisions of removing the land from tax rolls. Describe any measures
the applicant will take to reduce these effects. The description of
effects must include an explanation of:
(1) The amount of annual taxes currently assessed by the local
governments;
(2) The amount of annual revenue lost from special assessments to
the local governments, if any;
(3) The amount of annual revenue lost from mineral receipts to the
local governments, if any; and
(4) The local governments' ability to provide public safety
services for the land.
(f) A description of any jurisdictional and land use infrastructure
issues that might arise. The description must address each of the
following issues.
(1) Zoning, including:
(i) The current zoning of the land;
(ii) Any proposed use conflicts with current zoning; and
(iii) Any tribal zoning ordinances.
(2) Law enforcement and cross-deputization, including:
(i) Who currently provides law enforcement services for the land;
(ii) Whether the tribe already has its own law enforcement;
(iii) Who will supply law enforcement if the land is approved for
trust status; and
(iv) Any additional resources required to provide adequate law
enforcement and how they will be funded.
(3) Safety factors, including:
(i) Who supplies fire protection service for the land;
(ii) Who supplies emergency medical service for the land; and
(iii) If the land is in a flood area or flood control area.
(4) Traffic, roads, and streets, including:
(i) Access to the land;
(ii) A description and quantification of anticipated increased
traffic in the area from proposed use; and
(iii) A description of whether existing roads and streets are
adequate to handle any anticipated increase in traffic caused by the
proposed use.
(5) Sanitation, including whether:
(i) The land is on a city sewage system;
(ii) The land is served by an adequate sewage system that meets
applicable standards;
(iii)Trash pickup service or another method of trash disposal is
available for the land;
(iv) The city or another facility supplies services to the land;
(v) There is an adequate water supply for the proposed use and any
future anticipated uses; and
(vi) Whether the tribe has water rights to the available water
supply.
(6) Utilities, including:
(i) Whether a city or a rural electric company supplies electricity
to the land; and
(ii) The source of heating for the land, such as: natural gas,
propane, oil, coal, wood, electric, or solar.
(7) Whether there are any cooperative agreements or voluntary
actions intended to address jurisdictional and land use conflicts.
(8) Whether the tribe has made any provisions to compensate the
State or local governments for revenue lost because of the removal of
the land from the tax rolls. (Include any increases in Title IX funding
from the Indian Education Act or Impact Aid funding.)
(g) Whether there is title evidence that meets the Standards for
the Preparation of Title Evidence in Land Acquisitions by the United
States, issued by the U. S. Department of Justice. The evidence will be
examined to determine if the applicant has marketable title.
(h) The documentation that we need to comply with 516 DM 6,
Appendix 4, National Environmental Policy Act (NEPA) Revised
Implementing Procedures, and 602 DM 2, Land Acquisitions: Hazardous
Substances Determinations. (For copies of these directives, see the
Bureau of Indian Affairs web site at: http://www.doi.gov/bureau-
indian-affairs.html>.) Include a record of consultation with
appropriate authorities regarding environmental, endangered species,
water quality, fish and wildlife, wetlands, transportation, air
quality, cultural, historical value, hazardous waste, and toxic
material issues.
(i) If the request is for an individual Indian, documentation
demonstrating that the applicant's request meets one of the criteria
described in Sec. 151.13.
Sec. 151.13 Can an individual Indian acquire land outside his or her
own reservation?
Except as provided in paragraphs (a) and (b) of this section, we
will not accept title to land in trust outside an individual Indian's
reservation. We may approve acquisitions of land outside an individual
Indian's reservation if:
(a) The individual Indian already owns an undivided fractional
trust or restricted interest in the property being acquired; or
(b) The individual Indian has sold trust or restricted interest in
land and the money received from the sale is reinvested in other land
selected and purchased with these funds, or the individual Indian is
purchasing land with funds obtained as a result of a sale of trust or
restricted land under 25 U.S.C. 409a.
Sec. 151.14 What criteria will we use to evaluate a request involving
land outside a reservation or outside an approved Tribal Land
Acquisition Area?
We will review all information submitted under section Sec. 151.12.
We may decide to place the land in trust if we determine that the
application meets all of the following criteria:
(a) We determine that the conveyance is necessary to facilitate
tribal self-determination, economic development, Indian housing, or
land consolidation;
(b) There is legal authority that authorizes us to accept land in
trust;
(c) The request is complete (including all supporting documents);
(d) The acquisition will benefit the tribe's economic and/or social
conditions;
(e) There is title evidence that meets the Standards for the
Preparation of Title Evidence in Land Acquisitions by the United
States, issued by the U. S. Department of Justice;
(f) There is information sufficient for compliance with 516 DM 6,
Appendix 4, National Environmental Policy Act (NEPA) Revised
Implementing
[[Page 17586]]
Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substances
Determinations: a record of coordination with agencies having
jurisdiction over cultural, historic, and natural resources;
(g) We determine after mitigation of impacts on the environment,
cultural resources, historic resources, and endangered or threatened
species, that the conveyance is consistent with applicable
environmental, cultural and historic resources law, and the Endangered
Species Act;
(h) We determine that any adverse impacts on local governments and
communities are reasonable compared to the benefits flowing to the
applicant from taking the land in trust;
(i) The Bureau of Indian Affairs is equipped to handle the
additional responsibilities of this acquisition and has sufficient
staff to perform inspections for rights-of-way, leasing, soil
conservation, and oil and gas exploration, or any other
responsibilities resulting from the acquisition of the land in trust
status; and
(j) The location of the land relative to State boundaries, and its
distance from the boundaries of the tribe's reservation, is reasonable
based in part on the following:
(1) If the land is in a different state than the tribe's
reservation, the tribe's justification of anticipated benefits from the
acquisition will be subject to greater scrutiny.
(2) As the distance between the tribe's reservation or approved
Tribal Land Acquisition area and the land to be acquired increases, the
tribe's justification of anticipated benefits from the acquisition will
be subject to greater scrutiny.
(3) As the distance between the tribe's reservation or approved
Tribal Land Acquisition Area and the land to be acquired increases, the
concerns raised by the state and local governments will be given
greater weight.
Subpart D--Mandatory Acceptance of Title
Sec. 151.15 What information must be provided in a request to process
a mandatory transfer of title into trust status, and how will we
process the request?
(a) To help us determine whether we are mandated by legislation to
accept trust title to a specific tract of land, we require submission
of the following documentation:
(1) A complete description, or a copy of, the statutory authority
that directs the United States to place the land in trust, and any
limitations contained in that authority;
(2) Title insurance or an abstract of title that meets the
Standards for the Preparation of Title Evidence in Land Acquisitions by
the United States, issued by the U.S. Department of Justice; and
(3) Any additional information that we may request.
(b) If we determine that the transfer of title into trust status is
mandatory, we will publish that determination and a notice of intent to
take the land in trust in the Federal Register.
Sec. 151.16 Can our determination that a transfer of title into trust
status is mandatory be appealed?
The Department's determination that a transfer of title into trust
status is ``mandatory'' may be appealed according to requirements set
forth in part 2 of this title.
Subpart E--Tribal Land Acquisition Areas
Sec. 151.17 What is a Tribal Land Acquisition Area?
A Tribal Land Acquisition Area is a geographic boundary designated
by a reservation-less tribe within which the tribe plans to acquire
land within a 10-year period. If the Secretary approves the Tribal Land
Acquisition Area under this part, the reservation-less tribe can
acquire parcels of land within the Tribal Land Acquisition Area during
that 10-year period under the on-reservation provisions of this part.
Sec. 151.18 What must be included in a request for Secretarial
approval of a Tribal Land Acquisition Area?
A request for Secretarial approval of a Tribal Land Acquisition
Area must be made in writing, although we do not require that it take
any special form. However, we strongly urge the applicant to address
each applicable section of this part in the order it appears here.
Constructing the application in this way will help us review the
request more efficiently. To be complete, a request for Secretarial
approval of a Tribal Land Acquisition Area must identify the applicant
tribe, and must include:
(a) A complete description, or a copy, of the federal statute(s)
that authorize the United States to accept land in trust on behalf of
the tribe, and any limitations contained in that authority.
(b) Copies of tribal documents relating to the establishment of the
Tribal Land Acquisition Area and the acquisition of land within it,
including:
(1) A copy of the tribe's constitution and by-laws, corporate
charter, resolution, or excerpts from those documents that identify and
grant tribal officials the authority to acquire tribal lands on behalf
of the tribe;
(2) A copy of a tribal resolution designating the Tribal Land
Acquisition Area, including a legal description of the lands located
within it; and
(3) A copy of a tribal resolution requesting that the Secretary
approve the proposed Tribal Land Acquisition Area.
(c) A narrative summary that describes the purposes and goals for
acquiring lands in trust within the Tribal Land Acquisition Area,
including general information about whether the lands are to be used
for residential, governmental, educational, economic development, or
other purposes.
(d) A narrative of the tribe's history that explains:
(1) When the tribe was federally recognized, and whether it was
through legislation, treaty, or the Bureau of Indian Affairs' Federal
Acknowledgment Process; and
(2) If applicable, how the tribe became dispossessed of its former
reservation lands.
(e) A description of the Tribal Land Acquisition Area, including:
(1) A legal description of the lands within the Tribal Land
Acquisition Area;
(2) Information about whether the lands are within the tribe's
former reservation or aboriginal homelands;
(3) Information about whether the lands are Federal lands, State
lands, or private lands;
(4) Information about whether the lands overlap with another
tribe's jurisdictional area;
(5) Information about the significance of the land to the tribe,
including whether the land has any particular historical, cultural,
religious, or other value to the tribe; and
(6) Information about the distance of the Tribal Land Acquisition
Area from the Bureau's nearest agency or area office.
(f) A description of the location of roads and rights-of-way, or of
additional rights-of-way that may be needed to provide access to lands
located within the Tribal Land Acquisition Area.
(g) A description of the reasonably anticipated overall effect on
the State and its political subdivisions of removing lands located
within the Tribal Land Acquisition Area from tax rolls, and a
description of any measures the applicant will take to reduce these
effects. The description of effects must include an explanation of:
(1) The amount of annual taxes currently assessed by the local
governments for lands located within the Tribal Land Acquisition Area;
[[Page 17587]]
(2) The amount of annual revenue which would be lost from special
assessments to the local governments, if any;
(3) The amount of annual revenue lost from mineral receipts to the
local governments, if any; and
(4) The local governments' ability to provide public safety
services for lands located within the Tribal Land Acquisition Area.
(h) A description of any overall jurisdictional and land use
infrastructure issues that might arise if the lands within the Tribal
Land Acquisition Area is taken into trust. The description must address
each of the following issues.
(1) Zoning, including:
(i) The current zoning of the land;
(ii) Any proposed use conflicts with current zoning; and
(iii) Applicable tribal zoning ordinances.
(2) Law enforcement and cross-deputization, including:
(i) Who currently provides law enforcement services for the land;
(ii) Whether the tribe already has its own law enforcement;
(iii) Who will supply law enforcement if the land is approved for
trust status; and
(iv) Whether additional resources would be needed to provide
adequate law enforcement.
(3) Safety factors, including:
(i) Who supplies fire protection service for lands located within
the Tribal Land Acquisition Area;
(ii) Who supplies emergency medical service for lands located
within the Tribal Land Acquisition Area; and
(iii) Information about whether lands located within the Tribal
Land Acquisition Area are in a flood area or flood control area.
(4) Traffic, roads, and streets, including:
(i) A description of current access to the land;
(ii) A description and quantification of anticipated increased
traffic in the area from proposed use; and
(iii) A description of whether existing roads and streets are
adequate to handle any anticipated increase in traffic caused by the
proposed use.
(5) Sanitation, including whether:
(i) The lands located within the Tribal Land Acquisition Area are
on a city sewage system;
(ii) The lands located within the Tribal Land Acquisition Area are
served by an adequate sewage system that meets applicable standards;
(iii) Trash pickup service or another method of trash disposal is
available for lands located within the Tribal Land Acquisition Area;
(iv) The city or another facility supplies sanitation services to
the lands located within the Tribe Land Acquisition Area;
(v) There is an adequate water supply for the proposed use and any
future anticipated uses; and
(vi) Whether the tribe has water rights to the available water
supply.
(6) Utilities, including:
(i) Whether a city or a rural electric company supplies electricity
to lands located within the Tribal Land Acquisition Area; and
(ii) The source of heating for lands located within the Tribal Land
Acquisition Area, such as: natural gas, propane, oil, coal, wood,
electric, or solar.
(7) Whether there exist any cooperative agreements or voluntary
actions intended to address jurisdictional and land use conflicts.
(8) Whether the tribe has made any provisions to compensate the
State and local governments for revenue lost because of the removal of
the lands from the tax rolls. (Include any increases in Title IX
funding from the Indian Education Act or Impact Aid funding.)
Sec. 151.19 How is a tribal request for Secretarial approval
processed?
When we receive a request for Secretarial approval of a Tribal Land
Acquisition Area, we will review the supporting documentation to
determine if the request meets the requirements of this part. If the
request is complete, we will:
(a) Provide notice of the request for Secretarial approval to the
Governor's Office, to appropriate local government officials, and to
appropriate officials of tribes located within a 50-mile radius of the
boundaries of the proposed Tribal Land Acquisition Area. Recipients of
the notice will be provided 60 days from the date of receipt in which
to comment on the proposed Tribal Land Acquisition Area and the request
supporting it. Other interested parties may also submit comments during
the 60-day consultation period.
(b) After the close of the consultation period, based on the
criteria described in Sec. 151.21, we will decide whether to approve
the Tribal Land Acquisition Area. Our decision on whether to approve
the Tribal Land Acquisition Area will be communicated in the form of a
certified letter to the applicant. We also will provide notice of our
decision to interested parties by sending a copy of the decision letter
to everyone (including State and local governments) who sent us written
comments on the request for approval.
(c) If we decide not to approve the Tribal Land Acquisition Area,
we will take no further action.
(d) If we decide to approve the Tribal Land Acquisition Area, we
will:
(1) Publish in the Federal Register, or in a newspaper of general
circulation serving the affected area, a notice of the decision to
approve the Tribal Land Acquisition Area; and
(2) Thereafter review requests to accept trust title land located
within the Tribal Land Acquisition Area as ``on-reservation''
acquisitions under the applicable on-reservation provisions in this
part.
Sec. 151.20 What criteria will we use to decide whether to approve a
proposed Tribal Land Acquisition Area?
In general, because tribes without reservations are significantly
disadvantaged, both in terms of cultural preservation and in terms of
being ineligible for federal land-based programmatic funding and
technical assistance, there is a presumption in favor of the tribe's
need for at least some trust land. However, in determining whether to
approve establishment of a Tribal Land Acquisition Area, we will
consider the individual circumstances of each applicant tribe,
surrounding community, and affected land base. There are some standard
criteria which will help direct our decision-making process. These
standard criteria include:
(a) The request must be complete and contain all supporting
documents;
(b) The statutory basis upon which the tribe proposes creation of
the Tribal Land Acquisition Area: if the tribe is the subject of a
statute directing the Secretary to take some unspecified land into
trust for the tribe's benefit the tribe will enjoy a greater
presumption in favor of approval of its proposed Tribal Land
Acquisition Area. (For example, there is statutory language such as
``the Secretary shall take land into trust within the tribe's service
area,'' or ``the Secretary shall take land into trust within X and Y
counties.'')
(c) The size of the proposed Tribal Land Acquisition Area in
relation to the size of the tribe's membership: we will look for a
reasonable connection between the amount of land the tribe wishes to
take into trust, and the basic trust needs (housing, health, employment
opportunities) of the tribe's membership.
(d) The relationship of the tribe to the lands located within the
Tribal Land Acquisition Area: we will give greater weight to a request
for approval of a Tribal Land Acquisition Area that encompasses lands
to which the tribe
[[Page 17588]]
has established a strong cultural, historical, and/or legal connection.
(e) The ability of the tribe and the local non-Indian community to
adjust to the jurisdictional changes that will occur if the lands
within the Tribal Land Consolidation Area are taken into trust,
including:
(1) That there are adequate arrangements for provision of police
and fire protecion and other emergency response for persons living
within the Tribal Land Consolidation Area (whether living on trust or
non-trust property);
(2) That there are adequate arrangements for provision of other
municipal-type services, such as garbage removal, water, sewage;
(3) That adverse impacts on local governments and communities are
reasonable compared to the benefits flowing to the applicant.
Sec. 151.21 Can a tribe include in its Tribal Land Acquisition Area
land inside another tribe's reservation or Tribal Land Acquisition
Area?
A tribe may include land inside the reservation boundaries or
within an approved Tribal Land Acquisition Area of another tribe, if:
(a) The host tribe's governing body consents in writing;
(b) The tribe already owns undivided fractional trust or restricted
interests in the tracts of land identified in its Tribal Land
Acquisition Area; or
(c) The tracts of land to be included in the plan are inside a
reservation or an approved Tribal Land Acquisition area that is shared
by two or more tribes, and the plan is for one of these tribes.
Sec. 151.22 If a Tribal Land Acquisition Area is not approved, is the
tribe prohibited from acquiring land within it?
No. However, the tribe will have to apply to have individual
parcels taken into trust under the off-reservation provisions of this
part.
Sec. 151.23 If a Tribal Land Acquisition Area is approved, does the
land taken into trust within it attain reservation status?
No. Lands taken into trust within a Tribal Land Acqusition Area
will enjoy ``Indian country'' status as that term has been defined in
relevant federal statutes and caselaw. However, those lands do not
attain ``reservation'' status by virtue of the Tribal Land Acquisition
Area having been approved by the Secretary. Reservation status can only
be attained if:
(a) The tribe has applied to the Secretary under 12 U.S.C. 467; or
(b) There is a specific federal statute designating the land as a
reservation.
Sec. 151.24 Can a Tribal Land Acquisition Area be modified after
approval?
Yes. However, the changes must be submitted with a request for
approval in compliance with the criteria in this part and must be
approved by the Secretary.
Subpart F--False Statements, Recordkeeping, Information Collection
Sec. 151.25 What is the penalty for making false statements in
connection with a request that we place land into trust?
Anyone who knowingly and willfully makes a false statement in
connection with a trust title acquisition request may be subject to
criminal prosecution under the False Statements Accountability Act of
1996, 18 U.S.C. 1001.
Sec. 151.26 What recordkeeping and reporting requirements apply to
acquisitions of trust title under this part?
(a) Each document that we hold or that is created in the
development of a request asking for land to be placed in trust is a
permanent federal case file record. The Bureau of Indian Affairs file
will maintain each of the documents in accordance with National
Archives and Records Administration requirements.
(b) The Secretary will negotiate with Indian tribes and tribal
organizations compacting and contracting under Title I or Title IV of
the Indian Self-Determination and Education Assistance Act, 25 U.S.C.
250 et seq., to ensure that such tribes and tribal organizations also
maintain each document in a case file in accordance with National
Archives and Records Administration rules and requirements, and to
ensure that they follow all Bureau reporting requirements concerning
this part.
Sec. 151.27 Do information collections under this part have Office of
Management and Budget approval?
(a) The information collection requirements contained in
Secs. 151.4; 151.9; 151.12; 151.15, 151.18, and 151.26 have been
approved by the Office of Management and Budget under 44 U.S.C. 33501
et seq. and assigned clearance number 1076-xxxx. It is a requirement of
the Paperwork Reduction Act that each respondent to any information
collection be notified that an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a current valid OMB control number pursuant to 35
U.S.C. 3506(c)(B)(V); 44 CFR 1320 8(b)(3)(vii). Indian tribes and
individuals must submit the information required under these sections
to acquire land into trust. We will use the information in making a
determination on an application to take land into trust. The applicant
must respond to this request to obtain a benefit.
(b) Public reporting for on-reservation information collection is
estimated to average 4 hours per response, including the time for
reviewing instructions, gathering and maintaining data, and completing
and reviewing the information collected. Public reporting for off-
reservation information collection is estimated to average 8 hours per
response, including the time for reviewing instructions, gathering and
maintaining data, and completing and reviewing the information
collected. Comments regarding the burden estimate or any other aspect
of this information collection should be sent to the Bureau of Indian
Affairs, Information Collection Clearance Officer, 1849 C Street, NW,
Washington, DC 20240; and Attention: Desk Officer, for the Department
of the Interior, Office of Information and Regulatory Affairs [OMB
Control Number 1076-xxxx], Office of Management and Budget, Docket
Library, Room 10102, 725 17th Street, NW, Washington, DC 20502.
Dated: April 2, 1999.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 99-8851 Filed 4-9-99; 8:45 am]
BILLING CODE 4310-02-P
