[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Rules and Regulations]
[Pages 18082-18083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9922]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 151
[1076-AD65]
Land Acquisitions
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final Rule.
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SUMMARY: This rule establishes a 30-day waiting period after final
administrative decisions to acquire land into trust under the Indian
Reorganization Act and other federal statutes. The Department is
establishing this waiting period so that parties seeking review of
final decisions by the Interior Board of Indian Appeals or of decisions
of the Assistant Secretary-Indian Affairs, will have notice of
administrative decisions to take land into trust before title is
actually transferred. This notice allows interested parties to seek
judicial or other review under the Administrative Procedure Act and
applicable regulations.
EFFECTIVE DATE: April 24, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Jane Sheppard, Staff Attorney,
Office of the Solicitor, Division of Indian Affairs, Room 6456, Main
Interior Building, 1849 C Street, NW, Washington, DC 20240; Telephone
(202) 208-6260.
SUPPLEMENTARY INFORMATION: On July 15, 1991, the proposed rule for off-
reservation land acquisitions for Indian tribes was published in the
Federal Register (56 FR 32278-32280). On June 23, 1995, the final rule
was published at 60 FR 32878. That rulemaking supplemented the existing
regulations in part 151. This procedural rule adds a subsection to
existing 25 CFR 151.12, Action on requests.
Background
In response to a recent court decision, State of South Dakota v.
U.S. Department of the Interior, 69 F.3d 878 (8th Cir. 1995), the
Department of the Interior is establishing a procedure to ensure the
opportunity for judicial review of administrative decisions to acquire
title to lands in trust for Indian tribes and individual Indians under
section 5 of the Indian Reorganization Act (IRA) (Pub. L. 73-383, 48
Stat. 984-988, 25 U.S.C. 465). Following consideration of the factors
in the current regulations and completion of the title examination, the
Department, through Federal Register notice, or other notice to
affected members of the public, will announce any final administrative
determination to take land in trust. The Secretary will not acquire
title to the land in trust until at least 30 days after publication of
the announcement. This procedure permits judicial review before
transfer of title to the United States. The Quiet Title Act (QTA), 28
U.S.C. 2409a, precludes judicial review after the United States
acquires title. See, e.g., United States v. Mottaz, 476 U.S. 834
(1986); North Dakota v. Block, 461 U.S. 273 (1983); Florida v.
Department of Interior, 768 F.2d 1248 (11th Cir. 1985).
Section 5 of the IRA authorizes the Secretary to acquire land in
trust for Indians and Indian tribes: (1) Within or adjacent to an
Indian reservation; or (2) for purposes of facilitating tribal self-
determination, economic development, or Indian housing. State of South
Dakota, a case involving an off-reservation trust land acquisition,
held Section 5 of the IRA unconstitutional on the ground that it
violates the nondelegation doctrine. The court's decision was based in
substantial part on the understanding that judicial review is not
available to challenge the Secretary's action. The court noted that
``judicial review is a factor weighing in favor of upholding a statute
against a nondelegation challenge.'' This rule ensures that such review
is available before formal conveyance of title to land to the United
States, when the QTA's bar to judicial review becomes operative.
Judicial review is available
[[Page 18083]]
under the APA because the IRA does not preclude judicial review and the
agency action is not committed to agency discretion by law within the
meaning of the APA.
While the Eighth Circuit decision precludes the Secretary from
taking into trust the land at issue in that particular case, new trust
acquisitions will be made on a case-by-case basis. The procedure
announced in today's rule, however, will apply to all pending and
future trust acquisitions.
The Department certifies that this procedural rule meets the
standards provided in Sections 2(a) and 2(b)(2) of Executive Order
12778.
The Department has determined that this rule:
--Does not have significant federalism effects.
--Will not have significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
--Does not have significant takings implications under E.O. 12630.
--Does not have significant effects on the economy, nor will it result
in increases in costs or prices for consumers, individual industries,
Federal, State, or local governments, agencies, or geographical
regions.
--Does not have any adverse effects on competition, employment,
investment, productivity, innovation, or the export/import market.
--Is categorically excluded from the National Environmental Policy Act
of 1969 because it is of an administrative, technical, and procedural
nature. Therefore, neither an environmental assessment nor an
environmental impact statement is warranted.
This rule is not a significant rule under E.O. 12866 and does not
require approval by the Office of Management and Budget.
This rule is not a major rule as defined in 5 U.S.C. 804. The
annual number of tribal requests to place lands in trust is small.
There will be costs incurred by a party seeking judicial review. The
author of this rule is: Mary Jane Sheppard, Office of the Solicitor,
U.S. Department of the Interior.
Because this is a procedural rule under Section 553(b)(3)(A) of the
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., it is exempt
from requirements for notice and comment rulemaking.
List of Subjects in 25 CFR Part 151
Indians--lands.
For reasons set out in the preamble, Part 151 of Title 25, Chapter
I of the Code of Federal Regulations is amended as set forth below.
PART 151--LAND ACQUISITIONS (NONGAMING)
1. The authority for part 151 continues to read as follows:
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; 25 U.S.C. 2, 9, 409a, 450h, 451, 464,
465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a,
622, 624, 640d-10, 1466, 1495, and other authorizing acts.
2. Section 151.12, Action on requests, is amended by designating
the existing text as paragraph (a) and by adding a new paragraph (b) to
read as follows:
Sec. 151.12 Title examination.
* * * * *
(b) Following completion of the Title Examination provided in
Sec. 151.13 of this part and the exhaustion of any administrative
remedies, the Secretary shall publish in the Federal Register, or in a
newspaper of general circulation serving the affected area a notice of
his/her decision to take land into trust under this part. The notice
will state that a final agency determination to take land in trust has
been made and that the Secretary shall acquire title in the name of the
United States no sooner than 30 days after the notice is published.
Dated: April 17, 1996.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 96-9922 Filed 4-29-96; 8:45 am]
BILLING CODE 4310-02-M
