01-20254. Acquisition of Title to Land in Trust

AGENCY:

Bureau of Indian Affairs

ACTION:

Notice of proposed withdrawal of final rule; request for comments

SUMMARY:

This action seeks public comment on whether the Final Rule entitled “Acquisition of Title to Land in Trust” should be withdrawn and a further rule proposed to better address the public's continued concerns regarding the Department's procedures for taking land into trust for federally-recognized Indian tribes.

DATES:

Comments regarding this rulemaking should be received by September 12, 2001.

ADDRESSES:

Comments regarding this action should be submitted to: Terry Virden, Director, Office of Trust Responsibilities, MS 4513 MIB, 1849 C Street, NW, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Terry Virden, Office of Trust Responsibilities, MX 4513 MIB, 1849 C Street, NW, Washington, DC 20240; telephone [phone].

SUPPLEMENTARY INFORMATION:

The rule entitled “Acquisition of Title to Land in Trust” was published in the Federal Register on January 16, 2001, and its effective date was extended by a Notice published in the Federal Register on April 16, 2001. This effective date of this rule has been further extended to November 10, 2001, by action taken today in this issue of the Federal Register.

During the comment period first extending the effective date of this rule (April 16-June 15, 2001), the Department received 192 submissions from a variety of Indian tribes, state and local governments, and other interested groups and individuals. The comments articulated a variety of opposing views. For example, comments stated that the final rule should be revoked, amended in part only, changed in specific ways or made immediately effective. Even though many comments suggested amending only certain parts of the final rule, the Department finds that it may be impracticable and inefficient to repeal only part of the final rule. While the Department continues to review these comments during a further extension of the effective date, as published in today's issue of the Federal Register, the Department is seeking comments on whether to withdraw the final rule and propose a new rule that would better speak to the ongoing concerns of the public regarding the Department's procedures for taking land into trust for federally-recognized tribes.

Comments that are being reviewed concern several areas of the final rule. One area of concern is individual applications for lands into trust for housing or home site purposes. The Department is considering the advisability of expediting and prioritizing these types of applications under a new proposed rule. Applications for housing or home site purposes could be identified as acquisitions containing five (5) acres of land or less for the purpose of meeting individual housing needs. Another area of concern has been land use issues on off-reservation acquisitions and land use issues with the designation of Tribal Land Acquisition Areas (TLAA). In applications for off-reservation acquisitions, the Department is considering the advisability of requiring that tribes submit land use plans for the parcel to be acquired. The Secretary would approve those land use plans as part of her review of the application. In addition, when a tribe submits an application to the Secretary for approval of a TLAA, the Department is considering the advisability of requiring that the application contain a land use plan for the TLAA which the Secretary would approve as part of her review and approval of the TLAA designation.

Several comments focused on the lack of standards contained in the final rule. The Department is considering clarifying the standards that will be used by the Secretary to determine whether to approve an application and defining the burdens of proof that the applicant and those opposing a trust application have to the application. For on-reservation acquisitions, the Department is considering requiring a tribe or individual to show by substantial evidence that the acquisition facilitates tribal self-determination, economic development, Indian housing, land consolidation, or natural resources protection. The Department is further considering requiring opponents of on-reservation trust acquisitions to show by clear evidence that the acquisition will result in severe negative impact to the environment or severe harm to the local government. For off-reservation acquisitions, the Department is considering requiring that tribes show by substantial evidence that the acquisition is necessary to facilitate tribal self-determination, economic development, Indian housing, land consolidation, or natural resources protection, and the tribe be further required to show that no demonstrable harm to the local community is realized. The Department is considering requiring that opponents of off-reservation acquisitions show by clear evidence that the acquisition will result in significant harm to the local community or severe negative impacts to the environment.

Another area of concern has been the availability of applications for review. The Department is considering changing the length of time that states and local communities have to comment on the application. Currently, for on-reservation acquisitions, the final rule provides state and local communities 30 days to comment on an application. The Department is considering allowing state and local communities 60 days to comment on on-reservation acquisitions. For off-reservation acquisitions, the final rule currently provides that state and local communities have 60 days to comment on an application. The Department is considering allowing the state and local communities 90 days to comment on off-reservation applications. The additional 30 days to review applications will provide state and local governments adequate time to review the application at the local Bureau of Indian Affairs (BIA) agency or regional office. The Department is also interested in using technology to make the review of applications easier and more efficient. Any comments on how the Internet or computer technology might facilitate review of trust acquisition applications would be helpful.

Considering the range of comments already received and reviewed, the Department takes this action to seek comment on whether the final rule should be withdrawn for the best interests of the constituencies served by the rule.

Dated: August 8, 2001.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.