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Land into Trust

The following information was sourced primarily from Congressional Research Service Report for Congress 96-412, Indian Trust Land Acquisition.

Land Acquisition

Because Congress is the original source of the power to take tribal land into trust, any exercise of that power will be authorized by statute. The general statutory pattern consists of Congressional authorizations requiring the Secretary of the Department of the Interior to take land into trust for a tribe or an individual Indian. Some the statutes are of narrow scope and application, affecting only one Indian nation. Other statutes confer broad discretionary powers on the Secretary, and at least one statute obliges action on the part of the Administrator of the General Services Administration.

Rules and regulations promulgated by the Bureau of Indian Affairs control how that agency will act in accordance with statutory directives. However, these regulations are not necessarily binding; indeed,

Ultimately the statutory authority invoked governs the Secretary's administration of the land acquisition regulations. If, for example, a tribe requests an acquisition based on a statute that enumerates different standards from those in the regulation, the Secretary would be bound by those statutory standards if they were stricter. If the statutory standards were more lenient or if the statute committed the decision solely to the Secretary's discretion, the Secretary would not be bound by the land acquisition regulations. In fact, 25 C.F.R. § 1.2 explicitly reserves to the Secretary the authority 'to waive or make exceptions to his regulations...in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians.'

Limited Applicability

The Navaho-Hopi Resettlement Act, Pub. L. 93-531, 88 Stat. 1712, 25 U.S.C. §§ 640d et seq. is a prime example of a Congressional act in which land into trust provisions affect a limited number of Indian Nations. Specifically,

The Secretary is required to take into trust for the benefit of the Navaho Tribe or the Hopi Tribe, land that has been partitioned as that tribe's portion of disputed land and lands designated for transfer to one or the other of the tribes under the provision of the legislation.

See, e.g., 25 U.S.C. §§ 640d-9 and 25 U.S.C. §§ 640d-10.

There are dozens of such statutes affecting scores of different Indian nations. Of these laws, they are divided between the statutes at large (federal legislation directed at a narrow population or individuals) and the United States Code (federal legislation of broad application or interest). A list of the statutes to which the Bureau of Indian Affairs has applied land acquisition regulation can be found here.

General Applicability

Department of the Interior

Perhaps the most significant legislation of general applicability is Section 5 of the Indian Reorganization Act, 25 U.S.C. § 465, which authorizes the Secretary of the Interior

in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians.

...

...

Title to any lands or rights acquired pursuant to this Act...shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.

Recalling that agency regulations control how such discretion will be exercised, 25 C.F.R. § 151 deals directly with land acquisitions.

25 C.F.R. § 151.10 addresses on-reservation acquisitions while 25 C.F.R. § 151.11 covers off-reservation acquisitions by the Secretary. The general land acquisition policy of the Bureau of Indian Affairs is stated in 25 C.F.R. § 151.3. Promulgated under the authority of 5 U.S.C. § 301, 25 C.F.R. § 151 interprets or applies to at least 49 statutes.

Department of Agriculture

A more recent example of a Congressional authorization of general applicability is Public Law 110-246, 25 U.S.C. § 488, authorizing the Secretary of Agriculture

to make loans from the Farmers Home Administration Direct Loan Account...,to any Indian tribe recognized by the Secretary of the Interior or tribal corporation established pursuant to the [IRA], which does not have adequate uncommitted funds, to acquire lands or interests therein within the tribe’s reservation as determined by the Secretary of the Interior....(citations omitted)

General Services Administration

The Federal Property and Administrative Services Act authorizes the Administrator of General Services

to prescribe procedures necessary to transfer to the Secretary of the Interior, without compensation, excess real property located within the reservation of any group, band, or tribe of Indians that is recognized as eligible for services by the Bureau of Indian Affairs.

See 40 U.S.C. § 523.

Additional Information

Application for Acquisition into Trust

In 2003 the New England Law Review published comments by Larry E. Scrivner, then Acting Director of the Office of Trust Responsibility within the Bureau of Indian Affairs, addressing the acquisition of land into trust for Indian tribes. Accompanying his speech and included in the journal publication is the BIA document Acquisition of Title to Lands in Trust by the Secretary of the Interior. While the document is dated October 2002, the outline of the acquisition application process remains accurate. The process is divided into 11 steps encompassing

• the application itself,
• notification to the State and its political subdivisions,
• review of the application and comments by interested parties,
• the decision and right to appeal,
• obtaining a title opinion from the Office of the Solicitor, and
• the final recording of the conveyance instrument.

Land Acquisition and IGRA

The relationship between Indian trust land acquisition and the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq. (IGRA) is a matter recently addressed by both the Bureau of Indian Affairs and the Federal courts. The publication of the Final Rule to Implement IGRA Section 20 was announced in late May, 2008. For an insightful pre-publication announcement, see Kevin Washburn's testimony before the U.S. House of Representative's Natural Resources Committee, addressing the Department of Interior's new policy on off-reservation acquisitions of land in trust for Indian gaming.

Litigation

Litigation is currently pending before the Supreme Court of the United States that will address the Secertary's authority to put land into trust under Section 5 of the Indian Reorganization Act. See Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007), cert. granted, 128 S. Ct. 1443 (U.S. Feb. 25, 2008) (No. 07-526). See also Native American Rights Fund's document index following the Carcieri v. Kempthorne as part of its Supreme Court Project.

The granting of the petition for writ of ceriorari to the United States Court of Appeals was limited to the first two questions presented by the appelants' petition:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.
2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there

Petition for Writ of Certiorari, Carcieri v. Kempthorne, No. 07-526 (U.S. Oct. 18, 2007), 2007 WL 3085107.