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96-412: Indian Trust Land Acquisition
M. Maureen Murphy
Legislative Attorney
American Law Division
SUMMARY
This report provides a brief analysis of the legal framework within which the process of taking land into trust for Indian purposes operates. The basis of acquisition of land in trust is statutory. Congress sometimes mandates the taking of land in trust for a tribe in special legislation dealing with tribal land claims, restoration, or recognition. Congress has also authorized the General Services Administration (GSA) to transfer excess federal real property to the Department of the Interior (Department) to hold in trust for the benefit of the Indian tribe whose reservation includes or included the land. The major apparatus under which land is acquired in trust for an Indian tribe or individual Indians, however, involves the administration of Department of the Interior land acquisition regulations. Over 40 federal statutes permit the Secretary of the Interior to take Indian tribal land or land owned by individual Indians in trust. Under the Department of Interior regulations, the Secretary must consider various factors, primarily the best interests of the tribe or individual Indian, but also the purpose of the acquisition and its potential effects upon surrounding jurisdictions. The Secretary's decision does not become final for 30 days during which an action may be filed in federal court contesting a decision to take land into trust. Once land is in trust, however, because legal title is in the United States, state taxation is precluded.
TRUST
When land is taken into trust by the United States for an Indian tribe, legal title is held by the United States in trust for the tribe. Although the tribe retains beneficial interest, it does not have the authority to alienate-sell, lease, pledge, or mortgage the land, or lose it for failure to pay taxes. 1 It does retain the right to any proceeds derived from the use of the land or from its produce, i. e., timber sales, leases, grants of rights of way, or condemnations for public purposes.
LAND ACQUISITION
Congress ultimately has the power to determine whether to take tribal land into trust. There are, thus, many federal statutes by which Congress requires the Department of the Interior to take land into trust for a tribe or an individual Indian. For example, as part of the Navajo-Hopi Resettlement Act, Pub. L. 93-531, 88 Stat. 1712, 25 U.S.C. §§ 640d et seq., the Secretary is required to take into trust for the benefit of the Navajo 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. Some authorize land transfers through other federal agencies. For example, 40 U.S.C. § 483(a)(1), a provision of the Federal Property and Administrative Services Act, provides a mechanism by which the Administrator of the General Services Administration is to transfer excess federal real property to the Secretary of the Interior to be held in trust for Indian tribes land within the reservation of the tribe or, in the case of Oklahoma tribes, land located within the boundaries of a former reservation in
Oklahoma or contiguous to real property presently held in trust for an Oklahoma tribe. 40 U.S.C. § 483(a)(2).
Congress has also authorized the Department of the Interior to take land into trust that belongs to individual Indians or Indian tribes under standards that differ from statute to statute. Because any authority in the Executive Branch to acquire title to land in trust for Indians derives from statute and because of the multiplicity of such statutes authorizing the Department of the Interior to take land into trust for tribes or individual Indians, the Department has issued a general regulation, 25 C.F.R. Part 151. This
regulation on land acquisition cites over 40 separate statutory authorities to which it applies. 2 Many of the citations apply to specific tribes or specific situations. 3 Others are more general and apply to all tribes. 4 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."
What might be seen as the principal general statute authorizing taking land in trust for Indian tribes is the Wheeler-Howard, or Indian Reorganization Act of 1934, ch. 576, § 5, 48 Stat. 985, 25 U.S.C. § 465, authorizes the Secretary to take to take land--off-reservation or on-reservation, into trust.5 It reads, in pertinent part:
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 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....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 he exempt from State and local taxation. 6
The Department of Interior's land acquisition regulations require it to consider many factors in deciding whether or not to accept land in trust, including the statutory authority cited and several factors that may well be the chief object of all of the statutes providing for taking land into trust, i.e., whether or not the acquisition will be for the benefit of the tribe. Among the factors to be considered are:
(a) The existence of any statutory authority for the acquisition and any limitations contained in such authority;
(b) The need of the individual Indian or tribe for additional land;
(c) The purposes for which the land will be used;
(d) if the land is to be acquired for an individual Indian, the amount of trust or restricted land already owned by or for that individual and the degree to which he needs assistance in handling his affairs
(e) If the land to he acquired is in unrestricted fee status, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls.
(f) Jurisdictional problems and potential conflicts of land use which may arise, and
(g) If the land to be acquired is in fee status, whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting
from the acquisition of land in trust status.
(h) The extent to which the applicant has provided information that allows the Secretary to comply with 516 DM 6, Appendix 4, National Environmental Policy Act Revised Implementing Procedures, and 602 DM 2.Land
Acquisitions.. Hazardous Substances Determinations.
25 C.F.R. § 151.10
If the land to be acquired is located within or contiguous to an Indian reservation, 7 the Secretary is required to notify 'the state and local governments having regulatory jurisdiction over the land to be acquired, unless the acquisition is mandated by legislation," and to give them "30 days in which to provide written comments as to the acquisition's potential impacts on regulatory jurisdiction, real property taxes and special assessments."
2 C.F.R. § 151.10. The applicant is to be given a copy of the comments and 30 days in which to reply or request that the Secretary issue a decision.
If the land is outside of and not contiguous to the tribe's reservation and the acquisition is not mandated by statute, the following further criteria are to be considered by the Secretary:
1) The location of the land relative to state boundaries, and its distance from the boundaries of the tribes reservation, shall be considered as follows: as the distance between the tribe's reservation and
the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe's justification of anticipated benefits from the acquisition. The Secretary shall give greater weight to the concerns raised pursuant to paragraph (d) of this section,
(c) Where land is' being acquired for business purposes, the tribe shall provide a plan which specifies the anticipated economic
benefits associated with the proposed use.
(d) Contact with state and local governments pursuant to 151.10(a) and (f) shall be completed as follows upon receipt of the tribe's written request to have land's taken in trust, and the Secretary shall notify the state and local governments having regulatory jurisdiction
over the land to be acquired. The notice shall inform the state and local government that each will be given 30 days in which to provide written comment as to acquisition's potential impacts on regulatory jurisdiction, real property taxes and special assessments.
25 C.F.R. § 151.11.
The commentary provided with the promulgation of 25 C.F.R. § 151.11 (relating to acquisition of off-reservation lands) as a final rule, 60 Fed. Reg. 32874 (June 23, 1995), indicates that the Department of Interior is attempting to avert problems raised by taking land from state regulatory control and tax rolls by instructing its field offices to scrutinize proposals for commercial use and to consult with state and local officials to avoid jurisdictional conflicts. As originally proposed, the rule for off-reservation
acquisitions would not have permitted acquisitions out-of-state. Objections were raised in the public comments citing historical or economic importance and disparity with acquisitions for gaming which are covered by the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et seq., (IGRA), which permits out-of-state acquisitions. The Department chose to defer promulgating regulations relating to land acquisitions for gaming purposes.
The Department of the Interior has to date issued no explicit regulations governing land acquisitions for gaming purposes. 8 The general land acquisition regulations, thus, apply. When land is proposed to be taken into trust for gaming purposes, there is one additional requirement over and above those specified in the land acquisition regulations--approval of the governor of the state in which the gaming is to be located. 9 That requirement is currently being challenged in litigation. 10
Litigation 11 that questions the constitutionality of delegating to the Secretary such broad authority to take land in trust has been responsible for a further modification of the land acquisition regulations. On April 24, 1996, 61 Fed. Reg. 10802, 25 C.F.R. § 151.12(1,), was issued. It requires the Secretary of the Interior to publish, in the Federal Register or in a newspaper of general circulation serving the area affected by a decision to take land into trust for an Indian tribe or individual, a notice. That notice is to 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. It requires a 30-day waiting period after a Secretarial decision to acquire land in trust for an Indian tribe or individual to allow parties so desiring to seek judicial or administrative review. The Department of the Interior deemed such a waiting period necessary because the Quiet Title Act, 28 U.S.C. § 240a, precludes judicial review after the United States acquires title. 12
CONCLUSION
Various federal statutes authorize taking land into trust for the benefit of Indian tribes and, thereby, exempting it from state and local taxation. The most important of these delegates considerable discretion to the Secretary of the Interior to take reservation or off-reservation land into trust. The Secretary has promulgated regulations guiding the use of that discretion that include stricter standards for accepting off-reservation lands for trust status. No separate regulations currently exist for considering land that is to be used for gaming purposes although the Department has indicated an intention to issue
regulations. Presently there is litigation challenging the constitutionality of the statute delegating broad discretion to the Secretary for land acquisitions and questioning the IGRA provision granting governors authority to veto Interior decisions to acquire land for gaming purposes.
Footnotes
1 There are various statutes, however, relating to leasing, granting rights of way, or harvesting timber on tribal or individual Indian lands, most of which require consent by the beneficial owner or the tribe.
2 It does not cite 40 U.S.C. § 483(a)(2), pertaining to the acquisition in trust of excess federal real property for Indian tribes, apparently because the statute requires the General Services Administration to promulgate governing regulations.
3 For example, the Act of March 2, 1931, 46 Stat. 1481, authorizes the Secretary to take land into trust for the Five Civilized Tribes; the act of August 23, 1940, 63 Stat. 605, authorizes acquisitions in New Mexico for the Navajo Canoncito group and the Pueblo Indians; Act of July 24, 1956, 70 Stat. 626 (Colville Indians); Pub. L. 87-231, 75 Stat. 500, 505 (Pueblo); Pub. L. 88-196, 77 Stat. 349 (Rosebud Sioux).
4 The Act of February 14, 1931, 46 Stat. 1106, 25 U.S.C. § 451, for example, authorizes the Secretary to accept gifts and donations of "funds or other property for the advancement of the Indian race," and to 'use the donated property in accordance with the terms of the donation in furtherance of any program authorized by other provision of law for the benefit of Indians."
5 In Florida v. United States Department of the Interior, 768 F. 2,1 1228 (11th Cir. 1985), cert. denied, 475 U.S. 1011, the court ruled that the United States was immune to suit by state agencies challenging the Secretary's decision to take land into trust for an Indian tribe when there was no claim that the action was ultra vires or unconstitutional. The case involved land acquisition
for a tribe to open a museum to house antiquities in which the Secretary had waived the requirements of 25 C.F.R. Part 151. After the land had heen taken into trust the tribe had opened the museum but had also opened a smoke shop on the premises. The court examined various authorities for waiving sovereign immunity and found none applicable. One of its reasons for upholding sovereign immunity was that the quiet Title Act, 28 U.S.C. § 2409a, which permits various suits against the United States to challenge title to land, specifically excludes trust or restricted Indian lands from the waiver. In the oouree of the
decision the court reviewed the Indian Reorganization Act's language, legislative history, and context, and concluded that it granted broad
discretion to the Secretary to review applications for trust acquisitions for Indians. South
Dakota 1, United States, 69 F. Sd 878 (8th Cir. 1995) held this provision unconstitutional because of the broad discretion conferred upon the Secretary. The Department will adhere to the decision of the court in this particular case but will decide new trust applications on a case by case basis. 61 Fed. Reg. 18082 (April 24, 1996).
6 This provision was part of a series of laws passed in the 1930's to change federal Indian policy, in part motivated by a desire to "right past wrong" and end the dissolution of the reservation system break up of reservations. F.Cohen, Handbook of Federal Indian Law 84 (1934). Its main objects, as summed up by Senator Wheeler, a sponsor of the legislation, and Chairman of the Senate Committee that reported it favorably, were:
(1) To stop the alienation, through action by the Government or the Indian, of such lands belonging to ward Indians, as are needed for the present and future support of these
Indians.
(2) To provide for the acquisition, through purchase, of land for Indians, now landless, who are anxious and fitted to make a living on such land.
Id., quoting Sen. Rep. 73-1039, ad Cong. 2,1 Sess (1934).
7 The regulation specifies that, "[u)nless another definition is required by the act of Congress authorizing a particular trust acquisition, 'Indian reservation' means that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma, or where there has been a final judicial determination that a reservation has
been disestablished or diminished, 'Indian reservation' means that area of land constituting the former reservation of the tribe as defined by the Secretary." 25 C.F.R. § 151.2(f).
8 The Department of the Interior proposed regulations for land acquisitions for Indian gaming purposes that would have been more stringent than those applicable to acquisitions for other purposes. 57 Fed Reg. 51487 (July 15, 1991). No such regulations have been promulgated to date. The changes to the land acquisition regulations recently promulgated did not include any gaming-specific provisions although one commentator had suggested that all out-of-state acquisitions be prohibited if the land was to be used for gaming purposes
9 IGRA limits the authority of tribes to conduct gaming on land acquired after 1988 and requires gubernatorial approval before land maybe acquired in trust for such
purposes. 25 U.S.C. § 2719(1,)91).
10 Confederated Tribes of Siletz Indians v. United States, 841 F. Supp. 1479 (D. Ore. 1994), a federal district court held that the provision requiring gubernatorial approval was unconstitutional as violative of the separation of powers required in the appointments clause of the United States Constitution because it requires a state governor, who is not a duly appointed officer of the
United States, to exercise significant federal authority. That decision is on appeal to the United States Circuit Court of Appeals for the Ninth Circuit.
11 South Dakota v. United States, 69 F. 3d.878 (8th Cir. 1995). The Department will abide by the decision in that case but will decide other requests for trust acquisitions on a case-by case basis. 61 Fed. Reg. 18082 (April 24, 1996).
12 United States V. Mottar, 476 U.S. 834 (1986); North Dakota u. Block, 461 U.S. 273 (1983); Florida v. Department of Interior, 768 F.~ 1248 (11th Cir. 1985).
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