Land Into Trust
also called "Fee to Trust"

What is Land Into Trust?

Land into Trust is a real estate transaction which converts land from private or individual (fee) title into federal title. Once the process is complete the subject land will belong to the United States of America.

Does this trust land become public land?

No. The land is reserved for the exclusive use of an American Indian tribe. The named tribe retains usufructuary rights (right of use without ownership) and civil jurisdiction over the land placed in trust.

Why does this process exist?

For most of this nation’s history, the government felt the interests of the American Indians living in this country would be best served by integrating Indian people into the mainstream of American culture. In the latter part of the 19^th century, Indians were encouraged to own land as individuals not as communal (tribal) property. Also, the federal government encouraged settlers to move to Indian County by allotting excess tribal lands for sale to the general public. This allotment process was viewed as a necessary step to allow  Indians to participate fully in American life.  In the early part of this century, the policy began to shift back to a program of separating and dividing Indian communities from the American mainstream. 

In 1934, Congress passed the Wheeler Howard Act ( Indian Reorganization Act or IRA). This act authorized the Secretary of the US Department of Interior to acquire lands, in federal title, for the use of American Indian tribes. The stated purpose of the Act was to reacquire the land that was sold to individuals during the allotment period and reestablish Indian people with distinct tribal communities and governments.

Congressional Research Service Report on Land to Trust

Why can’t tribes purchase and own land like everyone else?

Tribes and individual tribal members can purchase and own land in the same way as any other individual.

Why have this land to trust process?

The fee to trust process provides tribes with some very important benefits. By converting the land to federal title, the land becomes exempt from state and local government taxes and local land use regulations.  In most states, trust lands are removed from local law enforcement jurisdictions as well.

Avoiding the jurisdiction of local and state governments is the primary reason Indian tribes covert fee land into federal trust title.

What are the laws that govern the fee to trust process?

Technically, there are no laws governing this process. The process is set out in the Code of Federal Regulations (CFR). These regulations can be found at CFR Title 25 Part 151. The 1934 IRA authorizes the Department of Interior (DOI) to create these regulations. Neither the President nor the Congress of the United States created or directly approved these regulations.  The process is entirely the internal policy of the DOI and more specifically the BIA.

How can changing local jurisdictions occur with so little oversight?

Technically it should not.

 In 1990, the State of South Dakota filed suit against the US Department of the Interior (DOI) in federal court to oppose aland to trust application near a non-Indian community. In the case, STATE OF SOUTH DAKOTA; City of Oacoma, South Dakota, Plaintiffs-Appellants, v.UNITED STATES DEPARTMENT OF the INTERIOR; Eddie F. Brown, Assistant Secretary-Indian Affairs; Jerry Jaeger, Acting Area Director, Bureau of Indian Affairs, Defendants-Appellees. No. 94-2344. (Submitted Feb. 15, 1995. Decided Nov. 7, 1995.) a three-judge panel ruled that the Congress had unconstitutionally delegated their authority to the DOI in the 1934 IRA. The case appeared headed to the US Supreme Court. To prevent the Supreme Court from throwing out the fee to trust procedures as unconstitutional, federal lawyers petitioned the Court for time to amend the fee to trust regulations that appeared to violate the Constitution. 

Following this court case, the regulations were rewritten by the DOI to provide better notice to local jurisdictions facing fee to trust land acquisitions. The problem remains that the BIA can modify and rewrite these regulations, as often as they like, and there is today, still no direct oversight from Congress. Also, the question of the unconstitutionality of the fee to trust power delegation authority of the 1934 IRA still remains unanswered.

The fee to trust process removes land from local jurisdiction and places the land under federal authority, reducing the balances intended in the Constitution. Then federal agencies, using powers of questionable legal authority, allow these federal lands to be used and administered by quasi-sovereign tribal governments which often exhibit interests which conflict with local governments and their neighbors.

What if a tribe puts land into trust near me?

Most property owners take zoning and land use planning for granted. We purchase our homes or businesses assuming that local governments will protect our real estate investment from conflicting development in our neighborhoods. Throughout this nation we have adopted a policy of allowing local authorities to create zoning restrictions on our private property in exchange for the assurance that our life style preferences will be protected.

Lands converted from fee to federal trust title are immune from zoning regulations and therefore there is no assurance that federal trust land will conform to the same regulations as neighboring fee land.

For a perfect example of this concern see letter and photos from a concerned citizen living next to Indian lands. 

I live miles away from any Indian lands. Do I need to be concerned about fee to trust?

Yes. Indian land claims can arise anywhere. Tribes and their lawyers are constantly scouring the records of old treaties, court cases and federal legislation looking for questionable language or new interpretation of these documents in order to reclaim land. Just recently, the Miami Tribe sued residents of Illinois, a State that has no recognized Indian tribes or reservations, over a treaty signed 150 years ago.

If your state allows any type of gaming such as charitable bingo or state lottery, any land in your state could be a target for an Indian gaming casino site . Indian gaming has provided some tribes with great wealth while other tribes remain poor. The rich tribes are competing with each other to locate tribal casinos closer to major population centers, even if these sites are many miles away from their reservations. The poor tribes, unable to mount successful gaming businesses due to their remote location, are hoping to acquire trust lands near cities as well.

Even if a tribe has trust land in my area, if it’s not near me, why should worry?

Off reservation casinos sites require a fee to trust title conversion to prevent state and local jurisdiction oversight.

Federal regulations require local communities to provide fire protection, road maintenance and other municipal services to these trust lands despite the fact the trust land is immune from property taxes. Most communities will find federal trust land will create additional expenses while reducing their tax base. Trust lands will likely create jurisdictional disputes in law enforcement, land use planning, social service delivery and emergency services. Most communities which have had to deal with federal trust conversions have had found the process disruptive and divisive.

Prior BIA proposed fee to trust regulations included a provision for a Tribal Land Acquisition Area (TLAA).  This provision is intended to create new Indian reservations where none exist today for Indian tribes that have no land base. Despite the fact that Congress ended the treaty process in 1871 that created Indian reservations, the BIA attempted to reinstate this power administratively without Congressional oversight.  A TLAA could be created virtually anywhere in which a landless tribe can tenuously claim an historical association.

Do all fee to trust conversions create problems?

No. There are communities and tribes that co-exist to the mutual benefit of all. Tribes that develop a strong relationship with the non-Indian community and have entered into mutually beneficial agreements for payments in lieu of taxes, services, jurisdictional dispute resolution and mutual land use planning. These agreements can result in good working relationship based on mutual respect.

Tribes that exhibit a hostility or bitterness toward non-Indians will make government-to-government relations with your community very troublesome.  See the Pequot Story.

It is important to remember that agreements need a forum to resolve disputes. There are many examples to show that tribal sovereign immunity has been used to break contracts with non-Indian entities. All agreements with tribal governments should be reviewed as to their enforceability outside tribal courts. Community/tribal agreements should include a "limited waiver of sovereign immunity" from the tribe.

What can I do if I want to oppose the fee to trust process? 

Your primary efforts should be directed to the federal government. You should contact your Congressman and your Senator expressing your concerns. You should also write the Secretary of the Department of Interior and to the head of the Bureau of Indian affairs expressing your comments. These are federal policies that require federal solutions.

For additional help, email us at  feedback@citizensalliance.org  

What about local governments – can they do anything?

Yes. Local and state governments have an obligation to be aware of these issues and be prepared to respond to them. You should ask your local officials to obtain a copy of the fee to trust regulations and have your city or county attorney to review them in the event a fee to trust acquisition is attempted.

Your state government can pass legislation that requires a public hearing whenever a fee to trust application has been received by a local jurisdiction. This legislation would ensure local officials are prepared to face fee to trust actions and the public hearing would be the vehicle to educate your community over the issues they may face and their options to oppose it if they choose.

Many state attorneys general are reluctant to press legal action against tribes due to tribal sovereign immunity and our current social concerns over political correctness. You must remind your state law enforcement offices they are bound by your state's constitution to protect the sovereignty of your state. If your state attorney general is unwilling to assist in opposing fee to trust conversions, you can appeal to your governor or legislature to authorize the hiring of special outside counsel on these issues.  

Local governments can encourage tribes to enter into agreements which specifically define responsibilities for jurisdiction and cost sharing. It is important to remember that tribes exercise sovereign immunity so any city/county/tribal agreement should include a waiver of sovereign immunity for the purposes of the agreement. 

Indian Gaming Regulatory Act land to trust information

Is that about all I can do?

Please join CERA!

Fee To Trust in the News

Land Into Trust Websites

http://www.indianrelations.com/trustlands.html