Land Into Trust
also called "Fee to Trust"
Land Into Trust?
Land into Trust is a real estate transaction which converts land from private
or individual (fee) title to federal title. Once the process is complete, the
subject land will belong to the United States of America. The land is then
placed under the control of an Indian tribal government with the United
States Government acting as a fuduciary.
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.
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 19th 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 selling excess
tribal lands 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 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 exclusive 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 distinct tribal communities and governments.
Congressional Research Service
Report on Land to Trust
testimony on the fee to trust process by the Conference of Western Attorneys
understand land status issues see federal land legislation history
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.
When tribes or individual tribal members own land in fee patent title the
power of the federal fiduciary responsibility is reduced.
this land to trust process?
The fee to trust process provides tribes with some very important benefits
not available to other US citizens.
By converting the land to federal ownership (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 apply to the Bureau of Indians affairs to convert fee land into federal trust title.
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.
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 a land 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
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 constitutionality of the fee to trust
process remains pending in federal courts.
I care about this fee to trust process?
This nation was founded on the principal of assuring its citizens “life,
liberty and the pursuit of happiness”. To fulfill this pledge, the
founders felt the need to restrict the powers of the federal government. One
way in which this was done is using a process called “checks and
balances.” The government was
divided into three branches, the Executive, Legislative and Judicial. Each
branch was given unique powers and responsibilities to prevent any single
part of the federal government from usurping the authority of another. Additionally, the Constitution further restricts federal authority by
providing constitutional authority to state governments. (The
US Constitution (10th Amendment, " The powers not delegated
to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people."
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 administrative powers of questionable
legal authority, allow these federal lands to be used exclusively by
quasi-sovereign tribal governments which often exhibit interests which
conflict with local governments and their neighbors.
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
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 choices will be
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 see letter
and photos from a concerned citizen living next to Indian
miles away from any Indian lands. Do I need to be concerned about fee to
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 interpretations of these
documents in order to reclaim land. Recently, the
Miami Tribe sued land owners in Illinois, a State that has no recognized
Indian tribes or reservations, over a treaty signed 150
years ago, to reclaim land..
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?
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, building codes and
property regulations. 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 dealing with federal trust
conversions have had found the process disruptive and divisive.
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
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. Under federal law, Indian tribes have sovereign immunity which has
been used to break otherwise valid 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.
If a fee to trust application impacts you directly, you can enter the
appeal process. A trust land conversion may impact your property value,
right of way or other property rights. If you suffer a direct personal harm
you may have "standing" to enter the appeals process individually.
Land into trust appeals can be read at: http://www.oha.doi.gov/IBIA/findingIBIA.html
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 review them in the event a fee to trust
acquisition is attempted. The fee to trust regulations provide for for an
appeal process. Your local authorities should be familiar with this process.
A review of fee to trust appeal decisions can be found at: http://www.ibiadecisions.com/Ibiasurveys/IbiaTrustAcquisSurvey1.html
Your state government can pass legislation to require 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
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.
Gaming Regulatory Act land to trust information
about all I can do?
Please join CERA!
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