A year after publishing proposed amendments to the regulations governing the Tribal land-into-trust process (25 CFR part 151), the Department of the Interior (the “Department”), on December 6, 2023, issued its final rule (88 FR 86222). This is the federal administrative process, pursuant to section 5 of the Indian Reorganization Act, by which Tribal nations obtain trust status for land to conduct off-reservation gaming or other activities that promote “Tribal self-sufficiency and self-determination.”[i] The final land-into-trust rule goes into effect on January 11, 2024.[ii] While most of the differences between the proposed version and the final rule are stylistic or clarifying, the provisions regarding evaluation of requests for land received a substantive update to ensure meaningful notice to state and local governments and opportunity for comment. 

During the rulemaking comment period, the Department met with Tribal representatives during “two listening sessions and four formal consultation sessions” and reviewed comments from Indian Tribes and the public.[iii] Tribes were largely supportive of the amendments, but some raised concerns about presumptive acquisitions outside of a Tribe’s historic lands and wanted an equal opportunity to comment on acquisitions alongside government stakeholders.[iv] State and local government commenters opposed the rule on the grounds of lack of administrative authority and federalism and were concerned about the presumptions afforded to applicants, as well as the reduced role of public stakeholders in the process and decreased notice requirements.[v]

In its December press release, the Department announced that the final rule furthered President Biden’s goal of “mak[ing] it easier for Tribes to place land into trust” and made the process “simpler, more efficient, and less expensive.”[vi] After so many years spent in limbo for some Tribes under the existing process, will this prove true in practice? Only time will tell.

What stayed the same from the proposed rule?

As the authors of this client alert summarized in a prior post, notable changes introduced in the proposed rule included a 120-day maximum period of application review (compared to the existing average of 985 days with no maximum[vii]), a new “initial Indian acquisition” method designed to make it easier for Tribes to receive their first trust land, “presumptions” of approval of a trust land applications for on-reservation acquisitions, acquisitions contiguous to a reservation, and initial acquisitions, reduced review criteria for applicants, and codification of a definition of “under Federal jurisdiction” for determination of trust land eligibility. These were all retained in the final rule. The final rule also carries forward the clarification that its procedures do not apply to grants of trust land by Congress or a court.[viii]

Despite opposition from state and local governments, the Department decided to proceed with abandoning the “bungee cord” approach for land that is not contiguous to or part of a reservation. That is, there will no longer be heightened scrutiny the greater the distance between the proposed trust land and the location of the Tribe’s reservation. The Secretary of the Interior will instead consider the location of the land broadly in determining whether to take the land into trust. For land that is an initial acquisition, the location of the land is not considered at all unless it is necessary given state and local government comments (e.g., regarding potential conflicts of land use). The rule assumes that the Tribe will benefit from the acquisition and that the Secretary will consider the location of the land and potential conflicts of land use when reviewing the state and local comments in their holistic review of the application. This is significant because it removes a prior constraint on grants of trust land located farther from the Tribe’s lands. The change is likely to place more emphasis on the Indian Gaming Regulatory Act’s (IGRA) requirements around proximity to a Tribe’s historic lands, reservation, or other trust land in the Tribal gaming context.[ix]

What changed from the proposed rule to the final rule?

Under the proposed rule, the Department sought to reduce the involvement of state and local governments in the land-into-trust process, including by not inviting state and local government comment for on-reservation acquisitions. Predictably, government stakeholders pushed back on this during the comment period. In the final rule, for land within the boundaries of or contiguous to a reservation and for initial acquisitions, the Department will notify state and local governments with regulatory jurisdiction over the proposed trust land. It will then provide a period of 30 calendar days in which state and local governments can provide written comments to rebut the presumption of minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments.[x] The applicant gets to see the comments and reply if the state or local government responds during that time or request that the Secretary proceed with a decision.[xi] “In considering such comments, the Secretary presumes that the Tribal community will benefit from the acquisition.”[xii]

For land which is outside of and noncontiguous to a reservation, the notice process will be similar to the above; however, the relevant state and local government will be asked to do more than rebut a presumption (“provide written comments on the acquisition’s potential impact on regulatory jurisdiction, real property taxes, and special assessments”).[xiii] The Secretary’s review of these comments and initial reservation comments includes “the location of the land and potential conflicts of land use.”[xiv]

At the insistence of many Tribal commenters, the Department added a 30-day deadline within which the Bureau of Indian Affairs must notify applicants of a complete acquisition package so that the new 120-day maximum review period can begin to run.[xv] The rule also clarifies the respective roles and obligations of the Department and Tribe in collaborating to complete the application.[xvi]

The Department also made a few updates to the proposed rule with respect to the definition of “under Federal jurisdiction” in deciding whether a Tribe is eligible to receive land into trust:

• Conclusive evidence now includes “land held in trust by the United States in 1934” and excludes “evidence of executive officials disavowing Federal jurisdiction over a Tribe in certain instances”;
• Presumptive evidence now includes “land claim settlements”; and
• Probative evidence now includes “efforts by the Federal Government to conduct a vote under section 18 of the IRA to accept or reject the IRA where no vote was held;” Federal “approval of contracts between a Tribe and non-Indians;” and Federal “enforcement of the Trade and Intercourse Acts (Indian trader, liquor laws, and land transactions).”[xvii]

Conclusion

As with any substantive federal rule change, opportunities for litigation of regulatory provisions and Administrative Procedure Act (APA) challenges abound. In an area as contentious and competitive as Tribal land acquisition, particularly with respect to gaming, the final rule is likely to give rise to disputes in the courts involving the new terms of the land-into-trust process. Indeed, state and local government raised several legal arguments against the final rule, including under the APA, in their public comments. The Department is still reviewing public comment on the other rule proposed in December 2022 regarding the state-Tribal gaming compact process and we expect the Department will announce a final rule soon.