Land Acquisitions, 74334-74346 [2022-25735]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 87, Number 232 (Monday, December 5, 2022)]
[Proposed Rules]
[Pages 74334-74346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25735]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 151

[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF71


Land Acquisitions

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) seeks input on changes to 
its regulations governing the discretionary acquisition of land into 
trust for the benefit of tribal governments and individual Indians. 
Since these regulations were first promulgated in 1980, the BIA has 
developed extensive experience in the fee-to-trust acquisition process. 
Relying on that experience and input from tribal governments and 
individual Indians, this proposed rule seeks to make the land into 
trust process more efficient, simpler, and less expensive to support 
restoration of tribal homelands.

DATES: Interested persons are invited to submit comments on or before 
March 1, 2023.

ADDRESSES: You may submit comments by any one of the following methods.
     Federal eRulemaking Portal: Please upload comments to 
https://www.regulations.gov by using the ``search'' field to find the 
rulemaking and then following the instructions for submitting comments.
     Email: Please send comments to consultation and include 
``RIN 1076-AF71, 25 CFR part 151'' in the subject line of your email.
     Mail: Please mail comments to Indian Affairs, RACA, 1001 
Indian School Road NW, Suite 229, Albuquerque, NM 87104.

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of 
Regulatory Affairs and Collaborative Action (RACA), Office of the 
Assistant Secretary--Indian Affairs; Department of the Interior, 
telephone (202) 738-6065, [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise 
of authority delegated by the Secretary of the Interior to the 
Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209 
Departmental Manual (DM) 8.

Table of Contents

I. Statutory Authority
II. Executive Summary
III. Overview of Proposed Rule
IV. Summary of Changes by Section
    A. Section 151.1 What is the purpose of this part?
    B. Section 151.2 How are key terms defined?
    C. Section 151.3 Land Acquisition Policy
    D. Section 151.4 How will the Secretary determine that statutory 
authority exists to acquire land in trust status?
    E. Section 151.5 May the Secretary acquire land in trust status 
by exchange?
    F. Section 151.6 May the Secretary approve acquisition of a 
fractional interest?
    G. Section 151.7 Is tribal consent required for nonmember 
acquisitions?
    H. Section 151.8 What documentation is included in a trust 
acquisition package?
    I. Section 151.9 How will the Secretary evaluate a request 
involving land within the boundaries of an Indian reservation?
    J. Section 151.10 How will the Secretary evaluate a request 
involving land contiguous to the boundaries of an Indian 
reservation?
    K. Section 151.11 How will the Secretary evaluate a request 
involving land outside the boundaries of an Indian reservation?
    L. Section 151.12 How will the Secretary evaluate a request 
involving land for an initial Indian acquisition?
    M. Section 151.13 How will the Secretary act on requests?
    N. Section 151.14 How will the Secretary review title?
    O. Section 151.15 How will the Secretary conduct a review of 
environmental conditions?
    P. Section 151.16 How is formalization of acceptance and trust 
status attained?
    Q. Section 151.17 What effect does this part have on pending 
requests and final agency decisions already issued?
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Congressional Review Act (CRA)
    D. Unfunded Mandates Reform Act of 1995
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act (NEPA)
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Statutory Authority

    Congress granted the Assistant Secretary--Indian Affairs (then, the 
Commissioner of Indian Affairs) authority to ``have management of all 
Indian affairs and of all matters arising out of Indian relations.'' 
\1\ Through section 5 of the Indian Reorganization Act of 1934 (IRA), 
Congress further empowered the Department of the Interior (Department) 
to acquire, in its discretion, any interest in lands, water rights or 
surface rights to lands, within or without existing reservations, 
including trust or otherwise restricted allotments for the purpose of 
providing land for tribal governments and individual Indians.\2\
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    \1\ 25 U.S.C. 2 and 9, and 43 U.S.C. 1457.
    \2\ See 25 U.S.C. 5108.
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II. Executive Summary

    This proposed rule would update regulations at 25 CFR part 151 that 
address how the Bureau of Indian Affairs (BIA) considers and processes 
applications for the discretionary

[[Page 74335]]

acquisition of land into trust for the benefit of tribal governments 
and individual Indians, often referred to in shorthand as fee-to-trust 
or land into trust. The BIA has processed thousands of applications 
placing over a million acres of land into trust for tribes and 
individual Indians since the passage of the IRA in 1934. Holding land 
in trust greatly benefits tribes and individual Indians in various 
ways, including through exemption from state and local taxation and 
clearer tribal jurisdiction over the land. The revisions proposed here 
should allow BIA to process applications more quickly and with less 
expense to applicants.
    These revisions also reflect input and recommendations provided by 
tribes during tribal consultations hosted by the Department. On March 
28, 2022, the Department published a Dear Tribal Leader Letter 
announcing tribal consultation regarding proposed changes to 25 CFR 
part 151. The Department held two listening sessions and four formal 
consultation sessions. The Department also accepted written comments 
until June 30, 2022.
    The Dear Tribal Leader Letter included a Consultation Draft of the 
proposed revisions to 25 CFR part 151; a Consultation Summary Sheet of 
Draft Revisions to Part 151; and a redline reflecting proposed changes. 
The Dear Tribal Leader Letter asked for comments on the Consultation 
Draft as well as responses to seven consultation questions. The 
Department received comments from tribal leaders.

III. Overview of Proposed Rule

    In general, the proposed rule seeks to make the process of 
acquiring land into trust for the benefit of tribal governments and 
individual Indians more efficient, simpler, and less expensive. The BIA 
has attempted to do so here through extensive changes to the 
regulation, best explained in a section-by-section review as provided 
below in section IV. However, we summarize the major, overarching 
changes briefly here.
    First, BIA affirms that it is the Secretary of the Interior's 
(Secretary) policy to take land into trust for many reasons supporting 
tribal and Indian welfare. The prior regulation lacked any affirmative 
policy in favor of acquisition; it will now be clear Departmental 
policy to support land into trust, subject to the discretion provided 
by the IRA. Second, BIA seeks to speed the decision-making process by 
requiring a decision within 120 days of assembling a complete 
application package. Third, the proposed rule streamlines the process 
for the four different forms of acquisitions--on-reservation, 
contiguous to reservations, off-reservation, and initial Indian 
acquisitions. For each form, the proposed rule eliminates certain 
former criteria, and establishes certain presumptions designed to make 
the process more efficient, based on BIA's longstanding practice and 
experience in trust acquisitions. We have also developed a new fourth 
category of acquisition, ``initial Indian acquisitions,'' designed to 
ease the process of acquiring first trust lands for those tribes who do 
not currently possess any land in trust. Fourth, the revised rule lays 
out in regulatory text the process for determining whether a tribe was 
``under federal jurisdiction'' in 1934, as required by Carcieri v. 
Salazar, 555 U.S. 379 (2009). The revised Carcieri analysis should make 
assessing statutory authority here simpler and faster. Fifth, BIA has 
made many minor changes throughout the rule intended to solve problems 
and remove obstacles that tribes and individual Indians have faced in 
the trust acquisition process. For example, many applicants have 
conducted Phase I Environmental Site Assessments multiple times to keep 
those assessments valid while their application is pending. The 
proposed rule would anticipate only one such assessment at the 
beginning of the process, and allow for a single update, if necessary, 
after the notice of decision has been signed.

IV. Summary of Changes by Section

A. Section 151.1 What is the purpose of this part?

    The proposed revision clarifies that this regulation does not 
govern acquisitions mandated by Congress or a Federal court order. The 
agency has issued guidance concerning such mandatory acquisitions, 
including the guidance found in BIA's Fee-to-Trust Handbook, and does 
not believe regulations are necessary at this time. This is because 
there are many, varying authorities for mandatory acquisitions, and it 
is difficult to draft regulations that would be consistent with all 
current and future mandatory acquisitions. We avoid the risk of 
creating inconsistency with statutory and judicial orders mandating 
acquisitions by employing simple guidance on how we approach such 
acquisitions rather than one-size-fits-all regulations.

B. Section 151.2 How are key terms defined?

    The BIA proposes adding or revising many definitions for important 
terms, including terms used in the previous version of the regulations 
as well as new terms used in the proposed revision.
    The proposed rule adds new definitions for the following terms: 
contiguous, fee interest, fractionated tract, Indian land, Indian 
landowner, initial Indian acquisition, interested party, marketable 
title, preliminary title opinion, preliminary title report, and 
undivided interest. Definitions are also now listed in alphabetical 
order.
i. Clarifying Certain New Definitions
    Among the new definitions, we note that initial Indian acquisition 
refers to a new category of acquisitions provided under new Sec.  
151.12. The BIA wishes to support acquisitions for tribes that do not 
currently have land held in trust, furthering the BIA's policy of 
supporting restoration of homelands. Initial Indian acquisitions 
provide a new, more supportive process for tribes without trust land, 
as discussed further regarding the new Sec.  151.12. Tribal 
consultation commenters expressed concern that the consultation draft 
of this revision used the word ``yet'' rather than ``currently'' when 
referring to land held in trust status. Commenters wanted to ensure 
that tribes which may have had land in trust in the past but do not 
have land in trust now would be covered by the initial tribal 
acquisition provision and asked that ``yet'' be changed to 
``currently'' to clarify that approach. We have done so here in the 
proposed rule. We clarify, in response to these comments, that the 
proposed rule's intention is to treat tribes that previously held land 
in trust but do not currently hold land in trust in the same manner as 
tribes which have never held land in trust.
    Tribal consultation commenters also expressed concern regarding the 
term marketable title, and so we have added a clarifying definition for 
that term to the proposed rule. Commenters believed that requiring 
marketable title was inappropriate because land held in trust will not 
likely ever be sold on the market again, and tribes may seek to acquire 
land for cultural, conservation, spiritual, or other reasons that are 
entirely separate from commercial concerns. The BIA appreciates and 
supports those purposes for an acquisition but notes that the term 
marketable title is used here in a strictly legal sense rather than a 
commercial sense, referring to title that a reasonable buyer would 
accept because it is sufficiently free from substantial defects and 
covers the entire property that the seller purports to sell.

[[Page 74336]]

ii. Clarifying Changes to Existing Definitions
    The definition of individual Indian has been modified to remove 
paragraph (g)(4), which covered acquisitions outside of Alaska by an 
Alaska Native. This definition implied that acquisitions of land in 
trust within Alaska was not permissible under these regulations. By 
removing paragraph (g)(4), BIA clarifies that these regulations do not 
address that issue. As an additional clarification, the removal of 
paragraph (g)(4) does not limit trust acquisition by Alaska Natives in 
any way. Rather, such individuals qualify for individual Indian trust 
acquisitions in the same manner and to the same extent as any eligible 
individual Indian under these regulations.
    We also clarify here that a person possessing a total of one-half 
or more degree of Indian blood of a tribe under paragraph (g)(3) may 
possess such degree of Indian blood through combined heritage from more 
than one tribe.
    The definition of tribe has been modified such that an Indian tribe 
is any tribe listed under section 102 of the Federally Recognized 
Indian Tribe List Act of 1994. The List Act was not in place when these 
regulations were first promulgated but should be used now as it is the 
official record of federally recognized tribes.
    The definition of Indian reservation has been modified slightly to 
ensure a comprehensive understanding of reservation status in Oklahoma 
after McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The new definition 
provides that in the State of Oklahoma ``wherever historic reservations 
have not yet been reaffirmed'' the term Indian reservation means land 
constituting the former reservation of the tribe as defined by the 
Secretary. By including this phrase, we make clear that the Secretary 
will consider all historic Oklahoma reservations consistent with McGirt 
and its progeny as Indian reservations for purposes of this regulation, 
regardless of whether courts have concluded reaffirmation litigation 
addressing such historic reservations.
    Finally, we removed the definition of tribal consolidation area. 
This term was used only once in the existing rule regarding the 
Department's land acquisition policy. The proposed rule's expansive 
understanding of the Department's land acquisition policy will cover 
any acquisitions in such an area.

C. Section 151.3 Land Acquisition Policy

    The existing rule does not express any policy clearly in favor of 
trust acquisition for tribes and individual Indians. The proposed 
revision makes plain that the Secretary's policy is to support 
acquisitions of land in trust for the benefits of tribes and individual 
Indians. The prior technical introductory language has been moved to 
new paragraph (a).
    In paragraph (b)(3), BIA proposes adding an expansive list of 
policy reasons that would support an acquisition on behalf of a tribe, 
including any reason the Secretary determines will support tribal 
welfare. We note, however, that none of these policy reasons are 
required if the subject land is within a reservation (per paragraph 
(b)(1)) or if the tribe already owns an interest in the land, such as a 
fee interest (per paragraph (b)(2)). We received comment during the 
tribal consultation encouraging us not to use the word ``establish'' in 
regard to homelands, and therefore we have changed language to use the 
word ``protect.'' We also included the policy goal of establishing a 
tribal land base and providing for climate change-related acquisitions. 
Commenters also suggested adding ``cultural practices'' to the list of 
policy reasons in addition to ``cultural resources,'' and we have done 
so.
    In paragraph (c), several tribal consultation commenters pointed 
out that the word ``adjacent'' is used where the intended meaning was 
``contiguous.'' We have changed the text to read ``contiguous,'' 
consistent with commenters' recommendations and our understanding of 
the existing rule's meaning.

D. Section 151.4 How will the Secretary determine that statutory 
authority exists to acquire land in trust status?

    This new section lays out in regulatory text the Department's 
approach to determining statutory authority for acquisitions in trust 
as required by the Supreme Court's opinion in Carcieri v. Salazar, 555 
U.S. 379 (2009), which determined that the IRA only authorized 
acquisitions for tribes that were under Federal jurisdiction at the 
time of the IRA's passage, June 18, 1934. The proposed approach 
incorporates caselaw and analysis by the Office of the Solicitor 
interpreting the Department's statutory authority as guided by 
Carcieri.
    The proposed rule identifies three categories of evidence. 
Conclusive evidence establishes in and of itself both that a tribe was 
placed under Federal jurisdiction and that this jurisdiction persisted 
in 1934. If conclusive evidence exists, no further analysis is 
required. Presumptive evidence indicates that a tribe was placed under 
Federal jurisdiction and may indicate that such jurisdiction persisted 
in 1934. Where presumptive evidence exists, further analysis must focus 
only on whether there is evidence indicating that Federal jurisdiction 
did not exist or did not exist in 1934, such as a statute expressly 
removing Federal jurisdiction. If neither conclusive nor presumptive 
evidence exists, the Department will consider available probative 
evidence, a comprehensive category for which many examples are listed 
in paragraph (a)(3)(i).
    In response to tribal consultation comments, we have added 
paragraph (a)(4) to clarify that Federal executive officials cannot 
disavow a government-to-government relationship with a tribe, as that 
power belongs solely to Congress.
    We note that paragraph (c) explains that, if the Office of the 
Solicitor has previously issued a favorable Carcieri analysis for a 
tribe, no additional analysis is needed. Such prior determinations 
remain valid under the proposed revision, which is broader and more 
inclusive than previous guidance governing the Solicitor's analyses.
    Paragraph (e) clarifies that where a statute other than the IRA has 
authorized trust land acquisitions, the Carcieri-based IRA analysis 
provided for in paragraphs (a) through (d) is not relevant, and the 
Secretary may acquire land in trust as permitted by the other Federal 
law.
    Finally, we note that existing Sec.  151.4, ``Acquisitions in trust 
of lands owned in fee by an Indian,'' has been deleted in the proposed 
rule as unnecessary. The rule already provides for such acquisitions, 
and this section adds no additional information or process regarding 
such acquisitions.

E. Section 151.5 May the Secretary acquire land in trust status by 
exchange?

    Minor stylistic changes have been proposed to this section.

F. Section 151.6 May the Secretary approve acquisition of a fractional 
interest?

    This section, Sec.  151.7 in the existing regulation, has been 
modified to clarify how its provisions are consistent with 25 U.S.C. 
2216(c), a provision of the Indian Lands Consolidation Act. Section 
2216(c) allows for mandatory

[[Page 74337]]

acquisitions of fractional interests of a parcel at least a portion of 
which was in trust or restricted status on November 7, 2000, and is 
located within a reservation. Tribal consultation commenters were 
concerned that existing Sec.  151.6 requires use of the discretionary 
process for such acquisitions, in contravention of past practice and 
section 2216(c). We assure commenters this is not the case; where 
section 2216(c) provides for mandatory acquisitions of fractional 
interests, the Department will continue to employ that statutory 
authority. However, where a fractional interest is off-reservation or 
trust or restricted status of another fractional interest in the same 
parcel did not exist on November 7, 2000, section 2216(c) does not 
provide authority for mandatory trust acquisitions and, thus, the 
Department must typically rely on the discretionary acquisition 
authority provided by the IRA and developed in these regulations. 
Consistent clarifying language has been added to the introduction of 
this section.
    The proposed revision also replaces the term ``buyer'' with 
``applicant.'' The term ``buyer'' is inapposite here; the individual or 
tribe is not typically buying any property, but rather applying to the 
Department to take the individual or tribe's fractional interest into 
trust for the individual or tribe's benefit.

G. Section 151.7 Is tribal consent required for nonmember acquisitions?

    No changes are proposed to this section, numbered in the existing 
regulations as Sec.  151.8.

H. Section 151.8 What documentation is included in a trust acquisition 
package?

    This section expands substantially upon existing Sec.  151.9, 
``Requests for approval of acquisitions.'' The new section describes 
all the pieces of information necessary for the Department to assemble 
a complete trust acquisition package. Once a complete package is 
assembled, the proposed rule requires the Department to notify the 
applicant and then make a decision on the application within 120 days. 
Many tribal consultation commenters were concerned that no timing 
deadline was applied to the Department's responsibility to notify 
applicants of a complete acquisition package; therefore, this proposed 
revision requires such notification within 30 days.
    Tribal consultation commenters also pointed out that this section 
may be confusing in that some pieces of a complete application package 
are provided by the applicant, while some are developed by the 
Department. The following chart clarifies how the Department and 
applicants work together to develop a complete application package.

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                Paragraph No.                       Applicant contribution           Department contribution
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Section 151.8(a)(1)..........................  A signed letter from the tribal   None.
                                                government supported by a
                                                tribal resolution or other act,
                                                or if an individual applicant,
                                                a signed letter.
Section 151.8(a)(2)..........................  Documentation from the applicant  No Department contribution is
                                                explaining purpose, and if an     needed to complete this
                                                individual, need.                 component of the package.
                                                                                  Rather, the Department will
                                                                                  consider this information in
                                                                                  coming to a decision.
Section 151.8(a)(3)..........................  An aliquot legal description of   Concurrence that the
                                                the land and a map, or a metes    description is legally
                                                and bounds land description and   sufficient.
                                                survey.
Section 151.8(a)(4)..........................  Information, or permission to     The Department will develop or
                                                access the land to gather such    adopt and complete NEPA
                                                information, allowing the         analyses, including any
                                                Department to comply with NEPA    required public process, and
                                                and 602 DM 2 regarding            develop or adopt Phase I and
                                                hazardous substances.             Phase II Environmental Site
                                                                                  Assessments produced under 602
                                                                                  DM 2.
Section 151.8(a)(5)..........................  Evidence of marketable title....  Preliminary Title Opinion
Section 151.8(a)(6)..........................  None (applicant replies to        Notification letters to state
                                                comment letters are invited but   and local governments and any
                                                not required for a complete       response letters.
                                                acquisition package).
Section 151.8(a)(7)..........................  Statement that any existing       None.
                                                encumbrances on title will not
                                                interfere with the applicant's
                                                intended use.
Section 151.8(a)(8)..........................  None unless warranted by          None unless warranted by
                                                specific application.             specific application.
----------------------------------------------------------------------------------------------------------------

    Regarding the requirement in Sec.  151.8(a)(3) that the Department 
concur that a description is legally sufficient, many commenters were 
concerned that this adds a novel requirement to the land into trust 
process that may present obstacles. The BIA clarifies that concurrence 
with the land description presented by the applicant was and has always 
been a necessary part of the acquisition process. The BIA has always 
reviewed land descriptions to ensure they are accurate, that the parcel 
``closes,'' and that, generally, the description describes with 
sufficient specificity what land is to be acquired. It is listed in new 
Sec.  151.8 primarily to be comprehensive in the requirements for a 
complete acquisition package. Without such a provision, a flawed or 
otherwise insufficient land description could be construed as 
completing an acquisition package, forcing the Department to deny a 
request if not resolved before the 120-day deadline.

I. Section 151.9 How will the Secretary evaluate a request involving 
land within the boundaries of an Indian reservation?

    This section is the first of four sections providing the process 
for the Secretary's consideration of different types of acquisition 
applications based on the location of the subject land related to an 
Indian reservation or, in the case of initial Indian acquisitions, the 
fact that the tribe has no land currently in trust.
    The on-reservation acquisition process has been simplified and 
designed to result in faster acquisitions in several ways. First, under 
paragraph (a), the Secretary is no longer required to consider the need 
for a tribal government's acquisition, the impact on state and local 
government tax rolls, and jurisdictional problems or conflicts of land 
use which may arise. Given that the subject land is within an Indian 
reservation set aside by the United States Government for the use and 
welfare of a tribe and based on the long experience of BIA in 
processing such applications and then administering land placed into 
trust, these considerations are not necessary.
    We note that some commenters wished to eliminate the purpose 
criterion in paragraph (a) as well. Because an understanding of purpose 
is necessary to comply with the National Environmental Policy Act 
(NEPA) and to support the approach described in

[[Page 74338]]

paragraph (b), BIA is retaining this criterion.
    Second, under paragraph (b), the Secretary will apply great weight 
to applications pursuing certain important purposes for tribal welfare, 
including, for instance, the need to protect tribal homelands. This 
approach recognizes and incorporates the Secretary's policy to support 
acquisition of land in trust for the benefit of tribes. In applying 
great weight, the Secretary will expressly consider and closely 
scrutinize the importance of the listed tribal purposes for land 
acquisition, and in the holistic consideration applied to land into 
trust acquisitions under the discretionary authority of the IRA, if 
reaching a disapproval decision, explain in detail why an acquisition 
for such purposes should not be approved.
    Third, under paragraph (c), the Secretary will now apply a 
presumption of approval for on-reservation acquisitions. Given that the 
subject land is within an Indian reservation set aside by the United 
States Government for the use and welfare of a tribe and given the long 
history of such lands being removed from tribal ownership through 
improper sale or the Government's efforts to allot land originally held 
by the tribal government, a presumption of approval restoring 
reservation lands to trust status is appropriate and consistent with 
the proposed rule's policy on land into trust acquisitions.
    Fourth, under paragraph (d), while the Secretary will notify state 
and local governments of a request to have land acquired in trust, the 
Secretary will no longer invite comment regarding on-reservation 
acquisitions.

J. Section 151.10 How will the Secretary evaluate a request involving 
land contiguous to the boundaries of an Indian reservation?

    The process for approving acquisitions contiguous to an Indian 
reservation has also been simplified and designed to result in faster 
review and decision-making. Paragraphs (a) through (c) are the same for 
contiguous and on-reservation acquisitions. Under paragraph (a), the 
Secretary is no longer required to consider the need for a tribal 
government's acquisition. Under paragraph (b), granting great weight to 
important tribal purposes will be applied. The Secretary also presumes, 
based on decades of experience in acquiring and administering 
contiguous trust lands, that the tribal community will benefit from the 
acquisition. Under paragraph (c), the Secretary will now apply a 
presumption of approval for on-reservation acquisitions. Given that the 
subject land is contiguous to an Indian reservation set aside by the 
United States Government for the use and welfare of a tribe, and would, 
after acquisition, form a contiguous parcel of the tribal nation, and 
based on the long experience of BIA in processing such applications and 
then administering land placed into trust, these considerations applied 
under the existing regulations are warranted. However, the proposed 
rule retains notice and an invitation to state and local governments to 
comment on the acquisition's potential impact on regulatory 
jurisdiction, real property taxes, and special assessments. If such 
comments are received, the Secretary will consider them in her holistic 
analysis of the application. If no such comments are received, no 
consideration of these factors is required by the proposed rule.

Section 151.11 How will the Secretary evaluate a request involving land 
outside the boundaries of an Indian reservation?

    Off-reservation acquisitions have been streamlined and designed to 
result in faster review and decision-making through the same reductions 
in review criteria described for on-reservation and contiguous 
acquisitions appearing in paragraph (a), and by applying the same great 
weight standard to important tribal purposes in new paragraph (b).
    In addition, existing paragraph (b) applied a ``bungee cord'' 
approach, increasing the difficulty of approving an acquisition as 
distance from a tribe's reservation increased. The proposed rule 
abandons this approach, providing in new paragraph (c) that the 
Secretary presumes community benefits without regard to distance of the 
land from a tribe's reservation boundaries or trust lands. This 
understanding fits with the BIA's long experience in implementing the 
land into trust authorities under the IRA. Where a tribe takes off-
reservation land into trust, that land nearly always serves an 
important economic, cultural, self-determination, or sovereignty 
purpose that supports tribal welfare. Tribal governments are rational 
actors that make acquisition decisions carefully based on available 
resources, planning, and purposes valued by the tribe. Accordingly, the 
Secretary will no longer apply a limiting understanding of distance 
from a tribal reservation, but will instead consider the location of 
the land in her holistic analysis of the application as she considers 
comments received from state and local governments.

K. Section 151.12 How will the Secretary evaluate a request involving 
land for an initial Indian acquisition?

    This new section is designed to support and speed review and 
decision-making for acquisitions for tribes which do not currently have 
land in trust. In the past, initial Indian acquisitions would have been 
processed under the existing rule's off-reservation provisions. The 
proposed rule removes any consideration of the location of the land, 
except if such consideration is necessary given state and local 
comments, while also providing the reduced criteria for analysis in 
paragraph (a) and great weight granted to important purposes in 
paragraph (b). The proposed rule also establishes a presumption of 
approval for such requests in paragraph (c).

L. Section 151.13 How will the Secretary act on requests?

    Minor clarifying changes to language were made in this section, 
including the use of ``Office of the Secretary'' rather than 
``Secretary'' in paragraphs (c) and (d). Because this rule uses the 
defined term Secretary in its inclusive sense to mean all Department 
staff with delegated authority from the Secretary, here in Sec.  151.12 
where we refer to the unusual instance where the Secretary herself and 
her immediate office have taken over review of an application, we 
specify that circumstance by using ``Office of the Secretary.''
    In addition, the proposed rule adds new Sec.  151.15, regarding 
environmental review, to the steps that occur after a decision to take 
land into trust but before signature on the acceptance of conveyance 
document, described in paragraph (c)(2)(iii). This change is explained 
in detail below regarding the new Sec.  151.15.

N. Section 151.14 How will the Secretary review title?

    Two significant changes were made to the Secretary's title review 
process. First, our understanding is that in certain jurisdictions, 
including California, many title insurance companies decline to provide 
abstracts of title to tribal applicants. This market failure has 
created substantial obstacles for such applicants to bring land into 
trust. New paragraph (a)(2)(ii) is designed to address that issue by 
allowing applicants who cannot obtain an abstract of title to instead 
provide evidence of a title insurance company's declination, and a 
policy of title insurance less than five years old. In such cases the 
Secretary shall accept the applicant's preliminary title report in

[[Page 74339]]

place of an abstract of title as sufficient proof of good title under 
this section. Evidence of declination may be provided as a letter or 
email from the applicant's title insurance company declining to provide 
an abstract based on their business practices.
    Second, in paragraph (b) the proposed rule allows the Secretary to 
seek additional action, if necessary, to address liens, encumbrances, 
or infirmities on title. The existing rule mandates disapproval if the 
Secretary determines title is unmarketable. The new rule makes this 
choice discretionary by replacing ``shall'' with ``may.'' While we 
expect the Department will need to disapprove if title is so deficient 
as to be unmarketable, the Secretary retains discretion here.
    We note also that many tribal consultation commenters were 
concerned that encumbrances on the land which cannot be conveniently 
eliminated may prevent acquisition in trust. We clarify here that the 
Department may accept, in its discretion, some encumbrances on title 
and, should those encumbrances have the potential to impose costs in 
the future, the Department may enter into indemnification agreements 
with the applicant to facilitate the processing of fee-to-trust 
applications. Under the Checklist for Solicitor's Office Review of Fee-
to-Trust Applications, issued by Solicitor Tompkins on January 5, 2017, 
an indemnification agreement between the BIA and a Tribal applicant to 
address a responsibility that runs with the land may be appropriate if 
the Tribal applicant is willing to enter into the indemnification 
agreement, the risk of liability for the responsibility is low, and the 
indemnification agreement is the only device that will allow the 
Department to continue processing the land into trust application. The 
Department has completed many such agreements and is willing to 
consider them whenever necessary to further an acquisition.

O. Section 151.15 How will the Secretary conduct a review of 
environmental conditions?

    New Sec.  151.15 covers the Department's environmental 
responsibilities under NEPA and the Departmental Manual at 602 DM 2, 
Land Acquisitions: Hazardous Substances Determinations. Paragraph (a) 
simply states that the Department will comply with NEPA; no changes to 
BIA's practices are created through this paragraph. Paragraph (b) 
creates a new process in relation to 602 DM 2. That Departmental policy 
helps ensure that the Department does not acquire land that has been 
contaminated by hazardous substances, or that if it does acquire such 
land unknowingly, its due diligence in examining the property will 
ensure an innocent landowner defense to liability under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA).
    The innocent landowner defense is only available where 
environmental site assessments developed pursuant to 602 DM 2 are 
performed or updated within 180 days of an acquisition. Under the 
existing regulations, many applicants have, therefore, needed to 
continually update their environmental site assessments while waiting 
for a decision on their application. Environmental consultant fees in 
performing this work added significantly to the cost of an acquisition. 
To address this problem, the proposed revisions anticipate a maximum of 
two environmental site assessments. One assessment should be prepared 
to develop a complete application package. Section 151.15(b) provides 
that, if this assessment will be more than 180 days old at the time of 
acquisition and, thus, an update is needed, then a single additional 
update may be performed after the Secretary issues her notice of 
decision approving the acquisition, but before the acceptance of 
conveyance document is signed. Based on lengthy experience in such 
acquisitions, if no recognized environmental conditions are identified 
in the first environmental site assessment, the chances are low that 
any such conditions will have emerged by the time of acceptance. 
Repeated updates are, therefore, an unnecessary expense for the 
applicant that will be avoided through new Sec.  151.15(b). We note 
that Sec.  151.15(b) states that this single additional update ``may'' 
be required by the Secretary; we use the term ``may'' because if the 
original environmental site assessment was performed less than six 
months before the acceptance of conveyance, there is no need to perform 
an update.

P. Section 151.16 How is formalization of acceptance and trust status 
attained?

    Proposed Sec.  151.16 explains in greater detail how the final 
process of accepting land into trust occurs and when. This section 
replaces existing Sec.  151.14 and expands on its description of 
formalization of acceptance.
    In brief, this section explains that after all procedural steps are 
completed, including notice of intent to acquire the land in trust, 
title review, environmental review, and the expiration of the appeal 
period, the Secretary will sign an instrument of conveyance. That 
signature places the land into trust for the benefit of the applicant.

Q. Section 151.17 What effect does this part have on pending requests 
and final agency decisions already issued?

    Paragraph (a) of proposed Sec.  151.17 addresses pending 
applications, offering a choice to applicants. By default, the 
Department will continue processing such applications under the 
existing regulations, with the understanding that altering the 
applicable applications midstream might be an unnecessary disruption, 
especially for applications that are near the end of the process or 
awaiting decision.
    However, if an applicant wishes to apply the new regulations to its 
pending application, the applicant may do so by informing us of their 
choice, with the single exception that the 120-day timeline created in 
new Sec.  151.8(b)(2) will not apply. Given the number of pending 
applications before the Department, if a large number of such 
applications were placed at once under the 120-day timeline, the volume 
could potentially cause serious problems for agency decision-making.
    Paragraph (b) explains that any decisions already made under the 
existing regulations are not altered by the new regulation.

V. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not

[[Page 74340]]

have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
It would not change current funding requirements and would not impose 
any economic effects on small governmental entities because it makes no 
change to the status quo.

C. Congressional Review Act (CRA)

    This rule is not a major rule under 5 U.S.C. 804(2). This rule:
    (a) Would not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act of 1995

    This rule would not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule would not have a significant or unique effect on State, 
local, or tribal governments or the private sector because this rule 
affects only individual Indians and tribal governments that petition 
the Department to take land into trust for their benefit. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This rule would not affect a taking of private property or 
otherwise have taking implications under E.O. 12630. A takings 
implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule would not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. A federalism summary impact 
statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule: (a) meets the criteria of section 3(a) 
requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to minimize litigation; and (b) meets the 
criteria of section 3(b)(2) requiring that all regulations be written 
in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department will conduct two virtual session, one in-person 
consultation, and will accept oral and written comments. The 
consultations sessions will be open to tribal leadership and 
representatives of federally recognized Indian Tribes and Alaska Native 
Corporations.
     In-Person Session: The in-person consultation will be held 
on January 13, 2023, from 9 a.m. to 12 p.m. MST, at the BLM National 
Training Center (NTC), 9828 N 31st Ave. Phoenix, AZ 85051.
     1st Virtual Session: The first virtual consultation 
session will be held on January 19, 2023, from 1 p.m. to 4 p.m. EST. 
Please visit https://www.zoomgov.com/meeting/register/vJIsd-2qrjwiH2bVXpLvS2VPUZESt2HgtKk to register in advance.
     2nd Virtual Session: The second virtual consultation will 
be held on January 30, 2023, from 2 p.m. to 5 p.m. EST. Please visit 
https://www.zoomgov.com/meeting/register/vJIsduGtqzgtE1hw9EIFrDf3-X_1gy5wGR0 to register in advance.
     Comment Deadline: Please see DATES and ADDRESSES for 
submission instructions.
    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in E.O. 13175 and have hosted extensive consultation with federally 
recognized Indian Tribes in preparation of this proposed rule, 
including through a Dear Tribal Leader letter delivered to every 
federally-recognized tribe in the country, and through three 
consultation sessions held on May 9, 13, and 23, 2022.

I. Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) is not 
required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

J. National Environmental Policy Act (NEPA)

    This rule would not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this is an administrative and procedural regulation. 
(For further information see 43 CFR 46.210(i).) We have also determined 
that the rule would not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Energy Effects (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(l)(B)), and 13563 (section 1(a)), and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that you find unclear, which sections or sentences are too long, the 
sections where you feel lists or tables would be useful, and so forth.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 151

    Administrative practice and procedure, Indians, Indians--land 
acquisition, Indians--law, Indians--tribal government.


0
For the reasons stated in the preamble, the Department of the Interior, 
Bureau

[[Page 74341]]

of Indian Affairs, proposes to revise 25 CFR part 151 to read as 
follows:

PART 151--LAND ACQUISITIONS

Sec.
151.1 What is the purpose of this part?
151.2 How are key terms defined?
151.3 What is the Secretary's land acquisition policy?
151.4 How will the Secretary determine that statutory authority 
exists to acquire land in trust status?
151.5 May the Secretary acquire land in trust status by exchange?
151.6 May the Secretary approve acquisition of a fractional 
interest?
151.7 Is tribal consent required for nonmember acquisitions?
151.8 What documentation is included in a trust acquisition package?
151.9 How will the Secretary evaluate a request involving land 
within the boundaries of an Indian reservation?
151.10 How will the Secretary evaluate a request involving land 
contiguous to the boundaries of an Indian reservation?
151.11 How will the Secretary evaluate a request involving land 
outside the boundaries of an Indian reservation?
151.12 How will the Secretary evaluate a request involving land for 
an initial Indian acquisition?
151.13 How will the Secretary act on requests?
151.14 How will the Secretary review title?
151.15 How will the Secretary conduct a review of environmental 
conditions?
151.16 How is formalization of acceptance and trust status attained?
151.17 What effect does this part have on pending requests and final 
agency decisions already issued?

    Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 
1106, as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as 
amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 
Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 
Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, 
as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 
86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716; 
88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 450h, 451, 464, 
465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a, 
622, 624, 640d-10, 1466, 1495, and other authorizing acts.


Sec.  151.1  What is the purpose of this part?

    This part sets forth the authorities, policies, and procedures 
governing the acquisition of land by the United States in trust status 
for individual Indians and tribes. This part does not cover acquisition 
of land by individual Indians and tribes in fee simple status even 
though such land may, by operation of law, be held in restricted status 
following acquisition; acquisition of land mandated by Congress or a 
Federal court; acquisition of land in trust status by inheritance or 
escheat; or transfers of land into restricted fee status unless 
required by Federal law.


Sec.  151.2  How are key terms defined?

    Contiguous means two parcels of land having a common boundary 
notwithstanding the existence of non-navigable waters or a public road 
or right-of-way and includes parcels that touch at a point.
    Fee interest means an interest in land that is owned in 
unrestricted fee simple status and is, thus, freely alienable by the 
fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests 
therein.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status and includes both individually owned Indian land and tribal 
land.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land.
    Indian reservation or tribe's reservation means, unless another 
definition is required by Federal law authorizing a particular trust 
acquisition, 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 wherever historic reservations have not yet been 
reaffirmed, 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.
    Individual Indian means:
    (1) Any person who is an enrolled member of a tribe;
    (2) Any person who is a descendent of such a member and said 
descendant was, on June 1, 1934, physically residing on a federally 
recognized Indian reservation; or
    (3) Any other person possessing a total of one-half or more degree 
Indian blood of a tribe.
    Initial Indian acquisition means an acquisition of land in trust 
status for the benefit of a tribe that has no land currently held in 
trust status.
    Interested party means a person or other entity whose legally 
protected interests would be affected by a decision.
    Land means real property or any interest therein.
    Marketable title means title that a reasonable buyer would accept 
because it appears to lack substantial defect and to cover the entire 
property that the seller has purported to sell.
    Preliminary Title Opinion means an opinion issued by the Office of 
the Solicitor that reviews the existing status of title, examining both 
record and non-record title evidence and any encumbrances or liens 
against the land, and sets forth requirements to be met before 
acquiring land in trust status.
    Preliminary title report means a report prepared by a title company 
prior to issuing a policy of title insurance that shows the ownership 
of a specific parcel of land together with the liens and encumbrances 
thereon.
    Restricted land or land in restricted status means land the title 
to which is held by an individual Indian or a tribe and which can only 
be alienated or encumbered by the owner with the approval of the 
Secretary due to limitations contained in the conveyance instrument 
pursuant to Federal law or because a Federal law directly imposes such 
limitations.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Tribe means any Indian tribe listed under section 102 of the 
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130). 
For purposes of acquisitions made under the authority of 25 U.S.C. 5136 
and 5138, or other statutory authority which specifically authorizes 
trust acquisitions for such corporations, tribe also means a 
corporation chartered under section 17 of the Act of June 18, 1934 (25 
U.S.C. 5124) or section 3 of the Act of June 26, 1936 (25 U.S.C. 5203).
    Trust land or land in trust status means land the title to which is 
held in trust by the United States for an individual Indian or a tribe.
    Undivided interest means a fractional share of ownership in an 
estate of Indian land where the estate is owned in common with other 
Indian landowners or fee owners.


Sec.  151.3  What is the Secretary's land acquisition policy?

    It is the Secretary's policy to acquire land in trust status 
through direct acquisition or transfer for individual Indians and 
tribes to strengthen self-determination and sovereignty, ensure that 
every tribe has protected homelands where its citizens can maintain 
their tribal existence and way of life, and consolidate land ownership 
to strengthen tribal governance over reservation lands and reduce 
checkerboarding. The Secretary retains discretion whether to acquire 
land in trust status where discretion is granted under Federal law.
    (a) Land not held in trust or restricted status may only be 
acquired for an individual Indian or a tribe in trust status when the 
acquisition is authorized by Federal law. No

[[Page 74342]]

acquisition of land in trust status under this part, including a 
transfer of land already held in trust or restricted status, shall be 
valid unless the acquisition is approved by the Secretary.
    (b) Subject to the provisions of Federal law authorizing trust land 
acquisitions, the Secretary may acquire land for a tribe in trust 
status:
    (1) When the land is located within the exterior boundaries of the 
tribe's reservation or contiguous thereto;
    (2) When the tribe already owns an interest in the land; or
    (3) When the Secretary determines that the acquisition of the land 
will further tribal interests by establishing a tribal land base or 
protecting tribal homelands, protecting sacred sites or cultural 
resources and practices, establishing or maintaining conservation or 
environmental mitigation areas, consolidating land ownership, reducing 
checkerboarding, acquiring land lost through allotment, protecting 
treaty or subsistence rights, or facilitating tribal self-
determination, economic development, Indian housing, or for other 
reasons the Secretary determines will support tribal welfare.
    (c) Subject to the provisions contained in Federal law which 
authorize land acquisitions or holding land in trust or restricted 
status, the Secretary may acquire land in trust status for an 
individual Indian:
    (1) When the land is located within the exterior boundaries of an 
Indian reservation, or contiguous thereto; or
    (2) When the land is already in trust or restricted status.


Sec.  151.4  How will the Secretary determine that statutory authority 
exists to acquire land in trust status?

    (a) In determining whether a tribe was under Federal jurisdiction 
in 1934 within the meaning of section 19 of the Indian Reorganization 
Act of June 18, 1934 (IRA) (25 U.S.C. 5129), and is, thus, eligible for 
trust acquisition under section 5 of the IRA (25 U.S.C. 5108), the 
Secretary shall consider evidence of Federal jurisdiction in the manner 
provided in paragraphs (a)(1) through (4) of this section.
    (1) Conclusive evidence establishes in and of itself both that a 
tribe was placed under Federal jurisdiction and that this jurisdiction 
persisted in 1934. If such evidence exists, no further analysis under 
this section is needed. The following is conclusive evidence that a 
tribe was under Federal jurisdiction in 1934:
    (i) A vote under section 18 of the IRA (25 U.S.C. 5125) to ratify 
or reject the IRA as recorded in Ten Years of Tribal Government Under 
I.R.A., Theodore Haas, United States Indian Service (Jan. 1947) (Haas 
List) or other Federal Government document;
    (ii) Secretarial approval of a tribal constitution under section 16 
of the IRA as recorded in the Haas List or other Federal Government 
document;
    (iii) Secretarial approval of a charter of incorporation issued to 
a tribe under section 17 of the IRA as recorded in the Haas List or 
other Federal Government document;
    (iv) An Executive order for a specific tribe that was still in 
effect in 1934;
    (v) Treaties to which a tribe is a party, ratified by the United 
States and still in effect as to that party in 1934;
    (vi) Continuing existence in 1934 or later of treaty rights 
guaranteed by a treaty ratified by the United States; or
    (vii) Other forms of evidence deemed conclusive by the Secretary.
    (2) Presumptive evidence is indicative that a tribe was placed 
under Federal jurisdiction and may indicate that such jurisdiction 
persisted in 1934. In the absence of evidence indicating that Federal 
jurisdiction did not exist or did not exist in 1934, presumptive 
evidence satisfies the analysis under this section. The following is 
presumptive evidence that a tribe was under Federal jurisdiction in 
1934:
    (i) Evidence of treaty negotiations or evidence a tribe signed a 
treaty with the United States whether or not such treaty was ratified 
by Congress;
    (ii) Listing of a tribe in the Department of the Interior's 1934 
Indian Population Report;
    (iii) Evidence that the United States took efforts to acquire lands 
on behalf of a tribe in the years leading up to the passage of the IRA;
    (iv) Inclusion in Volume V of Charles J. Kappler's Indian Affairs, 
Laws and Treaties;
    (v) Federal legislation for a specific tribe, including termination 
legislation enacted after 1934, which acknowledges the existence of a 
government-to-government relationship with a tribe in or before 1934;
    (vi) When a tribe is recognized under the process in part 83 of 
this chapter with a finding that the tribe has been identified as an 
American Indian entity on a substantially continuous basis since 1900 
pursuant to Sec.  83.11(a) of this chapter; or
    (vii) Other forms of evidence deemed presumptive by the Secretary.
    (3) In the absence of conclusive or presumptive evidence, the 
Secretary may find that a tribe was under Federal jurisdiction in 1934 
when the United States in 1934 or at some point in the tribe's history 
prior to 1934, took an action or series of actions that, when viewed in 
concert through a course of dealings or other relevant acts on behalf 
of a tribe, or in some instances tribal members, establishes or 
generally reflects Federal obligations, or duties, responsibility for 
or authority over the tribe, and that such jurisdictional status 
remained intact in 1934.
    (i) Examples of Federal actions that exhibit probative evidence of 
Federal jurisdiction may include but are not limited to, the Department 
of the Interior's acquisition of land for a tribe in implementing the 
Indian Reorganization Act of 1934, the attendance of tribal members at 
Bureau of Indian Affairs operated schools, Federal decisions regarding 
whether to remove or not remove a tribe from its homelands, the 
inclusion of a tribe in Federal reports and surveys, the inclusion of a 
tribe or tribal members in Federal census records prepared by the 
Office of Indian Affairs, and the provision of health and social 
services to a tribe or tribal members.
    (ii) [Reserved]
    (4) Evidence of executive officials disavowing legal responsibility 
for a tribe in certain instances cannot, in itself, revoke Federal 
jurisdiction over a tribe without express congressional action.
    (b) For some tribes, Congress enacted legislation after 1934 making 
the IRA applicable to the tribe. The existence of such legislation 
making the IRA and its trust acquisition provisions applicable to a 
tribe eliminates the need to determine whether a tribe was under 
Federal jurisdiction in 1934.
    (c) In order to be eligible for trust acquisitions under section 5 
of the IRA, no additional ``under Federal jurisdiction'' analysis is 
required under this part for tribes for which the Office of the 
Solicitor has previously issued an analysis finding the tribe was under 
Federal jurisdiction.
    (d) Land may be acquired in trust status for an individual Indian 
or a tribe in the State of Oklahoma under section 5 of the IRA if the 
acquisition comes within the terms of this part. This authority is in 
addition to all other statutory authority for such an acquisition.
    (e) The Secretary may also acquire land in trust status for an 
individual Indian or a tribe under this part when specifically 
authorized by Federal law other than section 5 of the IRA, subject to 
any limitations contained in that Federal law.


Sec.  151.5  May the Secretary acquire land in trust status by 
exchange?

    The Secretary may acquire land in trust status on behalf of an 
individual

[[Page 74343]]

Indian or tribe by exchange under this part if authorized by Federal 
law and within the terms of this part. The disposal aspects of an 
exchange are governed by part 152 of this title.


Sec.  151.6  May the Secretary approve acquisition of a fractional 
interest?

    Where the mandatory acquisition process provided under 25 U.S.C. 
2216(c) is not applicable to a fractional interest acquisition, e.g., 
where the acquisition proposed is located outside the boundaries of an 
Indian reservation, this section applies to discretionary acquisitions 
of fractional interests. The Secretary may approve the acquisition of a 
fractional interest in a fractionated tract in trust status by an 
individual Indian or a tribe only if:
    (a) The applicant already owns a fractional interest in the same 
parcel of land;
    (b) The interest being acquired by the applicant is in fee status;
    (c) The applicant offers to purchase the remaining undivided trust 
or restricted interests in the parcel at not less than their fair 
market value;
    (d) There is a specific law which grants to the applicant the right 
to purchase an undivided interest or interests in trust or restricted 
land without offering to purchase all such interests; or
    (e) The owner or owners of more than fifty percent of the remaining 
trust or restricted interests in the parcel consent in writing to the 
acquisition by the applicant.


Sec.  151.7  Is tribal consent required for nonmember acquisitions?

    An individual Indian or tribe may acquire land in trust status on 
an Indian reservation other than its own only when the governing body 
of the tribe having jurisdiction over such reservation consents in 
writing to the acquisition; provided, that such consent shall not be 
required if the individual Indian or the tribe already owns an 
undivided trust or restricted interest in the parcel of land to be 
acquired.


Sec.  151.8  What documentation is included in a trust acquisition 
package?

    An individual Indian or tribe seeking to acquire land in trust 
status must file a written request, i.e., application, with the 
Secretary. The request need not be in any special form but must set out 
the identity of the parties, a description of the land to be acquired, 
and other information which would show that the acquisition fulfills 
the requirements of this part. The Secretary will prepare the 
acquisition package using information provided by the applicant and 
assessments developed by the Secretary, as described in paragraphs (a) 
and (b) of this section:
    (a) A complete acquisition package consists of the following:
    (1) The applicant's request that the land be acquired in trust, as 
follows:
    (i) If the applicant is an Indian tribe, the tribe's written 
request must be a signed tribal letter for trust acquisition supported 
by a tribal resolution or other act of the governing body of the tribe; 
and
    (ii) If the applicant is an individual Indian, the individual's 
written request must be a signed letter requesting trust status;
    (2) Documentation from the applicant providing the information 
assessed by the Secretary under Sec.  151.9(a)(2) and (3), Sec.  
151.10(a)(2) and (3), Sec.  151.11(a)(2) and (3), or Sec.  151.12(a)(2) 
and (3), depending on which section applies to the application;
    (3) A description of the land as follows:
    (i) An aliquot part legal description of the land and a map from 
the applicant, including a statement of the estate to be acquired, 
e.g., all surface and mineral rights, surface rights only, surface 
rights and a portion of the mineral rights, etc.; or
    (ii) A metes and bounds land description and survey if the land 
cannot be described by an aliquot legal description. The survey may be 
completed by a land surveyor registered in the jurisdiction in which 
the land is located when the land being acquired is fee simple land; 
and
    (iii) Concurrence by the Secretary that the legal description or 
survey is sufficient;
    (4)(i) Information from the applicant that allows the Secretary to 
comply with the National Environmental Policy Act and 602 Departmental 
Manual (DM) 2, Land Acquisitions: Hazardous Substances Determinations 
pursuant to Sec.  151.15; and
    (ii) An acquisition package is not complete until the public review 
period of a final environmental impact statement or, where appropriate, 
a final environmental assessment has concluded, or the categorical 
exclusion documentation is complete;
    (5) Title evidence submitted by the applicant, and a completed 
Preliminary Title Opinion prepared by the Secretary based on such 
evidence;
    (6) Notification letters prepared and sent by the Secretary 
pursuant to Sec.  151.9, Sec.  151.10, Sec.  151.11, or Sec.  151.12, 
including any associated responses where requested by the Secretary;
    (7) Statement from the applicant that any existing covenants, 
easements, or restrictions of record will not interfere with the 
applicant's intended use of the land; and
    (8) Any additional information or action requested by the 
Secretary, in writing, if warranted by the specific application.
    (b) After the Bureau of Indian Affairs is in possession of a 
complete acquisition package, we will:
    (1) Notify the applicant within 30 calendar days in writing that 
the acquisition package is complete; and
    (2) Issue a decision on a request within 120 calendar days after 
issuance of the notice of a complete acquisition package.


Sec.  151.9  How will the Secretary evaluate a request involving land 
within the boundaries of an Indian reservation?

    (a) The Secretary will consider the criteria in this section when 
evaluating requests for the acquisition of land in trust status when 
the land is located within the boundaries of an Indian reservation.
    (1) The existence of statutory authority for the acquisition and 
any limitations contained in such authority, as identified in Sec.  
151.4;
    (2) If the applicant is an individual Indian, the need for 
additional land, the amount of trust or restricted land already owned 
by or for that individual, and the degree to which the individual needs 
assistance in handling their affairs;
    (3) The purposes for which the land will be used; and
    (4) 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 the land in trust 
status.
    (b) The Secretary shall give great weight to any of the following 
in accordance with Sec.  151.3: if the acquisition will further tribal 
interests by establishing a land base or protecting tribal homelands, 
protecting sacred sites or cultural resources and practices, 
establishing or maintaining conservation or environmental mitigation 
areas, consolidating land ownership, acquiring land lost through 
allotment, reducing checkerboarding, protecting treaty or subsistence 
rights, or facilitating self-determination, economic development, or 
Indian housing.
    (c) When reviewing a tribe's request for land within the boundaries 
of an Indian reservation, the Secretary presumes that the acquisition 
will be approved.
    (d) Upon receipt of a written request to have lands acquired in 
trust within the boundaries of an Indian reservation,

[[Page 74344]]

the Secretary will notify the state and local governments with 
regulatory jurisdiction over the land to be acquired of the applicant's 
request.


Sec.  151.10  How will the Secretary evaluate a request involving land 
contiguous to the boundaries of an Indian reservation?

    (a) The Secretary will consider the criteria in this section when 
evaluating requests for the acquisition of land in trust status when 
the land is located contiguous to an Indian reservation:
    (1) The existence of statutory authority for the acquisition and 
any limitations contained in such authority, as identified in Sec.  
151.4;
    (2) If the applicant is an individual Indian, the need for 
additional land, the amount of trust or restricted land already owned 
by or for that individual, and the degree to which the individual needs 
assistance in handling their affairs;
    (3) The purposes for which the land will be used; and
    (4) 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 the land in trust 
status.
    (b) The Secretary shall give great weight to any of the following 
in accordance with Sec.  151.3: if the acquisition will further tribal 
interests by establishing a land base or protecting tribal homelands, 
protect sacred sites or cultural resources and practices, establish or 
maintain conservation or environmental mitigation areas, consolidate 
land ownership, acquire land lost through allotment, reduce 
checkerboarding, protect treaty or subsistence rights, or facilitate 
self-determination, economic development, or Indian housing.
    (c) When reviewing a tribe's request for land is located contiguous 
to an Indian reservation, the Secretary presumes that the acquisition 
will be approved.
    (d) Upon receipt of a written request to have lands contiguous to 
an Indian reservation acquired in trust status, the Secretary will 
notify the state and local governments having regulatory jurisdiction 
over the land to be acquired. The notice will inform the state or local 
government that each will be given 30 calendar days in which to provide 
written comments on the acquisition's potential impact on regulatory 
jurisdiction, real property taxes, and special assessments. If the 
state or local government responds within 30 calendar days, a copy of 
the comments will be provided to the applicant, who will be given a 
reasonable time in which to reply if they choose to do so in their 
discretion, or request that the Secretary issue a decision. In 
considering such comments, the Secretary presumes that the tribal 
community will benefit from the acquisition.


Sec.  151.11  How will the Secretary evaluate a request involving land 
outside the boundaries of an Indian reservation?

    (a) The Secretary shall consider the following requirements in 
evaluating requests for the acquisition of lands in trust status, when 
the land is located outside of and noncontiguous to an Indian 
reservation:
    (1) The existence of statutory authority for the acquisition and 
any limitations contained in such authority, as identified in Sec.  
151.4;
    (2) If the applicant is an individual Indian and the land is 
already held in trust or restricted status, the need for additional 
land, the amount of trust or restricted land already by or for that 
individual, and the degree to which the individual needs assistance in 
handling their affairs;
    (3) The purposes for which the land will be used; and
    (4) 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 the land in trust 
status.
    (b) The Secretary shall give great weight to any of the following 
in accordance with Sec.  151.3: if the acquisition will further the 
establishment of a land base or protect tribal homelands, protect 
sacred sites or cultural resources and practices, establish or maintain 
conservation or environmental mitigation areas, consolidate land 
ownership, acquire land lost through allotment, reduce checkerboarding, 
protect treaty or subsistence rights, or facilitate self-determination, 
economic development, or Indian housing.
    (c) Upon receipt of a written request to have lands outside the 
boundaries of an Indian reservation acquired in trust status, the 
Secretary will notify the state and local governments having regulatory 
jurisdiction over the land to be acquired. The notice will inform the 
state or local government that each will be given 30 calendar days in 
which to provide written comments on the acquisition's potential impact 
on regulatory jurisdiction, real property taxes and special 
assessments. If the state or local government responds within 30 
calendar days, a copy of the comments will be provided to the 
applicant, who will be given a reasonable time in which to reply if 
they choose to do so in their discretion, or request that the Secretary 
issue a decision. In reviewing such comments, the Secretary will 
consider the location of the land. The Secretary presumes that the 
tribal community will benefit from the acquisition without regard to 
distance of the land from a tribe's reservation boundaries or trust 
lands.


Sec.  151.12  How will the Secretary evaluate a request involving land 
for an initial Indian acquisition?

    (a) The Secretary will consider the criteria in this section when 
evaluating requests for the acquisition of land in trust status when a 
tribe does not have a reservation or land held in trust.
    (1) The existence of statutory authority for the acquisition and 
any limitations contained in such authority, as identified in Sec.  
151.4;
    (2) The purposes for which the land will be used; and
    (3) 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 the land in trust 
status.
    (b) The Secretary shall give great weight to any of the following 
in accordance with Sec.  151.3: if the acquisition will further tribal 
interests by establishing a land base or protecting tribal homelands, 
protecting sacred sites or cultural resources and practices, 
establishing or maintaining conservation or environmental mitigation 
areas, consolidating land ownership, acquiring land lost through 
allotment, reducing checkerboarding, protecting treaty or subsistence 
rights, or facilitating self-determination, economic development, or 
Indian housing.
    (c) When reviewing a tribe's request for when a tribe does not have 
a reservation or land held in trust, the Secretary presumes that the 
acquisition will be approved.
    (d) Upon receipt of a written request for land to be acquired in 
trust when a tribe does not have a reservation or land held in trust, 
the Secretary will notify the state and local governments having 
regulatory jurisdiction over the land to be acquired. The notice will 
inform the state or local government that each will be given 30 
calendar days in which to provide written comments on the acquisition's 
potential impact on regulatory jurisdiction, real property taxes, and 
special assessments. If the state or local government responds within 
30 calendar days, a copy of the comments will be provided to the 
applicant, who will be given a

[[Page 74345]]

reasonable time in which to reply if they choose to do so in their 
discretion, or request that the Secretary issue a decision. In 
reviewing such comments, the Secretary will consider the location of 
the land. The Secretary presumes that the tribal community will benefit 
from the acquisition.


Sec.  151.13  How will the Secretary act on requests?

    (a) The Secretary shall review each request and may request any 
additional information or justification deemed necessary to reach a 
decision.
    (b) The Secretary's decision to approve or deny a request shall be 
in writing and state the reasons for the decision.
    (c) A decision made by the Office of the Secretary, or the 
Assistant Secretary--Indian Affairs pursuant to delegated authority, is 
a final agency action under 5 U.S.C. 704 upon issuance.
    (1) If the Office of the Secretary or Assistant Secretary denies 
the request, the Assistant Secretary shall promptly provide the 
applicant with the decision.
    (2) If the Office of the Secretary or Assistant Secretary approves 
the request, the Assistant Secretary shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly publish in the Federal Register notice of the 
decision to acquire land in trust status under this part; and
    (iii) Immediately acquire the land in trust status under Sec.  
151.16 after the date such decision is issued and upon fulfillment of 
the requirements of Sec. Sec.  151.14 and 151.15 and any other 
Department of the Interior requirements.
    (d) A decision made by a Bureau of Indian Affairs official, rather 
than the Office of the Secretary or Assistant Secretary, pursuant to 
delegated authority is not a final agency action of the Department of 
the Interior under 5 U.S.C. 704 until administrative remedies are 
exhausted under part 2 of this chapter and under 43 CFR part 4, subpart 
D, or until the time for filing a notice of appeal has expired and no 
administrative appeal has been filed. Administrative appeals are 
governed by part 2 of this chapter and by 43 CFR part 4, subpart D.
    (1) If the official denies the request, the official shall promptly 
provide the applicant with the decision and notification of the right 
to file an administrative appeal.
    (2) If the official approves the request, the official shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly provide written notice of the decision and the right, 
if any, to file an administrative appeal of such decision:
    (A) Interested parties who have made themselves known, in writing, 
to the official prior to the decision being made; and
    (B) The state and local governments having regulatory jurisdiction 
over the land to be acquired;
    (iii) Promptly publish a notice in a newspaper of general 
circulation serving the affected area of the decision and the right, if 
any, of interested parties who did not make themselves known, in 
writing, to the official to file an administrative appeal of the 
decision; and
    (iv) Immediately acquire the land in trust status under Sec.  
151.16 upon expiration of the time for filing a notice of appeal or 
upon exhaustion of administrative remedies under part 2 of this chapter 
and under 43 CFR part 4, subpart D, and upon the fulfillment of the 
requirements of Sec. Sec.  151.14 and 151.15 and any other Department 
of the Interior requirements.
    (3) The administrative appeal period begins on:
    (i) The date of receipt of written notice by the applicant or 
interested parties entitled to notice under paragraphs (d)(1) and 
(d)(2)(ii) of this section; or
    (ii) The date of first publication of the notice for unknown 
interested parties under paragraph (d)(2)(iii) of this section, which 
shall be deemed receipt of the decision.
    (4) Any party who wishes to seek judicial review of an official's 
decision must first exhaust administrative remedies under part 2 of 
this chapter and under 43 CFR part 4, subpart D.


Sec.  151.14  How will the Secretary review title?

    (a) If the Secretary approves a request for the acquisition of land 
in trust status, the Secretary shall require the applicant to furnish 
title evidence as follows:
    (1) The deed or other conveyance instrument providing evidence of 
the applicant's title or, if the applicant does not yet have title, the 
deed providing evidence of the transferor's title and a written 
agreement or affidavit from the transferor that title will be 
transferred to the United States on behalf of the applicant to complete 
the acquisition in trust status; and
    (2) Either:
    (i) A current title insurance commitment issued by a title company; 
or
    (ii) The policy of title insurance issued by a title company to the 
applicant or current owner and an abstract of title issued by a title 
compact dating from the time of the policy of title insurance was 
issued to the applicant or current owner to the present. The Secretary 
will accept a preliminary title report prepared by a title company in 
place of an abstract of title for purposes of this paragraph (a)(2)(ii) 
if the applicant provides evidence that the title company will not 
issue an abstract of title based on practice in the local jurisdiction, 
and the policy of title insurance issued to the applicant or current 
owner is less than five years old.
    (3) The applicant may choose to provide title evidence meeting the 
``Standards for the Preparation of Title Evidence in Land Acquisitions 
by the United States'' in effect at the time of conveyance, in lieu of 
the evidence required by paragraph (a)(2) of this section.
    (b) After reviewing title evidence, the Secretary shall notify the 
applicant of any liens, encumbrances, or infirmities that the Secretary 
identified and may seek additional information or action from the 
applicant needed to address such issues. The Secretary may require the 
elimination of any such liens, encumbrances, or infirmities prior to 
acceptance of the land in trust status if the Secretary determines that 
the liens, encumbrances, or infirmities make title to the land 
unmarketable.


Sec.  151.15  How will the Secretary conduct a review of environmental 
conditions?

    (a) The Secretary shall comply with the requirements of the 
National Environmental Policy Act (NEPA) (43 U.S.C. 4321 et seq.), 
applicable Council on Environmental Quality regulations (40 CFR parts 
1500 through 1508), and Department of the Interior regulations (43 CFR 
part 46) and guidance. The Secretary's compliance may require 
preparation of an environmental impact statement, an environmental 
assessment, a categorical exclusion, or other documentation that 
satisfies the requirements of NEPA.
    (b) The Secretary shall comply with the terms of 602 DM 2, Land 
Acquisitions: Hazardous Substances Determinations, or its successor 
policy if replaced or renumbered, so long as such guidance remains in 
place and binding. If the Secretary approves a request for the 
acquisition of land in trust status, the Secretary may then require, 
before formalization of acceptance pursuant to Sec.  151.16, that the 
applicant provide information updating a prior pre-acquisition 
environmental site assessment conducted under 602 DM 2.

[[Page 74346]]

    (1) If no recognized environmental conditions and other 
environmental issues of concern are identified in the pre-acquisition 
environmental site assessment and all other requirements of this 
section are met, the Secretary shall acquire the land in trust.
    (2) If recognized environmental conditions or other environmental 
issues of concern are identified in the pre-acquisition environmental 
site assessment, the Secretary shall notify the applicant and may seek 
additional information or action from the applicant to address such 
issues of concern. The Secretary may require the elimination of any 
such issues of concern prior to taking the land in trust status.


Sec.  151.16  How is formalization of acceptance and trust status 
attained?

    (a) The Secretary will accept land in trust status by signing an 
instrument of conveyance. The Secretary will sign the instrument of 
conveyance after publication of a notice of intent to acquire the land 
in trust status pursuant to Sec.  151.13(c)(2)(ii) or (d)(2)(ii) and 
(iii), the requirements of Sec. Sec.  151.13, 151.4, and 151.15 have 
been met, and upon expiration of the time for filing a notice of appeal 
or upon exhaustion of administrative remedies under part 2 of this 
chapter and under 43 CFR part 4, subpart D.
    (b) The land will attain trust status when the Secretary signs the 
instrument of conveyance.


Sec.  151.17  What effect does this part have on pending requests and 
final agency decisions already issued?

    (a) Requests pending on [EFFECTIVE DATE OF FINAL RULE], will 
continue to be processed under 25 CFR part 151 revised April 1, 2022, 
unless the applicant requests in writing to proceed under this part. 
Upon receipt of such a request, the Secretary shall process the pending 
application under this part, except for Sec.  151.8(b)(2).
    (b) This part does not alter decisions of Bureau of Indian Affairs 
officials under appeal or final agency decisions made before [EFFECTIVE 
DATE OF FINAL RULE].

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-25735 Filed 12-2-22; 8:45 am]
BILLING CODE 4337-15-P