Land Acquisitions, 86222-86255 [2023-27077]

Download as PDF 86222 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations I. Paperwork Reduction Act J. National Environmental Policy Act (NEPA) K. Energy Effects (E.O. 13211) L. Clarity of This Regulation M. Small Business Regulatory Enforcement Fairness Act N. Regulatory Impact Analysis DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 151 [245A2100DD/AAKC001030/ A0A501010.999900] RIN 1076–AF71 Land Acquisitions Bureau of Indian Affairs, Interior. ACTION: Final rule. AGENCY: Section 5 of the Indian Reorganization Act (IRA or Act) authorizes the Secretary of the Interior (Secretary) to acquire lands in trust for the benefit of Tribal governments and individual Indians. This final rule provides the procedures governing the discretionary acquisition of lands into trust, often referred to as the fee-to-trust process, under the Act. Since these regulations were first promulgated in 1980, the Bureau of Indian Affairs (BIA) has developed extensive experience in the fee-to-trust acquisition process. Relying on that experience and input from multiple stakeholders, this final rule makes the fee-to-trust process more efficient, simpler, and less expensive to support restoration of Tribal homelands. DATES: This final rule is effective on January 11, 2024. 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, RACA@bia.gov. SUPPLEMENTARY INFORMATION: This final 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. SUMMARY: ddrumheller on DSK120RN23PROD with RULES2 Table of Contents I. Statutory Authority and Background II. Acquisition of Land in Trust Process III. Overview of the Final Rule IV. Summary of Final Rule and Changes From the Proposed Rule to the Final Rule V. Public Comments on the Proposed Rule and Response to Comments VI. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) 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) VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 I. Statutory Authority and Background Congress enacted the Indian Reorganization Act (IRA) in 1934 to address the devasting effects of prior policies and to secure a land base for Indian tribes to engage in economic development and self-determination. Act of June 18, 1934, Pub. L. 73–383, 48 Stat. 984 (codified as amended at 25 U.S.C. 5101 through 5129). Congress expressly authorized ‘‘the Secretary, in his discretion,’’ under section 5 of the IRA, to ‘‘acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians’’ as the term is defined in section 19 of the IRA Id. at section 5, codified at 25 U.S.C. 5108; id. at section 19, codified at 25 U.S.C. 5129. The regulations at 25 CFR part 151 (part 151) implement this authority and provide the process by which Tribes submit applications to the Department and the criteria under which the Secretary will review the applications. In October 2021, the Department of the Interior (Department) held consultations on the protection and restoration of tribal homelands and used the feedback from these consultations to inform draft revisions to the part 151 regulations. The Department then held four consultation sessions on the draft revisions in May 2022. Utilizing feedback from those consultations, the Department published the proposed rule on December 5, 2022, 87 FR 74334, and held three Tribal consultation sessions during the public comment period. The first Tribal consultation was held in person on January 13, 2023, at the Bureau of Land Management Training Center in Phoenix, Arizona. The next two Tribal consultations were conducted virtually on Zoom, which occurred on January 19, 2023, and January 30, 2023. Following the consultation sessions, the Department accepted written comments until March 1, 2023. II. Acquisition of Land in Trust Process The acquisition of land in trust is the transfer of fee land title from an eligible Indian Tribe or eligible Indian PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 individual(s) to the United States of America, in trust, for the benefit of the eligible Indian Tribe or eligible Indian individual(s). Indian Tribes and individual Indian people who meet the requirements established by Federal statutes and further defined in Federal regulations are eligible to apply for a fee-to-trust land acquisition. All applications for a fee-to-trust acquisition must be in writing and specifically request that the Secretary of the Interior take land into trust for the benefit of the applicant. Applications shall be submitted to the BIA office that has jurisdiction over the lands contained in the application. The applicant must provide a legal description of the land to be acquired, the legal name of the eligible Indian Tribe or individual, proof of an eligible Indian Tribe or eligible individual(s), the specific reason the applicant is requesting that the United States of America acquire the land for the applicant’s benefit, title evidence addressing the lands to be acquired and information that allows the Secretary of the Interior to comply with the National Environmental Policy Act (NEPA) (43 U.S.C. 4321 et seq.) and 602 Departmental Manual 2 (602 DM 2)— Hazardous Substances. Each application is evaluated to determine if the applicable criteria defined in part 151 have been addressed. State and local governments having regulatory jurisdiction over the land contained in the application will be notified upon written receipt of an application for a fee-to-trust acquisition. The notice will inform the entities that each will be given 30 days in which to provide written comments as to the acquisition’s potential impacts on regulatory jurisdiction, real property taxes and special assessments. The official authorized to accept the request to feeto-trust acquisition will decide whether to approve the application and acquire the land in trust. All decisions to accept or deny a fee-to-trust acquisition shall be in writing. The length of time to complete the process varies depending on completion of the required steps by the applicant and the BIA. III. Overview of the Final Rule This final rule updates the Department’s part 151 regulations which govern how the BIA responds to, considers, and processes applications from Tribal governments and individual Indians to acquire land in trust status. The Bureau of Indian Affairs (BIA) has acquired over a million acres of land into trust for Tribes and individual Indians since Congress passed the IRA in 1934. See 87 FR 74334, 74335 (Dec. E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 5, 2022). This final rule is intended to make the fee-to-trust process less burdensome and more cost-efficient. In addition, the Department seeks to improve the fee-to-trust land acquisition process because of the many benefits afforded to Tribal governments and their citizens, such as heightened regulatory jurisdiction over the lands, exemptions from State and local taxation, and restoration of Tribal homelands. This final rule addresses delays in the current land acquisition process. The average length of time to receive a final fee-to-trust decision is approximately 985 days. Currently, there are 941 cases pending approval by the Department— the majority of which are for noncontroversial, on-reservation acquisitions. This final rule will reduce the time it takes BIA to process land into trust applications going forward and address the existing backlog. The final rule affirms the Secretary’s policy to actively implement the IRA’s discretionary land into trust authority in a manner that supports selfdetermination and strengthens Tribal sovereignty. The final rule also furthers implementation of subsequent congressional enactments, such as the Indian Land Consolidation Act (ILCA) and the American Indian Probate Reform Act’s (AIPRA) amendments to ILCA, which sought to ‘‘prevent further fractionation of Indian trust allotments, consolidate fractional interests and their ownership into usable parcels, consolidate those interests in a manner that enhances Tribal sovereignty, promote Tribal self-sufficiency and selfdetermination, and reverse the effects of the allotment policy on Indian Tribes.’’ Indian Land Consolidation Act, Public Law 97–459, 96 Stat. 2515; American Indian Probate Reform Act of 2004, Public Law 110–453, 118 Stat. 1804 (codified as amended at 25 U.S.C. 2201 through 2221). The Secretary’s land acquisition policy recognizes these objectives and that a Tribal land base ‘‘enhances Tribal sovereignty by accreting land to the Tribes on which they can offer Tribal services and engage in enterprises that promote Tribal selfsufficiency and self-determination.’’ See, e.g., Quinault Indian Nation v. Northwest Regional Director, Bureau of Indian Affairs, 48 IBIA 186, 203 (2008)., 48 IBIA 186, 203 (2008). Through this rulemaking, the Department seeks to improve processing timelines by establishing a 120-day time frame for issuing a decision once the BIA receives a complete application package. This contrasts with no timeline in the current rule. The average length of time to receive a final fee-to-trust decision is approximately 985 days. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Currently, there are 941 cases pending approval by the Department—the majority of which are for noncontroversial, on-reservation acquisitions. The final rule also incorporates the Department’s process for determining whether a Tribe was ‘‘under Federal jurisdiction’’ in 1934, as required under Carcieri v. Salazar, 555 U.S. 379 (2009). The final rule articulates criteria for processing four different types of land acquisition: on-reservation, contiguous, off-reservation, and the newly identified initial acquisition. Each acquisition includes certain presumptions intended to improve efficiency based on the BIA’s longstanding practices and experience. Several other changes to the regulations seek to solve problems and remove obstacles for Tribes and individual Indians engaged in the BIA’s land acquisition process. IV. Summary of Final Rule and Changes From Proposed Rule to Final Rule On December 5, 2022, the Department published the proposed rule, 87 FR 74334. The sections below discuss the changes from the proposed rule to the final rule. § 151.1 What is the purpose of this part? The final rule clarifies that this regulation does not govern acquisitions mandated by Federal law. The Department has issued guidance concerning such mandatory acquisitions, including the guidance found in the BIA’s Fee-to-Trust Handbook (FTT 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 authorities and judicial orders mandating acquisitions by employing simple guidance on how we approach such acquisitions rather than one-sizefits-all regulations. Changes from the proposed rule to the final rule in § 151.1 include: • The opening paragraph of § 151.1 was revised to reference ‘‘acquisition of land mandated by Federal law’’ instead of ‘‘acquisition of land mandated by Congress or a Federal court.’’ § 151.2 How are key terms defined? The final rule adds new definitions for the following terms: contiguous, fee interest, fractionated tract, Indian land, Indian landowner, initial Indian PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 86223 acquisition, interested party, marketable title, preliminary title opinion, preliminary title report, and undivided interest. The definitions are also now listed in alphabetical order in § 151.2. Initial Indian acquisition. Among the new definitions, we note that the term ‘‘initial Indian acquisition’’ refers to a new category of acquisitions provided under § 151.12. 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 Tribal homelands. The regulatory criteria for considering initial Indian acquisitions provide a new, more supportive process for Tribes without trust land, as discussed further in § 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 final rule. We clarify, in response to the comments, that the final 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. Marketable title. Tribal consultation commenters also expressed concern regarding the term ‘‘marketable title’’, and so we have added a definition for that term to the final 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. 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. Individual Indian. The definition of ‘‘individual Indian’’ has been modified to remove § 151.2(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 which is inconsistent with E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 86224 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations Sol. Op. M–37076, The Secretary’s Land Into Trust Authority for Alaska Natives and Alaska Tribes Under the Indian Reorganization Act and the Alaska Indian Reorganization Act and Akiachak Native Community v. Jewell, 935 F. Supp. 2d 195 (D.D.C. 2013) (finding that the Department’s part 151 Alaska exception violated the privileges and immunities clause of the IRA), vacated as moot, Akiachak Native Cmty. v. U.S. Dep’t of the Interior, 827 F.3d 100 (D.C. Cir. 2016) (the State of Alaska’s appeal was deemed moot after the Department’s rulemaking eliminated the Alaska exception from 25 CFR part 151). 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 (List Act) or slated to be included in the next publication of that list. The List Act was not in place when these regulations were first promulgated in 1980 but should be used now as it is the official record of federally recognized Tribes. Indian reservation. The definition of ‘‘Indian reservation’’ has been modified slightly to ensure a comprehensive understanding of reservation status in Oklahoma after the Supreme Court’s decision in 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, the final rule makes 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. Tribal consolidation area. 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 final rule’s updated statement of the Department’s land acquisition policy will cover any acquisitions in such an area. Marketable title. The definition of ‘‘marketable title’’ was revised for clarity to read ‘‘defect and that covers the entire property’’ instead of ‘‘defect and to cover the entire property.’’ § 151.3 What is the Secretary’s land acquisition policy? The existing rule’s statement concerning when the Secretary will VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 exercise the discretion to acquire land in trust does not reflect congressional policy clearly in favor of trust acquisition for Tribes and individual Indians, nor does it capture the broad range of purposes for which the lands are used to further Tribal welfare. The revision makes plain that the Secretary’s policy is to support acquisitions of land in trust for the benefit of Tribes and individual Indians and that it is the policy of the Department that the Secretary exercise the discretion to acquire land in trust when doing so furthers the broad range of interests outlined in the final rule. The prior technical introductory language has been moved to § 151.3(a). In § 151.3(b)(3), the Department added additional policy reasons that support an acquisition on behalf of a Tribe, including any reason the Secretary determines will support Tribal welfare, consistent with the goals of the IRA and other statutes authorizing trust acquisitions. We note, however, that none of these policy reasons are required if the subject land is within a reservation (per § 151.3(b)(1)) or if the Tribe already owns an interest in the land, such as a fee interest (per § 151.3(b)(2)). We received comment during the 2022 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 § 151.3(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,’’ to be consistent with commenters’ recommendations and our understanding of the existing rule’s meaning. There were no other changes in this section from the proposed rule to the final rule. § 151.4 How will the Secretary determine that statutory authority exists to acquire land in trust status? Section 151.4 lays out in regulatory text the Department’s approach to determining statutory authority for acquisitions as required by the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009), which determined that the word ‘‘now’’ in the phrase ‘‘now under Federal jurisdiction’’ in the IRA refers to the time of the passage of the PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 IRA in 1934. The final rule incorporates caselaw and analysis by the Department interpreting the Department’s statutory authority as guided by Carcieri. The final rule identifies three categories of evidence used to evaluate whether a Tribe was under Federal jurisdiction: conclusive; presumptive; and probative. Conclusive evidence establishes in and of itself both that a Tribe was placed under Federal jurisdiction in or before 1934 and that this jurisdictional status persisted in 1934. If conclusive evidence exists, no further analysis is required. Presumptive evidence strongly indicates that a Tribe was placed under Federal jurisdiction in or before 1934 and may indicate that such jurisdictional status persisted in 1934. Even where presumptive evidence exists, the Department will engage in a detailed review of the historical record to address whether the Tribal applicant came under Federal jurisdiction in or before 1934 and whether that jurisdictional status remained extant in 1934. If neither conclusive nor presumptive evidence exists, the Department will consider all probative evidence in concert, i.e., in a holistic manner to determine whether the historical record, in whole, supports a finding that the Tribal applicant was under Federal jurisdiction in 1934 and retained such status in 1934. Examples of probative evidence are listed in § 151.4(a)(3)(i). We note that § 151.4(c) explains that, if the Department has previously issued a favorable ‘‘under Federal jurisdiction’’ analysis for a Tribe, no additional analysis is needed unless there has been a change in law. Such prior determinations remain valid under the revision. Section 151.4(e) clarifies that where a statute other than the IRA has authorized trust land acquisitions, the ‘‘under Federal jurisdiction’’ IRA analysis provided for in § 151.4(a) through (d) does not apply, and the Secretary may acquire land in trust as permitted by the other Federal law. Finally, we note that existing § 151.4, ‘‘Acquisitions in trust of lands owned in fee by an Indian,’’ has been deleted in the final rule as unnecessary. The rule provides for such acquisitions, and existing § 151.4 adds no additional information or process regarding such acquisitions. Changes from the proposed rule to the final rule in § 151.4 include: • Adding an introductory paragraph explaining when § 151.4 is applicable. • Adding ‘‘land held in trust by the United States in 1934’’ as conclusive E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations evidence a Tribe was under Federal jurisdiction in 1934. • Adding ‘‘land claim settlements’’ as an example of ‘‘Federal legislation for a specific Tribe, which acknowledges the existence of jurisdictional relationship with a Tribe in or before 1934’’ as presumptive evidence in § 151.4(a)(2)(v). • Adding ‘‘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)’’ as examples of probative evidence in § 151.4(a)(3)(i). • Revising § 151.4(a)(2)(vi) and adding a new provision, § 151.4(a)(4), to confirm that the Secretary may rely on any evidence within the part 83 record that the Tribe was under Federal jurisdiction, consistent with § 151.4(a)(2) and (3). • Renumbering proposed § 151.4(a)(4) as § 151.4(a)(5) and revising it to state that evidence of executive officials disavowing Federal jurisdiction over a Tribe in certain instances is not conclusive evidence of a Tribe’s Federal jurisdictional status because such disavowals cannot themselves revoke Federal jurisdiction over a Tribe. • Revising § 151.4(c) to reference the ‘‘Department’’ instead of the ‘‘Office of the Solicitor.’’ • Additional technical edits were made to make language consistent throughout § 151.4. § 151.5 May the Secretary acquire land in trust status by exchange? Minor stylistic changes were made to § 151.5. There were no changes from the proposed rule to the final rule. Paragraph No. Applicant contribution § 151.8(a)(1) ....... A signed letter from the Tribal government supported by a Tribal resolution or other act, or if an individual applicant, a signed letter. Documentation from the applicant explaining purpose, and, if an individual, need. § 151.8(a)(2) ....... ddrumheller on DSK120RN23PROD with RULES2 § 151.6 May the Secretary approve acquisition of a fractional interest? A modification to § 151.6 has been made to clarify how its provisions are consistent with section 2216(c) of ILCA. ILCA at section 2216(c) allows for mandatory 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 § 151.6 requires use of the discretionary process for such acquisitions, in contravention of past practice and section 2216(c) of ILCA. We assure commenters this is not the case; where section 2216(c) of ILCA 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) of ILCA 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 § 151.6. The proposed rule and the final rule replace 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’s or Tribe’s fractional interest into trust for the individual’s or Tribe’s benefit. Changes from the proposed rule to the final rule in § 151.6 include: • The opening paragraph of § 151.6 was revised to read ‘‘[t]he Secretary may Statement identifying statutory authority for the acquisition. If the acquisition relies on satisfying the IRA’s first definition of Indian, the statement should include evidence that the Tribe was under Federal jurisdiction in 1934 consistent with § 151.4. § 151.8(a)(4) ....... An aliquot legal description of the land and a map, or a metes and bounds land description and survey, 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. 18:53 Dec 11, 2023 Jkt 262001 PO 00000 Frm 00005 approve the acquisition of a fractional interest in a fractionated tract in trust status by an individual Indian or a Tribe including when:’’ instead of ‘‘[t]he 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:’’. § 151.7 Is Tribal consent required for nonmember acquisitions? There are no changes to § 151.7. Section 151.8 in the existing rule is redesignated as § 151.7 in the final rule. § 151.8 What documentation is included in a trust acquisition package? Section 151.8 expands substantially upon existing rule § 151.9, ‘‘Requests for approval of acquisitions.’’ § 151.8 describes all the pieces of information necessary for the Department to assemble a complete trust acquisition package. Once a complete package is assembled, the final rule requires the Department to notify the applicant and then issue 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, the final rule includes a requirement that the BIA provides tribes such notification within 30 days. Tribal consultation commenters also pointed out that § 151.8 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. Department contribution § 151.8(a)(3) ....... VerDate Sep<11>2014 86225 Fmt 4701 Sfmt 4700 None. No Department contribution is needed to complete this component of the package. Rather, the Department will consider this information in coming to a decision. The Department will determine whether statutory authority exists based on the Tribe’s submission. If the Tribe relies on the IRA’s first definition of ‘‘Indian,’’ to establish such authority, then the Department will review all relevant evidence to determine whether the Tribe was under Federal jurisdiction consistent with § 151.4. Concurrence that the description is legally sufficient. E:\FR\FM\12DER2.SGM 12DER2 86226 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations Paragraph No. Applicant contribution § 151.8(a)(5) ....... Information, or permission to access the land to gather such information, allowing the Department to comply with NEPA and 602 DM 2 regarding hazardous substances. § 151.8(a)(6) ....... § 151.8(a)(7) ....... Evidence of marketable title ..................................................... None (applicant replies to comment letters are invited but not required for a complete acquisition package). Statement that any existing encumbrances on title will not interfere with the applicant’s intended use. None unless warranted by specific application ....................... § 151.8(a)(8) ....... ddrumheller on DSK120RN23PROD with RULES2 § 151.8(a)(9) ....... Regarding the requirement under § 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 Department clarifies that concurrence with the land description presented by the applicant was and has always been a necessary part of the acquisition process. See BIA National Policy Memorandum: Modernizing the Land Description Review Process for Fee-to-Trust Acquisitions, NPM–TRUS– 43 (April 6, 2023). The Department 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. The Department’s land description concurrence listed in § 151.8 is needed 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 120day time frame expires. Changes from the proposed rule to the final rule in this section include: • § 151.8(a)(1) through (6), (8), and (9) were revised to read ‘‘[t]he applicant must submit’’. • Clarification, in new § 151.8(a)(3), that the Tribe is responsible for submitting a statement and any evidence to support a finding of it being under Federal jurisdiction in 1934 to satisfy § 151.4 and renumbering of subsequent provisions of § 151.8(a). • Clarifying language that an acquisition package is not complete until a pre-acquisition Phase I environmental site assessment, and if necessary, a Phase II environmental site assessment completed pursuant to 602 DM 2 is determined to be sufficient by the Secretary, the Secretary completes a Preliminary Title Opinion, and the Secretary determines that the legal description or survey is sufficient. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Department contribution The Department will develop or adopt and complete NEPA analyses, including any required public process, and develop or adopt Phase I and Phase II Environmental Site Assessments produced under 602 DM 2. Preliminary Title Opinion. Notification letters to State and local governments and any response letters. None. None unless warranted by specific application. • Deleting ‘‘including any associated responses where requested by the Secretary’’ from proposed § 151.8(a)(6), now renumbered as § 151.8(a)(7). • Stylistic changes. § 151.9 How will the Secretary evaluate a request involving land within the boundaries of an Indian reservation? Section 151.9 is the first of four sections providing process for the Secretary’s consideration of different types of acquisition applications based on the location of the subject land in relation to an Indian reservation or, in the case of initial Indian acquisitions, the fact that the Tribe has no land currently in trust. The existing rule considers both onreservation and contiguous applications under the on-reservation criteria in § 151.10. In the new final rule, the onreservation acquisition process has been simplified and designed to result in faster decisions in several ways. First, under § 151.9(a), the Secretary is no longer required to consider some of the issues that § 151.10 of the current regulations requires her to consider, such as 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, except as described below. BIA is making this change based on decades of experience showing that on-reservation acquisitions are generally not contentious or challenged because the acquisition may be within existing reservation boundaries, may help to lessen jurisdictional complexities arising from privately-held fee tracts adjacent to tracts held in trust, may help to consolidate Tribal land interests, or may be mandatory under other statutory processes, such as the Indian Land Consolidation Act, as amended. See Public Law 97–459, tit. II, codified at 25 U.S.C. 2201 et seq. Moreover, the Department believes that this change in policy better aligns with the purpose of the IRA. Indeed, the IRA was passed to address ‘‘[t]he disastrous condition peculiar to the Indian situation in the PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 United States’’ that was ‘‘directly and inevitably the result of existing.’’ Readjustment of Indian Affairs: Hearings Before the Committee on Indian Affairs, House of Representatives on H.R. 7902, 73d Cong., 2d Sess., at 15–16 (Feb 22, 1934), cited in Sol. Op. M–37029 ‘‘The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act’’ (March 12, 2014), at 6 (discussing the (General Allotment Act of 1887, Pub. L. 49–105, 24 Stat. 388 (formerly codified at 25 U.S.C. 331–357)). Section 5 of the IRA says nothing about whether restoring these lands to Tribal ownership satisfied a particular need, would negatively impact State and local tax revenue, or would complicate jurisdiction or create conflicts in land use. 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 factors need not be considered for every acquisition. However, under § 151.9(d), the final 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 a holistic analysis of the application. More specifically, the Secretary will no longer be required to consider impacts to State and local taxes for on-reservation acquisitions unless it is raised by a State or local government. The Department also notes and confirms that any comments received on an application, even if not requested, will be considered as part of the overall decision-making process. If no such comments are received, no consideration of these factors is required under the final rule. We note that some commenters wished to eliminate the purpose criterion in § 151.9(a) as well. Because an understanding of purpose is necessary to comply with NEPA and to support the approach described in E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations § 151.9(b), BIA is retaining this criterion. Second, under § 151.9(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 will allow the Secretary to appropriately consider which acquisitions will most directly further the critical interests identified in § 151.3. This approach recognizes and incorporates the Secretary’s policy to support acquisition of land in trust for the benefit of Tribes. The existing rule’s land acquisition policy in § 151.3 was established when the first fee-to-trust regulations were promulgated in 1980. See 45 FR 62034. The land acquisition policy in the existing rule is virtually unchanged from the 1980 version and does not account for the many important reasons, many of which were not contemplated in 1980, for which Tribes acquire land in trust today to further self-determination and selfgovernance. This final rule incorporates these important reasons in the revised § 151.3, which the Secretary’s policy is intended to support. Under the new final rule, the Secretary will expressly consider the listed Tribal purposes for land acquisition as part of the holistic consideration applied to land into trust acquisitions under the discretionary authority of the IRA. If an application seeks to have land taken into trust for one of the purposes set forth in § 151.9(b), the Secretary will give great weight to this fact and, because such acquisitions further the policy purposes set out in § 151.3, will provide a detailed explanation of the basis for any disapproval decision, taking into account the important purposes that such an acquisition would serve. Third, under § 151.9(c), the Secretary will now presume that on-reservation acquisitions will benefit Tribal interests, and therefore should be approved. BIA believes this presumption will further the purpose of the IRA, which, as noted above, Congress enacted in 1934 to address the devasting effects of prior policies and to secure a land base for Indian tribes to engage in economic development and self-determination. 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 benefits from restoring reservation lands to trust status is appropriate and consistent with the Department’s policy VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 on land into trust acquisitions. Where a Tribe takes land into trust within its reservation boundaries, that land nearly always serves an important economic, cultural, self-determination, or sovereignty purpose that supports Tribal welfare. Changes from the proposed rule to the final rule in this section include: • Making stylistic changes in § 151.9 (b) to emphasize the Secretary’s recognition that applications that are for the listed purposes will further the important policy goals identified in § 151.3. • Clarifying in § 151.9(c) that the Secretary will presume that the acquisition will ‘‘further the Tribal interests described in paragraph (b) of this section and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved.’’ • Adding in § 151.9(d) that the notice to State and local governments will provide 30 calendar days in which to provide written comments to rebut the presumption of minimal adverse impacts to 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. • Minor stylistic changes. § 151.10 How will the Secretary evaluate a request involving land contiguous to the boundaries of an Indian reservation? For reasons similar to those noted above, the process for approving acquisitions contiguous to an Indian reservation has also been simplified and designed to result in faster decisions. Under the current regulation at § 151.10(a), the Secretary must consider the need for a Tribal government’s acquisition of contiguous land, the impact on State and local government tax rolls, and jurisdictional problems or conflicts of land use which may arise when considering acquisition of land contiguous to the Indian reservation. Under final rule § 151.10(a) through (c), like on-reservation acquisitions under final rule § 151.9(a) through (c), the Secretary is no longer required to consider the need for a Tribal government’s acquisition of contiguous land, the impact on State and local PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 86227 government tax rolls, and jurisdictional problems or conflicts of land use which may arise, except as described below, because such impacts, problems or conflicts are presumed to have a minimal adverse impact. 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, and based on the long experience of BIA in processing such applications and then administering land placed into trust, these factors need not be considered for every acquisition. However, the final 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 a holistic analysis of the application. If no such comments are received, no consideration of these factors is required under the final rule. Under § 151.10(b), the same approach of granting great weight to important Tribal purposes will be applied in the same manner as for on-reservation acquisitions (i.e., within the boundaries of an Indian reservation) under § 151.9(b). 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. The existing rule considers both onreservation and contiguous applications under the on-reservation criteria in § 151.10. The presumption that a community will benefit from acquisition of land in trust reflects an update based on the Secretary’s practice and is a change from the current regulations, which contain no presumption of whether a Tribal community will benefit from an acquisition. Trust acquisition of land benefits Tribes because Tribes have new opportunities to pursue self-determination and selfgovernance on the land, and Tribes can access the Federal programs and services that are available only on trust lands. Changes from the proposed rule to the final rule in this section include: • Making stylistic changes in § 151.10(b) to emphasize the Secretary’s recognition that applications that are for the listed purposes will further the important policy goals identified in § 151.3. Clarifying in § 151.10(c) that the Secretary will presume that the acquisition ‘‘will further the Tribal interests described above in paragraph (b) of this section, and adverse impacts to local governments’ regulatory E:\FR\FM\12DER2.SGM 12DER2 86228 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved.’’ • Clarifying in § 151.10(d) that the notice to State and local governments will provide 30 calendar days in which to provide written comments to rebut the presumption of minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments. • Minor stylistic changes. § 151.11 How will the Secretary evaluate a request involving land outside of and noncontiguous to the boundaries of an Indian reservation? Off-reservation acquisitions have been streamlined and designed to result in faster decisions through the same reductions in review criteria described for on-reservation and contiguous acquisitions appearing in § 151.11(a), and by applying the same great weight standard to important Tribal purposes in § 151.11(b). The average length of time to receive a final fee-to-trust decision is now approximately 985 days. The expected time to receive a final decision is expected to significantly decrease, particularly given the new 120-day timeframe in which BIA must issue a decision as established in § 151.8(9)(b). In addition, existing § 151.11(b) applied a ‘‘bungee cord’’ approach, increasing the scrutiny applied to an acquisition as distance from a Tribe’s reservation increased. In 1995, the Department amended part 151 to establish a new policy for the acquisition of land in trust when such lands are located outside of and noncontiguous to a tribe’s existing reservation boundaries. See 60 FR 32874 (June 13, 1995). The proposed rule noted the need to eliminate adverse impacts on surrounding local governments as justification for increasing scrutiny of tribal benefits while giving greater weight to the concerns of State and local governments. See 56 FR 32278 (July 15, 1991). The final rule abandons this approach, providing in new § 151.11(c) that the Secretary presumes the Tribe will benefit from the acquisition, and will consider the location of the land and potential conflicts of land use when reviewing State and local comments as part of the holistic analysis of the application. This revision is consistent with the BIA’s long experience in implementing the land into trust authorities under the IRA. Where a Tribe takes land into trust offreservation, that land nearly always serves an important economic, cultural, VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 self-determination, or sovereignty purpose that supports Tribal welfare. Tribal governments are rational actors that make acquisition decisions carefully based on available resources, such as tribal funds or financing to purchase the land, planning, and purposes valued by the Tribe. Accordingly, the Secretary will no longer apply heightened scrutiny based on distance from the Tribe’s reservation but will instead consider the location of the land broadly before issuing a decision. Changes from the proposed rule to the final rule in this section include: • Making stylistic changes in § 151.10(b) to emphasize the Secretary’s recognition that applications that are for the listed purposes will further the important policy goals identified in § 151.3. • Deleting ‘‘without regard to distance of the land from a Tribe’s reservation boundaries or trust land’’ in § 151.11(c). • Adding in § 151.11(c) that ‘‘the Secretary will consider the location of the land and potential conflicts of land use’’ instead of ‘‘the Secretary will consider the location of the land.’’ • Stylistic changes. § 151.12 How will the Secretary evaluate a request involving land for an initial Indian acquisition? Section 151.12 is designed to streamline decision-making and support Tribes which do not currently have land in trust. In 1995, the Department amended part 151 to establish a new policy for the placement of lands in trust status for Indian tribes when such lands are located outside of and noncontiguous to a tribe’s existing reservation boundaries. See 60 FR 32874 (June 13, 1995). This amendment did not, however, account for tribes without reservations. Since that time, applications from tribes without reservations have been processed under the existing rule’s off-reservation provisions event though § 151.11(b) does not apply to tribes without reservations. The final rule includes provisions that more appropriately apply to the Secretary’s review of applications from tribes without reservations, thus, eliminating confusion. The final 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 § 151.12(a) and great weight granted to important purposes in § 151.12(b). The final rule also establishes a presumption of Tribal benefits for such requests. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 Changes from the proposed rule to the final rule in this section include: • Making stylistic changes in § 151.10(b) to emphasize the Secretary’s recognition that applications that are for the listed purposes will further the important policy goals identified in § 151.3. Clarifying in § 151.12(c) that the Secretary will presume that the acquisition ‘‘will further the Tribal interests described in paragraph (b) of this section, and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved.’’ • Clarifying in § 151.12(d) that the notice to State and local governments will provide 30 calendar days in which to provide written comments to rebut the presumption of minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments. • Adding in § 151.12(d) that ‘‘the Secretary will consider the location of the land and potential conflicts of land use’’ instead of ‘‘the Secretary will consider the location of the land’’. § 151.13 How will the Secretary act on requests? Minor clarifying changes to language were made in § 151.13, including the use of ‘‘Office of the Secretary’’ rather than ‘‘Secretary’’ in § 151.13(c) and (d). Because the final rule uses the defined term Secretary in its inclusive sense to mean all Department staff with delegated authority from the Secretary, here in § 151.13 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 final rule adds new information on the steps that occur after a decision to take land into trust but before signature on the acceptance of conveyance document, described in paragraphs (c)(2)(iii) and (d)(2)(iv). This change is explained in detail below with regard to new § 151.15. Before the BIA may accept a conveyance, the BIA must confirm that the environmental site assessment is current. The environmental site assessment is conducted to determine whether a parcel or parcels in question contain any environmental liabilities. This assessment is different than the BIA’s responsibilities under NEPA. The final rule has been revised at § 151.13(c)(2)(iii) and (d)(2)(iv) to eliminate any confusion and to clarify that NEPA must be completed before a decision is made but that a second environmental site review can be E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 completed after the decision is made but before the land is accepted in trust. Changes from the proposed rule to the final rule in this section include minor stylistic changes. § 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. Section 151.14(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. In such cases the Secretary may accept the applicant’s preliminary title report in 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, § 151.14(b) 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. The new rule balances the United States interest in obtaining marketable title with the legal consequence that land held in trust is inalienable. The current rule can serve as a barrier to an acquisition when there are infirmities to title that may not be acceptable to a reasonable buyer but would otherwise be acceptable to the Secretary if certain conditions are met (e.g., limiting liability through an indemnification agreement). 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 VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 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. Changes from the proposed rule to the final rule in this section include: • Adding in § 151.14(a)(2)(ii) that the Secretary may accept either a preliminary title report or an equivalent document prepared by a title company in place of an abstract of title in certain circumstances. • Removing the requirement in § 151.14(a)(2)(ii) that the policy of title insurance be less than five years old. • Updating § 151.14(a) to read ‘‘[t]he applicant submit title evidence as part of a complete acquisition package as described in § 151.8 as follows:’’. • Stylistic changes. § 151.15 How will the Secretary conduct a review of environmental conditions? Section 151.15 covers the Department’s environmental responsibilities under NEPA and the Departmental Manual at 602 DM 2. Paragraph (a) simply states that the Department will comply with NEPA; no changes to BIA’s practices are created through this paragraph. Section 151.15(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) of 1980 (42 U.S.C. 9601 et seq.). 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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 86229 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 § 151.15(b). We note that § 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. Changes from the proposed rule to the final rule include: • Adding in § 151.15(b)(1) ‘‘or before formalization of acceptance and all other requirements of this section, §§ 151.13 and 151.14 are met, the Secretary shall acquire the land in trust.’’ • Adding in § 151.15(b)(2) ‘‘or before formalization of acceptance’’ in the first sentence. And revising the second sentence to reference ‘‘prior to the formalization of acceptance’’ instead of ‘‘prior to taking the land in trust status’’. § 151.16 How is formalization of acceptance and trust status attained? Section 151.16 explains in greater detail how the final process of accepting land into trust occurs and when. This section replaces existing § 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. E:\FR\FM\12DER2.SGM 12DER2 86230 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations Changes from the proposed rule to the final rule in this section include: • Clarifying in § 151.16(a) that ‘‘[t]he Secretary shall sign the instrument of conveyance after the requirements of §§ 151.13, 151.14, and 151.15 have been met’’. • Clarifying in § 151.16(c) that ‘‘[t]he Secretary shall record the deed with LTRO pursuant to part 150 of this chapter.’’ ddrumheller on DSK120RN23PROD with RULES2 § 151.17 What effect does this part have on pending requests and final agency decisions already issued? Section 151.17(a) 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 process 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 time frame created in § 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 time frame, the volume could potentially cause serious problems for agency decision-making. Section 151.17(b) explains that any decisions already made under the existing regulations are not altered by the new regulation. Changes from the proposed rule to the final rule in this section include: • Adding that ‘‘[t]he Secretary shall consider the comments of State and local governments submitted under the notice provisions of the previous version of this regulation’’. • Clarifying that the new regulations do not alter decisions made by BIA officials that are undergoing appeal ‘‘on January 11, 2024’’. § 151.18 Severability Section 151.18 provides that if any provision of this subpart, or any application of a provision, is stayed or determined to be invalid by a court of competent jurisdiction, it is the Secretary’s intent that the remaining provisions shall continue in effect. The Secretary believes this is appropriate because the regulations are largely procedural and that if specific sections were stricken the Secretary would still be able to render decisions in compliance with statutory authority. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 V. Public Comments on the Proposed Rule and Response to Comments Individual comments were separated and categorized after the closing of the comment period on March 1, 2023. Over 95 different entities commented on part 151, including Tribal, State, and local governments, industry organizations, and individual citizens. In total, the submissions were separated into 650 individual comments. Generally, around 81 comments were exclusively supportive, 114 were not supportive, and 455 were neutral or provided general support along with constructive feedback on how the rule may be improved. All public comments received in response to the proposed rule are available for public inspection. To view all comments, search by Docket Number ‘‘BIA–2022–0004’’ in https:// www.regulations.gov. The AS–IA has decided to proceed to the final rule stage after careful consideration of all comments. The AS–IA’s responses to significant comments that were not supportive, neutral, or provided general support along with constructive criticism are detailed below. No responses are provided for comments that were exclusively supportive. Indian Tribes In general, Tribes who commented were supportive of the proposed part 151 regulations. However, many Tribes included constructive criticism. Commenting Tribes appreciated the Department’s inclusion of community benefits and presumptions for approval, the Department’s efforts to reduce burdensome requirements, the new tiered categories of acquisitions, and the establishment of timelines. While Tribes were generally supportive, some comments raised concerns. For example, some Tribes were concerned about applying presumptions to applications for the acquisition of land outside of an applicant Tribe’s aboriginal territory. Some Tribes also suggested that Tribal governments should have the same opportunity to comment on acquisitions that State and local governments do. Other Tribes advocated for more flexibility around land descriptions. State and Local Government State and local governments that commented opposed the regulations on multiple fronts, including questioning the authority of the Department to implement portions of the regulations under the Administrative Procedure Act (APA), caselaw, and principles of federalism. State and local governments were particularly concerned that the PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 presumptions afforded Tribal applicants as well as the removal of certain provisions including: the scrutiny applied to Tribal benefits in relation to State and local government concerns as the distance of the land at issue from a Tribe’s reservation or trust land increased; the requirement that Tribes demonstrate the need for additional land; and the requirement that Tribes supply business plans for review. They also opposed a perceived decreased role for State and local governments in the process, such as eliminating the consideration of jurisdictional problems or potential conflicts over land use and the removal of solicitations for State and local governments to comment on onreservation acquisitions. State and local governments also provided detailed suggestions for how the Department should notify State and local governments. This rulemaking comports with the APA and is within contemplated congressionally delegated authority of the Assistant Secretary— Indian Affairs. Multiple Federal courts of appeals have rejected claims that section 5 of the IRA violates the nondelegation doctrine or that it otherwise violates constitutional concepts of federalism. See Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 30 (D.C. Cir. 2008); Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007), rev’d on other grounds, Carcieri v. Salazar, 555 U.S. 379 (2009); South Dakota v. U.S. Dep’t of Interior, 487 F.3d 548 (8th Cir. 2007); South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790 (8th Cir. 2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999); see also Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688, 698 (9th Cir. 1997) (stating in dicta that the land into trust power is a valid delegation). § 151.1 part? What is the purpose of this Comment. Many Tribes see this as a necessary revision because ‘‘the fee-totrust regulations normally do not apply to transactions in these categories because of the legal framework governing them,’’ including acquisition of fee land by Tribes and acquisitions mandated by statute. They suggest that numbering this section may improve comprehension—like so: ‘‘This part does not cover: (1) acquisition of land by individual Indians and Tribes in fee simple even though such land may, by operation of law, be held in restricted status following acquisition; (2) acquisition of land mandated by Federal law; (3) acquisition of land in trust status by inheritance or escheat; or (4) E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations transfers of land into restricted fee status unless required by Federal law.’’ • Response: The Department agrees that clarifying when the Secretary will apply the part 151 regulations is an important addition to the final rule. The final rule clarifies that this regulation does not govern acquisitions mandated by Federal law. The Department has issued guidance concerning such mandatory acquisitions, including the guidance found in the FTT Handbook, and does not believe regulations are necessary at this time. The formatting in the section is consistent with the rest of the rule therefore the Department declines to make the suggested formatting revision. Comment. One Tribe noted that the regulations do not set out the procedures in a comprehensive manner. The Tribe suggested that this section reference all applicable procedures, letting applicants know exactly what will be applied and when. • Response: Specific instructions regarding the fee-to-trust process are contained in guidance outside the regulation (e.g., FTT Handbook). However, policy and guidance change over time, including where it is located, so the regulation does not identify specific policy and guidance documents. BIA will be updating the FTT Handbook to reflect the changes made in this final rule. Comment: One Tribe suggested that consideration should be given to the terms ‘‘trust’’ and ‘‘restricted’’ for clarity. • Response: The final rule is sufficiently clear and articulates the scope of the rule without the need for additional definitions. Comment: One commenter suggested that this section include a baseline process for fee-to-trust, including a provision stating that acquisitions mandated by Federal law be exempt. The commenter also pointed out that Federal courts have no authority to acquire land in trust for Indians without some action by the Congress. • Response: The final rule makes clear that the new regulations govern discretionary decisions to acquire land into trust. The FTT Handbook clarifies how the Department will process acquisitions mandated by Federal law. Comment: One Tribe noted a concern that the proposed regulations may unintentionally advantage some Tribes at the expense of others. The Tribe suggested an addition to this section clarifying that neither the definitions and terminology in the part 151 regulations nor the findings and decisions made in the applications of the part 151 regulations are intended to VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 be binding for purposes of other decision-making processes conducted under other authorities, including, without limitation, 25 U.S.C. 2719 and 25 CFR part 292 (part 292). • Response: The Department agrees that the definitions and terminology are not intended to be binding for other decision-making processes, including those made under 25 U.S.C. 2719 and part 292 but disagrees that the rule requires additional clarification of that point. Comment: One Tribe suggested that this section specify that the Secretary’s land acquisition regulations should apply to mandatory and discretionary acquisitions to the extent that it does not conflict with Federal legislation resolving land claims. • Response: The Department acknowledges that Congress often addresses both mandatory and discretionary trust acquisitions as part of legislation. The regulations as written apply solely to discretionary acquisitions provided for in legislation. The requirements for discretionary acquisitions set forth in this rule, and mandatory acquisitions set forth in the FTT Handbook, aim to ensure the Department’s compliance with applicable requirements, including the National Environmental Policy Act (NEPA) and the Departmental Manual at 602 DM 2. § 151.2 How are key terms defined? Contiguous Comment: Several commenting Tribes proposed the addition of ‘‘navigable rivers’’ to the definition of ‘‘contiguous’’ as follows: ‘‘Contiguous means two parcels of land having a common boundary notwithstanding the existence of non-navigable waters or navigable rivers or a public road or right-of-way and includes parcels that touch at a point.’’ One Tribe suggested adding the following phrase: ‘‘Contiguous shall include two parcels of land separated by navigable water if the navigable water is subject to the Tribe’s treaty or other fishing rights and each parcel is accessible by water.’’ • Response: Under the rule, the process for approving acquisitions contiguous to an Indian reservation has been simplified. The definition of contiguous is intended to formalize long-standing BIA practice with respect to evaluating contiguity and is sufficiently clear to guide the Department and applicants regarding whether a parcel is contiguous. There of course will be fact patterns that require additional analysis. The Department declines to add ‘‘navigable rivers’’ to the PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 86231 definition because in some instances such a change could result in parcels that are a significant distance from one another being considered contiguous. Comment: One Tribe requested more clarity on what constitutes a ‘‘public road’’ for this definition. The Tribe also suggested that the Department address whether there is a distinction between ‘‘contiguous’’ and ‘‘adjacent.’’ • Response: The Department agrees that the nature of a public road could be dramatically different depending on the location and may require additional analysis. Separation of two parcels by a public road does not necessarily render the parcels noncontiguous for purposes of part 151. The definition is sufficiently clear to guide the Department and applicants regarding whether a parcel is contiguous. There of course will still be instances that require additional analysis. We acknowledge that the terms ‘‘adjacent’’ and ‘‘contiguous’’ are similar but have slightly different meanings, i.e., adjacent generally means close to or near something rather than sharing a common boundary. The Department believes the definition of contiguous is sufficient to cover lands that are contiguous and no separate definition of adjacent is necessary. Comment: Another Tribe urged the Department to clarify that land accepted into trust as ‘‘contiguous’’ pursuant to 25 CFR 151.10 is ‘‘contiguous’’ for gaming purposes under 25 CFR 292.2. • Response: The definition of contiguous is consistent with the part 292 definition, and in general should result in a similar analysis; however, determinations made under part 151 and part 292 are separate and rely on different statutory authority. Comment: Other Tribes also requested clarification on whether the definition should include two or more parcels of land and whether parcels with common corners or those separated only by a road or right of way are included. • Response: The use of the phrase two ‘‘or more’’ parcels could cause confusion where, for example, parcels may share more than one border. To avoid confusion, the definition was not changed. This definition includes parcels that touch at their corners. Separation of two parcels by a public road or right-of-way does not necessarily render the parcels noncontiguous for purposes of part 151. There of course will still be instances that require additional analysis. Comment: One Tribe recommended the addition of the following definition for ‘‘adjacent’’ property to § 151.2: Adjacent means two parcels of land connected by natural, social, cultural, or economic ties, though they are not E:\FR\FM\12DER2.SGM 12DER2 86232 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations Indian Land Comment: One Tribe pointed out that including a definition of the term Indian land could lead to confusion in the future because the term ‘‘Indian Lands’’ is a term from the Indian Gaming Regulatory Act (IGRA), which is not at issue here and suggested the definition might not be necessary. • Response: The definition clarifies that Indian land as it relates to the part 151 regulations includes those held in trust or restricted status. IGRA provides a separate definition for the term Indian lands which is applicable in the gaming context. See 25 U.S.C. 2703(4). The Department believes there is sufficient statutory clarity and distinction for how the term is used in the IGRA context such that the part 151 definition will not lead to confusion. The part 151 definition should not be used in the gaming context or to determine gaming eligibility; it is for the purpose of land into trust. (1) That area of land set aside for the use and occupancy of an Indian Tribe(s) by treaty, statute, executive order, or Secretarial proclamation or order, including both formal and informal reservations as well as dependent Indian communities, allotments, and restricted fee lands; (2) That area of land over which a Tribe is recognized by the United States as having governmental jurisdiction; or (3) That area of land constituting the former reservation of a Tribe as defined by the Secretary, including: (a) In Oklahoma, where there has been no final determination affirming the Tribe’s reservation; or (b) Elsewhere, where there has been a final determination the Tribe’s reservation has been diminished or disestablished. • Response: The proposed language in section (1) could, in some instances, go beyond what is intended to be included within the definition. The Department therefore declines to include the proposed revision. The proposed language in section (2) is part of the proposed rule and articulates the general definition that an Indian reservation or Tribe’s reservation, for purposes of part 151, includes those lands over which the Tribe is recognized by the United States as having governmental jurisdiction. Specific to Oklahoma, the rule provides for a concise statement consistent with the McGirt decision as well as agency precedent. See, e.g., Shawano County, Wisconsin v. Acting Midwest Regional Director, BIA, 53 IBIA 62 (2011) (because there was a judicial determination that the Tribe’s reservation was disestablished and the parcels were within the original boundaries of the disestablished reservation, BIA’s consideration under the ‘‘on-reservation’’ criteria was appropriate). The Department therefore declines to adopt the proposed language in section (3). Indian Reservation or Tribe’s Reservation Comment: Some Tribes would like clarification on whether ‘‘The Secretary will consider all historic Oklahoma Reservations consistent with McGirt’’ is intended to include all Oklahoma Tribes or just the Five Tribes. • Response: This provision applies to all Oklahoma Tribes. Comment: One Tribe suggested that the principles of McGirt are broadly applicable. Therefore, the regulations’ language should apply in Oklahoma and to any place where historic reservations have yet to be reaffirmed. The Tribe suggested the following language: Individual Indian Comment: One Tribe pointed out a possible error in the definition of Individual Indian, noting that it requires that an individual be both (1) a descendent of an enrolled Tribal member, and (2) personally have lived on a reservation in 1934. Under this definition, only a person above the age of 88 (the youngest possible age to have been alive in 1934) would be eligible. The Tribe suggested the following revision to proposed § 151.2(c)(2): ‘‘any person who is a descendent of an enrolled Tribal member who, on June 1, 1934, was physically residing on an Indian reservation.’’ ddrumheller on DSK120RN23PROD with RULES2 contiguous, as determined by any of the following factors: (1) the physical distance between parcels, (2) the ease of travel between parcels, (3) the parcels sharing the same natural characteristics or supporting the natural functions of each other, (4) the cultural connection between the parcels, or (5) the parcels being part of a larger economic plan or strategy. • Response: The definition of contiguous is sufficient to guide the analysis. There of course will still be instances that require more in-depth review. The rule only uses the term contiguous. We acknowledge that the terms ‘‘adjacent’’ and ‘‘contiguous’’ are similar but have slightly different meanings, i.e., adjacent generally means close to or near something rather than sharing a common boundary. The Department believes the definition of contiguous is sufficient to cover lands that are contiguous and no separate definition of adjacent is necessary. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 • Response: This language is adapted from the IRA, 25 U.S.C. 5129, and is sufficiently clear to guide the Department and applicants. The Department agrees the second category in the definition constitutes a closed class of individuals consistent with Sol. Op. M–37054, ‘‘Interpreting the Second Definition of ‘Indian’ In Section 19 of the Indian Reorganization Act of 1934’’ (Mar. 9, 2020). Comment: One commenter stated that the third definition of Individual Indian appears to be based on racial or ethnic criteria and asked what processes and procedures are used to determine the degree of Indian blood? • Response: The language is taken from the IRA and the process for determining eligibility under the third definition is separate from the part 151 regulations. Initial Indian Acquisition Comment: While some Tribes supported the definition of Initial Indian acquisition, others pointed out that where land has been acquired or held in trust, but for various reasons, the United States no longer holds land in trust for a Tribe, it is not technically an initial acquisition. • Response: The Department believes the definition provides sufficient clarity that an initial acquisition applies to Tribes with no land currently held in trust status and no revision is necessary. Interested Party Comment: Several Tribes raised questions regarding terms within the definition of Interested party, including what constitutes a legally protected interest and to what extent such an interest must be affected to meet the definition. There was general concern that the definition was overly broad. • Response: The Department weighed these concerns and looked at the effect of adopting a narrower definition of the term Interested party. Interested party is used in § 151.13 to define those parties entitled to notice of a decision and any appeal rights. The commenters’ suggestion to narrow the definition unnecessarily limits those parties who should receive notice of the decision. As a result, the substance of the final rule is the same as the proposed rule. We note that it is possible for a party to satisfy the definition of Interested party yet have no right to appeal a decision, i.e., have no standing to do so. The Department also notes that providing notice to a party does not confer legal standing to bring a challenge. Comment: Some commenting Tribes suggested that the Department clarify that an interested party must show its E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations legally protected interests would be adversely affected by a decision. • Response: The 25 CFR part 2 (part 2) regulations further define those parties adversely affected by a decision. For purposes of part 151, it is not necessary for an interested party to be adversely affected, instead an interested party is one with a legally protected interest affected by a decision. The Department has not adopted the specific language suggested by the commenter, nor added a definition of legally protected interest. Comment: Several Tribes suggested merging the definition of Interested party in proposed § 151.2 with part 2. One Tribe included a detailed description of how the language from part 2 could be incorporated into the part 151 regulations. • Response: The part 151 Interested party definition closely resembles the part 2 regulation, wherein interested party is defined as ‘‘a person or entity whose legally protected interests are adversely affected by the decision on appeal or may be adversely affected by the decision of the reviewing official.’’ See Proposed Rule, Appeals from Administrative Actions, 87 FR 73688 (Dec. 1, 2022). The part 2 regulation further defines those entities adversely affected by a decision. For purposes of part 151, it is not necessary for an interested party to be adversely affected but instead that they have a legally protected interest affected by a decision. We note that it is possible for a party to satisfy the definition of Interested party and yet have no right to appeal a decision, i.e., have no standing to do so. The Department also notes that providing notice to a party does not confer legal standing to bring a challenge. Comment: One Tribe recommended the following definition for Interested party: ‘‘any person, organization or other entity who can establish a legal, factual or property interest in a determination and who requests in writing to the decision maker an opportunity to submit comments or evidence or to be kept informed of general actions regarding a specific application or action. In addition to showing a legal interest, an interested party needs to demonstrate an individualized right or interest—some interest distinct from any other members of the public that they have been adversely affected in a concrete and particularized way.’’ • Response: The Department has not adopted the specific language suggested by the commenter because it limits the definition to those adversely affected. The final rule is written to aid in VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 understanding which parties will receive written notice of a decision not to identify those parties that have standing to challenge the decision in an administrative appeal. We note that it is possible for a party to satisfy the definition of Interested Party and yet have no right to appeal a decision, i.e., have no standing to do so. The Department also notes that providing notice to a party does not confer legal standing to bring a challenge. Comment: Another Tribe said that appellants that do not or would not, due to the decision, exercise jurisdiction over or have the right to use the property subject to appeal, should lack standing to bring an appeal. The Tribe also asserted that status as a government does not confer standing to bring such an appeal and that an appellant’s basis for appeal should not be purely economic. • Response: The Department weighed these concerns and looked at the effect of adopting a narrower definition. The term Interested party is used in § 151.13 to define those parties entitled to notice of a decision. The commenter’s suggestion is too narrow and eliminates parties that should receive notice of the decision if made known to the decision maker. As a result, the substance of the final rule is the same as the proposed rule. We note that it is possible for a party to be an interested party yet not have the right to appeal a decision i.e., lack standing to do so. The Department also notes that providing notice to a party does not confer standing. Comment: Some Tribes expressed concern that the proposed language opens the possibility that if a group of neighbors opposes and appeals a final decision on a fee-to-trust application, the acceptance of their appeal may give them the perception that they have a legally protected interest. They further recommended that the definition track the language used in § 151.13, that an ‘‘interested party’’ must have ‘‘made themselves known, in writing, to the official, prior to a decision being made.’’ • Response: While agreeing with the premise, the Department believes that definition of Interested party is sufficient to identify the parties entitled to notice of a decision and that issues of standing are more appropriately addressed as part of the appellate authority vested in the agency and the Federal courts. The suggested revision to the definition would complicate § 151.13 because the term Interested party is also used to identify appeal periods for ‘‘unknown interested parties’’ provided notice via publication. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 86233 Marketable Title Comment: Multiple commenting Tribes expressed support for the new proposed definition of ‘‘marketable title.’’ One Tribe pointed out a possible grammatical mistake in the definition of marketable title: ‘‘to cover’’ as it appears to disagree with the preceding clause. They recommended substituting ‘‘to cover’’ with ‘‘that covers’’ instead. • Response: The Department agrees and has made this change in the final rule. Comment: One Tribe requested that marketable title be clarified as including all easements and rights of way of record, including any shared maintenance and other agreements that are part of those interests of record. • Response: The definition serves to protect the United States from acquiring land in trust with title infirmities a reasonable buyer would not accept. In general, most easements, rights of way of record and shared maintenance agreements of record are acceptable but still must be evaluated on a case-by-case basis. Preliminary Title Opinion Comment: One Tribe commented that preliminary title opinions (PTO) should be defined as non-privileged communications by the Solicitor regarding the existing title status. Because proposed § 151.8 requires a PTO as part of a complete application, the Tribe said it would not make sense to include privileged material. The lack of clarity in the current regulations causes unnecessary delays. • Response: The PTO is a lawyerclient privileged communication between the Office of the Solicitor and BIA. That said, any exceptions to title that must be met prior to acquisition will be communicated to the applicant. Tribal Homelands Comment: Some Tribes requested a definition of ‘‘Tribal Homelands,’’ as the term is used throughout the regulations. Tribes noted that specific criteria to establish Tribal Homelands would help avoid confusion or conflict in instances where Tribes have overlapping historical territories. • Response: The IRA authorizes the Secretary to acquire lands ‘‘for the purpose of providing land for Indians.’’ The regulations articulate the Department’s general support for the restoration of Tribal homelands consistent with the IRA’s purpose of providing land for Indians and, as such, Tribal homelands is not a term of art that requires definition. The Department agrees that it can be difficult to E:\FR\FM\12DER2.SGM 12DER2 86234 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations demarcate a Tribe’s historical territory and that it may overlap with the historical territory of other Tribes, but adding a requirement that the Department render ‘‘Tribal homeland’’ determinations in connection with land into trust decisions would unnecessarily lengthen and complicate the review process. The Department therefore declines to include a definition of ‘‘Tribal homelands’’ in the final rule. Tribe Comment: One Tribe commented that while the List Act contains recognized Tribes eligible for IRA benefits, it also contains Tribes not eligible for IRA benefits. • Response: The Department agrees that the availability of IRA section 5 feeto-trust authority depends on more than just Federal recognition under the List Act. The definition of federally recognized Tribe is still useful; however, in that acquisitions are limited to federally recognized Tribes. ddrumheller on DSK120RN23PROD with RULES2 Other Comment: Many Tribes expressed support for inclusion of definitions for the terms ‘‘Fee Interest,’’ ‘‘Fractionated Tract,’’ ‘‘Secretary,’’ ‘‘Restricted Land,’’ ‘‘Trust Land or Land in Trust Status,’’ and ‘‘Tribe.’’ • Response: The final rule will include the same definitions as the proposed rule. § 151.3 What is the Secretary’s land acquisition policy? Comment: Many commenting Tribes expressed support for the land acquisition policy. One Tribe also encouraged the Department to apply § 151.3(b) as broadly as possible. • Response: The broad policy statement in § 151.3 is grounded in the statutory text and authority of the IRA which the Secretary will actively implement to the extent permissible. Comment: One Tribe referred to the land acquisition policy as ‘‘inappropriately limited and does not describe the policy articulated by the Indian Reorganization Act (IRA),’’ codified at 25 U.S.C. 5108. Consequently, the Tribe recommended that the proposed rule use section 5 of the IRA as the authority for the policy. • Response: The Secretary’s land acquisition policy articulated in § 151.3 relies on IRA Section 5 authority codified at 25 U.S.C. 5108 and provides a broad range of purposes for acquiring land that meet the intent of the IRA. Therefore, the substance of the final rule is the same as the proposed rule. Comment: A few Tribes commented that the land acquisition policy should VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 include language like the following: ‘‘When the Secretary determines that the acquisition of the land will further Tribal interests by . . . advancing environmental justice for Tribal communities that have been disproportionately impacted by climate change, pollution, dumping of industrial waste, and other environmentally destructive practices, by helping them to secure safe and usable land.’’ Another commenter suggested that the policy is an exercise of the Secretary’s fiduciary obligation and should therefore be informed by the Department’s desire to address the devastating effects of the Federal Government’s treaty, allotment, and termination periods and policies, as well as decisions beyond a Tribe’s control that threaten the safety of current Tribal land. • Response: The Department appreciates the commenter’s additional basis for the Secretary to acquire land into trust. However, we decline to incorporate the additional language because § 151(b)(3) already includes broad language allowing the Secretary to acquire land in trust status if it is ‘‘for other reasons the Secretary determines will support Tribal welfare.’’ Comment: Several Tribes noted the importance of including explicit language stating that the land acquisition policy is intended to ‘‘protect sacred sites and Tribal cultural resources, establish or maintain conservation areas, burial grounds or cemeteries, consolidate land ownership to strengthen Tribal governance over reservation lands and reduce checkerboarding, protect treaty or subsistence rights, and facilitate Tribal self-determination, economic development or Indian housing.’’ It was further noted that many Tribes are seeking new acquisitions to bury ancestors being repatriated or excavated from their resting places due to development outside of Tribal lands. • Response: The Department agrees that the purposes listed by the commenters are important considerations in the discretionary land into trust process. Section 151.3(b)(3) articulates these broad purposes as reasons the Secretary may acquire land into trust and includes the broad statement that includes ‘‘for other reasons the Secretary determines will support Tribal welfare.’’ Comment: One Tribe proposed adding the phrase ‘‘increasing a Tribe’s resilience to climate change’’ as another reason for the Secretary to approve an acquisition. • Response: The Department agrees that there are purposes not specifically PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 identified that may be important considerations in the discretionary land into trust process. Section 151.3(b)(3) articulates that the Secretary may acquire land into trust ‘‘for other reasons the Secretary determines will support Tribal welfare.’’ Comment: Several Tribes recommended § 151.3(b)(3) be revised to read, in pertinent part: ‘‘. . . 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 rights secured by treaty, Executive Order, or other Federal or subsistence rights, or facilitating selfdetermination, economic development, or Indian housing.’’ These same Tribes also suggested making this change to all sections where this language appears: §§ 151.9(b), 151.10(b), 151.11(b), and 151.12(b). • Response: The Department agrees that Tribes may have rights beyond those secured under treaty. Section 151.3(b)(3) however is not exhaustive and articulates that the Secretary may acquire land into trust ‘‘for other reasons the Secretary determines will support Tribal welfare.’’ Comment: Some non-Tribal entities asserted that the Secretary was applying a blanket policy, stating ‘‘the Department appears to draw little or no differentiation between vastly different types of potential trust acquisitions, including those with considerably different land uses, which invariably result in dramatically different impacts to communities.’’ • Response: The broad policy statement in § 151.3 is grounded in the statutory text and authority of the IRA. NEPA requires Federal agencies to examine the environmental effects of proposed actions before making a decision. The Department’s NEPA process requires the BIA to examine environmental and related social and economic effects. The use of the land identified in an application will dictate the level of environmental review that is appropriate to comply with the Department’s obligations under NEPA. Comment: One Tribe commented that language should be added to make clear that even though an acquisition may be authorized under Federal law there may nevertheless be other Federal law or binding agreements (e.g., Tribal-State compacts) that prohibit the Secretary from acquiring land into trust. E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 • Response: Whether a separate agreement (e.g., a gaming compact) constrains the Secretary’s authority is a fact specific analysis. For that reason, the Department declines to add the suggested language to the final rule. Comment: One Tribe commented that lands acquired within a Tribe’s reservation or Tribal consolidation area should be deemed to be reservation land without further action. This would avoid any question of whether an onreservation acquisition requires a Reservation Proclamation. • Response: A reservation proclamation is a separate action under the authority of section 7 of the IRA. The Department notes, however, that an area of land over which a Tribe is recognized by the United States as having governmental jurisdiction (e.g., lands held in trust for the Tribe) are considered reservation under the § 151.2 definition of Indian reservation or Tribe’s reservation. There is no requirement that there be a formal proclamation before a parcel may be considered Indian reservation or the Tribe’s reservation for purposes of a land acquisition under part 151. The final rule provides for a concise statement and the Department declines to make the suggested change. § 151.4 How will the Secretary determine that statutory authority exists to acquire land in trust status? Comment: Numerous Tribes expressed appreciation for the clarity about how the Department will ensure that it has statutory authority to acquire land into trust status. One supportive commenter suggested that the Department elaborate on or provide a non-exhaustive list of ‘‘other forms of evidence.’’ Another commenter suggested that the Department include ‘‘Evidence of determinations by appropriate Federal officials that a Tribe or Tribal members were eligible for benefits under the IRA.’’ One Tribe expressed support for proposed § 151.4(a)(4) (now renumbered as § 151.4(a)(5)), which gives no legal force or effect to past disavowals of a jurisdictional relationship by executive officials. Another Tribe suggested that evidence of treaty negotiations, nonratified treaties, and termination legislation should all be considered conclusive rather than presumptive evidence. Another Tribe suggested that this section specifically include Federal legislation settling land claims as conclusive evidence where the legislation provides for mandatory or discretionary acquisitions. Another Tribe suggested that Federal efforts to conduct an accept or reject vote under VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 section 18 of the IRA, even where no vote was held, should be treated as conclusive evidence. • Response: Section 151.4 includes non-exhaustive lists of evidence to meet the conclusive and presumptive standards, as well as a third category for making a determination in the absence of conclusive or presumptive evidence. The ‘‘other forms of evidence’’ category is intended to be a catch-all category that allows the Secretary to give appropriate weight to forms of evidence not identified in the lists of ‘‘conclusive’’ or ‘‘presumptive’’ evidence. The Department finds that Federal legislation settling tribal land claims is indicative that a Tribe was under Federal jurisdiction in or before 1934, therefore the Department has included such settlements as presumptive evidence. The Department finds that evidence of Federal efforts to conduct elections under section 18 of the IRA, even where no vote was held, should be treated as probative evidence of Federal jurisdiction in the absence of conclusive or presumptive evidence. Presumptive evidence is rebuttable and, even where presumptive evidence exists, the Department will engage in a detailed review of the historical record. If there is evidence that a Tribe was not under Federal jurisdiction in 1934, the Department will review all available evidence in concert to determine whether, as a whole, the evidentiary record supports a finding that the Tribe was under Federal jurisdiction in 1934. Comment: One Tribal community requested that the Department publish a list of Tribes that met these thresholds so that future applicants on that list could reference that publication. Another commenter suggested that the rules clarify that proposed § 151.4(c) applies to all Tribes with favorable ‘‘under Federal jurisdiction’’ determinations and not just those ‘‘eligible under section 5 of the IRA.’’ A Tribe suggested that the Department clarify that past unfavorable ‘‘under Federal jurisdiction’’ determinations receive no precedential effect, and that the Department will review such applicants’ future applications under this newly articulated standard. • Response: Each Tribe is notified when they receive a positive ‘‘under Federal jurisdiction’’ determination and that analysis is maintained by the Department for future applications. Tribes that receive a positive determination from the Department will not need a future ‘‘under Federal jurisdiction’’ analysis for subsequent fee-to-trust applications. Such prior determinations remain valid under the PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 86235 proposed revision. If a Tribe has received a negative ‘‘under Federal jurisdiction’’ determination from the Department prior to the issuance of the final rule, the Tribe may request a new determination under § 151.4. Because the Department provides notice as described here, the Department declines to provide a separate publication of Tribes that have met the threshold. Comment: A Tribe requested clarification that proposed § 151.4 ‘‘incorporates existing case law’’ and that the tests described have been ‘‘repeatedly upheld by the Federal courts’’ and suggested language to further clarify how the IRA and related laws are treated under this section. • Response: Section 151.4 is based on the legal analysis articulated in Sol. Op. M–37029, ‘‘The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian Reorganization Act,’’ as well as the Secretary’s experience applying IRA’s first definition of ‘‘Indian’’ under section 19 in the almost fifteen years since the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009). The Department agrees that the legal analysis and the types of evidence articulated in Sol. Op. M–37029 have been upheld as a reasonable interpretation of the IRA in Federal district and circuit courts. As such, future determinations made under § 151.4 criteria will benefit from the jurisprudence developed around Sol. Op. M–37029. Because § 151.4 is sufficiently clear on this point, the Department declines to make the suggested revision. Comment: Several Tribes believe that the current language in § 151.4, as it relates to the acquisitions of trust lands owned in fee by an Indian, was replaced without providing additional details or clarity for these types of acquisitions. Therefore, they suggested that the text from the existing § 151.4 be maintained and further clarified in the new proposed section to account for this issue. • Response: Existing § 151.4, ‘‘Acquisitions in trust of lands owned in fee by an Indian,’’ was deleted as unnecessary, since the rule already provides for such acquisitions and no additional process or information was established. Comment: A commenting town suggested that the presumption that Tribes acknowledged through 25 CFR part 83 (part 83) were ‘‘under Federal jurisdiction’’ in 1934 should be eliminated, or a process should be established where this rebuttable presumption may be challenged. Others believe this provision is ‘‘arbitrary and capricious’’ and should be withdrawn, E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 86236 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations noting that Federal acknowledgment materials reviewed under part 83 could show instead that the Tribe was under State jurisdiction in 1934. • Response: The final rule revises proposed § 151.4(a)(2)(vi)), and adds a new provision, § 151.4(a)(4), to confirm that the Secretary may rely on evidence submitted in a 25 CFR part 83 proceeding to demonstrate the assertion of Federal jurisdiction in or before 1934. Depending on the nature of the evidence, it may be considered presumptive or probative, consistent with § 151.4(a)(2) and (3). At the outset, the Department reiterates the principle that there is no temporal limitation on the term ‘‘recognized’’ in 25 U.S.C. 5129, and therefore a Tribe need not have been recognized by the Federal Government in 1934 to meet the IRA’s definition of Indian. See Confederated Tribes of the Grande Cmty. Of Oregon v. Jewell, 830 F. 3d 552, 561 (D.C. Cir. 2016). The question and analysis of whether the Federal Government acknowledges a Tribe under part 83 is a wholly different question than whether Federal jurisdiction existed over a Tribe in 1934. See id. at 565 (‘‘Whether the government acknowledged Federal responsibilities toward a Tribe through a specialized, political relationship is a different question from whether those responsibilities in fact existed. And as the Secretary explained, we can understand the existence of such responsibilities sometimes from one Federal action that in and of itself will be sufficient, and at other times from a ‘‘variety of actions when viewed in concert.’’); Carcieri v. Salazar, 555 U.S. 379, 398 (2009) (Breyer, J., concurring) (noting that a Tribe may have been ‘‘ ‘under Federal jurisdiction in 1934’— even though the Department did not know it at the time.’’). By relying on evidence that supports both recognition under part 83 and an ‘‘under Federal jurisdiction’’ determination for purposes of part 151, the Department is in no way suggesting that these inquiries are equivalent. Rather, when the evidence gathered as part of the part 83 process includes evidence that the Federal Government had asserted jurisdiction over a Tribe in or before 1934, such evidence is relevant and the Secretary may consider it as part of her analysis under § 151.4. The Department declines to establish a new process for challenges to an ‘‘under Federal jurisdiction’’ analysis, as the process is internal to the Department and can be challenged through administrative appeal or Federal litigation after final decisions are issued. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Comment: One Tribe provided suggested edits on how treaty negotiations should be treated under these regulations and proposed that § 151.4(a)(2)(i) be moved to § 151.4(a)(1) ‘‘as conclusive evidence of Federal jurisdiction.’’ The Tribe applauded the elevated treatment of ‘‘[c]ontinuing existence of treaty rights . . .’’ from presumptive evidence to conclusive evidence. • Response: The Department declines to accept the commenter’s suggestion to move evidence of treaty negotiations from presumptive to conclusive evidence. The Department has generally treated evidence of treaty negotiations in concert with other supporting evidence to evaluate whether a Tribe was under Federal jurisdiction in 1934. Comment: One non-Tribal commenter urged the rule to be limited to within reservation boundaries and, where outside those boundaries, to require consistency with enumerated policies. This commenter requested: examples of evidence in the regulations that would indicate Federal jurisdiction did not exist in 1934; and the elimination of any reference to ‘‘climate change’’ acquisitions. • Response: The Department declines to accept the commenter’s suggestions. Under the IRA, the Secretary’s discretionary authority to acquire land in trust status is not limited to onreservation acquisitions. The Department believes that it is unnecessary to list evidence that may indicate Federal jurisdiction did not exist and declines to eliminate references to climate change. Comment: Alaska Tribes suggested specific language exempting them from the under Federal jurisdiction analysis. • Response: This is addressed in the Sol. Op. M–37076 and the revised FTT Handbook. Because Alaska Tribes are eligible to have land taken into trust under 25 U.S.C. 5119 and a separate stand-alone definition of Indian in the IRA, it is not necessary that Alaska Tribes show they were under Federal jurisdiction and § 151.4 does not apply. Comment: One Tribe requested that the Department further clarify what types of legislation are included in legislation enacted ‘‘after 1934 making the IRA applicable to the Tribe’’ within the meaning of § 151.4(b). • Response: There are several statutes under which Congress expanded the Secretary’s authority to take land into trust under the IRA. Determining whether a statute extended this authority to a specific Tribe, thereby eliminating the need for an under Federal jurisdiction analysis, requires a close examination of the statute’s PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 language and purpose. Because each statute varies in the language used, it is not feasible to identify in the final rule which types of legislation make the IRA and its fee-to-trust provisions applicable. One specific example of a subsequent statute extending section 5 of the IRA, and further underpinning the identification of a section 18 election as conclusive evidence, is the ILCA. In the 1980s, Congress amended the IRA through ILCA, 25 U.S.C. 2202, to extend section 5 to all Tribes who voted in section 18 elections, notwithstanding the outcome of those elections. Comment: Some Tribes questioned whether the under Federal jurisdiction analysis provided for in § 151.4 would be applied to a mandatory acquisition. • Response: Per § 151.1, the part 151 regulations do not apply to the acquisition of land mandated by Federal law. Therefore, no under Federal jurisdiction determination is required for a mandatory acquisition. § 151.5 May the Secretary acquire land in trust status by exchange? Comment: One Tribe commented that § 151.5 only contemplates a situation where a fee land-owning party and an individual Indian or Tribe might exchange lands with each other. However, the Tribe noted that another important instance involving an exchange of lands occurs when the small reservations of some Tribes, including the commenting Tribe, are bounded by and contiguous to other Federal lands, such as National Forest and Bureau of Land Management lands. For the commenting Tribe to add lands to their Reservation, they must acquire Federal lands through a land exchange with a Federal agency. Consequently, the Tribe requested that the following language be added to proposed § 151.5: ‘‘The Secretary may acquire land in trust status on behalf of an individual Indian or Tribe by exchange under this part if authorized by Federal law and within the terms of this part. The secretary may directly acquire land to be conveyed to an individual Indian or Tribe pursuant to a Federal land exchange upon the individual Indian or Tribe authorizing the direct transfer of title from the Federal agency involved in the land exchange to the United States in trust for the individual Indian or Tribe. The disposal aspects of an exchange are governed by part 152 of this title, as applicable.’’ • Response: The purpose of the regulations is to detail the process the Secretary will use in acquiring lands in trust. It is beyond the scope of these regulations to grant substantive rights E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations § 151.8 What documentation is included in a trust acquisition package? without statutory authority and the Department declines to make the suggested revision. § 151.6 May the Secretary approve acquisition of a fractional interest? Comment: While one Tribe commented that they have no problem with the proposed changes, another objected to the revisions in proposed § 151.6. While the objecting Tribe appreciated the Department’s replacement of the term ‘‘buyer’’ with ‘‘applicant’’ (which they believe better reflects the nature of such acquisitions), they expressed concern that the Department has taken no action to expand opportunities for the acquisition of a fractional interest through the discretionary process. The Tribe believes that both Federal law and the general principles of self-determination favor the idea that Tribal governments should be free to purchase fractional interests in their members’ restricted Indian land over time and have such land taken into trust. Accordingly, they recommend revising proposed § 151.6 to use ‘‘including, but not limited to’’ language prior to the list of circumstances under which the Secretary may approve a fractional interest, signaling that the regulatory list is not exhaustive. In the alternative, they also recommended supplementing this section with additional categories that may extend opportunities for such acquisitions to Tribal governments that may be otherwise excluded under the current scheme. • Response: The regulations are intended to guide the applicant and the agency in determining which fractional interests in lands are eligible for trust acquisition. The list is not intended to be exhaustive, and the enumerated categories covers the range of applicable conditions authorizing such acquisitions. Therefore, the Department has changed the language prior to the list of circumstances from ‘‘only if’’ to ‘‘including when.’’ ddrumheller on DSK120RN23PROD with RULES2 § 151.7 Is Tribal consent required for nonmember acquisitions? Comment: Many Tribes requested that the ‘‘consent provision’’ be clarified to state that it does not apply to Tribes with shared jurisdictions. • Response: The Department understands that in certain instances Congress may have overridden the consent requirement provided for in the rule; however, the Department views the consent requirement as consistent with the IRA in that it supports Tribal selfgovernance. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Comment: Most comments expressed overwhelming support for the new 120day time frame for decision, although many commenting Tribes also suggested that the regulations include a provision that an application will be deemed approved if the Secretary fails to meet this deadline or allow Tribe’s recourse if a decision is not issued within the prescribed time frame. • Response: The 120-day time frame for a decision is not intended to establish an independent cause of action but instead ensures the agency issues a decision on a completed application as efficiently and expeditiously as practicable. Because there are certain prerequisites that must be completed prior to acquiring land into trust (e.g., environmental analysis under NEPA) a deemed approved provision would be inappropriate. Comment: A few Tribes commented that the changes to proposed § 151.8(a)(5) impose no deadline on the Department to prepare a PTO to render the application ‘‘complete’’, which subsequently they assert makes the 120day time frame illusory. To address this, they suggested that the proposed regulations be changed to permit a Tribe to prepare the PTO and require the Solicitor’s Office to review and approve it within 30 days of receipt from the Tribe. • Response: The FTT Handbook will include a time frame for completing the PTO but the Department notes it is outside BIA’s authority to impose deadlines on other Departmental bureaus or offices. Comment: Several Tribes also noted that the proposed changes to § 151.8(a)(4) impose no deadline on the Department to conduct a public review process under the National Environmental Policy Act (NEPA) and issue a final Environmental Assessment (EA) or an Environmental Impact Statement (EIS) document to render an application ‘‘complete.’’ They suggested that where no categorical exclusion is issued, the proposed regulation should be changed to require the Department to name the applicant Tribe as a cooperating agency in a NEPA public review process; begin that process no later than 30 days after the Department receives a specific request from the Tribe; and conclude any EA process within six months and any EIS process within 12 months. • Response: Because each application contains different circumstances, the time for completing each NEPA document is different and cannot be PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 86237 mandated. The Secretary will grant Tribal requests for cooperating agency status where applicable and appropriate. Comment: One Tribe suggested that the Department consider adding additional clarification to the proposed regulations concerning the applicant’s required contribution to the Secretary’s environmental review under proposed § 151.8(a)(4). • Response: As written, this section maintains flexibility regarding the type of information the applicant must submit to comply with NEPA. Comment: One Tribe requested that the Department make clear that ‘‘many of the application requirements may be carried out simultaneously and need not proceed in sequential order as they are listed in the proposed rule.’’ • Response: The FTT Handbook will specify the process for consideration of a Tribe’s application. The Department notes that the fee-to-trust process is not always the same for each parcel. As described in § 151.8(b), the Secretary will issue a decision on an application ‘‘within 120 calendar days after issuance of the notice of a complete acquisition package.’’ Comment: Several Tribes noted that under proposed § 151.8(a)(3)(i), there is a requirement for a Tribe to ‘‘include a statement of the estate to be acquired,’’ but that this is not also mentioned for metes and bounds and survey descriptions. • Response: The requirement for a Tribe to ‘‘include a statement of the estate to be acquired’’ has been added to the metes and bounds survey description in the renumbered § 151.8(a)(4)(ii). Comment: One Tribe noted that requests for additional information under proposed § 151.8(a)(8) that delay the acceptance of an application as complete may greatly extend the timeline. The Tribe suggests that proposed § 151.8(a)(8) should be adjusted to read as follows: ‘‘Any additional information or action reasonably requested by the Secretary in writing if warranted by unique and unusual circumstances in the specific application.’’ • Response: The Department notes the section to which the Tribe refers now appears at proposed § 151.8(a)(9). The Department declines to adopt the proposal. This section maintains flexibility to address the circumstances of each application and the need to ensure that the Secretary’s final decision is legally sufficient. Comment: The Tribe also suggested that the Department maintain metrics following the final adoption of the E:\FR\FM\12DER2.SGM 12DER2 86238 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 proposed rule, showing the entire timeline from original submission to approval (or denial) and examining whether significant delays occur before acceptance. • Response: The Department maintains the official records of each application, including evidence of the timeline from original submission to decision. This information allows examination of delays prior to acceptance. Comment: A Tribal consortium requested more flexibility in environmental issues and suggested that Tribes be given the option to assume liability for environmental issues that remain on land being taken into trust. • Response: In certain instances, the Department can accept land into trust with an encumbrance, lien, or infirmity when the Tribe agrees to enter into an indemnification agreement in favor of the BIA. While not expressly stated in the regulations, the ability exists with the Department on a case-by-case basis. Comment: Some commenting Tribes noted concerns over fee-to-trust acquisitions for gaming, suggesting that such applications be denied when gaming on the land in question would be prohibited by IGRA. • Response: An application to take land in trust specifically for gaming purposes cannot proceed for gaming purposes if the land is determined to be ineligible for gaming pursuant to IGRA. § 151.9 How will the Secretary evaluate a request involving land within the boundaries of an Indian reservation? Comment: Several Tribes suggested that the Department remove ‘‘any requirement to show the BIA has the capacity to carry out its responsibilities if the land was placed in trust’’ proposed § 151.9(a)(4)). • Response: Because trust land acquisitions are discretionary, the Secretary must demonstrate support for their decision in the record. To ensure a complete evaluation, the Secretary will consider whether the BIA is equipped to fulfill its trust responsibilities for land acquired in trust and to provide the Federal programs and services that it makes available on trust lands. Comment: One Tribe commented that the Department should clarify what is meant by ‘‘great weight’’ under § 151.9(b). • Response: Section 151.9(b) acknowledges that certain purposes for land acquisition are particularly salient in light of the purposes of the IRA and the Secretary’s land acquisition policy as articulated in § 151.3. The Secretary will apply great weight to applications VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 pursing these listed purposes by recognizing, and appropriately considering, the particular importance of acquiring land for these purposes. The Secretary would thus need to take the importance of the proposed acquisition into consideration in reviewing a request and would need to address this in any disapproval decision. Comment: One Tribe commented that while it welcomes a presumption in favor of approval for requests for acquisition of land within and contiguous to reservation boundaries, the proposed presumption should be clarified. • Response: The Department has revised § 151.9(c) to clarify that the Secretary presumes that an acquisition within the boundaries of a reservation will: (1) further at least one of the Tribal interests described in § 151.9(b); (2) that adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal; and (3) that the application should therefore be approved. The revised language clarifies which factors the presumption applies to and when the Secretary presumes an acquisition will be approved. Comment: One Tribe commented that if the effects on a State or local government’s regulatory jurisdiction, real property taxes, and special assessments will be minimal, then the burden shifts to those opposing the acquisition to either prove that the acquisition does not meet one of the criteria listed at § 151.9(b) or that the acquisition would adversely impact State or local governments. • Response: The Department has revised § 151.9(d) to include a comment period for State and local governments to submit written comments to rebut the presumption that the acquisition will have minimal adverse impacts to regulatory jurisdiction, real property taxes and special assessments. Comment: One Tribe believes the policies afforded great weight under proposed § 151.9(b) may unduly limit the needs and uses for which Tribes may acquire land under the IRA. The Tribe suggests adding the following to the IRA’s purpose: ‘‘for the purpose of providing land for the Indians,’’ along with the prior listing of ‘‘housing’’ and ‘‘economic development’’ needs. The Tribe also suggests a rewording of the ‘‘no change in use’’ category. • Response: The regulation does not limit the needs or uses for which a Tribe may acquire land within the boundaries of its reservation. The Department intended that § 151.9(b) be broad by including the broad purpose of PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 ‘‘facilitating self-determination.’’ Section 151.9(b) states that the Secretary will give great weight to acquisitions that ‘‘will further Tribal interests by establishing a Tribal land base or protecting Tribal homelands.’’ Establishing a Tribal land base or protecting Tribal homelands is equivalent to the IRA’s purpose of ‘‘providing land for Indians.’’ Section 151.9(b) also includes housing and economic development as a purpose. Comment: One Tribe strongly suggested that proposed § 151.9(a)(3) be removed entirely, asserting that it second-guesses the Tribal applicant’s self-governance decisions and is not necessary under NEPA. Another Tribe suggested that it is unclear what must be submitted to comply with proposed § 151.9(a)(3), specifically concerning NEPA compliance implications referenced in the ‘‘Summary of Changes’’ in the Federal Register. Several Tribes also suggested edits to proposed § 151.9(b) that account for Tribes with rights tied to executive orders or other Federal laws. • Response: It is important for the Secretary to understand the current proposed use of the land to be acquired. The use of the land will dictate the level of environmental review that is appropriate to comply with the Department’s obligations under NEPA. NEPA requires Federal agencies to examine the environmental effects of proposed actions before making a decision. The Department’s NEPA process requires the BIA to examine environmental and related social and economic effects. In some instances, they also require the Department to seek public comment. We do not agree that this undermines Tribal self-governance. In conducting an analysis under NEPA, the Department is not rejecting a Tribes reason for wanting the Department to accept the land in trust. But rather, it is reviewing the impacts of such an acquisition. Comment: Several counties, towns, and States expressed opposition to proposed § 151.9, specifically expressing concern over how notice is afforded to States and local governments. Collectively, they asserted that: (1) it is not clear what will be included in the notice, (2) whether the notice is merely a courtesy, given the presumption to acquire on-reservation lands, or whether they will be given an opportunity to comment; and (3) whether the new presumptions for acquiring land, when coupled with the removal of the consideration of jurisdictional problems, potential conflicts of land use, the removal of considering the effects on a State and E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 local government’s regulatory jurisdiction, real property taxes, and special assessments, and the expressed needs of Tribal applicants for additional land, are lawful. One commenter also suggested that the term ‘‘State and local governments with regulatory jurisdiction over the land to be acquired’’ could result in a lack of any notice where jurisdiction is complicated or debatable, because the Department makes its own interpretation on that question. • Response: Section 151.9(d) has been revised to solicit comments from State and local governments to rebut the presumption that an acquisition within the reservation boundary will have minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments. The Department also notes and confirms that any comments received on an application, even if not requested, will be considered as part of the overall decision-making process. While not included in the regulation, the BIA will publish guidance in the FTT Handbook outlining how notice will be provided. Comment: Several Tribes commented that the Department should clarify in the preamble or the final rule that ‘‘State and local governments only have regulatory jurisdiction over onreservation fee land owned by nonIndians.’’ One Tribe also urged the Department to not allow State and local comments on their own to overcome ‘‘a decision to approve a trust acquisition.’’ • Response: The scope of State and local jurisdiction over fee lands within the boundaries of Indian reservations is outside the scope of these regulations and, for that reason, the Department declines to adopt the recommendation. With respect to the role of State and local comments, the decision to approve or disapprove an application will be based on whether the application complies with the regulatory criteria and other applicable statutory or regulatory requirements. The Department will consider comments submitted on pending applications. § 151.10 How will the Secretary evaluate a request involving land contiguous to the boundaries of an Indian reservation? Comment: One Tribe suggested that ‘‘great weight’’ should be afforded contiguous acquisitions ‘‘within the original boundary of the Tribal applicant’s reservation.’’ • Response: The Department understands the policy reasons for the requested change. However, the process for determining the ‘‘original boundary’’ could add significant complexity and VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 time to the acquisition process. Because the intent behind this rulemaking is to provide a more efficient process, the Department declines to make this change. Comment: Another Tribe suggested the Department should give greater weight to the presumptions in proposed § 151.10(c) and (d) when evaluating State and local comments for impacts to their regulatory jurisdiction, real property taxes, and special assessments. • Response: The final rule already provides for a presumption in favor of approval in § 151.10(c) and a presumption that the Tribe will benefit from the acquisition in § 151.10(d). No additional weight is necessary to facilitate the intent of the rulemaking. Comment: A Tribe also suggested that the Department should clarify that State and local comments alone are insufficient to ‘‘overcome a decision to approve a trust acquisition’’. • Response: The Department agrees that State and local governments do not have veto authority over the decisions to acquire land in trust contemplated by this part. The Secretary will consider comments received on pending applications consistent with this part. Comment: This same Tribe also suggested technical edits to harmonize proposed Section 151.10(b) with the proposed changes to § 151.3(b)(3). • Response: The final rule was revised to harmonize the purposes for acquiring land into trust listed in §§ 151.10(b) and 151.3(b)(3). Comment: Another Tribe stated that the Department should not even solicit State and local government comments, which they assert is consistent with the process described for on-reservation acquisitions. • Response: It is appropriate for the Secretary to consider comments received from State and local governments for acquisitions evaluated under this part. The Department also notes that the final rule has been revised to provide an opportunity for State and local governments to provide comments for acquisition within reservation boundaries. The Secretary’s consideration of comments received on pending applications ensures they have a complete view of the complexities surrounding an acquisition. It also provides an opportunity for the applicant to address concerns raised as part of the process, thereby reducing the likelihood of legal challenges when those concerns are considered prior to the acquisition. Comment: One Tribe suggested that when the Department receives and reviews State and local government comments, it should be both mindful PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 86239 and give great weight to the fact that the local Tribe and the Department ‘‘are already providing services to the contiguous parcel.’’ • Response: As with the existing regulation, the Secretary will consider all factors relevant to understanding the potential impact on regulatory jurisdiction, real property taxes, special assessment and services to a particular parcel as identified by the commenting State or local government. While the final rule does not give a specific weight to comments and concerns raised by local governments or States, it is not true that it gives them no weight. The Secretary will consider any and all comments and concerns raised by local communities or States in making a decision to acquire land in trust for a Tribe. Comment: One Tribe opposed the proposed changes to § 151.10(a)(3), stating that allowing the Secretary to evaluate the purposes for which a Tribe will use its own land within its own reservation is inconsistent with selfdetermination policy. • Response: The Secretary needs to know the purpose for which the land is to be used to determine the appropriate level of environmental review to comply with NEPA. NEPA requires Federal agencies to examine the environmental effects of proposed actions before making a decision. The Department’s NEPA process requires the BIA to examine environmental and related social and economic effects. In some instances, they also require the Department to seek public comment. We do not agree that this undermines Tribal self-governance. In conducting an analysis under NEPA, the Department is not rejecting a Tribes reason for wanting the Department to accept the land in trust. But rather, it is reviewing the impacts of such an acquisition. Comment: Additionally, the same Tribe opposed proposed § 151.10(a)(4), stating that it is ‘‘outdated and perpetuates a callous and abusive Federal policy discarded decades ago because of its moral bankruptcy.’’ • Response: Acquisitions under section 5 of the IRA are discretionary and have been subject to Federal resource considerations since the IRA was first enacted. When the United States takes land into trust, it exercises trust responsibilities as to those lands and extends Federal programs and services to those lands. Therefore, in exercising her discretion, the Secretary must decide whether BIA is equipped to assume these fiduciary obligations and discharge the additional responsibilities associated with the acquisition. Section 151.10(a)(4) is a legitimate consideration E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 86240 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations as part of the acquisition process Department declines to make the suggested revision. Comment: Another Tribe submitted comments seeking a specific tax exemption under the regulations to address a longstanding fee-to-trust issue they have been dealing with. • Response: The purpose of the regulations is to detail the process the Secretary will use in acquiring lands in trust. It is beyond the scope of these regulations to grant substantive rights without statutory authority. Comment: Another Tribe requested a time frame for when BIA must provide the Tribal applicant a copy of any comments received from State or local governments (suggesting a 10-day window to provide such copies to the Tribal applicant). Another Tribe requested that other affected Tribes be included in the notice for comment sent to State and local governments. • Response: The BIA is in the process of updating the FTT Handbook to reflect the changes made by this final rule. The FTT Handbook is a more appropriate location to include any intermediate time frames designed to ensure compliance with the broader 120-day time frame to issue a decision on a complete acquisition package. Comment: One Tribe suggested a new category of ‘‘adjacent’’ lands be added to the ‘‘contiguous’’ acquisition analysis to account for that category of lands that are currently ‘‘off-reservation’’ lands, but that should be afforded greater weight as lands that are ‘‘closely connected or intrinsically linked to lands held in trust’’ for the applicant Tribe. • Response: The Department acknowledges that lands adjacent to a reservation may be closely connected to or linked to lands held in trust; however, the definition of contiguous provides sufficient clarity to determine the appropriate criteria to use to evaluate the application. The Department also notes that establishing a standard for what constitutes ‘‘adjacent’’ would be difficult considering the differences in geography between Tribal land holdings. Applying such a standard would also add a layer of complexity and time to the fee-totrust process, which would undercut the purpose of this rulemaking to make the process more efficient. Comment: Another Tribe suggested that the Department clarify that ‘‘contiguous’’ acquisitions are also ‘‘contiguous’’ for gaming purposes under 25 CFR 292.2 (the Tribe offered draft edits for consideration). • Response: The definition of contiguous is consistent with the part VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 292 definition, and in general should result in a similar analysis; however, part 151 and part 292 determinations are separate and rely on different statutory authority. Comment: Several Tribes also suggested edits to proposed § 151.10(b) that account for Tribes with rights tied to executive orders or other Federal laws. • Response: The final rule does not relieve the Department of its obligations to adhere to any relevant executive order or any other Federal laws. The final rule provides sufficient clarity, and thus no additional language is necessary. Comment: One Tribe commented that while it welcomed a presumption in favor of approval for requests for acquisition of land within and contiguous to reservation boundaries, the proposed presumption in §§ 151.9 and 151.10 should be further clarified as they believe it is not clear which of the criteria in these sections an applicant Tribe would no longer need to affirmatively prove, and what an opposing party would need to produce or persuade to overcome the presumption. The Tribe consequently proposed the following change to proposed § 151.10: ‘‘When reviewing a Tribe’s request for land within the boundaries of an Indian reservation, the Secretary presumes that the acquisition will further the Tribal interests described above in subsection (b), and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved.’’ • Response: This language has been incorporated into §§ 151.9(c), 151.10(c), and 151.12(c). Comment: Several State and local governments opposed the proposed changes in § 151.10 and expressed concern about whether the new presumptions for acquiring land, when coupled with the removal of the consideration of jurisdictional problems, potential conflicts of land use, and the expressed needs of Tribal applicants for additional land, are lawful. Commenters’ specific legal concerns include that ‘‘BIA will also not consider as a factor possible jurisdictional and land use conflicts that may arise between local governments and the Tribes’’ which may ‘‘lead to costly and time-consuming litigation for both Tribes and local governments on jurisdictional and land use issues’’; that the removal of the consideration of jurisdictional problems ‘‘would have the effect of obfuscating the legitimate function and role of county PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 governments, which are responsible for land use planning and the provision of important local services’’; and would generate ‘‘conflicts that go straight to the heart of the considerations Congress intended the Department to weight in exercising its judgment under the Indian Reorganization Act of 1934 (IRA) to approve or deny a request to take land into trust.’’ • Response: We disagree with the premise that including presumptions would make the acquisitions unlawful. Congress has provided the Secretary with the authority to acquire land into trust for Tribes. See Act of June 18, 1934, Public Law 73–383, 48 Stat. 984 (codified as amended at 25 U.S.C. 5101 through 5129). Congress enacted the IRA to ‘‘establish machinery whereby Indian Tribes would be able to assume a greater degree of self-government, both politically and economically.’’ Morton v. Mancari, 417 U.S. 535, 542 (1972). Restoration of Tribal homelands through trust acquisition is pivotal to achieving the Tribal self-government, selfdetermination, and economic goals of the statute. See, e.g., Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 226 (2012) (describing section 5 as the ‘‘capstone’’ of the Indian Reorganization Act’s land provisions). The addition of a presumption in favor of acquisitions within reservation boundaries is thus consistent with the goals of the IRA of Tribal land restoration and consolidation. The statute does not include any presumption; however, it is within the Secretary’s discretion to include one that supports the overall goals of the statute. Commentors, including State and local governments, may submit comments and evidence for the Secretary’s consideration seeking to rebut the presumption. Upon receipt of a comment from any interested party, including a State or local government, the Department would then be positioned to consider any jurisdictional and land use conflicts that may arise, to consider function and role of county governments as they relate to a putative acquisition, and to consider all viewpoints in exercising its delegated authority under the Indian Reorganization Act. Comment: They also expressed concerns about the 30-day comment period being too short to meaningfully comment on acquisitions, as well as the need for criteria defining how notice will be provided to State and local governments. • Response: We disagree. In the Department’s experience, 30 days is sufficient time to provide comments on pending applications. The 30-day E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations comment period was codified in the 1995 part 151 regulations. The preamble to that regulation noted that the timeframe was based on BIA’s past experience with informal consultation. See 60 FR 32874, 32877 (June 23, 1995). The Department continues to believe, based on its experience, that 30 days is sufficient. Indeed, the information requested by the Secretary is more likely retrievable within 30 days using current information technology and electronic means. Comment: Separately, several of these commenters noted that State and local comments are not afforded ‘‘great weight’’ and assert that they should be. • Response: The Department considers all comments but declines to accept the proposal which would specify the weight that must be given to these comments. Through the IRA and other Federal statutes authorizing trust acquisitions, Congress has authorized the Secretary to acquire land in trust for Indian Tribes and individual Indians, subject to the requirements set forth in the statutes. The regulations contemplate that the Secretary will consider comments submitted by State and local governments on pending applications as part of the decisionmaking process. The Department declines to expand or elevate the role of State or local governments in this process. Comment: Additionally, a State Attorney General proposed language for § 151.10(d) that prescribes a process for providing notice to State and local governments and what that notice should include. • Response: The specific manner for providing notice and seeking comment from third parties is better suited to internal guidance documents such as the BIA’s Fee-To-Trust Handbook. The process proposed by the commenter would have the effect of slowing down the processing of applications and greatly expand the role of States and municipalities far beyond what is in the current regulations. The Department therefore declines to make the suggested revision in the proposed regulation. The Department will consider this proposed language as internal guidance documents are revised, including the Fee-To-Trust Handbook. Comment: One State commented that they believed the ‘‘presumption that contiguous lands be approved’’ is unclear, i.e., there is ‘‘no description of the weight of the presumption.’’ The State also noted that it is unclear whether the presumption is rebuttable and—if so—how is it rebutted? • Response: Section 151.10(c) clarifies that the Secretary will presume VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 that the acquisition ‘‘will further the Tribal interests described in paragraph (b) of this section, and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved.’’ The revised language clarifies which factors the presumption applies to and when the Secretary presumes an acquisition will be approved. Presumptions are rebuttable by providing evidence that does more than simply support an alternative conclusion. Commentors, including State and local governments, may submit comments and evidence for the Secretary’s consideration seeking to rebut the presumption. The Secretary will consider such evidence in making a decision on the Tribe’s application. § 151.11 How will the Secretary evaluate a request involving land outside of and noncontiguous to the boundaries of an Indian reservation? Comment: One Tribe suggested that the Department give ‘‘great weight’’ to off-reservation acquisitions ‘‘within the aboriginal or ‘ceded’ lands of the Tribal applicant.’’ One Tribe proposed that the Secretary consider the community benefits and give the greatest weight to the interests and concerns of Tribes with aboriginal ties to the proposed location.’’ • Response: Determining the location and extent of a Tribe’s aboriginal lands often requires a lengthy review of applicable law and fact. Such a change is inconsistent with the intent to streamline the fee-to-trust process. Comment: Several Tribes suggested that local Tribal governments receive notice of a Tribe’s application and be given an opportunity to provide comments. • Response: Given the differences in geography between all Tribal land holdings, it would be difficult to establish a national regulatory standard that defines ‘‘local Tribal governments’’ in a consistent and equitable manner, therefore the Department declines to define ‘‘local Tribal governments’’ for the purpose of notice and comment. Tribes may, however, submit comments to the Department on an application that will be considered by the Department as part of the application review process. Comment: A Tribal consortium suggested that ‘‘given Alaska’s unique history, land acquisitions within Alaska Native Village Statistical Areas should be treated as ‘on-reservation acquisitions’ and not off-reservation acquisitions.’’ • Response: Initial trust acquisitions in Alaska will be analyzed under PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 86241 § 151.12 if they are the first trust acquisition for an Alaska Tribe. Because very little land is held in trust for Alaska Tribes, this likely will be the standard for almost all initial acquisitions for Alaska Tribes. After the initial acquisition, however, Alaska acquisitions will be evaluated using the criteria articulated in this final rule. This supports a uniform application of the land acquisition process in Alaska and the lower 48 States. Comment: One Tribe suggested that the Department clarify that State and local government comments alone are insufficient to overcome a decision to approve a trust acquisition. • Response: State and local comments opposing an off-reservation acquisition do not serve as a veto. Comment: Several Tribes expressed support for retaining the 30-day comment period, requiring that those comments be provided to Tribal governments for rebuttal, and that States and local governments be limited to commenting only on impacts to their regulatory jurisdiction, real property taxes, and special assessments. One Tribe requested that a timeframe be included for when BIA must provide a Tribal applicant with a copy of any comments received from State or local governments (suggesting a 10-day window). • Response: We decline to limit the subject areas any party may comment on regarding a specific application. We also believe that timelines for providing a Tribal applicant a copy of any comments received are better addressed in the BIA Fee-To-Trust Handbook. Comment: Several Tribes suggested edits to proposed § 151.11(b) that account for Tribes with rights tied to Executive orders or other Federal laws. • Response: The final rule does not relieve the Department of its obligations to adhere to any relevant Executive order or any other Federal laws. Comment: Several State, local and Tribal governments opposed the removal of the current § 151.11(b), which they assert increases scrutiny the further from a reservation the land is while giving greater weight to State and local government concerns. In a related comment, one Tribe suggested adding a presumption of approval for land located outside of and noncontiguous to an Indian reservation. • Response: In enacting the IRA, Congress did not limit trust acquisitions to within a certain distance from a Tribe’s reservation. The Department recognizes, however, that off-reservation acquisitions may present different issues than on-reservation or contiguous acquisitions. The existing § 151.11(b) E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 86242 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations unnecessarily applies heightened scrutiny to off-reservation acquisitions based on distance alone. There are numerous factors other than distance from a Tribe’s existing reservation that should be considered as part of an offreservation acquisition. Therefore, the Secretary will not presume that an offreservation application will be approved but will consider the location of the land along with the other criteria in § 151.11 before issuing a decision. In addition, this sentence was edited for clarity and succinctness: ‘‘[t]he 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,’’ to ‘‘[t]he Secretary presumes that the Tribe will benefit from the acquisition.’’ Comment: Several commenters found the proposed language ‘‘in reviewing such comments, the Secretary will consider the location of the land’’ in § 151.11(c) vague. A local county stated that ‘‘that there are far greater considerations than location to consider, such as the financial impact on local governments, local taxing authorities and local taxpayers as lands are proposed for acquisition as trust lands.’’ A county opposed the purported removal of consideration of ‘‘jurisdiction problems and potential conflicts of land use’’ from consideration. • Response: The sentence was edited for clarity to: ‘‘[i]n reviewing such comments, the Secretary will consider the location of the land and potential conflicts of land use.’’ The Secretary will consider potential conflicts of land use for proposed trust acquisition located outside of and non-contiguous to a Tribe’s reservation or trust land. Consideration of an acquisition’s potential impact on regulatory jurisdiction, real property taxes, and special assessments is already included in this section. Consideration of ‘‘jurisdiction problems and potential conflicts of land use’’ is retained for §§ 151.11(c) and 151.12(c). Comment: One non-Tribal commenter suggested a gaming carve-out, which would apply the current § 151.11(b) equivalent to acquisitions where gaming will be conducted. There are concerns from non-Tribal entities that Tribes can conceivably acquire land across the United States, and these concerns are also expressed as gaming concerns in certain comments. • Response: This final rule applies to all fee-to-trust acquisitions. Where a feeto-trust application is for the purpose of conducting Indian gaming, a determination whether the land is VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 eligible for gaming is required by the IGRA and its implementing regulations at 25 CFR part 292. Thus, there is no need for this rule to address gaming matters. Comment: Several commenting State and local governments oppose the removal of the requirement that Tribal applicants submit business plans for review, suggesting it would eliminate a source of information used to evaluate local impacts of the putative acquisition. • Response: Requiring a Tribal applicant to disclose its business plan is inconsistent with Tribal selfdetermination. Tribes and State and local governments may share information to evaluate local impacts even without a requirement and Tribal applicants and State and local governments are encouraged to discuss issues of common concern. Comment: They also expressed concerns that the 30-day comment period was too short to provide meaningful comments, as well as the need for criteria defining how notice will be provided to State and local governments. • Response: In the Department’s experience 30 days is sufficient time to provide the type of comments that will inform the Secretary’s decision. The 30day comment period was codified in the 1995 part 151 regulations. The preamble to that regulation noted that the timeframe was based on BIA’s past experience with informal consultation. See 60 FR 32874, 32877 (June 23, 1995). The Department continues to believe, based on its experience, that 30 days is sufficient. Indeed, the information requested by the Secretary is more likely retrievable within 30 days using current electronic means. Comment: A State Attorney General suggested revisions for proposed § 151.11(d) that would prescribe a process for providing notice to State and local governments and what that notice would include. • Response: The specific manner for providing notice and seeking comment from third parties is better suited to internal guidance documents such as the Fee-To-Trust Handbook. The regulations provide a timeframe in which States and local governments can submit comments on an application. Therefore, we do not see why it would be necessary to put a deadline on when the BIA sends notification of an application to States or local governments. The Department therefore declines to make the suggested revision. Comment: A town expressed skepticism regarding the blanket presumption of community benefits for PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 off-reservation acquisitions and noted that it is unclear how this presumption can be rebutted. • Response: Where a Tribe takes land into trust off-reservation, 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. Comment: A local jurisdiction commented that while the proposed rule would give ‘‘great weight’’ to Tribal concerns, it would give no weight to the comments or concerns of the local community or to the State in the decision-making process. Several commenters noted that State and local comments are not afforded ‘‘great weight’’ and asserted that they should be. • Response: Through the IRA, Congress has authorized the Secretary to acquire land in trust for Tribes and individual Indians, subject to the requirements set forth in the statute. The regulations contemplate that the Secretary will consider comments submitted by State and local governments on pending applications as part of the decision-making process. The Department declines to expand or elevate the role of State or local governments in this process coequal to Tribal concerns because the IRA sets forth an explicit ‘‘purpose of providing land for Indians’’ and includes no such purpose for State or local governments. Comment: One Tribe recommend that Tribes with dispersed trust lands be accommodated by adding a provision that if the proposed acquisition is within five miles of a Tribe’s existing trust land, that the application will be considered a contiguous application. • Response: It would be difficult to establish a national regulatory standard to accommodate all Tribes with dispersed lands considering the differences in geography between all Tribal land holdings. § 151.12 How will the Secretary evaluate a request involving land for an initial Indian acquisition? Comment: Most commenting Tribes expressed general support for the proposed changes to § 151.12. One Tribe appreciated the addition of ‘‘economic development and Indian housing’’ and ‘‘self-determination,’’ as reflected in the proposed changes to § 151.12(b). They also supported the ‘‘presumption of community benefits in § 151.12.’’ However, some Tribes suggested that the Department’s presumption of E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations community benefits should only apply where the initial acquisition is within the Tribal applicant’s ‘‘aboriginal territory.’’ Another Tribe would like this section expanded beyond an ‘‘initial Indian acquisition’’ to include acquisitions for ‘‘a modest or minimal homeland.’’ • Response: Determining the location and extent of a Tribe’s aboriginal lands often requires a lengthy review of applicable law and fact. Such a change is inconsistent with the intent to streamline the fee-to-trust process. Comment: One Tribe suggested that the Department clarify that the receipt of State and local comments alone is insufficient to ‘‘overcome a decision to approve a trust acquisition.’’ Tribes also expressed support for retaining the 30day comment period, requiring that those comments be provided to Tribes for rebuttal, and that States and local governments be limited to commenting only on impacts to their regulatory jurisdiction, real property taxes, and special assessments. • Response: In the Department’s experience, 30 days is adequate for the purposes of implementing the IRA. The solicitation of comments from State and local governments is to assist the Secretary in assessing the regulatory criteria. The Department agrees that State and local governments do not have veto authority over the decisions to acquire land in trust contemplated by this part. The Secretary will consider comments received on pending applications consistent with this part. Comment: Several Tribes suggested edits to proposed § 151.12(b) that account for Tribes with rights tied to executive orders or other Federal laws. • Response: The final rule does not relieve the Department of its obligations to adhere to any relevant executive order or any other Federal laws. Comment: One Tribe provided edits it believed would better harmonize proposed § 151.12(b) with proposed § 151.3(b)(3). • Response: Edits have been incorporated to harmonize the purposes for accepting land into trust listed in §§ 151.12(b) and 151.3(b)(3). Comment: Several State and local governments expressed concerns about the 30-day comment period being too short to allow them to provide meaningful comments, as well as the need for criteria defining how notice will be provided to State and local governments. Separately, several commenters noted that State and local comments are not afforded ‘‘great weight’’ and asserted that they should be. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 • Response: In the Department’s experience, 30 days is sufficient time to provide the type of comments that will inform the Secretary’s decision. The 30day comment period was codified in the 1995 part 151 regulations. The preamble to that regulation noted that the timeframe was based on BIA’s past experience. See 60 FR 32874, 32877 (June 23, 1995). The Department continues to believe, based on its experience, that 30 days is sufficient. Indeed, the information requested by the Secretary is more likely retrievable within 30 days using current electronic means. Through the IRA and other Federal statutes authorizing trust acquisitions, Congress has authorized the Secretary to acquire land in trust for Tribes and individual Indians, subject to the requirements set forth in the statutes. The regulations contemplate that the Secretary will consider comments submitted by State and local governments on pending applications as part of the decision-making process. The Department declines to expand or elevate the role of State or local governments in this process. § 151.13 How will the Secretary act on requests? Comment: One Tribe requested that the definition of interested party also match the definition of interested party in the part 2 regulations. They also requested that interested parties be required to obtain a bond. • Response: The Department declines the proposed additions. The part 151 interested party definition closely resembles proposed 25 CFR part 2 regulation, wherein interested party is defined as ‘‘a person or entity whose legally protected interests are adversely affected by the decision on appeal or may be adversely affected by the decision of the reviewing official.’’ See Proposed Rule, Appeals from Administrative Actions, 87 FR 73688 (Dec. 1, 2022). The part 2 regulation further defines those entities adversely affected by a decision. As set forth above, for purposes of part 151, it is not necessary for an interested party to be adversely affected but instead that they have a legally protected interest affected by a decision. We note that it is possible for a party to satisfy the definition of Interested party yet have no right to appeal a decision i.e., have no standing to do so. The Department also notes that providing notice to a party does not confer legal standing to bring a challenge. Bonding requirements related to administrative appeals under part 2 is outside the scope of these regulations. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 86243 Comment: Several Tribes expressed concern about the definition of interested party and one expressed concern about the standing requirements for interested parties, suggesting that purely economic interests should not be sufficient. • Response: As explained herein, the definition of interested party tracks the definition of ‘‘interested party’’ in part 2—the regulations which govern the appeals process, except that for part 151 purposes, a person or entity may be an interested party and thus entitled to notice of the decision if they make themselves known in writing to the BIA in advance of the decision, even if they are not ‘‘adversely affected’’ by a potential decision. We note that it is possible for a party to satisfy the definition of interested party in part 151 yet have no right to appeal a decision i.e., have no standing to do so. The Department also notes that providing notice to a party does not confer legal standing to bring a challenge. The standing requirements to pursue an administrative appeal are outside the scope of these regulations. Comment: One Tribe and an individual commenter both requested that paragraph (d) be removed. Response: The Department declines to remove § 151.13(d). A decision made by a BIA Regional Director or other BIA official does not represent the consummation of the agency’s decisionmaking process until either administrative remedies have been exhausted or the appeal period has expired. Furthermore, eliminating § 151.13(d) would require the Assistant Secretary—Indian Affairs to sign each fee-to-trust decision, a responsibility that has been delegated to BIA regional directors to increase efficiency in the process. The majority of fee-to-trust decisions are not challenged, and if the responsibility to decide every application rested on Assistant Secretary—Indian Affairs, it would put a burden on the process and create further backlog of applications. Comment: One Tribe requested that digital publication be accepted for notification along with written publication in § 151.13(d)(2)(iii). • Response: The final rule includes the requirement that written notice be sent to ensure receipt. The final rule does not foreclose using email as an additional form of notification. The Feeto-Trust Handbook will include discussion of instances when email notice can be provided as a courtesy. The Department declines to digitally publish notice of a decision and the right of interested parties to file an appeal in addition to written E:\FR\FM\12DER2.SGM 12DER2 86244 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 notification in the local newspaper. The Department believes that digital publication on the BIA website is unnecessary given that written notice will be provided. Under § 151.13(d)(2)(ii), the Department provides direct written notice of the decision and the opportunity to appeal to interested parties who have made themselves known in writing to the BIA in advance of the decision and State and local governments with regulatory jurisdiction over the land. The Department believes that these direct notices in addition to publication in the local newspaper to notify other potentially interested parties is sufficient notice. Comment: One Tribal commenter expressed strong support for the provision in § 151.13(c)(iii) to immediately acquire land into trust status. • Response: Per these regulations, land will be immediately acquired into trust when the requirements of part 151 have been met. If the decision to take land into trust is made by a BIA official, then the appeal period must expire, or administrative remedies must be exhausted before the land is accepted into trust. Comment: An association of counties expressed concern that the proposed changes to § 151.13 would limit their ability to fully participate in the comment process. • Response: Under the final rule counties can participate in the process through submission of comments. § 151.14 How will the Secretary review title? Comment: One Tribe commented that proposed § 151.14, as written, seems to require applicants to submit title evidence only after ‘‘the Secretary approves a request for the acquisition of land’’ and requested further clarification. • Response: Pursuant to § 151.8(a)(6), title evidence as described under § 151.14 must be submitted as part of an acquisition package in order for the Department to consider the acquisition package complete and ready for review. Additionally, pursuant to § 151.8(a)(6)(i), an acquisition package is not complete until the Secretary completes a PTO based on the title evidence submitted. The Department amended § 151.14 to reflect that title evidence must be submitted as part of the complete acquisition package described in § 151.8. Comment: Two Tribes requested that DOI clarify the standards for title evidence. One Tribe specifical asked that DOI include reference to VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Department of Justice (DOJ) title standards. • Response: The Department understands these requests to be seeking confirmation that the DOJ title standards will be included in § 151.14. Section 151.14(a)(3) aligns with these requests because § 151.14(a)(3) includes reference to DOJ’s title standards. Comment: One Tribe requested that PTOs be shared directly with the applicant Tribe. Additionally, the Tribe requested an additional change to proposed § 151.14 to prevent continued practices that do not align with accepted real estate best practices. Finally, the Tribe requested that qualified Tribal officials be permitted to complete the Certifications of Inspection. Response: The PTO is a lawyer client privileged document. To the extent any issues are identified in the PTO those issues are shared with the applicant so that they can be addressed. It is the policy of the BIA to ensure compliance with all applicable real estate service regulation, requirements, and standards, and to promote sustainable practices. See 52 IAM 1.3. Additionally, based on years of experience in trust transactions, the procedures found in § 151.14 are consistent with accepted real estate best practices. To ensure full compliance with this regulation, BIA will retain responsibilities to complete Certificates of Inspection. Comment: One Tribe suggested a new section regarding indemnification agreements: If a Tribe is willing to accept an encumbrance, liens, or infirmity, the Department will accept the Tribe’s judgment and allow the application to proceed, provided (a) the Tribe enters an indemnification agreement in favor of the BIA with respect to the issue, (b) the risk of liability is low or the magnitude of the liability is low, and (c) the Tribe agrees it can use the property for its intended purpose while the encumbrance remains. • Response: In certain instances, the Department can accept into trust land with an encumbrance, lien or infirmity when the Tribe agrees to enter into an indemnification agreement in favor of the BIA. While not expressly written into the regulations, the ability exists with the Department on a case-by-case basis. Comment: One Tribe suggested that clarification is still needed on what documents of title evidence are sufficient for the acquisition package and whether they are the same as those required if the request for acquisition is approved. • Response: Sufficient documents of title evidence are listed in § 151.14. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Section 151.8(a)(6) now explicitly refers to including title evidence listed in § 151.14. The Department understands that the documentation available to satisfy the criteria under § 151.14(a)(2)(ii) can vary by title company and what type of title document it is willing to issue. For that reason, we have included the term ‘‘or equivalent’’ to provide discretion in determining whether the documentation provided is sufficient to ensure marketable title. Additionally, the Department removed the requirement that the policy of title insurance be less than five (5) years old because the intent is to ensure marketable title which will require an individualized analysis rather than a bright line time limit on the issuance of the policy of title insurance. § 151.15 How will the Secretary conduct a review of environmental conditions? Comment: One county requested that a socio-economic impact report be included as part of the NEPA environmental impact analysis. • Response: In determining the information to be analyzed in an environmental impact analysis, the Secretary shall comply with the requirements of NEPA (43 U.S.C. 4321 et seq.), applicable Council on Environmental Quality regulations (40 CFR parts 1500–1508), and Department regulations (43 CFR part 46) and guidance. Comment: Several Tribes recommended that the Department clarify that Phase I environmental site assessments would not need to be updated except when an evaluation of the pre-acquisition determines environmental conditions exist. • Response: The Department declines to adopt the proposal. The final rule sets forth criteria for Phase I environmental site assessments that aim to simplify such review consistent with the requirements of Departmental Manual 602 DM 2. The Phase I environmental site assessment is the tool the Department uses to identify any environmental liabilities that may be a barrier to acquisition of real property. In many instances the site assessment will need to be updated to account for any remediation completed since the first site assessment or to confirm that no new environmental liabilities are evident on the property. Comment: A Tribal consortium requested additional flexibility around environmental issues, specifically requesting that Tribes be able to assume liability for environmental issues on lands taken into trust. E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 • Response: Nothing in the regulations prohibits a Tribe from assuming liabilities on lands to be taken into trust. Comment: An association of counties and others requested that NEPA analyses be submitted as part of a ‘‘complete application.’’ • Response: The regulation states that an acquisition package is not complete until the public review period for a final EIS or EA has concluded, or the categorical exclusion documentation is completed. Comment: One Tribe requested various clarifications to proposed § 151.15, including why environmental assessments ‘‘end load’’ review of a Phase I environmental site assessment rather than requiring it as a component of a complete application required in § 151.8. • Response: Section 151.8 requires that a complete application include information that allows the Secretary to comply with NEPA and 602 DM 2. Section 151.15(b), however, provides that the Secretary may require the applicant to provide information updating a prior pre-acquisition environmental site assessment (i.e., a Phase I environmental site assessment). This is not an end loading of the process but instead a recognition that certain environmental documents may need to be updated prior to formalizing acceptance of title. § 151.16 How are formalization of acceptance and trust status attained? Comment: A private individual requested that the entirety of proposed § 151.16 be redone and include the sixyear statute of limitation timeframes in line with the APA. • Response: The Department respectfully disagrees. Section 151.13(c) explains that the Assistant Secretary’s decision constitutes a final agency action for purposes of the APA. Interior is retaining the requirement that, if the request will be approved, notice of such approval will be published in the Federal Register. Such publication makes clear that a final agency action has occurred. The Department believes this provides a sufficient timeframe for any interested party to challenge the decision and that explaining the APA’s statute of limitations in the proposed regulation would be unnecessary duplicative. Comment: One Tribe requested that proposed § 151.16(b) require formal notification to the applicable Tribe, so the date of official trust status is certain. • Response: While not included in the regulation, the BIA will publish updated guidance in the FTT Handbook VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 86245 outlining how it will provide notice of the placement of the property in trust. BIA will be updating the FTT Handbook to reflect the changes made by this final rule. Comment: A county requested that the proposed changes to § 151.16 include a final step that all land conveyance documents must be recorded in the county’s land records for the conveyance to be officially recognized. • Response: The final rule does not address recordation in the county records because fee-to-trust is an inherently Federal process. The BIA Division of Land Title Records is responsible for and serves as the office of record for all trust land and restricted land titles for Indian Tribes and individuals. Therefore, the primary requirement under § 151.16 is to record the trust deed with the appropriate Land Title Records Office (LTRO). BIA recognizes that recordation in the county can be beneficial and will publish a handbook outlining how title will be recorded. BIA will be updating the FTT Handbook to reflect the changes made by this final rule. • Response: Section 151.17(a), addresses how applications pending at the time the final rule is promulgated are affected by the final rule. Comment: A State requested that all interested parties be required to consent before Tribes with pending applications can proceed under the new regulations. The State also requested that a pending application processed under the new regulations be reopened for comment. • Response: The Department declines to accept the proposal. The Tribal applicant is best positioned to determine whether it wants its application to be evaluated under prior regulations or the final rule. Proceeding under the final rule does not limit the ability of State and local governments to submit comments on the application. Moreover, reopening the comment period is unwarranted as the final rule contemplates that State and local governments will submit comments on the same topics enumerated under the existing regulations, i.e., ‘‘the acquisition’s potential impacts on regulatory jurisdiction, real property taxes and special assessments.’’ 25 CFR 151.10 (2022). § 151.17 What effect does this part have on pending requests and final agency decisions already issued? Comment: Numerous Tribes expressed concern that under proposed § 151.17, Tribes who submitted prior to the new rules would not benefit from the 120-day time frame. One Tribe also requested that Tribes who previously submitted should have a mechanism to benefit from timely processing. • Response: This is addressed in § 151.17. While the 120-day time frame does not apply to applications submitted prior to this final rule, the Department strives to process pending applications as quickly and efficiently as possible. Also, with the existing backlog, placing all applications on the 120-day timeline at once would present an enormous, if not impossible challenge for the Department. Comment: One Tribe expressed concerned that the language in proposed § 151.17(b) is unclear as to whether presently pending matters in the IBIA will need to start over based on new requirements. • Response: Section 151.17(b) makes it clear that this part does not alter BIA decisions currently on appeal on January 11, 2024. Thus, matters pending in the IBIA will not be affected. Comment: One Tribe requested that Tribes who have pending applications be afforded a choice between the nowin-place rule and the draft rule, should the draft rule be adopted. Comments on General Issues Comment: One State commented that the proposed rule does not comply with Federal laws intended to allow States and local governments meaningful and timely input because the BIA allowed Tribes to comment on a draft prior to the draft being published for public comment. Specifically, the comment alleges that the BIA failed to comply with the Unfunded Mandates Reform Act and Executive Order 13132 which requires Federal agencies to have a process to meaningfully engage with State and local officials on action that have federalism implications. • Response: The process used in formulating the regulation did not deprive States or local governments the ability to comment on the proposed regulation. Executive Order 13175 requires the BIA to consult with Tribes prior to taking any action that would have an impact on tribal governments. The BIA’s consultation sessions with Tribes complied with that executive order. There is no requirement that the BIA engage in a similar process with States or local governments. Regardless, the BIA published a proposed notice of rulemaking in the Federal Register that provided a reasonable time for the submission of comments from the public. Many States and local governments, including the commenter, availed themselves of this opportunity and the BIA considered all submitted comments. Because the proposed PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 86246 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations changes to the rule are largely procedural and do not expand the authority granted to the Secretary under the statute, they would not have a substantial direct effect or impose substantial compliance costs on States or local governments. Therefore, the proposed changes would not implicate the types of federalism concerns contemplated by Executive Order 13132. Comment: A State government commented that the proposed rule eliminates the requirement that the Secretary consider the distance of the acquisition by removing the requirement that the Secretary give greater weight to the concerns’’ raised for off-reservation acquisitions as the distance increases. • Response: The rule does not eliminate the Secretary ability to consider distance in any decision. The rule only eliminates the requirement that the Secretary must give greater weight to concerns raised for those acquisitions that are off-reservation. Comment: A State government commented that the IRA raises serious concerns under the nondelegation doctrine and that several lower court judges have expressed concern that the IRA is an unconstitutional delegation. • Response: Numerous courts have considered and rejected the argument that the IRA violates principles of nondelegation, reasoning that the statute places ‘‘adequate limits’’ on the Secretary’s discretion and that it is ‘‘possible to ascertain whether the will of Congress has been obeyed.’’ South Dakota v. U.S. Dep’t of Interior, 423 F.3rd 790 (8th Cir. 2005) (quotations marks omitted); see also Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 30 (D.C. Cir. 2008), Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007), rev’d on other grounds, Carcieri v. Salazar, 555 U.S. 379 (2009), United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999); Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688, 698 (9th Cir. 1997) (stated in dicta that the land into trust power is a valid delegation). We are not aware of any court decision holding that the IRA is an unconstitutional delegation of authority. Comment: A State government provided a detailed process for notification of new applications to State and local governments as well as for receiving and responding to comments on the application. This proposed process includes notification to States and local governments of an application, requires providing a those governments with a copy of the application along with unspecified other information the BIA may possess, VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 notification to State and local governments that an applicant’s package is complete and then provide that package to them within 10 calendar days upon request, requires the Secretary to consider any and all written comments by State or local governments regardless of the location of the land, and provide the applicant a reasonable time frame in which to respond to the State or local government comments. • Response: We reject the proposed process because it would add to the timeline for action on an application beyond even the current regulations. One of the goals of revising these regulations is to shorten the timeline for processing applications. We believe that the process for notifying States and local governments and the timeline for receiving response from them is adequate for the Secretary to receive relevant information and to make an informed decision. Further, the final rule does not limit the Secretary’s ability to consider any comments on any issues submitted by a State or local government. Comment: One town expressed concerns that if a specific group of Indians became federally recognized and then were allowed to take land into trust in the town, that would result in severe consequences for the town. • Response: These regulations do not provide a process for Federal recognition of any tribal group. The regulations only apply to already recognized Indian Tribes. Further, the final rule clarifies that if a Tribe is recognized under the part 83 process, that any historical evidence submitted during that process demonstrating that they were under Federal jurisdiction in 1934 may be used to determine whether the Secretary has authority to take land into trust for a particular tribe. Comment: One town commented that while the regulations give ‘‘great weight’’ to tribal concerns they do not give any weight to the comments or concerns of a local community or State in the decision-making process. • Response: The final rule provides that the Secretary will give great weight if the acquisition was for specific stated purposes. While the final rule does not give a specific weight to comments and concerns raised by local governments or States it is not true that it gives them no weight. The Secretary will consider any and all comments and concerns raised by local communities or States in making a decision to acquire land in trust for a tribe. Comment: One Tribe suggested that ‘‘interested parties,’’ like State and local governments, be afforded notice and an opportunity to comment on acquisitions PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 because the lack of that accommodation for ‘‘interested parties’’ often ensures that they ultimately file a formal appeal of a favorable decision. • Response: The Department declines to adopt this proposal. In the Department’s experience, most trust acquisition decisions issued by BIA officials are not challenged by any party. Given the changes in regulatory jurisdiction that occur as a result of acquiring land into trust, notice to State and local governments and consideration of comments received from them inform the Secretary’s review of applications. Private individuals or entities have no regulatory jurisdiction over land and thus the same considerations are not present with respect to private parties. Such private parties can nevertheless submit comments on pending applications to the extent they want to. Comment: Many counties, States, and local governments expressed general and broad opposition to the proposed regulations. One commenter asked that the Regulations include a citation to Constitutional provisions that provide authority for Congress to acquire lands for Indians. Another suggested the proposed rule would be invalid due to uncertainties regarding constitutional and statutory authority for the United States to take land into trust. That same commenter expressed significant concerns about federalism implications of the proposed rule. A separate commenter expressed concern that the proposed rule would unravel NEPA because it may result in decreased communication and cooperation between Tribes and local governments. Finally, a State commented that the proposed rule is unlawful under the APA because the Department must consider impacts on State and local governments. • Response: We disagree with comments suggesting the final rule violates the APA or raises federalism concerns. The rulemaking complies with the APA. Notice of the proposed rulemaking provided an accurate picture of the Department’s reasoning and provided interested parties an opportunity to meaningfully commend upon the proposed rule. The Department has considered potential impacts to State and local governments, including those raised in comments, and this Notice memorializes that consideration. Section 5 of the IRA does not violate principles of federalism because the Indian Commerce Clause grants Congress the power ‘‘[t]o regulate commerce . . . with the Indian Tribes.’’ U.S. Const. art. I, section 8, cl. 3. The Supreme Court has consistently E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations interpreted Congress’ authority to legislate in matters involving Indian affairs broadly. See, e.g., United States v. Lara, 541 U.S. 193, 200, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004). The Secretary’s exercise of their discretionary land into fee-to-trust authority under section 5 of the IRA is a valid exercise of the power delegated to Congress by the Constitution. Under Department regulations, the promulgation of regulations is categorically excluded from NEPA. See 43 CFR 46.210(i) and Environmental Statement Memorandum 13–4, Use of Departmental Categorical Exclusion for Policies, Directives, Regulations, and Guidelines, Michaela E. Noble, Director Office of Environmental Policy and Compliance (Sept. 24, 2018). Furthermore, the proposed rule does not modify the procedural requirements of NEPA. Comment: Some State and local governments argued that the presumptions unlawfully strip the Secretary of the case-by-case discretion required under the IRA. • Response: The policy presumptions in the final rule cannot divest the Secretary’s statutory discretion as authorized in the IRA. As explained herein, the presumptions adopted through the final rule are consistent with the purposes of the IRA and the policy goals of Tribal selfdetermination, self-government, and economic development reflected in that statute and other laws authorizing trust acquisitions. The Secretary retains statutory discretion to approve or deny an application after a holistic review of trust acquisition applications, supporting materials, and comments submitted on applications, which of course may demonstrate that a particular presumption should be rebutted. Comment: A Tribal consortium expressed concern over how the process would work in Alaska, the need to account for the Alaska Native Claims Settlement Act, as well as other unique issues surrounding land in Alaska. It was also suggested that the expedited timelines in the proposed rule might be too short to allow the Department to effectively exercise fee-to-trust trust authorities in Alaska. • Response: The Department is working with the BIA Alaska Regional Office to ensure it has all the necessary skills and equipment to process fee-totrust applications in Alaska. In November 2022, the Department approved the first land into trust acquisition in Alaska in five years, and the second fee-to-trust acquisition in Alaska since the passage of the Alaska VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Native Claims Settlement Act in 1971. The Department anticipates further applications may be filed for land into trust in Alaska and the BIA will continue to provide resources to the Region for assistance with processing applications consistent with this final rule, Sol. Op. M–37076, and Akiachak Native Community v. Jewell, 935 F. Supp. 2d 195 (D.D.C. 2013), vacated as moot, 827 F.3d 100 (D.C. Cir. 2016). Comment: A former attorney general submitted comments expressing disapproval of the removal of BIA consideration of ‘‘jurisdictional problems and potential conflicts of land use.’’ These concerns are rooted in law enforcement jurisdiction issues, which they assert are complicated in Indian country and the proposed changes would affect these issues. • Response: The Secretary must consider ‘‘jurisdictional problems and potential conflicts of land use’’ when State and local governments raise these issues in comments submitted under §§ 151.11(c) and 151.12(d). The Secretary will carefully consider the potential conflicts and any associated impact on public safety and law enforcement jurisdiction. Comment: Many Tribes suggested that an electronic filing system would be helpful in providing a streamlined platform for reviewing applications and following where applications are in the process. • Response: The Department is mindful that improving the technologies used to implement these regulations is key to meeting the goal of improving efficiency and reducing the time it takes to process an application. The BIA is working to improve the current system—TAAMS—used to track fee-totrust applications, and ensure it is up to date, and will continue to explore technological improvements including electronic filing systems to improve efficiency and applicant customer service. Comment: Some comments identified minor grammatical or punctuation errors. • Response: The Department made minor non-substantive corrections identified by commenters. Comment: Several comments were received that were not directly responsive to the proposed regulations. • Response: The Department has reviewed all comments received in response to the part 151 Notice of Proposed Rulemaking. Comments not directly responsive to the proposed regulations were not considered as part of the rulemaking and are not responded to here. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 86247 VI. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and E.O. 13563) E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is significant under E.O. 12866 section 3(f), but not significant under section 3(f)(1). Executive Order 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. 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. The Department and BIA developed this final rule in a manner consistent with these requirements. B. Regulatory Flexibility Act The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The final rule 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. The final rule codifies longstanding Departmental policies and interpretation of case law. Tribal governments and individual Indians seeking to have fee-lands placed in trust by the United States for the benefit of Tribal governments and individual Indians will be able rely on the substantive provisions in the final rule for guidance on what may or may not be included in a land acquisition request package. Both § 151.9, which addresses on-reservation acquisitions, and § 151.10, which addresses acquisition of lands contiguous to reservation boundaries, are consistent with existing case law and are presumed to further Tribal interests and the adverse impacts to local governments and small entities are presumed to be minimal. Local governments, after receiving notice from the BIA that a Tribal government or individual Indian E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 86248 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations submitted a land acquisition request package, are free to provide written comments, within 30 calendar days, to rebut the presumption of minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments. Furthermore, under both § 151.1, acquisition of lands outside of or noncontiguous to reservation boundaries, and § 151.12, an initial Indian acquisition, the Secretary will presume that the Tribal government will benefit from the lands acquisition. However, under both §§ 151.11 and 151.12, the Secretary is required to provide notice to State and local governments to submit written comments to rebut the presumption of minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments. information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required. C. Congressional Review Act (CRA) This final rule does not meet the criteria in 5 U.S.C. 804(2). Specifically, it: (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. This final rule complies with the requirements of E.O. 12988. Specifically, this final 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. D. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement analyzing and estimating anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and Tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. See 2 U.S.C. 1532. The Act further requires that the agency publish a summary of such a statement with the agency’s proposed and final rules. This final 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 final rule would not have a significant or unique effect on State, local, or Tribal governments or the private sector because this final rule affects only individual Indians and Tribal governments that petition the Department to take land into trust for their benefit. A statement containing the VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 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 final 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) H. Consultation With Indian Tribes (E.O. 13175) The Department 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 final 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 final 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. The Department also held three Tribal consultation sessions during the public comment period. The first Tribal consultation was held in person on January 13, 2023, at the Bureau of Land Management Training Center in Phoenix, Arizona. The next two Tribal consultations were conducted virtually on Zoom. They occurred on January 19, 2023, and January 30, 2023. Following the consultation sessions, the Department accepted written comments until March 1, 2023. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 I. Paperwork Reduction Act This final rule does not contain any new collection of information that requires approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has previously approved the information collection requirements associated with the acquisition of lands through purchase, relinquishment, gift, exchange, or assignment within or without existing reservations for the purpose of providing land for Indian Tribes and assigned OMB Control Number 1076–0100, which expires January 31, 2024). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. J. National Environmental Policy Act (NEPA) This final 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 final 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 final 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 l(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. M. Small Business Regulatory Enforcement Fairness Act This final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This final rule: E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 (a) Does not have an annual effect on the economy of $100 million or more because the funding available through JOM does not approach this amount. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, Tribal or local government agencies, or geographic regions because this rule affects only certain education contracts. (c) Does 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 because this rule affects only certain education contracts. N. Regulatory Impact Analysis Summary: This final rule is intended to make the fee-to-trust process less burdensome and more cost-efficient. In addition, the Department seeks to improve the fee-to-trust process because of the many benefits afforded to Tribal governments and their citizens, such as heightened regulatory jurisdiction over the lands, exemptions from State and local taxation, and restoration of Tribal homelands. This final rule also addresses delays in the current land acquisition process. The average length of time to receive a final fee-to-trust decision is approximately 985 days. Currently, there are 941 cases pending approval by the Department—the majority of which are for noncontroversial, on-reservation acquisitions. This final rule will reduce the time it takes BIA to process fee-totrust applications going forward and address the existing backlog. Benefits: The anticipated benefits of the final rule include making the fee-totrust process less burdensome and more cost-efficient and improve agency processing by: • Reducing uncertainty and Tribal expenses by codifying standards that implement Carcieri v. Salazar, 555 U.S. 379 (2009), to increase clarity and certainty in determining the Secretary’s authority to take land in trust for Tribes. Tribes will benefit by having the standards in the regulations and not having to ascertain these standards from existing case law, Departmental guidance, and previous determinations, and not risking lengthy litigation on the standards the Department considers. • Reducing processing time and uncertainty by identifying the documents needed for a complete application, after which the BIA will issue a decision within 120 days. • Increasing efficiency for Tribes and the Department by analyzing applications as either on-reservation, contiguous to a reservation, an initial VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 acquisition for landless Tribes, or offreservation, recognizing that each category requires specific criteria for an appropriate analysis. • Reducing expense for Tribes by clarifying when environmental studies and reports are to be updated, thus, eliminating the need to maintain the current status of studies and reports when a decision date is not known by the Tribe. Anticipated Impact: Transfers between Tribes and State and local jurisdictions. To the extent the final rule accelerates the fee-to-trust process, Tribes may receive tax exemptions sooner. If land remains taxable for a shorter period of time, there may be a reduction in taxes collected from Tribes by State and local jurisdictions. The anticipated costs of implementing the final rules are negligible: • Tribes will see reduced expenses in the application process from clear standards and timelines. • States and local jurisdictions will see little, if any, additional expense because the final rule’s provisions for providing comments on regulatory jurisdiction, real property taxes, and special assessments remain the same. In some cases, States or local governments may incur additional expense if they wish to provide information to rebut the presumption of minimal adverse impacts to regulatory jurisdiction, real property taxes, and special assessments. • BIA will see increased efficiencies in the application process, such as fewer hours spent processing applications and communicating with applicants on missing documents, because applications will be more thorough. Alternative Policy Approaches: An alternative policy approach would be to maintain the existing regulations; however, this would result in: • Continued lack of clarity and certainty for Tribes and need to hire outside counsel to meet Carcieri requirements and prepare applications, and continued litigation over Carcieri requirements and part 151 standards. Tribes would have to continue to incur costs to hire outside counsel. • Continued lack of a policy to acquire land in trust for 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. This policy recognizes purposes for PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 86249 which Tribes acquire land in trust, many of which were not contemplated in the existing regulation, thus, reducing additional justification for the acquisition. Conclusion: Therefore, maintaining the current regulation likely would increase legal costs for applicant Tribes as compared to final rule and its measures to promote cost efficiency. Maintaining the current regulation could also limit certainty about the Secretary’s authority due to the Carcieri decision and omit information that could streamline Tribal applications, including the absence of land acquisition policy to support Tribal selfdetermination and sovereignty, no list of documents needed for a complete application, no guidance on the weight accorded to certain Tribal land uses, and criteria enabling certain presumptions. List of Subjects in 25 CFR Part 151 Administrative practice and procedure, Indians—land acquisition. ■ For the reasons set forth in the preamble, the Department of the Interior, Bureau of Indian Affairs, revises 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 of and noncontiguous to the boundaries of an Indian reservation? 151.11 How will the Secretary evaluate a request involving land outside of and noncontiguous to 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? E:\FR\FM\12DER2.SGM 12DER2 86250 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 151.16 How are formalization of acceptance and trust status attained? 151.17 What effect does this part have on pending requests and final agency decisions already issued? 151.18 Severability. Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 403a–2, 409a, 1466, 1495, 5107, 5108, 5136, 5138, 5201, 5202, 5322, 5341; Pub. L. 71–780, 46 Stat. 1471, amended by Pub. L. 72–231, 47 Stat. 474; Pub. L. 74–816, 49 Stat. 1967, amended by Sec. 10, Pub. L. 80–336, 61 Stat. 734; Secs. 3, 4, 6, Pub. L. 76–238, 53 Stat. 1129, 1130; Sec. 7, Pub. L. 79–706, 60 Stat. 969, amended by Pub. L. 91–627, 84 Stat. 1874; Pub. L. 81–226, 63 Stat. 605; Pub. L. 84–188, 69 Stat. 392, amended by Pub. L. 88– 540, 78 Stat. 747, amended by Sec. 213, Pub. L. 100–581, 102 Stat. 2941, amended by Sec. 1, Pub. L. 101–301, 104 Stat. 206; Pub. L. 84– 592, 70 Stat. 290, amended by Pub. L. 91– 274, 84 Stat. 301; Pub. L. 84–772, 70 Stat. 626; Sec. 10, Pub. L. 87–231, 75 Stat. 505; Pub. L. 88–196, 77 Stat. 349; Pub. L. 88–418, 78 Stat. 389; Pub. L. 90–335, 82 Stat. 174, amended by Pub. L. 93–286, 88 Stat. 142; Pub. L. 90–534, 82 Stat. 884; Pub. L. 92–312, 86 Stat. 216; Pub. L. 92–377, 86 Stat. 530; Pub. L. 92–443, 86 Stat. 744; Sec. 11, Pub. L. 93–531, 88 Stat. 1716, amended by Sec. 4, Pub. L. 96–305, 94 Stat. 930, amended by Sec. 106, 98–603, 98 Stat. 3157, amended by Secs. 4(b), 8, Pub. L. 100–666, 102 Stat. 3930, 3933. § 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 Federal law; acquisition of land in trust status by inheritance or escheat; or transfers of land into restricted fee status unless required by Federal law. ddrumheller on DSK120RN23PROD with RULES2 § 151.2 How are key terms defined? Contiguous means two parcels of land having a common boundary notwithstanding the existence of nonnavigable 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 is held by a Tribe or individual Indian in trust or restricted status and includes both individually owned Indian land and Tribal land. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 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 currently has no land 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 that covers 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 nonrecord 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 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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 (48 Stat. 988; 25 U.S.C. 5124) or section 3 of the Act of June 26, 1936 (49 Stat. 1967; 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. § 151.3 What is the Secretary’s land acquisition policy? (a) 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. 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 acquisition of land in trust status under these regulations, 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 E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 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. ddrumheller on DSK120RN23PROD with RULES2 § 151.4 How will the Secretary determine that statutory authority exists to acquire land in trust status? When a Tribe’s application relies on the first definition of ‘‘Indian’’ in the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 5101 et seq.) (IRA) to establish statutory authority for the proposed acquisition, the Secretary will apply the following criteria to determine whether the Tribe was under Federal jurisdiction in 1934. (a) In determining whether a Tribe was ‘‘under Federal jurisdiction’’ in 1934 within the meaning of section 19 of the IRA (48 Stat. 988; 25 U.S.C. 5129), the Secretary shall consider evidence of Federal jurisdiction in the manner provided in paragraphs (a)(1) through (5) of this section. (1) Conclusive evidence establishes in and of itself both that a Tribe was placed under Federal jurisdiction and that this jurisdiction remained intact 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 (48 Stat. 988; 25 U.S.C. 5125) to accept 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) Land held in trust by the United States for the Tribe in 1934. (iii) Secretarial approval of a Tribal constitution under section 16 of the IRA as recorded in the Haas List or other Federal Government document; (iv) Secretarial approval of a charter of incorporation issued to a Tribe under section 17 of the IRA as recorded in the VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 Haas List or other Federal Government document; (v) An Executive Order for a specific Tribe that was still in effect in 1934; (vi) Treaties to which a Tribe is a party, ratified by the United States and still in effect as to that party in 1934; (vii) Continuing existence in 1934 or later of treaty rights guaranteed by a treaty ratified by the United States; or (viii) Other evidence that the Secretary determines is conclusive in a particular case. (2) Presumptive evidence is indicative that a Tribe was placed under Federal jurisdiction in or before 1934 and may indicate that such jurisdiction remained intact 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 land claim settlements and termination legislation enacted after 1934, which acknowledges the existence of a government-to-government relationship with a Tribe in or before 1934; or (vi) Satisfaction of the criterion for Federal acknowledgment now located at 25 CFR 83.11(a) and previously located at 25 CFR 83.7(a), requiring that a Tribe ‘‘has been identified as an American Indian entity on a substantially continuous basis,’’ through evidence that brought the Tribe under Federal jurisdiction in or before 1934; or (vii) Other evidence that the Secretary determines is presumptive in a particular case. (3) In the absence of evidence identified above as 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 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 86251 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’s acquisition of land for a Tribe in implementing the Indian Reorganization Act of 1934, 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, 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, the approval of contracts between a Tribe and non-Indians; enforcement of the Trade and Intercourse Acts (Indian trader, liquor laws, and land transactions), and the provision of health and social services to a Tribe or Tribal members. (4) When a Tribe is recognized under the 25 CFR part 83 process, the Secretary may rely on any evidence within the part 83 record that the Tribe was under Federal jurisdiction in or before 1934, consistent with § 151.4(a)(2) and (3). (5) Evidence of executive officials disavowing Federal jurisdiction over a Tribe in certain instances is not conclusive evidence of a Tribe’s Federal jurisdictional status. This is because such disavowals cannot themselves revoke Federal jurisdiction over a Tribe. (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 Department 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:\FR\FM\12DER2.SGM 12DER2 86252 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations (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. § 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 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. § 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 off-reservation, the following 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 including when: (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. ddrumheller on DSK120RN23PROD with RULES2 § 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. VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 § 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 analysis developed by the Secretary, as described in paragraphs (a)(1) through (9) of this section: (a) A complete acquisition package consists of the following: (1) The applicant must submit a 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; (ii) If the applicant is an individual Indian, the individual’s written request must be a signed letter requesting trust status; (2) The applicant must submit documentation providing the information evaluated by the Secretary under § 151.9(a)(2) and (3), § 151.10(a)(2) and (3), § 151.11(a)(2) and (3), or § 151.12(a)(2) and (3) depending on which section applies to the application; (3) The applicant must submit a statement identifying the existence of statutory authority for the acquisition including, if applicable, any supporting evidence that the Tribe was under Federal jurisdiction in 1934 pursuant to § 151.4. (4) The applicant must submit a description of the land as follows: (i) An aliquot part, government lot, parcel identified on a Government Land Office or Bureau of Land Management official survey plat, or lot block subdivision (LBS) 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 the methods listed in paragraph (a)(4)(i) of this section, including a statement of the estate to be acquired. The survey may be completed by a land surveyor registered in the jurisdiction in which the land is PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 located when the land being acquired is fee simple land; and (iii) An application package is not complete until the Secretary determines that the legal description or survey is sufficient. (5) The applicant must submit information that allows the Secretary to comply with the National Environmental Policy Act (NEPA) and 602 DM 2, Land Acquisitions: Hazardous Substances Determinations pursuant to § 151.15; and (i) An acquisition package is not complete until the public review period of a final environmental impact statement or, where appropriate, the final environmental assessment has concluded, or the categorical exclusion documentation is complete. (ii) An acquisition package is not complete until a pre-acquisition Phase I environmental site assessment, and if necessary, a Phase II environmental site assessment completed pursuant to 602 DM 2 is determined to be sufficient by the Secretary. (6) The applicant must submit title evidence pursuant to § 151.14. (i) An acquisition package is not complete until the Secretary completes a Preliminary Title Opinion based on such evidence; (7) The Secretary shall send notification letters pursuant to § 151.9, § 151.10, § 151.11, or § 151.12. (8) The applicant must submit a statement that any existing covenants, easements, or restrictions of record will not interfere with the applicant’s intended use of the land; and (9) The applicant must submit 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, the Secretary shall: (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. § 151.9 How will the Secretary evaluate a request involving land within the boundaries of an Indian reservation? (a) The Secretary shall 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; (2) If the applicant is an individual Indian, the need for additional land, the E:\FR\FM\12DER2.SGM 12DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 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 acquiring land that serves any of the following purposes, in accordance with § 151.3: (1) Furthers Tribal interests by establishing a Tribal land base or protects Tribal homelands; (2) Protects sacred sites or cultural resources and practices; (3) Establishes or maintains conservation or environmental mitigation areas; (4) Consolidates land ownership; (5) Reduces checkerboarding; (6) Acquires land lost through allotment; (7) Protects treaty or subsistence rights; or (8) Facilitates Tribal selfdetermination, 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 further the Tribal interests described in paragraph (b) of this section, and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved. (d) Upon receipt of a written request to have land acquired in trust within the boundaries of an Indian reservation the Secretary shall notify the State and local governments with regulatory jurisdiction over the land to be acquired of the applicant’s request. The notice will inform the State or local government that each will be given 30 calendar days in which to provide written comments to rebut the presumption of minimal adverse impacts to 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 VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 the Tribal community will benefit from the acquisition. § 151.10 How will the Secretary evaluate a request involving land contiguous to the boundaries of an Indian reservation? (a) The Secretary shall 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; (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 acquiring land that serves any of the following purposes, in accordance with § 151.3: (1) Furthers Tribal interests by establishing a Tribal land base or protects Tribal homelands; (2) Protects sacred sites or cultural resources and practices; (3) Establishes or maintains conservation or environmental mitigation areas; (4) Consolidates land ownership; (5) Reduces checkerboarding; (6) Acquires land lost through allotment; (7) Protects treaty or subsistence rights; or (8) Facilitates Tribal selfdetermination, economic development, or Indian housing. (c) When reviewing a Tribe’s request for land contiguous to an Indian reservation, the Secretary presumes that the acquisition will further the Tribal interests described in paragraph (b) of this section, and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should be approved. (d) Upon receipt of a written request to have land contiguous to an Indian reservation acquired in trust status, the Secretary shall notify the State and local governments with regulatory jurisdiction over the land to be acquired. The notice will inform the State or local government that each will PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 86253 be given 30 calendar days in which to provide written comments to rebut the presumption of minimal adverse impacts to 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. § 151.11 How will the Secretary evaluate a request involving land outside of and noncontiguous to the boundaries of an Indian reservation? (a) The Secretary shall consider the criteria in this section when evaluating requests for the acquisition of land 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; (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 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 acquiring land that serves any of the following purposes, in accordance with § 151.3: (1) Furthers Tribal interests by establishing a Tribal land base or protects Tribal homelands; (2) Protects sacred sites or cultural resources and practices; (3) Establishes or maintains conservation or environmental mitigation areas; (4) Consolidates land ownership; (5) Reduces checkerboarding; (6) Acquires land lost through allotment; (7) Protects treaty or subsistence rights; or (8) Facilitates Tribal selfdetermination, economic development, or Indian housing. (c) Upon receipt of a written request to have land outside the boundaries of E:\FR\FM\12DER2.SGM 12DER2 86254 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations an Indian reservation acquired in trust status, the Secretary shall notify the State and local governments with 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 and potential conflicts of land use. The Secretary presumes that the Tribe will benefit from the acquisition. ddrumheller on DSK120RN23PROD with RULES2 § 151.12 How will the Secretary evaluate a request involving land for an initial Indian acquisition? (a) The Secretary shall 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; (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 acquiring land that serves any of the following purposes, in accordance with § 151.3: (1) Furthers Tribal interests by establishing a Tribal land base or protects Tribal homelands; (2) Protects sacred sites or cultural resources and practices; (3) Establishes or maintains conservation or environmental mitigation areas; (4) Consolidates land ownership; (5) Reduces checkerboarding; (6) Acquires land lost through allotment; (7) Protects treaty or subsistence rights; or (8) Facilitates Tribal selfdetermination, economic development, or Indian housing. (c) When reviewing a request for a Tribe that does not have a reservation or land held in trust, the Secretary presumes that the acquisition will VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 further the Tribal interests described in paragraph (b) of this section, and adverse impacts to local governments’ regulatory jurisdiction, real property taxes, and special assessments will be minimal, therefore the application should 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 shall notify the State and local governments with 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 to rebut the presumption of minimal adverse impacts to 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 and potential conflicts of land use. The Secretary presumes that the Tribe will benefit from the acquisition. § 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 notice in the Federal Register of the decision to acquire land in trust status under this part; and (iii) Immediately acquire the land in trust status under § 151.16 after the date such decision is issued and upon fulfillment of the requirements of any other Department of the Interior requirements. PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 (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 under part 2 of this chapter. (2) If the official approves the request, the official shall: (i) Promptly provide the applicant with the decision; (ii) Promptly provide written notice, by U.S. mail or personal delivery, of the decision and the right, if any, to file an administrative appeal of such decision under part 2 of this chapter and 43 CFR part 4, subpart D to: (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 under part 2 of this chapter; and (iv) Immediately acquire the land in trust status under § 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 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 the date of receipt of the decision. (4) Any party who wishes to seek judicial review of an official’s decision E:\FR\FM\12DER2.SGM 12DER2 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations acceptance of the land in trust status if the Secretary determines that the liens, encumbrances, or infirmities make title to the land unmarketable. must first exhaust administrative remedies under 25 CFR part 2 and under 43 CFR part 4, subpart D. § 151.14 title? How will the Secretary review ddrumheller on DSK120RN23PROD with RULES2 (a) The applicant must submit title evidence as part of a complete acquisition package as described in § 151.8 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 the policy of title insurance was issued to the applicant or current owner to the present. The Secretary may accept a preliminary title report or equivalent document 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, subject to the requirements of paragraph (b) of this section. (3) The applicant may choose to provide title evidence meeting the title standards issued by the U.S. Department of Justice, 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 VerDate Sep<11>2014 18:53 Dec 11, 2023 Jkt 262001 § 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 1500–1508), 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 § 151.16, that the applicant provide information updating a prior pre-acquisition environmental site assessment conducted under 602 DM 2. (1) If no recognized environmental conditions or other environmental issues of concern are identified in the pre-acquisition environmental site assessment or before formalization of acceptance and all other requirements of this section and §§ 151.13 and 151.14 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 or before formalization of acceptance, 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 9990 86255 any such issues of concern prior to the formalization of acceptance. § 151.16 How are formalization of acceptance and trust status attained? (a) The Secretary shall formalize acceptance of land in trust status by signing an instrument of conveyance. The Secretary shall sign the instrument of conveyance after the requirements of §§ 151.13, 151.14, and 151.15 have been met. (b) The land will attain trust status when the Secretary signs the instrument of conveyance. (c) The Secretary shall record the deed with LTRO pursuant to part 150 of this chapter. § 151.17 What effect does this part have on pending requests and final agency decisions already issued? (a) Requests pending on January 11, 2024 will continue to be processed under 25 CFR part 151 (revised as of April 1, 2023) unless the applicant requests in writing to proceed under this part. (1) Upon receipt of such a request, the Secretary shall process the pending application under this part, except for § 151.8(b)(2). (2) The Secretary shall consider the comments of State and local governments submitted under the notice provisions of 25 CFR part 151 (revised as of April 1, 2023). (b) This part does not alter decisions of Bureau of Indian Affairs Officials under appeal on January 11, 2024 or final agency decisions made before January 11, 2024. § 151.18 Severability. If any provision of this part, or any application of a provision, is stayed or determined to be invalid by a court of competent jurisdiction, the remaining provisions or applications are severable and shall continue in effect. Bryan Newland, Assistant Secretary—Indian Affairs. [FR Doc. 2023–27077 Filed 12–11–23; 8:45 am] BILLING CODE 4337–15–P E:\FR\FM\12DER2.SGM 12DER2

Agencies

[Federal Register Volume 88, Number 237 (Tuesday, December 12, 2023)]
[Rules and Regulations]
[Pages 86222-86255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27077]



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Vol. 88

Tuesday,

No. 237

December 12, 2023

Part II





Department of the Interior





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Bureau of Indian Affairs





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25 CFR Part 151





Land Acquisitions; Final Rule

Federal Register / Vol. 88 , No. 237 / Tuesday, December 12, 2023 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 151

[245A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF71


Land Acquisitions

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: Section 5 of the Indian Reorganization Act (IRA or Act) 
authorizes the Secretary of the Interior (Secretary) to acquire lands 
in trust for the benefit of Tribal governments and individual Indians. 
This final rule provides the procedures governing the discretionary 
acquisition of lands into trust, often referred to as the fee-to-trust 
process, under the Act. Since these regulations were first promulgated 
in 1980, the Bureau of Indian Affairs (BIA) has developed extensive 
experience in the fee-to-trust acquisition process. Relying on that 
experience and input from multiple stakeholders, this final rule makes 
the fee-to-trust process more efficient, simpler, and less expensive to 
support restoration of Tribal homelands.

DATES: This final rule is effective on January 11, 2024.

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 final 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 and Background
II. Acquisition of Land in Trust Process
III. Overview of the Final Rule
IV. Summary of Final Rule and Changes From the Proposed Rule to the 
Final Rule
V. Public Comments on the Proposed Rule and Response to Comments
VI. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    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. Energy Effects (E.O. 13211)
    L. Clarity of This Regulation
    M. Small Business Regulatory Enforcement Fairness Act
    N. Regulatory Impact Analysis

I. Statutory Authority and Background

    Congress enacted the Indian Reorganization Act (IRA) in 1934 to 
address the devasting effects of prior policies and to secure a land 
base for Indian tribes to engage in economic development and self-
determination. Act of June 18, 1934, Pub. L. 73-383, 48 Stat. 984 
(codified as amended at 25 U.S.C. 5101 through 5129). Congress 
expressly authorized ``the Secretary, in his discretion,'' under 
section 5 of the IRA, to ``acquire through purchase, relinquishment, 
gift, exchange, or assignment, any interest in lands, water rights or 
surface rights to lands, within or without existing reservations, 
including trust or otherwise restricted allotments whether the allottee 
be living or deceased, for the purpose of providing land for Indians'' 
as the term is defined in section 19 of the IRA Id. at section 5, 
codified at 25 U.S.C. 5108; id. at section 19, codified at 25 U.S.C. 
5129. The regulations at 25 CFR part 151 (part 151) implement this 
authority and provide the process by which Tribes submit applications 
to the Department and the criteria under which the Secretary will 
review the applications.
    In October 2021, the Department of the Interior (Department) held 
consultations on the protection and restoration of tribal homelands and 
used the feedback from these consultations to inform draft revisions to 
the part 151 regulations. The Department then held four consultation 
sessions on the draft revisions in May 2022. Utilizing feedback from 
those consultations, the Department published the proposed rule on 
December 5, 2022, 87 FR 74334, and held three Tribal consultation 
sessions during the public comment period. The first Tribal 
consultation was held in person on January 13, 2023, at the Bureau of 
Land Management Training Center in Phoenix, Arizona. The next two 
Tribal consultations were conducted virtually on Zoom, which occurred 
on January 19, 2023, and January 30, 2023. Following the consultation 
sessions, the Department accepted written comments until March 1, 2023.

II. Acquisition of Land in Trust Process

    The acquisition of land in trust is the transfer of fee land title 
from an eligible Indian Tribe or eligible Indian individual(s) to the 
United States of America, in trust, for the benefit of the eligible 
Indian Tribe or eligible Indian individual(s). Indian Tribes and 
individual Indian people who meet the requirements established by 
Federal statutes and further defined in Federal regulations are 
eligible to apply for a fee-to-trust land acquisition. All applications 
for a fee-to-trust acquisition must be in writing and specifically 
request that the Secretary of the Interior take land into trust for the 
benefit of the applicant. Applications shall be submitted to the BIA 
office that has jurisdiction over the lands contained in the 
application.
    The applicant must provide a legal description of the land to be 
acquired, the legal name of the eligible Indian Tribe or individual, 
proof of an eligible Indian Tribe or eligible individual(s), the 
specific reason the applicant is requesting that the United States of 
America acquire the land for the applicant's benefit, title evidence 
addressing the lands to be acquired and information that allows the 
Secretary of the Interior to comply with the National Environmental 
Policy Act (NEPA) (43 U.S.C. 4321 et seq.) and 602 Departmental Manual 
2 (602 DM 2)--Hazardous Substances. Each application is evaluated to 
determine if the applicable criteria defined in part 151 have been 
addressed. State and local governments having regulatory jurisdiction 
over the land contained in the application will be notified upon 
written receipt of an application for a fee-to-trust acquisition. The 
notice will inform the entities that each will be given 30 days in 
which to provide written comments as to the acquisition's potential 
impacts on regulatory jurisdiction, real property taxes and special 
assessments. The official authorized to accept the request to fee-to-
trust acquisition will decide whether to approve the application and 
acquire the land in trust. All decisions to accept or deny a fee-to-
trust acquisition shall be in writing. The length of time to complete 
the process varies depending on completion of the required steps by the 
applicant and the BIA.

III. Overview of the Final Rule

    This final rule updates the Department's part 151 regulations which 
govern how the BIA responds to, considers, and processes applications 
from Tribal governments and individual Indians to acquire land in trust 
status. The Bureau of Indian Affairs (BIA) has acquired over a million 
acres of land into trust for Tribes and individual Indians since 
Congress passed the IRA in 1934. See 87 FR 74334, 74335 (Dec.

[[Page 86223]]

5, 2022). This final rule is intended to make the fee-to-trust process 
less burdensome and more cost-efficient. In addition, the Department 
seeks to improve the fee-to-trust land acquisition process because of 
the many benefits afforded to Tribal governments and their citizens, 
such as heightened regulatory jurisdiction over the lands, exemptions 
from State and local taxation, and restoration of Tribal homelands.
    This final rule addresses delays in the current land acquisition 
process. The average length of time to receive a final fee-to-trust 
decision is approximately 985 days. Currently, there are 941 cases 
pending approval by the Department--the majority of which are for non-
controversial, on-reservation acquisitions. This final rule will reduce 
the time it takes BIA to process land into trust applications going 
forward and address the existing backlog.
    The final rule affirms the Secretary's policy to actively implement 
the IRA's discretionary land into trust authority in a manner that 
supports self-determination and strengthens Tribal sovereignty. The 
final rule also furthers implementation of subsequent congressional 
enactments, such as the Indian Land Consolidation Act (ILCA) and the 
American Indian Probate Reform Act's (AIPRA) amendments to ILCA, which 
sought to ``prevent further fractionation of Indian trust allotments, 
consolidate fractional interests and their ownership into usable 
parcels, consolidate those interests in a manner that enhances Tribal 
sovereignty, promote Tribal self-sufficiency and self-determination, 
and reverse the effects of the allotment policy on Indian Tribes.'' 
Indian Land Consolidation Act, Public Law 97-459, 96 Stat. 2515; 
American Indian Probate Reform Act of 2004, Public Law 110-453, 118 
Stat. 1804 (codified as amended at 25 U.S.C. 2201 through 2221). The 
Secretary's land acquisition policy recognizes these objectives and 
that a Tribal land base ``enhances Tribal sovereignty by accreting land 
to the Tribes on which they can offer Tribal services and engage in 
enterprises that promote Tribal self-sufficiency and self-
determination.'' See, e.g., Quinault Indian Nation v. Northwest 
Regional Director, Bureau of Indian Affairs, 48 IBIA 186, 203 (2008)., 
48 IBIA 186, 203 (2008).
    Through this rulemaking, the Department seeks to improve processing 
timelines by establishing a 120-day time frame for issuing a decision 
once the BIA receives a complete application package. This contrasts 
with no timeline in the current rule. The average length of time to 
receive a final fee-to-trust decision is approximately 985 days. 
Currently, there are 941 cases pending approval by the Department--the 
majority of which are for non-controversial, on-reservation 
acquisitions. The final rule also incorporates the Department's process 
for determining whether a Tribe was ``under Federal jurisdiction'' in 
1934, as required under Carcieri v. Salazar, 555 U.S. 379 (2009).
    The final rule articulates criteria for processing four different 
types of land acquisition: on-reservation, contiguous, off-reservation, 
and the newly identified initial acquisition. Each acquisition includes 
certain presumptions intended to improve efficiency based on the BIA's 
longstanding practices and experience. Several other changes to the 
regulations seek to solve problems and remove obstacles for Tribes and 
individual Indians engaged in the BIA's land acquisition process.

IV. Summary of Final Rule and Changes From Proposed Rule to Final Rule

    On December 5, 2022, the Department published the proposed rule, 87 
FR 74334. The sections below discuss the changes from the proposed rule 
to the final rule.

Sec.  151.1 What is the purpose of this part?

    The final rule clarifies that this regulation does not govern 
acquisitions mandated by Federal law. The Department has issued 
guidance concerning such mandatory acquisitions, including the guidance 
found in the BIA's Fee-to-Trust Handbook (FTT 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 authorities and judicial orders 
mandating acquisitions by employing simple guidance on how we approach 
such acquisitions rather than one-size-fits-all regulations.
    Changes from the proposed rule to the final rule in Sec.  151.1 
include:
     The opening paragraph of Sec.  151.1 was revised to 
reference ``acquisition of land mandated by Federal law'' instead of 
``acquisition of land mandated by Congress or a Federal court.''

Sec.  151.2 How are key terms defined?

    The final 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.
    The definitions are also now listed in alphabetical order in Sec.  
151.2.
    Initial Indian acquisition. Among the new definitions, we note that 
the term ``initial Indian acquisition'' refers to a new category of 
acquisitions provided under Sec.  151.12. 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 Tribal 
homelands. The regulatory criteria for considering initial Indian 
acquisitions provide a new, more supportive process for Tribes without 
trust land, as discussed further in 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 final rule. We clarify, in 
response to the comments, that the final 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.
    Marketable title. Tribal consultation commenters also expressed 
concern regarding the term ``marketable title'', and so we have added a 
definition for that term to the final 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. 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.
    Individual Indian. The definition of ``individual Indian'' has been 
modified to remove Sec.  151.2(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 which is inconsistent with

[[Page 86224]]

Sol. Op. M-37076, The Secretary's Land Into Trust Authority for Alaska 
Natives and Alaska Tribes Under the Indian Reorganization Act and the 
Alaska Indian Reorganization Act and Akiachak Native Community v. 
Jewell, 935 F. Supp. 2d 195 (D.D.C. 2013) (finding that the 
Department's part 151 Alaska exception violated the privileges and 
immunities clause of the IRA), vacated as moot, Akiachak Native Cmty. 
v. U.S. Dep't of the Interior, 827 F.3d 100 (D.C. Cir. 2016) (the State 
of Alaska's appeal was deemed moot after the Department's rulemaking 
eliminated the Alaska exception from 25 CFR part 151).
    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 (List Act) or slated to be 
included in the next publication of that list. The List Act was not in 
place when these regulations were first promulgated in 1980 but should 
be used now as it is the official record of federally recognized 
Tribes.
    Indian reservation. The definition of ``Indian reservation'' has 
been modified slightly to ensure a comprehensive understanding of 
reservation status in Oklahoma after the Supreme Court's decision in 
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, the final rule makes 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.
    Tribal consolidation area. 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 
final rule's updated statement of the Department's land acquisition 
policy will cover any acquisitions in such an area.
    Marketable title. The definition of ``marketable title'' was 
revised for clarity to read ``defect and that covers the entire 
property'' instead of ``defect and to cover the entire property.''

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

    The existing rule's statement concerning when the Secretary will 
exercise the discretion to acquire land in trust does not reflect 
congressional policy clearly in favor of trust acquisition for Tribes 
and individual Indians, nor does it capture the broad range of purposes 
for which the lands are used to further Tribal welfare. The revision 
makes plain that the Secretary's policy is to support acquisitions of 
land in trust for the benefit of Tribes and individual Indians and that 
it is the policy of the Department that the Secretary exercise the 
discretion to acquire land in trust when doing so furthers the broad 
range of interests outlined in the final rule. The prior technical 
introductory language has been moved to Sec.  151.3(a).
    In Sec.  151.3(b)(3), the Department added additional policy 
reasons that support an acquisition on behalf of a Tribe, including any 
reason the Secretary determines will support Tribal welfare, consistent 
with the goals of the IRA and other statutes authorizing trust 
acquisitions. We note, however, that none of these policy reasons are 
required if the subject land is within a reservation (per Sec.  
151.3(b)(1)) or if the Tribe already owns an interest in the land, such 
as a fee interest (per Sec.  151.3(b)(2)). We received comment during 
the 2022 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 Sec.  151.3(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,'' to be 
consistent with commenters' recommendations and our understanding of 
the existing rule's meaning.
    There were no other changes in this section from the proposed rule 
to the final rule.

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

    Section 151.4 lays out in regulatory text the Department's approach 
to determining statutory authority for acquisitions as required by the 
Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379 (2009), 
which determined that the word ``now'' in the phrase ``now under 
Federal jurisdiction'' in the IRA refers to the time of the passage of 
the IRA in 1934. The final rule incorporates caselaw and analysis by 
the Department interpreting the Department's statutory authority as 
guided by Carcieri.
    The final rule identifies three categories of evidence used to 
evaluate whether a Tribe was under Federal jurisdiction: conclusive; 
presumptive; and probative. Conclusive evidence establishes in and of 
itself both that a Tribe was placed under Federal jurisdiction in or 
before 1934 and that this jurisdictional status persisted in 1934. If 
conclusive evidence exists, no further analysis is required. 
Presumptive evidence strongly indicates that a Tribe was placed under 
Federal jurisdiction in or before 1934 and may indicate that such 
jurisdictional status persisted in 1934. Even where presumptive 
evidence exists, the Department will engage in a detailed review of the 
historical record to address whether the Tribal applicant came under 
Federal jurisdiction in or before 1934 and whether that jurisdictional 
status remained extant in 1934. If neither conclusive nor presumptive 
evidence exists, the Department will consider all probative evidence in 
concert, i.e., in a holistic manner to determine whether the historical 
record, in whole, supports a finding that the Tribal applicant was 
under Federal jurisdiction in 1934 and retained such status in 1934. 
Examples of probative evidence are listed in Sec.  151.4(a)(3)(i).
    We note that Sec.  151.4(c) explains that, if the Department has 
previously issued a favorable ``under Federal jurisdiction'' analysis 
for a Tribe, no additional analysis is needed unless there has been a 
change in law. Such prior determinations remain valid under the 
revision.
    Section 151.4(e) clarifies that where a statute other than the IRA 
has authorized trust land acquisitions, the ``under Federal 
jurisdiction'' IRA analysis provided for in Sec.  151.4(a) through (d) 
does not apply, 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 final 
rule as unnecessary. The rule provides for such acquisitions, and 
existing Sec.  151.4 adds no additional information or process 
regarding such acquisitions.
    Changes from the proposed rule to the final rule in Sec.  151.4 
include:
     Adding an introductory paragraph explaining when Sec.  
151.4 is applicable.
     Adding ``land held in trust by the United States in 1934'' 
as conclusive

[[Page 86225]]

evidence a Tribe was under Federal jurisdiction in 1934.
     Adding ``land claim settlements'' as an example of 
``Federal legislation for a specific Tribe, which acknowledges the 
existence of jurisdictional relationship with a Tribe in or before 
1934'' as presumptive evidence in Sec.  151.4(a)(2)(v).
     Adding ``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)'' as examples 
of probative evidence in Sec.  151.4(a)(3)(i).
     Revising Sec.  151.4(a)(2)(vi) and adding a new provision, 
Sec.  151.4(a)(4), to confirm that the Secretary may rely on any 
evidence within the part 83 record that the Tribe was under Federal 
jurisdiction, consistent with Sec.  151.4(a)(2) and (3).
     Renumbering proposed Sec.  151.4(a)(4) as Sec.  
151.4(a)(5) and revising it to state that evidence of executive 
officials disavowing Federal jurisdiction over a Tribe in certain 
instances is not conclusive evidence of a Tribe's Federal 
jurisdictional status because such disavowals cannot themselves revoke 
Federal jurisdiction over a Tribe.
     Revising Sec.  151.4(c) to reference the ``Department'' 
instead of the ``Office of the Solicitor.''
     Additional technical edits were made to make language 
consistent throughout Sec.  151.4.

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

    Minor stylistic changes were made to Sec.  151.5. There were no 
changes from the proposed rule to the final rule.

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

    A modification to Sec.  151.6 has been made to clarify how its 
provisions are consistent with section 2216(c) of ILCA. ILCA at section 
2216(c) allows for mandatory 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) of ILCA. We assure 
commenters this is not the case; where section 2216(c) of ILCA 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) of ILCA 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 Sec.  151.6.
    The proposed rule and the final rule replace 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's or Tribe's 
fractional interest into trust for the individual's or Tribe's benefit.
    Changes from the proposed rule to the final rule in Sec.  151.6 
include:
     The opening paragraph of Sec.  151.6 was revised to read 
``[t]he Secretary may approve the acquisition of a fractional interest 
in a fractionated tract in trust status by an individual Indian or a 
Tribe including when:'' instead of ``[t]he 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:''.

Sec.  151.7 Is Tribal consent required for nonmember acquisitions?

    There are no changes to Sec.  151.7. Section 151.8 in the existing 
rule is redesignated as Sec.  151.7 in the final rule.

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

    Section 151.8 expands substantially upon existing rule Sec.  151.9, 
``Requests for approval of acquisitions.'' Sec.  151.8 describes all 
the pieces of information necessary for the Department to assemble a 
complete trust acquisition package. Once a complete package is 
assembled, the final rule requires the Department to notify the 
applicant and then issue 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, the final rule 
includes a requirement that the BIA provides tribes such notification 
within 30 days.
    Tribal consultation commenters also pointed out that Sec.  151.8 
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.

------------------------------------------------------------------------
                                                        Department
     Paragraph No.        Applicant contribution       contribution
------------------------------------------------------------------------
Sec.   151.8(a)(1).....  A signed letter from     None.
                          the Tribal government
                          supported by a Tribal
                          resolution or other
                          act, or if an
                          individual applicant,
                          a signed letter.
Sec.   151.8(a)(2).....  Documentation from the   No Department
                          applicant explaining     contribution is
                          purpose, and, if an      needed to complete
                          individual, need.        this component of the
                                                   package. Rather, the
                                                   Department will
                                                   consider this
                                                   information in coming
                                                   to a decision.
Sec.   151.8(a)(3).....  Statement identifying    The Department will
                          statutory authority      determine whether
                          for the acquisition.     statutory authority
                          If the acquisition       exists based on the
                          relies on satisfying     Tribe's submission.
                          the IRA's first          If the Tribe relies
                          definition of Indian,    on the IRA's first
                          the statement should     definition of
                          include evidence that    ``Indian,'' to
                          the Tribe was under      establish such
                          Federal jurisdiction     authority, then the
                          in 1934 consistent       Department will
                          with Sec.   151.4.       review all relevant
                                                   evidence to determine
                                                   whether the Tribe was
                                                   under Federal
                                                   jurisdiction
                                                   consistent with Sec.
                                                    151.4.
Sec.   151.8(a)(4).....  An aliquot legal         Concurrence that the
                          description of the       description is
                          land and a map, or a     legally sufficient.
                          metes and bounds land
                          description and
                          survey, 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.

[[Page 86226]]

 
Sec.   151.8(a)(5).....  Information, or          The Department will
                          permission to access     develop or adopt and
                          the land to gather       complete NEPA
                          such information,        analyses, including
                          allowing the             any required public
                          Department to comply     process, and develop
                          with NEPA and 602 DM 2   or adopt Phase I and
                          regarding hazardous      Phase II
                          substances.              Environmental Site
                                                   Assessments produced
                                                   under 602 DM 2.
Sec.   151.8(a)(6).....  Evidence of marketable   Preliminary Title
                          title.                   Opinion.
Sec.   151.8(a)(7).....  None (applicant replies  Notification letters
                          to comment letters are   to State and local
                          invited but not          governments and any
                          required for a           response letters.
                          complete acquisition
                          package).
Sec.   151.8(a)(8).....  Statement that any       None.
                          existing encumbrances
                          on title will not
                          interfere with the
                          applicant's intended
                          use.
Sec.   151.8(a)(9).....  None unless warranted    None unless warranted
                          by specific              by specific
                          application.             application.
------------------------------------------------------------------------

    Regarding the requirement under 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 Department 
clarifies that concurrence with the land description presented by the 
applicant was and has always been a necessary part of the acquisition 
process. See BIA National Policy Memorandum: Modernizing the Land 
Description Review Process for Fee-to-Trust Acquisitions, NPM-TRUS-43 
(April 6, 2023). The Department 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. The Department's land description concurrence 
listed in Sec.  151.8 is needed 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 time frame 
expires.
    Changes from the proposed rule to the final rule in this section 
include:
     Sec.  151.8(a)(1) through (6), (8), and (9) were revised 
to read ``[t]he applicant must submit''.
     Clarification, in new Sec.  151.8(a)(3), that the Tribe is 
responsible for submitting a statement and any evidence to support a 
finding of it being under Federal jurisdiction in 1934 to satisfy Sec.  
151.4 and renumbering of subsequent provisions of Sec.  151.8(a).
     Clarifying language that an acquisition package is not 
complete until a pre-acquisition Phase I environmental site assessment, 
and if necessary, a Phase II environmental site assessment completed 
pursuant to 602 DM 2 is determined to be sufficient by the Secretary, 
the Secretary completes a Preliminary Title Opinion, and the Secretary 
determines that the legal description or survey is sufficient.
     Deleting ``including any associated responses where 
requested by the Secretary'' from proposed Sec.  151.8(a)(6), now 
renumbered as Sec.  151.8(a)(7).
     Stylistic changes.

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

    Section 151.9 is the first of four sections providing process for 
the Secretary's consideration of different types of acquisition 
applications based on the location of the subject land in relation to 
an Indian reservation or, in the case of initial Indian acquisitions, 
the fact that the Tribe has no land currently in trust.
    The existing rule considers both on-reservation and contiguous 
applications under the on-reservation criteria in Sec.  151.10. In the 
new final rule, the on-reservation acquisition process has been 
simplified and designed to result in faster decisions in several ways. 
First, under Sec.  151.9(a), the Secretary is no longer required to 
consider some of the issues that Sec.  151.10 of the current 
regulations requires her to consider, such as 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, except as described below. BIA is making this change based on 
decades of experience showing that on-reservation acquisitions are 
generally not contentious or challenged because the acquisition may be 
within existing reservation boundaries, may help to lessen 
jurisdictional complexities arising from privately-held fee tracts 
adjacent to tracts held in trust, may help to consolidate Tribal land 
interests, or may be mandatory under other statutory processes, such as 
the Indian Land Consolidation Act, as amended. See Public Law 97-459, 
tit. II, codified at 25 U.S.C. 2201 et seq. Moreover, the Department 
believes that this change in policy better aligns with the purpose of 
the IRA. Indeed, the IRA was passed to address ``[t]he disastrous 
condition peculiar to the Indian situation in the United States'' that 
was ``directly and inevitably the result of existing.'' Readjustment of 
Indian Affairs: Hearings Before the Committee on Indian Affairs, House 
of Representatives on H.R. 7902, 73d Cong., 2d Sess., at 15-16 (Feb 22, 
1934), cited in Sol. Op. M-37029 ``The Meaning of `Under Federal 
Jurisdiction' for Purposes of the Indian Reorganization Act'' (March 
12, 2014), at 6 (discussing the (General Allotment Act of 1887, Pub. L. 
49-105, 24 Stat. 388 (formerly codified at 25 U.S.C. 331-357)). Section 
5 of the IRA says nothing about whether restoring these lands to Tribal 
ownership satisfied a particular need, would negatively impact State 
and local tax revenue, or would complicate jurisdiction or create 
conflicts in land use. 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 factors need not be considered for every acquisition. 
However, under Sec.  151.9(d), the final 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 a holistic analysis of the 
application. More specifically, the Secretary will no longer be 
required to consider impacts to State and local taxes for on-
reservation acquisitions unless it is raised by a State or local 
government. The Department also notes and confirms that any comments 
received on an application, even if not requested, will be considered 
as part of the overall decision-making process. If no such comments are 
received, no consideration of these factors is required under the final 
rule. We note that some commenters wished to eliminate the purpose 
criterion in Sec.  151.9(a) as well. Because an understanding of 
purpose is necessary to comply with NEPA and to support the approach 
described in

[[Page 86227]]

Sec.  151.9(b), BIA is retaining this criterion.
    Second, under Sec.  151.9(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 
will allow the Secretary to appropriately consider which acquisitions 
will most directly further the critical interests identified in Sec.  
151.3. This approach recognizes and incorporates the Secretary's policy 
to support acquisition of land in trust for the benefit of Tribes. The 
existing rule's land acquisition policy in Sec.  151.3 was established 
when the first fee-to-trust regulations were promulgated in 1980. See 
45 FR 62034. The land acquisition policy in the existing rule is 
virtually unchanged from the 1980 version and does not account for the 
many important reasons, many of which were not contemplated in 1980, 
for which Tribes acquire land in trust today to further self-
determination and self-governance. This final rule incorporates these 
important reasons in the revised Sec.  151.3, which the Secretary's 
policy is intended to support. Under the new final rule, the Secretary 
will expressly consider the listed Tribal purposes for land acquisition 
as part of the holistic consideration applied to land into trust 
acquisitions under the discretionary authority of the IRA. If an 
application seeks to have land taken into trust for one of the purposes 
set forth in Sec.  151.9(b), the Secretary will give great weight to 
this fact and, because such acquisitions further the policy purposes 
set out in Sec.  151.3, will provide a detailed explanation of the 
basis for any disapproval decision, taking into account the important 
purposes that such an acquisition would serve.
    Third, under Sec.  151.9(c), the Secretary will now presume that 
on-reservation acquisitions will benefit Tribal interests, and 
therefore should be approved. BIA believes this presumption will 
further the purpose of the IRA, which, as noted above, Congress enacted 
in 1934 to address the devasting effects of prior policies and to 
secure a land base for Indian tribes to engage in economic development 
and self-determination. 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 benefits from restoring reservation lands to trust 
status is appropriate and consistent with the Department's policy on 
land into trust acquisitions. Where a Tribe takes land into trust 
within its reservation boundaries, that land nearly always serves an 
important economic, cultural, self-determination, or sovereignty 
purpose that supports Tribal welfare.
    Changes from the proposed rule to the final rule in this section 
include:
     Making stylistic changes in Sec.  151.9 (b) to emphasize 
the Secretary's recognition that applications that are for the listed 
purposes will further the important policy goals identified in Sec.  
151.3.
     Clarifying in Sec.  151.9(c) that the Secretary will 
presume that the acquisition will ``further the Tribal interests 
described in paragraph (b) of this section and adverse impacts to local 
governments' regulatory jurisdiction, real property taxes, and special 
assessments will be minimal, therefore the application should be 
approved.''
     Adding in Sec.  151.9(d) that the notice to State and 
local governments will provide 30 calendar days in which to provide 
written comments to rebut the presumption of minimal adverse impacts to 
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.
     Minor stylistic changes.

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

    For reasons similar to those noted above, the process for approving 
acquisitions contiguous to an Indian reservation has also been 
simplified and designed to result in faster decisions. Under the 
current regulation at Sec.  151.10(a), the Secretary must consider the 
need for a Tribal government's acquisition of contiguous land, the 
impact on State and local government tax rolls, and jurisdictional 
problems or conflicts of land use which may arise when considering 
acquisition of land contiguous to the Indian reservation. Under final 
rule Sec.  151.10(a) through (c), like on-reservation acquisitions 
under final rule Sec.  151.9(a) through (c), the Secretary is no longer 
required to consider the need for a Tribal government's acquisition of 
contiguous land, the impact on State and local government tax rolls, 
and jurisdictional problems or conflicts of land use which may arise, 
except as described below, because such impacts, problems or conflicts 
are presumed to have a minimal adverse impact. 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, and based on the long experience 
of BIA in processing such applications and then administering land 
placed into trust, these factors need not be considered for every 
acquisition. However, the final 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 a holistic analysis of the application. If no such 
comments are received, no consideration of these factors is required 
under the final rule.
    Under Sec.  151.10(b), the same approach of granting great weight 
to important Tribal purposes will be applied in the same manner as for 
on-reservation acquisitions (i.e., within the boundaries of an Indian 
reservation) under Sec.  151.9(b). 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. The existing rule considers both on-reservation and 
contiguous applications under the on-reservation criteria in Sec.  
151.10. The presumption that a community will benefit from acquisition 
of land in trust reflects an update based on the Secretary's practice 
and is a change from the current regulations, which contain no 
presumption of whether a Tribal community will benefit from an 
acquisition. Trust acquisition of land benefits Tribes because Tribes 
have new opportunities to pursue self-determination and self-governance 
on the land, and Tribes can access the Federal programs and services 
that are available only on trust lands.
    Changes from the proposed rule to the final rule in this section 
include:
     Making stylistic changes in Sec.  151.10(b) to emphasize 
the Secretary's recognition that applications that are for the listed 
purposes will further the important policy goals identified in Sec.  
151.3. Clarifying in Sec.  151.10(c) that the Secretary will presume 
that the acquisition ``will further the Tribal interests described 
above in paragraph (b) of this section, and adverse impacts to local 
governments' regulatory

[[Page 86228]]

jurisdiction, real property taxes, and special assessments will be 
minimal, therefore the application should be approved.''
     Clarifying in Sec.  151.10(d) that the notice to State and 
local governments will provide 30 calendar days in which to provide 
written comments to rebut the presumption of minimal adverse impacts to 
regulatory jurisdiction, real property taxes, and special assessments.
     Minor stylistic changes.

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

    Off-reservation acquisitions have been streamlined and designed to 
result in faster decisions through the same reductions in review 
criteria described for on-reservation and contiguous acquisitions 
appearing in Sec.  151.11(a), and by applying the same great weight 
standard to important Tribal purposes in Sec.  151.11(b). The average 
length of time to receive a final fee-to-trust decision is now 
approximately 985 days. The expected time to receive a final decision 
is expected to significantly decrease, particularly given the new 120-
day timeframe in which BIA must issue a decision as established in 
Sec.  151.8(9)(b).
    In addition, existing Sec.  151.11(b) applied a ``bungee cord'' 
approach, increasing the scrutiny applied to an acquisition as distance 
from a Tribe's reservation increased. In 1995, the Department amended 
part 151 to establish a new policy for the acquisition of land in trust 
when such lands are located outside of and noncontiguous to a tribe's 
existing reservation boundaries. See 60 FR 32874 (June 13, 1995). The 
proposed rule noted the need to eliminate adverse impacts on 
surrounding local governments as justification for increasing scrutiny 
of tribal benefits while giving greater weight to the concerns of State 
and local governments. See 56 FR 32278 (July 15, 1991).
    The final rule abandons this approach, providing in new Sec.  
151.11(c) that the Secretary presumes the Tribe will benefit from the 
acquisition, and will consider the location of the land and potential 
conflicts of land use when reviewing State and local comments as part 
of the holistic analysis of the application. This revision is 
consistent with the BIA's long experience in implementing the land into 
trust authorities under the IRA. Where a Tribe takes land into trust 
off-reservation, 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, such as 
tribal funds or financing to purchase the land, planning, and purposes 
valued by the Tribe. Accordingly, the Secretary will no longer apply 
heightened scrutiny based on distance from the Tribe's reservation but 
will instead consider the location of the land broadly before issuing a 
decision.
    Changes from the proposed rule to the final rule in this section 
include:
     Making stylistic changes in Sec.  151.10(b) to emphasize 
the Secretary's recognition that applications that are for the listed 
purposes will further the important policy goals identified in Sec.  
151.3.
     Deleting ``without regard to distance of the land from a 
Tribe's reservation boundaries or trust land'' in Sec.  151.11(c).
     Adding in Sec.  151.11(c) that ``the Secretary will 
consider the location of the land and potential conflicts of land use'' 
instead of ``the Secretary will consider the location of the land.''
     Stylistic changes.

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

    Section 151.12 is designed to streamline decision-making and 
support Tribes which do not currently have land in trust. In 1995, the 
Department amended part 151 to establish a new policy for the placement 
of lands in trust status for Indian tribes when such lands are located 
outside of and noncontiguous to a tribe's existing reservation 
boundaries. See 60 FR 32874 (June 13, 1995). This amendment did not, 
however, account for tribes without reservations. Since that time, 
applications from tribes without reservations have been processed under 
the existing rule's off-reservation provisions event though Sec.  
151.11(b) does not apply to tribes without reservations. The final rule 
includes provisions that more appropriately apply to the Secretary's 
review of applications from tribes without reservations, thus, 
eliminating confusion. The final 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 Sec.  151.12(a) and great weight granted to important 
purposes in Sec.  151.12(b). The final rule also establishes a 
presumption of Tribal benefits for such requests.
    Changes from the proposed rule to the final rule in this section 
include:
     Making stylistic changes in Sec.  151.10(b) to emphasize 
the Secretary's recognition that applications that are for the listed 
purposes will further the important policy goals identified in Sec.  
151.3. Clarifying in Sec.  151.12(c) that the Secretary will presume 
that the acquisition ``will further the Tribal interests described in 
paragraph (b) of this section, and adverse impacts to local 
governments' regulatory jurisdiction, real property taxes, and special 
assessments will be minimal, therefore the application should be 
approved.''
     Clarifying in Sec.  151.12(d) that the notice to State and 
local governments will provide 30 calendar days in which to provide 
written comments to rebut the presumption of minimal adverse impacts to 
regulatory jurisdiction, real property taxes, and special assessments.
     Adding in Sec.  151.12(d) that ``the Secretary will 
consider the location of the land and potential conflicts of land use'' 
instead of ``the Secretary will consider the location of the land''.

Sec.  151.13 How will the Secretary act on requests?

    Minor clarifying changes to language were made in Sec.  151.13, 
including the use of ``Office of the Secretary'' rather than 
``Secretary'' in Sec.  151.13(c) and (d). Because the final rule uses 
the defined term Secretary in its inclusive sense to mean all 
Department staff with delegated authority from the Secretary, here in 
Sec.  151.13 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 final rule adds new information on the steps that 
occur after a decision to take land into trust but before signature on 
the acceptance of conveyance document, described in paragraphs 
(c)(2)(iii) and (d)(2)(iv). This change is explained in detail below 
with regard to new Sec.  151.15. Before the BIA may accept a 
conveyance, the BIA must confirm that the environmental site assessment 
is current. The environmental site assessment is conducted to determine 
whether a parcel or parcels in question contain any environmental 
liabilities. This assessment is different than the BIA's 
responsibilities under NEPA. The final rule has been revised at Sec.  
151.13(c)(2)(iii) and (d)(2)(iv) to eliminate any confusion and to 
clarify that NEPA must be completed before a decision is made but that 
a second environmental site review can be

[[Page 86229]]

completed after the decision is made but before the land is accepted in 
trust.
    Changes from the proposed rule to the final rule in this section 
include minor stylistic changes.

Sec.  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. Section 151.14(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. In such 
cases the Secretary may accept the applicant's preliminary title report 
in 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, Sec.  151.14(b) 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. The new rule 
balances the United States interest in obtaining marketable title with 
the legal consequence that land held in trust is inalienable. The 
current rule can serve as a barrier to an acquisition when there are 
infirmities to title that may not be acceptable to a reasonable buyer 
but would otherwise be acceptable to the Secretary if certain 
conditions are met (e.g., limiting liability through an indemnification 
agreement).
    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.
    Changes from the proposed rule to the final rule in this section 
include:
     Adding in Sec.  151.14(a)(2)(ii) that the Secretary may 
accept either a preliminary title report or an equivalent document 
prepared by a title company in place of an abstract of title in certain 
circumstances.
     Removing the requirement in Sec.  151.14(a)(2)(ii) that 
the policy of title insurance be less than five years old.
     Updating Sec.  151.14(a) to read ``[t]he applicant submit 
title evidence as part of a complete acquisition package as described 
in Sec.  151.8 as follows:''.
     Stylistic changes.

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

    Section 151.15 covers the Department's environmental 
responsibilities under NEPA and the Departmental Manual at 602 DM 2. 
Paragraph (a) simply states that the Department will comply with NEPA; 
no changes to BIA's practices are created through this paragraph. 
Section 151.15(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) of 1980 (42 U.S.C. 9601 et seq.).
    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.
    Changes from the proposed rule to the final rule include:
     Adding in Sec.  151.15(b)(1) ``or before formalization of 
acceptance and all other requirements of this section, Sec. Sec.  
151.13 and 151.14 are met, the Secretary shall acquire the land in 
trust.''
     Adding in Sec.  151.15(b)(2) ``or before formalization of 
acceptance'' in the first sentence. And revising the second sentence to 
reference ``prior to the formalization of acceptance'' instead of 
``prior to taking the land in trust status''.

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

    Section 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.

[[Page 86230]]

    Changes from the proposed rule to the final rule in this section 
include:
     Clarifying in Sec.  151.16(a) that ``[t]he Secretary shall 
sign the instrument of conveyance after the requirements of Sec. Sec.  
151.13, 151.14, and 151.15 have been met''.
     Clarifying in Sec.  151.16(c) that ``[t]he Secretary shall 
record the deed with LTRO pursuant to part 150 of this chapter.''

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

    Section 151.17(a) 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 process 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 time frame created 
in 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 time frame, the 
volume could potentially cause serious problems for agency decision-
making.
    Section 151.17(b) explains that any decisions already made under 
the existing regulations are not altered by the new regulation.
    Changes from the proposed rule to the final rule in this section 
include:
     Adding that ``[t]he Secretary shall consider the comments 
of State and local governments submitted under the notice provisions of 
the previous version of this regulation''.
     Clarifying that the new regulations do not alter decisions 
made by BIA officials that are undergoing appeal ``on January 11, 
2024''.

Sec.  151.18 Severability

    Section 151.18 provides that if any provision of this subpart, or 
any application of a provision, is stayed or determined to be invalid 
by a court of competent jurisdiction, it is the Secretary's intent that 
the remaining provisions shall continue in effect. The Secretary 
believes this is appropriate because the regulations are largely 
procedural and that if specific sections were stricken the Secretary 
would still be able to render decisions in compliance with statutory 
authority.

V. Public Comments on the Proposed Rule and Response to Comments

    Individual comments were separated and categorized after the 
closing of the comment period on March 1, 2023. Over 95 different 
entities commented on part 151, including Tribal, State, and local 
governments, industry organizations, and individual citizens. In total, 
the submissions were separated into 650 individual comments. Generally, 
around 81 comments were exclusively supportive, 114 were not 
supportive, and 455 were neutral or provided general support along with 
constructive feedback on how the rule may be improved. All public 
comments received in response to the proposed rule are available for 
public inspection. To view all comments, search by Docket Number ``BIA-
2022-0004'' in https://www.regulations.gov. The AS-IA has decided to 
proceed to the final rule stage after careful consideration of all 
comments. The AS-IA's responses to significant comments that were not 
supportive, neutral, or provided general support along with 
constructive criticism are detailed below. No responses are provided 
for comments that were exclusively supportive.

Indian Tribes

    In general, Tribes who commented were supportive of the proposed 
part 151 regulations. However, many Tribes included constructive 
criticism. Commenting Tribes appreciated the Department's inclusion of 
community benefits and presumptions for approval, the Department's 
efforts to reduce burdensome requirements, the new tiered categories of 
acquisitions, and the establishment of timelines.
    While Tribes were generally supportive, some comments raised 
concerns. For example, some Tribes were concerned about applying 
presumptions to applications for the acquisition of land outside of an 
applicant Tribe's aboriginal territory. Some Tribes also suggested that 
Tribal governments should have the same opportunity to comment on 
acquisitions that State and local governments do. Other Tribes 
advocated for more flexibility around land descriptions.

State and Local Government

    State and local governments that commented opposed the regulations 
on multiple fronts, including questioning the authority of the 
Department to implement portions of the regulations under the 
Administrative Procedure Act (APA), caselaw, and principles of 
federalism. State and local governments were particularly concerned 
that the presumptions afforded Tribal applicants as well as the removal 
of certain provisions including: the scrutiny applied to Tribal 
benefits in relation to State and local government concerns as the 
distance of the land at issue from a Tribe's reservation or trust land 
increased; the requirement that Tribes demonstrate the need for 
additional land; and the requirement that Tribes supply business plans 
for review. They also opposed a perceived decreased role for State and 
local governments in the process, such as eliminating the consideration 
of jurisdictional problems or potential conflicts over land use and the 
removal of solicitations for State and local governments to comment on 
on-reservation acquisitions. State and local governments also provided 
detailed suggestions for how the Department should notify State and 
local governments. This rulemaking comports with the APA and is within 
contemplated congressionally delegated authority of the Assistant 
Secretary--Indian Affairs. Multiple Federal courts of appeals have 
rejected claims that section 5 of the IRA violates the nondelegation 
doctrine or that it otherwise violates constitutional concepts of 
federalism. See Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 
30 (D.C. Cir. 2008); Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 
2007), rev'd on other grounds, Carcieri v. Salazar, 555 U.S. 379 
(2009); South Dakota v. U.S. Dep't of Interior, 487 F.3d 548 (8th Cir. 
2007); South Dakota v. U.S. Dep't of Interior, 423 F.3d 790 (8th Cir. 
2005); United States v. Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999); 
see also Confederated Tribes of Siletz Indians v. United States, 110 
F.3d 688, 698 (9th Cir. 1997) (stating in dicta that the land into 
trust power is a valid delegation).

Sec.  151.1 What is the purpose of this part?

    Comment. Many Tribes see this as a necessary revision because ``the 
fee-to-trust regulations normally do not apply to transactions in these 
categories because of the legal framework governing them,'' including 
acquisition of fee land by Tribes and acquisitions mandated by statute. 
They suggest that numbering this section may improve comprehension--
like so: ``This part does not cover: (1) acquisition of land by 
individual Indians and Tribes in fee simple even though such land may, 
by operation of law, be held in restricted status following 
acquisition; (2) acquisition of land mandated by Federal law; (3) 
acquisition of land in trust status by inheritance or escheat; or (4)

[[Page 86231]]

transfers of land into restricted fee status unless required by Federal 
law.''
     Response: The Department agrees that clarifying when the 
Secretary will apply the part 151 regulations is an important addition 
to the final rule. The final rule clarifies that this regulation does 
not govern acquisitions mandated by Federal law. The Department has 
issued guidance concerning such mandatory acquisitions, including the 
guidance found in the FTT Handbook, and does not believe regulations 
are necessary at this time. The formatting in the section is consistent 
with the rest of the rule therefore the Department declines to make the 
suggested formatting revision.
    Comment. One Tribe noted that the regulations do not set out the 
procedures in a comprehensive manner. The Tribe suggested that this 
section reference all applicable procedures, letting applicants know 
exactly what will be applied and when.
     Response: Specific instructions regarding the fee-to-trust 
process are contained in guidance outside the regulation (e.g., FTT 
Handbook). However, policy and guidance change over time, including 
where it is located, so the regulation does not identify specific 
policy and guidance documents. BIA will be updating the FTT Handbook to 
reflect the changes made in this final rule.
    Comment: One Tribe suggested that consideration should be given to 
the terms ``trust'' and ``restricted'' for clarity.
     Response: The final rule is sufficiently clear and 
articulates the scope of the rule without the need for additional 
definitions.
    Comment: One commenter suggested that this section include a 
baseline process for fee-to-trust, including a provision stating that 
acquisitions mandated by Federal law be exempt. The commenter also 
pointed out that Federal courts have no authority to acquire land in 
trust for Indians without some action by the Congress.
     Response: The final rule makes clear that the new 
regulations govern discretionary decisions to acquire land into trust. 
The FTT Handbook clarifies how the Department will process acquisitions 
mandated by Federal law.
    Comment: One Tribe noted a concern that the proposed regulations 
may unintentionally advantage some Tribes at the expense of others. The 
Tribe suggested an addition to this section clarifying that neither the 
definitions and terminology in the part 151 regulations nor the 
findings and decisions made in the applications of the part 151 
regulations are intended to be binding for purposes of other decision-
making processes conducted under other authorities, including, without 
limitation, 25 U.S.C. 2719 and 25 CFR part 292 (part 292).
     Response: The Department agrees that the definitions and 
terminology are not intended to be binding for other decision-making 
processes, including those made under 25 U.S.C. 2719 and part 292 but 
disagrees that the rule requires additional clarification of that 
point.
    Comment: One Tribe suggested that this section specify that the 
Secretary's land acquisition regulations should apply to mandatory and 
discretionary acquisitions to the extent that it does not conflict with 
Federal legislation resolving land claims.
     Response: The Department acknowledges that Congress often 
addresses both mandatory and discretionary trust acquisitions as part 
of legislation. The regulations as written apply solely to 
discretionary acquisitions provided for in legislation. The 
requirements for discretionary acquisitions set forth in this rule, and 
mandatory acquisitions set forth in the FTT Handbook, aim to ensure the 
Department's compliance with applicable requirements, including the 
National Environmental Policy Act (NEPA) and the Departmental Manual at 
602 DM 2.

Sec.  151.2 How are key terms defined?

Contiguous
    Comment: Several commenting Tribes proposed the addition of 
``navigable rivers'' to the definition of ``contiguous'' as follows: 
``Contiguous means two parcels of land having a common boundary 
notwithstanding the existence of non-navigable waters or navigable 
rivers or a public road or right-of-way and includes parcels that touch 
at a point.'' One Tribe suggested adding the following phrase: 
``Contiguous shall include two parcels of land separated by navigable 
water if the navigable water is subject to the Tribe's treaty or other 
fishing rights and each parcel is accessible by water.''
     Response: Under the rule, the process for approving 
acquisitions contiguous to an Indian reservation has been simplified. 
The definition of contiguous is intended to formalize long-standing BIA 
practice with respect to evaluating contiguity and is sufficiently 
clear to guide the Department and applicants regarding whether a parcel 
is contiguous. There of course will be fact patterns that require 
additional analysis. The Department declines to add ``navigable 
rivers'' to the definition because in some instances such a change 
could result in parcels that are a significant distance from one 
another being considered contiguous.
    Comment: One Tribe requested more clarity on what constitutes a 
``public road'' for this definition. The Tribe also suggested that the 
Department address whether there is a distinction between 
``contiguous'' and ``adjacent.''
     Response: The Department agrees that the nature of a 
public road could be dramatically different depending on the location 
and may require additional analysis. Separation of two parcels by a 
public road does not necessarily render the parcels noncontiguous for 
purposes of part 151. The definition is sufficiently clear to guide the 
Department and applicants regarding whether a parcel is contiguous. 
There of course will still be instances that require additional 
analysis. We acknowledge that the terms ``adjacent'' and ``contiguous'' 
are similar but have slightly different meanings, i.e., adjacent 
generally means close to or near something rather than sharing a common 
boundary. The Department believes the definition of contiguous is 
sufficient to cover lands that are contiguous and no separate 
definition of adjacent is necessary.
    Comment: Another Tribe urged the Department to clarify that land 
accepted into trust as ``contiguous'' pursuant to 25 CFR 151.10 is 
``contiguous'' for gaming purposes under 25 CFR 292.2.
     Response: The definition of contiguous is consistent with 
the part 292 definition, and in general should result in a similar 
analysis; however, determinations made under part 151 and part 292 are 
separate and rely on different statutory authority.
    Comment: Other Tribes also requested clarification on whether the 
definition should include two or more parcels of land and whether 
parcels with common corners or those separated only by a road or right 
of way are included.
     Response: The use of the phrase two ``or more'' parcels 
could cause confusion where, for example, parcels may share more than 
one border. To avoid confusion, the definition was not changed. This 
definition includes parcels that touch at their corners. Separation of 
two parcels by a public road or right-of-way does not necessarily 
render the parcels noncontiguous for purposes of part 151. There of 
course will still be instances that require additional analysis.
    Comment: One Tribe recommended the addition of the following 
definition for ``adjacent'' property to Sec.  151.2: Adjacent means two 
parcels of land connected by natural, social, cultural, or economic 
ties, though they are not

[[Page 86232]]

contiguous, as determined by any of the following factors: (1) the 
physical distance between parcels, (2) the ease of travel between 
parcels, (3) the parcels sharing the same natural characteristics or 
supporting the natural functions of each other, (4) the cultural 
connection between the parcels, or (5) the parcels being part of a 
larger economic plan or strategy.
     Response: The definition of contiguous is sufficient to 
guide the analysis. There of course will still be instances that 
require more in-depth review. The rule only uses the term contiguous. 
We acknowledge that the terms ``adjacent'' and ``contiguous'' are 
similar but have slightly different meanings, i.e., adjacent generally 
means close to or near something rather than sharing a common boundary. 
The Department believes the definition of contiguous is sufficient to 
cover lands that are contiguous and no separate definition of adjacent 
is necessary.
Indian Land
    Comment: One Tribe pointed out that including a definition of the 
term Indian land could lead to confusion in the future because the term 
``Indian Lands'' is a term from the Indian Gaming Regulatory Act 
(IGRA), which is not at issue here and suggested the definition might 
not be necessary.
     Response: The definition clarifies that Indian land as it 
relates to the part 151 regulations includes those held in trust or 
restricted status. IGRA provides a separate definition for the term 
Indian lands which is applicable in the gaming context. See 25 U.S.C. 
2703(4). The Department believes there is sufficient statutory clarity 
and distinction for how the term is used in the IGRA context such that 
the part 151 definition will not lead to confusion. The part 151 
definition should not be used in the gaming context or to determine 
gaming eligibility; it is for the purpose of land into trust.
Indian Reservation or Tribe's Reservation
    Comment: Some Tribes would like clarification on whether ``The 
Secretary will consider all historic Oklahoma Reservations consistent 
with McGirt'' is intended to include all Oklahoma Tribes or just the 
Five Tribes.
     Response: This provision applies to all Oklahoma Tribes.
    Comment: One Tribe suggested that the principles of McGirt are 
broadly applicable. Therefore, the regulations' language should apply 
in Oklahoma and to any place where historic reservations have yet to be 
reaffirmed. The Tribe suggested the following language:
    (1) That area of land set aside for the use and occupancy of an 
Indian Tribe(s) by treaty, statute, executive order, or Secretarial 
proclamation or order, including both formal and informal reservations 
as well as dependent Indian communities, allotments, and restricted fee 
lands;
    (2) That area of land over which a Tribe is recognized by the 
United States as having governmental jurisdiction; or
    (3) That area of land constituting the former reservation of a 
Tribe as defined by the Secretary, including:
    (a) In Oklahoma, where there has been no final determination 
affirming the Tribe's reservation; or
    (b) Elsewhere, where there has been a final determination the 
Tribe's reservation has been diminished or disestablished.
     Response: The proposed language in section (1) could, in 
some instances, go beyond what is intended to be included within the 
definition. The Department therefore declines to include the proposed 
revision. The proposed language in section (2) is part of the proposed 
rule and articulates the general definition that an Indian reservation 
or Tribe's reservation, for purposes of part 151, includes those lands 
over which the Tribe is recognized by the United States as having 
governmental jurisdiction. Specific to Oklahoma, the rule provides for 
a concise statement consistent with the McGirt decision as well as 
agency precedent. See, e.g., Shawano County, Wisconsin v. Acting 
Midwest Regional Director, BIA, 53 IBIA 62 (2011) (because there was a 
judicial determination that the Tribe's reservation was disestablished 
and the parcels were within the original boundaries of the 
disestablished reservation, BIA's consideration under the ``on-
reservation'' criteria was appropriate). The Department therefore 
declines to adopt the proposed language in section (3).
Individual Indian
    Comment: One Tribe pointed out a possible error in the definition 
of Individual Indian, noting that it requires that an individual be 
both (1) a descendent of an enrolled Tribal member, and (2) personally 
have lived on a reservation in 1934. Under this definition, only a 
person above the age of 88 (the youngest possible age to have been 
alive in 1934) would be eligible. The Tribe suggested the following 
revision to proposed Sec.  151.2(c)(2): ``any person who is a 
descendent of an enrolled Tribal member who, on June 1, 1934, was 
physically residing on an Indian reservation.''
     Response: This language is adapted from the IRA, 25 U.S.C. 
5129, and is sufficiently clear to guide the Department and applicants. 
The Department agrees the second category in the definition constitutes 
a closed class of individuals consistent with Sol. Op. M-37054, 
``Interpreting the Second Definition of `Indian' In Section 19 of the 
Indian Reorganization Act of 1934'' (Mar. 9, 2020).
    Comment: One commenter stated that the third definition of 
Individual Indian appears to be based on racial or ethnic criteria and 
asked what processes and procedures are used to determine the degree of 
Indian blood?
     Response: The language is taken from the IRA and the 
process for determining eligibility under the third definition is 
separate from the part 151 regulations.
Initial Indian Acquisition
    Comment: While some Tribes supported the definition of Initial 
Indian acquisition, others pointed out that where land has been 
acquired or held in trust, but for various reasons, the United States 
no longer holds land in trust for a Tribe, it is not technically an 
initial acquisition.
     Response: The Department believes the definition provides 
sufficient clarity that an initial acquisition applies to Tribes with 
no land currently held in trust status and no revision is necessary.
Interested Party
    Comment: Several Tribes raised questions regarding terms within the 
definition of Interested party, including what constitutes a legally 
protected interest and to what extent such an interest must be affected 
to meet the definition. There was general concern that the definition 
was overly broad.
     Response: The Department weighed these concerns and looked 
at the effect of adopting a narrower definition of the term Interested 
party. Interested party is used in Sec.  151.13 to define those parties 
entitled to notice of a decision and any appeal rights. The commenters' 
suggestion to narrow the definition unnecessarily limits those parties 
who should receive notice of the decision. As a result, the substance 
of the final rule is the same as the proposed rule. We note that it is 
possible for a party to satisfy the definition of Interested party yet 
have no right to appeal a decision, i.e., have no standing to do so. 
The Department also notes that providing notice to a party does not 
confer legal standing to bring a challenge.
    Comment: Some commenting Tribes suggested that the Department 
clarify that an interested party must show its

[[Page 86233]]

legally protected interests would be adversely affected by a decision.
     Response: The 25 CFR part 2 (part 2) regulations further 
define those parties adversely affected by a decision. For purposes of 
part 151, it is not necessary for an interested party to be adversely 
affected, instead an interested party is one with a legally protected 
interest affected by a decision. The Department has not adopted the 
specific language suggested by the commenter, nor added a definition of 
legally protected interest.
    Comment: Several Tribes suggested merging the definition of 
Interested party in proposed Sec.  151.2 with part 2. One Tribe 
included a detailed description of how the language from part 2 could 
be incorporated into the part 151 regulations.
     Response: The part 151 Interested party definition closely 
resembles the part 2 regulation, wherein interested party is defined as 
``a person or entity whose legally protected interests are adversely 
affected by the decision on appeal or may be adversely affected by the 
decision of the reviewing official.'' See Proposed Rule, Appeals from 
Administrative Actions, 87 FR 73688 (Dec. 1, 2022). The part 2 
regulation further defines those entities adversely affected by a 
decision. For purposes of part 151, it is not necessary for an 
interested party to be adversely affected but instead that they have a 
legally protected interest affected by a decision. We note that it is 
possible for a party to satisfy the definition of Interested party and 
yet have no right to appeal a decision, i.e., have no standing to do 
so. The Department also notes that providing notice to a party does not 
confer legal standing to bring a challenge.
    Comment: One Tribe recommended the following definition for 
Interested party: ``any person, organization or other entity who can 
establish a legal, factual or property interest in a determination and 
who requests in writing to the decision maker an opportunity to submit 
comments or evidence or to be kept informed of general actions 
regarding a specific application or action. In addition to showing a 
legal interest, an interested party needs to demonstrate an 
individualized right or interest--some interest distinct from any other 
members of the public that they have been adversely affected in a 
concrete and particularized way.''
     Response: The Department has not adopted the specific 
language suggested by the commenter because it limits the definition to 
those adversely affected. The final rule is written to aid in 
understanding which parties will receive written notice of a decision 
not to identify those parties that have standing to challenge the 
decision in an administrative appeal. We note that it is possible for a 
party to satisfy the definition of Interested Party and yet have no 
right to appeal a decision, i.e., have no standing to do so. The 
Department also notes that providing notice to a party does not confer 
legal standing to bring a challenge.
    Comment: Another Tribe said that appellants that do not or would 
not, due to the decision, exercise jurisdiction over or have the right 
to use the property subject to appeal, should lack standing to bring an 
appeal. The Tribe also asserted that status as a government does not 
confer standing to bring such an appeal and that an appellant's basis 
for appeal should not be purely economic.
     Response: The Department weighed these concerns and looked 
at the effect of adopting a narrower definition. The term Interested 
party is used in Sec.  151.13 to define those parties entitled to 
notice of a decision. The commenter's suggestion is too narrow and 
eliminates parties that should receive notice of the decision if made 
known to the decision maker. As a result, the substance of the final 
rule is the same as the proposed rule. We note that it is possible for 
a party to be an interested party yet not have the right to appeal a 
decision i.e., lack standing to do so. The Department also notes that 
providing notice to a party does not confer standing.
    Comment: Some Tribes expressed concern that the proposed language 
opens the possibility that if a group of neighbors opposes and appeals 
a final decision on a fee-to-trust application, the acceptance of their 
appeal may give them the perception that they have a legally protected 
interest. They further recommended that the definition track the 
language used in Sec.  151.13, that an ``interested party'' must have 
``made themselves known, in writing, to the official, prior to a 
decision being made.''
     Response: While agreeing with the premise, the Department 
believes that definition of Interested party is sufficient to identify 
the parties entitled to notice of a decision and that issues of 
standing are more appropriately addressed as part of the appellate 
authority vested in the agency and the Federal courts. The suggested 
revision to the definition would complicate Sec.  151.13 because the 
term Interested party is also used to identify appeal periods for 
``unknown interested parties'' provided notice via publication.
Marketable Title
    Comment: Multiple commenting Tribes expressed support for the new 
proposed definition of ``marketable title.'' One Tribe pointed out a 
possible grammatical mistake in the definition of marketable title: 
``to cover'' as it appears to disagree with the preceding clause. They 
recommended substituting ``to cover'' with ``that covers'' instead.
     Response: The Department agrees and has made this change 
in the final rule.
    Comment: One Tribe requested that marketable title be clarified as 
including all easements and rights of way of record, including any 
shared maintenance and other agreements that are part of those 
interests of record.
     Response: The definition serves to protect the United 
States from acquiring land in trust with title infirmities a reasonable 
buyer would not accept. In general, most easements, rights of way of 
record and shared maintenance agreements of record are acceptable but 
still must be evaluated on a case-by-case basis.
Preliminary Title Opinion
    Comment: One Tribe commented that preliminary title opinions (PTO) 
should be defined as non-privileged communications by the Solicitor 
regarding the existing title status. Because proposed Sec.  151.8 
requires a PTO as part of a complete application, the Tribe said it 
would not make sense to include privileged material. The lack of 
clarity in the current regulations causes unnecessary delays.
     Response: The PTO is a lawyer-client privileged 
communication between the Office of the Solicitor and BIA. That said, 
any exceptions to title that must be met prior to acquisition will be 
communicated to the applicant.
Tribal Homelands
    Comment: Some Tribes requested a definition of ``Tribal 
Homelands,'' as the term is used throughout the regulations. Tribes 
noted that specific criteria to establish Tribal Homelands would help 
avoid confusion or conflict in instances where Tribes have overlapping 
historical territories.
     Response: The IRA authorizes the Secretary to acquire 
lands ``for the purpose of providing land for Indians.'' The 
regulations articulate the Department's general support for the 
restoration of Tribal homelands consistent with the IRA's purpose of 
providing land for Indians and, as such, Tribal homelands is not a term 
of art that requires definition. The Department agrees that it can be 
difficult to

[[Page 86234]]

demarcate a Tribe's historical territory and that it may overlap with 
the historical territory of other Tribes, but adding a requirement that 
the Department render ``Tribal homeland'' determinations in connection 
with land into trust decisions would unnecessarily lengthen and 
complicate the review process. The Department therefore declines to 
include a definition of ``Tribal homelands'' in the final rule.
Tribe
    Comment: One Tribe commented that while the List Act contains 
recognized Tribes eligible for IRA benefits, it also contains Tribes 
not eligible for IRA benefits.
     Response: The Department agrees that the availability of 
IRA section 5 fee-to-trust authority depends on more than just Federal 
recognition under the List Act. The definition of federally recognized 
Tribe is still useful; however, in that acquisitions are limited to 
federally recognized Tribes.
Other
    Comment: Many Tribes expressed support for inclusion of definitions 
for the terms ``Fee Interest,'' ``Fractionated Tract,'' ``Secretary,'' 
``Restricted Land,'' ``Trust Land or Land in Trust Status,'' and 
``Tribe.''
     Response: The final rule will include the same definitions 
as the proposed rule.

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

    Comment: Many commenting Tribes expressed support for the land 
acquisition policy. One Tribe also encouraged the Department to apply 
Sec.  151.3(b) as broadly as possible.
     Response: The broad policy statement in Sec.  151.3 is 
grounded in the statutory text and authority of the IRA which the 
Secretary will actively implement to the extent permissible.
    Comment: One Tribe referred to the land acquisition policy as 
``inappropriately limited and does not describe the policy articulated 
by the Indian Reorganization Act (IRA),'' codified at 25 U.S.C. 5108. 
Consequently, the Tribe recommended that the proposed rule use section 
5 of the IRA as the authority for the policy.
     Response: The Secretary's land acquisition policy 
articulated in Sec.  151.3 relies on IRA Section 5 authority codified 
at 25 U.S.C. 5108 and provides a broad range of purposes for acquiring 
land that meet the intent of the IRA. Therefore, the substance of the 
final rule is the same as the proposed rule.
    Comment: A few Tribes commented that the land acquisition policy 
should include language like the following: ``When the Secretary 
determines that the acquisition of the land will further Tribal 
interests by . . . advancing environmental justice for Tribal 
communities that have been disproportionately impacted by climate 
change, pollution, dumping of industrial waste, and other 
environmentally destructive practices, by helping them to secure safe 
and usable land.'' Another commenter suggested that the policy is an 
exercise of the Secretary's fiduciary obligation and should therefore 
be informed by the Department's desire to address the devastating 
effects of the Federal Government's treaty, allotment, and termination 
periods and policies, as well as decisions beyond a Tribe's control 
that threaten the safety of current Tribal land.
     Response: The Department appreciates the commenter's 
additional basis for the Secretary to acquire land into trust. However, 
we decline to incorporate the additional language because Sec.  
151(b)(3) already includes broad language allowing the Secretary to 
acquire land in trust status if it is ``for other reasons the Secretary 
determines will support Tribal welfare.''
    Comment: Several Tribes noted the importance of including explicit 
language stating that the land acquisition policy is intended to 
``protect sacred sites and Tribal cultural resources, establish or 
maintain conservation areas, burial grounds or cemeteries, consolidate 
land ownership to strengthen Tribal governance over reservation lands 
and reduce checkerboarding, protect treaty or subsistence rights, and 
facilitate Tribal self-determination, economic development or Indian 
housing.'' It was further noted that many Tribes are seeking new 
acquisitions to bury ancestors being repatriated or excavated from 
their resting places due to development outside of Tribal lands.
     Response: The Department agrees that the purposes listed 
by the commenters are important considerations in the discretionary 
land into trust process. Section 151.3(b)(3) articulates these broad 
purposes as reasons the Secretary may acquire land into trust and 
includes the broad statement that includes ``for other reasons the 
Secretary determines will support Tribal welfare.''
    Comment: One Tribe proposed adding the phrase ``increasing a 
Tribe's resilience to climate change'' as another reason for the 
Secretary to approve an acquisition.
     Response: The Department agrees that there are purposes 
not specifically identified that may be important considerations in the 
discretionary land into trust process. Section 151.3(b)(3) articulates 
that the Secretary may acquire land into trust ``for other reasons the 
Secretary determines will support Tribal welfare.''
    Comment: Several Tribes recommended Sec.  151.3(b)(3) be revised to 
read, in pertinent part: ``. . . 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 rights secured by 
treaty, Executive Order, or other Federal or subsistence rights, or 
facilitating self-determination, economic development, or Indian 
housing.'' These same Tribes also suggested making this change to all 
sections where this language appears: Sec. Sec.  151.9(b), 151.10(b), 
151.11(b), and 151.12(b).
     Response: The Department agrees that Tribes may have 
rights beyond those secured under treaty. Section 151.3(b)(3) however 
is not exhaustive and articulates that the Secretary may acquire land 
into trust ``for other reasons the Secretary determines will support 
Tribal welfare.''
    Comment: Some non-Tribal entities asserted that the Secretary was 
applying a blanket policy, stating ``the Department appears to draw 
little or no differentiation between vastly different types of 
potential trust acquisitions, including those with considerably 
different land uses, which invariably result in dramatically different 
impacts to communities.''
     Response: The broad policy statement in Sec.  151.3 is 
grounded in the statutory text and authority of the IRA. NEPA requires 
Federal agencies to examine the environmental effects of proposed 
actions before making a decision. The Department's NEPA process 
requires the BIA to examine environmental and related social and 
economic effects. The use of the land identified in an application will 
dictate the level of environmental review that is appropriate to comply 
with the Department's obligations under NEPA.
    Comment: One Tribe commented that language should be added to make 
clear that even though an acquisition may be authorized under Federal 
law there may nevertheless be other Federal law or binding agreements 
(e.g., Tribal-State compacts) that prohibit the Secretary from 
acquiring land into trust.

[[Page 86235]]

     Response: Whether a separate agreement (e.g., a gaming 
compact) constrains the Secretary's authority is a fact specific 
analysis. For that reason, the Department declines to add the suggested 
language to the final rule.
    Comment: One Tribe commented that lands acquired within a Tribe's 
reservation or Tribal consolidation area should be deemed to be 
reservation land without further action. This would avoid any question 
of whether an on-reservation acquisition requires a Reservation 
Proclamation.
     Response: A reservation proclamation is a separate action 
under the authority of section 7 of the IRA. The Department notes, 
however, that an area of land over which a Tribe is recognized by the 
United States as having governmental jurisdiction (e.g., lands held in 
trust for the Tribe) are considered reservation under the Sec.  151.2 
definition of Indian reservation or Tribe's reservation. There is no 
requirement that there be a formal proclamation before a parcel may be 
considered Indian reservation or the Tribe's reservation for purposes 
of a land acquisition under part 151. The final rule provides for a 
concise statement and the Department declines to make the suggested 
change.

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

    Comment: Numerous Tribes expressed appreciation for the clarity 
about how the Department will ensure that it has statutory authority to 
acquire land into trust status. One supportive commenter suggested that 
the Department elaborate on or provide a non-exhaustive list of ``other 
forms of evidence.'' Another commenter suggested that the Department 
include ``Evidence of determinations by appropriate Federal officials 
that a Tribe or Tribal members were eligible for benefits under the 
IRA.'' One Tribe expressed support for proposed Sec.  151.4(a)(4) (now 
renumbered as Sec.  151.4(a)(5)), which gives no legal force or effect 
to past disavowals of a jurisdictional relationship by executive 
officials. Another Tribe suggested that evidence of treaty 
negotiations, non-ratified treaties, and termination legislation should 
all be considered conclusive rather than presumptive evidence. Another 
Tribe suggested that this section specifically include Federal 
legislation settling land claims as conclusive evidence where the 
legislation provides for mandatory or discretionary acquisitions. 
Another Tribe suggested that Federal efforts to conduct an accept or 
reject vote under section 18 of the IRA, even where no vote was held, 
should be treated as conclusive evidence.
     Response: Section 151.4 includes non-exhaustive lists of 
evidence to meet the conclusive and presumptive standards, as well as a 
third category for making a determination in the absence of conclusive 
or presumptive evidence. The ``other forms of evidence'' category is 
intended to be a catch-all category that allows the Secretary to give 
appropriate weight to forms of evidence not identified in the lists of 
``conclusive'' or ``presumptive'' evidence.
    The Department finds that Federal legislation settling tribal land 
claims is indicative that a Tribe was under Federal jurisdiction in or 
before 1934, therefore the Department has included such settlements as 
presumptive evidence. The Department finds that evidence of Federal 
efforts to conduct elections under section 18 of the IRA, even where no 
vote was held, should be treated as probative evidence of Federal 
jurisdiction in the absence of conclusive or presumptive evidence.
    Presumptive evidence is rebuttable and, even where presumptive 
evidence exists, the Department will engage in a detailed review of the 
historical record. If there is evidence that a Tribe was not under 
Federal jurisdiction in 1934, the Department will review all available 
evidence in concert to determine whether, as a whole, the evidentiary 
record supports a finding that the Tribe was under Federal jurisdiction 
in 1934.
    Comment: One Tribal community requested that the Department publish 
a list of Tribes that met these thresholds so that future applicants on 
that list could reference that publication. Another commenter suggested 
that the rules clarify that proposed Sec.  151.4(c) applies to all 
Tribes with favorable ``under Federal jurisdiction'' determinations and 
not just those ``eligible under section 5 of the IRA.'' A Tribe 
suggested that the Department clarify that past unfavorable ``under 
Federal jurisdiction'' determinations receive no precedential effect, 
and that the Department will review such applicants' future 
applications under this newly articulated standard.
     Response: Each Tribe is notified when they receive a 
positive ``under Federal jurisdiction'' determination and that analysis 
is maintained by the Department for future applications. Tribes that 
receive a positive determination from the Department will not need a 
future ``under Federal jurisdiction'' analysis for subsequent fee-to-
trust applications. Such prior determinations remain valid under the 
proposed revision. If a Tribe has received a negative ``under Federal 
jurisdiction'' determination from the Department prior to the issuance 
of the final rule, the Tribe may request a new determination under 
Sec.  151.4. Because the Department provides notice as described here, 
the Department declines to provide a separate publication of Tribes 
that have met the threshold.
    Comment: A Tribe requested clarification that proposed Sec.  151.4 
``incorporates existing case law'' and that the tests described have 
been ``repeatedly upheld by the Federal courts'' and suggested language 
to further clarify how the IRA and related laws are treated under this 
section.
     Response: Section 151.4 is based on the legal analysis 
articulated in Sol. Op. M-37029, ``The Meaning of `Under Federal 
Jurisdiction' for Purposes of the Indian Reorganization Act,'' as well 
as the Secretary's experience applying IRA's first definition of 
``Indian'' under section 19 in the almost fifteen years since the 
Supreme Court's decision in Carcieri v. Salazar, 555 U.S. 379 (2009). 
The Department agrees that the legal analysis and the types of evidence 
articulated in Sol. Op. M-37029 have been upheld as a reasonable 
interpretation of the IRA in Federal district and circuit courts. As 
such, future determinations made under Sec.  151.4 criteria will 
benefit from the jurisprudence developed around Sol. Op. M-37029. 
Because Sec.  151.4 is sufficiently clear on this point, the Department 
declines to make the suggested revision.
    Comment: Several Tribes believe that the current language in Sec.  
151.4, as it relates to the acquisitions of trust lands owned in fee by 
an Indian, was replaced without providing additional details or clarity 
for these types of acquisitions. Therefore, they suggested that the 
text from the existing Sec.  151.4 be maintained and further clarified 
in the new proposed section to account for this issue.
     Response: Existing Sec.  151.4, ``Acquisitions in trust of 
lands owned in fee by an Indian,'' was deleted as unnecessary, since 
the rule already provides for such acquisitions and no additional 
process or information was established.
    Comment: A commenting town suggested that the presumption that 
Tribes acknowledged through 25 CFR part 83 (part 83) were ``under 
Federal jurisdiction'' in 1934 should be eliminated, or a process 
should be established where this rebuttable presumption may be 
challenged. Others believe this provision is ``arbitrary and 
capricious'' and should be withdrawn,

[[Page 86236]]

noting that Federal acknowledgment materials reviewed under part 83 
could show instead that the Tribe was under State jurisdiction in 1934.
     Response: The final rule revises proposed Sec.  
151.4(a)(2)(vi)), and adds a new provision, Sec.  151.4(a)(4), to 
confirm that the Secretary may rely on evidence submitted in a 25 CFR 
part 83 proceeding to demonstrate the assertion of Federal jurisdiction 
in or before 1934. Depending on the nature of the evidence, it may be 
considered presumptive or probative, consistent with Sec.  151.4(a)(2) 
and (3).
    At the outset, the Department reiterates the principle that there 
is no temporal limitation on the term ``recognized'' in 25 U.S.C. 5129, 
and therefore a Tribe need not have been recognized by the Federal 
Government in 1934 to meet the IRA's definition of Indian. See 
Confederated Tribes of the Grande Cmty. Of Oregon v. Jewell, 830 F. 3d 
552, 561 (D.C. Cir. 2016). The question and analysis of whether the 
Federal Government acknowledges a Tribe under part 83 is a wholly 
different question than whether Federal jurisdiction existed over a 
Tribe in 1934. See id. at 565 (``Whether the government acknowledged 
Federal responsibilities toward a Tribe through a specialized, 
political relationship is a different question from whether those 
responsibilities in fact existed. And as the Secretary explained, we 
can understand the existence of such responsibilities sometimes from 
one Federal action that in and of itself will be sufficient, and at 
other times from a ``variety of actions when viewed in concert.''); 
Carcieri v. Salazar, 555 U.S. 379, 398 (2009) (Breyer, J., concurring) 
(noting that a Tribe may have been `` `under Federal jurisdiction in 
1934'--even though the Department did not know it at the time.'').
    By relying on evidence that supports both recognition under part 83 
and an ``under Federal jurisdiction'' determination for purposes of 
part 151, the Department is in no way suggesting that these inquiries 
are equivalent. Rather, when the evidence gathered as part of the part 
83 process includes evidence that the Federal Government had asserted 
jurisdiction over a Tribe in or before 1934, such evidence is relevant 
and the Secretary may consider it as part of her analysis under Sec.  
151.4.
    The Department declines to establish a new process for challenges 
to an ``under Federal jurisdiction'' analysis, as the process is 
internal to the Department and can be challenged through administrative 
appeal or Federal litigation after final decisions are issued.
    Comment: One Tribe provided suggested edits on how treaty 
negotiations should be treated under these regulations and proposed 
that Sec.  151.4(a)(2)(i) be moved to Sec.  151.4(a)(1) ``as conclusive 
evidence of Federal jurisdiction.'' The Tribe applauded the elevated 
treatment of ``[c]ontinuing existence of treaty rights . . .'' from 
presumptive evidence to conclusive evidence.
     Response: The Department declines to accept the 
commenter's suggestion to move evidence of treaty negotiations from 
presumptive to conclusive evidence. The Department has generally 
treated evidence of treaty negotiations in concert with other 
supporting evidence to evaluate whether a Tribe was under Federal 
jurisdiction in 1934.
    Comment: One non-Tribal commenter urged the rule to be limited to 
within reservation boundaries and, where outside those boundaries, to 
require consistency with enumerated policies. This commenter requested: 
examples of evidence in the regulations that would indicate Federal 
jurisdiction did not exist in 1934; and the elimination of any 
reference to ``climate change'' acquisitions.
     Response: The Department declines to accept the 
commenter's suggestions. Under the IRA, the Secretary's discretionary 
authority to acquire land in trust status is not limited to on-
reservation acquisitions. The Department believes that it is 
unnecessary to list evidence that may indicate Federal jurisdiction did 
not exist and declines to eliminate references to climate change.
    Comment: Alaska Tribes suggested specific language exempting them 
from the under Federal jurisdiction analysis.
     Response: This is addressed in the Sol. Op. M-37076 and 
the revised FTT Handbook. Because Alaska Tribes are eligible to have 
land taken into trust under 25 U.S.C. 5119 and a separate stand-alone 
definition of Indian in the IRA, it is not necessary that Alaska Tribes 
show they were under Federal jurisdiction and Sec.  151.4 does not 
apply.
    Comment: One Tribe requested that the Department further clarify 
what types of legislation are included in legislation enacted ``after 
1934 making the IRA applicable to the Tribe'' within the meaning of 
Sec.  151.4(b).
     Response: There are several statutes under which Congress 
expanded the Secretary's authority to take land into trust under the 
IRA. Determining whether a statute extended this authority to a 
specific Tribe, thereby eliminating the need for an under Federal 
jurisdiction analysis, requires a close examination of the statute's 
language and purpose. Because each statute varies in the language used, 
it is not feasible to identify in the final rule which types of 
legislation make the IRA and its fee-to-trust provisions applicable. 
One specific example of a subsequent statute extending section 5 of the 
IRA, and further underpinning the identification of a section 18 
election as conclusive evidence, is the ILCA. In the 1980s, Congress 
amended the IRA through ILCA, 25 U.S.C. 2202, to extend section 5 to 
all Tribes who voted in section 18 elections, notwithstanding the 
outcome of those elections.
    Comment: Some Tribes questioned whether the under Federal 
jurisdiction analysis provided for in Sec.  151.4 would be applied to a 
mandatory acquisition.
     Response: Per Sec.  151.1, the part 151 regulations do not 
apply to the acquisition of land mandated by Federal law. Therefore, no 
under Federal jurisdiction determination is required for a mandatory 
acquisition.

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

    Comment: One Tribe commented that Sec.  151.5 only contemplates a 
situation where a fee land-owning party and an individual Indian or 
Tribe might exchange lands with each other. However, the Tribe noted 
that another important instance involving an exchange of lands occurs 
when the small reservations of some Tribes, including the commenting 
Tribe, are bounded by and contiguous to other Federal lands, such as 
National Forest and Bureau of Land Management lands. For the commenting 
Tribe to add lands to their Reservation, they must acquire Federal 
lands through a land exchange with a Federal agency. Consequently, the 
Tribe requested that the following language be added to proposed Sec.  
151.5: ``The Secretary may acquire land in trust status on behalf of an 
individual Indian or Tribe by exchange under this part if authorized by 
Federal law and within the terms of this part. The secretary may 
directly acquire land to be conveyed to an individual Indian or Tribe 
pursuant to a Federal land exchange upon the individual Indian or Tribe 
authorizing the direct transfer of title from the Federal agency 
involved in the land exchange to the United States in trust for the 
individual Indian or Tribe. The disposal aspects of an exchange are 
governed by part 152 of this title, as applicable.''
     Response: The purpose of the regulations is to detail the 
process the Secretary will use in acquiring lands in trust. It is 
beyond the scope of these regulations to grant substantive rights

[[Page 86237]]

without statutory authority and the Department declines to make the 
suggested revision.

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

    Comment: While one Tribe commented that they have no problem with 
the proposed changes, another objected to the revisions in proposed 
Sec.  151.6. While the objecting Tribe appreciated the Department's 
replacement of the term ``buyer'' with ``applicant'' (which they 
believe better reflects the nature of such acquisitions), they 
expressed concern that the Department has taken no action to expand 
opportunities for the acquisition of a fractional interest through the 
discretionary process. The Tribe believes that both Federal law and the 
general principles of self-determination favor the idea that Tribal 
governments should be free to purchase fractional interests in their 
members' restricted Indian land over time and have such land taken into 
trust. Accordingly, they recommend revising proposed Sec.  151.6 to use 
``including, but not limited to'' language prior to the list of 
circumstances under which the Secretary may approve a fractional 
interest, signaling that the regulatory list is not exhaustive. In the 
alternative, they also recommended supplementing this section with 
additional categories that may extend opportunities for such 
acquisitions to Tribal governments that may be otherwise excluded under 
the current scheme.
     Response: The regulations are intended to guide the 
applicant and the agency in determining which fractional interests in 
lands are eligible for trust acquisition. The list is not intended to 
be exhaustive, and the enumerated categories covers the range of 
applicable conditions authorizing such acquisitions. Therefore, the 
Department has changed the language prior to the list of circumstances 
from ``only if'' to ``including when.''

Sec.  151.7 Is Tribal consent required for nonmember acquisitions?

    Comment: Many Tribes requested that the ``consent provision'' be 
clarified to state that it does not apply to Tribes with shared 
jurisdictions.
     Response: The Department understands that in certain 
instances Congress may have overridden the consent requirement provided 
for in the rule; however, the Department views the consent requirement 
as consistent with the IRA in that it supports Tribal self-governance.

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

    Comment: Most comments expressed overwhelming support for the new 
120-day time frame for decision, although many commenting Tribes also 
suggested that the regulations include a provision that an application 
will be deemed approved if the Secretary fails to meet this deadline or 
allow Tribe's recourse if a decision is not issued within the 
prescribed time frame.
     Response: The 120-day time frame for a decision is not 
intended to establish an independent cause of action but instead 
ensures the agency issues a decision on a completed application as 
efficiently and expeditiously as practicable. Because there are certain 
prerequisites that must be completed prior to acquiring land into trust 
(e.g., environmental analysis under NEPA) a deemed approved provision 
would be inappropriate.
    Comment: A few Tribes commented that the changes to proposed Sec.  
151.8(a)(5) impose no deadline on the Department to prepare a PTO to 
render the application ``complete'', which subsequently they assert 
makes the 120-day time frame illusory. To address this, they suggested 
that the proposed regulations be changed to permit a Tribe to prepare 
the PTO and require the Solicitor's Office to review and approve it 
within 30 days of receipt from the Tribe.
     Response: The FTT Handbook will include a time frame for 
completing the PTO but the Department notes it is outside BIA's 
authority to impose deadlines on other Departmental bureaus or offices.
    Comment: Several Tribes also noted that the proposed changes to 
Sec.  151.8(a)(4) impose no deadline on the Department to conduct a 
public review process under the National Environmental Policy Act 
(NEPA) and issue a final Environmental Assessment (EA) or an 
Environmental Impact Statement (EIS) document to render an application 
``complete.'' They suggested that where no categorical exclusion is 
issued, the proposed regulation should be changed to require the 
Department to name the applicant Tribe as a cooperating agency in a 
NEPA public review process; begin that process no later than 30 days 
after the Department receives a specific request from the Tribe; and 
conclude any EA process within six months and any EIS process within 12 
months.
     Response: Because each application contains different 
circumstances, the time for completing each NEPA document is different 
and cannot be mandated. The Secretary will grant Tribal requests for 
cooperating agency status where applicable and appropriate.
    Comment: One Tribe suggested that the Department consider adding 
additional clarification to the proposed regulations concerning the 
applicant's required contribution to the Secretary's environmental 
review under proposed Sec.  151.8(a)(4).
     Response: As written, this section maintains flexibility 
regarding the type of information the applicant must submit to comply 
with NEPA.
    Comment: One Tribe requested that the Department make clear that 
``many of the application requirements may be carried out 
simultaneously and need not proceed in sequential order as they are 
listed in the proposed rule.''
     Response: The FTT Handbook will specify the process for 
consideration of a Tribe's application. The Department notes that the 
fee-to-trust process is not always the same for each parcel. As 
described in Sec.  151.8(b), the Secretary will issue a decision on an 
application ``within 120 calendar days after issuance of the notice of 
a complete acquisition package.''
    Comment: Several Tribes noted that under proposed Sec.  
151.8(a)(3)(i), there is a requirement for a Tribe to ``include a 
statement of the estate to be acquired,'' but that this is not also 
mentioned for metes and bounds and survey descriptions.
     Response: The requirement for a Tribe to ``include a 
statement of the estate to be acquired'' has been added to the metes 
and bounds survey description in the renumbered Sec.  151.8(a)(4)(ii).
    Comment: One Tribe noted that requests for additional information 
under proposed Sec.  151.8(a)(8) that delay the acceptance of an 
application as complete may greatly extend the timeline. The Tribe 
suggests that proposed Sec.  151.8(a)(8) should be adjusted to read as 
follows: ``Any additional information or action reasonably requested by 
the Secretary in writing if warranted by unique and unusual 
circumstances in the specific application.''
     Response: The Department notes the section to which the 
Tribe refers now appears at proposed Sec.  151.8(a)(9). The Department 
declines to adopt the proposal. This section maintains flexibility to 
address the circumstances of each application and the need to ensure 
that the Secretary's final decision is legally sufficient.
    Comment: The Tribe also suggested that the Department maintain 
metrics following the final adoption of the

[[Page 86238]]

proposed rule, showing the entire timeline from original submission to 
approval (or denial) and examining whether significant delays occur 
before acceptance.
     Response: The Department maintains the official records of 
each application, including evidence of the timeline from original 
submission to decision. This information allows examination of delays 
prior to acceptance.
    Comment: A Tribal consortium requested more flexibility in 
environmental issues and suggested that Tribes be given the option to 
assume liability for environmental issues that remain on land being 
taken into trust.
     Response: In certain instances, the Department can accept 
land into trust with an encumbrance, lien, or infirmity when the Tribe 
agrees to enter into an indemnification agreement in favor of the BIA. 
While not expressly stated in the regulations, the ability exists with 
the Department on a case-by-case basis.
    Comment: Some commenting Tribes noted concerns over fee-to-trust 
acquisitions for gaming, suggesting that such applications be denied 
when gaming on the land in question would be prohibited by IGRA.
     Response: An application to take land in trust 
specifically for gaming purposes cannot proceed for gaming purposes if 
the land is determined to be ineligible for gaming pursuant to IGRA.

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

    Comment: Several Tribes suggested that the Department remove ``any 
requirement to show the BIA has the capacity to carry out its 
responsibilities if the land was placed in trust'' proposed Sec.  
151.9(a)(4)).
     Response: Because trust land acquisitions are 
discretionary, the Secretary must demonstrate support for their 
decision in the record. To ensure a complete evaluation, the Secretary 
will consider whether the BIA is equipped to fulfill its trust 
responsibilities for land acquired in trust and to provide the Federal 
programs and services that it makes available on trust lands.
    Comment: One Tribe commented that the Department should clarify 
what is meant by ``great weight'' under Sec.  151.9(b).
     Response: Section 151.9(b) acknowledges that certain 
purposes for land acquisition are particularly salient in light of the 
purposes of the IRA and the Secretary's land acquisition policy as 
articulated in Sec.  151.3. The Secretary will apply great weight to 
applications pursing these listed purposes by recognizing, and 
appropriately considering, the particular importance of acquiring land 
for these purposes. The Secretary would thus need to take the 
importance of the proposed acquisition into consideration in reviewing 
a request and would need to address this in any disapproval decision.
    Comment: One Tribe commented that while it welcomes a presumption 
in favor of approval for requests for acquisition of land within and 
contiguous to reservation boundaries, the proposed presumption should 
be clarified.
     Response: The Department has revised Sec.  151.9(c) to 
clarify that the Secretary presumes that an acquisition within the 
boundaries of a reservation will: (1) further at least one of the 
Tribal interests described in Sec.  151.9(b); (2) that adverse impacts 
to local governments' regulatory jurisdiction, real property taxes, and 
special assessments will be minimal; and (3) that the application 
should therefore be approved. The revised language clarifies which 
factors the presumption applies to and when the Secretary presumes an 
acquisition will be approved.
    Comment: One Tribe commented that if the effects on a State or 
local government's regulatory jurisdiction, real property taxes, and 
special assessments will be minimal, then the burden shifts to those 
opposing the acquisition to either prove that the acquisition does not 
meet one of the criteria listed at Sec.  151.9(b) or that the 
acquisition would adversely impact State or local governments.
     Response: The Department has revised Sec.  151.9(d) to 
include a comment period for State and local governments to submit 
written comments to rebut the presumption that the acquisition will 
have minimal adverse impacts to regulatory jurisdiction, real property 
taxes and special assessments.
    Comment: One Tribe believes the policies afforded great weight 
under proposed Sec.  151.9(b) may unduly limit the needs and uses for 
which Tribes may acquire land under the IRA. The Tribe suggests adding 
the following to the IRA's purpose: ``for the purpose of providing land 
for the Indians,'' along with the prior listing of ``housing'' and 
``economic development'' needs. The Tribe also suggests a rewording of 
the ``no change in use'' category.
     Response: The regulation does not limit the needs or uses 
for which a Tribe may acquire land within the boundaries of its 
reservation. The Department intended that Sec.  151.9(b) be broad by 
including the broad purpose of ``facilitating self-determination.'' 
Section 151.9(b) states that the Secretary will give great weight to 
acquisitions that ``will further Tribal interests by establishing a 
Tribal land base or protecting Tribal homelands.'' Establishing a 
Tribal land base or protecting Tribal homelands is equivalent to the 
IRA's purpose of ``providing land for Indians.'' Section 151.9(b) also 
includes housing and economic development as a purpose.
    Comment: One Tribe strongly suggested that proposed Sec.  
151.9(a)(3) be removed entirely, asserting that it second-guesses the 
Tribal applicant's self-governance decisions and is not necessary under 
NEPA. Another Tribe suggested that it is unclear what must be submitted 
to comply with proposed Sec.  151.9(a)(3), specifically concerning NEPA 
compliance implications referenced in the ``Summary of Changes'' in the 
Federal Register. Several Tribes also suggested edits to proposed Sec.  
151.9(b) that account for Tribes with rights tied to executive orders 
or other Federal laws.
     Response: It is important for the Secretary to understand 
the current proposed use of the land to be acquired. The use of the 
land will dictate the level of environmental review that is appropriate 
to comply with the Department's obligations under NEPA. NEPA requires 
Federal agencies to examine the environmental effects of proposed 
actions before making a decision. The Department's NEPA process 
requires the BIA to examine environmental and related social and 
economic effects. In some instances, they also require the Department 
to seek public comment. We do not agree that this undermines Tribal 
self-governance. In conducting an analysis under NEPA, the Department 
is not rejecting a Tribes reason for wanting the Department to accept 
the land in trust. But rather, it is reviewing the impacts of such an 
acquisition.
    Comment: Several counties, towns, and States expressed opposition 
to proposed Sec.  151.9, specifically expressing concern over how 
notice is afforded to States and local governments. Collectively, they 
asserted that: (1) it is not clear what will be included in the notice, 
(2) whether the notice is merely a courtesy, given the presumption to 
acquire on-reservation lands, or whether they will be given an 
opportunity to comment; and (3) whether the new presumptions for 
acquiring land, when coupled with the removal of the consideration of 
jurisdictional problems, potential conflicts of land use, the removal 
of considering the effects on a State and

[[Page 86239]]

local government's regulatory jurisdiction, real property taxes, and 
special assessments, and the expressed needs of Tribal applicants for 
additional land, are lawful. One commenter also suggested that the term 
``State and local governments with regulatory jurisdiction over the 
land to be acquired'' could result in a lack of any notice where 
jurisdiction is complicated or debatable, because the Department makes 
its own interpretation on that question.
     Response: Section 151.9(d) has been revised to solicit 
comments from State and local governments to rebut the presumption that 
an acquisition within the reservation boundary will have minimal 
adverse impacts to regulatory jurisdiction, real property taxes, and 
special assessments. The Department also notes and confirms that any 
comments received on an application, even if not requested, will be 
considered as part of the overall decision-making process. While not 
included in the regulation, the BIA will publish guidance in the FTT 
Handbook outlining how notice will be provided.
    Comment: Several Tribes commented that the Department should 
clarify in the preamble or the final rule that ``State and local 
governments only have regulatory jurisdiction over on-reservation fee 
land owned by non-Indians.'' One Tribe also urged the Department to not 
allow State and local comments on their own to overcome ``a decision to 
approve a trust acquisition.''
     Response: The scope of State and local jurisdiction over 
fee lands within the boundaries of Indian reservations is outside the 
scope of these regulations and, for that reason, the Department 
declines to adopt the recommendation. With respect to the role of State 
and local comments, the decision to approve or disapprove an 
application will be based on whether the application complies with the 
regulatory criteria and other applicable statutory or regulatory 
requirements. The Department will consider comments submitted on 
pending applications.

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

    Comment: One Tribe suggested that ``great weight'' should be 
afforded contiguous acquisitions ``within the original boundary of the 
Tribal applicant's reservation.''
     Response: The Department understands the policy reasons 
for the requested change. However, the process for determining the 
``original boundary'' could add significant complexity and time to the 
acquisition process. Because the intent behind this rulemaking is to 
provide a more efficient process, the Department declines to make this 
change.
    Comment: Another Tribe suggested the Department should give greater 
weight to the presumptions in proposed Sec.  151.10(c) and (d) when 
evaluating State and local comments for impacts to their regulatory 
jurisdiction, real property taxes, and special assessments.
     Response: The final rule already provides for a 
presumption in favor of approval in Sec.  151.10(c) and a presumption 
that the Tribe will benefit from the acquisition in Sec.  151.10(d). No 
additional weight is necessary to facilitate the intent of the 
rulemaking.
    Comment: A Tribe also suggested that the Department should clarify 
that State and local comments alone are insufficient to ``overcome a 
decision to approve a trust acquisition''.
     Response: The Department agrees that State and local 
governments do not have veto authority over the decisions to acquire 
land in trust contemplated by this part. The Secretary will consider 
comments received on pending applications consistent with this part.
    Comment: This same Tribe also suggested technical edits to 
harmonize proposed Section 151.10(b) with the proposed changes to Sec.  
151.3(b)(3).
     Response: The final rule was revised to harmonize the 
purposes for acquiring land into trust listed in Sec. Sec.  151.10(b) 
and 151.3(b)(3).
    Comment: Another Tribe stated that the Department should not even 
solicit State and local government comments, which they assert is 
consistent with the process described for on-reservation acquisitions.
     Response: It is appropriate for the Secretary to consider 
comments received from State and local governments for acquisitions 
evaluated under this part. The Department also notes that the final 
rule has been revised to provide an opportunity for State and local 
governments to provide comments for acquisition within reservation 
boundaries. The Secretary's consideration of comments received on 
pending applications ensures they have a complete view of the 
complexities surrounding an acquisition. It also provides an 
opportunity for the applicant to address concerns raised as part of the 
process, thereby reducing the likelihood of legal challenges when those 
concerns are considered prior to the acquisition.
    Comment: One Tribe suggested that when the Department receives and 
reviews State and local government comments, it should be both mindful 
and give great weight to the fact that the local Tribe and the 
Department ``are already providing services to the contiguous parcel.''
     Response: As with the existing regulation, the Secretary 
will consider all factors relevant to understanding the potential 
impact on regulatory jurisdiction, real property taxes, special 
assessment and services to a particular parcel as identified by the 
commenting State or local government. While the final rule does not 
give a specific weight to comments and concerns raised by local 
governments or States, it is not true that it gives them no weight. The 
Secretary will consider any and all comments and concerns raised by 
local communities or States in making a decision to acquire land in 
trust for a Tribe.
    Comment: One Tribe opposed the proposed changes to Sec.  
151.10(a)(3), stating that allowing the Secretary to evaluate the 
purposes for which a Tribe will use its own land within its own 
reservation is inconsistent with self-determination policy.
     Response: The Secretary needs to know the purpose for 
which the land is to be used to determine the appropriate level of 
environmental review to comply with NEPA. NEPA requires Federal 
agencies to examine the environmental effects of proposed actions 
before making a decision. The Department's NEPA process requires the 
BIA to examine environmental and related social and economic effects. 
In some instances, they also require the Department to seek public 
comment. We do not agree that this undermines Tribal self-governance. 
In conducting an analysis under NEPA, the Department is not rejecting a 
Tribes reason for wanting the Department to accept the land in trust. 
But rather, it is reviewing the impacts of such an acquisition.
    Comment: Additionally, the same Tribe opposed proposed Sec.  
151.10(a)(4), stating that it is ``outdated and perpetuates a callous 
and abusive Federal policy discarded decades ago because of its moral 
bankruptcy.''
     Response: Acquisitions under section 5 of the IRA are 
discretionary and have been subject to Federal resource considerations 
since the IRA was first enacted. When the United States takes land into 
trust, it exercises trust responsibilities as to those lands and 
extends Federal programs and services to those lands. Therefore, in 
exercising her discretion, the Secretary must decide whether BIA is 
equipped to assume these fiduciary obligations and discharge the 
additional responsibilities associated with the acquisition. Section 
151.10(a)(4) is a legitimate consideration

[[Page 86240]]

as part of the acquisition process Department declines to make the 
suggested revision.
    Comment: Another Tribe submitted comments seeking a specific tax 
exemption under the regulations to address a longstanding fee-to-trust 
issue they have been dealing with.
     Response: The purpose of the regulations is to detail the 
process the Secretary will use in acquiring lands in trust. It is 
beyond the scope of these regulations to grant substantive rights 
without statutory authority.
    Comment: Another Tribe requested a time frame for when BIA must 
provide the Tribal applicant a copy of any comments received from State 
or local governments (suggesting a 10-day window to provide such copies 
to the Tribal applicant). Another Tribe requested that other affected 
Tribes be included in the notice for comment sent to State and local 
governments.
     Response: The BIA is in the process of updating the FTT 
Handbook to reflect the changes made by this final rule. The FTT 
Handbook is a more appropriate location to include any intermediate 
time frames designed to ensure compliance with the broader 120-day time 
frame to issue a decision on a complete acquisition package.
    Comment: One Tribe suggested a new category of ``adjacent'' lands 
be added to the ``contiguous'' acquisition analysis to account for that 
category of lands that are currently ``off-reservation'' lands, but 
that should be afforded greater weight as lands that are ``closely 
connected or intrinsically linked to lands held in trust'' for the 
applicant Tribe.
     Response: The Department acknowledges that lands adjacent 
to a reservation may be closely connected to or linked to lands held in 
trust; however, the definition of contiguous provides sufficient 
clarity to determine the appropriate criteria to use to evaluate the 
application. The Department also notes that establishing a standard for 
what constitutes ``adjacent'' would be difficult considering the 
differences in geography between Tribal land holdings. Applying such a 
standard would also add a layer of complexity and time to the fee-to-
trust process, which would undercut the purpose of this rulemaking to 
make the process more efficient.
    Comment: Another Tribe suggested that the Department clarify that 
``contiguous'' acquisitions are also ``contiguous'' for gaming purposes 
under 25 CFR 292.2 (the Tribe offered draft edits for consideration).
     Response: The definition of contiguous is consistent with 
the part 292 definition, and in general should result in a similar 
analysis; however, part 151 and part 292 determinations are separate 
and rely on different statutory authority.
    Comment: Several Tribes also suggested edits to proposed Sec.  
151.10(b) that account for Tribes with rights tied to executive orders 
or other Federal laws.
     Response: The final rule does not relieve the Department 
of its obligations to adhere to any relevant executive order or any 
other Federal laws. The final rule provides sufficient clarity, and 
thus no additional language is necessary.
    Comment: One Tribe commented that while it welcomed a presumption 
in favor of approval for requests for acquisition of land within and 
contiguous to reservation boundaries, the proposed presumption in 
Sec. Sec.  151.9 and 151.10 should be further clarified as they believe 
it is not clear which of the criteria in these sections an applicant 
Tribe would no longer need to affirmatively prove, and what an opposing 
party would need to produce or persuade to overcome the presumption. 
The Tribe consequently proposed the following change to proposed Sec.  
151.10: ``When reviewing a Tribe's request for land within the 
boundaries of an Indian reservation, the Secretary presumes that the 
acquisition will further the Tribal interests described above in 
subsection (b), and adverse impacts to local governments' regulatory 
jurisdiction, real property taxes, and special assessments will be 
minimal, therefore the application should be approved.''
     Response: This language has been incorporated into 
Sec. Sec.  151.9(c), 151.10(c), and 151.12(c).
    Comment: Several State and local governments opposed the proposed 
changes in Sec.  151.10 and expressed concern about whether the new 
presumptions for acquiring land, when coupled with the removal of the 
consideration of jurisdictional problems, potential conflicts of land 
use, and the expressed needs of Tribal applicants for additional land, 
are lawful. Commenters' specific legal concerns include that ``BIA will 
also not consider as a factor possible jurisdictional and land use 
conflicts that may arise between local governments and the Tribes'' 
which may ``lead to costly and time-consuming litigation for both 
Tribes and local governments on jurisdictional and land use issues''; 
that the removal of the consideration of jurisdictional problems 
``would have the effect of obfuscating the legitimate function and role 
of county governments, which are responsible for land use planning and 
the provision of important local services''; and would generate 
``conflicts that go straight to the heart of the considerations 
Congress intended the Department to weight in exercising its judgment 
under the Indian Reorganization Act of 1934 (IRA) to approve or deny a 
request to take land into trust.''
     Response: We disagree with the premise that including 
presumptions would make the acquisitions unlawful. Congress has 
provided the Secretary with the authority to acquire land into trust 
for Tribes. See Act of June 18, 1934, Public Law 73-383, 48 Stat. 984 
(codified as amended at 25 U.S.C. 5101 through 5129). Congress enacted 
the IRA to ``establish machinery whereby Indian Tribes would be able to 
assume a greater degree of self-government, both politically and 
economically.'' Morton v. Mancari, 417 U.S. 535, 542 (1972). 
Restoration of Tribal homelands through trust acquisition is pivotal to 
achieving the Tribal self-government, self-determination, and economic 
goals of the statute. See, e.g., Match-E-Be-Nash-She-Wish Band of 
Pottawatomi Indians v. Patchak, 567 U.S. 209, 226 (2012) (describing 
section 5 as the ``capstone'' of the Indian Reorganization Act's land 
provisions). The addition of a presumption in favor of acquisitions 
within reservation boundaries is thus consistent with the goals of the 
IRA of Tribal land restoration and consolidation. The statute does not 
include any presumption; however, it is within the Secretary's 
discretion to include one that supports the overall goals of the 
statute. Commentors, including State and local governments, may submit 
comments and evidence for the Secretary's consideration seeking to 
rebut the presumption. Upon receipt of a comment from any interested 
party, including a State or local government, the Department would then 
be positioned to consider any jurisdictional and land use conflicts 
that may arise, to consider function and role of county governments as 
they relate to a putative acquisition, and to consider all viewpoints 
in exercising its delegated authority under the Indian Reorganization 
Act.
    Comment: They also expressed concerns about the 30-day comment 
period being too short to meaningfully comment on acquisitions, as well 
as the need for criteria defining how notice will be provided to State 
and local governments.
     Response: We disagree. In the Department's experience, 30 
days is sufficient time to provide comments on pending applications. 
The 30-day

[[Page 86241]]

comment period was codified in the 1995 part 151 regulations. The 
preamble to that regulation noted that the timeframe was based on BIA's 
past experience with informal consultation. See 60 FR 32874, 32877 
(June 23, 1995). The Department continues to believe, based on its 
experience, that 30 days is sufficient. Indeed, the information 
requested by the Secretary is more likely retrievable within 30 days 
using current information technology and electronic means.
    Comment: Separately, several of these commenters noted that State 
and local comments are not afforded ``great weight'' and assert that 
they should be.
     Response: The Department considers all comments but 
declines to accept the proposal which would specify the weight that 
must be given to these comments. Through the IRA and other Federal 
statutes authorizing trust acquisitions, Congress has authorized the 
Secretary to acquire land in trust for Indian Tribes and individual 
Indians, subject to the requirements set forth in the statutes. The 
regulations contemplate that the Secretary will consider comments 
submitted by State and local governments on pending applications as 
part of the decision-making process. The Department declines to expand 
or elevate the role of State or local governments in this process.
    Comment: Additionally, a State Attorney General proposed language 
for Sec.  151.10(d) that prescribes a process for providing notice to 
State and local governments and what that notice should include.
     Response: The specific manner for providing notice and 
seeking comment from third parties is better suited to internal 
guidance documents such as the BIA's Fee-To-Trust Handbook. The process 
proposed by the commenter would have the effect of slowing down the 
processing of applications and greatly expand the role of States and 
municipalities far beyond what is in the current regulations. The 
Department therefore declines to make the suggested revision in the 
proposed regulation. The Department will consider this proposed 
language as internal guidance documents are revised, including the Fee-
To-Trust Handbook.
    Comment: One State commented that they believed the ``presumption 
that contiguous lands be approved'' is unclear, i.e., there is ``no 
description of the weight of the presumption.'' The State also noted 
that it is unclear whether the presumption is rebuttable and--if so--
how is it rebutted?
     Response: Section 151.10(c) clarifies that the Secretary 
will presume that the acquisition ``will further the Tribal interests 
described in paragraph (b) of this section, and adverse impacts to 
local governments' regulatory jurisdiction, real property taxes, and 
special assessments will be minimal, therefore the application should 
be approved.'' The revised language clarifies which factors the 
presumption applies to and when the Secretary presumes an acquisition 
will be approved. Presumptions are rebuttable by providing evidence 
that does more than simply support an alternative conclusion. 
Commentors, including State and local governments, may submit comments 
and evidence for the Secretary's consideration seeking to rebut the 
presumption. The Secretary will consider such evidence in making a 
decision on the Tribe's application.

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

    Comment: One Tribe suggested that the Department give ``great 
weight'' to off-reservation acquisitions ``within the aboriginal or 
`ceded' lands of the Tribal applicant.'' One Tribe proposed that the 
Secretary consider the community benefits and give the greatest weight 
to the interests and concerns of Tribes with aboriginal ties to the 
proposed location.''
     Response: Determining the location and extent of a Tribe's 
aboriginal lands often requires a lengthy review of applicable law and 
fact. Such a change is inconsistent with the intent to streamline the 
fee-to-trust process.
    Comment: Several Tribes suggested that local Tribal governments 
receive notice of a Tribe's application and be given an opportunity to 
provide comments.
     Response: Given the differences in geography between all 
Tribal land holdings, it would be difficult to establish a national 
regulatory standard that defines ``local Tribal governments'' in a 
consistent and equitable manner, therefore the Department declines to 
define ``local Tribal governments'' for the purpose of notice and 
comment. Tribes may, however, submit comments to the Department on an 
application that will be considered by the Department as part of the 
application review process.
    Comment: A Tribal consortium suggested that ``given Alaska's unique 
history, land acquisitions within Alaska Native Village Statistical 
Areas should be treated as `on-reservation acquisitions' and not off-
reservation acquisitions.''
     Response: Initial trust acquisitions in Alaska will be 
analyzed under Sec.  151.12 if they are the first trust acquisition for 
an Alaska Tribe. Because very little land is held in trust for Alaska 
Tribes, this likely will be the standard for almost all initial 
acquisitions for Alaska Tribes. After the initial acquisition, however, 
Alaska acquisitions will be evaluated using the criteria articulated in 
this final rule. This supports a uniform application of the land 
acquisition process in Alaska and the lower 48 States.
    Comment: One Tribe suggested that the Department clarify that State 
and local government comments alone are insufficient to overcome a 
decision to approve a trust acquisition.
     Response: State and local comments opposing an off-
reservation acquisition do not serve as a veto.
    Comment: Several Tribes expressed support for retaining the 30-day 
comment period, requiring that those comments be provided to Tribal 
governments for rebuttal, and that States and local governments be 
limited to commenting only on impacts to their regulatory jurisdiction, 
real property taxes, and special assessments. One Tribe requested that 
a timeframe be included for when BIA must provide a Tribal applicant 
with a copy of any comments received from State or local governments 
(suggesting a 10-day window).
     Response: We decline to limit the subject areas any party 
may comment on regarding a specific application. We also believe that 
timelines for providing a Tribal applicant a copy of any comments 
received are better addressed in the BIA Fee-To-Trust Handbook.
    Comment: Several Tribes suggested edits to proposed Sec.  151.11(b) 
that account for Tribes with rights tied to Executive orders or other 
Federal laws.
     Response: The final rule does not relieve the Department 
of its obligations to adhere to any relevant Executive order or any 
other Federal laws.
    Comment: Several State, local and Tribal governments opposed the 
removal of the current Sec.  151.11(b), which they assert increases 
scrutiny the further from a reservation the land is while giving 
greater weight to State and local government concerns. In a related 
comment, one Tribe suggested adding a presumption of approval for land 
located outside of and noncontiguous to an Indian reservation.
     Response: In enacting the IRA, Congress did not limit 
trust acquisitions to within a certain distance from a Tribe's 
reservation. The Department recognizes, however, that off-reservation 
acquisitions may present different issues than on-reservation or 
contiguous acquisitions. The existing Sec.  151.11(b)

[[Page 86242]]

unnecessarily applies heightened scrutiny to off-reservation 
acquisitions based on distance alone. There are numerous factors other 
than distance from a Tribe's existing reservation that should be 
considered as part of an off-reservation acquisition. Therefore, the 
Secretary will not presume that an off-reservation application will be 
approved but will consider the location of the land along with the 
other criteria in Sec.  151.11 before issuing a decision. In addition, 
this sentence was edited for clarity and succinctness: ``[t]he 
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,'' to ``[t]he Secretary presumes 
that the Tribe will benefit from the acquisition.''
    Comment: Several commenters found the proposed language ``in 
reviewing such comments, the Secretary will consider the location of 
the land'' in Sec.  151.11(c) vague. A local county stated that ``that 
there are far greater considerations than location to consider, such as 
the financial impact on local governments, local taxing authorities and 
local taxpayers as lands are proposed for acquisition as trust lands.'' 
A county opposed the purported removal of consideration of 
``jurisdiction problems and potential conflicts of land use'' from 
consideration.
     Response: The sentence was edited for clarity to: ``[i]n 
reviewing such comments, the Secretary will consider the location of 
the land and potential conflicts of land use.'' The Secretary will 
consider potential conflicts of land use for proposed trust acquisition 
located outside of and non-contiguous to a Tribe's reservation or trust 
land. Consideration of an acquisition's potential impact on regulatory 
jurisdiction, real property taxes, and special assessments is already 
included in this section. Consideration of ``jurisdiction problems and 
potential conflicts of land use'' is retained for Sec. Sec.  151.11(c) 
and 151.12(c).
    Comment: One non-Tribal commenter suggested a gaming carve-out, 
which would apply the current Sec.  151.11(b) equivalent to 
acquisitions where gaming will be conducted. There are concerns from 
non-Tribal entities that Tribes can conceivably acquire land across the 
United States, and these concerns are also expressed as gaming concerns 
in certain comments.
     Response: This final rule applies to all fee-to-trust 
acquisitions. Where a fee-to-trust application is for the purpose of 
conducting Indian gaming, a determination whether the land is eligible 
for gaming is required by the IGRA and its implementing regulations at 
25 CFR part 292. Thus, there is no need for this rule to address gaming 
matters.
    Comment: Several commenting State and local governments oppose the 
removal of the requirement that Tribal applicants submit business plans 
for review, suggesting it would eliminate a source of information used 
to evaluate local impacts of the putative acquisition.
     Response: Requiring a Tribal applicant to disclose its 
business plan is inconsistent with Tribal self-determination. Tribes 
and State and local governments may share information to evaluate local 
impacts even without a requirement and Tribal applicants and State and 
local governments are encouraged to discuss issues of common concern.
    Comment: They also expressed concerns that the 30-day comment 
period was too short to provide meaningful comments, as well as the 
need for criteria defining how notice will be provided to State and 
local governments.
     Response: In the Department's experience 30 days is 
sufficient time to provide the type of comments that will inform the 
Secretary's decision. The 30-day comment period was codified in the 
1995 part 151 regulations. The preamble to that regulation noted that 
the timeframe was based on BIA's past experience with informal 
consultation. See 60 FR 32874, 32877 (June 23, 1995). The Department 
continues to believe, based on its experience, that 30 days is 
sufficient. Indeed, the information requested by the Secretary is more 
likely retrievable within 30 days using current electronic means.
    Comment: A State Attorney General suggested revisions for proposed 
Sec.  151.11(d) that would prescribe a process for providing notice to 
State and local governments and what that notice would include.
     Response: The specific manner for providing notice and 
seeking comment from third parties is better suited to internal 
guidance documents such as the Fee-To-Trust Handbook. The regulations 
provide a timeframe in which States and local governments can submit 
comments on an application. Therefore, we do not see why it would be 
necessary to put a deadline on when the BIA sends notification of an 
application to States or local governments. The Department therefore 
declines to make the suggested revision.
    Comment: A town expressed skepticism regarding the blanket 
presumption of community benefits for off-reservation acquisitions and 
noted that it is unclear how this presumption can be rebutted.
     Response: Where a Tribe takes land into trust off-
reservation, 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.
    Comment: A local jurisdiction commented that while the proposed 
rule would give ``great weight'' to Tribal concerns, it would give no 
weight to the comments or concerns of the local community or to the 
State in the decision-making process. Several commenters noted that 
State and local comments are not afforded ``great weight'' and asserted 
that they should be.
     Response: Through the IRA, Congress has authorized the 
Secretary to acquire land in trust for Tribes and individual Indians, 
subject to the requirements set forth in the statute. The regulations 
contemplate that the Secretary will consider comments submitted by 
State and local governments on pending applications as part of the 
decision-making process. The Department declines to expand or elevate 
the role of State or local governments in this process coequal to 
Tribal concerns because the IRA sets forth an explicit ``purpose of 
providing land for Indians'' and includes no such purpose for State or 
local governments.
    Comment: One Tribe recommend that Tribes with dispersed trust lands 
be accommodated by adding a provision that if the proposed acquisition 
is within five miles of a Tribe's existing trust land, that the 
application will be considered a contiguous application.
     Response: It would be difficult to establish a national 
regulatory standard to accommodate all Tribes with dispersed lands 
considering the differences in geography between all Tribal land 
holdings.

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

    Comment: Most commenting Tribes expressed general support for the 
proposed changes to Sec.  151.12. One Tribe appreciated the addition of 
``economic development and Indian housing'' and ``self-determination,'' 
as reflected in the proposed changes to Sec.  151.12(b). They also 
supported the ``presumption of community benefits in Sec.  151.12.'' 
However, some Tribes suggested that the Department's presumption of

[[Page 86243]]

community benefits should only apply where the initial acquisition is 
within the Tribal applicant's ``aboriginal territory.'' Another Tribe 
would like this section expanded beyond an ``initial Indian 
acquisition'' to include acquisitions for ``a modest or minimal 
homeland.''
     Response: Determining the location and extent of a Tribe's 
aboriginal lands often requires a lengthy review of applicable law and 
fact. Such a change is inconsistent with the intent to streamline the 
fee-to-trust process.
    Comment: One Tribe suggested that the Department clarify that the 
receipt of State and local comments alone is insufficient to ``overcome 
a decision to approve a trust acquisition.'' Tribes also expressed 
support for retaining the 30-day comment period, requiring that those 
comments be provided to Tribes for rebuttal, and that States and local 
governments be limited to commenting only on impacts to their 
regulatory jurisdiction, real property taxes, and special assessments.
     Response: In the Department's experience, 30 days is 
adequate for the purposes of implementing the IRA. The solicitation of 
comments from State and local governments is to assist the Secretary in 
assessing the regulatory criteria. The Department agrees that State and 
local governments do not have veto authority over the decisions to 
acquire land in trust contemplated by this part. The Secretary will 
consider comments received on pending applications consistent with this 
part.
    Comment: Several Tribes suggested edits to proposed Sec.  151.12(b) 
that account for Tribes with rights tied to executive orders or other 
Federal laws.
     Response: The final rule does not relieve the Department 
of its obligations to adhere to any relevant executive order or any 
other Federal laws.
    Comment: One Tribe provided edits it believed would better 
harmonize proposed Sec.  151.12(b) with proposed Sec.  151.3(b)(3).
     Response: Edits have been incorporated to harmonize the 
purposes for accepting land into trust listed in Sec. Sec.  151.12(b) 
and 151.3(b)(3).
    Comment: Several State and local governments expressed concerns 
about the 30-day comment period being too short to allow them to 
provide meaningful comments, as well as the need for criteria defining 
how notice will be provided to State and local governments. Separately, 
several commenters noted that State and local comments are not afforded 
``great weight'' and asserted that they should be.
     Response: In the Department's experience, 30 days is 
sufficient time to provide the type of comments that will inform the 
Secretary's decision. The 30-day comment period was codified in the 
1995 part 151 regulations. The preamble to that regulation noted that 
the timeframe was based on BIA's past experience. See 60 FR 32874, 
32877 (June 23, 1995). The Department continues to believe, based on 
its experience, that 30 days is sufficient. Indeed, the information 
requested by the Secretary is more likely retrievable within 30 days 
using current electronic means.
    Through the IRA and other Federal statutes authorizing trust 
acquisitions, Congress has authorized the Secretary to acquire land in 
trust for Tribes and individual Indians, subject to the requirements 
set forth in the statutes. The regulations contemplate that the 
Secretary will consider comments submitted by State and local 
governments on pending applications as part of the decision-making 
process. The Department declines to expand or elevate the role of State 
or local governments in this process.

Sec.  151.13 How will the Secretary act on requests?

    Comment: One Tribe requested that the definition of interested 
party also match the definition of interested party in the part 2 
regulations. They also requested that interested parties be required to 
obtain a bond.
     Response: The Department declines the proposed additions. 
The part 151 interested party definition closely resembles proposed 25 
CFR part 2 regulation, wherein interested party is defined as ``a 
person or entity whose legally protected interests are adversely 
affected by the decision on appeal or may be adversely affected by the 
decision of the reviewing official.'' See Proposed Rule, Appeals from 
Administrative Actions, 87 FR 73688 (Dec. 1, 2022). The part 2 
regulation further defines those entities adversely affected by a 
decision. As set forth above, for purposes of part 151, it is not 
necessary for an interested party to be adversely affected but instead 
that they have a legally protected interest affected by a decision. We 
note that it is possible for a party to satisfy the definition of 
Interested party yet have no right to appeal a decision i.e., have no 
standing to do so. The Department also notes that providing notice to a 
party does not confer legal standing to bring a challenge. Bonding 
requirements related to administrative appeals under part 2 is outside 
the scope of these regulations.
    Comment: Several Tribes expressed concern about the definition of 
interested party and one expressed concern about the standing 
requirements for interested parties, suggesting that purely economic 
interests should not be sufficient.
     Response: As explained herein, the definition of 
interested party tracks the definition of ``interested party'' in part 
2--the regulations which govern the appeals process, except that for 
part 151 purposes, a person or entity may be an interested party and 
thus entitled to notice of the decision if they make themselves known 
in writing to the BIA in advance of the decision, even if they are not 
``adversely affected'' by a potential decision. We note that it is 
possible for a party to satisfy the definition of interested party in 
part 151 yet have no right to appeal a decision i.e., have no standing 
to do so. The Department also notes that providing notice to a party 
does not confer legal standing to bring a challenge. The standing 
requirements to pursue an administrative appeal are outside the scope 
of these regulations.
    Comment: One Tribe and an individual commenter both requested that 
paragraph (d) be removed.
    Response: The Department declines to remove Sec.  151.13(d). A 
decision made by a BIA Regional Director or other BIA official does not 
represent the consummation of the agency's decision-making process 
until either administrative remedies have been exhausted or the appeal 
period has expired. Furthermore, eliminating Sec.  151.13(d) would 
require the Assistant Secretary--Indian Affairs to sign each fee-to-
trust decision, a responsibility that has been delegated to BIA 
regional directors to increase efficiency in the process. The majority 
of fee-to-trust decisions are not challenged, and if the responsibility 
to decide every application rested on Assistant Secretary--Indian 
Affairs, it would put a burden on the process and create further 
backlog of applications.
    Comment: One Tribe requested that digital publication be accepted 
for notification along with written publication in Sec.  
151.13(d)(2)(iii).
     Response: The final rule includes the requirement that 
written notice be sent to ensure receipt. The final rule does not 
foreclose using email as an additional form of notification. The Fee-
to-Trust Handbook will include discussion of instances when email 
notice can be provided as a courtesy. The Department declines to 
digitally publish notice of a decision and the right of interested 
parties to file an appeal in addition to written

[[Page 86244]]

notification in the local newspaper. The Department believes that 
digital publication on the BIA website is unnecessary given that 
written notice will be provided. Under Sec.  151.13(d)(2)(ii), the 
Department provides direct written notice of the decision and the 
opportunity to appeal to interested parties who have made themselves 
known in writing to the BIA in advance of the decision and State and 
local governments with regulatory jurisdiction over the land. The 
Department believes that these direct notices in addition to 
publication in the local newspaper to notify other potentially 
interested parties is sufficient notice.
    Comment: One Tribal commenter expressed strong support for the 
provision in Sec.  151.13(c)(iii) to immediately acquire land into 
trust status.
     Response: Per these regulations, land will be immediately 
acquired into trust when the requirements of part 151 have been met. If 
the decision to take land into trust is made by a BIA official, then 
the appeal period must expire, or administrative remedies must be 
exhausted before the land is accepted into trust.
    Comment: An association of counties expressed concern that the 
proposed changes to Sec.  151.13 would limit their ability to fully 
participate in the comment process.
     Response: Under the final rule counties can participate in 
the process through submission of comments.

Sec.  151.14 How will the Secretary review title?

    Comment: One Tribe commented that proposed Sec.  151.14, as 
written, seems to require applicants to submit title evidence only 
after ``the Secretary approves a request for the acquisition of land'' 
and requested further clarification.
     Response: Pursuant to Sec.  151.8(a)(6), title evidence as 
described under Sec.  151.14 must be submitted as part of an 
acquisition package in order for the Department to consider the 
acquisition package complete and ready for review. Additionally, 
pursuant to Sec.  151.8(a)(6)(i), an acquisition package is not 
complete until the Secretary completes a PTO based on the title 
evidence submitted. The Department amended Sec.  151.14 to reflect that 
title evidence must be submitted as part of the complete acquisition 
package described in Sec.  151.8.
    Comment: Two Tribes requested that DOI clarify the standards for 
title evidence. One Tribe specifical asked that DOI include reference 
to Department of Justice (DOJ) title standards.
     Response: The Department understands these requests to be 
seeking confirmation that the DOJ title standards will be included in 
Sec.  151.14. Section 151.14(a)(3) aligns with these requests because 
Sec.  151.14(a)(3) includes reference to DOJ's title standards.
    Comment: One Tribe requested that PTOs be shared directly with the 
applicant Tribe. Additionally, the Tribe requested an additional change 
to proposed Sec.  151.14 to prevent continued practices that do not 
align with accepted real estate best practices. Finally, the Tribe 
requested that qualified Tribal officials be permitted to complete the 
Certifications of Inspection.
    Response: The PTO is a lawyer client privileged document. To the 
extent any issues are identified in the PTO those issues are shared 
with the applicant so that they can be addressed. It is the policy of 
the BIA to ensure compliance with all applicable real estate service 
regulation, requirements, and standards, and to promote sustainable 
practices. See 52 IAM 1.3. Additionally, based on years of experience 
in trust transactions, the procedures found in Sec.  151.14 are 
consistent with accepted real estate best practices. To ensure full 
compliance with this regulation, BIA will retain responsibilities to 
complete Certificates of Inspection.
    Comment: One Tribe suggested a new section regarding 
indemnification agreements: If a Tribe is willing to accept an 
encumbrance, liens, or infirmity, the Department will accept the 
Tribe's judgment and allow the application to proceed, provided (a) the 
Tribe enters an indemnification agreement in favor of the BIA with 
respect to the issue, (b) the risk of liability is low or the magnitude 
of the liability is low, and (c) the Tribe agrees it can use the 
property for its intended purpose while the encumbrance remains.
     Response: In certain instances, the Department can accept 
into trust land with an encumbrance, lien or infirmity when the Tribe 
agrees to enter into an indemnification agreement in favor of the BIA. 
While not expressly written into the regulations, the ability exists 
with the Department on a case-by-case basis.
    Comment: One Tribe suggested that clarification is still needed on 
what documents of title evidence are sufficient for the acquisition 
package and whether they are the same as those required if the request 
for acquisition is approved.
     Response: Sufficient documents of title evidence are 
listed in Sec.  151.14. Section 151.8(a)(6) now explicitly refers to 
including title evidence listed in Sec.  151.14. The Department 
understands that the documentation available to satisfy the criteria 
under Sec.  151.14(a)(2)(ii) can vary by title company and what type of 
title document it is willing to issue. For that reason, we have 
included the term ``or equivalent'' to provide discretion in 
determining whether the documentation provided is sufficient to ensure 
marketable title. Additionally, the Department removed the requirement 
that the policy of title insurance be less than five (5) years old 
because the intent is to ensure marketable title which will require an 
individualized analysis rather than a bright line time limit on the 
issuance of the policy of title insurance.

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

    Comment: One county requested that a socio-economic impact report 
be included as part of the NEPA environmental impact analysis.
     Response: In determining the information to be analyzed in 
an environmental impact analysis, the Secretary shall comply with the 
requirements of NEPA (43 U.S.C. 4321 et seq.), applicable Council on 
Environmental Quality regulations (40 CFR parts 1500-1508), and 
Department regulations (43 CFR part 46) and guidance.
    Comment: Several Tribes recommended that the Department clarify 
that Phase I environmental site assessments would not need to be 
updated except when an evaluation of the pre-acquisition determines 
environmental conditions exist.
     Response: The Department declines to adopt the proposal. 
The final rule sets forth criteria for Phase I environmental site 
assessments that aim to simplify such review consistent with the 
requirements of Departmental Manual 602 DM 2. The Phase I environmental 
site assessment is the tool the Department uses to identify any 
environmental liabilities that may be a barrier to acquisition of real 
property. In many instances the site assessment will need to be updated 
to account for any remediation completed since the first site 
assessment or to confirm that no new environmental liabilities are 
evident on the property.
    Comment: A Tribal consortium requested additional flexibility 
around environmental issues, specifically requesting that Tribes be 
able to assume liability for environmental issues on lands taken into 
trust.

[[Page 86245]]

     Response: Nothing in the regulations prohibits a Tribe 
from assuming liabilities on lands to be taken into trust.
    Comment: An association of counties and others requested that NEPA 
analyses be submitted as part of a ``complete application.''
     Response: The regulation states that an acquisition 
package is not complete until the public review period for a final EIS 
or EA has concluded, or the categorical exclusion documentation is 
completed.
    Comment: One Tribe requested various clarifications to proposed 
Sec.  151.15, including why environmental assessments ``end load'' 
review of a Phase I environmental site assessment rather than requiring 
it as a component of a complete application required in Sec.  151.8.
     Response: Section 151.8 requires that a complete 
application include information that allows the Secretary to comply 
with NEPA and 602 DM 2. Section 151.15(b), however, provides that the 
Secretary may require the applicant to provide information updating a 
prior pre-acquisition environmental site assessment (i.e., a Phase I 
environmental site assessment). This is not an end loading of the 
process but instead a recognition that certain environmental documents 
may need to be updated prior to formalizing acceptance of title.

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

    Comment: A private individual requested that the entirety of 
proposed Sec.  151.16 be redone and include the six-year statute of 
limitation timeframes in line with the APA.
     Response: The Department respectfully disagrees. Section 
151.13(c) explains that the Assistant Secretary's decision constitutes 
a final agency action for purposes of the APA. Interior is retaining 
the requirement that, if the request will be approved, notice of such 
approval will be published in the Federal Register. Such publication 
makes clear that a final agency action has occurred. The Department 
believes this provides a sufficient timeframe for any interested party 
to challenge the decision and that explaining the APA's statute of 
limitations in the proposed regulation would be unnecessary 
duplicative.
    Comment: One Tribe requested that proposed Sec.  151.16(b) require 
formal notification to the applicable Tribe, so the date of official 
trust status is certain.
     Response: While not included in the regulation, the BIA 
will publish updated guidance in the FTT Handbook outlining how it will 
provide notice of the placement of the property in trust. BIA will be 
updating the FTT Handbook to reflect the changes made by this final 
rule.
    Comment: A county requested that the proposed changes to Sec.  
151.16 include a final step that all land conveyance documents must be 
recorded in the county's land records for the conveyance to be 
officially recognized.
     Response: The final rule does not address recordation in 
the county records because fee-to-trust is an inherently Federal 
process. The BIA Division of Land Title Records is responsible for and 
serves as the office of record for all trust land and restricted land 
titles for Indian Tribes and individuals. Therefore, the primary 
requirement under Sec.  151.16 is to record the trust deed with the 
appropriate Land Title Records Office (LTRO). BIA recognizes that 
recordation in the county can be beneficial and will publish a handbook 
outlining how title will be recorded. BIA will be updating the FTT 
Handbook to reflect the changes made by this final rule.

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

    Comment: Numerous Tribes expressed concern that under proposed 
Sec.  151.17, Tribes who submitted prior to the new rules would not 
benefit from the 120-day time frame. One Tribe also requested that 
Tribes who previously submitted should have a mechanism to benefit from 
timely processing.
     Response: This is addressed in Sec.  151.17. While the 
120-day time frame does not apply to applications submitted prior to 
this final rule, the Department strives to process pending applications 
as quickly and efficiently as possible. Also, with the existing 
backlog, placing all applications on the 120-day timeline at once would 
present an enormous, if not impossible challenge for the Department.
    Comment: One Tribe expressed concerned that the language in 
proposed Sec.  151.17(b) is unclear as to whether presently pending 
matters in the IBIA will need to start over based on new requirements.
     Response: Section 151.17(b) makes it clear that this part 
does not alter BIA decisions currently on appeal on January 11, 2024. 
Thus, matters pending in the IBIA will not be affected.
    Comment: One Tribe requested that Tribes who have pending 
applications be afforded a choice between the now-in-place rule and the 
draft rule, should the draft rule be adopted.
     Response: Section 151.17(a), addresses how applications 
pending at the time the final rule is promulgated are affected by the 
final rule.
    Comment: A State requested that all interested parties be required 
to consent before Tribes with pending applications can proceed under 
the new regulations. The State also requested that a pending 
application processed under the new regulations be reopened for 
comment.
     Response: The Department declines to accept the proposal. 
The Tribal applicant is best positioned to determine whether it wants 
its application to be evaluated under prior regulations or the final 
rule. Proceeding under the final rule does not limit the ability of 
State and local governments to submit comments on the application. 
Moreover, reopening the comment period is unwarranted as the final rule 
contemplates that State and local governments will submit comments on 
the same topics enumerated under the existing regulations, i.e., ``the 
acquisition's potential impacts on regulatory jurisdiction, real 
property taxes and special assessments.'' 25 CFR 151.10 (2022).

Comments on General Issues

    Comment: One State commented that the proposed rule does not comply 
with Federal laws intended to allow States and local governments 
meaningful and timely input because the BIA allowed Tribes to comment 
on a draft prior to the draft being published for public comment. 
Specifically, the comment alleges that the BIA failed to comply with 
the Unfunded Mandates Reform Act and Executive Order 13132 which 
requires Federal agencies to have a process to meaningfully engage with 
State and local officials on action that have federalism implications.
     Response: The process used in formulating the regulation 
did not deprive States or local governments the ability to comment on 
the proposed regulation. Executive Order 13175 requires the BIA to 
consult with Tribes prior to taking any action that would have an 
impact on tribal governments. The BIA's consultation sessions with 
Tribes complied with that executive order. There is no requirement that 
the BIA engage in a similar process with States or local governments. 
Regardless, the BIA published a proposed notice of rulemaking in the 
Federal Register that provided a reasonable time for the submission of 
comments from the public. Many States and local governments, including 
the commenter, availed themselves of this opportunity and the BIA 
considered all submitted comments. Because the proposed

[[Page 86246]]

changes to the rule are largely procedural and do not expand the 
authority granted to the Secretary under the statute, they would not 
have a substantial direct effect or impose substantial compliance costs 
on States or local governments. Therefore, the proposed changes would 
not implicate the types of federalism concerns contemplated by 
Executive Order 13132.
    Comment: A State government commented that the proposed rule 
eliminates the requirement that the Secretary consider the distance of 
the acquisition by removing the requirement that the Secretary give 
greater weight to the concerns'' raised for off-reservation 
acquisitions as the distance increases.
     Response: The rule does not eliminate the Secretary 
ability to consider distance in any decision. The rule only eliminates 
the requirement that the Secretary must give greater weight to concerns 
raised for those acquisitions that are off-reservation.
    Comment: A State government commented that the IRA raises serious 
concerns under the nondelegation doctrine and that several lower court 
judges have expressed concern that the IRA is an unconstitutional 
delegation.
     Response: Numerous courts have considered and rejected the 
argument that the IRA violates principles of nondelegation, reasoning 
that the statute places ``adequate limits'' on the Secretary's 
discretion and that it is ``possible to ascertain whether the will of 
Congress has been obeyed.'' South Dakota v. U.S. Dep't of Interior, 423 
F.3rd 790 (8th Cir. 2005) (quotations marks omitted); see also Mich. 
Gambling Opposition v. Kempthorne, 525 F.3d 23, 30 (D.C. Cir. 2008), 
Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007), rev'd on other 
grounds, Carcieri v. Salazar, 555 U.S. 379 (2009), United States v. 
Roberts, 185 F.3d 1125, 1137 (10th Cir. 1999); Confederated Tribes of 
Siletz Indians v. United States, 110 F.3d 688, 698 (9th Cir. 1997) 
(stated in dicta that the land into trust power is a valid delegation). 
We are not aware of any court decision holding that the IRA is an 
unconstitutional delegation of authority.
    Comment: A State government provided a detailed process for 
notification of new applications to State and local governments as well 
as for receiving and responding to comments on the application. This 
proposed process includes notification to States and local governments 
of an application, requires providing a those governments with a copy 
of the application along with unspecified other information the BIA may 
possess, notification to State and local governments that an 
applicant's package is complete and then provide that package to them 
within 10 calendar days upon request, requires the Secretary to 
consider any and all written comments by State or local governments 
regardless of the location of the land, and provide the applicant a 
reasonable time frame in which to respond to the State or local 
government comments.
     Response: We reject the proposed process because it would 
add to the timeline for action on an application beyond even the 
current regulations. One of the goals of revising these regulations is 
to shorten the timeline for processing applications. We believe that 
the process for notifying States and local governments and the timeline 
for receiving response from them is adequate for the Secretary to 
receive relevant information and to make an informed decision. Further, 
the final rule does not limit the Secretary's ability to consider any 
comments on any issues submitted by a State or local government.
    Comment: One town expressed concerns that if a specific group of 
Indians became federally recognized and then were allowed to take land 
into trust in the town, that would result in severe consequences for 
the town.
     Response: These regulations do not provide a process for 
Federal recognition of any tribal group. The regulations only apply to 
already recognized Indian Tribes. Further, the final rule clarifies 
that if a Tribe is recognized under the part 83 process, that any 
historical evidence submitted during that process demonstrating that 
they were under Federal jurisdiction in 1934 may be used to determine 
whether the Secretary has authority to take land into trust for a 
particular tribe.
    Comment: One town commented that while the regulations give ``great 
weight'' to tribal concerns they do not give any weight to the comments 
or concerns of a local community or State in the decision-making 
process.
     Response: The final rule provides that the Secretary will 
give great weight if the acquisition was for specific stated purposes. 
While the final rule does not give a specific weight to comments and 
concerns raised by local governments or States it is not true that it 
gives them no weight. The Secretary will consider any and all comments 
and concerns raised by local communities or States in making a decision 
to acquire land in trust for a tribe.
    Comment: One Tribe suggested that ``interested parties,'' like 
State and local governments, be afforded notice and an opportunity to 
comment on acquisitions because the lack of that accommodation for 
``interested parties'' often ensures that they ultimately file a formal 
appeal of a favorable decision.
     Response: The Department declines to adopt this proposal. 
In the Department's experience, most trust acquisition decisions issued 
by BIA officials are not challenged by any party. Given the changes in 
regulatory jurisdiction that occur as a result of acquiring land into 
trust, notice to State and local governments and consideration of 
comments received from them inform the Secretary's review of 
applications. Private individuals or entities have no regulatory 
jurisdiction over land and thus the same considerations are not present 
with respect to private parties. Such private parties can nevertheless 
submit comments on pending applications to the extent they want to.
    Comment: Many counties, States, and local governments expressed 
general and broad opposition to the proposed regulations. One commenter 
asked that the Regulations include a citation to Constitutional 
provisions that provide authority for Congress to acquire lands for 
Indians. Another suggested the proposed rule would be invalid due to 
uncertainties regarding constitutional and statutory authority for the 
United States to take land into trust. That same commenter expressed 
significant concerns about federalism implications of the proposed 
rule. A separate commenter expressed concern that the proposed rule 
would unravel NEPA because it may result in decreased communication and 
cooperation between Tribes and local governments. Finally, a State 
commented that the proposed rule is unlawful under the APA because the 
Department must consider impacts on State and local governments.
     Response: We disagree with comments suggesting the final 
rule violates the APA or raises federalism concerns. The rulemaking 
complies with the APA. Notice of the proposed rulemaking provided an 
accurate picture of the Department's reasoning and provided interested 
parties an opportunity to meaningfully commend upon the proposed rule. 
The Department has considered potential impacts to State and local 
governments, including those raised in comments, and this Notice 
memorializes that consideration. Section 5 of the IRA does not violate 
principles of federalism because the Indian Commerce Clause grants 
Congress the power ``[t]o regulate commerce . . . with the Indian 
Tribes.'' U.S. Const. art. I, section 8, cl. 3. The Supreme Court has 
consistently

[[Page 86247]]

interpreted Congress' authority to legislate in matters involving 
Indian affairs broadly. See, e.g., United States v. Lara, 541 U.S. 193, 
200, 124 S. Ct. 1628, 158 L. Ed. 2d 420 (2004). The Secretary's 
exercise of their discretionary land into fee-to-trust authority under 
section 5 of the IRA is a valid exercise of the power delegated to 
Congress by the Constitution. Under Department regulations, the 
promulgation of regulations is categorically excluded from NEPA. See 43 
CFR 46.210(i) and Environmental Statement Memorandum 13-4, Use of 
Departmental Categorical Exclusion for Policies, Directives, 
Regulations, and Guidelines, Michaela E. Noble, Director Office of 
Environmental Policy and Compliance (Sept. 24, 2018). Furthermore, the 
proposed rule does not modify the procedural requirements of NEPA.
    Comment: Some State and local governments argued that the 
presumptions unlawfully strip the Secretary of the case-by-case 
discretion required under the IRA.
     Response: The policy presumptions in the final rule cannot 
divest the Secretary's statutory discretion as authorized in the IRA. 
As explained herein, the presumptions adopted through the final rule 
are consistent with the purposes of the IRA and the policy goals of 
Tribal self-determination, self-government, and economic development 
reflected in that statute and other laws authorizing trust 
acquisitions. The Secretary retains statutory discretion to approve or 
deny an application after a holistic review of trust acquisition 
applications, supporting materials, and comments submitted on 
applications, which of course may demonstrate that a particular 
presumption should be rebutted.
    Comment: A Tribal consortium expressed concern over how the process 
would work in Alaska, the need to account for the Alaska Native Claims 
Settlement Act, as well as other unique issues surrounding land in 
Alaska. It was also suggested that the expedited timelines in the 
proposed rule might be too short to allow the Department to effectively 
exercise fee-to-trust trust authorities in Alaska.
     Response: The Department is working with the BIA Alaska 
Regional Office to ensure it has all the necessary skills and equipment 
to process fee-to-trust applications in Alaska. In November 2022, the 
Department approved the first land into trust acquisition in Alaska in 
five years, and the second fee-to-trust acquisition in Alaska since the 
passage of the Alaska Native Claims Settlement Act in 1971. The 
Department anticipates further applications may be filed for land into 
trust in Alaska and the BIA will continue to provide resources to the 
Region for assistance with processing applications consistent with this 
final rule, Sol. Op. M-37076, and Akiachak Native Community v. Jewell, 
935 F. Supp. 2d 195 (D.D.C. 2013), vacated as moot, 827 F.3d 100 (D.C. 
Cir. 2016).
    Comment: A former attorney general submitted comments expressing 
disapproval of the removal of BIA consideration of ``jurisdictional 
problems and potential conflicts of land use.'' These concerns are 
rooted in law enforcement jurisdiction issues, which they assert are 
complicated in Indian country and the proposed changes would affect 
these issues.
     Response: The Secretary must consider ``jurisdictional 
problems and potential conflicts of land use'' when State and local 
governments raise these issues in comments submitted under Sec. Sec.  
151.11(c) and 151.12(d). The Secretary will carefully consider the 
potential conflicts and any associated impact on public safety and law 
enforcement jurisdiction.
    Comment: Many Tribes suggested that an electronic filing system 
would be helpful in providing a streamlined platform for reviewing 
applications and following where applications are in the process.
     Response: The Department is mindful that improving the 
technologies used to implement these regulations is key to meeting the 
goal of improving efficiency and reducing the time it takes to process 
an application. The BIA is working to improve the current system--
TAAMS--used to track fee-to-trust applications, and ensure it is up to 
date, and will continue to explore technological improvements including 
electronic filing systems to improve efficiency and applicant customer 
service.
    Comment: Some comments identified minor grammatical or punctuation 
errors.
     Response: The Department made minor non-substantive 
corrections identified by commenters.
    Comment: Several comments were received that were not directly 
responsive to the proposed regulations.
     Response: The Department has reviewed all comments 
received in response to the part 151 Notice of Proposed Rulemaking. 
Comments not directly responsive to the proposed regulations were not 
considered as part of the rulemaking and are not responded to here.

VI. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)

    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is significant under E.O. 
12866 section 3(f), but not significant under section 3(f)(1).
    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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. The Department and BIA developed this final rule in a manner 
consistent with these requirements.

B. Regulatory Flexibility Act

    The Department certifies that this document will not have a 
significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The final 
rule 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. The final rule codifies longstanding 
Departmental policies and interpretation of case law.
    Tribal governments and individual Indians seeking to have fee-lands 
placed in trust by the United States for the benefit of Tribal 
governments and individual Indians will be able rely on the substantive 
provisions in the final rule for guidance on what may or may not be 
included in a land acquisition request package. Both Sec.  151.9, which 
addresses on-reservation acquisitions, and Sec.  151.10, which 
addresses acquisition of lands contiguous to reservation boundaries, 
are consistent with existing case law and are presumed to further 
Tribal interests and the adverse impacts to local governments and small 
entities are presumed to be minimal. Local governments, after receiving 
notice from the BIA that a Tribal government or individual Indian

[[Page 86248]]

submitted a land acquisition request package, are free to provide 
written comments, within 30 calendar days, to rebut the presumption of 
minimal adverse impacts to regulatory jurisdiction, real property 
taxes, and special assessments.
    Furthermore, under both Sec.  151.1, acquisition of lands outside 
of or noncontiguous to reservation boundaries, and Sec.  151.12, an 
initial Indian acquisition, the Secretary will presume that the Tribal 
government will benefit from the lands acquisition. However, under both 
Sec. Sec.  151.11 and 151.12, the Secretary is required to provide 
notice to State and local governments to submit written comments to 
rebut the presumption of minimal adverse impacts to regulatory 
jurisdiction, real property taxes, and special assessments.

C. Congressional Review Act (CRA)

    This final rule does not meet the criteria in 5 U.S.C. 804(2). 
Specifically, it:
    (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

    The Unfunded Mandates Reform Act of 1995 requires that agencies 
prepare a written statement analyzing and estimating anticipated costs 
and benefits before issuing any rule that may result in the expenditure 
by State, local, and Tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. See 2 U.S.C. 1532. The Act further requires 
that the agency publish a summary of such a statement with the agency's 
proposed and final rules.
    This final 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 final rule would not have a significant or unique 
effect on State, local, or Tribal governments or the private sector 
because this final 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 final 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 final rule complies with the requirements of E.O. 12988. 
Specifically, this final 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 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 final 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 final 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.
    The Department also held three Tribal consultation sessions during 
the public comment period. The first Tribal consultation was held in 
person on January 13, 2023, at the Bureau of Land Management Training 
Center in Phoenix, Arizona. The next two Tribal consultations were 
conducted virtually on Zoom. They occurred on January 19, 2023, and 
January 30, 2023. Following the consultation sessions, the Department 
accepted written comments until March 1, 2023.

I. Paperwork Reduction Act

    This final rule does not contain any new collection of information 
that requires approval by OMB under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). OMB has previously approved the information 
collection requirements associated with the acquisition of lands 
through purchase, relinquishment, gift, exchange, or assignment within 
or without existing reservations for the purpose of providing land for 
Indian Tribes and assigned OMB Control Number 1076-0100, which expires 
January 31, 2024). An agency may not conduct or sponsor, and a person 
is not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

J. National Environmental Policy Act (NEPA)

    This final 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 final 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 final 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 l(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.

M. Small Business Regulatory Enforcement Fairness Act

    This final rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This final rule:

[[Page 86249]]

    (a) Does not have an annual effect on the economy of $100 million 
or more because the funding available through JOM does not approach 
this amount.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, Tribal or local 
government agencies, or geographic regions because this rule affects 
only certain education contracts.
    (c) Does 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 
because this rule affects only certain education contracts.

N. Regulatory Impact Analysis

    Summary: This final rule is intended to make the fee-to-trust 
process less burdensome and more cost-efficient. In addition, the 
Department seeks to improve the fee-to-trust process because of the 
many benefits afforded to Tribal governments and their citizens, such 
as heightened regulatory jurisdiction over the lands, exemptions from 
State and local taxation, and restoration of Tribal homelands. This 
final rule also addresses delays in the current land acquisition 
process. The average length of time to receive a final fee-to-trust 
decision is approximately 985 days. Currently, there are 941 cases 
pending approval by the Department--the majority of which are for non-
controversial, on-reservation acquisitions. This final rule will reduce 
the time it takes BIA to process fee-to-trust applications going 
forward and address the existing backlog.
    Benefits: The anticipated benefits of the final rule include making 
the fee-to-trust process less burdensome and more cost-efficient and 
improve agency processing by:
     Reducing uncertainty and Tribal expenses by codifying 
standards that implement Carcieri v. Salazar, 555 U.S. 379 (2009), to 
increase clarity and certainty in determining the Secretary's authority 
to take land in trust for Tribes. Tribes will benefit by having the 
standards in the regulations and not having to ascertain these 
standards from existing case law, Departmental guidance, and previous 
determinations, and not risking lengthy litigation on the standards the 
Department considers.
     Reducing processing time and uncertainty by identifying 
the documents needed for a complete application, after which the BIA 
will issue a decision within 120 days.
     Increasing efficiency for Tribes and the Department by 
analyzing applications as either on-reservation, contiguous to a 
reservation, an initial acquisition for landless Tribes, or off-
reservation, recognizing that each category requires specific criteria 
for an appropriate analysis.
     Reducing expense for Tribes by clarifying when 
environmental studies and reports are to be updated, thus, eliminating 
the need to maintain the current status of studies and reports when a 
decision date is not known by the Tribe.
    Anticipated Impact: Transfers between Tribes and State and local 
jurisdictions. To the extent the final rule accelerates the fee-to-
trust process, Tribes may receive tax exemptions sooner. If land 
remains taxable for a shorter period of time, there may be a reduction 
in taxes collected from Tribes by State and local jurisdictions. The 
anticipated costs of implementing the final rules are negligible:
     Tribes will see reduced expenses in the application 
process from clear standards and timelines.
     States and local jurisdictions will see little, if any, 
additional expense because the final rule's provisions for providing 
comments on regulatory jurisdiction, real property taxes, and special 
assessments remain the same. In some cases, States or local governments 
may incur additional expense if they wish to provide information to 
rebut the presumption of minimal adverse impacts to regulatory 
jurisdiction, real property taxes, and special assessments.
     BIA will see increased efficiencies in the application 
process, such as fewer hours spent processing applications and 
communicating with applicants on missing documents, because 
applications will be more thorough.
    Alternative Policy Approaches: An alternative policy approach would 
be to maintain the existing regulations; however, this would result in:
     Continued lack of clarity and certainty for Tribes and 
need to hire outside counsel to meet Carcieri requirements and prepare 
applications, and continued litigation over Carcieri requirements and 
part 151 standards. Tribes would have to continue to incur costs to 
hire outside counsel.
     Continued lack of a policy to acquire land in trust for 
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. This policy recognizes purposes for which 
Tribes acquire land in trust, many of which were not contemplated in 
the existing regulation, thus, reducing additional justification for 
the acquisition.
    Conclusion: Therefore, maintaining the current regulation likely 
would increase legal costs for applicant Tribes as compared to final 
rule and its measures to promote cost efficiency. Maintaining the 
current regulation could also limit certainty about the Secretary's 
authority due to the Carcieri decision and omit information that could 
streamline Tribal applications, including the absence of land 
acquisition policy to support Tribal self-determination and 
sovereignty, no list of documents needed for a complete application, no 
guidance on the weight accorded to certain Tribal land uses, and 
criteria enabling certain presumptions.

List of Subjects in 25 CFR Part 151

    Administrative practice and procedure, Indians--land acquisition.

0
For the reasons set forth in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, revises 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 of and noncontiguous to the boundaries of an Indian 
reservation?
151.11 How will the Secretary evaluate a request involving land 
outside of and noncontiguous to 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?

[[Page 86250]]

151.16 How are formalization of acceptance and trust status 
attained?
151.17 What effect does this part have on pending requests and final 
agency decisions already issued?
151.18 Severability.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 403a-2, 409a, 1466, 
1495, 5107, 5108, 5136, 5138, 5201, 5202, 5322, 5341; Pub. L. 71-
780, 46 Stat. 1471, amended by Pub. L. 72-231, 47 Stat. 474; Pub. L. 
74-816, 49 Stat. 1967, amended by Sec. 10, Pub. L. 80-336, 61 Stat. 
734; Secs. 3, 4, 6, Pub. L. 76-238, 53 Stat. 1129, 1130; Sec. 7, 
Pub. L. 79-706, 60 Stat. 969, amended by Pub. L. 91-627, 84 Stat. 
1874; Pub. L. 81-226, 63 Stat. 605; Pub. L. 84-188, 69 Stat. 392, 
amended by Pub. L. 88-540, 78 Stat. 747, amended by Sec. 213, Pub. 
L. 100-581, 102 Stat. 2941, amended by Sec. 1, Pub. L. 101-301, 104 
Stat. 206; Pub. L. 84-592, 70 Stat. 290, amended by Pub. L. 91-274, 
84 Stat. 301; Pub. L. 84-772, 70 Stat. 626; Sec. 10, Pub. L. 87-231, 
75 Stat. 505; Pub. L. 88-196, 77 Stat. 349; Pub. L. 88-418, 78 Stat. 
389; Pub. L. 90-335, 82 Stat. 174, amended by Pub. L. 93-286, 88 
Stat. 142; Pub. L. 90-534, 82 Stat. 884; Pub. L. 92-312, 86 Stat. 
216; Pub. L. 92-377, 86 Stat. 530; Pub. L. 92-443, 86 Stat. 744; 
Sec. 11, Pub. L. 93-531, 88 Stat. 1716, amended by Sec. 4, Pub. L. 
96-305, 94 Stat. 930, amended by Sec. 106, 98-603, 98 Stat. 3157, 
amended by Secs. 4(b), 8, Pub. L. 100-666, 102 Stat. 3930, 3933.


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 Federal law; 
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 is held 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 currently has no land 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 that covers 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 (48 
Stat. 988; 25 U.S.C. 5124) or section 3 of the Act of June 26, 1936 (49 
Stat. 1967; 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?

    (a) 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. 
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 acquisition of land in trust status under 
these regulations, 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

[[Page 86251]]

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?

    When a Tribe's application relies on the first definition of 
``Indian'' in the Indian Reorganization Act of June 18, 1934 (48 Stat. 
984; 25 U.S.C. 5101 et seq.) (IRA) to establish statutory authority for 
the proposed acquisition, the Secretary will apply the following 
criteria to determine whether the Tribe was under Federal jurisdiction 
in 1934.
    (a) In determining whether a Tribe was ``under Federal 
jurisdiction'' in 1934 within the meaning of section 19 of the IRA (48 
Stat. 988; 25 U.S.C. 5129), the Secretary shall consider evidence of 
Federal jurisdiction in the manner provided in paragraphs (a)(1) 
through (5) of this section.
    (1) Conclusive evidence establishes in and of itself both that a 
Tribe was placed under Federal jurisdiction and that this jurisdiction 
remained intact 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 (48 Stat. 988; 25 U.S.C. 
5125) to accept 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) Land held in trust by the United States for the Tribe in 1934.
    (iii) Secretarial approval of a Tribal constitution under section 
16 of the IRA as recorded in the Haas List or other Federal Government 
document;
    (iv) 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;
    (v) An Executive Order for a specific Tribe that was still in 
effect in 1934;
    (vi) Treaties to which a Tribe is a party, ratified by the United 
States and still in effect as to that party in 1934;
    (vii) Continuing existence in 1934 or later of treaty rights 
guaranteed by a treaty ratified by the United States; or
    (viii) Other evidence that the Secretary determines is conclusive 
in a particular case.
    (2) Presumptive evidence is indicative that a Tribe was placed 
under Federal jurisdiction in or before 1934 and may indicate that such 
jurisdiction remained intact 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 land claim 
settlements and termination legislation enacted after 1934, which 
acknowledges the existence of a government-to-government relationship 
with a Tribe in or before 1934; or
    (vi) Satisfaction of the criterion for Federal acknowledgment now 
located at 25 CFR 83.11(a) and previously located at 25 CFR 83.7(a), 
requiring that a Tribe ``has been identified as an American Indian 
entity on a substantially continuous basis,'' through evidence that 
brought the Tribe under Federal jurisdiction in or before 1934; or
    (vii) Other evidence that the Secretary determines is presumptive 
in a particular case.
    (3) In the absence of evidence identified above as 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's acquisition of land for a Tribe in implementing the Indian 
Reorganization Act of 1934, 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, 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, the approval of contracts between a Tribe and non-
Indians; enforcement of the Trade and Intercourse Acts (Indian trader, 
liquor laws, and land transactions), and the provision of health and 
social services to a Tribe or Tribal members.
    (4) When a Tribe is recognized under the 25 CFR part 83 process, 
the Secretary may rely on any evidence within the part 83 record that 
the Tribe was under Federal jurisdiction in or before 1934, consistent 
with Sec.  151.4(a)(2) and (3).
    (5) Evidence of executive officials disavowing Federal jurisdiction 
over a Tribe in certain instances is not conclusive evidence of a 
Tribe's Federal jurisdictional status. This is because such disavowals 
cannot themselves revoke Federal jurisdiction over a Tribe.
    (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 Department 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.

[[Page 86252]]

    (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 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 off-reservation, the following 
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 
including when:
    (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 
analysis developed by the Secretary, as described in paragraphs (a)(1) 
through (9) of this section:
    (a) A complete acquisition package consists of the following:
    (1) The applicant must submit a 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;
    (ii) If the applicant is an individual Indian, the individual's 
written request must be a signed letter requesting trust status;
    (2) The applicant must submit documentation providing the 
information evaluated 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) The applicant must submit a statement identifying the existence 
of statutory authority for the acquisition including, if applicable, 
any supporting evidence that the Tribe was under Federal jurisdiction 
in 1934 pursuant to Sec.  151.4.
    (4) The applicant must submit a description of the land as follows:
    (i) An aliquot part, government lot, parcel identified on a 
Government Land Office or Bureau of Land Management official survey 
plat, or lot block subdivision (LBS) 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 the methods listed in paragraph (a)(4)(i) of 
this section, including a statement of the estate to be acquired. 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) An application package is not complete until the Secretary 
determines that the legal description or survey is sufficient.
    (5) The applicant must submit information that allows the Secretary 
to comply with the National Environmental Policy Act (NEPA) and 602 DM 
2, Land Acquisitions: Hazardous Substances Determinations pursuant to 
Sec.  151.15; and
    (i) An acquisition package is not complete until the public review 
period of a final environmental impact statement or, where appropriate, 
the final environmental assessment has concluded, or the categorical 
exclusion documentation is complete.
    (ii) An acquisition package is not complete until a pre-acquisition 
Phase I environmental site assessment, and if necessary, a Phase II 
environmental site assessment completed pursuant to 602 DM 2 is 
determined to be sufficient by the Secretary.
    (6) The applicant must submit title evidence pursuant to Sec.  
151.14.
    (i) An acquisition package is not complete until the Secretary 
completes a Preliminary Title Opinion based on such evidence;
    (7) The Secretary shall send notification letters pursuant to Sec.  
151.9, Sec.  151.10, Sec.  151.11, or Sec.  151.12.
    (8) The applicant must submit a statement that any existing 
covenants, easements, or restrictions of record will not interfere with 
the applicant's intended use of the land; and
    (9) The applicant must submit 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, the Secretary shall:
    (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 shall 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;
    (2) If the applicant is an individual Indian, the need for 
additional land, the

[[Page 86253]]

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 acquiring land that 
serves any of the following purposes, in accordance with Sec.  151.3:
    (1) Furthers Tribal interests by establishing a Tribal land base or 
protects Tribal homelands;
    (2) Protects sacred sites or cultural resources and practices;
    (3) Establishes or maintains conservation or environmental 
mitigation areas;
    (4) Consolidates land ownership;
    (5) Reduces checkerboarding;
    (6) Acquires land lost through allotment;
    (7) Protects treaty or subsistence rights; or
    (8) Facilitates Tribal 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 further the Tribal interests described in paragraph (b) of this 
section, and adverse impacts to local governments' regulatory 
jurisdiction, real property taxes, and special assessments will be 
minimal, therefore the application should be approved.
    (d) Upon receipt of a written request to have land acquired in 
trust within the boundaries of an Indian reservation the Secretary 
shall notify the State and local governments with regulatory 
jurisdiction over the land to be acquired of the applicant's request. 
The notice will inform the State or local government that each will be 
given 30 calendar days in which to provide written comments to rebut 
the presumption of minimal adverse impacts to 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.  151.10  How will the Secretary evaluate a request involving land 
contiguous to the boundaries of an Indian reservation?

    (a) The Secretary shall 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;
    (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 acquiring land that 
serves any of the following purposes, in accordance with Sec.  151.3:
    (1) Furthers Tribal interests by establishing a Tribal land base or 
protects Tribal homelands;
    (2) Protects sacred sites or cultural resources and practices;
    (3) Establishes or maintains conservation or environmental 
mitigation areas;
    (4) Consolidates land ownership;
    (5) Reduces checkerboarding;
    (6) Acquires land lost through allotment;
    (7) Protects treaty or subsistence rights; or
    (8) Facilitates Tribal self-determination, economic development, or 
Indian housing.
    (c) When reviewing a Tribe's request for land contiguous to an 
Indian reservation, the Secretary presumes that the acquisition will 
further the Tribal interests described in paragraph (b) of this 
section, and adverse impacts to local governments' regulatory 
jurisdiction, real property taxes, and special assessments will be 
minimal, therefore the application should be approved.
    (d) Upon receipt of a written request to have land contiguous to an 
Indian reservation acquired in trust status, the Secretary shall notify 
the State and local governments with 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 to rebut the presumption of minimal adverse impacts to 
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 of and noncontiguous to the boundaries of an Indian 
reservation?

    (a) The Secretary shall consider the criteria in this section when 
evaluating requests for the acquisition of land 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;
    (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 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 acquiring land that 
serves any of the following purposes, in accordance with Sec.  151.3:
    (1) Furthers Tribal interests by establishing a Tribal land base or 
protects Tribal homelands;
    (2) Protects sacred sites or cultural resources and practices;
    (3) Establishes or maintains conservation or environmental 
mitigation areas;
    (4) Consolidates land ownership;
    (5) Reduces checkerboarding;
    (6) Acquires land lost through allotment;
    (7) Protects treaty or subsistence rights; or
    (8) Facilitates Tribal self-determination, economic development, or 
Indian housing.
    (c) Upon receipt of a written request to have land outside the 
boundaries of

[[Page 86254]]

an Indian reservation acquired in trust status, the Secretary shall 
notify the State and local governments with 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 and potential conflicts of land use. The Secretary presumes 
that the Tribe will benefit from the acquisition.


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

    (a) The Secretary shall 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;
    (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 acquiring land that 
serves any of the following purposes, in accordance with Sec.  151.3:
    (1) Furthers Tribal interests by establishing a Tribal land base or 
protects Tribal homelands;
    (2) Protects sacred sites or cultural resources and practices;
    (3) Establishes or maintains conservation or environmental 
mitigation areas;
    (4) Consolidates land ownership;
    (5) Reduces checkerboarding;
    (6) Acquires land lost through allotment;
    (7) Protects treaty or subsistence rights; or
    (8) Facilitates Tribal self-determination, economic development, or 
Indian housing.
    (c) When reviewing a request for a Tribe that does not have a 
reservation or land held in trust, the Secretary presumes that the 
acquisition will further the Tribal interests described in paragraph 
(b) of this section, and adverse impacts to local governments' 
regulatory jurisdiction, real property taxes, and special assessments 
will be minimal, therefore the application should 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 shall notify the State and local governments with 
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 to rebut the 
presumption of minimal adverse impacts to 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 and 
potential conflicts of land use. The Secretary presumes that the Tribe 
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 notice in the Federal Register 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 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 under part 2 of this chapter.
    (2) If the official approves the request, the official shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly provide written notice, by U.S. mail or personal 
delivery, of the decision and the right, if any, to file an 
administrative appeal of such decision under part 2 of this chapter and 
43 CFR part 4, subpart D to:
    (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 under part 2 of this chapter; 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 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 the date of receipt of the decision.
    (4) Any party who wishes to seek judicial review of an official's 
decision

[[Page 86255]]

must first exhaust administrative remedies under 25 CFR part 2 and 
under 43 CFR part 4, subpart D.


Sec.  151.14  How will the Secretary review title?

    (a) The applicant must submit title evidence as part of a complete 
acquisition package as described in Sec.  151.8 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 the policy of title insurance was issued 
to the applicant or current owner to the present. The Secretary may 
accept a preliminary title report or equivalent document 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, subject to the requirements of paragraph (b) of 
this section.
    (3) The applicant may choose to provide title evidence meeting the 
title standards issued by the U.S. Department of Justice, 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 
1500-1508), 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.
    (1) If no recognized environmental conditions or other 
environmental issues of concern are identified in the pre-acquisition 
environmental site assessment or before formalization of acceptance and 
all other requirements of this section and Sec. Sec.  151.13 and 151.14 
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 or before formalization of acceptance, 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 the formalization of acceptance.


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

    (a) The Secretary shall formalize acceptance of land in trust 
status by signing an instrument of conveyance. The Secretary shall sign 
the instrument of conveyance after the requirements of Sec. Sec.  
151.13, 151.14, and 151.15 have been met.
    (b) The land will attain trust status when the Secretary signs the 
instrument of conveyance.
    (c) The Secretary shall record the deed with LTRO pursuant to part 
150 of this chapter.


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

    (a) Requests pending on January 11, 2024 will continue to be 
processed under 25 CFR part 151 (revised as of April 1, 2023) unless 
the applicant requests in writing to proceed under this part.
    (1) Upon receipt of such a request, the Secretary shall process the 
pending application under this part, except for Sec.  151.8(b)(2).
    (2) The Secretary shall consider the comments of State and local 
governments submitted under the notice provisions of 25 CFR part 151 
(revised as of April 1, 2023).
    (b) This part does not alter decisions of Bureau of Indian Affairs 
Officials under appeal on January 11, 2024 or final agency decisions 
made before January 11, 2024.


Sec.  151.18  Severability.

    If any provision of this part, or any application of a provision, 
is stayed or determined to be invalid by a court of competent 
jurisdiction, the remaining provisions or applications are severable 
and shall continue in effect.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2023-27077 Filed 12-11-23; 8:45 am]
BILLING CODE 4337-15-P

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