The Bureau of Indian Affairs (BIA) published a proposed rule in the Federal Register that, if adopted, will substantially alter the rights of those who would challenge a decision by the BIA to acquire land in trust for an Indian tribe. Current BIA regulations require the secretary of the interior to publish a notice of a trust decision 30 days before actually transferring title. The 30-day waiting period provides litigants a window to file suit in federal court to challenge a trust decision. In virtually all cases in the past, if the challenger filed suit within the 30-day window, the secretary agreed to “self-stay” the trust transfer during court proceedings, meeting the purpose of the current regulation.
The secretary promulgated the current rule that includes the 30-day notice window in 1996 because prevailing federal court decisions held that the Quiet Title Act, 28 U.S.C. § 2409a, precluded judicial review of a decision after the United States acquired title. The 30-day notice rule and the self-stay policy, in addition to protecting the rights of the litigants, avoided unnecessary legal conflict and expense for all parties and allowed for the orderly resolution of the challenge.
In 2012, however, the U.S. Supreme Court determined that the Quiet Title Act did not bar Administrative Procedure Act challenges to trust decisions after title transfer to the United States. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012). BIA is proposing to eliminate the 30-day waiting period in response to Patchak to allow the assistant secretary-Indian affairs (AS-IA) to transfer title into trust as soon as the AS-IA reaches a final decision.
The new rule would distinguish between decisions made by the AS-IA and those made by subordinate agency officials and establish different notice requirements for each. Decisions made by the AS-IA are considered “final” for the agency and must be challenged directly in federal court. For decisions made by the AS-IA, the proposed rule would allow the secretary to transfer title concurrent with (or even before) notice of the final trust decision is published in the Federal Register. Typically, decisions issued by the AS-IA are the more controversial trust land acquisitions, including those necessary for off-reservation casinos.
The public notice requirements for non-final agency decisions—such as those issued by a BIA regional director—will continue to provide a 30-day window to allow potential litigants an opportunity to challenge the decision before the Interior Board of Indian Appeals. In those cases, written notice will be provided to jurisdictional governments and interested parties who have made themselves known in writing to the relevant BIA office. The public will be provided notice through publication in a newspaper of general circulation serving the affected area.
The proposed rule would most directly affect the rights of local governments with jurisdiction over the land, which might discover, upon receiving notice of a final trust decision by the AS-IA, that the land has already been removed from their regulatory and taxing jurisdiction. Local governments will lose the right to seek emergency relief in court in the form of a temporary restraining order or preliminary injunction, as will affected Indian tribes concerned about encroachment on aboriginal lands or their ability to protect important sites, because the transfer will already be completed. Any legal challenge therefore would have to proceed with the title transferred, raising questions regarding the availability of a complete remedy and the ability of litigants to enjoin damaging activities. Moreover, the proposed rule would eliminate the grace period that often permits parties to reach agreement on areas of conflict associated with the transfer of title into trust.
Notice and a 30-day window remain necessary for trust decisions made by agency officials other than the AS-IA to provide challengers an opportunity to exhaust administrative remedies, a requirement that must be satisfied before a challenger can file suit in federal court. Finally, although BIA suggests that the proposed rule “should have no effect on the rights” of aggrieved parties seeking to quiet title to potential trust land “[b]ecause no change in the law has occurred in connection with these parties,” if there is a challenge to the actual ownership of the land, once title is transferred, the Quiet Title Act will bar such challenges.
BIA will accept comments (by email, mail or hand delivery) for a period of 60 days following the publication of the proposed rule in the Federal Register.