Department of the Interior Announces Changes to Fee-to-Trust Policy for Tribes

Schwabe, Williamson & Wyatt PC

Schwabe, Williamson & Wyatt PC

Fee-to-trust, sometimes also called land-into-trust, is the process by which tribes can have land taken into trust by the federal government. Congress authorized the Department of the Interior (DOI) to take land into trust for tribes in 1934 under the Indian Reorganization Act, 25 U.S.C. 5108. Under this process, tribes have been able to restore lands that may have been lost, through allotment or otherwise, to tribal ownership, piecing back together the “checkerboard” ownership patterns of their reservations.

On Tuesday, DOI announced several changes to DOI policy that are intended to help tribes restore their lands. These changes all center on the fee-to-trust process.

First, the Solicitor for the Department of the Interior issued Solicitor’s Opinion M-37069, restoring the ability of DOI to take land into trust for Native Villages in Alaska. The Solicitor found that opinion M-37064, which revoked the ability of Native Villages to have land taken into trust, failed to take into account that an exemption for Alaska tribes under the fee-to-trust regulations found in 25 C.F.R. Part 151 had already been removed through the DOI rulemaking process. Under the opinion M-37069, Native Villages in Alaska may apply to have land taken into trust for their benefit through the fee-to-trust process.

Next, the Secretary of the Interior issued Secretary’s Order 3400 delegating authority to review and approve off-reservation, non-gaming fee-to-trust applications to the Bureau of Indian Affairs Regional Offices. Previously, all off-reservation, non-gaming, fee-to-trust applications had to be sent to the Bureau of Indian Affairs Central Office, placing decisions regarding off-reservations acquisitions in the hands of BIA officials located thousands of miles from the reservation. This order will help accelerate the review of these fee-to-trust applications by distributing the workload better and relieving the bottleneck created by sending applications to the Central Office.

Finally, the DOI Solicitor issued opinion number M-37070 officially withdrawing opinions numbered M-37054 and M-37055. These two opinions, which were issued on March 9, 2020, established a new standard for determining whether a tribe was “under federal jurisdiction” for purposes of having land taken into trust under the Indian Reorganization Act. These two opinions created a confusing and unnecessarily complex process for determining whether a tribe was “under federal jurisdiction.” The new opinion reinstates the DOI Solicitor’s opinion number M-37029, which contains a much simpler process that has been upheld by multiple federal courts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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