Snell & Wilmer

The Secretary of the Interior issued Order Number 3400 on April 27, concerning the delegation of authority for non-gaming fee-to-trust land acquisitions concerning off-reservation Tribal lands.

The Department of Interior (“DOI”) issued a press release the same day regarding the Order, stating: “Taking land into trust is one of the most important functions Interior undertakes on behalf of Tribes.” By placing lands into trust with the DOI, Tribes are able to accomplish important goals relating to Tribal self-determination, including: (1) reacquiring lands located nearby or within reservations; (2) instituting a foundational area for Tribal communities; and (3) clarifying jurisdiction over Tribal lands.

The most recent preceding framework (first set forth in National Policy Memorandum NPM-TRUS-36 and then converted to permanent policy in the Indian Affairs Manual) delegated authority of both gaming and non-gaming off-reservation fee-to-trust acquisitions to the Assistant Secretary – Indian Affairs. This policy elevated all land-into-trust decisions to staff at the DOI headquarters, which both increased the complexity of the determination process and resulted in delays.

Order Number 3400 delegates authority for any non-gaming off-reservation fee-to-trust land acquisitions to BIA Regional Directors, allowing them to issue decisions on all such requests rather than requiring DOI headquarters staff to decide on applications. Requests for gaming-related off-reservation fee-to-trust acquisitions remain with the Assistant Secretary – Indian Affairs, who will process those applications in coordination with the Indian Affairs Office of Indian Gaming. The DOI expressed that this step was one of several “to honor our nation-to-nation relationship with Tribes and uphold our trust and treaty responsibilities with them.

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