Land Acquisitions

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 151

[1076-AD65]

Land Acquisitions

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final Rule.

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SUMMARY: This rule establishes a 30-day waiting period after final

administrative decisions to acquire land into trust under the Indian

Reorganization Act and other federal statutes. The Department is

establishing this waiting period so that parties seeking review of

final decisions by the Interior Board of Indian Appeals or of decisions

of the Assistant Secretary-Indian Affairs, will have notice of

administrative decisions to take land into trust before title is

actually transferred. This notice allows interested parties to seek

judicial or other review under the Administrative Procedure Act and

applicable regulations.

EFFECTIVE DATE: April 24, 1996.

FOR FURTHER INFORMATION CONTACT: Mary Jane Sheppard, Staff Attorney,

Office of the Solicitor, Division of Indian Affairs, Room 6456, Main

Interior Building, 1849 C Street, NW, Washington, DC 20240; Telephone

(202) 208-6260.

SUPPLEMENTARY INFORMATION: On July 15, 1991, the proposed rule for off-

reservation land acquisitions for Indian tribes was published in the

Federal Register (56 FR 32278-32280). On June 23, 1995, the final rule

was published at 60 FR 32878. That rulemaking supplemented the existing

regulations in part 151. This procedural rule adds a subsection to

existing 25 CFR 151.12, Action on requests.

Background

In response to a recent court decision, State of South Dakota v.

U.S. Department of the Interior, 69 F.3d 878 (8th Cir. 1995), the

Department of the Interior is establishing a procedure to ensure the

opportunity for judicial review of administrative decisions to acquire

title to lands in trust for Indian tribes and individual Indians under

section 5 of the Indian Reorganization Act (IRA) (Pub. L. 73-383, 48

Stat. 984-988, 25 U.S.C. 465). Following consideration of the factors

in the current regulations and completion of the title examination, the

Department, through Federal Register notice, or other notice to

affected members of the public, will announce any final administrative

determination to take land in trust. The Secretary will not acquire

title to the land in trust until at least 30 days after publication of

the announcement. This procedure permits judicial review before

transfer of title to the United States. The Quiet Title Act (QTA), 28

U.S.C. 2409a, precludes judicial review after the United States

acquires title. See, e.g., United States v. Mottaz, 476 U.S. 834

(1986); North Dakota v. Block, 461 U.S. 273 (1983); Florida v.

Department of Interior, 768 F.2d 1248 (11th Cir. 1985).

Section 5 of the IRA authorizes the Secretary to acquire land in

trust for Indians and Indian tribes: (1) Within or adjacent to an

Indian reservation; or (2) for purposes of facilitating tribal self-

determination, economic development, or Indian housing. State of South

Dakota, a case involving an off-reservation trust land acquisition,

held Section 5 of the IRA unconstitutional on the ground that it

violates the nondelegation doctrine. The court's decision was based in

substantial part on the understanding that judicial review is not

available to challenge the Secretary's action. The court noted that

``judicial review is a factor weighing in favor of upholding a statute

against a nondelegation challenge.'' This rule ensures that such review

is available before formal conveyance of title to land to the United

States, when the QTA's bar to judicial review becomes operative.

Judicial review is available

[[Page 18083]]

under the APA because the IRA does not preclude judicial review and the

agency action is not committed to agency discretion by law within the

meaning of the APA.

While the Eighth Circuit decision precludes the Secretary from

taking into trust the land at issue in that particular case, new trust

acquisitions will be made on a case-by-case basis. The procedure

announced in today's rule, however, will apply to all pending and

future trust acquisitions.

The Department certifies that this procedural rule meets the

standards provided in Sections 2(a) and 2(b)(2) of Executive Order

12778.

The Department has determined that this rule:

--Does not have significant federalism effects.

--Will not have significant economic impact on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.).

--Does not have significant takings implications under E.O. 12630.

--Does not have significant effects on the economy, nor will it result

in increases in costs or prices for consumers, individual industries,

Federal, State, or local governments, agencies, or geographical

regions.

--Does not have any adverse effects on competition, employment,

investment, productivity, innovation, or the export/import market.

--Is categorically excluded from the National Environmental Policy Act

of 1969 because it is of an administrative, technical, and procedural

nature. Therefore, neither an environmental assessment nor an

environmental impact statement is warranted.

This rule is not a significant rule under E.O. 12866 and does not

require approval by the Office of Management and Budget.

This rule is not a major rule as defined in 5 U.S.C. 804. The

annual number of tribal requests to place lands in trust is small.

There will be costs incurred by a party seeking judicial review. The

author of this rule is: Mary Jane Sheppard, Office of the Solicitor,

U.S. Department of the Interior.

Because this is a procedural rule under Section 553(b)(3)(A) of the

Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., it is exempt

from requirements for notice and comment rulemaking.

List of Subjects in 25 CFR Part 151

Indians--lands.

For reasons set out in the preamble, Part 151 of Title 25, Chapter

I of the Code of Federal Regulations is amended as set forth below.

PART 151--LAND ACQUISITIONS (NONGAMING)

1. The authority for part 151 continues to read as follows:

Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat.

1106, as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as

amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69

Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75

Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174,

as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216;

86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716;

88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 450h, 451, 464,

465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a,

622, 624, 640d-10, 1466, 1495, and other authorizing acts.

2. Section 151.12, Action on requests, is amended by designating

the existing text as paragraph (a) and by adding a new paragraph (b) to

read as follows:

Sec. 151.12 Title examination.

* * * * *

(b) Following completion of the Title Examination provided in

Sec. 151.13 of this part and the exhaustion of any administrative

remedies, the Secretary shall publish in the Federal Register, or in a

newspaper of general circulation serving the affected area a notice of

his/her decision to take land into trust under this part. The notice

will state that a final agency determination to take land in trust has

been made and that the Secretary shall acquire title in the name of the

United States no sooner than 30 days after the notice is published.

Dated: April 17, 1996.

Ada E. Deer,

Assistant Secretary, Indian Affairs.

[FR Doc. 96-9922 Filed 4-29-96; 8:45 am]

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