Acquisition of Title to Land in Trust

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 151

RIN 1076-AD90

Acquisition of Title to Land in Trust

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: On September 18, 1980, we issued the first regulations

governing the exercise of the Secretary of the Interior's authority to

accept title to land in the name of the United States to be held in

trust for the benefit of Indian tribes and individual Indians (i.e., to

``take land into trust''). These regulations have not undergone

substantial revision since their adoption. We now propose to amend

these regulations to make clearer that we will follow a process that is

somewhat different, and we will apply a standard which is somewhat more

demanding when a land-into-trust application involves title to lands

which are located outside the boundaries of a reservation (``off-

reservation lands''). In contrast, when the application involves lands

located inside the boundaries of a reservation (``on-reservation

lands''), we will apply a process and a standard which reflect a

presumption in favor of acquisition of trust title to those lands. In

addition, the proposed rule sets out the process we will use to comply

with a mandate from Congress directing us to use our administrative

procedures to place a particular tract of land into trust. Finally, the

proposed rule establishes a framework in which a tribe without a

reservation can establish a geographic boundary within which it may

acquire land under the on-reservation provisions of the regulation.

DATES: Send comments before July 12, 1999.

ADDRESSES: If you wish to comment, you may submit your comments by any

[[Page 17575]]

one of several methods. See SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Terry Virden, Director, Office of

Trust Responsibilities, Bureau of Indian Affairs, MS-4513, Main

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

telephone at (202) 208-5831; or by telefax at (202) 219-1065.

SUPPLEMENTARY INFORMATION:

General Comments

You may mail comments to the Office of Trust Responsibilities,

Bureau of Indian Affairs, 1849 C Street, NW, MS-4513-MIB, Washington,

DC 20240.

Electronic Access and Filing

You may also comment via the Internet to

[[email protected]]. Please submit Internet comments as an

ASCII file avoiding the use of special characters and any form of

encryption. Please also include ``Attn: 1076-AD90'' and your name and

return address in your Internet message. If you do not receive a

confirmation from the system that we have received your Internet

message, contact the Office of Trust Responsibilities directly at (202)

208-5831.

Finally, you may hand-deliver comments to the Office of Trust

Responsibilities, Bureau of Indian Affairs, 1849 C Street, N.W., MS-

4513-MIB, Washington, D.C. 20240.

Our practice is to make comments, including the names and addresses

of persons commenting, available for public review during regular

business hours. Persons commenting as private individuals may request

that we withhold their home address from the rulemaking record, which

we will honor to the extent allowable by law. There may also be

circumstances in which we would withhold from the rulemaking record a

commenter's identity, as allowable by law. If you wish us to withhold

your name and/or address, you must state this prominently at the

beginning of your comment. We will not consider anonymous comments.

Comments from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses, will be available for public inspection in their

entirety.

Specific Comments on Information Collection Aspects of the

Rulemaking

Indian tribes and individuals must submit the information required

under Secs. 151.4, 151.9, 151.12, 151.15, and 151.18 to acquire land

into trust, and 151.26 for approval of Tribal Acquisition Plans. We

will use the information in making a determination on an application to

take land into trust. The applicant must respond to this request to

obtain a benefit. This table represents our estimate of the burden

hours for reporting information collection under each section of this

proposed rule.

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Average Annual

Citation 25 CFR 151 Information number of Average number per burden

hours year hours

----------------------------------------------------------------------------------------------------------------

151.4--For all applications....... Submit completed written 4-8 6,941 28,635

request as specified in

sections 151.9, .12, and

.15.

151.9--For on reservation Applicants must submit:... 4 95%=6,594 26,376

acquisitions. (a) Copy of authority.....

(b) Explanation of need...

(c) Explanation of

ownership status (Tribe).

(d) Explanation of

ownership status

(Individual).

(e) Title Insurance.......

(f) Documentation for NEPA

151.12--For off reservation Applicants must submit:... 8 4%=278 2,224

acquisitions. (a) Copy of authority.....

(b) Explanation of need...

(c) Description of

proposed use.

(d) Description of

location of land.

(e) Description of effect

on state & political

subdivisions.

(f) Description of

jurisdictional issues.

(g) Title Insurance.......

(h) Documentation for NEPA

(i) Documentation that

individual's request

meets 151.13.

151.15--For mandatory acquisitions Applicants must submit:... .5 1%=69 \2\ 35

(a) Copy of authority.....

(b) Title Insurance.......

(c) Additional information

upon request.

151.18--For Tribal Land Applicants must submit:... 8 .05%=325 \3\ 2,600

Acquisition Plans (TLAP). (a) Copy of authority.....

(b) Copy of tribal

documents to establish

TLAP.

(c) Summary of purposes &

goals.

(d) Summary of tribe's

history.

(e) Description of TLAP...

(f) Location of Rights-of-

Way.

(g) Description of effect

on State & political

subdivisions.

(h) Description of

jurisdictional & land use

issues.

151.26--Recordkeeping............. Maintaining each case file (\1\) 6,941 578

----------------------------------------------------------------------------------------------------------------

\1\ 5 minutes=\1/12\ hour.

\2\ Rounded.

\3\ Not included in total burden hours.

We invite your comments as to:

(1) Whether the collection of information is necessary for the

proper performance of the functions of the

[[Page 17576]]

Bureau, including whether the information will have practical utility;

(2) The accuracy of the Bureau's estimate of the burden of the

collection of information, including the validity of the methodology

and assumptions used;

(3) The quality, utility, and clarity of the information to be

collected; and

(4) How to minimize the burden of the collection of information on

those who are to respond, including the use of appropriate automated

electronic, mechanical, or other forms of information technology.

Your comments regarding the burden estimate or any other aspect of

this information collection should be sent to: Attention: Desk Officer

for the Interior Department, Office of Information and Regulatory

Affairs, Office of Management and Budget, Docket Library, Room 10102,

725 17th Street, NW, Washington DC 20503. Please note that OMB has up

to 60 days to approve or disapprove the information collection but may

respond after 30 days; therefore, public comments should be submitted

to OMB within 30 days in order to assure their maximum consideration.

Comments should also be sent to the Bureau of Indian Affairs, Office of

Trust Responsibilities, 1849 C Street, NW, MS-4513-MIB, Washington, DC

20240.

Introduction and Summary

Congress has given the Secretary of the Interior discretionary

authority to acquire title to land to be held in trust by the United

States for the benefit of Indian tribes and individual Indians.

Acquiring such title is commonly referred to as ``taking land into

trust.'' General statutory authority giving the Secretary discretion to

acquire trust title to land is found in Section 5 of the Indian

Reorganization Act of 1934 (the IRA), 25 U.S.C. 465:

The Secretary of the Interior is hereby authorized, in his

discretion, to acquire, through purchase, relinquishment, gift,

exchange, or assignment, any interest in lands, water rights, or

surface rights to land, within or without existing reservations,

including trust or otherwise restricted allotments, whether the

allottee be living or deceased, for the purpose of providing land to

Indians.

Occasionally, Congress enacts other legislation granting the Secretary

authority to take land into trust for some specific purpose. We refer

to acquisitions of trust title under the IRA, and under other

specialized statutes that grant discretionary authority to the

Secretary, as ``discretionary acquisitions of title.''

The regulations proposed here would restructure how we review

proposed discretionary acquisitions of title. We believe this

restructuring will facilitate land-into-trust decisions which better

reflect the modern-day needs and concerns of tribes, individual

Indians, and surrounding non-Indian communities. Specifically, the

proposed regulation sets forth an application process and review

criteria which is more demanding when the land at issue is located

outside the boundaries of an existing reservation or outside a

Secretarially-approved Tribal Land Acquisition Area (collectively,

``off-reservation acquisitions''), but which is less demanding when the

land is located inside the boundaries of an existing reservation or

inside a Secretarially-approved Tribal Land Acquisition Area

(collectively, ``on-reservation acquisitions''). In other words, the

proposed regulations would make the application process easier for on-

reservation acquisitions, while conversely requiring a more detailed

analysis of a greater number of criteria for off-reservation

acquisitions.

The purpose of creating these differing processes and criteria is

two-fold. First, we intend to better carry out our responsibility to

assist tribes in reestablishing ownership of, and jurisdiction over,

land located within their own reservations. Second, we also intend to

create a framework that adequately addresses the particular concerns

that non-Indian governments have about the ramifications of placing

off-reservation land into trust.

In addition, the proposed regulations delineate the procedure by

which we process mandatory acquisitions of title. Mandatory

acquisitions of title are trust acquisitions which Congress, by

explicit statutory direction, requires the Secretary to accept through

the administrative process. In other words, mandatory acquisitions are

those which Congress has directed the Secretary to complete by removing

any discretion in the administrative decision-making process.

(Mandatory acquisitions of title are distinguishable from legislative

transfers of title. Legislative transfers of title are those in which

Congress directly places a parcel of land in trust, thereby removing

the need for any administrative action to effectuate the transfer of

title into trust status.)

Finally, the proposed regulations address the unique difficulties

encountered by tribes which do not have reservations by including new

provisions which set out a process by which those tribes may benefit

from the on-reservation provisions of this regulation. In this process,

a tribe without a reservation can designate a ``Tribal Land Acquisition

Area'' in which it plans to acquire land. If the tribe obtains

Secretarial approval of its Tribal Land Acquisition Area, the tribe

will be able to apply to have title to the lands located within the

Tribal Land Acquisition Area taken into trust under the on-reservations

provisions of this regulation.

Discretionary Acquisitions On-Reservation

The General Allotment Act of 1887, 25 U.S.C. 331 et seq.,

authorized the division, and distribution to individuals, of lands

located within the boundaries of most Indian reservations across the

country. This allotment policy was based in part on the theory that fee

ownership of land would improve the economic condition of Indians,

which at the time was acknowledged to be very poor. Unfortunately, in

practice the primary beneficiaries of the Allotment Act were land

speculators who quickly acquired large portions of land within Indian

reservations, often at prices well below market value. Institute for

Government Research, The Problem of Indian Administration 460-462 (L.

Meriam, ed.) (Johnson Reprint Corporation 1971) (1928) (Meriam Report).

Implementation of the Allotment Act resulted in the alienation of

as much as 90 million acres of land originally reserved to tribes by

treaties and Executive Orders. Felix S. Cohen, Handbook of Federal

Indian Law 138 (Michie Company) (1982 ed.) (Cohen). The loss of these

tribal lands was catastrophic and generally is regarded by historians

and others as being responsible for a precipitous decline in the

economic, cultural, social and physical health of tribes and their

members. E.g., Charles F. Wilkinson, American Indians, Time and the Law

19-21 (Yale University Press 1987). To combat this downward spiral, in

1934 Congress passed the Indian Reorganization Act (IRA). Comment,

Tribal Self-Government and Indian Reorganization Act of 1934, 70 Mich.

L. Rev. 955, 960 (1972). One of the primary goals of the IRA was the

restoration to tribal ownership of allotted land within existing

reservations. See, Readjustment of Indian Affairs, Hearing before the

Committee on Indian Affairs, 73d Cong. 2nd Sess. on H.R. 7902, at 16-1;

Cohen, supra at 147. Although the IRA authorized appropriation to the

Department of the Interior of two million dollars a year for land

acquisition, since 1934 only $5.5 million has been appropriated by

Congress for that purpose, all of it before 1950. Cohen at 150, note

51.

[[Page 17577]]

In the modern era tribes have taken full responsibility for

rebuilding their reservation land bases, purchasing land from willing

sellers and then applying to the Secretary to request that the land be

taken into trust. Yet to date, less than eight percent of lands lost

through allotment have been returned to tribal ownership. Cohen at 138,

BIA's Annual Report for Indian Lands, 1996. Indeed, most applications

requesting that we take land into trust have involved relatively small

amounts of land. For example, in 1996 (the latest year for which data

is available), the average amount of land involved in an application to

take land in trust was about 30 acres. BIA's Annual Report for Indian

Lands, 1996.

The proposed regulations are intended to promote the health and

welfare of tribes and their members by better facilitating the

restoration of on-reservation Indian lands into trust status. For

example, the on-reservation provisions of the regulation provide that

the tribe's stated need for the land will be accorded additional weight

in recognition of the tribe's reasonable expectation that it benefit

from the lands originally promised to it by treaty or Executive Order.

For the same reason, because lands within reservation boundaries are

subject to tribal governmental jurisdiction, the portion of the

proposed rule governing on-reservation acquisitions does not

specifically require submission of information concerning impacts on

non-Indian communities, although State and local governments may

comment on these impacts if they so desire. (In which case, the tribe

will be given a copy of the comments and a reasonable amount of time in

which to respond.)

Discretionary Acquisitions Off-Reservation

Congressional adoption of the land acquisition provisions of the

IRA was based in part on Congress' understanding that the decimation of

the tribal land base had resulted in substantial economic hardship for

Indian tribes and their members. Hence, the regulations implementing

the IRA anticipate the potential need for tribal trust land for

economic development outside the boundaries of a reservation,

particularly in situations in which a tribe's reservation is isolated

or otherwise remote from centers of economic activity.

The acquisition of title by the United States in off-reservation

circumstances can, however, have significant ramifications for local

non-Indian communities. In particular, important jurisdictional matters

(e.g., those involving law enforcement, land use planning, public

education, and maintenance of utilities and roads) can become blurred.

The effects of off-reservation acquisitions are in contrast to those

caused by on-reservation acquisitions, as the effects of on-reservation

acquisitions are just incremental additions to an already established

set of circumstances, and not marked by the establishment of a new

sovereign or jurisdictional presence.

For this reason, the proposed rule requires tribes wishing to take

off-reservation land into trust to submit a substantial amount of

information about how the proposed acquisition would impact the

surrounding non-Indian community, and about how the tribe would address

that impact. Requiring submission of this detailed information helps

ensure that the concerns of local non-Indian governments are

identified, reviewed and evaluated in our decision-making process.

Unlike the regulations currently in effect, the proposed

regulations do not treat applications concerning land which is adjacent

(contiguous) to a reservation as if the land were located on-

reservation. Rather, applications concerning adjacent parcels are to be

treated as off-reservation acquisitions, and will be subject to the

same process and local non-Indian government consultation as are

applications concerning other off-reservation lands. Of particular note

is that we will require consultation with the state and local non-

Indian governments in the state in which the adjacent land is located

(even if the main body of the reservation lies across a state line).

The proposed regulation, however, would continue our policy (as

articulated in the existing regulations) of giving greater weight to

the tribe's need (vis-a-vis the objections of the local non-Indian

community) the closer the land is to the tribe's reservation. Thus, the

stated need for land adjacent to a reservation will be given greater

weight in the context of the off-reservation criteria. In addition,

tribal applicants wishing to conduct gaming on a parcel adjacent to

land which has held reservation status since October 17, 1988 will

continue to benefit from the ``contiguity exception'' mandated by

Congress in the Indian Gaming Regulatory Act (IGRA) Section 20

requirements. (See 25 U.S.C. 2719(a)(1).)

The IRA land acquisition provisions authorize us to take off-

reservation land into trust for the benefit of individual Indians.

However, as a matter of general policy, we will approve applications

from individual Indians for title to land located outside the

boundaries of a reservation only under certain limited circumstances,

in our discretion. For example, we will continue to accept title to

interests in off-reservation land for the purpose of consolidating

fractioned ownership of such land. Additionally, we will continue to

accept title to lands purchased with funds obtained as the result of

the voluntary sale of non-taxable Indian lands to any State, county, or

municipality, or as the result of condemnation of such property by a

State, county, or municipality, under 25 U.S.C. 409a.

Off-Reservation Acquisitions and Indian Gaming

If a tribe intends to use off-reservation land for gaming purposes,

it must comply with the applicable requirements of Section 20 of the

Indian Gaming Regulatory Act, 25 U.S.C. 2719 (IGRA) before gaming may

occur on that land. In most cases, compliance with Section 20 of IGRA

requires additional consultation with local non-Indian governments, a

determination by the Secretary that the acquisition is ``in the best

interest of the tribe and not detrimental to the surrounding

community,'' and a concurrence in that determination from the Governor

of the State in which the land is located. Id.

If a tribe applies under these regulations to have title acquired

in trust for a non-gaming purpose, and then at a later date decides

that it would like to conduct gaming on that parcel, it will be

authorized to engage in such gaming only if it complies with the

requirements of Section 20 of IGRA. In other words, to game on a parcel

of trust land acquired after October 17, 1988 (i.e., the date of

passage of IGRA), the tribe must submit to the same Section 20 analysis

and obtain the same gubernatorial consent as would have been required

if the parcel were originally taken into trust for the purpose of

gaming.

Discretionary Acquisitions in Alaska

Both the current and the proposed regulations bar the acquisition

of trust title in land in Alaska, unless an application for such

acquisition is presented by the Metlakatla Indian Community or one of

its members. (The lands of the Metlakatla Indian Community comprise the

only Native land in Alaska currently designated as a ``reservation'' by

the federal government.) The regulatory bar to acquisition of title in

trust in Alaska in the original version of these regulations was

predicated on an opinion of the Associate Solicitor, Indian Affairs

(``Trust Land for the Natives of Venetie

[[Page 17578]]

and Arctic Village,'' September 15, 1978), which concluded that the

Alaska Native Claims Settlement Act (ANCSA) precluded the Secretary

from taking land into trust for Natives in Alaska (again, except for

Metlakatla).

Although that opinion has not been withdrawn or overruled, we

recognize that there is a credible legal argument that ANCSA did not

supersede the Secretary's authority to take land into trust in Alaska

under the IRA (see relevant IRA provision at 25 U.S.C. 473a). See also

the Petition of Chilkoot Indian Association, Native Village of Larsen

Bay, and Kenaitze Indian Tribe, requesting the Department to undertake

a rulemaking to remove the prohibition on taking land in trust in

Alaska (60 FR 1956 (1995). However, even if it were held that the

Secretary retained authority to take land in trust in Alaska, whether

to exercise that authority remains in the sound discretion of the

Secretary.

In recent years blue-ribbon commissions and working groups (such as

the State of Alaska's Rural Governance Commission) have been formed to

address various related issues concerning tribal governments and Native

lands in Alaska and to address such issues in the wake of the decision

in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520,

118 S. Ct. 948 (1998). In that decision, the court held that former

Native Corporation lands owned in fee simple by the Native Village of

Venetie Tribal Government were not validly set apart for the use of

Indians as such, nor were they under the superintendence of the federal

government, and thus did not meet the definition of ``dependent Indian

communities.'' Id. At 955. Since the lands did not qualify as dependent

Indian communities, they did not meet the definition of Indian country

and the Native Village of Venetie Tribal Government was not authorized

to tax non-members. Of course, if land were taken in trust by the

Secretary, such trust land then would qualify as Indian country and an

Alaskan tribe would have all the powers that pertain within Indian

country. We invite comment on the continued validity of the Associate

Solicitor's opinion and issues raised by the petition noticed at 60 FR

1956 (1995) in light of the Supreme Court's ruling in the Venetie case.

The proposed regulations would make no change in the current

regulations and would continue the bar against taking Native land in

Alaska in trust. However, that bar would be subject to review pending

the report of the Rural Governance Commission, or Congressional action

clarifying that ANSCA lands are Indian country.

Mandatory Acceptance of Title

The implementation of specific statutes containing congressional

mandates to acquire title to land in trust through our administrative

process has not always been well-understood. To provide more clarity,

the proposed rule includes new language that specifically identifies

the types of acquisitions we consider ``mandatory,'' and sets out the

process by which we will acquire title.

The proposed regulation clarifies that an acquisition of title is

``mandatory'' if Congress has removed all discretion in determining

whether to accept title to a particular tract of land. Situations in

which all discretion has been removed include those situations in which

Congress dictates that the Secretary ``shall'' acquire title to a

parcel of land which is specifically identified by legal description,

or to land which is purchased with certain, specified funds. In

contrast, a statute which merely directs that the Secretary ``shall''

accept title to unidentified land within some broader geographic

boundary, e.g. within certain named counties, still allows for some

discretion. Hence we do not view acquisitions under such a statute as

``mandatory'' for the purposes of this regulation. By definition,

mandatory acceptances of title rely on statutory authority which

preempts the discretionary authority granted to the Secretary by the

IRA. The Department will evaluate each statute on a case-by-case basis

to determine whether it requires a mandatory acceptance of trust title.

The process for completing a mandatory acceptance of title is

relatively simple. A tribe must submit an application that includes the

identification of the federal statute which mandates the acquisition of

title and include the same sort of title insurance information required

for discretionary acquisition applications. Because of the mandatory

character of such acquisitions, the regulation does not require

compliance with the National Environmental Policy Act (NEPA). However,

we strongly advise applicants, for their own protection, to conduct the

same type of environmental assessment generally done under NEPA prior

to acquisition of the property, or at least prior to submitting an

application to have the property taken into trust.

As a final matter, we note the distinction between mandatory

acquisitions where Congress directs the Secretary to complete the

administrative process of accepting trust title, and ``legislative

transfers of title,'' where Congress directly transfers land into trust

status on behalf of tribes or individual Indians. In the latter type of

title transfer, Congress has removed the need for any administrative

action to effectuate the title transfer.

Tribal Land Acquisition Areas for Tribes Without Reservations

There are a few tribes which do not benefit from the basic rights

and opportunities inherent in having a reservation. For the most part,

these are tribes recently restored to federal recognition by a federal

statute which does not specifically designate a reservation, or they

are tribes that have obtained federal recognition through the

administrative Federal Acknowledgment Process, which as a matter of

course does not provide for the designation of a reservation.

Federal policy for many decades has viewed the existence of a

tribal land base as integral to the cultural, political, and economic

well-being of a tribe. For example, most federal programs for Indians

are in one way or another tied to the tribal land base. Because of the

overwhelming importance of the tribal land base, and because the new

regulations make it less burdensome for tribes to take land into trust

on (as opposed to off-) reservation, we are proposing in these

regulations an alternative mechanism by which reservation-less tribes

may benefit from the on-reservation acquisition provisions to create a

homeland.

The alternative mechanism is the use of a ``Tribal Land Acquisition

Area.'' A Tribal Land Acquisition Area is a geographic boundary

designated by a reservation-less tribe within which the tribe plans to

acquire land within a specified period of time under the more lenient

on-reservation provisions of the proposed rule. In other words, the

Tribal Land Acquisition Area would create a geographic boundary within

which individual parcels would be treated as on-reservation for the

purposes of acquiring trust title under these regulations.

Because establishment of a Tribal Land Acquisition Area will affect

local non-Indian governments, we will require that the concerns of

local non-Indian governmental entities be addressed before the

Secretary will approve the creation of the Tribal Land Acquisition Area

boundaries. For that reason, an application for Secretarial approval of

a Tribal Land Acquisition Area requires submission of information

similar to that required in applications for off-reservation

acquisitions. However, because we view the need for

[[Page 17579]]

a homeland as fundamental, we will accord greater weight to the

application of a reservation-less tribe, particularly in situations in

which the tribe benefits from a federal statute directing the Secretary

to acquire some land base for the tribe.

However, while off-reservation land located within a Tribal Land

Acquisition Area may be treated as on-reservation land for acquisition

purposes, such lands legally cannot be treated as on-reservation for

the purposes of IGRA. In other words, title to land which is inside a

Tribal Land Acquisition Area cannot be taken into trust for the purpose

of gaming unless and until the requirements of section 20 of IGRA have

been satisfied.

Part 151 of Title 25, Chapter I of the Code of Federal Regulations

is proposed to be amended for the reasons set out below:

1. The authority for part 151 is revised to include the False

Statements Accountability Act of 1996, 18 U.S.C. 1001.

2. Section 151.1 Purpose and Scope, is retitled as What is the

purpose of this part?, and is reformatted and simplified.

3. Section 151.2 Definitions, is retitled as How are key terms

defined in this part?, and is revised to update some of the definitions

of terms used in this part and to include new terms used in this part.

The definitions in this section apply only to this part.

4. Section 151.3 Land acquisition policy, has been deleted,

although some of the substantive portions of the current Sec. 151.3

have been incorporated into other parts of the proposed rule. A new

Sec. 151.3 is added entitled To what types of transactions do these

regulations apply? The new Sec. 151.3 incorporates some of the

information that is in the current Sec. 151.1.

5. Section 151.4 Acquisitions in trust of lands owned in fee by an

Indian, is deleted because it is unnecessary given the rest of the

proposed changes to this regulation. A new Sec. 151.4 entitled How does

an individual Indian or a tribe apply to have title to land conveyed to

the United States in trust? is added to explain how to apply to have

land taken into trust.

6. Section 151.5 Trust acquisitions in Oklahoma under Section 5 of

the I.R.A., is deleted because it is unnecessary. A new Sec. 151.5

entitled How do we process the request? is added to provide more

clarity about how we review requests to take land into trust.

7. Section 151.6 Exchanges is deleted because it is no longer

necessary given the other sections of the part. A new Sec. 151.6,

entitled How do we proceed after making a decision on the request? is

added.

8. Section 151.7 Acquisition of fractional interests, is

renumbered and retitled as Sec. 151.8, Will we accept and hold in trust

an undivided fractional interest in land for an individual Indian or a

tribe?, is reformatted to include acquisitions of ``undivided''

interest under the Indian Land Consolidation Act, and is revised for

clarity. ``Undivided fractional'' is substituted for the word

``fractional'' to clarify that the ``fractional'' interest being

acquired is not a geographically separate parcel of land. A new

Sec. 151.7 is added, When does land attain trust status?, to provide

clarification as to how land technically attains trust status after we

have decided to take it into trust.

9. Section 151.8 Tribal consent for nonmember acquisitions is

renumbered and retitled as Sec. 151.11 Can an individual Indian or a

tribe acquire land inside a reservation inside or an approved Tribal

Land Acquisition Area of another tribe? and is revised for clarity.

10. Section 151.9 Requests for approval of acquisitions is

renumbered and retitled as Sec. 151.4 How does an individual Indian or

a tribe apply to have title to land conveyed to the United States in

trust? A new Sec. 151.9, What information must be provided in a request

involving land inside a reservation or inside an approved Tribal Land

Acquisition Area? is added.

11. Section 151.10 On-reservation acquisitions, is renumbered,

retitled, and has been separated for clarity as Sec. 151.5 How do we

process the application?, Sec. 151.9 What information must be provided

in a request involving land inside a reservation or inside an approved

Tribal Land Acquisition Area?, and Sec. 151.10, What criteria will we

use to evaluate requests involving land inside a reservation or inside

an approved Tribal Land Acquisition Area? The new Sec. 151.10 is

revised to establish a uniform, nationwide, ``minimum standard'' set of

criteria for the decision maker to consider in the evaluation of an

application for an on-reservation trust acquisition. The requirement to

furnish title evidence is transferred from the current Sec. 151.13 to

this section to incorporate title evidence as part of a complete

application request.

12. Section 151.11 Off-reservation acquisitions, is renumbered,

retitled, and has been separated for clarity as Sec. 151.5 How do we

process a request?, Sec. 151.12 What information must be provided in

an application involving land outside a reservation and outside a

Tribal Land Acquisition Area?, and Sec. 151.14 What criteria will we

use to evaluate a request involving land outside a reservation and

outside a Tribal Land Acquisition Area? The requirement to furnish

title evidence is transferred from the current Sec. 151.13 to this

section to incorporate title evidence as part of a complete application

request. In addition, a new Sec. 151.11, Can an individual Indian or a

tribe acquire land inside a reservation or inside an approved Indian

Land Acquisition Area of another tribe?, is added, replacing the

current Sec. 151.8.

13. Section 151.12 Action on requests has been separated for

clarity and is included as part of Sec. 151.6 How do we proceed after

making a decision on the request? A new Sec. 151.12, What information

must be provided in a request involving land outside a reservation and

outside a Tribal Land Acquisition Area?, is added.

14. Section 151.13 Title examination, is renumbered, reorganized,

and revised for clarity. The requirement to furnish title evidence is

transferred from this section and incorporated in the new Secs. 151.9

and 151.12 as part of a complete application request. Section (b),

governing situations in which the title to the land has any liens,

encumbrances, or infirmaties, has been integrated into

Sec. 151.6(c)(1). A new Sec. 151.13, entitled Can an individual Indian

acquire land outside his or her own reservation?, has been added to

clarify the Secretary's policy regarding the acquisition of off-

reservation lands by an individual Indian.

15. Section 151.14 Formalization of acceptance is renumbered and

retitled as Sec. 151.7 When does the land attain trust status? A new

Sec. 151.14, entitled What criteria will we use to evaluate a request

involving land outside a reservation or outside a Tribal Land

Acquisition Area?, is added to establish a uniform, basic, nationwide,

``minimum standard'' set of criteria for the decision maker to consider

in the evaluation of an application for an off-reservation trust

acquisition.

16. Section 151.15 Information collection, is renumbered and

retitled as Sec. 151.27 Do information collections under this part

have Office of Management and Budget approval? Paragraph (a) is revised

to include the new information collection requirements. A new

Sec. 151.15 entitled What information must be provided in a request to

process a mandatory transfer of title into trust status, and how will

we process the request? has been added to clarify the information

needed to process mandatory acquisitions.

[[Page 17580]]

17. A new Sec. 151.16 entitled Can our determination that a

transfer of title into trust status is mandatory be appealed? is added

for clarity.

18. A new Sec. 151.17 entitled What is a Tribal Land Acquisition

Area? has been added to clarify how a Tribal Land Acquisition Area can

be used by tribes without reservations to benefit from the on-

reservation provisions of this regulation.

19. A new Sec. 151.18 entitled What must be included in a request

for Secretarial approval of a Tribal Land Acquisition Area? has been

added to describe what information must be submitted in the request.

20. A new Sec. 151.19 entitled How is a tribal request for

Secretarial approval processed? is added to describe how we will

process the request for Secretarial approval of the Tribal Acquisition

Area.

21. A new Sec. 151.20 entitled What criteria will we use to decide

whether to approve a proposed Tribal Land Acquisition Area? has been

added to set out the criteria the Secretary will use to evaluate a

Tribal Land Acquisition Area.

22. A new Sec. 151.21 entitled Can a tribe include in its Tribal

Land Acquisition Area land inside another tribe's reservation or Tribal

Land Acquisition Area? is added for clarity.

23. A new Sec. 151.22 entitled If a Tribal Land Acquisition Area is

not approved, is the tribe prohibited from acquiring land within it? is

added for clarity.

24. A new Sec. 151.23 entitled If a Tribal Land Acquisition Area is

approved, does the land taken into trust within it attain reservation

status? is added for clarity.

25. A new Sec. 151.24 entitled Can a Tribal Land Acquisition Area

be modified after approval? has been added to state that a Tribal Land

Acquisition Area can be modified after approval by submitting a request

for Secretarial approval of the modifications in compliance with the

criteria in this part.

26. A new Sec. 151.25 entitled What is the penalty for making false

statements in connection with a request that we place land in trust?

has been added to notify applicants that they are subject to

prosecution for knowingly and willfully making false statements on an

application.

27. A new Sec. 151.26 entitled What recordkeeping and reporting

requirements apply to acquisitions of trust title under this part? has

been added to notify contracted or compacted tribes that documents

created in the application process are permanent federal records.

28. A new Sec. 151.27 entitled Do information collections under

this Part have Office of Management and Budget approval? is added for

clarity.

Clarity of this regulation.

Executive Order 12866 requires each agency to write regulations

that are easy to understand. We invite your comments on how to make

this rule easier to understand, including answers to questions such as

the following: (1) Are the requirements in the rule clearly stated? (2)

Does the rule contain technical language or jargon that interferes with

its clarity? (3) Does the format of the rule (grouping and order of

sections, use of questions as headings, paragraphing, etc.) aid or

reduce its clarity? (4) Would the rule be easier to understand if it

were divided into more (but shorter) sections? (A ``section'' appears

in bold type and is preceded by the symbol ``Sec. '' and a numbered

heading; for example, Sec. 151.1 What is the purpose of this part?) (5)

Is the description of the rule in the Supplementary Information section

of the preamble helpful in understanding the proposed rule? What else

could we do to make the rule easier to understand?

Regulatory Planning and Review (E.O. 12866)

In accordance with the criteria in Executive Order 12866, this rule

is not a significant regulatory action and is not subject to review by

the Office of Management and Budget.

(a) The proposed amendments to this rule basically conform to the

policies and practices that currently guide the Department's decision

making on land into trust applications. Hence, we do not anticipate

that this regulation will have a significant effect on the net amount

of land taken into trust. The rule will not have an annual effect of

$100 million or more on the economy. It will not adversely affect in a

material way the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal

governments or communities. This rule simply identifies a ``minimum

standard'' of criteria and requirements to be considered in the

exercise of the Secretary's discretion to place lands in trust for

individual Indians and tribes.

Looking at the overall picture of how much land we have taken into

trust historically, the annual number of requests to place lands in

trust has been small. Based on the BIA's Annual Report of Indian Lands

for 1996, only 35 States have Indian lands, four of which have fewer

than 1,000 acres of Indian lands. The 1996 report indicated that there

were 6,941 total applications involving 212,000 acres cumulatively,

i.e., the average amount of land involved in an application was only

about 30 acres. Based on the annual caseload report for FY 1996, the

total dollar amount Indians paid for acquisitions of land in trust is

$19,420,303.81, less than 20% of $100 million. Some States and local

governments may have a decrease in revenues derived from taxes.

However, the loss in annual revenues for State and local jurisdictions

will only be a fraction of the value of the land involved. Moreover,

some tribes may choose to offset this loss by making payments in lieu

of taxes, or supplying services to the local communities. In addition,

the proposed rule would alter the final disposition of only a portion

of the applications. Finally, any losses or gains to State or local tax

rolls would be spread over several states. Thus, overall, the net

changes in tax rolls due to this rule will be minimal, and will not

significantly affect State or local governments.

(b) This rule will not create a serious inconsistency or otherwise

interfere with an action taken or planned by another Federal agency.

Actions taken by this rule will affect tribal or individual Indian land

titles. The Department of the Interior, Bureau of Indian Affairs is the

only governmental agency that makes the determination whether to take

land into trust.

(c) This rule does not alter the budgetary effects or entitlement,

grants, user fees, or loan programs or the rights or obligations of

their recipients. This rule sets out the criteria and procedures the

Secretary uses in determining whether to accept title of certain Indian

lands to the United States, as trustee, for the benefit of an

individual Indian or a tribe.

(d) This rule does not raise novel legal or policy issues. This

rule is of an administrative, technical, and procedural nature. The

land acquisition regulations have been in effect since 1980. We are

proposing to amend them in order to clarify procedures and

requirements.

Regulatory Flexibility Act

The Department of the Interior certifies that this regulation 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.). A

Regulatory Flexibility analysis is not required. See our initial

analysis above item 1(a) under Regulatory Planning and Review. The

effect on small entities will be minimal.

(a) It does not have an annual effect on the economy of $100

million or

[[Page 17581]]

more. As stated above, the effect on the economy will be minimal.

(b) It does not result in a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions. Actions taken by this rule will only

affect title to tribal or individual Indian owned lands. While it may

affect revenues collected by State or local jurisdictions, the effect

as noted above, should be minimal.

(c) It does not result in significant adverse effects on

competition, employment, investment, productivity, innovation, or the

ability of U.S.-based enterprises to compete with foreign-based

enterprises. As stated above, actions under this rule will only affect

title to tribal or individual Indian owned lands. This rule is of an

administrative, technical, and procedural nature.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small

Business Regulatory Enforcement Fairness Act. See the initial analysis

above, item 1(a) under Regulatory Planning and Review. This rule:

(a) Does not have an annual effect on the economy of $100 million

or more. An economic analysis is not required.

(b) Will not cause a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions. Actions under this rule will only

affect title to tribal or individual Indian owned lands.

(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.

Actions under this rule will only affect title to tribal or individual

Indian owned lands.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531

et seq.):

(a) The rule will not significantly or uniquely affect small

governments, or the private sector. A Small Government Agency Plan is

not required. Additional expenses may be incurred by the requesting

tribe or individual Indian to provide information to the Secretary.

Tribes or an individual Indian provide information in order to receive

a benefit.

(b) This rule will not produce a federal mandate of a $100 million

or greater in any year. The overall effect of this rule will be

negligible to the State, local, or tribal governments or the private

sector. See our analysis under Regulatory Planning and Review.

Takings (E.O. 12630)

With respect to Executive Order 12630, the rule does not have

significant takings implications. A takings implication assessment is

not required because actions under this rule do not constitute a

taking. Tribes or individual Indians are voluntarily transferring title

to the United States for their own benefit.

Federalism (E.O. 13083)

With respect to Executive Order 13083, the rule does not have

significant federalism implications to warrant the preparation of a

Federalism Assessment. The local tax base may be affected. However,

this rule should not affect the relationship between State and Federal

governments because actions in this rule apply only to a relatively

small amount of land. Due to the loss of tax revenue, the relationship

between the State and local governments with tribes and/or the Federal

Government may be affected. However, because the loss of revenue is

minimal and most of the land to be acquired will be within the

boundaries of reservations where there is already a measure of Indian

sovereignty, the effects are ``insignificant'' within the meaning of E.

O. 13083. See the analysis under the Regulatory Planning and Review

section.

Civil Justice Reform (E.O. 12988)

With respect to Executive Order 12988, the Office of the Solicitor

has determined that this rule does not unduly burden the judicial

system and meets the requirements of sections 3(a) and 3(b)(2) of the

Order. This rule contains no drafting errors or ambiguity and is

written to minimize litigation, provides clear standards, simplifies

procedures, reduces burden, and is clearly written. These regulations

do not preempt any statute. They do supersede the current land

acquisition regulations and the current procedure for establishing

Indian Land Consolidation Areas. They would not be retroactive with

respect to any land already taken into trust, but would apply to

pending applications.

Paperwork Reduction Act

This regulation does require an information collection from ten or

more parties and a submission under the Paperwork Reduction Act (44

U.S.C. 3501 et seq.). The information collection requirements in

Secs. 151.4; 151.9; 151.12, 151.15, 151.18, and 151.26 under 44 U.S.C.

3501 et seq. have been submitted to the Office of Management and Budget

for approval and assigned clearance number 1076-xxxx. This information

is required from Indian tribes and individual Indians who wish to

convey land into trust status.

The burden associated with these requests is presented in a table

in the ADDRESSES section of the preamble, and public comments are

requested on these collections.

National Environmental Policy Act

This rule does 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 is not required

because this rule is of an administrative, technical, and procedural

nature.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of May 14, 1998,

``Consultation and Coordination with Indian Tribal Governments'' (FR

Vol. 63, No. 96, Pages 27655-27657) and 512 DM 2, we have evaluated any

potential effects upon Federally recognized Indian tribes and have

determined that there are no potential adverse effects. No action is

taken under this rule unless a tribe or an individual Indian

voluntarily requests that the United States place land in trust for

their benefit. Tribes will be asked for comments prior to publication

as a final regulation of this rule and their comments will be

considered prior to publication.

List of Subjects in 25 CFR Part 151

Indians--lands.

For the reasons set out in the preamble, we are proposing to revise

Part 151 in Chapter I of Title 25, of the Code of Federal Regulations

so that it will read as follows:

PART 151--ACQUISITION OF TITLE TO LAND IN TRUST

Subpart A--Purpose, Definitions, General

Sec.

151.1 What is the purpose of this part?

151.2 How are key terms defined in this part?

151.3 To what types of transactions does this part apply?

151.4 How does an individual Indian or a tribe apply to have title

to land conveyed to the United States in trust?

151.5 How do we process a request?

151.6 How do we proceed after making a decision on a request?

151.7 When does the land attain trust status?

[[Page 17582]]

151.8 Will we accept and hold in trust an undivided fractional

interest in land for an individual Indian or a tribe?

Subpart B--Discretionary Acquisitions of Title On-Reservation

151.9 What information must be provided in a request involving land

inside a reservation or inside an approved Tribal Land Acquisition

Area?

151.10 What criteria will we use to evaluate a request involving

land inside a reservation or inside an approved Tribal Land

Acquisition Area?

151.11 Can an individual Indian or a tribe acquire land inside a

reservation or inside an approved Tribal Land Acquisition Area of

another tribe?

Subpart C--Mandatory Acceptance of Title Off-Reservation

151.12 What information must be provided in a request involving

land outside a reservation or outside a Tribal Land Acquisition

Area?

151.13 Can an individual Indian acquire land outside his or her own

reservation?

151.14 What criteria will we use to evaluate a request involving

land outside a reservation or outside an approved Tribal Land

Acquisition Area?

Subpart D--Mandatory Acquisitions of Title

151.15 What information must be provided in a request to process a

mandatory transfer of title into trust status, and how will we

process the request?

151.16 Can our determination that a transfer of title into trust

status is mandatory be appealed?

Subpart E--Tribal Land Acquisition Areas

151.17 What is a Tribal Land Acquisition Area?

151.18 What must be included in a request for Secretarial approval

of a Tribal Land Acquisition Area?

151.19 How is a tribal request for Secretarial approval processed?

151.20 What criteria will we use to decide whether to approve a

proposed Tribal Land Acquisition Area?

151.21 Can a tribe include in its Tribal Land Acquisition Area land

inside another tribe's reservation or Tribal Land Acquisition Area?

151.22 If a Tribal Land Acquisition Area is not approved, is the

tribe prohibited from acquiring land within it?

151.23 If a Tribal Land Acquisition Area is approved, does the land

taken into trust within it attain reservation status?

151.24 Can a Tribal Land Acquisition Area be modified after

approval?

Subpart F--False Statements, Recordkeeping, Information Collection

151.25 What is the penalty for making false statements in

connection with a request that we place land in trust?

151.26 What recordkeeping and reporting requirements apply to

acquisitions of trust title under this part?

151.27 Do information collections under this part have Office of

Management and Budget approval?

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; 18 U.S.C. 1001; 25 U.S.C. 2, 9, 409a,

450h, 451, 464, 465, 467, 487, 488, 489, 501, 502, 573, 574, 576,

608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other

authorizing acts.

Subpart A--Purpose, Definitions, General

Sec. 151.1 What is the purpose of this part?

The purpose of this part is to describe the authorities, policies,

and procedures that we use to decide whether to accept title to land in

the name of the United States to be held in trust for the benefit of an

individual Indian or a tribe.

Sec. 151.2 How are key terms defined in this part?

Alienation means a conveyance or transfer of title to property.

Bureau means the Bureau of Indian Affairs within the Department of

the Interior.

Discretionary acquisitions of title means those acquisitions of

trust title which we are authorized, but are not required, to accept

administratively.

Encumbrance means a limitation on the title of property, such as a

claim, lien, easement, charge, or restriction of any kind.

Fee simple land means title to land is absolute and clear of any

condition or restriction, and with unconditional power of disposition.

Host tribe means the tribe having jurisdiction over the land being

acquired.

Individual Indian means a person who:

(1) Is a member of a federally recognized tribe; or

(2) Was physically residing on a federally recognized Indian

reservation as of June 1, 1934, and is a descendant of an enrolled

member of a federally recognized tribe; or

(3) Possesses a total of one-half degree or more Indian blood of a

federally recognized tribe.

Land means real property or any title interest therein, as defined

by the statute that authorizes the land acquisition.

Legislative transfer of title means the direct transfer of title to

land into trust status for the benefit of an individual Indian or

Indian tribe by Congress through legislation. The regulations in this

part do not apply to legislative transfers of title.

Mandatory acceptance of title means a conveyance of trust title

which Congress has required the Secretary to accept if certain

specified conditions over which the Secretary has no control are met.

Reservation means that area of land which has been set aside or

which has been acknowledged as having been set aside by the United

States for the use of the tribe, the exterior boundaries of which are

more particularly defined in the final tribal treaty, agreement,

Executive Order, federal statute, Secretarial Order, or judicial

determination, except that in the State of Oklahoma, ``reservation''

means that area of land constituting the former reservation of the

tribe. ``Former reservation'' means lands that are within the

jurisdictional area of an Oklahoma Indian tribe and that are within the

boundaries of the last reservation established by treaty, Executive

Orders, or Secretarial Orders.

Restricted fee land means land for which an individual Indian or a

tribe holds fee simple title subject to limitations or restrictions

against alienation or encumbrance as set forth in the title and/or by

operation of law.

Secretary means the Secretary of the Interior or an authorized

representative.

Tribal Land Acquisition Area means a geographic boundary designated

by a tribe that does not have a reservation, within which the tribe

plans to acquire land over a specified period of time.

Tribe means any Indian tribe, nation, band, pueblo, town,

community, rancheria, colony, or other group of Indians, which is

recognized by the Secretary as eligible for the special programs and

services provided by the Bureau of Indian Affairs, and listed in the

Federal Register under Pub. L. 103-454, Act of Nov. 2, 1994 (108 Stat.

4791; 25 U.S.C. 479a (1994)).

Trust land means land, or an interest therein, for which the United

States holds fee title in trust for the benefit of an individual Indian

or a tribe.

Undivided fractional interest means that the interest of co-owners

is in the entire property and that such interest is indistinguishable.

The interest has not been divided out from the whole parcel. (Example:

If you own \1/4\ interest in 160 acres, you do not own 40 acres. You

own \1/4\ of the whole 160 acres because your \1/4\ interest has not

been divided out from the whole 160 acres.)

We means the Secretary of the Interior or an authorized

representative.

Sec. 151.3 To what types of transactions does this part apply?

(a) Except as provided in paragraphs (b) and (c) of this section,

this part

[[Page 17583]]

applies to all fee simple land-to-trust, restricted fee land-to-trust,

trust-to-trust, and land exchange transactions.

(b) This part does not apply to the following transactions:

(1) Fee to restricted fee or restricted fee to restricted fee;

(2) The transfer of title of trust land through inheritance or

escheat; or

(3) The Legislative transfer of title into trust status.

(c) We will not accept title to land in trust in the State of

Alaska, except for the Metlakatla Indian Community of the Annette

Island Reserve of Alaska or its members.

Sec. 151.4 How does an individual Indian or a tribe apply to have

title to land conveyed to the United States in trust?

Individual Indians and tribes must send us a written request asking

that we accept title and place the land into trust.

(a) The request must:

(1) Identify the applicant (including the applicant's tribal

affiliation);

(2) Include the legal description of the land to be acquired; and

(3) Include all information which shows that the proposed

acquisition meets the applicable requirements in this section.

(b) The request does not need to be in any special form. However,

we strongly urge the applicant to address each section of this part

that is relevant to the type of acquisition (e.g., on- or off-

reservation, discretionary or mandatory), in the order it appears here.

Constructing the request in this way will enable us to review the

request more efficiently.

(c) We may also ask for additional information to aid us in

reaching a decision.

Sec. 151.5 How do we process the request?

(a) After we receive the request, we will notify the State, county,

and municipal governments having regulatory jurisdiction over the land.

We will send all notices under this section by certified mail, return

receipt requested. The notice will contain the information described in

paragraph (a)(1) or (a)(2) of this section, as appropriate.

(1) If the request is for on-reservation lands or lands inside an

approved Tribal Land Acquisition Area, the notice we send under this

section will:

(i) Include the name of the applicant;

(ii) Describe the lands proposed to be taken in trust;

(iii) State the proposed use of the land; and

(iv) Invite the State and local governments from the State in which

the land is located to comment in writing within 30 days on the

proposed acquisition.

(2) If the request is for land outside a reservation and outside a

Tribal Land Acquisition Area, the notice we send under this section

will:

(i) Include the name of the applicant;

(ii) Describe the lands proposed to be taken in trust;

(iii) Describe the proposed use of the land; and

(iv) Invite the State and local governments from the State in which

the land is located to comment in writing within 60 days on the

acquisition's potential effects on the State and local governments,

including on their regulatory jurisdiction, real property taxes, and

special assessments.

(b) After the comment period has ended, we will send to the

applicant copies of any comments made by State or local governments on

the applicant's request. We will give the applicant a reasonable time

in which to reply to the comments.

(c) Subject to restrictions on disclosure required by the Freedom

of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and

the Trade Secrets Act (18 U.S.C. 1905) the request will be available

for review at the local BIA agency or area office having administrative

jurisdiction over the land.

(d) We will consider all the documentation that the applicant

submits.

Sec. 151.6 How do we proceed after making a decision on the request?

(a) We will send the applicant a certified letter describing our

decision to accept or deny a request. We will also send a copy of the

decision letter to everyone (including State and local governments) who

sent us written comments on the request. The notice to interested

parties will explain that they have a right to appeal our decision

under part 2 of this title.

(b) If our decision is to deny the request, we will take no further

action.

(c) If our decision is to approve the request, after the exhaustion

of administrative remedies we will:

(1) Complete a preliminary title examination. For both

discretionary and mandatory acquisitions, after we examine the title

evidence, we will notify the applicant of any liens, encumbrances, or

infirmities. If the liens, encumbrances, or infirmities make title to

the land unmarketable, we will require the applicant to eliminate the

liens, encumbrances, or infirmities before we act on the application.

(2) Publish in the Federal Register, or in a newspaper of general

circulation serving the affected area, a notice of the decision to take

land into trust under this part. The notice will state that we have

made a final decision to take land in trust and that we will accept

title in the name of the United States no sooner than 30 days after the

notice is published;

(3) Act on any judicial appeals that may be filed; and

(4) After the exhaustion of judicial remedies, accept trust title

to the land by issuing or approving an appropriate instrument of

conveyance.

Sec. 151.7 When does land attain trust status?

After the Secretary has published notice of intent to take the land

into trust pursuant to Sec. 151.6 (c)(2), the time period for appeal

has run, all appeals rights have been exhausted, and all title

objections have been cleared, we will approve or issue the appropriate

instrument of conveyance. Only after these steps have been completed

will the land attain trust status. The approved deed will then be

recorded in the county where located, title evidence will be updated, a

final title opinion will be issued and the deed will be recorded in the

appropriate Bureau of Indian Affairs title plant under part 150 of this

chapter.

Sec. 151.8 Will we accept and hold in trust an undivided fractional

interest in land for an individual Indian or a tribe?

We will not accept and hold in trust for an individual Indian or a

tribe an undivided fractional interest in land, except under one of the

following conditions:

(a) The individual Indian or tribe already owns an undivided

fractional restricted or trust interest in the land, and is acquiring

the additional interest(s) to consolidate ownership.

(b) The individual Indian or tribe acquires the undivided

fractional interest as the result of a gift under Sec. 152.25(d) of

this chapter and the conveyance does not result in further

fractionation of interest in the land.

(c) The individual Indian or tribe is acquiring interest in fee and

there are existing undivided fractional trust or restricted interests

in the same land.

(d) The individual Indian or tribe offers and agrees to purchase

the remaining undivided fractional trust or restricted interest in the

land, at not less than fair market value.

(e) A specific statute grants the individual Indian or tribe the

right to purchase an undivided fractional interest in trust or

restricted land without offering to purchase all interests.

[[Page 17584]]

(f) A majority of the owners of the remaining undivided trust or

restricted fractional interest agree in writing that the individual

Indian or tribe may acquire the interest.

(g) Under the Indian Land Consolidation Act, 25 U.S.C. 2201 et

seq., a tribe may acquire an undivided fractional interest in trust or

restricted land under these conditions:

(1) The land is inside the tribe's reservation, or inside an

approved Tribal Land Consolidation Area, or is otherwise subject to the

tribe's jurisdiction, and

(2) The tribe acquires the land:

(i) At not less than the fair market value; and

(ii) With the written consent of a majority of the owners of the

remaining undivided fractional trust or restricted interest of this

land.

(h) The tribe acquires, at not less than the fair market value,

part or all of the undivided fractional interests in a parcel of trust

or restricted land within the tribe's reservation, or subject to the

tribe's jurisdiction and:

(1) Over 50 percent of the owners of the undivided fractional

interests consent in writing to the acquisition; or

(2) An individual Indian makes an offer under paragraph (e) of this

section.

(i) An individual Indian:

(1) Already owns an undivided fractional interest in the land;

(2) Offers to match a tribal offer to purchase under paragraph (d)

of this section; and

(3) Has used and possessed the land for at least 3 years preceding

the tribe's offer to purchase.

Subpart Part B--Discretionary Acquisitions of Title On-Reservation

Sec. 151.9 What information must be provided in a request involving

land inside a reservation or inside an approved Tribal Land Acquisition

Area?

A request from an individual Indian or a tribe asking that the

United States accept title to land inside a reservation boundary or to

land inside an approved Tribal Land Acquisition Area must include:

(a) A complete description, or a copy, of the federal statute that

authorizes the United States to accept the land in trust and any

limitations contained in the authority.

(b) An explanation of why the individual Indian or tribe needs land

to be in trust and how the land will be used. This explanation is a

crucial factor in determining if the request should be approved.

(c) If the applicant is a tribe, an explanation of whether the

tribe:

(1) Already owns an undivided fractional trust or restricted

interest in the land; and

(2) Maintains jurisdiction over the land.

(d) If the applicant is an individual Indian, an explanation of:

(1) Whether the applicant already owns an undivided fractional

trust or restricted interest in the land;

(2) The amount of land that the applicant already owns and the

status of the land (fee, restricted, or trust); and

(3) Whether the applicant needs assistance in handling real estate

affairs. For example, tell us if the applicant is a minor or has been

declared legally incompetent.

(e) Title insurance or an abstract of title that meets the

Standards for the Preparation of Title Evidence in Land Acquisitions by

the United States, issued by the U. S. Department of Justice.

(f) Documentation that we need to comply with 516 DM 6, Appendix 4,

National Environmental Policy Act (NEPA) Revised Implementing

Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substances

Determinations. (For copies of these directives, see the Department of

Interior, Bureau of Indian Affairs web site at: http://www.doi.gov/

bureau-indian-affairs.html>.) Include a record of consultation with

appropriate authorities regarding environmental, endangered species,

water quality, fish and wildlife, wetlands, transportation, air

quality, cultural, historical value, hazardous waste, and toxic

material issues.

Sec. 151. 10 What criteria will we use to evaluate requests involving

land inside a reservation or inside an approved Tribal Land Acquisition

Area?

We will review all information submitted under Sec. 151.9. We may

decide to accept trust title to the land if the acquisition meets all

of the following criteria:

(a) We determine that the conveyance is necessary to facilitate

tribal self-determination, economic development, Indian housing, or

land consolidation;

(b) There is legal authority that authorizes us to accept the land

in trust;

(c) The request is complete (including all supporting documents);

(d) The request will benefit the economic and/or social condition

of the applicant;

(e) There is title insurance or an abstract of title that meets the

Standards for the Preparation of Title Evidence in Land Acquisitions by

the United States, issued by the U. S. Department of Justice;

(f) There is information sufficient for compliance with 516 DM 6,

Appendix 4, National Environmental Policy Act (NEPA) Revised

Implementing Procedures, and 602 DM 2, Land Acquisitions: Hazardous

Substances Determinations, including, a record of coordination with

agencies having jurisdiction over cultural, historic, or natural

resources; and

(g) We determine after mitigation of effects on the environment,

cultural resources, historic resources, and endangered or threatened

species, that the conveyance is consistent with applicable

environmental, cultural, historic, or natural resources law.

Sec. 151.11 Can an individual Indian or a tribe acquire land inside a

reservation or inside an approved Tribal Land Acquisition Area of

another tribe?

An individual Indian or a tribe, including individual Indians and

tribes in Oklahoma, may acquire land in trust on another tribe's

reservation, or inside another tribe's approved Tribal Land Acquisition

Area, if the host tribe's governing body consents in writing. No

consent is required if:

(a) An individual Indian or tribe already owns an undivided

fractional trust or restricted interest in the parcel of land to be

acquired; or

(b) The proposed acquisition is inside a reservation or an approved

Tribal Land Acquisition Area that is shared by two or more tribes, and

the acquisition is for one of these tribes, or one of these tribes'

members.

Subpart C--Discretionary Acquisitions Off-Reservation

Sec. 151.12 What information must be provided in a request involving

land outside a reservation or outside a Tribal Land Acquisition Area?

A request from an individual Indian or a tribe asking that the

United States accept title to land outside a reservation boundary and

outside an approved Tribal Land Acquisition Area, must include:

(a) A complete description, or a copy of, the statutory authority

that authorizes the United States to accept land in trust and any

limitations contained in the authority;

(b) An explanation of the need of the individual Indian or tribe

for land in trust and how the land will be used. This explanation is a

crucial factor in determining if the request should be approved. The

request must explain:

(1) Why the present land base is not appropriate for the activity

contemplated in the request;

(2) Why the applicant needs the land in trust for the proposed use;

and

[[Page 17585]]

(3) How trust status will benefit the applicant's economic and/or

social conditions.

(c) A description of how the applicant will use the land. This

description must include an explanation of:

(1) The past uses of the land;

(2) The present use of the land;

(3) The anticipated future uses of the land;

(4) The cultural or historical interest in the land;

(5) The objectives that the individual Indian or tribe hopes to

attain; and

(6) If the acquisition is for housing:

(i) The projected number of units to be built; and

(ii) The number of members who will benefit.

(7) If the applicant is acquiring the land for business purposes,

the tribe must provide a business plan that specifies the anticipated

economic benefits of the proposed use.

(d) A description of the following:

(1) The location of the land relative to State boundaries;

(2) The distance of the land from the boundaries of the tribe's

reservation;

(3) The distance of the land from the Bureau's agency or area

office;

(4) The location of roads and rights-of-way that provide access to

the land; and

(5) The location of land in relation to the tribe's other trust

lands.

(e) A description of the effect on the State and its political

subdivisions of removing the land from tax rolls. Describe any measures

the applicant will take to reduce these effects. The description of

effects must include an explanation of:

(1) The amount of annual taxes currently assessed by the local

governments;

(2) The amount of annual revenue lost from special assessments to

the local governments, if any;

(3) The amount of annual revenue lost from mineral receipts to the

local governments, if any; and

(4) The local governments' ability to provide public safety

services for the land.

(f) A description of any jurisdictional and land use infrastructure

issues that might arise. The description must address each of the

following issues.

(1) Zoning, including:

(i) The current zoning of the land;

(ii) Any proposed use conflicts with current zoning; and

(iii) Any tribal zoning ordinances.

(2) Law enforcement and cross-deputization, including:

(i) Who currently provides law enforcement services for the land;

(ii) Whether the tribe already has its own law enforcement;

(iii) Who will supply law enforcement if the land is approved for

trust status; and

(iv) Any additional resources required to provide adequate law

enforcement and how they will be funded.

(3) Safety factors, including:

(i) Who supplies fire protection service for the land;

(ii) Who supplies emergency medical service for the land; and

(iii) If the land is in a flood area or flood control area.

(4) Traffic, roads, and streets, including:

(i) Access to the land;

(ii) A description and quantification of anticipated increased

traffic in the area from proposed use; and

(iii) A description of whether existing roads and streets are

adequate to handle any anticipated increase in traffic caused by the

proposed use.

(5) Sanitation, including whether:

(i) The land is on a city sewage system;

(ii) The land is served by an adequate sewage system that meets

applicable standards;

(iii)Trash pickup service or another method of trash disposal is

available for the land;

(iv) The city or another facility supplies services to the land;

(v) There is an adequate water supply for the proposed use and any

future anticipated uses; and

(vi) Whether the tribe has water rights to the available water

supply.

(6) Utilities, including:

(i) Whether a city or a rural electric company supplies electricity

to the land; and

(ii) The source of heating for the land, such as: natural gas,

propane, oil, coal, wood, electric, or solar.

(7) Whether there are any cooperative agreements or voluntary

actions intended to address jurisdictional and land use conflicts.

(8) Whether the tribe has made any provisions to compensate the

State or local governments for revenue lost because of the removal of

the land from the tax rolls. (Include any increases in Title IX funding

from the Indian Education Act or Impact Aid funding.)

(g) Whether there is title evidence that meets the Standards for

the Preparation of Title Evidence in Land Acquisitions by the United

States, issued by the U. S. Department of Justice. The evidence will be

examined to determine if the applicant has marketable title.

(h) The documentation that we need to comply with 516 DM 6,

Appendix 4, National Environmental Policy Act (NEPA) Revised

Implementing Procedures, and 602 DM 2, Land Acquisitions: Hazardous

Substances Determinations. (For copies of these directives, see the

Bureau of Indian Affairs web site at: http://www.doi.gov/bureau-

indian-affairs.html>.) Include a record of consultation with

appropriate authorities regarding environmental, endangered species,

water quality, fish and wildlife, wetlands, transportation, air

quality, cultural, historical value, hazardous waste, and toxic

material issues.

(i) If the request is for an individual Indian, documentation

demonstrating that the applicant's request meets one of the criteria

described in Sec. 151.13.

Sec. 151.13 Can an individual Indian acquire land outside his or her

own reservation?

Except as provided in paragraphs (a) and (b) of this section, we

will not accept title to land in trust outside an individual Indian's

reservation. We may approve acquisitions of land outside an individual

Indian's reservation if:

(a) The individual Indian already owns an undivided fractional

trust or restricted interest in the property being acquired; or

(b) The individual Indian has sold trust or restricted interest in

land and the money received from the sale is reinvested in other land

selected and purchased with these funds, or the individual Indian is

purchasing land with funds obtained as a result of a sale of trust or

restricted land under 25 U.S.C. 409a.

Sec. 151.14 What criteria will we use to evaluate a request involving

land outside a reservation or outside an approved Tribal Land

Acquisition Area?

We will review all information submitted under section Sec. 151.12.

We may decide to place the land in trust if we determine that the

application meets all of the following criteria:

(a) We determine that the conveyance is necessary to facilitate

tribal self-determination, economic development, Indian housing, or

land consolidation;

(b) There is legal authority that authorizes us to accept land in

trust;

(c) The request is complete (including all supporting documents);

(d) The acquisition will benefit the tribe's economic and/or social

conditions;

(e) There is title evidence that meets the Standards for the

Preparation of Title Evidence in Land Acquisitions by the United

States, issued by the U. S. Department of Justice;

(f) There is information sufficient for compliance with 516 DM 6,

Appendix 4, National Environmental Policy Act (NEPA) Revised

Implementing

[[Page 17586]]

Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substances

Determinations: a record of coordination with agencies having

jurisdiction over cultural, historic, and natural resources;

(g) We determine after mitigation of impacts on the environment,

cultural resources, historic resources, and endangered or threatened

species, that the conveyance is consistent with applicable

environmental, cultural and historic resources law, and the Endangered

Species Act;

(h) We determine that any adverse impacts on local governments and

communities are reasonable compared to the benefits flowing to the

applicant from taking the land in trust;

(i) The Bureau of Indian Affairs is equipped to handle the

additional responsibilities of this acquisition and has sufficient

staff to perform inspections for rights-of-way, leasing, soil

conservation, and oil and gas exploration, or any other

responsibilities resulting from the acquisition of the land in trust

status; and

(j) The location of the land relative to State boundaries, and its

distance from the boundaries of the tribe's reservation, is reasonable

based in part on the following:

(1) If the land is in a different state than the tribe's

reservation, the tribe's justification of anticipated benefits from the

acquisition will be subject to greater scrutiny.

(2) As the distance between the tribe's reservation or approved

Tribal Land Acquisition area and the land to be acquired increases, the

tribe's justification of anticipated benefits from the acquisition will

be subject to greater scrutiny.

(3) As the distance between the tribe's reservation or approved

Tribal Land Acquisition Area and the land to be acquired increases, the

concerns raised by the state and local governments will be given

greater weight.

Subpart D--Mandatory Acceptance of Title

Sec. 151.15 What information must be provided in a request to process

a mandatory transfer of title into trust status, and how will we

process the request?

(a) To help us determine whether we are mandated by legislation to

accept trust title to a specific tract of land, we require submission

of the following documentation:

(1) A complete description, or a copy of, the statutory authority

that directs the United States to place the land in trust, and any

limitations contained in that authority;

(2) Title insurance or an abstract of title that meets the

Standards for the Preparation of Title Evidence in Land Acquisitions by

the United States, issued by the U.S. Department of Justice; and

(3) Any additional information that we may request.

(b) If we determine that the transfer of title into trust status is

mandatory, we will publish that determination and a notice of intent to

take the land in trust in the Federal Register.

Sec. 151.16 Can our determination that a transfer of title into trust

status is mandatory be appealed?

The Department's determination that a transfer of title into trust

status is ``mandatory'' may be appealed according to requirements set

forth in part 2 of this title.

Subpart E--Tribal Land Acquisition Areas

Sec. 151.17 What is a Tribal Land Acquisition Area?

A Tribal Land Acquisition Area is a geographic boundary designated

by a reservation-less tribe within which the tribe plans to acquire

land within a 10-year period. If the Secretary approves the Tribal Land

Acquisition Area under this part, the reservation-less tribe can

acquire parcels of land within the Tribal Land Acquisition Area during

that 10-year period under the on-reservation provisions of this part.

Sec. 151.18 What must be included in a request for Secretarial

approval of a Tribal Land Acquisition Area?

A request for Secretarial approval of a Tribal Land Acquisition

Area must be made in writing, although we do not require that it take

any special form. However, we strongly urge the applicant to address

each applicable section of this part in the order it appears here.

Constructing the application in this way will help us review the

request more efficiently. To be complete, a request for Secretarial

approval of a Tribal Land Acquisition Area must identify the applicant

tribe, and must include:

(a) A complete description, or a copy, of the federal statute(s)

that authorize the United States to accept land in trust on behalf of

the tribe, and any limitations contained in that authority.

(b) Copies of tribal documents relating to the establishment of the

Tribal Land Acquisition Area and the acquisition of land within it,

including:

(1) A copy of the tribe's constitution and by-laws, corporate

charter, resolution, or excerpts from those documents that identify and

grant tribal officials the authority to acquire tribal lands on behalf

of the tribe;

(2) A copy of a tribal resolution designating the Tribal Land

Acquisition Area, including a legal description of the lands located

within it; and

(3) A copy of a tribal resolution requesting that the Secretary

approve the proposed Tribal Land Acquisition Area.

(c) A narrative summary that describes the purposes and goals for

acquiring lands in trust within the Tribal Land Acquisition Area,

including general information about whether the lands are to be used

for residential, governmental, educational, economic development, or

other purposes.

(d) A narrative of the tribe's history that explains:

(1) When the tribe was federally recognized, and whether it was

through legislation, treaty, or the Bureau of Indian Affairs' Federal

Acknowledgment Process; and

(2) If applicable, how the tribe became dispossessed of its former

reservation lands.

(e) A description of the Tribal Land Acquisition Area, including:

(1) A legal description of the lands within the Tribal Land

Acquisition Area;

(2) Information about whether the lands are within the tribe's

former reservation or aboriginal homelands;

(3) Information about whether the lands are Federal lands, State

lands, or private lands;

(4) Information about whether the lands overlap with another

tribe's jurisdictional area;

(5) Information about the significance of the land to the tribe,

including whether the land has any particular historical, cultural,

religious, or other value to the tribe; and

(6) Information about the distance of the Tribal Land Acquisition

Area from the Bureau's nearest agency or area office.

(f) A description of the location of roads and rights-of-way, or of

additional rights-of-way that may be needed to provide access to lands

located within the Tribal Land Acquisition Area.

(g) A description of the reasonably anticipated overall effect on

the State and its political subdivisions of removing lands located

within the Tribal Land Acquisition Area from tax rolls, and a

description of any measures the applicant will take to reduce these

effects. The description of effects must include an explanation of:

(1) The amount of annual taxes currently assessed by the local

governments for lands located within the Tribal Land Acquisition Area;

[[Page 17587]]

(2) The amount of annual revenue which would be lost from special

assessments to the local governments, if any;

(3) The amount of annual revenue lost from mineral receipts to the

local governments, if any; and

(4) The local governments' ability to provide public safety

services for lands located within the Tribal Land Acquisition Area.

(h) A description of any overall jurisdictional and land use

infrastructure issues that might arise if the lands within the Tribal

Land Acquisition Area is taken into trust. The description must address

each of the following issues.

(1) Zoning, including:

(i) The current zoning of the land;

(ii) Any proposed use conflicts with current zoning; and

(iii) Applicable tribal zoning ordinances.

(2) Law enforcement and cross-deputization, including:

(i) Who currently provides law enforcement services for the land;

(ii) Whether the tribe already has its own law enforcement;

(iii) Who will supply law enforcement if the land is approved for

trust status; and

(iv) Whether additional resources would be needed to provide

adequate law enforcement.

(3) Safety factors, including:

(i) Who supplies fire protection service for lands located within

the Tribal Land Acquisition Area;

(ii) Who supplies emergency medical service for lands located

within the Tribal Land Acquisition Area; and

(iii) Information about whether lands located within the Tribal

Land Acquisition Area are in a flood area or flood control area.

(4) Traffic, roads, and streets, including:

(i) A description of current access to the land;

(ii) A description and quantification of anticipated increased

traffic in the area from proposed use; and

(iii) A description of whether existing roads and streets are

adequate to handle any anticipated increase in traffic caused by the

proposed use.

(5) Sanitation, including whether:

(i) The lands located within the Tribal Land Acquisition Area are

on a city sewage system;

(ii) The lands located within the Tribal Land Acquisition Area are

served by an adequate sewage system that meets applicable standards;

(iii) Trash pickup service or another method of trash disposal is

available for lands located within the Tribal Land Acquisition Area;

(iv) The city or another facility supplies sanitation services to

the lands located within the Tribe Land Acquisition Area;

(v) There is an adequate water supply for the proposed use and any

future anticipated uses; and

(vi) Whether the tribe has water rights to the available water

supply.

(6) Utilities, including:

(i) Whether a city or a rural electric company supplies electricity

to lands located within the Tribal Land Acquisition Area; and

(ii) The source of heating for lands located within the Tribal Land

Acquisition Area, such as: natural gas, propane, oil, coal, wood,

electric, or solar.

(7) Whether there exist any cooperative agreements or voluntary

actions intended to address jurisdictional and land use conflicts.

(8) Whether the tribe has made any provisions to compensate the

State and local governments for revenue lost because of the removal of

the lands from the tax rolls. (Include any increases in Title IX

funding from the Indian Education Act or Impact Aid funding.)

Sec. 151.19 How is a tribal request for Secretarial approval

processed?

When we receive a request for Secretarial approval of a Tribal Land

Acquisition Area, we will review the supporting documentation to

determine if the request meets the requirements of this part. If the

request is complete, we will:

(a) Provide notice of the request for Secretarial approval to the

Governor's Office, to appropriate local government officials, and to

appropriate officials of tribes located within a 50-mile radius of the

boundaries of the proposed Tribal Land Acquisition Area. Recipients of

the notice will be provided 60 days from the date of receipt in which

to comment on the proposed Tribal Land Acquisition Area and the request

supporting it. Other interested parties may also submit comments during

the 60-day consultation period.

(b) After the close of the consultation period, based on the

criteria described in Sec. 151.21, we will decide whether to approve

the Tribal Land Acquisition Area. Our decision on whether to approve

the Tribal Land Acquisition Area will be communicated in the form of a

certified letter to the applicant. We also will provide notice of our

decision to interested parties by sending a copy of the decision letter

to everyone (including State and local governments) who sent us written

comments on the request for approval.

(c) If we decide not to approve the Tribal Land Acquisition Area,

we will take no further action.

(d) If we decide to approve the Tribal Land Acquisition Area, we

will:

(1) Publish in the Federal Register, or in a newspaper of general

circulation serving the affected area, a notice of the decision to

approve the Tribal Land Acquisition Area; and

(2) Thereafter review requests to accept trust title land located

within the Tribal Land Acquisition Area as ``on-reservation''

acquisitions under the applicable on-reservation provisions in this

part.

Sec. 151.20 What criteria will we use to decide whether to approve a

proposed Tribal Land Acquisition Area?

In general, because tribes without reservations are significantly

disadvantaged, both in terms of cultural preservation and in terms of

being ineligible for federal land-based programmatic funding and

technical assistance, there is a presumption in favor of the tribe's

need for at least some trust land. However, in determining whether to

approve establishment of a Tribal Land Acquisition Area, we will

consider the individual circumstances of each applicant tribe,

surrounding community, and affected land base. There are some standard

criteria which will help direct our decision-making process. These

standard criteria include:

(a) The request must be complete and contain all supporting

documents;

(b) The statutory basis upon which the tribe proposes creation of

the Tribal Land Acquisition Area: if the tribe is the subject of a

statute directing the Secretary to take some unspecified land into

trust for the tribe's benefit the tribe will enjoy a greater

presumption in favor of approval of its proposed Tribal Land

Acquisition Area. (For example, there is statutory language such as

``the Secretary shall take land into trust within the tribe's service

area,'' or ``the Secretary shall take land into trust within X and Y

counties.'')

(c) The size of the proposed Tribal Land Acquisition Area in

relation to the size of the tribe's membership: we will look for a

reasonable connection between the amount of land the tribe wishes to

take into trust, and the basic trust needs (housing, health, employment

opportunities) of the tribe's membership.

(d) The relationship of the tribe to the lands located within the

Tribal Land Acquisition Area: we will give greater weight to a request

for approval of a Tribal Land Acquisition Area that encompasses lands

to which the tribe

[[Page 17588]]

has established a strong cultural, historical, and/or legal connection.

(e) The ability of the tribe and the local non-Indian community to

adjust to the jurisdictional changes that will occur if the lands

within the Tribal Land Consolidation Area are taken into trust,

including:

(1) That there are adequate arrangements for provision of police

and fire protecion and other emergency response for persons living

within the Tribal Land Consolidation Area (whether living on trust or

non-trust property);

(2) That there are adequate arrangements for provision of other

municipal-type services, such as garbage removal, water, sewage;

(3) That adverse impacts on local governments and communities are

reasonable compared to the benefits flowing to the applicant.

Sec. 151.21 Can a tribe include in its Tribal Land Acquisition Area

land inside another tribe's reservation or Tribal Land Acquisition

Area?

A tribe may include land inside the reservation boundaries or

within an approved Tribal Land Acquisition Area of another tribe, if:

(a) The host tribe's governing body consents in writing;

(b) The tribe already owns undivided fractional trust or restricted

interests in the tracts of land identified in its Tribal Land

Acquisition Area; or

(c) The tracts of land to be included in the plan are inside a

reservation or an approved Tribal Land Acquisition area that is shared

by two or more tribes, and the plan is for one of these tribes.

Sec. 151.22 If a Tribal Land Acquisition Area is not approved, is the

tribe prohibited from acquiring land within it?

No. However, the tribe will have to apply to have individual

parcels taken into trust under the off-reservation provisions of this

part.

Sec. 151.23 If a Tribal Land Acquisition Area is approved, does the

land taken into trust within it attain reservation status?

No. Lands taken into trust within a Tribal Land Acqusition Area

will enjoy ``Indian country'' status as that term has been defined in

relevant federal statutes and caselaw. However, those lands do not

attain ``reservation'' status by virtue of the Tribal Land Acquisition

Area having been approved by the Secretary. Reservation status can only

be attained if:

(a) The tribe has applied to the Secretary under 12 U.S.C. 467; or

(b) There is a specific federal statute designating the land as a

reservation.

Sec. 151.24 Can a Tribal Land Acquisition Area be modified after

approval?

Yes. However, the changes must be submitted with a request for

approval in compliance with the criteria in this part and must be

approved by the Secretary.

Subpart F--False Statements, Recordkeeping, Information Collection

Sec. 151.25 What is the penalty for making false statements in

connection with a request that we place land into trust?

Anyone who knowingly and willfully makes a false statement in

connection with a trust title acquisition request may be subject to

criminal prosecution under the False Statements Accountability Act of

1996, 18 U.S.C. 1001.

Sec. 151.26 What recordkeeping and reporting requirements apply to

acquisitions of trust title under this part?

(a) Each document that we hold or that is created in the

development of a request asking for land to be placed in trust is a

permanent federal case file record. The Bureau of Indian Affairs file

will maintain each of the documents in accordance with National

Archives and Records Administration requirements.

(b) The Secretary will negotiate with Indian tribes and tribal

organizations compacting and contracting under Title I or Title IV of

the Indian Self-Determination and Education Assistance Act, 25 U.S.C.

250 et seq., to ensure that such tribes and tribal organizations also

maintain each document in a case file in accordance with National

Archives and Records Administration rules and requirements, and to

ensure that they follow all Bureau reporting requirements concerning

this part.

Sec. 151.27 Do information collections under this part have Office of

Management and Budget approval?

(a) The information collection requirements contained in

Secs. 151.4; 151.9; 151.12; 151.15, 151.18, and 151.26 have been

approved by the Office of Management and Budget under 44 U.S.C. 33501

et seq. and assigned clearance number 1076-xxxx. It is a requirement of

the Paperwork Reduction Act that each respondent to any information

collection be notified that an agency may not conduct or sponsor, and a

person is not required to respond to, a collection of information

unless it displays a current valid OMB control number pursuant to 35

U.S.C. 3506(c)(B)(V); 44 CFR 1320 8(b)(3)(vii). Indian tribes and

individuals must submit the information required under these sections

to acquire land into trust. We will use the information in making a

determination on an application to take land into trust. The applicant

must respond to this request to obtain a benefit.

(b) Public reporting for on-reservation information collection is

estimated to average 4 hours per response, including the time for

reviewing instructions, gathering and maintaining data, and completing

and reviewing the information collected. Public reporting for off-

reservation information collection is estimated to average 8 hours per

response, including the time for reviewing instructions, gathering and

maintaining data, and completing and reviewing the information

collected. Comments regarding the burden estimate or any other aspect

of this information collection should be sent to the Bureau of Indian

Affairs, Information Collection Clearance Officer, 1849 C Street, NW,

Washington, DC 20240; and Attention: Desk Officer, for the Department

of the Interior, Office of Information and Regulatory Affairs [OMB

Control Number 1076-xxxx], Office of Management and Budget, Docket

Library, Room 10102, 725 17th Street, NW, Washington, DC 20502.

Dated: April 2, 1999.

Kevin Gover,

Assistant Secretary--Indian Affairs.

[FR Doc. 99-8851 Filed 4-9-99; 8:45 am]

BILLING CODE 4310-02-P