On April 27, 2021, the U.S. Department of Interior issued a new Secretarial Order and released a series of legal decisions intended to streamline Interior’s process for taking land into trust on behalf of tribal governments, and also to empower tribes to pursue economic development.
Secretary Deb Haaland issued Secretarial Order No. 3400, which restored the ability of the Bureau of Indian Affairs Regional Directors to review and approve applications to place land into trust. The order reversed a 2017 Trump-era order requiring Interior’s headquarters officials to approve land into trust applications. The Trump order caused extensive delays and made the process unclear for Tribes. Secretarial Order No. 3400 does not apply to gaming applications.
As a part of these efforts, the solicitor issued an M-Opinion (M-37070) that withdrew two Trump Administration M-Opinions (M-37054 and M-37055). The Trump M-Opinions created a complicated process for Tribes seeking to place land into trust under the Indian Reorganization Act (IRA) of 1934. The solicitor reinstated a previous M-Opinion (M-37029), which outlines a reasonable process for land into trust applications.
The solicitor also issued an M-Opinion (M-37069) confirming the secretary’s authority under the IRA to take land into trust for the benefit of Alaska Tribes. This M-Opinion withdrew another Trump Administration M-Opinion (M-37064) concluding that the secretary does not have authority to take land into trust for tribes in Alaska — even though this authority was already confirmed in a 2014 final rule.
In a press release issued by Interior, Secretary Haaland stated that “[a]t Interior, we have an obligation to work with Tribes to protect their lands and ensure that each Tribe has a homeland where its citizens can live together and lead safe and fulfilling lives…” The full DOI press release, dated April 27, 2021, is available here.
Secretary Haaland added, “[O]ur actions today will help us meet that obligation and will help empower Tribes to determine how their lands are used — from conservation to economic development projects.”
By placing lands into trust status, tribes can gain property within or near their reservations, establish a land base for their communities, and clarify jurisdiction over their lands. Going forward, the department pledged to “engage in meaningful and robust consultation with Tribes” to learn about the fee-to-trust process and land management challenges.
During the four years of the Trump administration, Interior took 75,000 acres into trust. During the eight years of the Obama administration, about 560,000 acres were taken into trust.
Patterson Earnhart Real Bird & Wilson LLP is ready to assist tribes and tribal businesses. To learn more about this issue and how we can assist, contact attorney Alvina Earnhart in our Colorado office at (303) 926-5292.