Interior Proposes Rule to Improve Fee-to-Trust Process

Jan 27, 2023 | Insights

On December 5, 2022, the Department of the Interior (Interior) published in the federal register a notice of proposed rulemaking to revise the fee-to-trust regulations at 25 C.F.R. Part 151.  The federal register notice is available here.  Interior is proposing the revisions to make the process more efficient, simpler, and less expensive.

As a part of the Federal Register notice, Interior specifically states that the proposed revisions are being issued in support of the Secretary’s policy to take land into trust for many reasons supporting tribal and Indian welfare.  Interior notes that prior regulations lacked any affirmative policy in favor of trust land acquisition.  Under the proposed revisions, Interior says that it will now be clear Departmental policy to support land into trust, subject to the discretion provided in the Indian Reorganization Act. The Federal Register notice is available here.

Comments on the proposed revisions are due by March 1, 2023 and may be submitted by email to  Comments should include ‘‘RIN 1076– AF71, 25 CFR part 151’ in the subject line of the email.

Interior is holding a virtual consultation session on the proposed revisions on January 30, 2023 at 2:00pm ET.  Registration for this session is available here.

As a part of streamlining efforts, the proposed revisions would require that Interior issue decision within 120 days of receiving a complete application package.  The proposed revisions would also create a new process for “initial Indian acquisitions.”  This is intended to support the acquisition of trust lands for tribes that currently do not have land in trust.

Importantly, the proposed revisions set out in regulatory text a process for determining whether a tribe was under federal jurisdiction in 1934, as required by the U.S. Supreme Court in its Carcieri v. Salazar, 555 U.S. 379 (2009) decision.  The proposed revisions are based on an M-Opinion issued by the Obama Administration but then withdrawn by the Trump Administration.  The proposed revisions identify three categories of evidence to determine whether a tribe was under federal jurisdiction in 1934 and describe the level of evidence needed to fulfill each category.

The proposed revisions include a number of other changes intended to solve problems and remove obstacles that tribes have faced in the trust acquisition process.  In particular, Interior highlights that tribes have often had to redo, Phase I Environmental Site Assessments multiple times to keep those assessments valid while an application was pending. In these cases, the proposed revisions would limit this to an original assessment at the time of filing an application and a single update to that assessment when the notice of decision is signed.