86222 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 151 

[245A2100DD/AAKC001030/ 

A0A501010.999900] 

RIN 1076–AF71 

Land Acquisitions 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

SUMMARY: Section 5 of the Indian 

Reorganization Act (IRA or Act) 

authorizes the Secretary of the Interior 

(Secretary) to acquire lands in trust for 

the benefit of Tribal governments and 

individual Indians. This final rule 

provides the procedures governing the 

discretionary acquisition of lands into 

trust, often referred to as the fee-to-trust 

process, under the Act. Since these 

regulations were first promulgated in 

1980, the Bureau of Indian Affairs (BIA) 

has developed extensive experience in 

the fee-to-trust acquisition process. 

Relying on that experience and input 

from multiple stakeholders, this final 

rule makes the fee-to-trust process more 

efficient, simpler, and less expensive to 

support restoration of Tribal homelands. 

DATES: This final rule is effective on 

January 11, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Oliver Whaley, Director, Office of 

Regulatory Affairs and Collaborative 

Action (RACA), Office of the Assistant 

Secretary—Indian Affairs; Department 

of the Interior, telephone (202) 738– 

6065, RACA@bia.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is published in exercise of authority 

delegated by the Secretary of the Interior 

to the Assistant Secretary—Indian 

Affairs (Assistant Secretary; AS–IA) by 

209 Departmental Manual (DM) 8. 

Table of Contents 

I. Statutory Authority and Background 

II. Acquisition of Land in Trust Process 

III. Overview of the Final Rule 

IV. Summary of Final Rule and Changes 

From the Proposed Rule to the Final 

Rule 

V. Public Comments on the Proposed Rule 

and Response to Comments 

VI. Procedural Requirements 

A. Regulatory Planning and Review (E.O. 

12866 and 13563) 

B. Regulatory Flexibility Act 

C. Congressional Review Act (CRA) 

D. Unfunded Mandates Reform Act of 1995 

E. Takings (E.O. 12630) 

F. Federalism (E.O. 13132) 

G. Civil Justice Reform (E.O. 12988) 

H. Consultation With Indian Tribes (E.O. 

13175) 

I. Paperwork Reduction Act 

J. National Environmental Policy Act 

(NEPA) 

K. Energy Effects (E.O. 13211) 

L. Clarity of This Regulation 

M. Small Business Regulatory Enforcement 

Fairness Act 

N. Regulatory Impact Analysis 

I. Statutory Authority and Background 

Congress enacted the Indian 

Reorganization Act (IRA) in 1934 to 

address the devasting effects of prior 

policies and to secure a land base for 

Indian tribes to engage in economic 

development and self-determination. 

Act of June 18, 1934, Pub. L. 73–383, 48 

Stat. 984 (codified as amended at 25 

U.S.C. 5101 through 5129). Congress 

expressly authorized ‘‘the Secretary, in 

his discretion,’’ under section 5 of the 

IRA, to ‘‘acquire through purchase, 

relinquishment, gift, exchange, or 

assignment, any interest in lands, water 

rights or surface rights to lands, within 

or without existing reservations, 

including trust or otherwise restricted 

allotments whether the allottee be living 

or deceased, for the purpose of 

providing land for Indians’’ as the term 

is defined in section 19 of the IRA Id. 

at section 5, codified at 25 U.S.C. 5108; 

id. at section 19, codified at 25 U.S.C. 

5129. The regulations at 25 CFR part 

151 (part 151) implement this authority 

and provide the process by which 

Tribes submit applications to the 

Department and the criteria under 

which the Secretary will review the 

applications. 

In October 2021, the Department of 

the Interior (Department) held 

consultations on the protection and 

restoration of tribal homelands and used 

the feedback from these consultations to 

inform draft revisions to the part 151 

regulations. The Department then held 

four consultation sessions on the draft 

revisions in May 2022. Utilizing 

feedback from those consultations, the 

Department published the proposed rule 

on December 5, 2022, 87 FR 74334, and 

held three Tribal consultation sessions 

during the public comment period. The 

first Tribal consultation was held in 

person on January 13, 2023, at the 

Bureau of Land Management Training 

Center in Phoenix, Arizona. The next 

two Tribal consultations were 

conducted virtually on Zoom, which 

occurred on January 19, 2023, and 

January 30, 2023. Following the 

consultation sessions, the Department 

accepted written comments until March 

1, 2023. 

II. Acquisition of Land in Trust Process 

The acquisition of land in trust is the 

transfer of fee land title from an eligible 

Indian Tribe or eligible Indian 

individual(s) to the United States of 

America, in trust, for the benefit of the 

eligible Indian Tribe or eligible Indian 

individual(s). Indian Tribes and 

individual Indian people who meet the 

requirements established by Federal 

statutes and further defined in Federal 

regulations are eligible to apply for a 

fee-to-trust land acquisition. All 

applications for a fee-to-trust acquisition 

must be in writing and specifically 

request that the Secretary of the Interior 

take land into trust for the benefit of the 

applicant. Applications shall be 

submitted to the BIA office that has 

jurisdiction over the lands contained in 

the application. 

The applicant must provide a legal 

description of the land to be acquired, 

the legal name of the eligible Indian 

Tribe or individual, proof of an eligible 

Indian Tribe or eligible individual(s), 

the specific reason the applicant is 

requesting that the United States of 

America acquire the land for the 

applicant’s benefit, title evidence 

addressing the lands to be acquired and 

information that allows the Secretary of 

the Interior to comply with the National 

Environmental Policy Act (NEPA) (43 

U.S.C. 4321 et seq.) and 602 

Departmental Manual 2 (602 DM 2)— 

Hazardous Substances. Each application 

is evaluated to determine if the 

applicable criteria defined in part 151 

have been addressed. State and local 

governments having regulatory 

jurisdiction over the land contained in 

the application will be notified upon 

written receipt of an application for a 

fee-to-trust acquisition. The notice will 

inform the entities that each will be 

given 30 days in which to provide 

written comments as to the acquisition’s 

potential impacts on regulatory 

jurisdiction, real property taxes and 

special assessments. The official 

authorized to accept the request to feeto-trust acquisition will decide whether 

to approve the application and acquire 

the land in trust. All decisions to accept 

or deny a fee-to-trust acquisition shall 

be in writing. The length of time to 

complete the process varies depending 

on completion of the required steps by 

the applicant and the BIA. 

III. Overview of the Final Rule 

This final rule updates the 

Department’s part 151 regulations 

which govern how the BIA responds to, 

considers, and processes applications 

from Tribal governments and individual 

Indians to acquire land in trust status. 

The Bureau of Indian Affairs (BIA) has 

acquired over a million acres of land 

into trust for Tribes and individual 

Indians since Congress passed the IRA 

in 1934. See 87 FR 74334, 74335 (Dec. 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86223 

5, 2022). This final rule is intended to 

make the fee-to-trust process less 

burdensome and more cost-efficient. In 

addition, the Department seeks to 

improve the fee-to-trust land acquisition 

process because of the many benefits 

afforded to Tribal governments and their 

citizens, such as heightened regulatory 

jurisdiction over the lands, exemptions 

from State and local taxation, and 

restoration of Tribal homelands. 

This final rule addresses delays in the 

current land acquisition process. The 

average length of time to receive a final 

fee-to-trust decision is approximately 

985 days. Currently, there are 941 cases 

pending approval by the Department— 

the majority of which are for noncontroversial, on-reservation 

acquisitions. This final rule will reduce 

the time it takes BIA to process land 

into trust applications going forward 

and address the existing backlog. 

The final rule affirms the Secretary’s 

policy to actively implement the IRA’s 

discretionary land into trust authority in 

a manner that supports selfdetermination and strengthens Tribal 

sovereignty. The final rule also furthers 

implementation of subsequent 

congressional enactments, such as the 

Indian Land Consolidation Act (ILCA) 

and the American Indian Probate 

Reform Act’s (AIPRA) amendments to 

ILCA, which sought to ‘‘prevent further 

fractionation of Indian trust allotments, 

consolidate fractional interests and their 

ownership into usable parcels, 

consolidate those interests in a manner 

that enhances Tribal sovereignty, 

promote Tribal self-sufficiency and selfdetermination, and reverse the effects of 

the allotment policy on Indian Tribes.’’ 

Indian Land Consolidation Act, Public 

Law 97–459, 96 Stat. 2515; American 

Indian Probate Reform Act of 2004, 

Public Law 110–453, 118 Stat. 1804 

(codified as amended at 25 U.S.C. 2201 

through 2221). The Secretary’s land 

acquisition policy recognizes these 

objectives and that a Tribal land base 

‘‘enhances Tribal sovereignty by 

accreting land to the Tribes on which 

they can offer Tribal services and engage 

in enterprises that promote Tribal selfsufficiency and self-determination.’’ 

See, e.g., Quinault Indian Nation v. 

Northwest Regional Director, Bureau of 

Indian Affairs, 48 IBIA 186, 203 (2008)., 

48 IBIA 186, 203 (2008). 

Through this rulemaking, the 

Department seeks to improve processing 

timelines by establishing a 120-day time 

frame for issuing a decision once the 

BIA receives a complete application 

package. This contrasts with no timeline 

in the current rule. The average length 

of time to receive a final fee-to-trust 

decision is approximately 985 days. 

Currently, there are 941 cases pending 

approval by the Department—the 

majority of which are for noncontroversial, on-reservation 

acquisitions. The final rule also 

incorporates the Department’s process 

for determining whether a Tribe was 

‘‘under Federal jurisdiction’’ in 1934, as 

required under Carcieri v. Salazar, 555 

U.S. 379 (2009). 

The final rule articulates criteria for 

processing four different types of land 

acquisition: on-reservation, contiguous, 

off-reservation, and the newly identified 

initial acquisition. Each acquisition 

includes certain presumptions intended 

to improve efficiency based on the BIA’s 

longstanding practices and experience. 

Several other changes to the regulations 

seek to solve problems and remove 

obstacles for Tribes and individual 

Indians engaged in the BIA’s land 

acquisition process. 

IV. Summary of Final Rule and 

Changes From Proposed Rule to Final 

Rule 

On December 5, 2022, the Department 

published the proposed rule, 87 FR 

74334. The sections below discuss the 

changes from the proposed rule to the 

final rule. 

§ 151.1 What is the purpose of this 

part? 

The final rule clarifies that this 

regulation does not govern acquisitions 

mandated by Federal law. The 

Department has issued guidance 

concerning such mandatory 

acquisitions, including the guidance 

found in the BIA’s Fee-to-Trust 

Handbook (FTT Handbook), and does 

not believe regulations are necessary at 

this time. This is because there are 

many, varying authorities for mandatory 

acquisitions, and it is difficult to draft 

regulations that would be consistent 

with all current and future mandatory 

acquisitions. We avoid the risk of 

creating inconsistency with statutory 

authorities and judicial orders 

mandating acquisitions by employing 

simple guidance on how we approach 

such acquisitions rather than one-sizefits-all regulations. 

Changes from the proposed rule to the 

final rule in § 151.1 include: 

• The opening paragraph of § 151.1 

was revised to reference ‘‘acquisition of 

land mandated by Federal law’’ instead 

of ‘‘acquisition of land mandated by 

Congress or a Federal court.’’ 

§ 151.2 How are key terms defined? 

The final rule adds new definitions 

for the following terms: contiguous, fee 

interest, fractionated tract, Indian land, 

Indian landowner, initial Indian 

acquisition, interested party, marketable 

title, preliminary title opinion, 

preliminary title report, and undivided 

interest. 

The definitions are also now listed in 

alphabetical order in § 151.2. 

Initial Indian acquisition. Among the 

new definitions, we note that the term 

‘‘initial Indian acquisition’’ refers to a 

new category of acquisitions provided 

under § 151.12. BIA wishes to support 

acquisitions for Tribes that do not 

currently have land held in trust, 

furthering the BIA’s policy of 

supporting restoration of Tribal 

homelands. The regulatory criteria for 

considering initial Indian acquisitions 

provide a new, more supportive process 

for Tribes without trust land, as 

discussed further in § 151.12. Tribal 

consultation commenters expressed 

concern that the consultation draft of 

this revision used the word ‘‘yet’’ rather 

than ‘‘currently’’ when referring to land 

held in trust status. Commenters wanted 

to ensure that Tribes which may have 

had land in trust in the past but do not 

have land in trust now would be 

covered by the initial Tribal acquisition 

provision and asked that ‘‘yet’’ be 

changed to ‘‘currently’’ to clarify that 

approach. We have done so here in the 

final rule. We clarify, in response to the 

comments, that the final rule’s intention 

is to treat Tribes that previously held 

land in trust but do not currently hold 

land in trust in the same manner as 

Tribes which have never held land in 

trust. 

Marketable title. Tribal consultation 

commenters also expressed concern 

regarding the term ‘‘marketable title’’, 

and so we have added a definition for 

that term to the final rule. Commenters 

believed that requiring marketable title 

was inappropriate because land held in 

trust will not likely ever be sold on the 

market again, and Tribes may seek to 

acquire land for cultural, conservation, 

spiritual, or other reasons that are 

entirely separate from commercial 

concerns. BIA appreciates and supports 

those purposes for an acquisition but 

notes that the term marketable title is 

used here in a strictly legal sense rather 

than a commercial sense, referring to 

title that a reasonable buyer would 

accept because it is sufficiently free 

from substantial defects and covers the 

entire property that the seller purports 

to sell. 

Individual Indian. The definition of 

‘‘individual Indian’’ has been modified 

to remove § 151.2(g)(4), which covered 

acquisitions outside of Alaska by an 

Alaska Native. This definition implied 

that acquisitions of land in trust within 

Alaska was not permissible under these 

regulations which is inconsistent with 


ddrumheller on DSK120RN23PROD with RULES2
86224 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

Sol. Op. M–37076, The Secretary’s Land 

Into Trust Authority for Alaska Natives 

and Alaska Tribes Under the Indian 

Reorganization Act and the Alaska 

Indian Reorganization Act and 

Akiachak Native Community v. Jewell, 

935 F. Supp. 2d 195 (D.D.C. 2013) 

(finding that the Department’s part 151 

Alaska exception violated the privileges 

and immunities clause of the IRA), 

vacated as moot, Akiachak Native Cmty. 

v. U.S. Dep’t of the Interior, 827 F.3d 

100 (D.C. Cir. 2016) (the State of 

Alaska’s appeal was deemed moot after 

the Department’s rulemaking eliminated 

the Alaska exception from 25 CFR part 

151). 

Tribe. The definition of ‘‘Tribe’’ has 

been modified such that an Indian Tribe 

is any Tribe listed under section 102 of 

the Federally Recognized Indian Tribe 

List Act of 1994 (List Act) or slated to 

be included in the next publication of 

that list. The List Act was not in place 

when these regulations were first 

promulgated in 1980 but should be used 

now as it is the official record of 

federally recognized Tribes. 

Indian reservation. The definition of 

‘‘Indian reservation’’ has been modified 

slightly to ensure a comprehensive 

understanding of reservation status in 

Oklahoma after the Supreme Court’s 

decision in McGirt v. Oklahoma, 140 S. 

Ct. 2452 (2020). The new definition 

provides that in the State of Oklahoma, 

‘‘wherever historic reservations have not 

yet been reaffirmed’’, the term Indian 

reservation means land constituting the 

former reservation of the Tribe as 

defined by the Secretary. By including 

this phrase, the final rule makes clear 

that the Secretary will consider all 

historic Oklahoma reservations, 

consistent with McGirt and its progeny, 

as Indian reservations for purposes of 

this regulation, regardless of whether 

courts have concluded reaffirmation 

litigation addressing such historic 

reservations. 

Tribal consolidation area. Finally, we 

removed the definition of ‘‘Tribal 

consolidation area’’. This term was used 

only once in the existing rule, regarding 

the Department’s land acquisition 

policy. The final rule’s updated 

statement of the Department’s land 

acquisition policy will cover any 

acquisitions in such an area. 

Marketable title. The definition of 

‘‘marketable title’’ was revised for 

clarity to read ‘‘defect and that covers 

the entire property’’ instead of ‘‘defect 

and to cover the entire property.’’ 

§ 151.3 What is the Secretary’s land 

acquisition policy? 

The existing rule’s statement 

concerning when the Secretary will 

exercise the discretion to acquire land 

in trust does not reflect congressional 

policy clearly in favor of trust 

acquisition for Tribes and individual 

Indians, nor does it capture the broad 

range of purposes for which the lands 

are used to further Tribal welfare. The 

revision makes plain that the Secretary’s 

policy is to support acquisitions of land 

in trust for the benefit of Tribes and 

individual Indians and that it is the 

policy of the Department that the 

Secretary exercise the discretion to 

acquire land in trust when doing so 

furthers the broad range of interests 

outlined in the final rule. The prior 

technical introductory language has 

been moved to § 151.3(a). 

In § 151.3(b)(3), the Department added 

additional policy reasons that support 

an acquisition on behalf of a Tribe, 

including any reason the Secretary 

determines will support Tribal welfare, 

consistent with the goals of the IRA and 

other statutes authorizing trust 

acquisitions. We note, however, that 

none of these policy reasons are 

required if the subject land is within a 

reservation (per § 151.3(b)(1)) or if the 

Tribe already owns an interest in the 

land, such as a fee interest (per 

§ 151.3(b)(2)). We received comment 

during the 2022 Tribal consultation 

encouraging us not to use the word 

‘‘establish’’ in regard to homelands, and 

therefore we have changed language to 

use the word ‘‘protect.’’ We also 

included the policy goal of establishing 

a Tribal land base and providing for 

climate change-related acquisitions. 

Commenters also suggested adding 

‘‘cultural practices’’ to the list of policy 

reasons in addition to ‘‘cultural 

resources,’’ and we have done so. 

In § 151.3(c), several Tribal 

consultation commenters pointed out 

that the word ‘‘adjacent’’ is used where 

the intended meaning was 

‘‘contiguous.’’ We have changed the text 

to read ‘‘contiguous,’’ to be consistent 

with commenters’ recommendations 

and our understanding of the existing 

rule’s meaning. 

There were no other changes in this 

section from the proposed rule to the 

final rule. 

§ 151.4 How will the Secretary 

determine that statutory authority exists 

to acquire land in trust status? 

Section 151.4 lays out in regulatory 

text the Department’s approach to 

determining statutory authority for 

acquisitions as required by the Supreme 

Court’s decision in Carcieri v. Salazar, 

555 U.S. 379 (2009), which determined 

that the word ‘‘now’’ in the phrase ‘‘now 

under Federal jurisdiction’’ in the IRA 

refers to the time of the passage of the 

IRA in 1934. The final rule incorporates 

caselaw and analysis by the Department 

interpreting the Department’s statutory 

authority as guided by Carcieri. 

The final rule identifies three 

categories of evidence used to evaluate 

whether a Tribe was under Federal 

jurisdiction: conclusive; presumptive; 

and probative. Conclusive evidence 

establishes in and of itself both that a 

Tribe was placed under Federal 

jurisdiction in or before 1934 and that 

this jurisdictional status persisted in 

1934. If conclusive evidence exists, no 

further analysis is required. 

Presumptive evidence strongly indicates 

that a Tribe was placed under Federal 

jurisdiction in or before 1934 and may 

indicate that such jurisdictional status 

persisted in 1934. Even where 

presumptive evidence exists, the 

Department will engage in a detailed 

review of the historical record to 

address whether the Tribal applicant 

came under Federal jurisdiction in or 

before 1934 and whether that 

jurisdictional status remained extant in 

1934. If neither conclusive nor 

presumptive evidence exists, the 

Department will consider all probative 

evidence in concert, i.e., in a holistic 

manner to determine whether the 

historical record, in whole, supports a 

finding that the Tribal applicant was 

under Federal jurisdiction in 1934 and 

retained such status in 1934. Examples 

of probative evidence are listed in 

§ 151.4(a)(3)(i). 

We note that § 151.4(c) explains that, 

if the Department has previously issued 

a favorable ‘‘under Federal jurisdiction’’ 

analysis for a Tribe, no additional 

analysis is needed unless there has been 

a change in law. Such prior 

determinations remain valid under the 

revision. 

Section 151.4(e) clarifies that where a 

statute other than the IRA has 

authorized trust land acquisitions, the 

‘‘under Federal jurisdiction’’ IRA 

analysis provided for in § 151.4(a) 

through (d) does not apply, and the 

Secretary may acquire land in trust as 

permitted by the other Federal law. 

Finally, we note that existing § 151.4, 

‘‘Acquisitions in trust of lands owned in 

fee by an Indian,’’ has been deleted in 

the final rule as unnecessary. The rule 

provides for such acquisitions, and 

existing § 151.4 adds no additional 

information or process regarding such 

acquisitions. 

Changes from the proposed rule to the 

final rule in § 151.4 include: 

• Adding an introductory paragraph 

explaining when § 151.4 is applicable. 

• Adding ‘‘land held in trust by the 

United States in 1934’’ as conclusive 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86225 

evidence a Tribe was under Federal 

jurisdiction in 1934. 

• Adding ‘‘land claim settlements’’ as 

an example of ‘‘Federal legislation for a 

specific Tribe, which acknowledges the 

existence of jurisdictional relationship 

with a Tribe in or before 1934’’ as 

presumptive evidence in 

§ 151.4(a)(2)(v). 

• Adding ‘‘efforts by the Federal 

Government to conduct a vote under 

section 18 of the IRA to accept or reject 

the IRA where no vote was held;’’ 

Federal ‘‘approval of contracts between 

a Tribe and non-Indians;’’ and Federal 

‘‘enforcement of the Trade and 

Intercourse Acts (Indian trader, liquor 

laws, and land transactions)’’ as 

examples of probative evidence in 

§ 151.4(a)(3)(i). 

• Revising § 151.4(a)(2)(vi) and 

adding a new provision, § 151.4(a)(4), to 

confirm that the Secretary may rely on 

any evidence within the part 83 record 

that the Tribe was under Federal 

jurisdiction, consistent with 

§ 151.4(a)(2) and (3). 

• Renumbering proposed § 151.4(a)(4) 

as § 151.4(a)(5) and revising it to state 

that evidence of executive officials 

disavowing Federal jurisdiction over a 

Tribe in certain instances is not 

conclusive evidence of a Tribe’s Federal 

jurisdictional status because such 

disavowals cannot themselves revoke 

Federal jurisdiction over a Tribe. 

• Revising § 151.4(c) to reference the 

‘‘Department’’ instead of the ‘‘Office of 

the Solicitor.’’ 

• Additional technical edits were 

made to make language consistent 

throughout § 151.4. 

§ 151.5 May the Secretary acquire land 

in trust status by exchange? 

Minor stylistic changes were made to 

§ 151.5. There were no changes from the 

proposed rule to the final rule. 

§ 151.6 May the Secretary approve 

acquisition of a fractional interest? 

A modification to § 151.6 has been 

made to clarify how its provisions are 

consistent with section 2216(c) of ILCA. 

ILCA at section 2216(c) allows for 

mandatory acquisitions of fractional 

interests of a parcel at least a portion of 

which was in trust or restricted status 

on November 7, 2000, and is located 

within a reservation. Tribal consultation 

commenters were concerned that 

existing § 151.6 requires use of the 

discretionary process for such 

acquisitions, in contravention of past 

practice and section 2216(c) of ILCA. 

We assure commenters this is not the 

case; where section 2216(c) of ILCA 

provides for mandatory acquisitions of 

fractional interests, the Department will 

continue to employ that statutory 

authority. However, where a fractional 

interest is off-reservation or trust or 

restricted status of another fractional 

interest in the same parcel did not exist 

on November 7, 2000, section 2216(c) of 

ILCA does not provide authority for 

mandatory trust acquisitions, and thus 

the Department must typically rely on 

the discretionary acquisition authority 

provided by the IRA and developed in 

these regulations. Consistent clarifying 

language has been added to the 

introduction of § 151.6. 

The proposed rule and the final rule 

replace the term ‘‘buyer’’ with 

‘‘applicant.’’ The term ‘‘buyer’’ is 

inapposite here; the individual or Tribe 

is not typically buying any property, but 

rather applying to the Department to 

take the individual’s or Tribe’s 

fractional interest into trust for the 

individual’s or Tribe’s benefit. 

Changes from the proposed rule to the 

final rule in § 151.6 include: 

• The opening paragraph of § 151.6 

was revised to read ‘‘[t]he Secretary may 

approve the acquisition of a fractional 

interest in a fractionated tract in trust 

status by an individual Indian or a Tribe 

including when:’’ instead of ‘‘[t]he 

Secretary may approve the acquisition 

of a fractional interest in a fractionated 

tract in trust status by an individual 

Indian or a Tribe only if:’’. 

§ 151.7 Is Tribal consent required for 

nonmember acquisitions? 

There are no changes to § 151.7. 

Section 151.8 in the existing rule is 

redesignated as § 151.7 in the final rule. 

§ 151.8 What documentation is 

included in a trust acquisition package? 

Section 151.8 expands substantially 

upon existing rule § 151.9, ‘‘Requests for 

approval of acquisitions.’’ § 151.8 

describes all the pieces of information 

necessary for the Department to 

assemble a complete trust acquisition 

package. Once a complete package is 

assembled, the final rule requires the 

Department to notify the applicant and 

then issue a decision on the application 

within 120 days. Many Tribal 

consultation commenters were 

concerned that no timing deadline was 

applied to the Department’s 

responsibility to notify applicants of a 

complete acquisition package; therefore, 

the final rule includes a requirement 

that the BIA provides tribes such 

notification within 30 days. 

Tribal consultation commenters also 

pointed out that § 151.8 may be 

confusing in that some pieces of a 

complete application package are 

provided by the applicant, while some 

are developed by the Department. The 

following chart clarifies how the 

Department and applicants work 

together to develop a complete 

application package. 

Paragraph No. Applicant contribution Department contribution 

§ 151.8(a)(1) ....... A signed letter from the Tribal government supported by a 

Tribal resolution or other act, or if an individual applicant, a 

signed letter.

None. 

§ 151.8(a)(2) ....... Documentation from the applicant explaining purpose, and, if 

an individual, need.

No Department contribution is needed to complete this component of the package. Rather, the Department will consider this information in coming to a decision. 

§ 151.8(a)(3) ....... Statement identifying statutory authority for the acquisition. If 

the acquisition relies on satisfying the IRA’s first definition 

of Indian, the statement should include evidence that the 

Tribe was under Federal jurisdiction in 1934 consistent 

with § 151.4.

The Department will determine whether statutory authority 

exists based on the Tribe’s submission. If the Tribe relies 

on the IRA’s first definition of ‘‘Indian,’’ to establish such 

authority, then the Department will review all relevant evidence to determine whether the Tribe was under Federal 

jurisdiction consistent with § 151.4. 

§ 151.8(a)(4) ....... An aliquot legal description of the land and a map, or a 

metes and bounds land description and survey, including a 

statement of the estate to be acquired, e.g., all surface 

and mineral rights, surface rights only, surface rights and a 

portion of the mineral rights, etc.

Concurrence that the description is legally sufficient. 


ddrumheller on DSK120RN23PROD with RULES2
86226 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

Paragraph No. Applicant contribution Department contribution 

§ 151.8(a)(5) ....... Information, or permission to access the land to gather such 

information, allowing the Department to comply with NEPA 

and 602 DM 2 regarding hazardous substances.

The Department will develop or adopt and complete NEPA 

analyses, including any required public process, and develop or adopt Phase I and Phase II Environmental Site 

Assessments produced under 602 DM 2. 

§ 151.8(a)(6) ....... Evidence of marketable title ..................................................... Preliminary Title Opinion. 

§ 151.8(a)(7) ....... None (applicant replies to comment letters are invited but not 

required for a complete acquisition package).

Notification letters to State and local governments and any 

response letters. 

§ 151.8(a)(8) ....... Statement that any existing encumbrances on title will not 

interfere with the applicant’s intended use.

None. 

§ 151.8(a)(9) ....... None unless warranted by specific application ....................... None unless warranted by specific application. 

Regarding the requirement under 

§ 151.8(a)(3) that the Department concur 

that a description is legally sufficient, 

many commenters were concerned that 

this adds a novel requirement to the 

land into trust process that may present 

obstacles. The Department clarifies that 

concurrence with the land description 

presented by the applicant was and has 

always been a necessary part of the 

acquisition process. See BIA National 

Policy Memorandum: Modernizing the 

Land Description Review Process for 

Fee-to-Trust Acquisitions, NPM–TRUS– 

43 (April 6, 2023). The Department has 

always reviewed land descriptions to 

ensure they are accurate, that the parcel 

‘‘closes,’’ and that, generally, the 

description describes with sufficient 

specificity what land is to be acquired. 

The Department’s land description 

concurrence listed in § 151.8 is needed 

primarily to be comprehensive in the 

requirements for a complete acquisition 

package. Without such a provision, a 

flawed or otherwise insufficient land 

description could be construed as 

completing an acquisition package, 

forcing the Department to deny a 

request if not resolved before the 120- 

day time frame expires. 

Changes from the proposed rule to the 

final rule in this section include: 

• § 151.8(a)(1) through (6), (8), and (9) 

were revised to read ‘‘[t]he applicant 

must submit’’. 

• Clarification, in new § 151.8(a)(3), 

that the Tribe is responsible for 

submitting a statement and any 

evidence to support a finding of it being 

under Federal jurisdiction in 1934 to 

satisfy § 151.4 and renumbering of 

subsequent provisions of § 151.8(a). 

• Clarifying language that an 

acquisition package is not complete 

until a pre-acquisition Phase I 

environmental site assessment, and if 

necessary, a Phase II environmental site 

assessment completed pursuant to 602 

DM 2 is determined to be sufficient by 

the Secretary, the Secretary completes a 

Preliminary Title Opinion, and the 

Secretary determines that the legal 

description or survey is sufficient. 

• Deleting ‘‘including any associated 

responses where requested by the 

Secretary’’ from proposed § 151.8(a)(6), 

now renumbered as § 151.8(a)(7). 

• Stylistic changes. 

§ 151.9 How will the Secretary 

evaluate a request involving land within 

the boundaries of an Indian reservation? 

Section 151.9 is the first of four 

sections providing process for the 

Secretary’s consideration of different 

types of acquisition applications based 

on the location of the subject land in 

relation to an Indian reservation or, in 

the case of initial Indian acquisitions, 

the fact that the Tribe has no land 

currently in trust. 

The existing rule considers both onreservation and contiguous applications 

under the on-reservation criteria in 

§ 151.10. In the new final rule, the onreservation acquisition process has been 

simplified and designed to result in 

faster decisions in several ways. First, 

under § 151.9(a), the Secretary is no 

longer required to consider some of the 

issues that § 151.10 of the current 

regulations requires her to consider, 

such as the need for a Tribal 

government’s acquisition, the impact on 

State and local government tax rolls, 

and jurisdictional problems or conflicts 

of land use which may arise, except as 

described below. BIA is making this 

change based on decades of experience 

showing that on-reservation acquisitions 

are generally not contentious or 

challenged because the acquisition may 

be within existing reservation 

boundaries, may help to lessen 

jurisdictional complexities arising from 

privately-held fee tracts adjacent to 

tracts held in trust, may help to 

consolidate Tribal land interests, or may 

be mandatory under other statutory 

processes, such as the Indian Land 

Consolidation Act, as amended. See 

Public Law 97–459, tit. II, codified at 25 

U.S.C. 2201 et seq. Moreover, the 

Department believes that this change in 

policy better aligns with the purpose of 

the IRA. Indeed, the IRA was passed to 

address ‘‘[t]he disastrous condition 

peculiar to the Indian situation in the 

United States’’ that was ‘‘directly and 

inevitably the result of existing.’’ 

Readjustment of Indian Affairs: 

Hearings Before the Committee on 

Indian Affairs, House of Representatives 

on H.R. 7902, 73d Cong., 2d Sess., at 

15–16 (Feb 22, 1934), cited in Sol. Op. 

M–37029 ‘‘The Meaning of ‘Under 

Federal Jurisdiction’ for Purposes of the 

Indian Reorganization Act’’ (March 12, 

2014), at 6 (discussing the (General 

Allotment Act of 1887, Pub. L. 49–105, 

24 Stat. 388 (formerly codified at 25 

U.S.C. 331–357)). Section 5 of the IRA 

says nothing about whether restoring 

these lands to Tribal ownership satisfied 

a particular need, would negatively 

impact State and local tax revenue, or 

would complicate jurisdiction or create 

conflicts in land use. Given that the 

subject land is within an Indian 

reservation set aside by the United 

States government for the use and 

welfare of a Tribe and based on the long 

experience of BIA in processing such 

applications and then administering 

land placed into trust, these factors need 

not be considered for every acquisition. 

However, under § 151.9(d), the final rule 

retains notice and an invitation to State 

and local governments to comment on 

the acquisition’s potential impact on 

regulatory jurisdiction, real property 

taxes, and special assessments. If such 

comments are received, the Secretary 

will consider them in a holistic analysis 

of the application. More specifically, the 

Secretary will no longer be required to 

consider impacts to State and local taxes 

for on-reservation acquisitions unless it 

is raised by a State or local government. 

The Department also notes and confirms 

that any comments received on an 

application, even if not requested, will 

be considered as part of the overall 

decision-making process. If no such 

comments are received, no 

consideration of these factors is required 

under the final rule. We note that some 

commenters wished to eliminate the 

purpose criterion in § 151.9(a) as well. 

Because an understanding of purpose is 

necessary to comply with NEPA and to 

support the approach described in 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86227 

§ 151.9(b), BIA is retaining this 

criterion. 

Second, under § 151.9(b), the 

Secretary will apply great weight to 

applications pursuing certain important 

purposes for Tribal welfare, including, 

for instance, the need to protect Tribal 

homelands. This will allow the 

Secretary to appropriately consider 

which acquisitions will most directly 

further the critical interests identified in 

§ 151.3. This approach recognizes and 

incorporates the Secretary’s policy to 

support acquisition of land in trust for 

the benefit of Tribes. The existing rule’s 

land acquisition policy in § 151.3 was 

established when the first fee-to-trust 

regulations were promulgated in 1980. 

See 45 FR 62034. The land acquisition 

policy in the existing rule is virtually 

unchanged from the 1980 version and 

does not account for the many 

important reasons, many of which were 

not contemplated in 1980, for which 

Tribes acquire land in trust today to 

further self-determination and selfgovernance. This final rule incorporates 

these important reasons in the revised 

§ 151.3, which the Secretary’s policy is 

intended to support. Under the new 

final rule, the Secretary will expressly 

consider the listed Tribal purposes for 

land acquisition as part of the holistic 

consideration applied to land into trust 

acquisitions under the discretionary 

authority of the IRA. If an application 

seeks to have land taken into trust for 

one of the purposes set forth in 

§ 151.9(b), the Secretary will give great 

weight to this fact and, because such 

acquisitions further the policy purposes 

set out in § 151.3, will provide a 

detailed explanation of the basis for any 

disapproval decision, taking into 

account the important purposes that 

such an acquisition would serve. 

Third, under § 151.9(c), the Secretary 

will now presume that on-reservation 

acquisitions will benefit Tribal interests, 

and therefore should be approved. BIA 

believes this presumption will further 

the purpose of the IRA, which, as noted 

above, Congress enacted in 1934 to 

address the devasting effects of prior 

policies and to secure a land base for 

Indian tribes to engage in economic 

development and self-determination. 

Given that the subject land is within an 

Indian reservation set aside by the 

United States government for the use 

and welfare of a Tribe, and given the 

long history of such lands being 

removed from Tribal ownership through 

improper sale or the government’s 

efforts to allot land originally held by 

the Tribal government, a presumption of 

benefits from restoring reservation lands 

to trust status is appropriate and 

consistent with the Department’s policy 

on land into trust acquisitions. Where a 

Tribe takes land into trust within its 

reservation boundaries, that land nearly 

always serves an important economic, 

cultural, self-determination, or 

sovereignty purpose that supports Tribal 

welfare. 

Changes from the proposed rule to the 

final rule in this section include: 

• Making stylistic changes in § 151.9 

(b) to emphasize the Secretary’s 

recognition that applications that are for 

the listed purposes will further the 

important policy goals identified in 

§ 151.3. 

• Clarifying in § 151.9(c) that the 

Secretary will presume that the 

acquisition will ‘‘further the Tribal 

interests described in paragraph (b) of 

this section and adverse impacts to local 

governments’ regulatory jurisdiction, 

real property taxes, and special 

assessments will be minimal, therefore 

the application should be approved.’’ 

• Adding in § 151.9(d) that the notice 

to State and local governments will 

provide 30 calendar days in which to 

provide written comments to rebut the 

presumption of minimal adverse 

impacts to regulatory jurisdiction, real 

property taxes, and special assessments. 

If the State or local government 

responds within 30 calendar days, a 

copy of the comments will be provided 

to the applicant, who will be given a 

reasonable time in which to reply, if 

they choose to do so in their discretion, 

or request that the Secretary issue a 

decision. In considering such 

comments, the Secretary presumes that 

the Tribal community will benefit from 

the acquisition. 

• Minor stylistic changes. 

§ 151.10 How will the Secretary 

evaluate a request involving land 

contiguous to the boundaries of an 

Indian reservation? 

For reasons similar to those noted 

above, the process for approving 

acquisitions contiguous to an Indian 

reservation has also been simplified and 

designed to result in faster decisions. 

Under the current regulation at 

§ 151.10(a), the Secretary must consider 

the need for a Tribal government’s 

acquisition of contiguous land, the 

impact on State and local government 

tax rolls, and jurisdictional problems or 

conflicts of land use which may arise 

when considering acquisition of land 

contiguous to the Indian reservation. 

Under final rule § 151.10(a) through (c), 

like on-reservation acquisitions under 

final rule § 151.9(a) through (c), the 

Secretary is no longer required to 

consider the need for a Tribal 

government’s acquisition of contiguous 

land, the impact on State and local 

government tax rolls, and jurisdictional 

problems or conflicts of land use which 

may arise, except as described below, 

because such impacts, problems or 

conflicts are presumed to have a 

minimal adverse impact. Given that the 

subject land is contiguous to an Indian 

reservation set aside by the United 

States government for the use and 

welfare of a Tribe, and would, after 

acquisition, form a contiguous parcel, 

and based on the long experience of BIA 

in processing such applications and 

then administering land placed into 

trust, these factors need not be 

considered for every acquisition. 

However, the final rule retains notice 

and an invitation to State and local 

governments to comment on the 

acquisition’s potential impact on 

regulatory jurisdiction, real property 

taxes, and special assessments. If such 

comments are received, the Secretary 

will consider them in a holistic analysis 

of the application. If no such comments 

are received, no consideration of these 

factors is required under the final rule. 

Under § 151.10(b), the same approach 

of granting great weight to important 

Tribal purposes will be applied in the 

same manner as for on-reservation 

acquisitions (i.e., within the boundaries 

of an Indian reservation) under 

§ 151.9(b). The Secretary also presumes, 

based on decades of experience in 

acquiring and administering contiguous 

trust lands, that the Tribal community 

will benefit from the acquisition. The 

existing rule considers both onreservation and contiguous applications 

under the on-reservation criteria in 

§ 151.10. The presumption that a 

community will benefit from acquisition 

of land in trust reflects an update based 

on the Secretary’s practice and is a 

change from the current regulations, 

which contain no presumption of 

whether a Tribal community will 

benefit from an acquisition. Trust 

acquisition of land benefits Tribes 

because Tribes have new opportunities 

to pursue self-determination and selfgovernance on the land, and Tribes can 

access the Federal programs and 

services that are available only on trust 

lands. 

Changes from the proposed rule to the 

final rule in this section include: 

• Making stylistic changes in 

§ 151.10(b) to emphasize the Secretary’s 

recognition that applications that are for 

the listed purposes will further the 

important policy goals identified in 

§ 151.3. Clarifying in § 151.10(c) that the 

Secretary will presume that the 

acquisition ‘‘will further the Tribal 

interests described above in paragraph 

(b) of this section, and adverse impacts 

to local governments’ regulatory 


ddrumheller on DSK120RN23PROD with RULES2
86228 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

jurisdiction, real property taxes, and 

special assessments will be minimal, 

therefore the application should be 

approved.’’ 

• Clarifying in § 151.10(d) that the 

notice to State and local governments 

will provide 30 calendar days in which 

to provide written comments to rebut 

the presumption of minimal adverse 

impacts to regulatory jurisdiction, real 

property taxes, and special assessments. 

• Minor stylistic changes. 

§ 151.11 How will the Secretary 

evaluate a request involving land 

outside of and noncontiguous to the 

boundaries of an Indian reservation? 

Off-reservation acquisitions have been 

streamlined and designed to result in 

faster decisions through the same 

reductions in review criteria described 

for on-reservation and contiguous 

acquisitions appearing in § 151.11(a), 

and by applying the same great weight 

standard to important Tribal purposes 

in § 151.11(b). The average length of 

time to receive a final fee-to-trust 

decision is now approximately 985 

days. The expected time to receive a 

final decision is expected to 

significantly decrease, particularly given 

the new 120-day timeframe in which 

BIA must issue a decision as established 

in § 151.8(9)(b). 

In addition, existing § 151.11(b) 

applied a ‘‘bungee cord’’ approach, 

increasing the scrutiny applied to an 

acquisition as distance from a Tribe’s 

reservation increased. In 1995, the 

Department amended part 151 to 

establish a new policy for the 

acquisition of land in trust when such 

lands are located outside of and 

noncontiguous to a tribe’s existing 

reservation boundaries. See 60 FR 32874 

(June 13, 1995). The proposed rule 

noted the need to eliminate adverse 

impacts on surrounding local 

governments as justification for 

increasing scrutiny of tribal benefits 

while giving greater weight to the 

concerns of State and local 

governments. See 56 FR 32278 (July 15, 

1991). 

The final rule abandons this 

approach, providing in new § 151.11(c) 

that the Secretary presumes the Tribe 

will benefit from the acquisition, and 

will consider the location of the land 

and potential conflicts of land use when 

reviewing State and local comments as 

part of the holistic analysis of the 

application. This revision is consistent 

with the BIA’s long experience in 

implementing the land into trust 

authorities under the IRA. Where a 

Tribe takes land into trust offreservation, that land nearly always 

serves an important economic, cultural, 

self-determination, or sovereignty 

purpose that supports Tribal welfare. 

Tribal governments are rational actors 

that make acquisition decisions 

carefully based on available resources, 

such as tribal funds or financing to 

purchase the land, planning, and 

purposes valued by the Tribe. 

Accordingly, the Secretary will no 

longer apply heightened scrutiny based 

on distance from the Tribe’s reservation 

but will instead consider the location of 

the land broadly before issuing a 

decision. 

Changes from the proposed rule to the 

final rule in this section include: 

• Making stylistic changes in 

§ 151.10(b) to emphasize the Secretary’s 

recognition that applications that are for 

the listed purposes will further the 

important policy goals identified in 

§ 151.3. 

• Deleting ‘‘without regard to 

distance of the land from a Tribe’s 

reservation boundaries or trust land’’ in 

§ 151.11(c). 

• Adding in § 151.11(c) that ‘‘the 

Secretary will consider the location of 

the land and potential conflicts of land 

use’’ instead of ‘‘the Secretary will 

consider the location of the land.’’ 

• Stylistic changes. 

§ 151.12 How will the Secretary 

evaluate a request involving land for an 

initial Indian acquisition? 

Section 151.12 is designed to 

streamline decision-making and support 

Tribes which do not currently have land 

in trust. In 1995, the Department 

amended part 151 to establish a new 

policy for the placement of lands in 

trust status for Indian tribes when such 

lands are located outside of and 

noncontiguous to a tribe’s existing 

reservation boundaries. See 60 FR 32874 

(June 13, 1995). This amendment did 

not, however, account for tribes without 

reservations. Since that time, 

applications from tribes without 

reservations have been processed under 

the existing rule’s off-reservation 

provisions event though § 151.11(b) 

does not apply to tribes without 

reservations. The final rule includes 

provisions that more appropriately 

apply to the Secretary’s review of 

applications from tribes without 

reservations, thus, eliminating 

confusion. The final rule removes any 

consideration of the location of the land, 

except if such consideration is 

necessary given State and local 

comments, while also providing the 

reduced criteria for analysis in 

§ 151.12(a) and great weight granted to 

important purposes in § 151.12(b). The 

final rule also establishes a presumption 

of Tribal benefits for such requests. 

Changes from the proposed rule to the 

final rule in this section include: 

• Making stylistic changes in 

§ 151.10(b) to emphasize the Secretary’s 

recognition that applications that are for 

the listed purposes will further the 

important policy goals identified in 

§ 151.3. Clarifying in § 151.12(c) that the 

Secretary will presume that the 

acquisition ‘‘will further the Tribal 

interests described in paragraph (b) of 

this section, and adverse impacts to 

local governments’ regulatory 

jurisdiction, real property taxes, and 

special assessments will be minimal, 

therefore the application should be 

approved.’’ 

• Clarifying in § 151.12(d) that the 

notice to State and local governments 

will provide 30 calendar days in which 

to provide written comments to rebut 

the presumption of minimal adverse 

impacts to regulatory jurisdiction, real 

property taxes, and special assessments. 

• Adding in § 151.12(d) that ‘‘the 

Secretary will consider the location of 

the land and potential conflicts of land 

use’’ instead of ‘‘the Secretary will 

consider the location of the land’’. 

§ 151.13 How will the Secretary act on 

requests? 

Minor clarifying changes to language 

were made in § 151.13, including the 

use of ‘‘Office of the Secretary’’ rather 

than ‘‘Secretary’’ in § 151.13(c) and (d). 

Because the final rule uses the defined 

term Secretary in its inclusive sense to 

mean all Department staff with 

delegated authority from the Secretary, 

here in § 151.13 where we refer to the 

unusual instance where the Secretary 

herself and her immediate office have 

taken over review of an application, we 

specify that circumstance by using 

‘‘Office of the Secretary.’’ 

In addition, the final rule adds new 

information on the steps that occur after 

a decision to take land into trust but 

before signature on the acceptance of 

conveyance document, described in 

paragraphs (c)(2)(iii) and (d)(2)(iv). This 

change is explained in detail below with 

regard to new § 151.15. Before the BIA 

may accept a conveyance, the BIA must 

confirm that the environmental site 

assessment is current. The 

environmental site assessment is 

conducted to determine whether a 

parcel or parcels in question contain 

any environmental liabilities. This 

assessment is different than the BIA’s 

responsibilities under NEPA. The final 

rule has been revised at 

§ 151.13(c)(2)(iii) and (d)(2)(iv) to 

eliminate any confusion and to clarify 

that NEPA must be completed before a 

decision is made but that a second 

environmental site review can be 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86229 

completed after the decision is made but 

before the land is accepted in trust. 

Changes from the proposed rule to the 

final rule in this section include minor 

stylistic changes. 

§ 151.14 How will the Secretary review 

title? 

Two significant changes were made to 

the Secretary’s title review process. 

First, our understanding is that in 

certain jurisdictions, including 

California, many title insurance 

companies decline to provide abstracts 

of title to Tribal applicants. This market 

failure has created substantial obstacles 

for such applicants to bring land into 

trust. Section 151.14(a)(2)(ii) is designed 

to address that issue by allowing 

applicants who cannot obtain an 

abstract of title to instead provide 

evidence of a title insurance company’s 

declination. In such cases the Secretary 

may accept the applicant’s preliminary 

title report in place of an abstract of title 

as sufficient proof of good title under 

this section. Evidence of declination 

may be provided as a letter or email 

from the applicant’s title insurance 

company declining to provide an 

abstract based on their business 

practices. 

Second, § 151.14(b) allows the 

Secretary to seek additional action, if 

necessary, to address liens, 

encumbrances, or infirmities on title. 

The existing rule mandates disapproval 

if the Secretary determines title is 

unmarketable. The new rule makes this 

choice discretionary by replacing 

‘‘shall’’ with ‘‘may.’’ While we expect 

the Department will need to disapprove 

if title is so deficient as to be 

unmarketable, the Secretary retains 

discretion here. The new rule balances 

the United States interest in obtaining 

marketable title with the legal 

consequence that land held in trust is 

inalienable. The current rule can serve 

as a barrier to an acquisition when there 

are infirmities to title that may not be 

acceptable to a reasonable buyer but 

would otherwise be acceptable to the 

Secretary if certain conditions are met 

(e.g., limiting liability through an 

indemnification agreement). 

Many Tribal consultation commenters 

were concerned that encumbrances on 

the land which cannot be conveniently 

eliminated may prevent acquisition in 

trust. We clarify here that the 

Department may accept, in its 

discretion, some encumbrances on title 

and, should those encumbrances have 

the potential to impose costs in the 

future, the Department may enter into 

indemnification agreements with the 

applicant to facilitate the processing of 

fee-to-trust applications. Under the 

Checklist for Solicitor’s Office Review of 

Fee-to-Trust Applications, issued by 

Solicitor Tompkins on January 5, 2017, 

an indemnification agreement between 

the BIA and a Tribal applicant to 

address a responsibility that runs with 

the land may be appropriate if the Tribal 

applicant is willing to enter into the 

indemnification agreement, the risk of 

liability for the responsibility is low, 

and the indemnification agreement is 

the only device that will allow the 

Department to continue processing the 

land into trust application. The 

Department has completed many such 

agreements and is willing to consider 

them whenever necessary to further an 

acquisition. 

Changes from the proposed rule to the 

final rule in this section include: 

• Adding in § 151.14(a)(2)(ii) that the 

Secretary may accept either a 

preliminary title report or an equivalent 

document prepared by a title company 

in place of an abstract of title in certain 

circumstances. 

• Removing the requirement in 

§ 151.14(a)(2)(ii) that the policy of title 

insurance be less than five years old. 

• Updating § 151.14(a) to read ‘‘[t]he 

applicant submit title evidence as part 

of a complete acquisition package as 

described in § 151.8 as follows:’’. 

• Stylistic changes. 

§ 151.15 How will the Secretary 

conduct a review of environmental 

conditions? 

Section 151.15 covers the 

Department’s environmental 

responsibilities under NEPA and the 

Departmental Manual at 602 DM 2. 

Paragraph (a) simply states that the 

Department will comply with NEPA; no 

changes to BIA’s practices are created 

through this paragraph. Section 

151.15(b) creates a new process in 

relation to 602 DM 2. That Departmental 

policy helps ensure that the Department 

does not acquire land that has been 

contaminated by hazardous substances, 

or that if it does acquire such land 

unknowingly, its due diligence in 

examining the property will ensure an 

innocent landowner defense to liability 

under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA) of 1980 (42 U.S.C. 9601 et 

seq.). 

The innocent landowner defense is 

only available where environmental site 

assessments developed pursuant to 602 

DM 2 are performed or updated within 

180 days of an acquisition. Under the 

existing regulations, many applicants 

have, therefore, needed to continually 

update their environmental site 

assessments while waiting for a decision 

on their application. Environmental 

consultant fees in performing this work 

added significantly to the cost of an 

acquisition. To address this problem, 

the proposed revisions anticipate a 

maximum of two environmental site 

assessments. One assessment should be 

prepared to develop a complete 

application package. Section 151.15(b) 

provides that, if this assessment will be 

more than 180 days old at the time of 

acquisition and thus an update is 

needed, then a single additional update 

may be performed after the Secretary 

issues her notice of decision approving 

the acquisition, but before the 

acceptance of conveyance document is 

signed. Based on lengthy experience in 

such acquisitions, if no recognized 

environmental conditions are identified 

in the first environmental site 

assessment, the chances are low that 

any such conditions will have emerged 

by the time of acceptance. Repeated 

updates are, therefore, an unnecessary 

expense for the applicant that will be 

avoided through new § 151.15(b). We 

note that § 151.15(b) states that this 

single additional update ‘‘may’’ be 

required by the Secretary; we use the 

term ‘‘may’’ because if the original 

environmental site assessment was 

performed less than six months before 

the acceptance of conveyance, there is 

no need to perform an update. 

Changes from the proposed rule to the 

final rule include: 

• Adding in § 151.15(b)(1) ‘‘or before 

formalization of acceptance and all 

other requirements of this section, 

§§ 151.13 and 151.14 are met, the 

Secretary shall acquire the land in 

trust.’’ 

• Adding in § 151.15(b)(2) ‘‘or before 

formalization of acceptance’’ in the first 

sentence. And revising the second 

sentence to reference ‘‘prior to the 

formalization of acceptance’’ instead of 

‘‘prior to taking the land in trust status’’. 

§ 151.16 How is formalization of 

acceptance and trust status attained? 

Section 151.16 explains in greater 

detail how the final process of accepting 

land into trust occurs and when. This 

section replaces existing § 151.14 and 

expands on its description of 

formalization of acceptance. 

In brief, this section explains that 

after all procedural steps are completed, 

including notice of intent to acquire the 

land in trust, title review, 

environmental review, and the 

expiration of the appeal period, the 

Secretary will sign an instrument of 

conveyance. That signature places the 

land into trust for the benefit of the 

applicant. 


ddrumheller on DSK120RN23PROD with RULES2
86230 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

Changes from the proposed rule to the 

final rule in this section include: 

• Clarifying in § 151.16(a) that ‘‘[t]he 

Secretary shall sign the instrument of 

conveyance after the requirements of 

§§ 151.13, 151.14, and 151.15 have been 

met’’. 

• Clarifying in § 151.16(c) that ‘‘[t]he 

Secretary shall record the deed with 

LTRO pursuant to part 150 of this 

chapter.’’ 

§ 151.17 What effect does this part 

have on pending requests and final 

agency decisions already issued? 

Section 151.17(a) addresses pending 

applications, offering a choice to 

applicants. By default, the Department 

will continue processing such 

applications under the existing 

regulations, with the understanding that 

altering the applicable process 

midstream might be an unnecessary 

disruption, especially for applications 

that are near the end of the process or 

awaiting decision. 

However, if an applicant wishes to 

apply the new regulations to its pending 

application, the applicant may do so by 

informing us of their choice, with the 

single exception that the 120-day time 

frame created in § 151.8(b)(2) will not 

apply. Given the number of pending 

applications before the Department, if a 

large number of such applications were 

placed at once under the 120-day time 

frame, the volume could potentially 

cause serious problems for agency 

decision-making. 

Section 151.17(b) explains that any 

decisions already made under the 

existing regulations are not altered by 

the new regulation. 

Changes from the proposed rule to the 

final rule in this section include: 

• Adding that ‘‘[t]he Secretary shall 

consider the comments of State and 

local governments submitted under the 

notice provisions of the previous 

version of this regulation’’. 

• Clarifying that the new regulations 

do not alter decisions made by BIA 

officials that are undergoing appeal ‘‘on 

January 11, 2024’’. 

§ 151.18 Severability 

Section 151.18 provides that if any 

provision of this subpart, or any 

application of a provision, is stayed or 

determined to be invalid by a court of 

competent jurisdiction, it is the 

Secretary’s intent that the remaining 

provisions shall continue in effect. The 

Secretary believes this is appropriate 

because the regulations are largely 

procedural and that if specific sections 

were stricken the Secretary would still 

be able to render decisions in 

compliance with statutory authority. 

V. Public Comments on the Proposed 

Rule and Response to Comments 

Individual comments were separated 

and categorized after the closing of the 

comment period on March 1, 2023. Over 

95 different entities commented on part 

151, including Tribal, State, and local 

governments, industry organizations, 

and individual citizens. In total, the 

submissions were separated into 650 

individual comments. Generally, around 

81 comments were exclusively 

supportive, 114 were not supportive, 

and 455 were neutral or provided 

general support along with constructive 

feedback on how the rule may be 

improved. All public comments 

received in response to the proposed 

rule are available for public inspection. 

To view all comments, search by Docket 

Number ‘‘BIA–2022–0004’’ in https://

www.regulations.gov. The AS–IA has 

decided to proceed to the final rule 

stage after careful consideration of all 

comments. The AS–IA’s responses to 

significant comments that were not 

supportive, neutral, or provided general 

support along with constructive 

criticism are detailed below. No 

responses are provided for comments 

that were exclusively supportive. 

Indian Tribes 

In general, Tribes who commented 

were supportive of the proposed part 

151 regulations. However, many Tribes 

included constructive criticism. 

Commenting Tribes appreciated the 

Department’s inclusion of community 

benefits and presumptions for approval, 

the Department’s efforts to reduce 

burdensome requirements, the new 

tiered categories of acquisitions, and the 

establishment of timelines. 

While Tribes were generally 

supportive, some comments raised 

concerns. For example, some Tribes 

were concerned about applying 

presumptions to applications for the 

acquisition of land outside of an 

applicant Tribe’s aboriginal territory. 

Some Tribes also suggested that Tribal 

governments should have the same 

opportunity to comment on acquisitions 

that State and local governments do. 

Other Tribes advocated for more 

flexibility around land descriptions. 

State and Local Government 

State and local governments that 

commented opposed the regulations on 

multiple fronts, including questioning 

the authority of the Department to 

implement portions of the regulations 

under the Administrative Procedure Act 

(APA), caselaw, and principles of 

federalism. State and local governments 

were particularly concerned that the 

presumptions afforded Tribal applicants 

as well as the removal of certain 

provisions including: the scrutiny 

applied to Tribal benefits in relation to 

State and local government concerns as 

the distance of the land at issue from a 

Tribe’s reservation or trust land 

increased; the requirement that Tribes 

demonstrate the need for additional 

land; and the requirement that Tribes 

supply business plans for review. They 

also opposed a perceived decreased role 

for State and local governments in the 

process, such as eliminating the 

consideration of jurisdictional problems 

or potential conflicts over land use and 

the removal of solicitations for State and 

local governments to comment on onreservation acquisitions. State and local 

governments also provided detailed 

suggestions for how the Department 

should notify State and local 

governments. This rulemaking comports 

with the APA and is within 

contemplated congressionally delegated 

authority of the Assistant Secretary— 

Indian Affairs. Multiple Federal courts 

of appeals have rejected claims that 

section 5 of the IRA violates the 

nondelegation doctrine or that it 

otherwise violates constitutional 

concepts of federalism. See Mich. 

Gambling Opposition v. Kempthorne, 

525 F.3d 23, 30 (D.C. Cir. 2008); Carcieri 

v. Kempthorne, 497 F.3d 15 (1st Cir. 

2007), rev’d on other grounds, Carcieri 

v. Salazar, 555 U.S. 379 (2009); South 

Dakota v. U.S. Dep’t of Interior, 487 

F.3d 548 (8th Cir. 2007); South Dakota 

v. U.S. Dep’t of Interior, 423 F.3d 790 

(8th Cir. 2005); United States v. Roberts, 

185 F.3d 1125, 1137 (10th Cir. 1999); 

see also Confederated Tribes of Siletz 

Indians v. United States, 110 F.3d 688, 

698 (9th Cir. 1997) (stating in dicta that 

the land into trust power is a valid 

delegation). 

§ 151.1 What is the purpose of this 

part? 

Comment. Many Tribes see this as a 

necessary revision because ‘‘the fee-totrust regulations normally do not apply 

to transactions in these categories 

because of the legal framework 

governing them,’’ including acquisition 

of fee land by Tribes and acquisitions 

mandated by statute. They suggest that 

numbering this section may improve 

comprehension—like so: ‘‘This part 

does not cover: (1) acquisition of land 

by individual Indians and Tribes in fee 

simple even though such land may, by 

operation of law, be held in restricted 

status following acquisition; (2) 

acquisition of land mandated by Federal 

law; (3) acquisition of land in trust 

status by inheritance or escheat; or (4) 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86231 

transfers of land into restricted fee 

status unless required by Federal law.’’ 

• Response: The Department agrees 

that clarifying when the Secretary will 

apply the part 151 regulations is an 

important addition to the final rule. The 

final rule clarifies that this regulation 

does not govern acquisitions mandated 

by Federal law. The Department has 

issued guidance concerning such 

mandatory acquisitions, including the 

guidance found in the FTT Handbook, 

and does not believe regulations are 

necessary at this time. The formatting in 

the section is consistent with the rest of 

the rule therefore the Department 

declines to make the suggested 

formatting revision. 

Comment. One Tribe noted that the 

regulations do not set out the 

procedures in a comprehensive manner. 

The Tribe suggested that this section 

reference all applicable procedures, 

letting applicants know exactly what 

will be applied and when. 

• Response: Specific instructions 

regarding the fee-to-trust process are 

contained in guidance outside the 

regulation (e.g., FTT Handbook). 

However, policy and guidance change 

over time, including where it is located, 

so the regulation does not identify 

specific policy and guidance 

documents. BIA will be updating the 

FTT Handbook to reflect the changes 

made in this final rule. 

Comment: One Tribe suggested that 

consideration should be given to the 

terms ‘‘trust’’ and ‘‘restricted’’ for 

clarity. 

• Response: The final rule is 

sufficiently clear and articulates the 

scope of the rule without the need for 

additional definitions. 

Comment: One commenter suggested 

that this section include a baseline 

process for fee-to-trust, including a 

provision stating that acquisitions 

mandated by Federal law be exempt. 

The commenter also pointed out that 

Federal courts have no authority to 

acquire land in trust for Indians without 

some action by the Congress. 

• Response: The final rule makes 

clear that the new regulations govern 

discretionary decisions to acquire land 

into trust. The FTT Handbook clarifies 

how the Department will process 

acquisitions mandated by Federal law. 

Comment: One Tribe noted a concern 

that the proposed regulations may 

unintentionally advantage some Tribes 

at the expense of others. The Tribe 

suggested an addition to this section 

clarifying that neither the definitions 

and terminology in the part 151 

regulations nor the findings and 

decisions made in the applications of 

the part 151 regulations are intended to 

be binding for purposes of other 

decision-making processes conducted 

under other authorities, including, 

without limitation, 25 U.S.C. 2719 and 

25 CFR part 292 (part 292). 

• Response: The Department agrees 

that the definitions and terminology are 

not intended to be binding for other 

decision-making processes, including 

those made under 25 U.S.C. 2719 and 

part 292 but disagrees that the rule 

requires additional clarification of that 

point. 

Comment: One Tribe suggested that 

this section specify that the Secretary’s 

land acquisition regulations should 

apply to mandatory and discretionary 

acquisitions to the extent that it does 

not conflict with Federal legislation 

resolving land claims. 

• Response: The Department 

acknowledges that Congress often 

addresses both mandatory and 

discretionary trust acquisitions as part 

of legislation. The regulations as written 

apply solely to discretionary 

acquisitions provided for in legislation. 

The requirements for discretionary 

acquisitions set forth in this rule, and 

mandatory acquisitions set forth in the 

FTT Handbook, aim to ensure the 

Department’s compliance with 

applicable requirements, including the 

National Environmental Policy Act 

(NEPA) and the Departmental Manual at 

602 DM 2. 

§ 151.2 How are key terms defined? 

Contiguous 

Comment: Several commenting Tribes 

proposed the addition of ‘‘navigable 

rivers’’ to the definition of ‘‘contiguous’’ 

as follows: ‘‘Contiguous means two 

parcels of land having a common 

boundary notwithstanding the existence 

of non-navigable waters or navigable 

rivers or a public road or right-of-way 

and includes parcels that touch at a 

point.’’ One Tribe suggested adding the 

following phrase: ‘‘Contiguous shall 

include two parcels of land separated by 

navigable water if the navigable water is 

subject to the Tribe’s treaty or other 

fishing rights and each parcel is 

accessible by water.’’ 

• Response: Under the rule, the 

process for approving acquisitions 

contiguous to an Indian reservation has 

been simplified. The definition of 

contiguous is intended to formalize 

long-standing BIA practice with respect 

to evaluating contiguity and is 

sufficiently clear to guide the 

Department and applicants regarding 

whether a parcel is contiguous. There of 

course will be fact patterns that require 

additional analysis. The Department 

declines to add ‘‘navigable rivers’’ to the 

definition because in some instances 

such a change could result in parcels 

that are a significant distance from one 

another being considered contiguous. 

Comment: One Tribe requested more 

clarity on what constitutes a ‘‘public 

road’’ for this definition. The Tribe also 

suggested that the Department address 

whether there is a distinction between 

‘‘contiguous’’ and ‘‘adjacent.’’ 

• Response: The Department agrees 

that the nature of a public road could be 

dramatically different depending on the 

location and may require additional 

analysis. Separation of two parcels by a 

public road does not necessarily render 

the parcels noncontiguous for purposes 

of part 151. The definition is sufficiently 

clear to guide the Department and 

applicants regarding whether a parcel is 

contiguous. There of course will still be 

instances that require additional 

analysis. We acknowledge that the terms 

‘‘adjacent’’ and ‘‘contiguous’’ are similar 

but have slightly different meanings, 

i.e., adjacent generally means close to or 

near something rather than sharing a 

common boundary. The Department 

believes the definition of contiguous is 

sufficient to cover lands that are 

contiguous and no separate definition of 

adjacent is necessary. 

Comment: Another Tribe urged the 

Department to clarify that land accepted 

into trust as ‘‘contiguous’’ pursuant to 

25 CFR 151.10 is ‘‘contiguous’’ for 

gaming purposes under 25 CFR 292.2. 

• Response: The definition of 

contiguous is consistent with the part 

292 definition, and in general should 

result in a similar analysis; however, 

determinations made under part 151 

and part 292 are separate and rely on 

different statutory authority. 

Comment: Other Tribes also requested 

clarification on whether the definition 

should include two or more parcels of 

land and whether parcels with common 

corners or those separated only by a 

road or right of way are included. 

• Response: The use of the phrase 

two ‘‘or more’’ parcels could cause 

confusion where, for example, parcels 

may share more than one border. To 

avoid confusion, the definition was not 

changed. This definition includes 

parcels that touch at their corners. 

Separation of two parcels by a public 

road or right-of-way does not 

necessarily render the parcels 

noncontiguous for purposes of part 151. 

There of course will still be instances 

that require additional analysis. 

Comment: One Tribe recommended 

the addition of the following definition 

for ‘‘adjacent’’ property to § 151.2: 

Adjacent means two parcels of land 

connected by natural, social, cultural, or 

economic ties, though they are not 


ddrumheller on DSK120RN23PROD with RULES2
86232 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

contiguous, as determined by any of the 

following factors: (1) the physical 

distance between parcels, (2) the ease of 

travel between parcels, (3) the parcels 

sharing the same natural characteristics 

or supporting the natural functions of 

each other, (4) the cultural connection 

between the parcels, or (5) the parcels 

being part of a larger economic plan or 

strategy. 

• Response: The definition of 

contiguous is sufficient to guide the 

analysis. There of course will still be 

instances that require more in-depth 

review. The rule only uses the term 

contiguous. We acknowledge that the 

terms ‘‘adjacent’’ and ‘‘contiguous’’ are 

similar but have slightly different 

meanings, i.e., adjacent generally means 

close to or near something rather than 

sharing a common boundary. The 

Department believes the definition of 

contiguous is sufficient to cover lands 

that are contiguous and no separate 

definition of adjacent is necessary. 

Indian Land 

Comment: One Tribe pointed out that 

including a definition of the term Indian 

land could lead to confusion in the 

future because the term ‘‘Indian Lands’’ 

is a term from the Indian Gaming 

Regulatory Act (IGRA), which is not at 

issue here and suggested the definition 

might not be necessary. 

• Response: The definition clarifies 

that Indian land as it relates to the part 

151 regulations includes those held in 

trust or restricted status. IGRA provides 

a separate definition for the term Indian 

lands which is applicable in the gaming 

context. See 25 U.S.C. 2703(4). The 

Department believes there is sufficient 

statutory clarity and distinction for how 

the term is used in the IGRA context 

such that the part 151 definition will 

not lead to confusion. The part 151 

definition should not be used in the 

gaming context or to determine gaming 

eligibility; it is for the purpose of land 

into trust. 

Indian Reservation or Tribe’s 

Reservation 

Comment: Some Tribes would like 

clarification on whether ‘‘The Secretary 

will consider all historic Oklahoma 

Reservations consistent with McGirt’’ is 

intended to include all Oklahoma Tribes 

or just the Five Tribes. 

• Response: This provision applies to 

all Oklahoma Tribes. 

Comment: One Tribe suggested that 

the principles of McGirt are broadly 

applicable. Therefore, the regulations’ 

language should apply in Oklahoma and 

to any place where historic reservations 

have yet to be reaffirmed. The Tribe 

suggested the following language: 

(1) That area of land set aside for the 

use and occupancy of an Indian Tribe(s) 

by treaty, statute, executive order, or 

Secretarial proclamation or order, 

including both formal and informal 

reservations as well as dependent 

Indian communities, allotments, and 

restricted fee lands; 

(2) That area of land over which a 

Tribe is recognized by the United States 

as having governmental jurisdiction; or 

(3) That area of land constituting the 

former reservation of a Tribe as defined 

by the Secretary, including: 

(a) In Oklahoma, where there has been 

no final determination affirming the 

Tribe’s reservation; or 

(b) Elsewhere, where there has been a 

final determination the Tribe’s 

reservation has been diminished or 

disestablished. 

• Response: The proposed language 

in section (1) could, in some instances, 

go beyond what is intended to be 

included within the definition. The 

Department therefore declines to 

include the proposed revision. The 

proposed language in section (2) is part 

of the proposed rule and articulates the 

general definition that an Indian 

reservation or Tribe’s reservation, for 

purposes of part 151, includes those 

lands over which the Tribe is 

recognized by the United States as 

having governmental jurisdiction. 

Specific to Oklahoma, the rule provides 

for a concise statement consistent with 

the McGirt decision as well as agency 

precedent. See, e.g., Shawano County, 

Wisconsin v. Acting Midwest Regional 

Director, BIA, 53 IBIA 62 (2011) 

(because there was a judicial 

determination that the Tribe’s 

reservation was disestablished and the 

parcels were within the original 

boundaries of the disestablished 

reservation, BIA’s consideration under 

the ‘‘on-reservation’’ criteria was 

appropriate). The Department therefore 

declines to adopt the proposed language 

in section (3). 

Individual Indian 

Comment: One Tribe pointed out a 

possible error in the definition of 

Individual Indian, noting that it requires 

that an individual be both (1) a 

descendent of an enrolled Tribal 

member, and (2) personally have lived 

on a reservation in 1934. Under this 

definition, only a person above the age 

of 88 (the youngest possible age to have 

been alive in 1934) would be eligible. 

The Tribe suggested the following 

revision to proposed § 151.2(c)(2): ‘‘any 

person who is a descendent of an 

enrolled Tribal member who, on June 1, 

1934, was physically residing on an 

Indian reservation.’’ 

• Response: This language is adapted 

from the IRA, 25 U.S.C. 5129, and is 

sufficiently clear to guide the 

Department and applicants. The 

Department agrees the second category 

in the definition constitutes a closed 

class of individuals consistent with Sol. 

Op. M–37054, ‘‘Interpreting the Second 

Definition of ‘Indian’ In Section 19 of 

the Indian Reorganization Act of 1934’’ 

(Mar. 9, 2020). 

Comment: One commenter stated that 

the third definition of Individual Indian 

appears to be based on racial or ethnic 

criteria and asked what processes and 

procedures are used to determine the 

degree of Indian blood? 

• Response: The language is taken 

from the IRA and the process for 

determining eligibility under the third 

definition is separate from the part 151 

regulations. 

Initial Indian Acquisition 

Comment: While some Tribes 

supported the definition of Initial 

Indian acquisition, others pointed out 

that where land has been acquired or 

held in trust, but for various reasons, the 

United States no longer holds land in 

trust for a Tribe, it is not technically an 

initial acquisition. 

• Response: The Department believes 

the definition provides sufficient clarity 

that an initial acquisition applies to 

Tribes with no land currently held in 

trust status and no revision is necessary. 

Interested Party 

Comment: Several Tribes raised 

questions regarding terms within the 

definition of Interested party, including 

what constitutes a legally protected 

interest and to what extent such an 

interest must be affected to meet the 

definition. There was general concern 

that the definition was overly broad. 

• Response: The Department weighed 

these concerns and looked at the effect 

of adopting a narrower definition of the 

term Interested party. Interested party is 

used in § 151.13 to define those parties 

entitled to notice of a decision and any 

appeal rights. The commenters’ 

suggestion to narrow the definition 

unnecessarily limits those parties who 

should receive notice of the decision. As 

a result, the substance of the final rule 

is the same as the proposed rule. We 

note that it is possible for a party to 

satisfy the definition of Interested party 

yet have no right to appeal a decision, 

i.e., have no standing to do so. The 

Department also notes that providing 

notice to a party does not confer legal 

standing to bring a challenge. 

Comment: Some commenting Tribes 

suggested that the Department clarify 

that an interested party must show its 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86233 

legally protected interests would be 

adversely affected by a decision. 

• Response: The 25 CFR part 2 (part 

2) regulations further define those 

parties adversely affected by a decision. 

For purposes of part 151, it is not 

necessary for an interested party to be 

adversely affected, instead an interested 

party is one with a legally protected 

interest affected by a decision. The 

Department has not adopted the specific 

language suggested by the commenter, 

nor added a definition of legally 

protected interest. 

Comment: Several Tribes suggested 

merging the definition of Interested 

party in proposed § 151.2 with part 2. 

One Tribe included a detailed 

description of how the language from 

part 2 could be incorporated into the 

part 151 regulations. 

• Response: The part 151 Interested 

party definition closely resembles the 

part 2 regulation, wherein interested 

party is defined as ‘‘a person or entity 

whose legally protected interests are 

adversely affected by the decision on 

appeal or may be adversely affected by 

the decision of the reviewing official.’’ 

See Proposed Rule, Appeals from 

Administrative Actions, 87 FR 73688 

(Dec. 1, 2022). The part 2 regulation 

further defines those entities adversely 

affected by a decision. For purposes of 

part 151, it is not necessary for an 

interested party to be adversely affected 

but instead that they have a legally 

protected interest affected by a decision. 

We note that it is possible for a party to 

satisfy the definition of Interested party 

and yet have no right to appeal a 

decision, i.e., have no standing to do so. 

The Department also notes that 

providing notice to a party does not 

confer legal standing to bring a 

challenge. 

Comment: One Tribe recommended 

the following definition for Interested 

party: ‘‘any person, organization or 

other entity who can establish a legal, 

factual or property interest in a 

determination and who requests in 

writing to the decision maker an 

opportunity to submit comments or 

evidence or to be kept informed of 

general actions regarding a specific 

application or action. In addition to 

showing a legal interest, an interested 

party needs to demonstrate an 

individualized right or interest—some 

interest distinct from any other 

members of the public that they have 

been adversely affected in a concrete 

and particularized way.’’ 

• Response: The Department has not 

adopted the specific language suggested 

by the commenter because it limits the 

definition to those adversely affected. 

The final rule is written to aid in 

understanding which parties will 

receive written notice of a decision not 

to identify those parties that have 

standing to challenge the decision in an 

administrative appeal. We note that it is 

possible for a party to satisfy the 

definition of Interested Party and yet 

have no right to appeal a decision, i.e., 

have no standing to do so. The 

Department also notes that providing 

notice to a party does not confer legal 

standing to bring a challenge. 

Comment: Another Tribe said that 

appellants that do not or would not, due 

to the decision, exercise jurisdiction 

over or have the right to use the 

property subject to appeal, should lack 

standing to bring an appeal. The Tribe 

also asserted that status as a government 

does not confer standing to bring such 

an appeal and that an appellant’s basis 

for appeal should not be purely 

economic. 

• Response: The Department weighed 

these concerns and looked at the effect 

of adopting a narrower definition. The 

term Interested party is used in § 151.13 

to define those parties entitled to notice 

of a decision. The commenter’s 

suggestion is too narrow and eliminates 

parties that should receive notice of the 

decision if made known to the decision 

maker. As a result, the substance of the 

final rule is the same as the proposed 

rule. We note that it is possible for a 

party to be an interested party yet not 

have the right to appeal a decision i.e., 

lack standing to do so. The Department 

also notes that providing notice to a 

party does not confer standing. 

Comment: Some Tribes expressed 

concern that the proposed language 

opens the possibility that if a group of 

neighbors opposes and appeals a final 

decision on a fee-to-trust application, 

the acceptance of their appeal may give 

them the perception that they have a 

legally protected interest. They further 

recommended that the definition track 

the language used in § 151.13, that an 

‘‘interested party’’ must have ‘‘made 

themselves known, in writing, to the 

official, prior to a decision being made.’’ 

• Response: While agreeing with the 

premise, the Department believes that 

definition of Interested party is 

sufficient to identify the parties entitled 

to notice of a decision and that issues 

of standing are more appropriately 

addressed as part of the appellate 

authority vested in the agency and the 

Federal courts. The suggested revision 

to the definition would complicate 

§ 151.13 because the term Interested 

party is also used to identify appeal 

periods for ‘‘unknown interested 

parties’’ provided notice via 

publication. 

Marketable Title 

Comment: Multiple commenting 

Tribes expressed support for the new 

proposed definition of ‘‘marketable 

title.’’ One Tribe pointed out a possible 

grammatical mistake in the definition of 

marketable title: ‘‘to cover’’ as it appears 

to disagree with the preceding clause. 

They recommended substituting ‘‘to 

cover’’ with ‘‘that covers’’ instead. 

• Response: The Department agrees 

and has made this change in the final 

rule. 

Comment: One Tribe requested that 

marketable title be clarified as including 

all easements and rights of way of 

record, including any shared 

maintenance and other agreements that 

are part of those interests of record. 

• Response: The definition serves to 

protect the United States from acquiring 

land in trust with title infirmities a 

reasonable buyer would not accept. In 

general, most easements, rights of way 

of record and shared maintenance 

agreements of record are acceptable but 

still must be evaluated on a case-by-case 

basis. 

Preliminary Title Opinion 

Comment: One Tribe commented that 

preliminary title opinions (PTO) should 

be defined as non-privileged 

communications by the Solicitor 

regarding the existing title status. 

Because proposed § 151.8 requires a 

PTO as part of a complete application, 

the Tribe said it would not make sense 

to include privileged material. The lack 

of clarity in the current regulations 

causes unnecessary delays. 

• Response: The PTO is a lawyerclient privileged communication 

between the Office of the Solicitor and 

BIA. That said, any exceptions to title 

that must be met prior to acquisition 

will be communicated to the applicant. 

Tribal Homelands 

Comment: Some Tribes requested a 

definition of ‘‘Tribal Homelands,’’ as the 

term is used throughout the regulations. 

Tribes noted that specific criteria to 

establish Tribal Homelands would help 

avoid confusion or conflict in instances 

where Tribes have overlapping 

historical territories. 

• Response: The IRA authorizes the 

Secretary to acquire lands ‘‘for the 

purpose of providing land for Indians.’’ 

The regulations articulate the 

Department’s general support for the 

restoration of Tribal homelands 

consistent with the IRA’s purpose of 

providing land for Indians and, as such, 

Tribal homelands is not a term of art 

that requires definition. The Department 

agrees that it can be difficult to 


ddrumheller on DSK120RN23PROD with RULES2
86234 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

demarcate a Tribe’s historical territory 

and that it may overlap with the 

historical territory of other Tribes, but 

adding a requirement that the 

Department render ‘‘Tribal homeland’’ 

determinations in connection with land 

into trust decisions would unnecessarily 

lengthen and complicate the review 

process. The Department therefore 

declines to include a definition of 

‘‘Tribal homelands’’ in the final rule. 

Tribe 

Comment: One Tribe commented that 

while the List Act contains recognized 

Tribes eligible for IRA benefits, it also 

contains Tribes not eligible for IRA 

benefits. 

• Response: The Department agrees 

that the availability of IRA section 5 feeto-trust authority depends on more than 

just Federal recognition under the List 

Act. The definition of federally 

recognized Tribe is still useful; 

however, in that acquisitions are limited 

to federally recognized Tribes. 

Other 

Comment: Many Tribes expressed 

support for inclusion of definitions for 

the terms ‘‘Fee Interest,’’ ‘‘Fractionated 

Tract,’’ ‘‘Secretary,’’ ‘‘Restricted Land,’’ 

‘‘Trust Land or Land in Trust Status,’’ 

and ‘‘Tribe.’’ 

• Response: The final rule will 

include the same definitions as the 

proposed rule. 

§ 151.3 What is the Secretary’s land 

acquisition policy? 

Comment: Many commenting Tribes 

expressed support for the land 

acquisition policy. One Tribe also 

encouraged the Department to apply 

§ 151.3(b) as broadly as possible. 

• Response: The broad policy 

statement in § 151.3 is grounded in the 

statutory text and authority of the IRA 

which the Secretary will actively 

implement to the extent permissible. 

Comment: One Tribe referred to the 

land acquisition policy as 

‘‘inappropriately limited and does not 

describe the policy articulated by the 

Indian Reorganization Act (IRA),’’ 

codified at 25 U.S.C. 5108. 

Consequently, the Tribe recommended 

that the proposed rule use section 5 of 

the IRA as the authority for the policy. 

• Response: The Secretary’s land 

acquisition policy articulated in § 151.3 

relies on IRA Section 5 authority 

codified at 25 U.S.C. 5108 and provides 

a broad range of purposes for acquiring 

land that meet the intent of the IRA. 

Therefore, the substance of the final rule 

is the same as the proposed rule. 

Comment: A few Tribes commented 

that the land acquisition policy should 

include language like the following: 

‘‘When the Secretary determines that 

the acquisition of the land will further 

Tribal interests by . . . advancing 

environmental justice for Tribal 

communities that have been 

disproportionately impacted by climate 

change, pollution, dumping of 

industrial waste, and other 

environmentally destructive practices, 

by helping them to secure safe and 

usable land.’’ Another commenter 

suggested that the policy is an exercise 

of the Secretary’s fiduciary obligation 

and should therefore be informed by the 

Department’s desire to address the 

devastating effects of the Federal 

Government’s treaty, allotment, and 

termination periods and policies, as 

well as decisions beyond a Tribe’s 

control that threaten the safety of 

current Tribal land. 

• Response: The Department 

appreciates the commenter’s additional 

basis for the Secretary to acquire land 

into trust. However, we decline to 

incorporate the additional language 

because § 151(b)(3) already includes 

broad language allowing the Secretary to 

acquire land in trust status if it is ‘‘for 

other reasons the Secretary determines 

will support Tribal welfare.’’ 

Comment: Several Tribes noted the 

importance of including explicit 

language stating that the land 

acquisition policy is intended to 

‘‘protect sacred sites and Tribal cultural 

resources, establish or maintain 

conservation areas, burial grounds or 

cemeteries, consolidate land ownership 

to strengthen Tribal governance over 

reservation lands and reduce 

checkerboarding, protect treaty or 

subsistence rights, and facilitate Tribal 

self-determination, economic 

development or Indian housing.’’ It was 

further noted that many Tribes are 

seeking new acquisitions to bury 

ancestors being repatriated or excavated 

from their resting places due to 

development outside of Tribal lands. 

• Response: The Department agrees 

that the purposes listed by the 

commenters are important 

considerations in the discretionary land 

into trust process. Section 151.3(b)(3) 

articulates these broad purposes as 

reasons the Secretary may acquire land 

into trust and includes the broad 

statement that includes ‘‘for other 

reasons the Secretary determines will 

support Tribal welfare.’’ 

Comment: One Tribe proposed adding 

the phrase ‘‘increasing a Tribe’s 

resilience to climate change’’ as another 

reason for the Secretary to approve an 

acquisition. 

• Response: The Department agrees 

that there are purposes not specifically 

identified that may be important 

considerations in the discretionary land 

into trust process. Section 151.3(b)(3) 

articulates that the Secretary may 

acquire land into trust ‘‘for other 

reasons the Secretary determines will 

support Tribal welfare.’’ 

Comment: Several Tribes 

recommended § 151.3(b)(3) be revised to 

read, in pertinent part: ‘‘. . . if the 

acquisition will further Tribal interests 

by establishing a land base or protecting 

Tribal homelands, protecting sacred 

sites or cultural resources and practices, 

establishing or maintaining 

conservation or environmental 

mitigation areas, consolidating land 

ownership, acquiring land lost through 

allotment, reducing checkerboarding, 

protecting rights secured by treaty, 

Executive Order, or other Federal or 

subsistence rights, or facilitating selfdetermination, economic development, 

or Indian housing.’’ These same Tribes 

also suggested making this change to all 

sections where this language appears: 

§§ 151.9(b), 151.10(b), 151.11(b), and 

151.12(b). 

• Response: The Department agrees 

that Tribes may have rights beyond 

those secured under treaty. Section 

151.3(b)(3) however is not exhaustive 

and articulates that the Secretary may 

acquire land into trust ‘‘for other 

reasons the Secretary determines will 

support Tribal welfare.’’ 

Comment: Some non-Tribal entities 

asserted that the Secretary was applying 

a blanket policy, stating ‘‘the 

Department appears to draw little or no 

differentiation between vastly different 

types of potential trust acquisitions, 

including those with considerably 

different land uses, which invariably 

result in dramatically different impacts 

to communities.’’ 

• Response: The broad policy 

statement in § 151.3 is grounded in the 

statutory text and authority of the IRA. 

NEPA requires Federal agencies to 

examine the environmental effects of 

proposed actions before making a 

decision. The Department’s NEPA 

process requires the BIA to examine 

environmental and related social and 

economic effects. The use of the land 

identified in an application will dictate 

the level of environmental review that is 

appropriate to comply with the 

Department’s obligations under NEPA. 

Comment: One Tribe commented that 

language should be added to make clear 

that even though an acquisition may be 

authorized under Federal law there may 

nevertheless be other Federal law or 

binding agreements (e.g., Tribal-State 

compacts) that prohibit the Secretary 

from acquiring land into trust. 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86235 

• Response: Whether a separate 

agreement (e.g., a gaming compact) 

constrains the Secretary’s authority is a 

fact specific analysis. For that reason, 

the Department declines to add the 

suggested language to the final rule. 

Comment: One Tribe commented that 

lands acquired within a Tribe’s 

reservation or Tribal consolidation area 

should be deemed to be reservation land 

without further action. This would 

avoid any question of whether an onreservation acquisition requires a 

Reservation Proclamation. 

• Response: A reservation 

proclamation is a separate action under 

the authority of section 7 of the IRA. 

The Department notes, however, that an 

area of land over which a Tribe is 

recognized by the United States as 

having governmental jurisdiction (e.g., 

lands held in trust for the Tribe) are 

considered reservation under the § 151.2 

definition of Indian reservation or 

Tribe’s reservation. There is no 

requirement that there be a formal 

proclamation before a parcel may be 

considered Indian reservation or the 

Tribe’s reservation for purposes of a 

land acquisition under part 151. The 

final rule provides for a concise 

statement and the Department declines 

to make the suggested change. 

§ 151.4 How will the Secretary 

determine that statutory authority exists 

to acquire land in trust status? 

Comment: Numerous Tribes 

expressed appreciation for the clarity 

about how the Department will ensure 

that it has statutory authority to acquire 

land into trust status. One supportive 

commenter suggested that the 

Department elaborate on or provide a 

non-exhaustive list of ‘‘other forms of 

evidence.’’ Another commenter 

suggested that the Department include 

‘‘Evidence of determinations by 

appropriate Federal officials that a Tribe 

or Tribal members were eligible for 

benefits under the IRA.’’ One Tribe 

expressed support for proposed 

§ 151.4(a)(4) (now renumbered as 

§ 151.4(a)(5)), which gives no legal force 

or effect to past disavowals of a 

jurisdictional relationship by executive 

officials. Another Tribe suggested that 

evidence of treaty negotiations, nonratified treaties, and termination 

legislation should all be considered 

conclusive rather than presumptive 

evidence. Another Tribe suggested that 

this section specifically include Federal 

legislation settling land claims as 

conclusive evidence where the 

legislation provides for mandatory or 

discretionary acquisitions. Another 

Tribe suggested that Federal efforts to 

conduct an accept or reject vote under 

section 18 of the IRA, even where no 

vote was held, should be treated as 

conclusive evidence. 

• Response: Section 151.4 includes 

non-exhaustive lists of evidence to meet 

the conclusive and presumptive 

standards, as well as a third category for 

making a determination in the absence 

of conclusive or presumptive evidence. 

The ‘‘other forms of evidence’’ category 

is intended to be a catch-all category 

that allows the Secretary to give 

appropriate weight to forms of evidence 

not identified in the lists of 

‘‘conclusive’’ or ‘‘presumptive’’ 

evidence. 

The Department finds that Federal 

legislation settling tribal land claims is 

indicative that a Tribe was under 

Federal jurisdiction in or before 1934, 

therefore the Department has included 

such settlements as presumptive 

evidence. The Department finds that 

evidence of Federal efforts to conduct 

elections under section 18 of the IRA, 

even where no vote was held, should be 

treated as probative evidence of Federal 

jurisdiction in the absence of conclusive 

or presumptive evidence. 

Presumptive evidence is rebuttable 

and, even where presumptive evidence 

exists, the Department will engage in a 

detailed review of the historical record. 

If there is evidence that a Tribe was not 

under Federal jurisdiction in 1934, the 

Department will review all available 

evidence in concert to determine 

whether, as a whole, the evidentiary 

record supports a finding that the Tribe 

was under Federal jurisdiction in 1934. 

Comment: One Tribal community 

requested that the Department publish a 

list of Tribes that met these thresholds 

so that future applicants on that list 

could reference that publication. 

Another commenter suggested that the 

rules clarify that proposed § 151.4(c) 

applies to all Tribes with favorable 

‘‘under Federal jurisdiction’’ 

determinations and not just those 

‘‘eligible under section 5 of the IRA.’’ A 

Tribe suggested that the Department 

clarify that past unfavorable ‘‘under 

Federal jurisdiction’’ determinations 

receive no precedential effect, and that 

the Department will review such 

applicants’ future applications under 

this newly articulated standard. 

• Response: Each Tribe is notified 

when they receive a positive ‘‘under 

Federal jurisdiction’’ determination and 

that analysis is maintained by the 

Department for future applications. 

Tribes that receive a positive 

determination from the Department will 

not need a future ‘‘under Federal 

jurisdiction’’ analysis for subsequent 

fee-to-trust applications. Such prior 

determinations remain valid under the 

proposed revision. If a Tribe has 

received a negative ‘‘under Federal 

jurisdiction’’ determination from the 

Department prior to the issuance of the 

final rule, the Tribe may request a new 

determination under § 151.4. Because 

the Department provides notice as 

described here, the Department declines 

to provide a separate publication of 

Tribes that have met the threshold. 

Comment: A Tribe requested 

clarification that proposed § 151.4 

‘‘incorporates existing case law’’ and 

that the tests described have been 

‘‘repeatedly upheld by the Federal 

courts’’ and suggested language to 

further clarify how the IRA and related 

laws are treated under this section. 

• Response: Section 151.4 is based on 

the legal analysis articulated in Sol. Op. 

M–37029, ‘‘The Meaning of ‘Under 

Federal Jurisdiction’ for Purposes of the 

Indian Reorganization Act,’’ as well as 

the Secretary’s experience applying 

IRA’s first definition of ‘‘Indian’’ under 

section 19 in the almost fifteen years 

since the Supreme Court’s decision in 

Carcieri v. Salazar, 555 U.S. 379 (2009). 

The Department agrees that the legal 

analysis and the types of evidence 

articulated in Sol. Op. M–37029 have 

been upheld as a reasonable 

interpretation of the IRA in Federal 

district and circuit courts. As such, 

future determinations made under 

§ 151.4 criteria will benefit from the 

jurisprudence developed around Sol. 

Op. M–37029. Because § 151.4 is 

sufficiently clear on this point, the 

Department declines to make the 

suggested revision. 

Comment: Several Tribes believe that 

the current language in § 151.4, as it 

relates to the acquisitions of trust lands 

owned in fee by an Indian, was replaced 

without providing additional details or 

clarity for these types of acquisitions. 

Therefore, they suggested that the text 

from the existing § 151.4 be maintained 

and further clarified in the new 

proposed section to account for this 

issue. 

• Response: Existing § 151.4, 

‘‘Acquisitions in trust of lands owned in 

fee by an Indian,’’ was deleted as 

unnecessary, since the rule already 

provides for such acquisitions and no 

additional process or information was 

established. 

Comment: A commenting town 

suggested that the presumption that 

Tribes acknowledged through 25 CFR 

part 83 (part 83) were ‘‘under Federal 

jurisdiction’’ in 1934 should be 

eliminated, or a process should be 

established where this rebuttable 

presumption may be challenged. Others 

believe this provision is ‘‘arbitrary and 

capricious’’ and should be withdrawn, 


ddrumheller on DSK120RN23PROD with RULES2
86236 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

noting that Federal acknowledgment 

materials reviewed under part 83 could 

show instead that the Tribe was under 

State jurisdiction in 1934. 

• Response: The final rule revises 

proposed § 151.4(a)(2)(vi)), and adds a 

new provision, § 151.4(a)(4), to confirm 

that the Secretary may rely on evidence 

submitted in a 25 CFR part 83 

proceeding to demonstrate the assertion 

of Federal jurisdiction in or before 1934. 

Depending on the nature of the 

evidence, it may be considered 

presumptive or probative, consistent 

with § 151.4(a)(2) and (3). 

At the outset, the Department 

reiterates the principle that there is no 

temporal limitation on the term 

‘‘recognized’’ in 25 U.S.C. 5129, and 

therefore a Tribe need not have been 

recognized by the Federal Government 

in 1934 to meet the IRA’s definition of 

Indian. See Confederated Tribes of the 

Grande Cmty. Of Oregon v. Jewell, 830 

F. 3d 552, 561 (D.C. Cir. 2016). The 

question and analysis of whether the 

Federal Government acknowledges a 

Tribe under part 83 is a wholly different 

question than whether Federal 

jurisdiction existed over a Tribe in 1934. 

See id. at 565 (‘‘Whether the government 

acknowledged Federal responsibilities 

toward a Tribe through a specialized, 

political relationship is a different 

question from whether those 

responsibilities in fact existed. And as 

the Secretary explained, we can 

understand the existence of such 

responsibilities sometimes from one 

Federal action that in and of itself will 

be sufficient, and at other times from a 

‘‘variety of actions when viewed in 

concert.’’); Carcieri v. Salazar, 555 U.S. 

379, 398 (2009) (Breyer, J., concurring) 

(noting that a Tribe may have been 

‘‘ ‘under Federal jurisdiction in 1934’— 

even though the Department did not 

know it at the time.’’). 

By relying on evidence that supports 

both recognition under part 83 and an 

‘‘under Federal jurisdiction’’ 

determination for purposes of part 151, 

the Department is in no way suggesting 

that these inquiries are equivalent. 

Rather, when the evidence gathered as 

part of the part 83 process includes 

evidence that the Federal Government 

had asserted jurisdiction over a Tribe in 

or before 1934, such evidence is 

relevant and the Secretary may consider 

it as part of her analysis under § 151.4. 

The Department declines to establish 

a new process for challenges to an 

‘‘under Federal jurisdiction’’ analysis, as 

the process is internal to the Department 

and can be challenged through 

administrative appeal or Federal 

litigation after final decisions are issued. 

Comment: One Tribe provided 

suggested edits on how treaty 

negotiations should be treated under 

these regulations and proposed that 

§ 151.4(a)(2)(i) be moved to § 151.4(a)(1) 

‘‘as conclusive evidence of Federal 

jurisdiction.’’ The Tribe applauded the 

elevated treatment of ‘‘[c]ontinuing 

existence of treaty rights . . .’’ from 

presumptive evidence to conclusive 

evidence. 

• Response: The Department declines 

to accept the commenter’s suggestion to 

move evidence of treaty negotiations 

from presumptive to conclusive 

evidence. The Department has generally 

treated evidence of treaty negotiations 

in concert with other supporting 

evidence to evaluate whether a Tribe 

was under Federal jurisdiction in 1934. 

Comment: One non-Tribal commenter 

urged the rule to be limited to within 

reservation boundaries and, where 

outside those boundaries, to require 

consistency with enumerated policies. 

This commenter requested: examples of 

evidence in the regulations that would 

indicate Federal jurisdiction did not 

exist in 1934; and the elimination of any 

reference to ‘‘climate change’’ 

acquisitions. 

• Response: The Department declines 

to accept the commenter’s suggestions. 

Under the IRA, the Secretary’s 

discretionary authority to acquire land 

in trust status is not limited to onreservation acquisitions. The 

Department believes that it is 

unnecessary to list evidence that may 

indicate Federal jurisdiction did not 

exist and declines to eliminate 

references to climate change. 

Comment: Alaska Tribes suggested 

specific language exempting them from 

the under Federal jurisdiction analysis. 

• Response: This is addressed in the 

Sol. Op. M–37076 and the revised FTT 

Handbook. Because Alaska Tribes are 

eligible to have land taken into trust 

under 25 U.S.C. 5119 and a separate 

stand-alone definition of Indian in the 

IRA, it is not necessary that Alaska 

Tribes show they were under Federal 

jurisdiction and § 151.4 does not apply. 

Comment: One Tribe requested that 

the Department further clarify what 

types of legislation are included in 

legislation enacted ‘‘after 1934 making 

the IRA applicable to the Tribe’’ within 

the meaning of § 151.4(b). 

• Response: There are several statutes 

under which Congress expanded the 

Secretary’s authority to take land into 

trust under the IRA. Determining 

whether a statute extended this 

authority to a specific Tribe, thereby 

eliminating the need for an under 

Federal jurisdiction analysis, requires a 

close examination of the statute’s 

language and purpose. Because each 

statute varies in the language used, it is 

not feasible to identify in the final rule 

which types of legislation make the IRA 

and its fee-to-trust provisions 

applicable. One specific example of a 

subsequent statute extending section 5 

of the IRA, and further underpinning 

the identification of a section 18 

election as conclusive evidence, is the 

ILCA. In the 1980s, Congress amended 

the IRA through ILCA, 25 U.S.C. 2202, 

to extend section 5 to all Tribes who 

voted in section 18 elections, 

notwithstanding the outcome of those 

elections. 

Comment: Some Tribes questioned 

whether the under Federal jurisdiction 

analysis provided for in § 151.4 would 

be applied to a mandatory acquisition. 

• Response: Per § 151.1, the part 151 

regulations do not apply to the 

acquisition of land mandated by Federal 

law. Therefore, no under Federal 

jurisdiction determination is required 

for a mandatory acquisition. 

§ 151.5 May the Secretary acquire land 

in trust status by exchange? 

Comment: One Tribe commented that 

§ 151.5 only contemplates a situation 

where a fee land-owning party and an 

individual Indian or Tribe might 

exchange lands with each other. 

However, the Tribe noted that another 

important instance involving an 

exchange of lands occurs when the 

small reservations of some Tribes, 

including the commenting Tribe, are 

bounded by and contiguous to other 

Federal lands, such as National Forest 

and Bureau of Land Management lands. 

For the commenting Tribe to add lands 

to their Reservation, they must acquire 

Federal lands through a land exchange 

with a Federal agency. Consequently, 

the Tribe requested that the following 

language be added to proposed § 151.5: 

‘‘The Secretary may acquire land in 

trust status on behalf of an individual 

Indian or Tribe by exchange under this 

part if authorized by Federal law and 

within the terms of this part. The 

secretary may directly acquire land to be 

conveyed to an individual Indian or 

Tribe pursuant to a Federal land 

exchange upon the individual Indian or 

Tribe authorizing the direct transfer of 

title from the Federal agency involved 

in the land exchange to the United 

States in trust for the individual Indian 

or Tribe. The disposal aspects of an 

exchange are governed by part 152 of 

this title, as applicable.’’ 

• Response: The purpose of the 

regulations is to detail the process the 

Secretary will use in acquiring lands in 

trust. It is beyond the scope of these 

regulations to grant substantive rights 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86237 

without statutory authority and the 

Department declines to make the 

suggested revision. 

§ 151.6 May the Secretary approve 

acquisition of a fractional interest? 

Comment: While one Tribe 

commented that they have no problem 

with the proposed changes, another 

objected to the revisions in proposed 

§ 151.6. While the objecting Tribe 

appreciated the Department’s 

replacement of the term ‘‘buyer’’ with 

‘‘applicant’’ (which they believe better 

reflects the nature of such acquisitions), 

they expressed concern that the 

Department has taken no action to 

expand opportunities for the acquisition 

of a fractional interest through the 

discretionary process. The Tribe 

believes that both Federal law and the 

general principles of self-determination 

favor the idea that Tribal governments 

should be free to purchase fractional 

interests in their members’ restricted 

Indian land over time and have such 

land taken into trust. Accordingly, they 

recommend revising proposed § 151.6 to 

use ‘‘including, but not limited to’’ 

language prior to the list of 

circumstances under which the 

Secretary may approve a fractional 

interest, signaling that the regulatory list 

is not exhaustive. In the alternative, 

they also recommended supplementing 

this section with additional categories 

that may extend opportunities for such 

acquisitions to Tribal governments that 

may be otherwise excluded under the 

current scheme. 

• Response: The regulations are 

intended to guide the applicant and the 

agency in determining which fractional 

interests in lands are eligible for trust 

acquisition. The list is not intended to 

be exhaustive, and the enumerated 

categories covers the range of applicable 

conditions authorizing such 

acquisitions. Therefore, the Department 

has changed the language prior to the 

list of circumstances from ‘‘only if’’ to 

‘‘including when.’’ 

§ 151.7 Is Tribal consent required for 

nonmember acquisitions? 

Comment: Many Tribes requested that 

the ‘‘consent provision’’ be clarified to 

state that it does not apply to Tribes 

with shared jurisdictions. 

• Response: The Department 

understands that in certain instances 

Congress may have overridden the 

consent requirement provided for in the 

rule; however, the Department views the 

consent requirement as consistent with 

the IRA in that it supports Tribal selfgovernance. 

§ 151.8 What documentation is 

included in a trust acquisition package? 

Comment: Most comments expressed 

overwhelming support for the new 120- 

day time frame for decision, although 

many commenting Tribes also suggested 

that the regulations include a provision 

that an application will be deemed 

approved if the Secretary fails to meet 

this deadline or allow Tribe’s recourse 

if a decision is not issued within the 

prescribed time frame. 

• Response: The 120-day time frame 

for a decision is not intended to 

establish an independent cause of action 

but instead ensures the agency issues a 

decision on a completed application as 

efficiently and expeditiously as 

practicable. Because there are certain 

prerequisites that must be completed 

prior to acquiring land into trust (e.g., 

environmental analysis under NEPA) a 

deemed approved provision would be 

inappropriate. 

Comment: A few Tribes commented 

that the changes to proposed 

§ 151.8(a)(5) impose no deadline on the 

Department to prepare a PTO to render 

the application ‘‘complete’’, which 

subsequently they assert makes the 120- 

day time frame illusory. To address this, 

they suggested that the proposed 

regulations be changed to permit a Tribe 

to prepare the PTO and require the 

Solicitor’s Office to review and approve 

it within 30 days of receipt from the 

Tribe. 

• Response: The FTT Handbook will 

include a time frame for completing the 

PTO but the Department notes it is 

outside BIA’s authority to impose 

deadlines on other Departmental 

bureaus or offices. 

Comment: Several Tribes also noted 

that the proposed changes to 

§ 151.8(a)(4) impose no deadline on the 

Department to conduct a public review 

process under the National 

Environmental Policy Act (NEPA) and 

issue a final Environmental Assessment 

(EA) or an Environmental Impact 

Statement (EIS) document to render an 

application ‘‘complete.’’ They suggested 

that where no categorical exclusion is 

issued, the proposed regulation should 

be changed to require the Department to 

name the applicant Tribe as a 

cooperating agency in a NEPA public 

review process; begin that process no 

later than 30 days after the Department 

receives a specific request from the 

Tribe; and conclude any EA process 

within six months and any EIS process 

within 12 months. 

• Response: Because each application 

contains different circumstances, the 

time for completing each NEPA 

document is different and cannot be 

mandated. The Secretary will grant 

Tribal requests for cooperating agency 

status where applicable and 

appropriate. 

Comment: One Tribe suggested that 

the Department consider adding 

additional clarification to the proposed 

regulations concerning the applicant’s 

required contribution to the Secretary’s 

environmental review under proposed 

§ 151.8(a)(4). 

• Response: As written, this section 

maintains flexibility regarding the type 

of information the applicant must 

submit to comply with NEPA. 

Comment: One Tribe requested that 

the Department make clear that ‘‘many 

of the application requirements may be 

carried out simultaneously and need not 

proceed in sequential order as they are 

listed in the proposed rule.’’ 

• Response: The FTT Handbook will 

specify the process for consideration of 

a Tribe’s application. The Department 

notes that the fee-to-trust process is not 

always the same for each parcel. As 

described in § 151.8(b), the Secretary 

will issue a decision on an application 

‘‘within 120 calendar days after 

issuance of the notice of a complete 

acquisition package.’’ 

Comment: Several Tribes noted that 

under proposed § 151.8(a)(3)(i), there is 

a requirement for a Tribe to ‘‘include a 

statement of the estate to be acquired,’’ 

but that this is not also mentioned for 

metes and bounds and survey 

descriptions. 

• Response: The requirement for a 

Tribe to ‘‘include a statement of the 

estate to be acquired’’ has been added to 

the metes and bounds survey 

description in the renumbered 

§ 151.8(a)(4)(ii). 

Comment: One Tribe noted that 

requests for additional information 

under proposed § 151.8(a)(8) that delay 

the acceptance of an application as 

complete may greatly extend the 

timeline. The Tribe suggests that 

proposed § 151.8(a)(8) should be 

adjusted to read as follows: ‘‘Any 

additional information or action 

reasonably requested by the Secretary in 

writing if warranted by unique and 

unusual circumstances in the specific 

application.’’ 

• Response: The Department notes 

the section to which the Tribe refers 

now appears at proposed § 151.8(a)(9). 

The Department declines to adopt the 

proposal. This section maintains 

flexibility to address the circumstances 

of each application and the need to 

ensure that the Secretary’s final decision 

is legally sufficient. 

Comment: The Tribe also suggested 

that the Department maintain metrics 

following the final adoption of the 


ddrumheller on DSK120RN23PROD with RULES2
86238 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

proposed rule, showing the entire 

timeline from original submission to 

approval (or denial) and examining 

whether significant delays occur before 

acceptance. 

• Response: The Department 

maintains the official records of each 

application, including evidence of the 

timeline from original submission to 

decision. This information allows 

examination of delays prior to 

acceptance. 

Comment: A Tribal consortium 

requested more flexibility in 

environmental issues and suggested that 

Tribes be given the option to assume 

liability for environmental issues that 

remain on land being taken into trust. 

• Response: In certain instances, the 

Department can accept land into trust 

with an encumbrance, lien, or infirmity 

when the Tribe agrees to enter into an 

indemnification agreement in favor of 

the BIA. While not expressly stated in 

the regulations, the ability exists with 

the Department on a case-by-case basis. 

Comment: Some commenting Tribes 

noted concerns over fee-to-trust 

acquisitions for gaming, suggesting that 

such applications be denied when 

gaming on the land in question would 

be prohibited by IGRA. 

• Response: An application to take 

land in trust specifically for gaming 

purposes cannot proceed for gaming 

purposes if the land is determined to be 

ineligible for gaming pursuant to IGRA. 

§ 151.9 How will the Secretary 

evaluate a request involving land within 

the boundaries of an Indian reservation? 

Comment: Several Tribes suggested 

that the Department remove ‘‘any 

requirement to show the BIA has the 

capacity to carry out its responsibilities 

if the land was placed in trust’’ 

proposed § 151.9(a)(4)). 

• Response: Because trust land 

acquisitions are discretionary, the 

Secretary must demonstrate support for 

their decision in the record. To ensure 

a complete evaluation, the Secretary 

will consider whether the BIA is 

equipped to fulfill its trust 

responsibilities for land acquired in 

trust and to provide the Federal 

programs and services that it makes 

available on trust lands. 

Comment: One Tribe commented that 

the Department should clarify what is 

meant by ‘‘great weight’’ under 

§ 151.9(b). 

• Response: Section 151.9(b) 

acknowledges that certain purposes for 

land acquisition are particularly salient 

in light of the purposes of the IRA and 

the Secretary’s land acquisition policy 

as articulated in § 151.3. The Secretary 

will apply great weight to applications 

pursing these listed purposes by 

recognizing, and appropriately 

considering, the particular importance 

of acquiring land for these purposes. 

The Secretary would thus need to take 

the importance of the proposed 

acquisition into consideration in 

reviewing a request and would need to 

address this in any disapproval 

decision. 

Comment: One Tribe commented that 

while it welcomes a presumption in 

favor of approval for requests for 

acquisition of land within and 

contiguous to reservation boundaries, 

the proposed presumption should be 

clarified. 

• Response: The Department has 

revised § 151.9(c) to clarify that the 

Secretary presumes that an acquisition 

within the boundaries of a reservation 

will: (1) further at least one of the Tribal 

interests described in § 151.9(b); (2) that 

adverse impacts to local governments’ 

regulatory jurisdiction, real property 

taxes, and special assessments will be 

minimal; and (3) that the application 

should therefore be approved. The 

revised language clarifies which factors 

the presumption applies to and when 

the Secretary presumes an acquisition 

will be approved. 

Comment: One Tribe commented that 

if the effects on a State or local 

government’s regulatory jurisdiction, 

real property taxes, and special 

assessments will be minimal, then the 

burden shifts to those opposing the 

acquisition to either prove that the 

acquisition does not meet one of the 

criteria listed at § 151.9(b) or that the 

acquisition would adversely impact 

State or local governments. 

• Response: The Department has 

revised § 151.9(d) to include a comment 

period for State and local governments 

to submit written comments to rebut the 

presumption that the acquisition will 

have minimal adverse impacts to 

regulatory jurisdiction, real property 

taxes and special assessments. 

Comment: One Tribe believes the 

policies afforded great weight under 

proposed § 151.9(b) may unduly limit 

the needs and uses for which Tribes 

may acquire land under the IRA. The 

Tribe suggests adding the following to 

the IRA’s purpose: ‘‘for the purpose of 

providing land for the Indians,’’ along 

with the prior listing of ‘‘housing’’ and 

‘‘economic development’’ needs. The 

Tribe also suggests a rewording of the 

‘‘no change in use’’ category. 

• Response: The regulation does not 

limit the needs or uses for which a Tribe 

may acquire land within the boundaries 

of its reservation. The Department 

intended that § 151.9(b) be broad by 

including the broad purpose of 

‘‘facilitating self-determination.’’ 

Section 151.9(b) states that the Secretary 

will give great weight to acquisitions 

that ‘‘will further Tribal interests by 

establishing a Tribal land base or 

protecting Tribal homelands.’’ 

Establishing a Tribal land base or 

protecting Tribal homelands is 

equivalent to the IRA’s purpose of 

‘‘providing land for Indians.’’ Section 

151.9(b) also includes housing and 

economic development as a purpose. 

Comment: One Tribe strongly 

suggested that proposed § 151.9(a)(3) be 

removed entirely, asserting that it 

second-guesses the Tribal applicant’s 

self-governance decisions and is not 

necessary under NEPA. Another Tribe 

suggested that it is unclear what must be 

submitted to comply with proposed 

§ 151.9(a)(3), specifically concerning 

NEPA compliance implications 

referenced in the ‘‘Summary of 

Changes’’ in the Federal Register. 

Several Tribes also suggested edits to 

proposed § 151.9(b) that account for 

Tribes with rights tied to executive 

orders or other Federal laws. 

• Response: It is important for the 

Secretary to understand the current 

proposed use of the land to be acquired. 

The use of the land will dictate the level 

of environmental review that is 

appropriate to comply with the 

Department’s obligations under NEPA. 

NEPA requires Federal agencies to 

examine the environmental effects of 

proposed actions before making a 

decision. The Department’s NEPA 

process requires the BIA to examine 

environmental and related social and 

economic effects. In some instances, 

they also require the Department to seek 

public comment. We do not agree that 

this undermines Tribal self-governance. 

In conducting an analysis under NEPA, 

the Department is not rejecting a Tribes 

reason for wanting the Department to 

accept the land in trust. But rather, it is 

reviewing the impacts of such an 

acquisition. 

Comment: Several counties, towns, 

and States expressed opposition to 

proposed § 151.9, specifically 

expressing concern over how notice is 

afforded to States and local 

governments. Collectively, they asserted 

that: (1) it is not clear what will be 

included in the notice, (2) whether the 

notice is merely a courtesy, given the 

presumption to acquire on-reservation 

lands, or whether they will be given an 

opportunity to comment; and (3) 

whether the new presumptions for 

acquiring land, when coupled with the 

removal of the consideration of 

jurisdictional problems, potential 

conflicts of land use, the removal of 

considering the effects on a State and 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86239 

local government’s regulatory 

jurisdiction, real property taxes, and 

special assessments, and the expressed 

needs of Tribal applicants for additional 

land, are lawful. One commenter also 

suggested that the term ‘‘State and local 

governments with regulatory 

jurisdiction over the land to be 

acquired’’ could result in a lack of any 

notice where jurisdiction is complicated 

or debatable, because the Department 

makes its own interpretation on that 

question. 

• Response: Section 151.9(d) has been 

revised to solicit comments from State 

and local governments to rebut the 

presumption that an acquisition within 

the reservation boundary will have 

minimal adverse impacts to regulatory 

jurisdiction, real property taxes, and 

special assessments. The Department 

also notes and confirms that any 

comments received on an application, 

even if not requested, will be considered 

as part of the overall decision-making 

process. While not included in the 

regulation, the BIA will publish 

guidance in the FTT Handbook 

outlining how notice will be provided. 

Comment: Several Tribes commented 

that the Department should clarify in 

the preamble or the final rule that ‘‘State 

and local governments only have 

regulatory jurisdiction over onreservation fee land owned by nonIndians.’’ One Tribe also urged the 

Department to not allow State and local 

comments on their own to overcome ‘‘a 

decision to approve a trust acquisition.’’ 

• Response: The scope of State and 

local jurisdiction over fee lands within 

the boundaries of Indian reservations is 

outside the scope of these regulations 

and, for that reason, the Department 

declines to adopt the recommendation. 

With respect to the role of State and 

local comments, the decision to approve 

or disapprove an application will be 

based on whether the application 

complies with the regulatory criteria 

and other applicable statutory or 

regulatory requirements. The 

Department will consider comments 

submitted on pending applications. 

§ 151.10 How will the Secretary 

evaluate a request involving land 

contiguous to the boundaries of an 

Indian reservation? 

Comment: One Tribe suggested that 

‘‘great weight’’ should be afforded 

contiguous acquisitions ‘‘within the 

original boundary of the Tribal 

applicant’s reservation.’’ 

• Response: The Department 

understands the policy reasons for the 

requested change. However, the process 

for determining the ‘‘original boundary’’ 

could add significant complexity and 

time to the acquisition process. Because 

the intent behind this rulemaking is to 

provide a more efficient process, the 

Department declines to make this 

change. 

Comment: Another Tribe suggested 

the Department should give greater 

weight to the presumptions in proposed 

§ 151.10(c) and (d) when evaluating 

State and local comments for impacts to 

their regulatory jurisdiction, real 

property taxes, and special assessments. 

• Response: The final rule already 

provides for a presumption in favor of 

approval in § 151.10(c) and a 

presumption that the Tribe will benefit 

from the acquisition in § 151.10(d). No 

additional weight is necessary to 

facilitate the intent of the rulemaking. 

Comment: A Tribe also suggested that 

the Department should clarify that State 

and local comments alone are 

insufficient to ‘‘overcome a decision to 

approve a trust acquisition’’. 

• Response: The Department agrees 

that State and local governments do not 

have veto authority over the decisions to 

acquire land in trust contemplated by 

this part. The Secretary will consider 

comments received on pending 

applications consistent with this part. 

Comment: This same Tribe also 

suggested technical edits to harmonize 

proposed Section 151.10(b) with the 

proposed changes to § 151.3(b)(3). 

• Response: The final rule was 

revised to harmonize the purposes for 

acquiring land into trust listed in 

§§ 151.10(b) and 151.3(b)(3). 

Comment: Another Tribe stated that 

the Department should not even solicit 

State and local government comments, 

which they assert is consistent with the 

process described for on-reservation 

acquisitions. 

• Response: It is appropriate for the 

Secretary to consider comments 

received from State and local 

governments for acquisitions evaluated 

under this part. The Department also 

notes that the final rule has been revised 

to provide an opportunity for State and 

local governments to provide comments 

for acquisition within reservation 

boundaries. The Secretary’s 

consideration of comments received on 

pending applications ensures they have 

a complete view of the complexities 

surrounding an acquisition. It also 

provides an opportunity for the 

applicant to address concerns raised as 

part of the process, thereby reducing the 

likelihood of legal challenges when 

those concerns are considered prior to 

the acquisition. 

Comment: One Tribe suggested that 

when the Department receives and 

reviews State and local government 

comments, it should be both mindful 

and give great weight to the fact that the 

local Tribe and the Department ‘‘are 

already providing services to the 

contiguous parcel.’’ 

• Response: As with the existing 

regulation, the Secretary will consider 

all factors relevant to understanding the 

potential impact on regulatory 

jurisdiction, real property taxes, special 

assessment and services to a particular 

parcel as identified by the commenting 

State or local government. While the 

final rule does not give a specific weight 

to comments and concerns raised by 

local governments or States, it is not 

true that it gives them no weight. The 

Secretary will consider any and all 

comments and concerns raised by local 

communities or States in making a 

decision to acquire land in trust for a 

Tribe. 

Comment: One Tribe opposed the 

proposed changes to § 151.10(a)(3), 

stating that allowing the Secretary to 

evaluate the purposes for which a Tribe 

will use its own land within its own 

reservation is inconsistent with selfdetermination policy. 

• Response: The Secretary needs to 

know the purpose for which the land is 

to be used to determine the appropriate 

level of environmental review to comply 

with NEPA. NEPA requires Federal 

agencies to examine the environmental 

effects of proposed actions before 

making a decision. The Department’s 

NEPA process requires the BIA to 

examine environmental and related 

social and economic effects. In some 

instances, they also require the 

Department to seek public comment. We 

do not agree that this undermines Tribal 

self-governance. In conducting an 

analysis under NEPA, the Department is 

not rejecting a Tribes reason for wanting 

the Department to accept the land in 

trust. But rather, it is reviewing the 

impacts of such an acquisition. 

Comment: Additionally, the same 

Tribe opposed proposed § 151.10(a)(4), 

stating that it is ‘‘outdated and 

perpetuates a callous and abusive 

Federal policy discarded decades ago 

because of its moral bankruptcy.’’ 

• Response: Acquisitions under 

section 5 of the IRA are discretionary 

and have been subject to Federal 

resource considerations since the IRA 

was first enacted. When the United 

States takes land into trust, it exercises 

trust responsibilities as to those lands 

and extends Federal programs and 

services to those lands. Therefore, in 

exercising her discretion, the Secretary 

must decide whether BIA is equipped to 

assume these fiduciary obligations and 

discharge the additional responsibilities 

associated with the acquisition. Section 

151.10(a)(4) is a legitimate consideration 


ddrumheller on DSK120RN23PROD with RULES2
86240 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

as part of the acquisition process 

Department declines to make the 

suggested revision. 

Comment: Another Tribe submitted 

comments seeking a specific tax 

exemption under the regulations to 

address a longstanding fee-to-trust issue 

they have been dealing with. 

• Response: The purpose of the 

regulations is to detail the process the 

Secretary will use in acquiring lands in 

trust. It is beyond the scope of these 

regulations to grant substantive rights 

without statutory authority. 

Comment: Another Tribe requested a 

time frame for when BIA must provide 

the Tribal applicant a copy of any 

comments received from State or local 

governments (suggesting a 10-day 

window to provide such copies to the 

Tribal applicant). Another Tribe 

requested that other affected Tribes be 

included in the notice for comment sent 

to State and local governments. 

• Response: The BIA is in the process 

of updating the FTT Handbook to reflect 

the changes made by this final rule. The 

FTT Handbook is a more appropriate 

location to include any intermediate 

time frames designed to ensure 

compliance with the broader 120-day 

time frame to issue a decision on a 

complete acquisition package. 

Comment: One Tribe suggested a new 

category of ‘‘adjacent’’ lands be added to 

the ‘‘contiguous’’ acquisition analysis to 

account for that category of lands that 

are currently ‘‘off-reservation’’ lands, 

but that should be afforded greater 

weight as lands that are ‘‘closely 

connected or intrinsically linked to 

lands held in trust’’ for the applicant 

Tribe. 

• Response: The Department 

acknowledges that lands adjacent to a 

reservation may be closely connected to 

or linked to lands held in trust; 

however, the definition of contiguous 

provides sufficient clarity to determine 

the appropriate criteria to use to 

evaluate the application. The 

Department also notes that establishing 

a standard for what constitutes 

‘‘adjacent’’ would be difficult 

considering the differences in geography 

between Tribal land holdings. Applying 

such a standard would also add a layer 

of complexity and time to the fee-totrust process, which would undercut the 

purpose of this rulemaking to make the 

process more efficient. 

Comment: Another Tribe suggested 

that the Department clarify that 

‘‘contiguous’’ acquisitions are also 

‘‘contiguous’’ for gaming purposes 

under 25 CFR 292.2 (the Tribe offered 

draft edits for consideration). 

• Response: The definition of 

contiguous is consistent with the part 

292 definition, and in general should 

result in a similar analysis; however, 

part 151 and part 292 determinations 

are separate and rely on different 

statutory authority. 

Comment: Several Tribes also 

suggested edits to proposed § 151.10(b) 

that account for Tribes with rights tied 

to executive orders or other Federal 

laws. 

• Response: The final rule does not 

relieve the Department of its obligations 

to adhere to any relevant executive 

order or any other Federal laws. The 

final rule provides sufficient clarity, and 

thus no additional language is 

necessary. 

Comment: One Tribe commented that 

while it welcomed a presumption in 

favor of approval for requests for 

acquisition of land within and 

contiguous to reservation boundaries, 

the proposed presumption in §§ 151.9 

and 151.10 should be further clarified as 

they believe it is not clear which of the 

criteria in these sections an applicant 

Tribe would no longer need to 

affirmatively prove, and what an 

opposing party would need to produce 

or persuade to overcome the 

presumption. The Tribe consequently 

proposed the following change to 

proposed § 151.10: ‘‘When reviewing a 

Tribe’s request for land within the 

boundaries of an Indian reservation, the 

Secretary presumes that the acquisition 

will further the Tribal interests 

described above in subsection (b), and 

adverse impacts to local governments’ 

regulatory jurisdiction, real property 

taxes, and special assessments will be 

minimal, therefore the application 

should be approved.’’ 

• Response: This language has been 

incorporated into §§ 151.9(c), 151.10(c), 

and 151.12(c). 

Comment: Several State and local 

governments opposed the proposed 

changes in § 151.10 and expressed 

concern about whether the new 

presumptions for acquiring land, when 

coupled with the removal of the 

consideration of jurisdictional 

problems, potential conflicts of land 

use, and the expressed needs of Tribal 

applicants for additional land, are 

lawful. Commenters’ specific legal 

concerns include that ‘‘BIA will also not 

consider as a factor possible 

jurisdictional and land use conflicts that 

may arise between local governments 

and the Tribes’’ which may ‘‘lead to 

costly and time-consuming litigation for 

both Tribes and local governments on 

jurisdictional and land use issues’’; that 

the removal of the consideration of 

jurisdictional problems ‘‘would have the 

effect of obfuscating the legitimate 

function and role of county 

governments, which are responsible for 

land use planning and the provision of 

important local services’’; and would 

generate ‘‘conflicts that go straight to the 

heart of the considerations Congress 

intended the Department to weight in 

exercising its judgment under the Indian 

Reorganization Act of 1934 (IRA) to 

approve or deny a request to take land 

into trust.’’ 

• Response: We disagree with the 

premise that including presumptions 

would make the acquisitions unlawful. 

Congress has provided the Secretary 

with the authority to acquire land into 

trust for Tribes. See Act of June 18, 

1934, Public Law 73–383, 48 Stat. 984 

(codified as amended at 25 U.S.C. 5101 

through 5129). Congress enacted the 

IRA to ‘‘establish machinery whereby 

Indian Tribes would be able to assume 

a greater degree of self-government, both 

politically and economically.’’ Morton 

v. Mancari, 417 U.S. 535, 542 (1972). 

Restoration of Tribal homelands through 

trust acquisition is pivotal to achieving 

the Tribal self-government, selfdetermination, and economic goals of 

the statute. See, e.g., Match-E-Be-NashShe-Wish Band of Pottawatomi Indians 

v. Patchak, 567 U.S. 209, 226 (2012) 

(describing section 5 as the ‘‘capstone’’ 

of the Indian Reorganization Act’s land 

provisions). The addition of a 

presumption in favor of acquisitions 

within reservation boundaries is thus 

consistent with the goals of the IRA of 

Tribal land restoration and 

consolidation. The statute does not 

include any presumption; however, it is 

within the Secretary’s discretion to 

include one that supports the overall 

goals of the statute. Commentors, 

including State and local governments, 

may submit comments and evidence for 

the Secretary’s consideration seeking to 

rebut the presumption. Upon receipt of 

a comment from any interested party, 

including a State or local government, 

the Department would then be 

positioned to consider any jurisdictional 

and land use conflicts that may arise, to 

consider function and role of county 

governments as they relate to a putative 

acquisition, and to consider all 

viewpoints in exercising its delegated 

authority under the Indian 

Reorganization Act. 

Comment: They also expressed 

concerns about the 30-day comment 

period being too short to meaningfully 

comment on acquisitions, as well as the 

need for criteria defining how notice 

will be provided to State and local 

governments. 

• Response: We disagree. In the 

Department’s experience, 30 days is 

sufficient time to provide comments on 

pending applications. The 30-day 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86241 

comment period was codified in the 

1995 part 151 regulations. The preamble 

to that regulation noted that the 

timeframe was based on BIA’s past 

experience with informal consultation. 

See 60 FR 32874, 32877 (June 23, 1995). 

The Department continues to believe, 

based on its experience, that 30 days is 

sufficient. Indeed, the information 

requested by the Secretary is more likely 

retrievable within 30 days using current 

information technology and electronic 

means. 

Comment: Separately, several of these 

commenters noted that State and local 

comments are not afforded ‘‘great 

weight’’ and assert that they should be. 

• Response: The Department 

considers all comments but declines to 

accept the proposal which would 

specify the weight that must be given to 

these comments. Through the IRA and 

other Federal statutes authorizing trust 

acquisitions, Congress has authorized 

the Secretary to acquire land in trust for 

Indian Tribes and individual Indians, 

subject to the requirements set forth in 

the statutes. The regulations 

contemplate that the Secretary will 

consider comments submitted by State 

and local governments on pending 

applications as part of the decisionmaking process. The Department 

declines to expand or elevate the role of 

State or local governments in this 

process. 

Comment: Additionally, a State 

Attorney General proposed language for 

§ 151.10(d) that prescribes a process for 

providing notice to State and local 

governments and what that notice 

should include. 

• Response: The specific manner for 

providing notice and seeking comment 

from third parties is better suited to 

internal guidance documents such as 

the BIA’s Fee-To-Trust Handbook. The 

process proposed by the commenter 

would have the effect of slowing down 

the processing of applications and 

greatly expand the role of States and 

municipalities far beyond what is in the 

current regulations. The Department 

therefore declines to make the suggested 

revision in the proposed regulation. The 

Department will consider this proposed 

language as internal guidance 

documents are revised, including the 

Fee-To-Trust Handbook. 

Comment: One State commented that 

they believed the ‘‘presumption that 

contiguous lands be approved’’ is 

unclear, i.e., there is ‘‘no description of 

the weight of the presumption.’’ The 

State also noted that it is unclear 

whether the presumption is rebuttable 

and—if so—how is it rebutted? 

• Response: Section 151.10(c) 

clarifies that the Secretary will presume 

that the acquisition ‘‘will further the 

Tribal interests described in paragraph 

(b) of this section, and adverse impacts 

to local governments’ regulatory 

jurisdiction, real property taxes, and 

special assessments will be minimal, 

therefore the application should be 

approved.’’ The revised language 

clarifies which factors the presumption 

applies to and when the Secretary 

presumes an acquisition will be 

approved. Presumptions are rebuttable 

by providing evidence that does more 

than simply support an alternative 

conclusion. Commentors, including 

State and local governments, may 

submit comments and evidence for the 

Secretary’s consideration seeking to 

rebut the presumption. The Secretary 

will consider such evidence in making 

a decision on the Tribe’s application. 

§ 151.11 How will the Secretary 

evaluate a request involving land 

outside of and noncontiguous to the 

boundaries of an Indian reservation? 

Comment: One Tribe suggested that 

the Department give ‘‘great weight’’ to 

off-reservation acquisitions ‘‘within the 

aboriginal or ‘ceded’ lands of the Tribal 

applicant.’’ One Tribe proposed that the 

Secretary consider the community 

benefits and give the greatest weight to 

the interests and concerns of Tribes 

with aboriginal ties to the proposed 

location.’’ 

• Response: Determining the location 

and extent of a Tribe’s aboriginal lands 

often requires a lengthy review of 

applicable law and fact. Such a change 

is inconsistent with the intent to 

streamline the fee-to-trust process. 

Comment: Several Tribes suggested 

that local Tribal governments receive 

notice of a Tribe’s application and be 

given an opportunity to provide 

comments. 

• Response: Given the differences in 

geography between all Tribal land 

holdings, it would be difficult to 

establish a national regulatory standard 

that defines ‘‘local Tribal governments’’ 

in a consistent and equitable manner, 

therefore the Department declines to 

define ‘‘local Tribal governments’’ for 

the purpose of notice and comment. 

Tribes may, however, submit comments 

to the Department on an application that 

will be considered by the Department as 

part of the application review process. 

Comment: A Tribal consortium 

suggested that ‘‘given Alaska’s unique 

history, land acquisitions within Alaska 

Native Village Statistical Areas should 

be treated as ‘on-reservation 

acquisitions’ and not off-reservation 

acquisitions.’’ 

• Response: Initial trust acquisitions 

in Alaska will be analyzed under 

§ 151.12 if they are the first trust 

acquisition for an Alaska Tribe. Because 

very little land is held in trust for 

Alaska Tribes, this likely will be the 

standard for almost all initial 

acquisitions for Alaska Tribes. After the 

initial acquisition, however, Alaska 

acquisitions will be evaluated using the 

criteria articulated in this final rule. 

This supports a uniform application of 

the land acquisition process in Alaska 

and the lower 48 States. 

Comment: One Tribe suggested that 

the Department clarify that State and 

local government comments alone are 

insufficient to overcome a decision to 

approve a trust acquisition. 

• Response: State and local comments 

opposing an off-reservation acquisition 

do not serve as a veto. 

Comment: Several Tribes expressed 

support for retaining the 30-day 

comment period, requiring that those 

comments be provided to Tribal 

governments for rebuttal, and that States 

and local governments be limited to 

commenting only on impacts to their 

regulatory jurisdiction, real property 

taxes, and special assessments. One 

Tribe requested that a timeframe be 

included for when BIA must provide a 

Tribal applicant with a copy of any 

comments received from State or local 

governments (suggesting a 10-day 

window). 

• Response: We decline to limit the 

subject areas any party may comment on 

regarding a specific application. We also 

believe that timelines for providing a 

Tribal applicant a copy of any 

comments received are better addressed 

in the BIA Fee-To-Trust Handbook. 

Comment: Several Tribes suggested 

edits to proposed § 151.11(b) that 

account for Tribes with rights tied to 

Executive orders or other Federal laws. 

• Response: The final rule does not 

relieve the Department of its obligations 

to adhere to any relevant Executive 

order or any other Federal laws. 

Comment: Several State, local and 

Tribal governments opposed the 

removal of the current § 151.11(b), 

which they assert increases scrutiny the 

further from a reservation the land is 

while giving greater weight to State and 

local government concerns. In a related 

comment, one Tribe suggested adding a 

presumption of approval for land 

located outside of and noncontiguous to 

an Indian reservation. 

• Response: In enacting the IRA, 

Congress did not limit trust acquisitions 

to within a certain distance from a 

Tribe’s reservation. The Department 

recognizes, however, that off-reservation 

acquisitions may present different 

issues than on-reservation or contiguous 

acquisitions. The existing § 151.11(b) 


ddrumheller on DSK120RN23PROD with RULES2
86242 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

unnecessarily applies heightened 

scrutiny to off-reservation acquisitions 

based on distance alone. There are 

numerous factors other than distance 

from a Tribe’s existing reservation that 

should be considered as part of an offreservation acquisition. Therefore, the 

Secretary will not presume that an offreservation application will be approved 

but will consider the location of the 

land along with the other criteria in 

§ 151.11 before issuing a decision. In 

addition, this sentence was edited for 

clarity and succinctness: ‘‘[t]he 

Secretary presumes that the Tribal 

community will benefit from the 

acquisition without regard to distance of 

the land from a Tribe’s reservation 

boundaries or trust lands,’’ to ‘‘[t]he 

Secretary presumes that the Tribe will 

benefit from the acquisition.’’ 

Comment: Several commenters found 

the proposed language ‘‘in reviewing 

such comments, the Secretary will 

consider the location of the land’’ in 

§ 151.11(c) vague. A local county stated 

that ‘‘that there are far greater 

considerations than location to 

consider, such as the financial impact 

on local governments, local taxing 

authorities and local taxpayers as lands 

are proposed for acquisition as trust 

lands.’’ A county opposed the purported 

removal of consideration of 

‘‘jurisdiction problems and potential 

conflicts of land use’’ from 

consideration. 

• Response: The sentence was edited 

for clarity to: ‘‘[i]n reviewing such 

comments, the Secretary will consider 

the location of the land and potential 

conflicts of land use.’’ The Secretary 

will consider potential conflicts of land 

use for proposed trust acquisition 

located outside of and non-contiguous 

to a Tribe’s reservation or trust land. 

Consideration of an acquisition’s 

potential impact on regulatory 

jurisdiction, real property taxes, and 

special assessments is already included 

in this section. Consideration of 

‘‘jurisdiction problems and potential 

conflicts of land use’’ is retained for 

§§ 151.11(c) and 151.12(c). 

Comment: One non-Tribal commenter 

suggested a gaming carve-out, which 

would apply the current § 151.11(b) 

equivalent to acquisitions where gaming 

will be conducted. There are concerns 

from non-Tribal entities that Tribes can 

conceivably acquire land across the 

United States, and these concerns are 

also expressed as gaming concerns in 

certain comments. 

• Response: This final rule applies to 

all fee-to-trust acquisitions. Where a feeto-trust application is for the purpose of 

conducting Indian gaming, a 

determination whether the land is 

eligible for gaming is required by the 

IGRA and its implementing regulations 

at 25 CFR part 292. Thus, there is no 

need for this rule to address gaming 

matters. 

Comment: Several commenting State 

and local governments oppose the 

removal of the requirement that Tribal 

applicants submit business plans for 

review, suggesting it would eliminate a 

source of information used to evaluate 

local impacts of the putative 

acquisition. 

• Response: Requiring a Tribal 

applicant to disclose its business plan is 

inconsistent with Tribal selfdetermination. Tribes and State and 

local governments may share 

information to evaluate local impacts 

even without a requirement and Tribal 

applicants and State and local 

governments are encouraged to discuss 

issues of common concern. 

Comment: They also expressed 

concerns that the 30-day comment 

period was too short to provide 

meaningful comments, as well as the 

need for criteria defining how notice 

will be provided to State and local 

governments. 

• Response: In the Department’s 

experience 30 days is sufficient time to 

provide the type of comments that will 

inform the Secretary’s decision. The 30- 

day comment period was codified in the 

1995 part 151 regulations. The preamble 

to that regulation noted that the 

timeframe was based on BIA’s past 

experience with informal consultation. 

See 60 FR 32874, 32877 (June 23, 1995). 

The Department continues to believe, 

based on its experience, that 30 days is 

sufficient. Indeed, the information 

requested by the Secretary is more likely 

retrievable within 30 days using current 

electronic means. 

Comment: A State Attorney General 

suggested revisions for proposed 

§ 151.11(d) that would prescribe a 

process for providing notice to State and 

local governments and what that notice 

would include. 

• Response: The specific manner for 

providing notice and seeking comment 

from third parties is better suited to 

internal guidance documents such as 

the Fee-To-Trust Handbook. The 

regulations provide a timeframe in 

which States and local governments can 

submit comments on an application. 

Therefore, we do not see why it would 

be necessary to put a deadline on when 

the BIA sends notification of an 

application to States or local 

governments. The Department therefore 

declines to make the suggested revision. 

Comment: A town expressed 

skepticism regarding the blanket 

presumption of community benefits for 

off-reservation acquisitions and noted 

that it is unclear how this presumption 

can be rebutted. 

• Response: Where a Tribe takes land 

into trust off-reservation, that land 

nearly always serves an important 

economic, cultural, self-determination, 

or sovereignty purpose that supports 

Tribal welfare. Tribal governments are 

rational actors that make acquisition 

decisions carefully based on available 

resources, planning, and purposes 

valued by the Tribe. 

Comment: A local jurisdiction 

commented that while the proposed 

rule would give ‘‘great weight’’ to Tribal 

concerns, it would give no weight to the 

comments or concerns of the local 

community or to the State in the 

decision-making process. Several 

commenters noted that State and local 

comments are not afforded ‘‘great 

weight’’ and asserted that they should 

be. 

• Response: Through the IRA, 

Congress has authorized the Secretary to 

acquire land in trust for Tribes and 

individual Indians, subject to the 

requirements set forth in the statute. 

The regulations contemplate that the 

Secretary will consider comments 

submitted by State and local 

governments on pending applications as 

part of the decision-making process. The 

Department declines to expand or 

elevate the role of State or local 

governments in this process coequal to 

Tribal concerns because the IRA sets 

forth an explicit ‘‘purpose of providing 

land for Indians’’ and includes no such 

purpose for State or local governments. 

Comment: One Tribe recommend that 

Tribes with dispersed trust lands be 

accommodated by adding a provision 

that if the proposed acquisition is 

within five miles of a Tribe’s existing 

trust land, that the application will be 

considered a contiguous application. 

• Response: It would be difficult to 

establish a national regulatory standard 

to accommodate all Tribes with 

dispersed lands considering the 

differences in geography between all 

Tribal land holdings. 

§ 151.12 How will the Secretary 

evaluate a request involving land for an 

initial Indian acquisition? 

Comment: Most commenting Tribes 

expressed general support for the 

proposed changes to § 151.12. One Tribe 

appreciated the addition of ‘‘economic 

development and Indian housing’’ and 

‘‘self-determination,’’ as reflected in the 

proposed changes to § 151.12(b). They 

also supported the ‘‘presumption of 

community benefits in § 151.12.’’ 

However, some Tribes suggested that 

the Department’s presumption of 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86243 

community benefits should only apply 

where the initial acquisition is within 

the Tribal applicant’s ‘‘aboriginal 

territory.’’ Another Tribe would like this 

section expanded beyond an ‘‘initial 

Indian acquisition’’ to include 

acquisitions for ‘‘a modest or minimal 

homeland.’’ 

• Response: Determining the location 

and extent of a Tribe’s aboriginal lands 

often requires a lengthy review of 

applicable law and fact. Such a change 

is inconsistent with the intent to 

streamline the fee-to-trust process. 

Comment: One Tribe suggested that 

the Department clarify that the receipt 

of State and local comments alone is 

insufficient to ‘‘overcome a decision to 

approve a trust acquisition.’’ Tribes also 

expressed support for retaining the 30- 

day comment period, requiring that 

those comments be provided to Tribes 

for rebuttal, and that States and local 

governments be limited to commenting 

only on impacts to their regulatory 

jurisdiction, real property taxes, and 

special assessments. 

• Response: In the Department’s 

experience, 30 days is adequate for the 

purposes of implementing the IRA. The 

solicitation of comments from State and 

local governments is to assist the 

Secretary in assessing the regulatory 

criteria. The Department agrees that 

State and local governments do not have 

veto authority over the decisions to 

acquire land in trust contemplated by 

this part. The Secretary will consider 

comments received on pending 

applications consistent with this part. 

Comment: Several Tribes suggested 

edits to proposed § 151.12(b) that 

account for Tribes with rights tied to 

executive orders or other Federal laws. 

• Response: The final rule does not 

relieve the Department of its obligations 

to adhere to any relevant executive 

order or any other Federal laws. 

Comment: One Tribe provided edits it 

believed would better harmonize 

proposed § 151.12(b) with proposed 

§ 151.3(b)(3). 

• Response: Edits have been 

incorporated to harmonize the purposes 

for accepting land into trust listed in 

§§ 151.12(b) and 151.3(b)(3). 

Comment: Several State and local 

governments expressed concerns about 

the 30-day comment period being too 

short to allow them to provide 

meaningful comments, as well as the 

need for criteria defining how notice 

will be provided to State and local 

governments. Separately, several 

commenters noted that State and local 

comments are not afforded ‘‘great 

weight’’ and asserted that they should 

be. 

• Response: In the Department’s 

experience, 30 days is sufficient time to 

provide the type of comments that will 

inform the Secretary’s decision. The 30- 

day comment period was codified in the 

1995 part 151 regulations. The preamble 

to that regulation noted that the 

timeframe was based on BIA’s past 

experience. See 60 FR 32874, 32877 

(June 23, 1995). The Department 

continues to believe, based on its 

experience, that 30 days is sufficient. 

Indeed, the information requested by 

the Secretary is more likely retrievable 

within 30 days using current electronic 

means. 

Through the IRA and other Federal 

statutes authorizing trust acquisitions, 

Congress has authorized the Secretary to 

acquire land in trust for Tribes and 

individual Indians, subject to the 

requirements set forth in the statutes. 

The regulations contemplate that the 

Secretary will consider comments 

submitted by State and local 

governments on pending applications as 

part of the decision-making process. The 

Department declines to expand or 

elevate the role of State or local 

governments in this process. 

§ 151.13 How will the Secretary act on 

requests? 

Comment: One Tribe requested that 

the definition of interested party also 

match the definition of interested party 

in the part 2 regulations. They also 

requested that interested parties be 

required to obtain a bond. 

• Response: The Department declines 

the proposed additions. The part 151 

interested party definition closely 

resembles proposed 25 CFR part 2 

regulation, wherein interested party is 

defined as ‘‘a person or entity whose 

legally protected interests are adversely 

affected by the decision on appeal or 

may be adversely affected by the 

decision of the reviewing official.’’ See 

Proposed Rule, Appeals from 

Administrative Actions, 87 FR 73688 

(Dec. 1, 2022). The part 2 regulation 

further defines those entities adversely 

affected by a decision. As set forth 

above, for purposes of part 151, it is not 

necessary for an interested party to be 

adversely affected but instead that they 

have a legally protected interest affected 

by a decision. We note that it is possible 

for a party to satisfy the definition of 

Interested party yet have no right to 

appeal a decision i.e., have no standing 

to do so. The Department also notes that 

providing notice to a party does not 

confer legal standing to bring a 

challenge. Bonding requirements related 

to administrative appeals under part 2 is 

outside the scope of these regulations. 

Comment: Several Tribes expressed 

concern about the definition of 

interested party and one expressed 

concern about the standing 

requirements for interested parties, 

suggesting that purely economic 

interests should not be sufficient. 

• Response: As explained herein, the 

definition of interested party tracks the 

definition of ‘‘interested party’’ in part 

2—the regulations which govern the 

appeals process, except that for part 151 

purposes, a person or entity may be an 

interested party and thus entitled to 

notice of the decision if they make 

themselves known in writing to the BIA 

in advance of the decision, even if they 

are not ‘‘adversely affected’’ by a 

potential decision. We note that it is 

possible for a party to satisfy the 

definition of interested party in part 151 

yet have no right to appeal a decision 

i.e., have no standing to do so. The 

Department also notes that providing 

notice to a party does not confer legal 

standing to bring a challenge. The 

standing requirements to pursue an 

administrative appeal are outside the 

scope of these regulations. 

Comment: One Tribe and an 

individual commenter both requested 

that paragraph (d) be removed. 

Response: The Department declines to 

remove § 151.13(d). A decision made by 

a BIA Regional Director or other BIA 

official does not represent the 

consummation of the agency’s decisionmaking process until either 

administrative remedies have been 

exhausted or the appeal period has 

expired. Furthermore, eliminating 

§ 151.13(d) would require the Assistant 

Secretary—Indian Affairs to sign each 

fee-to-trust decision, a responsibility 

that has been delegated to BIA regional 

directors to increase efficiency in the 

process. The majority of fee-to-trust 

decisions are not challenged, and if the 

responsibility to decide every 

application rested on Assistant 

Secretary—Indian Affairs, it would put 

a burden on the process and create 

further backlog of applications. 

Comment: One Tribe requested that 

digital publication be accepted for 

notification along with written 

publication in § 151.13(d)(2)(iii). 

• Response: The final rule includes 

the requirement that written notice be 

sent to ensure receipt. The final rule 

does not foreclose using email as an 

additional form of notification. The Feeto-Trust Handbook will include 

discussion of instances when email 

notice can be provided as a courtesy. 

The Department declines to digitally 

publish notice of a decision and the 

right of interested parties to file an 

appeal in addition to written 


ddrumheller on DSK120RN23PROD with RULES2
86244 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

notification in the local newspaper. The 

Department believes that digital 

publication on the BIA website is 

unnecessary given that written notice 

will be provided. Under 

§ 151.13(d)(2)(ii), the Department 

provides direct written notice of the 

decision and the opportunity to appeal 

to interested parties who have made 

themselves known in writing to the BIA 

in advance of the decision and State and 

local governments with regulatory 

jurisdiction over the land. The 

Department believes that these direct 

notices in addition to publication in the 

local newspaper to notify other 

potentially interested parties is 

sufficient notice. 

Comment: One Tribal commenter 

expressed strong support for the 

provision in § 151.13(c)(iii) to 

immediately acquire land into trust 

status. 

• Response: Per these regulations, 

land will be immediately acquired into 

trust when the requirements of part 151 

have been met. If the decision to take 

land into trust is made by a BIA official, 

then the appeal period must expire, or 

administrative remedies must be 

exhausted before the land is accepted 

into trust. 

Comment: An association of counties 

expressed concern that the proposed 

changes to § 151.13 would limit their 

ability to fully participate in the 

comment process. 

• Response: Under the final rule 

counties can participate in the process 

through submission of comments. 

§ 151.14 How will the Secretary review 

title? 

Comment: One Tribe commented that 

proposed § 151.14, as written, seems to 

require applicants to submit title 

evidence only after ‘‘the Secretary 

approves a request for the acquisition of 

land’’ and requested further 

clarification. 

• Response: Pursuant to § 151.8(a)(6), 

title evidence as described under 

§ 151.14 must be submitted as part of an 

acquisition package in order for the 

Department to consider the acquisition 

package complete and ready for review. 

Additionally, pursuant to 

§ 151.8(a)(6)(i), an acquisition package is 

not complete until the Secretary 

completes a PTO based on the title 

evidence submitted. The Department 

amended § 151.14 to reflect that title 

evidence must be submitted as part of 

the complete acquisition package 

described in § 151.8. 

Comment: Two Tribes requested that 

DOI clarify the standards for title 

evidence. One Tribe specifical asked 

that DOI include reference to 

Department of Justice (DOJ) title 

standards. 

• Response: The Department 

understands these requests to be seeking 

confirmation that the DOJ title standards 

will be included in § 151.14. Section 

151.14(a)(3) aligns with these requests 

because § 151.14(a)(3) includes 

reference to DOJ’s title standards. 

Comment: One Tribe requested that 

PTOs be shared directly with the 

applicant Tribe. Additionally, the Tribe 

requested an additional change to 

proposed § 151.14 to prevent continued 

practices that do not align with accepted 

real estate best practices. Finally, the 

Tribe requested that qualified Tribal 

officials be permitted to complete the 

Certifications of Inspection. 

Response: The PTO is a lawyer client 

privileged document. To the extent any 

issues are identified in the PTO those 

issues are shared with the applicant so 

that they can be addressed. It is the 

policy of the BIA to ensure compliance 

with all applicable real estate service 

regulation, requirements, and standards, 

and to promote sustainable practices. 

See 52 IAM 1.3. Additionally, based on 

years of experience in trust transactions, 

the procedures found in § 151.14 are 

consistent with accepted real estate best 

practices. To ensure full compliance 

with this regulation, BIA will retain 

responsibilities to complete Certificates 

of Inspection. 

Comment: One Tribe suggested a new 

section regarding indemnification 

agreements: If a Tribe is willing to 

accept an encumbrance, liens, or 

infirmity, the Department will accept 

the Tribe’s judgment and allow the 

application to proceed, provided (a) the 

Tribe enters an indemnification 

agreement in favor of the BIA with 

respect to the issue, (b) the risk of 

liability is low or the magnitude of the 

liability is low, and (c) the Tribe agrees 

it can use the property for its intended 

purpose while the encumbrance 

remains. 

• Response: In certain instances, the 

Department can accept into trust land 

with an encumbrance, lien or infirmity 

when the Tribe agrees to enter into an 

indemnification agreement in favor of 

the BIA. While not expressly written 

into the regulations, the ability exists 

with the Department on a case-by-case 

basis. 

Comment: One Tribe suggested that 

clarification is still needed on what 

documents of title evidence are 

sufficient for the acquisition package 

and whether they are the same as those 

required if the request for acquisition is 

approved. 

• Response: Sufficient documents of 

title evidence are listed in § 151.14. 

Section 151.8(a)(6) now explicitly refers 

to including title evidence listed in 

§ 151.14. The Department understands 

that the documentation available to 

satisfy the criteria under 

§ 151.14(a)(2)(ii) can vary by title 

company and what type of title 

document it is willing to issue. For that 

reason, we have included the term ‘‘or 

equivalent’’ to provide discretion in 

determining whether the documentation 

provided is sufficient to ensure 

marketable title. Additionally, the 

Department removed the requirement 

that the policy of title insurance be less 

than five (5) years old because the intent 

is to ensure marketable title which will 

require an individualized analysis 

rather than a bright line time limit on 

the issuance of the policy of title 

insurance. 

§ 151.15 How will the Secretary 

conduct a review of environmental 

conditions? 

Comment: One county requested that 

a socio-economic impact report be 

included as part of the NEPA 

environmental impact analysis. 

• Response: In determining the 

information to be analyzed in an 

environmental impact analysis, the 

Secretary shall comply with the 

requirements of NEPA (43 U.S.C. 4321 

et seq.), applicable Council on 

Environmental Quality regulations (40 

CFR parts 1500–1508), and Department 

regulations (43 CFR part 46) and 

guidance. 

Comment: Several Tribes 

recommended that the Department 

clarify that Phase I environmental site 

assessments would not need to be 

updated except when an evaluation of 

the pre-acquisition determines 

environmental conditions exist. 

• Response: The Department declines 

to adopt the proposal. The final rule sets 

forth criteria for Phase I environmental 

site assessments that aim to simplify 

such review consistent with the 

requirements of Departmental Manual 

602 DM 2. The Phase I environmental 

site assessment is the tool the 

Department uses to identify any 

environmental liabilities that may be a 

barrier to acquisition of real property. In 

many instances the site assessment will 

need to be updated to account for any 

remediation completed since the first 

site assessment or to confirm that no 

new environmental liabilities are 

evident on the property. 

Comment: A Tribal consortium 

requested additional flexibility around 

environmental issues, specifically 

requesting that Tribes be able to assume 

liability for environmental issues on 

lands taken into trust. 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86245 

• Response: Nothing in the 

regulations prohibits a Tribe from 

assuming liabilities on lands to be taken 

into trust. 

Comment: An association of counties 

and others requested that NEPA 

analyses be submitted as part of a 

‘‘complete application.’’ 

• Response: The regulation states that 

an acquisition package is not complete 

until the public review period for a final 

EIS or EA has concluded, or the 

categorical exclusion documentation is 

completed. 

Comment: One Tribe requested 

various clarifications to proposed 

§ 151.15, including why environmental 

assessments ‘‘end load’’ review of a 

Phase I environmental site assessment 

rather than requiring it as a component 

of a complete application required in 

§ 151.8. 

• Response: Section 151.8 requires 

that a complete application include 

information that allows the Secretary to 

comply with NEPA and 602 DM 2. 

Section 151.15(b), however, provides 

that the Secretary may require the 

applicant to provide information 

updating a prior pre-acquisition 

environmental site assessment (i.e., a 

Phase I environmental site assessment). 

This is not an end loading of the process 

but instead a recognition that certain 

environmental documents may need to 

be updated prior to formalizing 

acceptance of title. 

§ 151.16 How are formalization of 

acceptance and trust status attained? 

Comment: A private individual 

requested that the entirety of proposed 

§ 151.16 be redone and include the sixyear statute of limitation timeframes in 

line with the APA. 

• Response: The Department 

respectfully disagrees. Section 151.13(c) 

explains that the Assistant Secretary’s 

decision constitutes a final agency 

action for purposes of the APA. Interior 

is retaining the requirement that, if the 

request will be approved, notice of such 

approval will be published in the 

Federal Register. Such publication 

makes clear that a final agency action 

has occurred. The Department believes 

this provides a sufficient timeframe for 

any interested party to challenge the 

decision and that explaining the APA’s 

statute of limitations in the proposed 

regulation would be unnecessary 

duplicative. 

Comment: One Tribe requested that 

proposed § 151.16(b) require formal 

notification to the applicable Tribe, so 

the date of official trust status is certain. 

• Response: While not included in 

the regulation, the BIA will publish 

updated guidance in the FTT Handbook 

outlining how it will provide notice of 

the placement of the property in trust. 

BIA will be updating the FTT Handbook 

to reflect the changes made by this final 

rule. 

Comment: A county requested that 

the proposed changes to § 151.16 

include a final step that all land 

conveyance documents must be 

recorded in the county’s land records 

for the conveyance to be officially 

recognized. 

• Response: The final rule does not 

address recordation in the county 

records because fee-to-trust is an 

inherently Federal process. The BIA 

Division of Land Title Records is 

responsible for and serves as the office 

of record for all trust land and restricted 

land titles for Indian Tribes and 

individuals. Therefore, the primary 

requirement under § 151.16 is to record 

the trust deed with the appropriate Land 

Title Records Office (LTRO). BIA 

recognizes that recordation in the 

county can be beneficial and will 

publish a handbook outlining how title 

will be recorded. BIA will be updating 

the FTT Handbook to reflect the changes 

made by this final rule. 

§ 151.17 What effect does this part 

have on pending requests and final 

agency decisions already issued? 

Comment: Numerous Tribes 

expressed concern that under proposed 

§ 151.17, Tribes who submitted prior to 

the new rules would not benefit from 

the 120-day time frame. One Tribe also 

requested that Tribes who previously 

submitted should have a mechanism to 

benefit from timely processing. 

• Response: This is addressed in 

§ 151.17. While the 120-day time frame 

does not apply to applications 

submitted prior to this final rule, the 

Department strives to process pending 

applications as quickly and efficiently 

as possible. Also, with the existing 

backlog, placing all applications on the 

120-day timeline at once would present 

an enormous, if not impossible 

challenge for the Department. 

Comment: One Tribe expressed 

concerned that the language in proposed 

§ 151.17(b) is unclear as to whether 

presently pending matters in the IBIA 

will need to start over based on new 

requirements. 

• Response: Section 151.17(b) makes 

it clear that this part does not alter BIA 

decisions currently on appeal on 

January 11, 2024. Thus, matters pending 

in the IBIA will not be affected. 

Comment: One Tribe requested that 

Tribes who have pending applications 

be afforded a choice between the nowin-place rule and the draft rule, should 

the draft rule be adopted. 

• Response: Section 151.17(a), 

addresses how applications pending at 

the time the final rule is promulgated 

are affected by the final rule. 

Comment: A State requested that all 

interested parties be required to consent 

before Tribes with pending applications 

can proceed under the new regulations. 

The State also requested that a pending 

application processed under the new 

regulations be reopened for comment. 

• Response: The Department declines 

to accept the proposal. The Tribal 

applicant is best positioned to 

determine whether it wants its 

application to be evaluated under prior 

regulations or the final rule. Proceeding 

under the final rule does not limit the 

ability of State and local governments to 

submit comments on the application. 

Moreover, reopening the comment 

period is unwarranted as the final rule 

contemplates that State and local 

governments will submit comments on 

the same topics enumerated under the 

existing regulations, i.e., ‘‘the 

acquisition’s potential impacts on 

regulatory jurisdiction, real property 

taxes and special assessments.’’ 25 CFR 

151.10 (2022). 

Comments on General Issues 

Comment: One State commented that 

the proposed rule does not comply with 

Federal laws intended to allow States 

and local governments meaningful and 

timely input because the BIA allowed 

Tribes to comment on a draft prior to 

the draft being published for public 

comment. Specifically, the comment 

alleges that the BIA failed to comply 

with the Unfunded Mandates Reform 

Act and Executive Order 13132 which 

requires Federal agencies to have a 

process to meaningfully engage with 

State and local officials on action that 

have federalism implications. 

• Response: The process used in 

formulating the regulation did not 

deprive States or local governments the 

ability to comment on the proposed 

regulation. Executive Order 13175 

requires the BIA to consult with Tribes 

prior to taking any action that would 

have an impact on tribal governments. 

The BIA’s consultation sessions with 

Tribes complied with that executive 

order. There is no requirement that the 

BIA engage in a similar process with 

States or local governments. Regardless, 

the BIA published a proposed notice of 

rulemaking in the Federal Register that 

provided a reasonable time for the 

submission of comments from the 

public. Many States and local 

governments, including the commenter, 

availed themselves of this opportunity 

and the BIA considered all submitted 

comments. Because the proposed 


ddrumheller on DSK120RN23PROD with RULES2
86246 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

changes to the rule are largely 

procedural and do not expand the 

authority granted to the Secretary under 

the statute, they would not have a 

substantial direct effect or impose 

substantial compliance costs on States 

or local governments. Therefore, the 

proposed changes would not implicate 

the types of federalism concerns 

contemplated by Executive Order 

13132. 

Comment: A State government 

commented that the proposed rule 

eliminates the requirement that the 

Secretary consider the distance of the 

acquisition by removing the 

requirement that the Secretary give 

greater weight to the concerns’’ raised 

for off-reservation acquisitions as the 

distance increases. 

• Response: The rule does not 

eliminate the Secretary ability to 

consider distance in any decision. The 

rule only eliminates the requirement 

that the Secretary must give greater 

weight to concerns raised for those 

acquisitions that are off-reservation. 

Comment: A State government 

commented that the IRA raises serious 

concerns under the nondelegation 

doctrine and that several lower court 

judges have expressed concern that the 

IRA is an unconstitutional delegation. 

• Response: Numerous courts have 

considered and rejected the argument 

that the IRA violates principles of 

nondelegation, reasoning that the statute 

places ‘‘adequate limits’’ on the 

Secretary’s discretion and that it is 

‘‘possible to ascertain whether the will 

of Congress has been obeyed.’’ South 

Dakota v. U.S. Dep’t of Interior, 423 

F.3rd 790 (8th Cir. 2005) (quotations 

marks omitted); see also Mich. 

Gambling Opposition v. Kempthorne, 

525 F.3d 23, 30 (D.C. Cir. 2008), Carcieri 

v. Kempthorne, 497 F.3d 15 (1st Cir. 

2007), rev’d on other grounds, Carcieri 

v. Salazar, 555 U.S. 379 (2009), United 

States v. Roberts, 185 F.3d 1125, 1137 

(10th Cir. 1999); Confederated Tribes of 

Siletz Indians v. United States, 110 F.3d 

688, 698 (9th Cir. 1997) (stated in dicta 

that the land into trust power is a valid 

delegation). We are not aware of any 

court decision holding that the IRA is an 

unconstitutional delegation of authority. 

Comment: A State government 

provided a detailed process for 

notification of new applications to State 

and local governments as well as for 

receiving and responding to comments 

on the application. This proposed 

process includes notification to States 

and local governments of an 

application, requires providing a those 

governments with a copy of the 

application along with unspecified 

other information the BIA may possess, 

notification to State and local 

governments that an applicant’s package 

is complete and then provide that 

package to them within 10 calendar 

days upon request, requires the 

Secretary to consider any and all written 

comments by State or local governments 

regardless of the location of the land, 

and provide the applicant a reasonable 

time frame in which to respond to the 

State or local government comments. 

• Response: We reject the proposed 

process because it would add to the 

timeline for action on an application 

beyond even the current regulations. 

One of the goals of revising these 

regulations is to shorten the timeline for 

processing applications. We believe that 

the process for notifying States and local 

governments and the timeline for 

receiving response from them is 

adequate for the Secretary to receive 

relevant information and to make an 

informed decision. Further, the final 

rule does not limit the Secretary’s 

ability to consider any comments on any 

issues submitted by a State or local 

government. 

Comment: One town expressed 

concerns that if a specific group of 

Indians became federally recognized 

and then were allowed to take land into 

trust in the town, that would result in 

severe consequences for the town. 

• Response: These regulations do not 

provide a process for Federal 

recognition of any tribal group. The 

regulations only apply to already 

recognized Indian Tribes. Further, the 

final rule clarifies that if a Tribe is 

recognized under the part 83 process, 

that any historical evidence submitted 

during that process demonstrating that 

they were under Federal jurisdiction in 

1934 may be used to determine whether 

the Secretary has authority to take land 

into trust for a particular tribe. 

Comment: One town commented that 

while the regulations give ‘‘great 

weight’’ to tribal concerns they do not 

give any weight to the comments or 

concerns of a local community or State 

in the decision-making process. 

• Response: The final rule provides 

that the Secretary will give great weight 

if the acquisition was for specific stated 

purposes. While the final rule does not 

give a specific weight to comments and 

concerns raised by local governments or 

States it is not true that it gives them no 

weight. The Secretary will consider any 

and all comments and concerns raised 

by local communities or States in 

making a decision to acquire land in 

trust for a tribe. 

Comment: One Tribe suggested that 

‘‘interested parties,’’ like State and local 

governments, be afforded notice and an 

opportunity to comment on acquisitions 

because the lack of that accommodation 

for ‘‘interested parties’’ often ensures 

that they ultimately file a formal appeal 

of a favorable decision. 

• Response: The Department declines 

to adopt this proposal. In the 

Department’s experience, most trust 

acquisition decisions issued by BIA 

officials are not challenged by any party. 

Given the changes in regulatory 

jurisdiction that occur as a result of 

acquiring land into trust, notice to State 

and local governments and 

consideration of comments received 

from them inform the Secretary’s review 

of applications. Private individuals or 

entities have no regulatory jurisdiction 

over land and thus the same 

considerations are not present with 

respect to private parties. Such private 

parties can nevertheless submit 

comments on pending applications to 

the extent they want to. 

Comment: Many counties, States, and 

local governments expressed general 

and broad opposition to the proposed 

regulations. One commenter asked that 

the Regulations include a citation to 

Constitutional provisions that provide 

authority for Congress to acquire lands 

for Indians. Another suggested the 

proposed rule would be invalid due to 

uncertainties regarding constitutional 

and statutory authority for the United 

States to take land into trust. That same 

commenter expressed significant 

concerns about federalism implications 

of the proposed rule. A separate 

commenter expressed concern that the 

proposed rule would unravel NEPA 

because it may result in decreased 

communication and cooperation 

between Tribes and local governments. 

Finally, a State commented that the 

proposed rule is unlawful under the 

APA because the Department must 

consider impacts on State and local 

governments. 

• Response: We disagree with 

comments suggesting the final rule 

violates the APA or raises federalism 

concerns. The rulemaking complies 

with the APA. Notice of the proposed 

rulemaking provided an accurate 

picture of the Department’s reasoning 

and provided interested parties an 

opportunity to meaningfully commend 

upon the proposed rule. The 

Department has considered potential 

impacts to State and local governments, 

including those raised in comments, 

and this Notice memorializes that 

consideration. Section 5 of the IRA does 

not violate principles of federalism 

because the Indian Commerce Clause 

grants Congress the power ‘‘[t]o regulate 

commerce . . . with the Indian Tribes.’’ 

U.S. Const. art. I, section 8, cl. 3. The 

Supreme Court has consistently 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86247 

interpreted Congress’ authority to 

legislate in matters involving Indian 

affairs broadly. See, e.g., United States 

v. Lara, 541 U.S. 193, 200, 124 S. Ct. 

1628, 158 L. Ed. 2d 420 (2004). The 

Secretary’s exercise of their 

discretionary land into fee-to-trust 

authority under section 5 of the IRA is 

a valid exercise of the power delegated 

to Congress by the Constitution. Under 

Department regulations, the 

promulgation of regulations is 

categorically excluded from NEPA. See 

43 CFR 46.210(i) and Environmental 

Statement Memorandum 13–4, Use of 

Departmental Categorical Exclusion for 

Policies, Directives, Regulations, and 

Guidelines, Michaela E. Noble, Director 

Office of Environmental Policy and 

Compliance (Sept. 24, 2018). 

Furthermore, the proposed rule does not 

modify the procedural requirements of 

NEPA. 

Comment: Some State and local 

governments argued that the 

presumptions unlawfully strip the 

Secretary of the case-by-case discretion 

required under the IRA. 

• Response: The policy presumptions 

in the final rule cannot divest the 

Secretary’s statutory discretion as 

authorized in the IRA. As explained 

herein, the presumptions adopted 

through the final rule are consistent 

with the purposes of the IRA and the 

policy goals of Tribal selfdetermination, self-government, and 

economic development reflected in that 

statute and other laws authorizing trust 

acquisitions. The Secretary retains 

statutory discretion to approve or deny 

an application after a holistic review of 

trust acquisition applications, 

supporting materials, and comments 

submitted on applications, which of 

course may demonstrate that a 

particular presumption should be 

rebutted. 

Comment: A Tribal consortium 

expressed concern over how the process 

would work in Alaska, the need to 

account for the Alaska Native Claims 

Settlement Act, as well as other unique 

issues surrounding land in Alaska. It 

was also suggested that the expedited 

timelines in the proposed rule might be 

too short to allow the Department to 

effectively exercise fee-to-trust trust 

authorities in Alaska. 

• Response: The Department is 

working with the BIA Alaska Regional 

Office to ensure it has all the necessary 

skills and equipment to process fee-totrust applications in Alaska. In 

November 2022, the Department 

approved the first land into trust 

acquisition in Alaska in five years, and 

the second fee-to-trust acquisition in 

Alaska since the passage of the Alaska 

Native Claims Settlement Act in 1971. 

The Department anticipates further 

applications may be filed for land into 

trust in Alaska and the BIA will 

continue to provide resources to the 

Region for assistance with processing 

applications consistent with this final 

rule, Sol. Op. M–37076, and Akiachak 

Native Community v. Jewell, 935 F. 

Supp. 2d 195 (D.D.C. 2013), vacated as 

moot, 827 F.3d 100 (D.C. Cir. 2016). 

Comment: A former attorney general 

submitted comments expressing 

disapproval of the removal of BIA 

consideration of ‘‘jurisdictional 

problems and potential conflicts of land 

use.’’ These concerns are rooted in law 

enforcement jurisdiction issues, which 

they assert are complicated in Indian 

country and the proposed changes 

would affect these issues. 

• Response: The Secretary must 

consider ‘‘jurisdictional problems and 

potential conflicts of land use’’ when 

State and local governments raise these 

issues in comments submitted under 

§§ 151.11(c) and 151.12(d). The 

Secretary will carefully consider the 

potential conflicts and any associated 

impact on public safety and law 

enforcement jurisdiction. 

Comment: Many Tribes suggested that 

an electronic filing system would be 

helpful in providing a streamlined 

platform for reviewing applications and 

following where applications are in the 

process. 

• Response: The Department is 

mindful that improving the technologies 

used to implement these regulations is 

key to meeting the goal of improving 

efficiency and reducing the time it takes 

to process an application. The BIA is 

working to improve the current 

system—TAAMS—used to track fee-totrust applications, and ensure it is up to 

date, and will continue to explore 

technological improvements including 

electronic filing systems to improve 

efficiency and applicant customer 

service. 

Comment: Some comments identified 

minor grammatical or punctuation 

errors. 

• Response: The Department made 

minor non-substantive corrections 

identified by commenters. 

Comment: Several comments were 

received that were not directly 

responsive to the proposed regulations. 

• Response: The Department has 

reviewed all comments received in 

response to the part 151 Notice of 

Proposed Rulemaking. Comments not 

directly responsive to the proposed 

regulations were not considered as part 

of the rulemaking and are not responded 

to here. 

VI. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and E.O. 13563) 

E.O. 12866, as reaffirmed by E.O. 

13563 and E.O. 14094, provides that the 

Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this rule is significant 

under E.O. 12866 section 3(f), but not 

significant under section 3(f)(1). 

Executive Order 14094 reaffirms the 

principles of E.O. 12866 and E.O. 13563 

and states that regulatory analysis 

should facilitate agency efforts to 

develop regulations that serve the 

public interest, advance statutory 

objectives, and are consistent with E.O. 

12866, E.O. 13563, and the Presidential 

Memorandum of January 20, 2021 

(Modernizing Regulatory Review). 

Regulatory analysis, as practicable and 

appropriate, shall recognize distributive 

impacts and equity, to the extent 

permitted by law. E.O. 13563 

emphasizes further that regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. The 

Department and BIA developed this 

final rule in a manner consistent with 

these requirements. 

B. Regulatory Flexibility Act 

The Department certifies that this 

document 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.). 

The final rule would not change current 

funding requirements and would not 

impose any economic effects on small 

governmental entities because it makes 

no change to the status quo. The final 

rule codifies longstanding Departmental 

policies and interpretation of case law. 

Tribal governments and individual 

Indians seeking to have fee-lands placed 

in trust by the United States for the 

benefit of Tribal governments and 

individual Indians will be able rely on 

the substantive provisions in the final 

rule for guidance on what may or may 

not be included in a land acquisition 

request package. Both § 151.9, which 

addresses on-reservation acquisitions, 

and § 151.10, which addresses 

acquisition of lands contiguous to 

reservation boundaries, are consistent 

with existing case law and are presumed 

to further Tribal interests and the 

adverse impacts to local governments 

and small entities are presumed to be 

minimal. Local governments, after 

receiving notice from the BIA that a 

Tribal government or individual Indian 


ddrumheller on DSK120RN23PROD with RULES2
86248 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

submitted a land acquisition request 

package, are free to provide written 

comments, within 30 calendar days, to 

rebut the presumption of minimal 

adverse impacts to regulatory 

jurisdiction, real property taxes, and 

special assessments. 

Furthermore, under both § 151.1, 

acquisition of lands outside of or 

noncontiguous to reservation 

boundaries, and § 151.12, an initial 

Indian acquisition, the Secretary will 

presume that the Tribal government will 

benefit from the lands acquisition. 

However, under both §§ 151.11 and 

151.12, the Secretary is required to 

provide notice to State and local 

governments to submit written 

comments to rebut the presumption of 

minimal adverse impacts to regulatory 

jurisdiction, real property taxes, and 

special assessments. 

C. Congressional Review Act (CRA) 

This final rule does not meet the 

criteria in 5 U.S.C. 804(2). Specifically, 

it: 

(a) Would not have an annual effect 

on the economy of $100 million or 

more. 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

(c) Would 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. 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 requires that agencies prepare a 

written statement analyzing and 

estimating anticipated costs and benefits 

before issuing any rule that may result 

in the expenditure by State, local, and 

Tribal Governments, in the aggregate, or 

by the private sector, of $100 million or 

more (adjusted annually for inflation) in 

any one year. See 2 U.S.C. 1532. The 

Act further requires that the agency 

publish a summary of such a statement 

with the agency’s proposed and final 

rules. 

This final rule would not impose an 

unfunded mandate on State, local, or 

Tribal governments or the private sector 

of more than $100 million per year. The 

final rule would not have a significant 

or unique effect on State, local, or Tribal 

governments or the private sector 

because this final rule affects only 

individual Indians and Tribal 

governments that petition the 

Department to take land into trust for 

their benefit. A statement containing the 

information required by the Unfunded 

Mandates Reform Act (2 U.S.C. 1531 et 

seq.) is not required. 

E. Takings (E.O. 12630) 

This rule would not affect a taking of 

private property or otherwise have 

taking implications under E.O. 12630. A 

takings implication assessment is not 

required. 

F. Federalism (E.O. 13132) 

Under the criteria in section 1 of E.O. 

13132, this final rule would not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. A 

federalism summary impact statement is 

not required. 

G. Civil Justice Reform (E.O. 12988) 

This final rule complies with the 

requirements of E.O. 12988. 

Specifically, this final rule: (a) meets the 

criteria of section 3(a) requiring that all 

regulations be reviewed to eliminate 

errors and ambiguity and be written to 

minimize litigation; and (b) meets the 

criteria of section 3(b)(2) requiring that 

all regulations be written in clear 

language and contain clear legal 

standards. 

H. Consultation With Indian Tribes 

(E.O. 13175) 

The Department strives to strengthen 

its government-to-government 

relationship with Indian Tribes through 

a commitment to consultation with 

Indian Tribes and recognition of their 

right to self-governance and Tribal 

sovereignty. We have evaluated this 

final rule under the Department’s 

consultation policy and under the 

criteria in E.O. 13175 and have hosted 

extensive consultation with federally 

recognized Indian Tribes in preparation 

of this final rule, including through a 

Dear Tribal Leader letter delivered to 

every federally recognized Tribe in the 

country, and through three consultation 

sessions held on May 9, 13, and 23, 

2022. 

The Department also held three Tribal 

consultation sessions during the public 

comment period. The first Tribal 

consultation was held in person on 

January 13, 2023, at the Bureau of Land 

Management Training Center in 

Phoenix, Arizona. The next two Tribal 

consultations were conducted virtually 

on Zoom. They occurred on January 19, 

2023, and January 30, 2023. Following 

the consultation sessions, the 

Department accepted written comments 

until March 1, 2023. 

I. Paperwork Reduction Act 

This final rule does not contain any 

new collection of information that 

requires approval by OMB under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). OMB has 

previously approved the information 

collection requirements associated with 

the acquisition of lands through 

purchase, relinquishment, gift, 

exchange, or assignment within or 

without existing reservations for the 

purpose of providing land for Indian 

Tribes and assigned OMB Control 

Number 1076–0100, which expires 

January 31, 2024). An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

J. National Environmental Policy Act 

(NEPA) 

This final rule would 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 (NEPA) is not 

required because this is an 

administrative and procedural 

regulation. (For further information see 

43 CFR 46.210(i)). We have also 

determined that the final rule would not 

involve any of the extraordinary 

circumstances listed in 43 CFR 46.215 

that would require further analysis 

under NEPA. 

K. Energy Effects (E.O. 13211) 

This final rule is not a significant 

energy action under the definition in 

E.O. 13211. A Statement of Energy 

Effects is not required. 

L. Clarity of This Regulation 

We are required by Executive Orders 

12866 (section 1(b)(12)), 12988 (section 

3(b)(l)(B)), and 13563 (section l(a)), and 

by the Presidential Memorandum of 

June 1, 1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use common, everyday words and 

clear language rather than jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

M. Small Business Regulatory 

Enforcement Fairness Act 

This final rule is not a major rule 

under 5 U.S.C. 804(2), the Small 

Business Regulatory Enforcement 

Fairness Act. This final rule: 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86249 

(a) Does not have an annual effect on 

the economy of $100 million or more 

because the funding available through 

JOM does not approach this amount. 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, 

Tribal or local government agencies, or 

geographic regions because this rule 

affects only certain education contracts. 

(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 

because this rule affects only certain 

education contracts. 

N. Regulatory Impact Analysis 

Summary: This final rule is intended 

to make the fee-to-trust process less 

burdensome and more cost-efficient. In 

addition, the Department seeks to 

improve the fee-to-trust process because 

of the many benefits afforded to Tribal 

governments and their citizens, such as 

heightened regulatory jurisdiction over 

the lands, exemptions from State and 

local taxation, and restoration of Tribal 

homelands. This final rule also 

addresses delays in the current land 

acquisition process. The average length 

of time to receive a final fee-to-trust 

decision is approximately 985 days. 

Currently, there are 941 cases pending 

approval by the Department—the 

majority of which are for noncontroversial, on-reservation 

acquisitions. This final rule will reduce 

the time it takes BIA to process fee-totrust applications going forward and 

address the existing backlog. 

Benefits: The anticipated benefits of 

the final rule include making the fee-totrust process less burdensome and more 

cost-efficient and improve agency 

processing by: 

• Reducing uncertainty and Tribal 

expenses by codifying standards that 

implement Carcieri v. Salazar, 555 U.S. 

379 (2009), to increase clarity and 

certainty in determining the Secretary’s 

authority to take land in trust for Tribes. 

Tribes will benefit by having the 

standards in the regulations and not 

having to ascertain these standards from 

existing case law, Departmental 

guidance, and previous determinations, 

and not risking lengthy litigation on the 

standards the Department considers. 

• Reducing processing time and 

uncertainty by identifying the 

documents needed for a complete 

application, after which the BIA will 

issue a decision within 120 days. 

• Increasing efficiency for Tribes and 

the Department by analyzing 

applications as either on-reservation, 

contiguous to a reservation, an initial 

acquisition for landless Tribes, or offreservation, recognizing that each 

category requires specific criteria for an 

appropriate analysis. 

• Reducing expense for Tribes by 

clarifying when environmental studies 

and reports are to be updated, thus, 

eliminating the need to maintain the 

current status of studies and reports 

when a decision date is not known by 

the Tribe. 

Anticipated Impact: Transfers 

between Tribes and State and local 

jurisdictions. To the extent the final rule 

accelerates the fee-to-trust process, 

Tribes may receive tax exemptions 

sooner. If land remains taxable for a 

shorter period of time, there may be a 

reduction in taxes collected from Tribes 

by State and local jurisdictions. The 

anticipated costs of implementing the 

final rules are negligible: 

• Tribes will see reduced expenses in 

the application process from clear 

standards and timelines. 

• States and local jurisdictions will 

see little, if any, additional expense 

because the final rule’s provisions for 

providing comments on regulatory 

jurisdiction, real property taxes, and 

special assessments remain the same. In 

some cases, States or local governments 

may incur additional expense if they 

wish to provide information to rebut the 

presumption of minimal adverse 

impacts to regulatory jurisdiction, real 

property taxes, and special assessments. 

• BIA will see increased efficiencies 

in the application process, such as fewer 

hours spent processing applications and 

communicating with applicants on 

missing documents, because 

applications will be more thorough. 

Alternative Policy Approaches: An 

alternative policy approach would be to 

maintain the existing regulations; 

however, this would result in: 

• Continued lack of clarity and 

certainty for Tribes and need to hire 

outside counsel to meet Carcieri 

requirements and prepare applications, 

and continued litigation over Carcieri 

requirements and part 151 standards. 

Tribes would have to continue to incur 

costs to hire outside counsel. 

• Continued lack of a policy to 

acquire land in trust for establishing a 

Tribal land base or protecting Tribal 

homelands, protecting sacred sites or 

cultural resources and practices, 

establishing or maintaining 

conservation or environmental 

mitigation areas, consolidating land 

ownership, reducing checkerboarding, 

acquiring land lost through allotment, 

protecting treaty or subsistence rights, 

or facilitating Tribal self-determination, 

economic development, Indian housing. 

This policy recognizes purposes for 

which Tribes acquire land in trust, 

many of which were not contemplated 

in the existing regulation, thus, reducing 

additional justification for the 

acquisition. 

Conclusion: Therefore, maintaining 

the current regulation likely would 

increase legal costs for applicant Tribes 

as compared to final rule and its 

measures to promote cost efficiency. 

Maintaining the current regulation 

could also limit certainty about the 

Secretary’s authority due to the Carcieri 

decision and omit information that 

could streamline Tribal applications, 

including the absence of land 

acquisition policy to support Tribal selfdetermination and sovereignty, no list of 

documents needed for a complete 

application, no guidance on the weight 

accorded to certain Tribal land uses, 

and criteria enabling certain 

presumptions. 

List of Subjects in 25 CFR Part 151 

Administrative practice and 

procedure, Indians—land acquisition. 

■ For the reasons set forth in the 

preamble, the Department of the 

Interior, Bureau of Indian Affairs, 

revises 25 CFR part 151 to read as 

follows: 

PART 151—LAND ACQUISITIONS 

Sec. 

151.1 What is the purpose of this part? 

151.2 How are key terms defined? 

151.3 What is the Secretary’s land 

acquisition policy? 

151.4 How will the Secretary determine 

that statutory authority exists to acquire 

land in trust status? 

151.5 May the Secretary acquire land in 

trust status by exchange? 

151.6 May the Secretary approve 

acquisition of a fractional interest? 

151.7 Is Tribal consent required for 

nonmember acquisitions? 

151.8 What documentation is included in a 

trust acquisition package? 

151.9 How will the Secretary evaluate a 

request involving land within the 

boundaries of an Indian reservation? 

151.10 How will the Secretary evaluate a 

request involving land contiguous to the 

boundaries of an Indian reservation? 

151.11 How will the Secretary evaluate a 

request involving land outside of and 

noncontiguous to the boundaries of an 

Indian reservation? 

151.11 How will the Secretary evaluate a 

request involving land outside of and 

noncontiguous to the boundaries of an 

Indian reservation? 

151.12 How will the Secretary evaluate a 

request involving land for an initial 

Indian acquisition? 

151.13 How will the Secretary act on 

requests? 

151.14 How will the Secretary review title? 

151.15 How will the Secretary conduct a 

review of environmental conditions? 


ddrumheller on DSK120RN23PROD with RULES2
86250 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

151.16 How are formalization of acceptance 

and trust status attained? 

151.17 What effect does this part have on 

pending requests and final agency 

decisions already issued? 

151.18 Severability. 

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 

403a–2, 409a, 1466, 1495, 5107, 5108, 5136, 

5138, 5201, 5202, 5322, 5341; Pub. L. 71–780, 

46 Stat. 1471, amended by Pub. L. 72–231, 

47 Stat. 474; Pub. L. 74–816, 49 Stat. 1967, 

amended by Sec. 10, Pub. L. 80–336, 61 Stat. 

734; Secs. 3, 4, 6, Pub. L. 76–238, 53 Stat. 

1129, 1130; Sec. 7, Pub. L. 79–706, 60 Stat. 

969, amended by Pub. L. 91–627, 84 Stat. 

1874; Pub. L. 81–226, 63 Stat. 605; Pub. L. 

84–188, 69 Stat. 392, amended by Pub. L. 88– 

540, 78 Stat. 747, amended by Sec. 213, Pub. 

L. 100–581, 102 Stat. 2941, amended by Sec. 

1, Pub. L. 101–301, 104 Stat. 206; Pub. L. 84– 

592, 70 Stat. 290, amended by Pub. L. 91– 

274, 84 Stat. 301; Pub. L. 84–772, 70 Stat. 

626; Sec. 10, Pub. L. 87–231, 75 Stat. 505; 

Pub. L. 88–196, 77 Stat. 349; Pub. L. 88–418, 

78 Stat. 389; Pub. L. 90–335, 82 Stat. 174, 

amended by Pub. L. 93–286, 88 Stat. 142; 

Pub. L. 90–534, 82 Stat. 884; Pub. L. 92–312, 

86 Stat. 216; Pub. L. 92–377, 86 Stat. 530; 

Pub. L. 92–443, 86 Stat. 744; Sec. 11, Pub. L. 

93–531, 88 Stat. 1716, amended by Sec. 4, 

Pub. L. 96–305, 94 Stat. 930, amended by 

Sec. 106, 98–603, 98 Stat. 3157, amended by 

Secs. 4(b), 8, Pub. L. 100–666, 102 Stat. 3930, 

3933. 

§ 151.1 What is the purpose of this part? 

This part sets forth the authorities, 

policies, and procedures governing the 

acquisition of land by the United States 

in trust status for individual Indians and 

Tribes. This part does not cover 

acquisition of land by individual 

Indians and Tribes in fee simple status 

even though such land may, by 

operation of law, be held in restricted 

status following acquisition; acquisition 

of land mandated by Federal law; 

acquisition of land in trust status by 

inheritance or escheat; or transfers of 

land into restricted fee status unless 

required by Federal law. 

§ 151.2 How are key terms defined? 

Contiguous means two parcels of land 

having a common boundary 

notwithstanding the existence of nonnavigable waters or a public road or 

right-of-way and includes parcels that 

touch at a point. 

Fee interest means an interest in land 

that is owned in unrestricted fee simple 

status and is, thus, freely alienable by 

the fee owner. 

Fractionated tract means a tract of 

Indian land owned in common by 

Indian landowners and/or fee owners 

holding undivided interests therein. 

Indian land means any tract in which 

any interest is held by a Tribe or 

individual Indian in trust or restricted 

status and includes both individually 

owned Indian land and Tribal land. 

Indian landowner means a Tribe or 

individual Indian who owns an interest 

in Indian land. 

Indian reservation or Tribe’s 

reservation means, unless another 

definition is required by Federal law 

authorizing a particular trust 

acquisition, that area of land over which 

the Tribe is recognized by the United 

States as having governmental 

jurisdiction, except that, in the State of 

Oklahoma wherever historic 

reservations have not yet been 

reaffirmed, or where there has been a 

final judicial determination that a 

reservation has been disestablished or 

diminished, Indian reservation means 

that area of land constituting the former 

reservation of the Tribe as defined by 

the Secretary. 

Individual Indian means: 

(1) Any person who is an enrolled 

member of a Tribe; 

(2) Any person who is a descendent 

of such a member and said descendant 

was, on June 1, 1934, physically 

residing on a federally recognized 

Indian reservation; or 

(3) Any other person possessing a 

total of one-half or more degree Indian 

blood of a Tribe. 

Initial Indian acquisition means an 

acquisition of land in trust status for the 

benefit of a Tribe that currently has no 

land held in trust status. 

Interested party means a person or 

other entity whose legally protected 

interests would be affected by a 

decision. 

Land means real property or any 

interest therein. 

Marketable title means title that a 

reasonable buyer would accept because 

it appears to lack substantial defect and 

that covers the entire property that the 

seller has purported to sell. 

Preliminary Title Opinion means an 

opinion issued by the Office of the 

Solicitor that reviews the existing status 

of title, examining both record and nonrecord title evidence and any 

encumbrances or liens against the land, 

and sets forth requirements to be met 

before acquiring land in trust status. 

Preliminary title report means a report 

prepared by a title company prior to 

issuing a policy of title insurance that 

shows the ownership of a specific parcel 

of land together with the liens and 

encumbrances thereon. 

Restricted land or land in restricted 

status means land the title to which is 

held by an individual Indian or a Tribe 

and which can only be alienated or 

encumbered by the owner with the 

approval of the Secretary due to 

limitations contained in the conveyance 

instrument pursuant to Federal law or 

because a Federal law directly imposes 

such limitations. 

Secretary means the Secretary of the 

Interior or authorized representative. 

Tribe means any Indian Tribe listed 

under section 102 of the Federally 

Recognized Indian Tribe List Act of 

1994 (25 U.S.C. 5130). For purposes of 

acquisitions made under the authority 

of 25 U.S.C. 5136 and 5138, or other 

statutory authority which specifically 

authorizes trust acquisitions for such 

corporations, Tribe also means a 

corporation chartered under section 17 

of the Act of June 18, 1934 (48 Stat. 988; 

25 U.S.C. 5124) or section 3 of the Act 

of June 26, 1936 (49 Stat. 1967; 25 

U.S.C. 5203). 

Trust land or land in trust status 

means land the title to which is held in 

trust by the United States for an 

individual Indian or a Tribe. 

Undivided interest means a fractional 

share of ownership in an estate of 

Indian land where the estate is owned 

in common with other Indian 

landowners or fee owners. 

§ 151.3 What is the Secretary’s land 

acquisition policy? 

(a) It is the Secretary’s policy to 

acquire land in trust status through 

direct acquisition or transfer for 

individual Indians and Tribes to 

strengthen self-determination and 

sovereignty, ensure that every Tribe has 

protected homelands where its citizens 

can maintain their Tribal existence and 

way of life, and consolidate land 

ownership to strengthen Tribal 

governance over reservation lands and 

reduce checkerboarding. The Secretary 

retains discretion whether to acquire 

land in trust status where discretion is 

granted under Federal law. Land not 

held in trust or restricted status may 

only be acquired for an individual 

Indian or a Tribe in trust status when 

the acquisition is authorized by Federal 

law. No acquisition of land in trust 

status under these regulations, 

including a transfer of land already held 

in trust or restricted status, shall be 

valid unless the acquisition is approved 

by the Secretary. 

(b) Subject to the provisions of 

Federal law authorizing trust land 

acquisitions, the Secretary may acquire 

land for a Tribe in trust status: 

(1) When the land is located within 

the exterior boundaries of the Tribe’s 

reservation or contiguous thereto; 

(2) When the Tribe already owns an 

interest in the land; or 

(3) When the Secretary determines 

that the acquisition of the land will 

further Tribal interests by establishing a 

Tribal land base or protecting Tribal 

homelands, protecting sacred sites or 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86251 

cultural resources and practices, 

establishing or maintaining 

conservation or environmental 

mitigation areas, consolidating land 

ownership, reducing checkerboarding, 

acquiring land lost through allotment, 

protecting treaty or subsistence rights, 

or facilitating Tribal self-determination, 

economic development, Indian housing, 

or for other reasons the Secretary 

determines will support Tribal welfare. 

(c) Subject to the provisions contained 

in Federal law which authorize land 

acquisitions or holding land in trust or 

restricted status, the Secretary may 

acquire land in trust status for an 

individual Indian: 

(1) When the land is located within 

the exterior boundaries of an Indian 

reservation, or contiguous thereto; or 

(2) When the land is already in trust 

or restricted status. 

§ 151.4 How will the Secretary determine 

that statutory authority exists to acquire 

land in trust status? 

When a Tribe’s application relies on 

the first definition of ‘‘Indian’’ in the 

Indian Reorganization Act of June 18, 

1934 (48 Stat. 984; 25 U.S.C. 5101 et 

seq.) (IRA) to establish statutory 

authority for the proposed acquisition, 

the Secretary will apply the following 

criteria to determine whether the Tribe 

was under Federal jurisdiction in 1934. 

(a) In determining whether a Tribe 

was ‘‘under Federal jurisdiction’’ in 

1934 within the meaning of section 19 

of the IRA (48 Stat. 988; 25 U.S.C. 5129), 

the Secretary shall consider evidence of 

Federal jurisdiction in the manner 

provided in paragraphs (a)(1) through 

(5) of this section. 

(1) Conclusive evidence establishes in 

and of itself both that a Tribe was 

placed under Federal jurisdiction and 

that this jurisdiction remained intact in 

1934. If such evidence exists, no further 

analysis under this section is needed. 

The following is conclusive evidence 

that a Tribe was under Federal 

jurisdiction in 1934: 

(i) A vote under section 18 of the IRA 

(48 Stat. 988; 25 U.S.C. 5125) to accept 

or reject the IRA as recorded in Ten 

Years of Tribal Government Under 

I.R.A., Theodore Haas, United States 

Indian Service (Jan. 1947) (Haas List) or 

other Federal government document; 

(ii) Land held in trust by the United 

States for the Tribe in 1934. 

(iii) Secretarial approval of a Tribal 

constitution under section 16 of the IRA 

as recorded in the Haas List or other 

Federal Government document; 

(iv) Secretarial approval of a charter of 

incorporation issued to a Tribe under 

section 17 of the IRA as recorded in the 

Haas List or other Federal Government 

document; 

(v) An Executive Order for a specific 

Tribe that was still in effect in 1934; 

(vi) Treaties to which a Tribe is a 

party, ratified by the United States and 

still in effect as to that party in 1934; 

(vii) Continuing existence in 1934 or 

later of treaty rights guaranteed by a 

treaty ratified by the United States; or 

(viii) Other evidence that the 

Secretary determines is conclusive in a 

particular case. 

(2) Presumptive evidence is indicative 

that a Tribe was placed under Federal 

jurisdiction in or before 1934 and may 

indicate that such jurisdiction remained 

intact in 1934. In the absence of 

evidence indicating that Federal 

jurisdiction did not exist or did not exist 

in 1934, presumptive evidence satisfies 

the analysis under this section. The 

following is presumptive evidence that 

a Tribe was under Federal jurisdiction 

in 1934: 

(i) Evidence of treaty negotiations or 

evidence a Tribe signed a treaty with the 

United States whether or not such treaty 

was ratified by Congress; 

(ii) Listing of a Tribe in the 

Department of the Interior’s 1934 Indian 

Population Report; 

(iii) Evidence that the United States 

took efforts to acquire lands on behalf of 

a Tribe in the years leading up to the 

passage of the IRA; 

(iv) Inclusion in Volume V of Charles 

J. Kappler’s Indian Affairs, Laws and 

Treaties; 

(v) Federal legislation for a specific 

Tribe, including land claim settlements 

and termination legislation enacted after 

1934, which acknowledges the existence 

of a government-to-government 

relationship with a Tribe in or before 

1934; or 

(vi) Satisfaction of the criterion for 

Federal acknowledgment now located at 

25 CFR 83.11(a) and previously located 

at 25 CFR 83.7(a), requiring that a Tribe 

‘‘has been identified as an American 

Indian entity on a substantially 

continuous basis,’’ through evidence 

that brought the Tribe under Federal 

jurisdiction in or before 1934; or 

(vii) Other evidence that the Secretary 

determines is presumptive in a 

particular case. 

(3) In the absence of evidence 

identified above as conclusive or 

presumptive evidence, the Secretary 

may find that a Tribe was under Federal 

jurisdiction in 1934 when the United 

States in 1934 or at some point in the 

Tribe’s history prior to 1934, took an 

action or series of actions that, when 

viewed in concert through a course of 

dealings or other relevant acts on behalf 

of a Tribe, or in some instances Tribal 

members, establishes or generally 

reflects Federal obligations, or duties, 

responsibility for or authority over the 

Tribe, and that such jurisdictional status 

remained intact in 1934. 

(i) Examples of Federal actions that 

exhibit probative evidence of Federal 

jurisdiction may include but are not 

limited to, the Department’s acquisition 

of land for a Tribe in implementing the 

Indian Reorganization Act of 1934, 

efforts by the Federal Government to 

conduct a vote under section 18 of the 

IRA to accept or reject the IRA where no 

vote was held, the attendance of Tribal 

members at Bureau of Indian Affairs 

operated schools, Federal decisions 

regarding whether to remove or not 

remove a Tribe from its homelands, the 

inclusion of a Tribe in Federal reports 

and surveys, the inclusion of a Tribe or 

Tribal members in Federal census 

records prepared by the Office of Indian 

Affairs, the approval of contracts 

between a Tribe and non-Indians; 

enforcement of the Trade and 

Intercourse Acts (Indian trader, liquor 

laws, and land transactions), and the 

provision of health and social services 

to a Tribe or Tribal members. 

(4) When a Tribe is recognized under 

the 25 CFR part 83 process, the 

Secretary may rely on any evidence 

within the part 83 record that the Tribe 

was under Federal jurisdiction in or 

before 1934, consistent with 

§ 151.4(a)(2) and (3). 

(5) Evidence of executive officials 

disavowing Federal jurisdiction over a 

Tribe in certain instances is not 

conclusive evidence of a Tribe’s Federal 

jurisdictional status. This is because 

such disavowals cannot themselves 

revoke Federal jurisdiction over a Tribe. 

(b) For some Tribes, Congress enacted 

legislation after 1934 making the IRA 

applicable to the Tribe. The existence of 

such legislation making the IRA and its 

trust acquisition provisions applicable 

to a Tribe eliminates the need to 

determine whether a Tribe was under 

Federal jurisdiction in 1934. 

(c) In order to be eligible for trust 

acquisitions under section 5 of the IRA, 

no additional ‘‘under Federal 

jurisdiction’’ analysis is required under 

this part for Tribes for which the 

Department has previously issued an 

analysis finding the Tribe was under 

Federal jurisdiction. 

(d) Land may be acquired in trust 

status for an individual Indian or a 

Tribe in the State of Oklahoma under 

section 5 of the IRA if the acquisition 

comes within the terms of this part. This 

authority is in addition to all other 

statutory authority for such an 

acquisition. 


ddrumheller on DSK120RN23PROD with RULES2
86252 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

(e) The Secretary may also acquire 

land in trust status for an individual 

Indian or a Tribe under this part when 

specifically authorized by Federal law 

other than section 5 of the IRA, subject 

to any limitations contained in that 

Federal law. 

§ 151.5 May the Secretary acquire land in 

trust status by exchange? 

The Secretary may acquire land in 

trust status on behalf of an individual 

Indian or Tribe by exchange under this 

part if authorized by Federal law and 

within the terms of this part. The 

disposal aspects of an exchange are 

governed by part 152 of this title. 

§ 151.6 May the Secretary approve 

acquisition of a fractional interest? 

Where the mandatory acquisition 

process provided under 25 U.S.C. 

2216(c) is not applicable to a fractional 

interest acquisition, e.g., where the 

acquisition proposed is off-reservation, 

the following section applies to 

discretionary acquisitions of fractional 

interests. The Secretary may approve 

the acquisition of a fractional interest in 

a fractionated tract in trust status by an 

individual Indian or a Tribe including 

when: 

(a) The applicant already owns a 

fractional interest in the same parcel of 

land; 

(b) The interest being acquired by the 

applicant is in fee status; 

(c) The applicant offers to purchase 

the remaining undivided trust or 

restricted interests in the parcel at not 

less than their fair market value; 

(d) There is a specific law which 

grants to the applicant the right to 

purchase an undivided interest or 

interests in trust or restricted land 

without offering to purchase all such 

interests; or 

(e) The owner or owners of more than 

fifty percent of the remaining trust or 

restricted interests in the parcel consent 

in writing to the acquisition by the 

applicant. 

§ 151.7 Is Tribal consent required for 

nonmember acquisitions? 

An individual Indian or Tribe may 

acquire land in trust status on an Indian 

reservation other than its own only 

when the governing body of the Tribe 

having jurisdiction over such 

reservation consents in writing to the 

acquisition; provided, that such consent 

shall not be required if the individual 

Indian or the Tribe already owns an 

undivided trust or restricted interest in 

the parcel of land to be acquired. 

§ 151.8 What documentation is included in 

a trust acquisition package? 

An individual Indian or Tribe seeking 

to acquire land in trust status must file 

a written request, i.e., application, with 

the Secretary. The request need not be 

in any special form but must set out the 

identity of the parties, a description of 

the land to be acquired, and other 

information which would show that the 

acquisition fulfills the requirements of 

this part. The Secretary will prepare the 

acquisition package using information 

provided by the applicant and analysis 

developed by the Secretary, as described 

in paragraphs (a)(1) through (9) of this 

section: 

(a) A complete acquisition package 

consists of the following: 

(1) The applicant must submit a 

request that the land be acquired in 

trust, as follows: 

(i) If the applicant is an Indian Tribe, 

the Tribe’s written request must be a 

signed Tribal letter for trust acquisition 

supported by a Tribal resolution or 

other act of the governing body of the 

Tribe; 

(ii) If the applicant is an individual 

Indian, the individual’s written request 

must be a signed letter requesting trust 

status; 

(2) The applicant must submit 

documentation providing the 

information evaluated by the Secretary 

under § 151.9(a)(2) and (3), 

§ 151.10(a)(2) and (3), § 151.11(a)(2) and 

(3), or § 151.12(a)(2) and (3) depending 

on which section applies to the 

application; 

(3) The applicant must submit a 

statement identifying the existence of 

statutory authority for the acquisition 

including, if applicable, any supporting 

evidence that the Tribe was under 

Federal jurisdiction in 1934 pursuant to 

§ 151.4. 

(4) The applicant must submit a 

description of the land as follows: 

(i) An aliquot part, government lot, 

parcel identified on a Government Land 

Office or Bureau of Land Management 

official survey plat, or lot block 

subdivision (LBS) legal description of 

the land and a map from the applicant, 

including a statement of the estate to be 

acquired, e.g., all surface and mineral 

rights, surface rights only, surface rights 

and a portion of the mineral rights, etc.; 

or 

(ii) A metes and bounds land 

description and survey if the land 

cannot be described by the methods 

listed in paragraph (a)(4)(i) of this 

section, including a statement of the 

estate to be acquired. The survey may be 

completed by a land surveyor registered 

in the jurisdiction in which the land is 

located when the land being acquired is 

fee simple land; and 

(iii) An application package is not 

complete until the Secretary determines 

that the legal description or survey is 

sufficient. 

(5) The applicant must submit 

information that allows the Secretary to 

comply with the National 

Environmental Policy Act (NEPA) and 

602 DM 2, Land Acquisitions: 

Hazardous Substances Determinations 

pursuant to § 151.15; and 

(i) An acquisition package is not 

complete until the public review period 

of a final environmental impact 

statement or, where appropriate, the 

final environmental assessment has 

concluded, or the categorical exclusion 

documentation is complete. 

(ii) An acquisition package is not 

complete until a pre-acquisition Phase I 

environmental site assessment, and if 

necessary, a Phase II environmental site 

assessment completed pursuant to 602 

DM 2 is determined to be sufficient by 

the Secretary. 

(6) The applicant must submit title 

evidence pursuant to § 151.14. 

(i) An acquisition package is not 

complete until the Secretary completes 

a Preliminary Title Opinion based on 

such evidence; 

(7) The Secretary shall send 

notification letters pursuant to § 151.9, 

§ 151.10, § 151.11, or § 151.12. 

(8) The applicant must submit a 

statement that any existing covenants, 

easements, or restrictions of record will 

not interfere with the applicant’s 

intended use of the land; and 

(9) The applicant must submit any 

additional information or action 

requested by the Secretary, in writing, if 

warranted by the specific application. 

(b) After the Bureau of Indian Affairs 

is in possession of a complete 

acquisition package, the Secretary shall: 

(1) Notify the applicant within 30 

calendar days in writing that the 

acquisition package is complete; and 

(2) Issue a decision on a request 

within 120 calendar days after issuance 

of the notice of a complete acquisition 

package. 

§ 151.9 How will the Secretary evaluate a 

request involving land within the 

boundaries of an Indian reservation? 

(a) The Secretary shall consider the 

criteria in this section when evaluating 

requests for the acquisition of land in 

trust status when the land is located 

within the boundaries of an Indian 

reservation. 

(1) The existence of statutory 

authority for the acquisition and any 

limitations contained in such authority; 

(2) If the applicant is an individual 

Indian, the need for additional land, the 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86253 

amount of trust or restricted land 

already owned by or for that individual, 

and the degree to which the individual 

needs assistance in handling their 

affairs; 

(3) The purposes for which the land 

will be used; and 

(4) If the land to be acquired is in fee 

status, whether the Bureau of Indian 

Affairs is equipped to discharge the 

additional responsibilities resulting 

from the acquisition of the land in trust 

status. 

(b) The Secretary shall give great 

weight to acquiring land that serves any 

of the following purposes, in accordance 

with § 151.3: 

(1) Furthers Tribal interests by 

establishing a Tribal land base or 

protects Tribal homelands; 

(2) Protects sacred sites or cultural 

resources and practices; 

(3) Establishes or maintains 

conservation or environmental 

mitigation areas; 

(4) Consolidates land ownership; 

(5) Reduces checkerboarding; 

(6) Acquires land lost through 

allotment; 

(7) Protects treaty or subsistence 

rights; or 

(8) Facilitates Tribal selfdetermination, economic development, 

or Indian housing. 

(c) When reviewing a Tribe’s request 

for land within the boundaries of an 

Indian reservation, the Secretary 

presumes that the acquisition will 

further the Tribal interests described in 

paragraph (b) of this section, and 

adverse impacts to local governments’ 

regulatory jurisdiction, real property 

taxes, and special assessments will be 

minimal, therefore the application 

should be approved. 

(d) Upon receipt of a written request 

to have land acquired in trust within the 

boundaries of an Indian reservation the 

Secretary shall notify the State and local 

governments with regulatory 

jurisdiction over the land to be acquired 

of the applicant’s request. The notice 

will inform the State or local 

government that each will be given 30 

calendar days in which to provide 

written comments to rebut the 

presumption of minimal adverse 

impacts to regulatory jurisdiction, real 

property taxes, and special assessments. 

If the State or local government 

responds within 30 calendar days, a 

copy of the comments will be provided 

to the applicant, who will be given a 

reasonable time in which to reply, if 

they choose to do so in their discretion, 

or request that the Secretary issue a 

decision. In considering such 

comments, the Secretary presumes that 

the Tribal community will benefit from 

the acquisition. 

§ 151.10 How will the Secretary evaluate a 

request involving land contiguous to the 

boundaries of an Indian reservation? 

(a) The Secretary shall consider the 

criteria in this section when evaluating 

requests for the acquisition of land in 

trust status when the land is located 

contiguous to an Indian reservation: 

(1) The existence of statutory 

authority for the acquisition and any 

limitations contained in such authority; 

(2) If the applicant is an individual 

Indian, the need for additional land, the 

amount of trust or restricted land 

already owned by or for that individual, 

and the degree to which the individual 

needs assistance in handling their 

affairs; 

(3) The purposes for which the land 

will be used; and 

(4) If the land to be acquired is in fee 

status, whether the Bureau of Indian 

Affairs is equipped to discharge the 

additional responsibilities resulting 

from the acquisition of the land in trust 

status. 

(b) The Secretary shall give great 

weight to acquiring land that serves any 

of the following purposes, in accordance 

with § 151.3: 

(1) Furthers Tribal interests by 

establishing a Tribal land base or 

protects Tribal homelands; 

(2) Protects sacred sites or cultural 

resources and practices; 

(3) Establishes or maintains 

conservation or environmental 

mitigation areas; 

(4) Consolidates land ownership; 

(5) Reduces checkerboarding; 

(6) Acquires land lost through 

allotment; 

(7) Protects treaty or subsistence 

rights; or 

(8) Facilitates Tribal selfdetermination, economic development, 

or Indian housing. 

(c) When reviewing a Tribe’s request 

for land contiguous to an Indian 

reservation, the Secretary presumes that 

the acquisition will further the Tribal 

interests described in paragraph (b) of 

this section, and adverse impacts to 

local governments’ regulatory 

jurisdiction, real property taxes, and 

special assessments will be minimal, 

therefore the application should be 

approved. 

(d) Upon receipt of a written request 

to have land contiguous to an Indian 

reservation acquired in trust status, the 

Secretary shall notify the State and local 

governments with regulatory 

jurisdiction over the land to be 

acquired. The notice will inform the 

State or local government that each will 

be given 30 calendar days in which to 

provide written comments to rebut the 

presumption of minimal adverse 

impacts to regulatory jurisdiction, real 

property taxes, and special assessments. 

If the State or local government 

responds within 30 calendar days, a 

copy of the comments will be provided 

to the applicant, who will be given a 

reasonable time in which to reply, if 

they choose to do so in their discretion, 

or request that the Secretary issue a 

decision. In considering such 

comments, the Secretary presumes that 

the Tribal community will benefit from 

the acquisition. 

§ 151.11 How will the Secretary evaluate a 

request involving land outside of and 

noncontiguous to the boundaries of an 

Indian reservation? 

(a) The Secretary shall consider the 

criteria in this section when evaluating 

requests for the acquisition of land in 

trust status when the land is located 

outside of and noncontiguous to an 

Indian reservation: 

(1) The existence of statutory 

authority for the acquisition and any 

limitations contained in such authority; 

(2) If the applicant is an individual 

Indian and the land is already held in 

trust or restricted status, the need for 

additional land, the amount of trust or 

restricted land already owned by or for 

that individual, and the degree to which 

the individual needs assistance in 

handling their affairs; 

(3) The purposes for which the land 

will be used; and 

(4) If the land to be acquired is in fee 

status, whether the Bureau of Indian 

Affairs is equipped to discharge the 

additional responsibilities resulting 

from the acquisition of the land in trust 

status. 

(b) The Secretary shall give great 

weight to acquiring land that serves any 

of the following purposes, in accordance 

with § 151.3: 

(1) Furthers Tribal interests by 

establishing a Tribal land base or 

protects Tribal homelands; 

(2) Protects sacred sites or cultural 

resources and practices; 

(3) Establishes or maintains 

conservation or environmental 

mitigation areas; 

(4) Consolidates land ownership; 

(5) Reduces checkerboarding; 

(6) Acquires land lost through 

allotment; 

(7) Protects treaty or subsistence 

rights; or 

(8) Facilitates Tribal selfdetermination, economic development, 

or Indian housing. 

(c) Upon receipt of a written request 

to have land outside the boundaries of 


ddrumheller on DSK120RN23PROD with RULES2
86254 Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 

an Indian reservation acquired in trust 

status, the Secretary shall notify the 

State and local governments with 

regulatory jurisdiction over the land to 

be acquired. The notice will inform the 

State or local government that each will 

be given 30 calendar days in which to 

provide written comments on the 

acquisition’s potential impact on 

regulatory jurisdiction, real property 

taxes, and special assessments. If the 

State or local government responds 

within 30 calendar days, a copy of the 

comments will be provided to the 

applicant, who will be given a 

reasonable time in which to reply, if 

they choose to do so in their discretion, 

or request that the Secretary issue a 

decision. In reviewing such comments, 

the Secretary will consider the location 

of the land and potential conflicts of 

land use. The Secretary presumes that 

the Tribe will benefit from the 

acquisition. 

§ 151.12 How will the Secretary evaluate a 

request involving land for an initial Indian 

acquisition? 

(a) The Secretary shall consider the 

criteria in this section when evaluating 

requests for the acquisition of land in 

trust status when a Tribe does not have 

a reservation or land held in trust. 

(1) The existence of statutory 

authority for the acquisition and any 

limitations contained in such authority; 

(2) The purposes for which the land 

will be used; and 

(3) If the land to be acquired is in fee 

status, whether the Bureau of Indian 

Affairs is equipped to discharge the 

additional responsibilities resulting 

from the acquisition of the land in trust 

status. 

(b) The Secretary shall give great 

weight to acquiring land that serves any 

of the following purposes, in accordance 

with § 151.3: 

(1) Furthers Tribal interests by 

establishing a Tribal land base or 

protects Tribal homelands; 

(2) Protects sacred sites or cultural 

resources and practices; 

(3) Establishes or maintains 

conservation or environmental 

mitigation areas; 

(4) Consolidates land ownership; 

(5) Reduces checkerboarding; 

(6) Acquires land lost through 

allotment; 

(7) Protects treaty or subsistence 

rights; or 

(8) Facilitates Tribal selfdetermination, economic development, 

or Indian housing. 

(c) When reviewing a request for a 

Tribe that does not have a reservation or 

land held in trust, the Secretary 

presumes that the acquisition will 

further the Tribal interests described in 

paragraph (b) of this section, and 

adverse impacts to local governments’ 

regulatory jurisdiction, real property 

taxes, and special assessments will be 

minimal, therefore the application 

should be approved. 

(d) Upon receipt of a written request 

for land to be acquired in trust when a 

Tribe does not have a reservation or 

land held in trust, the Secretary shall 

notify the State and local governments 

with regulatory jurisdiction over the 

land to be acquired. The notice will 

inform the State or local government 

that each will be given 30 calendar days 

in which to provide written comments 

to rebut the presumption of minimal 

adverse impacts to regulatory 

jurisdiction, real property taxes, and 

special assessments. If the State or local 

government responds within 30 

calendar days, a copy of the comments 

will be provided to the applicant, who 

will be given a reasonable time in which 

to reply, if they choose to do so in their 

discretion, or request that the Secretary 

issue a decision. In reviewing such 

comments, the Secretary will consider 

the location of the land and potential 

conflicts of land use. The Secretary 

presumes that the Tribe will benefit 

from the acquisition. 

§ 151.13 How will the Secretary act on 

requests? 

(a) The Secretary shall review each 

request and may request any additional 

information or justification deemed 

necessary to reach a decision. 

(b) The Secretary’s decision to 

approve or deny a request shall be in 

writing and state the reasons for the 

decision. 

(c) A decision made by the Office of 

the Secretary or the Assistant 

Secretary—Indian Affairs pursuant to 

delegated authority, is a final agency 

action under 5 U.S.C. 704 upon 

issuance. 

(1) If the Office of the Secretary or 

Assistant Secretary denies the request, 

the Assistant Secretary shall promptly 

provide the applicant with the decision. 

(2) If the Office of the Secretary or 

Assistant Secretary approves the 

request, the Assistant Secretary shall: 

(i) Promptly provide the applicant 

with the decision; 

(ii) Promptly publish notice in the 

Federal Register of the decision to 

acquire land in trust status under this 

part; and 

(iii) Immediately acquire the land in 

trust status under § 151.16 after the date 

such decision is issued and upon 

fulfillment of the requirements of any 

other Department of the Interior 

requirements. 

(d) A decision made by a Bureau of 

Indian Affairs official, rather than the 

Office of the Secretary or Assistant 

Secretary, pursuant to delegated 

authority, is not a final agency action of 

the Department of the Interior under 5 

U.S.C. 704 until administrative 

remedies are exhausted under part 2 of 

this chapter and under 43 CFR part 4, 

subpart D, or until the time for filing a 

notice of appeal has expired and no 

administrative appeal has been filed. 

Administrative appeals are governed by 

part 2 of this chapter and by 43 CFR part 

4, subpart D. 

(1) If the official denies the request, 

the official shall promptly provide the 

applicant with the decision and 

notification of the right to file an 

administrative appeal under part 2 of 

this chapter. 

(2) If the official approves the request, 

the official shall: 

(i) Promptly provide the applicant 

with the decision; 

(ii) Promptly provide written notice, 

by U.S. mail or personal delivery, of the 

decision and the right, if any, to file an 

administrative appeal of such decision 

under part 2 of this chapter and 43 CFR 

part 4, subpart D to: 

(A) Interested parties who have made 

themselves known, in writing, to the 

official prior to the decision being made; 

and 

(B) The State and local governments 

having regulatory jurisdiction over the 

land to be acquired; 

(iii) Promptly publish a notice in a 

newspaper of general circulation serving 

the affected area of the decision and the 

right, if any, of interested parties who 

did not make themselves known, in 

writing, to the official to file an 

administrative appeal of the decision 

under part 2 of this chapter; and 

(iv) Immediately acquire the land in 

trust status under § 151.16 upon 

expiration of the time for filing a notice 

of appeal or upon exhaustion of 

administrative remedies under part 2 of 

this chapter and under 43 CFR part 4, 

subpart D, and upon the fulfillment of 

any other Department of the Interior 

requirements. 

(3) The administrative appeal period 

begins on: 

(i) The date of receipt of written 

notice by the applicant or interested 

parties entitled to notice under 

paragraphs (d)(1) and (d)(2)(ii) of this 

section; or 

(ii) The date of first publication of the 

notice for unknown interested parties 

under paragraph (d)(2)(iii) of this 

section, which shall be deemed the date 

of receipt of the decision. 

(4) Any party who wishes to seek 

judicial review of an official’s decision 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 237 / Tuesday, December 12, 2023 / Rules and Regulations 86255 

must first exhaust administrative 

remedies under 25 CFR part 2 and 

under 43 CFR part 4, subpart D. 

§ 151.14 How will the Secretary review 

title? 

(a) The applicant must submit title 

evidence as part of a complete 

acquisition package as described in 

§ 151.8 as follows: 

(1) The deed or other conveyance 

instrument providing evidence of the 

applicant’s title or, if the applicant does 

not yet have title, the deed providing 

evidence of the transferor’s title and a 

written agreement or affidavit from the 

transferor that title will be transferred to 

the United States on behalf of the 

applicant to complete the acquisition in 

trust status; and 

(2) Either: 

(i) A current title insurance 

commitment issued by a title company; 

or 

(ii) The policy of title insurance 

issued by a title company to the 

applicant or current owner and an 

abstract of title issued by a title compact 

dating from the time the policy of title 

insurance was issued to the applicant or 

current owner to the present. The 

Secretary may accept a preliminary title 

report or equivalent document prepared 

by a title company in place of an 

abstract of title for purposes of this 

paragraph (a)(2)(ii) if the applicant 

provides evidence that the title 

company will not issue an abstract of 

title based on practice in the local 

jurisdiction, subject to the requirements 

of paragraph (b) of this section. 

(3) The applicant may choose to 

provide title evidence meeting the title 

standards issued by the U.S. Department 

of Justice, in lieu of the evidence 

required by paragraph (a)(2) of this 

section. 

(b) After reviewing title evidence, the 

Secretary shall notify the applicant of 

any liens, encumbrances, or infirmities 

that the Secretary identified and may 

seek additional information or action 

from the applicant needed to address 

such issues. The Secretary may require 

the elimination of any such liens, 

encumbrances, or infirmities prior to 

acceptance of the land in trust status if 

the Secretary determines that the liens, 

encumbrances, or infirmities make title 

to the land unmarketable. 

§ 151.15 How will the Secretary conduct a 

review of environmental conditions? 

(a) The Secretary shall comply with 

the requirements of the National 

Environmental Policy Act (NEPA) (43 

U.S.C. 4321 et seq.), applicable Council 

on Environmental Quality regulations 

(40 CFR parts 1500–1508), and 

Department of the Interior regulations 

(43 CFR part 46) and guidance. The 

Secretary’s compliance may require 

preparation of an environmental impact 

statement, an environmental 

assessment, a categorical exclusion, or 

other documentation that satisfies the 

requirements of NEPA. 

(b) The Secretary shall comply with 

the terms of 602 DM 2, Land 

Acquisitions: Hazardous Substances 

Determinations, or its successor policy 

if replaced or renumbered, so long as 

such guidance remains in place and 

binding. If the Secretary approves a 

request for the acquisition of land in 

trust status, the Secretary may then 

require, before formalization of 

acceptance pursuant to § 151.16, that 

the applicant provide information 

updating a prior pre-acquisition 

environmental site assessment 

conducted under 602 DM 2. 

(1) If no recognized environmental 

conditions or other environmental 

issues of concern are identified in the 

pre-acquisition environmental site 

assessment or before formalization of 

acceptance and all other requirements of 

this section and §§ 151.13 and 151.14 

are met, the Secretary shall acquire the 

land in trust. 

(2) If recognized environmental 

conditions or other environmental 

issues of concern are identified in the 

pre-acquisition environmental site 

assessment or before formalization of 

acceptance, the Secretary shall notify 

the applicant and may seek additional 

information or action from the applicant 

to address such issues of concern. The 

Secretary may require the elimination of 

any such issues of concern prior to the 

formalization of acceptance. 

§ 151.16 How are formalization of 

acceptance and trust status attained? 

(a) The Secretary shall formalize 

acceptance of land in trust status by 

signing an instrument of conveyance. 

The Secretary shall sign the instrument 

of conveyance after the requirements of 

§§ 151.13, 151.14, and 151.15 have been 

met. 

(b) The land will attain trust status 

when the Secretary signs the instrument 

of conveyance. 

(c) The Secretary shall record the 

deed with LTRO pursuant to part 150 of 

this chapter. 

§ 151.17 What effect does this part have 

on pending requests and final agency 

decisions already issued? 

(a) Requests pending on January 11, 

2024 will continue to be processed 

under 25 CFR part 151 (revised as of 

April 1, 2023) unless the applicant 

requests in writing to proceed under 

this part. 

(1) Upon receipt of such a request, the 

Secretary shall process the pending 

application under this part, except for 

§ 151.8(b)(2). 

(2) The Secretary shall consider the 

comments of State and local 

governments submitted under the notice 

provisions of 25 CFR part 151 (revised 

as of April 1, 2023). 

(b) This part does not alter decisions 

of Bureau of Indian Affairs Officials 

under appeal on January 11, 2024 or 

final agency decisions made before 

January 11, 2024. 

§ 151.18 Severability. 

If any provision of this part, or any 

application of a provision, is stayed or 

determined to be invalid by a court of 

competent jurisdiction, the remaining 

provisions or applications are severable 

and shall continue in effect. 

Bryan Newland, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2023–27077 Filed 12–11–23; 8:45 am] 

BILLING CODE 4337–15–P 


ddrumheller on DSK120RN23PROD with RULES2