Indian Issues: BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve the Processing of Land in Trust Applications
Published: 2006-07-28T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In 1980, the Department of the Interior (Interior) established regulations to provide a uniform approach for taking land in trust. Trust status means the government holds title to the land in trust for tribes and individual Indians. Trust land is exempt from state and local taxes. The Secretary of the Interior has delegated primary responsibility for processing, reviewing, and deciding on applications to take land in trust to the Bureau of Indian Affairs (BIA). As part of this process, BIA must seek comments from affected state and local governments. Congress directed GAO to study BIA's processing of land in trust applications to determine the extent to which (1) BIA followed its regulations, (2) applications were processed in a timely manner, and to (3) identify any concerns raised by state and local governments about land in trust applications. GAO is also providing information on problems with BIA's data on the processing of land in trust applications.
section_title: What GAO Found
paragraphs: BIA generally followed its regulations for processing land in trust applications, although most of the criteria in the regulations are not specific and thus do not offer clear guidance for how BIA should apply them. For example, there are no guidelines on how to weigh the impact of lost tax revenues on local governments. As a result, the BIA decision maker has wide discretion. Generally, all of the 87 applications with decisions in fiscal year 2005 were approved, except for 1 denial and 6 that were closed because the applications were incomplete. BIA is considering revisions to the regulations that would clarify that applications will generally be approved unless there is clear evidence of significant negative impacts. These revisions would make BIA's decision-making process more transparent. Currently, BIA has no deadlines for making decisions on land in trust applications, but BIA is considering imposing about a 6-month time frame. In addition, there is also a 60-day time frame for BIA regional directors to rule on appeals. Based on these time frames, it appears that many land in trust applications have not been processed in a timely manner. First, the median processing time for the 87 applications with decisions in fiscal year 2005 was 1.2 years--ranging from 58 days to almost 19 years. Second, 28 complete off-reservation applications had been waiting an average of 1.4 years for a decision as of September 30, 2005. Third, 34 appeals had been waiting an average of about 3 years for resolution by a BIA regional director as of September 30, 2005. When opposing land in trust applications or appealing decisions, state and local governments principally cited concerns about lost tax revenues and jurisdictional issues. In commenting on applications prior to decisions made in fiscal year 2005, state and local governments opposed 12 of 87 applications, or about 14 percent. Also, as of September 30, 2005, 45 decisions were on administrative appeal to either a BIA regional director or Interior's Board of Indian Appeals, including 5 appealed decisions from fiscal year 2005. Although GAO found little opposition to applications with decisions in fiscal year 2005, some state and local governments we contacted said (1) they did not have access to sufficient information about the land in trust applications and (2) the 30-day comment period was not sufficient time in which to comment. GAO found the data in BIA's land in trust database, which was implemented in August 2004, were frequently incomplete and inaccurate. The database was hastily developed without defining user requirements and data fields. Specifically, (1) not all of the applications had been entered into the database and (2) the status of an application, as either approved or denied, was frequently incorrect. A properly designed and implemented database with accurate data would provide BIA with important information to help better manage the land in trust process. BIA has already recognized the shortcomings and initiated an effort to redesign the database as necessary.

section_title: Letter
paragraphs: In 1980, the Department of the Interior (Interior) established a regulatory  process intended to provide a uniform approach for taking land in trust.   Trust status means that the federal government holds title to the land in  trust for tribes or individual Indians. Land taken in trust is no longer  subject to state and local property taxes and zoning ordinances. Many  Indians believe that having their land placed in trust status is fundamental  to safeguarding it against future loss and ensuring their sovereignty. While  some state and local governments support the federal government’s taking  additional land in trust for tribes or individual Indians, others strongly  oppose it because of concerns about the impacts on their tax base and  jurisdictional control. Further, the growth of Indian gaming, its impacts on  local communities, and the possibility that newly acquired land taken in  trust could be used for gaming have led to heightened concerns about  Indian land acquisitions by some members of the public and some state and  local governments.
Taking land in trust can be mandated by Congress through legislation or at  the discretion of the Secretary of the Interior. Under the regulations, tribes  or individual Indians who purchase or own property on which they pay  property taxes can submit a written request to the Secretary of the Interior  to have the land taken in trust. If approved, the ownership status of the  property would be converted from taxable status to nontaxable Indian trust  status. For requests made by tribes or individual Indians under Interior’s  discretionary authority, the regulations establish criteria that the Secretary  of the Interior must consider in evaluating whether to approve or deny the  request. The criteria differ slightly for requests involving land located  within or contiguous to an existing Indian reservation—referred to as on- reservation acquisitions—and land located outside of and not contiguous  to an existing Indian reservation—referred to as off-reservation  acquisitions. The on-reservation criteria require that the Secretary  consider, among other things, the impact on the state and its political  subdivisions resulting from removing the land from the tax rolls and  jurisdictional problems and potential conflicts surrounding land use that  could arise. As part of the process, state and local governments must be  notified of a request and allowed 30 days to provide written comments on  the potential impacts of regulatory jurisdiction, real property taxes, and  special assessments. For off-reservation requests, the regulations also  require the Secretary to, among other things, give greater scrutiny to the  tribe’s justification of anticipated benefits from the acquisition as the  distance away from the reservation increases and give greater weight to  concerns raised by state and local governments.
The Secretary of the Interior has delegated to the Assistant Secretary for  Indian Affairs, primarily through the Bureau of Indian Affairs (BIA), the  day-to-day responsibility for processing, reviewing, and deciding on  applications to take land in trust. Written applications are submitted to BIA  regional offices and local agency offices across the country. In most cases,  the decision maker for on-reservation applications is the superintendent of  the local agency office. For off-reservation applications, the decision maker  is the applicable BIA regional director. However, under Interior’s policy, the  Assistant Secretary for Indian Affairs is to review all off-reservation  applications and provide input before the regional director issues a  decision. On- and off-reservation applications are generally processed by a  combination of BIA realty staff at BIA’s Central Office in Washington, D.C.,  a BIA regional office, and a local agency office. Decisions by BIA  superintendents and regional directors are not Interior’s final position until  the administrative appeals process has been exhausted. Decisions may be  appealed to the applicable BIA regional director or to Interior’s Board of  Indian Appeals (IBIA), depending on who the decision maker was.  Ultimately, disputes over taking land in trust may be litigated in federal  court.
To be able to provide agencywide data on the processing of land in trust  applications, BIA created a land in trust database in the summer of 2004.  Each BIA office is responsible for entering key dates and information about  the processing of their land in trust applications, such as the date  comments were requested and received from state and local governments  and the date of BIA’s decision. By the end of fiscal year 2005, BIA officials  had entered information on over 1,000 applications into the database. The  applications cover tracts of land that are less than an acre to tracts that are  thousands of acres, located in both rural and urban areas. The database  shows most of the applications are pending. However, the information in  the database is not complete or accurate enough to use in describing the  status or condition of applications overall. Therefore, to provide such a  description for this report, we primarily relied upon applications with  decisions in fiscal year 2005, as we were able to verify the accuracy and  completeness of these applications by reviewing the actual documents in  select BIA offices across the country. In this manner we were able to  ensure that we had the complete population for applications with decisions  in fiscal year 2005. In fiscal year 2005, BIA superintendents and regional  directors issued decisions on 87 applications covering more than 5,800  acres for 31 tribes or their members in 12 states. Since 1934, the total  acreage held in trust by the federal government for the benefit of tribes and  their members has increased from about 49 million to about 54 million.
The fiscal year 2006 House Appropriations Committee Report for Interior’s  appropriation bill directed GAO to study BIA’s procedures and practices in  implementing the land in trust regulations. In response to this direction  and subsequent discussions with congressional offices, we (1) assessed the  extent to which BIA’s processing of land in trust applications followed its  regulations, (2) determined the extent to which applications were  processed in a timely manner, and (3) identified any state and local  government concerns about land in trust applications and how they were  addressed in BIA’s decision-making process. In addition, we are providing  information on the problems we encountered with the data BIA collects on  the processing of land in trust applications. We also agreed to review the  Department of the Interior’s Bureau of Land Management’s process for  issuing allotments of land to individual Indians out of the public domain.  We will report on that issue separately because it involves a different  agency and different legislative authority.
In conducting our work, we reviewed applicable laws, regulations, and land  in trust applications. We reviewed applications and interviewed BIA realty  staff at six regional offices—Eastern, Midwest, Northwest, Pacific,  Southern Plains, and Southwest—and eight agency offices—Blackfeet  (Browning, Montana), Chickasaw (Ada, Oklahoma), Great Lakes (Ashland,  Wisconsin), Horton (Horton, Kansas), Minnesota (Bemidji, Minnesota),  Siletz (Siletz, Oregon), Warm Springs (Warm Springs, Oregon), and Wind  River (Fort Washakie, Wyoming). We visited all of the BIA offices with 10 or  more land in trust applications decided in fiscal year 2005. From the offices  we visited, we collected 67 of the 87 discretionary nongaming land in trust  applications decided in fiscal year 2005, or 77 percent. BIA staff from the  locations we did not visit made copies of an additional 18 applications and  mailed them to us. We obtained the remaining two applications from the  IBIA. We analyzed these applications in the following ways:  To determine how BIA processed land in trust applications, we reviewed  the 87 applications with decisions in fiscal year 2005, and we compared  how the applications were processed with the requirements in the  regulations.
To determine whether applications were processed in a timely manner,  we compared the processing times for (1) 87 applications with decisions  in fiscal year 2005 and (2) 28 complete off-reservation applications  awaiting comments from the Office of the Assistant Secretary for Indian  Affairs to 120 business days, or about 6 months, the time frame BIA is  considering imposing for making decisions on on- and off-reservation  land in trust applications. In addition, we compared the length of time  that 34 appealed decisions had been awaiting resolution by BIA regional  directors with the current 60-day time frame set forth in the regulations  on appeals. We also interviewed BIA officials and tribal representatives  involved in the process to obtain their views on the time taken for  processing applications.
To determine whether state and local governments had any concerns  about land in trust applications, we analyzed the content of comments  made by these governments for the 87 applications with decisions in  fiscal year 2005. We also reviewed the issues raised by state and local  governments in all 45 appeals pending as of September 30, 2005—34  appeals pending before BIA regional directors and 11 appeals pending  before the IBIA. In addition, we obtained the perspectives of  representatives of the National Governors Association and the National  Association of Counties.
To determine the accuracy and reliability of BIA’s land in trust database,  we compared the information in the database with other data sources:   spreadsheets used by a number of the BIA offices we visited to track  land in trust applications, BIA realty reports prepared under the  Government Performance and Results Act, and BIA annual acreage  reports. We also discussed the development of the current database and  the proposed redesign of the database with staff in the Office of the  Chief Information Officer within the Office of the Assistant Secretary for  Indian Affairs.
A more detailed description of our objectives, scope and methodology can  be found in appendix I. We performed our work between August 2005 and  June 2006 in accordance with generally accepted government auditing  standards.
subsections: section_title: Background
paragraphs: The Secretary of the Interior is hereby authorized, in his discretion, to acquire through  purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights  or surface rights to lands, within or without existing reservations … for the purpose of  providing land for the Indians. … Title to any lands or rights acquired pursuant to this Act  shall be taken in the name of the United States in trust for the Indian tribe or individual  Indian for which the land is acquired, and such lands or rights shall be exempt from State  and local taxation.
Since 1934, the total acreage held in trust by the federal government for the  benefit of tribes and their members has increased from about 49 million to  about 54 million acres.
Within Interior, BIA is responsible for the administration and management  of all land held in trust by the United States and for serving the 561  federally recognized tribes and about 1.9 million individual Indians and  Alaska Natives. The Assistant Secretary for Indian Affairs has primary  responsibility for BIA while the BIA Director oversees its day-to-day  operations. BIA has over 9,600 staff and an annual budget of about $2.39  billion.  BIA’s responsibilities include the administration of education  systems, social services, and natural resource management, among other  things. BIA is organized by 12 regions with 58 underlying agencies located  throughout the country. One region covers the state of Alaska, and the remaining 11 cover the continental United States. (See fig. 1.)  A regional  director is in charge of each regional office and a superintendent is in  charge of each agency office.
The Office of Trust Services, which includes BIA’s Central Office realty  staff, provides overall guidance for the land in trust program as one of its  many responsibilities. Real estate services staff, about 390 total with an  annual budget near $41 million, are located at BIA offices across the  country and are responsible for processing land in trust applications, as  well as other functions, including property management, land leasing and  title activity, and lease compliance. Real estate services staff are under the  line authority of regional directors and agency superintendents.
In 1980, Interior established a regulatory process intended to provide a  uniform approach for taking land in trust. For on-reservation applications  under the Secretary’s discretionary authority, the deciding official must  consider   the statutory authority to take land into trust;  the need for the land;   the purpose of acquiring the land;   for individual Indians, the amount of land already held in trust and the  individual’s need for assistance in handling business matters;   the implications for state and local governments of removing land from   the potential jurisdictional concerns of state and local governments;   BIA’s ability to discharge its duties on the newly acquired land; and   environmental compliance, particularly with the National  Environmental Policy Act (NEPA).
For off-reservation applications under the Secretary’s discretionary  authority, BIA must also place greater weight on the concerns of state and  local governments as the distance of the land from the tribe’s reservation  increases and review a business plan if the land is to be acquired for  business purposes. Once these steps have been completed, BIA provides a  decision to the applicant and affected parties. Several additional steps  follow, including publication of the decision in the Federal Register or a  local newspaper, and possible administrative appeals and litigation.
In 1988, about 8 years after the regulations for taking land in trust were  issued, the Indian Gaming Regulatory Act was enacted. The act provided  the statutory basis for the operation and regulation of certain gaming  activities on Indian lands. It generally prohibits gaming activities on Indian  trust lands acquired by the Secretary after October 17, 1988, the date the  act was signed into law. However, the act does provide several exceptions  that allow gaming on lands acquired in trust after its enactment. For fiscal  year 2005, gaming revenues from Indian gaming facilities totaled $22.6  billion.
On applications for land in trust, applicants must declare the anticipated  use of the property, particularly whether the property will be for gaming or  nongaming purposes. Applications to take land in trust for gaming  purposes are handled by the Office of Indian Gaming Management within  the Office of the Assistant Secretary for Indian Affairs. In September 2005,  Interior’s Office of the Inspector General reported on the processing of  applications for land in trust for gaming purposes. The Inspector General  reported that while the review and approval process for gaming  applications was “sufficient,” the process took an average of 17 months— or about 1.4 years—from the time BIA received the application until its  final action. Furthermore, the Inspector General reported 10 instances  where tribes had converted lands acquired for nongaming purposes to  gaming without first getting the necessary approvals pursuant to the Indian  Gaming Regulatory Act. Interior subsequently determined that five of these  conversions were eligible for gaming under the Indian Gaming Regulatory  Act, one was not, and four were still under review at the time of the  Inspector General’s report. The gaming facility on the one ineligible  conversion was later closed.
Our report focuses on discretionary nongaming land in trust applications,  which fall into three categories—on-reservation, off-reservation, and  “gaming related” applications. The gaming related category was added in  2001, and it refers to applications involving support facilities for gaming  establishments, such as parking lots and maintenance buildings, but not the  actual gaming activity itself. By directive of the Assistant Secretary for  Indian Affairs, each category of applications is processed slightly  differently or by a different office. In most cases, the decision maker for on- reservation applications is the superintendent of the local BIA agency  office. For the remaining on-reservation applications and for the off- reservation applications, the decision maker is the applicable BIA regional  director. Off-reservation applications are processed using the criteria in 25  C.F.R. §151.11 and the Assistant Secretary for Indian Affairs is to review the  draft decision and supporting materials and provide input before the  regional director issues a decision. On- and off-reservation applications are  generally processed by a combination of BIA realty staff at BIA’s Central  Office in Washington, D.C.; a BIA regional office; or a local BIA agency  office. Finally, gaming-related applications are processed by the Office of  Indian Gaming Management in Washington, D.C., and the decision maker is  the Assistant Secretary for Indian Affairs.
During the land in trust process, administrative appeals must be filed  within 30 days of receipt by the applicant of the notice of the decision, and  parties have at least 30 days to file judicial challenges after the decision is  published in the Federal Register or a local newspaper. Administrative  appeals can be filed with the applicable BIA regional director or the IBIA,  depending on who the BIA deciding official was. First, if a superintendent  was the deciding official, parties can appeal the decision to a regional  director. The regional director then reviews the application’s administrative  record and any other available information and renders a ruling. The  regulations governing appeals state that a regional director must make a  ruling within 60 days after all times for pleadings, including extensions,  have expired. The regional director’s ruling can then be further appealed  to the IBIA, the administrative review body at Interior. The IBIA’s ruling is  the final position for Interior. Second, if a regional director was the  decision maker, parties may appeal the decision to the IBIA. Once a  decision is final for Interior, it is published in the Federal Register or a local  newspaper and parties have at least 30 days to file judicial challenges to the  decision. Appendix II provides an overview of the land in trust process.
Interior is considering revisions to the land in trust regulations, among a  number of other possible regulation changes. Preliminary revisions under  consideration were distributed to tribes on December 27, 2005. Changes  are under consideration throughout the regulations, including the  institution of a trust acquisition request form, new criteria for considering  on- and off-reservation acquisitions, extended state and local government  comment periods, and time frames for issuing a decision. Although Interior  held tribal consultations in February and March to discuss draft  regulations, the land in trust regulations were not part of the meetings’  agendas. Interior set the date of March 31, 2006, for tribes to submit  comments on the proposed changes. According to the Associate Deputy  Secretary, Interior is planning to hold consultation meetings in the last  quarter of calendar year 2006, followed by publishing a proposed rule in the  Federal Register for public comment.
section_title: BIA Generally Followed the Regulations for Taking Land in Trust, and These Regulations Provide BIA with Wide Discretion
paragraphs: BIA generally followed its regulations for processing the 87 land in trust  applications with decisions in fiscal year 2005, such as properly notifying  affected state and local governments and providing time for comments and  appeals. The criteria in the regulations for taking land in trust are not  specific and do not include guidelines for how BIA should apply them.  Apart from the regulations, we found one BIA agency office did not  properly document its decision-making process, including the  consideration of the criteria in the regulations. Furthermore, we found that  two separate agreements between groups of tribes and two BIA regional  offices, designed to expedite the processing of certain applications, have  raised concerns and were under investigation by Interior’s Office of  Inspector General at the time of our review.
subsections: section_title: BIA Generally Followed the Regulations for Taking Land in Trust
paragraphs: BIA generally followed its regulations for the 87 land in trust applications  with decisions in fiscal year 2005. Specifically, BIA  notified affected state and local governments and provided a 30-day  comment period for them to submit information on potential tax and  jurisdictional impacts;  obtained a preliminary title opinion from Interior’s Office of the   usually issued a decision letter to the applicant and interested parties  based on an evaluation of the criteria in the regulations, including  determining compliance with NEPA requirements,  provided 30 days for the applicant or interested parties to appeal the  decision and an explanation of the appeals process in its decision letter;  and,  published a notice of its decision in the Federal Register or local  newspaper providing at least 30 days for interested parties to seek  judicial review.
Of these 87 decisions, 80 were approvals, and 7 were denials. The  Superintendent of the Wewoka Agency, Eastern Oklahoma Region, denied  one application because the applicant failed to meet the criteria. The  Superintendent of the Horton Agency, Southern Plains Region, officially  withdrew six applications, in effect denying them, because the tribe did not  submit additional necessary information for several years.
Applicants and state and local governments can file appeals and judicial  challenges if they believe that BIA failed to properly follow the regulations.  Eight of the 87 decisions in fiscal year 2005 had been appealed as of  September 30, 2005. Three of the appeals were not filed within the required  30-day appeal period; therefore, they were dismissed as untimely. The  remaining five appeals were pending as of September 30, 2005. The  appellants generally asserted that BIA did not adequately consider tax and  jurisdictional impacts. While these most recent appeals were pending at the  end of the fiscal year 2005, some other appeals of decisions from fiscal year  2004 are illustrative in demonstrating how the appeal process works. For  example, the local government of Union Township, in the state of Michigan,  appealed three land in trust applications to the Midwest Regional Director,  asserting that BIA had not addressed, among other things, the township’s  jurisdictional and land use concerns in its decision. The township argued  that the proposed acquisition would create “an island (of trust land) in the  middle of the township in a prime commercial corridor” that might be  subject to different zoning and building regulations and that this might  create “serious difficulties for rational land use planning.” BIA’s decision  stated only that primary law enforcement and fire protection would be  provided by the tribe and that the tribal council has good relations with  local planning officials and made no mention of the township’s concerns.  The Midwest Regional Director agreed that the decision had not adequately  addressed the issues raised by Union Township and returned the  applications to the Superintendent of the Michigan Agency to better  address those concerns. In addition, the Midwest Regional Director  determined that the Michigan Agency had not provided sufficient  information on environmental compliance.
section_title: Criteria in the Regulations Provide BIA Wide Discretion Because They Are Not Specific and Do Not Include Guidelines for How BIA Should Apply Them
paragraphs: In general, we found that the criteria in the regulations provide BIA with  wide discretion in deciding to take land in trust, primarily because they are  not specific, and BIA has not provided clear guidelines for applying them.  For example, one criterion requires BIA to consider the impact of lost tax  revenues on state and local governments. However, the criterion does not  indicate a threshold for what might constitute an unacceptable level of lost  tax revenue and, therefore, a denial of an application. Furthermore, BIA  does not provide guidance on how to evaluate lost tax revenue, such as  comparing lost revenue with a county’s total budget or evaluating the lost  revenue’s impact on particular tax-based services, such as police and fire  services. In addition, the criterion does not require deciding officials to  consider the cumulative impact of tax losses resulting from multiple  parcels taken in trust over time—a practice some state and local  governments would like to see instituted. Table 1 shows our analysis of  the criteria.
In addition, the criteria are not pass/fail questions and, therefore, the  responses to the criteria do not necessarily result in an approval or denial  of an application. For example, should BIA decide that an application has  “failed” to meet one or more of the criteria, the BIA deciding official still  has discretionary authority under the regulations to approve the  application. However, we found no instances in which an official decided  that an applicant did not meet one or more criteria but still approved the  application.
Revisions to the regulations under consideration make it clearer that,  because it is difficult to develop specific thresholds for most criteria, BIA  intends to assume that most on-reservation applications will eventually  receive approval unless a major failing is evident, such as an environmental  hazard on a property that would leave the federal government liable to  environmental clean-up costs. Conversely, the draft changes make it more  difficult to approve off-reservation applications.
section_title: One BIA Office Did Not Properly Document Its Decisions and Two Other Offices Have Entered Into Agreements with Tribes That Have Raised Concerns
paragraphs: While we found that BIA procedurally followed the regulations for the 87  applications with decisions in fiscal year 2005, there were two areas not  specifically addressed in the regulations that raised concerns.
First, BIA’s Fort Peck Agency, in the Rocky Mountain Region, did not  document its decision-making process for two applications decided in  fiscal year 2005, including the consideration of the criteria in the  regulations. Although not in the regulations, BIA policy calls for offices  to include an analysis of each of the criteria in their decision letters for  approving or denying applications. This policy stems from a 1999 IBIA  statement that failure to provide an analysis of the criteria to interested  parties would potentially lead to the IBIA vacating future decisions.   BIA realty staff at the Fort Peck Agency were unable to provide us with  documentation showing they considered the criteria for two  applications approved in fiscal year 2005. The Fort Peck Agency  reported it also has some pending applications as of the end of fiscal  year 2005. By not documenting its consideration of the applicable  criteria, the Fort Peck Agency is not fully disclosing its rationale for its  decisions and is, therefore, making the process less transparent.
Two separate agreements between groups of tribes and two BIA  regional offices designed to expedite the processing of certain  applications were under investigation by Interior’s Office of Inspector  General at the time of our review. Specifically, agreements signed by  tribes and BIA regional offices in the Pacific and Midwest regions  created land in trust consortiums. In both cases, consortium tribes  agreed to use a portion of their budget to pay for additional staff  positions at BIA dedicated to processing consortium members’ land in  trust applications. According to staff with the Inspector General’s  office, the Pacific Region’s land in trust consortium agreement was not  reviewed or approved by Interior’s Office of the Solicitor before BIA  entered into it. The staff further stated that the Midwest Region’s  agreement, created several years after the Pacific Region’s agreement,  did undergo review and approval by the Solicitor’s Office. Interior’s  Office of Inspector General was conducting an investigation of these  consortium arrangements to determine whether the tribes’ allocation of  money to fund the consortiums was legally authorized and whether BIA  was favoring land in trust applications from those tribes.
section_title: Many Land in Trust Applications Have Not Been Processed in a Timely Manner
paragraphs: While BIA’s current regulations do not set a specific time frame for making  an initial decision on an application, BIA is considering revisions to the  regulations that would impose a time frame of 120-business days, or about  6 months, for making a decision for both on- and off-reservation  applications once an application is complete. According to our analysis of  three categories of land in trust applications, BIA did not decide most  applications within the proposed time frames the agency is now  considering, or within existing time frames for appeals. First, for the 87  applications with decisions in fiscal year 2005, the median length of time  from submission of an application to a BIA decision was a little over 1 year.  Second, the 28 complete off-reservation applications currently awaiting  review have been at the BIA Central Office for an average of 1.4 years, as of  the end of fiscal year 2005. Finally, for applications on appeal, current  federal regulations call for regional directors to rule on an appeal within 60  days after all time for pleadings has expired. For the 34 appealed  applications awaiting a BIA decision that we reviewed, the average time  pending from the BIA decision to the end of fiscal year 2005 was almost 3  years.
subsections: section_title: Some Applications with Decisions in Fiscal Year 2005 Were Decided in a Timely Manner, While Others Took an Exceedingly Long Time
paragraphs: While the current land in trust regulations do not provide a time frame for  BIA’s review of land in trust applications, BIA is considering revisions to  the regulations that would establish a time frame of 120 business days, or  about 6 months, for BIA to issue a decision once a complete application has  been assembled. For the 87 applications with decisions in fiscal year 2005,  the median length of time from submission of an application to a BIA  decision was 1.2 years, twice as long as the proposed time frame. Using  the time frame under consideration as a guide, and allowing 30 days for  state and local governments to provide comments, we determined that at  least 10 of the 87 applications we reviewed were processed in a timely  manner. Additional applications may have been decided in a timely manner,  but the files we reviewed did not clearly document the date when an  application was complete. Figure 2 shows the amount of time BIA took to  process applications with decisions in fiscal year 2005.
Table 2 shows the processing times for the 87 applications we reviewed by  region. As the table shows, the shortest processing time—58 days— occurred in the Midwest Region, while the longest processing time— almost 19 years—occurred in the Pacific Region. (App. III provides  additional details on the 87 land in trust applications with decisions in  fiscal year 2005.)
According to our analysis of BIA files, processing times for applications  with decisions in fiscal year 2005 were lengthened by inaction on the part  of either the applicant or BIA. For example, according to BIA files, the  Pacific Region application that took almost 19 years to process was  submitted in 1986 by an individual tribal member to place 5.42 acres of land  in trust. BIA found that the application lacked required documents and,  therefore, could not process the application until it received these  documents. The applicant did not provide the necessary documents until  1991. While the application was deemed complete in 1991, according to our  file review, the regional office did not issue a notice to interested parties of  the proposed trust acquisition until 2002. However, in the same year, the  BIA Pacific Regional Director ordered processing stopped on the  application because the applicant’s tribal affiliation was uncertain. BIA and  the applicant worked to resolve this issue, and BIA approved the  application on February 25, 2005, almost 19 years after its submission.  While the BIA file stated clearly that processing on the file was halted  initially due to inaction on the part of the applicant, it did not provide an  explanation regarding why the application was not acted upon by the BIA  from 1991 to 2002. In other cases processed at the Horton Agency Office in  Kansas, our file review showed several applications were closed by the  agency in 2005 because of inaction on the part of the tribe; one of these  applications had been submitted in 1991.  BIA officials also noted that  access to the Internet would increase their ability to process land in trust  applications in a timely manner.
section_title: Off-Reservation Applications Have Not Been Processed in a Timely Manner
paragraphs: Off-reservation applications awaiting review by BIA’s Central Office have  not been processed in a timely manner. Again, BIA is considering imposing  a 120-business day time frame, or about 6 months, for issuing a decision on  off-reservation applications once an application is complete. According to  BIA Central Office staff, there was nearly a 2-year period between  December 2003 and November 2005 when no off-reservation land in trust  applications were cleared by the Assistant Secretary. On average, the 28  off-reservation applications we reviewed had been pending in the Central  Office for 1.4 years by the end of fiscal year 2005—almost three times  longer than the 6-month time frame under consideration. Using the time  frame under consideration as a guide, and allowing 30 days for state and  local comments, we found that at least 22 of the 28 off-reservation  applications pending at the Central Office were not processed in a timely  manner. The most recent application forwarded to the Central Office had  been pending for about 1 month, while the oldest application had been  pending for over 3 years.
This analysis is based solely on the time the applications were pending at  the BIA Central Office and does not include the time the applications spent  at a BIA agency or regional office before they were forwarded to the  Central Office. In total, from the time of their initial submission at a BIA  agency or regional office until the end of fiscal year 2005, these  applications had been pending an average of 4.6 years. These applications  originated from 17 tribes covering 1,832 acres of land in 11 states, primarily  in BIA’s Northwest and Southern Plains Regions. (See app. IV for more  detailed information on these 28 applications.)
Turnover in the position of the Assistant Secretary for Indian Affairs may  have contributed to the length of time involved in processing off- reservation applications. The current Central Office review process was  instituted in February 2002. According to the February 2002 memorandum  instituting this process, “very effort will be made to complete the  overview within one week.”  The Assistant Secretary who instituted this  process held the position for about 1-1/2 years before retiring in December  2002. Since then, the position of Assistant Secretary of Indian Affairs has  been held by three different people:  an acting Assistant Secretary; a  permanent Assistant Secretary; and, since February 2005, an Associate  Deputy Secretary at Interior has served as the Acting Assistant Secretary.
section_title: It Appears that Appeals Have Not Been Resolved in a Timely Manner by BIA Regional Directors
paragraphs: Federal regulations require regional directors to “render written decisions  in all cases appealed to them within 60 days after all time for pleadings  (including all extensions granted) have expired.” According to our review  of 34 appealed decisions awaiting resolution by a BIA regional director, the  average time pending from the time of the decision to the end of fiscal year  2005 was 2.8 years. While our file review did not allow us to determine at  what point “all time for pleadings” had expired in each case, it appears,  based on the lengthy time period, that none of the 34 appealed decisions  awaiting a regional director’s ruling were resolved in a timely manner.  However, in cases in which a ruling has not been rendered by a regional  director within the required time frame, the regulations provide a process  to appeal the inaction of the regional director to the IBIA. Under these  circumstances, the IBIA has stated that it could use its authority to order a  Regional Director to issue a final decision on a tribe’s trust acquisition  request. Typically, however, the IBIA has instead ordered the regional  director to provide a status report on the requested action. If satisfied that  the matter is being addressed or has already been resolved by the regional  director, the IBIA has dismissed the appeal. Most of the appealed  decisions we reviewed originated from BIA’s Southern Plains Region. (App.  V provides additional details on these applications.)
When applications are not processed in a timely manner because of delays  by BIA or the applicant, information in the applications can become  outdated, particularly environmental assessments, comments from state  and local governments, and tax data. When this happens, BIA must devote  additional resources to obtain updated information and reprocess the  applications—an inefficient and time-consuming process for BIA, Indian  applicants, and state and local governments. The applicants also bear a  direct financial cost because they continue to pay property taxes on the  land while BIA is processing their applications. The applicant may face  additional financial burdens due to processing delays, such as the  opportunity costs associated with delayed economic development  activities.
section_title: Citing Taxes and Jurisdictional Issues, State and Local Governments Opposed Applications in Fiscal Year 2005
paragraphs: When opposing land in trust applications or appealing decisions, state and  local governments principally cited concerns about lost tax revenues and  jurisdictional issues. In commenting on applications prior to decisions  made in fiscal year 2005, state and local governments opposed 12 of 87  applications, or about 14 percent, mainly citing concerns about lost tax  revenues and jurisdictional issues. State and local governments have also  opposed some applications through administrative appeals, again primarily  citing lost tax revenues and jurisdictional issues. As of the end of fiscal year  2005, a total of 45 decisions were pending review on appeal, including 5  decisions from fiscal year 2005. Although we found little opposition to the  applications with decisions in fiscal year 2005, some state and local  governments we contacted said (1) they did not have access to sufficient  information about the land in trust applications and (2) the 30-day  comment period was not sufficient time in which to comment.
subsections: section_title: Citing Primarily Taxes and Jurisdictional Issues, State and Local Governments Opposed Only a Small Percentage of the Applications with Decisions in Fiscal Year 2005
paragraphs: For the 87 land in trust applications with decisions in fiscal year 2005, state  and local governments opposed or raised concerns—primarily involving  taxes and jurisdictional issues—on 12 applications prior to BIA’s decision.  For example, the state of Kansas opposed the Kickapoo tribe’s application  for placing about 75 acres in trust because trust status would cause a loss  of tax revenue, which amounted to $172 for the county in 2000. Despite the  tax loss, Kansas said its local government would still bear the cost of  continuing to provide services, such as road maintenance and fire  protection. The county of jurisdiction—Brown County, Kansas—opposed  trust status, saying “…further erosion of the real estate base is always a  concern.” The tribe responded in a letter to BIA in 2001, saying it disagreed  with the state’s arguments. In April 2005, the Superintendent of BIA’s  Horton Agency in the Southern Plains Region closed the application  because the tribe did not respond to BIA’s requests for additional  information for several years.
BIA generally reviewed the comments it received on pending applications  and considered them in its decision-making process. Table 3 describes the  Indian tribe, the acreage, proposed use of land to be taken in trust, and the  tax losses state and local governments expressed concern about prior to  BIA’s decision on 12 applications.
As table 3 shows, while most lost annual tax revenue was less than $1,000,  Santa Barbara County, California, opposed the Santa Ynez Band of  Chumash Mission Indians’ application for 6.9 acres to be placed in trust  because of a tax loss of about $43,000 per year. Before the decision, the  county held a public hearing in June 2004 on the environmental assessment  for the proposed trust acquisition. More than 50 speakers commented,  mostly in opposition to the application. BIA and county officials held a joint  meeting to discuss the issues the county raised. BIA ultimately approved  the trust application in January 2005, and the county did not oppose the  decision at that time. However, several citizen groups appealed the  decision, and in August 2005 the county filed a motion to intervene or  alternatively file an amicus brief. The IBIA dismissed the motion for intervention as untimely and dismissed the citizens’ appeals for lack of  jurisdiction in February 2006.
section_title: State or Local Governments Have Also Cited Primarily Tax and Jurisdictional Issues When Opposing BIA Land in Trust Decisions through Administrative Appeals
paragraphs: As of September 30, 2005, 45 appeals were pending either before BIA  regional directors or the IBIA. All but two appeals involved decisions  approving land in trust applications, and all but three appeals were filed by  state or local governments. These appeals echo the tax, jurisdiction, and  other types of issues that were raised before BIA’s decision. Most of the  pending appeals were made by a state or local government that frequently  or routinely appeal BIA’s decisions on land in trust applications. BIA’s  Southern Plains Region had the highest number of appeals that were  pending as of September 30, 2005. (See table 4.) The appeals in the  Southern Plains Region generally involve the state of Kansas and Jackson  County, Kansas.
See appendix V for detailed information on the 34 appeals awaiting  resolution by a BIA regional director and table 5 for detailed information on  the 11 appeals awaiting resolution by the IBIA.
The following example illustrates the types of concerns raised on appeal. In  2002, the state of Kansas appealed a decision by the Horton Agency  Superintendent to allow 7.85 acres in trust on the Sac & Fox reservation.  The state argued that BIA’s decision (1) reduces the tax rolls by $492; (2)  violates the Tenth Amendment to the Constitution, since states surrendered  many powers to the federal government but retained residual sovereignty;  and (3) violates the Act for Admission of Kansas into the United States  because it would compel the state to relinquish its sovereign jurisdiction  over the land. The tribe stated that (1) Brown County, the recipient of the  $492 per year in taxes, did not file an appeal and the amount is  insubstantial; (2) the Regional Director, like the IBIA, lacked jurisdiction to  declare federal statutes unconstitutional, and this issue has been addressed  in several other appeals to the IBIA; and (3) Kansas had accepted  admission into the United States on the condition that the federal  government retained its power to regulate Indian affairs; therefore, BIA did  not infringe on the state’s sovereignty. The Southern Plains Regional  Director was still considering the appeal as of June 8, 2006.
Similar arguments about loss of tax revenues and jurisdictional issues have  been made in appeals before the IBIA. For example, Cass County and the  City of Cass Lake, Minnesota, appealed three decisions of the Minnesota  Agency Superintendent to place 1.28 acres of land of the Minnesota  Chippewa Tribe (Leech Lake Band) in trust in 2001. The land was to be  used for residential housing, women’s services programs, and a tribal  health office. The county and the city said the loss of the land would have a  negative impact on the tax rolls and that the land might not be within the  reservation boundaries; consequently, the applications would be subject to  additional criteria. When the matter was appealed to the Regional Director,  he concluded that the tax loss of about $5,000 annually was not significant  and that the tribe’s services to the entire community, including non-Indians,  reduced the financial burden on local governments.
section_title: State and Local Governments Want More Information about Applications as Early as Possible and More Time to Comment
paragraphs: Some state and local government officials want more information about  applications early in the process, and they want more time to comment. In  a July 2005 paper, the National Governors Association stated that any new  regulations should include, among other things, a requirement that states  and local governments be able to review tribal submissions and evidence,  just as tribes are able to review state submissions. The governors also  said that language in the regulations should ensure that states have the  right to provide data challenging assertions made in the proposals to take  land in trust. According to some state and county officials, the current  process does not work well in providing them with information and an  opportunity to comment. During a meeting with staff of various state  governors, arranged by the National Governors Association, an attorney  with the South Dakota Office of the Attorney General told us that while the  governor’s office receives notification of land in trust applications, the state  does not have access to a tribe’s application except through a Freedom of  Information Act request, which often takes too long. He said BIA does not  consistently allow for extensions in these cases. In a meeting with county  officials arranged by the National Association of Counties, a representative  from a New York county said that BIA’s process was unfamiliar, so the  state, the two counties involved, and other local governments paid for extra  legal, economic, and environmental consultants.  However, he said it was  not possible for these government entities to respond adequately to the  initial BIA notice within 30 days. BIA provided an extension of time for the  county to respond.
Similarly, some state and local governments raised the following access  and timing issues in comments on the applications that we reviewed:    In 1999, Cass County told the Minnesota Agency Superintendent that  further documentation on the application from the Minnesota Chippewa  Tribe (Leech Lake Band) was needed for the county to provide specific  comments other than the amount of taxes. The county asked for more  documents under the Freedom of Information Act and for an additional  60 days to comment following receipt of the documents. BIA provided  the documents and more time.
In June 2001, Santa Barbara County, California, responded to a notice of  an application that, without information regarding how the Santa Ynez  Band of Chumash Mission Indians of the Santa Ynez Reservation  intended to regulate activity on trust land, the county could only  speculate that jurisdictional and land use conflicts would arise.
In December 2002, an assistant legal counsel to the governor of Kansas  wrote to the BIA representative in the Horton, Kansas, field office that  to effectively represent the state, it was necessary to have each tribe’s  resolution plan that accompanies the initial application for land to be  taken into trust.
Also, in a January 2005 letter, the General Counsel to the Governor of  Minnesota told BIA that it could not fully comment on an application by  the Minnesota Chippewa Tribe (Grand Portage Band) without an  opportunity to review the proposed purpose for conversion and  potential uses.
In the revisions to the regulations, Interior is considering providing some  additional information to state and local governments and lengthening the  period for comments. One provision under consideration would require  that a tribe complete a form called a “request for trust acquisition.”  BIA  would provide the form, along with a description of the land and the  proposed use of the land, to the state and local governments having  jurisdiction. Another provision would lengthen the time period for state  and local governments to comment after BIA provided notice of an  application. The time periods would change from 30 days to 60 days for on- reservation applications and to 90 days for off-reservation applications.
section_title: BIA’s Land in Trust Database Is Incomplete and Inaccurate, and BIA is Planning to Redesign It
paragraphs: During the course of our review, we found the data in BIA’s land in trust  database, which was implemented agencywide in August 2004, were  frequently incomplete and inaccurate. As a result, the data are of  questionable value to Interior and BIA management, and we did not rely on  it. BIA has already recognized some shortcomings and initiated an effort to  re-evaluate and redesign the database, as necessary. The database was  hastily developed and deployed without defining and documenting user  requirements throughout the agency and clearly defining data fields. Staff  with Interior’s Office of Information Development said a contractor  developed the database in about a month to address the information needs  of the Deputy Assistant Secretary for Indian Affairs in the summer of 2004.  In a June 2005 memo, almost a year after the system was put in place, BIA’s  Deputy Director for Trust Services noted that only 4 of the possible 11  regions had entered any data into the database, and the memo directed  each BIA regional and agency office to enter all of its land in trust  applications into the database within 5 days. By the end of fiscal year 2005,  the database contained more than 1,000 applications.
We found that not all of the applications had been entered into the  database, and the status of an application, as either approved, denied, or  pending, was frequently incorrect in the database. Specifically, we found  the following issues:   Not all of the applications had been entered into the database.  Twenty- nine of the 87 applications with decisions in fiscal year 2005, or 33  percent, were not in the database. About half of these applications not in  the database, 13, were from the Eastern Oklahoma Region’s Chickasaw  Agency. No one at the office had access to the database when we  initially inquired and, therefore, they could not enter information. Also 9  applications at the Pacific Region were not in the database, and no one  there had access when we inquired. We also found instances at the  Midwest and Southwest Regions where some pending applications had  not been entered into the database. The high rate of applications that  had not been entered into the database is one of the factors that led us  to conclude that database information was unreliable.
Status of applications was frequently incorrect. During the course of  our review, we found that 30 of the 41 applications identified as denied  in the database were miscoded, an error rate of almost 75 percent. Most  of the remaining “denied” applications were applications that were  closed by realty staff with the Southern Plains Region’s Horton Agency  because the tribal applicants had not responded for more than a year to  BIA’s requests for the additional information needed to process the  applications. The applications were not processed and denied based on  the criteria in the regulations; rather, they were closed due to inactivity.  However, as currently designed, there is no category in the database to  show this type of resolution other than denied. In addition, we found  that some offices interpreted “approved” differently. For example, two  agency offices in BIA’s Rocky Mountain Region used an application form  that required the agency superintendent to approve the application for  filing and processing. As defined by these offices, some applications  being processed had been “approved,” but they were actually pending  applications.  Other BIA offices considered an application approved  when the superintendent actually approved taking the land in trust.  While some of the problems we encountered with the status of the  applications in the database were simply data entry errors, others were  the result of systematic problems, such as the lack of common  definitions for key terms.
Furthermore, at the time of our review, regional and agency realty staff did  not use the new database as the primary tool for managing their  applications. According to BIA regional and agency realty staff, they do not  use or do not like to use the database because it is cumbersome, slow, and  does not meet their needs. They continue to use their office-specific  spreadsheets to manage and track their applications. These office  spreadsheets were one of the tools we used to try and verify the  information in the database. However, trying to reconcile the office  spreadsheets with the database was difficult because the office  spreadsheets usually identified applications only by parcel name, whereas  the database identified applications with different unique identification  numbers by region, agency, and tribe.
We believe that data need to be accurate, valid, complete, consistent, and  timely enough to document performance, support decision making, and  respond to the needs of internal and external stakeholders. According to  Interior officials, the database has been used to respond to questions about  the program from various levels of management and from Congress.  Further, data quality depends on how readily users can access data, aided  by clear data definitions and user-friendly software. When significant data  limitations exist, it is important to make stakeholders and Congress aware  of the limitations so they can judge the credibility of the data for their use.  During the course of our review, BIA recognized that the database has  limitations, and it asked Interior’s Office of Information Development to  improve the database. In April 2006, the Deputy Director for Information  Development conducted a 3-day workshop for program managers on BIA’s  land in trust database. The session served as a basis for making  improvements and, in May 2006, the office was preparing a plan to (1)  involve regional and headquarters officials in changing the database, (2)  better define terms and fields, and (3) increase the number of fields in the  database. A properly designed and implemented database with accurate  data would provide BIA with important information to help better manage  the land in trust process.
section_title: Conclusions
paragraphs: The land in trust regulations were intended to provide a clear, uniform, and  objective approach for Interior to evaluate land in trust applications.  However, the regulations provide wide discretion to the decision maker  because the criteria are not specific, and BIA has not provided clear  guidelines for applying them. Given the wide discretion that exists and the  increased scrutiny that the land in trust process has come under with the  growth of Indian gaming, it is important that the process be as open and  transparent as possible. Clearly documenting each decision and providing  that information to state and local governments is a critical component of  having an open and transparent process.  However, contrary to BIA policy  and admonishments from the IBIA, we found one BIA office that did not  document its consideration of the criteria in the regulations. While this  office only accounted for 2 of the 87 decisions in fiscal year 2005, it omitted  documentation of the most important part of the process. State and local  governments need information on how BIA reaches its decisions to  effectively execute their role in the process, including holding the federal  government accountable for its decisions and having adequate information  to decide whether or not to appeal a decision if it believes that the federal  government did not adequately follow the process.
A lack of specific time frames for BIA to make decisions on land in trust  applications results in a lack of predictability about the process and  contributes to the perception, on the part of Indian applicants and state and  local governments, that the process is not open and transparent. Lengthy  application processing times can place a burden on BIA, Indian applicants,  and state and local governments. If applications are not processed in a  timely manner because of delays by BIA or the applicant, information in the  applications can become outdated, particularly environmental  assessments, comments from state and local governments, and tax data.  When this happens, BIA must devote additional resources to obtaining  updated information and reprocessing the applications—an inefficient and  time-consuming process for BIA, Indian applicants, and state and local  governments. To the extent that BIA is the cause of some of these delays,  imposing specific time frames on the decision-making process should  improve the processing of the land in trust applications. In addition, some  state and local governments have been unable to adequately participate in  the process because they did not have enough information on the pending  applications or the necessary length of time to provide substantive  comments. Interior is considering changes to the regulations that would  address these issues.
Finally, federal agencies need data that are accurate, valid, complete,  consistent, and timely enough to document performance, support decision  making, and respond to the needs of internal and external stakeholders.  During the course of our review, BIA recognized the shortcomings with the  data in its land in trust database and initiated a process to improve the  database. A properly designed and implemented database with accurate  data would provide important information to (1) BIA to help it better  manage the land in trust process and (2) other stakeholders, particularly  Congress, to help carry out oversight of the land in trust process.
section_title: Recommendations for Executive Action
paragraphs: To improve timeliness and transparency and ensure better management of  BIA’s land in trust process, we recommend that the Secretary of the Interior  direct the Assistant Secretary for Indian Affairs to take the following three  actions:  reinforce the requirement that all decisions be fully documented;  move forward with adopting revisions to the land in trust regulations  that include (1) specific time frames for BIA to make a decision once an  application is complete and (2) guidelines for providing state and local  governments more information on the applications and a longer period  of time to provide meaningful comments on the applications; and  institute internal controls to help ensure the accuracy and reliability of  the data in the land in trust database, as part of the redesign of the  existing system.
section_title: Agency Comments
paragraphs: Interior’s Associate Deputy Secretary commented on a draft of this report  in a letter dated July 12, 2006 (see app. VI). In general, Interior agreed with  our findings, conclusions, and recommendations. The Associate Deputy  Secretary commented that BIA is working to address the recommendations  and that a corrective action plan will be developed and implemented in  response to the report. Specifically, BIA is taking steps to finalize the  regulations under consideration. After the regulations are completed, BIA  will develop a handbook to ensure consistent application of the  regulations. The handbook will also include specific internal control  procedures to ensure all decisions are properly and completely  documented, as well as entered into the land in trust database accurately  and in a timely manner.
We are sending copies of this report to interested congressional  committees, the Secretary of the Interior, the Assistant Secretary for Indian  Affairs, BIA regional and agency offices we visited, and other interested  parties. We will also make copies available to others upon request. In  addition, the report will be available at no charge on the GAO Web site at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-3841 or nazzaror@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix VII.
section_title: Objectives, Scope, and Methodology
paragraphs: The fiscal year 2006 House Appropriations Committee Report for the  Department of the Interior’s (Interior) appropriation bill directed GAO to  study the Bureau of Indian Affairs (BIA) procedures and practices in  implementing the land in trust regulations. In response to this direction  and subsequent discussions with congressional staff, we (1) assessed the  extent to which BIA’s processing of land in trust applications followed its  regulations, (2) determined the extent to which applications were  processed in a timely manner, and (3) identified any state and local  government concerns about land in trust applications and how they were  addressed in BIA’s decision-making process.
For all of the objectives, we reviewed applicable laws, regulations, and land  in trust applications. We reviewed applications at six BIA regional offices— Eastern, Midwest, Northwest, Pacific, Southern Plains, and Southwest— and eight BIA agency offices—Blackfeet (Browning, Montana), Chickasaw  (Ada, Oklahoma), Great Lakes (Ashland, Wisconsin), Horton (Horton,  Kansas), Minnesota (Bemidji, Minnesota), Siletz (Siletz, Oregon), Warm  Springs (Warm Springs, Oregon), and Wind River (Fort Washakie,  Wyoming). We selected those offices because our general intent was to visit  all BIA offices with 10 or more land in trust applications described as  approved or denied in BIA’s land in trust database. However, interviews  with realty officials at these offices and at the Western, Great Plains,  Navajo, and Rocky Mountain Regions and our examination of documents  they provided led us to conclude that the database was frequently  incomplete and inaccurate. During the course of our work, we found many  examples of inaccuracies in the database that showed data were missing,  incorrectly described, or inconsistently reported. Therefore, our scope was  limited to the groups of applications in which we had greater confidence  that we had obtained all of the applications. We examined (1) 87  discretionary nongaming land in trust applications with decisions in fiscal  year 2005, (2) 28 off-reservation applications awaiting comments from the  Office of the Assistant Secretary for Indian Affairs, (3) 34 appealed  decisions pending before BIA regional directors at the end of fiscal year  2005, and (4) 11 appealed decisions pending before the Interior Board of  Indian Appeals (IBIA) at the end of fiscal year 2005.  In an effort to collect  all of the applications in these categories, we relied on interviews with BIA  realty officials in the relevant offices, examination of their localized  spreadsheets for tracking applications, and some comparisons with other  BIA databases. To identify the pending appeals at the IBIA, we relied on  these methods and the selections provided by the Chief Judge and an  examination of the IBIA’s informal log.
We collected 67 of the 87 discretionary nongaming land in trust  applications with decisions in fiscal year 2005, or 77 percent, during our  site visits. From telephone discussions with realty staff, we identified the  remaining relevant applications at five agencies—Colville (Colville,  Washington), Fort Peck (Fort Peck, Montana), Michigan (Sault Ste. Marie,  Michigan), Southern California (Riverside, California), and Puget Sound  (Everett, Washington). Staff at locations we did not visit made copies of an  additional 18 applications and mailed them to us. We contacted realty  officials at the Navajo Region and the Great Plains Region, including its  agencies—Rosebud (Rosebud, South Dakota), Lower Brule (Lower Brule,  South Dakota) and Pine Ridge (Pine Ridge, South Dakota) and verified that  they had no applications with decisions in fiscal year 2005. In addition, we  obtained applications that were appealed to BIA regional directors and  pending in fiscal year 2005 based on discussions with realty officials in the  various field offices and regions and from examining their files. We used a  similar method to identify and collect applications appealed to the IBIA  that were pending at the end of fiscal year 2005. Also, we interviewed the  Chief Judge of the IBIA to identify pending applications; he provided copies  of relevant applications. In doing so, we obtained information on the two  remaining applications with BIA decisions in fiscal year 2005.
Besides interviews with BIA and Interior officials, we obtained views from  various interested parties including representatives of the National  Governors Association, the National Association of Counties, National  Congress of American Indians, and several individual tribes. The National  Governors Association invited their members to meet with us, and they  hosted a teleconference, which included representatives from 12 states— Arkansas, California, Colorado, Connecticut, Kentucky, New Mexico, New  York, Ohio, Oklahoma,  South Carolina, South Dakota, and Washington.  The National Association of Counties included a panel session with GAO at  their annual meeting in March 2006. The six participants were from the  California State Association of Counties; Kitsap County, Washington;  Madison County, New York; Navajo County, Arizona; Seneca County, New  York; and Ziebach County, South Dakota.
For discussions with tribal leaders, we used a nonprobability sample to  select tribes that submitted applications in recent years to BIA locations we  visited. We met with representatives of the 13 tribes listed in table 6.
In addition, we obtained Interior’s and Indians’ views on the land in trust  process by participating in a panel session on the subject at the Self- Governance Tribes’ Fall Conference in 2005.
For each of the objectives we took the following specific actions:  To determine how BIA processed land in trust applications, we reviewed  the 87 applications with decisions in fiscal year 2005 and compared how  the applications were processed with the requirements in the  regulations and departmental guidance. In addition, we interviewed  Interior’s field solicitors in Minnesota and Oregon to obtain their  perspectives on how BIA followed procedures during their reviews of  applications.
To determine whether applications were processed in a timely manner,  we compared the processing times for (1) 87 applications with decisions  in fiscal year 2005 and (2) 28 complete off-reservation applications  awaiting comments from the Office of the Assistant Secretary for Indian  Affairs to the 120-business days, or about 6 months, time frame BIA is  considering imposing for making decisions on on- and off-reservation  land in trust applications. The reported minimum, median, and  maximum processing times are for fiscal year 2005 only and might not  be indicative of other years. For each of the applications with decisions  in fiscal year 2005, we tried to use the date of the application as the  initial point to calculate the processing time. For the few applications  where we could not determine the date of the application, we used  either the date of the tribal resolution requesting that the land be placed  in trust or the date BIA notified state and local governments about an  application. We used the decision date as the end date for calculating the  processing time of these applications. For off-reservation applications,  we calculated the time from the date of the draft decision to the end of  fiscal year 2005. In addition, we compared the length of time that 34  appealed decisions had been awaiting resolution by BIA regional  directors with the current 60-day time frame set forth in the regulations  on appeals. For the appealed decisions, we calculated the time from the  date of the decision to the end of fiscal year 2005. We also interviewed  BIA officials and tribal representatives involved in the process to obtain  their views on the time taken for processing applications.
To determine whether state and local governments had concerns, we  analyzed the content of comments made by these governments for the  87 applications with decisions in fiscal year 2005 and 45 appeals pending  at the end of fiscal year 2005. Moreover, we reviewed the National  Governors Association 2005 position paper on revisions to the  regulations for processing land in trust, and we obtained draft revisions  to the regulations from a Counselor to the Assistant Secretary for Indian  Affairs at Interior.
As described above, we decided that the BIA database was not reliable  for our purposes. To determine the accuracy and reliability of the  database, we compared the information in the database with other data  sources, including spreadsheets used by a number of the BIA offices we  visited to track land in trust applications, BIA realty reports under the  Government Performance and Results Act, and BIA annual acreage  reports. We also discussed the development of the current database and  the proposed redesign of the database with staff in the Office of the  Chief Information Officer within the Office of the Assistant Secretary for  Indian Affairs.
We performed our work between August 2005 and June 2006 in accordance  with generally accepted government auditing standards.
section_title: BIA’s Process for Placing Land in Trust
paragraphs: Remnd In the case of a denial by the superintendent and no appeal, the process would end here.
section_title: Processing Times for 87 Land in Trust Applications with Decisions in Fiscal Year 2005
section_title: Processing Times for 28 Off-Reservation Land in Trust Applications Awaiting Consideration by BIA Central Office
section_title: Processing Times for 34 Appealed Land in Trust Decisions Awaiting Resolution by a BIA Regional Director
section_title: Comments from the Department of the Interior
section_title: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the individual named above, Jeffery D. Malcolm, Assistant  Director; Jean Cook; Mark Keenan; Daniel J. Semick; Carol Herrnstadt  Shulman; and Susan Swearingen made key contributions to this report.  Also contributing to the report were Jennifer DuBord, Susanna Kuebler,  Greg Marchand, Justin Monroe, George Quinn, Anne Rhodes-Kline, Jena Y.  Sinkfield, Ashanta Williams, and Greg Wilmoth.