BIA Proposes Changes To Land-Into-Trust Process For Tribes

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In late 2022, the United States Bureau of Indian Affairs (BIA) published a new proposed rule on the federal-lands-into-trust process for Native American tribes.

This process is contained in a set of procedures that the US Department of the Interior and BIA use to acquire title to land and hold it for the use of tribes. This process was established by the Indian Reorganization Act of 1934 (IRA) and was later interpreted by the U.S. Supreme Court in the case of Carcieri v. Salazar in 2009.

In deciding Carcieri v. Salazar, the Supreme Court ruled that the phrase “now under Federal jurisdiction refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment. As a result, §479 limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934. Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the Secretary does not have the authority to take the parcel at issue into trust.”

The BIA’s new proposed rule would create a regulatory process to determine whether a tribe was “under federal jurisdiction” in 1934. The proposed rule appears to be an administrative action to overturn the Supreme Court decision.

The proposed rule identifies three categories of evidence a tribe was “under federal jurisdiction” in 1934.

  1. Conclusive evidence establishes in and of itself both that a tribe was placed under Federal jurisdiction and that this jurisdiction persisted in 1934. If conclusive evidence exists, no further analysis is required.
  2. Presumptive evidence indicates that a tribe was placed under Federal jurisdiction and may indicate that such jurisdiction persisted in 1934. Where presumptive evidence exists, further analysis must focus only on whether there is evidence indicating that Federal jurisdiction did not exist or did not exist in 1934, such as a statute expressly removing Federal jurisdiction.
  3. If neither conclusive nor presumptive evidence exists, the Department will consider available probative evidence.

The category on “Presumptive evidence” appears to be the one that overturns the Supreme Court decision. From the new rules, “Presumptive evidence” can be any of the following:

  • Evidence of treaty negotiations;
  • Listing of a tribe in the Department of the Interior’s 1934 Indian Population Report;
  • 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;
  • Inclusion in Volume V of Charles J. Kappler’s Indian Affairs, Laws and Treaties;
  • Federal legislation for a specific tribe, including termination legislation enacted after 1934, which acknowledges the existence of a government-to-government relationship with a tribe in or before 1934;
  • When a tribe is recognized under the process in part 83 of this chapter with a finding that the tribe has been identified as an American Indian entity on a substantially continuous basis since 1900. “Part 83 of this chapter” refers to 25 CFR 83, which are procedures for Federal acknowledgment of Indian Tribes

In 1983, the Narragansett received Federal recognition under 25 CFR 83 as an Indian Tribe with reference to being a distinct community since 1900. As a result, the BIA could interpret under its proposed regulation change that the Narragansett meet the “presumptive evidence” criteria in the last category.

Why is this important?

In 1975 the Narragansett brought suit to obtain possession of 3,200 acres of land in Charlestown that they claimed were transferred from Narragansetts in the late 1800’s in violation of the federal Trade and Intercourse Act of 1790. The Narragansetts claimed that since land sales by Indians had not received federal approval, they asserted the Act had been violated. This lawsuit caused Charlestown land titles to become clouded, resulting in economic hardship for residents. The suit could have continued for years and its outcome was not clear. In 1978 the suit ended in a negotiated settlement. The Narragansett received 1,800 acres and agreed to be subject to all civil and criminal laws and regulations of the state of Rhode Island. These agreements were codified into law with the passage of the federal Rhode Island Indian Claims Settlement Act in 1978 and the state Narragansett Indian Land Management Corporation Act in 1979.

It was the purpose of the Settlement Act to create a land base for the Narragansetts which would help them receive Federal Recognition without adversely affecting the surrounding community. It was the intent of the Settlement Act to protect the rights of the residents of Charlestown, including their right to hold binding referendums on casino gambling. The Rhode Island Constitution requires that every community have the right to hold a voter referendum before a gambling facility is built in that community.

When the Tribe received federal recognition in 1983, the Bureau of Indian Affairs confirmed that the Narragansetts were still bound by the Settlement Act. Tribal lands acquired and taken into federal trust after 1983 however, are not automatically under the Settlement Act and would not be covered by state laws and regulations including those on gambling facilities.

In 1998 the Interior Department took new land in Charlestown into trust for the Narragansett Indian Tribe, and the Tribe asserted that the land was therefore not under the Settlement Act or state law or regulation. The Town and the State of Rhode Island went to court against the federal government to overturn this decision. This case eventually made its way to the US Supreme Court where the court ruled in favor of the state and town in 2009. The case is known as Carcieri v. Salazar, because the petitioners were Donald Carcieri, Governor of Rhode Island, and Ken Salazar, Secretary of the Interior.

A change to the rules that would define the Narragansett as having been under federal jurisdiction in 1934 would likely allow the Secretary of the Interior to take new land into trust for the Narragansett and that land would be outside of the protection of the Settlement Act and state laws and regulations.

BIA is currently seeking input on these changes from interested stakeholders. Written comments are required to be submitted by March 1, 2023, and additional information on this process can be found in the Federal Register.