ACQUIRING LAND TO SUPPORT TRIBAL ENERGY DEVELOPMENT: PROCESS AND

ACQUIRING LAND TO SUPPORT TRIBAL ENERGY DEVELOPMENT: PROCESS AND PROTOCOL FOR TRIBES TAKING LAND INTO TRUST FOR ENERGY DEVELOPMENT NANCY J. APPLEBY APPLEBY LAW PLLC

2 WHAT IS TRUST LAND? Trust land is held by the United States for benefit of an Indian tribe or tribal member. the The tribe or tribal member retains usufructuary rights(right to use without ownership)

3 WHAT IS “FEE TO TRUST”? Fee to trust is the process under federal law for tribes to transfer tribally-owned fee land to the United States in trust for the tribe, i.e. to place tribally-owned fee land into trust status.

4 WHAT IS “FEE TO TRUST”? Trust status can be conferred only by: Act of Congress Court decision Application to the Department of the Interior

5 WHAT IS “FEE TO TRUST”? Land may be acquired for a tribe, including when the Secretary determines that acquisition of the land is necessary to facilitate: tribal-self determination reservation economic development Indian housing

6 JUNE 24, 2010 DIRECTIVE: PROCESSING DISCRETIONARY FEE TO TRUST APPLICATIONS Indian Affairs Manual 52 IAM 12 (Directive) Attempts to make the fee to trust application more transparent process Attempts to reduce the time it takes DOI to make a determination on applications Enhances procedures set out in the Acquisition of Title to land Held in Fee or Restricted Status Handbook (Fee to Trust Handbook)

7 JUNE 24, 2010 DIRECTIVE: PROCESSING DISCRETIONARY FEE TO TRUST APPLICATIONS Makes the applicant responsible for ensuring that its application is completed timely, or risk delisting from active consideration. Outlines procedures to acknowledge receipt of applications Creates time frames for collecting information to complete applications in a timely manner

8 JUNE 24, 2010 DIRECTIVE: PROCESSING DISCRETIONARY FEE TO TRUST APPLICATIONS Suggests time frames for administrative and legal challenges to fee to trust decisions Implements reporting requirements for pending applications

9 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Governed by 25 CFR Part 151, the Fee to Trust Handbook and the June 24, 2010 Directive (Indian Affairs Manual 52 IAM 12) Secretary has discretionary authority to issue decisions to acquire land in trust 209 DM 8: Secretary’s authority delegated to the Assistant Secretary of through 209 DM 8 Indian Affairs (AS-IA)

10 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) 230 DM 1: AS-IA’s non-gaming authority delegated to the Director of BIA 3 IAM 4: Director of the BIA’s authority delegated to Regional Directors In some Regions, Regional Director’s authority has been delegated to the Superintendent Delegations are subject to change and may vary from Region to Region

11 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Secretary may exercise discretionary authority when The property is located on-reservation, as defined in 25 CFR 151.2(f) or is within a tribal consolidation area, as defined in 25 CFR 152.2(h) The tribe already owns an undivided interest in land

12 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) The Secretary determines that the acquisition of the land is necessary to facilitate tribal selfdetermination, economic development or Indian housing (25 CFR151.3(A)(1)(2)(3); 25 U.S.C. §2216(c))

13 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Decision is based on evaluation of criteria listed in 25 CFR Part 151 and BIA policies

14 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Application Process Filed with BIA Must include the formal request for transfer and the information required in 25 CFR 151.10(a) – (h) and in Section 4.2.1.1 (On-Reservation Discretionary Acquisition) of the Fee to Trust Handbook * Identity of Applicant * Basis for qualifying (e.g. tribe is federally recognized)

15 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Application Process (cont.) * Description of the acquisition by category (e.g. self-determination; economic development or Indian housing) and specific use (e.g. wind farm) * Statutory authority for the acquisition (e.g. IRA, 25 U.S.C. §465; ILCA of 1983, 25 IRLFA, 25 U.S.C. §1466) U.S.C. §2202;

16 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Application Process (cont.) * Tribal authority for acquisition (e.g. the article and section of the tribe’s constitution or tribal law) * Written consent of the tribe having jurisdiction over the reservation where the fee lands are located (e.g. Council Resolution)

17 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Application Process (cont.) * A specific request that the BIA accept title to the land in trust * Authorization for tribal officials to execute relevant documents (e.g. Council resolution)

18 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Application Process (cont.) Should Include * Documentation describing efforts taken to resolve identified jurisdictional issues and potential conflicts of land use that may arise as a result of the fee-to-trust transfer

19 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * Any signed cooperative agreements relating to the fee-to-trust acquisition, including agreements for infrastructure development or services (e.g. utilities, fire protection, solid waste disposal) * Descriptions of services to be provided by tribal government (i.e. not required from state or local government)

20 FEE TO TRUST PROCESS (Discretionary, On-reservation, Non-gaming Trust Acquisition Requests) * Preliminary commitment or binder (Title Commitment) to issue a final title policy on the ALTA U.S. Policy Form (see Standards (SLIDES 41 – 45) for vesting and amount of insurance) * Draft warranty deed to the United States that conforms to local statutory requirements and custom for form, substance and recording

21 FEE TO TRUST PROCESS (Discretionary, On-reservation, Non-gaming Trust Acquisition Requests) * Documents in support of all exceptions to title coverage listed in Schedule B to the Title Commitment and in the legal description of the land (e.g. rights of way, easements, leases, mortgages, surveys, deeds, covenants, conditions and restrictions)

22 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * Draft NEPA, 602 DM 2 (hazardous substances review) and other required environmental documents, with a cover memorandum requesting environmental compliance review (Note: BIA may want to contract for NEPA compliance. Check with your Regional Director or OTS prior to engaging an environmental engineer.)

23 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * Any site specific environmental report/permit requirements (e.g. a 404 Permit or a “Take” Permit) * Any additional information or justification deemed by the applicant to be necessary, appropriate or helpful to BIA in reaching its decision.

24 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Acknowledgement of Application BIA sends formal, written acknowledgment of receipt within 10 days of receipt of the application

FEE TO TRUST PROCESS 25 (Discretionary, Non-gaming Trust Acquisition Requests) BIA Review of Application Factors considered by BIA when the land is located within, or contiguous to, the tribe’s reservation * The statutory authority for the acquisition and any limitations on that authority (e.g. Indian Reorganization Act of 1934, 25 U.S.C. §465; Indian Land Consolidation Act of 1983 25 U.S.C. §2202; Indian Revolving Loan Fund Act, 25 U.S.C. §1466)

26 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * The tribe’s need for additional land * The purpose(s) for which the land will be used * Jurisdictional issues and potential conflicts of land use that may arise between the tribe and the state/its subdivisions

27 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * If the land currently is held as unrestricted fee property, the impact on the State and its subdivisions on removing the land from the property tax rolls * Whether BIA is equipped to discharge the additional responsibilities resulting from acquiring the land in trust for the tribe

28 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * The extent to which applicant has provided information that will enable BIA to comply with: 516 DM 6, Appendix 4, National Environmental Policy Act Revised Implementing Procedures (Environmental Site Assessment ASTME 2527) and 602 DM 2, Land Acquisitions: Hazardous Substances Determinations

29 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Factors considered by the BIA when the land is located outside of and non-contiguous to, the tribe’s reservation: * Each factor considered for land within, or contiguous to, the tribe’s reservation

30 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * The location of the land relative to state boundaries and its distance from the tribe’s reservation - As the distance between the reservation and the land increases, greater scrutiny will be given to the tribe’s justification of anticipated benefits from the acquisition

31 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) * If the land will be used for business purposes, the tribe must provide a business plan that specifies the anticipated economic benefits associated with the proposed use

32 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Notice to State and Local Governments Notice by the Secretary to the state and local governments having jurisdiction over the land to be acquired Notice must inform the state and local governments that each has 30 days to provide written comments on t the fee to trust transfer’s potential impacts on state/local regulatory jurisdiction, real property taxes and special assessments

33 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Environmental Review BIA’s environmental staff must complete an Environmental Compliance Review Memorandum. (See sample at 7.1.8 of Feeto-Trust Handbook) See BIA NEPA Handbook, 59 IAM 30H (2005) for information about BIA’s responsibilities under NEPA and for information about public review and timing of a FONSI/ROD and who will sign the FONSI/ROD

34 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Incomplete Applications If BIA determines that the application is incomplete, BIA sends written notice to applicant that * The application is incomplete * Specifies the information necessary to make the application complete * Requests that the applicant submit the omitted information.

35 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Applicant must respond to a notice of incomplete application within 30 days of the “Inactive” applications notice * Tribe’s failure to respond timely to a request for additional information will result in the being considered inactive application * BIA will give the applicant a “final notice” of omitted information

36 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) “Inactive” applications (cont.) * If application was submitted before 6/24/10, applicant has 60 calendar days to submit the omitted information * If the application was/is submitted after 6/24/10, applicant has 45 days to submit the omitted information * If the omitted information is not submitted, BIA will return the application and remove it from the active caseload. * If removed from the active caseload, the application it loses its place in queue; any attempt to update will be treated as though it is a new application and will be assigned a new place in queue

37 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Notice of Decision BIA must take all steps necessary to ensure that a Notice of Decision is issued no more than 15 days after it receives “final documents” necessary to issue its Notice of Decision

FEE TO TRUST PROCESS 38 (Discretionary, Non-gaming Trust Acquisition Requests) Notice of Decision (cont.) Following the giving of the Notice of Decision to the applicant and all interested parties, BIA must publish its final agency determination to take the land into trust (25 CFR 151.12(b)) * Publish in a local newspaper when the approval is at the Regional or Agency level * Publish in the Federal Register if the approval is from Central Office

39 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Appeal The decision may be appealed by the applicant interest parties within 30 days. (See 25 CFR Part 2 4.340.) and all or 43 CFR 4.310 – If the decision is appealed, the original decision maker has 10 days to compile its administrative record; thereafter, the Regional Director will have 60 days to issue his/her decision There are no time limits on appeals made to the Interior Board of Indian Appeals and to the Federal courts

40 FEE TO TRUST PROCESS (Discretionary, Non-gaming Trust Acquisition Requests) Reporting by BIA Offices processing fee to trust applications must give each applicant quarterly (January, April, July, October) reports on the status of the applicant’s application

41 TITLE EXAMINATION (40 U.S.C. §3011; 25 C.F.R. §151.12 and 151.13) Title Examination Title examination is required for any of land by the United States (40 acquisition U.S.C. §3011) Examination must satisfy the Standards For The Preparation of Title Evidence in Land issued by the U.S. Department of Justice (Standards). A copy of the may be found at the DOJ webpage at http://www.usdoj.gov/enrd/title.htm Standards

42 TITLE EXAMINATION (40 U.S.C. §3011; 25 C.F.R. §151.12 and 151.13) Any and all liens, encumbrances or title infirmities that make title “unmarketable” must be removed before the U.S. will take title to the land, i.e. before the Secretary will issue its Notice of Decision approving the transfer BIA also must physically inspect the land and prepare a Certificate of Inspection and Possession (CIP), which must be submitted as part of the title evidence with BIA’s request to the Solicitor’s Office for its final opinion of title

43 TITLE EXAMINATION (40 U.S.C. §3011; 25 C.F.R. §151.12 and 151.13) * All objections to title noted by the Solicitor’s Office in its preliminary title opinion must be the Notice of Decision can be released. cleared before All taxes must be paid through the date of closing.

44 TITLE EXAMINATION (40 U.S.C. §3011; 25 C.F.R. §151.12 and 151.13) PRACTICE TIPS: BIA will require a commitment for title insurance. Make arrangements with the title company doing the title examination to issue one. The land must be free and clear of all liens and encumbrances. Arrange for taxes and special assessments to be paid and lien releases recorded either before filing the application or before the commitment for title insurance is issued. Include a copy of the paid tax and special assessments bill with the application.

45 TITLE EXAMINATION (40 U.S.C. §3011; 25 C.F.R. §151.12 and 151.13) PRACTICE TIPS (CONT.): A current, accurate legal description must be provided to BIA, and the land will need to be surveyed. Have the survey and legal description completed before the filing the application. Include digital (if possible) copies of the survey and the legal description with the application.

46 THE TRANSFER (25 C.F.R. §151.14) Transfer Formal acceptance of the land into trust is by warranty deed from the applicant to “the United States of America and its assigns.” in trust for the applicant.

47 THE TRANSFER (25 C.F.R. §151.14) Final Certificate of Inspection, Conveyance and Recording * If no appeal is filed, BIA will conduct its final site inspection and review a final title search * If the results of the final site inspection and final title search are consistent with the preliminaries, BIA will prepare a formal acceptance of conveyance (See 25 CFR 151.41; Section 7.1.15 of Fee-to-Trust Handbook.)

48 THE TRANSFER (25 C.F.R. §151.14) Deed must be recorded in the county in which the land is located and in the appropriate BIA Land Titles and Records Office. * - LTRO recordation includes Original Warranty Deed, with the signed Acceptance of Conveyance Original ALTA Title Policy Original Final Title Opinion Original Final Certificate of Inspection and Possession Original tribal resolution requesting/authorizing the transfer Full size copies of all referenced surveys

THE TRANSFER (25 C.F.R. §151.14) 49 PRACTICE TIPS: Include the form of warranty deed with the application. Make arrangements with the title company that issued the commitment for title insurance to issue a final Owner’s Title Insurance Policy to the Secretary as soon as possible after the Warranty Deed is recorded. Transfers are done in accordance with state law. Be sure to comply with all state-specific requirements and requirements of the county or other governmental subdivision in which the land is located.

50 CARCIERI FIX (Carcieri v. Salazar) Senate Bill S. 676 amending the Indian Reorganization Act to apply to all federally recognized Indian tribes, regardless of when tribe became recognized has been approved by the Senate Indian Affairs Committee. No Senate floor vote scheduled. House Bill H.R. 1234 amending the Indian Reorganization Act to apply to all federally recognized Indian tribes, regardless of when tribe became recognized has been introduced and referred to House Committee on Natural Resources. On March 31, 2011, Bill was referred to the Subcommittee Indian and Alaska Native Affairs.

51 CARCIERI FIX (Carcieri v. Salazar) House Bill H.R. 1291amending the Indian Reorganization Act to affirm the Secretary of the Interior's authority to acquire any interest in lands, water rights, or surface rights to lands, within or without existing reservations, for the purpose of providing land for Indians (except for lands in Alaska) has been introduced and referred to the House Committee on Natural Resources. Bill amends Act to apply to all federally recognized Indian tribes regardless of when tribe became recognized. On April 6, 2011, Bill was referred to the Subcommittee Indian and Alaska Native Affairs.

52 CONTACT INFORMATION Nancy J. Appleby’s practice focuses on Indian law, real estate and finance. Her extensive experience in Indian law includes representation of lenders, contractors, real estate and energy developers, vendors, leasing companies and other clients doing business with tribes and tribal businesses. Professional Recognition Chambers USA: Guide to America's Leading Lawyers for Business, Native American Law Best Lawyers in America – Native American Law The International Who's Who of Real Estate Lawyers US News & World Report-Best Lawyers America – Top Indian Law Firms in the U.S. Super Lawyer, Native American Law The Washington Post’s Baltimore & Washington, D.C.’s Top Attorneys 2011

53 Appleby Law PLLC 333 North Fairfax Street Suite 302 Alexandria, VA 22314 office: 703-837-0001 mobile: 202-577-5655 [email protected] www.applebylawpllc.com