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November 14, 2013

Bureau of Indian Affairs Finalizes Changes to Land-Into-Trust Procedures in Light of Patchak

In response to last year’s United States Supreme Court case of Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) (“Patchak”), the Bureau of Indian Affairs (“BIA”) issued a final rule on November 12, 2013. The new rule significantly modifies the existing land-into-trust regulations under 25 C.F.R. Part 151, and is referred to by many as the “Patchak Patch.” The new rule is intended to limit the uncertainties created by Patchak by adding administrative hurdles for potential litigants and expediting trust acquisitions. As the Assistant Secretary of Indian Affairs, Kevin Washburn, noted in his press release, the new rule is intended to “create a ‘speak now or forever hold your peace moment’ in the land-into-trust process. If parties do not appeal the decision within the administrative appeal period, tribes will have the certainty and peace of mind to begin development without fear that the decision will be later overturned.”

The new rule modifies the existing regulations for the Department of Interior (“Department”) in several key ways:

  • Prior to the Patchak ruling, the Secretary of Interior would publish a notice of a final decision to take land into trust for a tribe at least 30 days before the date of the transfer. If any litigation was commenced within this 30-day window, the Department’s internal policies required it to “self-stay” any fee-to-trust transfers until resolution of the pending litigation. The new rule eliminates this 30-day waiting period for completing trust acquisitions.
  • The new rule requires “interested parties,” as the term is currently defined in the existing BIA regulations, to make themselves known to the BIA official in writing in order to receive written notice of the BIA official’s decision. Parties must make themselves known in writing at each stage of the administrative review.
  • The new rule requires that all unknown interested parties receive notice of the decision and right to appeal, if any, through publication in a newspaper of general circulation serving the affected area.
  • Most importantly, when the BIA official issues a decision to acquire land in trust, interested parties must first exhaust administrative remedies available (as set forth in 25 C.F.R. Part 2) within 30 days before seeking judicial review under the Administrative Procedures Act (“APA”). If interested parties who have received notice fail to file an administrative appeal within that 30-day time frame, such parties are precluded from seeking any judicial review available under the APA because they failed to exhaust administrative remedies.
  • Unlike decisions made by BIA officials, there are no administrative remedies to exhaust when decisions are made directly by the Assistant Secretary of Indian Affairs. Such decisions are deemed final for the Department.

The new rule becomes effective on December 13, 2013.





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