Published on Apr 28, 2021
Yesterday, on April 27, 2021, Secretary of the Department of the Interior (DOI) Deb Haaland took several actions related to the fee-to-trust process at the DOI, all of which NCAI had called for in the NCAI Presidential Transition Plan. Secretarial Order (SO) 3400 reversed a 2017 Trump-era policy that removed the authority for off-reservation land acquisitions from Bureau of Indian Affairs (BIA) Regional Offices and delegated that responsibility to the Assistant Secretary of Indian Affairs for non-gaming acquisitions and to the Deputy Secretary of Interior for gaming acquisitions.
In 2017, NCAI opposed the previous Administration’s decision via Resolution MKE-17-059 because it occurred without tribal consultation and effectively froze off-reservation trust acquisitions. Secretarial Order 3400 now re-delegates the authority to review and approve applications to place land into trust to BIA Regional Directors, excluding decisions related to gaming applications.
Additionally, the Solicitor’s Office withdrew M-37053 and M-37055. Solicitor Opinions M-37053 and M-37055 created an unnecessarily burdensome process for Tribal Nations seeking to place land into trust under the Indian Reorganization Act of 1934 (IRA). In their place, the Solicitor issued M-37070, and reinstated a previous opinion (M-37029), which has been upheld by multiple federal courts and outlines a reasonable process for tribal applications for land into trust.
The Solicitor also withdrew M-37064. This Solicitor Opinion wrongly concluded that the Secretary of Interior did not have the discretionary authority to take land into trust for Tribes in Alaska. In its place, the Solicitor issued M-37069, which clearly establishes the Secretary of Interior’s continuing authority under the IRA to take land in Alaska into trust for the benefit of Alaska Tribes. Interior, within the next 90 days, will schedule virtual consultation sessions with Tribal Nations to engage in meaningful and robust consultation on the Secretary’s land into trust authority in Alaska.
Tribal land restoration is vital for all Tribal Nations, but historical context creates different hurdles. Fee-to-trust efforts should assist tribal governments to overcome the geographic challenges associated with previous federal policies, such as delayed federal acknowledgment, forced relocation, and termination. Simplifying the process of reacquiring lands within or near tribal communities will hasten economic development, help some tribes reestablish a land base, and clarify jurisdiction over some tribal lands for the first time in generations.
NCAI is proud to have worked tirelessly on this issue the last several years and has strongly advocated for the restoration of tribal homelands since 1944. We are encouraged by the policy shift undertaken by the Biden Administration and the progress made in the first 100 days under the leadership of DOI Secretary Deb Haaland. We look forward to continuing to push policies forward that make Indian Country stronger, more vibrant and more united than ever.
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About the National Congress of American Indians:
Founded in 1944, the National Congress of American Indians is the oldest, largest and most representative American Indian and Alaska Native organization in the country. NCAI advocates on behalf of tribal governments and communities, promoting strong tribal-federal government-to-government policies, and promoting a better understanding among the general public regarding American Indian and Alaska Native governments, people and rights. For more information, visit www.ncai.org.