III. TRUST LAND ACQUISTION PROCESS [continued]

C. Consideration of Policy and Specific Factors

1. Definitions

"The definition of "Indian reservation" 25 C.F.R. § 151.2(f) is clearly relevant to trust acquisition decisions." State of South Dakota and Mellette County, South Dakota, 35 IBIA at 16, 19.

Unless another definition is required by the act of Congress authorizing a particular trust acquisition, Indian reservation means that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma or where there has been a final judicial determination that a reservation has been disestablished or diminished, Indian reservation means that area of land constituting the former reservation of the tribe as defined by the Secretary.

25 C.F.R. § 151.2(f)(2001). [Note: Please note that the 2001 Edition of 25 C.F.R. inadvertently published the proposed Part 151 which were published in final form at 66 Fed. Reg. 3458 (January 16, 2001) and which were withdrawn by the Secretary at 66 Fed. Reg. 56608 (November 9, 2001). Thus the Part 151 regulations in the 2001 Edition of 25 C.F.R. which are in question form should be disregarded.] A tribe's land consolidation area does not equate with being "within the exterior boundaries of an Indian reservation" as required by 25 C.F.R. §151.3(b)(1), Thomas E. Edwards v. Portland Area Director, 29 IBIA 12, 13 (1995), for purposes of acquiring land for individual Indians. Where the term "reservation" is defined by a statute authorizing the acquisition of trust land, the definition of reservation for acquisitions under that statute must be gleaned from the language of the statute. South Dakota and Mellette County, 35 IBIA 16, 19 (2000). When the land to be acquired is located within that area which the appellant alleges is outside of the reservation because it is disestablished or diminished the Board will not address the disestablishment of diminishment argument because the land falls within the definition of reservation set forth at 25 C.F.R. § 151.2(f) and the acquisition may be treated as an on-reservation acquisition. County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169, 172 (2002). The BIA's determination concerning former reservation status is a legal conclusion subject to de novo review by the Board. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Anadarko Area Director, 28 IBIA 169, 178 (1995). When the proposed acquisition is outside of the reservation and not contiguous to it the BIA must comply with the requirements of 25 C.F.R. § 151.11. Christine A. May and Washoe County, Nevada v. Acting Phoenix Area Director, 33 IBIA 125 (1999). Section 151.11 provides:

The Secretary shall consider the following requirements in evaluating tribal requests for the acquisition of lands in trust status, when the land is located outside of and noncontiguous to the tribe's reservation, and the acquisition is not mandated:

(a) The criteria listed in § 151.10 (a) through (c) and (e) through (h);

(b) The location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservation, shall be considered as follows: as the distance between the tribe's reservation and the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe's justification of anticipated benefits from the acquisition. The Secretary shall give greater weight to the concerns raised pursuant to paragraph (d) of this section.

(c) Where land is being acquired for business purposes, the tribe shall provide a plan which specifies the anticipated economic benefits associated with the proposed use.

(d) Contact with state and local governments pursuant to § 151.10(e) and (f) shall be completed as follows: Upon receipt of a tribe's written request to have lands taken in trust, the Secretary shall notify the state and local governments having regulatory jurisdiction over the land to be acquired. The notice shall inform the state and local government that each will be given 30 days in which to provide written comment as to the acquisition's potential impacts on regulatory jurisdiction, real property taxes and special assessments.

By memorandum issued February 5, 2002 the Deputy Assistant Secretary - Indian Affairs directed the BIA that the Office of the Assistant Secretary - Indian Affairs would review the acquisition decisions for all off reservation acquisitions and by subsequent correspondence on February 12, 2002 advised the BIA to refer its decisions regarding whether lands are contiguous or adjacent to a reservation to the appropriate Solicitor's Office for review and concurrence in the determination.

The IBIA has declined to define the terms "contiguous" or "adjacent" and has on the four occasions where that issue has arisen in land acquisition appeals either referred that question to the Assistant Secretary - Indian Affairs or remanded it back to the Regional Director. See Thomas E. Edwards v. Portland Area Director, 29 IBIA 12 (1995); Virginia Cross v. Acting Portland Area Director, 23 IBIA 149 (1993); Andrew McCloud v. Acting Portland Area Director, 23 IBIA 203 (1993); Philemena Maahs v. Acting Portland Area Director, 22 IBIA 294 (1992). In Maahs, the property was separated from the reservation by a thirty foot wide road. In Cross the property was approximately one half mile from the reservation and in McCloud the property was within a twenty mile radius of the reservation. The Board did suggest that the greater the distance from the reservation the less likely the property would be deemed adjacent. McCloud, 23 IBIA at 204. By memorandum dated April 17, 2002 the Assistant Secretary - Indian Affairs issued clarification to his February 5 and 12, 2002 instructions on this issue (which required BIA realty staff to seek a determination from the Solicitor's Office regarding whether land proposed for trust acquisition is adjacent or contiguous) and instructed BIA realty staff that the record of decision must contain an analysis for determining that a parcel of land is adjacent or contiguous to the reservation and that they should seek the review and concurrence of the Solicitor's Office of that determination. It offered no instruction on the definition of adjacent or contiguous.

Nothing in 25 U.S.C. § 465 limits the Secretary's discretion in such a way that she may take land into trust for a tribe only in the state in which the tribe has its headquarters or in the state in which appears in the tribe's name. No special authorization is required for the Secretary to take land in trust in another state for a tribe. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 51 (2002).

2. Need for Additional Land

Indians need not be literally landless for the Secretary to acquire land for them under authority of 25 U.S.C. § 465, nor is the Secretary's authority to acquire land limited to agricultural purposes. State of Kansas v. Acting Southern Plains Regional Director, Bureau of Indian Affairs, 36 IBIA 152 (2001). See also United States v. 29 Acres of Land, 809 F.2d 544, 545 (8^th Cir. 1987); Chase v. McMasters, 573 F.2d 1011, 1015-16 (8^th Cir.), cert. denied, 439 U.S. 965 (1978); City of Sault Ste. Marie v. Andrus, 532 F. Supp. 157, 162 (D.D.C. 1980); City of Tacoma v. Andrus, 457 F. Supp. 342, 345-46 (D.D.C. 1978).

A tribe need not be suffering financial difficulties to "need" more land. "A financially secure tribe might well need additional land in order to maintain or improve its economic condition if its existing land is already fully developed." Avoyelles Parish, Louisiana, Police Jury v. Eastern Area Director, Bureau of Indian Affairs, 34 IBIA 149, 153 (1999).

The tribe need not show that it needs to be protected against its own improvidence or that it is not competent to handle its own economic affairs to have land taken in trust for it. County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169, 173 (2002). The BIA properly denied a trust application from an individual who does not need assistance with her affairs. The applicant was a business woman who had successfully handled her own business affairs. Colleen Talbot Ketcher v. Acting Muskogee Area Director, 33 IBIA 166 (1999). But see, Ziebach County, South Dakota v. Acting Great Plains Regional Director, 38 IBIA 227 (2002), which held that the BIA need not determine that an individual actually needs assistance with his or her affairs, it need only consider the degree to which an individual needs assistance in handling his or her affairs. The BIA is simply required to take the criterion into consideration. The Board has noted in prior cases that Part 151 does not require the BIA to reach any particular conclusion with respect to any of the criteria in section 151.10, does not specify the weight to be given to any of the criteria, and does not require any particular balancing of interests. Ziebach County, 38 IBIA at 229 (2002).

The Board has noted that Part 151 sets out broader acquisition authority for tribes than for individual Indians and subjects individual acquisitions to the additional requirement that the BIA consider the amount of trust or restricted land already owned by or for that individual and the degree to which he needs assistance in handling his affairs. The Board found that it was well within the BIA's authority to distinguish between tribal and individual acquisitions. Michael Shotpouch v. Acting Eastern Oklahoma Regional Director, 38 IBIA 217 (2002).

In a decision on an appeal of a trust acquisition where the Regional Director approved an application in which a tribe requested land to be placed in trust in a state other than the state where its reservation was located, the Assistant Secretary - Indian Affairs in remanding the decision back to the Regional Director required that he consider and discuss in his decision "the expected benefits to the Tribe or its members by acquiring this property in trust, and the expected economic or other benefits of the proposed continuation of agricultural activities." State of Missouri v. Acting Area Director, Muskogee Area Office, Decision of the Assistant Secretary - Indian Affairs (March 17, 2000). The appellant had alleged that the Area Director had not properly considered the tribe's need for trust land and had not fully considered the purposes for which the land was being acquired.

3. Purpose for Which the Land Will be Used

The Board requires the BIA to base its decision on both the information provided by the tribe as to its proposed use of the land and any other information which the BIA knows, or should know, which has some bearing on the present or future use of the land. City of Lincoln City, Oregon v. Portland Area Director, 33 IBIA 102, 107 (1999); Village of Ruidoso, New Mexico v. Albuquerque Area Director, 32 IBIA 130 (1998). The BIA's analysis of this factor should discuss present uses of the property, any record of the tribe's proposed plan for use of the property, and any other facts relevant to how the proposed land acquisition will be used. Village of Ruidoso, 32 IBIA at 139. "Nothing in the Restoration Act, 25 U.S.C. § 465, or 25 C.F.R. Part 151 authorizes the Department to impose restrictions on the Tribe's future use of land which is taken into trust." City of Lincoln City, 33 IBIA at 107. If the tribe's proposed use of the property changes during the acquisition process the BIA may withdraw its approval of the acquisition. Sycuan Band of Mission Indians v. Acting Sacramento Area Director, 31 IBIA 238 (1997).

The Assistant Secretary - Indian Affairs has noted that anyone who knowingly and willfully makes a false statement in connection with a trust acquisition may be subject to criminal prosecution under the False Statements and Accountability Act of 1996, 18 U.S.C. § 1001. State of Missouri v. Acting Area Director, Muskogee Area Office, Decision of the Assistant Secretary - Indian Affairs (March 17, 2000).

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4. Impact of Loss of Taxes

The BIA must consider the loss of taxes actually assessed and paid on the property. Rio Arriba, 36 IBIA at 22. It is irrelevant that the property might have been purchased by an entity which would also not have paid taxes. (See discussion of Rio Arriba, 36 IBIA 14 (2001) in Section III.B. herein above.) The Regional Director may also take into account any appeals the Tribe may have filed regarding the valuation of the property. Rio Arriba, 36 IBIA at 24 (2001). Many appellants assert the future loss of taxes based on the Tribe's planned development of the property. The Board has not required the BIA to consider such speculative loss. It has however, addressed the loss of gross receipts or similar taxes on activities on lands proposed to be acquired in trust.

Where a state or local government has collected gross receipts or similar taxes from activities on property proposed for trust acquisition, but will no longer be able to collect such taxes once the property has been taken into trust, there is undeniably a financial "impact on the State and its political subdivisions." However, even where a state or local government can show that it has previously collected such taxes on the property, BIA is likely to find it difficult, if not impossible, to estimate with any certainty the amount of revenue the state or local government would lose as a result of a trust acquisition. This is because, among other things, such a tax may apply in the case of some transactions but not others, or in the case of transactions involving some parties but not others. The legal analysis is a complicated one, as is apparent from the many court decisions in the area. Nothing in 25 C.F.R. Part 151 requires that BIA engage in a complex legal analysis concerning the taxability of activities conducted on land after it is taken into trust. Avoyelles Parish, 34 IBIA at 154-155.

Rio Arriba, 36 IBIA at 25. If however, the law concerning the tax is sufficiently clear to permit a reasonably accurate determination of gross receipts taxes that would be lost to the State and local governments the BIA should take the loss of such revenue into account in its analysis under section 151.10(e). Rio Arriba, 36 IBIA at 26.

An appellant State or local government may not complain if the BIA decision maker relied on incorrect tax information supplied by the appellant. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14 (2001); Avoyelles Parish, Louisiana, Police Jury v. Eastern Area Director, Bureau of Indian Affairs, 34 IBIA 149, 152 (1999). Nor will it be heard to complain later if it failed to supply tax information and the BIA relies on other sources. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 53 (2002). However, if the BIA decision maker relies on incorrect assumptions about taxes, which assumptions are not supported by the administrative file, the Board will remand the matter to the decision maker for reconsideration. Ziebach County, South Dakota v. Acting Great Plains Regional Director, 38 IBIA 227, 230 (2002).

"In order to show consideration under 25 C.F.R. § 151.10(e) with respect to Appellant, BIA must, at a minimum, discuss whether Appellant has taxing authority; what, if any, taxes were assessed by Appellant in regard to these properties, or what, if any, taxes were received by Appellant in regard to each property; and the impact, if any, on Appellant of the removal of the tracts from the tax rolls." City of Eagle Butte, South Dakota v. Aberdeen Area Director, Bureau of Indian Affairs, 33 IBIA 246 (1999). The regulations do not require the BIA to consider the cumulative tax loss of the removal of land from county tax rolls. County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169, 172 (2002). A generalized argument regarding the loss of taxes to the state or local government, without specific information regarding the impact of the loss of taxes will not carry the appellant's burden of proof to show that the BIA has improperly exercised its discretion as to 25 C.F.R. § 151.10(e). City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188 (2001).

5. Jurisdictional Problems and Potential Conflicts of Land Use

The regulations governing land acquisition require that the BIA consider jurisdictional issues, but not necessarily resolution of them. Avoyelles Parish, 34 IBIA 149, 156. The BIA need not consider every speculative use which an appellant suggests the land may be used for, rather the BIA should consider the information provided to it by the applicant and any other information in its possession which it knows or should know. It must give reasonable and prudent review of all credible information provided to it or which it discovers independently. Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantation v. Eastern Area Director, 35 IBIA 93 (2000).

When the land being acquired is located within reservation boundaries the BIA decision maker may take into consideration an already established jurisdictional pattern. An appellant's bare assertions concerning jurisdictional problems are insufficient to show that a trust acquisition would alter that pattern or worsen any existing problems with the pattern. Ziebach County, South Dakota v. Acting Great Plains Regional Director, 38 IBIA 227, 231 (2002).

While typically the BIA will be considering conflicts of land use vis-a-vis other local governments, in the context of individual trust acquisitions the BIA may consider the conflicts of use among family members and properly declined to take land in trust if doing so would exacerbate that problem. Colleen Talbot Ketcher v. Acting Muskogee Area Director, 33 IBIA 166 (1999).

6. Compliance with NEPA, Contaminants Review and NHPA

"The Department is required to comply with the provisions of any Federal law-including but not limited to NEPA-which is applicable to a trust acquisition request at the time the Department is considering the request." John Santana and Virginia Buck v. Sacramento Area Director, Bureau of Indian Affairs, 33 IBIA 135, 143 (1999). The Department does not have the authority to decide not to comply with the statute or to waive compliance through entering into an agreement. Santana. Actions taken by the BIA on lands held in trust for an Indian tribe or individual are subject to the requirements of NEPA. Friends of the Wild Swan v. Portland Area Director, Bureau of Indian Affairs, 27 IBIA 8 (1994). A decision which fails to address NEPA compliance will be remanded for consideration of it. Santana, 33 IBIA at 135.The Board will review the BIA's compliance with NEPA, but will not remand absent clear error. City of Isabel, South Dakota v. Great Plains Regional Director, 38 IBIA 263, 268 (2002).

The Board has held that because the Secretary lacks his or her usual discretion when making mandatory land acquisitions and his or her role is essentially ministerial, NEPA review is not required for mandatory acquisitions. The primary purpose of NEPA is to aid an agency decision maker in the exercise of his or her discretion. Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians v. Portland Area Director, Bureau of Indian Affairs, 27 IBIA 48 (1994).

Under NEPA the BIA has a duty to analyze the reasonably foreseeable environmental impacts of its proposed decision. Neighbors for Rational Development, Inc. v. Albuquerque Area Director, 33 IBIA 36, 43 (1998), citing Scientists' Inst. For Public Info. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 (D.C. Cir. 1972). The BIA is not required to make speculative inquiry concerning every possible use that might arise sometime in the future. An EIS will not be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Neighbors for Rational Development, 33 IBIA at 43-44. The BIA's task is to take a "hard look" at the environmental consequence of its proposed action. Neighbors for Rational Development, Id at 47. The decision in Neighbors for Rational Development involved the BIA's approval of a lease of tribal land, but the NEPA analysis is equally applicable to a decision to acquire land in trust.

The Secretary of the Interior is not required to comply with the National Historic Preservation Act (NHPA), 16 U.S.C. § 470, et seq. when he or she has no discretion to exercise when taking land into trust. Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250 (10^th Cir. 2001). The NHPA requires federal agency heads to take into account the impact of any "Federal or federally assisted undertaking" on sites listed or eligible for listing in the National Register of Historic Places. Sac and Fox. Because of the operational similarity of NEPA and NHPA the courts generally treat "major federal actions" under NEPA as closely analogous to "federal undertakings" under NHPA. Sac and Fox.

The acquisition regulations at 25 C.F.R. § 151.10(h) require the BIA to consider the extent to which an applicant has provided information that allows the Secretary to comply with NEPA, 516 DM 6, appendix 4 and 602 DM 2, Hazardous Substances Determinations. The Board will not hear an appeal of NEPA findings prior to the time the underlying decision is made. In the context of land acquisition decisions, the Board will stay an appeal of a NEPA finding until the decision whether or not to acquire land in trust has been made. Citizens for Safety and Environment v. Northwest Regional Director, 37 IBIA 282 (2002);Viejas Band of Mission Indians and County of San Diego, California v. Pacific Regional Director, 38 IBIA 73 (2002); David Evitt, Russell Evitt, Doris Evitt, and James Edmonds v. Acting Pacific Regional Director, 38 IBIA 77 (2002); Voices for Rural Living and Shingle Springs Neighbors for Quality Living and El Dorado County, California, and El Dorado County Board of Supervisors v. Pacific Regional Director, 38 IBIA 124 (2002).

7. Department of Justice Title Standards

The Department of Justice Title Standards apply to the acquisition of land in trust unless the statute authorizing the acquisition specifically provides otherwise. Tohono O'Odham Nation v. Acting Phoenix Area Director, 22 IBIA 220 (1992).

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