Indian Issues
BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve the Processing of Land in Trust Applications Gao ID: GAO-06-781 July 28, 2006In 1980, the Department of the Interior (Interior) established regulations to provide a uniform approach for taking land in trust. Trust status means the government holds title to the land in trust for tribes and individual Indians. Trust land is exempt from state and local taxes. The Secretary of the Interior has delegated primary responsibility for processing, reviewing, and deciding on applications to take land in trust to the Bureau of Indian Affairs (BIA). As part of this process, BIA must seek comments from affected state and local governments. Congress directed GAO to study BIA's processing of land in trust applications to determine the extent to which (1) BIA followed its regulations, (2) applications were processed in a timely manner, and to (3) identify any concerns raised by state and local governments about land in trust applications. GAO is also providing information on problems with BIA's data on the processing of land in trust applications.
BIA generally followed its regulations for processing land in trust applications, although most of the criteria in the regulations are not specific and thus do not offer clear guidance for how BIA should apply them. For example, there are no guidelines on how to weigh the impact of lost tax revenues on local governments. As a result, the BIA decision maker has wide discretion. Generally, all of the 87 applications with decisions in fiscal year 2005 were approved, except for 1 denial and 6 that were closed because the applications were incomplete. BIA is considering revisions to the regulations that would clarify that applications will generally be approved unless there is clear evidence of significant negative impacts. These revisions would make BIA's decision-making process more transparent. Currently, BIA has no deadlines for making decisions on land in trust applications, but BIA is considering imposing about a 6-month time frame. In addition, there is also a 60-day time frame for BIA regional directors to rule on appeals. Based on these time frames, it appears that many land in trust applications have not been processed in a timely manner. First, the median processing time for the 87 applications with decisions in fiscal year 2005 was 1.2 years--ranging from 58 days to almost 19 years. Second, 28 complete off-reservation applications had been waiting an average of 1.4 years for a decision as of September 30, 2005. Third, 34 appeals had been waiting an average of about 3 years for resolution by a BIA regional director as of September 30, 2005. When opposing land in trust applications or appealing decisions, state and local governments principally cited concerns about lost tax revenues and jurisdictional issues. In commenting on applications prior to decisions made in fiscal year 2005, state and local governments opposed 12 of 87 applications, or about 14 percent. Also, as of September 30, 2005, 45 decisions were on administrative appeal to either a BIA regional director or Interior's Board of Indian Appeals, including 5 appealed decisions from fiscal year 2005. Although GAO found little opposition to applications with decisions in fiscal year 2005, some state and local governments we contacted said (1) they did not have access to sufficient information about the land in trust applications and (2) the 30-day comment period was not sufficient time in which to comment. GAO found the data in BIA's land in trust database, which was implemented in August 2004, were frequently incomplete and inaccurate. The database was hastily developed without defining user requirements and data fields. Specifically, (1) not all of the applications had been entered into the database and (2) the status of an application, as either approved or denied, was frequently incorrect. A properly designed and implemented database with accurate data would provide BIA with important information to help better manage the land in trust process. BIA has already recognized the shortcomings and initiated an effort to redesign the database as necessary.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-06-781, Indian Issues: BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve the Processing of Land in Trust Applications
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July 2006:
Indian Issues:
BIA's Efforts to Impose Time Frames and Collect Better Data Should
Improve the Processing of Land in Trust Applications:
GAO-06-781:
GAO Highlights:
Highlights of GAO-06-781, a report to congressional committees
Why GAO Did This Study:
In 1980, the Department of the Interior (Interior) established
regulations to provide a uniform approach for taking land in trust.
Trust status means the government holds title to the land in trust for
tribes and individual Indians. Trust land is exempt from state and
local taxes. The Secretary of the Interior has delegated primary
responsibility for processing, reviewing, and deciding on applications
to take land in trust to the Bureau of Indian Affairs (BIA). As part of
this process, BIA must seek comments from affected state and local
governments.
Congress directed GAO to study BIA‘s processing of land in trust
applications to determine the extent to which (1) BIA followed its
regulations, (2) applications were processed in a timely manner, and to
(3) identify any concerns raised by state and local governments about
land in trust applications. GAO is also providing information on
problems with BIA‘s data on the processing of land in trust
applications.
What GAO Found:
BIA generally followed its regulations for processing land in trust
applications, although most of the criteria in the regulations are not
specific and thus do not offer clear guidance for how BIA should apply
them. For example, there are no guidelines on how to weigh the impact
of lost tax revenues on local governments. As a result, the BIA
decision maker has wide discretion. Generally, all of the 87
applications with decisions in fiscal year 2005 were approved, except
for 1 denial and 6 that were closed because the applications were
incomplete. BIA is considering revisions to the regulations that would
clarify that applications will generally be approved unless there is
clear evidence of significant negative impacts. These revisions would
make BIA‘s decision-making process more transparent.
Currently, BIA has no deadlines for making decisions on land in trust
applications, but BIA is considering imposing about a 6-month time
frame. In addition, there is also a 60-day time frame for BIA regional
directors to rule on appeals. Based on these time frames, it appears
that many land in trust applications have not been processed in a
timely manner. First, the median processing time for the 87
applications with decisions in fiscal year 2005 was 1.2 years”ranging
from 58 days to almost 19 years. Second, 28 complete off-reservation
applications had been waiting an average of 1.4 years for a decision as
of September 30, 2005. Third, 34 appeals had been waiting an average of
about 3 years for resolution by a BIA regional director as of September
30, 2005.
When opposing land in trust applications or appealing decisions, state
and local governments principally cited concerns about lost tax
revenues and jurisdictional issues. In commenting on applications prior
to decisions made in fiscal year 2005, state and local governments
opposed 12 of 87 applications, or about 14 percent. Also, as of
September 30, 2005, 45 decisions were on administrative appeal to
either a BIA regional director or Interior‘s Board of Indian Appeals,
including 5 appealed decisions from fiscal year 2005. Although GAO
found little opposition to applications with decisions in fiscal year
2005, some state and local governments we contacted said (1) they did
not have access to sufficient information about the land in trust
applications and (2) the 30-day comment period was not sufficient time
in which to comment.
GAO found the data in BIA‘s land in trust database, which was
implemented in August 2004, were frequently incomplete and inaccurate.
The database was hastily developed without defining user requirements
and data fields. Specifically, (1) not all of the applications had been
entered into the database and (2) the status of an application, as
either approved or denied, was frequently incorrect. A properly
designed and implemented database with accurate data would provide BIA
with important information to help better manage the land in trust
process. BIA has already recognized the shortcomings and initiated an
effort to redesign the database as necessary.
What GAO Recommends:
GAO is making a number of recommendations to improve the timeliness and
transparency of the land in trust process and to ensure that BIA has
accurate and reliable data in the land in trust database.
In commenting on the draft report, Interior agreed with our findings
and recommendations.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-781].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Robin M. Nazzaro at (202)
512-3841 or nazzaror@gao.gov.
[End of Section]
Contents:
Letter:
Results in Brief:
Background:
BIA Generally Followed the Regulations for Taking Land in Trust, and
These Regulations Provide BIA with Wide Discretion:
Many Land in Trust Applications Have Not Been Processed in a Timely
Manner:
Citing Taxes and Jurisdictional Issues, State and Local Governments
Opposed Applications in Fiscal Year 2005:
BIA's Land in Trust Database Is Incomplete and Inaccurate, and BIA is
Planning to Redesign It:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: BIA's Process for Placing Land in Trust:
Appendix III: Processing Times for 87 Land in Trust Applications with
Decisions in Fiscal Year 2005:
Appendix IV: Processing Times for 28 Off-Reservation Land in Trust
Applications Awaiting Consideration by BIA Central Office:
Appendix V: Processing Times for 34 Appealed Land in Trust Decisions
Awaiting Resolution by a BIA Regional Director:
Appendix VI: Comments from the Department of the Interior:
Appendix VII: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Analysis of the Eight Criteria BIA Considers in Making Its
Decision for On-Reservation Land in Trust Applications:
Table 2: Processing Times for Land in Trust Applications with Decisions
in Fiscal Year 2005 by BIA Region:
Table 3: Applications with State or Local Government Opposition Prior
to BIA's Decision in Fiscal Year 2005:
Table 4: Number of Appeals Pending, by Region, as of September 30,
2005:
Table 5: Administrative Appeals of BIA Land in Trust Decisions Awaiting
Resolution by the IBIA as of September 30, 2005:
Table 6: Representatives of Tribes and Bands Interviewed By GAO:
Figures:
Figure 1: BIA Regions in the Continental United States and the Number
of Tribes They Serve:
Figure 2: Processing Times for Land in Trust Applications with
Decisions in Fiscal Year 2005:
Abbreviations:
BIA: Bureau of Indian Affairs:
IBIA: Department of the Interior's Board of Indian Appeals:
NEPA: National Environmental Policy Act:
July 28, 2006:
The Honorable Conrad Burns:
Chairman:
The Honorable Byron L. Dorgan:
Ranking Minority Member:
Subcommittee on Interior and Related Agencies:
Committee on Appropriations:
United States Senate:
The Honorable Charles H. Taylor:
Chairman:
The Honorable Norman D. Dicks:
Ranking Minority Member:
Subcommittee on Interior, Environment, and Related Agencies:
Committee on Appropriations:
House of Representatives:
In 1980, the Department of the Interior (Interior) established a
regulatory process intended to provide a uniform approach for taking
land in trust.[Footnote 1] Trust status means that the federal
government holds title to the land in trust for tribes or individual
Indians. Land taken in trust is no longer subject to state and local
property taxes and zoning ordinances. Many Indians believe that having
their land placed in trust status is fundamental to safeguarding it
against future loss and ensuring their sovereignty. While some state
and local governments support the federal government's taking
additional land in trust for tribes or individual Indians, others
strongly oppose it because of concerns about the impacts on their tax
base and jurisdictional control. Further, the growth of Indian gaming,
its impacts on local communities, and the possibility that newly
acquired land taken in trust could be used for gaming have led to
heightened concerns about Indian land acquisitions by some members of
the public and some state and local governments.
Taking land in trust can be mandated by Congress through legislation or
at the discretion of the Secretary of the Interior. Under the
regulations, tribes or individual Indians who purchase or own property
on which they pay property taxes can submit a written request to the
Secretary of the Interior to have the land taken in trust. If approved,
the ownership status of the property would be converted from taxable
status to nontaxable Indian trust status. For requests made by tribes
or individual Indians under Interior's discretionary authority, the
regulations establish criteria that the Secretary of the Interior must
consider in evaluating whether to approve or deny the request. The
criteria differ slightly for requests involving land located within or
contiguous to an existing Indian reservation--referred to as on-
reservation acquisitions--and land located outside of and not
contiguous to an existing Indian reservation--referred to as off-
reservation acquisitions. The on-reservation criteria require that the
Secretary consider, among other things, the impact on the state and its
political subdivisions resulting from removing the land from the tax
rolls and jurisdictional problems and potential conflicts surrounding
land use that could arise.[Footnote 2] As part of the process, state
and local governments must be notified of a request and allowed 30 days
to provide written comments on the potential impacts of regulatory
jurisdiction, real property taxes, and special assessments. For off-
reservation requests, the regulations also require the Secretary to,
among other things, give greater scrutiny to the tribe's justification
of anticipated benefits from the acquisition as the distance away from
the reservation increases and give greater weight to concerns raised by
state and local governments.[Footnote 3]
The Secretary of the Interior has delegated to the Assistant Secretary
for Indian Affairs, primarily through the Bureau of Indian Affairs
(BIA), the day-to-day responsibility for processing, reviewing, and
deciding on applications to take land in trust. Written applications
are submitted to BIA regional offices and local agency offices across
the country.[Footnote 4] In most cases, the decision maker for on-
reservation applications is the superintendent of the local agency
office. For off-reservation applications, the decision maker is the
applicable BIA regional director. However, under Interior's policy, the
Assistant Secretary for Indian Affairs is to review all off-reservation
applications and provide input before the regional director issues a
decision. On-and off-reservation applications are generally processed
by a combination of BIA realty staff at BIA's Central Office in
Washington, D.C., a BIA regional office, and a local agency office.
Decisions by BIA superintendents and regional directors are not
Interior's final position until the administrative appeals process has
been exhausted. Decisions may be appealed to the applicable BIA
regional director or to Interior's Board of Indian Appeals (IBIA),
depending on who the decision maker was.[Footnote 5] Ultimately,
disputes over taking land in trust may be litigated in federal court.
To be able to provide agencywide data on the processing of land in
trust applications, BIA created a land in trust database in the summer
of 2004. Each BIA office is responsible for entering key dates and
information about the processing of their land in trust applications,
such as the date comments were requested and received from state and
local governments and the date of BIA's decision. By the end of fiscal
year 2005, BIA officials had entered information on over 1,000
applications into the database. The applications cover tracts of land
that are less than an acre to tracts that are thousands of acres,
located in both rural and urban areas. The database shows most of the
applications are pending. However, the information in the database is
not complete or accurate enough to use in describing the status or
condition of applications overall. Therefore, to provide such a
description for this report, we primarily relied upon applications with
decisions in fiscal year 2005, as we were able to verify the accuracy
and completeness of these applications by reviewing the actual
documents in select BIA offices across the country. In this manner we
were able to ensure that we had the complete population for
applications with decisions in fiscal year 2005. In fiscal year 2005,
BIA superintendents and regional directors issued decisions on 87
applications covering more than 5,800 acres for 31 tribes or their
members in 12 states. Since 1934, the total acreage held in trust by
the federal government for the benefit of tribes and their members has
increased from about 49 million to about 54 million.
The fiscal year 2006 House Appropriations Committee Report for
Interior's appropriation bill directed GAO to study BIA's procedures
and practices in implementing the land in trust regulations.[Footnote
6] In response to this direction and subsequent discussions with
congressional offices, we (1) assessed the extent to which BIA's
processing of land in trust applications followed its regulations, (2)
determined the extent to which applications were processed in a timely
manner, and (3) identified any state and local government concerns
about land in trust applications and how they were addressed in BIA's
decision-making process. In addition, we are providing information on
the problems we encountered with the data BIA collects on the
processing of land in trust applications. We also agreed to review the
Department of the Interior's Bureau of Land Management's process for
issuing allotments of land to individual Indians out of the public
domain. We will report on that issue separately because it involves a
different agency and different legislative authority.
In conducting our work, we reviewed applicable laws, regulations, and
land in trust applications. We reviewed applications and interviewed
BIA realty staff at six regional offices--Eastern, Midwest, Northwest,
Pacific, Southern Plains, and Southwest--and eight agency offices--
Blackfeet (Browning, Montana), Chickasaw (Ada, Oklahoma), Great Lakes
(Ashland, Wisconsin), Horton (Horton, Kansas), Minnesota (Bemidji,
Minnesota), Siletz (Siletz, Oregon), Warm Springs (Warm Springs,
Oregon), and Wind River (Fort Washakie, Wyoming). We visited all of the
BIA offices with 10 or more land in trust applications decided in
fiscal year 2005. From the offices we visited, we collected 67 of the
87 discretionary nongaming land in trust applications decided in fiscal
year 2005, or 77 percent. BIA staff from the locations we did not visit
made copies of an additional 18 applications and mailed them to us. We
obtained the remaining two applications from the IBIA. We analyzed
these applications in the following ways:
* To determine how BIA processed land in trust applications, we
reviewed the 87 applications with decisions in fiscal year 2005, and we
compared how the applications were processed with the requirements in
the regulations.
* To determine whether applications were processed in a timely manner,
we compared the processing times for (1) 87 applications with decisions
in fiscal year 2005 and (2) 28 complete off-reservation applications
awaiting comments from the Office of the Assistant Secretary for Indian
Affairs to 120 business days, or about 6 months, the time frame BIA is
considering imposing for making decisions on on-and off-reservation
land in trust applications. In addition, we compared the length of time
that 34 appealed decisions had been awaiting resolution by BIA regional
directors with the current 60-day time frame set forth in the
regulations on appeals. We also interviewed BIA officials and tribal
representatives involved in the process to obtain their views on the
time taken for processing applications.
* To determine whether state and local governments had any concerns
about land in trust applications, we analyzed the content of comments
made by these governments for the 87 applications with decisions in
fiscal year 2005. We also reviewed the issues raised by state and local
governments in all 45 appeals pending as of September 30, 2005--34
appeals pending before BIA regional directors and 11 appeals pending
before the IBIA. In addition, we obtained the perspectives of
representatives of the National Governors Association and the National
Association of Counties.
* To determine the accuracy and reliability of BIA's land in trust
database, we compared the information in the database with other data
sources: spreadsheets used by a number of the BIA offices we visited to
track land in trust applications, BIA realty reports prepared under the
Government Performance and Results Act, and BIA annual acreage reports.
We also discussed the development of the current database and the
proposed redesign of the database with staff in the Office of the Chief
Information Officer within the Office of the Assistant Secretary for
Indian Affairs.
A more detailed description of our objectives, scope and methodology
can be found in appendix I. We performed our work between August 2005
and June 2006 in accordance with generally accepted government auditing
standards.
Results in Brief:
BIA generally followed its regulations for processing land in trust
applications. In processing these applications, BIA realty staff
notified and obtained comments from affected state and local
governments, ensured that required environmental reviews were
performed, and obtained title reviews from Interior's Office of the
Solicitor. After reaching its decision, BIA normally provided a
decision letter to the applicant and the affected state and local
governments documenting BIA's consideration of the applicable criteria
in the regulations. Decision letters also included an explanation of
the appeals process. Generally all of the 87 applications with
decisions in fiscal year 2005 were approved, except for 1 application
that was denied based on failure to meet the criteria and 6
applications that were closed by BIA because the applications were
incomplete. While BIA realty staff generally followed the necessary
procedural steps, the criteria in the regulations provide BIA's
decision makers with wide discretion in deciding to take land in trust.
Most of the criteria are not specific and do not offer clear guidelines
for what constitutes an unacceptable result. For example, one criterion
requires BIA to consider the impact of lost tax revenues on state and
local governments. However, there is no guidance on how to evaluate
lost tax revenue, such as comparing it with a county's total budget or
evaluating its impact on particular tax-based services. In addition,
there is no threshold for what might constitute an unacceptable level
of lost tax revenue--an amount that might lead BIA to deny an
application. BIA is considering revisions to the regulations that
states that applications will generally be approved "—unless the record
shows clear and demonstrable evidence that the trust acquisition will
result in significant negative impact to the environment or to the
local government." These revisions would make BIA's decision-making
process more transparent. While we found that BIA procedurally followed
the regulations for the 87 applications with decisions in fiscal year
2005, there was an issue that is not specifically addressed in the
regulations that raised a concern at one office. We found that one BIA
agency office did not document its decision-making process, including
the consideration of the criteria in the regulations, despite BIA's
policy to do so.
While BIA's current regulations do not set a specific time frame for
making an initial decision on an application, BIA is considering
revisions to the regulations that would impose a time frame of 120-
business days, or about 6 months, for making a decision for both on-and
off-reservation applications once an application is complete. In
addition, the existing regulations on appeals of a decision set forth a
60-day time frame for resolution "—after all time for pleadings
(including all extensions granted) has expired." Based on these time
frames, it appears that many land in trust applications have not been
decided in a timely manner. First, for the 87 applications with
decisions in fiscal year 2005, the median time from the start of the
application until BIA officials made a decision was 1.2 years. The
processing times ranged from a low of 58 days to a high of almost 19
years. At least 10 of the 87 applications with decisions in fiscal year
2005 were decided within the time frame under consideration; however, a
number of applications took an exceedingly long time because of delays
on the part of either the applicant or BIA. Second, 28 complete off-
reservation applications had been pending review at the Central Office
an average of 1.4 years from the date of the draft decision to
September 30, 2005. Twenty-two of these 28 off-reservation applications
had not been processed in a timely manner, as of September 30, 2005,
based on the time frames under consideration. Third, 34 appealed
decisions awaiting resolution by a BIA regional director have been
pending an average of 2.8 years from the time of the decision to
September 30, 2005.
When opposing land in trust applications or appealing decisions, state
and local governments principally cited concerns about lost tax
revenues and jurisdictional issues. In commenting on applications prior
to decisions made in fiscal year 2005, state and local governments
opposed 12 of 87 applications, or about 14 percent, mainly citing
concerns about lost tax revenues and jurisdictional issues. For
example, the state of Kansas raised questions about who would be
responsible for providing road maintenance and fire protection if the
land was taken in trust. BIA generally reviewed the comments it
received on pending applications and considered them in its decision-
making process. Ten of the 12 applications with some initial opposition
were approved by BIA in its decision in fiscal year 2005; the remaining
2 applications were closed by BIA because the applications were
incomplete. State and local governments have also opposed some
applications through administrative appeals, again primarily citing
lost tax revenues and jurisdictional issues. As of the end of fiscal
year 2005, a total of 45 decisions were pending review on appeal,
including 5 appealed decisions from fiscal year 2005. Although we found
little opposition to the applications with decisions in fiscal year
2005, some state and local government representatives we contacted
regarding land in trust issues said that (1) they did not have access
to sufficient information about the land in trust applications to
provide comments and (2) the 30-day comment period was not sufficient
time in which to provide comments. For example, according to some state
and local governments, BIA's notifications on pending applications
provide no information about the tribe's proposed use of the land once
it is approved for trust status. Interior is considering revisions to
the regulations that would provide state and local governments with
additional information about the applications and 60 and 90 days,
respectively, to provide comments for on-and off-reservation
applications.
During the course of our review, we found the data in BIA's land in
trust database, which was implemented agencywide in August 2004, were
frequently incomplete and inaccurate. As a result, the data are of
questionable value to Interior and BIA management; we did not rely on
these data. The database was hastily developed and deployed agencywide
in the summer of 2004 without defining and documenting user
requirements and clearly defining data fields. In a June 2005 memo,
almost a year after the system was put in place, BIA's Deputy Director
for Trust Services noted that only 4 of the possible 11 regions had
entered any data into the database. The memo directed each BIA regional
and agency office to enter all of its land in trust applications into
the database within 5 days. By the end of fiscal year 2005, the
database contained information on more than 1,000 applications, but we
still found that not all of the applications had been entered into the
database. Furthermore, the status of an application, as either
approved, denied, or pending, was frequently incorrect in the database.
While some of these errors were simply data entry errors, others were
the result of systemic problems, such as the lack of common definitions
for key terms. A properly designed and implemented database with
accurate data would provide BIA with important information to help
better manage the land in trust process. BIA has already recognized
these shortcomings and initiated an effort to reevaluate and redesign
the database, as necessary.
We are recommending that the Secretary of the Interior direct BIA to
(1) reinforce the requirement that all decisions be fully documented;
(2) adopt revisions to the regulations under consideration to include
specific time frames for the decision-making process, as well as
guidelines for providing state and local governments with more
information and a longer period of time to provide meaningful comments
on the applications; and (3) implement appropriate internal controls to
help ensure the accuracy and reliability of the data in the land in
trust database. In commenting on a draft of this report, Interior
agreed with our findings, conclusions, and recommendations. Interior
commented that BIA is working to address the recommendations and that a
corrective action plan will be developed and implemented in response to
the report. Specifically, BIA is taking steps to finalize the
regulations under consideration. After the regulations are completed,
BIA will develop a handbook to ensure consistent application of the
regulations. The handbook will also include specific internal control
procedures to ensure all decisions are properly and completely
documented, as well as entered into the land in trust database
accurately and in a timely manner. See appendix VI for Interior's
written comments.
Background:
Since the early days of American colonization, Indian lands have
diminished significantly, in large part because of federal policy. By
1886, Indian lands had been reduced to about 140 million acres, largely
on reservations west of the Mississippi River. Federal policy
encouraging assimilation in the late 1800s and early 1900s further
reduced Indian lands by two-thirds, to about 49 million acres by 1934.
However, in 1934, the enactment of the Indian Reorganization Act
changed the government's Indian policy to encourage tribal self-
governance.[Footnote 7] Section 5 of the act provided the Secretary of
the Interior the discretionary authority to take land in trust on
behalf of federally recognized tribes or their members. Specifically,
section 5 states:
The Secretary of the Interior is hereby authorized, in his discretion,
to acquire through purchase, relinquishment, gift, exchange, or
assignment, any interest in lands, water rights or surface rights to
lands, within or without existing reservations — for the purpose of
providing land for the Indians. — Title to any lands or rights acquired
pursuant to this Act shall be taken in the name of the United States in
trust for the Indian tribe or individual Indian for which the land is
acquired, and such lands or rights shall be exempt from State and local
taxation. [Emphasis added]
Since 1934, the total acreage held in trust by the federal government
for the benefit of tribes and their members has increased from about 49
million to about 54 million acres.[Footnote 8]
Within Interior, BIA is responsible for the administration and
management of all land held in trust by the United States and for
serving the 561 federally recognized tribes and about 1.9 million
individual Indians and Alaska Natives.[Footnote 9] The Assistant
Secretary for Indian Affairs has primary responsibility for BIA while
the BIA Director oversees its day-to-day operations. BIA has over 9,600
staff and an annual budget of about $2.39 billion. BIA's
responsibilities include the administration of education systems,
social services, and natural resource management, among other things.
BIA is organized by 12 regions with 58 underlying agencies located
throughout the country. One region covers the state of Alaska, and the
remaining 11 cover the continental United States.[Footnote 10] (See
fig. 1.) A regional director is in charge of each regional office and a
superintendent is in charge of each agency office.
Figure 1: BIA Regions in the Continental United States and the Number
of Tribes They Serve:
[See PDF for image]
Source: BIA and GAO.
Note: BIA's Western Region serves the Hopi Indian Reservation, which is
located within the boundaries of the Navajo Region. Also, one of the
tribes served by BIA's Northwest Region--the Metlakatla Indian
Community of the Annette Island Reserve--is located in Alaska.
[End of figure]
The Office of Trust Services, which includes BIA's Central Office
realty staff, provides overall guidance for the land in trust program
as one of its many responsibilities.[Footnote 11] Real estate services
staff, about 390 total with an annual budget near $41 million, are
located at BIA offices across the country and are responsible for
processing land in trust applications, as well as other functions,
including property management, land leasing and title activity, and
lease compliance. Real estate services staff are under the line
authority of regional directors and agency superintendents.
In 1980, Interior established a regulatory process intended to provide
a uniform approach for taking land in trust.[Footnote 12] For on-
reservation applications under the Secretary's discretionary authority,
the deciding official must consider:
* the statutory authority to take land into trust;
* the need for the land;
* the purpose of acquiring the land;
* for individual Indians, the amount of land already held in trust and
the individual's need for assistance in handling business matters;
* the implications for state and local governments of removing land
from the tax rolls;
* the potential jurisdictional concerns of state and local governments;
* BIA's ability to discharge its duties on the newly acquired land;
and:
* environmental compliance, particularly with the National
Environmental Policy Act (NEPA).
For off-reservation applications under the Secretary's discretionary
authority, BIA must also place greater weight on the concerns of state
and local governments as the distance of the land from the tribe's
reservation increases and review a business plan if the land is to be
acquired for business purposes. Once these steps have been completed,
BIA provides a decision to the applicant and affected parties. Several
additional steps follow, including publication of the decision in the
Federal Register or a local newspaper, and possible administrative
appeals and litigation.
In 1988, about 8 years after the regulations for taking land in trust
were issued, the Indian Gaming Regulatory Act was enacted.[Footnote 13]
The act provided the statutory basis for the operation and regulation
of certain gaming activities on Indian lands. It generally prohibits
gaming activities on Indian trust lands acquired by the Secretary after
October 17, 1988, the date the act was signed into law. However, the
act does provide several exceptions that allow gaming on lands acquired
in trust after its enactment.[Footnote 14] For fiscal year 2005, gaming
revenues from Indian gaming facilities totaled $22.6 billion.
On applications for land in trust, applicants must declare the
anticipated use of the property, particularly whether the property will
be for gaming or nongaming purposes. Applications to take land in trust
for gaming purposes are handled by the Office of Indian Gaming
Management within the Office of the Assistant Secretary for Indian
Affairs. In September 2005, Interior's Office of the Inspector General
reported on the processing of applications for land in trust for gaming
purposes.[Footnote 15] The Inspector General reported that while the
review and approval process for gaming applications was "sufficient,"
the process took an average of 17 months--or about 1.4 years--from the
time BIA received the application until its final action. Furthermore,
the Inspector General reported 10 instances where tribes had converted
lands acquired for nongaming purposes to gaming without first getting
the necessary approvals pursuant to the Indian Gaming Regulatory Act.
Interior subsequently determined that five of these conversions were
eligible for gaming under the Indian Gaming Regulatory Act, one was
not, and four were still under review at the time of the Inspector
General's report. The gaming facility on the one ineligible conversion
was later closed.
Our report focuses on discretionary nongaming land in trust
applications, which fall into three categories--on-reservation, off-
reservation, and "gaming related" applications. The gaming related
category was added in 2001, and it refers to applications involving
support facilities for gaming establishments, such as parking lots and
maintenance buildings, but not the actual gaming activity itself. By
directive of the Assistant Secretary for Indian Affairs, each category
of applications is processed slightly differently or by a different
office. In most cases, the decision maker for on-reservation
applications is the superintendent of the local BIA agency office. For
the remaining on-reservation applications and for the off-reservation
applications, the decision maker is the applicable BIA regional
director. Off-reservation applications are processed using the criteria
in 25 C.F.R. §151.11 and the Assistant Secretary for Indian Affairs is
to review the draft decision and supporting materials and provide input
before the regional director issues a decision. On-and off-reservation
applications are generally processed by a combination of BIA realty
staff at BIA's Central Office in Washington, D.C; a BIA regional
office; or a local BIA agency office. Finally, gaming-related
applications are processed by the Office of Indian Gaming Management in
Washington, D.C., and the decision maker is the Assistant Secretary for
Indian Affairs.
During the land in trust process, administrative appeals must be filed
within 30 days of receipt by the applicant of the notice of the
decision, and parties have at least 30 days to file judicial challenges
after the decision is published in the Federal Register or a local
newspaper. Administrative appeals can be filed with the applicable BIA
regional director or the IBIA, depending on who the BIA deciding
official was. First, if a superintendent was the deciding official,
parties can appeal the decision to a regional director. The regional
director then reviews the application's administrative record and any
other available information and renders a ruling. The regulations
governing appeals state that a regional director must make a ruling
within 60 days after all times for pleadings, including extensions,
have expired.[Footnote 16] The regional director's ruling can then be
further appealed to the IBIA, the administrative review body at
Interior. The IBIA's ruling is the final position for Interior. Second,
if a regional director was the decision maker, parties may appeal the
decision to the IBIA.[Footnote 17] Once a decision is final for
Interior, it is published in the Federal Register or a local newspaper
and parties have at least 30 days to file judicial challenges to the
decision. Appendix II provides an overview of the land in trust
process.
Interior is considering revisions to the land in trust regulations,
among a number of other possible regulation changes.[Footnote 18]
Preliminary revisions under consideration were distributed to tribes on
December 27, 2005. Changes are under consideration throughout the
regulations, including the institution of a trust acquisition request
form, new criteria for considering on-and off-reservation acquisitions,
extended state and local government comment periods, and time frames
for issuing a decision. Although Interior held tribal consultations in
February and March to discuss draft regulations, the land in trust
regulations were not part of the meetings' agendas. Interior set the
date of March 31, 2006, for tribes to submit comments on the proposed
changes. According to the Associate Deputy Secretary, Interior is
planning to hold consultation meetings in the last quarter of calendar
year 2006, followed by publishing a proposed rule in the Federal
Register for public comment.
BIA Generally Followed the Regulations for Taking Land in Trust, and
These Regulations Provide BIA with Wide Discretion:
BIA generally followed its regulations for processing the 87 land in
trust applications with decisions in fiscal year 2005, such as properly
notifying affected state and local governments and providing time for
comments and appeals. The criteria in the regulations for taking land
in trust are not specific and do not include guidelines for how BIA
should apply them. Apart from the regulations, we found one BIA agency
office did not properly document its decision-making process, including
the consideration of the criteria in the regulations. Furthermore, we
found that two separate agreements between groups of tribes and two BIA
regional offices, designed to expedite the processing of certain
applications, have raised concerns and were under investigation by
Interior's Office of Inspector General at the time of our review.
BIA Generally Followed the Regulations for Taking Land in Trust:
BIA generally followed its regulations for the 87 land in trust
applications with decisions in fiscal year 2005. Specifically, BIA:
* notified affected state and local governments and provided a 30-day
comment period for them to submit information on potential tax and
jurisdictional impacts;
* obtained a preliminary title opinion from Interior's Office of the
Solicitor;
* usually issued a decision letter to the applicant and interested
parties based on an evaluation of the criteria in the regulations,
including determining compliance with NEPA requirements,
* provided 30 days for the applicant or interested parties to appeal
the decision and an explanation of the appeals process in its decision
letter; and,
* published a notice of its decision in the Federal Register or local
newspaper providing at least 30 days for interested parties to seek
judicial review.
Of these 87 decisions, 80 were approvals, and 7 were denials. The
Superintendent of the Wewoka Agency, Eastern Oklahoma Region, denied
one application because the applicant failed to meet the criteria. The
Superintendent of the Horton Agency, Southern Plains Region, officially
withdrew six applications, in effect denying them, because the tribe
did not submit additional necessary information for several years.
Applicants and state and local governments can file appeals and
judicial challenges if they believe that BIA failed to properly follow
the regulations. Eight of the 87 decisions in fiscal year 2005 had been
appealed as of September 30, 2005. Three of the appeals were not filed
within the required 30-day appeal period; therefore, they were
dismissed as untimely. The remaining five appeals were pending as of
September 30, 2005. The appellants generally asserted that BIA did not
adequately consider tax and jurisdictional impacts. While these most
recent appeals were pending at the end of the fiscal year 2005, some
other appeals of decisions from fiscal year 2004 are illustrative in
demonstrating how the appeal process works. For example, the local
government of Union Township, in the state of Michigan, appealed three
land in trust applications to the Midwest Regional Director, asserting
that BIA had not addressed, among other things, the township's
jurisdictional and land use concerns in its decision. The township
argued that the proposed acquisition would create "an island (of trust
land) in the middle of the township in a prime commercial corridor"
that might be subject to different zoning and building regulations and
that this might create "serious difficulties for rational land use
planning." BIA's decision stated only that primary law enforcement and
fire protection would be provided by the tribe and that the tribal
council has good relations with local planning officials and made no
mention of the township's concerns. The Midwest Regional Director
agreed that the decision had not adequately addressed the issues raised
by Union Township and returned the applications to the Superintendent
of the Michigan Agency to better address those concerns. In addition,
the Midwest Regional Director determined that the Michigan Agency had
not provided sufficient information on environmental compliance.
Criteria in the Regulations Provide BIA Wide Discretion Because They
Are Not Specific and Do Not Include Guidelines for How BIA Should Apply
Them:
In general, we found that the criteria in the regulations provide BIA
with wide discretion in deciding to take land in trust, primarily
because they are not specific, and BIA has not provided clear
guidelines for applying them. For example, one criterion requires BIA
to consider the impact of lost tax revenues on state and local
governments. However, the criterion does not indicate a threshold for
what might constitute an unacceptable level of lost tax revenue and,
therefore, a denial of an application. Furthermore, BIA does not
provide guidance on how to evaluate lost tax revenue, such as comparing
lost revenue with a county's total budget or evaluating the lost
revenue's impact on particular tax-based services, such as police and
fire services. In addition, the criterion does not require deciding
officials to consider the cumulative impact of tax losses resulting
from multiple parcels taken in trust over time--a practice some state
and local governments would like to see instituted.[Footnote 19] Table
1 shows our analysis of the criteria.
Table 1: Analysis of the Eight Criteria BIA Considers in Making Its
Decision for On-Reservation Land in Trust Applications:
Criteria: The existence of statutory authority for the acquisition and
any limitations contained in such authority;
GAO's analysis of the criteria: Criterion is clear; BIA must have
statutory authority for taking the land in trust. In most cases, the
statutory authority is the general authority in Section 5 of the Indian
Reorganization Act.
Criteria: The need of the individual Indian or the tribe for additional
land;
GAO's analysis of the criteria: For tribal applications, 25 C.F.R.
§151.3(a)(3) provides some additional clarification on need and purpose
by stating that Secretary must determine that the acquisition is
necessary to facilitate tribal self-determination, economic
development, or Indian housing. However, the regulations do not define
or provide guidance on the type of need to be considered and how the
level of need should be evaluated.
Criteria: The purposes for which the land will be used;
GAO's analysis of the criteria: Of the three categories mentioned in 25
C.F.R. §151.3(a)(3) for tribal applications, Indian housing is clear,
but self-determination and economic development are broad categories
and open to interpretation. The regulations do not provide any guidance
on how the criterion applies to applications from individual Indians.
Criteria: If the land is to be acquired for an individual Indian, the
amount of trust or restricted land already owned by or for that
individual and the degree to which the individual needs assistance in
handling business matters.[A];
GAO's analysis of the criteria: No guidance in the regulations on how
the amount of land owned by an individual Indian should be weighted
against their need for assistance in handling their business matters.
Criteria: If the land to be acquired is in unrestricted fee status,[B]
the impact on the state and its political subdivisions resulting from
the removal of the land from the tax rolls;
GAO's analysis of the criteria: No guidance in the regulations on what
constitutes an acceptable level of tax loss or how to evaluate the tax
loss for approving an application.
Criteria: Jurisdictional problems and potential conflicts of land use
that may arise;
GAO's analysis of the criteria: No guidance in the regulations on what
types of jurisdictional and land use concerns might warrant denial of
the application.
Criteria: If the land to be acquired is in fee status, whether BIA is
equipped to discharge the additional responsibilities resulting from
the acquisition of the land in trust;
GAO's analysis of the criteria: No guidance in the regulations on how
BIA should evaluate its ability to discharge additional duties.
Criteria: The extent to which the applicant has provided information
that allows the Secretary to comply with environmental requirements,
particularly NEPA;
GAO's analysis of the criteria: No guidance provided on the amount or
type of information needed by BIA to make the required environmental
determinations.
Source: GAO analysis of the criteria in 25 C.F.R. § 151.10.
[A] Under BIA's current regulations, restricted status refers to land
held in title by an individual Indian or tribe that can only be
alienated or encumbered by the owner with the approval of the Secretary
of the Interior.
[B] Under BIA's regulation revisions under consideration, fee (or "fee
simple") land is defined as meaning that the owner has unconditional
power of disposition over the land.
[End of table]
In addition, the criteria are not pass/fail questions and, therefore,
the responses to the criteria do not necessarily result in an approval
or denial of an application. For example, should BIA decide that an
application has "failed" to meet one or more of the criteria, the BIA
deciding official still has discretionary authority under the
regulations to approve the application. However, we found no instances
in which an official decided that an applicant did not meet one or more
criteria but still approved the application.
Revisions to the regulations under consideration make it clearer that,
because it is difficult to develop specific thresholds for most
criteria, BIA intends to assume that most on-reservation applications
will eventually receive approval unless a major failing is evident,
such as an environmental hazard on a property that would leave the
federal government liable to environmental clean-up costs. Conversely,
the draft changes make it more difficult to approve off-reservation
applications.[Footnote 20]
One BIA Office Did Not Properly Document Its Decisions and Two Other
Offices Have Entered Into Agreements with Tribes That Have Raised
Concerns:
While we found that BIA procedurally followed the regulations for the
87 applications with decisions in fiscal year 2005, there were two
areas not specifically addressed in the regulations that raised
concerns.
* First, BIA's Fort Peck Agency, in the Rocky Mountain Region, did not
document its decision-making process for two applications decided in
fiscal year 2005, including the consideration of the criteria in the
regulations. Although not in the regulations, BIA policy calls for
offices to include an analysis of each of the criteria in their
decision letters for approving or denying applications. This policy
stems from a 1999 IBIA statement that failure to provide an analysis of
the criteria to interested parties would potentially lead to the IBIA
vacating future decisions.[Footnote 21] BIA realty staff at the Fort
Peck Agency were unable to provide us with documentation showing they
considered the criteria for two applications approved in fiscal year
2005. The Fort Peck Agency reported it also has some pending
applications as of the end of fiscal year 2005. By not documenting its
consideration of the applicable criteria, the Fort Peck Agency is not
fully disclosing its rationale for its decisions and is, therefore,
making the process less transparent.
* Two separate agreements between groups of tribes and two BIA regional
offices designed to expedite the processing of certain applications
were under investigation by Interior's Office of Inspector General at
the time of our review. Specifically, agreements signed by tribes and
BIA regional offices in the Pacific and Midwest regions created land in
trust consortiums. In both cases, consortium tribes agreed to use a
portion of their budget to pay for additional staff positions at BIA
dedicated to processing consortium members' land in trust
applications.[Footnote 22] According to staff with the Inspector
General's office, the Pacific Region's land in trust consortium
agreement was not reviewed or approved by Interior's Office of the
Solicitor before BIA entered into it. The staff further stated that the
Midwest Region's agreement, created several years after the Pacific
Region's agreement, did undergo review and approval by the Solicitor's
Office. Interior's Office of Inspector General was conducting an
investigation of these consortium arrangements to determine whether the
tribes' allocation of money to fund the consortiums was legally
authorized and whether BIA was favoring land in trust applications from
those tribes.
Many Land in Trust Applications Have Not Been Processed in a Timely
Manner:
While BIA's current regulations do not set a specific time frame for
making an initial decision on an application, BIA is considering
revisions to the regulations that would impose a time frame of 120-
business days, or about 6 months, for making a decision for both on-and
off-reservation applications once an application is complete. According
to our analysis of three categories of land in trust applications, BIA
did not decide most applications within the proposed time frames the
agency is now considering, or within existing time frames for appeals.
First, for the 87 applications with decisions in fiscal year 2005, the
median length of time from submission of an application to a BIA
decision was a little over 1 year. Second, the 28 complete off-
reservation applications currently awaiting review have been at the BIA
Central Office for an average of 1.4 years, as of the end of fiscal
year 2005. Finally, for applications on appeal, current federal
regulations call for regional directors to rule on an appeal within 60
days after all time for pleadings has expired. For the 34 appealed
applications awaiting a BIA decision that we reviewed, the average time
pending from the BIA decision to the end of fiscal year 2005 was almost
3 years.
Some Applications with Decisions in Fiscal Year 2005 Were Decided in a
Timely Manner, While Others Took an Exceedingly Long Time:
While the current land in trust regulations do not provide a time frame
for BIA's review of land in trust applications, BIA is considering
revisions to the regulations that would establish a time frame of 120
business days, or about 6 months, for BIA to issue a decision once a
complete application has been assembled. For the 87 applications with
decisions in fiscal year 2005, the median length of time from
submission of an application to a BIA decision was 1.2 years, twice as
long as the proposed time frame.[Footnote 23] Using the time frame
under consideration as a guide, and allowing 30 days for state and
local governments to provide comments, we determined that at least 10
of the 87 applications we reviewed were processed in a timely manner.
Additional applications may have been decided in a timely manner, but
the files we reviewed did not clearly document the date when an
application was complete. Figure 2 shows the amount of time BIA took to
process applications with decisions in fiscal year 2005.
Figure 2: Processing Times for Land in Trust Applications with
Decisions in Fiscal Year 2005:
[See PDF for image]
Source: GAO analysis of BIA land in trust applications decided in
fiscal year 2005.
[End of figure]
Table 2 shows the processing times for the 87 applications we reviewed
by region. As the table shows, the shortest processing time--58 days--
occurred in the Midwest Region, while the longest processing time--
almost 19 years--occurred in the Pacific Region. (App. III provides
additional details on the 87 land in trust applications with decisions
in fiscal year 2005.)
Table 2: Processing Times for Land in Trust Applications with Decisions
in Fiscal Year 2005 by BIA Region:
Processing time in years.
Region: Eastern Oklahoma;
Number of applications processed: 14;
Shortest application processing time: 0.5;
Longest application processing time: 2.8;
Median processing time: 1.0.
Region: Eastern;
Number of applications processed: 7;
Shortest application processing time: 1.2;
Longest application processing time: 1.5;
Median processing time: 1.2.
Region: Midwest;
Number of applications processed: 16;
Shortest application processing time: 0.2;
Longest application processing time: 12.8;
Median processing time: 3.4.
Region: Northwest;
Number of applications processed: 11;
Shortest application processing time: 0.4;
Longest application processing time: 8.2;
Median processing time: 6.1.
Region: Pacific;
Number of applications processed: 9;
Shortest application processing time: 0.6;
Longest application processing time: 18.7;
Median processing time: 1.5.
Region: Rocky Mountain;
Number of applications processed: 20;
Shortest application processing time: 0.6;
Longest application processing time: 1.3;
Median processing time: 1.0.
Region: Southern Plains;
Number of applications processed: 10;
Shortest application processing time: 1.3;
Longest application processing time: 14.0;
Median processing time: 3.5.
Region: Total;
Number of applications processed: 87;
Shortest application processing time: 0.2;
Longest application processing time: 18.7;
Median processing time: 1.2.
Source: GAO analysis of land in trust applications with decisions in
fiscal year 2005.
[End of table]
According to our analysis of BIA files, processing times for
applications with decisions in fiscal year 2005 were lengthened by
inaction on the part of either the applicant or BIA. For example,
according to BIA files, the Pacific Region application that took almost
19 years to process was submitted in 1986 by an individual tribal
member to place 5.42 acres of land in trust. BIA found that the
application lacked required documents and, therefore, could not process
the application until it received these documents. The applicant did
not provide the necessary documents until 1991. While the application
was deemed complete in 1991, according to our file review, the regional
office did not issue a notice to interested parties of the proposed
trust acquisition until 2002. However, in the same year, the BIA
Pacific Regional Director ordered processing stopped on the application
because the applicant's tribal affiliation was uncertain. BIA and the
applicant worked to resolve this issue, and BIA approved the
application on February 25, 2005, almost 19 years after its submission.
While the BIA file stated clearly that processing on the file was
halted initially due to inaction on the part of the applicant, it did
not provide an explanation regarding why the application was not acted
upon by the BIA from 1991 to 2002. In other cases processed at the
Horton Agency Office in Kansas, our file review showed several
applications were closed by the agency in 2005 because of inaction on
the part of the tribe; one of these applications had been submitted in
1991. BIA officials also noted that access to the Internet would
increase their ability to process land in trust applications in a
timely manner.[Footnote 24]
Off-Reservation Applications Have Not Been Processed in a Timely
Manner:
Off-reservation applications awaiting review by BIA's Central Office
have not been processed in a timely manner. Again, BIA is considering
imposing a 120-business day time frame, or about 6 months, for issuing
a decision on off-reservation applications once an application is
complete. According to BIA Central Office staff, there was nearly a 2-
year period between December 2003 and November 2005 when no off-
reservation land in trust applications were cleared by the Assistant
Secretary.[Footnote 25] On average, the 28 off-reservation applications
we reviewed had been pending in the Central Office for 1.4 years by the
end of fiscal year 2005--almost three times longer than the 6-month
time frame under consideration. Using the time frame under
consideration as a guide, and allowing 30 days for state and local
comments, we found that at least 22 of the 28 off-reservation
applications pending at the Central Office were not processed in a
timely manner. The most recent application forwarded to the Central
Office had been pending for about 1 month, while the oldest application
had been pending for over 3 years.
This analysis is based solely on the time the applications were pending
at the BIA Central Office and does not include the time the
applications spent at a BIA agency or regional office before they were
forwarded to the Central Office. In total, from the time of their
initial submission at a BIA agency or regional office until the end of
fiscal year 2005, these applications had been pending an average of 4.6
years. These applications originated from 17 tribes covering 1,832
acres of land in 11 states, primarily in BIA's Northwest and Southern
Plains Regions. (See app. IV for more detailed information on these 28
applications.)
Turnover in the position of the Assistant Secretary for Indian Affairs
may have contributed to the length of time involved in processing off-
reservation applications. The current Central Office review process was
instituted in February 2002. According to the February 2002 memorandum
instituting this process, "[e]very effort will be made to complete the
overview within one week." The Assistant Secretary who instituted this
process held the position for about 1-1/2 years before retiring in
December 2002. Since then, the position of Assistant Secretary of
Indian Affairs has been held by three different people: an acting
Assistant Secretary; a permanent Assistant Secretary; and, since
February 2005, an Associate Deputy Secretary at Interior has served as
the Acting Assistant Secretary.
It Appears that Appeals Have Not Been Resolved in a Timely Manner by
BIA Regional Directors:
Federal regulations require regional directors to "render written
decisions in all cases appealed to them within 60 days after all time
for pleadings (including all extensions granted) have
expired."[Footnote 26] According to our review of 34 appealed decisions
awaiting resolution by a BIA regional director, the average time
pending from the time of the decision to the end of fiscal year 2005
was 2.8 years. While our file review did not allow us to determine at
what point "all time for pleadings" had expired in each case, it
appears, based on the lengthy time period, that none of the 34 appealed
decisions awaiting a regional director's ruling were resolved in a
timely manner. However, in cases in which a ruling has not been
rendered by a regional director within the required time frame, the
regulations provide a process to appeal the inaction of the regional
director to the IBIA.[Footnote 27] Under these circumstances, the IBIA
has stated that it could use its authority to order a Regional Director
to issue a final decision on a tribe's trust acquisition
request.[Footnote 28] Typically, however, the IBIA has instead ordered
the regional director to provide a status report on the requested
action. If satisfied that the matter is being addressed or has already
been resolved by the regional director, the IBIA has dismissed the
appeal.[Footnote 29] Most of the appealed decisions we reviewed
originated from BIA's Southern Plains Region. (App. V provides
additional details on these applications.)
When applications are not processed in a timely manner because of
delays by BIA or the applicant, information in the applications can
become outdated, particularly environmental assessments, comments from
state and local governments, and tax data. When this happens, BIA must
devote additional resources to obtain updated information and reprocess
the applications--an inefficient and time-consuming process for BIA,
Indian applicants, and state and local governments. The applicants also
bear a direct financial cost because they continue to pay property
taxes on the land while BIA is processing their applications. The
applicant may face additional financial burdens due to processing
delays, such as the opportunity costs associated with delayed economic
development activities.
Citing Taxes and Jurisdictional Issues, State and Local Governments
Opposed Applications in Fiscal Year 2005:
When opposing land in trust applications or appealing decisions, state
and local governments principally cited concerns about lost tax
revenues and jurisdictional issues. In commenting on applications prior
to decisions made in fiscal year 2005, state and local governments
opposed 12 of 87 applications, or about 14 percent, mainly citing
concerns about lost tax revenues and jurisdictional issues. State and
local governments have also opposed some applications through
administrative appeals, again primarily citing lost tax revenues and
jurisdictional issues. As of the end of fiscal year 2005, a total of 45
decisions were pending review on appeal, including 5 decisions from
fiscal year 2005. Although we found little opposition to the
applications with decisions in fiscal year 2005, some state and local
governments we contacted said (1) they did not have access to
sufficient information about the land in trust applications and (2) the
30-day comment period was not sufficient time in which to comment.
Citing Primarily Taxes and Jurisdictional Issues, State and Local
Governments Opposed Only a Small Percentage of the Applications with
Decisions in Fiscal Year 2005:
For the 87 land in trust applications with decisions in fiscal year
2005, state and local governments opposed or raised concerns--primarily
involving taxes and jurisdictional issues--on 12 applications prior to
BIA's decision. For example, the state of Kansas opposed the Kickapoo
tribe's application for placing about 75 acres in trust because trust
status would cause a loss of tax revenue, which amounted to $172 for
the county in 2000. Despite the tax loss, Kansas said its local
government would still bear the cost of continuing to provide services,
such as road maintenance and fire protection. The county of
jurisdiction--Brown County, Kansas--opposed trust status, saying
"—further erosion of the real estate base is always a concern." The
tribe responded in a letter to BIA in 2001, saying it disagreed with
the state's arguments. In April 2005, the Superintendent of BIA's
Horton Agency in the Southern Plains Region closed the application
because the tribe did not respond to BIA's requests for additional
information for several years.
BIA generally reviewed the comments it received on pending applications
and considered them in its decision-making process. Table 3 describes
the Indian tribe, the acreage, proposed use of land to be taken in
trust, and the tax losses state and local governments expressed concern
about prior to BIA's decision on 12 applications.
Table 3: Applications with State or Local Government Opposition Prior
to BIA's Decision in Fiscal Year 2005:
Current year dollars.
Applicant: Approved and not appealed: Confederated Tribes of the
Colville Reservation, Washington;
County and State: Okanogan County, Washington;
Acreage and proposed use: 40 acres for undeveloped land;
Date comments provided: Nov. 2004;
Annual tax amount: $221.
Applicant: Approved and not appealed: Misccosukee Tribe of Indians,
Florida;
County and State: Miami-Dade County, Florida;
Acreage and proposed use: 180 acres to increase land base;
Date comments provided: Feb. 2004;
Annual tax amount: 7,958.
Applicant: Approved and not appealed: Upper Sioux Community, Minnesota;
County and State: Yellow Medicine County, Minnesota;
Acreage and proposed use: 2 acres for housing and governmental or
institutional use;
Date comments provided: June 2002;
Annual tax amount: 104.
Applicant: Approved but subsequently appealed: Picayune Rancheria of
the Chukchansi Indians[A];
County and State: Madera County, California;
Acreage and proposed use: 111.7 acres for parking lot, road, and
undeveloped land;
Date comments provided: Dec. 2001;
Annual tax amount: $11,743.
Applicant: Approved but subsequently appealed: Prairie Band of
Potawatomi Nation, Kansas[B];
County and State: Jackson County, Kansas;
Acreage and proposed use: 40 acres for agriculture;
Date comments provided: Oct. 2001;
Annual tax amount: 63.
Applicant: Approved but subsequently appealed: Prairie Band of
Potawatomi Nation, Kansas[B];
County and State: Jackson County, Kansas;
Acreage and proposed use: 80 acres for agriculture;
Date comments provided: Sept. 2000;
Annual tax amount: 161.
Applicant: Approved but subsequently appealed: Prairie Band of
Potawatomi Nation, Kansas[A];
County and State: Jackson County, Kansas;
Acreage and proposed use: 160 acres for agriculture;
Date comments provided: Dec. 2002;
Annual tax amount: 312.
Applicant: Approved but subsequently appealed: Prairie Band of
Potawatomi Nation, Kansas[B];
County and State: Jackson County, Kansas;
Acreage and proposed use: 160 acres for agriculture;
Date comments provided: Oct. 2001;
Annual tax amount: 909.
Applicant: Approved but subsequently appealed: Santa Ynez Band of
Chumash Mission; Indians of the Santa Ynez Reservation, California[A,
C];
County and State: Santa Barbara County, California;
Acreage and proposed use: 6.9 acres for a cultural center, museum,
park, and retail building;
Date comments provided: June 2001;
Annual tax amount: 43,240.
Applicant: Approved but subsequently appealed: Stockbridge Munsee
Community, Wisconsin[A];
County and State: Shawano County, Wisconsin;
Acreage and proposed use: 404 acres for government facilities, housing,
forestry and restoration of land base;
Date comments provided: Mar. 2003;
Annual tax amount: 11,387.
Applicant: Denied (closed due to inactivity): Kickapoo Tribe of Indians
of the Kickapoo Reservation in Kansas;
County and state: Brown County, Kansas;
Acreage and proposed use: 160 acres for agriculture;
Date comments provided: May 2001;
Annual tax amount: $793.
Applicant: Denied (closed due to inactivity): Kickapoo Tribe of Indians
of the Kickapoo Reservation in Kansas;
County and state: Brown County, Kansas;
Acreage and proposed use: 75.6 acres for agriculture;
Date comments provided: May 2001;
Annual tax amount: 172.
Source: GAO analysis of land in trust applications with decisions in
fiscal year 2005.
Note: The county, the state, or both entities were opposed. Also, two
additional land in trust applications from the Ho-Chunk Nation
involving land in Jackson County, Wisconsin, had initial opposition,
but when the BIA Superintendent made a decision he believed there were
no jurisdictional and potential conflicts of the land use that would
arise. These two applications are not included in the table because the
opposition was eliminated prior to BIA's decision.
[A] The appeals of four decisions were awaiting resolution as of
September 30, 2005. Two of the decisions were appealed to BIA regional
directors, and the other two decisions on applications by the Picayune
Rancheria of the Chukchansi Indians of California and the Santa Ynez
Band of Chumash Mission Indians of the Santa Ynez Reservation were
appealed to the IBIA.
[B] BIA officials continued to process three applications after Jackson
County appealed the decisions of the Horton Superintendent. An agency
official said BIA continued to process the approved applications
because the county incorrectly filed the appeals with the Horton Agency
rather than the Southern Plains Region.
[C] The decision on the application by the Santa Ynez Band of Chumash
Mission Indians of the Santa Ynez Reservation was appealed by citizen
groups. The IBIA ruled that the groups did not have standing to appeal
the decision. Santa Ynez Valley Concerned Citizens v. Pacific Regional
Director, BIA, 42 IBIA 189 (2006).
[End of table]
As table 3 shows, while most lost annual tax revenue was less than
$1,000, Santa Barbara County, California, opposed the Santa Ynez Band
of Chumash Mission Indians' application for 6.9 acres to be placed in
trust because of a tax loss of about $43,000 per year. Before the
decision, the county held a public hearing in June 2004 on the
environmental assessment for the proposed trust acquisition. More than
50 speakers commented, mostly in opposition to the application. BIA and
county officials held a joint meeting to discuss the issues the county
raised. BIA ultimately approved the trust application in January 2005,
and the county did not oppose the decision at that time. However,
several citizen groups appealed the decision, and in August 2005 the
county filed a motion to intervene or alternatively file an amicus
brief. The IBIA dismissed the motion for intervention as untimely and
dismissed the citizens' appeals for lack of jurisdiction in February
2006.[Footnote 30]
State or Local Governments Have Also Cited Primarily Tax and
Jurisdictional Issues When Opposing BIA Land in Trust Decisions through
Administrative Appeals:
As of September 30, 2005, 45 appeals were pending either before BIA
regional directors or the IBIA. All but two appeals involved decisions
approving land in trust applications, and all but three appeals were
filed by state or local governments.[Footnote 31] These appeals echo
the tax, jurisdiction, and other types of issues that were raised
before BIA's decision. Most of the pending appeals were made by a state
or local government that frequently or routinely appeal BIA's decisions
on land in trust applications. BIA's Southern Plains Region had the
highest number of appeals that were pending as of September 30, 2005.
(See table 4.) The appeals in the Southern Plains Region generally
involve the state of Kansas and Jackson County, Kansas.
Table 4: Number of Appeals Pending, by Region, as of September 30,
2005:
BIA region: Eastern Oklahoma;
Appeals awaiting rulings by BIA: regional directors: 0;
Appeals awaiting rulings by the IBIA: 1;
Total: 1.
BIA region: Midwest;
Appeals awaiting rulings by BIA: regional directors: 6;
Appeals awaiting rulings by the IBIA: 4[A];
Total: 10.
BIA region: Northwest;
Appeals awaiting rulings by BIA: regional directors: 0;
Appeals awaiting rulings by the IBIA: 1;
Total: 1.
BIA region: Pacific;
Appeals awaiting rulings by BIA: regional directors: 0;
Appeals awaiting rulings by the IBIA: 2[B];
Total: 2.
BIA region: Southern Plains;
Appeals awaiting rulings by BIA: regional directors: 28[C];
Appeals awaiting rulings by the IBIA: 1;
Total: 29.
BIA region: Western;
Appeals awaiting rulings by BIA: regional directors: 0;
Appeals awaiting rulings by the IBIA: 2;
Total: 2.
BIA region: Total;
Appeals awaiting rulings by BIA: regional directors: 34;
Appeals awaiting rulings by the IBIA: 11;
Total: 45.
Source: GAO analysis of appeals pending at the end of fiscal year 2005.
Note: The Eastern, Great Plains, Navajo, Rocky Mountain, and Southwest
Regions did not have appeals pending as of September 30, 2005.
[A] In March 2006, the IBIA affirmed the Midwest Regional Director's
decision to take the land in trust in three of these cases. Cass
County, Minnesota v. Midwest Regional Director, BIA, 42 IBIA 243
(2006). The IBIA consolidated five appeals on three decisions into one
ruling.
[B] In February 2006, the IBIA dismissed the appeal of citizen groups
seeking a review of the Pacific Regional Director's decision to take
land in trust in one case. 42 IBIA 189 (2006).
[C] The appeals in the Southern Plains Region generally involve the
state of Kansas and Jackson County, Kansas.
[End of table]
See appendix V for detailed information on the 34 appeals awaiting
resolution by a BIA regional director and table 5 for detailed
information on the 11 appeals awaiting resolution by the IBIA.
Table 5: Administrative Appeals of BIA Land in Trust Decisions Awaiting
Resolution by the IBIA as of September 30, 2005:
Original land in trust applicant: Ho-Chunk Nation of Wisconsin;
Appellant(s): Sauk County, Wisconsin;
Acreage and proposed use: 5 acres for continued use as housing and
community center;
IBIA docket number(s): IBIA 05-053-A.
Original land in trust applicant: Kickapoo Tribe of Indians of the
Kickapoo Reservation in Kansas;
Appellant(s): Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Acreage and proposed use: 74.81 acres for agriculture and economic
development;
IBIA docket number(s): IBIA 04-098-A.
Original land in trust applicant: Individual member of the Seminole
Nation of Oklahoma;
Appellant(s): The applicant, an individual Indian;
Acreage and proposed use: 139.73 acres; use not indicated;
IBIA docket number(s): IBIA 06-002-A.
Original land in trust applicant: Minnesota Chippewa Tribe (Leech Lake
Band), Minnesota[A];
Appellant(s): Cass County and City of Cass Lake, Minnesota;
Acreage and proposed use: 0.016 acres for housing;
IBIA docket number(s): IBIA 04-120-A; IBIA 04-128-A.
Original land in trust applicant: Minnesota Chippewa Tribe (Leech Lake
Band), Minnesota[A];
Appellant(s): Cass County, Minnesota;
Acreage and proposed use: 0.96 acres for an office for reservation
women's services;
IBIA docket number(s): IBIA 04-121-A.
Original land in trust applicant: Minnesota Chippewa Tribe (Leech Lake
Band), Minnesota[A];
Appellant(s): Cass County and City of Cass Lake, Minnesota;
Acreage and proposed use: 0.02 acres for a tribal health office;
IBIA docket number(s): IBIA 04-122-A; IBIA 04-125-A.
Original land in trust applicant: Pascua Yaqui Tribe of Arizona;
Appellant(s): Arizona State Land Department;
Acreage and proposed use: 436.18 acres for a government offices, health
services, education complex, and a park;
IBIA docket number(s): IBIA 03-067-A.
Original land in trust applicant: Picayune Rancheria of Chukchansi
Indians of California;
Appellant(s): Madera County Board of Supervisors and the Madera County
Tax Assessor, California;
Acreage and proposed use: 111.7 acres for parking lot, road, and
undeveloped land;
IBIA docket number(s): IBIA 05-029-A.
Original land in trust applicant: Santa Ynez Band of Chumash Mission
Indians of the Santa Ynez Reservation, California[B];
Appellant(s): Santa Ynez Concerned Citizens, Preservation of Los
Olivos, Preservation of Santa Ynez, and Women's Environmental Watch of
the Santa Ynez Valley;
Acreage and proposed use: 6.9 acres for a cultural center, museum, park
and retail building;
IBIA docket number(s): IBIA 05-50-A.
Original land in trust applicant: Swinomish Indians of the Swinomish
Reservation, Washington;
Appellant(s): Skagit County, Washington;
Acreage and proposed use: 350 acres for a marina and mixed use
commercial activity;
IBIA docket number(s): IBIA 02-102-A.
Original land in trust applicant: Yavapai-Apache Nation of the Camp
Verde Indian Reservation, Arizona;
Appellant(s): Arizona State Land Department, Arizona Department of
Water Resources, Salt River Project, and Eric Eberhard, Arizona;
Acreage and proposed use: 1,168.9 acres for agriculture, housing, and
commercial use;
IBIA docket number(s): IBIA 04-133-A; IBIA 04-136-A; IBIA 04-134-A;
IBIA 04-135-A.
Source: GAO analysis of appeals of BIA land in trust decisions.
[A] The decisions on the three applications by the Minnesota Chippewa
Tribe (Leech Lake Band) resulted in five appeals, which were
consolidated by the IBIA. The IBIA affirmed the Midwest Regional
Director's approval of the applications. 42 IBIA 243 (2006).
[B] The decision on the application by the Santa Ynez Band of Chumash
Mission Indians of the Santa Ynez Reservation was appealed by citizen
groups. The IBIA ruled that the groups did not have standing to appeal
the decision. 42 IBIA 189 (2006).
[End of table]
The following example illustrates the types of concerns raised on
appeal. In 2002, the state of Kansas appealed a decision by the Horton
Agency Superintendent to allow 7.85 acres in trust on the Sac & Fox
reservation. The state argued that BIA's decision (1) reduces the tax
rolls by $492; (2) violates the Tenth Amendment to the Constitution,
since states surrendered many powers to the federal government but
retained residual sovereignty; and (3) violates the Act for Admission
of Kansas into the United States because it would compel the state to
relinquish its sovereign jurisdiction over the land.[Footnote 32] The
tribe stated that (1) Brown County, the recipient of the $492 per year
in taxes, did not file an appeal and the amount is insubstantial; (2)
the Regional Director, like the IBIA, lacked jurisdiction to declare
federal statutes unconstitutional, and this issue has been addressed in
several other appeals to the IBIA; and (3) Kansas had accepted
admission into the United States on the condition that the federal
government retained its power to regulate Indian affairs; therefore,
BIA did not infringe on the state's sovereignty. The Southern Plains
Regional Director was still considering the appeal as of June 8, 2006.
Similar arguments about loss of tax revenues and jurisdictional issues
have been made in appeals before the IBIA. For example, Cass County and
the City of Cass Lake, Minnesota, appealed three decisions of the
Minnesota Agency Superintendent to place 1.28 acres of land of the
Minnesota Chippewa Tribe (Leech Lake Band) in trust in 2001. The land
was to be used for residential housing, women's services programs, and
a tribal health office. The county and the city said the loss of the
land would have a negative impact on the tax rolls and that the land
might not be within the reservation boundaries; consequently, the
applications would be subject to additional criteria. When the matter
was appealed to the Regional Director, he concluded that the tax loss
of about $5,000 annually was not significant and that the tribe's
services to the entire community, including non-Indians, reduced the
financial burden on local governments.[Footnote 33]
State and Local Governments Want More Information about Applications as
Early as Possible and More Time to Comment:
Some state and local government officials want more information about
applications early in the process, and they want more time to comment.
In a July 2005 paper, the National Governors Association stated that
any new regulations should include, among other things, a requirement
that states and local governments be able to review tribal submissions
and evidence, just as tribes are able to review state
submissions.[Footnote 34] The governors also said that language in the
regulations should ensure that states have the right to provide data
challenging assertions made in the proposals to take land in trust.
According to some state and county officials, the current process does
not work well in providing them with information and an opportunity to
comment. During a meeting with staff of various state governors,
arranged by the National Governors Association, an attorney with the
South Dakota Office of the Attorney General told us that while the
governor's office receives notification of land in trust applications,
the state does not have access to a tribe's application except through
a Freedom of Information Act request, which often takes too long. He
said BIA does not consistently allow for extensions in these cases. In
a meeting with county officials arranged by the National Association of
Counties, a representative from a New York county said that BIA's
process was unfamiliar, so the state, the two counties involved, and
other local governments paid for extra legal, economic, and
environmental consultants. However, he said it was not possible for
these government entities to respond adequately to the initial BIA
notice within 30 days. BIA provided an extension of time for the county
to respond.
Similarly, some state and local governments raised the following access
and timing issues in comments on the applications that we reviewed:
* In 1999, Cass County told the Minnesota Agency Superintendent that
further documentation on the application from the Minnesota Chippewa
Tribe (Leech Lake Band) was needed for the county to provide specific
comments other than the amount of taxes. The county asked for more
documents under the Freedom of Information Act and for an additional 60
days to comment following receipt of the documents. BIA provided the
documents and more time.
* In June 2001, Santa Barbara County, California, responded to a notice
of an application that, without information regarding how the Santa
Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation
intended to regulate activity on trust land, the county could only
speculate that jurisdictional and land use conflicts would arise.
* In December 2002, an assistant legal counsel to the governor of
Kansas wrote to the BIA representative in the Horton, Kansas, field
office that to effectively represent the state, it was necessary to
have each tribe's resolution plan that accompanies the initial
application for land to be taken into trust.
* Also, in a January 2005 letter, the General Counsel to the Governor
of Minnesota told BIA that it could not fully comment on an application
by the Minnesota Chippewa Tribe (Grand Portage Band) without an
opportunity to review the proposed purpose for conversion and potential
uses.
In the revisions to the regulations, Interior is considering providing
some additional information to state and local governments and
lengthening the period for comments. One provision under consideration
would require that a tribe complete a form called a "request for trust
acquisition." BIA would provide the form, along with a description of
the land and the proposed use of the land, to the state and local
governments having jurisdiction. Another provision would lengthen the
time period for state and local governments to comment after BIA
provided notice of an application. The time periods would change from
30 days to 60 days for on-reservation applications and to 90 days for
off-reservation applications.
BIA's Land in Trust Database Is Incomplete and Inaccurate, and BIA is
Planning to Redesign It:
During the course of our review, we found the data in BIA's land in
trust database, which was implemented agencywide in August 2004, were
frequently incomplete and inaccurate.[Footnote 35] As a result, the
data are of questionable value to Interior and BIA management, and we
did not rely on it. BIA has already recognized some shortcomings and
initiated an effort to re-evaluate and redesign the database, as
necessary. The database was hastily developed and deployed without
defining and documenting user requirements throughout the agency and
clearly defining data fields. Staff with Interior's Office of
Information Development said a contractor developed the database in
about a month to address the information needs of the Deputy Assistant
Secretary for Indian Affairs in the summer of 2004. In a June 2005
memo, almost a year after the system was put in place, BIA's Deputy
Director for Trust Services noted that only 4 of the possible 11
regions had entered any data into the database, and the memo directed
each BIA regional and agency office to enter all of its land in trust
applications into the database within 5 days. By the end of fiscal year
2005, the database contained more than 1,000 applications.
We found that not all of the applications had been entered into the
database, and the status of an application, as either approved, denied,
or pending, was frequently incorrect in the database. Specifically, we
found the following issues:
* Not all of the applications had been entered into the database.
Twenty-nine of the 87 applications with decisions in fiscal year 2005,
or 33 percent, were not in the database. About half of these
applications not in the database, 13, were from the Eastern Oklahoma
Region's Chickasaw Agency. No one at the office had access to the
database when we initially inquired and, therefore, they could not
enter information. Also 9 applications at the Pacific Region were not
in the database, and no one there had access when we inquired. We also
found instances at the Midwest and Southwest Regions where some pending
applications had not been entered into the database. The high rate of
applications that had not been entered into the database is one of the
factors that led us to conclude that database information was
unreliable.
* Status of applications was frequently incorrect. During the course of
our review, we found that 30 of the 41 applications identified as
denied in the database were miscoded, an error rate of almost 75
percent. Most of the remaining "denied" applications were applications
that were closed by realty staff with the Southern Plains Region's
Horton Agency because the tribal applicants had not responded for more
than a year to BIA's requests for the additional information needed to
process the applications. The applications were not processed and
denied based on the criteria in the regulations; rather, they were
closed due to inactivity. However, as currently designed, there is no
category in the database to show this type of resolution other than
denied. In addition, we found that some offices interpreted "approved"
differently. For example, two agency offices in BIA's Rocky Mountain
Region used an application form that required the agency superintendent
to approve the application for filing and processing. As defined by
these offices, some applications being processed had been "approved,"
but they were actually pending applications. Other BIA offices
considered an application approved when the superintendent actually
approved taking the land in trust. While some of the problems we
encountered with the status of the applications in the database were
simply data entry errors, others were the result of systematic
problems, such as the lack of common definitions for key terms.
Furthermore, at the time of our review, regional and agency realty
staff did not use the new database as the primary tool for managing
their applications. According to BIA regional and agency realty staff,
they do not use or do not like to use the database because it is
cumbersome, slow, and does not meet their needs. They continue to use
their office-specific spreadsheets to manage and track their
applications. These office spreadsheets were one of the tools we used
to try and verify the information in the database. However, trying to
reconcile the office spreadsheets with the database was difficult
because the office spreadsheets usually identified applications only by
parcel name, whereas the database identified applications with
different unique identification numbers by region, agency, and tribe.
We believe that data need to be accurate, valid, complete, consistent,
and timely enough to document performance, support decision making, and
respond to the needs of internal and external stakeholders. According
to Interior officials, the database has been used to respond to
questions about the program from various levels of management and from
Congress. Further, data quality depends on how readily users can access
data, aided by clear data definitions and user-friendly software. When
significant data limitations exist, it is important to make
stakeholders and Congress aware of the limitations so they can judge
the credibility of the data for their use. During the course of our
review, BIA recognized that the database has limitations, and it asked
Interior's Office of Information Development to improve the database.
In April 2006, the Deputy Director for Information Development
conducted a 3-day workshop for program managers on BIA's land in trust
database. The session served as a basis for making improvements and, in
May 2006, the office was preparing a plan to (1) involve regional and
headquarters officials in changing the database, (2) better define
terms and fields, and (3) increase the number of fields in the
database. A properly designed and implemented database with accurate
data would provide BIA with important information to help better manage
the land in trust process.
Conclusions:
The land in trust regulations were intended to provide a clear,
uniform, and objective approach for Interior to evaluate land in trust
applications. However, the regulations provide wide discretion to the
decision maker because the criteria are not specific, and BIA has not
provided clear guidelines for applying them. Given the wide discretion
that exists and the increased scrutiny that the land in trust process
has come under with the growth of Indian gaming, it is important that
the process be as open and transparent as possible. Clearly documenting
each decision and providing that information to state and local
governments is a critical component of having an open and transparent
process. However, contrary to BIA policy and admonishments from the
IBIA, we found one BIA office that did not document its consideration
of the criteria in the regulations. While this office only accounted
for 2 of the 87 decisions in fiscal year 2005, it omitted documentation
of the most important part of the process. State and local governments
need information on how BIA reaches its decisions to effectively
execute their role in the process, including holding the federal
government accountable for its decisions and having adequate
information to decide whether or not to appeal a decision if it
believes that the federal government did not adequately follow the
process.
A lack of specific time frames for BIA to make decisions on land in
trust applications results in a lack of predictability about the
process and contributes to the perception, on the part of Indian
applicants and state and local governments, that the process is not
open and transparent. Lengthy application processing times can place a
burden on BIA, Indian applicants, and state and local governments. If
applications are not processed in a timely manner because of delays by
BIA or the applicant, information in the applications can become
outdated, particularly environmental assessments, comments from state
and local governments, and tax data. When this happens, BIA must devote
additional resources to obtaining updated information and reprocessing
the applications--an inefficient and time-consuming process for BIA,
Indian applicants, and state and local governments. To the extent that
BIA is the cause of some of these delays, imposing specific time frames
on the decision-making process should improve the processing of the
land in trust applications. In addition, some state and local
governments have been unable to adequately participate in the process
because they did not have enough information on the pending
applications or the necessary length of time to provide substantive
comments. Interior is considering changes to the regulations that would
address these issues.
Finally, federal agencies need data that are accurate, valid, complete,
consistent, and timely enough to document performance, support decision
making, and respond to the needs of internal and external stakeholders.
During the course of our review, BIA recognized the shortcomings with
the data in its land in trust database and initiated a process to
improve the database. A properly designed and implemented database with
accurate data would provide important information to (1) BIA to help it
better manage the land in trust process and (2) other stakeholders,
particularly Congress, to help carry out oversight of the land in trust
process.
Recommendations for Executive Action:
To improve timeliness and transparency and ensure better management of
BIA's land in trust process, we recommend that the Secretary of the
Interior direct the Assistant Secretary for Indian Affairs to take the
following three actions:
* reinforce the requirement that all decisions be fully documented;
* move forward with adopting revisions to the land in trust regulations
that include (1) specific time frames for BIA to make a decision once
an application is complete and (2) guidelines for providing state and
local governments more information on the applications and a longer
period of time to provide meaningful comments on the applications; and:
* institute internal controls to help ensure the accuracy and
reliability of the data in the land in trust database, as part of the
redesign of the existing system.
Agency Comments:
Interior's Associate Deputy Secretary commented on a draft of this
report in a letter dated July 12, 2006 (see app. VI). In general,
Interior agreed with our findings, conclusions, and recommendations.
The Associate Deputy Secretary commented that BIA is working to address
the recommendations and that a corrective action plan will be developed
and implemented in response to the report. Specifically, BIA is taking
steps to finalize the regulations under consideration. After the
regulations are completed, BIA will develop a handbook to ensure
consistent application of the regulations. The handbook will also
include specific internal control procedures to ensure all decisions
are properly and completely documented, as well as entered into the
land in trust database accurately and in a timely manner.
We are sending copies of this report to interested congressional
committees, the Secretary of the Interior, the Assistant Secretary for
Indian Affairs, BIA regional and agency offices we visited, and other
interested parties. We will also make copies available to others upon
request. In addition, the report will be available at no charge on the
GAO Web site at[Hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-3841 or nazzaror@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. GAO staff who made major contributions
to this report are listed in appendix VII.
Signed by:
Robin M. Nazzaro:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
The fiscal year 2006 House Appropriations Committee Report for the
Department of the Interior's (Interior) appropriation bill directed GAO
to study the Bureau of Indian Affairs (BIA) procedures and practices in
implementing the land in trust regulations.[Footnote 36] In response to
this direction and subsequent discussions with congressional staff, we
(1) assessed the extent to which BIA's processing of land in trust
applications followed its regulations, (2) determined the extent to
which applications were processed in a timely manner, and (3)
identified any state and local government concerns about land in trust
applications and how they were addressed in BIA's decision-making
process.
For all of the objectives, we reviewed applicable laws, regulations,
and land in trust applications. We reviewed applications at six BIA
regional offices--Eastern, Midwest, Northwest, Pacific, Southern
Plains, and Southwest--and eight BIA agency offices--Blackfeet
(Browning, Montana), Chickasaw (Ada, Oklahoma), Great Lakes (Ashland,
Wisconsin), Horton (Horton, Kansas), Minnesota (Bemidji, Minnesota),
Siletz (Siletz, Oregon), Warm Springs (Warm Springs, Oregon), and Wind
River (Fort Washakie, Wyoming). We selected those offices because our
general intent was to visit all BIA offices with 10 or more land in
trust applications described as approved or denied in BIA's land in
trust database. However, interviews with realty officials at these
offices and at the Western, Great Plains, Navajo, and Rocky Mountain
Regions and our examination of documents they provided led us to
conclude that the database was frequently incomplete and inaccurate.
During the course of our work, we found many examples of inaccuracies
in the database that showed data were missing, incorrectly described,
or inconsistently reported. Therefore, our scope was limited to the
groups of applications in which we had greater confidence that we had
obtained all of the applications. We examined (1) 87 discretionary
nongaming land in trust applications with decisions in fiscal year
2005, (2) 28 off-reservation applications awaiting comments from the
Office of the Assistant Secretary for Indian Affairs, (3) 34 appealed
decisions pending before BIA regional directors at the end of fiscal
year 2005, and (4) 11 appealed decisions pending before the Interior
Board of Indian Appeals (IBIA) at the end of fiscal year 2005. In an
effort to collect all of the applications in these categories, we
relied on interviews with BIA realty officials in the relevant offices,
examination of their localized spreadsheets for tracking applications,
and some comparisons with other BIA databases. To identify the pending
appeals at the IBIA, we relied on these methods and the selections
provided by the Chief Judge and an examination of the IBIA's informal
log.
We collected 67 of the 87 discretionary nongaming land in trust
applications with decisions in fiscal year 2005, or 77 percent, during
our site visits. From telephone discussions with realty staff, we
identified the remaining relevant applications at five agencies--
Colville (Colville, Washington), Fort Peck (Fort Peck, Montana),
Michigan (Sault Ste. Marie, Michigan), Southern California (Riverside,
California), and Puget Sound (Everett, Washington). Staff at locations
we did not visit made copies of an additional 18 applications and
mailed them to us. We contacted realty officials at the Navajo Region
and the Great Plains Region, including its agencies--Rosebud (Rosebud,
South Dakota), Lower Brule (Lower Brule, South Dakota) and Pine Ridge
(Pine Ridge, South Dakota) and verified that they had no applications
with decisions in fiscal year 2005. In addition, we obtained
applications that were appealed to BIA regional directors and pending
in fiscal year 2005 based on discussions with realty officials in the
various field offices and regions and from examining their files. We
used a similar method to identify and collect applications appealed to
the IBIA that were pending at the end of fiscal year 2005. Also, we
interviewed the Chief Judge of the IBIA to identify pending
applications; he provided copies of relevant applications. In doing so,
we obtained information on the two remaining applications with BIA
decisions in fiscal year 2005.
Besides interviews with BIA and Interior officials, we obtained views
from various interested parties including representatives of the
National Governors Association, the National Association of Counties,
National Congress of American Indians, and several individual tribes.
The National Governors Association invited their members to meet with
us, and they hosted a teleconference, which included representatives
from 12 states--Arkansas, California, Colorado, Connecticut, Kentucky,
New Mexico, New York, Ohio, Oklahoma, South Carolina, South Dakota, and
Washington. The National Association of Counties included a panel
session with GAO at their annual meeting in March 2006. The six
participants were from the California State Association of Counties;
Kitsap County, Washington; Madison County, New York; Navajo County,
Arizona; Seneca County, New York; and Ziebach County, South Dakota.
For discussions with tribal leaders, we used a nonprobability sample to
select tribes that submitted applications in recent years to BIA
locations we visited. We met with representatives of the 13 tribes
listed in table 6.
Table 6: Representatives of Tribes and Bands Interviewed By GAO:
Tribe: Blackfeet Tribe of the Blackfeet Indian Reservation of Montana;
State: Montana;
BIA region: Rocky Mountain.
Tribe: Chickasaw Nation, Oklahoma;
State: Oklahoma;
BIA region: Eastern Oklahoma.
Tribe: Ho-Chunk Nation of Wisconsin;
State: Wisconsin;
BIA region: Midwest.
Tribe: Iowa Tribe of Kansas and Nebraska;
State: Kansas;
BIA region: Southern Plains.
Tribe: Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas;
State: Kansas;
BIA region: Southern Plains.
Tribe: Lac du Flambeau Band of Lake Superior Chippewa Indians of the
Lac du Flambeau Reservation of Wisconsin;
State: Wisconsin;
BIA region: Midwest.
Tribe: Minnesota Chippewa Tribe, Mille Lacs Band;
State: Minnesota;
BIA region: Midwest.
Tribe: Prairie Band of Potawatomi Nation, Kansas;
State: Kansas;
BIA region: Southern Plains.
Tribe: Sac & Fox Nation of Missouri in Kansas and Nebraska;
State: Kansas;
BIA region: Southern Plains.
Tribe: St. Croix Chippewa Indians of Wisconsin;
State: Wisconsin;
BIA region: Midwest.
Tribe: Confederated Tribes of the Siletz Reservation,
Oregon; State: Oregon;
BIA region: Northwest.
Tribe: Confederated Tribes of the Warm Springs Reservation of Oregon;
State: Oregon;
BIA region: Northwest.
Tribe: Arapaho Tribe of the Wind River Reservation, Wyoming;
State: Wyoming;
BIA region: Rocky Mountain.
Source: GAO.
[End of table]
In addition, we obtained Interior's and Indians' views on the land in
trust process by participating in a panel session on the subject at the
Self-Governance Tribes' Fall Conference in 2005.
For each of the objectives we took the following specific actions:
* To determine how BIA processed land in trust applications, we
reviewed the 87 applications with decisions in fiscal year 2005 and
compared how the applications were processed with the requirements in
the regulations and departmental guidance. In addition, we interviewed
Interior's field solicitors in Minnesota and Oregon to obtain their
perspectives on how BIA followed procedures during their reviews of
applications.
* To determine whether applications were processed in a timely manner,
we compared the processing times for (1) 87 applications with decisions
in fiscal year 2005 and (2) 28 complete off-reservation applications
awaiting comments from the Office of the Assistant Secretary for Indian
Affairs to the 120-business days, or about 6 months, time frame BIA is
considering imposing for making decisions on on-and off-reservation
land in trust applications. The reported minimum, median, and maximum
processing times are for fiscal year 2005 only and might not be
indicative of other years. For each of the applications with decisions
in fiscal year 2005, we tried to use the date of the application as the
initial point to calculate the processing time. For the few
applications where we could not determine the date of the application,
we used either the date of the tribal resolution requesting that the
land be placed in trust or the date BIA notified state and local
governments about an application. We used the decision date as the end
date for calculating the processing time of these applications. For off-
reservation applications, we calculated the time from the date of the
draft decision to the end of fiscal year 2005. In addition, we compared
the length of time that 34 appealed decisions had been awaiting
resolution by BIA regional directors with the current 60-day time frame
set forth in the regulations on appeals. For the appealed decisions, we
calculated the time from the date of the decision to the end of fiscal
year 2005. We also interviewed BIA officials and tribal representatives
involved in the process to obtain their views on the time taken for
processing applications.
* To determine whether state and local governments had concerns, we
analyzed the content of comments made by these governments for the 87
applications with decisions in fiscal year 2005 and 45 appeals pending
at the end of fiscal year 2005. Moreover, we reviewed the National
Governors Association 2005 position paper on revisions to the
regulations for processing land in trust, and we obtained draft
revisions to the regulations from a Counselor to the Assistant
Secretary for Indian Affairs at Interior.
* As described above, we decided that the BIA database was not reliable
for our purposes. To determine the accuracy and reliability of the
database, we compared the information in the database with other data
sources, including spreadsheets used by a number of the BIA offices we
visited to track land in trust applications, BIA realty reports under
the Government Performance and Results Act, and BIA annual acreage
reports. We also discussed the development of the current database and
the proposed redesign of the database with staff in the Office of the
Chief Information Officer within the Office of the Assistant Secretary
for Indian Affairs.
We performed our work between August 2005 and June 2006 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: BIA's Process for Placing Land in Trust:
[See PDF for image]
Source: GAO analysis of BIA Land in Trust Process.
Note: This flowchart represents BIA's land in trust process for on-
reservation acquisitions. Off-reservation and gaming-related
applications follow slightly different processes. The flowchart also
shows some of the possible scenarios for an appeal and judicial review.
[A] This flowchart assumes that the BIA superintendent is the initial
decision maker. The initial decision maker can also be the regional
director or the Assistant Secretary for Indian Affairs.
[B] In the case of a denial by the superintendent and no appeal, the
process would end here.
[C] This flowchart assumes all application remands are directed back to
the BIA superintendent. Remands could also be directed to other
decision makers, such as the regional director or Assistant Secretary
for Indian Affairs.
[End of figure]
[End of section]
Appendix III: Processing Times for 87 Land in Trust Applications with
Decisions in Fiscal Year 2005:
Applicant: Minnesota Chippewa Tribe, Fond du Lac Band;
Parcel name: Zacher;
Proposed use: Protection of cultural/historical sites, hunting, and
housing;
Acreage: 6.85;
Days between application date and decision date: 58.
Applicant: Minnesota Chippewa Tribe, Grand Portage Band;
Parcel name: Schwebel;
Proposed use: Water treatment plant;
Acreage: 0.03;
Days between application date and decision date: 73.
Applicant: Minnesota Chippewa Tribe, Grand Portage Band;
Parcel name: Kozlowski;
Proposed use: Water treatment plant;
Acreage: 1.70;
Days between application date and decision date: 73.
Applicant: Minnesota Chippewa Tribe, Grand Portage Band;
Parcel name: Hollow Rock Resort;
Proposed use: Water treatment plant;
Acreage: 11.86;
Days between application date and decision date: 98.
Applicant: Muckleshoot Indian Tribe of the Muckleshoot Reservation,
Washington;
Parcel name: Auburn School;
Proposed use: Tribal school;
Acreage: 38.23;
Days between application date and decision date: 130.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T080;
Proposed use: Chickasaw Nation Division of Aging expansion;
Acreage: 0.16;
Days between application date and decision date: 186.
Applicant: Confederated Tribes of the Grand Ronde Community of Oregon;
Parcel name: Eastman-Meyer;
Proposed use: Forestry, light recreational, and cultural;
Acreage: 9.99;
Days between application date and decision date: 192.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T075;
Proposed use: Tribal government offices;
Acreage: 0.44;
Days between application date and decision date: 205.
Applicant: Individual member of the Puyallup Tribe of the Puyallup
Reservation, Washington;
Parcel name: David Turnipseed;
Proposed use: Housing;
Acreage: 0.20;
Days between application date and decision date: 209.
Applicant: Elk Valley Rancheria, California;
Parcel name: Elk Valley Rancheria;
Proposed use: Tribal headquarters;
Acreage: 3.64;
Days between application date and decision date: 210.
Applicant: Individual member of the Assiniboine and Sioux Tribes of the
Fort Peck Indian Reservation, Montana;
Parcel name: Helmer;
Proposed use: Agriculture;
Acreage: 800.00;
Days between application date and decision date: 224.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T079;
Proposed use: Community center;
Acreage: n/a;
Days between application date and decision date: 251.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T076;
Proposed use: Community center;
Acreage: 0.61;
Days between application date and decision date: 254.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: Ben's TV and Dee's Trim Shop;
Proposed use: Tribal government offices;
Acreage: 1.29;
Days between application date and decision date: 283.
Applicant: Assiniboine and Sioux Tribes of the Fort Peck Indian
Reservation, Montana;
Parcel name: Powell;
Proposed use: Homestead, farmland, and pasture land;
Acreage: 40.00;
Days between application date and decision date: 303.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T073;
Proposed use: Tribal government offices;
Acreage: 4.66;
Days between application date and decision date: 315.
Applicant: Morongo Band of Cahuilla Mission Indians of the Morongo
Reservation, California;
Parcel name: Ahadpour Parcel 1 and 2;
Proposed use: Grazing and water source;
Acreage: 715.56;
Days between application date and decision date: 327[A].
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 1;
Proposed use: Agriculture, grazing;
Acreage: 0.28;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 2;
Proposed use: Agriculture, grazing;
Acreage: 22.20;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 3;
Proposed use: Agriculture, grazing;
Acreage: 8.00;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 4;
Proposed use: Agriculture, grazing;
Acreage: 8.50;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 5;
Proposed use: Agriculture, grazing;
Acreage: 30.00;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 6;
Proposed use: Agriculture, grazing;
Acreage: 15.60;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 7;
Proposed use: Agriculture, grazing;
Acreage: 19.80;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 8;
Proposed use: Agriculture, grazing;
Acreage: 36.43;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 9;
Proposed use: Agriculture, grazing;
Acreage: 10.80;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 10;
Proposed use: Agriculture, grazing;
Acreage: 6.90;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 11;
Proposed use: Agriculture, grazing;
Acreage: 2.00;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 12;
Proposed use: Agriculture, grazing;
Acreage: 2.00;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 13;
Proposed use: Agriculture, grazing;
Acreage: 2.20;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 14;
Proposed use: Agriculture, grazing;
Acreage: 0.70;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 15;
Proposed use: Agriculture, grazing;
Acreage: 23.06;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 16;
Proposed use: Agriculture, grazing;
Acreage: 6.00;
Days between application date and decision date: 357.
Applicant: Arapaho and Shoshone Tribes of the Wind River Reservation,
Wyoming;
Parcel name: Twitchell Parcel 17;
Proposed use: Agriculture, grazing;
Acreage: 41.80;
Days between application date and decision date: 357.
Applicant: Individual member of the Seminole Nation of Oklahoma;
Parcel name: King;
Proposed use: Housing;
Acreage: 139.73;
Days between application date and decision date: 361.
Applicant: Stillaguamish Tribe of Washington;
Parcel name: Barlond-Bank Savers;
Proposed use: Storing seasonal plants, fisheries, and cultural uses;
Acreage: 13.84;
Days between application date and decision date: 380.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T067;
Proposed use: Expansion of chocolate factory;
Acreage: 5.00;
Days between application date and decision date: 392.
Applicant: Chicken Ranch Rancheria of Me-Wuk Indians of California;
Parcel name: Chicken Ranch Rancheria;
Proposed use: Housing;
Acreage: 1.00;
Days between application date and decision date: 409.
Applicant: Mashantucket Pequot Tribe of Connecticut;
Parcel name: 38 Indiantown Road;
Proposed use: Housing;
Acreage: 127.00;
Days between application date and decision date: 426.
Applicant: Mashantucket Pequot Tribe of Connecticut;
Parcel name: 28 Coachman Pike;
Proposed use: Housing;
Acreage: 12.23;
Days between application date and decision date: 426.
Applicant: Mashantucket Pequot Tribe of Connecticut;
Parcel name: 61 Route 2;
Proposed use: Wetlands and housing;
Acreage: 1.95;
Days between application date and decision date: 426.
Applicant: Mashantucket Pequot Tribe of Connecticut;
Parcel name: 55 Coachman Pike;
Proposed use: Housing;
Acreage: 0.08;
Days between application date and decision date: 426.
Applicant: Mashantucket Pequot Tribe of Connecticut;
Parcel name: 906 Shewville Road;
Proposed use: Housing;
Acreage: 0.92;
Days between application date and decision date: 426.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T069;
Proposed use: Tribal government offices;
Acreage: 0.52;
Days between application date and decision date: 444.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T070;
Proposed use: Tribal government offices;
Acreage: 1.17;
Days between application date and decision date: 448.
Applicant: Individual member of the Blackfeet Tribe of the Blackfeet
Indian Reservation of Montana;
Parcel name: Merchant;
Proposed use: Housing;
Acreage: n/a;
Days between application date and decision date: 475.
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: Hartman/Ricklefs;
Proposed use: Agriculture;
Acreage: 160.00;
Days between application date and decision date: 475.
Applicant: Miccosukee Tribe of Indians of Florida;
Parcel name: Shoppyland;
Proposed use: Increase land base;
Acreage: 180.00;
Days between application date and decision date: 479.
Applicant: Saginaw Chippewa Indian Tribe of Michigan;
Parcel name: Van Orden;
Proposed use: Tribal school;
Acreage: 75.00;
Days between application date and decision date: 496.
Applicant: Individual member of the Morongo Band of Cahuilla Mission
Indians of the Morongo Reservation, California;
Parcel name: Robert St. Marie;
Proposed use: Housing;
Acreage: 0.64;
Days between application date and decision date: 513.
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: S. Finger;
Proposed use: Agriculture;
Acreage: 160.00;
Days between application date and decision date: 519.
Applicant: Individual member of the Morongo Band of Cahuilla Mission
Indians of the Morongo Reservation, California;
Parcel name: Mathews;
Proposed use: Housing and grazing;
Acreage: 5.04;
Days between application date and decision date: 531.
Applicant: Sault Ste. Marie Tribe of Chippewa Indians of Michigan;
Parcel name: Hesser;
Proposed use: Increase land base;
Acreage: 79.50;
Days between application date and decision date: 547.
Applicant: Mohegan Indian Tribe of Connecticut;
Parcel name: 24 Tracts in New London, Connecticut;
Proposed use: Housing, burial, and undeveloped tracts;
Acreage: 73.40;
Days between application date and decision date: 561[A].
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T065;
Proposed use: Convenience store, gas station, restaurant, video arcade,
and 300 parking spots;
Acreage: 9.04;
Days between application date and decision date: 580.
Applicant: Individual member of the Puyallup Tribe of the Puyallup
Reservation, Washington;
Parcel name: Pernelle Turnipseed;
Proposed use: Retail;
Acreage: 1.36;
Days between application date and decision date: 756.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T063;
Proposed use: Expansion of chocolate factory;
Acreage: 5.00;
Days between application date and decision date: 783.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: T060;
Proposed use: Parking lot;
Acreage: n/a;
Days between application date and decision date: 834.
Applicant: Upper Sioux Community, Minnesota;
Parcel name: Hildahl;
Proposed use: Housing, governmental, or institutional;
Acreage: 2.12;
Days between application date and decision date: 942.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Slattery;
Proposed use: Agriculture;
Acreage: 160.00;
Days between application date and decision date: 1,013.
Applicant: Chickasaw Nation, Oklahoma;
Parcel name: Love County;
Proposed use: Sand and gravel processing plant;
Acreage: 83.43;
Days between application date and decision date: 1,030.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Jungman;
Proposed use: Agriculture;
Acreage: 40.00;
Days between application date and decision date: 1,074.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Bausch;
Proposed use: Agriculture;
Acreage: 160.00;
Days between application date and decision date: 1,143[A].
Applicant: Picayune Rancheria of Chukchansi Indians of California;
Parcel name: Picayune Rancheria;
Proposed use: Parking lot, road, and undeveloped land;
Acreage: 111.70;
Days between application date and decision date: 1,203.
Applicant: Saginaw Chippewa Indian Tribe of Michigan;
Parcel name: DNR;
Proposed use: Increase land base;
Acreage: 2.00;
Days between application date and decision date: 1,247.
Applicant: Saginaw Chippewa Indian Tribe of Michigan;
Parcel name: Froncek;
Proposed use: Increase land base;
Acreage: 2.00;
Days between application date and decision date: 1,247.
Applicant: Stockbridge Munsee Community, Wisconsin;
Parcel name: Bartelme Township;
Proposed use: Government facilities, housing, forestry;
Acreage: 404.03;
Days between application date and decision date: 1,387.
Applicant: Sault Ste. Marie Tribe of Chippewa Indians of Michigan;
Parcel name: Roy;
Proposed use: Recreational;
Acreage: 20.00;
Days between application date and decision date: 1,441.
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: B. Finger;
Proposed use: Agriculture;
Acreage: 75.60;
Days between application date and decision date: 1,445.
Applicant: Ho-Chunk Nation of Wisconsin;
Parcel name: Haga--Sand Pillow/Ballfield/100';
Proposed use: Housing, potential commercial development, community
recreation, and green space;
Acreage: 65.00;
Days between application date and decision date: 1,476.
Applicant: Ho-Chunk Nation of Wisconsin;
Parcel name: Haga--King of Thunder/Garvin;
Proposed use: Housing;
Acreage: 40.00;
Days between application date and decision date: 1,476.
Applicant: Santa Ynez Band of Chumash Indians of the Santa Ynez
Reservation, California;
Parcel name: Santa Ynez Valley;
Proposed use: Cultural center, museum, park, retail building;
Acreage: 6.90;
Days between application date and decision date: 1,528.
Applicant: Sault Ste. Marie Tribe of Chippewa Indians of Michigan;
Parcel name: McCann;
Proposed use: Education and elder program facility, housing;
Acreage: 4.16;
Days between application date and decision date: 1,532[B].
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: CN Cattle Company;
Proposed use: Agriculture;
Acreage: 80.00;
Days between application date and decision date: 1,582.
Applicant: Barona Group of Capitan Grande Band of Mission Indians of
the Barona Reservation, California;
Parcel name: Berger;
Proposed use: Multiple rural use;
Acreage: 1.87;
Days between application date and decision date: 1,588.
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: Powhattan;
Proposed use: Unknown;
Acreage: 150.00;
Days between application date and decision date: 1,949.
Applicant: Confederated Tribes of the Colville Reservation, Washington;
Parcel name: Gustafson;
Proposed use: Undeveloped;
Acreage: 40.00;
Days between application date and decision date: 2,213[A].
Applicant: Confederated Tribes of the Colville Reservation, Washington;
Parcel name: Terrain Tamers;
Proposed use: Forested environment;
Acreage: 380.00;
Days between application date and decision date: 2,363[A].
Applicant: Confederated Tribes of the Colville Reservation, Washington;
Parcel name: Weitman;
Proposed use: Meadowland environment;
Acreage: 40.00;
Days between application date and decision date: 2,390[C].
Applicant: Confederated Tribes of the Colville Reservation, Washington;
Parcel name: Thompson;
Proposed use: Forested environment;
Acreage: 40.00;
Days between application date and decision date: 2,514[A].
Applicant: Confederated Tribes of the Colville Reservation, Washington;
Parcel name: Nespelem Bend;
Proposed use: Fish and wildlife;
Acreage: 516.36;
Days between application date and decision date: 2,702[C].
Applicant: Individual member of the Bad River Band of the Lake Superior
Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin;
Parcel name: Salawater;
Proposed use: Housing;
Acreage: 6.92;
Days between application date and decision date: 2,995.
Applicant: Confederated Tribes of the Colville Reservation, Washington;
Parcel name: Hammon;
Proposed use: Housing;
Acreage: 0.33;
Days between application date and decision date: 3,008[A].
Applicant: St. Croix Chippewa Indians of Wisconsin;
Parcel name: Palmer;
Proposed use: Housing;
Acreage: 78.00;
Days between application date and decision date: 4,666.
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: Bechtold;
Proposed use: Agriculture;
Acreage: 230.00;
Days between application date and decision date: 5,036[A].
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: Schmidt;
Proposed use: Unknown;
Acreage: 199.95;
Days between application date and decision date: 5,119[A].
Applicant: Individual member of the La Jolla Band of Luiseno Mission
Indians of the La Jolla Reservation, California;
Parcel name: Rodriguez;
Proposed use: Housing;
Acreage: 5.42;
Days between application date and decision date: 6,808.
Source: GAO analysis of BIA land in trust applications with decisions
in fiscal year 2005.
[A] BIA's file did not contain information on the date of the
application. In these cases, the date of the tribal resolution was used
for calculating processing times.
[B] Off-reservation land in trust application processed under 25 C.F.R.
§151.11.
[C] BIA's file did not contain information on either the date of the
application or the date of the tribal resolution. In these cases, the
date of the BIA's letter seeking comments from state and local
governments was used for calculating processing times.
[End of table]
[End of section]
Appendix IV: Processing Times for 28 Off-Reservation Land in Trust
Applications Awaiting Consideration by BIA Central Office:
Applicant: Bay Mills Indian Community, Michigan;
Parcel name: Dafter M28;
Proposed use: Commercial and housing;
Acreage: 110.73;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 36.
Applicant: Karuk Tribe of California;
Parcel name: Oak Knoll;
Proposed use: Present: vacant lot;
future: men's treatment, rehabilitation, shelter transitional facility;
Acreage: 2.64;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 86.
Applicant: Karuk Tribe of California;
Parcel name: Ishi Pishi, Elliott Creek, Upper Katamin;
Proposed use: Cultural/ceremonial/burial grounds;
Acreage: 20.70;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 114.
Applicant: Lac Court Oreillas Band of Lake Superior Chippewa Indians of
Wisconsin;
Parcel name: LCO Herman's Landing;
Proposed use: Recreational/fishing;
Acreage: 26.05;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 129.
Applicant: Confederated Tribes of Chehalis Reservation, Washington;
Parcel name: Grand Mound;
Proposed use: Present: undeveloped;
future: hotel and convention center;
Acreage: 42.99;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 190.
Applicant: Kaw Nation, Oklahoma;
Parcel name: B-07-810-100486;
Proposed use: Health, Wellness, and Community Center;
Acreage: 95.39;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 204.
Applicant: Cabazon Band of Mission Indians, California;
Parcel name: Commercial storage;
Proposed use: Commercial storage;
Acreage: 3.98;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 233.
Applicant: Confederated Tribes of the Siletz Reservation, Oregon;
Parcel name: Coop;
Proposed use: Cultural and natural resources;
Acreage: 299.33;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 287.
Applicant: Delaware Nation of Oklahoma;
Parcel name: Chesapeake Terrace;
Proposed use: Present: depleted sand and gravel operation;
future: rubble landfill;
Acreage: 454.00;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 310.
Applicant: Miccosukee Tribe of Indians of Florida;
Parcel name: Kendale Lakes Golf Course Tracts A and B;
Proposed use: Golf course and club house;
Acreage: 229.30;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 353.
Applicant: Koosharem Band of Paiute Indians of Utah;
Parcel name: Richfield;
Proposed use: Tribal housing and community center;
Acreage: 1.72;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 406.
Applicant: Individual member of the Kootenai Tribe of Idaho (fractional
interest);
Parcel name: 183-C;
Proposed use: Timber production;
Acreage: 20.00;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 408.
Applicant: Kootenai Tribe of Idaho;
Parcel name: Undivided 2/3 interest in 183.12;
Proposed use: Agriculture;
Acreage: 86.97;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 413.
Applicant: Shingle Springs Band of Miwok Indians, Shingle Springs
Rancheria (Verona Tract), California;
Parcel name: Shingle Springs/ Lower 50;
Proposed use: Present: undeveloped;
future: health clinic and housing;
Acreage: 77.03;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 457.
Applicant: Confederated Tribes of the Siletz Reservation, Oregon;
Parcel name: Otis Cemetery;
Proposed use: Cemetery;
Acreage: 0.12;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 458.
Applicant: Tulalip Tribes of the Tulalip Reservation, Washington;
Parcel name: Faris;
Proposed use: Traditional harvesting of shellfish;
Acreage: 1.25;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 541.
Applicant: Tulalip Tribes of the Tulalip Reservation, Washington;
Parcel name: Rasmussen;
Proposed use: Natural resource habitat enhancement;
Acreage: 10.15;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 561.
Applicant: Puyallup Tribe of the Puyallup Reservation, Washington;
Parcel name: Wilkeson Creek A;
Proposed use: Steel head fish hatchery;
Acreage: 12.27;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 564.
Applicant: Puyallup Tribe of the Puyallup Reservation, Washington;
Parcel name: Wilkeson Creek B;
Proposed use: Steel head fish hatchery;
Acreage: 4.31;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 564.
Applicant: Tulalip Tribes of the Tulalip Reservation, Washington;
Parcel name: Baby Island;
Proposed use: Shellfish harvesting and canoe landing;
Acreage: 1.00;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 578.
Applicant: Tulalip Tribes of the Tulalip Reservation, Washington;
Parcel name: Camano Head;
Proposed use: Shellfish harvesting and canoe landing;
Acreage: 20.78;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 676.
Applicant: Cow Creek Band of Umpqua Indians of Oregon;
Parcel name: Cullet;
Proposed use: Vacant property, storage space;
Acreage: 78.42;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 809.
Applicant: Cow Creek Band of Umpqua Indians of Oregon;
Parcel name: DC Coop;
Proposed use: Commercial rental leasing;
Acreage: 2.48;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 816.
Applicant: Sac & Fox Nation of Missouri in Kansas and Nebraska;
Parcel name: Block 11;
Proposed use: Present: vacant housing;
future: fire station and EMT Community Service Center;
Acreage: unknown;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 840.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Prairie Land;
Proposed use: Agriculture;
Acreage: 26.37;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 960.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Bohannon;
Proposed use: Agriculture;
Acreage: 101.00;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 1,044.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Bernasek;
Proposed use: Agriculture;
Acreage: 33.00;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 1,171.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Chesney-Green;
Proposed use: Agriculture and housing;
Acreage: 70.00;
Number of days awaiting review at BIA Central Office as of Sept. 30,
2005: 1,173.
Source: GAO analysis of BIA pending off-reservation land in trust
applications.
[End of table]
[End of section]
Appendix V: Processing Times for 34 Appealed Land in Trust Decisions
Awaiting Resolution by a BIA Regional Director:
Applicant: Stockbridge Munsee Community, Wisconsin;
Parcel name: Bartelme Township;
Proposed use: Government facilities, housing, forestry;
Acreage: 404.03;
Number of days between decision and Sept. 30, 2005: 290.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Slattery;
Proposed use: Agriculture;
Acreage: 160.00;
Number of days between decision and Sept. 30, 2005: 311.
Applicant: Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kansas;
Parcel name: Bowhay;
Proposed use: Agriculture;
Acreage: 150.00;
Number of days between decision and Sept. 30, 2005: 406.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Reamer;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 428.
Applicant: Sac & Fox Nation of Missouri in Kansas and Nebraska;
Parcel name: Becker;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 428.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Plants PT 95/58;
Proposed use: Agriculture;
Acreage: 120.00;
Number of days between decision and Sept. 30, 2005: 437.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Crow;
Proposed use: Agriculture;
Acreage: 40.00;
Number of days between decision and Sept. 30, 2005: 437.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: HD Zibell PT-83;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 445.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: HD Zibell PT-85;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 445.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: HD Zibell PT-87;
Proposed use: Agriculture;
Acreage: 40.00;
Number of days between decision and Sept. 30, 2005: 445.
Applicant: Minnesota Chippewa Tribe, Mille Lacs Band;
Parcel name: Kareen;
Proposed use: Assisted living center;
Acreage: 40.00;
Number of days between decision and Sept. 30, 2005: 451.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Bernasek 1;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 493.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: HD Zibell #86;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 548.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: HD Zibell #84;
Proposed use: Agriculture;
Acreage: 40.00;
Number of days between decision and Sept. 30, 2005: 549.
Applicant: Saginaw Chippewa Indian Tribe of Michigan;
Parcel name: Ervin;
Proposed use: Governmental offices, businesses, housing;
Acreage: 0.25;
Number of days between decision and Sept. 30, 2005: 696.
Applicant: Saginaw Chippewa Indian Tribe of Michigan;
Parcel name: Weckesser;
Proposed use: Governmental offices, businesses, housing;
Acreage: 4.44;
Number of days between decision and Sept. 30, 2005: 708.
Applicant: Saginaw Chippewa Indian Tribe of Michigan;
Parcel name: Bielski;
Proposed use: Economic development;
Acreage: 9.00;
Number of days between decision and Sept. 30, 2005: 816.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Brunner;
Proposed use: Agriculture;
Acreage: 75.00;
Number of days between decision and Sept. 30, 2005: 1,050.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Stalker 2001;
Proposed use: Agriculture;
Acreage: 622.00;
Number of days between decision and Sept. 30, 2005: 1,235.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Parr 1999;
Proposed use: Agriculture;
Acreage: 48.97;
Number of days between decision and Sept. 30, 2005: 1,239.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Calderwood 2;
Proposed use: Agriculture;
Acreage: 160.00;
Number of days between decision and Sept. 30, 2005: 1,325.
Applicant: Sac & Fox Nation of Missouri in Kansas and Nebraska;
Parcel name: Deroin;
Proposed use: Agriculture;
Acreage: 7.85;
Number of days between decision and Sept. 30, 2005: 1,331.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Beckwith;
Proposed use: Agriculture, housing;
Acreage: 160.00;
Number of days between decision and Sept. 30, 2005: 1,361.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Bailey/Zibell;
Proposed use: Agriculture;
Acreage: 600.00;
Number of days between decision and Sept. 30, 2005: 1,438.
Applicant: Minnesota Chippewa Tribe, Leech Lake Band;
Parcel name: Walker;
Proposed use: Day care center;
Acreage: 5.76;
Number of days between decision and Sept. 30, 2005: 1,512.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: ABC Exteriors;
Proposed use: Agriculture;
Acreage: 40.00;
Number of days between decision and Sept. 30, 2005: 1,591.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Parr;
Proposed use: Agriculture, housing;
Acreage: 79.00;
Number of days between decision and Sept. 30, 2005: 1,626.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Buck;
Proposed use: Agriculture;
Acreage: 1.18;
Number of days between decision and Sept. 30, 2005: 1,627.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Haag;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 1,663.
Applicant: Sac & Fox Nation of Missouri in Kansas and Nebraska;
Parcel name: Blocks 4 and 5;
Proposed use: Community center;
Acreage: unknown;
Number of days between decision and Sept. 30, 2005: 1,715.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Ribelin;
Proposed use: Agriculture;
Acreage: unknown;
Number of days between decision and Sept. 30, 2005: 1,771.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Bailey 1999;
Proposed use: Agriculture;
Acreage: 80.00;
Number of days between decision and Sept. 30, 2005: 1,778.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Walder;
Proposed use: Agriculture;
Acreage: 120.00;
Number of days between decision and Sept. 30, 2005: 1,800.
Applicant: Prairie Band of Potawatomi Nation, Kansas;
Parcel name: Daugherty;
Proposed use: Agriculture;
Acreage: 55.00;
Number of days between decision and Sept. 30, 2005: 1,801.
Source: GAO analysis of pending appeals of BIA land in trust decisions.
[End of table]
[End of section]
Appendix VI: Comments from the Department of the Interior:
United States Department of the Interior:
Office Of The Secretary Washington, D.C. 20240:
JUL 12 2006:
Ms. Robin M. Nazzaro:
Director, Natural Resources and Environment:
Government Accountability Office:
Washington, D.C. 20548:
Dear Ms. Nazzaro:
The Bureau of Indian Affairs (BIA) appreciates the opportunity to
formally comment on the Government Accountability Office's (GAO) audit
report titled Indian Issues: BIA 's Efforts to Impose Time Frames and
Collect Better Data Should Improve the Processing of "Land in Trust"
Applications (GA06-781) (Report).
In general, the BIA agrees with the findings, conclusions, and
recommendations presented in the Report that some changes are required
to more timely and effectively process the Fee to Trust applications.
BIA will submit a Corrective Action Plan to implement the Report
recommendations in response to the final report.
Recommendations for Executive Action:
The GAO recommended the following three actions to improve timeliness,
transparency and ensure better management of BIA's land in trust
process:
* reinforce the requirement that all decisions be fully documented;
* move forward with adopting revisions to the land in trust regulations
that include (1) specific time frames for BIA to make a decision once
an application in complete and (2) guidelines for providing state and
local government more information on the applications and more time to
comment; and:
* institute internal controls to help ensure the accuracy and
reliability of the data in the land in trust database, as part of the
redesign of the existing system.
The BIA is working to address these recommendations as we continue our
efforts to improve trust management. The BIA has drafted new
regulations impacting the land in trust program. These draft
regulations were sent to tribal leaders on December 27, 2005, to
initiate consultation. Initial comments were received and consultation
meetings are scheduled for the last quarter of calendar year 2006, with
proposal of the regulations in the Federal Register to follow, which
will begin the required public notice and comment period for new or
revised regulations.
Upon issuance of the regulations, the BIA will develop a handbook to
ensure consistent application of regulations. The handbook will also
include specific internal control procedures to ensure all decisions
are properly and completely documented, as well as accurately and
timely entered into the land in trust database.
Thank you for the opportunity to respond to the draft Report. If you
have any questions related to our response, please contact Arch Wells,
Deputy Bureau Director - Trust Services, at (202) 208-5831.
Sincerely,
Signed by:
Associate Deputy Secretary:
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgments:
GAO Contact:
Robin M. Nazzaro, (202) 512-3841, nazzaror@gao.gov:
Staff Acknowledgments:
In addition to the individual named above, Jeffery D. Malcolm,
Assistant Director; Jean Cook; Mark Keenan; Daniel J. Semick; Carol
Herrnstadt Shulman; and Susan Swearingen made key contributions to this
report. Also contributing to the report were Jennifer DuBord, Susanna
Kuebler, Greg Marchand, Justin Monroe, George Quinn, Anne Rhodes-Kline,
Jena Y. Sinkfield, Ashanta Williams, and Greg Wilmoth.
(360603):
FOOTNOTES
[1] 25 C.F.R. pt. 151.
[2] 25 C.F.R. §151.10.
[3] 25 C.F.R. §151.11.
[4] Tribes and individual Indians can not apply to have land taken in
trust in the state of Alaska, except for the Metlakatla Indian
Community of the Annette Island Reserve or its members.
[5] 25 C.F.R. pt. 2.
[6] H.R. Rep. No. 109-80, at 68 (2005).
[7] Act of June 18, 1934, ch. 576, 48 Stat. 984 (1934) (codified as
amended at 25 U.S.C. §§ 461-479).
[8] The 5-million acre difference between these two figures represents
the net change of Indian land in trust from 1934 to 1997. While this
report discusses Indian applicants seeking to have land converted to
trust status, Indian applicants can also seek to have land already in
trust status converted to fee status (i.e., land that property taxes
must be paid on) and tribes and individual Indians can also lose trust
lands through a variety of means, including probate and foreclosure.
These two processes result in land "coming into trust" (referred to as
acquisitions) and land "going out of trust" (referred to as disposals).
The regulations governing taking land out of trust are in 25 C.F.R. pt.
152. For example, for the calendar year ending December 31, 1997, BIA
reported acquiring about 360,000 acres and disposing of about 260,000
acres, for a net increase in tribal and individual Indian trust acreage
of about 100,000 acres.
[9] 70 Fed. Reg. 71194 (Nov. 25, 2005).
[10] The regulations do not cover the acquisition of land in trust
status in the state of Alaska, except for acquisitions for the
Metlakatla Indian Community of the Annette Island Reserve or its
members. The Metlakatla Indian Community is served by BIA's Northwest
Region. Excluding the Metlakatla Indian Community, there are 224
federally recognized Indian entities in the state of Alaska. Therefore,
337 of the 561 federally recognized tribes are eligible to submit land
in trust applications.
[11] Other responsibilities of the Office of Trust Services include
managing real estate services, probate, and environmental cultural
resource compliance.
[12] 25 C.F.R. pt. 151. The regulations were first proposed in 1978,
see 43 Fed. Reg. 32311 (July 26, 1978). The final rule was published on
Sept. 18, 1980 and it became effective on Oct. 20, 1980, see 45 Fed.
Reg. 62034 (Sept. 18, 1980). The regulations, which were originally
designated as 25 C.F.R. pt. 120a, were redesignated in 1982 as 25
C.F.R. pt. 151. The regulations were significantly revised in 1995.
[13] Pub. L. No. 100-497, 102 Stat. 2467 (1988).
[14] GAO, Indian Gaming Regulatory Act: Land Acquired for Gaming After
the Act's Passage, GAO/RCED-00-11R (Washington, D.C.: Oct. 1, 1999).
[15] U.S. Department of the Interior, Office of the Inspector General,
Process Used to Assess Applications to Take Land into Trust for Gaming
Purposes, E-EV-BIA-0063-2003 (Washington, D.C.: Sept. 1, 2005).
[16] 25 C.F.R. § 2.19.
[17] The Assistant Secretary for Indian Affairs can also be the
decision maker. In such a case, the decision is final for Interior and
may not be appealed to the IBIA, but could be appealed in Federal
court.
[18] Interior is also considering revisions to regulations regarding
probate/life estates (25 C.F.R. pts. 15, 18, and 179, and 43 C.F.R. pt.
4), land records and title documents (25 C.F.R. pt. 150), leasing (25
C.F.R. pt. 162), grazing (25 C.F.R. pt. 166), administrative accounting
appeals (new regulations), whereabouts unknown (new regulations), and
fees (new regulations).
[19] Land may also be converted from trust to nontrust status though a
variety of means, such as at the owner's request or through the sale of
the property to a non-Indian. Any comprehensive analysis of the
cumulative tax impact should consider this aspect.
[20] The current regulations include eight criteria for on-reservation
applications and additional criteria for off-reservation applications.
The revisions to the regulations under consideration include four
criteria for on-reservation applications and eight criteria for off-
reservation applications. In addition, the revisions state that BIA
will approve on-reservation applications if (1) the trust acquisition
does not create a significant additional administrative burden on
Interior and (2) it facilitates either tribal self-determination,
economic development, Indian housing, land consolidation, cultural
resources protection, or natural resources protection, unless the
record shows by clear and demonstrable evidence that the trust
acquisition will result in significant negative impact to the
environment or to the local government.
[21] Town of Ignacio, Colorado v. Albuquerque Area Director, BIA, 34
IBIA 37, 42 (1999).
[22] These tribes use a portion of their Tribal Priority Allocations
from BIA to fund these positions. These are federal funds provided
through BIA to the tribes, which the tribes use, in part, to fund staff
positions at BIA.
[23] Median length of time is used in this instance due to a
substantially wide range of processing times that skew the average. For
the 87 applications with decisions in fiscal year 2005, 86 were on-
reservation applications, and 1 was an off-reservation application. The
off-reservation application was cleared by BIA Central Office on
September 20, 2002.
[24] On December 5, 2001, the effect of accumulated information
technology security weaknesses resulted in a Temporary Restraining
Order that required that Interior immediately disconnect from the
Internet all information technology systems that house or provide
access to individual trust data. While most of Interior had regained
Internet access by the time of our review, BIA had not. The Temporary
Restraining Order was vacated by the Court of Appeals for the D.C.
Circuit on July 11, 2006. See Cobell v. Kempthorne, No. 05-5388 (D.C.
Cir. July 11, 2006).
[25] From November 2005 until June 2006, two applications were cleared
by the Central Office.
[26] 25 C.F.R § 2.19.
[27] 25 C.F.R. § 2.8.
[28] Paiute Indian Tribe of Utah v. Western Regional Director, BIA, 38
IBIA 128, 129 (2002).
[29] Paiute Indian Tribe of Utah v. Western Regional Director, BIA, 40
IBIA 163, 164 (2004); Paiute Indian Tribe of Utah v. Western Regional
Director, BIA, 40 IBIA 141, 142 (2004).
[30] 42 IBIA 189, 205 (2006).
[31] The Kickapoo Tribe of Indians appealed to the IBIA the Southern
Plains Regional Director's decision to consider their application
discretionary rather than mandatory. One individual appealed to the
IBIA when the Eastern Oklahoma Regional Director denied his
application. In addition to these two appeals that were not generated
by state or local governments, a third appeal was filed by citizen
groups regarding an approval by the Pacific Regional Director.
[32] Federal courts have regularly upheld Interior's implementation of
the land in trust process in the face of constitutional challenges. For
instance, the First Circuit recently rejected the contention that land
in trust authority under the Indian Reorganization Act is an
unconstitutional delegation of congressional power, that it violates
state sovereignty under the Tenth Amendment, the Enclave Clause, and
the Admissions Clause, and that it exceeds congressional authority
under the Indian Commerce Clause. Carcieri v. Norton, 423 F.3d 45 (1ST
Cir. 2005). The Eighth Circuit reached a contrary conclusion in a 1995
decision which found that the Indian Reorganization Act land in trust
provision was an unconstitutional delegation, but that decision was
vacated by the Supreme Court. South Dakota v. United States Dep't of
the Interior, 69 F.3d 878, 881-85 (8TH Cir. 1995), vacated by 519 U.S.
919 (1996). Ten years later, the Eighth Circuit explicitly rejected the
rationale of its 1995 decision. South Dakota v. U.S. Dep't of the
Interior, 423 F.3d 790 (8TH Cir. 2005).
[33] These three appeals were pending as of September 30, 2005. In
March 2006, the IBIA ruled that the Regional Director did not abuse his
discretion in arriving at this conclusion. Further, the IBIA concluded
that the Regional Director's position that these were on-reservation
acquisitions was a sufficient response. 42 IBIA 243 (2006).
[34] National Governors Association, The Role of States, the Federal
Government, and Indian Tribal Governments with Respect to Indian Gaming
and Taxation Issues, EDC-06 (Washington, D.C.: July 20, 2005).
[35] Interior refers to the database as the Fee to Trust Electronic
Checklist.
[36] H. R. Rep. No. 109-80, at 68 (2005).
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