U.S. Interior Department Takes Steps to Restore Native American Land

The U.S. Department of Interior on April 27 issued an order that eases the ability of Native American tribes to take land back into trust.

Secretary of the Interior Deb Haaland issued Order 3400 re-delegating the authority to review and approve applications to place land into trust to the Bureau of Indian Affairs regional directors. The order reverses steps taken in 2017 that elevated land-into-trust decisions to the department’s headquarters staff, which caused delays. The order does not apply to gaming applications.

Taking land into trust is one of the functions the Interior Department undertakes on behalf of tribes.

“At Interior, we have an obligation to work with Tribes to protect their lands and ensure that each tribe has a homeland where its citizens can live together and lead safe and fulfilling lives,” Haaland said. “Our actions will help us meet that obligation and will help empower tribes to determine how their lands are used—from conservation to economic development projects.”

Federal policies dating back more than a century have eroded the land base of Native American tribes across the United States. By placing lands into trust status through the Department of the Interior, tribes can reacquire lands within or near their reservations, establish a land base for tribal communities and clarify jurisdiction over their lands. Tribes have faced delays and increasing costs in efforts to develop housing projects, manage law enforcement agencies and develop local economies because of unnecessary hurdles in the land-into-trust process.

“The patchwork of landholdings within existing reservation boundaries can make it difficult to develop coherent law enforcement and regulatory policies on reservations, restricting the ability to sustain community and economic development,” said Bryan Newland, principal deputy assistant secretary for Indian Affairs. “These important actions are a step in the right direction to restore homelands that will strengthen Tribal communities.”

In addition to the order, the Solicitor’s Office withdrew three previous opinions that impeded the department’s ability to take land into trust for tribes and that were issued without adequate tribal consultation.

• The Solicitor issued M-37070 and withdrew M-37054 and M-37055, which created a burdensome process for tribes seeking to place land into trust under the Indian Reorganization Act (IRA) of 1934. In its place, the office reinstated a previous opinion (M-37029) that has been upheld by multiple federal courts and outlines a reasonable process for Tribal applications for land into trust.
• The Solicitor issued M-37069 and withdrew M-37064, which erroneously concluded that, despite the existence of a formal rule allowing such acquisitions, the Secretary of the Interior does not have discretionary authority to take land into trust for tribes in Alaska. This action will eliminate uncertainty over the secretary’s continuing authority under the IRA to take land in Alaska into trust for the benefit of Alaska tribes.

Insuring Native American Land Webinar Series

ALTA's Native American Lands Workgroup is producing a four-part webinar series titled "Insuring Native American Land: Special Issues and Consideration." Below are the recordings from parts one, two and three of the series.

Part I

This presentation discusses special issues and considerations when searching and insuring property involving Native American land. This presentation focuses on vesting and ownership of land, the Indian Non-Intercourse Act and Section 17 Corporations.

Experts participating in this webinar include:

• Cindy Guanell ITP, NTP | Regional Underwriting Director/Pacific Northwest Region | First American Title Insurance Co. 
• Sean Holland | Vice President & Underwriting Counsel | Fidelity National Title Group
• Paul Cozzi | Senior Underwriting Counsel | Fidelity National Title Group
• Branden Allen | Underwriting Counsel | Old Republic National Title Insurance Co.

Moderating the discussion is Cindy Guanell of First American Title Insurance Co. 

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Part II

This part of the series explores the statutory and regulatory authority and processes for leasing restricted Native American lands, including 25 U.S.C. § 415, 29 CFR Part 169, and the HEARTH Act, which created a voluntary, alternative land leasing process available to tribes who enact leasing regulations, that permits tribal leasing without having to obtain further approval from the Bureau of Indian Affairs. You will learn key items to consider when handling transactions involving leases on Native American land.

Experts participating in this webinar include:

• Orlando Lucero | Vice President/New Mexico State Underwriting Counsel | FNF Family of Companies
• Sam Shiel | Vice President/National Underwriting Counsel| Old Republic National Title Insurance Co.
• Cindy Guanell ITP, NTP | Regional Underwriting Director/Pacific Northwest Region | First American Title Insurance Co. 
• Rolf Lindberg | Senior Underwriting Counsel | Stewart Title Guaranty Co.

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Part III

This presentation discusses authority, recording and access when handling transactions involving Native American land.

Experts participating in this webinar include:

• Chad Hansen | Regulatory and Compliance Counsel | First National Title Insurance Co.
• Dawn Lewallen | Senior Division Underwriting Counsel | First American Title Insurance Co.
• Orlando Lucero | Vice President and New Mexico State Underwriting Counsel | Fidelity National Title Insurance Co.

Moderating the discussion is Megan Powell, vice chair of ALTA's Native American Lands Workgroup and an underwriter for First American Title Insurance Co.

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