Editor's Notes

Bush Administration Withdraws Proposed "Acquisition to Title to Land in Trust" Regulations

Scott Miller

The Clinton administration's final "Acquisition to Title to Land in Trust" regulations amending 25 C.F.R. pt. 151 (published at 66 Fed. Reg. 3452 (Jan. 16, 2001)) were withdrawn by the Department of the Interior on November 9, 2001. See 66 Fed. Reg. 56,608. The Part 151 regulations provide standards and procedures for the Department to acquire in trust land held in fee by individual Indians or tribes. When the United States takes land into trust, it generally is no longer subject to state or county taxation or zoning, the jurisdiction over the land's natural resources may change, and its alienability is restricted (including, for example, by the regulation of leases and other encumbrances that was discussed in the Committee's October 2001 Newsletter).

According to the Department's November 9, 2001, Federal Register notice, comments received on the proposal to withdraw the final regulations "contained various opposing views about the identified issues of concern" with the new regulations. As a result, the Department found that "it is impracticable and inefficient to repeal only part of the final rule as the Bureau of Indian Affairs needs clear direction and standards to process land into trust applications." The final regulations accordingly were withdrawn in their entirety. The Department's notice commits to "conduct consultation with Indian tribes on the following areas in its efforts to promulgate a new rule: applications for housing or home site purposes to meet individual housing needs; the requirement of land use plans; the standards of review used in reaching a determination of whether to accept land into trust; the availability of applications for review; and the use of computer technology prior to the proposal of a new Acquisition of Title to Land in Trust rule." No dates for consultation have been set as of the time of this writing. In the meantime, the "current" 25 C.F.R. Part 151 regulations will remain in effect.

NB, The 2001 edition of title 25 of the C.F.R. contains both the Clinton administration's withdrawn final regulations and the effective "current" regulations. The regulations listed as "superseded" beginning on page 435 are the currently effective regulations.

Navajo Nation v. United States, 263 F.3d 1325 (Fed. Cir. 2001)

In December 1993, the Navajo Nation sued the United States in the Court of Federal Claims for breach of fiduciary duty and breach of contract concerning several of the Nation's coal leases with the Peabody Coal Company (Peabody). The Navajo Nation claimed that the secretary of the Interior violated duties under the Indian Mineral Leasing Act (IMLA), 25 U.S.C. § 396a et seq., its regulations, 25 C.F.R. Part 211, and the lease provisions themselves by withdrawing the Interior Board of Indian Appeal's affirmation of the Bureau of Indian Affair's recommendation for a 20% per ton royalty and instead approving a negotiated 12.5% per ton royalty that was "eventually agreed" to by the Navajo Nation. "The record before the Court of Federal Claims reports numerous contacts during this period, on behalf of Peabody, with Interior officials including the Secretary." Navajo Nation, 263 F.3d at 1328.

The Court of Federal Claims had rejected both claims for relief. The court found that although "the United States violated the most fundamental fiduciary duties of care, loyalty and candor," the "Secretary's role in the Navajo's coal leasing . . . falls far short of the detailed fiduciary responsibilities" that give rise to the availability of monetary relief for breach of trust under the Supreme Court's decisions in United States v. Mitchell, 445 U.S. 535 (1979) (Mitchell I) and United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II). 46 Fed. Cl. 217, 227, 233 (2000). On appeal, the Federal Circuit reversed. The Federal Circuit's decision was based on its application of the Mitchell cases, as well as Federal Circuit precedent in White Mountain Apache Tribe v. United States, 249 F.3d 1364 (Fed. Cir. 2001), petition for cert. filed, 70 U.S.L.W. 3475 (U.S. Jan. 22, 2002) (No. 01-1067); Confederated Tribes of the Warm Springs Reservation v. United States, 248 F.3d 1365 (Fed. Cir. 2001); Brown v. United States, 86 F.3d 1554 (Fed. Cir. 1996); and Pawnee v. United States, 830 F.2d 187 (Fed. Cir. 1987). The Federal Circuit held that the IMLA "explicitly requires that the Secretary must act in the best interests of the Indian tribes" and that the "[s]tatute, regulations, and precedent place on the federal official a clear and unqualified fiduciary responsibility to manage the mineral resources for the benefit of the Indians." Navajo Nation, 263 F.3d at 1331, 1332. The court held that "the Secretary acted in direct contravention of the Act's charge to the Secretary to obtain for the Indians the maximum return for their minerals. In failing to act in the best interests of the Navajo, the government violated its fiduciary responsibilities." Id. at 1332. Accordingly, the court held that the "[b]reach by the federal government of its fiduciary duty is subject to remedy by the assessment of 'damages resulting from a breach of the trust.'" Id.

The deadline to petition for certiorari is March 15, 2002.