State and Tribes Building New Traditions Series: Tribal Trust Lands: From Litigation to Consultation

State-Tribal Relations

States and Tribes Building New Traditions Series

This publication is a product of the State-Tribal Relations Project, a partnership between the National Conference of State Legislatures and the National Congress of American Indians. The NCSL State-Tribal Relations Project policy series is designed to help legislators and tribal leaders gain a greater understanding of the issues affecting each constituency and to identify methods for cooperative policymaking in an issue-specific context.

Tribal Trust Lands:
From Litigation to Consultation

By Larry Morandi
August 2004

Introduction

Placing tribal "land into trust" is a process whereby the secretary of the Department of the Interior acquires title to property and holds it in trust for the benefit of a Native American tribe or individual tribal members. Although the land is held in trust by the federal government, the use of those "trust lands" is governed by the tribes, subject to certain federal restrictions. The land usually is not subject to state laws; thus, the process may be confusing to some parties. Federal regulations require the department secretary to consult with state and local governments before deciding to place land into trust.

Most newly acquired tribal trust lands are located within Indian reservation boundaries or adjacent to them. Under certain conditions, there may be off-reservation acquisitions. Typical uses of the acquired land include governmental operations, cultural activities, agricultural or forestry activities, increased housing, social and community services, health care and educational facilities. Placing land into trust for gaming purposes, however, has raised concerns in many states and has sometimes confused other legitimate purposes for the trust land designation.

Significant disagreement has occurred among tribes, state and local governments about conveying Indian land into trust. For states, much of the discord relates to the loss of tax revenue associated with 1) removing the value of the land from state and local from state and local tax rolls and 2) the loss of jurisdiction over the land. States also have questioned the statutory authority upon which the land-into-trust process is based. Tribes are concerned that states may not consider their historical loss of land or the merits of a particular acquisition. Other concerns relate to the standards and processes that are applied to proponents and opponents of land acquisitions, as well as the criteria used by the department's Bureau of Indian Affairs (BIA) in making trust land decisions. The keys to making the land-into-trust process more acceptable and predictable for all interested parties is to ensure that the process and decisions involve sufficient consultation among affected tribes, state and local governments, and clear federal guidelines. 2004, 8 pages.

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