Last year’s decisive (8-1) decision by the United States Supreme Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) (“Patchak”) appeared to be a major blow to tribal gaming and other fee-to-trust acquisitions. Patchak seemed to open up challenges to fee-to-trust transfers to a broader group of plaintiffs and significantly extend the time for filing such suits. The Court’s decision in Patchak, when combined with the Supreme Court’s 2009 decision in Carcieri v. Salazar, 129 S. Ct. 1058, raises several complex issues, including (1) whether the litigation floodgates were opened to question newly acquired Indian land trust acquisitions, and (2) whether the trust transfers would remain in limbo during the pendency of litigation. Most gaming observers at the time agreed that Patchak would certainly delay development on newly acquired tribal lands.

The Bureau of Indian Affairs (“BIA”) is proposing a major revision to its regulations governing applications to acquire land in trust under 25 C.F.R. Part 151, referred to by many as the “Patchak Patch.” These proposed regulations are intended to significantly limit the uncertainties created by Patchak by adding administrative obstacles for potential litigants and expediting trust acquisitions. As the Assistant Secretary of Indian Affairs, Kevin Washburn, recently noted, the proposed Patchak Patch is intended to “protect tribes now”.

The revised regulatory provisions will modify the existing regulations for the Department of Interior (“Department”) in several key respects, including:

  • Prior to the ruling in Patchak, the Secretary of Interior would publish a notice of a final decision to take land into trust for a tribe at least 30 days before the date of the transfer. If any litigation was commenced within this 30-day window, the Department’s internal policies required it to “self-stay” any fee-to-trust transfers until resolution of the pending litigation. The BIA’s proposed rule eliminates this 30-day waiting period for completing trust acquisitions.
  • The proposed rule requires interested parties, as that term is currently defined in the existing BIA regulations, to make themselves known to BIA official in writing in order to require BIA official to provide written notice to them. Parties must make themselves known in writing at each stage of the administrative review.
  • The revised rule will require that all unknown interested parties receive notice of the decision and right to appeal, if any, through publication in a newspaper of general circulation serving the affected area.
  • Most importantly, when BIA official issues the decision to acquire land in trust, interested parties must first exhaust administrative remedies available (as set forth in 25 C.F.R. Part 2) within 30 days before seeking judicial review under the Administrative Procedures Act (“APA”). If interested parties who have received notice fail to file an administrative appeal within that 30-day timeframe, such parties are precluded from seeking any judicial review available under the APA because they failed to exhaust administrative remedies.
  • Unlike decisions made by BIA officials, there are no administrative remedies to exhaust when decisions are made directly by the Assistant Secretary of Indian Affairs. Such decisions are final for the Department.

These proposed regulations were published on May 29, 2013, in the Federal Register. Comments must be received by July 29, 2013.