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General Memorandum 16-047

General Memorandum 16-047
BIA Issues Revised Fee-to-Trust Handbook

On June 28, 2016, the Bureau of Indian Affairs (BIA) issued a revised Fee-to-Trust Handbook (Revised Handbook). The Revised Handbook replaces a recently revised Fee-to-Trust Handbook issued on May 16, 2016. The Revised Handbook is intended to improve the land-into-trust process and to provide new guidance for the reservation proclamation process. The Revised Handbook is also intended for use by BIA staff responsible for reviewing trust applications, rather than for use in the preparation of trust applications. However, it provides useful insight to tribes regarding the BIA review process.

The Revised Handbook includes significant revisions to land title requirements in response to amendments to 25 C.F.R. § 151.13 published on May 16, 2016. Previously, § 151.13 required fee-to-trust applicants to furnish title evidence to the Department of the Interior that met the "Standards for the Preparation of Title Evidence in Land Acquisitions by the United States," issued by the United States Department of Justice (DOJ Title Standards). The amendments to § 151.13 eliminate this requirement and replace it with a requirement to now furnish a deed evidencing the applicant's ownership, or a written sales contract or written statement from the property transferor indicating that the applicant will have ownership. In addition, the applicant must furnish either: (1) a current title insurance commitment; or (2) a policy of title insurance issued at the time of the applicant's or current owner's acquisition of the interest and an abstract dating from the time the interest was acquired. The amendments to § 151.13, however, do not preclude applicants from otherwise having title confirmed pursuant to the DOJ Title Standards. The Revised Handbook provides updated procedures consistent with the amendments to § 151.13, including the elimination of the absolute requirement for reliance on the DOJ Title Standards.

The Revised Handbook contains two new sections regarding the reservation proclamation process, replacing previously issued BIA internal guidelines for submitting reservation proclamation requests. The first section provides guidance to the BIA on processing reservation proclamation requests for land which is already held in trust. The second section allows tribes to simultaneously submit both a fee-to-trust request and a reservation proclamation request for land which is not currently held in trust. However, the reservation proclamation will not be completed until the land is acquired in trust. Prior to this addition, tribes were not permitted to submit a reservation proclamation request until after the land was acquired in trust.

Further notable revisions to the Revised Handbook include: (1) the addition of language requiring the removal of liens, infirmities and encumbrances, which make title to the land unmarketable; (2) revisions to the requirements for a Certificate of Inspection and Possession, which may be prepared by either a BIA or other federal employee or a tribal employee or contractor; (3) the addition of language requiring the BIA to submit additional documents and information to the Solicitor's Office in conjunction with the BIA's written request for a preliminary title opinion; and (4) the addition of information describing the expiration of the 30 day appeal period applicable to certain parties for trust acquisition decisions made by BIA officials, as opposed to those made by the Assistant Secretary, Indian Affairs.

The Revised Handbook is available here: http://www.indianaffairs.gov/cs/groups/xraca/documents/text/idc1-024504.pdf

Please let us know if we may provide additional information or assistance regarding the revised BIA Fee-to-Trust Handbook.

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Inquiries may be directed to:
William Norman (wnorman@hobbsstraus.com) or 405-602-942
Susan Work (swork@hobbsstraus.com) or 405-602-9425
Christopher Cantrell (ccantrell@hobbsstraus.com) or 505-702-8919

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