Determining trust or restricted status involves Department of the Interior (DOI or department) records. Challenges to Taking Land into Trust

		Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak: Six-Year Statute of Limitations Applies to Land-into-Trust Decisions

Until the U.S. Supreme Court's June 2012 decision in Match-E-Be - Nash-She-Wish Band of Pottawatomi Indians v. Patchak , there was an assumption that U.S. sovereign immunity under the Quiet Title Act barred challenges to any decision of the Secretary to take land into trust once title has passed to the United States. Moreover, the Court held that the Federal Administrative Procedure Act's judicial review provision permitted suits within its six-year statute of limitations period. Decisions by the SOI or the Assistant Secretary of the Interior for Indian Affairs (AS-IA) are final agency actions. Big Lagoon Rancheria v. California: Challenge to Validity of Trust Acquisition for a Tribe Not Recognized in 1934 Is Not Subject to Collateral Attack Decades Later

In a June 4, 2015, en banc decision, in Big Lagoon Rancheria v. California, the U.S. Court of Appeals for the Ninth Circuit held that a claim that land taken into trust for a tribe not recognized in 1934 may not be raised decades after the trust acquisition in a collateral attack on the trust acquisition. One exception, sometimes referred to as a two-part determination, permits gaming on lands newly taken into trust with the consent of the governor of the state in which the land is located after the SOI (1) consults with state and local officials, including officials of other tribes; (2) determines "that a gaming establishment on the newly acquired lands would be in the best interest of the Indian tribe and its members"; and (3) determines that gaming "would not be detrimental to the surrounding community." 2. 4. 5. A tribe may have gaming on lands representing "the restoration of lands for an Indian tribe that is restored to Federal recognition." Contiguous Lands

IGRA exempts newly acquired trust lands "within and contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988." The rule elaborates on this by setting forth three methods by which land resulting from a land claim may qualify for this exception: (1) the land may have been the subject of land claim settlement legislation; (2) the land may have been acquired under the settlement of a land claim executed by the parties, including the United States, which returns some land to the tribe and "extinguishes or resolves with finality the claims regarding the land returned"; or (3) the land may have been acquired under the settlement of a land claim not executed by the United States but entered into as a final court order or "an enforceable agreement that in either case predates October 17, 1988 and resolves or extinguishes with finality the land claim at issue." DOI Review of the Standards for Taking Land into Trust for Gaming and Determination to Rescind the Guidance

DOI conducted consultation sessions with tribal leaders throughout the United States focusing on the need for the Guidance; whether any of the provisions of the regulation on qualifying newly acquired land for gaming, 25 C.F.R., Part 292, Subparts A and C, as previously promulgated, should be revised; and whether compliance with the land acquisition regulation, 25 C.F.R., Part 151, should come prior to the two-part determination for taking off-reservation land into trust. Two of these bills were enacted:
Section 2601(h)(4)(A) of P.L. 111-11 , 123 Stat. 991, 1115, transfers certain federal land to the SOI to be held in trust for the benefit of the Washoe Tribe and states that such land "shall not be eligible, or considered to have been taken into trust, for class II or class III gaming (as those terms are defined in section 4 of the Indian Gaming Regulatory Act (25 U.S.C. P.L. 111-323 prohibits gaming on federal land transferred to the Hoh Tribe. 112-97 , relating to land to be taken into trust for the Quileute Indian Tribe in the state of Washington, and P.L. 112-212 , transferring certain federal land in trust for the Bridgeport Indian Colony. 113th Congress

P.L. 113-179 , the Gun Lake Trust Land Reaffirmation Act, ratified the DOI's May 15, 2005, trust acquisition of the land at issue in Match-E-Be-Nash-She-Wish Band of-Pottawatomi Indians v. Patchak and required that any federal court action relating to that land should be dismissed. 113-134 , providing for the trust acquisition of certain federal land for the Pascua Yaqui Tribe of Arizona; and P.L. 113-127 , taking certain Bureau of Land Management land into trust for the benefit of the Shingle Springs Band of Miwok Indians and prohibiting IGRA class II and class III gaming on that land. It would have applied to three of the exceptions to IGRA's general prohibition of gaming on lands acquired after IGRA's enactment: land claim settlement, initial reservation for a newly acknowledged tribe, or restoration of lands for a newly restored tribe. 114th Congress

Two bills enacted in the 114 th Congress contained gaming prohibitions in connection with land-into-trust acquisitions: P.L. 114-69 , the Albuquerque Indian School Land Transfer Act, requiring the SOI to take certain land into trust for 19 Pueblos and specifying that "[n]o class I gaming, class II gaming, or class III gaming ... shall be carried out on the Federal land taken into trust" and P.L. H.R.
The Indian Gaming Regulatory Act (IGRA) ( P.L. 100-497 ) generally prohibits gaming on lands acquired for Indians in trust by the Secretary of the Interior (SOI or Secretary) after October 17, 1988. The exceptions, however, raise the possibility of Indian gaming proposals for locations presently unconnected with an Indian tribe. Among the exceptions are land (1) acquired after the SOI determines acquisition to be in the best interest of the tribe and not detrimental to the local community and the governor of the state concurs; (2) acquired for tribes that had no reservation on the date of enactment of IGRA; (3) acquired as part of a land claim settlement; (4) acquired as part of an initial reservation for a newly recognized tribe; and (5) acquired as part of the restoration of lands for a tribe restored to federal recognition.
An implementing regulation was issued on May 20, 2009. It specifies the standards to be satisfied by tribes seeking to conduct gaming on lands acquired after October 17, 1988. The regulation includes limiting definitions of some of the statutory terms and considerable specificity in the documentation required for tribal applications. During the latter half of 2010, the Department of the Interior (DOI) conducted a series of consultation sessions with Indian tribes focusing on whether the implementing regulation should be revised. On June 13, 2011, DOI determined the regulation to be satisfactory and withdrew earlier departmental guidance, which had been issued before the regulation had become final. The guidance addressed how DOI handled tribal applications for off-reservation land acquisitions for gaming. It had elaborate requirements for a tribe to satisfy with respect to applications for gaming facilities not within commutable distances from the tribe's reservation.
A June 2012 U.S. Supreme Court decision, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , appears to have increased the possibility for challenges to secretarial decisions to take land into trust by (1) ruling that individuals who are potentially harmed by the proposed use of land taken into trust have standing under the Federal Administrative Procedure Act to bring suit, and (2) holding that suits to challenge the legality of a DOI decision to take land into trust that do not claim title to the land are not precluded by the Quiet Title Act, which contains a waiver of sovereign immunity for quiet title actions against the United States, except for suits involving Indian title.
Since the Patchak decision, there have been two noteworthy developments. First, the Bureau of Indian Affairs revised the land acquisition regulations to specify that, once there is final agency action, land is to be taken into trust immediately without a 30-day waiting period. Second, a June 4, 2015, en banc decision of a federal appellate court, Big Lagoon Rancheria v. California , 789 F. 3d 947 (9 th Cir. 2015), held that a challenge to the validity of a trust acquisition must be brought within the Administrative Procedure Act's six-year statute of limitations.
Nine laws have been enacted in recent Congresses with gaming prohibitions in connection with specific lands being taken into trust: (1) P.L. 114-69 , the Albuquerque Indian School Land Transfer Act, which provides for trust acquisitions for 19 Pueblos and specifies that class I, class II, or class III gaming may not take place on the acquired trust land; (2) P.L. 114-181 , which transfers in trust "for non-gaming purposes" certain federal Bureau of Land Management land in California for the benefit of the Susanville Indian Ranchera; (3) P.L. 113-179 , the Gun Lake Trust Land Reaffirmation Act, which ratified the DOI's May 15, 2005, trust acquisition of the land at issue in Match-E-Be-Nash-She-Wish Band of-Pottawatomi Indians v. Patchak , and required that any federal court action relating to that land should be dismissed; (4) P.L. 113-134 , which provides for the trust acquisition of certain federal land for the Pascua Yaqui Tribe of Arizona; (5) P.L. 113-127 , which provides for taking certain Bureau of Land Management land into trust for the benefit of the Shingle Springs Band of Miwok Indians and prohibiting IGRA class II and class III gaming on the land; (6) P.L. 112-97 , which authorizes the acquisition of certain land for the Quileute Indian Tribe in the state of Washington; (7) P.L. 112-212 , which declares certain federal land to be held in trust for the Bridgeport Indian Colony; (8) Section 2601(h)(4)(A) of P.L. 111-11 , which prohibits class II and class III gaming on land that the provision transfers to be held in trust for the Washoe Tribe; and (9) P.L. 111-323 , which prohibits gaming on federal land transferred to the Hoh Tribe.
Legislation proposed in the 114 h Congress includes two bills, S. 732 and H.R. 249 , which would amend the Indian Reorganization Act to make all federally recognized Indian tribes eligible for trust land acquisition. There are also a number of bills providing federal recognition of or land acquisitions for particular tribes with provisions restricting IGRA gaming for those tribes or on those lands.