Fee-to-Trust Rule Finalized

By: Gabriela Rios | Attorney | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Earlier this week, the Bureau of Indian Affairs (BIA) announced its Final Rule regarding title evidence for trust land acquisitions. Although it was originally intended to go into effect on April 15, 2016, as described in Trust Lands an Easier Target for Tribes, it extended the postponed the effective date to May 16, 2016 to review comments and make technical revisions.

The final rule, available here, clarifies the text of the proposed rule and eliminates unnecessary redundancies. Most commentators supported the rule, but some felt that the current Department of Justice Standards (DOJ) are necessary to protect the public and protect against conflicts of interest. The BIA ultimately found the final rule to provide “sufficient standards to protect the United States.”

The final rule clarifies that written evidence of title includes the applicant’s deed or, if the applicant does not have title, the transferors’ deed and a written statement that it will transfer title to the United States on behalf of the applicant. It also deletes the requirements from the proposed rule regarding the need to provide written evidence of how the applicant or the current owner acquired title, determining that this requirement was redundant of other requirements. The BIA has also updated the Fee-to-Trust Handbook, available here, to reflect the new changes.

Only time will tell if the new rule has a significant positive impact on the fee-to-trust review process, but for now we will remain cautiously optimistic.

Gabriela is an attorney with the Native American Law Practice Group and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and was recently admitted to the State Bar of California.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

 

Trust Lands an Easier Target for Tribes

By: Gabriela Rios | Law Clerk | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

This week, the Bureau of Indian Affairs (BIA) announced a proposed change to the fee-to-trust acquisition process. Title Evidence for Trust Land Acquisitions, 81 Fed. Reg. 10,477 (Mar. 1, 2016).  The current rule requires that an applicant provide title evidence meeting the Standards for the Preparation of Title Evidence in Land Acquisition by the United States (issued by the Department of Justice). These more stringent requirements can significantly delay or in some situations foreclose the possibility of putting land into trust. The new rule is meant to provide a “more targeted evidence standard” and should provide more certainty for tribes in the fee-to-trust application process.

Proposed to be effective April 15, 2016, applicants seeking to put land into trust will only be required to provide: (1) evidence that the applicant has ownership, or will have ownership, of title and how title was acquired, as well as either (1) a current titled insurance commitment; or (2) the policy of title insurance issued at the time of the applicant’s or current owner’s acquisition of the interest and abstract dating from the time the interest was acquired. This rule will apply to new trust applicants and pending applications where a Preliminary Title Opinion has not yet been prepared by the Office of the Solicitor as of the effective date. Comments on the rule change will be accepted until March 31, 2016.

Gabriela is a citizen of the Cahuilla Band of Indians and currently clerking for Procopio. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is awaiting July bar results.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

California Legislature Enacts Tribal Court Civil Money Judgment Act

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

California has 109 federally recognized tribal governments and millions of tribal citizens living within the state, according to the Judicial Council of California. The Bureau of Indian Affairs lists more than 566 tribal governments nationwide in the 2014 Tribal Entities List and with changes in the federal acknowledgement process – this number could grow considerably in coming years.

Each of these Nations is a sovereign and operates as a foreign nation in many respects. If a party is seeking to enforce a judgment in a tribal court, they previously had to do so under the Uniform Foreign-Country Money Judgments Recognition Act. The act includes within the definition of “foreign-country judgment” a judgment by any Indian tribe recognized by the government of the United States.

There has been a significant overhaul to this bill in the Tribal Court Civil Money Judgment Act. The bill was signed into law on August 22, 2014 by California Governor Jerry Brown. It was then entered by Secretary of State as Chapter 243, Statutes of 2014.

This bill, until January 1, 2018, exempts tribal judgments from the Uniform Foreign-Country Money Judgments Recognition Act, and would instead enact the Tribal Court Civil Money Judgment Act. The new act provides for the enforceability of tribal court money judgments in California.

The act prescribes a procedure for applying for recognition and entry of a judgment based on a tribal court money judgment, the procedure and grounds for objecting to the entry of judgment and the bases upon which the court may refuse to enter the judgment or grant a stay of enforcement.

One of the best provisions acknowledging tribal sovereignty is that “[n]othing in this title shall be deemed or construed to expand or limit the jurisdiction of either the state or any Indian tribe.”

For more information:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB406

https://www.govtrack.us/states/ca/bills/2013/sb406

http://www.courts.ca.gov/documents/Tribal-CourtCiviljudgmentFactSheet.pdf

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.