Trust Lands an Easier Target for Tribes

By: Gabriela Rios | Law Clerk |
Theodore J. Griswold | Partner |

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 Griswold

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

The US Department of Justice Sides With Tulalip Tribes in Tax Dispute with State and County

By:      Eric D. Swenson | Senior Counsel |
Theodore J. Griswold | Partner |

Over a year ago, in January 2014, we reported on the possible tax benefits that could arise to both Indian Tribes and private parties that lease Tribal land for business purposes as a result of the issuance in 2013 of the final federal regulations by the US Government under 25 CFR 162.017 (the “Lease Regulations”). See the article, including more detail on the Lease Regulations.

By way of background, although many state and local governments believe that they still have the right to tax the leasehold interests that non-Indians may hold in Tribal lands, federal regulations that went into effect in 2013 (the Lease Regulations) clarify that such taxation, as well as many other charges by state and local governments, is prohibited under federal law. More specifically, the Lease Regulations provide that state and local governments may not impose their taxes on property (e.g., no property taxes), activities (e.g., no sales and use tax), or interests associated with leased Indian trust or restricted land, without regard to whether the party leasing the Tribal land is Native or non-Native.

One tribal government using the Lease Regulations to challenge such taxes imposed on the tribe’s land is the Tulalip Tribes’ government in Washington State.

On June 12, 2015, the Tulalip Tribes filed a Complaint for Declaratory and Injunctive Relief (the “Complaint”) against, among others, the Washington Department of Revenue (who collects sales and use taxes and Business & Occupation taxes) and the Snohomish County Assessor (who collects property taxes) (the “Taxing Authorities”). In the Complaint, the Tulalip Tribes allege that the Taxing Authorities are unlawfully imposing taxes against the Quil Ceda Village which is a partially private commercial enterprise located on the Tulalip Tribes’ land, in violation, of among other things, the Lease Regulations.

Although a few other unrelated tribal governments are currently using the Lease Regulations to challenge municipalities that have historically sought to tax lease activities on their tribal lands, the Tulalip Tribes received a seemingly very favorable boost when on August 4, 2015, the US Department of Justice (“DOJ”) filed a 14 – page Motion to Intervene (the “DOJ Motion”) and 26 – page Complaint in Intervention intervening on behalf of the Tulalip Tribes in the lawsuit against the Taxing Authorities.

In the DOJ Motion, the DOJ alleges that the Taxing Authorities “taxation of economic activities occurring in Quil Ceda Village conflicts with the principles of tribal sovereignty and the exclusive role of the United States, as well as the federal goals of tribal self-determination and self-sufficiency.” The DOJ Motion goes on to say that the disposition of this case involving the Tulalip Tribes involves a wide range of federal statues, treaties, and regulations, including the Lease Regulations.

If the DOJ is successful and the United States District Court, Western District of Washington at Seattle grants the DOJ Motion, the Tulalip Tribes and their attorneys will effectively be fighting this tax battle against the Taxing Authorities with the added firepower of the DOJ attorneys and the full backing of the US Government. This support exponentially strengthens the Tulalip Tribes’ position against the Taxing Authorities, and will benefit other tribal governments currently dealing with state and county taxing authorities who discounted the intent of federal statutes, treaties, and the Lease Regulations. In short, if the DOJ Motion is granted, allowing the DOJ attorneys involvement, it will be a gigantic boost for the Indian Country.

This message is being sent clearly to states and counties. Just this week, the Department of Interior followed this action with the approval of HEARTH Act regulations for the Seminole Tribe of Florida which will preempt state and local taxation, explaining that:

“The strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department’s leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress’s overarching intent was to ‘‘allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.’’ 158 Cong. Rec. H. 2682 (May 15, 2012).’’ See entire Notice here.

Eric is a Senior Counsel in the tax team at Procopio as well as an active member of Procopio’s Native American Practice Group. His practice encompasses both tax controversy and tax planning. Eric has represented corporations, individual, and nonprofits before the various tax authorities, including the Internal Revenue Service, Franchise Tax Board and California Board of Equalization

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

Attorney General’s Indian Country Fellowship

By: Stephanie Conduff | Law Clerk |
Theodore J. Griswold | Partner |

The Department of Justice has created an opportunity in Indian Country worthy of serious praise. Prosecutors have the best shot at helping people. They are positioned to assist our people into more empowering places – restorative justice programs – including federal court programs for veterans.  For example, the U.S. District Court in Roanoke, Virginia, began its Veterans Treatment Court in spring 2011 when only one other existed at the federal level, in Utah.

We need to get Native people into this prestigious fellowship to protect our citizens!

Applications are being accepted for an Indian Country Fellowship that “is designed to create a new pipeline of legal talent with expertise and deep experience in federal Indian law, tribal law, and Indian Country issues that can be deployed in creative ways to build tribal capacity, combat violent crime, and bolster public safety in Indian Country jurisdictions.”

The Indian Country Fellowship is open to all eligible Honors Program applicants, including current law students graduating in the coming academic year.  The 2014-2015 Honors Program application opens on July 31st and closes on September 2nd.

Imagine … this time next year you could be in Oklahoma, Mississippi, Minnesota, Colorado, South Dakota, North Dakota, Nebraska or Arizona! And what is even more amazing than that… you could be working in sovereign nations including the: Mississippi Band of Choctaw Indians, Southern Ute Indian Tribe, Navajo Nation, Santee Sioux Tribe, Thlopthlocco Tribal Town, Chickasaw Nation or Cherokee Nation.

With VAWA implementation upon us – this is an incredible time to experience both tribal and federal justice systems.


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