GM 13-104

BIA Releases "Patchak Patch": Final Rule on Land-Into-Trust Appeals

On November 13, 2013, the Bureau of Indian Affairs (BIA) issued the Final Rule amending its land-into-trust regulations at 25 C.F.R. Part 151 in response to the Supreme Court’s decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S.Ct. 2199 (2012) (the “Patchak” decision). In Patchak, the Supreme Court held that the Quiet Title Act did not prevent challenges to the trust status of land after lands had been taken into trust. Prior to that decision, the prevailing view was that the Quiet Title Act precluded judicial review of decisions by the United States to take land into trust after the land had been taken into trust. As a result in 1996, the Department of Interior (Department) had revised its Part 151 regulations to provide potential challengers a 30-day window to bring a lawsuit after the Department decided to take land into trust but before actually taking the land into trust.

In Patchak, the Supreme Court held that the Quiet Title Act was no bar to bringing a challenge to a fee-to-trust decision after lands had been taken into trust when the challenger did not actually claim title to the land at issue. The Court held that fee-to-trust decisions were subject to challenges under the Administrative Procedure Act (APA), which raised the concern that land-into-trust decisions could be challenged for up to six years after lands had been taken into trust.

Hence, after the Patchak decision, there is no longer any need for the Department to delay taking land into trust for 30 days. The Final Rule is designed to reflect this and amends the Part 151 regulations so as to delete the 30-day waiting period. The Final Rule provides that the Secretary shall complete the trust acquisition immediately after the decision to take land in trust is final for the Department.

The Final Rule will differentiate between two types of land-into-trust decisions: those made at the Secretary or Assistant Secretary level, and those made by other BIA officials (e.g., Area Directors). Decisions made by the Assistant Secretary are final as of the date of decision. When the Assistant Secretary approves an application, the land will be taken in trust immediately at that time, and any challengers will have the right to go to federal court to sue under the APA. At a tribal leader meeting on November 12, 2013, Assistant Secretary – Indian Affairs Kevin Washburn indicated that he would decide appeals involving any decisions appealed to the Interior Board of Indian Appeals (IBIA) involving more than 200 acres.

Decisions made by other BIA officials are not final agency action that can be appealed in federal court until all administrative remedies have been exhausted or the time for filing a notice of appeal has passed and no appeal has been filed. Under the Final Rule, a decision made by other BIA officials must be challenged, if at all, within 30 days by filing an appeal to the IBIA. If there is no challenger within that time, the decision becomes final, the land is then taken into trust, and any challenge after the
30-day period is deemed to be improper due to a failure to exhaust administrative remedies. If a challenger does appeal within the 30-day period, the normal IBIA process will apply. If the challenger is successful, the land will not be taken into trust. If the challenger is not successful, then the land will be taken into trust immediately after the IBIA process is complete. Only then will the challenger have the right to challenge the decision in federal court under the APA.

The BIA accepted many suggestions submitted by tribes, improving the rule from its proposed form. However, many changes suggested that would limit the time the BIA can take to decide appeals, to further improve or circumvent the IBIA process, or to otherwise accelerate the land-into-trust process were rejected. The BIA did not accept any of the suggestions by the many state and local governments or non-Indian advocacy groups who responded disfavorably to the Rule.

The Rule will go into effect on December 13, 2013, and may be found at:

If we may be of further assistance regarding the land-into-trust process or if you would like further information about this rule, please contact us at the information below.