Section 5, Indian Trust Land Acquisitions, and Secretarial Authority

G. William “Bill” Rice. With introduction written by Robert N. Clinton.

At least since the Termination Era of the 1950s, the federal Bureau of Indian Affairs (BIA) has drawn a distinction for purposes of taking tribal land into federal trust status between so-called mandatory acquisitions and claimed discretionary takings. Some statutes, usually tribally specific statutes contained in settlement legislation, such as the Gila Bend Indian Reservation Lands Replacement Act of 1986, require the Secretary of the Interior (Secretary) to take land into trust for designated tribes, often when certain conditions are satisfied. Since such statutes vest no discretion in the Secretary to take such action, these trust acquisitions are often known as mandatory takings. By contrast, the BIA has long taken the position that the only general, i.e. non-tribally-specific, statute authorizing the Secretary to take land into trust, § 5 of the Indian Reorganization Act of 1934, granted the Secretary discretion as to whether to take tribal and individual Indian law into federal trust status, the so-called discretionary takings. Remarks by the late Professor G. William “Bill” Rice published for the first time below challenge both this distinction and the very notion that the Secretary has any discretion or even decisional authority in the matter, at least where a tribe acquires, by purchase, bequest, gift or otherwise, new land for itself.

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