Since the end of the Cold War, the United States Department of Defense has been engaged in a process of downsizing the military bases it uses to support defense objectives.1 This process is controlled by the Base Realignment and Closure Act (BRAC) and has already resulted in the closure of a large number of bases in the United States through BRAC 88, BRAC 91, BRAC 93, and BRAC 95.
The authorizing legislation for the BRAC process has been amended several times to address different social, economic and environmental problems, such as future economic development, homelessness, local economic diversification, and transfer of property prior to completion of all environmental remediation efforts. To date, however, BRAC authorizing legislation has not been amended to address specifically Indian interests, both in the BRAC process generally and more specifically in acquiring the real property dispersed through the BRAC process, referred to as BRAC real property.2
Indian tribes3 may play an important role in the BRAC process, but the transfer process for base real property to Indian tribes can be complicated. Tribes may seek to acquire base real property at both the excess (federal agency) and the surplus (general public) levels. In each case, different acquisition regulations and standards apply. Further, tribes may retain title to BRAC real property in fee simple status or may seek to acquire it in trust; again, different regulations and standards apply to each case.
This Article discusses legal issues associated with involvement of Indian tribes in the BRAC process, particularly excess property transfers and trust land acquisition. The Article also briefly discusses the issues of surplus acquisition of BRAC real property and tribal acquisition of real property in fee simple status. Part I gives a brief overview of the BRAC process for base closure and property disposal. Part II provides an overview of the fee-to-trust process administered by the Bureau of Indian Affairs (BIA). Part III briefly examines how these two processes intersect under the current regulations and recommends that both the BRAC and fee-to-trust regulations be revised to make future trust acquisition of BRAC real property less complicated and time-consuming for Indian tribes.