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SURVEY
OF
Field Solicitor U.S. Department of the Interior Twin Cities, Minnesota Bureau
of Indian Affairs Realty Training
CONTENTS
2. Pokagon Band of Potawatomi Indians 3. Lac Vieux Desert Band of Lake Superior Chippewa Indians 4. Little Traverse Bay Bands of Odawa Indians and Little River Band of Ottawa Indians 5. Menominee Indian Tribe 6. Ponca Tribe of Nebraska 7. Spirit Lake Tribe of North Dakota 8. White Earth Band of Chippewa Indians 9. Cheyenne River Sioux Tribe 10. Bay Mills Indian Community and Sault Ste Marie Tribe of Chippewa Indians II. Trust Responsibility in Land Transactions III. Trust Land Acquisition Process Conclusion
"The Rules of Acquisition"
In the last several years the BIA's land acquisition decisions have come under a heightened level of scrutiny and been subjected to administrative and judicial challenge more than ever before. The BIA must give careful consideration to its land acquisition decisions and must support those decisions with a well documented administrative record as well as drafting a decision which shows that the BIA considered all of the appropriate acquisition criteria and includes the facts supporting its finding on each criteria. This survey of the body of decisions of the Interior Board of Indian Appeals (IBIA) has been updated since the July, 2002 realty training session and was prepared to assist you with drafting your decisions. It is hoped that it will provide you with guidance on how to address some of the more common issues which arise. Please bear in mind that the decisions cited in the following material are distilled to the particular rule of law which was deemed most noteworthy for the purposes of this article. The rules noted for each case are very much fact-driven and fact-specific. The cases were noted in order to make you aware that they exist. If you see a case which appears to enunciate a principle of law which may be applicable to a decision pending before you, please follow it up with a discussion with your local Solicitor's Office or read the case in its entirety. When internet access has been restored and access restrictions are lifted, all IBIA decisions (old and new) can be located at http://www.doi.gov/oha/ibiaindex.htm. A recommended search engine for IBIA decisions is http://www.google.com. The decisions are also ordinarily available on Westlaw or Lexis, but are not current in those data bases due to restrictions imposed by decisions in trust litigation in which the Department is a party. In the meantime, the decisions are being posted at the following site and are searchable by Google: http://www.ibiadecisions.com. I. AUTHORITY TO ACQUIRE LAND IN TRUST FOR INDIANS A. Discretionary/Mandatory Any acquisition of land by the United States must be authorized by statute. 41 U.S.C. § 14. The authority to approve title for property acquired by the United States is reserved to the Attorney General or his delegated representative. 40 U.S.C. § 255. The Attorney General has delegated authority to examine and approve title to property acquired by the Department of the Interior to the Solicitor's Office. The general source of authority to acquire land for Indians (both tribes and individual Indians) is the Indian Reorganization Act (IRA) of 1934, 25 U.S.C. § 465. The authority to acquire land for Indians under the IRA was extended to tribes which did not adopt the IRA by the Indian Land Consolidation Act (ILCA), 25 U.S.C. § 2202. Both the IRA and ILCA provide that any land acquired under authority of those statutes shall be acquired in trust and shall be exempt from Federal, State and local taxation. The IRA and ILCA give the Secretary of the Interior the discretion to acquire land for Indians. They do not require the Secretary to acquire any specific tract of land, any specific amount of land, or to acquire any land at all. Indian tribes and individuals have no legal right under 25 U.S.C. § 465 to have land acquired in trust for their benefit. The determination whether to acquire land is committed to the discretion of the Secretary of the Interior. Dan Van Mechelen v. Portland Area Director, 35 IBIA 122 (2000); Naomi Haikey Eades v. Muskogee Area Director, 17 IBIA 198 (1989). It is important to know what acquisition authority is being used for any particular trust acquisition and to carefully comply with its terms. Confederated Salish and Kootenai Tribes of the Flathead Nation v. Northwest Regional Director, 35 IBIA 226 (2000); Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantations v. Eastern Area Director, 35 IBIA 93 (2000). The propriety of any trust acquisition will be measured against the statutory authorization. As may be noted from the list of specific authorities noted below, almost all have slightly different terms, restrictions and conditions. Further, it is important to distinguish between discretionary and mandatory acquisition authority because the acquisition process is slightly different depending on whether the acquisition is based on mandatory or discretionary authority. See 25 C.F.R. § 151.10. If you are unable to determine whether the authority which is proposed to be used for any particular acquisition is mandatory or discretionary, please consult with the Field Solicitor's Office regarding it. By memorandum dated April 17, 2002 the Deputy Commissioner of Indian Affairs issued general guidance to the BIA regarding processing mandatory acquisitions and advising it to seek an opinion from the appropriate Solicitor's Office regarding whether acquisition authority is mandatory or discretionary. The memorandum further directs the BIA to notify the "tribe" of the approval of its request and to give appeal rights in the notice in accordance with 25 C.F.R. Part 2. The directive should read that notice of the decision and appeal rights should be given to "interested parties," since the Board has previously held that the BIA must issue a written decision when it decides to acquire land under mandatory authority and give notice of its decision to interested parties. State of South Dakota and Mellette County, South Dakota v. Aberdeen Area Director, 35 IBIA 16 (2000). In determining whether a statute provides mandatory acquisition authority the well-established rule of statutory construction which provides that "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit" should be applied. Todd County, South Dakota v. Aberdeen Area Director, 33 IBIA 110, 113 (1999). The BIA's legal conclusion concerning statutory authority for trust acquisitions is a legal conclusion subject to full review by the Board. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Anadarko Area Director, 28 IBIA 169, 178 (1995). B. Specific Acquisition Authority Several statutes provide authority to acquire land for specific Indian tribes and may make such authority mandatory. When used as the authority for a proposed acquisition, such authority should be examined closely and great care given to precise compliance with its terms. As may be noted below, the terms of each statute which authorizes the acquisition of land for specific tribes varies slightly. Several of the statutes noted below create reservation status for the land acquired pursuant to that authority. The general rule is that lands acquired within a bounded reservation are deemed to be part of that reservation. Lands acquired outside of a bounded reservation or where the reservation is composed of scattered tracts do not automatically become part of the reservation unless proclaimed reservation by the Secretary of the Interior pursuant to 25 U.S.C. § 467. • The Isolated Tracts Act, Pub. L. No. 88-196, 77 Stat. 349 (Dec. 11, 1963), amended by Pub. L. No. 91-115, 83 Stat. 190 (Nov. 10, 1969) provides authority for the Rosebud Sioux Tribe to mortgage or sell isolated tracts in Tripp, Gregory, and Lyman Counties and acquire land in an approved consolidation area in Todd and Mellette Counties. The Secretary of the Interior is mandated to acquire such lands in trust for the Tribe. The State of South Dakota, Mellette and Todd Counties challenged whether the Isolated Tracts Act mandated that the land be acquired in trust and the Interior Board of Indian Appeals (IBIA) affirmed the BIA's interpretation of the Act as mandatory. Mellette County, South Dakota and State of South Dakota v. Great Plains Regional Director, 37 IBIA 301 (2002); State of South Dakota and Mellette County v. Aberdeen Area Director, 35 IBIA 16 (2000); Todd County, South Dakota v. Aberdeen Area Director, 33 IBIA 110 (1999). • The act restoring recognition to the Pokagon Band of Potawatomi Indians, 25 U.S.C. §1300j-5, provides authority for the Secretary to acquire land for the Band. The Band has entered an agreement with the Secretary identifying the terms under which the United States will acquire land for the Band. The act specifies that any land acquired in trust for the Band shall become part of its reservation. The terms of this act are currently being litigated in TOMAC v. Norton, et al., (D.D.C.) No. 1:01CV00398. • The act restoring recognition to the Lac Vieux Desert Band of Lake Superior Chippewa Indians, 25 U.S.C. § 1300h-5, authorizes the Keweenaw Bay Indian Community to convey the lands it held in Gogebic County, Michigan to the United States in trust for the Lac Vieux Desert Band as well as authorizing the Secretary to acquire other land for the Band in accordance with the provisions of the IRA. The restoration act specifically provides that any other lands acquired in trust for the Band in Gogebic County shall become part of the Band's reservation. • The act restoring recognition to the Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians, 25 U.S.C. § 1300k, et seq., specifies that the Secretary of the Interior shall acquire lands for the Little Traverse Band in Emmet and Charlevoix Counties, Michigan; if, at the time of acquisition, there are no adverse legal claims on the property including outstanding liens, mortgages or taxes owed. 25 U.S.C. § 1300k-4(a). The act further specifies that the Secretary shall acquire land for the Little River Band in Manistee and Mason Counties, Michigan, subject to the same conditions. 25 U.S.C. § 1300k-4(b). The Secretary may acquire other lands for the Bands pursuant to the authority granted in the IRA. Lands acquired for the Bands under this section become part of each Band's respective reservation. See Hayes Township, Michigan v. Midwest Regional Director, 36 IBIA 303 (2001). • The Menominee Restoration Act, 25 U.S.C. § 903d(c), requires the Secretary of the Interior to accept property located in the County of Menominee, but only if transferred by the Menominee owner or owners. Such property may be accepted subject to all valid existing rights, including, but not limited to: liens, outstanding taxes (local, State and Federal), mortgages and any other obligations. The lands acquired are made subject to foreclosure or sale according to the terms of any existing obligations in accordance with the law of Wisconsin. The Act specifies that the land shall be acquired in trust in the name of the Tribe and shall be part of the Tribe's reservation. •
The
Ponca Restoration Act, 25 U.S.C. § 983b(c), requires the Secretary
of the Interior to accept not more than 1,500 acres of land in trust for
the Ponca Tribe of Nebraska in Knox or Boyd Counties, Nebraska. Such property
may be acquired subject to any rights, liens, or taxes that exist prior
to the date of transfer. The Act further provides that the Secretary may
acquire additional lands in Knox or Boyd Counties pursuant to authority
granted by the IRA. The Act specifically provides that reservation status
may not be granted to any lands acquired for the Tribe. The Act was construed
by the Board in State
of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great
Plains Regional Director, Bureau of Indian Affairs, 38 IBIA 42 (2002)
and upheld the BIA's interpretation that the Act permitted the BIA to
acquire lands for the Tribe under either the mandatory acquisition authority
in the Act or pursuant to section 465 of the IRA. • In accordance with Pub. L. No. 97- 459, 96 Stat. 2515 (Jan. 12, 1983) the Secretary shall accept any transfer of title from the Devils Lake Sioux Tribe (now known as the Spirit Lake Tribe) or from any individual member of the Tribe, for any interest in land (or any improvements thereon) located within the boundaries of the Devils Lake Sioux Reservation. The Act also specifically authorizes the Secretary to approve the sale of tribal trust land if additional trust land is acquired at the time of the sale. • The White Earth Land Settlement Act of 1985, Pub. L. 99-264, 100 Stat. 61 (March 24, 1986) provides at Section 12 that a fund be established for the White Earth Band, which fund may be used for land acquisition. Section 18 of the Act provides that any lands acquired with funds from Section 12 shall be held in trust by the United States. • The Cheyenne River Sioux Tribe is authorized to dispose of any real property outside of the Cheyenne River Sioux Reservation in Stanley, Haakon, Pennington, and Meade counties in South Dakota, and any isolated tracts that are located within the reservation boundaries by Pub. L. No. 88-418, 62 Stat. 939 (Aug. 11, 1964). All funds derived from the sale of such property shall be placed by the Secretary of the Interior in a special account in the Treasury and shall be used only the purchase of real property within the boundaries of the reservation. Any property purchased with such funds shall be held in trust by the United States for the Cheyenne River Sioux Tribe. • The Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143, 111 Stat. 2652 (Dec. 15, 1997) authorized the Bay Mills Indian Community and the Sault Ste. Marie Tribe of Chippewa Indians to use a portion of the judgment fund for the consolidation and enhancement of tribal landholdings through purchase or exchange. The Bay Mills section of the Act states that "any land acquired with funds from the Land Trust shall be held as Indian lands are held." The Sault Ste. Marie section of the Act contains two provisions: Section 108(a)(4) which notes that any lands acquired with funds from the Self-Sufficiency Fund shall be held as Indian lands are held and Section 108(f) which notes that any lands acquired using any interest or income from the Self-sufficiency Fund shall be held in trust by the Secretary for the benefit of the tribe.
C. Constitutional Challenges to Acquisition Authority Appellants of land acquisition decisions under 25 U.S.C. § 465 are routinely raising constitutional challenges to that statutory authority based on the decision in South Dakota v. United States Department of the Interior, 69 F.3d 878 (8th Cir. 1996), decision vacated by 117 S.Ct. 286 (1996). A vacated decision is without precedential value. The United States Court of Appeals for the Tenth Circuit has upheld the constitutionality of 25 U.S.C. § 465. United States v. Roberts, 185 F.3d 1125, 1136-37 (10th Cir. 1999), cert. denied, 120 S.Ct. 1960 (2000). See Also, Carcieri, et al. v. Norton, 290 F. Supp.2d 167 (D.R.I. 2003); City of Lincoln City, Oregon v. United States Department of the Interior, No. CV 99-330 AS, Slip Op. (D. Ore. April 17, 2001) which cite Roberts with approval. [Note: This decision was not reported by the Court which limits its precedential value.] Thus, the only case which has authoritative value on the issue has upheld the constitutionality of the statute. Challenges in administrative appeals raising constitutional issues should be acknowledged in administrative decisions, with the response that while executive agencies are without the authority to declare statutes unconstitutional, the constitutionality of 25 U.S.C. § 465 has been judicially affirmed and therefore, no basis exists for the agency to consider that issue. The IBIA has consistently held that it has no authority to declare a Federal statute unconstitutional and therefore lacks jurisdiction to address that argument. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 45 (2002), County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 (2002); State of Kansas v. Acting Southern Plains Regional Director, 36 IBIA 152 (2001); Shoalwater Bay Indian Tribe v. Acting Northwest Regional Director, 36 IBIA 1 (2001); Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantations v. Eastern Area Director, 35 IBIA 93 (2000); City of Lincoln City, Oregon v. Portland Area Director, 33 IBIA 102 (1999). The Board is also without authority to disregard or declare a duly promulgated regulation invalid. Oklahoma Petroleum Marketers Association and Muskogee County, Oklahoma Commissioners v. Muskogee Area Director, 35 IBIA 285 (2000). Judicial and administrative cases are still challenging the constitutionality of 25 U.S.C. § 465. See State of South Dakota v. United States, (D.S.D.), No. 00-3026. The Solicitor's Office will try to keep you apprized of any decisions which may affect the land acquisition authority or process. More recent cases have raised new constitutional issues beyond the argument that section 465 of the IRA is an unconstitutional delegation of legislative authority to the executive branch of the government. In Carcieri v. Norton, the state argued that acceptance of land into trust amounted to a violation of the Enclave Clause, Article I, Section 8, Clause 17 of the United States Constitution. Under the Enclaves clause the federal government may not establish an enclave exclusively subject to federal jurisdiction without a state's consent. In Carcieri v. Norton, the Court held that acceptance of land into trust for the benefit of an Indian tribe does not amount to the creation of a federal enclave and is therefore, not a violation of the Enclave Clause. The state in Carcieri v. Norton, also argued that acceptance of land into trust violates the Admissions Clause, Article IV, Section, Clause 1 of the United States Constitution. Under that clause the United States may not create new states without the consent of Congress and the other states. The Court held that because reservations remain subject to some degree of state regulation, it cannot be argued that trust acquisition equates to statehood, and therefore, the Admissions Clause is not violated. The state in Carcieri v. Norton, also argued that the acceptance of land into trust violated the 10th Amendment, which prohibits the federal government from exercising that authority reserved to the states. The Court held that because authority to regulate commerce with Indians is specifically conferred on Congress by Article I, Section 8, Clause 3 of the United States Constitution, the Commerce Clause was not violated.
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