II. TRUST RESPONSIBILITY IN LAND TRANSACTIONS

The trust relationship applies to federally recognized tribes and their members. "Acknowledgment of tribal existence by the Department is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes." 25 C.F.R. § 83.2 (2001). Pursuant to 25 C.F.R. § 83.5 the Department is required to publish the list of recognized tribes in the Federal Register no less frequently than every three years. The list was last published at 68 Fed. Reg. 68180-68184 (December 5, 2003). The Government's obligations under its trust responsibility may only be enforced against it by Indians. The fact that a tribe performs realty functions under a Self-Governance compact does not diminish the trust responsibility for that tribe's trust land, even when the tribe provides what had previously been BIA services to its own land. Oklahoma Petroleum Marketer's Association, and Muskogee County, Oklahoma Commissioners v. Muskogee Area Director, 35 IBIA 285 (2000).

The IBIA has held that non-Indians lack standing to raise an alleged violation of the federal trust responsibility. Earl Clausen, d.b.a. Earl Clausen Farms, Inc. v. Portland Area Director, 19 IBIA 56 (1990). "[T]he federal trust responsibility to trust land is extinguished immediately upon its acquisition by a non-Indian. The ministerial issuance of a fee patent serves only a record keeping function and is without legal significance in respect to dissolution of the Department's role as trustee." Estate of Dana A. Knight, 9 IBIA 82, 86 (1981). The BIA is not required to help an applicant prepare a trust application request. "The regulations in 25 C.F.R. Part 151, governing trust acquisitions, do not require BIA to provide technical assistance to applicants." John Ross, Jr. v. Acting Muskogee Area Director, 21 IBIA 251, 253 (1992).

The determination whether to convert trust land to fee status must be decided by the Secretary on a case by case basis. Gila River Indian Community v. Commissioner of Indian Affairs, 8 IBIA 150 (1980). Where the tribe objects to the issuance of a fee patent the Secretary must balance the competing interests of the tribe and the individual Indian applicant. The issuance of a fee patent is not mandatory upon his being satisfied that a trust allottee is competent and capable of managing his affairs. Gila River Indian Community, 8 IBIA at 153. See also Oglala Sioux Tribe v. Commissioner of Indian Affairs and Richard Tall, 7 IBIA 188, 86 I.D. 425 (1979) which holds that a tribe may not by ordinance or by tribal court order prohibit the issuance of a fee patent to an allottee. The Board explained the decision in Conroy v. Conroy, 575 F.2d 175 (8th> Cir. 1978) which held a tribe may exercise its in personam jurisdiction over members to order them to submit an application for the conveyance of trust property for the purpose of dividing the property in a divorce proceeding between two members of the tribe. The tribal court may order a member to make an application to the Secretary of the Interior, but does not in and of itself order any conveyance of the trust land. The BIA maintains its discretion to approve or disapprove the application once submitted. The regulations governing the issuance of fee patents permit the BIA to withhold action on a request for the issuance of a fee patent if the BIA determines that removal of the land from trust status would adversely affect the best interest of other Indians until the tribe or other Indians have had a reasonable opportunity to acquire the land from the applicant. See 25 C.F.R. § 152.2 (2001).

The question of who is an Indian for purposes of acquiring land in trust for individuals has been addressed by the Board. The Board followed the definition of "individual Indian" set forth in the rules at 25 C.F.R. § 151.2(c) to include:

(1) Any person who is an enrolled member of a tribe;

(2) Any person who is a descendent of such a member and said descendant was, on June 1, 1934, physically residing on a federally recognized Indian reservation;

(3) Any other person possessing a total of one-half or more degree Indian blood of a tribe;

(4) For purposes of acquisitions outside of the State of Alaska, Individual Indian also means a person who meets the qualifications of paragraph (c)(1), (2), or (3) of this section where "Tribe" includes any Alaska Native Village or Alaska Native Group which is recognized by the Secretary as eligible for the special services from the Bureau of Indian Affairs.

Dan Van Mechelen v. Portland Area Director, 35 IBIA 122 (2000).

The BIA periodically finds itself in the position of making administrative decisions in the face of competing Indian interests. A substantial body of administrative case law has been developed arising from its decisions. "The trust responsibility is owed to both Indian tribes and individual Indians. The circumstances of each case will determine whether the trust responsibility is owed to a tribe, an individual, or both." Cherokee Nation v. Acting Muskogee Area Director, 29 IBIA 17 (1995), Citing Muscogee (Creek) Nation v. Muskogee Area Director, 28 IBIA 24 (1995); Adams v. Billings Area Director, 28 IBIA 20 (1995); Kwethluk IRA Council v. Juneau Area Director, 26 IBIA 262 (1994). In those instances where the BIA must approve a conveyance of trust lands from Indian to Indian, the IBIA has held that in considering matters raised by one Indian against a second Indian relating to the second Indian's trust allotment, the BIA's trust duty is to the person for whom the land is held in trust. Kenneth Gullickson v. Aberdeen Area Director, 24 IBIA 247 (1993); Grace Tsosie v. Navajo Area Director, 20 IBIA 108 (1991). In approving a conveyance of trust land, the BIA acts as a trustee for the Indian owner, even where the prospective grantee is also Indian and a member of the owner's family. In determining whether to approve the sale of a minor Indian's trust land to another Indian, the BIA's trust duty is solely to the minor for whom the land is held in trust. Perian Smith, Conservator for Andria Dian Smith (Minor) v. Acting Billings Area Director, 18 IBIA 36 (1989).

In order to fulfill its trust responsibility, the BIA must carry out actions undertaken on behalf of Indian beneficiaries in a way that is not contrary to their best interests. Patricia Ann Schoolcraft Patencio v. Area Director, Sacramento Area Office, 13 IBIA 150 (1985). Where lessors under a lease of Indian trust land have authorized a BIA Superintendent to take certain actions on their behalf, the Superintendent's authority to act remains subject to those limitations imposed by the Government's trust responsibility. Ramona Button and Harlan Bohnee v. Acting Phoenix Area Director, 21 IBIA 57 (1991).

In determining whether to approve a gift deed of trust land, the BIA must ensure that the prospective donor understands and intends the effect of his/her action; must make a careful examination of the circumstances to determine whether the transaction is in the donor's best interest; and must refrain from approving a gift deed where there is any question as to the donor's intent or where the facts show the conveyance is not in the donor's best interest. Estate of Clifford Celestine v. Acting Portland Area Director, 26 IBIA 220 (1994); Estates of Evan Gillette, Sr. and Lizzie Gillette/Yellow Bird/Bellanger/Paint/Bedell, a.k.a. Elizabeth Burdell, 22 IBIA 133 (1992).

In matters related to tribal property, the BIA's trust responsibility is to the tribe, not a person doing business with a tribe, even though that person may be Indian and a tribal member. Robert and Krista Johnson v. Acting Phoenix Area Director, 25 IBIA 18 (1993). The Johnsons were tribal members engaged in a dispute with the tribe over a lease of tribal land. They argued that the BIA had a trust responsibility to protect their interests under the lease. The IBIA declined to find any trust responsibility to the Johnsons, noting:

Any assumption that BIA also owes Krista a trust duty must be based on the fact that she is Indian and a tribal member. The Board has considered numerous situations in which Indian individuals or tribes, each claiming to be the beneficiary of a trust duty, were involved on opposite sides in a dispute concerning trust real property. See, e.g., Arthur J. Welmas v. Sacramento Area Director, 24 IBIA 264 (1993); Gullickson; Smith v. Acting Billings Area Director, 18 IBIA 36 (1989). In those cases, the Board held that BIA's trust duty was still to the landowner, and no trust duty was owed to other persons involved in the matter, even though those persons might be Indian. The same is true here. In the context of this case, BIA owes no trust duty to Krista, who is merely a person doing business with an Indian tribe.

The BIA owes its trust responsibility to the owner of the trust land, whether it is a tribe or an individual. Lois Candelaria v. Sacramento Area Director, 27 IBIA 137 (1995). The trust responsibility does not require the BIA to partition an allotment for the benefit of one co-owner if it finds that the partition would be detrimental to the interests of the other co-owners. Kenneth W. Davis v. Acting Aberdeen Area Director, 27 IBIA 281 (1995). Conversely, in an instance where the tribe advocates a position or takes an action which adversely affects the property rights in individual Indian trust property, the BIA's trust obligation would require it to protect the trust property of individual members.

The Board has held that it lacks the authority to order the divestiture of title to land held by the United States in trust for an Indian tribe. Big Lagoon Park Company, Inc. v. Acting Sacramento Area Director, 32 IBIA 309, 323 (1998). The Board reminded the BIA in the Big Lagoon Park decision that it had previously held in Prieto v. Acting Sacramento Area Director, 11 IBIA 124, 128 (1983) that the BIA and the Board had the authority to revoke a completed trust acquisition upon presentation of conclusive evidence that the transaction did not meet the statutory or regulatory requirements, but that Prieto was reversed in Prieto v. United States, 655 F. Supp. 1187 (D.D.C. 1987). "The Board's decision in Prieto is no longer good law. To the extent that any part of that decision may have survived the District Court's decision, the Board now disapproves it." Big Lagoon Park, 32 IBIA at 318.

Big Lagoon Park explained the Department's action in its reconsideration of the status of the land which was the subject of South Dakota v. United States Department of the Interior, 69 F.3d 878. The Board explained that the Department of the Interior did not advocate that it had the authority to take land out of trust, but that the remand itself rather than any action of the BIA removed the land from trust status. The Board noted that it does not view the Department's actions after the remand in South Dakota as any evidence of authority to take land out of trust. Big Lagoon Park, Inc. v. Acting Sacramento Area Director, 32 IBIA 309 (1998).

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