III. TRUST LAND ACQUISTION PROCESS

A. Notice of Receipt of an Application

The trust land acquisition regulations at 25 C.F.R. § 151.10 require the BIA upon receipt of an application to have land taken into trust to give notice to state and local governments having regulatory jurisdiction over the land to be acquired. The notice must inform the state or local government that they have thirty days within which to make comments as to the acquisition's potential impacts on regulatory jurisdiction, real property taxes and special assessments, and that their comments will be provided to the applicant. This notice is not required to be given if the authority under which the property is to be acquired mandates the Secretary of Interior to acquire it.

Where the BIA has failed to comply with notice requirements the IBIA will vacate its decision and remand it back to the decision maker for further consideration. State of Kansas v. Acting Southern Plains Regional Director, 36 IBIA 160 (2001). When the BIA is trying to determine which local governments should receive notice, the IBIA counsels it to err on the side of being over inclusive rather than under inclusive. Avoyelles Parish, Louisiana, Police Jury v. Eastern Area Director, 34 IBIA 149 (1999). "When the Bureau is uncertain whether a city or county exercises regulatory jurisdiction, notice should be sent to both." Avoyelles Parish, 34 IBIA at 157. The Board also suggests in Avoyelles Parish that if the Bureau is uncertain which official to send the notice to, then its letter of notice should include a request that the notice should be forwarded to appropriate officials.

In two recent appeals, County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 (2002) and State of South Dakota and Moody County, South Dakota v. Great Plains Regional Director, 37 IBIA 4 (2001), the appellants argued that the BIA is required to give notice to public school districts because they exercised regulatory jurisdiction over the land proposed to be acquired. The Moody County case was remanded back to the Regional Director at her request to cure other procedural error and because it caused less delay of the acquisition to simply give notice, she agreed to give notice to the school district. The Board was advised however, that the Regional Director did not believe that notice to the School District was required. Moody County, 37 IBIA at 4.

In the Mille Lacs case the appellant county, quoting the State of South Dakota's brief from Moody County made the same argument. The IBIA, in dicta (commentary within an opinion which is not part of the holding of a case and is not binding in subsequent cases) advised the appellants that they had not shown that school districts are local governments having regulatory jurisdiction over land. The appellants argued that school districts were governments with regulatory authority over the land because they had the authority to impose taxes and because they could issue or enforce truancy regulations. The Board did not make a finding on the merits of the appellants' argument, but declined to hear their argument because they had not made the argument to the BIA and were raising it for the first time on appeal. The IBIA will decline to hear arguments which were not made to the agency and are raised for the first time on appeal. Mille Lacs, 37 IBIA at 174, citing Welk Park North v. Acting Sacramento Area Director, 29 IBIA 213, 219 (1996). Neither will the Board hear arguments raised for the first time in a reply brief, because opposing parties have not had an opportunity to respond to those arguments. Thomas E. Edwards v. Portland Area Director, 29 IBIA 12, 15 (1995). Because no finding on the merits has issued on that issue, it is likely that it will be raised again.

The issue of whether school districts, or any other taxing sub-districts are "local governments having regulatory jurisdiction over the land to be acquired" within the meaning of 25 C.F.R. § 151.10 may be disposed of by simply providing the statement recommended by the Board in Avoyelles Parish; that is, to request the county or city officials notified to forward the notification to any sub-districts such as school districts, sewage districts, drainage districts, park districts, or other special function taxing districts, for which, taxes are collected by the county or city, and which may be interested or affected by the acquisition. While the appellants in Mille Lacs were not successful with this argument to the Board, it is an appeal issue which may be easily avoided by simply anticipating it and including a statement which puts counties and cities on notice that they should forward land acquisition notices to their interested subdistricts. Any comments which might be received from such special taxing districts should be considered along with other state, county, and city comments.

The procedural error of failing to notify state and local governments and giving them the opportunity to comment on a proposed acquisition is not cured by the fact that they may participate in an appeal of the decision before the IBIA. "Contrary to the Area Director's contention, the fact that the Appellant has had an opportunity to raise its concerns in this appeal does not cure BIA's notice error, because it is the BIA, not the Board, which must consider the criteria in 25 C.F.R. § 151.10." Avoyelles Parish, 34 IBIA at 157. "Appellant and local governments were entitled to have their comments taken into consideration during BIA's initial analysis of the trust acquisition request and prior to any BIA decision in the matter." State of Kansas, 36 IBIA 160, 162. The notice required by 25 C.F.R. § 151.10 is not met through environmental consultation. State of Missouri v. Acting Area Director, Muskogee Area Office, Decision of the Assistant Secretary - Indian Affairs (March 17, 2000).

For those acquisitions which have been pending for some time, the Board recommends that the BIA solicit updated comments. "BIA might be well advised to solicit updated comments in any case where there is an extended delay between its last communication with State and local governments and its trust acquisition decision, even where the original notice was in compliance with present regulations. (i.e., the regulations in effect at the time the trust acquisition decision is to be made)." State of Kansas, 36 IBIA 160, 162; Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14, 24 (2001). When a large amount of time has passed since the application and the comments on it were reviewed the BIA should update its analysis before proceeding with a trust acquisition. It cannot be assumed that an evaluation made much later would reach the same conclusion. Okanogan County, Washington v. Acting Portland Area Director, 30 IBIA 42 (1996). Where an applicant to have land put in trust files an appeal for inaction on the trust application, the IBIA will dismiss the appeal upon a showing by the BIA that it is taking action on the application in order to permit the BIA to continue with its efforts. Big Valley Band of Pomo Indians v. Pacific Regional Director, 36 IBIA 48 (2001). If the matter is held in abeyance pending deficiencies in the application, an appeal for inaction will be remanded to permit the applicant to correct the deficiencies in the application. Paiute Indian Tribe of Utah v. Western Regional Director, 38 IBIA15 (2002). An appeal for inaction will be dismissed if the delay is caused because the decision making is seeking legal advice regarding the matter. Paiute Indian Tribe of Utah v. Western Regional Director, 38 IBIA 40 (2002). The Board will not issue advisory opinions nor review legal advice given by the Solicitor's Office. If the BIA makes a decision based on legal advice it receives from the Solicitor's Office, the Board will review those legal conclusions to the extent they are presented as the basis of the BIA's decision. Paiute Indian Tribe of Utah v. Western Regional Director, 38 IBIA 128 (2002). An appeal for inaction will be dismissed if the BIA has already taken the action requested in the appeal. Paiute Tribe of Utah v. Western Regional Director, 38 IBIA 58 (2002). An appeal for inaction will be dismissed if the applicant fails to comply with the BIA's requests for information. Paiute Indian Tribe of Utah v. Western Regional Director, 38 IBIA 106 (2002).

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B. Content of Decisions to Acquire Land

The approval of requests to acquire land in trust status for an Indian tribe or individual is committed to the discretion of the BIA. County of Mille Lacs, Minnesota v. Midwest Regional Director; 37 IBIA 169, 170 (2002); State of Iowa, Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 45 (2002); City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188, 190 (2001); Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14, 18 (2001); City of Eagle Butte, South Dakota v. Aberdeen Area Director, 17 IBIA 192, 96 I.D. 328 (1989); Naomi Haikey Eades v. Muskogee Area Director, 17 IBIA 198 (1989); Day County, South Dakota v. Aberdeen Area Director, 17 IBIA 204 (1989); Roberta C. Weckeah Bradley v. Anadarko Area Director, 17 IBIA 210 (1989). In reviewing such decisions, it is not the function of the IBIA to substitute its judgment for that of the Bureau. Rather, it is the Board's responsibility to ensure that the proper consideration was given to all legal prerequisites to the exercise of discretion. See above. When the BIA reviews a request to acquire land in trust status for an Indian tribe or individual, it is required to consider the factors listed in 25 C.F.R. § 151.10. Proof that these factors were considered must appear in the administrative record.

While the IRA at 25 U.S.C. § 465 vests the Secretary with broad discretion to acquire land for Indians within or without Indian reservations, the Secretary has promulgated regulations which place limitations on that discretion and it is clearly within his authority to do so. Virginia Cross v. Acting Portland Area Director, 23 IBIA 149 (1993). "The Secretary is bound by the limitations he has imposed on his own discretion." Cross, Id at 151. "However, to the extent he has not so limited it, the discretion vested in the Secretary by section 465 remains." Absentee Shawnee Tribe of Indians of Oklahoma v. Anadarko Area Director, 18 IBIA 156, 162 (1990).

When the administrative record in an appeal from a BIA decision is inadequate to support the decision, the decision will be vacated and the case remanded for development of an adequate record and issuance of a new decision. City of Eagle Butte, South Dakota v. Great Plains Regional Director, 38 IBIA 139 (2002); Ziebach County, South Dakota v. Great Plains Regional Director, 36 IBIA 201 (2001); Joseph Franklin Colby v. Acting Eastern Oklahoma Regional Director, 35 IBIA 139 (2000); Cecelia Plain Feather v. Acting Billings Area Director, 18 IBIA 26 (1989); Day County, South Dakota v. Aberdeen Area Director, 17 IBIA 204 (1989). Proof that each factor of 25 C.F.R. § 151.10 was considered must appear in the administrative record when the BIA approves a trust acquisition. City of Eagle Butte, 17 IBIA 192. The BIA's decision should not be stated in conclusory terms, but should detail its finding on every factor of 151.10. Ziebach County, 36 IBIA 201. When deciding an appeal from a Superintendent's decision, the Regional Director's decision should address every argument raised by the appellant. Ziebach County, 36 IBIA at 204. The BIA bears the responsibility for fully informing interested parties of its decisions. Town of Ignacio, Colorado v. Albuquerque Area Director, 34 IBIA 37, 42 (1999).

Not only are interested parties entitled to know the basis of a BIA decision, those parties might, with the benefit of such knowledge, be persuaded that BIA's decision is valid. If unnecessary appeals might be avoided simply by providing interested parties with complete and timely information about BIA's decision, there are potential advantages to all concerned, including the tribe or individual Indian whose trust acquisition request is at issue.

For all these reasons, it is important that BIA furnish its analysis to interested parties at the time it issues notice of its trust acquisition decision. In order to encourage BIA to do so in the future, barring extraordinary circumstances (such as, for example, those found in this case as discussed below), the Board will henceforth either vacate an Area Director's trust acquisition decision or require additional proceedings before the Board if it becomes apparent that BIA did not furnish the appellant with a copy of its analysis and the appellant has not subsequently obtained a copy.

Town of Ignacio, Id at 42.

Similarly, proof of the factors the BIA relies on to deny a trust acquisition must appear in the administrative record. Johnnie Louis McAlpine v. Muskogee Area Director, 19 IBIA 2 (1990); Naomi Haikey Eades v. Muskogee Area Director, 17 IBIA 198 (1989); John Ross, Jr. v. Acting Muskogee Area Director, 18 IBIA 31 (1989). The BIA may ask for an appeal to the IBIA to be remanded back to it to consider newly discovered evidence which was not available for its consideration during the decision making process. State of Kansas v. Acting Southern Plains Regional Director, 36 IBIA 10 (2001). The IBIA will not address the merits of a trust acquisition issue until the BIA has addressed them first. Joseph Franklin Colby, 35 IBIA 139 (2000).

The BIA is not required to consider every speculative use which appellant alleges a property might be used for. Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantation v. Eastern Area Director, 35 IBIA 93, 103 (2000). In Town of Charlestown the appellants argued that the land proposed for acquisition might be used in the future for gaming purposes even though the Tribe had stated that the purpose of the acquisition was for housing and nothing in the administrative record indicated that any purpose other than housing was contemplated. "The Board has held that mere speculation by a third party that a tribe might, at some future time, attempt to use trust land for gaming purposes does not require BIA to consider gaming as a use of the property in deciding whether to acquire the property in trust." Town of Charlestown, Id at 103, Citing Lake Montezuma Property Owners Association, Inc. v. Phoenix Area Director, 34 IBIA 235, 238 (2000); Town of Ignacio, Colorado v. Albuquerque Area Director, 34 IBIA 37, 38-39 (1999). Mere speculation does not carry the appellant's burden of proof that the BIA did not properly exercise its discretion by considering only the proposed use which the Tribe articulated. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 52 (2002); Town of Charlestown, 35 IBIA at 103.

In order to demonstrate that it has considered the relevant facts related to the purpose for which a proposed land acquisition will be used, BIA should include in its decision a discussion of the facts which are, or should be, within BIA's knowledge and which have some bearing on the present or future use of the property.

Town of Charlestown, Id at 103, citing Village of Ruidoso, New Mexico v. Albuquerque Area Director, 32 IBIA 130 (1998); City of Lincoln City, Oregon v. Portland Area Director, 33 IBIA 102 (1999).

There is no requirement that the BIA reach a particular conclusion as to each factor and the regulation does not state how the agency should balance the factors in any particular case or what weight to assign to each factor. The BIA's decision should be reasonable in view of its overall analysis of the factors listed in 25 C.F.R. § 151.10. When the record shows that the BIA gave all of the factors consideration, even though its ultimate decision is adverse to the appellant, the Board may find that the decision is reasonable. Town of Charlestown, Rhode Island v. Eastern Area Director, 18 IBIA 67, 72 (1989).

A trust acquisition request can, however, be denied on the basis of less than all of the factors, if BIA's analysis shows that factor or factors weighed heavily against the trust acquisition. Johnnie Louis McAlpine v. Muskogee Area Director, 19 IBIA 2 (1990). The BIA may deny an application for trust acquisition on the sole basis that it is unable to properly administer the trust property, such as in a case where the property proposed for acquisition is located a long distance from the servicing BIA agency. Miami Tribe of Oklahoma v. Muskogee Area Director, 28 IBIA 52, 55 (1995). "The ability of BIA to discharge the necessary trust functions on newly acquired trust property is an important consideration in determining whether or not a trust acquisition should be approved." McAlpine, 19 IBIA at 9. The Board has held that the BIA is uniquely qualified to know what additional responsibilities it will have to assume in relation to land acquired in trust. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 55 (2002).

The BIA must consider all statutory and regulatory provisions relevant to a matter at issue whether or not the appellant relied on those provisions. Muskogee (Creek) Nation v. Muskogee Area Director, 28 IBIA 24 (1995). A change in regulations should not be applied retroactively when a person affected has relied detrimentally on existing regulations. Georgianna Kautz v. Portland Area Director, 19 IBIA 305 (1991). The BIA may not apply proposed regulations. State of Kansas v. Acting Southern Plains Regional Director, 36 IBIA 164 (2001).

The IBIA will remand a BIA decision when it cannot determine whether the BIA relied on an improper assumption as part of its analysis.

It is clearly possible that the Regional Director's ultimate conclusion was influenced by the improper assumption discussed above. The Board cannot determine whether, absent that improper assumption, he would have reached the same conclusion. Under the standard of review discussed above, the Board must vacate the Regional Director's decision and remand this matter to him for further consideration. Upon remand, the Regional Director shall base his analysis under 25 C.F.R. § 151.10(e), as it concerns property taxes, upon taxes paid by the Tribe on the Lodge at Chama property.

Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14, 22 (2001). In Rio Arriba the Regional Director found that County taxes may have contributed to the fact that the prior owner of the property had gone bankrupt. He further found that since the State was the other top bidder for the purchase of the property and that the County could not have collected taxes from the State, that it would suffer no loss of taxes if the land were put in trust for the Tribe. The Board pointed out that neither point was relevant to the required analysis under section 151.10(e) since the Tribe had been paying taxes on the property since it purchased it. The relevant question is the effect of the loss of tax revenue if the land were placed in trust. When the State or local government collects taxes on property proposed for trust acquisition; asserts a loss of such taxes as a result of the proposed trust acquisition; a reasonably accurate determination can be made as to the amount of taxes that would be lost; the BIA should consider the asserted loss in its section 151.10(e) analysis. Rio Arriba.

Similarly, if remarks made by a BIA deciding official suggest a possible lack of objectivity concerning a matter pending before him, the Board must consider the possibility that the BIA's decision is tainted by bias. When the possibly tainted decision was issued under the BIA's discretionary authority, the Board will refer the matter to the Assistant Secretary - Indian Affairs under 43 C.F.R. § 4.337(b) for issuance of a new discretionary decision. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 38 IBIA 18 (2002). In Rio Arriba, the BIA decision maker was quoted in local news articles with comments characterized as hostile to the local government. The Board was sufficiently concerned about the decision makers objectivity that the case was referred to the Assistant Secretary for a new decision. This case is worth noting for BIA decision makers as a reminder to take great care to maintain their objectivity in order to make a fair and balanced decision. This decision reminds BIA decision makers that in this capacity they are required to be fair and impartial, should not act as advocates, and must avoid even the appearance of a lack of objectivity. A BIA official whose judgment may be tainted should recuse him or herself from making the decision.

The BIA is required to give notice of its decision to acquire land to all interested parties. 25 C.F.R. § 2.7(a): "The Official making a decision shall give all interested parties known to the decisionmaker written notice of the decision by personal delivery or mail." Failure to give such notice does not invalidate the decision, but does extend the time in which an appeal may be filed to such date as notice has been given. 25 C.F.R. § 2.7(b). By Memorandum dated May 30, 1996 the Deputy Commissioner of Indian Affairs required the BIA to give notice of acquisition decisions to any other party that have made a written inquiry about a proposed land acquisition. Written notice pursuant to 25 C.F.R. § 2.7 is required even where a trust acquisition is mandated by legislation. State of South Dakota and Mellette County, South Dakota v. Aberdeen Area Director, 35 IBIA 16 (2000).

Written notice of the acquisition decision pursuant to 25 C.F.R. § 2.7 is required for the purpose of exhausting administrative remedies. It is required in addition to the publication of notice which is required by 25 C.F.R. § 151.12(b). The publication requirement of 25 C.F.R. § 151.12(b) does not come into play until administrative remedies have been exhausted. State of South Dakota and Mellette County v. Aberdeen Area Director, Bureau of Indian Affairs, 35 IBIA 16, 23 (2000). Notice which is published under 25 C.F.R. § 151.12(b) prior to the exhaustion of administrative remedies is premature. Because the decisions of Superintendents and Regional Directors are subject to further appeal in the Department, they do not become final for the Department until administrative remedies are exhausted.

The Secretary may withdraw his approval of a trust acquisition. The written decision itself vests no rights in the applicant to have the land taken in trust. A tract is not formally accepted into trust until an instrument of conveyance has been approved by the Secretary. Sycuan Band of Mission Indians v. Acting Sacramento Area Director, 31 IBIA 238 (1997). See also, 25 C.F.R. § 151.14 (2003).

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