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Survey of Interior Board of Indian Appeals Case Law on Land Acquisition



PRISCILLA A. WILFAHRT, Esq.
Field Solicitor

U.S. Department of the Interior
Twin Cities, Minnesota
Bureau of Indian Affairs Realty Training

April 1, 2004
Hinckley, Minnesota


Contents
  1. Introduction

  2. Authority for Acquisition

    1. Discretionary/Mandatory
    2. Specific Acquisition Authority
    3. Constitutionality of Acquisition Authority

  3. Trust Responsibility in Land Transactions

  4. Trust Land Acquisition Process

    1. Notice of Receipt of an Application
    2. Content of Decisions to Acquire Land
    3. Consideration of Policy and Specific Factors

  5. Appeal Process

    1. Timing
    2. Appellant's Burden of Proof and IBIA Standard of Review
    3. Standing to Appeal a Land Acquisition Decision

  6. Conclusion "The Rules of Acquisition"


I. Introduction

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.


II. Authority for Acquisition

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.  Note that while the Act doesn't specifically say the lands are subject to sale or foreclosure for pre-existing liens, if the United States acquires the land subject to those rights they will continue to be enforceable.

  • 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.


III. 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 School craft 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).

 


IV. Trust Land Acquisition 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).

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).

C. Consideration of Policy and Specific Factors

1. Definitions

"The definition of "Indian reservation" 25 C.F.R. § 151.2(f) is clearly relevant to trust acquisition decisions." State of South Dakota and Mellette County, South Dakota, 35 IBIA at 16, 19.
Unless another definition is required by the act of Congress authorizing a particular trust acquisition, Indian reservation means that area of land over which the tribe is recognized by the United States as having governmental jurisdiction, except that, in the State of Oklahoma or where there has been a final judicial determination that a reservation has been disestablished or diminished, Indian reservation means that area of land constituting the former reservation of the tribe as defined by the Secretary.
25 C.F.R. § 151.2(f)(2001). [Note: Please note that the 2001 Edition of 25 C.F.R. inadvertently published the proposed Part 151 which were published in final form at 66 Fed. Reg. 3458 (January 16, 2001) and which were withdrawn by the Secretary at 66 Fed. Reg. 56608 (November 9, 2001). Thus the Part 151 regulations in the 2001 Edition of 25 C.F.R. which are in question form should be disregarded.] A tribe's land consolidation area does not equate with being "within the exterior boundaries of an Indian reservation" as required by 25 C.F.R. §151.3(b)(1), Thomas E. Edwards v. Portland Area Director, 29 IBIA 12, 13 (1995), for purposes of acquiring land for individual Indians. Where the term "reservation" is defined by a statute authorizing the acquisition of trust land, the definition of reservation for acquisitions under that statute must be gleaned from the language of the statute. South Dakota and Mellette County, 35 IBIA 16, 19 (2000). When the land to be acquired is located within that area which the appellant alleges is outside of the reservation because it is disestablished or diminished the Board will not address the disestablishment of diminishment argument because the land falls within the definition of reservation set forth at 25 C.F.R. § 151.2(f) and the acquisition may be treated as an on-reservation acquisition. County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169, 172 (2002). The BIA's determination concerning former reservation status is a legal conclusion subject to de novo review by the Board. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Anadarko Area Director, 28 IBIA 169, 178 (1995). When the proposed acquisition is outside of the reservation and not contiguous to it the BIA must comply with the requirements of 25 C.F.R. § 151.11. Christine A. May and Washoe County, Nevada v. Acting Phoenix Area Director, 33 IBIA 125 (1999). Section 151.11 provides:

The Secretary shall consider the following requirements in evaluating tribal requests for the acquisition of lands in trust status, when the land is located outside of and noncontiguous to the tribe's reservation, and the acquisition is not mandated:
  1. The criteria listed in § 151.10 (a) through (c) and (e) through (h);

  2. The location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservation, shall be considered as follows: as the distance between the tribe's reservation and the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe's justification of anticipated benefits from the acquisition. The Secretary shall give greater weight to the concerns raised pursuant to paragraph (d) of this section.

  3. Where land is being acquired for business purposes, the tribe shall provide a plan which specifies the anticipated economic benefits associated with the proposed use.

  4. Contact with state and local governments pursuant to § 151.10(e) and (f) shall be completed as follows: Upon receipt of a tribe's written request to have lands taken in trust, the Secretary shall notify the state and local governments having regulatory jurisdiction over the land to be acquired. The notice shall inform the state and local government that each will be given 30 days in which to provide written comment as to the acquisition's potential impacts on regulatory jurisdiction, real property taxes and special assessments.
By memorandum issued February 5, 2002 the Deputy Assistant Secretary - Indian Affairs directed the BIA that the Office of the Assistant Secretary - Indian Affairs would review the acquisition decisions for all off reservation acquisitions and by subsequent correspondence on February 12, 2002 advised the BIA to refer its decisions regarding whether lands are contiguous or adjacent to a reservation to the appropriate Solicitor's Office for review and concurrence in the determination.

The IBIA has declined to define the terms "contiguous" or "adjacent" and has on the four occasions where that issue has arisen in land acquisition appeals either referred that question to the Assistant Secretary - Indian Affairs or remanded it back to the Regional Director. See Thomas E. Edwards v. Portland Area Director, 29 IBIA 12 (1995); Virginia Cross v. Acting Portland Area Director, 23 IBIA 149 (1993); Andrew McCloud v. Acting Portland Area Director, 23 IBIA 203 (1993); Philemena Maahs v. Acting Portland Area Director, 22 IBIA 294 (1992). In Maahs, the property was separated from the reservation by a thirty foot wide road. In Cross the property was approximately one half mile from the reservation and in McCloud the property was within a twenty mile radius of the reservation. The Board did suggest that the greater the distance from the reservation the less likely the property would be deemed adjacent. McCloud, 23 IBIA at 204. By memorandum dated April 17, 2002 the Assistant Secretary - Indian Affairs issued clarification to his February 5 and 12, 2002 instructions on this issue (which required BIA realty staff to seek a determination from the Solicitor's Office regarding whether land proposed for trust acquisition is adjacent or contiguous) and instructed BIA realty staff that the record of decision must contain an analysis for determining that a parcel of land is adjacent or contiguous to the reservation and that they should seek the review and concurrence of the Solicitor's Office of that determination. It offered no instruction on the definition of adjacent or contiguous.

Nothing in 25 U.S.C. § 465 limits the Secretary's discretion in such a way that she may take land into trust for a tribe only in the state in which the tribe has its headquarters or in the state in which appears in the tribe's name. No special authorization is required for the Secretary to take land in trust in another state for a tribe. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 51 (2002).

2. Need for Additional Land

Indians need not be literally landless for the Secretary to acquire land for them under authority of 25 U.S.C. § 465, nor is the Secretary's authority to acquire land limited to agricultural purposes. State of Kansas v. Acting Southern Plains Regional Director, Bureau of Indian Affairs, 36 IBIA 152 (2001). See also United States v. 29 Acres of Land, 809 F.2d 544, 545 (8th Cir. 1987); Chase v. McMasters, 573 F.2d 1011, 1015-16 (8th Cir.), cert. denied, 439 U.S. 965 (1978); City of Sault Ste. Marie v. Andrus, 532 F. Supp. 157, 162 (D.D.C. 1980); City of Tacoma v. Andrus, 457 F. Supp. 342, 345-46 (D.D.C. 1978).

A tribe need not be suffering financial difficulties to "need" more land. "A financially secure tribe might well need additional land in order to maintain or improve its economic condition if its existing land is already fully developed." Avoyelles Parish, Louisiana, Police Jury v. Eastern Area Director, Bureau of Indian Affairs, 34 IBIA 149, 153 (1999).

The tribe need not show that it needs to be protected against its own improvidence or that it is not competent to handle its own economic affairs to have land taken in trust for it. County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169, 173 (2002). The BIA properly denied a trust application from an individual who does not need assistance with her affairs. The applicant was a business woman who had successfully handled her own business affairs. Colleen Talbot Ketcher v. Acting Muskogee Area Director, 33 IBIA 166 (1999). But see, Ziebach County, South Dakota v. Acting Great Plains Regional Director, 38 IBIA 227 (2002), which held that the BIA need not determine that an individual actually needs assistance with his or her affairs, it need only consider the degree to which an individual needs assistance in handling his or her affairs. The BIA is simply required to take the criterion into consideration. The Board has noted in prior cases that Part 151 does not require the BIA to reach any particular conclusion with respect to any of the criteria in section 151.10, does not specify the weight to be given to any of the criteria, and does not require any particular balancing of interests. Ziebach County, 38 IBIA at 229 (2002).

The Board has noted that Part 151 sets out broader acquisition authority for tribes than for individual Indians and subjects individual acquisitions to the additional requirement that the BIA consider the amount of trust or restricted land already owned by or for that individual and the degree to which he needs assistance in handling his affairs. The Board found that it was well within the BIA's authority to distinguish between tribal and individual acquisitions. Michael Shotpouch v. Acting Eastern Oklahoma Regional Director, 38 IBIA 217 (2002).

In a decision on an appeal of a trust acquisition where the Regional Director approved an application in which a tribe requested land to be placed in trust in a state other than the state where its reservation was located, the Assistant Secretary - Indian Affairs in remanding the decision back to the Regional Director required that he consider and discuss in his decision "the expected benefits to the Tribe or its members by acquiring this property in trust, and the expected economic or other benefits of the proposed continuation of agricultural activities." State of Missouri v. Acting Area Director, Muskogee Area Office, Decision of the Assistant Secretary - Indian Affairs (March 17, 2000). The appellant had alleged that the Area Director had not properly considered the tribe's need for trust land and had not fully considered the purposes for which the land was being acquired.

3. Purpose for Which the Land Will be Used

The Board requires the BIA to base its decision on both the information provided by the tribe as to its proposed use of the land and any other information which the BIA knows, or should know, which has some bearing on the present or future use of the land. City of Lincoln City, Oregon v. Portland Area Director, 33 IBIA 102, 107 (1999); Village of Ruidoso, New Mexico v. Albuquerque Area Director, 32 IBIA 130 (1998). The BIA's analysis of this factor should discuss present uses of the property, any record of the tribe's proposed plan for use of the property, and any other facts relevant to how the proposed land acquisition will be used. Village of Ruidoso, 32 IBIA at 139. "Nothing in the Restoration Act, 25 U.S.C. § 465, or 25 C.F.R. Part 151 authorizes the Department to impose restrictions on the Tribe's future use of land which is taken into trust." City of Lincoln City, 33 IBIA at 107. If the tribe's proposed use of the property changes during the acquisition process the BIA may withdraw its approval of the acquisition. Sycuan Band of Mission Indians v. Acting Sacramento Area Director, 31 IBIA 238 (1997).

The Assistant Secretary - Indian Affairs has noted that anyone who knowingly and willfully makes a false statement in connection with a trust acquisition may be subject to criminal prosecution under the False Statements and Accountability Act of 1996, 18 U.S.C. § 1001. State of Missouri v. Acting Area Director, Muskogee Area Office, Decision of the Assistant Secretary - Indian Affairs (March 17, 2000).

4. Impact of Loss of Taxes

The BIA must consider the loss of taxes actually assessed and paid on the property. Rio Arriba, 36 IBIA at 22. It is irrelevant that the property might have been purchased by an entity which would also not have paid taxes. (See discussion of Rio Arriba, 36 IBIA 14 (2001) in Section III.B. herein above.) The Regional Director may also take into account any appeals the Tribe may have filed regarding the valuation of the property. Rio Arriba, 36 IBIA at 24 (2001). Many appellants assert the future loss of taxes based on the Tribe's planned development of the property. The Board has not required the BIA to consider such speculative loss. It has however, addressed the loss of gross receipts or similar taxes on activities on lands proposed to be acquired in trust.

Where a state or local government has collected gross receipts or similar taxes from activities on property proposed for trust acquisition, but will no longer be able to collect such taxes once the property has been taken into trust, there is undeniably a financial "impact on the State and its political subdivisions." However, even where a state or local government can show that it has previously collected such taxes on the property, BIA is likely to find it difficult, if not impossible, to estimate with any certainty the amount of revenue the state or local government would lose as a result of a trust acquisition. This is because, among other things, such a tax may apply in the case of some transactions but not others, or in the case of transactions involving some parties but not others. The legal analysis is a complicated one, as is apparent from the many court decisions in the area. Nothing in 25 C.F.R. Part 151 requires that BIA engage in a complex legal analysis concerning the taxability of activities conducted on land after it is taken into trust. Avoyelles Parish, 34 IBIA at 154-155.

Rio Arriba, 36 IBIA at 25. If however, the law concerning the tax is sufficiently clear to permit a reasonably accurate determination of gross receipts taxes that would be lost to the State and local governments the BIA should take the loss of such revenue into account in its analysis under section 151.10(e). Rio Arriba, 36 IBIA at 26.

An appellant State or local government may not complain if the BIA decision maker relied on incorrect tax information supplied by the appellant. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14 (2001); Avoyelles Parish, Louisiana, Police Jury v. Eastern Area Director, Bureau of Indian Affairs, 34 IBIA 149, 152 (1999). Nor will it be heard to complain later if it failed to supply tax information and the BIA relies on other sources. State of Iowa and Board of Supervisors of Pottawattamie County, Iowa v. Great Plains Regional Director, 38 IBIA 42, 53 (2002). However, if the BIA decision maker relies on incorrect assumptions about taxes, which assumptions are not supported by the administrative file, the Board will remand the matter to the decision maker for reconsideration. Ziebach County, South Dakota v. Acting Great Plains Regional Director, 38 IBIA 227, 230 (2002).

"In order to show consideration under 25 C.F.R. § 151.10(e) with respect to Appellant, BIA must, at a minimum, discuss whether Appellant has taxing authority; what, if any, taxes were assessed by Appellant in regard to these properties, or what, if any, taxes were received by Appellant in regard to each property; and the impact, if any, on Appellant of the removal of the tracts from the tax rolls." City of Eagle Butte, South Dakota v. Aberdeen Area Director, Bureau of Indian Affairs, 33 IBIA 246 (1999). The regulations do not require the BIA to consider the cumulative tax loss of the removal of land from county tax rolls. County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169, 172 (2002). A generalized argument regarding the loss of taxes to the state or local government, without specific information regarding the impact of the loss of taxes will not carry the appellant's burden of proof to show that the BIA has improperly exercised its discretion as to 25 C.F.R. § 151.10(e). City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188 (2001).

5. Jurisdictional Problems and Potential Conflicts of Land Use

The regulations governing land acquisition require that the BIA consider jurisdictional issues, but not necessarily resolution of them. Avoyelles Parish, 34 IBIA 149, 156. The BIA need not consider every speculative use which an appellant suggests the land may be used for, rather the BIA should consider the information provided to it by the applicant and any other information in its possession which it knows or should know. It must give reasonable and prudent review of all credible information provided to it or which it discovers independently. Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantation v. Eastern Area Director, 35 IBIA 93 (2000).

When the land being acquired is located within reservation boundaries the BIA decision maker may take into consideration an already established jurisdictional pattern. An appellant's bare assertions concerning jurisdictional problems are insufficient to show that a trust acquisition would alter that pattern or worsen any existing problems with the pattern. Ziebach County, South Dakota v. Acting Great Plains Regional Director, 38 IBIA 227, 231 (2002).

While typically the BIA will be considering conflicts of land use vis-a-vis other local governments, in the context of individual trust acquisitions the BIA may consider the conflicts of use among family members and properly declined to take land in trust if doing so would exacerbate that problem. Colleen Talbot Ketcher v. Acting Muskogee Area Director, 33 IBIA 166 (1999).

6. Compliance with NEPA, Contaminants Review and NHPA

"The Department is required to comply with the provisions of any Federal law-including but not limited to NEPA-which is applicable to a trust acquisition request at the time the Department is considering the request." John Santana and Virginia Buck v. Sacramento Area Director, Bureau of Indian Affairs, 33 IBIA 135, 143 (1999). The Department does not have the authority to decide not to comply with the statute or to waive compliance through entering into an agreement. Santana. Actions taken by the BIA on lands held in trust for an Indian tribe or individual are subject to the requirements of NEPA. Friends of the Wild Swan v. Portland Area Director, Bureau of Indian Affairs, 27 IBIA 8 (1994). A decision which fails to address NEPA compliance will be remanded for consideration of it. Santana, 33 IBIA at 135. The Board will review the BIA's compliance with NEPA, but will not remand absent clear error. City of Isabel, South Dakota v. Great Plains Regional Director, 38 IBIA 263, 268 (2002).

The Board has held that because the Secretary lacks his or her usual discretion when making mandatory land acquisitions and his or her role is essentially ministerial, NEPA review is not required for mandatory acquisitions. The primary purpose of NEPA is to aid an agency decision maker in the exercise of his or her discretion. Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians v. Portland Area Director, Bureau of Indian Affairs, 27 IBIA 48 (1994).

Under NEPA the BIA has a duty to analyze the reasonably foreseeable environmental impacts of its proposed decision. Neighbors for Rational Development, Inc. v. Albuquerque Area Director, 33 IBIA 36, 43 (1998), citing Scientists' Inst. For Public Info. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 (D.C. Cir. 1972). The BIA is not required to make speculative inquiry concerning every possible use that might arise sometime in the future. An EIS will not be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Neighbors for Rational Development, 33 IBIA at 43-44. The BIA's task is to take a "hard look" at the environmental consequence of its proposed action. Neighbors for Rational Development, Id at 47. The decision in Neighbors for Rational Development involved the BIA's approval of a lease of tribal land, but the NEPA analysis is equally applicable to a decision to acquire land in trust.

The Secretary of the Interior is not required to comply with the National Historic Preservation Act (NHPA), 16 U.S.C. § 470, et seq. when he or she has no discretion to exercise when taking land into trust. Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250 (10th Cir. 2001). The NHPA requires federal agency heads to take into account the impact of any "Federal or federally assisted undertaking" on sites listed or eligible for listing in the National Register of Historic Places. Sac and Fox. Because of the operational similarity of NEPA and NHPA the courts generally treat "major federal actions" under NEPA as closely analogous to "federal undertakings" under NHPA. Sac and Fox.

The acquisition regulations at 25 C.F.R. § 151.10(h) require the BIA to consider the extent to which an applicant has provided information that allows the Secretary to comply with NEPA, 516 DM 6, appendix 4 and 602 DM 2, Hazardous Substances Determinations. The Board will not hear an appeal of NEPA findings prior to the time the underlying decision is made. In the context of land acquisition decisions, the Board will stay an appeal of a NEPA finding until the decision whether or not to acquire land in trust has been made. Citizens for Safety and Environment v. Northwest Regional Director, 37 IBIA 282 (2002); Viejas Band of Mission Indians and County of San Diego, California v. Pacific Regional Director, 38 IBIA 73 (2002); David Evitt, Russell Evitt, Doris Evitt, and James Edmonds v. Acting Pacific Regional Director, 38 IBIA 77 (2002); Voices for Rural Living and Shingle Springs Neighbors for Quality Living and El Dorado County, California, and El Dorado County Board of Supervisors v. Pacific Regional Director, 38 IBIA 124 (2002).

7. Department of Justice Title Standards

The Department of Justice Title Standards apply to the acquisition of land in trust unless the statute authorizing the acquisition specifically provides otherwise. Tohono O'Odham Nation v. Acting Phoenix Area Director, 22 IBIA 220 (1992).


V. Appeal Process

A. Timing

The Regional Director may not issue a decision on an appeal until the time for filing answers to the appeal has run as required by 25 C.F.R. § 2.11(c). A decision issued before interested parties have had the opportunity to respond to the appeal is premature and may result in a remand of the decision. Knecht Enterprises, Inc. v. Great Plains Regional Director, 37 IBIA 258 (2002); Ziebach County, South Dakota v. Aberdeen Area Director, Bureau of Indian Affairs, 33 IBIA 239, 244 (1999), Citing, Laducer-Bercier v. Aberdeen Area Director, 32 IBIA 104 (1998); Cheyenne River Sioux Tribe v. Acting Aberdeen Area Director, 28 IBIA 288 (1995); Scott v. Acting Aberdeen Area Director, 25 IBIA 115 (1994); Meeks v. Aberdeen Area Director, 23 IBIA 200 (1993); Jerome v. Acting Aberdeen Area Director, 23 IBIA 137 (1992); Cheyenne River Sioux Tribe v. Aberdeen Area Director, 23 IBIA 103 (1992). A premature decision deprives the interested parties of the rights given to them by the regulations and thus of their right to due process. Knecht Enterprises, Inc., 37 IBIA 258, 262.

Appellants must file their appeals within thirty days of receipt of the decision being appealed. Heirs of Jimmie George, Sr. v. Alaska Regional Director, 37 IBIA 146 (2002). Where the BIA has not provided the appellant with a copy of its decision or its decision does not contain appropriate appeal information, the appellant's right to appeal is tolled. Estate of Jimmie George. Appellants must prove that they have timely filed pleadings with the appropriate office. Miami Tribe of Oklahoma v. Muskogee Area Director, 27 IBIA 153 (1995). When the BIA has given correct appeal information in its decision and the appellant fails to timely file its appeal with the proper office the Board will dismiss the appeal as untimely. Jackson County, Kansas v. Acting Southern Plains Regional Director, 39 IBIA 78 (2003); City of Sault Ste. Marie, Michigan v. Acting Minneapolis Area Director, 30 IBIA 218 (1997).

B. Appellant's Burden of Proof and the IBIA's Standard of Review

Decisions as to whether to acquire land in trust are discretionary. In reviewing BIA discretionary decisions, the Board does not substitute its judgment for BIA's. Instead, it reviews such decisions "to determine whether BIA gave proper consideration to all legal prerequisites to the exercise of its discretionary authority, including any limitations on its discretion established in regulations." City of Eagle Butte, South Dakota v. Aberdeen Area Director, 17 IBIA 192, 96 I.D. 328, 330 (1989). See also McAlpine v. United States, 112 F.3d 1429 (10th Cir. 1997); City of Lincoln City, Oregon v. Portland Area Director, 33 IBIA 102, 103-04 (1999), and cases cited therein. In regard to BIA discretionary decisions, the appellant bears the burden of proving that the Area Director did not properly exercise his discretion. Lincoln City, 33 IBIA at 104, and cases cited therein.

City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188 (2001). See also, City of Isabel, South Dakota v. Great Plains Regional Director, 38 IBIA 263, 264 (2002); State of Iowa and Board of Supervisors of Pottawattamie County v. Great Plains Regional Director, 38 IBIA 42 (2002); County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 (2002); Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14 (2001); Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantations v. Eastern Area Director, 35 IBIA 93 (2000); Kialegee Tribal Town of Oklahoma v. Muskogee Area Director, 19 IBIA 296, 299 (1991). The appellant does not carry the burden of proof by simple disagreement or by generalized argument with the BIA's decision. It must allege specific facts which show that the BIA has not properly exercised its discretion. City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188 (2001); Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14, 21 (2001); Ziebach County, South Dakota v. Aberdeen Area Director, 33 IBIA 239, 243 (1999). General and unsupported allegations are insufficient to carry the appellant's burden of proof. Miami Tribe of Oklahoma v. Muskogee Area Director, 27 IBIA 123 (1995).

The IBIA will summarily affirm the Regional Director's decision if an appellant fails to provide reasons for its appeal because the appellant must show how the BIA erred in addressing the arguments made before it. Dewey County, South Dakota v. Acting Aberdeen Area Director, 36 IBIA 107 (2001); Thurston County Board of Supervisors v. Aberdeen Area Director, 34 IBIA 249 (2000); Dewey County, South Dakota v. Acting Aberdeen Area Director, 34 IBIA 247 (2000); Oklahoma Petroleum Marketer's Association, and Muskogee County, Oklahoma Commissioners v. Muskogee Area Director, 35 IBIA 285 (2000); Dewey County, South Dakota v. Aberdeen Area Director, 34 IBIA 160 (1999). "An appellant who fails to make any allegation concerning how an Area Director's decision is in error, let alone any argument in support of such an allegation, has not carried this burden of proof." Merceline Warrington, et al. v. Anadarko Area Director, 31 IBIA 312, 313 (1997). The IBIA will not issue instructions to the BIA in how it should consider trust acquisition requests. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 102 (2001). The Board ordinarily declines to consider arguments or evidence presented for the first time in a petition for reconsideration. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 38 IBIA 108 (2002).

The Board's scope of review differs according to whether the appellant raises a legal objection to the BIA's decision or challenges his exercise of discretion. State of Kansas v. Acting Southern Plains Regional Director, 36 IBIA 152 (2001). Legal objections which are unsupported by cases, law, or any analysis whatsoever are insufficient to carry the burden of proof. State of Kansas, 36 IBIA 152, 155. The Board has full authority to review any legal challenges that are raised in a trust acquisition case. When challenging a legal determination of the BIA the appellant bears the burden of proving that the Area Director's decision was in error or not supported by substantial evidence. County of Mille Lacs, 37 IBIA 169, 170; Town of Charleston, 35 IBIA 93, 96. "Appellant's speculations do not carry its burden of proof that another use of the lot is actually intended." Lake Montezuma Property Owners Association, Inc. and Yavapai County, Arizona, and Yavapai County Board of Supervisors v. Phoenix Area Director, 34 IBIA 235 (2000). See also, State of Iowa and Board of Supervisors Pottawattamie, Iowa v. Great Plains Regional Director, 38 IBIA 42, 52 (2002).

Appellants are not entitled to an evidentiary hearing in appeals of land acquisitions. "There is no requirement in 25 U.S.C. § 465 or 25 C.F.R. Part 151 that an evidentiary hearing be conducted for trust acquisition applications." State of Kansas, 36 IBIA 152, 158. Due process is satisfied by an opportunity to present written evidence to the Bureau of Indian Affairs. Appellants challenging land acquisition decisions have two opportunities to present evidence to the BIA; first, when given notice of the appeal and solicited for comments; and second, when on appeal before the BIA. Further, the BIA may solicit any additional information which it believes will assist in its analysis. If the BIA solicits additional information from any party, it must allow responses by other parties. State of Kansas, 36 IBIA 152, 159.

The IBIA will not review tax information on appeal that is different from the information that the appellant presented to the BIA. Rio Arriba, New Mexico, 36 IBIA 14, 23 (2001). The Regional Director's decision is proper if it relies on tax information that is accurate at the time the decision is made. If the appellant presents inaccurate tax information it will not be heard to complain about error based on the inaccuracy. Rio Arriba, Id at 24. If a great deal of time passes between the submission of comments and the issuance of an acquisition decision, the IBIA recommends that the BIA offer State and local governments an opportunity to update their comments.

The Board's review authority of trust acquisitions is narrow. The Board exercises only that authority delegated to it by the Secretary of the Interior. The Secretary may, by special delegation or request, remove the limitation on the Board's review authority. Village of Ruidoso, New Mexico v. Albuquerque Area Director, 31 IBIA 143 (1997). The Board declines to issue instructions to the BIA regarding its reconsideration of a trust application on remand. An appellant may make its arguments to the BIA and if necessary file another appeal with the Board if dissatisfied with the BIA's decision. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 102 (2001).

The Board cannot order the BIA to take land into trust. At most it will remand a decision back to the BIA for further consideration and then only if it finds some legal insufficiency in the decision. Yerington Paiute Tribe v. Acting Western Regional Director, 36 IBIA 261, 264 (2001). The Board will uphold the BIA's requirement that a tribe meet and attempt to negotiate with local governments their tax and use objections to proposed land acquisitions. Yerington Paiute Tribe . In cases where the dispute between the parties would best be resolved by agreement, it may order the parties to try alternative dispute resolution. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, Docket Nos. IBIA 02-25-A and 02-85-A (Order Staying Proceedings, April 25, 2002). [Webmaster's Note: Docket No. IBIA 02-25-A was decided on July 24, 2002, 38 IBIA 18.] While the Board may require the parties to assess alternative dispute resolution, it will not require them to participate in it against their wishes. Rio Arriba. The Board recommended that the parties contact Elena Gonzalez, Director of the Department's Office of Collaborative Action and Dispute Resolution [1801 Pennsylvania Avenue, N.W., Suite 500, Washington, D.C. 20006, (202) 327-5383] to explore and assess alternative dispute resolution.

C. Standing to Appeal a Land Acquisition Decision

Appellants must show that they have standing to pursue an appeal of the acquisition of land in trust. Marlene Dawson v. Northwest Regional Director, 39 IBIA 213 (2003); Tom Dudek and Bill Haensly v. Acting Assistant Portland Area Director, 23 IBIA 88 (1992). The appellants in Dudek were neighbors who objected to the proposed use of the property. They alleged that the applicant would use the property in a way which violated certain restrictive covenants and county zoning. The Board dismissed their appeal for lack of standing when they failed to file a brief which showed that they had a legal interest in maintaining the restrictions upon the property to be acquired. See also, Edward Lensby v. Midwest Regional Director, 38 IBIA 72 (2002); Frank Riordan and Chuck Tidrington v. Northwest Regional Director, 38 IBIA 258 (2002). The Board has held that the principles of standing discussed in Board decisions apply not only to trust acquisitions appeals to the Board, but also to trust acquisition appeals to BIA Regional Directors from decisions issued by BIA superintendents. Shawano County Concerned Property Taxpayers Association and Scott Seaborne, v. Midwest Regional Director, 38 IBIA 156 (2002). If the Regional Director proposes to make a finding in an appeal based on an appellant's standing or lack of standing, it is highly recommended that the conclusion be reviewed by the appropriate Solicitor's Office.

In Friends of East Willits Valley v. Acting Pacific Regional Director, 37 IBIA 213 (2002) the appellants were an unincorporated association of county residents who objected to the proposed use of the proposed trust acquisition. The appellants asserted that they were an interested party in the matter. The Board found that the appellants lacked standing to file the appeal because they failed to meet the test for standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which requires: 1) an "injury in fact" - an invasion of a legally protected interest which is concrete and particularized -- "actual or imminent, not conjectural" or hypothetical; 2) there must be a causal connection between the injury and the conduct complained of - the injury has to be traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and 3) it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision. A plaintiff who raises only a general grievance which claims only harm to his and every other citizens interest and which benefits him no more than the public at large does not meet the test for standing. Friends of East Willits Valley, citing Lujan. The Board adopts the traditional standing analysis which is based on the analysis developed in the Federal courts. Friends of East Willits Valley.

The Board has recognized that an appellant may have standing based on an environmental interest in the decision, but must still show that it will suffer a concrete injury that affects it in a personal and individual way. Further, there must be a causal relationship between the injury and the conduct complained of. David Evitt, Russell Evitt, Doris Evitt, and James Edmonds v. Acting Pacific Regional Director, 38 IBIA 77, 80 (2002). In the Evitt case, the appellants who were nearby property owners, could not show the causal relationship because the alleged injuries could occur regardless of whether or not the land was placed in trust. The tribe proposed to build some housing which would cause additional burden to roads, cause noise and require additional utilities. However, the tribe could have proceeded with its plans even if the property were not taken into trust and the Board found that because the development could proceed regardless of trust status, the appellant had failed to establish the causal relationship and therefore, failed to show that they had standing to challenge the trust acquisition.

The Board will not address the standing of non-governmental appellants if governmental appellants have filed an appeal and the arguments of the governmental and non-governmental appellants are the same. Oklahoma Petroleum Marketer's Association and Muskogee County, Oklahoma, Commissioners v. Muskogee Area Director, 35 IBIA 285 (2000).


VI. Conclusion "The Rules of Acquisition"

A number of "firm" rules may be distilled from the IBIA's cases and they should be reviewed by BIA realty staff and land acquisition decision makers regularly.

  • Know what acquisition authority is being used for the acquisition, whether it is discretionary or mandatory, and follow the appropriate procedure.

  • The delegation of discretionary authority presumes that you will actually exercise some discretion - there is no right to have land acquired in trust (unless the acquisition authority is mandatory)

  • Give the appropriate notices required by the acquisition regulations, err on the side of over inclusion rather than under inclusion, and document the file with proof of the notice.

  • Consider all of the required criteria under 25 C.F.R. § 151.10, 151.11 or the terms, conditions, and restrictions of the authorizing statute as appropriate.

  • Make sure that your administrative file contains documentary evidence for each criteria and that your decision recites the facts supporting your finding for each criteria.

  • Request the applicant to provide any additional information which will assist you in making a decision - request more information if you need it.

  • The IBIA reviews BIA land acquisition decisions to insure that the BIA considered all of the appropriate criteria - it does not substitute its judgment for that of the BIA.

  • The IBIA will remand for further consideration any decision which does not consider all criteria or is not supported by the administrative record.

  • The IBIA will affirm the BIA's decision if it is reasonable in its overall analysis of the factors - there is no requirement that the BIA reach a particular conclusion as to any factor nor any requirement as to how it should balance the factors of any particular case.

  • Give notice of your decision to all interested parties - for both mandatory and discretionary decisions.

  • DO NOT make your decision before the interested parties have had time to file answers to the appeal - answers must be filed within 30 days after receipt of the statement of reasons.

  • DO NOT approve the deed taking the land in trust before the 30 day published notice has run and you have VERIFIED that no complaint has been filed.

  • On appeal the appellant bears the burden of proving that your decision is in error - general arguments, simple disagreement, or mere speculation will not carry the burden of proof.

  • Recommend ADR to resolve disputes between tribal applicants and state and local governments - litigation in the federal district courts and subsequent appeals can take years to resolve and the land will not be placed in trust during the pendency of litigation.