Partners in Action Conference June 24, 2015 Kara Pfister Attorney Office of the Field Solicitor

Survey of Recent IBIA Decisions:

Fee-to-Trust AcquisitionsPartners in Action Conference

June 24, 2015

Kara Pfister AttorneyOffice of the Field Solicitor

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The IBIA exercises its delegated authority from the Secretary of the Interior and is separate and independent from the BIA and the AS-IA. The Board’s authority is found at 43 CFR 4.1.

The purpose of the Board is to provide independent, objective administrative review of decisions of BIA officials and to prevent the politicization of those decisions. Griffith v. Acting Portland Area Director, 19 IBIA 14 (1990).

Its decisions are final for the Department and may be appealed to the United States district courts.

Introduction to IBIA

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The IBIA is composed of three administrative law judges: ◦ Steven K. Linscheid, Chief Administrative Judge◦ Thomas A. Blaser, Administrative Law Judge ◦ Robert E. Hall, Administrative Law Judge.

IBIA has the authority to consider a variety of appeals.

Introduction to the IBIA (cont.)

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For example, appeals arising from BIA decisions may concern:◦ Fee-to-trust land acquisitions;◦ The use of Indian trust lands (e.g., lease approval,

enforcement, cancellation, and rental rate adjustment); ◦ The use of mineral resources; ◦ Conveyances of rights-of-way on Indian lands; ◦ Land sales, exchanges, or other encumbrances; ◦ Trespass; and◦ Disputes over the recognition of tribal officials for government-

to-government relations between the Department and a tribe. IBIA also considers appeals from decisions issued by

administrative law judges and Indian probate judges in OHA's Hearings Division.

Introduction to IBIA (cont.)

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The Board is located in Arlington, Virginia.

In calendar year 2014, the Board decided approximately 100 cases.

The Board has issued at least 15 decisions involving fee-to-trust issues in the past few years.

IBIA decisions are available on-line beginning with decisions issued in 1970.

The decisions can be found at the Board’s website at www.oha.doi.gov.

Introduction to IBIA (cont.)

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My presentation is intended to cover 2014 and 2015 FTT decisions in reverse chronological order.

◦ City of Moses Lake, Washington v. Northwest Regional Director 2015 I.D. Lexis 41 (Mar. 17, 2015).

◦ Darrell Chissoe v. Acting Eastern Oklahoma Regional Director, BIA 59 IBIA 304 (Jan. 9, 2015).

◦ Desert Water Agency v. Acting Pacific Regional Director, BIA 59 IBIA 119 (Sep. 8, 2014).

◦ State of New York, et al., v. Acting Eastern Regional Director, BIA 58 IBIA 323 (June 11, 2014).

◦ Preservation of Los Olivos & Preservation of Santa Ynez v. Pacific Regional Director, BIA 58 IBIA 278 (June 3, 2014).

◦ Cherokee Nation v. Acting Eastern Oklahoma Regional Director, BIA 58 IBIA 153 (Jan. 6, 2014).

Recent IBIA Decisions

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In reverse chronological order ~

City of Moses Lake, Washington v. Northwest Regional Director, BIA, 2015 I.D. Lexis 41, 60 IBIA 111(Mar. 17, 2015) ◦ Confederated Tribes of the Colville Reservation (Tribe)◦ Off-Reservation Acquisition (68 miles) ◦ Order Affirming Decision

◦ Tribe proposed construction and operation of a gas station, convenience store, and a smoke shop on the parcel which is located at an exit off I-90 in Washington State.

◦ Appellant argued: RD failed to give greater scrutiny to the Tribe’s anticipated benefits. RD failed to give greater weight to the concerns raised by the City.


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City of Moses Lake, 60 IBIA 111 (cont.)

◦ Standard of Review Where BIA’s decision to take land into trust is discretionary, Board

does not substitute its judgment for that of BIA. Board reviews discretionary 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.

While the RD must consider the relevant factors in Part 151, “there is no requirement that BIA reach a particular conclusion with respect to each factor, nor must each factor be exhaustively analyzed.

Appellant bears the burden of proving that BIA did not properly exercise its discretion.

Board reviews legal issues raised in a trust acquisition case de novo.


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City of Moses Lake, 60 IBIA 111 (cont.)

◦ RD determined Tribe’s goals of developing jobs for its young population and generating income for Tribe could be served by development of the Property.

◦ RD stated that, due to distance from Tribe’s reservation, he was giving greater scrutiny to Tribe’s anticipated benefits associated with the project.

◦ In reviewing the RD’s decision, the Board determined whether the RD considered and reasonably addressed the issues presented to him, and not as Appellant expanded those issues on appeal.

◦ “To the extent Regional Director only briefly addressed, in the Decision itself, the various concerns raised by Appellant, we think it sufficient – and not an abuse of discretion – considering Appellant’s own cursory discussion of its concerns in its communications with the Regional Director and Appellant’s failure to link its concerns in any concrete way to the reduction in tax revenues resulting from the acquisition.”


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Darrell Chissoe v. Acting Eastern Oklahoma Regional Director, BIA, 59 IBIA 304 (Jan. 9, 2015)

◦ Appellant on behalf of Deceased Person◦ Order Affirming Decision

◦ BIA Superintendent rejected application submitted by the Appellant to reinstate a fee-to-trust application submitted by Appellant as guardian of holder of restricted interest who was now deceased.

Recent IBIA Cases

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Darrell Chissoe, 59 IBIA 304 (cont.)◦ Superintendent:

1st ~ With Chissoe’s death, title vested in his heirs or devisees and until the probate process concluded there was not individual who could convey marketable title to the United States.

2nd ~ BIA’s fee-to-trust regulations do not permit trust acquistion for a deceased individual or an estate.

3rd ~ Even if BIA’s regulations permitted it, RD was not exercising her discretion to so acquire the land in trust.

◦ RD affirmed the Superintendent on several grounds including that BIA’s fee-to-trust regulations do not authorize BIA to acquire Chissoe’s fee title in trust for him now that he is deceased, or for his estate.

Recent IBIA Cases

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Darrell Chissoe, 59 IBIA 304 (cont.)◦ IBIA noted it was reviewing RD’s legal conclusions de

novo.

◦ IBIA noted that the definition of "Individual Indian" in the fee-to-trust regulations uses the present tense which suggests, if not compels, a reading that the term was intended to be limited to living persons. 25 CFR § 151.2.

◦ Moreover, factors BIA is to consider in evaluating FTT application from an individual reinforce limiting construction of term to living person.

Recent IBIA Cases

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Desert Water Agency v. Acting Pacific Regional Director, BIA, 59 IBIA 119 (Sep. 8, 2014)◦ Agua Caliente Band of Cahuilla Indians (Tribe)◦ On-Reservation (status confirmed)◦ Order Affirming Decision

◦ Outlines, “well-established” standard of review. Citing, primarily, Shawano County, Wisconsin v. Acting Midwest

Regional Director, 53 IBIA 62 (2011)

◦ Three Issues: (1) Appellant challenged the on-reservation status. (2) Appellant sought condition on Secretarial approval to require

future payments of water assessments. (3) Taxes.

Recent IBIA Cases

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Desert Water Agency, 59 IBIA 119 (cont.)◦ ISSUE I – On-Reservation Status

◦ IBIA reviewed de novo the BIA’s conclusion that on-reservation criteria apply to evaluating application under 25 U.S.C. §151.10.

◦ Citing an earlier decision, IBIA explained that, as defined in § 151.2(f), the term “Indian reservation” ~ was not limited to the tribe’s treaty reservation, the tribe could have more than one reservation, and the tribe was presumed to exercise jurisdiction over its trust properties

even though not formally proclaimed a new reservation or added to the existing reservation pursuant to 25 U.S.C. § 467.

◦ “Accordingly, when land proposed for trust acquisition is contiguous to a parcel that is held in trust for the tribe, the land is considered to be contiguous to an Indian reservation for purposes of Part 151.”

Recent IBIA Cases

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Desert Water Agency, 59 IBIA 119 (cont.)◦ Nevertheless, the IBIA found that the RD did not provide a

reasoned explanation or citation to documents in the record to support the contiguous finding.

◦ Still, the IBIA may affirm a BIA finding of contiguity or non-contiguity where the record is sufficient to support such finding.

◦ IBIA has found that to be “contiguous”, the lands must touch. Parcels that “adjoin or abut” are contiguous. Parcels that share a boundary are contiguous.

◦ In this case, maps in the AR depict the northern boundary of the property to be acquired as touching a parcel held for the Tribe in trust.

Recent IBIA Cases

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Desert Water Agency, 59 IBIA 119 (cont.)◦ ISSUE II – Appellant took no position on whether the Secretary

should approve the application BUT requested the Secretary condition approval on the Tribe’s continuing payment of Appellant’s assessments for delivery of water.

◦ There was some factual confusion in that the parcel to be acquired contained no wells or ponds for pumping water and, thus, the Tribe was not paying assessments on the parcel to be acquired.

◦ Rather, the Tribe was paying assessments on a nearby parcel.

◦ Once the factual confusion was addressed, Appellant’s argument became that it is likely the Tribe will pump water from the underlying ground water basin.


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Desert Water Agency, 59 IBIA 119 (cont.)◦ Issue III – Property Taxes

◦ Appellant did not identify in its comments the amount of any tax loss nor explain how it would be impacted by such loss.

◦ IBIA found that in the absence of evidence and an explanation to the RD to show the impact resulting from the loss of revenue – and not merely that some revenue would be lost – RD’s consideration of impacts on removal of the parcel from the tax rolls was adequate.

IBIA Recent Cases

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State of New York, et al. v. Acting Eastern Regional Director, 58 IBIA 323 (June 11, 2014)◦ Saint Regis Mohawk Tribe (Tribe)◦ On-Reservation◦ Order Affirming Decision

◦ Five issues (1) Carcieri arguments (2) On-reservation / Off-reservation Analysis (3) RD’s Application of 151.10 Criteria (4) NEPA Challenge (5) Alleged Due Process Violation

Recent IBIA Cases

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State of New York, 58 IBIA 323 (cont.)◦ Issue I – Carcieri Argument

IBIA concluded that the Tribe was under Federal jurisdiction in 1934 as determined by the Secretary in calling an election for the Tribe’s members to vote on whether to opt out of the IRA.

How the Tribe voted is irrelevant because Congress, through the 1983 Indian Land Consolidation Act (ILCA), 25 U.S.C. § 2201 et seq., extended the land acquisition authority of the IRA to those tribes that originally voted to opt out of the IRA.

Thus, RD correctly relied on the IRA acquisition authority in deciding to take the parcel in trust for the Tribe.

Recent IBIA Cases

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State of New York, 58 IBIA 323 (cont.)◦ Issue II – On-Reservation / Off-Reservation Analysis

◦ IBIA noted the definition of “Indian reservation” in 25 CFR Part 151 (see, specifically, 151.2(f)).

◦ Citing the RD’s decision, the IBIA upheld it explaining the RD had correctly determined that the parcel was located on the Tribe’s reservation because it “is within that area confirmed to the Tribe by the United States by the [Treaty], which set aside a 6 square mile reservation” and “[t]here has not been a subsequent treaty or act of Congress . . . diminishing the reservation.”

Recent IBIA Cases

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State of New York, 58 IBIA 323 ◦ Issue II – On-Reservation Analysis (cont.)

◦ Appellants had asserted that City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), precluded the United States from recognizing the Tribe as having governmental jurisdiction over the parcel, and that the former reservation exception in Part 151 does not apply because there has been no final judicial determination that the reservation has been diminished or disestablished. Thus, a gap has been created in 151.2(f) and the off-reservation criteria must apply.

◦ IBIA explained that Appellants misread City of Sherrill as creating an exception to the rule that a reservation remains intact unless Congress diminishes or disestablishes the reservation. IBIA noted that the Court expressly did not determine that the Oneida’s reservation was disestablished. 544 U.S. at 219, n.9.

◦ Thus, IBIA concluded that for purposes of § 151.2(f), the parcel was within the current boundaries of the Tribe’s reservation as recognized by the United States.

Recent IBIA Cases

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State of New York, 58 IBIA 323 (cont.)◦ Issue III - RD’s Application of 151.10 Criteria

◦ Decisions concerning whether to take land into trust are discretionary, and Appellants bear the burden of proving that BIA did not properly exercise its discretion.

◦ Tribal “Need” for the Land – 151.10(b)

◦ In construing 151.10(b) – IBIA recognized that “BIA has broad leeway in its interpretation or construction of tribal “need” for the land.” RD had concluded that acquisition would help the Tribe address current and near

term need for a solid waste disposal facility. RD also found acquisition to be “supportive of the Tribe’s ability to exercise

governmental authority of its lands and its uses for the purpose of promoting health, welfare, and social needs of its members and their families” and “will also provide diversity to the Tribe’s economy and land base.”

◦ IBIA concluded RD’s findings were sufficient to show that he considered the Tribe’s need for additional land under 151.10(b), “which is all that he was required to do.”

Recent IBIA Cases

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◦ Tax Impacts – 151.10(e)

◦ RD had found that the 2008 tax assessment for the parcel was $2,646.81 and the only special assessment was for fire and emergency services in the amount of $82.81. Thus, RD found the annual tax loss from the parcel would be less than 0.003%.

◦ RD found Appellants identified no specific impacts from the lack of tax revenue collection.

◦ RD also considered that, like Municipalities, the Tribe provides a variety of services which have the effect of easing the Municipalities’ burden to provide services.

◦ RD considered the Tribe’s direct and indirect payments to the State and local governments to offset the loss of real property taxes.

◦ IBIA found that based on the AR, RD’s conclusion that the benefits of acquistion to the Tribe outweigh the potential impacts to Appellants stemming from the tax loss.

Recent IBIA Cases

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◦ Jurisdictional Impacts – 151.10(f)

◦ As a general rule an RD need not have made any finding on whether potential jurisdictional or land use conflicts could be resolved.

◦ It was unclear from Appellants’ submissions what new jurisdictional disputes would result from the transfer of title to the parcel to the United States in trust.

◦ While Appellants claimed the Tribe had a record of environmental mismanagement as to the parcel the record did not support those claims. However, Appellants did not identify problems in the Tribe’s prior use or environmental management of the parcel.

Recent IBIA Cases

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State of New York, 58 IBIA 323 (cont.)◦ Issue IV –NEPA Compliance

◦ 151.10(h) – BIA must consider the extent to which the applicant has provided information that enables BIA to comply with environmental analysis and review including NEPA.

◦ RD made a categorical exclusion (CE) determination under NEPA for the proposed acquisition because the Tribe had no plans to change the current use.

◦ The possibility of future development does not preclude the use of a CE: “Whether or not the conveyance may be categorically excluded is a matter of judgment by the BIA official responsible for NEPA compliance as to how well the plan [for future development] is established.”

◦ RD has no obligation to consider an appellant’s speculation about what might happen in the future.

◦ Appellants also contend that the Environmental Assessment (EA) prepared for the initial construction and operation of the facility was deficient. However, IBIA concluded that concerns about that EA, which was made available for public review, should have been raised earlier and in a different forum.

Recent IBIA Cases

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State of New York, 58 IBIA 323 (cont.)◦ Issue V –Due Process

◦ Appellants argued that they had been denied due process by not having been provided the opportunity to address the Tribe’s response to the Municipalities comments on the application.

◦ Section 151.10 requires that State and local governments be given an opportunity to comment on the Tribe’s application – and – the Tribe be permitted to respond to those comments. In this case, both procedural requirements were met.

◦ “[W]hile it may have been advisable for the Regional Director to provide the Municipalities with a copy of the Tribe’s response and an opportunity to reply, to the extent that it appeared that the parties disputed various facts, we conclude vacatur and remand was unwarranted because the Municipalities have not shown that any error was prejudicial.” The burden to demonstrate prejudicial error is on the party challenging the agency action.

Recent IBIA Cases

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Preservation of Los Olivos and Preservation of Santa Ynez v. Pacific Regional Director, BIA, 58 IBIA 278 (June 3, 2014)◦ Santa Ynez Band of Chumash Mission Indians of the

Santa Ynez Reservation, California (Tribe)◦ On-Reservation◦ Order on Remand / Order Dismissing Appeal / Order

Addressing Merits in the Alternative

◦ This is your case if you are curious about standing.

◦ This case also provides a nice history of BIA’s appeal regulations.

Recent IBIA Cases

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Preservation of Los Olivos, et al., 58 IBIA 278 (cont.)

◦ Generally, constitutional legal standing consists of three elements:1. A plaintiff must have suffered an “injury in fact” – an invasion

of a legally protected interest which is concrete and particularized and actual or imminent not 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.

3. “Redressability” – It must be likely and not speculative that the injury will be redressed by a favorable decision.

◦ See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1999).

Recent IBIA Cases

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◦ In decisions issued in 2006, 2007, and 2008, the IBIA had ultimately dismissed Appellants’ appeals on the grounds they lacked standing to challenge the BIA’s decision to acquire in trust for the Tribe a 6.9 acre parcel of land in Santa Barbara County, CA.

◦ Appellants’ appealed the Department’s decisions to the U.S. District Court for the Central District of California.

◦ The district court remanded this FTT case to the IBIA to consider whether there existed a possible distinction between administrative standing and judicial standing.

◦ IBIA reaffirmed its use of judicial principles of standing in applying the Board’s regulations to determine the minimum requirements of administrative standing.

Recent IBIA Cases

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◦ In applying standing principles to this appeal, IBIA looked to whether Appellants’ organizations were able to establish “organizational standing” i.e.,

1. Whether its members would have standing to sue in their own right.2. Whether the interests it seeks to protect are germane to the

organization’s purpose.3. Whether the issues to be resolved do not require the participation of

individual members.

◦ IBIA concluded that Appellants’ did not show that the economic interests of several of their members was germane to the organizations’ purposes to protect the rural character, and the air and water quality of the Santa Ynez Valley.

Recent IBIA Cases

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◦ Although IBIA found that the Appellants’ lacked standing, it still considered the case on the merits, in the alternative, in the interest of avoiding further delay, should this case return to court.

◦ “Contiguous” determination for purposes of on-reservation analysis.

◦ Part 151 does not define “contiguous” but IBIA has held that to be contiguous – “at a minimum the lands must touch.”

◦ Parcels that share a common boundary are contiguous even if that boundary is subsurface.

◦ The fact that a highway easement separates the actual land surfaces of the two parcels does not render them any less contiguous for purposes of section 151.10.

Recent IBIA Cases

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Cherokee Nation v. Acting Eastern Oklahoma Regional Director, BIA, 58 IBIA 153 (Jan. 6, 2014)◦ Cherokee Nation (Appellant / Tribe)◦ United Keetoowah Band of Cherokee Indians in Oklahoma (FTT

Applicant / UKB Tribe) ◦ Order Dismissing Appeal

◦ ASIA had issued 3 decisions related to UKB Tribe’s application to have BIA take land into trust on behalf of the UKB Tribal Corporation.

Recent IBIA Cases

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◦ Cherokee Nation, 58 IBIA 153 (cont.)

◦ ASIA’s decisions resulted in a partial remand of the matter to RD.

◦ RD concluded ASIA had already determined: UKB Tribe could apply to place land, owned by the Tribe in fee, in trust for its

tribal corporation pursuant to the Oklahoma Indian Welfare Act of 1936. Obtaining Appellant’s consent to the acquisition was not required as a

consequence of Department of the Interior’s 1999 Appropriations Act. Carcieri was not a barrier to this acquisition.

◦ RD was of the opinion his decision was ministerial because: He reviewed to complete NEPA’s CE checklist; He reviewed to update the environmental review; and He reviewed to confirm that there had been no change in land use.

Recent IBIA Cases

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Cherokee Nation, 58 IBIA 153 (cont.)

◦ As a general rule, IBIA does have jurisdiction to review decisions of BIA’s RDs. IBIA does not have jurisdiction to review a decision of the

Assistant Secretary.

◦ IBIA concluded that most, if not all issues raised in the appeal from the RD’s decision to take the land into trust were either decided by, encompassed within, or clearly implicate decisions issued by the ASIA thus warranting dismissal in whole or in part for lack of jurisdiction.

Recent IBIA Cases

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Cherokee Nation, 58 IBIA 153 (cont.)◦ During this appeal, another issue presented itself: Abstention.

◦ This doctrine permits a court, in the exercise of discretion, to relinquish jurisdiction where necessary to avoid needless conflict with the administration by a state of its own affairs. See Black’s Law Dictionary 5 (abridged 6th ed.)

◦ In the instant matter, Appellant had brought federal litigation on another FTT acquisition and among the issues in that litigation was whether the BIA’s trust acquisition for another tribe within the borders of Appellant’s historic treaty area would violate its treaty rights.

◦ IBIA did not dismiss the issue of Appellant’s treaty right to preclude other trust acquisitions within its boundaries for lack of jurisdiction but dismissed it on the grounds of abstention.

Recent IBIA Cases

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Village of Hobart, Wisconsin v. Acting Midwest Regional Director, 57 IBIA 4 (May 9, 2013) Order Affirming in Part, Vacating in Part, and Remanding◦ On-Reservation

This decision contains an extensive Carcieri discussion. Tribe is under federal jurisdiction if on the “Haas list” See pamphlet cited as: Theodore Haas, Ten Years of Tribal Government Under IRA (1947).

Tribe need not move to intervene in order to file a brief – Tribe is an interested party.

RD must consider tax impact on Village (the affected local jurisdiction) not just the County. RD decision must address taxes including stormwater fees. RD decision must address concerns raised by a commenter. RD may not address taxes in a conclusory fashion, i.e., may not simply call them speculative, unsupported, unpersuasive.

RD decision must address Village land use concerns as to zoning.

RD must explain what she means by “well established” jurisdictional pattern.

NEPA was not completed by the time Village comments were due – RD on remand must address subsequent environment comments.

Recent IBIA Decisions ~ Bonus Case

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My presentation was intended as a summary of recent, IBIA, FTT cases. Any errors or omissions are my own.

IBIA cases should be read completely and carefully because they are all very fact specific.

I recommend you consult with your Tribe’s Office of Legal Counsel – or if you are a federal employee with the Office of the Solicitor – when preparing materials that may serve as the basis for legal action.

Final Cautionary Note

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[email protected] 612-713-7106

Questions?

Documents

Partners in Action Conference June 24, 2015 Kara Pfister Attorney Office of the Field Solicitor