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Survey of Recent  IBIA Survey of Recent  IBIA

Survey of Recent IBIA - PowerPoint Presentation

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Survey of Recent IBIA - PPT Presentation

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Slide1

Survey of Recent IBIA Decisions: Fee-to-Trust Acquisitions

Partners in Action Conference

June 24, 2015

Kara

Pfister

Attorney

Office of the Field Solicitor

Slide2

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

2Slide3

The IBIA is composed of three administrative law judges: Steven K. Linscheid, Chief Administrative JudgeThomas 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.)

3Slide4

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.)

4Slide5

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.)

5Slide6

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, BIA58

IBIA

278 (June 3, 2014).

Cherokee Nation v. Acting Eastern Oklahoma Regional Director, BIA

58 IBIA 153 (Jan. 6, 2014).

Recent IBIA Decisions

6Slide7

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.Recent

IBIA Decisions

7Slide8

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

.

Recent

IBIA

Decisions

8Slide9

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.”

Recent

IBIA

Decisions

9Slide10

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

Appellant on behalf of Deceased Person

Order Affirming DecisionBIA 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

10Slide11

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

1

st ~ 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.2

nd ~ BIA’s fee-to-trust regulations do not permit trust acquistion

for a deceased individual or an estate.

3

rd

~ 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

11Slide12

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

12Slide13

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

13Slide14

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

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

t

he 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

14Slide15

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

15Slide16

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.

Recent

IBIA

Decisions

16Slide17

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

17Slide18

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

18Slide19

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

19Slide20

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

20Slide21

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

21Slide22

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

Cases22Slide23

State of New York, 58 IBIA 323 (cont.)

Issue III -

RD’s Application of 151.10 Criteria

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

23Slide24

State of New York, 58 IBIA 323 (cont.)

Issue III -

RD’s Application of 151.10 Criteria

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

24Slide25

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

25Slide26

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

26Slide27

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-ReservationOrder on Remand / Order Dismissing Appeal / Order Addressing Merits in the AlternativeThis is your case if you are curious about standing.

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

Recent

IBIA

Cases

27Slide28

Preservation of Los Olivos, et al., 58

IBIA

278 (cont.)

Generally, constitutional legal standing

consists of three elements:

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.

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.

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

28Slide29

Preservation of Los Olivos, et al., 58

IBIA

278 (cont.)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

29Slide30

Preservation of Los Olivos, et al., 58

IBIA

278 (cont.)

In applying standing principles to this appeal, IBIA

looked to whether Appellants’ organizations were able to establish “

organizational standing

i.e.,

Whether its members would have standing to sue in their own right.

Whether the interests it seeks to protect are germane to the organization’s purpose.

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

30Slide31

Preservation of Los Olivos, et al., 58

IBIA

278 (cont.)

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

31Slide32

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

Cases32Slide33

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

33Slide34

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

34Slide35

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 6

th

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

35Slide36

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

36Slide37

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

37Slide38

kara.pfister@sol.doi.gov612-713-7106

Questions?

38