Shawano County, Wisconsin v. Acting Midwest Regional Director, Bureau of Indian Affairs, 53 IBIA 62 (2011)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Shawano County, Wisconsin v. Acting Midwest Regional Director, Bureau of Indian Affairs 53 IBIA 62 (02/28/2011)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

SHAWANO COUNTY, WISCONSIN, Appellant, v. ACTING MIDWEST REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Affirming Decision

Docket No. IBIA 09-36-A

February 28, 2011

Shawano County, Wisconsin (County), challenges a December 1, 2008, decision of the Acting Midwest Regional Director (Regional Director), Bureau of Indian Affairs (BIA) to take approximately 404 acres into trust, pursuant to the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. § 465, for the Stockbridge-Munsee Community, Wisconsin (Tribe).1 The County, citing Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058 (2009), argues that because the Tribe did not have a reservation or trust land in 1934, it was not under Federal jurisdiction at that time and is thus ineligible to have land taken into trust under § 465. Assuming that BIA does have authority to take land into trust for the Tribe,1

(Feb. 5, 1856) (Treaty with the Stockbridges and Munsees). This land consisted of two townships that were formerly part of the Menominee Reservation and now known as the Towns of Bartelme and Red Springs, located on Ranges 13 and 14 East, Township 28 North, Shawano County, Wisconsin, 4th Prime Meridian. This new reservation, however, was subject to a plethora of issues that culminated in the public auction of 75% of the Tribe’s reservation, and the allotment to individual tribal members of the remaining 25% of the reservation. Act of February 6, 1871, ch. 38, 16 Stat. 404; Stockbridge-Munsee Community, 554 F.3d at 660.2 The individual trust allotments were placed in restricted status. Id. When there was insufficient land to issue allotments to all tribal members, Congress authorized the purchase of additional land (at the Tribe’s expense) for allotments or, alternatively, tribal members could accept cash in lieu of land. Act of June 21, 1906, Pub. L. No. 59-258, 34 Stat. 382 (1906 Act). Allotments under the 1906 Act were freely alienable. Stockbridge-Munsee Community, 366 F. Supp. 2d at 724. By 1910, all of the remaining “unsold land within the boundaries of the 1856 reservation was allotted to tribal members [and] the Tribe’s reservation was, for the most part, treated as if it had faded out of existence.” 554 F.3d at 661. Ultimately, the Court concluded that the reservation consistently was treated “as disestablished.” Id. at 665; see also id. (“the Tribe’s reservation was diminished by the 1871 Act and subsequently extinguished by the 1906 Act.”). Notwithstanding the lack of a tribal land base and pursuant to 25 U.S.C. § 478, the Secretary held an election for members of the Tribe on December 15, 1934, on the question of whether the Tribe would accept or reject the terms of the IRA. See Ten Years of Tribal Government Under I.R.A., United States Indian Service, 1947, at 20.3 The Tribe voted to accept the IRA by a vote of 166 to 1. Id. Even though the Tribe voted in the Secretarial election to accept the IRA, the Tribe’s application to reorganize under the IRA, see 25 U.S.C. § 476, initially was held up because it had no reservation land and no land remained in trust or restricted status for either the Tribe or individual members. See Stockbridge-Munsee Community, 366 F. Supp. 2d at 732,

Apparently, the land that was auctioned was “heavily forested and difficult to farm.” Id. According to the court’s decision, the United States did not allow the Tribe or its members to harvest the timber. Id. This document has been added to the record and may also be viewed at the website cited by the Regional Director, thorpe.ou.edu.IRA/IRAbook/index.html, as well as at the Department of the Interior’s website at library.doi.gov/images/Haas.TenYears.pdf. 53 IBIA 64

777. To rectify that, beginning in 1937, the United States began to reacquire certain lands within the boundaries of the Tribe’s 1856 reservation and “rededicat[ed] the property as the Tribe’s reservation.” Stockbridge-Munsee Community, 554 F.3d at 661 (citing 2 Fed. Reg. 629 (Apr. 1, 1937); 13 Fed. Reg. 7718 (Dec. 13, 1948); and Act of Oct. 9, 1972, Pub. L. No. 92-480, 86 Stat. 795). More recently, the Tribe has begun to acquire land on its own and has applied to have the land taken into trust. See, e.g., Shawano County, Wisconsin, Board of Supervisors v. Midwest Regional Director, 40 IBIA 241 (2005). The present appeal involves the Tribe’s fee-to-trust application for 5 properties totaling approximately 404 acres, all located in the Town of Bartelme. See n.1. The Tribe submitted its initial fee-to-trust application to BIA in September 2000.4 At that time, the Tribe’s application consisted only of the Herrmann, Dumke, and Stemlar properties. In April 2002, the Tribe submitted the Gara 2 and Collins properties to BIA for consideration. On December 14, 2004, the Superintendent determined to accept all parcels into trust on behalf of the Tribe. The County appealed to the Regional Director, arguing inter alia, that the environmental review was deficient. On February 16, 2006, the Regional Director issued his decision in which he agreed with the County that the environmental review was procedurally flawed, vacated the Superintendent’s decision, and remanded the matter to the Superintendent to address the issues raised by the County. On June 28, 2007, and after additional environmental analysis, the Superintendent again determined to take all 5 properties into trust for the Tribe. Again, the County appealed to the Regional Director, and raised many of the arguments that it now reiterates on appeal to the Board. The Regional Director issued his decision on December 1, 2008, and affirmed the Superintendent’s decision. The Regional Director found that the Superintendent properly had considered the fee-to-trust application pursuant to the “on-reservation” criteria set out in 25 C.F.R. § 151.10 because each of the 5 properties is located “within the boundaries of the Tribe’s reservation as set aside by the Treaty of 1856” and, therefore, meets the regulatory definition of “on-reservation” acquisition regardless of whether the reservation boundaries remain intact, or whether the reservation has been judicially determined to have been diminished or disestablished. Regional Director’s Decision at 3. The Regional Director further found that the Tribe’s application described its need for additional trust land, principally because its existing landbase was “largely cut-over and submarginal” and4

First, SCCPTA’s argument was rejected by the Supreme Court in John, where the State argued unsuccessfully that the Mississippi Choctaws had ceased to exist as a tribe and that the Federal government had abandoned its supervision of the Tribe, thus divesting the Federal government of any jurisdiction over the Tribe. The Supreme Court rejected that argument, concluding that even if the State’s jurisdiction had gone unchecked at times, and even if Federal supervision had not been continuous, that did not destroy the Federal government’s jurisdiction over the Tribe. Id. at 650 n.20, 652-53. Moreover, we find nothing in SCCPTA’s submission that undermines our conclusion that by calling and conducting an election for the Tribe in 1934, the Secretary necessarily recognized and determined that the Tribe was under Federal jurisdiction, notwithstanding the Department of the Interior’s admittedly inconsistent dealings with the Tribe in previous years. The historical record relied on by SCCPTA, much of which is recited in the District Court’s decision in Stockbridge-Munsee, includes statements by Departmental officials that the Tribe was no longer considered under Federal “control” or “supervision,” although we have found no statements that the Tribe was not under Federal “jurisdiction.” To the contrary, as SCCPTA itself concedes in its Appendix A, and as the court expressly found in Stockbridge-Munsee, the Federal government continued to have dealings with the Tribe in four areas (including sending school-age tribal members to government-run schools for tribal children) and BIA did not require the presence of a reservation in order for it to assert jurisdiction over Indians and provide services to them. See Stockbridge-Munsee, 366 F. Supp. 2d at 725-26, 730, 776; SCCPTA Appendix A ¶ 79.11 Thus, while there may have been no tribal land over which the Federal government exercised “supervision,” see 366 F. Supp. 2d at 731, 751, or jurisdiction, see SCCPTA Appendix B ¶ 10, the absence of trust land or a reservation does not mean that the Tribe was no longer under Federal jurisdiction. See John, 437 U.S. at 650. The evidence indicates that the Department continued to recognize the Tribe. See 366 F. Supp. 2d at 732 (Assistant Commissioner’s statement that the absence of a reservation meant there was no “present basis for organizing this tribe”) (emphasis added); 777 (Assistant Solicitor’s comments on review of the Tribe’s proposed constitution that organization of the Tribe “was originally held up, despite the fact that it constitutes a recognized tribe, because the Band had no reservation”). SCCPTA’s proposition that the termination of a land base11

meant that the Tribe itself had been terminated was soundly rejected by the court in Stockbridge-Munsee. See 366 F. Supp. 2d at 778 (“The issue is whether the StockbridgeMunsee Reservation, not the Tribe, was disestablished. The Act of 1906 is devoid of an indication that Congress intended to dissolve the Stockbridge and Munsee as a Tribe”). Again, as SCCPTA concedes in its Appendix A, BIA distinguished between tribes with reservations and those tribes with no remaining treaty-granted reservation lands, but did not exclude the latter category of tribes from elections on whether to accept...