Cermak, Raymond L. Sr. v. Acting Minneapolis Area Director, 32 IBIA 77 (1998)

• Court: Interior Board of Indian Appeals

: Order Dismissing Appeal : : : Docket No. IBIA 97-57-A : : : : February 25, 1998

Raymond L. Cermak, Sr. (Appellant) 1/ seeks review of an October 2, 1996, decision issued by the Acting Minneapolis Area Director, Bureau of Indian Affairs (Area Director; BIA), concerning Indian Land Certificates Nos. 64 and 65 (Land Certificates), which were issued to John Cermak in 1944. Appellant sought possession of the lands covered by the Land Certificates. For the reasons discussed below, the Board of Indian Appeals (Board) dismisses this appeal.

On June 6, 1995, the Board issued a decision in Gitchel v. Minneapolis Area Director, 28 IBIA 46, holding that John Cermak held no interest in the lands covered by the Land Certificates that could be inherited. Gitchel was based on the Board's earlier decision in Brewer v. Acting Deputy Assistant Secretary--Indian Affairs (Operations), 10 IBIA 110, 89 Interior Dec. 488 (1982). In Gitchel, the Board stated:

[T]he substantive issue in this appeal was resolved finally for the Department in Brewer. The Board clearly held in that case that land assigned by a land certificate like the ones at issue here "were never personally allotted to" the certificate holder, who was therefore "not * * * the beneficial owner of an interest in allotted Indian trust lands." 10 IBIA at 119, 89 I.D. at 492. Further, as discussed in Brewer, there is simply no question as to the intent of Congress in 1980 to convey the beneficial title to these lands to the [Shakopee Mdewankanton Sioux] Community. 2/

28 IBIA at 48.

By letter dated June 27, 1996, Appellant, purportedly writing on behalf of the "Cermak family," asked the Area Director to reopen the matter. In ______________________________ 1/ Appellant's Reply Brief states that it was filed on behalf of Appellant and Stanley Cermak. The Notice of Appeal and statement that no opening brief would be filed indicated that they were filed only on behalf of Appellant. The Board concludes that Stanley Cermak is not an appellant in this matter.

2/ See Act of Dec. 19, 1980, 94 Stat. 3262.

his October 2, 1996, decision, the Area Director declined to do so, relying in part on the Board's decision in Gitchel.

Appellant states that he is the grandson of John Cermak and that he seeks to obtain the lands covered by the Land Certificates. In Gitchel, the Board found that John Cermak had executed a will which devised to his son Edward "the interest that I may have in the real property granted to me by Indian Land Certificates number 64 and number 65." 28 IBIA at 47, n.1. The Board further found that Edward died on May 21, 1992. 28 IBIA at 47. Appellant does not dispute the accuracy of these statements. He also does not attempt to show that he was named as the devisee to the lands covered by the Land Certificates in a will executed by Edward, that he is Edward's intestate heir, or that he would otherwise be entitled to take this land, if it were devisable and/or inheritable. Thus, Appellant has failed to show that he has even an arguable legal claim to the lands covered by the Land Certificates, and has therefore failed to show standing to bring this appeal. Cf. Candelaria v. Sacramento Area Director, 27 IBIA 137, 142 (1995) (when a tribal member seeks BIA approval of a lease of tribal land allegedly assigned to him/her, that member must begin by showing that he/she is in fact the legally recognized assignee).

However, assuming arguendo that he could show standing, Appellant still could not prevail. Appellant is actually seeking reversal of Gitchel, on which the Area Director relied in reaching his October 2, 1996, decision, and of Brewer, on which the Board based its decision in Gitchel. Based on this fact, the Area Director and the Community argue that this appeal is barred by res judicata and/or collateral estoppel.

"Under the doctrine of res judicata, a...