Jacobs, Chuck and Jennifer v. Great Plains Regional Director, 43 IBIA 249 (2006)

• Court: Interior Board of Indian Appeals

Order Dismissing Appeal Docket No. IBIA 05-9-A August 23, 2006

Chuck and Jennifer Jacobs (Appellants) seek review of a September 3, 2004 decision of the Great Plains Regional Director, Bureau of Indian Affairs (Regional Director; BIA). In that decision, the Regional Director affirmed the Superintendent's approval of an assignment of the grazing permit for Range Unit #510, on the Oglala Sioux Tribe's (Tribe) Pine Ridge Indian Reservation (Reservation) in South Dakota, from the Estate of Charles H. Merrill, III, to Mr. Chancy Wilson (Wilson). For the reasons stated below, the Interior Board of Indian Appeals (Board) dismisses this appeal for lack of jurisdiction.

Regulatory Framework

With limited exceptions, anyone wishing to graze livestock on Indian trust or restricted land must first obtain a permit to do so. Cheyenne River Sioux Tribe v. Acting Great Plains Regional Director, 41 IBIA 308 (2005) (citing 25 C.F.R. § 166.200). Grazing is administered through permits on "range units," consolidated tracts of Indian rangelands that BIA creates after consultation with the Indian landowners. 25 C.F.R. §§ 166.4, 166.302. BIA grants permits for range units, unless they consist solely of tribal lands, in which case the tribe grants the permit but BIA must approve it. Id. § 166.217(a) & (c).

Indian tribes may develop allocation procedures to apportion grazing privileges, including the number and kind of livestock to be grazed, on range units to tribal members without competition. 25 C.F.R. §§ 166.4, 166.218(a) & (b). The tribal allocation procedure gives tribal member recipients a preference to obtain grazing permits without having to engage in competition against other ranchers. Hall v. Great Plains Regional

Director, 43 IBIA 39, 40 (2006). BIA implements a tribe's allocation procedures by authorizing the allocated grazing privileges through granting or approving grazing permits. See 25 C.F.R. § 166.218(c).

The Tribe has enacted a grazing ordinance that governs grazing on the Reservation. See Oglala Sioux Tribe (OST) Ordinance No. 95-05. 1/ Under the grazing ordinance, the Tribal Allocation Committee (Allocation Committee) determines whether a potential permittee is eligible for allocation of grazing privileges for a particular range unit. Id. §§ 95-05(c), 95-05.3. 2/ If the Allocation Committee determines during the course of a permit period that a permittee is no longer eligible for grazing privileges, the range unit "will become available for allocation applications." Id. § 95-05.3(f)(2). In that situation, the Allocation Committee may revoke its allocation of grazing privileges and re-allocate grazing privileges to another eligible tribal member. Id. § 95-05.21. The Allocation Committee may also recommend that BIA cancel the permit and issue a new permit to a tribal member who is eligible. Id.

Relevant to this appeal, the Tribe's grazing ordinances also include an "estates" clause. That clause provides:

In the event of the death of an Oglala Sioux Tribal Member who has been previously declared eligible for allocation privileges the estate of the deceased member shall be eligible to continue in possession of the allocated grazing privileges for the remainder of the contract period or until such time as the estate is settled, whichever first occurs, provided that the estate continues to meet the eligibility requirements of this Ordinance. In the event the estate is settled prior to the end of the contract period the range unit shall be made available for allocation purposes. In the event an estate is not settled by the end of a contract period the allocation privilege shall be terminated and the range unit made available for allocation privileges.

Id. § 95-05(l).

1/ The grazing ordinance has been amended a number of times 2014 twice in 1995 (OST Ordinance Nos. 95-06 and 95-09), once in 2000 (OST Ordinance No. 00-15), and twice in 2001 (OST Ordinance Nos. 01-21 and 01-32).

2/ The grazing ordinance establishes specific requirements that a potential recipient of an allocation of grazing privileges must satisfy in order to be deemed eligible.

Id. § 95-05.3(c), (d) & (e).

Factual Background

This case involves a grazing permit, originally held by Charles Merrill, III, a member of the Tribe, for Range Unit #510 for the five-year period beginning on November 1, 2000 and ending on October 31, 2005. In 2002, Mr. Merrill died and the permit became part of the estate, administered by his son, Charles Merrill, IV (Merrill), as executor. On January 20, 2004, on behalf of the estate, Merrill completed a BIA "Assignment of Grazing Permit" form to assign the grazing permit to Wilson, a member of the Tribe, for the remaining term of the permit 2014 from January 20, 2004 through October 31, 2005. 3/

The minutes of an Allocation Committee meeting, dated February 26, 2004, indicate that the Allocation Committee had received three applications for allocation privileges on Range Unit #510 for the 2004-2005 grazing season, including an application from Appellants and an application from Wilson. 4/ The record does not reflect any event that precipitated the submission of these applications to the Allocation Committee. According to the minutes, at that meeting the Allocation Committee voted to not make any decision regarding allocation of the unit until the Committee received a statement from Merrill "releasing the unit."

The minutes of a second Allocation Committee meeting, held on March 9, 2004, indicate that the Allocation Committee, by a vote of 4 to 3, declined to "acknowledge" the assignment of the permit to Wilson. The minutes also reflect, however, that the Allocation Committee unanimously voted to "declare all applicants eligible." The minutes indicate that later in the meeting, the Allocation Committee voted 4 to 3 to deny a motion approving allocation of grazing privileges on Range Unit #510 to Wilson, and to grant a motion approving allocation of grazing privileges on the unit to Appellants.

In letters dated May 6, 2004, and May 17, 2004, the Superintendent notified the President of the Tribe and Appellants, respectively, that BIA had approved the assignment of the grazing permit for Range Unit #510 from the Merrill estate to Wilson. The Superintendent stated that approval of the assignment was appropriate because Merrill, as executor of the estate, requested that the permit be assigned to Wilson; the Allocation Committee had found Wilson to be eligible for an allocation of grazing privileges; and the

3/ Assignment of a grazing permit is defined as "an agreement between a permittee and an assignee, whereby the assignee acquires all of the permittee's rights, and assumes all of the permittee's obligations under a permit." 25 C.F.R. § 166.4.

4/ The third application was from Karen Twiss.

Solicitor's Office had advised BIA that there was no legal impediment to an executor of an estate conducting business "just as a regular permittee." May 6, 2004 letter from Superintendent to Tribe at 2; May 17, 2004 letter from Superintendent to Appellant at 1.

Appellants appealed the Superintendent's decision, arguing that the assignment "was made in direct conflict to the actions taken by the Allocation Committee on February 26, 2004 and March 9, 2004." Notice of Appeal of Superintendent's Decision at 2. Appellants argued that Merrill had voluntarily forfeited the estate's allocation of grazing privileges on Range Unit #510 5/, and that the Allocation Committee had accepted his forfeiture...