Miami Tribe of Okla. v. U.S.

Citation656 F.3d 1129
Decision Date30 August 2011
Docket NumberNo. 10–3060.,10–3060.
PartiesMIAMI TRIBE OF OKLAHOMA, Plaintiff–Appellee,v.UNITED STATES of America, Kenneth Salazar, Secretary, United States Department of the Interior, Larry Echohawk, Assistant Secretary of Interior, Bureau of Indian Affairs, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

OPINION TEXT STARTS HERE

Ellen J. Durkee (Ignacia S. Moreno, Assistant Attorney General, and M. Alice Thurston, United States Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, D.C., and Lanny D. Welch, United States Attorney on opening brief, and Barry R. Grissom, United States Attorney on reply brief, and David D. Zimmerman, Assistant United States Attorney, District of Kansas, Kansas City, KS, with her on the briefs), United States Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, D.C., for Appellants.Christopher J. Reedy (Kip A. Kubin, Bottaro, Morefield & Kubin, L.C., Kansas City, MO, with him on the brief) Olathe, KS, for Appellee.Before TYMKOVICH, McKAY, and GORSUCH, Circuit Judges.TYMKOVICH, Circuit Judge.

This appeal requires us to consider whether the Bureau of Indian Affairs (BIA) properly exercised its discretion to reject a gift of property by a member of the Miami Tribe of Oklahoma to the tribe.

James Smith wanted to transfer to the tribe a portion of his property interest in the Maria Christiana Reserve No. 35, located southwest of Kansas City, where the tribe has plans to develop gaming facilities. Federal law and restrictions on Smith's fee interest required the BIA to approve any transfer. Citing concerns regarding fractionation of the land interests in the Reserve as well as the long-range best interests of Reserve landowners, the BIA denied Smith's application to transfer the land. Miami Tribe challenges that decision. We hold the BIA properly exercised its discretion in denying the application.

This appeal also raises a novel jurisdictional question regarding our review of administrative decisions following a remand from district court. In this case, we conclude the government has not abandoned its right to challenge the district court's remand order, even though the government substantially prevailed in the district court's final judgment.

For the reasons set forth below, we find the district court erred in its remand order reversing the BIA's denial of Smith's application. Therefore we VACATE the district court's final judgment and its order reversing the BIA, and we REMAND for further consideration of Smith's application consistent with this opinion.

I. Background

The Maria Christiana Reserve No. 35 (Reserve) 1 is a 35–acre parcel of land located in Miami County, Kansas. It is approximately 180 miles from Miami Tribe's current land-base in Ottawa County, Oklahoma. Because it bears on the merits of this appeal, we review the relevant portions of the complicated history of Miami Tribe's emigration to, and eventual departure from, the Reserve.2

A. History of the Reserve

The origins of the Reserve trace back to 1838. Through a treaty with Miami Tribe, the United States set aside land west of the Mississippi River with the implied understanding that the tribe, then located in Indiana, would emigrate there. See Treaty with the Miamies, 7 Stat. 569, 571 (Nov. 6, 1838). In 1840, the tribe ceded all its land in Indiana and agreed to move to land in Kansas, which the United States Senate had designated. See Treaty with the Miamies, 7 Stat. 582, 582–85 (Nov. 28, 1840).

The tribe moved to the land in Kansas in 1846, but a large number of tribal members remained in Indiana and severed their relationship with the tribe. See Miami Tribe of Okla. v. United States, 281 F.2d 202, 213 (Ct.Cl.1960); 17 Op. Att'y Gen. 410, 411–12 (1882). The Miami Tribe was split into two groups: (1) the Western Miamis, who emigrated to Kansas and were considered part of Miami Tribe, and (2) the Indiana Miamis, who remained in Indiana and were no longer members of the tribe. See 12 Op. Att'y Gen. 236, 239 (1867).

In 1854, the Western Miamis ceded all but 70,640 acres of their land in Kansas to the United States in return for payments to the tribe and other investments. See Treaty with the Miami Indians, 10 Stat. 1093, 1093 (June 5, 1854). The 1854 treaty acknowledged the division of Miami Tribe into two groups—Western Miamis and Indiana Miamis—after its move to Kansas and excluded the Indiana Miamis from receiving payment for the ceded Kansas lands. Id. at 1094–95. The 1854 treaty, however, did divide up payments still owed to the Western and Indiana Miamis from the 1840 treaty. Id. at 1095. Only Indiana Miamis who were on an agreed-upon list, which could be modified only with the consent of the Indiana Miamis, would receive payment. Id. at 1099.

In 1858, several families, including that of Maria Christiana DeRome, petitioned Congress to be included on the list of Indiana Miamis who would receive payments under the 1840 treaty. The DeRome family were excluded from the 1854 list because they were not considered of Miami blood. Miami Tribe of Okla. v. United States, 927 F.Supp. 1419, 1424 (D.Kan.1996) (citing H.R. Exec. Doc. No. 23, 49th Cong., 1st Sess. 1, 6 (1886)). In a unilateral decision, Congress added the petitioners to the list.3 See Act of June 12, 1858, 11 Stat. 329, 332. Congress also directed that each individual receive a portion of the unpaid annuity payments and be allotted 200 acres of land from the 70,640 retained by the tribe in Kansas. Id. That is, these individuals were given land retained by the Western Miamis even though the individuals were not Western Miamis, or even considered of Miami blood. In 1859, the Reserve was patented as a restricted Indian allotment of 200 acres. 4 It was from this allotment that the Maria Christiana Reserve No. 35 was created.

Several years later the Miami Tribe, now consisting only of the Western Miamis, entered into a treaty encouraging it to move from Kansas to Oklahoma. See Treaty with the Peorias, Kaskaskias, et. al., 15 Stat. 513, 520 (Feb. 23, 1867). Congress agreed to purchase the Western Miami's unallotted lands in Kansas if the tribe signified its interest in selling, which it did. See Act of Mar. 3, 1873, 17 Stat. 631, 631. Those who remained in Kansas could, meeting certain requirements, become United States citizens, but would end their membership in the tribe. Id. at 632. Those members who moved to Oklahoma retained their tribal membership. Id.

Through that same 1873 legislation, Congress directed the Secretary of the Interior to take a census of the Western Miamis and determine who was entitled to the lands and monies set aside for the Western Miamis from the sale of their land in Kansas through the 1854 treaty. Id. In compiling this census, the individuals added by Congress in 1858 to the list of Miami Indians were not included. Id. at 632–33. These Miami Indians were not considered members of the Western Miamis and only Western Miamis were entitled to payment under the 1854 treaty. See 17 Op. Att'y Gen. 410, 414–15 (July 7, 1882). Those not on the census were not entitled to share in the proceeds from the lands sold under the 1873 legislation or from the annuities in the 1854 treaty. Id. Again, the legislation reinforced that individuals, such as Maria Christiana DeRome, were not part of the Western Miamis, who had settled in Kansas and eventually moved to Oklahoma.

In 1891, after a petition to Congress and an action before the Court of Claims, the United States reimbursed the Western Miamis for the money erroneously paid as back annuities to the individuals erroneously added in 1858 as well as for the value of the land allotted to them. See Miami Tribe of Okla., 281 F.2d at 212. Fast forwarding to 1960, the Western Miamis again brought suit in the Court of Claims, seeking interest on the payments made in 1891. The court awarded interest from the time of the erroneous payments (1858) and allotments (1859) until 1891. Id.

For this appeal, the most important fact is that Maria Christiana DeRome was not a member of the Western Miamis and should not have received the allotment of land that became the Reserve. In fact, Miami Tribe was reimbursed by the United States for the land improperly allotted to non-members-including the Reserve allotted to Maria Christiana DeRome.

B. Smith's Gift Transfer

Smith holds a 3/38 undivided restricted fee interest in the 35–acre Reserve. 5 While the Department of the Interior has found it “not entirely clear” how interests in the Reserve descended to the many heirs of Maria Christiana DeRome, it is undisputed that Smith inherited his interest as an heir of DeRome and shares his interest with over 20 other landowners.6 Aplt.App. at 149–50; see also id. at 171–78 (June 2009 BIA Title Status Report listing current interest-holders in the Reserve).

Smith is also a member of Miami Tribe. In 1996, to strengthen its connection with the Reserve, the tribe amended its constitution and adopted all current Reserve landowners, enlisting them as tribal members. Then, in 2001, Smith decided to give a portion of his interest to the tribe, ostensibly as a benefit to the tribe and its members. Because the land was held in restricted fee, as we describe in greater detail below, federal law required the BIA to approve the transfer. Smith applied to the BIA for approval to convey by gift 1/3 of his 3/38 undivided interest (i.e. 1/38 interest) in the Reserve to Miami Tribe.

The BIA denied Smith's application for two reasons. It found the transfer (1) was not in the long-range best interests of Smith or other Reserve landowners, and (2) conflicted with the federal government's policy of avoiding further fractionation of interests in Indian lands. Smith appealed to the Interior Board of Indian Appeals (IBIA) of the United States Department of the Interior, which affirmed the BIA's decision.

C. Federal Court Proceedings

Miami Tribe...

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