Chemeheuvi Indian Tribe, On Its Own Behalf and On Behalf of Its Assignees, Emmanuel Evans, Howard Irving Peach, Joseph Alan Lusch, Jr., Leona Gordon, Tony Fixel, Steven Dale Bacon, Christina Ray, Waco Escobar, Richard Sandate, Jr., Jesse Seymour Gordon, Michelle Delores Barrett, Angela Marie Jones, John Devilla, Rikki Harper, Dusti Rose Bacon, Mark Eswonia, Samiyah White, Sierra Pencille, Ramon Campass Martinez, Tito Katts Smith, Ramona Madalene Powell, Tiffany T. Adams, Evagelina Hoover, and Angela Carillo and Chemehuevi Indian Tribe, On Its Own Behalf and On Behalf of Its Assignees, Juana Bush, Adam Trujillo, Jr., Roberta Sestiaga, Shope Hinman, and Michelle Mendoza v. Western Regional Director, Bureau of Indian Affairs, 52 IBIA 192 (2010)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Chemehuevi Indian Tribe, On Its Own Behalf and On Behalf of Its Assignees, Emmanuel Evans, Howard Irving Peach, Joseph Alan Lusch, Jr., Leona Gordon, Tony Fixel, Steven Dale Bacon, Christina Ray, Waco Escobar, Richard Sandate, Jr., Jesse Seymore Gordon, Michelle Delores Barrett, Angela Marie Jones, John Devilla, Rikki Harper, Dusti Rose Bacon, Mark Eswonia, Samiyah White, Sierra Pencille, Ramon Campass, Martinez, Tito Katts Smith, Ramona Madalene Powell, Tiffany T. Adams, Evagelina Hoover, and Angela Carillo and Chemehuevi Indian Tribe, On Its Own Behalf and On Behalf of Its Assignees, Juana Bush, Adam Trujillo, Jr., Roberta Sestiaga, Shope Hinman, and Michelle Mendoza v. Western Regional Director, Bureau of Indian Affairs 52 IBIA 192 (10/26/2010)

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

CHEMEHUEVI INDIAN TRIBE, ON ITS OWN BEHALF AND ON BEHALF OF ITS ASSIGNEES, EMMANUEL EVANS, HOWARD IRVING PEACH, JOSEPH ALAN LUSCH, Jr., LEONA GORDON, TONY FIXEL, STEVEN DALE BACON, CHRISTINA RAY, WACO ESCOBAR, RICHARD SANDATE, Jr., JESSE SEYMORE GORDON, MICHELLE DELORES BARRETT, ANGELA MARIE JONES, JOHN DEVILLA, RIKKI HARPER, DUSTI ROSE BACON, MARK ESWONIA, SAMIYAH WHITE, SIERRA PENCILLE, RAMON CAMPASS MARTINEZ, TITO KATTS SMITH, RAMONA MADALENE POWELL, TIFFANY T. ADAMS, EVAGELINA HOOVER, and ANGELA CARILLO, and CHEMEHUEVI INDIAN TRIBE, ON ITS OWN BEHALF AND ON BEHALF OF ITS ASSIGNEES, JUANA BUSH, ADAM TRUJILLO, JR., ROBERTA SESTIAGA, SHOPE HINMAN, and MICHELLE MENDOZA, Appellants, v. WESTERN REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Affirming Decisions

Docket Nos. IBIA 08-14-A 08-41-A

October 26, 2010

The Chemehuevi Indian Tribe (Tribe), on its own behalf and on behalf of 29 assignees, appealed to the Board of Indian Appeals (Board) from two decisions by the Western Regional Director (Regional Director), Bureau of Indian Affairs (BIA), dated September 21, 2007, and January 15, 2008. The Tribe had sought approval from BIA under 25 U.S.C. § 81 (§ 81) of land assignments made by the Tribe to each assignee pursuant to a land assignment program enacted by the governing tribal council.1 In both the September 21 and January 15 decisions, the Regional Director concluded that the proposed land assignments “may not be approved . . . for the reasons stated in our August 10, 2005, decision [2005 Decision].”2 Although the 2005 Decision became final for the Department of the Interior (Department) in 2005, we decline to apply res judicata to dismiss the Tribe’s present appeals because the Regional Director submitted a brief on the merits that departs in several material respects from his 2005 Decision, leaving his understanding of his own decision in doubt and undermining the principle of finality that the doctrine of res judicata is intended to serve. On the merits, we conclude that the Regional Director’s decisions properly held that the Tribe’s land assignments could not be approved under § 81, but we clarify why that is the case: They seek to convey an exclusive possessory interest that is intended to be perpetual and, as such, violates the Nonintercourse Act, 25 U.S.C. § 177 (§ 177). Through regulation, the Department has interpreted § 81 to apply to encumbrances not governed by or subject to other statutes and regulations, such as leasing statutes or § 177. We reject the Tribe’s argument that § 81 effectively granted the Secretary broad authority to approve encumbrances of land that convey a perpetual possessory interest, such as the Tribe’s assignments.1

Section 81 approval would have been sufficient and appropriate, no further action will be required by our office.” 2005 Decision at 5.8 On appeal to the Board, the Tribe argues that (1) the assignments constitute “encumbrances” under § 81; (2) they are not exempt from (and valid without) Secretarial approval under 25 C.F.R. § 84.004(d) because they are not temporary; and (3) as encumbrances lasting for 7 years or more, they fall within the scope of § 81 and may (and must) be approved by BIA, notwithstanding any limitations (e.g., leasing statutes) or outright prohibitions (i.e., § 177) that might otherwise apply if § 81 did not exist. The Tribe also argues that the assignments do not violate § 177, and thus the Regional Director erred in suggesting that they do. The Tribe expresses frustration that the Regional Director never directly took a position on whether the assignments constitute “encumbrances” within the meaning of § 81, the Tribe appears to be uncertain whether or not the Regional Director determined whether the assignments are temporary, and the Tribe criticizes the decision as never squarely explaining why these specific assignments, as created by the terms8

The fallacy of the Regional Director’s argument lies in (1) his complete disregard for the Tribe’s clear and unequivocal intent for the assignments to be permanent and not limited in duration, and (2) his mistaken belief that a conveyance of a property interest that is subject to the possibility of reversion is the same as a conveyance “for a time period of limited duration.” First, the Tribe is emphatic that its assignment deeds are intended to convey a perpetual “right to use tribal land” that is analogous to fee simple ownership interests in offreservation lands. Ordinance, § 1(F); see letter from Tribe to BIA, Nov. 30, 2007, at 1 (requesting approval for land assignments that convey “an exclusive right to possess, use and occupy, in perpetuity, various parcels or lots of [tribal trust] land.” Emphasis added). The Tribe’s interpretation of its own law is eminently reasonable, and BIA cannot simply ignore the Tribe’s own characterization of its Ordinance and land assignment program in evaluating the applicability of § 81. Second, the imposition of “conditions” on the assignees’ use of the land, and the possibility of a reversion to the Tribe does not render the assignments “temporary” or subject to “a period of time of limited duration.” Instead, the term of the conveyances is for an unlimited period, albeit with certain conditions. But an assignee (and his or her eligible heirs, transferees, or assigns) who continues to comply with these conditions retains the assignment in perpetuity. Whether or not one or more assignees (or heirs, transferees, or assigns) might fail to satisfy a condition, thus triggering the Tribe’s reversionary interest, does not mean that the assignments, as a class, constitute conveyances of a property interest that is for a period of limited duration. These events are not circumstances that ordinarily are expected to occur or that naturally occur. There is no rational basis for ascertaining that any one of the conditions will ever occur, much less when they might occur.12 Therefore, the mere fact that certain conditions attach to the permanent interest acquired through the assignment, and that the occurrence of one or more of those conditions could trigger a12

[1]. The Regional Director’s September 21 decision, Docket No. IBIA 08-14-A, addressed 24 land assignments to Emmanuel Evans, Howard Irving Peach, Joseph Alan Lusch, Jr., Leona Gordon, Tony Fixel, Steven Dale Bacon, Christina Ray, Waco Escobar, Richard Sandate, Jr., Jesse Seymore Gordon, Michelle Delores Barrett, Angela Marie Jones, John Devilla, Rikki Harper, Dusti Rose Bacon, Mark Eswonia, Samiyah White, Sierra Pencille, Ramon Campass Martinez, Tito Katts Smith, Ramona Madalene Powell, Tiffany T. Adams, Evagelina Hoover, and Angela Carillo; the January 15 decision, Docket No. IBIA 08-41-A, addressed the remaining 5 assignments to Juana Bush, Adam Trujillo, Jr., Roberta Sestiaga, Shope Hinman, and Michelle Mendoza. The two decision letters now before the Board are identical to each other except for the date the proposed assignments were submitted to BIA and the names of the proposed assignees. 52 IBIA 193

2

Statutory and Regulatory Framework At issue in this appeal is the intersection of two statutes, 25 U.S.C. §§ 81 and 177. Section 177, which was enacted in 1834 and has not been amended in the 175 years since its enactment, broadly prohibits purchases, grants, leases, or other conveyances of Indian tribal lands, “or of any title or claim thereto,” unless otherwise authorized by Congress. Section 81, as amended in 2000, prohibits “encumbrances” of tribal land for a period of 7 or more years, unless approved by the Secretary, but also provides that the Secretary shall refuse to approve such agreements or contracts if they “violate[] Federal law.” 25 U.S.C. § 81(d)(1). Through rulemaking, the Department has further prescribed which types of agreements or contracts are subject to approval under § 81, which ones are valid without Secretarial approval, and which ones do not require approval under § 81 but do require approval under other statutes in order to be valid. The Tribe submitted its land assignments to BIA for review under § 81, which provides in relevant part: (b) No agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary. (c) Subsection (b) shall not apply to any agreement or contract that the Secretary (or a designee of the Secretary) determines is not covered under that subsection. (d) The Secretary (or a designee of the Secretary) shall refuse to approve an agreement or contract that is covered under subsection (b) if the Secretary (or a designee of the Secretary) determines that the agreement or contract — (1) violates Federal law. . . . Pertinent regulations promulgated under § 81 include: § 84.003 What types of contracts and agreements require Secretarial approval under this part?

Unless otherwise provided in this part, contracts and agreements entered into by an...