Ewing, Lynwood v. Rocky Mountain Regional Director, 40 IBIA 176 (2005)

Order Dismissing Appeal Docket No. IBIA 03-8-A January 3, 2005

This is an appeal from an August 26, 2002, decision of the Rocky Mountain Regional Director, Bureau of Indian Affairs (Regional Director; BIA), which affirmed the disapproval of Northern Cheyenne Tribal Council Resolution DOI-63 (2001), concerning the allocation of grazing privileges to Lynwood Ewing (Appellant), a member of the Northern Cheyenne Tribe. For the reasons discussed below, the Board dismisses this appeal.

On December 22, 1999, the Superintendent, Northern Cheyenne Agency, BIA (Superintendent; Agency), issued a notice titled "." The notice stated that all grazing permits on the Northern Cheyenne Reservation would expire on February 28, 2000, and that all range units on the reservation would become available for the permit period beginning March 1, 2000. The notice continued:

If you are a current range operator, you must submit an application for the RU you hold a permit in, along with a copy of your current brand certificate(s). Applications received without current brand certificate(s) will be considered incomplete.

.

BIA posted this notice at several locations on the reservation and mailed copies to current range operators. Appellant was then a current range operator with permits in range units 18A, 18B, and 18C. He received a copy of the Superintendent's notice 1/ but did not submit an application by the January 5, 2000, deadline.

On February 7, 2000, the Tribal Council enacted Ordinance DOI-005 (2000), governing grazing on the reservation under permits to be "in effect from the date of issue to February 14, 2005." Subsec. I.A.

Section III of the ordinance concerns allocation of grazing privileges to tribal members. It provides in subsection III.B.1.a. that "[c]urrent permittees have first privilege for renewing their current allocation."

Section VI contains provisions concerning the Northern Cheyenne Grazing Board (Grazing Board). Subsection VI.B.1 authorizes the Grazing Board to administer "the allocation of grazing privileges to Tribal members." Subsection VI.B.2 provides:

[T]he settlement of disputes over interpretation of this ordinance in relation to the allocation process and decisions shall be heard by the Northern Cheyenne Grazing Board. All disputes, grievances, or requests to the Board must be in writing and signed by the complaining individual. The Board's ruling on disputes pertaining to this ordinance shall be final and may only be appealed to the Northern Cheyenne Tribal Court.

The preamble to Ordinance DOI-005 provides in part that "[t]he Tribal Council * * * retains the right to ultimately review any action taken by the Grazing Board."

On February 28, 2000, all grazing permits on the reservation expired. On March 2, 2000, the Grazing Board awarded allocations for the new permit period. As no application had been received from Appellant, the Grazing Board did not renew his previous allocations. Instead, it awarded those allocations to other tribal members. 2/

1/ Appellant acknowledged receipt of the notice in a letter to the Northern Cheyenne Tribal Council (Tribal Council) dated Mar. 5, 2000. See further discussion below

2/ The Regional Director's decision states that the Grazing Board awarded allocations in range units 18A, 18B, and 18C to two tribal members on Mar. 2, 2000, and a third tribal member on Apr. 28, 2000.

On March 28, 2000, Appellant wrote to the Superintendent, stating that he was appealing the reallocation decision and asking to meet with BIA and the Tribal Council about the matter. 3/ The Superintendent responded on March 30, 2000, stating in part:

I believe a meeting at this point with the Tribal Council and myself would be futile as the [Grazing Board's] decision is final. If you disagree with the [Grazing Board's] decision, the Grazing Ordinance Section VI, B2 states,

If you do not file an appeal with the Tribal Court by , appealing the [Grazing Board's] decision, I will assume you are not going to and the [Grazing Board's] decision will be final. In which case, this agency will issue RU permits to the cattle operators awarded the AUMs [4/] in RU 18A, 18B, and 18C.

Superintendent's Mar. 30, 2000, Letter at 1-2.

On April 5, 2000, Appellant filed a petition for a temporary restraining order in the Northern Cheyenne Tribal Court, attaching a copy of a letter he had written to the Tribal Council. In that letter, Appellant acknowledged that he had received the Superintendent's December 22, 1999, notice but contended that he had not been treated fairly. 5/

On April 25, 2000, the Grazing Board wrote to the Superintendent, asking that he "take immediate action to bill and permit" range units 18A, 18B, and 18C. On April 26, 2000, the Tribal Court held a hearing in Appellant's case but declined to grant a temporary restraining order. On April 27, 2000, Appellant submitted to the Agency an allocation application for

3/ It appears from Appellant's letter that he believed the reallocation decision had been made by BIA rather than by the Grazing Board.

4/ "AUM" (animal unit month) is defined in BIA's present grazing regulations as "the amount of forage required to sustain one cow or one cow with one calf for one month." 25 C.F.R. § 166.4.

Ordinance DOI-005 defines "AUM" as "the amount of forage required by one AU for one month." The definition of "AU" (animal unit) in the ordinance states: "[O]ne cow and calf = 1 AU; one yearling steer or heifer = .75 AUs; one bull = 1.25 AUs; one horse = 1.5 AUs; one sheep = 2 AUs; one buffalo (bison) = 1 AU." Ordinance DOI-005 at 1.

5/ Appellant's letter to the Tribal Council is dated Mar. 5, 2000. However, it refers to the Superintendent's Mar. 30, 2000, letter and therefore must have been written on or after Mar. 30, 2000.

range units 18A, 18B, and 18C. At some point, BIA issued permits to the three tribal members who had been awarded allocations by the Grazing Board. 6/

The record includes no evidence of further Tribal Court or Tribal Council action prior to February 5, 2001. On that date, the Tribal Council enacted Resolution DOI-63 (2001). The resolution states in part:

Eight days later, on February 13, 2001, the Tribal Court issued an order in Appellant's case. The order describes testimony given by Appellant and by representatives of the Grazing Board at the April 26, 2000, hearing. The concluding paragraph states:

6/ There is a discrepancy in the record concerning the date(s) on which the Superintendent issued the permits for range units 18A, 18B,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT