Johnson, Robert and Krista v. Acting Phoenix Area Director, 25 IBIA 18 (1993)

• Court: Interior Board of Indian Appeals

Appeal from a decision concerning the operation of a cable television system on the Fort Apache Indian Reservation.

Dismissed in part; affirmed in part.

1. Indians: Lands: Tribal Lands--Indians: Trust Responsibility

   In matters relating to the use of tribal property, the Bureau of

   Indian Affairs' trust responsibility is to the tribe, not a person doing business with the tribe, even though that person may be Indian and a tribal member.

2. Administrative Procedure: Standing--Indians: Contracts: Generally

   A person doing business with an Indian tribe lacks standing to raise a violation of the requirements of 25 U.S.C. § 81 (1988).

3. Administrative Procedure: Standing--Indians: Generally

   The qui tam provision of 25 U.S.C. § 81 (1988) authorizes

   Federal courts to hear suits brought under that section by third parties in the name of the United States and, under appropriate circumstances, to order the recovery of money paid by or on behalf of an Indian tribe. The Board of Indian Appeals is not a Federal court, and the qui tam provision does not grant standing in an administrative proceeding before the Board.

   IBIA 93-27-A

   Appellants Robert and Krista Johnson 1/ seek review of an October 20, 1992, decision of the Acting Phoenix Area Director, Bureau of Indian Affairs (BIA; Area Director), concerning the operation of a cable television (CATV) system on the Fort Apache Indian Reservation (reservation). For the reasons discussed below, the Board of Indian Appeals (Board) dismisses the appeal in part, and affirms the Area Director's decision in part.

   Background

   On September 13, 1982, the Area Director approved a CATV license agreement between Krista, "who is doing business as a sole proprietorship under the name of THE NEW SYSTEM CABLE T.V.,'' and the Tribe (license) pursuant to 25 U.S.C. § 81 (1988). 2/ The license granted Krista the non-exclusive _________________________ 1/ Krista is Indian and a member of the White Mountain Apache Tribe (Tribe). Robert is Krista's non-Indian husband.

   It is possible that Robert lacks standing under 25 CFR 2.2. Robert is not a named party or a signatory to any license or lease with the White Mountain Apache Tribe (Tribe). Appellants state at page 2, footnote 1, of their opening brief that Robert "maintains ownership interest in New System Cable T.V.' and the 'WM Cable Company' which are named parties" to the license and leases described infra. The license and 1982 lease were between the Tribe and Krista as a sole proprietorship, and the 1990 lease was authorized by Tribal Resolution No. 11-89-267 to be granted "to tribal member Krista Tessay Johnson." Because there is no indication in the administrative record or appellants' filings that an assignment or transfer of the license and leases to a different business entity, having different principals, was approved by the Tribe and/or BIA, it is possible that Robert has no valid or legally protected interest in the license and leases. In that event he would lack standing to appeal from the Area Director's decision under 25 CFR 2.2. However, because Krista could maintain the appeal in her own right, the Board does not find it necessary to determine whether Robert has standing.

   In addition, various company and partnership names associated with Krista and Robert appear in documents involved in this matter. It appears possible either that different business entities existed at various times, or that business names were not used consistently. For purposes of this decision, the Board does not find it necessary to attempt to sort out the legal identity and status of each of these business entities, or to determine whether they each had valid rights under the license and leases.

   Unless specifically referring to Krista, the Board will hereafter refer to both the business entities and Krista and Robert individually as "appellants." The inclusion of Robert and the various business entities under the generic heading of "appellants" does not constitute a finding that he or they have either a valid and legally protected interest in the CATV system, or standing to pursue an appeal in his or their own names.

   2/ Section 81 provides in pertinent part:

   "No agreement shall be made with any tribe of Indians * * * in consideration of services for said Indians relative to their lands * * * unless such contract or agreement be executed and approved as follows:

   * * * * * *

   IBIA 93-27-A

   right of "receiving, distributing, and supplying radio, television and other cable communications services along, across and upon the streets, ways, easements, alleys and places within the Reservation" (License, section 4(a)), and authorized her "to enter into service agreements with occupants, users, lessees and permittees of land within the Reservation" (Id., section 4(b)).

   In section 15 of the license, the Tribe agreed to lease 0.437 acres of land to Krista "for the purpose of erecting and maintaining antennas, towers, receiving dishes and related electronic equipment." This section was implemented through a separate lease with Krista, again as a sole proprietorship, which was approved by the Superintendent, Fort Apache Agency, BIA Superintendent), on September 27, 1982 (1982 lease). In addition to the uses specified in section 15 of the license, the 1982 lease allowed the property to be used for an office building. Section 10 of the lease stated that, unless otherwise provided, "a sublease, assignment or amendment of this, lease may be made only with the approval of the Secretary and the written consent of all parties to this lease, including the surety or sureties." 3/

   On November 7, 1988, an agreement concerning ownership and management of the CATV system was executed between appellants; Clay Blanco; G. Bryan Blow; and Broadband Communications, Inc. (1988 agreement). Agreement ##8 and 9 assigned a percentage of the license and subleased the 1982 lease. Agreement #1 provided:

   _________________________ fn. 2 (continued)

   "Second. It shall bear the approval of the Secretary of the Interior and the commissioner of Indian Affairs indorsed upon it.

   * * * * * * "All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe, or any one else, for or on his or their behalf, on account of such services, in excess of the amount approved by the Commissioner and Secretary for such services, may be recovered by suit in the name of the United States in any court of the United States, regardless of the amount in controversy; and one-half thereof shall be paid to the person suing for the same, and the other half shall be paid into the Treasury for the use of the Indian or tribe by or for whom it was so paid."

   All further references to the United States Code are to the 1988 edition.

   3/ 25 U.S.C. § 84 provides:

   "No assignment of any contracts embraced by section 81 of this title or of any part of one shall be valid, unless the names of the assignees and their residences and occupations be entered in writing upon the contract, and the consent of the Secretary of the Interior and the Commissioner of Indian Affairs to such assignment be also indorsed thereon."

   In addition, 25 CFR 162.12 states, with exceptions not applicable here: "(a) * * * [A] sublease, assignment, amendment or encumbrance of any lease or permit issued under this part may be made only with the approval of the Secretary and the written consent of all parties to such lease or permit, including the surety or sureties."

   IBIA 93-27-A

   If within NINETY (90) days of the execution of this Agreement the assignment of the License and the sublease of the Lease are not approved by the * * * Tribe and the Secretary of the Interior or his representative, and within said NINETY (90) days, the * * * Tribe has not passed a resolution approving said assignment and sublease, then this Agreement shall be void and of no effect.

   There is no evidence as to whether the 1988 agreement was submitted for approval by the Tribe and/or BIA. It was not, however, approved by either. The record does not disclose how it was treated by the parties.

   On December 1, 1989, appellants and BBM Communications, Inc., through Blow (BBM), entered into an agreement entitled "White Mountain Apache CATV System Management Agreement" (1989 agreement). The agreement provided that BBM had "the sole and exclusive responsibility for the supervisory management of the operation of the [ CATV] Systems" (Section 4.2.a). BBM was to be responsible for the overall management of the CATV system, with appellants responsible for day-to-day operations. In any dispute, BBM would have 80 percent of the vote. BBM was also to receive 80 percent of the net operating profits. Section 1.e of the agreement provided that appellants would "be responsible for all communications, reports and representations to and with the White Mountain Apache Tribal Council, to maintain cordial relations and the legal right to continue the operation of the Systems, and its expansion." This agreement did not expressly assign or sublease the license or the leases. Furthermore, it did not provide for tribal and/or BIA approval, and there is no evidence that approval was sought. The limited materials before the Board suggest that both appellants and BBM initially conducted their affairs as if the 1989 agreement were valid and enforceable.

   In December 1990, the Tribe leased a second site to Krista "for the purpose of constructing and operating a microwave television repeater tower site" (1990 lease). Section 11 of the 1990 lease prohibited subleases, assignments, or transfers of the lease or any right or interest under it without the Tribe's prior written consent. The lease was approved by the Superintendent on December 27, 1990.

   On October 15, 1991, BBM filed a civil action against appellants in the White Mountain Apache Tribal Court. The suit alleged breach of the 1989 agreement. On the same day, the tribal court...