Lambert, Annette v. Rocky Mountain Regional Director, 43 IBIA 121 (2006)

• Court: Interior Board of Indian Appeals

Order Affirming Decision as Modified Docket No. IBIA 03-6-A June 19, 2006

This appeal concerns Fort Peck Business Lease No. 0592 (Lease No. 0592) between Annette Lambert (Appellant) as lessee and the Assiniboine and Sioux Tribes of the Fort Peck Reservation (Tribe) as lessor. Appellant appeals from an August 20, 2002 decision of the Rocky Mountain Regional Director, Bureau of Indian Affairs (Regional Director; BIA), declaring Lease No. 0592 null and void. For the reasons discussed below, we affirm the Regional Director's decision as modified herein.

Factual Background

On March 7, 1990, Appellant and the Tribe entered into a lease for a 7.5-acre tract of land, described as the N½NW¼ SE¼ NW¼ and the SE¼NW¼SE¼NW¼ of Sec. 29, T. 28 N., R. 53 E., located on the Fort Peck Reservation in Roosevelt County, Montana (Property). The Property is held in trust by the United States for the Tribe. The lease is titled "Business Lease No. 0592," and states that the premises are to be used "only" for "Garden Area, Misc. Bldg. for farm animals." The lease provides for a $75 annual rental, to be paid by November 15 of each year, and has a term of 25 years, beginning on January 1, 1990, with an option to renew for an additional 25 years. The Chairman and Secretary of the Tribal Executive Board signed the lease on behalf of the Tribe. The Superintendent of the Fort Peck Agency (Superintendent) approved the lease on September 11, 1990. 1/

1/ Lease No. 0592 recites that the Superintendent approved the lease pursuant to "[a]uthority delegated by Secretarial Order No. 2508, as amended, 10 BIAM 3 and 7."

On October 4, 1999, the Tribal Executive Board approved Tribal Resolution No. 2072-99-10, recommending that a homesite lease be granted to the Fort Peck Housing Authority (FPHA) for 2.5 acres of land described as the NW¼NW¼SE¼NW¼ of Sec. 29, T. 29 N., R. 53 E. The 2.5-acre parcel is located within the Property. On July 25, 2000, the Superintendent approved Lease No. 806 between the Tribe as lessor and FPHA as lessee for the 2.5-acre parcel.

On October 10, 2000, Appellant wrote to FPHA to report that she noticed a drilling rig on the Property. In response, the Tribal Executive Board voted to rescind the 2.5-acre homesite lease. On July 9, 2001, however, the Tribal Executive Board enacted Resolution 1977-2001-7, which purported to amend Lease No. 0592 to allow for the 2.5-acre homesite lease. That same day, the Tribe and FPHA executed Lease No. 806 a second time. Lease No. 806 was approved by the Superintendent at a date not disclosed in the record.

In 2001, Appellant, FPHA, the Superintendent, and the Regional Director exchanged a number of letters concerning the validity of Lease No. 806, and whether the Tribe had the authority to unilaterally amend the terms of Lease No. 0592. 2/ In the meantime, FPHA began constructing a residential unit on the 2.5 acres. By letters dated September 19, 2001, and October 1, 2001, Appellant requested that the Superintendent take action to halt the construction.

By letters dated September 26, 2001 and October 2, 2001, the Superintendent purported to administratively amend Appellant's lease by re-characterizing it as a homesite lease, and then demanded that Appellant show cause why Lease No. 0592 should not be cancelled for failure to comply with the Tribe's Land Management Policy for homesite leases. According to the Superintendent, this policy required Appellant to construct a dwelling on the Property the first year of the lease, and there was no evidence that she had constructed such a dwelling. 3/ Appellant responded to the Superintendent's show cause

2/ Appellant also filed a petition for a preliminary injunction and declaratory judgment in Tribal Court to prevent FPHA from constructing a house on the 2.5 acres. Appellant's petition was dismissed by the Tribal Court on August 7, 2001.

3/ Although Lease No. 0592 was styled as a "Business" lease, and did not authorize use of the Property for a home, the Superintendent relied on materials in the lease application and authorizing Tribal resolutions to conclude that the lease was "in actuality, a homesite, rather than a business lease." Sept. 26, 2001 Letter from Superintendent to Appellant at 1.

letters on October 5, 2001, stating that Lease No. 0592 was a business lease and that the Tribal Executive Board and Land Committee had recognized it as such.

On October 11, 2001, Appellant appealed to the Regional Director from the Superintendent's failure to act upon her September 19 and October 1 demand letters to halt construction on the 2.5-acre parcel. Also on October 11, 2001, the Superintendent wrote to Appellant to notify her that he had cancelled Lease No. 0592 for failure to comply with the Tribe's Land Management Policy for homesite leases. On November 6, 2001, Appellant appealed the cancellation of Lease No. 0592 to the Regional Director. The Regional Director consolidated the appeals.

On December 14, 2001, the Regional Director issued a decision overturning the Superintendent's cancellation of Lease No. 0592. The Regional Director determined that Appellant's lease was a business lease, not a homesite lease, that Lease No. 0592 was valid, and that the Superintendent had erred in approving Lease No. 806.

The Tribe, FPHA, and the Fort Peck Agency, BIA, appealed from the Regional Director's December 14, 2001 decision. On February 22, 2002, the Board received a request for remand from the Regional...