McAlpine v. U.S., 96-3094

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation112 F.3d 1429
Docket NumberNo. 96-3094,96-3094
Parties97 CJ C.A.R. 655 Johnnie Louis McALPINE, Plaintiff-Appellant, v. UNITED STATES of America and Bureau of Indian Affairs, Defendants-Appellees.
Decision Date07 May 1997

Page 1429

112 F.3d 1429
97 CJ C.A.R. 655
Johnnie Louis McALPINE, Plaintiff-Appellant,
UNITED STATES of America and Bureau of Indian Affairs,
No. 96-3094.
United States Court of Appeals,
Tenth Circuit.
May 7, 1997.

Page 1430

Luis A. Toro, Senn, Lewis, Visciano & Strahle, P.C., Denver, Colorado, for Plaintiff-Appellant.

Jackie N. Williams, United States Attorney, and Stephen K. Lester, Assistant United States Attorney, Wichita, Kansas, for Defendants-Appellees.

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Johnnie Louis McAlpine appeals from the district court's grant of the government's motion to dismiss his appeal of the Secretary of the Interior's decision denying his application to take his land into trust status. The district court dismissed Mr. McAlpine's appeal for lack of subject matter jurisdiction, ruling that the Secretary's decision is a non-reviewable discretionary act and, alternatively, that the Secretary considered the relevant regulatory factors in reaching his decision. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse the district court's dismissal for lack of subject matter jurisdiction. However, we affirm the district court's judgment for the government on the merits of Mr. McAlpine's claim. 1


A. Factual and Procedural History

Mr. McAlpine is an enrolled member of the Osage Tribe who purchased two parcels of land in Woodson and Neosho counties in southeastern Kansas in 1988. On January 18, 1990, Mr. McAlpine filed a formal request asking the Secretary of the Interior to take his land into trust status under the authority of the 1871 annual appropriations act for the Indian Department, 16 U.S. Stat. 544, Ch. 120 (1871). On February 9, 1990, the Superintendent of the Osage Agency of the Bureau of Indian Affairs (BIA)--which is within the Department of the Interior--in Pawhuska, Oklahoma denied Mr. McAlpine's request, finding, among other things, that the statute in question, which provided appropriations for individual Osages to acquire allotted lands of the diminished Osage reservation in Kansas, did not apply to the two parcels of land because they were not part of the diminished reservation and that there was no justifiable reason to place the land in trust status and take it off the local tax rolls.

Mr. McAlpine first appealed this decision to the BIA's Muskogee, Oklahoma Area Director. On March 21, 1990, the Area Director concurred with the Superintendent's decision, finding that the appropriate statutory authority for analyzing trust land acquisitions is § 5 of the Indian Reorganization Act (IRA) of 1934, 25 U.S.C. § 465, and that the BIA's task was to apply its regulations promulgated under § 465 in reaching its decision. On appeal of the Area Director's decision to the Secretary of the Interior, the Interior Board of Indian Appeals (IBIA)--to which the Secretary's authority is delegated,

Page 1431

see 21 C.F.R. § 4.1 (1990) 2--affirmed, concluding that the administrative record demonstrated that the BIA properly exercised its statutory and regulatory authority in denying Mr. McAlpine's request.

Mr. McAlpine initiated the present action pro se, seeking to compel the Secretary to accept his land in trust status. The district court granted the government's motion to dismiss on the grounds that the Secretary's decision not to take his land into trust was an exercise of agency discretion not reviewable under the Administrative Procedures Act (APA), 5 U.S.C. §§ 551-706. Furthermore, the district court held in the alternative that, even if it did have jurisdiction to review the agency action, Mr. McAlpine failed to demonstrate that the BIA failed to consider the relevant regulatory factors in making its decision. Mr. McAlpine then filed this appeal pro se, and this court appointed special counsel for Mr. McAlpine to address the jurisdictional question decided by the district court.

B. Statutory and Regulatory Framework

Congress passed the IRA in 1934 to end the allotment policy initiated in 1887 under the General Allotment Act of 1887, ch. 119, 24 Stat. 388, which had opened tribal lands for individual ownership--both Indian and non-Indian. See Felix S. Cohen, Handbook of Federal Indian Law 130-32, 147 (Rennard Strickland et al. eds., 1982). The purposes of the IRA was "to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973) (quoting H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)). To facilitate this purpose, the IRA, among other things, prohibited any further transfer of Indian lands outside of the tribes and provided the Secretary authority to replace lands in lieu of those already allotted. See Cohen, supra, at 147-49. Most important for our purposes is § 5 of the IRA, which addresses the acquisition of property by the Secretary for the benefit of Indians:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians.


Title to any lands or rights acquired pursuant to [the various sections] of this title shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.

25 U.S.C. § 465 (emphasis added).

Section 5 of the IRA is implemented by the BIA in its regulations concerning "land acquisitions" located at 25 C.F.R. Part 151 (1990). These regulations provide that any enrolled member of a recognized tribe may file a written request with the Secretary to convey fee land held by that Indian into trust status. Id. at §§ 151.2(c)(1), 151.4, 151.9. In evaluating requests to acquire land in trust status, the regulations provide that the Secretary, or his or her authorized representative, shall consider the following factors:

(a) The existence of statutory authority for the acquisition and any limitations contained in such authority;

(b) The need of the individual Indian or the tribe for additional land;

(c) The purpose for which the land will be used;

(d) If the land is to be acquired for an individual Indian, the amount of trust or restricted land already owned by or for that individual and the degree to which he needs assistance in handling his affairs;

(e) If the land to be acquired is in unrestricted fee status, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls;

Page 1432

(f) Jurisdictional problems and potential conflicts of land use which may arise; and

(g) If the land to be acquired is in fee status, whether the Bureau of Indian Affairs is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status.

25 C.F.R. § 151.10.

In the event that the Secretary determines that a request should be denied, the regulations require the Secretary to inform the applicant as to the reasons in writing and notify him or her of the right to appeal this decision to the IBIA. See id. at § 151.11; Part 2 (describing the administrative appeal process).


A. Reviewability Under the APA

The district court, relying on the Eleventh Circuit's decision in Florida Department of Business Regulation v. United States Department of the Interior, 768 F.2d 1248 (11th Cir.1985), determined that the Secretary's decision under § 5 of the IRA as to whether to acquire land in trust is a discretionary act not reviewable under the judicial review provisions of the APA, 4 U.S.C. §§ 701-706. On appeal, Mr. McAlpine argues that judicial review of the Secretary's decision to deny his request for trust status is available both under the APA and 28 U.S.C. § 1353, which provides federal court jurisdiction over civil actions relating to Indian allotments. We review de novo the district court's dismissal of this claim for lack of subject matter jurisdiction. See Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir.1996).

The APA provides that any "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702 (1994). This provision applies so long as the action is a "final agency action for which there is no other adequate remedy in a court." Id. at § 704. As the Supreme Court has recognized, the APA establishes a strong presumption in favor of reviewability of agency action. Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA, however, provides two exceptions to this presumption. Section § 701(a) provides that judicial review shall not apply to the extent that "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(1)-(2).

In interpreting the distinction between these two exceptions, the Court has explained that the " former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). In the present case, the statutory language does not...

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