Salt River Pima-Maricopa Indian Community v. Rogers

• Citation: 168 Ariz. 531,815 P.2d 900
• Decision Date: 25 July 1991
• Docket Number: No. CV-91-0005-SA,PIMA-MARICOPA,CV-91-0005-SA
• Parties: , 19 Media L. Rep. 1914 SALT RIVERINDIAN COMMUNITY, a federally recognized Indian community, Petitioner, v. Honorable Alfred J. ROGERS, Judge of the Maricopa County Superior Court, Respondent, PHOENIX NEWSPAPERS, INC., an Arizona Corporation and Kerry Fehr, Respondents/Real Parties In Interest.
• Court: Supreme Court of Arizona

Page 900

815 P.2d 900

168 Ariz. 531, 19 Media L. Rep. 1914

SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, a federally recognized Indian community, Petitioner, v. Honorable Alfred J. ROGERS, Judge of the Maricopa County Superior Court, Respondent PHOENIX NEWSPAPERS, INC., an Arizona Corporation and Kerry Fehr, Respondents/Real Parties In Interest.

No. CV-91-0005-SA.

Supreme Court of Arizona, In Banc.

July 25, 1991.

Reconsideration Denied Sept. 24, 1991.

[168 Ariz. 532] Shea & Wilks by Philip J. Shea, Phoenix, for petitioner.

Gust, Rosenfeld & Henderson by James F. Henderson, Patricia A. Sallen, Phoenix, for respondents and real parties in interest.

OPINION

FELDMAN, Vice Chief Justice.

In this special action proceeding, the Salt River Pima-Maricopa Indian Community (the Community) seeks to prevent the state treasurer from disclosing a check distribution list that contains personal information about the Community's members. The list was found in the treasurer's office, though it is not part of his records. The Community brought this action after obtaining a stay of the superior court's judgment ordering the treasurer to disclose the list to Phoenix Newspapers, Inc. and reporter Kerry Fehr (collectively Phoenix Newspapers). The sole issue before us is whether the check distribution list is a "public record" or "other matter" of the state of Arizona and therefore subject to disclosure under Arizona's Public Records Law, A.R.S. §§ 39-121 through 39-121.03. We have jurisdiction pursuant to article 6, § 5(1) of the Arizona Constitution, and Rule 8(b), Ariz.R.P.Spec.Act., 17B A.R.S.

FACTS AND PROCEDURAL HISTORY

This case arises out of the state's attempt to acquire a right-of-way through reservation lands for construction of the Pima Freeway. The Arizona Department of Transportation (ADOT) negotiated with the Community to purchase a right-of-way across both tribal trust land and trust land individually allotted to tribal members. ¹ This case thus involves a unique intersection of federal and state law. The document in question was physically located in the treasurer's office, and disclosure is sought under the Arizona public records statute. The content of the document, however, pertains to tribal land interests that are recorded only in the Bureau of Indian Affairs (BIA) Land Titles and Records Office and thus constitutes federal-tribal information. An overview of the relevant facts and law leading to the special action is therefore necessary to understand the issue in this case.

A. The Federal Statutory and Regulatory Scheme

The Community is a federally recognized Indian tribe organized under Section 16 of the Indian Reorganization Act of June 18, 1934 (the IRA), 48 Stat. 987, 25 U.S.C. § 476. In this respect, the Community exercises its sovereign governing powers within the framework established by federal statute. See Tracy v. Superior Court, 168 Ariz. 23, 29-30 n. 6, 810 P.2d 1030, 1036-37 n. 6 (1991). The Community has possession and control of lands reserved to it by Presidential Executive Order. 1 C. KAPPLER, INDIAN LAWS AND TREATIES 806-07 (2d ed. 1904). Under the IRA, the Community has the power to "prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local Governments." 25 U.S.C. § 476. Thus, the state's power of eminent domain does not extend to the land in question. Although the Community possesses the power to negotiate with a state agency, the United States holds title to reservation lands as trustee for the Community. Any disposition of tribal land must therefore be conducted in accordance with federal law. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670-71, 94 S.Ct. 772, 778-79, 39 L.Ed.2d 73 (1974); see generally F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 508-28 (1982).

Under federal law, a right-of-way across trust land may be granted only by the Secretary of the Interior (the Secretary), acting for the United States and on behalf of the tribe. 25 U.S.C. § 323. Compensation for such a right-of-way must be "not less than but not limited to the fair market value of the rights granted, plus severance damages, if any, to the remaining estate."

                [168 Ariz. 534]  25 C.F.R. § 169.12 (1990).  No right-of-way may be granted across the lands of individual allottees without the consent of a majority of the affected landowners.  25 U.S.C. § 324.  After an agreement is reached as to compensation, the consideration is paid as a lump sum to the Secretary.   25 U.S.C. § 325 (compensation is to be received by Secretary on behalf of Indian owners);  see Pueblo de San Felipe v. Hodel, 770 F.2d 915 (10th Cir.1985) (Secretary has discretion to set up escrow condition in right-of-way transaction).  Any subsequent distribution to individual allottees becomes the duty of the Secretary and is conducted pursuant to the regulations of that office.  25 U.S.C. § 325
                

The Indian tribe must consent to the final agreement before the grant may issue. 25 U.S.C. § 476. However, the Secretary maintains direct control over the transaction and generally delegates a significant portion of the responsibility to the BIA pursuant to 25 U.S.C. § 1a. Under the Indian Self-Determination Act, and in accordance with the long-standing policy of Congress to promote tribal self-determination, a tribe may contract with the BIA to assume direct control of such a transaction. 25 U.S.C. § 450f; 25 C.F.R. § 271.12. In this case, the Community contracted with the BIA to manage its tribal lands, including all functions associated with the grant of right-of-way and subsequent disbursement of funds to the individual allottees. See State Attorney General's Responsive Memorandum in the Superior Court at 3-4 (Memorandum), Exh.J. Under such a contract, the tribe must act in accordance with the federal statutes and regulations that normally govern the program or transaction involved. See, e.g., 25 C.F.R. § 271.51 (imposing the BIA procurement regulations on tribal contractors); § 271.56 (imposing constraints of the federal Privacy Act, 5 U.S.C. 552a, on tribal contractors).

B. The Negotiations and Right-of-Way Agreement Between the Community and ADOT

In 1989, in connection with ADOT's survey and appraisal of lands involved in the right-of-way transaction, ADOT requested from the Community a complete title report on all the allotments in the right-of-way. ADOT letter dated July 21, Memorandum Exh.C. Tribal land records are normally held by the tribe and recorded only in the BIA Land Titles and Records Office serving the tribe's area. 25 C.F.R. § 150.3. Thus, such title reports are federal and tribal records and are accessible to the public only through federal statutory avenues or in the discretion of the BIA. 25 C.F.R. § 150.11. The BIA contract under which the Community assumed the duties relevant to the right-of-way transaction required the Community to comply with the Privacy Act, 5 U.S.C. § 552a, and its accompanying regulations, set forth at 43 C.F.R. § 2.45. See 25 C.F.R. § 271.56(a).

In light of this federally-imposed responsibility, the Community initially declined to release its confidential tribal land records to ADOT. Interoffice Memo, Memorandum Exh.B. The Community finally released the records to ADOT after receiving a detailed justification of ADOT's need for the information, along with express written assurances that ADOT and its consultant would respect the confidentiality of the information and that the information would remain the property of the Community. Memorandum Exh.C. ADOT and its appraisal consultant, DeLeuw, Cather & Co., used the information from the tribal records to outline the boundaries of the parcels and determine the interests of the allottees.

The negotiations between ADOT and the Community resulted in the Community's agreement to grant the easement for $207 million, which represented the fair market value of the land taken plus severance damages to unallotted tribal lands and allotment parcels. The amount was determined by the ADOT appraisals and approved by the United States, the Community, and the individual landowners. Petition for Special Action (Petition) at 4. Pursuant to the federal statutory and regulatory scheme outlined above, the treasurer deposited the $207 million as a lump sum into an escrow account at Security Pacific Bank (Security). Then, on July 17, 1990, the The easement provides that "the exact amount to be paid [from the lump sum total] to each landowner will be computed by the Bureau of Indian Affairs and the Salt River Pima-Maricopa Indian Community based on the interest ... held by each landowner and on the value of each ... parcel...." Id. However, as part of its contract with the Community, ADOT agreed to have its consultant prepare a computer program to calculate the dollar amounts owed to each allottee. Complaint for Special Action and Temporary Restraining Order (Complaint), Para. 5 (filed Aug. 17, 1990); Answer, Para. 5 (filed Sept. 4, 1990). This program was based on the confidential information already held by the consultant in connection with the earlier appraisals. Security then used the computer program to generate checks for the amount due to each individual allottee.

[168 Ariz. 535] United States executed the easement grant to ADOT. Grant of Easement for Right-of-Way, Petition Exh.F.

The actual payout of funds took place on July 17 and 18, 1990, immediately after the right-of-way easement was granted. Staff members of the Community distributed the checks at a location on the reservation with the assistance of ADOT. The Community asserts, and Phoenix Newspapers does not deny, that the checks were issued by Security, as escrow agent of the United States, and not by the treasurer. Petition at 4. The checks were thus distributed after the completion of the transaction, at a time when the funds were held by the United States...