Trenton Indian Service Area v. Great Plains Regional Director, Bureau of Indian Affairs, 54 IBIA 298 (2012)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Trenton Indian Service Area v. Great Plains Regional Director, Bureau of Indian Affairs 54 IBIA 298 (04/03/2012)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

TRENTON INDIAN SERVICE AREA, Appellant, v. GREAT PLAINS REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Reversing Decision and Remanding

Docket No. IBIA 10-069

April 3, 2012

The Trenton Indian Service Area (TISA), through its Board of Directors (Directors), appeals to the Board of Indian Appeals (Board) from a January 29, 2010, decision (Decision) of the Great Plains Regional Director (Regional Director), Bureau of Indian Affairs (BIA). TISA had appealed to the Regional Director from a June 10, 2009, decision by BIA’s Turtle Mountain Agency Superintendent (Superintendent) that approved, over TISA’s objections, a business lease granted by the Turtle Mountain Band of Chippewa Indians (Tribe) on Turtle Mountain Public Domain Allotment T939-A (Allotment).1 TISA asserts that it is the owner of the Allotment with authority to grant leases on the Allotment, and the Superintendent approved the lease over TISA’s objections. The Regional Director concluded that TISA lacked standing to appeal the Superintendent’s decision, and dismissed TISA’s appeal without reaching the merits. We reverse and remand. The deed to the Allotment transferred title to “the Turtle Mountain Band of Chippewa Indians for the use of the Trenton Indian Service Area in Trust Status.” The Regional Director interprets this language to mean that the Tribe, not TISA, is the owner of the Allotment, and because all of the power vested in the Directors was created and

The Allotment is more particularly described as the surface interest in “[t]hat part of Lot 7 located north of North Dakota Highway number 1804, sec. 19, Twp. 153 N., Rge. 102 W., 5th Principle [sic] meridian, Williams County, North Dakota, containing 16.14 acres, more or less.” Deed No. 256-1004, approved by BIA on August 19, 1992 (Administrative Record (AR) Tab 5 at 6). All references to page numbers in the AR refer to batestamped page numbers. 54 IBIA 298

granted by the Tribe and because the Tribe has plenary power over all of its tribal lands, the Regional Director concluded that TISA lacks standing to participate in the decision to approve the lease, and dismissed TISA’s appeal.2 We reverse, and order the reinstatement of TISA’s appeal because, regardless of how title is held, the deed created a legally protected interest in TISA. The face of the deed recites that the Allotment is “for the use of the Trenton Indian Service Area.” It is undisputed that TISA is governed by its Directors, who are empowered by the Tribe to manage TISA’s assets. The fact that TISA may be a subdivision of the Tribe does not mean that it cannot and does not separately have an interest in the use and disposition of the Allotment sufficient to entitle TISA to be heard on the issue of the business lease. These facts suffice to confer standing in this matter on TISA and on the Directors to appeal the Superintendent’s lease approval to the Regional Director. Background In 1884, the size of the Tribe’s Turtle Mountain Reservation was reduced from 22 to 2 townships, resulting in insufficient reservation land to grant allotments to all of the Tribe’s eligible members upon the passage of the General Allotment Act in 1887. See TISA’s Opening Br., Ex. 22. Twenty years later, Congress enacted a law that permitted the unallotted members of the Tribe to take allotments from the public domain. Pub. L. 58-125, 33 Stat. 195 (Apr. 21, 1904) (excerpt attached to TISA’s Opening Brief at Ex. XXIII). The geographical area comprising some or all of these lands eventually became designated as a Federal “service area” so that the Indian residents could receive Federal Indian program services, and the area is now known as the Trenton Indian Service Area. Letter Opinion 94-L-174 from Attorney General Heidi Heitkamp to Henry C. “Bud” Wessman, July 1, 1994 (AR Tab 49 at 185).3 The Service Area, located approximately 200-250 miles from the Turtle Mountain Reservation in North Dakota, is spread over six counties on both sides of the Montana-North Dakota border.4

The Regional Director also noted that because this dispute is between a tribe and one of its political subdivisions, the dispute is an intra-tribal matter that must be resolved in a tribal forum. The entity TISA, who is the Appellant here, and the geographical area are both referred to — sometimes confusingly — as the “Trenton Indian Service Area.” To avoid confusion in our decision, we use “TISA” to refer solely to Appellant and “Service Area” to refer to the geographical area. The six counties that comprise TISA are Williams, Divide, and McKenzie counties in North Dakota and Roosevelt, Richland, and Sheridan counties in Montana. 54 IBIA 299

The Tribe’s Council (Tribal Council) authorized the formation of TISA in 1975 as a tribal corporation for the purpose of advancing socio-economic development within the Service Area. Ordinance 28, Mar. 25, 1975, at 2-3 (unnumbered) (attached to Regional Director’s Answer Brief).5 The tribal corporation, acting through its Directors, was variously referred to in Ordinance 28 as the “Trenton Indian Service Area” or simply “Trenton Service Area.” See id. (definitions of “Corporation” and “Board”). The original Directors were appointed by the Tribal Council, and thereafter vacancies were filled in accordance with by-laws adopted by the Directors. It appears that Ordinance 28 was re-enacted in 1981 as Ordinance 28-A, and amended at least once in 1987. Thereafter, in 1990, the Tribe repealed and replaced Ordinance 28-A with Ordinance 28-B.6 Ordinance 28-B created TISA as a “tribal organization” and “political subdivision” within the Tribe to provide and extend services to the Tribe’s enrolled members residing within the Service Area.7 TISA continued to be

Prior to the formation of the tribal corporation, a non-profit entity had been organized under the laws of North Dakota, which apparently was known as the “Trenton Service Area” and as the “Fort Buford Indian Development Corporation.” This entity also was organized for the purpose of bringing Federal services and economic development to the Indian residents of the Service Area. See TISA’s Opening Brief at Exhs. XXVI, XXX).

There is some confusion about the timing of the tribal resolutions related to Ordinance 28-A and Ordinance 28-B. The Decision states that Ordinance 28-A was repealed and replaced by Ordinance 28-B on October 14, 1999, see Decision (AR Tab 46 at 171), but this is incorrect. The record shows that Ordinance 28-B was enacted on or before November 1, 1990, and subsequently amended several times. See Tribal Resolution No. 4345-01-91, Jan. 11, 1991 (AR Tab 50 at 202)(referring to Tribal Resolution No. 4299-11-90, Nov. 1, 1990, which had inadvertently omitted two provisions of Ordinance 28-B). The first page of Ordinance 28-B in the administrative record, AR Tab 50 at 197, does contain the notation, “Approved by the [Tribe] October 14, 1999,” but that approval appears to refer to an amended version of Ordinance 28-B rather than to the original enactment of Ordinance 28-B.

As early as 1976, BIA had advised that “[t]he Trenton Indian Service Area Corporation can qualify to contract BIA programs by having the Turtle Mountain Tribe pass a resolution designating them as a ‘tribal organization’ as defined under Public Law 93-638.” Letter from Comm’r of Indian Affairs to Sen. Milton R. Young, June 4, 1976 (TISA’s Opening Br., Ex. XXXIII). At the time, BIA proposed that TISA prepare a “band analysis” for the (continued...) 54 IBIA 300

managed by the Directors, who were elected by Tribal members residing in the Service Area. TISA’s powers include the right to sue and be sued, to enter into agreements and contracts, to purchase land or interests in land or personal property, to lease its lands, to invest funds, and to maintain bank accounts as necessary. Ordinance 28-B (AR Tab 50 at 199-200). In 1992, TISA purchased the Allotment, a tract of restricted trust land consisting of 16.14 acres and located in the Service Area. The deed conveyed the Allotment to “the Turtle Mountain Band of Chippewa Indians for the use of the Trenton Indian Service Area in Trust Status.” Deed No. 256-1004 (AR Tab 5 at 6). A BIA realty officer subsequently described the transaction as “conveying trust property . . . from [the grantor] Violet Robinson . . . to Trenton Indian Service Area.” Letter from Realty Officer to TISA Chairman, Aug. 26, 1992 (AR Tab 5 at 5). In 1997, TISA entered into a 10-year business lease with Carl Renville (Renville) for a “smoke shop” on 1.5 acres of the Allotment at a rental rate of $300 per...