No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. MIAMI TRIBE OF OKLAHOMA, Plaintiff-Appellee, v.

Transcription

1 Case: Document: Date Filed: 09/17/2010 Page: 1 No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT MIAMI TRIBE OF OKLAHOMA, Plaintiff-Appellee, v. UNITED STATES OF AMERICA; KENNETH SALAZAR, Secretary, United States Department of e Interior; LARRY ECHOHAWK, Assistant Secretary of Interior, Bureau of Indian Affairs,* Defendants-Appellants. ORAL ARGUMENT IS REQUESTED ATTACHMENTS INCLUDED On Appeal from e United States District Court for e District of Kansas (Kansas City) (Hon. David J. Waxse, Magistrate Judge) REPLY BRIEF OF APPELLANT BARRY R. GRISSOM United States Attorney IGNACIA S. MORENO Assistant Attorney General DAVID D. ZIMMERMAN ELLEN J. DURKEE Assistant United States Attorney M. ALICE THURSTON District of Kansas U.S. Department of Justice Kansas City, Kansas, Environment & Natural Resources (913) Division, Appellate Section david.zimmerman@usdoj.gov P.O. Box L Enfant Plaza Sta. Washington, D.C (202) alice.urston@usdoj.gov * Public officials currently holding office have been substituted for e original parties pursuant to Fed. R. App. P. 43(c)(2).

2 Case: Document: Date Filed: 09/17/2010 Page: 2 TABLE OF CONTENTS INTRODUCTION AND SUMMARY...1 I. THIS COURT HAS JURISDICTION TO REVIEW THE DISTRICT COURT S 2005 ORDER....3 II. ILCA DOES NOT COMPEL AUTOMATIC APPROVAL OF THIS GIFT TRANSFER...8 A. ILCA Requires a Finding of Tribal Jurisdiction B. The Tribe Lacks Jurisdiction Over e Reserve C. That e Reserve is Allotted Lands Held in Restricted Fee Does Not Confer Jurisdiction D. The BIA Considered and Balanced e Correct Factors and Reached a Reasoned and Well-Founded Conclusion CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM i

3 Case: Document: Date Filed: 09/17/2010 Page: 3 CASES: TABLE OF AUTHORITIES Alsea Valley Alliance v. Department of Commerce, 358 F.3d 1181 (9 Cir Baca-Prieto v. Al Guigni, 95 F.3d 1006 (10 Cir. 1996) Bender v. Clark, 744 F.2d 1424 (10 Cir. 1984) Chugach Alaska Corp. v. Lujan, 915 F.2d 454 (9 Cir. 1990)... Cotton Petroleum Corp. v. United States Department of e Interior, 870 F.2d 1515 (10 Cir. 1989)... Davis v. United States, 343 F.3d 1282 (10 Cir. 2003)... Earline Smi Downs v. Acting Muskogee Area Director, BIA, 29 I.B.I.A. 94, 1996 WL (I.B.I.A.) (1996) Friends of e Bow v. Thompson, 124 F.3d 1210 (10 Cir. 1997)... HRI, Inc. v. EPA, 198 F.3d 1224 (10 Cir. 2000)... McBride v. CITGO Petroleum Corp., 281 F.3d 1099 (10 Cir. 2002).... Miami Tribe of Oklahoma v. United States ( Miami I ), 927 F. Supp (D. Kan. 1996) , 15, 20, ii

4 Case: Document: Date Filed: 09/17/2010 Page: 4 Miami Tribe of Indians v. United States ( Miami II ), 5 F. Supp. 2d 1213 (D. Kan. 1998) , 14 Miami Tribe v. United States, 198 Fed.Appx. 686, 2006 WL , (10 Cir. 2006) ( Miami V ) Midwest Investment Properties, Inc. v. Fred DeRome, D. Kan. No O Montgomery v. City of Ardmore, 365 F.3d 926 (10 Cir. 2004)... Mustang Production Co. v. Harrison, 94 F.3d 1382 (10 Cir. 1996)... Rekstad v. First Bank System, Inc., 238 F.3d 1259 (10 Cir. 2001)... Save Domestic Oil, Inc. v. United States, 122 F. Supp. 2d 1375 (C.I.T. 2000)...5 Sear, Roebuck & Co., v. Mackey, 351 U.S. 427 (1956) State of Kansas v. United States ( Miami IV ), 249 F. 3d 1213 (10 Cir. 2001) , 17, 20, 22 State of New Mexico v. BLM, 565 F.3d 683 (10 Cir. 2009)... State of Utah v. Kennecott Corp., 14 F.3d 1489 (10 Cir. 1994)... Trout Unlimited v. U.S. Dep t of Agric., 441 F.3d 1214 (10 Cir. 2006) iii

5 Case: Document: Date Filed: 09/17/2010 Page: 5 United States v. Mazurie, 419 U.S. 544 (1975) STATUTES: 18 U.S.C U.S.C Seneca Nation Settlement Act of 1999, 25 U.S.C Indian Land Consolidation Act Amendments of 2000, 25 U.S.C.A note & 2216 (ILCA ) U.S.C (2001) U.S.C. 2216(a) U.S.C. 2216(b)...9, 18, U.S.C. 2216(b)(1)(B)(ii) U.S.C Pub. L. No (Oct. 15, 1982) 96 Stat REGULATIONS: 25 C.F.R C.F.R (d) iv

6 Case: Document: Date Filed: 09/17/2010 Page: 6 RULES: Rule 54(b)....4 MISCELLANEOUS: Black s Law Dictionary, (6 ed. 1990) v

7 Case: Document: Date Filed: 09/17/2010 Page: 7 INTRODUCTION AND SUMMARY The government s opening brief demonstrated at e district court erred in its June 22, 2005, order reversing e BIA s decision to disapprove a gift conveyance of a fractional interest in e Maria Christiana Reserve No. 35 from James Smi to e Miami Tribe. Wi little analysis, and in e face of a contrary decision of is Court, e district court erroneously held at e Tribe exercised jurisdiction over e Reserve because e Tribe took certain actions as if it had jurisdiction. As is Court has held, a Tribe cannot assume jurisdiction by unilateral Tribal actions. Moreover, it is res judicata at e Tribe s jurisdiction over is tract of land was terminated by Congress no later an e 1920s. Consequently, under e Indian Land Consolidation Act Amendments of 2000, 25 U.S.C.A note & 2216 ( ILCA ), e Bureau of Indian Affairs ( BIA ) of e Department of e Interior properly considered factors protective of tribal and individual Indian interests and determined wheer e proposed gift furers ILCA s purposes and served e long-term best interests of e parties. The agency s decision had a rational basis, and was supported by evidence and substantial agency expertise in is area. The district court improperly substituted its judgment for at of e agency. Accordingly, e district court s June 22, 2005 decision should be reversed and e agency s initial decision reinstated. -1-

8 Case: Document: Date Filed: 09/17/2010 Page: 8 In response, e Tribe cursorily asserts at is Court lacks jurisdiction because e BIA is purportedly seeking review of its own decision and erefore no case or controversy exists. To e contrary, BIA now appeals e district court s final judgment, which subsumes all prior orders, including e court s 2005 order resolving one of e ree claims alleged in e Tribe s complaint. The 2005 order vacated e agency s initial denial of e gift transfer and remanded e matter to e agency for a new decision in accordance wi e court s erroneous order. The agency sought to appeal earlier but e district court declined to issue a Rule 54(b) order. This is us e agency s first opportunity to appeal and it has done so properly. As to e merits, e Tribe presents various complaints about historical actions by e Interior Department which are largely beside e point. Contrary to e Tribe s assertion, jurisdiction is a dispositive statutory factor going to e BIA s auority to approve or deny e gift transfer. In e absence of tribal jurisdiction, e agency acted well wiin its auority to disapprove e gift transfer after considering and discussing numerous pertinent factors. The BIA s disapproval of e gift in is instance does not represent a pernicious restraint on a Native American s ability to dispose of property interests, as e Tribe suggests, but raer a reasoned and well-founded decision entitled to deference. -2-

9 Case: Document: Date Filed: 09/17/2010 Page: 9 Finally, e Tribe s assertions at it has jurisdiction notwistanding is Court s decision in State of Kansas v. United States ( Miami IV ), 249 F. 3d 1213 (10 Cir. 2001), are to no avail. Bo is Court and e district court in Miami Tribe of Oklahoma v. United States ( Miami I ), 927 F. Supp (D. Kan. 1996), have found at e Tribe relinquished its jurisdiction long ago, at an Indian tribe s jurisdiction derives from e will of Congress, and at e very same analysis as e district court erroneously employed here to find tribal jurisdiction from a Tribe s unilateral actions is inadequate to establish jurisdiction. Alough e government had supported e Tribe s assertion of jurisdiction prior to Miami IV, e government has reasonably conformed its position to accord wi is Court s decision in at case. I THIS COURT HAS JURISDICTION TO REVIEW THE DISTRICT COURT S 2005 ORDER 1 The Tribe is incorrect (Br.12-13) / at is Court lacks jurisdiction to hear e BIA s current appeal. The government is appealing from e first and only 1 / This brief will refer to e Miami Tribe s answering brief as Br. and to e government s opening brief as G.Br. This brief will also adopt e Tribe s convention of using G.App.xx and T.App.xx to refer to e federal and tribal appendices, respectively. -3-

10 Case: Document: Date Filed: 09/17/2010 Page: 10 final judgment in e district court proceeding. The 2005 remand order on count one was adverse to e BIA. Alough e district court upheld e BIA s decision on remand, in making its decision on remand, BIA was obliged to act in conformity wi e court s adverse rulings in e 2005 order. As noted in e government s opening brief (G.Br. 25, 26-27, 28), e government consistently made clear roughout e remand and subsequent district court proceedings at it disagreed wi e June 22, 2005, remand order and intended to appeal at order, including listing e June 2005 in its notice of appeal. Notice of Appeal, CR 150, G.App Thus, e final judgment is adverse to e United States because it is e direct consequence of e district court s erroneous 2005 order. In addition, e 2005 order was a non-final order at e government need not, and for jurisdictional reasons probably could not, have immediately appealed. First, ere were pending, unresolved claims. An order at does not decide all claims is not a final order unless e district court enters a Rule 54(b) judgment. Sear, Roebuck & Co., v. Mackey, 351 U.S. 427 (1956). In an effort to promote judicial economy (T.App. 9), e government did request at e district court permit review at e time under Rule 54(b), but to no avail. CR 80; App / 2 / The Tribe misconstrues (Br ) e government s earlier expression of concern about e possibility of being foreclosed review as tantamount to an -4-

11 Case: Document: Date Filed: 09/17/2010 Page: 11 Thus, e order of January 4, 2010, is e first final order from which e government can appeal. Second, is Court follows e prevailing view at remand by a district court to an administrative agency for furer proceedings is ordinarily not appealable because it is not a final decision. Trout Unlimited v. U.S. Dep t of Agric., 441 F.3d 1214, 1218 (10 Cir. 2006). See also, Baca-Prieto v. Al Guigni, 95 F.3d 1006, 1008 (10 Cir. 1996); Rekstad v. First Bank System, Inc., 238 F.3d 1259, 1262 (10 Cir. 2001); Bender v. Clark, 744 F.2d 1424, (10 Cir ). / This Court does recognize appellate jurisdiction to review remand orders in certain circumstances, most commonly where e federal government agency is e defendant and seeks to appeal because it would oerwise be barred from seeking furer review of e district court order. E.g., Rekstad, 238 F.3d at 1262; Baca-Prieto, 95 F.3d at 1099; Bender, 744 F.2d at The critical inquiry is admission at review is now foreclosed. This argument mistakenly assumes its own conclusion. Nor is e agency attempting to appeal its own determination. Br. 13. The Tribe challenged in district court e agency s second determination to permit e land to be transferred in restricted fee status but not in trust and e district court resolved e pending claims. The agency is properly appealing from e district court s final order and judgment. 3 / See also Alsea Valley Alliance v. Department of Commerce, 358 F.3d 1181, 1184 (9 Cir. 2004); Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9 Cir. 1990); Save Domestic Oil, Inc. v. United States, 122 F. Supp. 2d 1375, 1377 (C.I.T. 2000) (citing cases from every circuit for is proposition). -5-

12 Case: Document: Date Filed: 09/17/2010 Page: 12 wheer e danger of injustice by delaying appellate review outweighs e inconvenience and costs of piecemeal review. Bender, 744 F.2d at 1427; accord State of Utah v. Kennecott Corp., 14 F.3d 1489, (10 Cir. 1994) ( practical construction of [28 U.S.C.] 1291 may generate jurisdiction rough a subjective and ad hoc balancing of e interests of e parties against e policies of an unambiguous finality rule ). 4 / The government is permitted to review a remand order on e rationale at not permitting review would effectively bar e government from ever obtaining review of e remand order. 5 / This is not such a case. The June 22, 2005, order remanded only one count of e Tribe s complaint to e agency. It did not dispose of two oers counts. These counts remained pending before e district court. May 22, 2006 Memorandum and Order, CR 73, G.App.71. Thus, even as one count was 4 / In Cotton Petroleum Corp. v. United States Department of e Interior, 870 F.2d 1515, 1522 (10 Cir. 1989), is Court even held at it had jurisdiction over an appeal from a remand order brought by a private party (an oil and gas lessee wi wells on restricted Indian allotment land), explaining at e issues presented were of such importance at any delay in review by is Court would likely result in furer disputes and litigation, confusion and danger of injustice. 5 / Additionally, is Court has recognized e right to appeal when a district order requiring additional agency action contained all requisite components of a final order: it resolved all issues and granted e plaintiffs relief, enjoying issuance [of a BLM lease] until such analysis is complete. State of New Mexico v. BLM, 565 F.3d 683, 697 (10 Cir. 2009). In New Mexico, is Court assessed e finality of a remand order on a case-by-case analysis. Id. at

13 Case: Document: Date Filed: 09/17/2010 Page: 13 remanded, e district court retained jurisdiction over, and would ultimately rule on, e oer surviving counts 6 / in its final decision of January 4, An appeal of a final judgment draws in question all prior non-final orders and rulings which produced e judgment. Montgomery v. City of Ardmore, 365 F.3d 926, 934 (10 Cir. 2004); McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10 Cir. 2002). Because e district court s June 2005 order was only as to one count, and two counts remained under consideration before e court, e government s ability to seek furer review of e order of remand would not necessarily be foreclosed, and e government did not have a basis for appealing from e remand order. Indeed, e district court denied interlocutory certification under Rule 54(b). Accordingly, is Court has jurisdiction to review e government s appeal of e remand order. 6 / When e Tribe amended its complaint, on October 1, 2008, it dropped a count. CR

14 Case: Document: Date Filed: 09/17/2010 Page: 14 II ILCA DOES NOT COMPEL AUTOMATIC APPROVAL OF THIS GIFT TRANSFER At Br , e Tribe argues at ILCA compels e BIA s approval of e gift transfer from Smi to e Tribe and reviews several factors at, e Tribe contends, show at e elements for allowing e gift transfer have been satisfied. As an initial matter, e Tribe reads e jurisdictional requirement right out of ILCA, citing as factors only at (1) Smi is an Indian (Br. 16); (2) e Tribe is an Indian Tribe (Br ); (3) e Reserve is an Indian allotment (Br. 15) ; and (4) at Smi wants to gift his land to e Tribe (Br ). A. ILCA Requires a Finding of Tribal Jurisdiction. -- The Tribe contends at [j]urisdiction is not a dispositive element in is case. Br. 11. This bald statement ignores controlling statutory language. First, as detailed in e government s opening brief (G.Br. 7), ILCA was enacted to consolidate tribal ownership of lands already wiin a tribe s reservation or jurisdiction. The statute s intent is to encourage land consolidation by transfers between Indians and e tribal government at exercises jurisdiction over e land; or * * * between individuals who own an interest in trust and restricted land who wish to convey at interest to an Indian or e tribal government at exercises jurisdiction over e parcel of land involved. 25 U.S.C. 2216(a) (emphasis -8-

15 Case: Document: Date Filed: 09/17/2010 Page: 15 added). Moreover, e 2004 Amendments exempted grantors at own five percent or less of a parcel from e requirement at an estimate of value be provided in writing to e owner of a restricted interest in land conveying by gift deed to e tribe wi jurisdiction over e subject parcel of land. 25 U.S.C. 2216(b)(1)(B)(ii) (emphasis added). In light of is statutory language, it is remarkable at e Tribe argues at jurisdiction has no relevance to approval of Indian land transfers. Br. 30. The Tribe offers no explanation for is statement and, indeed, it is at odds wi e Tribe s district court pleadings making jurisdiction a central element of its 7 arguments / and statements in eir own appellate brief (see, e.g., Br. 25: policy statements in 25 U.S.C. 2216(a) certainly apply to 25 U.S.C. 2216(b) ). This position also conflicts wi e district court s analysis. 374 F. Supp. 2d at / In district court, e Tribe argued: 25 U.S.C (2001) reinforces e propriety of e transfer. Congress has expressly stated at it is e policy of e United States to encourage and assist e consolidation of Indian land ownership rough transactions involving Indians and e tribal government at exercises jurisdiction over e land. As a member of e Miami Tribe, e Miami Tribe has jurisdiction over Smi, a tribal member, and his land, e Miami Reserve. APA Brief by Miami Tribe, CR 8 at 8, emphasis added. -9-

16 Case: Document: Date Filed: 09/17/2010 Page: The district court found (id. at 945) at e Tribe had jurisdiction for purposes of applying e land consolidation policies contained in 25 U.S.C. 2216(a). The Tribe relied on ese same policy provisions in insisting at ILCA s policies promote Tribal acquisition of Smi s partial interest. See, e.g., Br. 16, It is not true at e Defendants did not even consider jurisdiction in eir determinations. Br. 30. To e contrary, e Realty Office of e BIA, in reviewing Smi s application in 2002, noted at it need not address e additional issue of wheer e Tribe exercises jurisdiction over e Reserve, bo because its prior findings regarding e transfer militated already against a finding at e conveyance was appropriate, and because at issue had been specifically resolved by is Court in Miami IV. G.App.146. Accordingly, e Tribe may not sidestep e question of wheer e Tribe has jurisdiction over e Reserve for purposes of is appeal. B. The Tribe Lacks Jurisdiction Over e Reserve.-- The government s opening brief at refutes e Tribe s claims (Br ) at e Tribe has jurisdiction over e Reserve and at no court decision indicates oerwise. In answer, e Tribe (1) asserts at e Miami I decision does not take into account e effect of e more recent adoption of e Reserve s owners as tribal members (Br ) and (2) dismisses e Miami IV decision as merely an interlocutory -10-

17 Case: Document: Date Filed: 09/17/2010 Page: 17 decision in an appeal from a preliminary injunction (Br. 37). According to e Tribe (Br. 38), only Miami II has any precedential effect; Miami II was settled wi a stipulation between e parties at e Tribe had jurisdiction over e Reserve for purposes of IGRA. G.Br. 16 When viewed in historic context, ese cases provide e Tribe no basis for asserting current Tribal jurisdiction over e Reserve. First, Miami I, in an unchallenged decision at is Court deems res judicata, determined at e Tribe s jurisdiction was relinquished no later an F.Supp. at Pointing to e Tribe s several court claims, over e course of a century, for reimbursement for prior reservation lands bought by Congress from e Tribe and allotted to, among oers, Maria Christiana DeRome, e court found no difficulty concluding from is series of events at plaintiff unmistakably relinquished its jurisdiction over Reserve No. 35. Id. The Tribe did not appeal Miami I when it had e opportunity 8 / determination. and does not, and cannot, now contest is Miami II, on which e Tribe relies, has, by contrast, been essentially overruled and made unenforceable by subsequent decisions. The parties to Miami 8 / See Miami IV, 249 F.3d at

18 Case: Document: Date Filed: 09/17/2010 Page: 18 II had settled e case by stipulating at e Tribe had jurisdiction for purposes of IGRA in order to allow e Tribe to conduct gambling operations on e Reserve. Miami Tribe v. United States, 198 Fed.Appx. 686, 2006 WL , at *1 (10 Cir. 2006) ( Miami V ). This Court determined at e stipulation was unenforceable (id.). Moreover, in Miami IV, e Court held at e Tribe could not unilaterally create for itself sovereignty rights at did not oerwise exist. 249 F.3d at This Court declined to entrench Miami II s Joint Stipulation as e final resolution of e Tribe s claims to jurisdiction over e reserve. Miami V, 2006 WL , at *3. The Tribe places undue reliance upon e district court s decision in Miami II in light of e significant intervening and superseding determinations of is Court. The Tribe also provides no analysis of Miami IV, merely dismissing it as an interlocutory appeal. Br. 10, 34-35, 37, 39. But even if Miami IV is not res judicata, Miami IV s determination at e Tribe may not, by stipulation or oer unilateral indicia of sovereignty, create jurisdiction, it is certainly still persuasive auority. See Davis v. United States, 343 F.3d 1282, 1291 (10 Cir. 2003). In Miami IV, is Court reinforced e res judicata conclusion in Miami I at Congress years ago unambiguously intended to abrogate e Tribe s auority of its lands in Kansas and move e Tribe to new lands in Oklahoma. 249 F.2d at -12-

19 Case: Document: Date Filed: 09/17/2010 Page: , quoting Miami I, 927 F.Supp. at Congress abrogated e Tribe s jurisdiction over e tract long ago, and has done noing since to change e status of e tract. Id. at The Tribe s brief offers no rebuttal to e analysis presented in Miami IV, but simply seeks to avoid its implications altogeer. 9 / The Tribe notes (Br ) at Miami I was silent as to e impact of new members on tribal jurisdiction and reserved is issue in a footnote. Miami I, 927 F.Supp. at 1428, n.8. In fact, at footnote merely provides e opportunity to e Tribe to resubmit evidence of e current owners consent to its management contract and a newly adopted tribal amendment, and notes [o]f course, e court does not pass on wheer or not a new submission will obtain approval. Id. In addition, e court also raises and declines to address e question of wheer a tribe s jurisdiction reaches its members real property located outside e 9 / The Tribe asserts, wiout citation, (Br. 38) at e government has indicated at in 1873 Congress eliminated restrictions on Miami lands, including e restrictions on Miami Reserve. However, roughout is case, e government and parties have consistently assumed at restrictions on alienation exist and are e reason why regulatory approval for e proposed gift transfer is necessary. Indeed, in its own brief, e Tribe repeatedly emphasizes e restricted fee status of e property. Br. 11,13-14, 24-25, 29. As Congress intended in providing constraints on transfers of restricted fee lands, ere is no fully unfettered right to transfer property (Br. 11) in e context of a case involving restricted fee Indian land. -13-

20 Case: Document: Date Filed: 09/17/2010 Page: 20 reservation. But is Court, in Miami IV, expressly found at, as a legal matter, not e Tribe s adoption of e tract s twenty-plus owners into e Tribe, nor ese owners consent to tribal jurisdiction pursuant to a lease wi e Tribe, nor e Tribe s recent development of e Reserve alters e conclusion at Congress abrogated e Tribe s jurisdiction over e tract long ago, and has done noing to change e status of e tract. Miami IV, 249 F.3d An Indian tribe s jurisdiction derives from e will of Congress, not from e consent of fee owners pursuant to a lease under which e lessee acts. Id. The Tribe complains (Br.10, 35 and 39) at ere has been no factual consideration on e record of e merits of e Miami Tribe s jurisdiction over e Miami Reserve since e investigations in Miami II confirmed e presence of current jurisdiction. However, is Court has addressed e jurisdictional question wi clarity. This Court concluded at e Tribe had lost jurisdiction and could not unilaterally restore its own jurisdiction by adopting tribal members or using and patrolling e Reserve. It is a matter of law wheer Congress has taken action to restore e jurisdiction at was terminated almost a century ago. Miami IV, 249 F.3d at This Court s legal finding in Miami IV, rejecting e ability of a Tribe to establish jurisdiction by unilateral tribal actions, does not require -14-

21 Case: Document: Date Filed: 09/17/2010 Page: 21 development of a factual record and is controlling legal analysis here, even if not 10/ res judicata. Furermore, e Interior Solicitor s subsequent, October 31, 2002, opinion expressly analyzed e significance of e adoption and concluded at tribal jurisdiction could not be inferred from e Tribal adoption. Letter, Solicitor William G. Meyers III, to Acting General Counsel Penny J. Coleman, dated 10/31/02, at 15 (G.Br. Addendum). The Tribe does not even mention is legal opinion, much less refute it. The Solicitor s opinion is persuasive and entitled to deference as such. C. That e Reserve is Allotted Lands Held in Restricted Fee Does Not Confer Jurisdiction. -- Miami I explicitly rejected e claim (Br ) at e Tribe has jurisdiction over e Reserve based on its status as restricted allotment land. Plaintiff points to e continued restricted status of Reserve No. 35 as proof of its jurisdiction. Reserve No. 35's restricted status, however, does not arise from any lingering traces of plaintiff s sovereignty but raer from e terms of e United States s conveyance of e 10/ Moreover, e Tribe had no lack of opportunity to brief is issue and provide factual material. The Administrative Record before e district court here was supplemented many times by e Tribe as well as e government; e Tribe had every opportunity to provide more information about jurisdiction had it so chosen. See, e.g., CR 56; 93; 99; 127; 129; 136; 139; 140; 141; 145; 146;

22 Case: Document: Date Filed: 09/17/2010 Page: 22 property to Maria Christiana DeRome. As bo e tribe and e government have acknowledged, e patent issued covering e allotment contained a clause stating at e land could not be conveyed or sold wiout consent of e Secretary of e Interior. 927 F.Supp. at 1426, n.5. Following Miami I, claims of tribal jurisdiction over e 11/ land based on e restricted status of e Reserve are wiout foundation. The Tribe misconstrues United States v. Mazurie, 419 U.S. 544, (1975), to claim at e Tribe necessarily has jurisdiction over territory owned or possessed by tribal members. Br. 26, 33. The quoted sentence -- it is an important aspect of is case at Indian tribes are unique aggregations possessing attributes of sovereignty over bo eir members and eir territory. -- does not support e Tribe s more sweeping claim at any land owned by a tribal member Furermore, Mazurie did not involve member- 12/ is wiin tribal jurisdiction. owned land located far from e tribe s reservation. Raer, in Mazurie, e lands 11/ Mustang Production Co. v. Harrison, 94 F.3d 1382 (10 Cir. 1996), is distinguishable. In Mustang, no question was raised wheer e Indian allotments at issue were owned by individuals who had always been tribal members. In addition, Congress had acted only to terminate e Tribe s reservation, but not e Tribe s jurisdiction. Id. at This Court consequently had a basis on which it could conclude at e Cheyenne-Arapaho Tribes retained eir inherent sovereignty over e land and e people. 12/ Given e parallelism in e sentence structure, eir evidently refers to e tribe s members and e tribe s territory. -16-

23 Case: Document: Date Filed: 09/17/2010 Page: 23 at issue were undisputedly wiin e reservation s boundaries. 419 U.S. at 546. The Tribe furer confuses e issue (Br , 38) by citing 18 U.S.C to claim at, as a restricted allotment held by Indians, e Reserve is Indian country, over which e Miami Tribe (or any tribe) necessarily has jurisdiction. But Congress had already terminated e Tribe s jurisdiction over e Maria Christiana Allotment when Section 1151 was enacted in Not only had Congress abrogated e Tribe s jurisdiction over e Reserve in 1924, but Maria Christiana De Rome was among ose who had been stricken from e list of 13/ Miami Tribe members and severed eir ties wi e Tribe in In addition, e Tribe had already repeatedly argued in court at e Maria Christian Allotment was improperly allotted to persons who were not tribal members and has repeatedly won damages based on is argument. Miami IV, 249 F.3d at Thus, when Section 1511 was passed, ere was no existing nexus between e 13/ The Tribe now implies at ere was error in e conclusion at Maria Christiana was not a tribal member. Br. 6. However, e Tribe embraced and relied upon e fact at Maria Christiana was not a tribal member when it successfully sued for reparations for e allocation of Miami Tribe lands to nontribal individuals including Maria Christiana. See G.Br

24 Case: Document: Date Filed: 09/17/2010 Page: 24 14/ Reserve lands and e Tribe. The Tribe had not retained any inherent sovereignty. The Tribe aptly quotes (Br. 34) HRI, Inc. v. EPA, 198 F.3d 1224 (10 Cir. 2000), to emphasize e critical importance of jurisdictional status of Indian lands. Jurisdiction implicates not only ownership, but also core sovereignty interests of e exercise of civil and criminal auority. Id. For is reason, e district court s unsupported conclusion at e Tribe exercises jurisdiction under ILCA should be reversed. Far from ignoring e Miami Tribe s jurisdiction, e government is complying wi prior determinations at e Tribe has relinquished its jurisdiction over e Reserve and cannot regain it by unilateral actions. C. The BIA Considered and Balanced e Correct Factors and Reached a Reasoned and Well-Founded Conclusion. -- The Tribe mistakenly asserts at e Secretary is required to approve e gift conveyance because of e 14/ The document found at T.App , and referenced at Br. 33 in support of e Tribe s claim at Section 1151 grants jurisdiction to tribes is inapposite. In at instance, a Congressional action (e Seneca Nation Settlement Act of 19990, 25 U.S.C. 1774) specifically permitted e Seneca Nation to acquire offreservation lands for gaming purposes. T.App The Secretary of e Interior expressly cautioned at e fact of Congressional auorization made at instance distinct from cases, such as here, when a tribe is seeking a discretionary off-reservation trust acquisition. Id. -18-

25 Case: Document: Date Filed: 09/17/2010 Page: 25 15/ existence of a special relationship between Smi and e Tribe. Br. 19. For reasons fully explained in our opening brief at 38-42, e Tribe is incorrect. At bottom, e Tribe relies upon one of e statutory provisions at makes manifest e fact at e BIA retains discretion over an application for a gift transfer: 25 U.S.C. 2216(b) permits but does not require federal approval of a gift conveyance. ILCA s requirement for Secretarial approval, and e language in 25 U.S.C. 483 auorizing e Secretary to approve conveyances in his discretion, furer evidence e Secretary s discretionary auority. Thus, alough true at Smi is 16/ a tribal member, at e Tribe is an Indian tribe, and at ere is a special relationship between e two, by statute and regulation (25 U.S.C. 483; 25 C.F.R (d); 25 C.F.R ) BIA must review e proposed transfer to determine if it is in e long range best interests of e Tribe and e owners of e Reserve, which is what e BIA did here. The Tribe denigrates (Br ) e BIA s rationale as to why e gift transfer would not be in e long term interests of Smi, oer lands owners, or e Tribe. However, e BIA expresses concern about Smi giving a gift 15/ Indeed, e Tribe asserts (Br ) at e only factor to be analyzed by e agency is e intent of e grantor. 16/ Smi is a tribal member because he was adopted by e Tribe in 1996, not because he is a 1/64 Miami Indian. G.App

26 Case: Document: Date Filed: 09/17/2010 Page: 26 conveyance in light of recent history and gaming-related aspects of is tract * * * (G.App.133), and notes at e proposed gift is not in e long-range best interest of eier you or e oer Indian owners of e allotment. Id. The BIA found at e gift would cause increasing fractionation of e ownership of e tract, at highly fractionated ownership greatly complicates federal management of Indian lands, and can lead to competing and conflicting land use interests between e Tribe and individual Indian owners, and at Indian tribes should pay fair market value for allotted land purchases absent special circumstances. Id. In addition, e BIA noted at e lease to develop a gaming facility to improve revenue for e Tribe and e individual Indian landowners accomplished Smi s stated desire to benefit e Tribe. Id. The Tribe insists (Br. 20) at e gift will benefit all owners by providing stability and advancing e Tribe s land consolidation plan, but e fact remains at e Tribe has long been interested in instituting gaming on e Reserve (see Miami I, Miami IV, etc.) and, indeed, concedes (Br. 21) at e business lease referenced in e BIA decision pertains to gaming. The Tribe s claims (Br.2) at [n]oing in e proposed gift transaction relates to gaming seems at odds wi is history. The BIA s concern about e Smi s gift of a real estate interest given is history is not misplaced. If, as e Tribe claims (Br. 22), [t]he Indian -20-

27 Case: Document: Date Filed: 09/17/2010 Page: 27 land status could give e tract potential value long term and us additional benefit to e owners, why would e Tribe not pay Smi fair compensation for at interest? The BIA s concerns about tract management, competing interests and conflicts are well founded. The record does not support e claim (Br. 21) at e most important interest to Smi and Smi s family members is at e Reserve remain Indian land; ere is also no record evidence at is interest is shared by oer owners of e Reserve. At most, e record shows at, after e BIA issued its decision, e Tribe claimed at it had a plan to consolidate e fractional interests of some 25 percent of e heirs. G.App The record does not show a commitment to transfer interests by e oer owners (or by Smi to transfer his retained interests), and, of course, it cannot show at e owners will remain in harmony about e use of e Reserve in e future. Accordingly, e BIA was more an reasonable in considering e potential for land use conflicts. The BIA s decision incorporated by reference (see G.Br. 35) e additional analysis it gave in its prior decision in Earline Smi Downs v. Acting Muskogee Area Director, BIA, 29 I.B.I.A. 94, 1996 WL (I.B.I.A.) (1996): where tribes own small interests in allotted lands, e tribes and e individual owners often have competing interests in e use of e land. Id. at *4-5. This -21-

28 Case: Document: Date Filed: 09/17/2010 Page: 28 assessment is due deference because it is based on BIA s considerable experience in managing Indian lands. Id. In addition, when e BIA was first considering e Smi gift transfer, e Tribe owned no oer interest in e Reserve; it acquired e Downs interest rough probate in 2006, after issuance of e district court decision (G.Br.20, n.11). Thus, e Smi gift was necessarily going to furer divide ownership in e Reserve by adding e Miami Tribe as a new, fractional owner. This Court reviews e reasonableness of an agency s decisions based on e evidence before e agency at e time e decision was made. Friends of e Bow v. Thompson, 124 F.3d 1210, 1217 (10 Cir. 1997). There is also no evidence to support e Tribe s allegation (Br. 23) at e only way to proactively protect e Indian nature of e Miami lands [sic] is to have Miami Tribe ownership of e * * * Reserve. 17/ The Tribe several times raises e case of Midwest Investment Properties, Inc. v. Fred DeRome, D. Kan. 17/ Nor is ere any record support for e statement (Br. 29) at e Tribe has e resources to make productive and cultural uses of e Reserve. The Tribe also references several federal documents which are irrelevant or predate Miami IV and e Solicitor s opinion, and must now be viewed in light of at decision. For example, at Br. 30, e Tribe relies on statements made by e government in a document issued in 1994, well before Miami I and Miami IV issued. Br. 30, citing T.App

29 Case: Document: Date Filed: 09/17/2010 Page: 29 No O (Br. 5, 23, 27), as a purported example of federal malfeasance, even ough it has no real bearing on e question of jurisdiction or e propriety of is gift conveyance. Indeed, e Tribe s reference (Br. 23) to e dramatic reduction in size of e restricted allotment from 80 to 35 acres in Midwest Investments is a red herring. In 1982, Congress passed e Pub. L. No (Oct. 15, 1982), 96 Stat. 1645, which auorized actions to partition adversely possessed interests in e Maria Christiana Allotment, so at non-indian interests in e allotment (which Congress recognized could be subject to adverse possession) would be separated from Indian interests (not subject to adverse 18/ possession). Pursuant to is enactment, Midwest Investment Properties, Inc., sued to partition e undivided interests of Indian and non-indian owners of e 80-acre allotment. As a result of e decision partitioning e land, instead of owning 45 percent of 80 acres, e Indian owners (who were not members of e Tribe at at time) owned 100 percent of 35 acres at were clearly protected. None of e property interests of e Indian owners was adversely possessed; only e percentages of e non-indian owners were taken. The district court s final 18/ The purpose of a partition action is to take undivided interests in a whole parcel of property and divide e property, resulting in individual ownership of smaller parcels at correlate to e formerly undivided interests in e whole. Black s Law Dictionary, (6 ed. 1990) -23-

30 Case: Document: Date Filed: 09/17/2010 Page: 30 order of May 3, 1989, confirmed at e partitioned lands would be held for e Indian owners in restricted fee title, as mandated in Pub. L. No Midwest Investment Properties, Inc. v. Fred DeRome, D. Kan. No , Order Confirming Report of Commissioners in Partition; Administrative Record, CR 19/ 128, pp. 923, 924. There is us no legal basis for e Tribe s claim (Br. 5, 23, 24) at e federal government failed in its fiduciary duties in Midwest Investment. Contrary to e Tribe s assertions (Br. 5, 27), e government did not represent Smi or his family, e Tribe or any tribal member in Midwest Investment; e United States appeared as a named party because Pub. L. No specifically provided at e United States must be a party if a private owner brought a partition action. Indeed, e district court specifically noted at [n]o defendants, except e United States and Earline Downs, have answered. Each and every oer defendant has failed to file an answer or oer responsive pleading, and e Court finds each of said defendants in default. Midwest Investment Properties, Inc., v. Fred DeRome, D. Kan. No , Journal Entry, CR 128, p. 939 (Addendum). 19/ For e Court s convenience, pertinent district court orders from e Midwest Investment proceedings are attached in an Addendum to is brief. They are also available on PACER at e locations cited. -24-

31 Case: Document: Date Filed: 09/17/2010 Page: 31 Regardless of ese issues, e Midwest Investment outcome simply does not affect issues being reviewed in is case and has no bearing on wheer e Tribe has jurisdiction over e Reserve or wheer e BIA s consideration and action on Smi s proposed gift conveyance properly implemented ILCA. The Tribe faults e government (Br. 34, 28) for not adhering to e Blackfeet canon or Indian canon of construction to construe ILCA and its implementing regulations in favor of e Tribe. In is instance, since e Tribe, Smi, and all oer owners of e Reserve are Indians, e BIA s construction of ILCA and its regulations to protect e interests of Smi and oer Reserve owners comports wi ese canons and protects Indian interests, even if e 20/ results are not what e Tribe would prefer. In addition, by distinguishing requirements for gifts of land from to a tribe by a tribal member from sales of such land, Congress clearly expressed its concern at a gift conveyance be more carefully reviewed and approved an a sale. The Tribe s analogy to a sale of land (Br. 29) fails precisely because, in e absence of payment of fair market value, Congress wanted to ensure at individual Indian s interests were protected. See, e.g., 25 U.S.C. 2216(b) (requiring at e Indian donor be provided wi an 20/ Mr. Smi has not expressly participated in is appeal except to e extent at he may be presumed to be represented by e Tribe. -25-

32 Case: Document: Date Filed: 09/17/2010 Page: 32 estimate of e value of e land). Noing in ILCA or its regulations supports e Tribe s claim (Br. 29) at [a]gency scrutiny of a transfer from a member to his tribe should be minimal. Nor does e Tribe demonstrate in any way how approval of is fractionated gift would reverse e effects of e allotment policy on Indian tribes. Br. 29. There is simply no support for e argument (Br ) at transferring interests to e Tribe would keep restricted Indian lands in e possession and ownership of Indians; e existing restriction on alienation already preserves e Indian land status. The Tribe has not shown how its ownership of an increasingly fractionated interest will benefit Smi or any oer owners of e Reserve, and e BIA reasonably concluded at it would not be in eir long-term best interests. -26-

33 Case: Document: Date Filed: 09/17/2010 Page: 33 CONCLUSION For e foregoing reasons, e district court s final judgment should be reversed and Interior s 2002 decision disapproving e gift conveyance should be upheld. Respectfully submitted, BARRY R. GRISSOM United States Attorney IGNACIA S. MORENO Assistant Attorney General DAVID D. ZIMMERMAN ELLEN J. DURKEE Assistant United States Attorney M. ALICE THURSTON District of Kansas U.S. Department of Justice Kansas City, Kansas, Environment & Natural Resources (913) Division, Appellate Section david.zimmerman@usdoj.gov P.O. Box L Enfant Plaza Sta. Washington, D.C (202) alice.urston@usdoj.gov September 17,

34 Case: Document: Date Filed: 09/17/2010 Page: 34 Please complete one of e sections: Section 1. Word count CERTIFICATE OF COMPLIANCE As required by Fed. R. App. P. 32(a)(7)(C), I certify at is brief is proportionally spaced and contains 6,228 words. Complete one of e following: X I relied on my word processor to obtain e count and it is: Word Perfect X3. I counted five characters per word, counting all characters including citations and numerals. Section 2. Line count My brief was prepared in a monospaced typeface and contains lines of text. I certify at e information on is form is true and correct to e best of my knowledge and belief formed after a reasonable inquiry. /s/ M. Alice Thurston -28-

35 Case: Document: Date Filed: 09/17/2010 Page: 35 CERTIFICATE OF SERVICE I hereby certify at on September 17, 2010, I electronically filed e foregoing wi e Clerk of e Court for e United States Court of Appeals for e Ten Circuit using e appellate ECF system and at all participants in is case, listed below, were served rough at system: Christopher J. Reedy st W. 161 St., Olae, KS Kip A. Kubin Bottaro, Morefield & Kubin st 1001 E. 101 Terrace Kansas City, MO I furer certify at: (a) all required privacy redactions have been made and, wi e exception of ose redactions, every document submitted in Digital Form or scanned PDF format is an exact copy of e written document filed wi e Clerk; and (b) e digital submissions have been scanned for viruses wi e most recent version of a Computer Associates etrust InoculateIT, version , continuously updated and, according to e program, are free of viruses. /s/ M. Alice Thurston Attorney, Appellate Section Environment & Natural Resources Division Department of Justice P.O. Box 23795, L Enfant Plaza Station Washington, D.C (202) alice.urston@usdoj.gov -29-

36 Case: Document: Date Filed: 09/17/2010 Page: 36 ADDENDUM Midwest Investment Properties, Inc. v. Fred DeRome, D. Kan. No , Order Confirming Report of Commissioners in Partition, May 3, 1989 (CR 128, pp ; Midwest Investment Properties, Inc., v. Fred DeRome, D. Kan. No , Journal Entry, September 22, 1988 (CR 128, pp ).

37 ~ ~"...'0:..7.. JI..._. Case: Document: Date Filed: 09/17/2010 Page: 37 í... F.lLED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS h1ay MIDWEST INVESTMENT PROPERTIES, INC., Plaintiff, vs. No FRED DeROME, et ai, Defendants. ORDER. CONFIRMING REPORT OF COMMISSIONERS IN PARTITION Now, on isõ~ay of ~ above captioned matter comes on for, 1989, e on e mot ion of plaintiff to confirm e Report of e Commissioners dated March 31, 1989, duly returned and filed herein wi e Clerk of e United States District Court. The Court finds at reasonable notice has been given to all parties affected by e report pursuant to K.S.A (3) and at no exceptions to e report have been filed. Plaintiff appears by Lynn E. Martin, its attorney. The defendant, United States of America appears rough counsel, Janice Miller Karlin, Assistant United States Attorney for e District of Kansas; and John A. Wilson appears as guardian ad litem and military attorney. WHEREUPON, e Report of Commissioners is submitted to e Court and e Court, after examining said report and being fully advised in e premises and no exceptions ereto having been filed or made to said commissioners' report, finds at e actions and proceedings of said nt

38 Case: Document: Date Filed: 09/17/2010 Page: commissioners are regular and in strict compliance wi e law and e order of is Court; at e partition of siad real estate by e Commissioners is fair, just and reasonable and should be approved and confirmed as provided by law. IT is THEREFORE BY THE COURT ORDERED, ADJUDGED AND DECREED at partition of e real estate described in e Journal Entry of September 22, 1988, is hereby made as follows: To Midwest Investment Properties, Inc., ownership of e following described real estate: West 45 acres of e East Half of e Souwest Quarter of Section 13, Township 19 S, Range 24 E, Miami County, Kansas, subj ect to a 66-foot easement in favor of e East 35 acres. To e United States Government by and rough e Bureau of Indian Affairs to hold e following described real estate in trust for e benefi t of e Indian owners to be vested wi restricted fee title in percentages determined by e Bureau of. Indian Aff ai rs, to-wi t : East 35 acres of e East Hal f of e Souwest Quarter of Section 13, Township 19 S, Range 24 E, Miami County, Kansas, togeer wi a 66-foot easement over and across e Nor 66 feet of e West 45 acres of e East Half. of e Souwest Quarter of Section 13, Township 19 S, Range 24 E, for e sole purpose of ingress and egress

39 Case: Document: Date Filed: 09/17/2010 Page: IT is FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT at e Commissioners, Marvin B. Clark, Gary Hosack e- and E. L. (Jack) Lindsey, should each be paid e sum of $/OD as and for Commissioner's fee and at John A..F Wilson should be paid e sum of $15 D :-- for his services as Guardian ad Litem and Attorney for Defendants in e Military Service wi said fees to be paid by plaintiff herein. g~fjud9~ U. S. District Court APPROVED BY: ~i;:~~3 117 Sou Pearl - P. O. Box "E" Paola, Kansas (913) Attorney for Plaintiff BENJAMIN L. BURGESS, JR. O' d States Attorney )~~ L N 641 Main Street Osawatomie, Kansas Guardian ad Litem and Attorney for Defendants in e Mil i tary Service

40 Case: Document: Date Filed: 09/17/2010 Page: 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MIDWEST INVESTMENT PROPERTIES, ) INC., ) ) Plaintiff, ) vs. ) No. ) FRED DeROME, et ale, ) Defendants. ) -r JOURNAL ENTRY Now on is ~ ~ day of September, ) ) comes \f. ~. IL ~ ID 'SEP2.2~ IJ '''1"'' H. ".' a i '1,". Oe\WW 1\ plaintiff's motion for summary judgment. The court, being advised in e premises, finds as follows: 1. After examining e proofs of publication, e returns of service by e United States Marshal and e acknowledgments in e file, e court finds, generally, at plaintiff has made reasonable efforts to serve each named defendant to is action, as follows: aj Service on e following named defendants, Fred DeRome, Hazel Tabèr, also known as Hazel Tabor, Della Webb, Leona McHenry, George DeRome, Lillian Faye (Smi) Paris, and Lulu Regensberger, was attempted by plaintiff by hiring Crown Investigators to serve summons ereon, but when said defendants could not be found, ey and e unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of such of e defendants as may be deceased; e unknown spouses of e defendants; e unknown successors and assigns of such IIi