UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 LESTER J. MARSTON California State Bar No. 000 RAPPORT AND MARSTON 0 West Perkins Street P.O. Box Ukiah, CA Telephone: 0/- Facsimile: 0/- marston@pacbell.net Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CHEMEHUEVI INDIAN TRIBE; et al., v. Plaintiffs, KEN SALAZAR, Secretary of the United States Department of the Interior, et al., Defendants. WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 0 SVW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Date: October, 0 Time: :0 p.m. Courtroom: Hon. Stephen P. Wilson 0 S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

2 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 TABLE OF CONTENTS Page INTRODUCTION... STATEMENT OF FACTS I. IS APPROPRIATE IN THIS CASE II. III. IV. THE CLAIMS BEFORE THE COURT ALL ARISE FROM AN ISSUE OF STATUTORY INTERPRETATION.... SECTION IS UNAMBIGUOUS AND THE LAND ASSIGNMENT DEEDS MUST BE APPROVED UNDER THE PLAIN WORDING OF THE STATUTE.... A. The Land Assignments Are Encumbrances to Indian Land for a Period of More than Seven Years... B. The Land Assignments Do Not Fall Within Either of the Exceptions Set Forth in Section.... THE REGULATIONS IMPLEMENTING SECTION SUPPORT THE CONCLUSION THAT THE LAND ASSIGNMENTS FALL WITHIN THE SCOPE OF SECTION... V. THE TRIBE S INTERPRETATION IS CONSISTENT WITH THE STATUTE S LEGISLATIVE HISTORY VI. THE CASE LAW INTERPRETING THE AMENDED SECTION SUPPORTS THE TRIBE S INTERPRETATION VII. THE TRIBE S ANALYSIS IS ALSO CONSISTENT WITH OTHER PROVISIONS OF FEDERAL LAW...0 VIII. SECTION MUST BE INTERPRETED PURSUANT TO THE CANONS OF CONSTRUCTION APPLICABLE TO STATUTES ENACTED FOR THE BENEFIT OF INDIANS AND TRIBES IX. THE SECRETARY S REFUSAL TO APPROVE THE LAND ASSIGNMENT DEEDS IS A VIOLATION OF THE APA X. THE IBIA S DECISION WILL HAVE A DEVASTATING EFFECT ON THE TRIBE AND ITS MEMBERS CONCLUSION... S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd i

3 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 TABLE OF AUTHORITIES CASES S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd ii Page Alaska Pacific Fisheries Co. v. United States, U.S. () , Aluminum Co. of America v. Bonneville Power Admin., F.d (th Cir. )... Anderson v. Liberty Lobby, Inc., U.S. ()... Artichoke Joe s Ca. Grand Casino v. Norton, F.d (th Cir. 00)... Boise Cascade Corporation v. United States EPA, F.d (th Cir. )... Bryan v. Itasca County, U.S. ()... Celotex Corp. v. Catrett, U.S. ()... Coyote Valley Band of Pomo Indians v. United States, F.Supp. () Federal Power Commission v. Tuscarora Indian Nation, U.S. (0). 0 Fernandez v. Brock, 0 F.d (th Cir. )... Gasplus, L.L.C. v. United States Department of the Interior, 0 F. Supp. d (D.D.C 00)...,,,, 0 Griffin v. Oceanic Contractors, Inc., U.S. ()... In re Sanborn, U.S. ()... Jicarilla Apache Tribe v. Andrus, F.d (0th Cir. ) Lane v. Pueblo of Santa Rosa, U.S. 0 ()...0 Mallard v. United States Dist. Ct. for the So. Dist. of Iowa, 0 U.S. (). McMullen v. Hoffman, U.S. ()...0 McNabb v. Bowen, F.d (th Cir. )... Morton v. Ruiz, U.S. ()... Northern Cheyenne Tribe v. Hollowbreast, U.S. () Penobscot Indian Nation v. Key Bank of Maine, F.d (st Cir, ). Pyramid Lake Paiute Tribe of Indians v. Morton, F.Supp. (D.D.C.) Rumsey Rancheria of Winton Indians v. Wilson, F.d 0 (th Cir. )..

4 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 Santa Clara Pueblo v. Martinez, U.S. ()... United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad, U.S. ()... United States v. Ron Pair Enters., U.S. ()..., White v. Califano, F. Supp. (D.S.D. ) STATUTES U.S.C. 0..., U.S.C. 0..., U.S.C.... Passim U.S.C.... Passim U.S.C.... U.S.C.... U.S.C.... U.S.C.... U.S.C.... U.S.C.... U.S.C.... U.S.C REGULATIONS C.F.R. Part... Passim OTHER AUTHORITIES Black s Law Dictionary (th ed. )... Chemehuevi Assignment Ordinance... Passim Chemehuevi Constitution... Passim Chemehuevi Land Assignment Deed... Passim st Congressional Globe, Cong., d Sess. (Feb., ) Federal Register, (Friday, July, 000) Thompson on Real Property.0(a)() (d ed. ) S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd iii

5 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: Interior Board of Indian Appeals (00) , Senate Report No. 0-0 () ,,, U.C.C. -0(a)() S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd iv

6 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 INTRODUCTION Within living memory, the federal government flooded all of the arable land within the Chemehuevi Indian Reservation ( Reservation ) to create Lake Havasu, forcing the members of the Chemehuevi Indian Tribe ( Tribe ) to move off the Reservation. The Tribe has spent decades trying to reverse the catastrophic effect of that diaspora. Nevertheless, out of a population of,0 members only now live on the Reservation. Tribal members remain reluctant to return to the Reservation, in large part, because they have invested their savings in off-reservation homes. For tribal members to sell those homes and return to the Reservation, or even to make the substantial investment necessary to build a part-time dwelling of reasonable quality on the Reservation, they must know that they are investing in a Reservation home that will remain theirs, and that their property interest will pass to their heirs. The Tribe concluded that the only way to convince tribal members living off-reservation to uproot, move back to the Reservation, and make the substantial investment necessary to construct quality homes on the Reservation was to grant to its members as close to a fee simple absolute interest in parcels of tribal land as tribal and federal law would allow. The Tribe, therefore, enacted a land assignment ordinance that authorized the Chemehuevi Tribal Council ( Tribal Council ) to grant tribal members permanent land assignments through assignment deeds. Pursuant to the land assignment ordinance, the Tribal Council granted land assignments to qualified tribal members. Because the land assignments granted the assignees an interest in the tribal land lasting more than seven years, the Tribe sought approval of the land assignment deeds ( Assignment Deeds ) from the Secretary of the Interior ( Secretary ), pursuant to U.S.C.. Consistent with the federal government s long history of frustrating the Tribe s efforts to develop the Reservation, on September, 00, Regional S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

7 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 Director Allen J. Anspach refused to approve the Assignment Deeds issued to twenty-nine of the assignees. On May, 00, Acting Regional Director Debrah McBride refused to approve the Assignment Deeds issued to five more assignees. The Tribe and the assignees appealed those decisions to the Interior Board of Indian Appeals ( IBIA ). On October, 00, the IBIA upheld the Regional Director s September, 00 decision. On December 0, 00, the IBIA upheld the Acting Regional Director s May, 00 decision, based on its October, 00 decision. (Together, the two IBIA decisions will be referred to as the Decisions. ) Because the Secretary s denial of the request for approval of the Assignment Deeds is inconsistent with federal law and a violation of the Secretary s fiduciary obligations to the Tribe, the Tribe and the individual Indian land assignees filed this lawsuit. Because there are no material facts in dispute and the Plaintiffs are entitled to judgment as a matter of law, the Plaintiffs now move this Court for summary judgment pursuant to Fed. R. Civ. P. Rule. In this brief, Plaintiffs will demonstrate that the Plaintiffs should be granted summary judgment because: () denial of the Plaintiffs request for approval of the Assignment Deeds is inconsistent with the provisions of Section and its implementing regulations; () denial of the Plaintiffs request for approval of the Assignment Deeds violates the provisions of the Administrative Procedure Act, U.S.C. 0 et seq., ( APA ); and () denial of the Plaintiffs request for approval of the Assignment Deeds is a breach of the Secretary s fiduciary obligations to the Plaintiffs. In ruling on the Plaintiffs motion, the Court must judge the Secretary s conduct by the most exacting fiduciary standards and must, pursuant to the canons of construction applicable to statutes passed for the benefit of Indians, resolve all ambiguities contained in U.S.C. ( Section or ) and C.F.R. Part in favor of the Plaintiffs. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

8 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 STATEMENT OF FACTS The relevant facts of this case are set forth in the Plaintiffs Statement of Uncontroverted Facts and Conclusions of Law, filed herewith. Plaintiffs hereby incorporate, as if set forth here in full, paragraphs -0 of the Statement of Facts ( Statement of Facts ) contained in Plaintiffs Statement of Uncontroverted Facts and Conclusions of Law. This case involves a review by this Court of an agency decision of the IBIA sitting in the place of the Secretary, based upon an administrative record. The defendants did not certify and file with this Court an administrative record. The Plaintiffs, therefore, have authenticated and filed with this Court all of the documents that constitute the administrative record in this case. Declaration of Lester J. Marston In Support of Plaintiffs Motion for Summary Judgment ( Marston Declaration ) and Exhibit A attached thereto, filed herewith. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd I. IS APPROPRIATE IN THIS CASE. The Plaintiffs move for summary judgment pursuant to Rule of the Federal Rules of Civil Procedure ( Rule ). Rule provides, The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. To determine which facts are material, a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., U.S., (). A genuine issue is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex Corp. v. Catrett, U.S., (). See also Gasplus, L.L.C. v. United States Department of the Interior, 0 F. Supp. d (D.D.C 00), ( GasPlus ). Because the parties do not dispute the material facts and this case involves only interpretations of federal law, it is ripe for summary judgment. In support of the present motion, pursuant to Local Rule -, the Plaintiffs

9 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 file herewith a Statement of Uncontroverted Facts and Conclusions of Law, the Marston Declaration, the Declaration of Angela Marie Jones-Marston in Support of Plaintiffs Motion for Summary Judgment ( Jones Declaration ), the Declaration of Jackie Gordon in Support of Plaintiffs Motion for Summary Judgment ( Gordon Declaration ), the Declaration of Debra Casanova in Support of Plaintiffs Motion for Summary Judgment ( Casanova Declaration ); and the Declaration of Ronald Escobar in Support of Plaintiffs Motion for Summary Judgment ( Escobar Declaration ). S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd II. THE CLAIMS BEFORE THE COURT ALL ARISE FROM AN ISSUE OF STATUTORY INTERPRETATION. The claims brought by the Plaintiffs all arise from an issue of statutory interpretation: are the Land Assignments encumbrances within the scope of U.S.C. and, if so, do they require approval by the Secretary of the Interior? The proper method of interpreting a statute is well settled. The analysis begins with the plain language of the statute: Interpretation of a statute must begin with the statute s language. Mallard v. United States Dist. Ct. for the So. Dist. of Iowa, 0 U.S., 0, 0 L. Ed. d, 0 S. Ct. (). The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters. United States v. Ron Pair Enters., U.S.,, 0 L. Ed. d 0, 0 S. Ct. 0 ().... In most cases, if we find the statutory language unambiguous, then we will not resort to legislative history to guide our review. Fernandez v. Brock, 0 F.d, (th Cir. ). Rumsey Rancheria of Winton Indians v. Wilson, F.d 0, (th Cir. ). In interpreting a statute, a court must consider all of the words and provisions of that statute: Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or

10 Case :-cv-0-svw-dtb Document - Filed 0// Page 0 of 0 Page ID #: 0 0 superfluous. Boise Cascade Corporation v. United States EPA, F.d, (th Cir. ), citing Aluminum Co. of America v. Bonneville Power Admin., F.d, (th Cir. ). Where the plain language of the statute is ambiguous, the Court may look to Congressional intent: The plain meaning of legislation should be conclusive, except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. Griffin v. Oceanic Contractors, Inc., U.S., (). In such cases, the intention of the drafters, rather than the strict language, controls. United States v. Ron Pair Enterprises, U.S., (). III. SECTION IS UNAMBIGUOUS AND THE LAND ASSIGNMENT DEEDS MUST BE APPROVED UNDER THE PLAIN WORDING OF THE STATUTE. A. The Land Assignments Are Encumbrances to Indian Land for a Period of More Than Seven Years. Title of the United States Code, as amended, provides, in part: No agreement or contract with an Indian tribe that encumbers Indian lands for a period of seven or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary. U.S.C. (b) (emphasis added). The term encumber is not defined in Section. The regulations enacted to implement Section, however, define the term: Encumber means to attach a claim, lien, charge, right of entry, or liability to real property (referred to generally as encumbrances). Encumbrances covered by this part may include leasehold mortgages, easements, and other contracts or agreements that by their terms could give to a third party exclusive or nearly exclusive proprietary Section was amended in 000, P.L. 0-,, Stat. ( March, 000). As will be discussed in detail in Section V, below, the amended Section amounts to a new statute that must be interpreted by its own terms, not based on the preceding version of the statute. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

11 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 control over tribal land. C.F.R..00 (emphasis added). In Gasplus, L.L.C. v. United States Department of the Interior, 0 F. Supp. d (D.D.C 00), the only case that Plaintiffs are aware of that interpreted the amended Section in detail, the District Court for the District of Columbia defined the term encumbrance : The word encumbrance is a term of art in property law that has a fairly well-defined meaning. Black s Law Dictionary defines encumbrance as: A claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest. Black s Law Dictionary (th ed. ). A leading treatise on real property states that [t]he term encumbrance is broader than lien and includes a variety of rights or interests in land (e.g. liens, easements, or restrictive covenants) which may diminish the value of the encumbered property but which are not inconsistent with the transfer of fee simple title. Thompson on Real Property.0(a)() (d ed. ). Similarly, under the Uniform Commercial Code, [e]ncumbrance means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property. U.C.C. -0(a)(). Gasplus, 0 F. Supp. d at. In interpreting Section, the Gasplus court described the effect of the amendments to Section :... the amendments changed the analytical focus from whether a contract is related to Indian lands to whether a contract gives a third party a legal interest in tribal lands that encumbers a tribe s ability to control the land as proprietor. Id., 0 F. Supp. d at (emphasis original). Under both the C.F.R..00 definition and the definition set forth in Gasplus, the Land Assignments are unquestionably encumbrances for the purposes of Section. The Recitals to the Land Assignment Ordinance specifically state that it was the intention of the Chemehuevi Tribal Council to grant nearly exclusive proprietary control over the tribal land to the Assignees: The Council desires to establish a procedure by which tribal members can acquire the right to S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

12 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: use tribal land for residential purposes in a manner similar to how persons acquire an ownership interest in land off the Reservation in fee simple. (Emphasis added.) Statement of Facts, p., 0. Each Assignment Deed grants the assignee an exclusive right of use and possession of tribal land for the life of the assignee and, upon the assignee s death, to the assignee s heirs, if the heirs are members of the Tribe. Statement of Facts, pp. -, -0. A Land Assignment can only be terminated if the assignee: () does not use the Land Assignment as a permanent or part-time residence; () attempts to convey an interest in the assigned lands, including a leasehold interest, without the consent of the Chemehuevi Tribal Council; () uses the property for the commission of a crime; or () uses the property in violation of tribal law. Statement of Facts, pp. -, 0. As long as the conditions of the Assignment Ordinance are met, an assignment is, for all practical purposes, in perpetuity. Id. In order to ensure that the assignees are able to protect their interest in their Land Assignments, the Assignment Deeds include a waiver of sovereign immunity, which allows an assignee to enforce his interest in the Land Assignment should a future Tribal Council attempt to shorten or negate the land assignment. Statement of Facts, pp. -, 0. The Assignment Deeds also incorporate by reference the provisions of the Assignment Ordinance, to ensure that those provisions would be enforceable under a claim of breach of contract, should a future Tribal Council attempt to revoke an Assignment for any reason other than those permitted under the Assignment Ordinance. Id. Finally, Section.0.0 of the Assignment Ordinance requires the Chairman of the Tribe to execute all Assignment Deeds formally conveying the interest in the assigned land to tribal members who qualify for an Assignment. Id., p.. This provision ensures that: () the present Assignment Ordinance and its provisions are incorporated into the terms of the Deed; and () the waiver of sovereign immunity in the Deed is unequivocally expressed, which will allow an S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

13 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 assignee to challenge a decision to revoke the Assignment by bringing an action in the Chemehuevi Tribal Court or, if the Tribal Court declines to hear the case, in any court of competent jurisdiction. Id. Clearly, the Assignment Deeds grant to the assignees a nearly exclusive claim to use and occupy tribal land, as well as a nearly exclusive right of entry to tribal land. Thus, there is no doubt that the Assignment Deeds executed by the Tribe to the individual Plaintiffs are encumbrances for the purposes of and as defined in C.F.R..00. Because the encumbrances are for a period longer than seven years, the Land Assignments require Secretarial approval under (b) and C.F.R..00, unless they fall within one of the exceptions to the approval requirement. B. The Land Assignments Do Not Fall Within Either of the Exceptions Set Forth in Section. Section lists two exceptions to the requirement that the Secretary approve encumbrances of tribal land for a period of more that seven years: (d) The Secretary (or a designee of the Secretary) shall refuse to approve an agreement or contract that is covered under subsection (b) if the Secretary (or a designee of the Secretary) determines that the agreement or contract-- () violates Federal law; or () does not include a provision that (A) provides for remedies in the case of a breach of the agreement or contract; (B) references a tribal code, ordinance, or ruling of a court of competent jurisdiction that discloses the right of the Indian tribe to assert sovereign immunity as a defense in an action brought against the Indian tribe; or (C) includes an express waiver of the right of the Indian tribe to assert sovereign immunity as a defense in an action brought against the Indian tribe (including a waiver that limits the nature of relief that may be provided or the jurisdiction of a court with respect to such an action). U.S.C. (d). The IBIA upheld the Regional Director s refusal to approve the Assignment Deeds on the ground that the Land Assignments violated federal law, specifically, the Indian Non-Intercourse Act, U.S.C. ( Section ): S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

14 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 [T]he Ordinance falls squarely within the prohibitions found in. The terms of the assignment deeds and the Ordinance do not benefit the Tribe. The Tribe loses its right to use and possess its lands while the assignees gain not only the right to demand compensation in the event of a condemnation action by the Tribe but enforceable property rights against all third parties, including the Tribe. The fact that there are circumstances under which possession may return to the Tribe is not persuasive because these circumstances are not intended to occur. Given these terms, we cannot but conclude that the Tribe has conveyed a significant claim to its lands that falls squarely within the proscription of. IBIA, 0 (00). Section does not include any definition or explanation of what was intended by the phrase, violates Federal law. The regulations merely restate the provisions of the statute. C.F.R..00. As will be discussed in Section V, below, the legislative history of the new Section, also provides no direct guidance on the issue. Thus, the Court is required to interpret this provision in a manner that is not clearly in conflict with the plain wording and the evident purpose of the statute. Such an analysis compels the conclusion that the IBIA s interpretation is in conflict with the purpose of the statute. There are two categories of agreements that the phrase violates Federal law could conceivably encompass. The first category is contracts that would violate federal law under any circumstances. An obvious example of this kind of agreement would be an agreement granting an interest in tribal land for the construction of a landfill that violated the Clean Water Act, U.S.C., et seq. The second category is contracts that would violate federal law but for Secretarial approval. The IBIA did not conclude or even suggest that the Land Assignments do not contain the elements required by Section (d)(). The Land Assignments provide for remedies in case of a breach in the form of a grant of tribal court jurisdiction over claims brought by Assignees to enforce the provisions of the Ordinance and the terms of the Assignment Deeds. They also contain an express waiver of the Tribe s immunity from suit. Statement of Facts, p.,. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

15 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 With regard to the first category, it is beyond debate that the Secretary is not empowered to approve, and thereby legitimize, agreements that are violations of criminal law or against public policy. McMullen v. Hoffman, U.S., (). There is no doubt that restricting the application of Section to exclude such agreements would be consistent with the plain wording of the statute. The issue that this Court must address in this case arises from the second category: agreements that would violate federal law in the absence of Secretarial approval. This category would include agreements that would violate the provisions of U.S.C.. The current version of Section states, in relevant part: No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. U.S.C.. Section was intended to prevent unscrupulous actors, other than the federal government, from stealing land from Indian tribes, during the period when tribes were foreign governments that could only be dealt with through treaties with the federal government. Standing alone, Section applies to any agreement that conveys an interest in tribal land other than a treaty or convention entered into pursuant to the Constitution. Over time, the provision requiring a treaty or convention came to be understood to mean a treaty, convention, or act of Congress. The obvious purpose of that statute is to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent of Congress, and to enable the Government, acting as parens patriae for the Indians, to vacate any disposition of their lands made without its consent. Federal Power Commission v. Tuscarora Indian Nation, U.S., (0) (emphasis added). S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd 0

16 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 The Section prohibition on agreements granting an interest in Indian land eventually became an impediment to public works activities, such as the creation of a road systems, the expansion of utility systems, and commercial development designed to develop tribal resources for the benefit of the tribes. Congress, therefore, enacted a number of statutes that permitted parties to obtain an interest in tribal land. Those statutes applied to numerous interests in tribal land, among them, leases of tribal land for general purposes, U.S.C. ; leases for grazing and mining, U.S.C. ; rights-of-way for general purposes, U.S.C. ; rights-of-way for highways, U.S.C. ; rights-ofway for railroad, telegraph, and telephone lines, U.S.C. ; and rights-ofway for pipelines, U.S.C. (together, Leasing Statutes ). The effect of each of these statutes was to permit what would otherwise be prohibited by Section. Importantly, these statutes all require that the agreements relating to the granting of an interest in tribal land be approved by the Secretary of the Interior. Without the Secretary s approval, any agreement entered into pursuant to the Leasing Statutes would violate Section. The new Section, in effect, applies to any encumbrance of tribal land of seven or more years that are not encompassed by the Leasing Statutes. This is evident from the definition of encumbrance in C.F.R..00: [C]ontracts or agreements that by their terms could give to a third party exclusive or nearly exclusive proprietary control over tribal land. Clearly, any interest in tribal land that gives a third party exclusive or nearly exclusive proprietary control over tribal land would fall within the reach of Section. The IBIA, nevertheless, concluded that the Land Assignments cannot be approved, because they would violate Section :.... The Tribe appears to suggest that is a grant of authority to BIA to approve transactions that might otherwise be prohibited by. We find no support for this argument and itself is evidence S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

17 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 to the contrary: In prohibiting the approval of agreements or contracts that violate[] Federal law, U.S.C. (d)(), Congress explicitly made subject to any Federal statutory proscriptions, which include. Congress simply did not confer authority on the Secretary to approve encumbrances notwithstanding the applicability of other statutory proscriptions. IBIA, 0 (00). The IBIA s conclusion leads to the question: what agreement that grants exclusive or nearly exclusive proprietary control over tribal land for a period of seven or more years would not violate Section? The answer is none. In fact, if the courts were to accept the IBIA s conclusion that Section does not empower the Secretary to approve encumbrances that would otherwise violate Section, Section would be rendered a nullity because there would be no agreements that the Secretary could approve that would not be subject to the prohibition. In addition, all of the agreements permitted under the Leasing Statutes would also violate Section because their validity is dependant on the Secretary s approval. Contrary to the IBIA s conclusion, it is evident that Congress, in enacting Section, intended that approval of an encumbrance by the Secretary have the effect of removing the prohibition against such encumbrances contained in Section. If that were not the case, the Secretarial approval provision of Section would be superfluous: the only reason that Secretarial approval is necessary is because the encumbrances of tribal land would otherwise violate Section. Under the plain wording of Section, because the Assignment Deeds grant to the individual assignees an exclusive right of use and possession of tribal land for more than seven years, a Chemehuevi Land Assignment is an encumbrance within the meaning of Section and, therefore, requires Secretarial approval. The Land Assignments meet all of the requirements of Section necessary for Secretarial approval and they do not fall within the exceptions listed in subsection (d). Because all of the requirements necessary for approval under Section have S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

18 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 been met, the Secretary is compelled to approve the Land Assignments. IV. THE REGULATIONS IMPLEMENTING SECTION SUPPORT THE CONCLUSION THAT THE LAND ASSIGNMENTS FALL WITHIN THE SCOPE OF SECTION. The regulations implementing Section reinforce the conclusion that the Land Assignments fall within the terms of Section. Under the regulations, the only bases for not approving the Land Assignments would be that: () they fall within the categories listed in Section (d), discussed above; or () they fall within the types of agreements that the Secretary has concluded do not require Secretarial approval, which are set forth in C.F.R..00. Of the categories listed in Section.00, only one is of potential relevance to the Land Assignments, subsection (d), which excludes: Contracts or agreements that convey to tribal members any rights for temporary use of tribal lands, assigned by Indian tribes in accordance with tribal laws or custom. The critical question in determining whether the Land Assignments are excluded by Section.00(d) is whether the Assignment Deeds are agreements conveying to tribal members a right for temporary use of tribal lands. The C.F.R. Part regulations do not define temporary or temporary use. The description of the Land Assignments discussed in Section III make it clear that, under any definition, the Land Assignments are not temporary. So long as the assignees do not violate the terms of the Ordinance and the Deeds, the Land Assignments are, for all intents and purposes, permanent. Thus, no provision of Section.00 would support the conclusion that the Land Assignments cannot be approved. The history of the rule-making of the regulations implementing the current Section, furthermore, reveals that the Secretary consciously decided to subject tribal land assignments like those created in the Land Assignment Ordinance to S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

19 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 the Section approval process. On July, 000, the Secretary published in the Federal Register proposed regulations implementing the newly revised. The proposed regulation excluded tribal land assignments from the approval process: The following types of contracts or agreements do not require Secretarial approval:... (d) Contracts or agreements that convey any use rights assigned by tribes, in the exercise of their jurisdiction over tribal lands, to tribal members. Fed. Reg., (July, 000), setting forth proposed C.F.R..00(d). On July, 00, the Secretary adopted final regulations implementing U.S.C.. The final regulations removed the reference to Contracts or agreements that convey any use rights assigned by tribes from the list of contracts that are excluded from Section review. The final version of C.F.R..00(d) restricted the exclusion to contracts or agreements providing only temporary use of tribal land: Contracts or agreements that convey to tribal members any rights for temporary use of tribal lands, assigned by Indian tribes in accordance with tribal laws or custom. Fed. Reg. (July, 00) (emphasis added). This change in the final regulations is significant, for at least three reasons. First, the exception set forth in the final regulation does not apply to all assignments of rights in tribal land. It restricts the application of the exception to the narrower category of temporary use of tribal lands. Second, the change reflects the fact that the Secretary was aware that tribes might choose to assign interests in land for longer terms and specifically decided not to include that type of assignment in the list of excluded contracts or agreements. Third, the change reveals that, if the Secretary intended to exclude all land assignments, he knew how to do so. Thus, the Secretary consciously decided to include tribal land assignments among the contracts that the Secretary must approve. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

20 Case :-cv-0-svw-dtb Document - Filed 0// Page 0 of 0 Page ID #:0 0 0 The examples given in the Federal Register notice commentary on the proposed regulations supports this analysis. In providing examples of contracts that qualify as encumbrances and therefore require Secretarial approval, the commentary states: a restrictive covenant or conservation easement may encumber tribal land within the meaning of Section, while an agreement that does not restrict all economic use of tribal land may not. An agreement whereby a tribe agrees not to interfere with the relationship between a tribal entity and a lender, including an agreement not to request cancellation of the lease, may encumber tribal land, depending on the contents of the agreement. Similarly, a right of entry to recover improvements or fixtures may encumber tribal land, whereas a right of entry to recover personal property may not. Id. at 0-. The regulations and their evolution through the rule making process reveal that the intention of the Secretary in enacting the regulations was to require approval of agreements that grant more significant interests in tribal land, but not require approval of agreements that grant less significant, temporary interests in tribal land. The IBIA s conclusion that the Secretary is not required to approve the Land Assignments, because they grant too great an interest in tribal land and, therefore, violate Section, is in direct conflict with the provisions of the regulations and the evident purpose of the regulations as expressed in the rule making process. THE TRIBE S INTERPRETATION IS CONSISTENT WITH THE STATUTE S LEGISLATIVE HISTORY. The inaccuracy of the IBIA s interpretation of Section is further V. underscored by the legislative history of the 000 amendment to the statute. The 000 version of Section is essentially a new statute, only remotely related to the purpose of the original Section. Throughout the Senate Report on the legislation, the proposed statute is referred to as an amendment in the nature of a substitute. S. REP. NO. 0-0, at (). S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

21 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 Congress first enacted what was later codified at U.S.C. in as part of an appropriations bill, and in as permanent legislation. Congress intended [ ] to protect the Indians from improvident and unconscionable contracts.... Specifically, Congress adopted to protect Indian tribes and individual Indians from persons, particularly attorneys and claims agents, offering dubious services, typically the assertion of the Indians land claims against the government, in exchange for enormous fees. Penobscot Indian Nation v. Key Bank of Maine, F.d, (st Cir, ), citing In re Sanborn, U.S., () and CONG. GLOBE, st Cong., d Sess., - (daily ed. Feb., ). The original Section prohibited anyone from entering into agreements in consideration of services for said Indians relative to their lands without the approval of the federal government. The statute included a number of other safeguards, such as the requirement that all such agreements be made in writing and executed in the presence of a federal judge. The phrase services for said Indians relative to their lands, became a longstanding source of confusion and controversy, which eventually led to the 000 amendment of the statute. Indian tribes, their corporate partners, courts, and the Bureau of Indian Affairs... have struggled for decades with how to apply Section in an era that emphasizes tribal self-determination, autonomy, and reservation economic development. S. REP. NO. 0-0, at (). The legislative history of the new Section reveals that the fundamental purpose of the new Section was to encourage Indian economic development, to provide for the disclosure of Indian tribal sovereign immunity in contracts involving Indian tribes, and for other purposes. Id. The new Section is intended to clarify which agreements with Indian tribes require federal approval, to specify the criteria for approval of those agreements, and to provide that those agreements covered by the Act include a provision either disclosing or addressing tribal immunity from suit. Id. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

22 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #:0 0 0 In the course of the hearings on the legislation, the Department of the Interior informed the Senate Committee on Indian Affairs that it believed that Section should be eliminated, rather than amended or replaced. The Committee, however, concluded that there are certain circumstances in which Secretarial approval of contracts entered into by Indian tribes would still be appropriate: Id., p.. Although the amendment in the nature of a substitute reported by the Committee addresses many of the Department s concerns, it leaves the provision in place to address a limited number of transactions that could place tribal lands beyond the tribe s ability to control the lands in its role as proprietor. The Senate Report later states: The amendment eliminates the overly-broad scope of the Act by replacing the phrase relative to Indian lands with the phrase encumbering Indian lands. By making this change, Section will no longer apply to a broad range of commercial transactions. Instead, it will only apply to those transactions where the contract between the tribe and a third party could allow that party to exercise exclusive or nearly exclusive proprietary control over the Indian lands..... In essence,... Section will apply to those transactions that are not leases, per se, but which could result in the loss of tribal proprietary control. Id. (emphasis added). It would be difficult to find an agreement that fits the expressed intention of Congress as well as the Land Assignments. The Land assignments are not leases, per se, but they will allow the assignees to exercise exclusive or nearly exclusive proprietary control over the Indian lands. There is, furthermore, nothing in the legislative history that supports the IBIA s conclusion that Congress intended to restrict the application of the statute to agreements that would not violate Section. The Senate Report s description of the purpose of the violates Federal law provision states: Consistent with the principles of tribal self-determination, this bill S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

23 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 does not direct the BIA to substitute its business judgment over that of a tribal government. This is not to say that the Department may not offer and tribes may not seek advice or assistance in negotiating, preparing, or submitting agreements covered by Section, as amended. Since the enactment of the IRA, at least those tribes with corporate charters conferred pursuant to Section of that Act have been authorized to enter agreements without Section approval.... In addition, those tribes participating in Self-Governance are also free from the requirements of Section. The Committee has not been informed that this has resulted in any widespread problems. In fact, the Department s May, testimony in favor of striking all of Section clearly demonstrates that it does not believe that federal review of such agreements is necessary. For that reason, in place of more intrusive review, the bill will limit the Secretary s determination to whether the agreement would violate federal law. Since these agreements will bear the imprimatur of federal approval, it is appropriate for the Secretary to be satisfied that the agreement does not contravene any specific statutory prohibitions. Id. (emphasis added), pp. -. Nowhere, either in this section of the Senate Report nor any other part of the report, is any reference made to restricting the application of the new Section to agreements that are not encompassed by Section. The only mention of Section in the Senate Report is a quote from the House Report on the Indian Mineral Development Act of, P.L. -, which the Senate Report cites to as an example of the kind of problem that necessitated the amendment of Section : (T)he approval procedure for non-lease ventures under Section requires a rather cumbersome case-by-case analysis to determine whether the document submitted for approval is a service agreement within the purview of the act, or an interest in land within the purview of the Indian Non-Intercourse Act (R.S. ; U.S.C. ). (In addition), with the proliferation and hybridization of nonlease ventures, it is increasingly difficult to make the determination described. Without clarification of the Secretary s authority for approval of existing ventures, because of the confusion concerning the Secretary s authority to approve non-lease ventures, the Department is reluctant to approve a number of proposed agreements which are pending. Id. (emphasis added), p., citing H.R. REP. NO., th Cong., nd. Sess.. The Senate Report s description of the agreements to which the amended Section was intended to apply would include primarily, if not exclusively, S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

24 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 agreements that would violate Section. For that reason, it is simply not reasonable to conclude that Congress intended to restrict the application of the statute in this fundamental way without making any reference to Section. Congress. The IBIA s interpretation is entirely at odds with the stated intention of VI. THE CASE LAW INTERPRETING THE AMENDED SECTION SUPPORT THE TRIBE S INTERPRETATION. The only court decision that the Plaintiffs are aware of that has analyzed the application of the amended Section in any detail is GasPlus, supra. GasPlus concerned whether a management agreement in which the Nambe Pueblo contracted with GasPlus to manage its gas distribution business required Secretarial Approval under Section. GasPlus challenged a ruling by the Acting Assistant Secretary that the management agreement was void because it had not received Secretarial Approval under Section. The court reversed the Assistant Secretary s decision because, it is clear that the Agreement is not directly concerned with tribal land: nowhere in the Management Agreement is GasPlus given any legal right or interest in the Nambe Pueblo s real property. GasPlus, 0 F. Supp. d at. The GasPlus decision unequivocally states that, in determining whether the amended Section requires Secretarial Approval of a particular contract, the fundamental issue is whether the transaction constitutes an encumbrance of tribal land: the amendments [to Section enacted in 000] changed the analytical focus from whether a contract is related to Indian lands to whether a contract gives a third party a legal interest in tribal lands that encumbers a tribe s ability to control the land as proprietor.... the sine qua non of Section analysis is whether the contract encumbers Indian land. GasPlus, 0 F. Supp. d at (emphasis original). S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

25 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 The GasPlus analysis of what constitutes an encumbrance is entirely consistent with the Tribe s conclusion that the Land Assignments are encumbrances under Section : under Section and the implementing regulations, a contract that encumbers Indian lands is a contract that, by its terms, provides a third party with a legal interest in the land itself; that is, a right or claim attached to the real property that would interfere with the tribe s exclusive proprietary control over the land. GasPlus, 0 F. Supp. d at (emphasis added). Clearly, the Land Assignments are contracts that, by their terms, provide the assignees with a legal interest in a parcel of tribal land, a right that would interfere with the Tribe s exclusive proprietary control over the land. VII. THE TRIBE S ANALYSIS IS ALSO CONSISTENT WITH THE SECRETARY S APPROVAL OF THE TRIBE S CONSTITUTION. Title of the United States Code Section requires the Secretary to approve tribal constitutions unless the Secretary finds the proposed constitution to be contrary to applicable laws. The Secretary affirmatively approved the Tribe s Constitution on January,. Section (f) of the Constitution grants the Tribal Council the authority to make, administer, and revoke assignments of tribal lands to members of the Tribe. Statement of Facts, p.,. Approval of the Tribe s Constitution is an acknowledgment by the Secretary that the Tribal Council s conveyance of land assignments does not violate federal law, including, but not limited to, Section. VIII. SECTION MUST BE INTERPRETED PURSUANT TO THE CANONS OF CONSTRUCTION APPLICABLE TO STATUTES ENACTED FOR THE BENEFIT OF INDIANS AND TRIBES. Because Congress exercises a trust responsibility when dealing with Indians, courts presume that Congress intent toward Indians is benevolent. As such, courts have developed canons of construction requiring that statutes and S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd 0

26 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 other federal actions be read, whenever possible, as protecting Indian rights and in a manner favorable to Indians. Lane v. Pueblo of Santa Rosa, U.S. 0 (); McNabb v. Bowen, F.d (th Cir. ); Coyote Valley Band of Pomo Indians v. United States, F.Supp. (E.D. Cal. ); White v. Califano, F. Supp. (D.S.D. ) aff d, F.d (th Cir. ); Morton v. Ruiz, U.S. (); Pyramid Lake Paiute Tribe of Indians v. Morton, F.Supp. (D.D.C.). The Supreme Court has long adhered to the general rule that statutes passed for the benefit of the dependent Indian tribes... are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries Co. v. United States, U.S., (). In addition, in implementing the federal-tribal relationship, the Supreme Court has held that statutes dealing with Indians shall be construed liberally in favor of establishing Indian rights. Thus, when Indian rights are shown to exist, later federal action that might abridge them is construed narrowly in favor of retaining Indian rights. The principle requiring a clear and plain statement before Indian treaty rights can be abrogated applies to federal statutes, United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad, U.S. (), Bryan v. Itasca County, U.S. (), Santa Clara Pueblo v. Martinez, U.S. (), and administrative regulations promulgated by the Secretary of the Interior for the benefit of Indians. Jicarilla Apache Tribe v. Andrus, F.d, (0th Cir. ). Based upon these canons of construction, any doubts about the interpretation of the statutes and regulations involved in this case, U.S.C., U.S.C., U.S.C., and C.F.R. Part, must be construed in favor of the Plaintiffs, with all doubts and ambiguities being resolved by the Court in their favor with the intent of upholding their rights. This trust relationship is the genesis of the eminently sound and vital S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd

27 Case :-cv-0-svw-dtb Document - Filed 0// Page of 0 Page ID #: 0 0 canon, Northern Cheyenne Tribe v. Hollowbreast, U.S., n., (citations omitted) (), that statutes passed for the benefit of Indians are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Alaska Pacific Fisheries v. United States, U.S.,, (citations omitted) (). th McNabb v. Bowen, F.d, ( Cir. ). Because of these canons of construction, if the Court finds that the statutes or regulations implementing the statute are ambiguous, the Court must adopt the Plaintiffs interpretation of U.S.C., U.S.C., U.S.C., and C.F.R. Part, not because it is necessarily the better reading, but because it favors Indian tribes and the statute at issue is both ambiguous and intended to benefit those tribes. Artichoke Joe s Ca. Grand Casino v. Norton, F.d, 0 (th Cir. 00). The application of these canons of construction in this case would inevitably lead to broad interpretations of Section and Section that would include the Tribe s Land Assignments within Section s definition of an encumbrance. If the canons of construction are applied and U.S.C. and Section are interpreted as the Tribe understands the statutes, the Secretary would be compelled to conclude that: () the Assignment Deeds approved by the Tribe grant a permanent, not a temporary, right of possession to the Assignees to use tribal land within the meaning of C.F.R..00(d); () because the Land Assignments grant the Assignees a permanent right of possession to tribal land, they are encumbrances within the meaning of U.S.C. that require the approval of the Secretary in order to be valid; and () because the Tribe s Land Assignment Ordinance and Deeds meet all of the requirements for approval contained in Section, the Secretary is required to approve the Assignment Deeds. IX. THE SECRETARY S REFUSAL TO APPROVE THE LAND ASSIGNMENT DEEDS IS A VIOLATION OF THE APA. S:\LJM\Pldgs\Chem\LandAssign\Mot SJ\memo.P&A(SJ rev).wpd