Chemehuevi Indian Tribe v. Sally Jewell , 767 F.3d 900 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEMEHUEVI INDIAN TRIBE; No. 12-56836
TIFFANY T. ADAMS; DUSTI ROSE
BACON; MICHELLE DELORES D.C. No.
BARRETT; JUANA BUSH; ANGELA 2:11-cv-04437-
CARRILLO; JOHN DEVILLA; WACO SVW-DTB
ESCOBAR; MARK ESWONIA;
EMMANUEL EVANS; TONY FIXEL;
RIKKI HARPER; JESSE SEYMORE OPINION
GORDON; LEONA GORDON; JOHN W.
HERNANDEZ; HOPE HINMAN;
EVANGELINA HOOVER; ANGELA
MARIE JONES; SHARON MELISSA
KASEMAN; BRIAN KELLYWOOD;
JOSEPH ALAN LUSCH, JR.; STEVEN
DALE MADEROS; RAMON CAMPASS
MARTINEZ; MICHELLE MENDOZA;
HOWARD IRVING PEACH; SIERRA
PENCILLE; RAMONA MADALENE
POWELL; CHRISTINA RAY; RICHARD
SANDATE, JR.; ROBERTA SESTIAGA;
TITO KATTS SMITH; ADAM
TRUJILLO, JR.; ADAM STEVEN
TRUJILLO, SR.; SAMIYAH WHITE,
Plaintiffs-Appellants,
v.
2 CHEMEHUEVI INDIAN TRIBE V. JEWELL
SALLY JEWELL, Secretary of the
United States Department of the
Interior,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
April 7, 2014—Pasadena, California
Filed September 17, 2014
Before: Sidney R. Thomas, Milan D. Smith, Jr.,
and Morgan Christen, Circuit Judges.
Opinion by Judge Thomas
SUMMARY*
Tribal Affairs
The panel affirmed the district court’s summary judgment
in favor of the Secretary of the United States Department of
the Interior in an action brought by the Chemehuevi Indian
Tribe alleging that the Secretary violated the Administrative
Procedure Act by determining that the Department of the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHEMEHUEVI INDIAN TRIBE V. JEWELL 3
Interior was not authorized to approve the Tribe’s
assignments of land to certain of its members.
The Tribe issued land assignment deeds to some of its
members, which the Tribe submitted to the Bureau of Indian
Affairs Western Regional Director, seeking approval under
25 U.S.C. § 81 (2000) (“Section 81”). The Interior Board of
Indian Appeals concluded that the deeds could not be
approved under Section 81 because doing so would violate 25
U.S.C. § 177 (“Section 177”).
The panel applied Chevron analysis, and at step one of the
analysis, held that the plain language of Section 81 and
Section 177 revealed that Congress did not intend for the
Secretary of the Interior to approve agreements under Section
81 that would otherwise be prohibited by Section 177. The
panel held that Section 177 prohibited the conveyance of land
from an Indian Tribe unless approved by Congress, and
Congress had not approved the transaction at issue here. The
panel concluded that the Secretary of the Interior properly
denied approval of the deeds under Section 81 because such
conveyances would violate federal law.
COUNSEL
Lester J. Marston (argued) and Scott Johnson, Rapport and
Marston, Ukiah, California, for Plaintiffs-Appellants.
William B. Lazarus, Elizabeth A. Peterson, and Thekla
Hansen-Young (argued), United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C., for Defendants-Appellees.
4 CHEMEHUEVI INDIAN TRIBE V. JEWELL
OPINION
THOMAS, Circuit Judge:
The Chemehuevi Indian Tribe and thirty-four of its
members (collectively the “Tribe”) appeal from the district
court’s grant of summary judgment in favor of the Secretary
of the United States Department of the Interior (“Interior” or
“Secretary”). The Tribe alleges that the Secretary, acting
through the Bureau of Indian Affairs (“BIA”), violated the
Administrative Procedure Act (“APA”) by determining that
Interior was not authorized to approve the Tribe’s
assignments of land to certain of its members. We affirm.
I
The Chemeheuvi Reservation (“Reservation”) sits on
32,000 acres in San Bernardino County, California. Title to
the Tribe’s Reservation lands is owned and held in trust by
the United States government. The Reservation’s beautiful
location belies a more turbulent history.
In the early 1940s, in order to provide water to
burgeoning communities in California and nearby states,
Congress condemned the bottom land of the Reservation—
where all the members lived—in order to construct Parker
Dam and create Lake Havasu. The Dam left the Reservation
flooded, and all but one of the tribal families were forced to
relocate off reservation. Many of the displaced members
resettled in locations not far from the Reservation, including
Burbank, Los Angeles, and Phoenix.
Eventually, the flooding subsided and the land became
hospitable. As a result, in 1970, members of the Tribe sought
CHEMEHUEVI INDIAN TRIBE V. JEWELL 5
to reorganize the tribal government and provide incentives for
its members to move back to the Reservation. Specifically,
the Tribe has attempted over the past ten years to convey
exclusive rights of use and possession of land to certain of its
members, having concluded that many members who had
resettled owned homes in their new communities and would
likely need a large incentive before selling their existing
homes and relocating to build new homes on the Reservation.
To that end, in 2001 the Tribe adopted Ordinance 01-08-
25-1-A, which established procedures under which the Tribal
Council can approve land assignment deeds to tribal
members. Pursuant to the Ordinance and deeds, tribal
members would “be allowed to occupy unassigned tribal trust
lands for residential purposes . . . in a manner similar to [fee
simple ownership] in land off the Reservation.” The
Ordinance describes the assignments as “formal exclusive
right[s] to use and possess tribal land.” The Tribe itself
described the assignments as “interest[s] in the parcel of tribal
land . . . that [were] as close to fee simple absolute as
possible.”
Pursuant to the Ordinance, the Tribe issued deeds to some
of its members, which the Tribe then submitted to the BIA’s
Western Regional Director, seeking their approval under
25 U.S.C. § 81 (2000) (“Section 81”). The Regional Director
declined to approve the deeds, and the Tribe appealed to the
Interior Board of Indian Appeals (“IBIA”).1
1
This litigation has a somewhat complicated procedural history. The
Tribe initially submitted a set of land assignments to the BIA for approval
under Section 81. While that application was pending, the Tribe filed suit
in federal district court to compel approval of the deeds. The district court
eventually dismissed the suit in 2006 for failure to exhaust administrative
6 CHEMEHUEVI INDIAN TRIBE V. JEWELL
Reaching the merits of the appeal, the IBIA concluded
that the deeds cannot be approved under Section 81 because
doing so would violate 25 U.S.C. § 177 (“Section 177”).
Chemehuevi Indian Tribe v. W. Reg’l Dir., 52 IBIA 192,
192–93 (2010). Section 81(b) provides that “[n]o agreement
or contract with an Indian tribe that encumbers Indian lands
for a period of 7 or more years shall be valid unless that
agreement or contract bears the approval of the Secretary.”
25 U.S.C. § 81. Section 81(d)(1) requires the Secretary to
reject agreements that “violate[] Federal law.” Id.
The IBIA determined that the deeds are encumbrances
under Section 81, and no party disputes this conclusion. As
the IBIA explained, “[t]he Tribe’s land assignment deeds
meet this criteria because they grant to third parties (the
assignees) a right of entry on, a claim to, and nearly exclusive
proprietary control over a parcel of the Tribe’s trust land to
the exclusion of all others, including the Tribe.” Chemehuevi
Indian Tribe, 52 IBIA at 203.
The IBIA also concluded that the deeds are conveyances
under 25 U.S.C. § 177. Section 177 provides that “[n]o
purchase, grant, lease, or other conveyance of lands, or of any
title or claim thereto” from an Indian tribe is valid unless it is
approved by Congress. Thus, the IBIA concluded that while
remedies. Casanova v. Norton, No. CV 05-1273-PHX-ROS, 2006 WL
2683514 (D. Ariz. Sept. 18, 2006). Before the district court ruled, the BIA
issued its 2005 decision in which it declined to approve the land
assignments. Chemehuevi Indian Tribe v. Acting W. Reg’l Dir., 45 IBIA
81, 83 (2007). The Tribe appealed that decision to the IBIA, and the IBIA
dismissed. The Tribe then submitted additional land assignments for BIA
approval. The Regional Director declined to approve them in two separate
letters. The Tribe then appealed to the IBIA from each of the two
decisions.
CHEMEHUEVI INDIAN TRIBE V. JEWELL 7
the deeds encumber lands pursuant to Section 81—and
therefore would otherwise be eligible for approval under that
section—they also “convey an exclusive possessory interest
that is intended to be perpetual” under Section 177.
Chemehuevi Indian Tribe, 52 IBIA at 193. Reading the two
sections together, and noting that Congress has not approved
these types of assignments under Section 177, the IBIA
determined that the Secretary could not approve the
assignments. Id. at 211.
The Tribe then filed this action in District Court for the
Central District of California, alleging that the Secretary
violated the APA by not approving the deeds. The Tribe
contended that the Secretary’s final decision was erroneous
because the deeds do not completely extinguish the Tribe’s
interest in the land—and thus do not violate Section 177. The
Tribe also contended that Congress amended Section 81 so
that assignments falling under that statute are no longer
subject to Section 177.
Upon considering multiple motions, the district court
granted summary judgment to the Secretary, concluding that
the IBIA’s interpretation of the relevant statutes and
regulations was reasonable under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837,
843–44 (1984). This timely appeal followed.
II
“We review de novo the district court’s grant of summary
judgment.” Cascade Health Solutions v. PeaceHealth,
515 F.3d 883, 912 (9th Cir. 2008) (citation omitted).
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
8 CHEMEHUEVI INDIAN TRIBE V. JEWELL
judgment as a matter of law.” Fed. R. Civ. P. 56(a). No
material facts are disputed.
The Tribe asks the court to set aside the Secretary’s
decision under the APA. We may overturn an agency’s
determination under the APA only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). We may
review only those actions that have “adversely affected or
aggrieved” someone, id. § 702, and that are final and without
“other adequate remedy in a court.” Id. § 704. We will not
upset an agency’s decision if “the agency’s path may
reasonably be discerned.” Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 497 (2004) (internal
quotation marks and citation omitted).
We review the IBIA’s interpretation of federal statutes
under the methodology described in Chevron and its progeny.
In reviewing the IBIA’s decision, we first address “whether
Congress has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842. “If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842–43. If, employing the
“traditional tools of statutory construction,” we determine
that Congress has directly and unambiguously spoken to the
precise question at issue, then the “unambiguously expressed
intent of Congress” controls. Id. at 843 & n.9. In
determining congressional intent, we not only examine the
precise statutory section in question but also analyze the
provision in the context of the governing statute as a whole,
presuming a congressional intent to create a “symmetrical
and coherent regulatory scheme.” FDA v. Brown &
CHEMEHUEVI INDIAN TRIBE V. JEWELL 9
Williamson Tobacco Corp., 529 U.S. 120, 132–33 (internal
quotation marks and citation omitted) (2000).
Thus, at the first step of the Chevron analysis, if we
conclude that Congress has directly spoken to the question,
then we “must give effect to Congress’s clearly expressed
intent.” Adams v. U.S. Forest Serv., 671 F.3d 1138, 1143 (9th
Cir. 2012); see also Chevron, 467 U.S. at 842 (“If the intent
of Congress is clear, that is the end of the matter.”).
However, if the statute is silent or ambiguous, we proceed
to step two and defer to the agency’s interpretation if it is
“based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843. Because we conclude that the
intent of Congress is clear as to the statutes at issue in this
appeal, we need not proceed to step two.2
III
This case turns on the interpretation of two federal
statutes: Section 81 and Section 177. Section 177 is part of
the Indian Nonintercourse Act, whose “overriding purpose is
the protection of Indian lands. It acknowledges and
guarantees the Indian tribes’ right of possession and imposes
on the federal government a fiduciary duty to protect the
lands covered by the Act.” United States for and on Behalf
of Santa Ana Indian Pueblo v. Univ. of New Mexico, 731 F.2d
703, 706 (10th Cir. 1984) (citations omitted). The goal of the
statute is to ensure that tribal lands remain in tribal hands.
2
As a result, we also need not address whether deference is warranted
under the Indian Cannons of Statutory Construction or Auer v. Robbins,
519 U.S. 452 (1997).
10 CHEMEHUEVI INDIAN TRIBE V. JEWELL
See Fed. Power Comm’n v. Tuscarora Indian Nation,
362 U.S. 99, 119 (1960).
Section 177 provides that:
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.
25 U.S.C. § 177.
Section 177 has been interpreted as prohibiting a great
deal of transactions absent Congressional authorization. See,
e.g., Oneida Indian Nation of N.Y. v. Oneida Cnty. of N.Y.,
414 U.S. 661, 667–68 (1974) (holding that tribe prohibited
from giving land to state without federal government’s
approval); United States v. 7,405.3 Acres of Land, 97 F.2d
417, 422 (4th Cir. 1938) (holding that Indian land may not be
taken from tribe via adverse possession without government’s
approval); Mashpee Tribe v. Town of Mashpee, 447 F. Supp.
940, 948 (D. Mass. 1978) (holding that agreements between
tribe and its members not exempt).
As originally enacted in 1872, Section 81 provided for a
restraint on alienation designed to protect Indians from
“improvident and unconscionable contracts [because] [a]t the
time of the law’s enactment, Indians apparently were being
swindled by dishonest lawyers and claims agents.” Altheimer
& Gray v. Sioux Mfg. Corp., 983 F.2d 803, 805 (7th Cir.
1993) (internal quotation marks and citations omitted). “In
CHEMEHUEVI INDIAN TRIBE V. JEWELL 11
1872, when Congress passed § 81, federal law provided that
Indian tribes enjoyed the right to possess and occupy lands
but not to alienate these lands without the federal
government’s approval.” Penobscot Indian Nation v. Key
Bank of Maine, 112 F.3d 538, 548 (1st Cir. 1997).
Prior to the 2000 amendments, Section 81 provided that:
No agreement shall be made by any person
with any tribe of Indians, or individual Indians
not citizens of the United States, for the
payment or delivery of any money or other
thing of value, in present or in prospective, or
for the granting or procuring any privilege to
him, or any other person, in consideration of
services for said Indians relative to their lands
. . . unless such contract or agreement . . . bear
the approval of the Secretary . . . and the
Commissioner of Indian Affairs indorsed
upon it.
25 U.S.C. § 81 (prior to March 14, 2000 amendments).
However, the former Section 81’s language proved to be
untenably broad. Because it required the Secretary’s
approval to contract for “services for Indians relative to their
lands,” the former Section 81 was “susceptible to the
interpretation that any contract that ‘touches or concerns’
Indian lands must be approved.” S. Rep. No. 106-150, at 8
(1999) (emphasis added). Indeed, “neither tribes, their
partners nor the BIA could predict with any certainty whether
a court might ultimately conclude that a transaction was void
because it was not approved pursuant to Section 81.” Id. at
5. As a result of this uncertainty over the statute’s language,
12 CHEMEHUEVI INDIAN TRIBE V. JEWELL
and the “draconian” penalties that could be meted out for
violating it, the Secretary received applications for approval
of such commonplace contracts as sales of vehicles. Id. at 7,
9.
This confusion led Congress to clarify which agreements
require federal approval. Id. at 1. Congress did so by
amending Section 81 in two important ways: it limited the
section to apply to only agreements concerning a duration of
7 or more years, and it replaced “relative to Indian lands”
with “encumbering Indian lands.” Section 81 as amended in
2000 provides that
(b) No agreement or contract with an Indian
tribe that encumbers Indian lands for a period
of 7 or more years shall be valid unless that
agreement or contract bears the approval of
the Secretary.
....
(d) The Secretary (or a designee of the
Secretary) shall refuse to approve an
agreement or contract that is covered under
subsection (b) of this section if the Secretary
(or a designee of the Secretary) determines
that the agreement or contract–
(1) violates Federal law
25 U.S.C. § 81.
The 2000 amendments to Section 81 also granted
authority to the Secretary to promulgate regulations
CHEMEHUEVI INDIAN TRIBE V. JEWELL 13
implementing the statute. 25 U.S.C. § 81(e). The regulations
most relevant to this appeal include 25 C.F.R. § 84.003,
which provides that “[u]nless otherwise provided in this part,
contracts and agreements entered into by an Indian tribe that
encumber tribal lands for a period of seven or more years
require Secretarial approval under this part.” 25 C.F.R.
§ 84.003.
25 C.F.R. § 84.002 provides that:
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
control over tribal land.
25 C.F.R. § 84.002.
The regulations further explain which agreements are
exempt from the Secretary’s review, including those “that
convey to tribal members any rights for temporary use of
tribal lands, assigned by Indian tribes in accordance with
tribal laws or customs.” 25 C.F.R. § 84.004(d). Finally, the
Secretary clarified that “[t]he Secretary will disapprove a
contract or agreement that requires Secretarial approval under
this part if the Secretary determines that such contract or
agreement . . . [v]iolates federal law.” 25 C.F.R. § 84.006.
We conclude that Congressional intent is clear. Section
177 prohibits the “grant, lease, or other conveyence of lands,
14 CHEMEHUEVI INDIAN TRIBE V. JEWELL
or of any title thereto” from an Indian tribe unless approved
by Congress. Congress has not approved the transactions at
issue here. Therefore, the Secretary properly denied approval
of the deeds under Section 81 because such conveyences
would violate federal law.
IV
A
The Tribe first contends that the assignments do not
violate Section 177 under the Fifth Circuit’s Tonkawa Tribe
of Oklahoma v. Richards, 75 F.3d 1039 (5th Cir. 1996). The
Tribe asserts that, under Tonkawa, only conveyances that
completely extinguish a tribe’s interests must be approved
under Section 177. Because the deeds do not completely
extinguish the Tribe’s title to the land, the Tribe argues that
they do not require Congressional approval.
As an out of circuit case, Tonkawa does not bind us.
However, even if it did, it would not alter the outcome
because it applies to situations in which a tribe loses all
possible rights to the land, which is not the case here. In
Tonkawa, the tribe asserted that the State of Texas had
completely divested tribal title to the land. Id. The court held
that a tribe, to prevail on a claim of a violation of Section
177, must show, among other things, that “the [t]ribe’s title
or claim to the interest in land has been extinguished without
express consent of the United States.” Id. at 1044. Thus,
Tonkawa explains what is necessary for a tribe to succeed on
a Section 177 claim when the right to the land has been
completely extinguished. As the IBIA put it, “[i]t is beyond
cavil that § 177 applies to such conveyances.” Chemehuevi
Indian Tribe, 52 IBIA at 207.
CHEMEHUEVI INDIAN TRIBE V. JEWELL 15
The statutory language of Section 177 confirms our
reading of Tonkawa. Section 177 requires congressional
approval of leases, grants, “or other conveyance[s] of lands,
or of any title or claim thereto.” 25 U.S.C. § 177 (emphasis
added). In other words, Section 177 by its very language
applies to conveyances of less than complete divestment,
which is how the section has been interpreted by other bodies
as well. See, e.g., Lease of Indian Lands for Grazing
Purposes, 18 Op. Att’y Gen. 235, 237 (1885); Solicitor’s
Opinion, M-31724, I Op. Solic. 1178 (Nov. 21, 1942)
(explaining that Section 177 applies whether or not a
transaction attempts to convey complete title); United States
v. S. Pac. Trans., 543 F.2d 676, 684 (9th Cir. 1976)
(easements granting railroad rights of way on Tribal land are
subject to Section 177, and thus invalid without
Congressional authorization).
B
The tribe also asserts that even if the deeds are subject to
Section 177, they may nevertheless be approved by the
Secretary under Section 81. The Tribe contends that the
deeds may be approved under the present Section 81 because
Congress’s amendments expanded the scope of the
Secretary’s authority to approve these types of encumbrances.
In other words, the Tribe asserts that Congress, by amending
Section 81, authorized the Secretary to approve conveyances
of land that Section 177 would otherwise prohibit.
The plain language of Section 81 does not support the
Tribe’s reading. As explained above, Section 81 as amended
explicitly prohibits approval of an agreement that is subject
to its approval requirements if “the agreement or contract . . .
violates Federal law.” 25 U.S.C. § 81(d)(1). Section 177 is
16 CHEMEHUEVI INDIAN TRIBE V. JEWELL
part of federal law and prohibits any “purchase, grant, lease,
or other conveyance of lands, or of any title or claim thereto,
from any Indian nation or tribe of Indians” that is not
authorized by Congress. 25 U.S.C. § 177.
Without the support of the plain language of the statutes,
the Tribe’s argument instead becomes an argument that the
amendments impliedly repealed Section 177. But “repeal by
implication is disfavored,” Ahlmeyer v. Nevada System of
Higher Education, 555 F.3d 1051, 1058 (9th Cir. 2009)
(internal quotation marks and citation omitted), and nothing
in the statute’s language suggests that Congress intended to
give the Secretary the authority to approve an agreement that
otherwise falls within the scope of Section 177.
In fact, other of Congress’s actions regarding tribal land
reveals that it did not intend to repeal Section 177 by
implication. As we have explained, the Secretary may
approve transactions that fall within the scope of Section 177
only if a law grants the agency the power to approve the
transactions. Lease of Indian Lands for Grazing Purposes,
18 Op. Att’y Gen. at 238. Since enacting Section 177,
Congress has explicitly approved many such transactions,
thereby allowing them to go forward subject only to Interior’s
approval. Of note, the statutes explicitly grant the Secretary
the authority to approve the transactions. See, e.g., 25 U.S.C.
§ 415 (“Any restricted Indian lands, whether tribally, or
individually owned, may be leased by the Indian owners, with
the approval of the Secretary of the Interior . . . . ); 25 U.S.C.
§ 323 (“The Secretary . . . is empowered to grant rights-of-
way for all purposes” through lands held by the United States
in trust for Indians.); 25 U.S.C. § 311 (“The Secretary . . . is
authorized to grant permission . . . to the proper State or local
authorities for the opening and establishment of public
CHEMEHUEVI INDIAN TRIBE V. JEWELL 17
highways.”). Thus, when Congress intends to vest in the
Secretary the power to approve a particular type of
transaction, it has expressly stated its intention to do so.
Moreover, and unlike Section 81, when Congress does grant
this authority it has inserted no language indicating that
approval would be subject to the agreements not “violating
Federal law.”
Tellingly, Congress has not made an exception for
assignments, like the deeds here, that convey an exclusive
possessory interest in perpetuity. Thus, Congress’s decision
to give the Secretary authority to approve a range of different
types of assignments, while leaving alone land assignments
of the kind at issue here, indicates that Congress did not
intend to take those assignments outside of the scope of
Section 177.
The relevant legislative history confirms that Congress, in
amending Section 81, did not intend to alter that section’s
application vis-a-vis Section 177. As we have noted, former
Section 81 was enacted to protect tribal land from alienation,
and it did not authorize the Secretary to approve agreements
that convey Indian land. However, the language of former
Section 81 made it unclear which contracts required approval,
and so Congress attempted to clarify the ambiguity.
One solution Congress considered was outright
elimination of Section 81, which would have removed
Interior from the equation and given tribes more autonomy
over their lands. S. Rep. No. 106-150, at 9. However, that
proposal was rejected in favor of the more modest
18 CHEMEHUEVI INDIAN TRIBE V. JEWELL
amendments that were ultimately adopted.3 As we have
discussed, the amendments replaced the phrase “relative to
Indian lands” with the phrase “encumbering Indian lands”
and specified that approval was needed for only contracts
“that encumber[] Indian lands for a period of seven or more
years . . . .” 25 U.S.C. § 81(b).
In rejecting the proposal to outright eliminate Section 81,
Congress explained that it intended to “leave[] the [amended]
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.” S. Rep. No. 106-
150, at 9. In doing this, Congress narrowed the scope of
those transactions that require approval. “Section 81 [as
amended] 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.” Id. If
Congress’s intent could not be any more clear, one of the
bill’s proponents, Senator Campbell, summed it up: “All
other federal laws will still apply to the agreement[s] . . . .
[Amended Section 81 still] authorize[s] [the Secretary] to
reject any contract that violates federal law.” 145 Cong. Rec.
S2648-03 at S2666-67 (145 Cong. Rec. 4441) (1990).
3
The Tribe contends that amended Section 81 was part of a major
iniative to promote tribal self-government and allow certain tribes the
authority to determine under what conditions their lands can be
encumbered. However, as we have explained, Congress explicitly
rejected a proposal to eliminate Section 81 altogether. Rather, Congress
simply reduced the number of transactions that require Secretarial
approval. Amended Section 81 still requires Secretarial approval for
assignments that encumber land for more than seven years, and prohibits
the Secretary from approving assignments that violate federal law.
CHEMEHUEVI INDIAN TRIBE V. JEWELL 19
As a final matter, we note that the IBIA correctly
determined that the deeds assigned sufficient of the Tribe’s
interests that they are conveyances under Section 177. The
deeds assign “a formal exclusive right to use and possess
tribal lands,” and the assignments may be transferred to,
exchanged with, or leased to other individuals. If the
assignee dies intestate, the land will descend to the assignee’s
survivors except in limited circumstances. An assigned plot
can be canceled and returned to the tribe in only limited
situations, such as if the assignee makes a transfer without
tribal approval or commits a crime on the property. As the
IBIA put it, most of these situations “are within the exclusive
control of the assignees and none of which allow[s] the Tribe
to revoke the assignment at will.” Chemehuevi Indian Tribe,
52 IBIA at 196. In order for the Tribe to recover assigned
property, it must pay fair market value for it and any
improvements on its land. Additionally, the deeds waive the
Tribe’s sovereign immunity to suits by assignees to enforce
the terms of the deeds.
The Solicitor’s Office of the Department of the Interior
has previously determined that these types of land
assignments cannot be approved under Section 81 because
they violate Section 177. In a 1942 opinion, the Solicitor of
the Interior addressed a proposal by the Colville Tribe to sell
to its members the exclusive use of tribal lands together with
the right to devise or convey the property to another tribal
member with the tribal council’s consent. Solicitor’s
Opinion, M-31724, I Op. Solic. 1178 (Nov. 21, 1942). The
deeds provided that “the lands and improvements . . . are held
in trust for the tribe for the exclusive use and occupancy by
the Indian purchaser during his lifetime.” Id. The Solicitor
determined that the proposed land assignments violated
Section 177 because “[t]he element of purchase plus the
20 CHEMEHUEVI INDIAN TRIBE V. JEWELL
incidents of descent and alienation stamp the transaction as
one designed to individualize the tribal title and create in the
individual an enforceable vested interest.” Id. at 1179–80.
As the IBIA explained, the same is true for the deeds
here. According to the terms of the Ordinance, the Tribe
would lose its right to use and possess the lands, the Tribe
could reclaim the land in only limited and unintended
circumstances, and the assignments convey rights of descent
and alienation. Individuals would also have the rights to
transfer, lease, and exchange the property with other tribal
members. Therefore, the deeds fall within Section 177’s
prohibition.
In response, the Tribe argues that the IBIA’s
interpretation of Section 81 would render that section a
nullity because the Secretary would be prohibited from
approving any encumbrance that violates Section 177. But
Section 81 “encumbrances” and Section 177 “conveyances”
are not synonymous. In other words, agreements can
“encumber” land under Section 81 without “conveying” lands
under Section 177.
As the IBIA explained, “[t]hrough regulation, the
Department has interpreted [Section] 81 to apply to
encumbrances not governed by or subject to other statutes
and regulations, such as leasing statutes or [Section] 177.”
Chemehuevi Indian Tribe, 52 IBIA at 193. The IBIA
provided one example of an “encumbrance” that is not also a
“conveyance”: assignments of life estates to tribal members.
Id. at 193 (citing Rogers v. Acting Deputy Assistant Sec’y -
Indian Affairs (Operations), 15 IBIA 13, 17 (1986)). There
are others. As the district court pointed out, the commentary
to the regulations promulgated pursuant to Section 81(e)
CHEMEHUEVI INDIAN TRIBE V. JEWELL 21
reveals other arrangements that could “encumber” Indian land
without extinguishing a tribe’s title to it:
[A] restrictive covenant or conservation
easement may encumber tribal land within the
meaning of Section 81, 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.
66 Fed. Reg. 38,918, 38,920–21 (July 26, 2001); see also S.
Rep. No. 106-150, at 9 (noting, for example, a lender-
financed transaction in which the lender “receive[s] an
interest in tribal lands as part of that transaction.”).
To be sure, determining what constitutes an encumbrance
can be difficult, in part because there is clearly some overlap
between Section 81 “conveyances” that are prohibited by
Section 177 and “encumbrances” that would be permissible
under Section 81 if not for Section 177. But this ambiguity
has existed since the statutes became law over one hundred
years ago. In fact, by amending Section 81, and thereby
narrowing the range of assignments that require the
Secretary’s approval, Congress has actually reduced the
overlap. Moreover, Interior has also acknowledged the
difficulty of determining what constitutes an encumbrance
22 CHEMEHUEVI INDIAN TRIBE V. JEWELL
and has stated that such determinations are made on a “case-
by-case basis.” 6 Fed. Reg. at 38,920–21 (July 26 2001).4
V
In sum, we conclude that the plain language of Section 81
and Section 177 reveals that Congress did not intend for the
Secretary to approve agreements under Section 81 that would
otherwise be prohibited by Section 177. Therefore, we “stop
the music at step one,” and “give effect to [Congress’s]
unambiguously expressed intent.” Gila River Indian Cmty.
v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013)
(quoting Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151
(D.C. Cir. 2005). We therefore affirm the judgment of the
district court.
In closing, we acknowledge that our holding today does
not aid the Chemehuevi Indian Tribe, which has taken
reasonable steps to return its members to the Reservation and
restore the Tribe. However, the solution to ensuring the
Tribe’s future lies in Congress, not the courts.
AFFIRMED.
4
The Tribe further contends that the IBIA’s interpretation of Section 81
conflicts with the Indian Reorganization Act, 25 U.S.C. § 476 (“IRA”).
The Tribe points out that the IRA gave tribes “authority to determine the
terms and conditions under which encumbrance[s] take place.” But that
section allows tribal constitutions to adopt provisions by which tribes can
prevent the assignments of lands. 25 U.S.C. § 476 (proving that tribal
constitutions may “prevent the sale, disposition, lease, or encumbrance of
tribal lands, interests in lands, or other tribal assets without the consent of
the tribe”). Thus, the IRA is consistent with Congress’s general intention
to restrict alienation of Indian lands.