Reply Brief — Utah v. Shivwits Band of Paiute Indians (No. 05-1160)

No. 05-1160 ! Jwit é / 7 335

Sten nenuncemrenenmne...

In The

Supreme Court of the Antied States

&

-

STATE OF UTAH; UTAH DEPARTMENT

OF TRANSPORTATION; ST. GEORGE CITY,

a Utah municipal Corporation,

Petitioners,

vs.

SHIVWITS BAND OF PAIUTE INDIANS; KUNZ & CO.

dba KUNZ OUTDOOR ADVERTISING, a California

Corporation; GALE NORTON, in her capacity as

Secretary of the United States Department of the Interior;

NEAL McCALEB, in his capacity as Assistant Secretary

of Interior, Indian Affairs, WAYNE NORDWALL, in his

capacity as Area Director, Bureau of Indian Affairs;

and the BUREAU OF INDIAN AFFAIRS,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

REPLY TO BRIEFS IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

¢

MARK L. SHURTLEFF

Utah Attorney General

ANNINA M. MITCHELL*

Utah Solicitor General

BRIAN L. FARR

Assistant Attorney General

PO Box 140854

Salt Lake City, UT 84114-0854

(801) 366-0180

*Counsel of Record Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

Fa

TABLE OF CONTENTS

Page

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RIRAS Ae LAS BITES SB iseristessestininvinceesmenn li

TAIT, snicikc cchsinichsinitienvecmendeiplaheaniae aden 2

CRISP Gane ti iis cine seinarsisnnasdgvaniotecsiocsniianeneenene aie 10

APPENDIX:

Notice to State of Utah of 5/17/06 BIA Decision to

Approve Paiute Tribe Trust Application. ................. App. 1

il

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Block v. North Dakota, 461 U.S. 273 (1983) .............:cceceeees g

Carcieri v. Norton, 423 F.3d 45 (1st Cir. 2005) ............... 1,7

Confederated Tribe of Siletz Indians v. United

States, 110 F.3d 688 (9th Cir. 1977) .......... cee eeeeeeeeeee 1,3

Florida v. United States Dep’t of the Interior, 768

F.2d 1248 (1985), cert. denied, 475 U.S. 1011

EES AE Se ee Ee Vane aE 10

In re White, 139 F.3d 1268 (9th Cir. 1998) ............ eee eeeeeees 8

Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523

ial a uphiaeniianiemiindieddndnenniepiinnels 7

Mistretta v. United States, 488 U.S. 361 (1989).................. 2

Oklahoma Tax Comm’n v. Potawatomi Indian

i Sian, Ge CRI ED socsevorecsccccenviccrrssevsnroocssebevsveesets 8

Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir.

NT cain, a o. obadouatnmmiesplinieiodioimanhibeeedioemmenreiids 8

South Dakota v. United States Dep't of the Interior,

S20 F.26 FOO COUR Cie, 200) «.cccccccccccsvccesvecevsevseseceers 1, 6, 7

United States v. Oregon, 657 F.2d 1009 (9th Cir.

i hal as emadonnaiounddintbliadoieonnuenil 8

United States v. Roberts, 185 F.3d 1125, (10th Cir.

1999), cert. denied, 120 S.Ct. 1960 (2000)... 8

United States v. Tsosie, 96 F.3d 1037 (10th Cir.

NE lah ail sc stecnaininiiettantignsonbainumnndtien 8

United States Dep't of the Interior v. South Dakota,

er ee, SS RUMEIED «| cduaubevovecovseveseesascosscssnesoecsenrets 6, 7

iil

TABLE OF AUTHORITIES — Continued

Page

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980).............0...00008-- 3

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457

I aristtsicdines <taicicaacnbilantbiadiasinitviddiilactetaetdsicsdauten 2, 3, 4, 7

FEDERAL STATUTES

BOE Re Bi iv ctticsdictcisinntdacliguadiniucittiiiiaomitnineail passim

Fe eR Fee Dai inccicicnietntnctistiicntshtensngunialaticciegl. 2,8

FEDERAL RULES

Ld tf E SIpRenenne we inne Se MDT Tem. Pan MIT, 5

Seb Be lO caisceiintcsntevnitcisciicigteaccsbetelenbciadcialenntiaueiioniea 5

FS ie Pc vevcnccrtinteiinmciuiceteniahtsnettabbdieaiiaetuihiinhien 4,5

ek RE RRR Me at Py i em et 5, 6

OTHER MATERIALS

60 Fed. Reg. 32874 (Jtme 23, 1995) ............... eccccseseeeeeeeees 5

REPLY TO BRIEFS IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

Petitioners seek this Court’s resolution of whether

Congress has unconstitutionally delegated its duty to

legislate by giving the Secretary of the Interior unilateral

discretion to take any land into trust “for Indians,” while

providing no “intelligible principle” or standards to cabin

the exercise of that discretion. The case for review is

prernised on the Tenth Circuit’s disregard of this Court’s

nondelegation doctrine precedents; its approval of the

Shivwits Band’s marketing of its exemption from state

regulation to a non-Indian billboard company; its errone-

ous resort to selective legislative history to save a statute

that provides no boundaries to guide the executive

branch’s exercise of the sweeping power granted; and the

severe infringements on state sovereignty, jurisdiction,

and regulation that trust land acquisitions inflict nation-

wide.’

Respondents offer no substantial reason for the Court

to avoid assessing the constitutionality of this grant of

carte blanche authority to the Secretary of Interior in

section 5 of the Indian Reorganization Act, 25 USC

§ 465. Instead, respondents first defend the Tenth Circuit's

erroneous decision by noting that other circuits have

reached the same conclusion,’ one they claim is consistent

* The nationwide impact and importance of § 465 are underscored

by the filing of a brief amicus curiae by 17 states supporting Utah's

petition, as well as by South Dakota’s recent filing of a petition for a

writ of certiorari in South Dakota v. United States Dep't of the Interior,

423 F.3d 790 (8th Cir. 2005) (“South Dakota II”), pending as U.S. No

05-1428, which presents the same issue as Utah presents here.

* South Dakota II, 423 F.3d at 796; Carcieri v. Norton, 423 F.3d 45,

57 (1st Cir. 2005), petition for reh’g en banc pending. The federal

respondents erroneously cite Confederated Tribes of Siletz Indians v.

(Continued on following page)

with Whitman v. American Trucking Ass’ns, Inc., 531 U.S.

457 (2001). Band’s Br. in Opp. at 11-12, 18-19, 21; Fed. Br.

in Opp. at 14-15.

They also argue that this is an isolated case because

regulations adopted in 1995 and 1996 require the Secre-

tary to weigh local concerns more heavily during the pre-

acquisition process and provide for judicial review of a

- decision to take land into trust “for Indians.” Band’s Br. in

Opp. at 6-7, 15-16; Fed. Br. in Opp. at 5 n.2, 18, 22-23. The

respondent Band claims that, even if the statute is uncon-

stitutional, this Court is barred by the Quiet Title Act, 28

U.S.C. § 2409a(a) (““QTA”), from providing petitioners any

meaningful relief. Band’s Br. in Opp. at 8, 15, 17-18.

Alternatively, the federal respondents suggest that the

QTA erects a jurisdictional bar to this Court’s considera-

tion of petitioners’ challenge to the constitutionality of

§ 465. Fed. Br. in Opp. at 20-21. These responses merely

confirm the errors in, and the pressing need for review of,

the decision below.

ARGUMENT

1. As this Court has held, a statutory delegation of power

to the executive branch is “constitutionally sufficient if

Congress clearly delineates the general policy, the public

agency which is to apply it, and the boundaries of this

delegated authority.” Mistretia v. United States, 488 U.S.

361, 372-73 (1989) (internal quotation omitted). The Band

United States, 110 F.3d 688 (9th Cir. 1997), as likewise rejecting a claim

that § 465 violates the nondelegation doctrine. Fed. Br. in Opp. at 12.

The court’s description of § 465 as a “valid delegation” is dictum, as the

constitutionality of a section of the Indian Gaming Regulation Act, not

of § 465, was at issue. Siletz, 110 F.3d at 691, 696, 698.

3

recognizes the importance of, and the severe impinge-

ments on, state sovereignty that flow from the Secretary’s

exercise of the broad power delegated by § 465. See Band’s

Br. in Opp. at 5. But, like the Tenth Circuit, the Band and

the federal respondents ignore this Court’s holding in

Whitman that, under the nondelegation doctrine, “the

degree of agency discretion that is acceptable varies

according to the scope of power constitutionally conferred.”

531 U.S. at 475.

In Whitman, this Court concluded that the delegated

power to promulgate air quality standards affecting the

entire nation required “substantial guidance” from Con-

gress. Id. Here, the Secretary has been granted unilateral

authority to take land - in any amount, in any place, for

any purpose — into trust “for Indians,” thereby withdraw-

ing the land from state jurisdiction, taxation, and regula-

tion. See Pet. 17-22. Yet the respondents and the Tenth

Circuit (as well as the First and Eighth Circuits) have

refused to follow Whitman and analyze the constitutional

acceptability of the unbounded discretion given the execu-

tive branch by § 465 in light of the far-reaching power

bestowed. This mandated analysis would have led ineluc-

tably to a conclusion that § 465 violates Article I, section 1

of the Constitution. See Pet. 8-14.

2. Respondents do not defend or even address the Tenth

Circuit’s disregard of precedent by allowing the Shivwits

Band to market their exemption from state taxation,

jurisdiction, and regulation to non-Indians. This practice

was disapproved by this Court in the taxation context in

Washington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134, 155 (1980). See Pet. 19.

Contrary to the impression created by the federal

respondents, § 465 acquisitions do not just involve regain-

ing lost allotments or reasserting tribal sovereignty over

4

Indian territory taken away in decades past. Petitioners

challenge a statute that is incomparably broad in its

delegation of Congress’s legislative power and starkly free

from meaningful constraints on its exercise. As this case

demonstrates, § 465 allows the Secretary to acquire land

that is within a city’s limits, far from a tribe’s reservation _

and along an interstate freeway, and then to permit a non-

Indian lessee to use the land for its own pecuniary benefit,

free from local taxes and reasonable regulations. Denial of

certiorari under these troubling circumstances will give

the green light to non-Indian businesses across the coun-

try to pursue and enjoy — with the Secretary’s help — the

clear advantages of federal trust protection that are

supposedly intended for Indians.

3. The respondent Band concedes that the Secretary’s

regulations cannot save § 465 from constitutional chal-

lenge under the nondelegation doctrine. Band’s Br. in

Opp. at 16 (citing Whitman, 531 U.S. at 472-73); see also

Fed. Br. in Opp. at 5 n.2. The Band nonetheless argues

that this is an isolated case because, under a new regula-

tion, 25 C.F.R. §151.11(b), the Secretary must give

“greater weight” to local governments’ concerns expressed

during the comment period about “potential impacts on

regulatory jurisdiction, real property taxes and special

assessments,” 25 C.F.R. § 151.11(d) (Band’s App. C). As

petitioners have already demonstrated, however, this new

regulation sets no meaningful limit on the Secretary, even

if it had come from Congress and net from the Secretary.

Pet. 20-21.

Citing the argument of counsel in a three-year-old

memorandum, unsupported by any record evidence, the

Band mistakenly represents to the Court that, because of

the new regulation, no other applications by the Paiute

Tribe or the Shivwits Band have been approved since

1995. Band’s Br. in Opp. at 16 & n.12. In fact, one such

5

application, filed in March 2004, was approved just last

month. App. 3. Two other trust land applications by the

Cedar City Band of Paiute Indians, involving more land in

southern Utah that the Tribe plans to use for billboards,

have been “pending” since at least 1999,° presumably

awaiting final resolution of the instant litigation. In short,

there is no evidence that the new regulation has thwarted

this tribe’s — or any others’ — applications for trust land

acquisitions or has changed the Secretary’s pattern of

approving off-reservation trust acquisitions despite grave

local concerns.

Respondents also try to minimize the importance of

the question presented here by asserting that, under a

1996 regulation adopted by the Secretary, there will be

judicial scrutiny of proposed trust acquisitions before land

is taken into trust by the United States. Band’s Br. in Opp.

at 7; Fed. Br. in Opp. at 22; see 25 C.F.R. § 151.12 (Band’s

App. D). This is not necessarily so, since regulations can

always be changed or waived by the Secretary. See 25

C.F.R. § 1.2. They can also be ignored. In this case, the

Regional BIA Director admitted that the evaluation of the

Band’s trust application did not consider the criterion in

25 C.F.R. § 151.10(f) (jurisdictional problems and potential

land use conflicts). Pet. App. 101.

The spirit of the agency’s regulations can also be

ignored, even if their letter is followed. For example, 25

C.F.R. § 151.11(d), the regulation requiring notice to state

and local governments upon receipt of trust applications,

took effect July 24, 1995. 60 Fed. Reg. 32874, 32879 (June

23, 1995). No notice was given to Utah of either the then-

pending August 1994 application by the Band or of the

* Petitioners’ counsel of record’s telephone conversation with Jeff

Zander, Trust Resource Director, Paiute Indian Tribe (June 2, 2006).

6

Secretary's August 1995 decision to approve the Band’s

application and take title. See Pet. App. 19. The Secre-

tary’s position at that time was that the decision to take

land into trust under § 465 was not judicially reviewable.

See United States Dep’t of the Interior v. South Dakota, 519

U.S. 919, 921-22 (1996) (Scalia, J., dissenting). It was not

until April 1996 that the Secretary did an about-face and

hastily adopted another regulation, 25 C.F.R. § 151.12,

delaying the actual taking of title for 30 days after the

decision to approve a trust application. See South Dakota,

519 U.S. at 921-22. Thus, like South Dakota, Utah had no

opportunity to object to, or obtain judicial review of, the

Secretary’s actions prior to the taking of title by the

United States.

Even today, nothing in the agency’s regulations

prevents the Secretary from taking title to land under

§ 465 immediately at the expiration of the 30-day com-

ment period required by 25 C.F.R. § 151.12, even if judicial

review has been initiated by objectors. And once title is

taken, the Secretary has consistently maintained, and the

Tenth Circuit has held here, that the QTA bars a claim -

whether asserted under the APA or another statute -

seeking to divest the United States of title to Indian trust

land. Pet. App. 16-19; see Fed. Br. in Opp. at 5 n.2.

This point was not lost on Justice Scalia in his dissent

from the decision in South Dakota, 519 U.S. at 921, to

grant the United States’ petition for a writ of certiorari,

vacate the decision below holding § 465 unconstitutional,

and remand to the Secretary for reconsideration of the trust

acquisition. He noted the Secretary’s published preamble

to then-new 25 C.F.R. § 151.12 asserted that it “permits

judicial review before transfer of title to the United States”

and that the government had conceded only that APA

review is available before the Secretary's taking of title

under the IRA. As Justice Scalia aptly concluded, “It is

inconceivable that this reviewability-at-the-pleasure-of-

the-Secretary could affect the constitutionality of the IRA

in anyone’s view. .. .” Jd. at 922.

In any event, the Court has more recently made clear

that any regulations adopted by the Secretary, including

those intended to counter constitutional challenges to

§ 465 — such as the instant case, the South Dakota cases,

and Carcieri — do not inform proper analysis of whether

Congress has violated the nondelegation doctrine. See

Whitman, 531 U.S. at 472-73.

4. The respondent Band contends certiorari should be

denied because the Court lacks power to grant petitioners

any “meaningful relief” even if § 465 is unconstitutional:

(a) title to the lands has already been taken by the United

States;* and (b) the QTA retains governmental immunity

from suits seeking to divest the United States of title to

Indian trust lands. Band’s Br. in Opp. at 17-18. The

federal respondents assert that the Tenth Circuit’s conclu-

sion that the QTA bars the petitioners’ third-party com-

plaint against them also prevents the Court from reaching

the constitutional issue here. Fed. Br. in Opp. at 21. There

are several interrelated responses to these contentions.

First, respondents ignore the fact that petitioners

were defendants in the district court action. As sovereigns

or quasi-sovereigns, Indian tribes have enjoyed immunity

from “judicial attack,” but only absent consent to be sued.

Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S.

751, 757 (1998). Here, Kunz and the Band sued petition-

ers, seeking a declaration that the subject lands are

lawfully held in trust by the United States pursuant to

* This factual twist is not present in South Dakota II since the land

at issue was removed from trust status by the Secretary after remand

from this Court. 423 F.3d at 793.

8

§ 465 and, thus, not subject to any federal, state, or local

billboard regulations. Pet. App. 6. Whatever immunity

Kunz and the Band had, it was waived when they made

that claim the subject of their lawsuit, thereby consenting

to adjudication of the validity of § 465. “[The tribe’s

iJnitiation of a lawsuit is an action that ‘necessarily

establishes consent to the court’s adjudication of the

merits of that particular controversy,’ including the risk of

being bound by an adverse determination.” Jn re White,

139 F.3d 1268, 1271 (9th Cir. 1998) (citations omitted);

e.g., Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245 (8th

Cir. 1995) (tribe waived immunity by filing quiet title

action and asking court to resolve ownership of disputed

land); United States v. Oregon, 657 F.2d 1009, 1014 (9th

Cir. 1981) (tribe consented by intervening as plaintiff to

establish its treaty fishing rights).°

Second, the QTA waives governmental immunity by

allowing the United States “to be named as a party

defendant in a civil action ... to adjudicate a disputed

title to real property in which the United States claims an

interest,” except “trust or restricted Indian lands... .” 28

U.S.C. § 2409a(a) (emphasis added). But nothing in the

* Similarly, when the United States files suit, it waives immunity

and consents to full adjudication of all matters raised in its complaint.

United States v. Tsosie, 92 F.3d 1037, 1043 (10th Cir. 1996). If this were

not so, criminal defendants like that in United States v. Roberts, 185

F.3d 1125 (10th Cir. 1999), cert. denied, 120 S.Ct. 1960 (2000), could not

attack the constitutionality of § 465 in order to challenge federal court

jurisdiction to prosecute them for crimes committed on trust lands that

are “Indian country.” See Pet. 17-18.

* Unlike Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498

U.S. 505 (1991), the instant case is not one in which a defendant seeks

to recover money from a tribe through a counterclaim. Here, petitioners

simply seek a determination of the constitutionality of the statute about

which Kunz and the Band sought declaratory relief.

9

QTA prevented petitioners from asserting the unconstitu-

tionality of § 465 as a defense against plaintiffs Kunz and

the Band (or against the United States, if it had joined

them as a plaintiff). As this Court has recognized, this is

precisely what persons asserting title to land claimed by

the United States had to do before the QTA waived gov-

ernmental immunity from suits over title disputes to non-

trust lands, i.e., wait to be sued by the United States and

then assert their adverse title claim. See Block v. North

Dakota, 461 U.S. 273, 280 (1983).

Third, the QTA does not prevent this Court from

granting relief to respondents if it declares that § 465

violates the nondelegation doctrine. If the Court were to

reverse the lower courts and hold § 465 unconstitutional,

this would afford petitioners declaratory relief, as they

originally requested. Moreover, the Court’s disposition

would necessarily vacate the declaratory judgment and

injunctive relief granted to Kunz and the Band by the

district court against the petitioners, which was premised

on the validity of § 465. This would itself constitute an-

other form of relief requested by petitioners. See Pet. App.

6; First Amended Answer, Claim, and Third-Party Claim

at 18, 28, 30. Both forms of relief are “meaningful” and

neither contravenes the QTA.

Finally, the Court should reject the federal respon-

dents’ contention that the QTA deprives it of the power to

even address whether § 465 violates Article I, section 1.

Respondents ignore the important distinction between this

constitutional claim and petitioners’ other, nonconstitu-

tional claim that the Secretary violated applicable statutes

and regulations in taking the subject land into trust. A few

circuits have held the latter category barred by the QTA’s

retention of immunity if successful review under the APA

would “:vest the United States of title to Indian trust

10

lands. See Fed. Br. in Opp. at 21. But even the federal

respondents cite a case that recognizes sovereign immu-

nity does not apply to federal officials alleged to have acted

unconstitutionally. Florida v. United States Dep't of the

Interior, 768 F.2d 1248, 1251-52 (11th Cir. 1985), cert.

denied, 475 U.S. 1011 (1986). Indeed, the Tenth Circuit

tacitly honored this distinction here by first addressing the

constitutional claim and then determining that the non-

constitutional claims are barred by sovereign immunity

that the QTA retains. See Pet. App. 9, 18, 33.

CONCLUSION

For the foregoing reasons and the reasons previously

stated, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARK L. SHURTLEFF

Utah Attorney General

ANNINA M. MITCHELL*

Utah Solicitor General

BRIAN L. FARR

Assistant Attorney General

Counsel for Petitioners

June 2006 *Counsel of Record

App. l

APPENDIX

United States Department of the Interior

BUREAU OF INDIAN AFFAIRS

WESTERN REGION

P.O. Box 10

Phoenix, Arizona 85001

May 19, 2006 [receipt date stamped]

CERTIFIED MAIL —- RETURN

RECEIPT REQUESTED

Mr. Mark Shurtleff

State of Utah, Office of the Attorney General

236 State Capitol

Salt Lake City, Utah 84114

Dear Mr. Shurtleff:

This is in reference to a proposed trust acquisition of a 6.8-

acre tract on behalf of the Paiute Indian Tribe of Utah

(Tribe). The Tribe has stated that the intended use of the

property is for the construction of a tribal healthcare

facility to serve tribal members. Subject parcel is located

in Cedar City, Iron County, Utah, and is further described

as follows:

PARCEL 1:

Beginning at a point south 00°09'22" west along the 1/16

Section line 481.30 feet and south 89°08'06" west 313.77

feet from the center east 1/16 corner of Section 11, Town-

ship 36 South, Range 11 West, Salt Lake Base and Merid-

ian and running thence south 89°08'06" west 562.56 feet;

thence south 01°53'26" east 104.56 feet; thence 98.65 feet

along the arc of a curve to the left through a central angle

of 08°24'05" and a radius of 672.80 feet; thence north

89°07'36" east 551.88 feet; thence north 00°54'48" west

202.62 feet to the point of beginning and subject to a 20

App. 2

foot wide utility and drainage easement along the north

boundary and subject to a 20 foot wide utility easement

centered on the existing sewer line.

PARCEL 2:

Beginning at a point south 00°09'22" west along the 1/16

section line 481.30 feet from the center east 1/16 corner of

Section 11, Township 36 South, Range 11 West, Salt Lake

Base and Meridian and running then south 89°08'06" west

313.77 feet; thence south 00°54'48" east 593.49 feet; thence

north 89°41'26" east 302.65 feet; thence north 00°09'22"

east 596.52 feet to the point of beginning and together

with a 20 foot wide utility and drainage easement along

the north boundary of the recreation parcel described

heretofore.

Subsurface rights to subject parcel are subject to prior

reservations.

The Bureau of Indian Affairs (BIA) must review all acqui-

sition proposals prior to making a decision as to whether

land can be placed into trust status for a tribe. In making

such a determination, we must follow the BIA’s trust land

acquisition regulations in Title 25, Code of Federal Regu-

lations (CFR), Part 151, as amended (see particular rule

changes published in the Federal Register on Friday, June

23, 1995, Vol. 60, No. 121, and Wednesday, April 24, 1996,

Vol. 61, No. 80). The major procedures we must comply

with are listed in Sections 151.9-151.14.

After our review and evaluation of the Tribe’s request on

this case, we have concluded that the proposed acquisition

of the 6.8-acre tract would be in the best interest of the

Tribe The addition of subject property to the Tribe’s

reservation land base for the purpose of constructing a

App. 3

tribal healthcare facility to serve tribal members will

further tribal self-determination and enhance the well-

being of the Tribe. This acquisition will thus satisfy 25

CFR 151.3(a). We have determined that the acquisition

would be consistent with applicable guidelines and serve

the best interest of the Tribe. Therefore, by our memoran-

dum dated May 17, 2006 (copy enclosed), this office pre-

liminarily approved the trust acquisition of the 6.8-acre

tract. Enclosed is a copy of a letter dated May 17, 2006, to

the Chairwoman of the Paiute Indian Tribe of Utah,

reflecting our intent to take the subject tract into trust.

As prescribed under the land acquisition regulations and

implementation instructions, we are required to include

notice of administrative appeal rights under 25 CFR Part

2, in case you wish to appeal this decision. However,

because the decision to approve the proposed acquisition is

being made at the Bureau’s Regional Office level, it may

be appealed directly to the Interior Board of Indian Ap-

peals (IBIA) in accordance with the regulations in 43 CFR

4.310-4.340. The [BIA is located at the following address:

U.S. Department of Interior

Interior Board of Indian Appeals

Office of Hearing and Appeals

801 N. Quincy St., Suite 300

Arlington, Virginia 22203

Your notice of appeal to the IBIA must be signed by you or

your attorney and must be mailed within 30 days of the

date you receive this decision. It should clearly identify

the decision being appealed. You must send copies of your

notice to appeal to (1) the Assistant Secretary — Indian

Affairs, U.S. Department of the Interior, 4140 MIB, 1849 C

Street, N.W. Washington, D.C. 20240, (2) each interested

party known to you, and (3) this office. Your notice of

App. 4

appeal sent to the IBIA must certify that you have sent

copies to all necessary parties. If you file a notice of ap-

peal, the IBIA will notify you of further appeal procedures.

If no appeal is timely filed, this decision will become final

for the Department of the Interior at the expiration of the

appeal period. No extension of time may be granted for

filing notice of appeal.

We have enclosed a copy of 43 CFR 4.331-4.340. If you

have any questions regarding this matter, please contact

our Branch of Real Estate Services (602) 379-6781.

Sincerely,

Catherine Wilson [signature]

Acting Regional Director

Enclosures