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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2006

## Text

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
BERR GE CGE RUN BI ced vieissincteinceusdvladeaveonedeieioneas i
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0922%3A3. Public record. Not legal advice.