[Federal Register Volume 65, Number 123 (Monday, June 26, 2000)]
[Notices]
[Pages 39420-39421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16093]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary


Review of Interior Board of Indian Appeals Decisions

AGENCY: Office of the Secretary, Department of the Interior.

ACTION: Notice.

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SUMMARY: The Secretary of the Interior has decided to review Hopi 
Indian Tribe v. Director, Office of Trust and Economic Development, 
Bureau of Indian Affairs, 22 IBIA 10 (1992), and Hopi Tribe v. 
Director, Office of Trust Responsibilities, Bureau of Indian Affairs, 
24 IBIA 65 (1993). These decisions concern the method for reimbursing 
Indian Tribes for legal fees from the United States Treasury. To allow 
for full airing of all issues in this review, we are inviting 
interested parties in addition to the three Tribes most directly 
affected by these decisions to submit briefs on the issues set forth in 
the SUPPLEMENTARY INFORMATION section according to the schedule and 
instructions in that section of this Notice.

DATES: See the SUPPLEMENTARY INFORMATION section for the brief 
submission schedule.

ADDRESSES: Three copies of all briefs and motions should be sent to the 
Office of the Solicitor, U. S. Department of the Interior, Attn: 
Stephen Simpson, 1849 C Street, NW, MS 6352-MIB, Washington, DC 20240. 
You should also provide copies of all documents filed in this case to 
the participants listed in the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Stephen Simpson, 202-219-1659.

SUPPLEMENTARY INFORMATION: The Secretary of the Interior has decided to 
review two decisions of the Interior Board of Indian Appeals (IBIA), 
Hopi Indian Tribe v. Director, Office of Trust and Economic 
Development, Bureau of Indian Affairs, 22 IBIA 10 (1992) (Hopi I), and 
Hopi Tribe v. Director, Office of Trust Responsibilities, Bureau of 
Indian Affairs, 24 IBIA 65 (1993) (Hopi II). Both Hopi I and Hopi II 
concern the payment of Tribal legal fees for litigation under the 
Navajo-Hopi Settlement Act from the United States Treasury. Under the 
Settlement Act (25 U.S.C. 640d-7(e)), the Secretary ``is authorized to 
pay any or all appropriate legal fees, court costs, and other related 
expenses arising out of, or in connection with, the commencing of, or 
defending against, any action brought by the Navajo, San Juan Southern 
Paiute, or Hopi Tribe'' concerning boundaries of a reservation 
established under the Settlement Act.
    In 1989, the Hopi Tribe submitted a request to the Bureau of Indian 
Affairs for reimbursement of legal fees under this provision. The 
Director of the Bureau's Office of Trust and Economic Development 
requested that the Tribe submit further information under 25 CFR 89.40-
89.43, the general regulations for reimbursement of legal fees. He 
noted that any requests for legal fees by the Tribe, unless mandated by 
Congress, should be applied for using the same process as other Tribes. 
He stated that 25 U.S.C. 640d-7(e) is discretionary and puts the Hopi 
Tribe in the same position as other Indian Tribes competing for 
reimbursement from the legal fees account in the Treasury. In Hopi I, 
the IBIA vacated the Director's decision and remanded it for further 
consideration because he had not explained how he reached that 
conclusion, or why the prior administrative practice of not requiring 
such applications was incorrect. On remand, the Director of the Office 
of Trust Responsibilities (the same office with a different name) ruled 
again that the Hopi Tribe had to file an application under 25 CFR 
89.40-89.43 to provide a rational basis for the exercise of the BIA's 
discretion under 25 U.S.C. 640d-7(e). The Tribe again appealed, and, in 
Hopi II, the IBIA found that 25 CFR 89.40-89.43 applies when a Tribe 
determines to undertake litigation to protect its rights. The IBIA 
found, that in the case of the Hopi Tribe, the determination that the 
reservation litigation was necessary was made by Congress, not the 
Tribe. The IBIA therefore ruled that the BIA was required to reimburse 
all appropriate legal fees for the three Tribes and could not subject 
them to the same process and competition for funds as other Tribes.
    Recognizing the importance of the IBIA decisions to the 
disbursement of federal funds for Tribal legal fees, the Secretary has 
decided to review the IBIA decisions in Hopi I and Hopi II under 
regulations which provide that:
    The authority reserved to the Secretary includes, but is not 
limited to:
* * * * *
    (2) The authority to review any decision of any employee or 
employees of the Department, including any administrative law judge or 
board of the Office [of Hearings and Appeals], or to direct any such 
employee or employees to reconsider a decision. 43 CFR 4.5 (Bracketed 
material added.)
    To assist him in rendering a decision on this matter, the Secretary 
will accept briefs from the BIA, the three Tribes named in the 
Settlement Act (the Navajo Nation, the Hopi Tribe, and the San Juan 
Southern Paiute Tribe), and other interested parties. Briefs should 
only address the Department's interpretation of 25 U.S.C. 640d-7(e) as 
evidenced in the IBIA decisions. The Secretary will not re-adjudicate 
the Hopi Tribe's appeal of the decisions. Further, the Secretary's 
review will not affect the pending settlement between the Hopi Tribe 
and the BIA of 1990 fees at issue in the decisions. Briefs must be 
submitted according to the following schedule:
    1. Briefs opposed to the Board's decisions must be received by July 
14, 2000;
    2. Response briefs supporting the Board's decisions must be 
received by August 18, 2000; and
    3. Reply briefs opposing the Board's decisions must be received by 
September 8, 2000.
    Briefs are not to exceed fifty pages (except the reply briefs, 
which are not to exceed twenty-five pages), double spaced, with all 
margins not less than one inch. No oral argument will be heard on these 
issues.
    Three copies of all motions and briefs being submitted are to be 
sent to the following address: Office of the Solicitor, U. S. 
Department of the Interior, Attn: Stephen Simpson, 1849 C Street, N.W., 
MS 6352-MIB, Washington, D. C. 20240.
    Please also provide copies of all documents filed in this case to 
the participants listed below.

The Honorable Wayne Taylor, Jr., Chairman, Hopi Tribal Council, P.O. 
Box 123, Kykotsmovi, AZ 86039
Terrance Virden, Director, Office of Trust Responsibility, Bureau of 
Indian Affairs, 1849 C Street, N.W., MS 4513, Washington, DC 20240.
The Honorable Kelsey A. Begaye, President, Navajo Nation, P.O. Box 
9000, Window Rock, AZ 86515.
The Honorable Johnny Lehi, President, San Juan Southern Paiute Council, 
P.O. Box 2656, Tuba City, AZ 86045

    BIA, as a party in this matter, will be represented by the Division 
of Indian

[[Page 39421]]

Affairs of the Office of the Solicitor. The Immediate Office of the 
Solicitor will provide legal advice to the Secretary. Therefore, ex 
parte communication on this matter with the Office of the Secretary or 
the Immediate Office of the Solicitor is prohibited. Any communication 
with the Office of the Secretary or the attorneys in the Immediate 
Office of the Solicitor regarding this review must be in writing and a 
copy of the communication must be served on all participants in the 
review as noted above.

    Dated: June 19, 2000.
John D. Leshy,
Solicitor.
[FR Doc. 00-16093 Filed 6-23-00; 8:45 am]
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