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United States Department of the Interior OFFICE of the SOLICITOR Washington, D.C United States Department of the Interior OFFICE OF THE SOLICITOR washington, D.C. 20240 I'IAY 0 1 2020 Memorandum To: Tara Sweeney, Assistant Secretary Indian Alfairs From: Kyle Scherer, Deputy Solicitor for lndian Xtats ,7 9,-Z-."-- Eric Shepard, Associate Solicitor, Division of Indian Affairs Arr> //. Shfa"/ Subj ect: Federal Jurisdiction Status ofSan Pasqual Band ofDiegueno Mission Indians of Califomia in 1934 This Opinion addresses the statutory authority ofthe Secretary ofthe Interior ("Secretary") to acquire land in trust for the San Pasqual Band of Diegueno Mission lndians of Califomia ("San Pasqual" or "Tribe") pursuant to Section 5 ofthe Iadian Reorganization Act of 1934 ("In 4'1.t Section 5 ofthe IRA ("Section 5") authorizes the Secretary to acquire land in trust for "Indians." Section 19 of the Act ("Section 19") defines "Indian" to include several categories ofpersons.2 As relevant here, the first definition inchrdes all persons of Indian descent who are members of "any recognized Indian tribe now under federal jurisdiction" ("Category 1").3 In 2009, the United States Supreme Court ("Supreme Court") in Carcieri v. Salazar constnted the term 1 "now" in Category 1 to refer to 1934, the year of the IRA's enactment. The Supreme Court did not consider the meaning ofthe phrases "under federal junsdiction" or "recognized Indian tribe." ln connection with the Tribe's pending fee-to-trust application.5 you have asked whether the Tribe is eligible for trust land acquisitions under Category 1.6 For the reasons explained below, we conclude that there is evidence presumptively demonstrating that the Tribe was "under '1934. federal jurisdiction" in The Tribe is therefore eligible under Category 1 and, consequently, the Secretary has authority to acquire land into trust for the Tribe. 1 Act ofJune 18, 1934, c. 576, I 5,48 Stat. 984 (!'IRA" or "Act"), codrfied at 25 U.S.C. $ 5108 ("The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gili, exchange, or assignment, any interest in lands, water rights. or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee bc Iiving or deceased, for the purpose of providing land for Indians.") 'z1d. at $ 19, codified at 25 tl.S.C $ 5129. 3 lbid. 1 555 U.S. 3'.79 (2009) (hereafler ','Carcieri"). 5 San Pasqual Band of Dtegueno Mission lndians oJ Cali-fornia, I"ee to Trust Application and Requestfor Reseryation Proclamation for a 29+/- Acre Parcei in San Diego Ctiuntr, California (Sep.3, 2009) ("Application"). 6 This opinion does not ad&ess the Tdbe's eligibiliry under any othcr definition of"lndian" in the IRA- I. BACKGROUND The Tribe's existing land base consists offive, non-contiguous parcels ofland that total approximately 1,380 acres.T The Tribe's ancestors were Kumeyaay peoples, settled at the pueblo ofSan Pasqual in the San Pasqual Valley in 1835.8 Following the annexation in 1848 of Alta Califomia by the United States, representatives of the Kumeyaay negotiated a treaty with Oliver M. Wozencraft, a commissioner appointcd the Secretary of the Interior. The resulting agreement was signed at Santa Ysabel on January 7, 1852, by Jos6 Panto, the capitan of the Indians at San Pasqual.e The agreement was ncver ratified by the Unitcd States Senate. In the following decades, a growing number ofnon-Indian settlers established themselves in San Diego County. ln response to increasing tensions among the non-Indian settlers and the Kumeyaay, Secretary ofthe Interior Jacob D- Cox recommended to President Ulysses S. Grant that a reservation be created for the Indians of the San Pasqual Valley. l0 Acting on this recommendation, President Grant set aside 92,000 acres in San Diego County by Executive Order dated January 3 1, l870.tt This Executive Order was rescinded on February 17, 1 871, and the reservation lands were retumed to the public domain.l2 In 1891, Congress directed the Secretary to form a commission tasked with settling the Mission Indians rcsiding in Califomia upon reservations which would be secured by issuance of a patent held in trust by the United States.r3 By the early 1900s, the United States began acquiring land for displaccd Indians of San Dicgo County, and in 1910, a rcservation at San Pasqual was la formally established. In 1934, Congress enacted the IRA. As a statute of general applicability, the IRA applied to Indian reservations unless, pursuant to Section t8, "a majority ofthe adult Indians, voting at a special election duly called by the Secretary ofthe Intenor, shall vote against its application." On December 15,1934, the Secretary called a Section 18 election for the Indians residing on the reservation and by a vote of 2 to l, the Tribe accepted the IRA. rs The parcel identified in the Application is less than one eighth ofone mile from the reservation established for the Tribe's bcnefit in 1910. 16 7 Application at 3. 8 San Pasqual Band of Mission Indians History, https://www.sanpasqualbandofmissionindians.org/aboultristory (accessed Apr. 21 ,2020). e Glenn J- Farris, "/osi P.lnto, Capitan of the Indian Pueblo of San Pascual, San Diego County 16 JoURNAL oF CALIFoRN"IA AND GREAT BASIN ANTHRoPoLoGY I49-I6I (1994). r0 Valerie Sherer Mathes and Phil Brigandi, Reservations, Removal, and Reform.. The Mission Indian Agents of Southern Califurnia I 8 7 I - I 90 3 (2018). r1 Charles J. Kappler, INDTAN AFFATRS: LAw AND TREATTES, Vor-. I at 819. t2 Id. at 819-820. lt 26 Stat.'l12 (Jan.12, l89l ) ("1891 Acf'). ra Application at 3. .tee a/so Serial Patent Accession No. 142190 (Jul. l, 19l0) (issued to the "San Pasqual Band or Viliage of Indians" purcuant to the l89l Act) available at hftps://glorecods.blm.gov/details/patent/default.aspx?accession:142190&docClass:SER&sid:xrm3 5sxh.y I h#pate ntDetailsTablndex=0. (accessed Apr. 29, 2020) - 15 Theodore II. Llaas, Ten Years of Tribal Government [Jnder LR.A. (lJ.S.lndian Service Tribal Relations Pamphlets Iq47) al l5 (hereafter "Haas Rcpon"). 16 Application at 6, Exhibit 4 (Map showing location ofthe subject parcel relative to boundaies ofthe San Pasqual Rese.r'ation). 2 II. STANDARD OF REVIEW A, Four-Step Procedure to Determine Eligibility Scction 5 ofthc IRA provides thc Secretary discretionary authoriry to acquire any intcrcst in lands for the purpose ofproviding lands in trust for Indians.r? Section l9 defines "lndian" in relevant part as including the following three catcgories: [Category 1] all persons oflndian descent who are members ofany recognized Indian tnbe now under Federal jurisdiction, and [Category 2] all persons who are descendants of such members who were, on Junc 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include [Category 3l all other persons ofone-halfor more lndian b1ood.r8 To guide the implementation of the Secretary's discretionary authority under Section 5 after Carcieri, the Department in 2010 prepared a two-part procedure for determining when an applicant tribe was 'hnder federal jurisdiction" in l934.le The Solicitor of the Interior (Solicitor) later memorialized the Department's interpretation in Sol. Op. M-37029 _20 Despite this, however, uncertainty persisted over what evidencc could be submitted for the inquiry and how the Department would weigh it, prompting some tribes to devote considerable resources to rescarching and collecting any and all forms ofpotentially relevant cvidence, in somc cases leading to submissions totaling thousands ofpages. To address this uncertainty, in 2018 the Solicitor's Of{ice began a review ofthe Department's eligibility procedures to provide guidance for determining relevant evidence. This prompted questions concerning Sol. Op. M-37029's interpretation ofCategory 1, on which its eligibility procedures relied. This uncertainty prompted the Solicitor to review Sol. Op. M-37029's two-part procedure for determining eligibility under Category l, and the interpretation on which it relied. On March 9,2020, the Solicitor withdrew Sol. Op. M-37029. The Solicitor concluded that its interpretation ofCategory I was not consistent with the ordinary meaning, stahltory context, legislative history, or contemporary administrative understanding ofthe phrase "recognized Indian tribc now under fcdcral jurisdiction."2l In its place, the Solicitor issued a new, four-step r7 25 u.s.c- $ 5108. t8 25 U.S.C. $ 5129 (bracketed numerals added). re U.S. Dcpt. ofthe Interior, Assistant Secretary tndian Affairs, Record ofDecision,Trust Acquisitioh oJ, and Reservation Proclamdtionfol lhe 151.97-acre Cowlitz Parcel in Cldrk County, llashington, for the Cowlitz lkdian Tribe at'77-106 (Dec. 17, 2010) (hereafter "Cowlitz ROD"). See a/so Memorandum from the Solicitor to Regional Solicitors, Field Solicitors, and SOL-Division of lndian Affain, Checklist for Solicitor's OIfice Review ofFee-to- Trust Applications (Mar. 1 ,2O14), rc.,'ised (Jan.5,2017). Sol. Op. M-37029, The 'Under 'zo Meaning of Federql Jurisdictiofi' for Purposes of the Indian Reorganization Act (Mar. 12, 2014) (hereafter "M-37029"). 'l Sol. Op, M-37055 , Wilhdrawal of M-37029, The Meaning of 'under Federal Jurisdiction' for purposes of the Indian Reorgonization Act (Mat. 9, 2O2O). J procedure for determining eligibility under Category I to be used by attorneys in the Office of the Solicitor (Solicitor's Office). 22 At Step one, the Solicitor's office determines whether or not congress enacted legislation after 1934 making the IRA applicable to a particular tnbe. The existence ofsuch authority makes it unnecessary to determine if the tribe was "under federal jurisdiction" in 1934. In the absence of such authority, thc Solicitor's Officc procecds to Step Two. Step Two determincs whcther the applicant tribs was under fedcraljurisdiction in 1934, that is, whether the evidence shows that the federal government exercised or administered its responsibilities toward lndians in 1934 over the applicant tribe or its members as such.
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