5-14.001
Establishment
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The Indian Resources Section was created on May 27, 1975, by the
Environment and Natural Resources Directive No. 6-75, to conduct litigation
for the United States as trustee for the United States as trustee for the
protection of the resources and rights of federally recognized Indian
tribes and members of such tribes.
5-14.100
Area of Responsibility
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The Indian Resources Section conducts and supervises civil litigation on
behalf of the United States both in the prosecution of suits for the benefit
of Indian tribes or members of such tribes and in the defense of suits
asserting the unconstitutionality of statutes designed to protect the rights
of Indian tribes or their members or suits against the Department of the
Interior and its officials resulting from agency action taken for the
benefit of Indian tribes or their members. Lawsuits brought by Indian tribes
or their members against the United States or federal officials are
generally the responsibility of the General Litigation Section (See
USAM 5-7.000). The Indian Resources Section's docket
includes protection of tribal assets or jurisdiction, assertion of Indian
rights to property including hunting, fishing, land, water rights and the
protection of tribal sovereignty in such areas as taxation, alcoholic
beverage control, law enforcement and reservation boundaries.
5-14.120
Statutes Administered
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Most of the statutes pertaining to the trust responsibilities of the
United States to Indian people are found in Title 25 of the United States
Code except for matters under the Indian Civil Rights Act, 25 U.S.C. §
1302 et seq., which are the responsibility of the Civil Rights
Division. The majority of Federal Indian Law, and therefore the majority of
the docket of the Indian Resources Section, involves questions of federal
common law.
5-14.130
Information Concerning the Conduct of Indian
Litigation by the United States
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A useful source of information concerning the law relating to Indian
litigation and the United States' role therein, is contained in Felix S.
Cohen's Handbook of Indian Law (1982 ed.). Guidance concerning the role of
the Department of Justice in the conduct of Indian litigation is set forth
in a 1979 letter from the Attorney General to the Secretary of the
Interior. A copy of the letter can be found in the ENRD Resource Manual at 59.
[cited in USAM 5-14.400]
5-14.200
Organization
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The Indian Resources Section is administered by a Chief and two
Assistant Chiefs. The Section has field offices in Denver and San Francisco.
5-14.300
Processing and Handling of Cases—Requests
for Representation by Individual Indians to United States Attorneys
- 25 U.S.C. § 175 provides that the United States Attorney
shall represent Indians in any lawsuit in states where there are
reservations or Indian allottees. This provision "does not withdraw
discretion from the Attorney General." Shoshone-Bannock Tribes v.
Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995).
- When a request for representation is received by a United States
Attorney, the requestor should be advised that no action can be taken until
the matter is reviewed by the Department of the Interior, and its
recommendation is received. The United States Attorney should refer the
request to the nearest Regional Solicitor's office of the Department of the
Interior with a copy to the Chief, Indian Resources Section.
- The United States Attorney will be advised of any recommendations
from the Department of the Interior on requests under Section 175 and
consulted thereon before the Chief, Indian Resources Section makes any final
determination.
5-14.420
Authority of United States Attorneys to Initiate or Terminate
Actions Without Prior Authorization
- Subject to the provisions of USAM5-1.300, United States Attorneys are
authorized to act in matters concerning tribal and restricted Indian
land, not involving unique or unusual questions of law or fact or matters
concerning title or water rights, without prior authorization from the
Land and Natural Resources Division, only in the following cases:
- Actions to recover possession of property from tenants, squatters,
trespassers or others, and actions to enjoin trespasses on the land, if
the actual damages based upon a trespass do not exceed $1,000,000;
- Actions to collect delinquent operation and maintenance charges
accruing on Indian irrigation projects of not more than $1,000,000;
- Actions to collect damages resulting from the default on a contract
to remove timber from Indian lands, providing such damages do not exceed
$1,000,000.
- The actions described in paragraph A, may be referred directly from
the originating agency to the appropriate United States Attorney provided
that the Chief, Indian Resources Section is notified immediately by
receipt of a copy of the referral letter. The Indian Resources Section
must be further advised in writing from the United States Attorney of any
dispositive action taken on the referral including the filing of a
complaint.
- Subject to the provisions of USAM5-5.210, all actions described in
paragraph A, referred directly to a United States Attorney may be settled
or dismissed without prior approval of the Assistant Attorney General
provided the Indian tribe or individual involved concurs in the
disposition. All other actions may not be dismissed or settled without
the approval of the Assistant Attorney General.
- Prior to the initiation of litigation on behalf of Indian tribes or
their members or termination of such litigation, efforts should be made
to consult with the individual Indians or tribes and their counsel to
obtain their concurrence in the course of action proposed.
5-14.400
General Procedures in District Court Litigation—Tensions
Between Indian Interests and Those of Particular Federal Entities
- In cases involving action by the United States for the benefit of Indian
Tribes or their members, tension may arise between Indian interests and
those of particular entities of the federal government. Guidance concerning
resolution of these tensions is included in the Attorney General's letter
referenced in USAM 5-14.130. When it is determined
that significant tensions exist, the Chief of the Indian Resources Section
should be notified.
5-14.420
Intervention
- The Department of Justice generally does not oppose intervention by
Indian tribes in litigation where the Department of Justice has brought suit
for the benefit of tribes, or the intervention of members of Indian tribes
where the Department has brought suit for the benefit of individual Indians.
The Department, however, usually takes the position that such tribes or
their members are not necessary parties pursuant to Federal Rule of Civil
Procedure 19, where federal agency action is challenged. When the United
States is defending a federal agency action, the United States generally is
capable of adequately protecting the interest of a tribe, as well as other
nonparties that share an interest in seeing the action upheld. Thus, in
practice, cases challenging agency action usually do not require joinder of
other interested parties. Where the interested nonparty is a tribe or a
member of a tribe, and the underlying agency action being challenged is
premised on the federal government's trust responsibility to the tribe or
member of the tribe, the likelihood that the United States will adequately
represent that interests is even stronger. See Washington v. Daley,
173 F.3d 1158, 1168 (9th Cir. 1999).
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