Bureau of Indian Affairs Wins in Land Case

Bureau of Indian Affairs Wins in Land Case

Carol Berry
9/1/11

The U.S. Tenth Circuit Court of Appeals has upheld the BIA in a convoluted and lengthy legal conflict among the district court, the BIA and a man seeking to give land to the Miami Tribe of Oklahoma in an area southwest of Kansas City where the tribe hopes to open a casino.

The BIA originally rejected a gift of property by James Smith to the tribe because of concern over fractionation of the tract and long-range effects on other tribal landowners. The agency’s decision was overturned by the district court and a series of appeals by both sides followed, culminating in the federal appeals court’s decision August 31 upholding the BIA.

The 35-acre parcel in Miami County, Kansas is about 180 miles from the tribe’s land base in Oklahoma and is part of a tract created after tribal land in Indiana was ceded and some tribal members relocated to Kansas. Smith, a tribal member, held an undivided 1/38 interest in the parcel whose sale or conveyance required BIA approval, court records showed.

After the BIA rejected Smith’s plan to give the land to the tribe, the tribe appealed the rejection and won, but the BIA was told to consider the effect of Smith’s application on further fractionating of the land. Although the BIA subsequently approved Smith’s application, it denied his request to convey the land because it was held in restricted status.

Under fractionation, land passes from the allottee to descendants, and as those members die, the land is passed to further descendants until multiple persons take the place of the original allottee.

To objections raised by the Miami Tribe, a three-judge panel of the federal appeals court said the BIA gave “proper consideration to the potential for additional fractionation” and said that “nothing suggests the BIA’s focus was solely on any short-term effects.”

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