|5-14.100||Area of Responsibility|
|5-14.130||Information Concerning the Conduct of Indian Litigation by the United States|
|5-14.300||Processing and Handling of Cases—Requests for Representation by Individual Indians to United States Attorneys|
|5-14.310||Authority of United States Attorneys to Initiate or Terminate Actions Without Prior Authorization|
|5-14.400||General Procedures in District Court Litigation—Tensions Between Indian Interests and Those of Particular Federal Entities|
5-14.001 - Establishment
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
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 Natural Resources 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
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
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
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.
5-14.310 - 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).