|5-14.100||Area of Responsibility|
|5-14.120||Catergories of Litigation|
|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 in order to protect the trust resources, programs, and governmental authority of federally recognized Indian tribes, as well as real property held in trust or restricted fee for members of such tribes. Although the Indian Resources Section was created in 1975, the suits handled by the Section have been part of the Division’s docket since its creation as the “Public Lands Division” in 1909. The United States holds approximately 60 million acres of land in trust for federally recognized tribes and their members and additional lands are held subject to federal restrictions on alienation. These lands and the resources on or relating to them generate litigation akin to that relating to federal public domain lands.
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 federally recognized Indian tribes and their members and in the defense of suits challenging statutes, regulations, and agency action designed to protect the rights of Indian tribes or their members. These defensive suits include, but are not limited to, suits against the Department of the Interior and/or the National Indian Gaming Commission and their officials. 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 JM 5-7.000). The Indian Resources Section's docket includes cases involving protection of tribal real property, including lands, water rights, and mineral rights. In addition, the Section litigates to protect hunting and fishing rights, reservation boundaries, and tribal jurisdiction.
5-14.120 - Categories of Litigation
The Indian Resources Section’s litigation involves many of the statutes in Title 25 of the United States Code, which pertain to the responsibilities of the United States to Indian tribes and their members. But the majority of Federal Indian Law, and therefore much of the docket of the Indian Resources Section, involves questions of federal common law. These questions often relate to: the protection of trust and restricted lands and the resources connected to those lands; the water rights reserved by the United States when tribal lands were set aside; the interpretation and protection of treaty rights; and the scope of tribal jurisdiction and jurisdictional boundaries
5-14.130 - Information Concerning the Conduct of Indian Litigation by the United States
Information concerning federal Indian law and the role of the United States is set forth in in Felix S. Cohen’s Handbook of Indian Law and the American Indian Law Deskbook. The attorneys in the Indian Resources Section have extensive experience based on litigating a broad range of issues and are available as a resource to the entire Department. Guidance concerning the role of the Department of Justice in the conduct of affirmative litigation to protect tribal rights and resources 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.
5-14.200 - Organization
The Indian Resources Section is administered by a Chief, a Deputy Chief, and an Assistant Chief. In addition to Washington, D.C., the Section has personnel in 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, however, “does not withdraw discretion from the Attorney General.” Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995). The authority to conduct litigation for the United States in general is reserved by statute to the Department of Justice. 28 U.S.C. §§ 516, 519. Such decisions generally are not subject to judicial review. Litigation decisions regarding the protection of real property held in trust for tribes and individual Indians, similarly, are entrusted to the discretion of the Attorney General. The courts therefore consistently have held that Section 175 is discretionary, see, e.g., Shoshone-Bannock Tribes, at 1481-82, and that determinations made pursuant to Section 175 as to whether the United States will participate in litigation are not subject to judicial review.
- The Department of Justice is charged with representing the United States. As a result, when the United States litigates—affirmatively or defensively—in a matter involving real property held in restricted fee or in trust by the United States, or more generally involving the sovereignty of tribes, it represents the sovereign interests of the United States, and, accordingly, it does not, and may not, directly represent tribes or individual Indians. This understanding of the role of the Department of Justice is set forth in a 1979 letter from then-Attorney General Griffin Bell to Cecil Andrus, then-Secretary of the Interior, referenced in JM 5-14.130 and the ENRD Resource Manual at 59. 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 must 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 Assistant Attorney General of the Environment and Natural Resources Division or the Chief of the Indian Resources Section, in accordance with any applicable Attorney General Delegation, makes a final determination.
5-14.310 - Authority of United States Attorneys to Initiate or Terminate Actions Without Prior Authorization
- Subject to the provisions of JM 5-1.300 and ENRD Directive No. 2016-04, United States Attorneys are authorized to initiate or otherwise litigate the specified ENRD civil cases concerning trust and restricted Indian lands, not involving new or unusual issues, issues of national significance, issues of water rights, claims regarding the diminishment or disestablishment of tribal reservation boundaries, or the abrogation of tribal treaty rights without prior authorization from the Environment and Natural Resources Division.
- 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, including by email. The Indian Resources Section must be further advised in writing, including by email from the United States Attorney of any dispositive action taken on the referral including the filing of a complaint.
- These cases described in paragraph A often relate to trespass or rights-of-way across trust or restricted lands. In particular, 25 U.S.C. § 357 provides federal courts with authority to condemn for public purposes allotments held in trust or restricted fee for individual Indians. The United States must be made a party to such an action. Subject to the provisions of JM 5-5.210 and ENRD Directive No. 2016-04, 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, significant 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 JM 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 permissive intervention by Indian tribes in litigation where the Department of Justice has brought suit to protect the real property interests of tribes held in trust or restricted fee, or the intervention of members of Indian tribes where the Department has brought suit to protect the real property interests in trust or restricted fee of individual Indians. Similarly, when the Department of Justice is defending agency action, regulations, or statutes, it generally does not oppose permissive intervention as a defendant by the tribe(s) or individual Indian(s) benefiting from these statutes, regulations or agency actions. 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. 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, neither affirmative suits nor cases challenging agency action usually 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).
[updated April 2018]