5-14.000
THE INDIAN
RESOURCES
SECTION
5-14.001 Establishment
5-14.100 Area of Responsibility
5-14.120 Statutes Administered
5-14.130 Information Concerning the Conduct
of Indian Litigation by the United States
5-14.200 Organization
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 -- Conflicts of Interest
5-14.420 Intervention
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 private rights of Indian people.
The Indian Resources Section conducts and supervises civil litigation
on behalf of the United States both in defense of suits against individual
Indians or tribes and prosecution of suits on behalf of Indian tribes or
individuals. Lawsuits brought by Indians or Indian tribes against the United
States or federal officials is the responsibility of the General Litigation
Section (see USAM 5-7.000). Litigation
usually supervised by the Indian Resources Section includes protection of tribal
assets or jurisdiction, assertion of Indian rights to property including hunting,
fishing and water rights and the protection of tribal sovereignty in such areas
as taxation, alcoholic beverage control, law enforcement and reservation
boundaries.
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.
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. 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.).
The Indian Resources Section is administered by a Chief and an
Assistant Chief.
- 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 statute has been construed to be non-mandatory. Gila River
Indian Community v. Henningson, 626 F.2d 708, 710, n. 5 (9th Cir.1980).
- 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.
- Subject to the provisions of USAM
5-1.310, 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 200,000;
- Actions to collect delinquent operation and maintenance charges accruing on
Indian irrigation projects of not more than 200,000;
- Actions to collect damages resulting from the default on a contract to remove
timber from Indian lands, providing such damages do not exceed 200,000.
- 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 USAM 5-5.210,
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 individual Indians or
Indian tribes or termination thereof, 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.
In cases involving Indian representation by the United States,
conflicts may arise between Indian interests and those of particular entities of
the federal government. Guidance concerning resolution of these conflicts is
included in the Attorney General's letter referenced in USAM 5-14.130. When it is determined that such
conflicts exist and can not be resolved, the Chief, Indian Resources Section
should be notified.
Intervention by individual Indians or Indian tribes in litigation where
the Department of Justice has undertaken the representation of the individual
Indians or tribes is not encouraged, especially where Indian or tribal
concurrence has been obtained in accord with USAM
5-14.310D.
| September 1997
| USAM Chapter 5-14
|