The opinion of the court was delivered by: GESELL
Section 5 of the Indian Reorganization Act of 1934 authorizes the Secretary of the Interior, "in his discretion," to acquire land or any interest therein "for the purpose of providing land to Indians." 25 U.S.C. § 465 (1970). This case involves a dispute over the proper interpretation of this increasingly important but rarely litigated federal statute. The dispute arose when the Secretary, acting through an area director of the Bureau of Indian Affairs (BIA), began accepting title to various tracts of land in the Tacoma, Washington, area for the beneficial use of the Puyallup Tribe of Indians and certain of its enrolled members.
The area surrounding Tacoma largely coincides with the historic boundaries of the Puyallup nation. As a result of bargains, treaties, allotments, distress sales, and other factors, however, Puyallup landholding and activity in the area drastically declined to a point where the Tribe's continuity was threatened. The Secretary's trust takings are a response, however belated, to this situation and an attempt to restore some land and a modicum of self-support to this almost destitute Tribe and its members.
Tacoma is now an industrialized and settled area, 99% Of whose inhabitants are non-Indians. The Secretary's action generated considerable local hostility, particularly since whenever the Tribe or any of its members became the beneficial owner, it renounced or disputed the civil, tax, and criminal jurisdiction of the city.
The original complaint was diffuse and, even as subsequently amended, attempted to raise a number of nonjusticiable issues, some of which were later abandoned as irrelevant. The Tribe immediately moved to dismiss on several grounds, and defendants joined in this motion. Plaintiffs duly opposed, and the matter was fully, if somewhat confusingly, argued. Certain claims and parties were dismissed in a Memorandum Opinion issued on January 20, 1978. The Court refused to dismiss the entire complaint, however, because upon its reading of the statute, the validity of the trust takings rested upon questions of fact as well as law and thus could only be determined on a case-by-case basis. Moreover, although jurisdiction and venue technically existed, the Court expressed serious doubt as to the propriety of adjudicating these questions in such a remote jurisdiction.
Following the January Memorandum Opinion, plaintiffs filed yet another amended complaint, precipitating a further battery of motions. The Court encouraged the parties to consider a transfer to the Western District of Washington because of the absence of some parties in interest and the local aspects of the dispute. All parties strongly resisted transfer, however, because of the importance of prompt decision which could not be obtained by transfer due to the tremendous civil caseload in the Western District and the lack of any active federal judge sitting in the Tacoma Division. The Court in the end agreed to retain and adjudicate a Portion of the case, namely the validity of the trust taking of those parcels of land the grantors and beneficial owners of which would appear and consent to the jurisdiction of the Court. The Court made it clear that in no event would it determine the extent of local jurisdiction over these or any other tracts, since this was a matter requiring adjudication by a court familiar with the laws and practices of the area. The Court indicated that following decision on the validity of trust takings properly before the Court the remainder of the case would be transferred.
The grantors and beneficial owners of four parcels intervened, and on July 5, 1978, an evidentiary hearing was held regarding these tracts. Relying primarily on documentary proof, plaintiffs presented one witness, a city engineer who testified that he had inspected a building on one of the tracts and found it to be in violation of several municipal code provisions. Defendants produced the area officer who authorized the takings and a policy-level official of BIA, both of whom related the policies of and factors considered in the trust land acquisition program. They testified that the BIA was well aware of the meager resources of the Puyallup Tribe, as well as other small tribes in the Pacific Northwest, and that the agency's practice in the area was to accept land in trust subject to the following guidelines:
(b) That the proposed beneficial owner be an enrolled member of an Indian tribe;
(c) That the parcel in question be within the boundaries of a reservation established for the tribe of which the proposed beneficial owner is a member;
(d) Where a proposed beneficial owner is not an enrolled member of the Tribe for which the reservation was set aside, the Tribal Council is to be advised of the ...