Kakaygeesick v. Kempthorne et al

Filing 36

REPORT AND RECOMMENDATION: That the Respondents' Motion for Summary Judgment 18 be granted. Objections to R&R due by 7/31/2009. Signed by Chief Mag. Judge Raymond L. Erickson on 07/14/09. (TSS)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ******************* REPORT AND RECOMMENDATION ******************* Donald Kakaygeesick,1 Petitioner, vs. Ken Salazar,2 Secretary, United States Department of Interior, and George Skibine, Secretary of the Bureau of Indian Affairs, Respondents. Civ. No. 08-4252 (JMR/RLE)

******************* I. Introduction This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 The Administrative Record contains variant spellings of the Petitioner's last name including, among others, "Ka-Kee-Ka-Kee-Sick," "KaKayGesick," and "Ka-KaGeesick." For convenience, we employ the spelling adopted by the Petitioner, which he describes as the most current. See, Petition, Docket No. 1, at pp. 2-3 ¶3. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Secretary of the Interior Ken Salazar is substituted for his predecessor, Secretary Dirk Kempthorne.
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U.S.C. §636(b)(1)(B), upon the Respondents' Motion for Summary Judgment. A Hearing on the Motion was conducted on March 26, 2009, at which time, the Respondents appeared by Lonnie F. Bryan, Assistant United States Attorney, and no appearance was made by, or on behalf of, the Petitioner. For reasons which follow, we recommend that the Respondents' Motion be granted. II. Factual and Procedural Background The Petitioner seeks a judicial review, pursuant to Title 28 U.S.C. §1331, as well as the Administrative Procedure Act, Title 5 U.S.C. §§702, et seq. ("APA"), of several administrative decisions by the Secretary of the Interior, via the Bureau of Indian Affairs ("BIA"). See, Petition, Docket No. 1, at p. 1.3 Specifically, the Petitioner requests that we review an Administrative Law Judge's ("ALJ's") Order, dated July 12, 2005, Determining Heirs and Decree of Distribution in the Estate of

Our jurisdiction to hear this matter is not in dispute. See, Runs After v. United States, 766 F.2d 347, 351 (8th Cir. 1985)("We agree with appellants that federal district courts do have subject matter jurisdiction under 28 U.S.C. §1331 to review, pursuant to the APA, the BIA action."), citing Goodface v. Grassrope, 708 F.2d 335, 338 (8th Cir. 1983); see also, Smith v. Babbitt, 96 F. Supp.2d 907, 910 (D. Minn. 2000); Crow Creek Sioux Tribe v. Bureau of Indian Affairs, 463 F. Supp.2d 964, 968 (D.S.D. 2006). -2-

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George Angus, see, Administrative Record, at pp. 29-31(hereinafter, A.R. at 29-31);4 and an ALJ's Recommended Decision, dated July 12, 2005, see, A.R. at 22-26, together with the Interior Board of Indian Appeals' ("IBIA's") Order, dated November 13, 2007, Adopting Recommended Decision as Modified. See, A.R. at 620-31; see also, Estate of Albert Angus, Sr., and Estate of George Angus, 46 IBIA 90 (November 13, 2007)("Estate of Albert Angus"). In addition, the Petitioner "disagree[s] with the January 26, 1978, Order Determining Heirs in the Estate of Mary Angus." Petition, Docket No. 1, at pp. 3-4 ¶4.5 The Respondents contend, however, that the Petitioner failed to exhaust his The Administrative Record contains duplications of numerous exhibits. As a consequence, we cite to only one location, in the Record, where a particular exhibit can be found. While the Petitioner may well disagree with the Order Determining Heirs in the Estate of Mary Angus, which was issued on March 7, 1978, see, A.R. at 213-19, we are powerless to review the merits of that Order, as the statute of limitations, which is applicable to the APA, expired six (6) years after that decision and, obviously, well before the Petition in this case was filed in 2008. See, e.g., Izaak Walton League of America, Inc. v. Kimbell, 558 F.3d 751, 758-59 (8th Cir. 2009)(holding that, because the APA does not include its own statute of limitations, the general statute of limitations, that is set forth in Title 28 U.S.C. §2401(a) applies, "which provides that `every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.'" ). Since any complaint, that the Petitioner might have had as to that Order, accrued on the date of its issuance, and since, according to the Record presented, no appeal was taken -- if, (continued...) -35 4

administrative remedies, as to the ALJ's Order Determining Heirs and Decree of Distribution in the Estate of George Angus, and that, therefore, we are without jurisdiction to review that Order. Further, the Respondents argue that the IBIA's Order Adopting Recommended Decision, as Modified, was a lawful administrative adjudication. In order to provide those decisions a factual backdrop, we first detail the relevant facts, as they are contained in the certified Administrative Record. See, Docket No. 22. The relevant events commence with the transfer of title, on August 30, 1905, to Allotment No. 3, from the United States Government, to the Petitioner's Great Grandfather, John Kakaygeesick, Sr., who was also known as Everlasting Sky. A.R. at 693. Allotment No. 3 was originally comprised of 102.20 acres of land, A.R. at 218, but, through inundation from the rising waters of the Lake of the Woods, as well as shoreline erosion, the "property now consists of less than twenty acres," A.R. at

(...continued) indeed, an appeal could have been taken in the absence of review by the IBIA -- the Petitioner is barred from now seeking a reversal, or modification, of that Order. See, Chandler v. U.S. Air Force, 255 F.3d 919, 921 (8th Cir. 2001)("A `claim against [the] United States first accrues "on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action."'"), quoting Kinsey v. United States, 852 F.2d 556, 557 (Fed. Cir. 1988). -4-

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1084, and indeed, may be as few as five (5) acres. A.R. at 732-33. It is the title to Allotment No. 3 that is in dispute amongst the descendants of Everlasting Sky. Everlasting Sky had two (2) children, John Kakaygeesick, Jr., and Mary Kakaygeesick Angus ("Mary"). A.R. at 207. John Kakaygeesick, who predeceased Everlasting Sky, had a son, Robert Kakaygeesick, Sr. ("Robert"), who was the father of the Petitioner, Id., while Mary had two (2) sons who were George Angus ("George"), and Albert Angus ("Albert"). A.R. at 228. At the time of the Order that determined Mary's Heirs, Albert was dead, having passed away on April 4, 1976. Id.; A.R. at 352. The dispute over Allotment No. 3 effectively pits the Kakaygeesick branch of the family against the Angus branch. On September 20, 1968, the title to Allotment No. 3 passed from Everlasting Sky, to Mary, as memorialized in a "Deed To Restricted Indian Land." A.R. at 89-90. The branches of Everlasting Sky's descendants dispute the legitimacy of that exchange. As the face of the Deed discloses, a name on the Deed, which denoted the designee to whom the property would transfer, was obliterated by typed "Xs," and the name of Mary was substituted, using a different type font than was employed in the rest of that document. Id. at 89. As further disclosed on the face of the Deed, the circumstances of the transfer were witnessed by George Kelly ("Kelly"), Margaret -5-

Aas ("Aas"), and Ronald Beaulieu ("Beaulieu"). Id. In addition, the Deed was notarized by "W. Leaf" -- Willard Francis Leaf ("Leaf"), A.R. at 66 -- who was then a Realty Officer for the BIA. A.R. at 68. As related during a deposition of Leaf, which was taken by counsel for each branch of the dispute, the Deed was dictated by Leaf, and typed by his secretary, in Bemidji, Minnesota, pursuant to a request that had been made to his office. A.R. at 68-69. The original request, that had been received by Leaf's office, contemplated that the Allotment would transfer to Robert. A.R. at 70, and 78. Leaf then drove to Warroad, Minnesota, in order to meet with Everlasting Sky who, Leaf recalled, was then in a rest home. A.R. at 69, and 483. Due to Everlasting Sky's difficulty in understanding English, Leaf communicated to Everlasting Sky by means of an interpreter. A.R. at 70. According to Leaf, at that time, Everlasting Sky advised that he did not want to transfer the land to his grandson, Robert, but wanted to give the land to his daughter, Mary. A.R. at 71. Everlasting Sky was "definite" in wanting the land to go to Mary, and "he seemed very pleased with the transaction." Id. Leaf identified Kelly, and Beaulieu, as witnesses to the transaction, who also served as interpreters. Id. Leaf felt that, while Everlasting Sky had his "facilities," he executed the Deed using his thumb print. A.R. at 72. Aas was also identified, by -6-

Leaf, as a witness to the Deed. Id. While he did not recall who had actually made the change on the Deed, Leaf acknowledged that the change was made at his direction, and that he had initialed the change. A.R. at 73. Leaf thought that the Deed had been recorded in the County Courthouse, and further, that the Deed had been forwarded to the BIA, which confirmed the transaction. A.R. at 74, and 92. Thereafter, on October 17, 1968, Leaf wrote a letter to Everlasting Sky advising that the transaction had been completed, and that "[t]he land is now held in trust for your daughter." Id., and at 93. In providing his testimony, Leaf relied heavily on a memorandum, which was dated September 20, 1968, A.R. at 91, and which was prepared contemporaneously with the transfer transaction, in order to memorialize the events surrounding the execution of the Deed. A.R. at 78-79. Since the events had occurred some thirty-five (35) years before his deposition, A.R. at 76, Leaf was glad that he had prepared the memorandum to refresh his recollection. A.R. at 79. Leaf was unable to explain, however, two dates on the Deed. On the second page of the Deed, A.R. at 90, there is a notation suggesting that the Deed was in the BIA's office in Minneapolis on October 9, 1968, and yet there is a stamp, on the same page, showing that the Deed had been received in the BIA's office in Portland, Oregon, on October 11, 1968. A.R. at 83. Although Leaf was unable to confirm that the Deed could have been -7-

transferred, from Minneapolis to Portland, in just two (2) days, he believed that the two (2) dates were accurate. A.R. at 84-85. During a Hearing on July 30, 2003, Beaulieu testified concerning the events surrounding the transfer of Allotment No. 3, in September of 1968, from Everlasting Sky to Mary. A.R. at 783. Beaulieu was questioned about the veracity of Leaf's memorandum of September 20, 1968, and he agreed with the memorandum's accuracy. A.R. at 783-86. Beyond that, Beaulieu related that Robert had informed Leaf's office that Everlasting Sky wanted to leave the property to him. A.R. at 785. When they went to see Everlasting Sky, however, he informed them, in Ojibway, that he wanted Mary to get the land, and "[t]hat's why this Margaret Aas was there," A.R. at 786, to serve as an interpreter. Id. Beaulieu testified that he could understand the language, but that Everlasting Sky spoke a "different dialect," and spoke faster than Beaulieu. Id. While Beaulieu had difficulty in understanding Everlasting Sky, that was why they had Aas there to make sure, and Beaulieu believed that some of the interpretations were done correctly. A.R. at 792. Beaulieu was previously an acquaintance of Everlasting Sky, and he considered him to be "competent to make the decision that he wanted the property to go to his daughter, Mary Angus." A.R. at 789.

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Beaulieu also confirmed that the other two (2) witnesses to the Deed's execution -Aas and Kelly -- were dead. Id.; see also, A.R. at 1046. Nearly one year later, on July 27, 2004, Beaulieu testified, again, at a Supplemental Hearing. At that time, Beaulieu identified the thumb print on the Deed as that of Everlasting Sky, and he also identified his own signature as a witness to the execution of the Deed. A.R. at 738. Beaulieu recounted that, a few days before that execution, Robert came to the BIA office and told Beaulieu "that the old man wanted to give him the land." Id. Again, Beaulieu confirmed that he was with Leaf when the Deed was presented to Everlasting Sky. A.R. at 740. He also confirmed that Aas served as the interpreter, since Everlasting Sky spoke Canadian Ojibway, and that language was spoken a lot faster. A.R. at 741. Although Beaulieu could understand him, he "couldn't understand him that good," and "that's why we had this woman come there." Id. According to Beaulieu, Aas asked Everlasting Sky to whom he wanted to give his land, and he said "`my daughter.'" A.R. at 742. Beaulieu again described Everlasting Sky as being competent. A.R. at 743. Thereafter, Beaulieu signed the Deed as a witness, and he observed Everlasting Sky place his thumb print on the Deed. A.R. at 744.

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Given the transfer that occurred in 1968, title to Allotment No. 3 descended from Mary through the Angus branch of the family, rather than from Robert through the Kakaygeesick branch. Mary died intestate on April 24, 1975. A.R. at 213, and 1028. As noted, Mary's son, Albert, predeceased her son, George, and therefore, title to Allotment No. 3 was divided, with a one-half (½) interest going to the Estate of Albert, and the other one-half (½) going to George. A.R. at 213. While, apparently, not universally known, see, A.R. at 832, George had prepared a Will, prior to the time of his death, which came before the ALJ during the probate of George's Estate. George had never been married, and had no children. Id. George's Will was prepared on August 16, 1982, by Kathleen R. Miner ("Miner"), who was employed as a Realty Specialist at the BIA's Red Lake Agency. A.R. at 50. On that same date, the Will was witnessed by Frank A. Staples, and Maurice Bailey, whose signatures were notarized by Edna N. Johnson. A.R. at 48-50. In that Will, George devised and bequeathed his one-half (½) interest in Allotment No. 3 to Robert, who was George's first cousin, and to Robert Kakaygeesick, Jr. ("Robert Jr."), who was one of Robert's sons, and who was George's second cousin. A.R. at 47. George passed away on June 29, 1990. A.R. at 114-15. While copies of

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that Will were available to the ALJ, during the Probate of George's Estate, the original Will was not located, despite a search of the BIA's records. The Record discloses that, by a transmittal letter of June 19, 1985, "the original and two copies of the Last Will and Testament of George Angus," were sent by the Acting Superintendent of the BIA's Red Lake Agency, to one of the ALJs who was later to conduct Hearings in this matter. A.R. at 104. The transmittal letter reflects that the Will was sent by "CERTIFIED MAIL - RETURN RECEIPT REQUESTED." Id. The letter was received by the ALJ on June 21, 1985, and apparently, was delivered, on that same date, to the Field Solicitor's office for review. Id. The letter has a handwritten notation, by a Mark A. Anderson, for the Field Solicitor, that the Will was approved as to form on June 24, 1985. Id. In addition, the letter discloses that the letter was returned, thereafter, to the Red Lake Agency, which received the letter on June 26, 1985. Id. The same sequence of events was corroborated, in a letter of September 15, 2003, by the ALJ to whom the Will was originally sent in June of 1985. A.R. at 16566. As related by the ALJ at that time: Based upon the above provided chain of custody information, I recently asked the Red Lake Agency to conduct a due and diligent search of the Superintendent's - 11 -

records for George's will or codicil or any replacement copy thereof that may have been retained at the request of the testator for safekeeping. I further requested that the results of that search be certified by the individual conducting the search. A.R. at 166. The Record further reflects that, on July 15, 2003, the ALJ telephoned Della Kingbird ("Kingbird"), of the Red Lake Agency, and asked that she search for George's original Will. A.R. at 244. Consistent with the representation contained in the ALJ's letter of September 15, 2003, on September 9, 2003, the ALJ had transmitted a memorandum to Kingbird, which detailed the chain of custody relating to George's original Will, and asked that a "due and diligent search of the Superintendent's records be conducted" for George's Will, a codicil, or any replacement of the Will. A.R. at 474-75. During the course of the Hearing on July 27, 2004, Kingbird testified concerning George's Will. A.R. at 746-53. She confirmed that the only copies of the Will, which were in her files, as the Probate Specialist for the Red Lake Agency, were "carbon copies, which at that time it was standard procedure that you type up the original document and you have two carbon's [sic]." A.R. at 750. Kingbird testified that she did not believe that George asked for his Will back, although she noted that the Will had been sent to the Field

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Solicitor's office. A.R. at 749-50. Kingbird did not believe that the original was in the Red Lake Agency, but thought that it could be filed with the Field Solicitor, although that office advised that it did not have the document. A.R. at 750-51. The Record discloses that, subsequently, on February 17, 2005, an Attorney-Adviser with the ALJ's office directed staff to contact Kingbird, as "one last attempt" to locate the "original copy" of George's Will. A.R. at 166, and 242. No such original was forthcoming. During the period from September 18, 2002, through July 27, 2004, three (3) Evidentiary Hearings were conducted before ALJs, at which the foregoing evidence was received. Thereafter, on July 12, 2005, the ALJ issued an Order Determining Heirs and Decree of Distribution in the Estate of George Angus, in which the ALJ found, with respect to the Will of George, as follows: There is a document on file which purports to be the decedent's Last Will and Testament. However, after a due and diligent search by the Red Lake Agency, the original document could not [sic] found. The document's due execution and continued existence could not be proved, therefore, the document will not be approved and the decedent's property shall pass under the statutes of descent. A.R. at 30 ¶6.

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Accordingly, in the absence of a Will, George's Estate passed to seven (7) members of the Angus side of the family, rather than to Robert, and to Robert Jr. A.R. at 30 ¶A. While the Petitioner seeks a review of that Order, the Government claims that the Petitioner has failed to exhaust his administrative remedies as to that claim, and therefore, that we do not have the requisite jurisdiction to review that Order. Also on July 12, 2005, the ALJ issued a Recommended Decision and, after reviewing the foregoing evidence, found as follows: The evidence contained in this record indicates that on the day of the gift deed's execution Everlasting Sky understood and did, in fact, intend to gift deed Red Lake Allotment No. 3 to his daughter Mary Angus. The record further lacks any legitimate evidence suggesting in any manner or form that the deed was not a legitimate transfer of that property. I, therefore, recommend a finding that Red Lake Allotment No. 3 is correctly included in the decedents' property inventories. A.R. at 24-25 [footnote omitted]. Thereafter, on September 9, 2005, the IBIA received the Petitioner's appeal to the ALJ's Recommended Decision. A.R. at 673. On November 13, 2007, the IBIA issued its Order Adopting Recommended Decision as Modified. A.R. at 620-31. The Order extensively reviewed the evidence before the ALJ, A.R. at 620-25, and then recounted the ALJ's Recommended Decision, as finding the transfer to

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Mary, from Everlasting Sky, to be legitimate. A.R. at 625-26. However, the IBIA declined "to reach the merits of th[at] appeal because of the lapse of time and failure by [Petitioner] and his father to pursue any claim to Allotment No. 3 with due diligence," and therefore, the IBIA adopted the conclusion of the ALJ's Recommended Decision, but did so on "alternative grounds." A.R. at 627-28. As explained by the IBIA: The Board has adhered to these legal precepts and requires appellants to be diligent in the pursuit of their claims. In the context of probates, appellants seeking to reopen estates that have been closed for more than three years must establish that they have been diligent during the intervening time period. * * *

[Petitioner] is faced with similar timeliness and diligence issues -- his father's as well as his own. First, [Petitioner's] father failed to exercise diligence. The gift deed process was initiated by [Petitioner's] father: Robert went to BIA and said that Everlasting Sky wanted to give him Allotment No. 3. Therefore, it is reasonable to expect that Robert would have inquired further into the status of the gift deed and the conveyance to him. Had he done so, he would have discovered that Everlasting Sky gave the land to Mary. Certainly, by the time Everlasting Sky died, which occurred shortly after he executed the gift deed, Robert should have inquired about the status of the gift deed or the status of the allotment and challenged BIA's decision to approve the

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deed. There is no indication in the record that Robert ever objected to the gift deed to Mary or even inquired about it. A.R. at 629-30 [footnotes omitted]. The IBIA went on to note that, even when Mary's Estate was probated in 1978, there appeared to have been no inquiry by Robert, the Petitioner, or anyone else from the Kakaygeesick family, concerning the inventory of Mary's Estate. A.R. at 630. The IBIA further explained that, because the Petitioner's interest in the property was derivative of Robert's interest, Robert's lack of due diligence should be imputed to the Petitioner. Id. However, the IBIA concluded that, even if such an imputation were not present, the Petitioner, in his own right, had failed to demonstrate due diligence in pursuing any claim to Allotment No. 3. Id. As the IBIA reasoned: When Robert died in 1998, [Petitioner] should have inquired at that time about the ownership of the land and should have raised any challenge within a reasonable time thereafter with BIA. Finally, we note that [Petitioner] states that he first saw the altered gift deed sometime in or about the year 2000. Yet, inexplicably, no challenge was made to the gift deed until September 2002. This delay is not reasonable. The alteration is evident on the face of the deed. To the extent [Petitioner] believed the alteration to be illegal or unauthorized by Everlasting Sky, he should have challenged the approval within a reasonable time of its discovery. Moreover, [Petitioner] provides no explanation for his own delay, let alone his father's delay. - 16 -

In sum, we conclude that [Petitioner's] challenge to the 1968 gift executed by Everlasting Sky is untimely. We adopt the recommended decision to the extent that it declines to remove Allotment No. 3 from the inventories of the estates of George and Albert [Angus]. A.R. at 630-31 [footnotes omitted]. In his current Petition, the Petitioner challenges the IBIA's decision, while the Respondents urge us to affirm the IBIA's ruling. Since the Order of the ALJ involves different factual and legal questions than the Order of the IBIA, we separately address each of those determinations, as they have been challenged in the Petition before us. III. Discussion A. The ALJ's Order Determining Heirs and Decree of Distribution in the Estate of George Angus. As we have detailed, if the ALJ had found that George's Will was legitimate, then George's one-half interest in Allotment No. 3 would have devised to Robert, and to Robert Jr. -- who were members of the Petitioner's branch of the family. The Petitioner now claims a number of anomalies in the BIA's handling of the original of that Will, and the Record is unsettled as to where the original of the Will came to rest, or if it had been destroyed by the testator. We need not, however, and in fact, we may not address those issues, as we find, consistent with the Respondent's argument, that

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the Petitioner failed to exhaust his administrative remedies, as to those issues, and therefore, we are barred from resolving that aspect of the Petition. In Darby v. Cisneros, 509 U.S. 137, 146 (1993), the Supreme Court definitively held as follows: Under §10(a) of the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. §702 (emphasis added). Although §10(a) provides the general right to judicial review of agency actions under the APA, §10(c) establishes when such review is available. When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is "final for the purposes of this section" and therefore "subject to judicial review" under the first sentence. While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, §10(c), by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates. The question devolves, therefore, to whether the Secretary of the Interior had prescribed an exhaustion requirement, in the Department's regulations, at the time of the issuance of the ALJ's Order of July 12, 2005. As the Court observed, in Fort Berthold Land and Livestock Association v. Anderson, 361 F. Supp.2d 1045, 1050 (D.N.D. 2005): - 18 -

Since 1975, regulations governing challenges to decisions of the Bureau of Indian Affairs have required an administrative appeal from most BIA decisions before judicial review of such decisions can be obtained. See, e.g., 25 C.F.R. §2.3(b)(1988); 40 Fed.Reg. 6478, 7666 (1989). In 1989, the regulations requiring an administrative appeal were reviewed without changing the appeal requirement. See 54 Fed.Reg. 6478 (1992).6 These regulatory revisions also eliminated an intermediate appeal to the Commissioner of Indian Affairs and provided for direct review of BIA Area Director decisions by the Interior Board of Indian Appeals. See 54 Fed.Reg. 6478 (1989); compare 25 C.F.R. §2,3(a)(1988) with id. §2.4(e)(1992). At the same time, the rules governing appeals to the IBIA were amended to "ensure compatibility between those regulations and regulations of the Bureau of Indian Affairs." 54 Fed.Reg. 6483 (1989). In particular, an amendment reiterated the need for an appeal to the IBIA before the decision could be reviewed judicially. See id., at 6486; compare 43 C.F.R. §4.314(a)(1991) with id. (1988).7
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Section 2.6(a) reads as follows:

No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. §704, unless when an appeal is filed, the official to who the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately. 25 C.F.R. §2.6(a).
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Section 4.314(a) provides as follows: (continued...) - 19 -

"Thus, if an ALJ's decision is subject to appeal to the IBIA, administrative exhaustion is required and judicial review is barred in the absence of such an appeal." Smith v. Babbitt, 96 F. Supp.2d 907, 917 (D. Minn. 2000)[footnote omitted]; cf., Gaming World Int'l, Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840, 842 (8th Cir. 2003)("An unreviewed decision by an Area Director was not a final agency decision for purposes of exhaustion and judicial review."), citing 43 C.F.R. §§4.21(c), 4.314(a) . As reflected in the ALJ's Order Determining Heirs and Decree of Distribution in the Estate of George Angus, the "DECISION IS FINAL FOR THE DEPARTMENT UNLESS A PETITION FOR REHEARING IS TIMELY FILED IN ACCORDANCE WITH 43 C.F.R. §4.2418 WITHIN 60 DAYS FROM THE DATE (...continued) No decision of an administrative law judge, Indian probate judge, or BIA official that at the time of its rendition is subject to appeal to the Board, will be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. §704, unless it has been made effective pending a decision on appeal by order of the Board. 43 C.F.R. §4.314(a).
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As of the time that the ALJ's Order issued, Section 4.241(a) provided as follows: Any person aggrieved by the decision of the administrative (continued...) - 20 -

HEREOF AS SET FORTH IN THE NOTICE ATTACHED HERETO, OR UNLESS A PETITION FOR REOPENING IS FILED PURSUANT TO 43 C.F.R. §4.242," and "NO CLAIMS SHALL BE PAID AND NO DISTRIBUTION SHALL BE MADE DURING THE PENDENCY OF PROCEEDINGS FOLLOWING THE FILING OF A PETITION OF [sic] REHEARING, EXCEPT AS SPECIFICALLY AUTHORIZED

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(...continued) law judge or Indian probate judge may, within 60 days after the date on which notice of the decision is mailed to the interested parties, file with the administrative law judge or Indian probate judge a written petition for rehearing.

In turn, Section 4.242(a) provided: A person claiming an interest in an estate may file a petition in writing for reopening of the case if he or she: (1) (2) Had no actual notice of the original proceedings; Was not on the reservation or otherwise in the vicinity at any time while the public notices of the hearing were posted; and

Files the petition within 3 years after the date of a final decision issued by an administrative law judge, Indian probate judge, or the Board, except as provided in §§4.203 and 4.206 and paragraph (i) of this section. 43 C.F.R. §§4.241(a), and 4.242(a)(March 9, 2005); see also, 70 Fed.Reg. 11804, 11820-21, and 2005 WL 539905 (F.R., March 9, 2005). - 21 -

(3)

BY THE ADMINISTRATIVE LAW JUDGE." A.R. at 30 [emphasis in original]. Here, the Administrative Record contains no showing that the Petitioner filed either a Petition for Rehearing, or for Reopening, as to the ALJ's Order. Instead, the Record discloses, on two separate occasions, the IBIA's determination that no Petitions for Rehearing were filed. See, Order Adopting Recommended Decision As Modified, A.R. at 625 ("No petitions for rehearing were filed in response to the Orders Determining Heirs."); see also, Order Dismissing Petition for Reconsideration, Estate of Albert Angus, Sr., Estate of George Angus ("Reconsideration Decision"), 47 IBIA 57 at *57-58, 2008 WL 2573050 at *1 (2008), A.R. at 5 ("The Order Determining Heirs was neither the subject of nor was it within the scope of [Petitioner's] appeal to the [IBIA] from [ALJ] Clapp's Recommended Decision."). Even if such Petitions had been filed, that act of filing would not have exhausted the Petitioner's administrative remedies, as 43 C.F.R.§4.320(a) provided, at the pertinent time, as follows: An interested party has a right to appeal to the [IBIA] from an order of an administrative law judge or Indian probate judge on a petition for rehearing or petition for reopening or regarding tribal purchases of interests in a deceased Indian's trust estate. 43 C.F.R. §4.320(a) (March 9, 2005); see also, 70 Fed.Reg. 11804, 11826, and 2005 WL 539905 (F.R., March 9, 2009). - 22 -

No such appeal was taken by the Petitioner, and therefore, he has failed to exhaust the administrative remedies that were available to him, and we are without jurisdiction to address his arguments concerning the ALJ's Order Determining Heirs and Decree of Distribution of George Angus. We are mindful of the Petitioner's contention, that "[t]he Main [sic] reason for [his Petition] is because Judges David A Clapp and Frederick W Lambrecht, Administrative Law Judges (ALJ) ruled that the August 16, 1982 Last Will and Testament and Affidavit to Accompany Indian Will, by George Angus was not a valid Will." Petition, Docket No. 1, at p. 4 ¶5 [emphasis in original]. However, his Appeal, as contained in this Record, only relates to the issues surrounding the transfer of Everlasting Sky's interest in Allotment No. 3 to Mary. A.R. at 677-93. There is no mention of George's Will, or any issue surrounding that Will. Although there is a passing reference to George handing Robert "the patent to Everlasting Sky's land," and saying, "[t]his is yours, you be sure you keep it good," A.R. at 687, there is nothing in the Petitioner's Appeal to the IBIA which would so much as intimate any challenge to the ALJ's determination that George's Will should be disallowed. A.R. at 677-93.

- 23 -

Undoubtedly, the Petitioner now wishes that he had taken an appeal from the Order Determining Heirs and Decree of Distribution in the Estate of George Angus, but the undeniable fact is that the Record before us is devoid of any such appeal, and the Petitioner provides no evidence that any such appeal was perfected. He urges that the reference, in the IBIA's Reconsideration Decision, see, A.R. at 5, to his having written letters referring to George's Will, reflects his appeal of the Order Determining Heirs and Decree of Distribution in the Estate of George Angus, but we have only found one such letter in the Record, and that was dated March 25, 2008. A.R. at 16. As related by the Petitioner in that letter, "[m]y appeal will state that George Angus left a will with out family names on it," and "[t]he document was shown to us in court." Id. [emphasis added]. Plainly, the Petitioner was expressing a future intent to file an appeal related to George's Will, but his letter of March 25 post-dated the IBIA's decision, which concerned the passage of title to Allotment No. 3 from Everlasting Sky to Mary, by four (4) months. No similar contention was made in the Petitioner's appeal to the IBIA, and that fact was underscored by the IBIA in denying the Petitioner's request for a reconsideration. See, Reconsideration Decision, supra, A.R. at 4-5 n. 2.

- 24 -

Since an appeal from that Order would only impact upon George's one-half (½) interest in Allotment No. 3, whereas the appeal from the ALJ's Recommended Decision could adversely affect the Angus descendants' entire interest in that Allotment, inclusive of that held by the Estate of Albert Angus, perhaps the Petitioner's attention was diverted, or inadvertence stepped in, but any such diversion of attention, or inadvertence, does not qualify as an exhaustion of administrative remedies. We understand the Petitioner to suggest that, because he was no longer represented by legal counsel -- since, with the Petitioner's consent, see, A.R. at 17073, his counsel withdrew from his representation on May 28, 2003, id. -- his submissions to the IBIA should be read with great indulgence. See, Estelle v. Gamble, 429 U.S. 97, 106 (1976)("As the Court unanimously held in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), a pro se complaint, `however inartfully pleaded,' must be held to less stringent standards than formal pleadings drafted by lawyers * * *."); see also, Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2004). While we have no quarrel with that proposition of law, nevertheless, an indulgent reading of pro se filings cannot add claims that were not originally pled. As the Court explained, in Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004): - 25 -

When we say that a pro se complaint should be given liberal construction, we mean that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework. That is quite different, however, from requiring the district court to assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint. Cf., Parisi v. The Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005)("Although we have often stated that we will liberally construe an administrative charge for exhaustion of remedies purposes, we also recognize that `there is a difference between liberally reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not made.'"), quoting Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996)[internal quotation marks and citation omitted]. Indeed, in Stone v. Harry, supra at 914, the Court refused to consider a pro se claim on appeal, that was not presented to the District Court -- a holding that we cannot meaningfully distinguish from a refusal to consider, in the context of a judicial review, a claim that had not been fully exhausted in the underlying administrative proceeding. Although not raised by either party, we are mindful that exhaustion requirements, whether arising under a statute or under agency regulations, can be jurisdictional, or non-jurisdictional. Under a jurisdictional statute or regulation, "exhaustion of administrative remedies cannot be excused or waived and the failure by a party to exhaust is a jurisdictional bar." Ace Property and Casualty Insurance Company v. Federal Crop Insurance Corporation, 440 F.3d 992, 996 (8th Cir. 2006). - 26 -

"In contrast, a non jurisdictional statute [or regulation] codifies the common law exhaustion principle under which exhaustion of administrative remedies is favored, but may be excused by a limited number of exceptions to the general rule." Id., citing Weinberger v. Salfi, 422 U.S. 749, 765-66 (1975). "Exhaustion is presumed to be non jurisdictional `unless Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision.'" Id. at 997, quoting Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004)[internal citations omitted]. Though not ruled upon by our own Court of Appeals, the Court of Appeals for the Ninth Circuit has held "that the exhaustion requirements of 43 C.F.R. §4.21(c) do not bar the filing of a colorable due process claim in federal court regarding Indian probate proceedings." Anderson v. Babbitt, 230 F.3d 1158, 1162 (9th Cir. 2000). The Court concluded that the language of Section 4.21(c) "is not `sweeping and direct language that goes beyond a requirement that only exhausted claims be brought.'" Id., quoting Rumbles v. Hill, 182 F.3d 1064, 1067 (9th Cir. 1999), cert. denied, 528 U.S. 1074 (2000), quoting, in turn, Weinberger v. Salfi, supra at 757. Since, under closely analogous language, our Court of Appeals has held similar exhaustion requirements to be non jurisdictional, see, e.g., Ace Property and Casualty Insurance Company v. - 27 -

Federal Crop Insurance Corporation, supra at 998-1000, and cited Anderson v. Babbitt, supra, favorably in doing so, we presume, without finding, that our Court of Appeals would find the exhaustion requirement of Section 4.21(c), to be nonjurisdictional. See, Ace Property and Casualty Insurance Company v. Federal Crop Insurance Corporation, supra at 999, and 1000 n. 4. "A party may be excused from exhausting administrative remedies if the complaint involves a legitimate constitutional claim, if exhaustion would cause irreparable harm, if further administrative procedures would be futile, In Home Health[, Inc. v. Shalala,] 272 F.3d [554,] 560 [(8th Cir. 2001)], or if the issues to be decided are primarily legal rather than factual." Ace Property and Casualty Insurance Company v. Federal Crop Insurance Corporation, supra at 1000, citing Missouri v. Bowen, 813 F.2d 864, 871 (8th Cir. 1987). None of these exceptions properly apply here. First, the Petitioner has plainly alleged in his Petition, both due process, and equal protection violations, nor can it be disputed that such allegations are exempt from any exhaustion requirement. See, Petition, Docket No. 1, at p. 3 ¶3 (due process), p. 5 ¶¶7 and 9 (due process), p. 9 ¶ 18 (due process), p. 19 (Fifth, Seventh, and Fourteen Amendments), and p. 20 (equal protection); see also, Califano v. - 28 -

Sanders, 430 U.S. 99, 109 (1977)("Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions."); United States v. Lancman, 1998 WL 315346 at *7 (D. Minn., January 20, 1998)("As the Supreme Court has often noted in recent years, serious constitutional questions would arise if a statute were construed to foreclose constitutional review of agency actions.")[citations omitted]. However, "[t]he mere allegation of a due process violation `is not sufficient to raise a "colorable" constitutional claim to provide subject matter jurisdiction,'" as "the plaintiff must allege `facts sufficient to state a violation of substantive or procedural due process.'" Anderson v. Babbitt, supra at 1163, quoting Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1992). Here, in most instances, the Petitioner employs his assertions of a constitutional deprivation as a shorthand restatement of his contention that the ALJ, and subsequently, the IBIA, came to the wrong decisions.9 Otherwise, the alleged constitutional infractions are a product of the Petitioner's suspicions, and

For example, the Petitioner claims that the ALJ failed in his duty of honoring the testator's intent, and of investigating all of the facts. See, Petition, Docket No. 1, at p. 5 ¶¶7, and 9. However, there is no evidence, other than the Petitioner's self-serving belief, that the Kakaygeesick branch of the family should be awarded all of Allotment No. 3, to support either accusation. - 29 -

9

surmise, but no evidence of Record supports them.10 Accordingly, we conclude that no legitimate, or even any colorable, constitutional claim has been presented for our review. Next, there can be no responsible argument that the exhaustion of remedies would have caused the Petitioner any irreparable harm. Rather, properly raised and supported, an assertion of error to the IBIA, as to the propriety of the ALJ's implicit rejection of George Angus's Will, because it was not an original, or a certified copy of the original, would have allowed the agency, which promulgated the need for an original Will, to explain any legitimate bases for its own regulatory rule making. See,

According to the Petitioner, the ALJ somehow denied Petitioner's counsel the opportunity to discover, and quizzically, compelled his attorneys to withdraw from their representation of him. See, Petition, Docket No. 1, at pp. 9-10 ¶18. Once again, no evidence supports either assertion and, in fact, the Petitioner's legal counsel did engage in discovery, including the deposition of Leaf. Further, he asserts, without any evidentiary support, that "Red Lake Agency authorities have been plotting to get the Kakaygeesick property, allotment no. 3, under their control since the passing of the Indian Reorganization Act on June 18, 1934," id. at p. 14 ¶26; that "[n]o one not even George Angus challenged our right to possession of the land," id. at p. 15 ¶27; and that "[ALJ] Lambrecht who probated the Mary angus [sic] estate failed to notify my father, Robert Kakaygeesick, who's [sic] name is still visible beneath the x's on the Deed." Id. at 15 ¶29. Lastly, there is nothing to support any contention that the Fifth, Seventh, or Fourteenth Amendments, have been violated, as these constitute mere conclusory assertions. Id. at p. 19. While the Petitioner voices an equal protection claim, we are unaware of any disparate treatment of the Kakaygeesicks which would demonstrate a denial of equal protection. - 30 -

10

43 C.F.R. §4.210; 25 C.F.R. §§15.104(a)(8), and 15.202(f).11 While we would not be wholly unable to react to the allowance of such a regulatory requirement, as the
11

In pertinent part, 43 C.F.R. §4.210 provides as follows: The probate of a trust estate before an OHA deciding official will commence when the probate specialist or BIA deciding official files with the OHA deciding official all information shown in the records relative to the family of the deceased and his or her property. The information must include the complete probate package described in 25 CFR 15.104 and 15.202 and any other relevant information. * * *.

In turn, 25 C.F.R. §15.104(a)(8) provides, in relevant part, as follows: (a) You should provide us with the following documents and information before we can begin to process the probate package. * (8) * *

All original or certified copies of wills and codicils, and any revocations. * * *

25 C.F.R. §15.202(f) provides as follows: The complete probate package must contain all of the following: * (f) * *

All original or certified copies of wills, codicils and any revocations of wills or codicils. - 31 -

Supreme Court explained, in Federal Express Corp. v. Holowecki, --- U.S. ---, 128 S.Ct. 1147, 1155 (2008): Just as we defer to an agency's reasonable interpretations of the statute when it issues regulations in the first instance, see Chevron [U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)], the agency is entitled to further deference when it adopts a reasonable interpretation of regulations it has put in force. See Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Under Auer, we accept the agency's position unless it is "`"plainly erroneous or inconsistent with the regulation."'" Id., at 461, 117 S.Ct. 905 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). See also, Solis v. Summit Contractors, Inc., 558 F.3d 815, 825 n. 5 (8th Cir. 2009); Culpepper v. Schafer, 548 F.3d 1119, 1122 (8th Cir. 2008); Izaak Walton League of America, Inc. v. Kimbell, 516 F. Supp.2d 982, 991 (D. Minn. 2007). We find nothing about the ALJ's implicit interpretation of the referenced regulations to be either "plainly erroneous or inconsistent with the regulation," and therefore, on this Record, that interpretation is controlling. Culpepper v. Schafer, supra at 1122, quoting Auer v. Robbins, supra at 461.12 As the Respondent urges, the absence of an original of George's Will, or a certified copy of the original, may intimate that George elected to revoke, or destroy the original, after it was executed and witnessed. See, 43 C.F.R. §4.260(c)("The testator may, at any time during his or her lifetime, revoke or her his will by a subsequent will or other writing executed with the same formalities as are required in the case of the execution of a will, or by physically destroying the will with the (continued...) - 32 12

Nor can we legitimately find that further administrative procedures would have been futile, as there may well be adjudicated exceptions, by the IBIA, to the requirement that an original, or certified copy of a will, be included in the "probate package." Although our research on the subject has not been exhaustive, we have uncovered one decision by the IBIA, in which the original of a will was not found, and yet, under the unique circumstances there, a copy of the will was determined to be legitimate, because "there was insufficient evidence to show that [the testator] ever revoked that will." See, Estate of Arnita Lois Parton Gonzales, 35 IBIA 207, 212, 2000 WL 1512386 at *5 (IBIA, September 27, 2000). Accordingly, we can make no presumption, let alone a finding, that, had the Petitioner pursued the issue at the Administrative Hearing, and perfected an appeal of the ALJ's Order to the IBIA, the Petitioner's effort would have been futile.

(...continued) intention of revoking it."). Notably, neither the Petitioner, nor anyone else at the Administrative Hearings, affirmatively sought to prove the legitimacy of the copy of George's Will which is in the Record. While the absence of the original Will from the files of the Red Lake Agency is problematic, as there was no record that George had requested that Will be returned to him, we cannot say, on this Record, that the ALJ's rejection of the copies in the Record was either clearly erroneous, or contrary to the applicable regulations. - 33 -

12

Finally, we conclude that the legitimacy of George's Will, as it was contained in the Record, involved a mixed question of fact and law, and was not necessarily determinable as a matter of law, and therefore, that the failure of the Petitioner to exhaust his administrative remedies should not be excused. "Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency." McCarthy v. Madigan, 503 U.S. 140, 145 (1992).13 As the Court explained: As to the first of these purposes, the exhaustion doctrine recognizes the notion, grounded in deference to Congress' delegation of authority to coordinate branches of Government, that agencies, not courts, ought to have primary responsibility for the programs that Congress has charged them to administer. Exhaustion concerns apply with particular force when the action under review involves the exercise of the agency's discretionary power or when the agency proceedings in question allow the agency to apply its special expertise. * * * The exhaustion doctrine also acknowledges the common-sense notion of dispute resolution that an agency ought to have an opportunity to "In actuality, the specific holding in McCarthy v. Madigan, 503 U.S. 140 (1992), is inapplicable to our determination, as that holding has been overruled by the amendments to the Prison Litigation Reform Act ("PLRA"), which were enacted in 1996, and which made exhaustion mandatory, rather than discretionary, as it had been when the Supreme Court decided that case." Ross v. Felstead, 2006 WL 2707344 at *6 n. 5 (D. Minn., September 19, 2006)[citations omitted]. Nevertheless, as an exposition of the salutary purposes of administrative exhaustion, McCarthy continues to have legitimacy and force. - 34 13

correct its own mistakes with respect to the programs it administers before it is haled into federal court. Correlatively, exhaustion principles apply with special force when "frequent and deliberate flouting of administrative processes" could weaken an agency's effectiveness by encouraging disregard of its procedures. * ** As to the second of the purposes, exhaustion promotes judicial efficiency in at least two ways. When an agency has the opportunity to correct its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be avoided. * * * And even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context. Id. at 145-46 [citations omitted]. Each of the beneficial purposes of administrative exhaustion is advanced by enforcing such a requirement here. Congress invested the BIA with the responsibility, in the first instance, to resolve matters involving the probate of Indian wills.14 Allowing the "The Department [of the Interior] has consistently held that the execution and interpretation of a will disposing of trust or restricted property are questions of Federal, not state, law." In re Estate of Matilda Covington, 450 F.3d 917, 924 (9th Cir. 2006), quoting Estate of Florence Night Chase, 38 IBIA 188, 192 (November 5, 2002)[citations omitted]; see also, Estate of Elizabeth Frank Greene, 3 IBIA 110, 120 (September 19, 1974)("The Department has long adhered to the rule that state laws have no application in Indian trust probate proceedings involving wills."); Pahdopony v. United States Dep't of the Interior, 16 F.3d 417, 1994 WL 13890 at *1 (10th Cir., January 20, 1994), cert. denied, 513 U.S. 808 (1994)("The construction of Indian wills (continued...) - 35 14

BIA to exercise that responsibility not only allows the special expertise of that agency to address frequently complex, and technical issues, that are firmly bound in Indian, and Federal administrative law, but also allows the Court to be more fully informed, on any subsequent administrative review, by the agency's compiling of a fully explored Administrative Record. See, e.g., Weinberger v. Salfi, supra at 765 (exhaustion may allow agency "to compile a record which is adequate for judicial review."). By failing to exhaust the remedies available to him, the Petitioner unnecessarily seeks to tax the efficiencies of this Court by immersing the process in fact-specific allegations which were not previously presented to the BIA for proper redress. In sum, we conclude that the Petitioner's failure to exhaust the remedies that were available to him in the BIA, bars us from further considering his challenge to the ALJ's Order Determining Heirs and Decree of Distribution in the Estate of George Angus. B. The ALJ's Recommended Decision, and the IBIA's Order Adopting Recommended Decision as Modified.
14

(...continued) is governed by federal law."), citing Estate of Garcia, 14 IBIA 106, 1986 WL 80101 at *1 (1986). Plainly, the IBIA holds the requisite expertise to knowledgeably resolve questions involving the probate of Indian wills. - 36 -

As we have noted, the ALJ determined that Everlasting Sky intended to transfer his title to Allotment No. 3 to his daughter, Mary. The Petitioner contests that finding, and also challenges the IBIA's subsequent determination that the failure of the Petitioner's father, as well as the failure of the Petitioner, to challenge the transfer of that title on a timely basis, warranted a denial of the Petitioner's appeal. There is no dispute, however, that the Petitioner properly exhausted his administrative remedies with respect to the resolution of the title transfer issue by the ALJ, and by the IBIA. 1. Standard of Review. "It is a basic principle of administrative law that

review of administrative decisions is `ordinarily limited to consideration of the decision of the agency * * * and of the evidence on which it was based." Robinette v. Comm'r of the Internal Revenue Service, 439 F.3d 455, 459 (8th Cir. 2006), quoting United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-15 (1963). "`A federal court is confined to the administrative record in deciding any appeal under the APA,' Maxey v. Kadrovach, 890 F.2d 73, 77 (8th Cir. 1989)[, cert. denied, 495 U.S. 933 (1990)]; see also Newton County Wildlife Assoc. v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998), in order to `preclude[] the reviewing court from conducting a de novo trial and substituting its opinion for that of the agency.'" South Dakota v. United States Dep't of the Interior, 423 F.3d 790, 802-03 (8th Cir. 2005), cert. denied, 549 U.S. 813 - 37 -

(2006), quoting Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004). As a consequence, "[t]he task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. §706, to the agency decision based on the record the agency presents to the reviewing court." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)[citation omitted]. "However, certain exceptions have been carved from the general rule limiting APA review to the administrative record," but "[t]hese exceptions apply only under extraordinary circumstances, and are not to be casually invoked unless the party seeking to depart from the record can make a strong showing that the specific extra-record material falls within one of the limited exceptions." Voyageurs Nat'l Park Ass'n v. Norton, supra at 766, citing Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir. 1988), opinion amended, 867 F.2d 1244 (9th Cir. 1989). "When there is `a contemporaneous administrative record and no need for additional explanation of the agency decision, "there must be a strong showing of bad faith or improper behavior" before the reviewing court may permit discovery and evidentiary supplementation of the administrative record.'" Id., citing Newton County Wildlife Assoc. v. Rogers, supra at 807-08, quoting, in turn, Citizens to Preserve - 38 -

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, supra at 105; see also, South Dakota v. United States Dep't of the Interior, supra at 803. Here, the Petitioner has submitted for our review a number of documents, many of which are not a part of the Administrative Record. See, Docket Nos. 1-2, 1-3, 5-2, 5-3, 5-4, 5-5, 5-6, 30-2, 30-3, 30-4, 30-5, and 30-6. The Petitioner has not made the "strong showing" "that the record is so incomplete as to preclude effective judicial review or that there is clear bad faith or improper behavior," as would satisfy the "extraordinary circumstances" standard for supplementing the Administrative Record. South Dakota v. United States Dep't of the Interior, supra at 803. While the Petitioner voices strong criticism of the ALJs, and of a variety of participants, and witnesses, who testified during the Administrative Hearing, his accusations are predicated on his suspicions and surmise, and not upon competent evidence, such as required to make the requisite "strong showing." As a consequence, to the extent that the referenced documents are extra-Record, we give them no weight, since they were not submitted to the BIA for its consideration, and our obligation is to review the Record developed by that agency. See, Camp v. Pitts, 411 U.S. 138, 142 (1973).

- 39 -

"Under the APA, the Court will set aside agency action that is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law * * *." Sierra Club v. Kimbell, 595 F. Supp.2d 1021, 1025 (D. Minn. 2009), quoting Title 5 U.S.C. §706(2)(A). "An agency's decision or action is arbitrary and capricious if `the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Id., quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). "We are to make a searching inquiry into the facts, examining the full administrative record, 5 U.S.C. §706, but we do not substitute our judgment for that of the agency, South Dakota v. Ubbelohde, 330 F.3d 1014, 1031 (8th Cir. 2003)[, cert. denied, 541 U.S. 987 (2004)], even if the evidence would have also supported the opposite conclusion." South Dakota v. United States Dep't of the Interior, supra at 799, citing Harrod v. Glickman, 206 F.3d 783, 789 (8th Cir. 2000). "We ask whether the agency "`articulate[d] a rational connection between the facts found and the choice made.'" Id., quoting South Dakota v. Ubbelohde, supra at 1031; see also, Cermak v. - 40 -

Norton, 322 F. Supp.2d 1009, 1014 (D. Minn. 2004), aff'd, 478 F.3d 953 (8th Cir. 2007)("The court's sole duty is to determine whether there is a rational connection between the facts and the agency's action."), citing First Nat'l Bank v. Smith, 508 F.2d 1371, 1376 (8th Cir. 1974), cert. denied, 421 U.S. 930 (1975). "Further, when a dispute is primarily factual and `requires a high level of technical expertise,' resolution of the dispute `is properly left to the informed discretion of the responsible federal agencies.'" Sierra Club v. Kimbell, supra at 1026, quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976). "We will not try to identify failures in clarity or detail, [Motor Vehicle Mfrs. Ass'n of the United States, Inc. v.] State Farm [Mut. Auto. Ins. Co.,], 463 U.S. [29], 43 [(1983)] * * *, and will reverse `only when there is no rational basis for the policy choice.'" South Dakota v. United States Dep't of the Interior, supra at 800, quoting South Dakota v. Ubbelohde, supra at 1032. "In other words, the agency need not exhaustively analyze every factor, but must base its determination `upon factors listed in the appropriate regulations,' and must use a `reasonable interpretation of the regulation and the statute' in reaching its conclusion." Id., quoting Harrod v. Glickman, supra at 788. In the final analysis, "[i]f an agency's determination is supportable on any rational basis, we must uphold it." Voyageurs Nat'l Park Ass'n v. Norton, supra at - 41 -

763, citing Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1184 (8th Cir. 2001), cert. denied, 535 U.S. 927 (2002). "The burden is on the plaintiff to prove that the agency's action was arbitrary and capricious." South Dakota v. United States Dep't of the Interior, supra at 800, citing United States v. Massey, 380 F.3d 437, 440 (8th Cir. 2004). 2. Legal Analysis. As do some attorneys, the Petitioner has taken a

"shotgun" approach in this appeal, haphazardly firing objections in most any direction in the earnest hope that one may hit a target.15 The Petitioner's shots largely are
15

As the Supreme Court has wisely observed: Focusing on a small number of key points may be more persuasive than a shotgun approach. As one expert advises: "The number of issues introduced should definitely be restricted. Research suggests that there is an upper limit to the number of issues or arguments an attorney can present and still have persuasive effect." R. Matlon, Opening/Closing Arguments 60 (1993)(citing Clader, Insko, & Yandell, The Relation of Cognitive and Memorial Process to Persuasion in a Simulated Jury Trial, 4 J. Applied Social Psychology 62 (1974)). Another authority says: "The advocate is not required to summarize or comment upon all the facts, opinions, inferences, and law involved in a case. A decision not to address an issue, an opponent's theory, or a particular fact should be based on an analysis of the importance of that subject and the ability of the advocate and the opponent to explain persuasively (continued...) - 42 -

misdirected, and therefore, widely miss their mark, since his procedural and substantive objections are principally directed at the ALJ's Recommended Decision, and not at the IBIA's Order Adopting Recommended Decision, as Modified, which constitutes the final decision of the BIA that is before us for review. As we have detailed, the ALJ's Recommended Decision found, by a preponderance of the evidence, A.R. at 23, citing Estate of Aaron Francis Walter, 16 IBIA 192, 198 (1988), that "Everlasting Sky understood and did, in fact, intend to gift deed Red Lake Allotment No. 3 to his daughter Mary Angus." A.R. at 24. As the ALJ also determined, "[t]he record further lacks any legitimate evidence suggesting in any manner or form that the deed was not a legitimate transfer of that property." A.R. at 24-25. Therefore, the ALJ "recommend[ed] a finding that Red Lake Allotment No. 3 is correctly included in [Albert's and George's] property inventories." A.R. at 25. (...continued) the position to the fact finder." R. Haydock & J. Sonsteng, Advocacy: Opening and Closing §3.10, p. 70 (1994). Yarborough v. Gentry, 540 U.S. 1, 5 (2003); see also, Gagan v. American Cablevision, Inc., 77 F.3d 951, 955 (7th Cir. 1996)("Losers in a trial can go hunting for relief on appeal with a rifle or a shotgun," and "[t]he rifle is better," "[a]s * * * the shotgun approach may hit the target with something but it runs the risk of obscuring significant issues by dilution."), citing United States v. Levy, 741 F.2d 915, 924 (7th Cir. 1984), cert. denied, 469 U.S. 1021 (1984). - 43 15

In its Order Adopting the ALJ's Recommended Decision, the IBIA reiterated the evidence which reflected a transfer of title to Allotment No. 3, from Everlasting Sky to Mary, but the IBIA expressly chose to base its adoption of the conclusion reached by the ALJ, not upon the factual details of that transfer, but upon an independent, "lapse of time" ground, holding that the Petitioner, and his father, failed "to pursue any claim to Allotment No. 3 with due diligence." A.R. at 627-28. Specifically, the IBIA recognized that rescission of a deed, based upon forgery, or upon an impermissible and material alteration, would survive to the heirs of the grantor, but subject to a caveat -- namely, "Claimants and their heirs may be estopped where they have slept on their rights and have failed to exercise diligence in investigating and pursuing their claims." Cancellation of Instruments §40 (2000). Accordingly, to the extent that the Petitioner challenges the ALJ's Recommended Decision, because the ALJ was supposedly biased, because Leaf and Beaulieu were purportedly perjurers, or because of myriad other equally unsupported accusations, the challenges are immaterial to our review of the IBIA's Order Adopting Recommended Decision, as Modified, which was not predicated on the evidence that the Petitioner regards as perjured, or tainted by any purported bias on the part of the - 44 A.R. at 628, citing 13 Am.Jur.2d

ALJs.16 As a result, we do not further address, with the exception of those that are We cite these representative examples as illustrative of the Petitioner's approach. In the Petitioner's view, the ALJ was supposedly biased because he informed the Petitioner that he could not testify when questioning witnesses. See, Memorandum in Opposition, Docket No. 30, at pp. 8-12. As framed, there is no