CHAPTER 4 ACCESS TO INDIAN LAND AND TITLE RECORDS: FREEDOM OF INFORMATION, PRIVACY, AND RELATED ISSUES
| Jurisdiction | United States |
(May 1999)
ACCESS TO INDIAN LAND AND TITLE RECORDS: FREEDOM OF INFORMATION, PRIVACY, AND RELATED ISSUES
Snell & Wilmer L.L.P.
Salt Lake City, Utah
Christopher D. Jones, Attorney
Snell & Wilmer L.L.P.
Salt Lake City, Utah
All rights reserved.
§ 4.01 Introduction
§ 4.02 Indian Land and Title Records
[1] BIA Regulations and Policy
[2] BIA Title Repositories
§ 4.03 The Privacy Act
[1] Analytical Matrix
[2] The Privacy Act-An Overview
[3] System of Records
[a] Indian Land Records
[b] Indian Land Leases
[c] Routine Uses
[d] Direct and Regular Access
§ 4.04 The Freedom of Information Act
[1] FOIA Amendments
[a] The 1974 Amendments
[b] The 1986 Amendments
[c] The 1996 Amendments
[2] FOIA Uses and Abuses
[3] Records Covered by FOIA
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[4] The FOIA Request-Form and Mechanics
[a] Request Format
[b] Agency Response Format
[5] The FOIA Exemptions
[a] The Statutory Exemptions
[b] Exemption 6-Personnel, Medical, or Similar Files
[i] Similar Files
[ii] Clearly Unwarranted Invasion of Personal Privacy
[iii] FOIA Applies to Individuals Only
[iv] FOIA and Deceased Persons
[v] Disclosure of Reasonably Segregable Nonexempt Material
[vi] BIA Land and Title Records
[c] Exemption 9-The Geological Exemption
§ 4.05 FOIA Appeals
[1] Intra-Agency Appeals
[2] FOIA Suits and the Wrongful Withholding Doctrine
[a] Agency Records
[b] Withholding
[c] Wrongful
§ 4.06 Conclusion
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A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.
— James Madison1
§ 4.01 Introduction2
Access to government records is as fundamental to democratic governance as the inalienable endowments long part of the Bill of Rights. It augments popular control of government.3 It encourages agency responsibility.4 It counters bureaucratic tendencies toward secrecy by celebrating the primacy of public interest in disclosure.5 It provides a check against that citizen servant who might be inclined to deliberately falsify facts.6 It is memorialized in the Freedom of Information Act of 1966. But public access must be balanced against another inalienable right, that of a citizen's right to privacy and the shielding of personal information collected in the normal and accepted course of public business. Indeed, such information is shielded from public access under limited circumstances by the provisions of the Privacy Act of 1974. Department of the Interior ("DOI") regulations and these federal informational statutes govern public access to Indian land and title records.
This article addresses the juxtaposition of the two acts in the context of Bureau of Indian Affairs ("BIA") efforts to balance the underlying policies and the obstacles encountered by the mineral extraction industries caught in the inherent clash of the philosophical titans. Are Indian land and title records subject to the Freedom of Information Act process in the first instance? Are these files shielded from public access by the Privacy Act? If access is open, should it be direct or filtered through document screening by agency functionaries? If open, should access be subject to the time limitations imposed? Should the presence of exempted material in one portion of the record or document exempt access to the whole?
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§ 4.02 Indian Land and Title Records.
The avowed BIA policy is open and direct access to Indian land and title records, subject to the restrictions, if any, imposed by the federal informational statutes.
[1] BIA Regulations and Policy.
The BIA has expressly stated in its regulations the importance of access of the public to Indian land titles and records. The pertinent language reads as follows:
The usefulness of [Indian title records] depends in large measure on the ability of the public to consult the records contained therein. It is therefore, the policy of the Bureau of Indian Affairs to allow access to land records and title documents unless such access would violate the Privacy Act ... or other law restricting access to such records, or there are strong policy grounds for denying access where such access is not required by the Freedom of Information Act.7
Although this provision is found within the implementing regulations for the Bureau of Indian Affairs Land Titles and Records Offices, it is abundantly clear that the public policy has, or should have, application to area, agency, and field offices.
The authors' thesis is that based upon the plain language of the regulations, access to Indian land and title records is not a Freedom of Information Act process in the first instance, requiring a formal request and agency response.8 Rather, it is access subject only to the prohibitions of the Privacy Act and possible exemptions of the Freedom of Information Act.
[2] BIA Title Repositories.
The Bureau of Indian Affairs Land Titles and Records Office ("BIA Titles Office") is an official repository of Indian titles.9 Records properly "recorded" with the BIA Titles Office provide constructive notice of their contents.10 Records maintained at the BIA Titles Offices include, but are not limited to, the older land indices; computerized Historical Tract Records ("HTR's"); Tract Status Reports ("TSR's") (Form 188) and their newer, computerized counterparts the Title Status Reports; probate files; probate cards; Individual/Tribal/Interest reports ("ITI's"); Owner Document Reports ("ODR's"); land ownership plats; mineral ownership plats; and the reception (entry) books.
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The area and agency offices are, for all intents and purposes, the primary custodians of Indian land titles and records, as they typically generate, collect, and maintain numerous land titles and records. Those records include, but are not limited to, the surface and mineral plat books; Allotment & Estate Cards; IRMS Owner Status Reports (computerized records); the allotment files containing the Indian patents, restricted deeds, probates, encumbrances, and some mineral lease accounting data; lease files; communitization and unitization files; and lessee corporate records.
Agency superintendents are responsible for the prompt submittal of title documents to the BIA Titles Offices for recording.11 Administrative Law Judges are to submit probate decisions directly to the BIA Titles Offices for the same purpose.12
Examinations disclose mineral ownership discrepancies between those reported on the records of the BIA Titles Office and those reported by the area or agency offices. The majority of discrepancies between the BIA Titles Office and area and agency records result from the failure of the area or agency offices to forward probates and other important documents to the BIA Titles Office for "recording." Other discrepancies stem from the failure of the BIA area and agency offices on one reservation to forward probates and other important documents affecting interests of their tribal members to those area and agency offices supervising the reservation in which the lands are located. An example of this discrepancy might be when a member of the Navajo Nation owning interests in the Uintah & Ouray Reservation (Northern Utes) dies, leaving heirs who are enrolled as members of the Northern Ute Tribe, and the Navajo Area Office fails to report the death and probate to the Uintah & Ouray Agency. Yet other discrepancies arise from recent transactions (and deaths) noted at the area and agency offices and not yet reported to the BIA Titles Office. Finally, discrepancies inevitably result from some human errors, largely due to errors in data entry. Unfortunately, discrepancies arise much more frequently in BIA land and title records than in counterpart records maintained by the Bureau of Land Management, state land offices, and county records. Consequently, the need for direct and unfettered access to Indian land and title records takes on a criticality surpassing that of other title repositories.
Due diligence windows, drilling and permitting deadlines, rig availability, budget constraints, and management imperatives dictate immediate access to Indian land records. If access were a Freedom of Information Act process, the title examiner would frequently find herself in the costly and time-consuming maze of request, denial, and appeal. One's ability to navigate agency road blocks quickly and successfully depends in some measure upon an appreciation for the theoretical underpinnings of federal informational statutes and the facility to articulate them convincingly in a nose-to-nose confrontation with the records custodian. Most deals and drilling programs simply do not provide for protracted, delicate pas de deux, or contemplate the expense of emergency judicial intervention to open agency records to the light of day. Those seeking access must be able to negotiate their way into the records on the spot.
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§ 4.03 The Privacy Act.
[1] Analytical Matrix.
This analysis begins with a discussion of the Privacy Act of 1974. At first blush, one might think the authors have the cart before the proverbial horse, beginning at the end with the Privacy Act rather than at the beginning with the Freedom of Information Act. The Freedom of Information Act ("FOIA"),13 after all, establishes the underlying federal policy that agency records are open to the public, subject to limited exemptions.14 Moreover, it is true that Congress enacted the Privacy Act of 1974 as a counterpoint to...
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