OVERVIEW OF DECISIONS OF THE INTERIOR BOARD OF INDIAN APPEALS
REGARDING THE GOVERNMENT-TO-GOVERNMENT RELATIONSHIP
AND OTHER TRIBAL GOVERNMENT ISSUES

CONTENTS

Introduction I. The BIA Must Give Deference to Tribal Interpretation of Tribal Governing Documents II. Review of Tribal Legislation is no Broader than is Permitted by the Tribe's Governing Documents III. Standing to Challenge Tribal Action IV. Challenges to Tribal Action Should be Heard in Tribal Forums V. Indian Civil Rights Act Conclusion: "The Rules" INTRODUCTION The administration of the government-to-government relationship with tribal governments during intra-tribal disputes is the Bureau of Indian Affairs most complex and delicate work and is largely a thankless task. When intra-tribal disputes erupt, the Bureau frequently finds itself in the eye of a storm of swirling external forces and with very little authority to affect the process or outcome. The Bureau must patiently await the outcome of tribal processes, while at the same time it is typically receiving pressure for a recognition decision from other federal agencies, the competing tribal factions, law enforcement authorities, and financial institutions who are being asked to release tribal funds to multiple parties all claiming to be the legitimate tribal government. It must also ensure that tribal/federal contracts are being properly administered. The volume of decisions noted below are proof that however the Bureau ultimately weighs in on these disputes, the decision is likely to be appealed. The number and intensity of the disputes is increasing and in many instances is either directly or indirectly related to the tribes' gaming operations. They either arise from disputes about how to run the operation, how to spend the proceeds or who is entitled to the proceeds, and may be driven by the fact that gaming proceeds fund multiple attorneys for each side, making the dispute more complex, longer in duration, more contentious, and tends to bring them to a higher public profile. These disputes are consuming more and more Bureau staff resources, at a time when particularly in those areas with higher numbers of Self-Governance tribes, the Bureau has fewer resources available. One of the difficulties for the Bureau is that the disputes are completely individual and handling of them requires detailed knowledge of the particular tribe's governing documents, tribal procedure, and a complete record of and familiarity with tribal action affecting the dispute. It is my experience that intra-tribal disputes consume an extraordinary amount of Bureau and Solicitor's Office staff time. Handling these disputes also requires the Bureau to be more than passingly familiar with practice and procedure before the Interior Board of Indian Appeals (IBIA). In 1989 the IBIA prepared training materials for Bureau officials regarding IBIA practice and procedure. If those of you who are new to the Bureau since 1989 have not seen it or reviewed it, I would highly recommend doing so. While the disputes are very individual, they are susceptible to some general rules that provide the outer framework for the government-to-government relationship. I have reviewed the last several years of IBIA decisions and have attempted to distill from them what I believe are the general rules that can be drawn from the numerous decisions of the IBIA on appeals arising from intra-tribal disputes. I have also included some decisions which, although not arising from an intra-tribal dispute, enunciate a principle of the government-to-government relationship which contributes to the Bureau's decision making process when it must make a recognition decision during or after a dispute or its more routine function of reviewing tribal legislation. Please bear in mind that the decisions cited in the following material are distilled to the particular rule of law which I deemed most noteworthy for purposes of this outline. The rules noted for each case are very much fact driven and fact specific. I note the cases in order to make you aware that they exist. If you see a case which appears to enunciate a principle of law which may be applicable to a decision pending before you, please follow it up with a discussion with your local Solicitor's Office or read the case in its entirety. I. THE BUREAU MUST GIVE DEFERENCE TO TRIBAL INTERPRETATION OF TRIBAL GOVERNING DOCUMENTS Tribes have primary authority to interpret their own law and where the tribe has put forth a reasonable interpretation of its law, the Bureau must defer to that interpretation. Paula Brady, Leta K. Jim, and Patricia Stevens v. Acting Phoenix Area Director, 30 IBIA 294 (1997); Shakopee Mdewakanton Sioux Community v. Acting Area Director, 27 IBIA 163 (1995). Neither the Bureau nor the Solicitor's Office should undertake to interpret tribal law without first considering whether the tribe had arrived at an interpretation of its own. Paul Brady. The Bureau should avoid interpreting tribal law unless there is a clear necessity for it to do so. Keweenaw Bay Indian Community v. Minneapolis Area Director, 29 IBIA 72 (1996); Sandra Maroquin v. Anadarko Area Director, 29 IBIA 45 (1996); Parmenton Decorah, et al. v. Minneapolis Area Director, 22 IBIA 98 (1992). In furthering the doctrines of tribal sovereignty and self-determination, the Bureau recognizes the right of tribes to interpret their own laws and gives deference to a tribe's interpretation of its own law. San Manuel Band of Mission Indians v. Sacramento Area Director, 27 IBIA 204 (1995); Donna Van Zile & James Crawford v. Minneapolis Area Director, 25 IBIA 163 (1994); Henry P. Rhatigan v. Muskogee Area Director, 21 IBIA 258 (1992); United Keetoowah Band of Cherokee Indians in Oklahoma v. Muskogee Area Director, & Joe Grayson, Jr., & Pam Thurman Jumper, Muskogee Area Director, 22 IBIA 75 (1992); James C. Greendeer v. Minneapolis Area Director, 22 IBIA 91 (1992). Once the tribe has offered a reasonable interpretation of its own law, the Bureau must defer to it even though the Bureau may also offer an equally reasonable interpretation of the tribal law. San Manuel Band of Mission Indians v. Sacramento Area Director, 27 IBIA 204 (1995) citing Shakopee Mdewakanton Sioux Community v. Acting Minneapolis Area Director, 27 IBIA 163 (1995). "Where a Secretarial election is to be conducted, BIA has the authority to make an independent interpretation of tribal law concerning voter eligibility, although it should give deference to the tribe's reasonable interpretation of its own law in this regard." Prairie Island Community v. Minneapolis Area Director, 25 IBIA 187, 192 (1994). The Bureau should refrain from interpreting tribal law unless it must do so in order to make a decision which it is required to make in furtherance of its government-to-government relationship with the tribe. Sandra Maroquin v. Anadarko Area Director, 29 IBIA 45 (1996) citing Parmenton Decorah. The Bureau may employ the general rules of statutory construction when it reviews or interprets tribal constitutions or ordinances. Shakopee, 27 IBIA 163 (1995). When it must interpret tribal law the Bureau should do so in a manner which avoids the absurd result of rendering the tribal government totally inoperative. Carris LaRocque, Melvin Lenoir, Bruce Morin, Lee Gourneau, Douglas DeLorme and Raphael DeCoteau v. Aberdeen Area Director, 29 IBIA 201 (1996). Review of tribal ordinances, even though required by a tribal constitution, is an intrusion into tribal self-government. Review should therefore be undertaken in such a way as to avoid unnecessary interference with tribal self-government. Cheyenne River Sioux Tribe v. Aberdeen Area Director, 24 IBIA 55 (1993); Ottawa Indian Tribe of Oklahoma v. Muskogee Area Director, 24 IBIA 92 (1993); Wallace W. Wells, Jr., Randy Shields, & Leonard Pease, Jr., v. Acting Aberdeen Area Director, 24 IBIA 142 (1993); Ute Indian Tribe of the Uintah & Ouray Reservation v. Phoenix Area Director, 21 IBIA 24 (1991). The BIA properly disapproves a tribal ordinance found to be in conflict with Federal law. White Mountain Apache Tribe v. Acting Phoenix Area Director, 21 IBIA 151 (1992). A lack of absolute legal certainty as to whether the ordinance conflicts with Federal law, however, weighs in favor of approval. Cheyenne River Sioux Tribe, 24 IBIA 55 (1993). The Bureau properly declines to alter the established manner in which it has been dealing with a tribal government in the absence of definitive evidence that such a change was desired by the tribal membership, as opposed to being desired by a faction of the tribal council which is attempting to control the tribal government's affairs during a serious internal crisis. Frederick Tomah, Danya Boyce, Sally Lindsay, and Anthony Tomah v. Acting Eastern Area Director, 30 IBIA 92 (1996), Reconsideration Denied 30 IBIA 90 (1996). The Bureau should decline to hold fact-finding hearings in such matters because such hearings would constitute not only an unwarranted intrusion into tribal government, but would be a "retreat into the old days of paternalism." Webster Cusick v. Acting Eastern Area Director, 31 IBIA 255 (1997). II. REVIEW OF TRIBAL LEGISLATION IS NO BROADER THAN IS PERMITTED BY THE TRIBE'S GOVERNING DOCUMENTS Where Secretarial review of tribal legislation is required by a tribe's constitution, and is not required by Federal law, the Secretary's review authority is only as broad as the tribal constitution provides. Where the constitution establishes a time limit for Secretarial review, the Secretary lacks authority to act on the ordinance once the review period has expired. Zinke & Trumbo, Ltd; Enron Oil & Gas Co.; Quinex Energy Corp.; Wasatch Well Service, Inc.; Geoscout Land & Title Co.; Payne Land Services; Quester Pipeline Co. & Gary-Williams Energy Corp. v. Phoenix Area Director, 27 IBIA 105 (1995). The Secretary may not withdraw his approval after the review period has expired. Pawnee Tribe of Oklahoma v. Anadarko Area Director, 26 IBIA 284 (1994). "BIA's authority to review and approve tribal legislation normally derives from tribal law." Pawnee at 288. When the period of review set forth in the tribal law has passed the Secretary no longer has any authority to act on an ordinance. "A necessary consequence of this limitation is that Secretarial approval given during the 90-day period cannot be revoked after the period has expired." Pawnee at 289. A tribal member may not appeal the enactment or application of tribal legislation to the IBIA. The IBIA is not a court of general jurisdiction and does not have authority to review actions taken by duly constituted tribal governments. Maureen L. Secrest v. Crow Tribe of Montana, 28 IBIA 98 (1995); Big Horn Business Association v. Acting Billings Area Director, 28 IBIA 113 (1995). The question of a tribal council's authority to promulgate and enforce an ordinance is a matter of tribal law which must be raised in a tribal forum. Ronald Johnson and Geraldine Walker v. Acting Minneapolis Area Director, 28 IBIA 104 (1995). III. STANDING TO CHALLENGE TRIBAL ACTION Individual members of the tribe have no standing to bring an appeal for the tribe appealing a decision of an Area Director, approving or disapproving tribal action, simply because he or she believes the ordinance is or is not in the best interest of the tribe. Dana Cassadore v. Acting Phoenix Area Director, 29 IBIA 280 (1996) citing Swab v. Sacramento Area Director, 25 IBIA 205 (1994) and Stops v. Billings Area Director, 23 IBIA 282 (1993); Kimberly Amundsen v. Minneapolis Area Director, 28 IBIA 1 (1995); Feezor v. Minneapolis Area Director, 25 IBIA 296 (1994). The fact that the appellant may allege a violation of his or her civil rights does not create standing. "Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Appellants may not bypass a tribal forum in order to allege violations of the Indian Civil Rights Act before the IBIA. Kimberly Amundsen. An agency of the tribal government does not have standing to challenge BIA approval or disapproval of tribal legislation unless it is granted that authority under tribal law. Shoshone-Bannock Tribal Tax Commission v. Acting Portland Area Director, 30 IBIA 185 (1997). Appellants correctly perceive that the Board's decisions in this area are grounded in the Federal policy of respect for tribal self-government. See, e.g., Feezor, 25 IBIA 298. In furtherance of this policy, the Board has recognized that individuals whose primary complaint is with a tribal enactment belong in a tribal forum rather than before this Board. E.g., Hunt, 27 IBIA 178. At the same time, the Board recognizes that a tribe whose enactment is the subject of a BIA decision has a right to appeal the BIA decision to the Board. E.g., Shakopee Mdewakanton Sioux Community v. Acting Minneapolis Area Director, 27 IBIA 163 (1995). The Board uses the term "standing" to describe the distinction between appellants who are entitled to pursue an appeal of a particular BIA decision before the Board and those who are not so entitled. While the Board's "standing" analysis in its tribal government cases may differ from the analysis in cases such as Flast v. Cohen and Baker v. Carr (fn immediately below in text) it is well-grounded in the decisions of the Supreme Court which are most relevant to the issue here. See, e.g., Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) and National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985). (fn) There is, of course, a substantial difference between the posture of the cases addressed in these Supreme Court decisions and the posture of the case presently before the Board. In Flast v. Cohen and Baker v. Carr, rights claimed under Federal law were sought to be enforced in Federal court. Here, appellants are seeking to enforce rights claimed under tribal law in a Federal forum. Debra Williamson-Edwards v. Acting Minneapolis Area Director, 29 IBIA 261 (1996). Go to Part IV Return to Table of Contents