"It is a well established principle of Federal law that intra-tribal disputes should be resolved in tribal forums. This rule applies with particular force to intra-tribal disputes concerning the proper composition of a tribe's governing body." Darrell Wadena, Tony Wadena, Jerry Rawley, Paul Williams, Rick Clark, and Doyle Turner v. Acting Minneapolis Area Director, 30 IBIA 130 (1996) citing Bucktooth v. Acting Eastern Area Director, 29 IBIA 144, 149 (1996).

The same principle is applicable to inter-tribal disputes. "As part of the well-established Federal policy of respect for tribal self-government, the Department of the Interior should, under normal circumstances, allow the tribes involved in an inter-tribal dispute an opportunity to resolve the matter among themselves. Keweenaw Bay Indian Community v. Minneapolis Area Director, 29 IBIA 72 (1996).

Intra-tribal controversies concerning the validity of tribal council actions are properly resolved in tribal courts or other tribal forums. Florence E. Adams v. Billings Area Director, 28 IBIA 20 (1995); Wallace W. Wells, Jr. v. Acting Aberdeen Area Director, 24 IBIA 142 (1993). The Bureau must implement the Federal commitment to tribal self-determination, which includes a policy of respect for tribal courts. Larry Martin v. Billings Area Director, 19 IBIA 279 (1991).

When an Indian tribe has resolved an election dispute, or other internal matter, neither the Bureau nor the IBIA may disregard the resolution reached by that forum. Hilda Smoke v. Acting Eastern Area Director, 30 IBIA 31 (1996), Reconsideration Denied, 30 IBIA 90 (1996); Elizabeth Drake v. Acting Minneapolis Area Director, 29 IBIA 178 (1996); Karen Bucktooth v. Acting Eastern Area Director; 29 IBIA 144 (1996); Raymond Gonzales, Elmer Torres v. Acting Albuquerque Area Director, 28 IBIA 229 (1995); Beverly Smalley v. Eastern Area Director, Bureau of Indian Affairs, 18 IBIA 459 (1990).

When a determination of the proper composition of a tribe's governing body requires an interpretation of the tribal constitution, and the tribe has established a procedure by which it will provide such an interpretation, the BIA should allow the tribe the opportunity initially to interpret its own governing documents rather than immediately acting to impose its own interpretation. BIA's failure to request an interpretation of the constitution from the Tribal Executive Committee constituted an unwarranted intrusion into tribal sovereignty and self-government.

Wadena at 143. If a tribe has no tribal court or other standing forum with jurisdiction over disputes of this nature, it can still provide a forum of some sort. In appropriate circumstances even a general tribal meeting may suffice. Johannes Wanatee v. Acting Minneapolis Area Director, 31 IBIA 93 (1997). In the event the tribe does not have a forum to hear a dispute the BIA may assist it in devising one:

If, however, it turns out that the Tribe has not established or designated a forum for resolution of election disputes, BIA should offer assistance to the Tribe in establishing such a forum. If a permanent forum cannot be established promptly, the Tribe might wish to consider, for the immediate purpose of resolving this dispute, either vesting jurisdiction over this dispute in the C.F.R. court or acquiring the temporary services of a tribal judge, perhaps an experienced judge from another tribe.

Paula Brady, Leta K. Jim, and Patricia Stevens v. Acting Phoenix Area Director, 30 IBIA 294, 302 (1997).

Parties must exhaust tribal remedies before seeking relief from the IBIA and an allegation of bias or incompetence by a tribal court is insufficient to overcome the exhaustion requirement. Hilda Smoke. The appellant bears the burden of proof to show that tribal remedies have been exhausted. Johannes Wanatee v. Acting Minneapolis Area Director, 31 IBIA 93 (1997). The exhaustion requirement includes tribal appellate review. Hilda Smoke. The question of whether a tribal judge's appointment is valid is itself a question of tribal law which must be presented in a tribal forum. Hilda Smoke.

There may be instances when the BIA must recognize an interim government prior to the completion of tribal process, but it must allow the tribe the opportunity to resolve the dispute and subsequently adjust its recognition to reflect the outcome of any tribal process. Johannes Wanatee, Sr. v. Acting Minneapolis Area Director, 31 IBIA 93 (1997); Paula Brady, Leta K. Jim, and Patricia Stevens v. Acting Phoenix Area Director, 30 IBIA 294 (1997); Karen Bucktooth v. Acting Eastern Area Director, 29 IBIA 144 (1996). The Bureau may step in and issue a recognition decision when it has a Federal purpose for doing so, such as maintaining the government-to-government relationship with the tribe or operating P.L. 93-638 contracts or grants. Darrell Wadena, Tony Wadena, Jerry Rawley, Paul Williams, Rick Clark, and Doyle Turner v. Acting Minneapolis Area Director, 30 IBIA 130 (1996).

The Board will not permit the BIA to "retreat into the old days of paternalism" by usurping the tribe's role in its own dispute resolution process. Wadena. A tribe, as a sovereign nation, has not only the right, but the responsibility to resolve its own disputes without the interference of the Bureau. Wadena. "The issuance of an interim determination of tribal leadership should be considered an unusual action to be undertaken only in emergency situations." Cliv Dore v. Eastern Area Director, 31 IBIA 173 (1997).

A valid tribal election held during the pendency of an appeal moots the earlier appeal. Walter Rosales v. Sacramento Area Director, 32 IBIA 158 (1998); Elizabeth Drake v. Acting Minneapolis Area Director, 29 IBIA 178 (1996); Enrique Paiz v. Albuquerque Area Director, 29 IBIA 55 (1996); Rose Ann Hamilton v. Acting Sacramento Area Director, 29 IBIA 122 (1996); Dennis B. Miller v. Acting Sacramento Area Director, 29 IBIA 140 (1996); Cecil Provost v. Aberdeen Area Director, 25 IBIA 173 (1994); Ruth Hansen, Julia Demott, Marlena Fonzi, Cheryl Lettich, and Sheldon Fox v. Juneau Area Director, 25 IBIA 184 (1994); Jane Wyatt v. Acting Sacramento Area Director, 25 IBIA 37 (1993).

A subsequent election may not moot an appeal if the party opposing dismissal of the appeal bears the burden of showing: 1) the subsequent election was determined to be invalid in a tribal forum; 2) a challenge to the subsequent election was pending in a tribal forum; 3) the Bureau had declined to recognize the results of the subsequent election; or 4) an appeal from the Bureau's recognition of the results of the subsequent election was pending. Thomas L. Morrison and Vicki LeCornu v. Juneau Area Director, 29 IBIA 194 (1996) citing Hamilton v. Acting Sacramento Area Director, 29 IBIA 122 (1996), Reconsideration Denied, 29 IBIA 188 (1996).

In implementing the government-to-government relationship, the Bureau has the authority and responsibility to decline to recognize tribal action which violates the Indian Civil Rights Act, 25 U.S.C. § 1302. Jeffrey Alan-Wilson, Sr. v. Sacramento Area Director, 30 IBIA 241 (1997), Reconsideration Denied, 31 IBIA 4 (1997). The fact that the Bureau has this responsibility, however, does not mean that tribal members seeking to challenge tribal action may bypass a tribal forum in order to allege violations of the Act before the BIA. Ken Mosay & Mary Washington v. Minneapolis Area Director, 27 IBIA 126 (1995).

Where exhaustion of tribal remedies is required, the party challenging the tribal action may not simply allege that the tribal court has no jurisdiction: they must take the matter to the tribal court so that the court may determine its own jurisdiction. Ken Mosay. Tribal remedies are not exhausted when a party files an action in court, but fails to complete the entire process available or required under the court rules, including appellate review, if available. Nor may an individual rely on an unsuccessful action of another party to argue that exhaustion is futile. Jeff Hunt; John Gray & Desiree Gray; Ramon L. ("Sharky") Williams & Ramona Williams; Vivian T. Sampson & Celinda Traversie; Rusty Brehmer; Marty Lawrence; Tina Clement; Sharon Eaton; & Jeff Hunt & Vicki Hunt v. Aberdeen Area Director, 27 IBIA 173 (1995).

Respect for tribal self-government requires that tribal remedies be exhausted before a Federal forum may entertain a challenge to tribal actions or authority. This is particularly true where the matter at issue involves tribal membership. Janie Jovita Flores v. Acting Anadarko Area Director, 25 IBIA 6 (1993). Although the IBIA has jurisdiction over an appeal from a BIA Area Director's approval of a tribal ordinance, it has authority to abstain in a case where it finds that primary jurisdiction lies with a tribal court. Ronald Johnson and Geraldine Walker v. Acting Minneapolis Area Director, 28 IBIA 104 (1995); Maureen L. Secrest v. Crow Tribe of Montana, 28 IBIA 98 (1995); Zinke & Trumbo, 27 IBIA 105 (1995).

The parties must present a live case or controversy to the IBIA, because the IBIA does not have authority to issue advisory opinions. Lawrence Jackson v. Muskogee Area Director, 32 IBIA 45 (1998); Seminole Nation of Oklahoma v. Acting Director, Office of Tribal Service, 25 IBIA 4 (1993).

The IBIA recognizes that tribal forums have primary jurisdiction over challenges to tribal legislation. Big Horn Business Association v. Acting Billings Area Director, 28 IBIA 113 (1995). An appellant's reluctance to utilize the available tribal forum does not invest a Federal forum with jurisdiction to resolve an intra-tribal dispute. Kayle K. Howe v. Acting Billings Area Director, 28 IBIA 142 (1995). An appellant may not avoid the requirement for exhaustion of tribal remedies by simply alleging that the tribal court lacks jurisdiction over the matter or that it may be biased. Raymond Gonzales v. Acting Albuquerque Area Director, 28 IBIA 229 (1995).

The Board lacks authority to order the dismissal of a tribal court action. Robert and Krista Johnson v. Acting Phoenix Area Director, 25 IBIA 18 (1993).

As to disapproval of the tribal court's orders, the decision in Estate of Mary Dodge Peshlakai v. Navajo Area Director, 15 IBIA 24 (1986), requires BIA to act only when it finds that a violation of Federal law has occurred. Because any such action by BIA may interfere with tribal sovereignty, BIA should have a reasonable basis for believing that the tribal action in fact violates Federal law. Cf. Wells v. Acting Aberdeen Area Director, 24 IBIA 142, 145 (1993), and cases cited therein ("[B]ecause BIA review of tribal enactments, even when required by statute or a tribal constitution, is an intrusion into tribal self-government, that review must be undertaken in such a way as to avoid unnecessary interference with the tribe's right to self-government").

Robert and Krista Johnson, at 28.

Rules for Review of Tribal Legislation:

Several rules regarding the review of tribal legislation may be drawn from the cases noted above:

1) 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;

2) the Bureau may make an independent interpretation of tribal law for a Federal purpose; but should give deference to a tribe's reasonable interpretation;

3) the Bureau must perform the review function in the least intrusive manner possible and with great respect for tribal sovereignty;

4) the Bureau must perform the review function within the parameters of the tribal constitution;

5) if a tribal court has ruled on any issue of the document subject to review, the BIA should give deference to the tribal court's ruling;

6) in the absence of a clear violation of the ICRA or other federal law on the substantive issues of the legislation, the benefit of the doubt as to legal issues should operate to the benefit of the tribe and weigh in favor of approval.

Rules for "Waiting Out" Intra-tribal Disputes:

A few cardinal rules can be drawn from the decisions noted above to assist the BIA decision makers when they must make decisions during intra-tribal disputes:

1) intra-tribal disputes must be resolved in tribal forums;

2) the forum need not necessarily be a tribal court;

3) the Bureau may not disregard the resolution reached by the tribal forum;

4) parties must exhaust tribal remedies before seeking relief from the IBIA;

5) the Bureau may need to recognize an interim government before the resolution of the tribal process, but should only do so if a Federal need arises and then should adjust its recognition to reflect the outcome of the tribal process;

6) a subsequent valid election held during the pendency of an appeal moots out the appeal - Do Not issue a decision if you don't have to;

7) resist the urge to "retreat into paternalism" -- defer to the tribe's reasonable interpretation of tribal law.

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