IBIA Jurisdiction

[NOTE: The regulations relating to probate proceedings have been substantially amended since 2000. Some of the following discussion may no longer be applicable. Please consult the current edition of 25 C.F.R. Part 15 and 43 C.F.R. Part 4, Subpart D, to see if your issue was affected by the amendments.]

VIII. IBIA Jurisdiction   

1. General Authority
2. Limitations on Authority
3. Exclusive Proceeding Before IBIA

A. General Authority

The IBIA is not a court of general jurisdiction and has only those powers delegated to it by the Secretary of the Interior. It has not been delegated authority to award money damages against the Bureau of Indian Affairs. Sherry Wilson Price v. Portland Area Director, Bureau of Indian Affairs, 18 IBIA 272 (1990); Ernest Wilkinson v. Acting Aberdeen Area Director, 32 IBIA 265 (1998). It has not been delegated authority to order restitution. Dawn Mining Co. v. Portland Area Director, Bureau of Indian Affairs, 20 IBIA 50 (1991). It has not been delegated authority to award money damages against an Indian tribe. U.S. Fish Corp. v. Eastern Area Director, Bureau of Indian Affairs, 20 IBIA 93 (1991). It has not been delegated authority to determine tort claims. John P. Taylor, dba Taylor Logging v. Portland Area Director, Bureau of Indian Affairs, 20 IBIA 101 (1991). The IBIA does not have the authority to declare a duly promulgated Departmental regulation invalid. Linda Mashunkashey Kays v. Acting Muskogee Area Director, Bureau of Indian Affairs, 18 IBIA 431 (1990); Diedre Wilson v. Acting Portland Area Director, Bureau of Indian Affairs, 21 IBIA 188 (1992).

The IBIA serves to provide independent, objective administrative review of decisions of BIA officials and to prevent the politicization of those decisions. Lyle D. & Donna J. Griffith v. Acting Portland Area Director, Bureau of Indian Affairs, 19 IBIA 14 (1990). The Board's probate regulations at 43 C.F.R. 4.320 provide that it has jurisdiction over "an order from an administrative law judge on a petition for rehearing, petition for reopening, or regarding tribal purchase of interests in a deceased Indian's trust estate, and also from a summary distribution order made by the Bureau of Indian Affairs or an administrative law judge pursuant to section 4.271." See Estate of Eugenia Catherine Apodaca, 31 IBIA 55 (1997). The Secretary's delegation of authority to the Board is set forth at 43 C.F.R. 4.1(b)(2) and provides that the Board makes a final decision for the Department on 1) administrative actions of BIA officials (except as specifically limited elsewhere) and 2) orders and decisions of ALJ's in Indian probate matters. Fernando Abeita v. Deputy Commissioner of Indian Affairs, 31 IBIA 226 (1997).

B. Limitations on Authority

It may not declare a federal statute violative of the United States constitution or in conflict with a state constitution. Reindeer Herders Association v. Juneau Area Director, Bureau of Indian Affairs, 23 IBIA 28 (1992). The IBIA does not have authority to declare an act of Congress unconstitutional. Estate of Guadalupe Almanza Conger, 21 IBIA 244 (1992); Estate of Evan Gillette, Sr. & Lizzie Gillette/YellowBird/Bellanger/Paint/Bedell, aka Elisabeth Burdell, 22 IBIA 133 (1992); Estate of Nicholas Joseph Belland, 29 IBIA 54 (1996). The Board is without authority to declare a state statute unconstitutional. Estate of Nellie Brown, 11 IBIA 1 (1982). The IBIA lacks jurisdiction to review acts or decisions of the Secretary of the Interior, except as referred under 43 C.F.R. 4.330(a)(2). Perry Murdock v. Acting Phoenix Area Director, Bureau of Indian Affairs, 22 IBIA 130 (1992). The IBIA lacks jurisdiction to review decisions of the Assistant Secretary - Indian Affairs unless the matter is referred to it under 43 C.F.R. 4.330(a)(2). State of South Dakota & Town of Oacoma v. Aberdeen Area Director, Bureau of Indian Affairs, 22 IBIA 126 (1992). The Board lacks authority to declare a Federal statute violative of the Constitution of Canada. WELSA Heirship Determination of Robert Lee Charbonneau, 33 IBIA 168 (1999).

The Board has authority to review decisions of BIA Area Directors, but not decisions of individuals under their authority. It is without jurisdiction to hear BIA personnel matters. Henry Rides Horse, Jr. v. Personnel Staffing Specialist, Billings Area Office, Bureau of Indian Affairs, 28 IBIA 91 (1995). The IBIA does not have jurisdiction to render initial decisions on requests for action of the BIA. Administrative decisions must proceed through the appropriate chain of command within the agency to be ripe for hearing before the IBIA. Sherman P. Hawkins v. Leona Chapin, Cecil Hawkins, and Della Wagner, 28 IBIA 199 (1995).

The IBIA has not been delegated authority to determine aboriginal title to Indian land. Noyo River Indian Community v. Acting Sacramento Area Director, Bureau of Indian Affairs, 19 IBIA 63 (1990); Grace Tsosis v. Navajo Area Director, Bureau of Indian Affairs, 20 IBIA 108 (1991). It has not been delegated the authority to determine whether title to land is properly in the United States in trust for an Indian tribe or individual as opposed to being in fee ownership. Phil Foutz v. Acting Navajo Area Director, Bureau of Indian Affairs, 21 IBIA 273 (1992). It has not been delegated the authority to determine the validity of title to Indian land. Severo Leon et al. v. Albuquerque Area Director, Bureau of Indian Affairs, 23 IBIA 248 (1993); Cherokee Nation v. Acting Muskogee Area Director, Bureau of Indian Affairs, 29 IBIA 17 (1995); Estate of Walter Sydney Howard, 32 IBIA 51 (1998).

The IBIA has not been delegated the authority to issue equitable relief against an Indian tribe. Bulletproofing, Inc. & Richard Medlin (President) v. Acting Phoenix Area Director, Bureau of Indian Affairs, 20 IBIA 179 (1991). The IBIA lacks jurisdiction to review decisions of other agencies. Charles D. Plumage v. Billings Area Director, Bureau of Indian Affairs, 19 IBIA 134 (1991); James Robert Burchard v. Acting Billings Area Director, Bureau of Indian Affairs, 19 IBIA 254 (1991). It lacks authority to review decisions made by duly constituted tribal officials or governing bodies. Arthur J. Welmas & Linda Streeter Dukic, Sacramento Area Director, Bureau of Indian Affairs, 24 IBIA 264 (1993); James F. Johnson v. Muskogee Area Director, Bureau of Indian Affairs, 30 IBIA 38 (1996). The IBIA is not a court of general jurisdiction and is granted no authority to hear matters raised under the qui tam provision of 25 U.S.C. 81. Robert & Krista Johnson v. Acting Phoenix Area Director, Bureau of Indian Affairs, 25 IBIA 18 (1993).

The IBIA has not been delegated the authority to issue advisory opinions. Grand Traverse Band of Ottawa & Chippewa Indians v. Acting Deputy to the Assistant Secretary - Indian Affairs (Tribal Services), 18 IBIA 450 (1990). The IBIA has not been delegated the authority to substitute its judgment for that of the BIA when the BIA has been granted discretion over the subject matter of the appeal, although it does have authority to determine whether a BIA decision is properly characterized as discretionary and whether all legal prerequisites to the exercise of discretion has been met. Lyle & Donna J. Griffith v. Acting Portland Area Director, Bureau of Indian Affairs, 19 IBIA 14 (1990); Theresa Jerry Moses et al. v. Acting Portland Area Director, Bureau of Indian Affairs, 24 IBIA 233 (1993); Sault Ste. Marie Tribe of Chippewa Indians v. Minneapolis Area Director, Bureau of Indian Affairs, 25 IBIA 236 (1994). Under 43 C.F.R. 4.330(b)(2) the Assistant Secretary-Indian Affairs may, by special delegation or request, enlarge the normally limited jurisdiction of the IBIA over discretionary BIA decisions. Village of Ruidoso, New Mexico v. Albuquerque Area Director, Bureau of Indian Affairs, 31 IBIA 143 (1997).

C. Exclusive Proceeding Before IBIA

The Board has consistently followed a rule requiring only one forum at a time to exercise jurisdiction over a particular matter. Simultaneous proceedings on reconsideration and on appeal would be disruptive of an orderly review process as well as unduly burdensome on the parties. WELSA Heirship Determination of Robert Lee Charbonneau, 33 IBIA 168 (1999). Once an appeal is filed with the IBIA from a decision issued by the BIA official, the BIA loses jurisdiction over the matter except to participate in the appeal as a party. If during the course of an appeal to the IBIA, the BIA determines that its decision was incorrect, it can: 1) request that the decision be vacated and the matter remanded in order to grant the relief the appellant requests; 2) confess error and ask the IBIA to reverse the decision; or 3) enter into a settlement with the appellant. Each of these actions may be taken through filing the appropriate document with the IBIA. Bernadette L. Raymond v. Acting Aberdeen Area Director, Bureau of Indian Affairs, 19 IBIA 41 (1990); Five Sandoval Indian Pueblos, Inc. v. Acting Phoenix Area Director, Bureau of Indian Affairs, 21 IBIA 17 (1991); Cherokee Nation of Oklahoma, Chickasaw Nation, & Choctaw Nation of Oklahoma v. Muskogee Area Director, Bureau of Indian Affairs, 22 IBIA 240 (1992). A decision of the IBIA remanding a matter to an official of the BIA restores that official's full authority to consider the matter. Stone Trucking v. Portland Area Director, Bureau of Indian Affairs, 22 IBIA 52 (1992). An Area Director does not have authority to make his or her own decision final for the Department when Departmental regulations provide a right of appeal to the IBIA. Dean Wallace v. Aberdeen Area Director, Bureau of Indian Affairs, 26 IBIA 150 (1994).

Regulations in 25 C.F.R. Part 2 and 43 C.F.R. Part 4 require the BIA to assist an Indian or Indian tribal appellant not represented by counsel in regard to an appeal. This assistance consists of serving the appellant's filings on interested parties and allowing access to Government records and other documents. It does not include obtaining an attorney for the appellant or acting as the appellant's attorney by preparing the appellant's appeal documents or otherwise advising the appellant on the merits of the appeal. Rose Evans v. Sacramento Area Director, Bureau of Indian Affairs, 28 IBIA 124 (1995).