Limitations on the Board’s Jurisdiction

Any appeal subject to the Contract Disputes Act, 41 U.S.C. 7101-7109, including both procurement contracts and most post-contracting issues arising under the Indian Self-Determination Act, 25 U.S.C. 5301-5332, are appealable to the Civilian Board of Contract Appeals or to Federal court. See Hoh Indian Tribe v. Northwest Region Awarding Official, 55 IBIA 167 (2012).

As part of the Executive Branch of Government, the Board lacks authority to declare an act of Congress unconstitutional. This authority resides in the Judicial Branch. E.g., County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 (2002); Estate of Annie Greencrow Whitehorse, 27 IBIA 136 (1995). However, some courts may still require an appeal to be brought to the Board in order to prove that you have exhausted all administrative remedies available to you. When it is apparent that the sole issue raised in an appeal is the constitutionality of a Federal statute, the Board may expedite its decision. See, e.g., Estate of William Youpee, 22 IBIA 248 (1992); Estate of Shonie Curley, 17 IBIA 115 (1989).

Departmental regulations limit both the subject matters over which the Board has jurisdiction and, in some cases, the scope of its review authority. 

Limitations on Subject Matter Jurisdiction

• Education. Decisions of Bureau of Indian Education (BIE) officials are appealed within BIE and then to the Assistant Secretary – Indian Affairs. See 25 C.F.R. 2.202, 2.507(d).
• Enrollment. Decisions in tribal enrollment disputes and issues concerning an individual's degree of Indian blood are appealed to the Assistant Secretary - Indian Affairs under 25 C.F.R. Part 62. See 43 C.F.R. 4.330(b)(1).
• Certain Indian land and natural resources issues. Jurisdiction over certain matters involving Indian lands are within the jurisdiction of the Interior Board of Land Appeals, rather than the Board of Indian Appeals. See 43 C.F.R. 4.330(b)(3).
• Tribal attorney contracts. Under 25 C.F.R. 88.1(c), a decision of a BIA Regional Director approving, disapproving, or conditionally approving a tribal attorney contract is final for the Department. Therefore, such decisions may not be appealed to the Board. See Welch v. Minneapolis Area Director, 17 IBIA 56 (1989).

Limitations on the Scope of Review

Departmental regulations limit the scope of the Board's review with respect to discretionary decisions of BIA officials. Under 43 C.F.R. 4.330(b)(2), the Board is precluded from reviewing "matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority" unless requested to do so by the Secretary or the Assistant Secretary – Indian Affairs.
Although the Board does not review the exercise of discretion itself, it does review legal or procedural issues which arise in connection with a discretionary decision. The Board does not substitute its judgment for BIA's, but it may review whether proper consideration was given to all legal prerequisites to the exercise of discretion. E.g., City of Lincoln v. Portland Area Director, 33 IBIA 102 (1999). The Board may also review a discretionary decision for reasonableness. Absentee Shawnee Tribe v. Anadarko Area Director, 18 IBIA 156 (1990).

Examples of BIA discretionary decisions are: (1) decisions whether or not to partition Indian trust land, Soper v. Acting Anadarko Area Director, 29 IBIA 182 (1996); (2) decisions approving or disapproving conveyances of trust land, Escalanti v. Acting Phoenix Area Director, 17 IBIA 290 (1989); and  (3) decisions to take land into trust status, or declining to do so, City of Eagle Butte v. Aberdeen Area Director, 17 IBIA 192, 96 I.D. 328 (1989), City of Lincoln City v. Portland Area Director, 33 IBIA 102 (1999).

Where the Board's jurisdiction is limited by regulation, the Secretary or the Assistant Secretary – Indian Affairs may waive the limitation by special delegation or request to the Board. 43 C.F.R. 4.330(b). The Secretary has referred matters to the Board for decision even though the Board would not normally have jurisdiction over them. E.g., In re Federal Acknowledgment of the San Juan Southern Paiute Tribe, 18 IBIA 213 (1990). Similarly, the Assistant Secretary – Indian Affairs has authorized the Board to exercise his discretion on a case-by-case basis. E.g., Robinson v. Acting Billings Area Director, 20 IBIA 168 (1991).

As a subordinate of the Secretary of the Interior, the Board has only the authority that the Secretary has delegated to it. The Board is occasionally requested to take actions or to grant relief which exceeds the authority delegated to it. Sometimes these requests are unique. For example, in In re Petition of Mary V. McRae, 29 IBIA 300 (1996), the Board held that it had not been delegated authority to issue a writ of habeas corpus to a CFR Court. However, there are other requests that arise periodically. For example:

• Review of Decisions of the Assistant Secretary – Indian Affairs. Decisions of the Assistant Secretary - Indian Affairs are final for the Department of the Interior, unless the Assistant Secretary states otherwise in the decision. See Hawk v. Assistant Secretary – Indian Affairs, 28 IBIA 275 (1995). However, the Assistant Secretary can authorize the Board to review a decision which the Assistant Secretary has issued. E.g., Falcon Lake Properties v. Assistant Secretary – Indian Affairs, 15 IBIA 286 (1987).
• Review of BIA Decisions that Are Not Made under 25 C.F.R. See, e.g., Preckwinkle v. Pacific Regional Director, 44 IBIA 45 (2006).
• Requests for Money Damages. The Board lacks authority to award money damages against BIA. E.g., Dailey v. Billings Area Director, 34 IBIA 128 (1999). It also lacks authority to grant money damages against a tribe. E.g., U.S. Fish Corp. v. Eastern Area Director, 20 IBIA 93 (1991).
• Issuance of Advisory Opinions. The Board hears appeals from actual decisions issued by ALJs, IPJs, or BIA officials. It does not act on general complaints, Sanchez v. Bureau of Indian Affairs, 34 IBIA 62 (1999), and does not provide advisory opinions, Narconon Chilocco New Life Center v. Superintendent, Pawnee Agency, 29 IBIA 234 (1996).
• Holding a Departmental Regulation Invalid. The Board lacks authority to declare a duly promulgated Departmental regulation invalid. See Hannahville Indian Community v. Minneapolis Area Education Officer, 34 IBIA 4 (1999); Tanana Chiefs Conference, Inc. v. Acting Associate Alaska State Director, Bureau of Land Management, 33 IBIA 51 (1998).

Indian tribes are sovereigns. The policy of the Federal Government is to support tribal governments and to recognize and encourage tribal sovereignty and self-determination. The Board fully supports this policy and implements it in its decision making.

Tribal officials, tribal governing bodies, tribal courts, and CFR Courts all issue decisions. CFR Courts (sometimes also called "Courts of Indian Offenses"), are courts established under 25 C.F.R. Part 11. They are intended "to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian county where tribes retain jurisdiction over Indians that is exclusive of State jurisdiction but where tribal courts have not been established to exercise that jurisdiction." 25 C.F.R. 11.102. They are considered both agencies of the Federal Government and tribal courts. E.g., Tillett v. Lujan, 931 F.2d 636 (10th Cir. 1991). CFR Courts are funded by BIA and, for administrative purposes, come under the BIA Regional Offices. CFR Courts may exercise both criminal and civil jurisdiction within limits set out in 25 C.F.R. Part 11 (including probate jurisdiction over non-trust property), and 25 C.F.R. 11.207(a) prohibits BIA employees from obstructing, interfering with, or controlling the functions of a CFR Court.

• Review of Tribal Decisions. The Board lacks jurisdiction to review decisions made by tribal officials, tribal governing bodies, or tribal courts. E.g., Delaunay v. Billings Area Director, 33 IBIA 269 (1999); Hunt v. Aberdeen Area Director, 27 IBIA 173 (1995); Welmas v. Sacramento Area Director, 24 IBIA 264 (1993); Blaine v. Aberdeen Area Director, 21 IBIA 173 (1992). Neither does any regulation authorize an appeal of CFR Court decisions to the Board. See Pounds v. Court of Indian Offenses, Miami, Oklahoma, 31 IBIA 308 (1998). The Board lacks authority to grant equitable relief against a tribe. See, e.g., Bulletproofing, Inc. v. Acting Phoenix Area Director, 20 IBIA 179 (1991). 
   
• Abstention and Exhaustion of Tribal Remedies. Citing cases such as Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845 (1985); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); United States v. Plainbull, 957 F.2d 724 (9th Cir. 1992); and Middlemist v. Secretary of the Interior, 824 F. Supp. 940 (D. Mont.), aff'd, 19 F.3d 1318 (9th Cir. 1993), the Board has abstained from exercising whatever jurisdiction it has in favor of allowing resolution of intra-tribal disputes in a tribal forum. See, e.g., Hunter v. Acting Navajo Area Director, 34 IBIA 13 (1999); Walter Torske & Sons v. Acting Billings Area Director, 30 IBIA 157 (1997); Zinke & Trumbo, Ltd. v. Phoenix Area Director, 27 IBIA 105 (1995); Burlington Northern Railroad v. Acting Billings Area Director, 25 IBIA 79, 80 (1993). This includes requiring the exhaustion of tribal remedies. See, e.g., Howe v. Acting Billings Area Director, 28 IBIA 142 (1995) (tribal election); Hunt v. Aberdeen Area Director, 27 IBIA 173 (1995) (tribal decision concerning use of tribal land); Wells v. Acting Aberdeen Area Director, 24 IBIA 142 (1993) (tribal enactment). 
   
• Inter-Tribal Disputes. The Board has also held that, under normal circumstances, the affected tribes should be allowed an opportunity to resolve an inter-tribal dispute. See Keweenaw Bay Indian Community v. Minneapolis Area Director, 29 IBIA 72 (1996). 
   
• Interpretation of Tribal Law. Occasionally, the Board is called upon to interpret tribal law. This typically arises in the context of a tribal government dispute, when tribal mechanisms for dispute resolution may have broken down. Unless absolutely necessary, however, the Board will refrain from interpreting tribal law. E.g., Sahmaunt v. Anadarko Area Director, 17 IBIA 60 (1989). Also, whenever possible, the Board will defer to a tribe’s interpretation of tribal law. See, e.g., Wadena v. Acting Minneapolis Area Director, 30 IBIA 130 (1996).