Email Updates
Sign up to stay informed about the latest happenings at Interior.


Sign up to stay informed about the latest happenings at Interior.
Email Updates
Sign up to stay informed about the latest happenings at Interior.
U.S. Department of the Interior
Click to toggle text size.

What Happens During an Appeal?

What Does the Board Do When It Receives an Appeal?

The Board reviews all new appeals when they are received. During this review, the Board looks for any obvious problems with the appeal, such as whether the appeal is late, whether you served interested parties, or whether the appeal is in an area of settled law.

If it appears that an administrative appeal may be untimely, the Board may request a copy of the certified card for the appellant's copy of the decision from the BIA deciding official, or it may order you to show that your appeal is timely.

Examples of other times when the Board will summarily decide an appeal when it is received include cases over which the Board lacks jurisdiction for reason other than timeliness (Richmond v. Bureau of Indian Affairs, 34 IBIA 136 (1999)), and cases that are premature, i.e., not ready to be before the Board (Bellonger v. Aberdeen Area Director, 34 IBIA 49 (1999)).

On receiving an appeal, the Board will issue a Predocketing Notice to let the parties know the appeal has been received, and will send them a copy of the Board's regulations. In probate cases, this document notifies the parties that the Board received a notice of appeal, assigns a docket number, and requests the probate record from BIA or the tribal contractor. In administrative appeals, this document notifies the parties that the Board received a notice of appeal and requests the administrative record from BIA. However, because of the provisions of 43 C.F.R. 4.332(b) and 25 C.F.R. 2.20(c), which allow the Assistant Secretary to assume jurisdiction over an appeal before the Board, a docket number is not normally assigned to an administrative appeal until 20 days after the Board receives the appeal and the Assistant Secretary has not assumed jurisdiction. If there are threshold issues to address (e.g., timeliness, standing, or service), the Board may resolve those issues before ordering the record.

After receiving the probate or administrative record, the Board will issue a Notice of Docketing. This document establishes the briefing periods or sets out other procedures to be followed in processing the appeal. See 43 C.F.R. 4.325 (probate); 43 C.F.R. 4.336 (administrative). In probate appeals, a copy of the Board's regulations is included with the notice of docketing sent to non-governmental parties.

How Does the Assistant Secretary -
Indian Affairs Assume Jurisdiction over an Appeal?

Under the BIA and Board appeal regulations, the Assistant Secretary has 20 days from the receipt of an appeal to assume jurisdiction over the appeal and decide it himself or assign it to one of his Office Directors for decision. 25 C.F.R. 2.20(c); 43 C.F.R. 4.332(b). (This authority does not apply in ISDA cases.)

If the Assistant Secretary decides to assume jurisdiction over an appeal, he will notify the Board of that decision in writing. The Assistant Secretary must notify the Board of his decision to assume jurisdiction within the regulatory time limits. See Shaahook Group of Capitan Grande Band of Diegueno Mission Indians v. Director, Office of Tribal Services, 27 IBIA 43, amended on recon., 27 IBIA 90 (1994).

If the Assistant Secretary assumes jurisdiction over an appeal, the Board will send everything it has relating to the appeal to him. The Assistant Secretary will establish procedures for dealing with the appeal. All further questions or correspondence about the appeal should be made to the Assistant Secretary.

What Happens when a Decision Is Issued in a
Case that the Assistant Secretary Took from the Board?

Under 25 C.F.R. 2.20(g), the Assistant Secretary must issue a decision in any case he takes from the Board within 60 days after the end of the time for filing all documents in the case. See also 25 C.F.R. 2.20(c)(2). If the Assistant Secretary does not make a decision in that time, any party to the case may ask the Board to reassume jurisdiction over the case. See 25 C.F.R. 2.20(e).

The Assistant Secretary will issue his decision in writing, and will send copies to all interested parties. See 25 C.F.R. 2.20(g).

If the decision is signed by the Assistant Secretary or an Acting Assistant Secretary, the decision is final for the Department (unless the decision states otherwise). The decision is effective immediately. See 25 C.F.R. 2.20(c)(2).

If the decision is signed by an official other than the Assistant Secretary, it can be appealed to the Board. See 25 C.F.R. 2.20(c)(2).

What Happens Next in a Probate Case, or What Happens in an
Administrative Case If the Assistant Secretary Did Not Assume Jurisdiction?

After the Board receives the probate or administrative record, it will issue a notice of docketing. This document sets out the times for filing briefs, or statements of your position, or other procedures that it will follow in the appeal. See 43 C.F.R. 4.325 (probate); 43 C.F.R. 4.336 (administrative).

In probate cases, a copy of the probate record (including a hearing transcript) which is identical to the record sent to the Board, will be available to the parties. Generally, this copy can be found at the BIA Agency or the office of the tribal contractor. The Board's notice of docketing will inform the parties where the copy is located.

In administrative cases, BIA prepares a table of contents to the administrative record before sending the record to the Board. The Board sends a copy of this table to the parties. Most parties will already have many, if not all, of the documents in the administrative record. Because the Board does not have a large staff, it asks parties to compare the table of contents to the documents they already have, and only request copies of documents which they do not have. If a request for copies is voluminous, the Board asks the party to first attempt to obtain copies from the BIA.

Do I Get To (or Do I Have To) Say
Anything Else Before the Board Makes a Decision?

The Board's regulations do not require an appellant to file an opening brief or statement. However, as the appellant, you have the burden of proof, which means that you must show what is wrong in the decision from which you are appealing.

An appellant may file an opening brief within 30 days after receiving the Board's Notice of Docketing, or within the timetable established by the Board in an order scheduling briefing. See 43 C.F.R. 4.311(a) and (b). Briefs do not need to be in any particular form.

You should include all of your arguments in your opening brief. In addition, you should provide copies of any documents you are relying on, if they are not already included in the administrative or probate record.

What Happens If I Need More Time?

You can request an extension of time for filing any document, except a notice of appeal. You must make your request within the time for filing the document. See 43 C.F.R. 4.310(d).

Do Other People Get To Say Anything in My Appeal?

In probate appeals, any interested party who opposes the appellant's position may file an answer brief. The Office of the Solicitor normally does not participate in probate appeals. However, in some probate cases issues are raised which might affect BIA operations or which have a national impact. In these cases, the Board may request a brief from the Assistant Secretary. See, e.g., Estate of Douglas Leonard Ducheneaux, 13 IBIA 169 (1985).

In administrative appeals, any interested party who opposes the appellant's position may file an answer brief. Additionally, the BIA official whose decision is under appeal may file a brief.

Answer briefs from opposing parties, including the appropriate BIA official in administrative appeals, are due within 30 days from receipt of an appellant's opening brief. See 43 C.F.R. 4.311(a).

43 C.F.R. 4.313 allows parties other than the appellant to intervene in both probate and administrative appeals before the Board or to appear as an amicus curiae, or "friend of the court." Most motions to intervene which the Board receives are filed in administrative appeals by tribes who are affected by the decision being appealed. Because the tribe is the real party-in-interest in these cases, the Board considers it to be a full party, and does not require that it file a motion to intervene in order to participate in the appeal. As set out in 43 C.F.R. 4.313, the Board liberally construes motions to intervene, and especially to appear as amicus curiae.

Will There Be a Lawyer on the Other Side?

It is up to each party to decide whether or not to have an attorney. In administrative cases, a lawyer from the Office of the Solicitor may appear for the Regional Director. Usually a tribe will have a lawyer. In many cases, individuals will not have an attorney.

What Happens if There Are Disputes about the Facts?

In an administrative appeal, if the Board finds that it cannot decide an appeal without resolution of a "genuine issue of material fact," it will refer the case to the OHA Departmental Cases Hearings Division for assignment to an ALJ for an evidentiary hearing and recommended decision. See 43 C.F.R. 4.337(a). Although there may be unresolved factual issues in an appeal, the Board does not refer the appeal for a hearing unless it is not possible to decide the case without resolution of those factual issues. Final resolution of appeals is significantly delayed by referral for an evidentiary hearing.

Once a matter is assigned to an ALJ, all further filings and inquiries should be sent to that ALJ, rather than to the Board, until the ALJ issues a recommended decision.

The ALJ will hold a hearing and issue a recommended decision to the Board. See 43 C.F.R. 4.338. The ALJ will return the entire record, including a transcript of the hearing, to the Board.

Within 30 days after they receive the recommended decision, the parties to the appeal may file any objections they have about the recommended decision with the Board. See 43 C.F.R. 4.339.

The Board will issue the final decision in any case referred for an evidentiary hearing. See, e.g., Estate of Clifford Celestine v. Acting Portland Area Director, 29 IBIA 269 (1996).

Links to Additional Frequently Asked Questions