Wilfahrt - 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.
 

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