Wilfahrt - Challenges to Tribal Action Should Be Heard in Tribal Forums

"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 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).
 

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• Introduction
• The BIA Must Give Deference to Tribal Interpretation of Tribal Governing Documents
• Review of Tribal Legislation Is No Broader than Is Permitted by the Tribe's Governing Documents
• Standing to Challenge Tribal Action
• Indian Civil Rights Act
• Conclusion: "The Rules"