Wilfahrt - Conclusion: "The Rules"

Rules for Review of Tribal Legislation:

Several rules regarding the review of tribal legislation may be drawn from the cases noted above:

  1. Tribes have primary authority to interpret their own law and where the tribe has put forth a reasonable interpretation of its law, the Bureau must defer to that interpretation;
  2. The Bureau may make an independent interpretation of tribal law for a Federal purpose; but should give deference to a tribe's reasonable interpretation;
  3. The Bureau must perform the review function in the least intrusive manner possible and with great respect for tribal sovereignty;
  4. The Bureau must perform the review function within the parameters of the tribal constitution;
  5. If a tribal court has ruled on any issue of the document subject to review, the BIA should give deference to the tribal court's ruling;
  6. In the absence of a clear violation of the ICRA or other federal law on the substantive issues of the legislation, the benefit of the doubt as to legal issues should operate to the benefit of the tribe
    and weigh in favor of approval.

Rules for "Waiting Out" Intra-Tribal Disputes:

A few cardinal rules can be drawn from the decisions noted above to assist the BIA decision makers when they must make decisions during intra-tribal disputes:

  1. Intra-tribal disputes must be resolved in tribal forums;
  2. The forum need not necessarily be a tribal court;
  3. The Bureau may not disregard the resolution reached by the tribal forum;
  4. Parties must exhaust tribal remedies before seeking relief from the IBIA;
  5. The Bureau may need to recognize an interim government before the resolution of the tribal process, but should only do so if a Federal need arises and then should adjust its recognition to reflect the outcome of the tribal process;
  6. A subsequent valid election held during the pendency of an appeal moots out the appeal - Do Not issue a decision if you don't have to;
  7. Resist the urge to "retreat into paternalism" -- defer to the tribe's reasonable interpretation of tribal law.

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