Wilfahrt - Indian Civil Rights Act

In implementing the government-to-government relationship, the Bureau has the authority and responsibility to decline to recognize tribal action which violates the Indian Civil Rights Act, 25 U.S.C. 1302. Jeffrey Alan-Wilson, Sr. v. Sacramento Area Director, 30 IBIA 241 (1997), Reconsideration Denied, 31 IBIA 4 (1997). The fact that the Bureau has this responsibility, however, does not mean that tribal members seeking to challenge tribal action may bypass a tribal forum in order to allege violations of the Act before the BIA. Ken Mosay & Mary Washington v. Minneapolis Area Director, 27 IBIA 126 (1995).

Where exhaustion of tribal remedies is required, the party challenging the tribal action may not simply allege that the tribal court has no jurisdiction: they must take the matter to the tribal court so that the court may determine its own jurisdiction. Ken Mosay. Tribal remedies are not exhausted when a party files an action in court, but fails to complete the entire process available or required under the court rules, including appellate review, if available. Nor may an individual rely on an unsuccessful action of another party to argue that exhaustion is futile. Jeff Hunt; John Gray & Desiree Gray; Ramon L. ("Sharky") Williams & Ramona Williams; Vivian T. Sampson & Celinda Traversie; Rusty Brehmer; Marty Lawrence; Tina Clement; Sharon Eaton; & Jeff Hunt & Vicki Hunt v. Aberdeen Area Director, 27 IBIA 173 (1995).

Respect for tribal self-government requires that tribal remedies be exhausted before a Federal forum may entertain a challenge to tribal actions or authority. This is particularly true where the matter at issue involves tribal membership. Janie Jovita Flores v. Acting Anadarko Area Director, 25 IBIA 6 (1993). Although the IBIA has jurisdiction over an appeal from a BIA Area Director's approval of a tribal ordinance, it has authority to abstain in a case where it finds that primary jurisdiction lies with a tribal court. Ronald Johnson and Geraldine Walker v. Acting Minneapolis Area Director, 28 IBIA 104 (1995); Maureen L. Secrest v. Crow Tribe of Montana, 28 IBIA 98 (1995); Zinke & Trumbo, 27 IBIA 105 (1995).

The parties must present a live case or controversy to the IBIA, because the IBIA does not have authority to issue advisory opinions. Lawrence Jackson v. Muskogee Area Director, 32 IBIA 45 (1998); Seminole Nation of Oklahoma v. Acting Director, Office of Tribal Service, 25 IBIA 4 (1993).

The IBIA recognizes that tribal forums have primary jurisdiction over challenges to tribal legislation. Big Horn Business Association v. Acting Billings Area Director, 28 IBIA 113 (1995). An appellant's reluctance to utilize the available tribal forum does not invest a Federal forum with jurisdiction to resolve an intra-tribal dispute. Kayle K. Howe v. Acting Billings Area Director, 28 IBIA 142 (1995). An appellant may not avoid the requirement for exhaustion of tribal remedies by simply alleging that the tribal court lacks jurisdiction over the matter or that it may be biased. Raymond Gonzales v. Acting Albuquerque Area Director, 28 IBIA 229 (1995).

The Board lacks authority to order the dismissal of a tribal court action. Robert and Krista Johnson v. Acting Phoenix Area Director, 25 IBIA 18 (1993).

As to disapproval of the tribal court's orders, the decision in Estate of Mary Dodge Peshlakai v. Navajo Area Director, 15 IBIA 24 (1986), requires BIA to act only when it finds that a violation of Federal law has occurred. Because any such action by BIA may interfere with tribal sovereignty, BIA should have a reasonable basis for believing that the tribal action in fact violates Federal law. Cf. Wells v. Acting Aberdeen Area Director, 24 IBIA 142, 145 (1993), and cases cited therein ("[B]ecause BIA review of tribal enactments, even when required by statute or a tribal constitution, is an intrusion into tribal self-government, that review must be undertaken in such a way as to avoid unnecessary interference with the tribe's right to self-government").

Robert and Krista Johnson, at 28.

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