Wilfahrt - Review of Tribal Legislation Is No Broader than Is Permitted by the Tribe's Governing Documents

Where Secretarial review of tribal legislation is required by a tribe's constitution, and is not required by Federal law, the Secretary's review authority is only as broad as the tribal constitution provides. Where the constitution establishes a time limit for Secretarial review, the Secretary lacks authority to act on the ordinance once the review period has expired. Zinke & Trumbo, Ltd; Enron Oil & Gas Co.; Quinex Energy Corp.; Wasatch Well Service, Inc.; Geoscout Land & Title Co.; Payne Land Services; Quester Pipeline Co. & Gary-Williams Energy Corp. v. Phoenix Area Director, 27 IBIA 105 (1995). The Secretary may not withdraw his approval after the review period has expired. Pawnee Tribe of Oklahoma v. Anadarko Area Director, 26 IBIA 284 (1994).

"BIA's authority to review and approve tribal legislation normally derives from tribal law." Pawnee at 288. When the period of review set forth in the tribal law has passed the Secretary no longer has any authority to act on an ordinance. "A necessary consequence of this limitation is that Secretarial approval given during the 90-day period cannot be revoked after the period has expired." Pawnee at 289.

A tribal member may not appeal the enactment or application of tribal legislation to the IBIA. The IBIA is not a court of general jurisdiction and does not have authority to review actions taken by duly constituted tribal governments. Maureen L. Secrest v. Crow Tribe of Montana, 28 IBIA 98 (1995); Big Horn Business Association v. Acting Billings Area Director, 28 IBIA 113 (1995). The question of a tribal council's authority to promulgate and enforce an ordinance is a matter of tribal law which must be raised in a tribal forum. Ronald Johnson and Geraldine Walker v. Acting Minneapolis Area Director, 28 IBIA 104 (1995).

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