Wilfahrt - The BIA Must Give Deference to Tribal Interpretation of Tribal Governing Documents

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. Paula Brady, Leta K. Jim, and Patricia Stevens v. Acting Phoenix Area Director, 30 IBIA 294 (1997); Shakopee Mdewakanton Sioux Community v. Acting Area Director, 27 IBIA 163 (1995). Neither the Bureau nor the Solicitor's Office should undertake to interpret tribal law without first considering whether the tribe had arrived at an interpretation of its own. Paula Brady. The Bureau should avoid interpreting tribal law unless there is a clear necessity for it to do so. Keweenaw Bay Indian Community v. Minneapolis Area Director, 29 IBIA 72 (1996); Sandra Maroquin v. Anadarko Area Director, 29 IBIA 45 (1996); Parmenton Decorah, et al. v. Minneapolis Area Director, 22 IBIA 98 (1992).

In furthering the doctrines of tribal sovereignty and self-determination, the Bureau recognizes the right of tribes to interpret their own laws and gives deference to a tribe's interpretation of its own law. San Manuel Band of Mission Indians v. Sacramento Area Director, 27 IBIA 204 (1995); Donna Van Zile & James Crawford v. Minneapolis Area Director, 25 IBIA 163 (1994); Henry P. Rhatigan v. Muskogee Area Director, 21 IBIA 258 (1992); United Keetoowah Band of Cherokee Indians in Oklahoma v. Muskogee Area Director, & Joe Grayson, Jr., & Pam Thurman Jumper, Muskogee Area Director, 22 IBIA 75 (1992); James C. Greendeer v. Minneapolis Area Director, 22 IBIA 91 (1992).

Once the tribe has offered a reasonable interpretation of its own law, the Bureau must defer to it even though the Bureau may also offer an equally reasonable interpretation of the tribal law. San Manuel Band of Mission Indians v. Sacramento Area Director, 27 IBIA 204 (1995) citing Shakopee Mdewakanton Sioux Community v. Acting Minneapolis Area Director, 27 IBIA 163 (1995). "Where a Secretarial election is to be conducted, BIA has the authority to make an independent interpretation of tribal law concerning voter eligibility, although it should give deference to the tribe's reasonable interpretation of its own law in this regard." Prairie Island Community v. Minneapolis Area Director, 25 IBIA 187, 192 (1994).

The Bureau should refrain from interpreting tribal law unless it must do so in order to make a decision which it is required to make in furtherance of its government-to-government relationship with the tribe. Sandra Maroquin v. Anadarko Area Director, 29 IBIA 45 (1996) citing Parmenton Decorah. The Bureau may employ the general rules of statutory construction when it reviews or interprets tribal constitutions or ordinances. Shakopee, 27 IBIA 163 (1995). When it must interpret tribal law the Bureau should do so in a manner which avoids the absurd result of rendering the tribal government totally inoperative. Carris LaRocque, Melvin Lenoir, Bruce Morin, Lee Gourneau, Douglas DeLorme and Raphael DeCoteau v. Aberdeen Area Director, 29 IBIA 201 (1996).

Review of tribal ordinances, even though required by a tribal constitution, is an intrusion into tribal self-government. Review should therefore be undertaken in such a way as to avoid unnecessary interference with tribal self-government. Cheyenne River Sioux Tribe v. Aberdeen Area Director, 24 IBIA 55 (1993); Ottawa Indian Tribe of Oklahoma v. Muskogee Area Director, 24 IBIA 92 (1993); Wallace W. Wells, Jr., Randy Shields, & Leonard Pease, Jr., v. Acting Aberdeen Area Director, 24 IBIA 142 (1993); Ute Indian Tribe of the Uintah & Ouray Reservation v. Phoenix Area Director, 21 IBIA 24 (1991). The BIA properly disapproves a tribal ordinance found to be in conflict with Federal law. White Mountain Apache Tribe v. Acting Phoenix Area Director, 21 IBIA 151 (1992). A lack of absolute legal certainty as to whether the ordinance conflicts with Federal law, however, weighs in favor of approval. Cheyenne River Sioux Tribe, 24 IBIA 55 (1993).

The Bureau properly declines to alter the established manner in which it has been dealing with a tribal government in the absence of definitive evidence that such a change was desired by the tribal membership, as opposed to being desired by a faction of the tribal council which is attempting to control the tribal government's affairs during a serious internal crisis. Frederick Tomah, Danya Boyce, Sally Lindsay, and Anthony Tomah v. Acting Eastern Area Director, 30 IBIA 92 (1996), Reconsideration Denied 30 IBIA 90 (1996). The Bureau should decline to hold fact-finding hearings in such matters because such hearings would constitute not only an unwarranted intrusion into tribal government, but would be a "retreat into the old days of paternalism." Webster Cusick v. Acting Eastern Area Director, 31 IBIA 255 (1997).

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