Appeals from Administrative Decisions Issued by the Bureau of Indian Affairs

The subject matter of the "administrative" appeals received by the Board is extremely varied, reflecting the broad range of the Bureau of Indian Affairs' (BIA's) responsibilities to Indian people and tribes. Many appeals concern Indian lands and natural resources. Appeals in this area might involve, for example, farming, grazing, oil and gas, or business leases; trust land acquisitions; timber contracts; grazing permits; and rights-of-way. Other appeals concern tribal governmental issues, such as approval of tribal ordinances or election disputes. A third broad category of appeals concerns financial assistance of various kinds, for example, general assistance (welfare), loans, loan guaranties, Indian business development grants, and housing assistance.

Appeals Arising under 25 C.F.R. Part 2

BIA's general appeal regulations are found in 25 C.F.R. Part 2. Most of the Board's administrative cases arise from a continuation of an appeal begun under 25 C.F.R. Part 2. When an appeal is filed with the Board, the appeal is governed by the regulations in 43 C.F.R. Part 4, Subpart D. Because the regulations in 25 C.F.R. and 43 C.F.R. are not identical, it is important to be sure that you are using the correct regulations.

Significant Other Appeal Procedures

Some BIA program regulations contain appeal procedures which differ from those in 25 C.F.R. Part 2. Appeal procedures established in program regulations take precedence over the procedures in 25 C.F.R. Part 2. 25 C.F.R. 2.3(b); In re Federal Acknowledgment of the Golden Hill Paugussett Tribe, 34 IBIA 18 (1999).

Although this is not a complete list of BIA program regulations with special appeal procedures, some significant program regulations with special procedures include:

  • 25 C.F.R. Part 62, Enrollment Appeals. The Board does not normally hear cases involving enrollment disputes. First, enrollment is primarily a tribal matter. Second, when BIA becomes involved in enrollment issues under 25 C.F.R. Part 62, decisions are first appealable within BIA and then to the Assistant Secretary under 25 C.F.R. 62.11. The Board has, however, decided some cases involving membership issues. See Rosales v. Sacramento Area Director, 32 IBIA 158 (1998); Alan-Wilson v. Sacramento Area Director, 30 IBIA 241 (1997).
  • 25 C.F.R. Part 83, Procedures for Establishing that an American Indian Group Exists as an Indian Tribe. Under 25 C.F.R. 83.11, a group petitioning for Federal acknowledgment or an interested party may seek reconsideration of the Assistant Secretary's determination either to acknowledge or not to acknowledge the petitioning group. Board review of these decisions is conducted under the procedures set out in 25 C.F.R. 83.11. See In re Federal Acknowledgment of the Golden Hill Paugussett Tribe, 34 IBIA 18 (1999).
  • 25 C.F.R. Part 900, Contracts under the Indian Self-Determination and Education Assistance Act. These regulations concerning contracting under the Indian Self-Determination Act (ISDA), 25 U.S.C. 450-450n, were issued jointly by the Department of the Interior (DOI) and the Department of Health and Human Services (HHS). The regulations are found in 25 C.F.R. Part 900. These regulations are substantially different from the earlier regulations, which were found in 25 C.F.R. Parts 271 and 272 (1996).

    Special procedures for appealing decisions under ISDA are found in 25 C.F.R. 900.150-900.176. Under these regulations, most appeals from pre-contracting decisions of any bureau or office of DOI and of the Indian Health Service in HHS are filed with the Board. The Board makes preliminary determinations, such as whether or not the appeal was timely filed. See, e.g., Citizen Potawatomi Nation v. Acting Area Director, Oklahoma City Area, Indian Health Service, 30 IBIA 182 (1997); Douglas Indian Association v. Juneau Area Director, 31 IBIA 117 (1997). If the Board determines that the appeal should go forward, that the appeal is in an area for which there is a right to a hearing and recommended decision by an ALJ, and that the appellant has not waived its right to a hearing, it will refer the matter to OHA's Hearings Division for assignment to an ALJ. See, e.g., Pascua Yaqui Tribe of Arizona v. Acting Director, Tucson Area Office, Indian Health Service, 32 IBIA 98 (1998).

    Although called a "recommended" decision, the ALJ's decision is final unless appealed. See 25 C.F.R. 900.166. Appeals from ALJ decisions involving bureaus and offices in DOI are taken to the Board. See 25 C.F.R. 900.165(c). Appeals involving HHS are taken to HHS. See 25 C.F.R. 900.165(b). HHS has instructed that appeals should be addressed to: Departmental Appeals Board, U.S. Department of Health and Human Services, Room 637-D, Humphrey Building, 200 Independence Avenue, S.W., Washington, DC 20201.

    There are strict time limitations on both the ALJ and the Board in handling ISDA cases. The Board has 20 days from receipt of an appeal from an ALJ's decision in an ISDA case in which to issue a decision. See 25 C.F.R. 900.167(a). Based on these time restraints, the Board will establish a very short period for filing an answer brief. If the Board does not issue a decision within 20 days of its receipt of a notice of appeal, the ALJ's decision automatically becomes final for the Department.

    The Board has the responsibility under 25 C.F.R. 900.176 to publish all final ISDA decisions from both DOI and HHS. These decisions are available on this website.

  • 25 C.F.R. Part 1000, Annual Funding Agreements under the Tribal Self-Governance Act Amendments to the Indian Self-Determination and Education Act. These regulations govern tribal self-governance compacts with the Department of the Interior and annual funding agreements (AFAs) for those compacts, and apply to both BIA and non-BIA programs of the Department. Appeals from decisions involving BIA programs are handled through the 25 C.F.R. Part 900 procedures. For appeals from decisions involving non-BIA programs, tribes may appeal to a bureau head or the appropriate Assistant Secretary, or directly to the Board. 25 C.F.R. 1000.432(b).
     

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