Limitations on the Board Jurisdiction

The Board is not a court of general jurisdiction, or even a court of general Indian jurisdiction. Its authority may be limited by statute or regulation. Other limitations are inherent in the nature of the Board as a part of the Executive Branch of Government. Additionally, there are limitations arising from the fact that Indian tribes are sovereigns.


Limitations Imposed by Statute


Any appeal subject to the Contract Disputes Act, 41 U.S.C. 601-613, including both procurement contracts and most post-contracting issues arising under the Indian Self- Determination Act, 25 U.S.C. 450-450n, are appealable to the Civilian Board of Contract Appeals or to Federal court. See Crow Tribe of Montana v. Contracting Officer, National Business Center, Bureau of Land Management, 33 IBIA 31 (1998). The authority of the former Interior Board of Contract Appeals is now exercised by the CBCA within the General Services Administration.

Limitations Imposed by the Fact that the
Board Is Part of the Executive Branch of Government

As part of the Executive Branch of Government, the Board lacks authority to declare an act of Congress unconstitutional. This authority resides in the Judicial Branch. E.g., County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 (2002); Estate of Annie Greencrow Whitehorse, 27 IBIA 136 (1995). However, some courts may still require an appeal to be brought to the Board in order to prove that you have exhausted all administrative remedies available to you. When it is apparent that the sole issue raised in an appeal is the constitutionality of a Federal statute, the Board may expedite its decision. See, e.g., Estate of William Youpee, 22 IBIA 248 (1992); Estate of Shonie Curley, 17 IBIA 115 (1989).

Limitations Imposed by Regulation

Departmental regulations limit both the subject matters over which the Board has jurisdiction and, in some cases, the scope of its review authority.  Limitations on Subject Matter Jurisdiction. The Board's subject matter jurisdiction is limited in the areas of:

  • Education. Under 25 C.F.R. Part 2, decisions of BIA education officials are appealed to the Director of Education Programs in the BIA Central Office and then to the Assistant Secretary - Indian Affairs. See 25 C.F.R. 2.4(e); Santa Fe Indian School, Inc. v. Acting Director, Office of Indian Education Programs, 34 IBIA 46 (1999).
  • Enrollment. Decisions in tribal enrollment disputes and issues concerning an individual's degree of Indian blood are appealed to the Assistant Secretary - Indian Affairs under 25 C.F.R. Part 62. See 43 C.F.R. 4.330(b)(1).
  • Certain Indian land and natural resources issues. Jurisdiction over certain matters involving Indian lands are within the jurisdiction of the Interior Board of Land Appeals (link), rather than the Board of Indian Appeals. See 43 C.F.R. 4.330(b)(3).
  • Tribal attorney contracts. Under 25 C.F.R. 88.1(c), a decision of a BIA Regional Director approving, disapproving, or conditionally approving a tribal attorney contract is final for the Department. Therefore, such decisions may not be appealed to the Board. See Welch v. Minneapolis Area Director, 17 IBIA 56 (1989).
  • Limitations on the Scope of Review. Departmental regulations limit the scope of the Board's review with respect to discretionary decisions of BIA officials. Under 43 C.F.R. 4.330(b)(2), the Board is precluded from reviewing "matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority" unless requested to do so by the Secretary or the Assistant Secretary - Indian Affairs.

Although the Board does not review the exercise of discretion itself, it does review legal or procedural issues which arise in connection with a discretionary decision. The Board does not substitute its judgment for BIA's, but it may review whether proper consideration was given to all legal prerequisites to the exercise of discretion. E.g., City of Lincoln v. Portland Area Director, 33 IBIA 102 (1999). The Board may also review a discretionary decision for reasonableness. Absentee Shawnee Tribe v. Anadarko Area Director, 18 IBIA 156 (1990).

Examples of BIA discretionary decisions are: (1) decisions whether or not to partition Indian trust land, Soper v. Acting Anadarko Area Director, 29 IBIA 182 (1996); (2) decisions approving or disapproving conveyances of trust land, Escalanti v. Acting Phoenix Area Director, 17 IBIA 290 (1989); (3) decisions granting or denying loans, loan guaranties, or grants, Tullius v. Acting Anadarko Area Director, 28 IBIA 110 (1995); (4) decisions to take land into trust status, or declining to do so, City of Eagle Butte v. Aberdeen Area Director, 17 IBIA 192, 96 I.D. 328 (1989), City of Lincoln City v. Portland Area Director, 33 IBIA 102 (1999).

Waiver of Regulatory Limitations

Where the Board's jurisdiction is limited by regulation, the Secretary or the Assistant Secretary - Indian Affairs may waive the limitation by special delegation or request to the Board. 43 C.F.R. 4.330(b). The Secretary has referred matters to the Board for decision even though the Board would not normally have jurisdiction over them. E.g., In re Federal Acknowledgment of the San Juan Southern Paiute Tribe, 18 IBIA 213 (1990). Similarly, the Assistant Secretary - Indian Affairs has authorized the Board to exercise his discretion on a case-by-case basis. E.g., Robinson v. Acting Billings Area Director, 20 IBIA 168 (1991).

Limitations Imposed by the Delegation of Authority to the Board

As a subordinate of the Secretary of the Interior, the Board has only the authority that the Secretary has delegated to it. The Board is occasionally requested to take actions or to grant relief which exceeds the authority delegated to it. Sometimes these requests are unique. For example, in In re Petition of Mary V. McRae, 29 IBIA 300 (1996), the Board held that it had not been delegated authority to issue a writ of habeas corpus to a CFR Court. However, there are other requests that arise periodically. For example:

Limitations Imposed by Tribal Sovereignty

Indian tribes are sovereigns. The policy of the Federal Government is to support tribal governments and to recognize and encourage tribal sovereignty and self-determination. The Board fully supports this policy and implements it in its decision making.

Tribal officials, tribal governing bodies, tribal courts, and CFR Courts all issue decisions. CFR Courts (sometimes also called "Courts of Indian Offenses"), are courts established under 25 C.F.R. Part 11. They are intended "to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian county where tribes retain jurisdiction over Indians that is exclusive of state jurisdiction but where tribal courts have not been established to exercise that jurisdiction." 25 C.F.R. 11.100(b). They are considered both agencies of the Federal Government and tribal courts. E.g., Tillett v. Lujan, 931 F.2d 636 (10th Cir. 1991). CFR Courts are funded by BIA and, for administrative purposes, come under the BIA Regional Offices. 25 C.F.R. 11.207(a) prohibits BIA employees from obstructing, interfering with, or controlling the functions of a CFR Court. CFR Courts may exercise both criminal and civil jurisdiction within limits set out in 25 C.F.R. Part 11, including probate jurisdiction over non-trust property.


Links to Additional Topics on the Board's Jurisdiction

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