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:
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.
The Board does not have authority to grant equitable relief against a tribe. See, e.g., Bulletproofing, Inc. v. Acting Phoenix Area Director, 20 IBIA 179 (1991).