JurisdictionUnited States
Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)


Kathryn A. Lynn
Interior Board of Indian Appeals
Arlington, Virginia

[Page 14B-1]


The Office of Hearings and Appeals (OHA) of the Department of the Interior (Department) was established in 1970 as an independent, quasi-judicial office within the Office of the Secretary of the Interior. It is separate from both the Office of the Solicitor and the Department's various program bureaus, whose decisions it reviews. OHA has been delegated authority to adjudicate disputes arising from the Department's enforcement of the laws under its jurisdiction.

OHA is composed of the Office of the Director, a Hearings Division, an Appeals Division, and an Administrative Division. The Hearings Division presently has nine Administrative Law Judges (ALJs), located in Field Offices in Albuquerque, New Mexico (1 ALJ); Oklahoma City, Oklahoma (1 ALJ); Sacramento, California (1 ALJ); Salt Lake City, Utah (3 ALJs); and St. Paul, Minnesota (3 ALJs). These ALJs hear all cases in which a hearing on the record is required under the Administrative Procedure Act, 5 U.S.C. § 554, including Indian probate cases. They also hear other cases which are referred to them by one of the appeals boards, even though a hearing "on the record" may not be required. See 43 C.F.R. § 4.1(a).

OHA has three standing appeals boards: the Interior Board of Contract Appeals, the Interior Board of Indian Appeals, and the Interior Board of Land Appeals. These boards are commonly abbreviated as, respectively, IBCA, IBIA, and IBLA. All of these boards are located in Arlington, Virginia. General delegations of authority to each of the boards are found in 43 C.F.R. § 4.1(b)(1), (2), and (3). General regulations which apply to all of OHA, unless superseded by specific regulations of a particular component, are found in 43 C.F.R. Part 4, Subpart B. Specific rules applicable to the Contracts Board are found in 43 C.F.R. Part 4, Subpart C; to the Indian Board in 43 C.F.R. Part 4, Subpart D; and to the Lands Board in 43 C.F.R. Part 4, Subparts E and L.

The Director, OHA, appoints ad hoc boards as needed for appeals which do not fall within the jurisdiction of one of the standing appeals boards. See 43 C.F.R. § 4.1(b)(4). Members of ad hoc boards are drawn from the standing boards as well as other qualified persons within OHA. Ad hoc cases may relate to the Department's program responsibilities or to personnel matters within the Department. Some examples of cases heard by ad hoc boards are civil penalty assessments under various endangered species statutes, relocation assistance for persons or businesses forced to move because of the acquisition of land by the Department, certain matters involving rental rates for Government-furnished quarters, salary offset hearings under 5 U.S.C. § 5514, waiver of pay and allowance charges under 5 U.S.C. § 5584, charges for damage to or loss of Departmental property, and other matters for which there is a general

[Page 14B-2]

right of appeal to the head of the Department. Rules applicable to ad hoc boards are found in 43 C.F.R. Part 4, Subpart G.

Under a reimbursable agreement, OHA provides hearing officers for the National Indian Gaming Commission in enforcement actions under 25 C.F.R. Chapter III (Parts 501-577). These hearing officers hold any hearing required and issue a recommended decision to the National Indian Gaming Commission.

OHA hears employee grievances cases under a delegation of authority contained in the Departmental Manual.

The Director, OHA, is the Department's Dispute Resolution Specialist, and Chairman of the Department's Dispute Resolution Council, which is comprised of the Department's Assistant Secretaries, Solicitor, and the Director of the Office of Regulatory Affairs. In this capacity, the Director is responsible for providing policy guidance to the Secretary on the use of alternative methods of dispute resolution (ADR), and for assisting the Department's bureaus and offices in implementing effective ADR programs covering both internal workplace disputes and the Department's program responsibilities. The Department's ADR policy includes the opportunity for the use of ADR even after appeals are filed with the various components of OHA. The Department's Final ADR Policy was published at 61 Fed. Reg. 40424 (Aug. 2, 1996). Personnel within OHA have been trained and utilized as ADR neutrals.

[Page 14B-3]





The Interior Board of Indian Appeals (Board) was an original component of OHA when the Office was created in 1970.

From 1970 until 1975, the Board's jurisdiction was limited to reviewing decisions rendered in Indian probate cases by the Department's ALJs under authority of 25 U.S.C. §§ 372 -373. These cases, which are still part of the Board's jurisdiction, involve probate of the estates of Indians who die owning property in trust status.

During this time period, however, the Commissioner of Indian Affairs (Commissioner) occasionally referred other matters involving Indians either to the Director, OHA, or directly to the Board. See, e.g., Villa Vallerto v. Patencio, 2 IBIA 140 (1974); Murphy v. Anadarko Area Director, 3 IBIA 47 (1974). These cases involved decisions issued by the Bureau of Indian Affairs (BIA) in the exercise of its program responsibilities.

In 1975, the Board's jurisdiction was expanded to include appeals from administrative decisions of the Commissioner in cases where the decision was based on an interpretation of law. See 40 Fed. Reg. 20819 (May 13, 1975). During the period from 1975 to 1989, most initial BIA administrative decisions were issued by the Superintendents of BIA's Agencies, with a right of appeal to the appropriate Area Director (one of the heads of BIA's twelve Area Offices), then to the Commissioner. Appeals to the Commissioner were handled in the Central Office of BIA in Washington, D.C. When the Commissioner issued a decision, he included a statement in the decision as to whether it was based on an interpretation of law or on the exercise of discretion. If the Commissioner's decision was based on an exercise of discretion, it was final for the Department. If the decision was based on an interpretation of law, it could be appealed to the Board. In response to several appeals filed during this period which alleged that the Commissioner had incorrectly held that his decision was based on an exercise of discretion when it was in fact based on an interpretation of law, the Board held that the Commissioner's characterization of whether a decision was based on discretion or law constituted a decision of law which it had authority to review. See Aleutian/Pribilof Islands Association, Inc. v. Acting Deputy Assistant Secretary—Indian Affairs (Operations), 9 IBIA 254 (1982).

[Page 14B-4]

There were a number of problems with the BIA's administrative appeal process during this period. The most serious was the length of time it took to complete the appeal process. Even when appeals were handled promptly, the process was prolonged, simply because of the number of appeal levels. However, there were often delays in issuing decisions at each stage. There was no requirement that an the Area Director issue a decision within a specific time period. Although the regulations required the Commissioner to issue a decision within 30 days after all pleadings were due, this deadline was seldom met.

In 1987, the then Assistant Secretary — Indian Affairs decided that BIA appeals should be handled more expeditiously, and authorized an extensive revision of the BIA appeal regulations. Among other things, a 60-day deadline was established for Area Directors' decisions. See 25 C.F.R. § 2.19(a). Also a provision was added allowing persons to appeal from the inaction of a BIA official. See 25 C.F.R. § 2.8. Perhaps most significantly, the Assistant Secretary decided to eliminate review by the BIA Central Office and to have decisions of BIA Area Directors appealed directly to the Board. The Assistant Secretary retained the authority to assume jurisdiction over any appeal filed with the Board. See 25 C.F.R. § 2.20(c).

Final regulations implementing these changes were published at 54 Fed. Reg. 6478 on February 10, 1989, and went into effect on March 13, 1989. The Board revised its procedural regulations at the same time, to correspond to the changes being made in the BIA procedures. A copy of the Board's present regulations appears at the end of this paper.


The Board presently has two administrative judges and one legal assistant. It also has two alternate members who can be called on to break a tie between the regular members or if one of the regular members is unavailable for any reason.

The Board is located at 4015 Wilson Boulevard, Arlington, Virginia 22203. Its telephone number is 703-235-3816.

Probate appeals now make up a relatively small percentage of the Board's docket. In recent years, no more than 20 probate appeals have been received each year.

Since promulgation of the 1989 revision to the regulations, the Board's caseload of administrative appeals has more than tripled. The Board receives about 120-130 administrative appeals a year.

BIA's twelve Area Directors are now called Regional Directors.

[Page 14B-5]


In general, the Board exercises the authority of the Secretary of the Interior (Secretary) to issue decisions in (1) appeals in Indian probate matters, (2) appeals from decisions of BIA officials, and (3) other matters pertaining to Indians which are referred to it by the Secretary, the Assistant Secretary —...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT