How Do I Appeal a Decision to the Board?

Why Appeal to the Board?

There are two major reasons for appealing to the Board. First, the Department does not impose any filing fees or other charges for bringing an appeal. If you believe that an administrative law judge or Indian probate judge decision in a probate matter, or a BIA decision in an administrative matter, is incorrect, an appeal to the Board is a cost effective means of testing the decision.

Second, a decision from the Board may be required to show exhaustion of administrative remedies before bringing suit in court. The Federal courts require that a party go through any administrative review process which a Federal agency provides before filing suit in Federal court. This is intended to allow the Federal agency the opportunity to review decisions issued by subordinate officials and to correct errors before a final decision is issued for the Department of the Interior. If you file suit in Federal court from a decision which is appealable to the Board, without first going through the Board, the Justice Department will file a motion to dismiss the appeal for failure to exhaust administrative remedies. Such motions are routinely granted, and by then an attempt to return to the Board may be untimely.

Who May Appeal? 

An appeal must be filed by an interested party. To be an "interested party" means that you have a legally protected interest that has been adversely affected or "injured" by the decision that is the subject of your appeal. For administrative cases (e.g., appeals from decisions of officials of the Bureau of Indian Affairs made under Title 25 of the Code of Federal Regulations (CFR)), see 25 C.F.R. 2.101 (definitions of “Appeal” and "Interested party"); 25 C.F.R. 2.200 (Who may appeal a decision?); 43 C.F.R. 4.331 (Who may appeal) Anderson v. Great Plains Regional Director, 52 IBIA 327, 331 (2010). For probate cases, see 43 C.F.R. 4.320 (Who may appeal a judge's decision or order?); 43 C.F.R. 4.201. In probate cases, "interested party" is specifically defined to mean (1) any potential or actual heir; (2) any devisee (i.e., entitled to receive property) under a will; (3) any person or entity asserting a claim against a decedent's estate; (4) any tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or (5) any co-owner of land in a decedent's estate who is exercising a purchase option. 43 C.F.R. 4.201; see Estate of Teresa Chaney, 51 IBIA 283, 283 n.1 (2010). "Interested party" does not mean that you only have a general "interest" in or are "concerned" about the decision or the case.

In both administrative and probate cases, your own legally protected rights or interests must be adversely affected in order for you to be entitled to appeal. Although the limitations on jurisdiction by Federal courts, e.g., Article III of the U.S. Constitution, do not directly apply to the Board, there are common elements between the doctrine of judicial "standing" and the regulatory requirements for filing an appeal with the Board. Therefore, the Board generally requires that an appellant must demonstrate standing under the elements set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See, e.g., Rosebud Indian Land and Grazing Ass'n v. Acting Great Plains Regional Director, 50 IBIA 46, 53 (2009); Voices for Rural Living v. Acting Pacific Regional Director, 49 IBIA 222, 232 (2009). 

Must I Have a Lawyer?

A notice of appeal and any other document filed with the Board must be signed by a person qualified to appear before the Department. This does not necessarily mean a lawyer, although all lawyers in good standing with their state bar association are qualified to appear before the Department. 43 C.F.R. 1.3 identifies persons qualified to appear before the Department. A person who appears as the representative of an appellant must be prepared to demonstrate that they have been authorized to represent the appellant (e.g., as an appointed guardian, or with the written permission of the appellant). A person who is filing and signs the appeal and other documents on her/his own behalf is called a "pro se" appellant.

43 C.F.R. 1.3(a) provides that it "shall not be deemed to restrict the dealings of Indian tribes or members of Indian tribes with the Department." The Board has interpreted this section to mean that if a filing is made for an Indian party by a person who is not a qualified representative, the Board will accept the filing, but will inform the party that the person is not qualified to appear under Departmental regulations, and will give the party an opportunity to adopt the filing as her or his own, or to choose a qualified representative. See Estate of Benjamin Kent, Sr. (Ben Nawanoway, 13 IBIA 21 (1984). Footnote 2 in Estate of Kent specifically allows representation by tribal court advocates who are admitted to practice before a tribe.

The requirement for a "qualified" representative has been imposed as a protection for the party. Because the party is bound by the Department's decision whether or not they had good representation, being represented by individuals who are not directly involved in the case or trained in the law it is not advisable.

With Whom Do I File My Appeal?

All appeals to the Board must be filed with the Board. See 43 C.F.R. 4.321(b) (probate appeals) and 43 C.F.R. 4.332(a) (administrative appeals). An appeal is not filed with the Board if it is sent to a BIA office, to the Office of the Solicitor, to the Assistant Secretary – Indian Affairs, to the Secretary of the Interior, or even to all those places.

How Long Do I Have to File an Appeal?

Probate appeals must be filed with the Board within 30 days from the date the final order being appealed was sent. See 43 C.F.R. 4.321(a). Administrative appeals must be filed within 30 days after you receive the decision being appealed. See 43 C.F.R. 4.332(a). 

When issuing a final probate order, such as an order on rehearing or reopening, probate judges must include a notice stating that interested parties who are adversely affected, or BIA, have a right to appeal the final order to the Board within 30 days. See, e.g., 30.240(f), 30.248(c).

BIA officials are required to state in their decisions whether there is a right to further review, identify the official to whom the matter may be appealed, and indicate that there is a 30-day deadline for filing an appeal. 25 C.F.R. 2.104, 2.507. If appeal rights are not given in the decision, additional procedures in 25 C.F.R. 2.104(b) will apply.

How Do I Count the Days?

43 C.F.R. 4.310(c) sets out how to count days for any filing made with the Board. In general, do not count the day you receive a document. Instead, start counting with the next day. If the time for filing is less than 7 days—which is unusual with the Board—only count work days, and do not count weekends and holidays. In most cases, the time for filing will be more than 7 days. In these cases, count all days, including week days, weekends, holidays, and other days when the Federal government is not in operation. See Capoeman v. Portland Area Director, 30 IBIA 234 (1997).

If the last day of the period is a weekend, Federal holiday, or other day when the Federal government is not in operation, your document is due on the next day when the Federal government is in operation. For example, if the end of the period falls on a Saturday before a Monday holiday, your filing is due the next Tuesday. However, if the end of the period falls on a Wednesday, your filing is due that day.

When Is My Appeal "Filed"?

"Filing" with the Board is completed upon personal delivery to the Board in Arlington, Virginia, or upon mailing by U.S. mail. See 43 C.F.R. 4.310(a). Delivery by commercial carrier (e.g., UPS or Fed-Ex) is considered personal delivery. If a document is due on Monday, and you are mailing it on Monday, it is a good idea to take the document to the Post Office and ask to have Monday's postmark put on the envelope.

What Happens if My Appeal Is Late?

The filing of a timely notice of appeal is jurisdictional. This means that the Board cannot consider an appeal if the notice of appeal is not timely. See 43 C.F.R. 4.321(a) (probate); 43 C.F.R. 4.332(a) (administrative). An appeal that is not timely filed must be dismissed. See Estate of Frank Nelson Buffalomeat, 34 IBIA 120 (1999); Quileute Indian Tribe v. Portland Area Director, 34 IBIA 98 (1999); Charlie v. Navajo Area Director, 30 IBIA 302 (1997).

Can I Fax My Notice of Appeal to the Board or File It by E-Mail?

No. The Board's regulations do not allow filing an appeal by fax or by e-mail.

What Do I Need to Include with My Notice of Appeal?

In all cases, a notice of appeal should identify who made the decision you are appealing and give the date of the decision. It should show the persons to whom you sent a copy of your notice of appeal. See 43 C.F.R. 4.322(b) (probate); 43 C.F.R. 4.333(a) (administrative).

In administrative cases, your notice of appeal should also briefly set out the reasons why you believe the decision is incorrect. See 43 C.F.R. 4.332(a)(2). This statement does not need to be a full statement of your concerns (such as you would put in a statement of reasons or opening brief), but only sufficient to allow the Board to determine that it has jurisdiction over the issues you are raising.

Send the original notice of appeal or other document to the Board and enclose a copy of the decision from which you are appealing. You do not need to send extra copies.

Do I Have to Send Copies of My Notice of Appeal to Anyone Else?

You are required to serve copies of your notice of appeal on interested parties. See 43 C.F.R. 4.323(b) (probate); 43 C.F.R. 4.333(a) (administrative). In probate appeals, the interested parties are the persons or entities on the distribution list that accompanies the probate decision of the administrative law judge or Indian probate judge. In administrative appeals, you must serve those persons or entities "having rights or privileges which may be affected by a change in the decision, whether or not they participated as interested parties in the earlier proceedings." See 43 C.F.R. 4.332(a)(3). For example, in administrative appeals, you may need to serve the Indian landowners, an Indian tribe, or other persons having rights to use Indian lands through leases or rights-of-way. In addition, in administrative appeals, you are required to serve the Assistant Secretary – Indian Affairs so that, if the Assistant Secretary so chooses, the Assistant Secretary can exercise the right to assume jurisdiction over the appeal. See 43 C.F.R. 4.332(a)-(b) and 25 C.F.R. 2.508.

You may serve your notice of appeal by regular mail or personal delivery. You are not required to send it by certified mail. Your notice of appeal to the Board must include a "certificate of service," which means that your appeal must include a signed statement identifying the individuals on whom you served your appeal and the date on which you served them.

If your notice of appeal does not show service on obvious interested parties, the Board will order you to serve interested parties before proceeding further with the appeal. The Board will also inform you that the appeal will be dismissed for lack of prosecution if you fail to serve interested parties. See, e.g., Liberty v. Portland Area Director, 34 IBIA 15 (1999).

The Board reminds parties of the service requirement in its notice of docketing.

 

Links to Additional Frequently Asked Questions

• Is the Decision Issued by an Administrative Law Judge or the Bureau of Indian Affairs in Effect During the Appeal?
• What If I Want to Act on the Decision During the Appeal?
• Can I Try to Settle My Appeal after Filing It or Use Some Form of Alternative Dispute Resolution?
• Can I Talk Directly with the Board Judge to Explain My Appeal?