To: IGA Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director Re: Appeals from Administrative Affairs Date: December 2, 2022
On December 1, 2022, the Bureau of Indian Affairs published in the Federal Register , a proposal to revise regulations governing the process for pursuing administrative review of actions by Indian Affairs officials. The goal of this proposed revision is “to reflect changes in the structure of Indian Affairs and provide specificity and clarity to the appeals process.” The regulations governing administrative appeals of actions by Indian Affairs officials, 25 C.F.R. Part 2, have not undergone major revisions since 1989. The proposed rule, if promulgated, would provide mechanisms for appealing decisions by Indian Affairs officials that did not exist in 1989. This includes language that clarifies that the Assistant Secretary has jurisdiction over appeals of actions by Assistant Deputy Secretaries. The proposed rule would also alter the language to present the regulations in plain and direct English. In addition to this, the regulations would authorize, where possible, the filing of appeal documents in portable document format (“PDF”) via email. The Notice states that the Assistant Secretary is especially interested in comments regarding electronic filing. Proposed subpart E, at §§ 2.508–2.510, explains that the Assistant Secretary has authority to assume jurisdiction over an appeal to the Interior Board of Indian Appeals (“IBIA”) by notifying the IBIA from 40 days after IBIA’s receipt of Notice of Appeal. This would extend the timeline for the Assistant Secretary to assume jurisdiction by 20 days. The Notice states that the Assistant Secretary is especially interested in comments regarding the treatment of appeals. Proposed subpart F would direct all appeals of inaction up the chain of command, to the official whose alleged inaction gave rise to the appeal. This would require that the only duty of a superior official would be to direct the subordinate official to take action. In addition to revising existing subparts, the proposed revisions also include new subparts, G , H , and I . Subpart G would set out an appeals process to minimize the time during which a BIA tribal representative recognition does not go into effect due to being appealed by making the decision by the first-level reviewing official immediately effective. Subpart H would provide an opportunity for the agency to correct its own errors and ensure the development of a complete administrative record for a court to review in the event of an APA challenge to final agency action. Finally,
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