Oklahoma Bar Journal

Exhaustion of Administrative Remedies in the Bureau of Indian Affairs

By Conor Cleary

Administrative law – mere mention of the topic may send a shiver down the spine, or induce the overwhelming urge to take a nap. Practicing it can be like learning a foreign language, requiring mastery of technical terminology obscured in inaccessible administrative codes. For many law students, it was a class you desperately tried to avoid taking in law school (up there with tax law, which, of course, is largely administrative). Perhaps this is why the late Justice Scalia once jokingly remarked that “administrative law is not for sissies.”1

Many attorneys it seems, comfortable within the confines of the courts, would prefer to avoid the administrative arena entirely, or, at a minimum, abscond with an administrative decision and seek judicial review if necessary. But even escaping the walls of an administrative agency often proves difficult, with seemingly complex rules requiring exhaustion of administrative remedies before seeking judicial review.

The purpose of this article is to help alleviate the anxiety administrative law induces, demystify the inner workings of administrative agencies and elucidate the doctrine of exhaustion of administrative remedies. Specifically, the article will examine the Bureau of Indian Affairs (BIA), an administrative agency attorneys in the state of Oklahoma will likely encounter sometime during their careers, explain the hierarchy of its decision making and explain how those decisions must be appealed internally before seeking judicial review in the federal courts.

The Administrative Procedure Act (APA) waives the United States’ immunity from suit and allows judicial review of agency actions.2  The APA is not a grant of federal subject-matter jurisdiction, however. To establish jurisdiction, the claimant must rely on a specific statute authorizing review of agency action3 or seek review of a “final” agency action.4 Many agency actions are not made reviewable by a specific statute, so judicial review typically is requested of “final” agency actions under §704 of the APA. Finality is not the same thing as exhaustion, and exhaustion of administrative remedies is not necessarily required in order for an agency action to be “final.”5Rather, “an appeal to a superior agency (i.e., exhaustion) is a prerequisite to judicial review only when expressly required by statute or when agency rule requires appeal before review…”6 Most actions by the BIA will require exhaustion of administrative remedies before judicial review because the BIA’s regulations provide that “[n]o decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. §704[.]”7

The doctrine of exhaustion of administrative remedies provides that “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”8 In less tautological terms: remedies available in an administrative forum must be fully pursued before seeking judicial review in a court of law. Exhaustion serves two aims. First, it protects “administrative agency authority” by allowing the agency “primary responsibility for the programs … [it] administer[s].”9 Second, it “promotes judicial efficiency” by allowing agencies to correct errors which may moot controversies or avoid piecemeal appeals and developing a thorough record for those appeals that progress to judicial forums.10 So, if BIA regulations require exhaustion, how is exhaustion accomplished? A quick review of the structure of the BIA will assist in understanding the process.

The Department of the Interior (department) is headed by the secretary of the interior, who has several assistant secretaries with responsibility for specific policy areas. The assistant secretary of Indian affairs (AS-IA) has responsibility for the Bureau of Indian Affairs, whose mission is to enhance the quality of life, to promote economic opportunity and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives.11

The delivery of program services to federally recognized Indian tribes and individual Native Americans and Alaska Natives is administered by 12 regional offices12 and 83 agencies that each have jurisdiction over specific Indian tribes and lands. In Oklahoma, there are two regional offices – Eastern Oklahoma and Southern Plains. The Eastern Oklahoma Regional Office has six agencies13 while Southern Plains has four.14 Each regional office is headed by a regional director and each agency is headed by a superintendent.

The Office of Hearings and Appeals (OHA) is the adjudicatory body for the department, conducting hearings and deciding appeals from decisions of the bureaus and offices of the department. The Interior Board of Indian Appeals (IBIA) is the appellate body within OHA that reviews decisions of officials within BIA.15 There are general procedural rules and regulations applicable to all proceedings on appeal before IBIA, and more specific rules and regulations that are applicable to the different kinds of cases over which the IBIA has jurisdiction. This article will discuss the most common cases reviewed by IBIA and the rules and regulations applicable thereto – administrative actions or decisions of BIA officials issued under the Indian affairs regulations found in Title 25 of the Code of Federal Regulations.16


The decision-making process generally begins at the BIA agency level, with decisions from the agency superintendent.17 Decisions by superintendents of BIA agencies are appealed to the regional director.18 Once the regional director renders a decision, it may be appealed to the IBIA.19The procedure for correctly filing and litigating an appeal before the IBIA is found in the regulations in 43 C.F.R. Part 4, Subpart D.20 Once the appeal is fully briefed, the IBIA will make a decision in writing, setting forth findings of fact and conclusions of law.21 The decision may adopt, modify, reverse or set aside any proposed finding, conclusion or order of a BIA official.22 Unless otherwise stated in the decision, the IBIA’s decision is final for the department.23 No further appeal will lie within the department from a decision by the IBIA and the filing of a petition for reconsideration is not required to exhaust administrative remedies.24 Once the IBIA issues its decision, only then may a claimant seek judicial review.

The 10th Circuit has strictly applied the BIA’s exhaustion requirements, repeatedly citing 25 C.F.R. §2.6 which provides that “[n]o decision, which at the time of its rendition is subject to appeal  to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. §704.”25 The 10th Circuit has rejected attempts to bypass the exhaustion requirement where, for example, in lieu of a decision from IBIA, plaintiffs characterized letters from BIA officials as final agency action.26 The 10th Circuit also turned away attempts by litigants to proceed directly to federal court from decisions by BIA regional directors without first appealing those decisions to, and obtaining a decision from, IBIA.27 Furthermore, the 10th Circuit also declined to find final agency action where appeals were made to IBIA, but remanded for further action by BIA.28 Since “the Regional Director ha[d] yet to render a decision on remand,” the court concluded that “it is clear that this matter is still pending with the BIA and remains subject to administrative adjudication by the IBIA.”29 The court explained that until the regional director issued a decision, that plaintiffs had not suffered a legal wrong or been adversely affected, but merely were anticipating an adverse decision.30

Although administrative agencies may seem mysterious and their exhaustion procedures labyrinthine, the BIA has by express regulation required appeal of most decisions to the IBIA before seeking judicial review in federal court. Attorneys will save their clients time and money by following the procedures laid out in 25 C.F.R. Part 2 and 43 C.F.R. Part 4 Subpart D which provide clear guidance on how to appeal decisions by BIA officials to IBIA and thereby seek judicial review in federal court if necessary.

Author’s Note: The opinions expressed are my own and do not necessarily represent the views of the Office of the Solicitor or the Department of the Interior. Any errors or omissions are my own.

Conor P. Cleary is a trial attorney with the Office of the Solicitor, U.S. Department of the Interior. His practice involves advising and representing administrative agencies within the Department of the Interior, and focuses primarily on federal Indian law. He graduated from the OU College of Law in 2010, where he served as articles editor of the Oklahoma Law Review.

1. Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” 1989 Duke L.J. 511.
2. 5 U.S.C. §702.
3. Id.
4. Id., §704.
5. Darby v. Cisneros, 509 U.S. 137, 144 (1993) (“[T]he judicial doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality[.]”).
6. Id., at 154. The underlying decision being appealed must also be rendered “inoperative,” id., meaning that “it has no positive effect” and “the status quo before the decision continues.” Osage Producers Ass’n v. Jewell, 191 F.Supp. 3d 1243, 1252 n.7 (N.D. Okla. 2016) (citing Manny Indus. v. Sec’y of Labor, 432 F. Supp. 88, 89 (C.D. Cal. 1977), aff’d, 596 F.2d 409 (9th Cir. 1979)).
7. 25 C.F.R. §2.6(a). There are a few limited exceptions to the exhaustion requirements. See, generally, Nulankeyutmonen Nkihtaqmikon v. Impson, 573 F. Supp. 2d 311, 316 (D. Me. 2008). One common exception is where exhaustion would be futile.See id. (identifying “‘exceptional circumstances,’ such as futility, ‘where exhaustion may not be required.’”); see also Gardner v. Salazar, 2013 U.S. Dist. LEXIS 44953, *8 n.3 (D. Utah March 27, 2013), aff’d, In re Gardner, 2013 U.S. App. LEXIS 19172 (10th Cir. Sept. 17, 2013). Exhaustion may be futile where the BIA has preannounced its decision, denied the claimant access to administrative remedies or has shown undisputed evidence of bias. See Impson, 573 F. Supp. 2d at 320. The futility exception is extremely narrow and available only on rare occasions. See id. (citations omitted). Another exception to the exhaustion rule exists where “the plaintiff asserts a colorable constitutional claim that is collateral to the substantive issues of the administrative proceeding.” Harline v. DEA, 148 F.3d 1199, 1203 (10th Cir. 1998). A constitutional claim is not colorable if it is “immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous.” Id. (internal quotation and ellipses omitted). In other words, a litigant cannot avoid the exhaustion requirement by simply alleging a constitutional violation for “[i]f the mere allegation of a denial of due process could suffice to establish subject-matter jurisdiction, then every act of an agency would be immediately judicially reviewable[.]” Id.
8. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 -51 (1938).
9. McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
10. Id.
11. www.bia.gov/WhoWeAre/BIA/index.htm (last accessed July 26, 2017).
12. Alaska, Eastern Oklahoma, Midwest, Northwest, Rocky Mountain, Southwest, Eastern, Great Plains, Navajo, Pacific, Southern Plains and Western.
13. Chickasaw Agency, Miami Agency, Okmulgee Agency, Osage Agency, Talihina Agency and Wewoka Agency.
14. Anadarko Agency, Pawnee Agency, Concho Agency and Horton Agency.
15. There are other appellate bodies for other bureaus in the department. For example, the Interior Board of Land Appeals (IBLA) reviews decisions of officials within the Bureau of Land Management. For a recent 10th Circuit decision on exhaustion of administrative remedies before the IBLA see Farrell-Cooper Mining Co. v. United States, No. 16-7061, 2017 U.S. App. LEXIS 13396 (10th Cir. July 25, 2017).
16. www.doi.gov/oha/organization/ibia/Appeals-from-Administrative-Decisions-Issued-by-the-Bureau-of-Indian-Affairs (last accessed July 20, 2017). There are separate rules and regulations for appeals to the IBIA from decisions by administrative judges regarding the probate of Indian trust property. See 43 C.F.R. §4.320 et seq. A discussion of those procedures, and the exhaustion thereof, is beyond the scope of this article.
17. Examples of issues that will first be decided by the agency superintendent include: approval of various kinds of leases of Indian land (see 25 C.F.R. §162.010(a)(3) (“Prospective lessees … must submit the lease … to the BIA office with jurisdiction over the lands covered by the lease …”)); rights-of-way over Indian land (see 25 C.F.R. §169.101 (“To obtain a right-of-way across tribal or individually owned Indian land[,] … you must submit a complete application to the BIA office with jurisdiction over the land covered by the right-of-way.”)); and oil, gas and other mineral leases (see 25 C.F.R. §211.20 (Indian mineral owners may, with the approval of the superintendent[,] … lease their land for mining purposes.”)). Although the majority of decisions by BIA begin at the agency level, not all do. For example, American Indian groups seeking to be recognized as tribes begin by filing a letter of intent with AS-IA. See 25 C.F.R. §83.4. 
18. 25 C.F.R. §2.4(a). The IBIA does not have jurisdiction over appeals from decisions of agency superintendents; appeals must be made to the regional director first. See 43 C.F.R. §4.331(a)(“Any interested party affected by a … decision of an official of the Bureau of Indian Affairs … may appeal to the Board of Indian Appeals, except … that decisions which are subject to appeal to a higher official within the Bureau of Indian Affairs must first be appealed to that official.”); see also Northern Cheyenne Livestock Ass’n v. Acting Superintendent, Northern Cheyenne Agency, 43 IBIA 24 (2006).
19. There are a few subject areas in which the IBIA does not have jurisdiction over decisions made by a regional director, unless permitted by the secretary of the interior or the assistant secretary – Indian Affairs. For example, the IBIA does not have jurisdiction over a regional director’s decision regarding tribal enrollment disputes or matters decided by the BIA through exercised of its discretionary authority. See 43 C.F.R. §4.330(b). Moreover, there are certain decisions of superintendents and regional directors that are appealed to the AS-IA rather than the IBIA. See, e.g., 25 C.F.R. §23.61 (providing appeal from decision of agency superintendent or regional director to AS-IA regarding grants to Indian tribes for the establishment and operation of Indian child and family service programs under the Indian Child Welfare Act).
20. The procedures include important timing, notice and service requirements that must be followed. See 43 C.F.R. §4.330 et seq.
21. 43 C.F.R. §4.312.
22. Id.
23. Id.
24. Id., §4.314(b)-(c).
25. See, e.g., Jech v. Dep’t of Interior, 483 Fed. Appx. 555, 558 (10th Cir. 2012); Blackbear v. Norton, 93 Fed. Appx. 192, 193 (10th Cir. 2004).
26. See Jech, supra, at 559 n.3 (“We determine that the letters from the BIA do not constitute final agency action.”).
27. See Blackbear, 93 Fed. Appx. at 193 (“Neither those plaintiffs whose appeal to the IBIA is pending nor those who chose not to appeal can point to a final agency action upon which to base their claim.”).
28. See Fort Berthold Land and Livestock Assn. v. Anderson, 361 F.Supp. 2d 1045 (D.N.D. 2005); Guimont et al. v. Acting Great Plains Regional Director, Bureau of Indian Affairs, 40 IBIA 47, 48 (2004).
29. See Anderson, supra, at 1052.
30. Even where administrative remedies have been exhausted initially, further exhaustion may be required if the court reverses and remands to the agency for further action consistent with the opinion and new legal issues arise in the BIA’s subsequent decision. See Miami Tribe of Oklahoma v. United States, 2005 U.S. Dist. LEXIS 29468 (D. Kan. Nov. 23, 2005).

Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 2217 (Nov. 18, 2017)