Louriero, Debra v. Acting Pacific Regional Director, 37 IBIA 158 (2002)

• Court: Interior Board of Indian Appeals

Order Docketing and Dismissing Appeal Docket No. IBIA 02-61-A February 27, 2002

Appellant Debra Louriero seeks review of a January 16, 2002, decision issued by the Acting Pacific Regional Director, Bureau of Indian Affairs (Regional Director; BIA), denying burial benefits for Appellant's mother, Emma Rose Mitchell. For the reasons discussed below, the Board of Indian Appeals (Board) dismisses this appeal.

Appellant apparently sought burial benefits for her mother under 25 C.F.R. §§ 20.324-20.326. Section 20.324 provides: "In the absence of other resources, [BIA] can provide Burial Assistance for eligible indigent Indians meeting the requirements prescribed in § 20.300." Section 20.300 provides the eligibility requirements for direct assistance from BIA. The Regional Director's January 16, 2002, decision did not reach the question of whether Appellant's mother was otherwise eligible for assistance under 25 C.F.R. § 20.300, because it found that she did not meet the definition of "Indian" set forth in 25 C.F.R. § 20.100. As relevant to this appeal, "Indian" is defined in section 20.100 as "a member of an Indian tribe." "Indian tribe" is defined to mean "an Indian or Alaska Native tribe, band, nation, pueblo, village, or community which is recognized as eligible for the special programs and services provided by the United States because of their status as Indians." According to Appellant, her mother was a member of the Yokayo Tribe of California, which is not Federally recognized.

In her notice of appeal, Appellant contends that the definition of "Indian" in 25 C.F.R. § 20.100 violates the Snyder Act, 25 U.S.C. § 13. The Snyder Act provides in pertinent part:

The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes:

[List of purposes omitted.]

Appellant argues at page 2 of her Notice of Appeal:

[T]he Snyder Act contemplates the provision of [BIA] social services for Indians throughout the country and does not restrict eligibility for welfare assistance to members of federally recognized tribes. * * *

Since an administrative agency has no power to create a rule or regulation that is "out of harmony with the statutory grant of its authority" (Ruiz v. Morton[, 462 F.2d 818, 822 (9th Cir. 1972), aff'd, 415 U.S. 199...