Pierce, Arthur F. and Oneida Indian Nation of New York v. Eastern Area Director, 27 IBIA 183 (1995)

Docket Number:IBIA 95-51-A
 
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v. : Docket No. IBIA 95-51-A EASTERN AREA DIRECTOR, :

Appellants Arthur F. Pierce and the Oneida Indian Nation of New York sought review of an October 14, 1994, decision of the Eastern Area Director, Bureau of Indian Affairs (Area Director; BIA), declining to issue Pierce a deputy special officer commission (DSOC). The Board of Indian Appeals (Board) dismisses this appeal.

The Board received the appeal on November 8, 1994. On December 8, 1994, it received a memorandum from the Assistant Secretary - Indian Affairs (Assistant Secretary) stating her intention to assume jurisdiction over the appeal under 25 CFR 2.20(c) and 43 CFR 4.336. These regulations provide procedures under which the Assistant Secretary can assume jurisdiction over an appeal filed with the Board during the 15-day period following her receipt of the appeal. By order dated December 8, 1994, the Board concluded that the Assistant Secretary's attempt to assume jurisdiction was not timely under the regulations, and instructed the Area Director to continue preparation of the administrative record.

On December 21, 1994, the Board was furnished with a copy of a memorandum of the same date from the Acting Deputy Commissioner of Indian Affairs (Deputy Commissioner) to the Area Director. The memorandum indicated that the Deputy Commissioner was aware of the appeal pending before the Board but believed that "justice [could] be more quickly and efficiently served by [BIA' s] issuance of the requested DSOC." The memorandum continued with a request that the Area Director review the record and issue a DSOC unless she found a compelling reason not to do so.

By order dated December 22, 1994, the Board stated:

The [memorandum] is subject to an unfortunate intepretation--that the * * * Deputy Commissioner is requesting the Area Director to violate Departmental appeal regulations by taking action on a matter pending before the Board. The Board has consistently held that, once an appeal has been filed with the Board,

BIA loses jurisdiction over the matter except to participate in the appeal as a party. E.g., United Auburn Indian Community v. Sacramento Area Director, 24 IBIA 33, 38-39 (1993), and cases cited therein. As stated in that decision: "[T]he rule is part of any orderly review process and is intended to ensure that only one forum at a time has authority to act in a matter."

The Board advised the parties that the Area Director could request that the matter be remanded to...

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