by Dario F. Robertson,
For far too long, the Bureau of Indian Affairs (BIA) has operated like a law unto itself in Indian country.
As the vast majority of tribal governments know from painful first-hand experience, the BIA routinely operates as if it is above the law, as if it is not required to respect the basic constitutional liberties of Native Americans, as if the right of tribal self-government existed at the whim of BIA bureaucrats. There is no more telling example of the BIA's abuse of power than its reckless and illegal intervention into the internal political affairs of the Cherokee Nation of Oklahoma (CNO) in support of Principal Chief Joe Byrd. The BIA is clearly out of control in Oklahoma. The solution does not lie in the courts. Responsibility for stopping the BIA's abuse of power rests with Congress and with every Indian in the United States who has finally had enough of the BIA.
The BIA's patently illegal intervention into CNO internal political affairs warrants an immediate congressional investigation of the BIA's abuse of power in Oklahoma. Congressional hearings should be convened both in Washington, D.C. and on reservations across Oklahoma to give Indian people a chance to tell their elected representatives what is happening to them.
The Bureau of Indian Affairs has outlived any usefulness it ever had for American Indians. It is a gross anachronism in an era of tribal self-determination. Most critics of the BIA and a rapidly increasing number of Indians across the country are now calling for the outright abolition of the Bureau of Indian Affairs because its culture of corruption and institutional incompetence runs so deep that any attempt at reform would be futile.
Until the BIA is formally abolished, however, there are a number of desperately needed interim legislative reforms that Congress can adopt to help stem the tide of BIA abuses, such as those now making national news in Oklahoma.
As the BIA's recent intervention into internal CNO affairs vividly illustrates, there are no existing regulations or statutory standards defining the appropriate procedures that the BIA must follow when deciding to intervene in an internal tribal dispute. At present, the BIA regularly makes such decisions in secret, on a completely ad hoc basis, without notice to any adversely affected parties and without any kind of public hearing whatsoever. This process of decision, even when made pursuant to BIA regulations, typically violates the constitutionally protected due process rights of adversely affected tribal members, often without effective judicial recourse. In the usual case, the BIA engages in no formal fact-finding process and merely accepts some favored tribal leader's version of events without any corroboration.
When a tribal government possesses a judiciary with jurisdiction to resolve an internal political dispute, the BIA is without any jurisdiction to intervene. In the leading case of Wheeler v. Bureau of Indian Affairs, the Tenth Circuit held that "when a tribal forum exists for resolving a tribal election dispute, the [Interior] Department must respect the tribe's right to self-government and, thus, has no authority to interfere." When the BIA must intervene as may be required on rare occasion by statute or tribal law, it must act "so as to avoid any unnecessary interference with a tribe's right to self government" and in "a manner which is least disruptive of tribal sovereignty and self-determination."
As a matter of basic due process of law under the Fifth Amendment of the U.S. Constitution, the BIA should, when required to intervene in an internal tribal dispute, afford all affected parties prior notice and a hearing in light of the very weighty liberty and property interests at stake in any such decision to intervene. Congress has already provided by statute that the BIA may not, in the absence of an "immediate threat to safety," rescind a funding contract with an Indian tribe without providing prior "notice and a hearing" and, even when an "immediate threat to safety" exists, the BIA must provide a hearing within ten days of rescinding a funding contract on an emergency basis.
It would seem highly anomalous that Congress would legislate such strict due process standards for any BIA decision to rescind a funding contract, but leave the BIA free to intervene in internal tribal political disputes at the whim of BIA bureaucrats. Clearly, any BIA decision to intervene in an internal tribal dispute has just as much or more impact on the right of tribal self-government as a contract rescission decision. Nearly 20 years ago, Alvin J. Ziontz, a leading practitioner of federal Indian law, objected to the BIA's departure from due process standards in rendering tribal recognition decisions and called on the Interior Department Secretary to "afford tribal institutions and officers the same measure of due process heretofore afforded tribal governments by federal courts. At the very least, the Secretary should promulgate clear standards for administrative intervention and insure that all parties be afforded notice and the opportunity to be heard." No such standards for BIA intervention currently exist, allowing BIA officials to make totally unprincipled, ad hoc intervention decisions on whatever basis they deem appropriate without prior notice or a hearing.
Congress should enact new legislation which affirmatively requires the BIA to (1) give all affected parties prior notice of an intent to intervene in an internal tribal political dispute, (2) allow any affected party to request the disqualification of the BIA decision maker charged with the responsibility of making the decision to intervene, (3) give all affected parties a formal initial hearing on the record before an impartial hearing officer under the Administrative Procedure Act, (4) allow any adversely affected party to appeal any initial decision to an administrative law judge, rather than to any political appointee or lay bureaucrat within the Interior Department such as the Assistant Secretary – Indian Affairs, and (5) provide for immediate federal court jurisdiction in the event that the constitutional rights of any affected party are threatened with irreparable injury, thereby relieving any such party of any obligation to exhaust administrative remedies prior to seeking federal court relief.
Although BIA decisions to intervene in internal tribal political disputes may be appealed under Interior Department administrative regulations, those regulations are constitutionally deficient because they do not mandate prior notice or an initial hearing, nor do they even require any post-intervention hearing at all. Escape clauses allow the Assistant Secretary - Indian Affairs to preempt any appeal and prevent it from reaching an impartial administrative tribunal. Any appeal is subject to indefinite delay at the whim of the Assistant Secretary. The appeal regulations are, in short, a Kafkaesque nightmare of unnecessary procedural complexity with no guarantee that an appeal will ever be heard on the record before an impartial decision maker. They are plainly unconstitutional under the Due Process Clause of the Fifth Amendment of the U.S. Constitution. [Please see the flowchart of the Interior Department's incoherent administrative appeal process appended to this article.]
Congress needs to act now to protect the due process rights of Native Americans across the country from arbitrary BIA intervention decisions by enacting new legislation mandating fair procedures consistent with the constitutional requirements of due process of law.
In recent years, leadership disputes have plagued tribal government across the country. They frequently result in the effective paralysis of the afflicted tribal government and may even lead to violent confrontation. The lack of strong, independent tribal justice systems in most tribes makes resolution of these disputes especially difficult. Where tribal justice systems exist, they often have extremely limited powers and may be overridden by a recalcitrant tribal council, as has so clearly transpired at CNO under the Byrd administration.
Tribes across the country are in desperate need of more federal funding for tribal dispute resolution systems. Great care should be taken in planning such systems because the reflexive adoption of a court system modeled after the state or federal paradigm is likely to prove highly ineffective and may be perceived by many Native Americans as illegitimate. Adversarial dispute resolution processes such as those which occur in state and federal courts are often alien to the culture, values and traditions of many tribes. Adversarial processes in the American system make conflict public and tend to entrench adversaries, while giving lawyers an extremely influential role in controlling the course of the adversarial proceedings.
Rather than reflexively adopt a state or federal judicial model, tribes should experiment with alternative dispute resolution (ADR) methods, while drawing on their rich traditions. This will result in a more informal, less threatening tribal dispute resolution process. Once such a tribal or intertribal system is in place, the BIA's jurisdiction to intervene in internal tribal disputes will terminate and the BIA will be bound by the result reached by internal tribal dispute resolution processes.
Congress must allocate the funds promised the tribes in the Indian Tribal Justice Act of 1993 (ITJA), which authorized $50 million "for each of the fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and 2000" in funding for tribal justice systems. Although $50 million per year has been authorized, the BIA has been allocating only about $12 to $15 million per year for tribal justice systems since the passage of ITJA. For example, Professors Goldberg-Ambrose and Champagne report that "[a]s of 1995, the BIA was allocating $80,440,000 per year for tribal law enforcement and another $14,102,000 for Indian judicial services."
Congress and the BIA must allocate at least $50 million per year nationwide for both intertribal justice and alternative dispute resolution systems if tribes hope to develop viable tribal governments after decades of BIA intervention and abuse.
No system of government can be expected to function effectively without an institutional means of dispute resolution or a forum in which to enforce its laws, yet many tribal organizations across the country have been expected to do just that. With the effective suspension of the Cherokee judiciary, CNO has recently added its name to the list of tribes without functioning tribal justice systems, a situation which must be deemed a per se violation of the due process rights of all affected tribal members under the 1968 Indian Civil Rights Act.
By grossly underfunding tribal justice systems, the BIA has made it impossible for tribes to function fairly and effectively with the result that they have been plagued by political instability and internal discord. The instability of tribal governments is, thus, not primarily the fault of Indian tribes, but of a federal system which so under funds tribal judicial institutions that no other result is practically possible. To see the truth of this conclusion, one has only to ask how long the state or federal government could function effectively without a judiciary.
Under the Indian Reorganization Act (IRA) of 1934, the BIA is expressly granted the power to approve the "choice of [legal] counsel and fixing of fees" made by an IRA Indian tribe. The BIA also claims the same power to approve tribal attorney contracts for tribes not organized under the IRA.
The BIA has consistently used this power to prevent tribes from obtaining competent legal counsel and clearly favors for approval attorneys who can be expected to cooperate with the BIA, even to the extent of compromising the zealous advocacy of the tribal client's interests. As early as 1934, Congress heard complaints about the BIA's "pet lawyers" who ingratiated themselves with the BIA and were routinely favored for contract approval. Conversely, attorneys who represent their tribal client's interests against the dictates of the BIA find themselves highly disfavored candidates for contract approval and subject to BIA harassment.
The current attorney contract approval process creates inherent conflicts of interest for the tribal attorney. On the one hand, the tribal attorney owes a primary duty of loyalty to the tribal client and is ethically bound to act zealously in the tribe's best interest. On the other hand, the attorney is subject to the "hire and fire" power of the BIA. Thus, when the tribal attorney acts in what he or she believes to be the tribe's best interest in accordance with the expressed wishes of his client, but against the dictates of the BIA, the tribal attorney is vulnerable to the undue influence of the BIA.
The BIA can retaliate against the independent tribal attorney by refusing to approve additional attorney contracts, harassing uncooperative attorneys with groundless investigations while disingenuously claiming to be merely discharging the BIA's trust responsibility, or subtly threaten the tribal attorney with termination or imply that approval for future tribal contracts will be denied. The result is that BIA approval powers over tribal attorney contracts threaten the independence of the professional judgment of tribal attorneys and should be eliminated.
No other professional consultant retained by tribal governments is subjected to such BIA scrutiny as tribal attorney candidates: not accountants, auditors, management consultants nor any other class of independent contractors. The reason is obvious. Attorneys empower tribal governments. They provide tribal governments with the expertise and know-how necessary to combat BIA abuses of power. Attorneys can assist the tribal government in drafting tribal codes, organizing tribal justice systems, incorporating tribal businesses, promoting economic development and developing the institutional infrastructure necessary for successful tribal self-government. In short, tribal attorneys represent a grave threat to the power and control of the BIA over reservations. They threaten tribal dependence on BIA technical assistance and thereby call into question the reason for the BIA's existence. Thus, the BIA consistently makes the tribal attorney approval process as ridiculously long and drawn-out as possible, aggressively pursuing any bureaucratic option that will delay the approval process and discourage the attorney from pursuing his or her candidacy.
The BIA's obstruction of the effective legal representation of Indian tribes has profound constitutional implications. By arbitrarily denying approval to politically disfavored tribal attorney candidates, the BIA not only infringes the First Amendment rights of the attorney to free political expression, it obstructs a tribe's free access to the courts in violation of the First Amendment right to petition the government for a redress of grievances.
In response, legislation should be immediately introduced in Congress (1) amending those sections of Title 25 which require the special approval of the Secretary of the Interior of an Indian tribe's choice of legal counsel and the terms of employment of such legal counsel and (2) guaranteeing to Indian tribal governments the right to retain the legal counsel of their choice. The following draft bill, using a definition of "Indian tribe" substantially similar to that found at 25 U.S.C. § 1301(1) (1995), offers lawmakers a useful starting point:
To grant every Indian tribe the right to employ legal counsel of its own choosing without obtaining the approval of the Secretary of its choice of counsel or the terms of employment of such counsel.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. This Act may be cited as the `Right to Tribal Counsel Act of 1997'.
SECTION 2. FINDINGS. The Congress finds and declares that--(1) the right to employ legal counsel of its own choosing is an inherent part of the sovereign right of tribal self-government;SECTION 3. DEFINITIONS. For purposes of this chapter:
(2) tribal legal counsel must be free to exercise independent professional judgment when retained by an Indian tribe to effectively and zealously represent the interests of tribal clients;
(3) effective tribal legal representation is essential to the protection and promotion of tribal self determination, self-reliance and the inherent sovereignty of Indian tribes; and
(4) Indian tribes are in urgent need of improved access to legal counsel due to unnecessary and outdated legal restrictions on their right to counsel.
(1) "Secretary" means the Secretary of the Interior or his or her authorized representative;
(2) "legal counsel" means any attorney at law licensed to practice law in the jurisdiction of any State; and
(3) "Indian tribe" means any Indian tribe, band, nation, pueblo, or other organized group or community, including any Alaskan Native entity, subject to the jurisdiction of the United States and recognized as possessing the powers of self-government.
SECTION 4. Tribal Right to Free Choice of Legal Counsel. Every Indian tribe shall have the right to employ legal counsel of its own choosing without obtaining the approval of the Secretary of its choice of counsel or the terms of employment of such counsel.
SECTION 5. Repeal of Inconsistent Statutory Provisions. [This section will contain language amending any provision of Title 25 which expressly or implicitly requires an Indian tribe to obtain the approval of the Secretary of(1) its choice of legal counsel or
(2) the terms of employment of such legal counsel, including any language requiring such approval in 25 U.S.C. §§ 81, 81a, 81b, 82 and 476.]
Although Congress enacted legislation in 1968 that requires the BIA to grant or deny an application for attorney contract approval within 90 days, the BIA can frustrate the purpose of this law by merely rejecting an application on completely frivolous grounds after a ninety day review leaving the applicant to (1) re-apply and wait for an additional 90 days for BIA review of an amended contract, (2) challenge the denial administratively and endure a delay of up to two years or more while the appeal winds its way through the Interior Department's protracted and indeterminate appellate process, or (3) file a costly, time-consuming lawsuit in federal court challenging the BIA's contract denial as infringing constitutionally protected rights. In any case, bad faith BIA contract denial can effectively preclude retention of any attorney the BIA believes will effectively represent the tribe and thereby threaten its arbitrary authority.
These concerns are not hypothetical. The author of this article, attorney Dario F. Robertson, who has personally filed two successful lawsuits against the BIA, has been targeted for harassment by the BIA. Since December 1996, the Quapaw Tribe of Oklahoma has been attempting to retain Mr. Robertson and local Oklahoma counsel, Ms. Kathy Carter White, as tribal attorneys. Their first set of contracts was rejected by the BIA because there was a single inconsequential typographical error in the text of one of the contracts and because the contracts were inadvertently submitted sequentially instead of simultaneously by tribal officials. The typographical error was corrected and the contracts were then re-submitted simultaneously. They were recently rejected nearly one week after the 90 review period had expired. By operation of federal statute, BIA failure to grant or deny a tribal attorney contract application within 90 days results in automatic approval. The BIA nonetheless incorrectly maintains that its late denial is legally effective, compelling the two attorneys to seek redress in federal court. The contracts rejected as unacceptable by the BIA in Oklahoma were approved by the BIA in California with only a single minor reservation.
In fact, if an attorney applicant uses a contract different from the BIA's poorly drafted "tentative form contract," BIA regulations require the attorney to first submit an unsigned contract for pre-execution approval before submitting the signed contract a second time for post-execution approval. According the applicable federal regulations, "[w]hen the attorney or tribe proposing to execute a contract desires to make substantial changes in the tentative form [contract drafted by the BIA], the proposed changes should be submitted through the superintendent to the Area Director for approval as to form prior to execution of a contract." It is revealing to note that the BIA's tentative form contract includes a provision that excludes lawsuits against the federal government from the scope of the tribal attorney's representation, thereby preventing the tribal attorney from suing the BIA without the BIA's own consent. In fact, the BIA's tentative form contract is so skeletal and so obviously adverse to the interests of the tribal client that attorneys risk committing malpractice by signing it.
Only by freeing Indian tribes of the outdated, paternalistic, bureaucratic requirement of obtaining BIA approval of its choice of legal counsel will the un-met legal needs of Indian tribes have any chance of being addressed with the effective assistance of legal counsel.
The BIA's recent intervention into the internal affairs of the Cherokee Nation of Oklahoma is not unique. The same kind of illegal administrative decisions which the BIA has taken in Tahlequah have occurred over and over again on Indian reservations across the country.
The BIA's abuses do not normally come to light because many Indian tribes do not have access to effective legal counsel, lack the financial resources to litigate or even publicize their claims and are often unaware of their legal rights. That is why it is so important for Congressional representatives to carefully examine the abuses that have occurred and continue to occur in the case of the Cherokee Nation of Oklahoma at the hands of BIA officials. The Cherokee Nation of Oklahoma offers congressional policy makers a rare glimpse into the secretive realm of arbitrary BIA administrative decision making.
The Cherokee Observer has documented a shocking litany of BIA abuses in the articles it has published on the CNO's constitutional crisis during the last several months. These abuses demand immediate congressional attention. To ignore them for even a moment is to deny the Cherokee people the same constitutional rights enjoyed by every other American citizen. To refuse to take appropriate legislative action is to admit that the promise of American democracy has excluded Native Americans and denied them equal justice under law. Native Americans, never living in any state in sufficient numbers to concern the vast majority of congressional representatives, are trapped in a hopelessly antiquated, dysfunctional administrative system driven by incoherent, internally inconsistent federal policies.
When Native Americans seek federal court relief for BIA civil rights violations, their claims may be dismissed because the affected tribe cannot be joined as a necessary and indispensable party, thereby allowing the BIA to hide behind the misplaced shield of tribal sovereign immunity. When they seek federal redress against puppet tribal governments manipulated by the BIA, they may be thrown out of court because tribal governments enjoy immunity from suit. If, as is usually the case, there is no genuinely independent, competent tribal court in existence to hear their claims, their most basic civil rights may be violated with impunity and with no hope of redress. When they turn to their congressional representatives, too often their pleas are ignored because there are not sufficient numbers of Indians in that district to constitute a politically significant voting block. Wherever they turn, no one will listen.
Isolated, impoverished and socially marginalized on remote reservation, Native Americans struggle desperately to be heard over the din of wealthy vested interests and self serving government bureaucrats. Their current situation is not unlike that of Afro-Americans before the dogma of "separate but equal" was exposed by the Supreme Court as a cruel euphemism to disguise a grotesque system of racial discrimination. Like blacks living in the shadow of segregation, Native Americans must endure the degrading hypocrisy of administrative policies that continually undermine their human dignity and personal liberties in the name of "federal trust responsibility."
Like some Orwellian "Big Brother," the BIA publicly praises its own self-restraint when its excesses are most conspicuous, asserts its most reverent regard for tribal sovereignty when acting to subvert authentic self-determination and invariably pleads its innocence the loudest when its guilt is most painfully apparent. Although its ploy is transparent, its power is terrifyingly real and when the BIA acts it brings the full weight of the federal government behind it, often crushing any recalcitrant opponents in its way.
Native Americans often feel themselves to be hopelessly alienated and entrapped by the reservation system in much the same way that the metaphorical prisoner in W.E.B. Du Bois' allegory of the "dark cave" felt alienated and entrapped by institutionalized racial segregation in the following passage from his 1940 book, Dusk of Dawn:
It is as though one, looking out from a dark cave..., sees the world passing and speaks to it; speaks courteously and persuasively showing them how these entombed souls are hindered in their natural movement, expression, and development; and how their loosening from prison would be a matter not simply of courtesy, sympathy and help to them, but aid to all the world. One talks on evenly and logically in this way but notices that the passing throng does not even turn its head, or if it does, glances curiously and walks on. It gradually penetrates the minds of the prisoners that the people passing do not hear; that some thick sheet of invisible but horribly tangible plate glass is between them and the world... [T]he people within... may scream and hurl themselves against the barriers, hardly realizing in their bewilderment that they are screaming in a vacuum unheard and that their antics may actually seem funny to those outside looking in. They may even, here and there, break through in blood and disfigurement, and find themselves faced by a horrified, implacable, and quite overwhelming mob of people frightened for their own existence.
Like the "entombed souls" of Du Bois' allegory, Native Americans are pounding against the transparent walls of their prison demanding justice. Their cries for redemption can no longer be trivialized and dismissed. Their voice must be heard. Prompted by their own tribal constitutional crisis, perhaps the Cherokees will lead the way again, as they have so often in the past, and turn tribal tragedy into a victory for all Native American people.
The time to abolish the Bureau has unmistakably arrived and the best evidence of BIA excesses is found in its lawless support of a lawless tribal government headed by Principal Chief Joe Byrd. The time for comprehensive reform in federal Indian policy has come. Let it begin in Tahlequah.
1. See, e.g., Michael Satchell and David Bowermaster, "The Worst Federal Agency: Critics Call the Bureau of Indian Affairs a National Disgrace," U.S. News & World Reports, November 28, 1994, pp. 61-64.
2. On the futility of any attempt to reform the BIA short of its abolition, see E. Cahn & D. Hearne, eds., Our Brother's Keeper: The Indian in White America 147-55 (1970).
3. Wheeler v. United States Department of the Interior, Bureau of Indian Affairs, 811 F.2d 549, 553 (10th Cir. 1987); Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983); R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 983 (9th Cir. 1988); Southland Royalty Co. v. Navajo Tribe of Indians, 715 F.2d 486, 489 (10th Cir. 1983); Potts v. Bruce, 533 F.2d 527, 529 (10th Cir. 1976); Prairie Band of Potawatomi Tribe of Indians v. Udall, 355 F.2d 363, 367 (10th Cir. 1966).
4. Wheeler, 811 F.2d at 553, supra note 3.
5. Crooks v. Area Director, Minneapolis Area Office, Bureau of Indian Affairs, 14 I.B.I.A. 181, 183 (1986).
6. 25 U.S.C. § 450m (1995) provides that a funding contract with an Indian tribe may be rescinded if the Secretary of the Interior determines that the tribe's performance under the contract involves (1) the violation of the rights or endangerment of the health, safety, or welfare of any persons, or (2) gross negligence or mismanagement in the handling or use of funds provided to the tribal organization under such contract, but only if the Secretary affords the affected tribe prior notice and a hearing. If there is an immediate threat to safety, however, the Secretary may immediately rescind the contract, but is still required to give the affected tribe a post-rescission hearing within ten days of the rescission. Id.
7. Ziontz, After Martinez: Civil Rights Under Tribal Government, 12 U.C. Davis L. Rev. 1, 33 (1979) (emphasis added).
8. 5 U.S.C. § 554 (1995).
9. For example, either the Assistant Secretary - Indian Affairs (ASIA) or the Interior Board of Indian Appeals (IBIA) could determine that this dispute concerns "[m]atters decided by the Bureau of Indian Affairs through exercise of its discretionary authority" under 43 C.F.R. § 4.330(b)(2) and must, therefore, be referred to the ASIA for indefinite "further consideration" under 43 C.F.R. 4.337(b) without any guarantee whatsoever of a hearing or a final determination of plaintiffs' claim within any definite time frame. 25 C.F.R §§ 2.1-2.21 (1996); 43 C.F.R. §§ 4.330-4.340 (1996).
10. See, e.g., Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 587 (1989) (agency review void where there is no "reasonable time limit" on consideration of claims); Barry v. Barchi, 443 U.S. 55, 61 (1979) (If no hearing is held prior to a suspension decision, a "prompt post-suspension" hearing must be held "without appreciable delay." Thirty days was too long in Barchi.)
11. 25 U.S.C. §3621(b) (1995).
12. C. Goldberg-Ambrose & D. Champagne, A Second Century of Dishonor: Federal Inequities and California Tribes 49 (March 27, 1996) (a report prepared by the UCLA American Indian Studies Center for the Advisory Council on California Indian Policy) (emphasis added) (hereinafter cited as "A Second Century of Dishonor").
13. Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8) (1995).
14. 25 U.S.C. § 476 (1995).
15. 81 U.S.C. § 81 (1995).
16. R. Barsh & J. Henderson, The Road: Indian Tribes and Political Liberty 256 n.28 (1980).
17. The author of this article, attorney Dario F. Robertson, has been aggressively harassed by the BIA and has twice had a tribal attorney contract rejected for no coherent reason. The BIA knows that if it can harass or intimidate the tribal attorney into abandoning his or her client, the tribe will be effectively helpless to pursue any legal remedies it has against the BIA. Needless to say, BIA harassment and interference with the client-attorney relationship is an actionable violation of the constitutionally protected rights of the adversely affected attorney and the tribal client.
18. 25 U.S.C. § 1331 (1995).
19. 25 C.F.R. § 89.18 (1996).
20. BIA Tentative Form Contract § 2.
21. W. Du Bois, Dusk at Dawn: An Essay toward an Autobiography of a Race Concept 130-31 (1940), quoted in K. Karst, Belonging to America: Equal Citizenship and the Constitution 26 (1989).
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