North Dakota Administrative Code Title 41 - Indian Affairs Commission
What is the Indian Affairs Commission (NDIAC)
The North Dakota Indian Affairs Commission (often abbreviated NDIAC) was created by the North Dakota Legislature in 1949. Its purpose is to act as a liaison between the Tribal Nations in North Dakota and the State government (Executive branch), and to assist in improving relations, resolving issues, coordinating intergovernmental agreements, and advancing the welfare and self‑determination of Native Americans in North Dakota.
The membership of the Commission includes: the Governor (who is the chair), several appointed members (some of whom must be of Indian descent), and, importantly, representation by the tribes themselves (via their chairpersons or designees). Its duties include mediation, studying Indian affairs, assisting in development of programs, advising, and helping with proper protocol in dealings between State agencies and Tribes.
The Commission is not considered an “administrative agency” under the North Dakota statute defining those agencies (NDCC section 28‑32‑01). That means it is not subject to certain rulemaking or procedural constraints that apply to state administrative agencies under the Administrative Agencies Practice Act. As a result, any rules it might have adopted are not published in the North Dakota Administrative Code in the same way as rules of “administrative agencies.”
Legal Basis & Statute
The legal authority for the Commission is codified in ND Century Code Chapter 54‑36, which sets out the composition, powers, duties, and functions of the Indian Affairs Commission. These include investigating Indian affairs, assisting tribal, state, and federal agencies to achieve better standards of living for Indians, assisting tribal self‑government, coordinating governmental agencies, negotiating agreements when asked, etc.
Because it is not an “administrative agency” under NDCC 28‑32‑01, the Commission does not fall under the ND Administrative Agencies Practice Act; that affects how its regulations or policies are adopted and enforced.
What Title 41 Means in the Administrative Code
Title 41 is a label in the North Dakota Administrative Code for “Indian Affairs Commission.” However, given the status that the Commission is not an administrative agency under NDCC § 28‑32‑01, there are no published rules under Title 41 in the ND Administrative Code. That is, the Commission does not have rules in the same way that other agencies do under titles with active published rules.
Thus, when one refers to ND Admin Code Title 41, one is mostly referring to the statutory (legislative) framework and the Commission’s existing duties and administrative practices, not to a set of detailed administrative rules adopted under rulemaking authority in the Administrative Agencies Practice Act.
Key Functions & Powers
From the statute and Commission materials, here are major functions:
Investigation & Information Gathering
Investigate “any phase of Indian affairs”
Assemble facts needed by tribal, state, and federal agencies for cooperation.
Assisting with Programs
Help state, tribal, federal agencies in developing programs for Indians to improve living standards.
Support for Self‑Government & Institutions
Assist tribal groups to develop self‑government structures and their own institutional capacity.
Coordination & Protocol
Serve as a mediator between tribes and state agencies.
Promote proper protocol in interactions.
Agreements & Accords
Encourage and sometimes assist in negotiating agreements between state/local/federal government and tribes.
Monitor these when asked by a tribe.
Advocacy & Cultural/Educational Goals
Promote public awareness of Indian history, culture, and traditions.
Increase Indian participation in state affairs, economic development, employment parity, health, etc.
Funding & Grants
The Commission may accept gifts, grants, donations, and services from various sources for continuing purposes.
Implications of Not Being an “Administrative Agency”
Because the Commission is not defined as an administrative agency under NDCC 28‑32‑01:
It is not required to follow the rulemaking procedures mandated under Chapter 28‑32 (which typically require public notice, comment periods, etc.).
Its decisions or policies may not have the same enforceability or structure of judicial review as actions by true administrative agencies, depending on the context.
The Commission does not issue binding administrative rules that have the force of law in the same way that rules from, say, the Department of Health or Environmental Quality do.
Case Law & Legal Decisions Involving Indian Affairs in North Dakota (Related/Analogous)
I have not found reported case law directly interpreting the Internal rules or any published regulation under Title 41 (because there are essentially none). But there are cases involving Indian law in North Dakota that touch on issues relevant to the functions of the Commission. These illustrate how courts treat interaction between tribes, state government, jurisdiction, and the rights of Indians under state or federal law.
Here are a few examples:
In Re Whiteshield (1963, North Dakota Supreme Court)
This case involved a statute under which Indian residents on reservations could accept state civil jurisdiction. Under that statute, when a majority of enrolled reservation residents or via election accepted state jurisdiction (for certain civil causes), then state courts would have jurisdiction over such cases. The statute provided how the assent or acceptance is to be certified by the Executive Director of the Indian Affairs Commission (or the Commission) to the Governor, who then issues proclamation for its effectiveness.
This shows the Commission has a role under statute in certifying or facilitating the process by which state jurisdiction is accepted/respected by Indian residents.
White Eagle v. Dorgan
This involved the power of the State to tax Indians/reservations (or individuals living on reservations) in certain contexts — e.g. income, sales, business privilege, etc. The state’s attempt to impose taxes was challenged. This kind of case often brings up issues of sovereignty, treaty rights, statutory law, and applicable limitations.
Affiliated Tribes v. Wold Engineering
This U.S. Supreme Court case involved the North Dakota “Indian Civil Jurisdiction” statute (NDCC chapter dealing with state jurisdiction over civil causes arising in Indian country once jurisdiction is accepted by Indians). The issue was whether a state statute which disclaims or limits jurisdiction is valid, consistent with federal law (especially Public Law 280, which gives certain states jurisdiction over Indian country for certain causes etc.).
This case illustrates the importance of how jurisdiction over civil actions arising in Indian country is handled, and the role of state statutes, tribal consent/acceptance, and certification (often including mechanisms involving the Indian Affairs Commission under state statute).
How the Commission Might Be Involved in Litigation or Disputes
Even though the Commission doesn’t promulgate enforceable regulations under ND Administrative Code, it can still play a role in:
Certifying or advising on jurisdictional matters under statutes where Indian acceptance of state jurisdiction is required.
Serving as mediator or facilitator when Tribes bring complaints against state agencies (e.g. about program delivery, treaties, discrimination, etc.).
Helping in development of legislative policy or interpretation of what state statute intends in dealings with Tribes.
Possibly being involved in testimony or fact gathering in litigation over state‑tribal relations, especially when state practice, history, or legislative intent is relevant (for example, whether state has accepted jurisdiction, or whether obligations exist under state or federal law).
Limitations / Gaps / What Is Not Clear
Because the Commission is not under the Administrative Agencies Practice Act, details about how it acts (procedures, decision‑making, reviews of its actions) are less publicly codified in binding rules. That can make enforcement or accountability less consistent in some cases.
There’s relatively little published case law directly about the Indian Affairs Commission itself — e.g. its decisions being challenged, or courts interpreting its internal decisions or policies. Most litigation in Indian law in North Dakota seems to go via jurisdictional, taxation, treaty or tribal‑state disputes without the Commission as a direct party or subject of decision.
Where the Commission interacts with statutory authorities (e.g. in the Whiteshield case), the record and legislation are clear enough, but in other cases (e.g. “protocol” or “assistance” roles), the duties are more discretionary or advisory, making them harder to litigate.
Summary
To sum up:
Title 41 is the place in the ND Administrative Code that nominally covers the Indian Affairs Commission, but as presently constituted, there are essentially no active published administrative rules under that title, because the Commission is not an administrative agency under state law requiring such rulemaking.
The Commission’s authority comes from statute (NDCC Chapter 54‑36), giving it broad and somewhat flexible duties relating to liaison, mediation, coordination, supporting tribal self‑government, collecting factual information, etc.
Case law in North Dakota shows how jurisdictional issues involving Indian country are handled (statutory acceptance, state jurisdiction, etc.), and the Commission has historically had roles (certification, assisting in acceptance) in such matters.
Because many of its functions are advisory, coordination, or facilitating, rather than regulatory, there tends to be less case law about “Commission enforced” rules; more about statutes, consent/acceptance, and sovereignty.
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