Attorney Fees and Litigation Support Services

It is the general policy of the Department of the Interior not to use federally appropriated funds to pay for private counsel to represent Indian tribes. However, pursuant to 25 CFR Part 89, the Assistant Secretary – Indian Affairs may authorize the expenditure of appropriated funds to pay reasonable attorney’s fees to allow an eligible Indian Tribe to secure private legal representation under certain circumstances.

Funds from the Attorney Fees/Litigation Support Services Program allow the Tribes to retain experts that can help assess and respond to a variety of ecological threats to natural resources that are the subject of treaty-Indian trust rights, both on and off Reservation.

Projects considered for funding within this program are either (a) requests for litigation support services or (b) requests to support attorney fees.

Financial assistance for attorney fees requested by Tribes is used to procure legal services to assist the Tribes in establishing or defending Tribal rights and/or protecting Tribal trust resources that are guaranteed through treaty, executive order, statute, court decision, or other legal authority. 

Congress has directed that the Federal Government represent the Tribes in “all suits in law and equity.”  Occasionally, the Federal Government cannot represent Indian interests for various reasons, including conflicts of interest. 

Tribes compete for funding that meet the criteria and exceptions identified in 25 CFR Part 89.40 through 89.43, which include situations where legal representation is denied or cannot be provided to Tribes by the Office of the Solicitor or the United States Department of Justice.  Payments for court-ordered settlements that may include payment of attorney fees and expenses are also made from these funds.

Letters soliciting funding requests are sent to Tribes each year and contain the following documents:  

• (August 4, 2022) Fiscal Year (FY) 2023 Requests for Attorney Fees and Litigation Support Services
• Application for Attorneys Fees and Litigation Support Funds
• 25 CFR Part 89 Application Checklist