1. A. 25 U.S.C. § 175 provides that the United States Attorney shall represent Indians in any lawsuit in states where there are reservations or Indian allottees. This provision, however, “does not withdraw discretion from the Attorney General.” Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C. Cir. 1995). The authority to conduct litigation for the United States in general is reserved by statute to the Department of Justice. 28 U.S.C. §§ 516, 519. Such decisions generally are not subject to judicial review. Litigation decisions regarding the protection of real property held in trust for tribes and individual Indians, similarly, are entrusted to the discretion of the Attorney General. The courts therefore consistently have held that Section 175 is discretionary, see, e.g., Shoshone-Bannock Tribes, at 1481-82, and that determinations made pursuant to Section 175 as to whether the United States will participate in litigation are not subject to judicial review.
2. B. The Department of Justice is charged with representing the United States. As a result, when the United States litigates—affirmatively or defensively—in a matter involving real property held in restricted fee or in trust by the United States, or more generally involving the sovereignty of tribes, it represents the sovereign interests of the United States, and, accordingly, it does not, and may not, directly represent tribes or individual Indians. This understanding of the role of the Department of Justice is set forth in a 1979 letter from then-Attorney General Griffin Bell to Cecil Andrus, then-Secretary of the Interior, referenced in JM 5-14.130and the ENRD Resource Manual at 59. When a request for representation is received by a United States Attorney, the requestor should be advised that no action can be taken until the matter is reviewed by the Department of the Interior, and its recommendation is received. The United States Attorney must refer the request to the nearest Regional Solicitor’s office of the Department of the Interior with a copy to the Chief, Indian Resources Section.
3. C. The United States Attorney will be advised of any recommendations from the Department of the Interior on requests under Section 175 and consulted thereon before the Assistant Attorney General of the Environment and Natural Resources Division or the Chief of the Indian Resources Section, in accordance with any applicable Attorney General Delegation, makes a final determination.

[updated April 2018]