United States District Court, D. Montana, Billings Division
NORTHERN ARAPAHO TRIBE, for itself and as parens patriea, Plaintiff,
DARRYL LaCOUNTE, LOUISE REYES, NORMA GOURNEAU, RAY NATION, MICHAEL BLACK, and other unknown individuals in their individual and official capacities.
ORDER ON PLAINTIFF'S MOTION FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
MORRIS UNITED STATES DISTRICT COURT JUDGE.
Northern Arapaho Tribe (“NAT”) allege that
Defendants violated their right to self-govern when
Defendants converted NAT's funds and federal funds and
programs established by Congress for the benefit of NAT.
(Doc. 1.) NAT named Darrly LaCounte, Louise Reyes, Norma
Gourneau, Ray Nation and Michael Black in their individual
and official capacities. These Defendants (“Federal
Defendants”) hold positions with the Bureau of Indian
Affairs (“BIA”). NAT seeks declaratory and
injunctive relief related to the awarding of self-
determination contracts along with the establishment of a
constructive trust that would serve as a vehicle to recover
allegedly converted funds. (Doc. 1 at 22-25.) The Court has
consolidated the above case (CV 16-11) with a related, but
different case (CV 16-60), concerning the BIA's
declination of NAT's proposal to contract for judicial
services separate from the Eastern Shoshone Tribe. (Doc. 90.)
NAT has filed a Motion for Temporary Restraining Order
(“TRO”) and Preliminary Injunction in the
consolidated cases. (Doc. 114.) NAT requests a TRO or
preliminary injunction that essentially would restrict the
court that the BIA has instituted on the Wind River
Reservation (the “C.F.R. Court”) from interfering
with the NAT Tribal Court. Id.
Shoshone Tribe and the United States entered into a Treaty on
July 2, 1868. 15 State. 673. The treaty established the Wind
River Reservation “for the absolute and undisturbed use
and occupation of the Shoshonee [sic]
Indians.” 15 State. 673. The United States resettled
the Eastern Shoshone Tribe (“EST”) on the Wind
River Reservation. The United States forced NAT onto the Wind
River Reservation in 1878.
tribes share the Wind River Reservation. Each tribe governs
itself by vote of its tribal membership at general council
meetings or by vote of its elected business council. N.
Arapaho Tribe v. Hodel, 808 F.2d 741, 744 (10th Cir.
member of one tribe may hold office or legislate for the
other tribe. The tribes have not entered into a joint
constitution to consolidate their respective governments.
EST previously had authorized and implemented a joint tribal
court system known as the Shoshone and Arapaho Tribal Court.
(Doc. 127 at 16.) The BIA awarded 638 self-determination
contracts to EST to provide the Shoshone and Arapaho Tribal
Court with federal funds. The last 638 Contract awarded to
fund the Shoshone and Arapaho Tribal Court expired on
September 30, 2016. (Doc. 123 at 10.) NAT and EST then
submitted separate 638 contract proposals to jointly operate
the court. The BIA rejected these proposals on the basis that
neither proposal had been approved by both tribes.
Shoshone Business Council (“SBC”) purported to
withdraw the EST's recognition of the Shoshone and
Arapaho Tribal Court by Tribal Resolution on October 6, 2016.
Id. at 11. The Tribal Resolution also requested that
the BIA institute a Court of Indian Offenses (“CFR
Court”) on the Wind River Reservation. Id. The
BIA instituted a CFR Court on the Reservation on October 18,
2016, and announced that “it was proposing a protocol
to govern the allocation and transfer of cases” between
the NAT Tribal Court and the newly established CFR Court.
Id. The BIA and the NAT have since exchanged draft
Memorandums of Understanding (“MOU”) that outline
protocol for the interactions between the two court systems.
NAT and the BIA have yet to agree or authorize an official
MOU. Id. at 12.
submitted a proposal in January of 2016 for a separate 638
contract to fund judicial services provided by the NAT Tribal
Court to NAT tribal members and others within the
jurisdiction of the court. (Doc. 115 at 11.) The BIA denied
this proposal in April of 2016. Id. The declination
serves as the subject of the CV-16-60-BMM case that is
Shoshone and Arapaho Tribal Court has operated out of
Building 109 on the Wind River Reservation “for
decades.” (Doc. 115 at 23-24.) The parties dispute
Building 109's ownership. NAT claims that it owns
Building 109 as a quasi-tenancy-in-common with EST. The
Federal Defendants claim that the BIA manages the building as
federal property. (Doc. 127 at 17, 19.) The Federal
Defendants have notified NAT that the NAT Tribal Court is no
longer authorized to use Building 109 in light of the
expiration of the 638 contract for judicial services that
terminated on September 30, 2016. (Doc. 123 at 28-29.) NAT
seeks to have the Court prevent the Federal Defendants from
ejecting the NAT Tribal Court from Building 109 as part of
its Motion for a TRO and Preliminary Injunction. (Doc. 114.)
NAT's Motion for a TRO and Preliminary
Defendants characterize the CV-16-11 case as a challenge to
the BIA's award of 638 contracts to an EST-led body to
fund shared tribal services for the 2016 fiscal year without
NAT's consent. Id. at 13. Federal Defendants
characterize the CV-16-60 case as a challenge to the
BIA's declination of NAT's proposals for 638
contracts that would serve only NAT tribal members.
Id. Federal Defendants claim that neither of these
complaints concern the injuries alleged or the relief sought
in NAT's Motion for a TRO and Preliminary Injunction.
Federal Defendants assert that NAT's Motion alleges
instead injuries to NAT's sovereignty as a result of the
CFR Court's interference with the NAT Tribal Court.
Id. As a result, Federal Defendants ...