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Northern Arapaho Tribe v. LaCounte

United States District Court, D. Montana, Billings Division

March 7, 2017

NORTHERN ARAPAHO TRIBE, for itself and as parens patriea, Plaintiff,
v.
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

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE.

         I Procedural Background

         Plaintiffs 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.

         II. Factual Background

         The 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.

         The 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. 1987).

         No 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. (Doc. 17-8.)

         NAT and 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. Id.

         The 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.

         The NAT 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 consolidated here.

         The 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.)

         III. NAT's Motion for a TRO and Preliminary Injunction

          a. Scope

         Federal 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 ...


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