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Northern Arapaho Tribe v. LaCounte

United States District Court, D. Montana, Billings Division

June 22, 2017

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.


          Brian Morris United States District Court Judge.

         Procedural Background

         The Court conducted a hearing on Plaintiff NAT's Motion for Partial Summary Judgment (Doc. 130) and Federal Defendants' Cross Motion for Summary Judgment (Doc. 139) on March 20, 2017. NAT seeks partial summary judgment on its claims that the Federal Defendants wrongfully declined NAT's 638 contract proposal for judicial services and NAT's 638 contract proposal for youth and drug services. Federal Defendants argue in their Cross Motion for Summary Judgment that the BIA correctly declined NAT's 638 Contract Proposals for judicial services, youth and drug services, fish and game, and tribal water engineers.

         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 Indians.” 15 State. 673. The Eastern Shoshonee Tribe (“EST”) settled in the Wind River Reservation. The United States soon reneged on its earlier treaty commitment to the EST when it placed NAT on the Wind River Reservation in 1878.

         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.) The tribes' joint occupation of the Wind River Reservation without a confederation agreement makes their situation unique in the nation.

         EST and NAT do not operate under a “common sovereignty.” E. Shoshone Tribe v. N. Arapaho Tribe, 926 F.Supp. 1024, 1031 (D. Wyo. 1996). As a result, the federal government created the Joint Business Council (“JBC”) following the Indian Reorganization Act of 1934. The federal government apparently considered it easier to interact with the two tribes' business councils in joint form. (Doc. 78-1.) The JBC originally contained the requirement that a quorum comprise four members from each tribe. (Doc. 1 at 11.) NAT formally withdrew its participation from the JBC in September 2014.

         The Indian Self-Determination and Education Assistance Act (“ISDEAA”) governs 638 self-determination contracts. 25 U.S.C. § 450. The contracts allow tribes and tribal organizations to enter agreements with the federal government. The federal government supplies funding under 638 self-determination contracts to the tribal organizations to assume the administration of programs that the federal government otherwise would have administered on behalf of the tribe. Hinsley v. Standing Rock Child Protective Services, 516 F.3d 668, 670 (8th Cir. 2008); Manuel v. U.S., 2014 WL 6389572, at *5 (E.D. Cal. Nov. 14, 2014).

         The two tribes historically have contracted jointly with the BIA through the 638 contracting program to provide certain services to members of both tribes. These traditionally shared services include the policy areas addressed by the four 638 contract proposals at issue. NAT separately has proposed four 638 contracts for fiscal year 2017. These contracts would be implemented solely by NAT. These contracts purport to offer services solely to NAT members that formerly had been shared between the two tribes.

         Section 5321(a)(1) of Title 25 of the U.S. Code authorizes the BIA to enter into a 638 contract with a “tribal organization.” Section 5304(1) defines “tribal organization” and adds the following caveat:

That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or grant.

25 U.S.C. § 5304(1) (emphasis added). These last two provisions - a contract to perform services for the benefit of more than one tribe and the requirement for approval from all affected tribes - control much of the Court's analysis.


         The Court grants summary judgment where a moving party demonstrates both that “no genuine dispute as to any material fact” exists and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Courts consider “material' only disputes over facts that might affect the outcome of the suit under the state substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-631 (9th Cir. 1987).

         ISDEAA provides for a statutory exception to the normal arbitrary and capricious standard, and, as a result, the Court will review de novo the BIA's declinations. See Navajo Health Foundation-Sage Mem'l Hosp., 2016 WL 7257245, at 14. De novo review reflects judicial concern with the BIA's history of recalcitrance in awarding contracts and the reflection of this history in ISDEAA's provisions. Shoshone-Bannock Tribes of Ft. Hall Reservation v. Shalala, 988 F.Supp. 1306, 1315-1316 (D. Or. 1997). ISDEAA specifically imposes on the BIA “the burden of proof to establish by clearly demonstrating the validity of the grounds for declining the contract proposal.” 25 U.S.C. § 5321(e)(1).

         a. Judicial Services Proposals

         The BIA instituted a Court of Indian Offenses (“CFR Court”) on the Wind River Reservation on October 18, 2016. The CFR Court replaced the Shoshone and Arapaho Tribal Court. The two tribes jointly had operated the Shoshone and Arapaho Tribal Court. The BIA announced that “it was proposing a protocol to govern the allocation and transfer of ...

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