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
PARTIAL SUMMARY JUDGMENT AND
DEFENDANTS' CROSS MOTION FOR
Morris United States District Court Judge.
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.
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.
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.
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.
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,
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.
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
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).
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).
Judicial Services Proposals
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