United States District Court, D. Montana, Missoula Division
MEMORANDUM AND ORDER
Morris United States District Court Judge
Ninth Circuit issued its opinion in this matter on July 10,
2017. United States ex rel. Cain v. Salish Kootenai
College, Inc., 862 F.3d 939 (9th Cir. 2017). The Ninth
Circuit instructed this Court to determine on remand whether
Defendant Salish Kootenai College, Inc. (the College)
functions as an arm of the Confederated Salish and Kootenai
Tribes (the Tribe) “and therefore shares the
Tribe's sovereign status” for purpose of the False
Claims Act, 31 U.S.C. §§ 3729-3733. Cain,
862 F.3d at 943.
Ninth Circuit directed this Court to determine the
College's status by analyzing the relationship between
the College and the Tribe using the factors described in
White v. University of California, 765 F.3d 1010
(9th Cir. 2014). Id. at 945. The parties have
conducted discovery on the relationship between the College
and the Tribe. The College has filed a Renewed Motion to
Dismiss. (Doc. 91). The College argues that Plaintiffs'
claims should be dismissed because the College functions as
an arm of the Tribe. The Tribe has filed an amicus
curiae brief. The Tribe agrees with the College.
Plaintiffs oppose the College's motion. Plaintiffs argue
that the College is not an arm of the Tribe.
Court conducted a hearing on the College's Renewed Motion
to Dismiss on February 15, 2018. (Doc. 107). The Court is
prepared to rule.
ground their federal claims against the College in the False
Claims Act. The False Claim Act permits suits against
“any person” who defrauds the government by
“knowingly present[ing] . . . a false or fraudulent
claim for payment or approval.” 31 U.S.C. §
3729(a)(1)(A). The False Claims Act excludes sovereign
entities, including federally recognized tribes, from the
term person. Cain, 862 F.3d at 941. Entities that
function as an arm of a tribe are also excluded from the term
person for purposes of the False Claims Act. Id.
instructs courts to employ a multi-factor analysis to
determine whether an entity enjoys sovereign immunity as an
arm of the tribe. White, 765 F.3d at 1025. The
factors include: 1) the method of creation of the entity; 2)
the purpose of the entity; 3) the structure, ownership and
management of the entity, including the amount of control the
tribe has over the entity; 4) the sovereign's intent with
respect to the sharing of its sovereign immunity with the
entity; and 5) the financial relationship between the
sovereign and the entity. Id. Application of these
factors to the undisputed facts establishes that the College
functions as an arm of the Tribe.
The Method of Creation of the College
College sits on tribal land on the Flathead Indian
Reservation. See Smith v. Salish Kootenai College,
434 F.3d 1127, 1134 (9th Cir. 2006). The Tribal Council
chartered and established the College on November 18, 1977,
pursuant to its governmental authority under §16 of the
Indian Reorganization Act, 25 U.S.C. § 476, and the
Tribe's Constitution. (Doc. 92-3 at 2; Doc. 92-3 at 4).
The College was incorporated under tribal law as a tribal
non-profit corporation. (Doc. 92-3 at 4). The Tribal Council
appointed the College's first Board of Directors. (Doc.
92-2 at 2-3; Doc. 92-3 at 2, 9). The College's bylaws
state that each of the members of the College's Board of
Directors must be enrolled members of the Tribe. (Doc. 92-10
Tribe incorporated the College under Montana law on
September, 12, 1978. (Doc. 92-4). The dual incorporation of
the College under tribal law and state law does not
disqualify the College from functioning as a tribal entity.
See Smith, 434 F.3d at 1129, 1135; see
also, Duke v. Absentee Shawnee Tribe of Oklahoma
Housing Authority, 199 F.3d 1123, 1125 (10th Cir. 1999)
(creation of entity “under state law does not preclude
its characterization as a tribal organization”). The
first White factor supports a finding that the
College functions as an arm of the Tribe.
The Purpose of the College
Tribe established the College pursuant to its intrinsically
governmental obligation “to represent, develop, protect
and advance the views, interests, resources, and education of
its members.” (Doc. 92-3 at 2). The Tribe recognized
that “there [was] a tremendous need for educational
programs beyond high school” and that “many . . .
tribal members and their families [were] not able to move to
cities where there [were] colleges and vocational
College serves at least three primary purposes. The College
seeks to provide post-secondary education opportunities for
Native Americans on the Flathead Indian Reservation. (Doc.
92-3 at 4-5). The College seeks to “upgrade the skills
and competencies of [tribal] employees.” (Doc. 92-3 at
2; Doc. 92-7 at 9). The College also seeks to “assist
with the ...