No. 11-57222 IN THE UNITED STATES COURT OF · PDF fileno. 11-57222 in the united states court...

No. 11-57222

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________________

LOS COYOTES BAND OF CAHUILLA AND CUPENO INDIANS,

Plaintiff-Appellee,

v.

KEN SALAZAR, Secretary of the Interior, Et Al.

Defendants-Appellants.

________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

________________________________

ANSWERING BRIEF OF APPELLEE

________________________________

Dorothy Alther, Esq.

CALIFORNIA INDIAN LEGAL

SERVICES

609 S. Escondido Blvd.

Escondido, CA 92025

(760) 746-8941

Attorney for Appellee

LOS COYOTES BAND OF

CAHUILLA AND CUPENO INDIANS

Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 1 of 39

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TABLE OF CONTENTS

STATEMENT OF THE ISSUES…………………………………………………1

STATEMENT OF FACTS ……………………………………………………….1

SUMMARY OF THE ARGUMENT……………………………………………....5

ARGUMENT………………………………………………………………….....…6

DEFENDANTS‟ DECLINATION OF THE TRIBE‟S REQUEST FOR A 638

CONTRACT FOR LAW ENFORCEMENT SERVICES ON THE BASIS THAT

THE TRIBE‟S RESERVATION IS LOCATED IN A PUBLIC LAW 280 STATE

VIOLATES THE ISDEAA, APA AND FIFTH AMENDMENT…………..…….6

1. Public Law 280 is No Basis to Deny

the Tribe‟s Request for a 638 Contract ……………………………..……6

2. Defendants Did Not Correctly Decline

Tribe‟s Request for a 638 Contract. ………………………………..…...9

a. Law Enforcement Services and Programs are Contractable Under

the ISDEAA…………………………………………………………10

b. Defendants‟ Misinterpreted the Clear Language of the

ISDEAA……………………………………………………………..12

c. The Defendants‟ Interpretation of the ISEAA is Inconsistent

with Legislative History and Congressional Policy………………….14

3. The District Court Did Not Err in Finding That

Defendants Maintain a Policy Denying Tribes

in Public Law 280 States 638 Contracts for Law Enforcement………..15

4. Defendants‟ Declination of the Tribe‟s Contract Request is

Subject to Judicial Review……………………………………………...18


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5. Defendants‟ Policy Violates the ISDEAA § 450k Because it is a

Nonregulatory Requirement. ………………………………………….23

6. Defendants‟ Unwritten Policy to Deny Law Enforcement

Funding to Tribes in Public Law 280 States is Subject to the

Notice and Comment Provisions of the APA. …………………………25

7. Defendants‟ Denial of Tribe‟s 638 Contract Request Denies Tribal

Members of Equal Protection…………………………………………..28

CONCLUSION………………………………………………………………… ..30

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


iii

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)……………………….…18

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)……19

Heckler v. Chaney, 470 U.S. 821, 831 (1985)……………………………………19

Hopland Band of Pomo Indians vs. Norton,

342 F. Supp. 2d 1067 (N.D. Cal. 2004)…………………………….11

Lincoln v. Virgil, 508 U.S. 182 (1993)……………………19, 20, 21, 22, 25, 26, 27

Morton v. Ruiz, 415 U.S. 199 (1974)………………………………………….25, 26

Navajo Nation v. Department of Health & Human Services,

325 F.3d 1133 (9th Cir. 2003)……………………………………....10

Ramah Navajo Chapter v. Salazar et al.,

644 F. 3d 1054, 1062 (10th Cir. 2011)………………………………12

Ramah Navajo School Board v. Babbitt, 87 F. 3d 1338

(D.C. Cir. 1996)…………………………………………18, 21, 22, 24

Rincon Band of Mission Indians v. Califano,

464 F. Supp. 934 (D.C. Cal.1979)………………………………….28

Rincon Band of Mission Indians v. Harris,

618 F. 2d 569, 573 (9th Cir. 1980)…………………………………..29

Serrato v. Clark, 486 F. 3d 560 (9th Cir. 2007) ……..……………………9, 20, 21

Southern Utu Indian Tribe v. Secretary of the U.S. Dept. of Health and Human

Services et al., 657 F. 3d 1071 (10th Cir. 2011)…………………….12


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Constitution:

United States Constitution

Fifth Amendment. …………………………………………………1,5, 6,30

Statutes:

Administrative Procedure Act:

5 U.S.C. §552 ……………………………………………………………...27

5 U.S.C. § 553…………………………………………………………...5, 27

5 U.S.C. § 706(2)(A)…………………………………………………..……5

Indian Self-Determination and Education Assistance Act:

25 U.S.C. §450 et seq……………………………………………………..5, 9

25 U.S.C.§450(a)(1)………………………………………………………..13

25 U.S.C.§450b(j)…………….………………………………………..12, 13

25 U.S.C.§450j-1(a)(1)…………………………………………………….13

25 U.S.C.§ 450k……………………………………………………..6, 22, 24

25 U.S.C. §450k(a) ………………………………………………………..22

25 U.S.C.§450k(a)(1)……………………………………………….….23, 24

25 U.S.C.§450k(a)(2)………………………………………………………27

25 U.S.C.§450m-1(a)……………………………………………………5, 22

25 U.S.C. §458 et. seq……………………………………………………….9

Snyder Act:

25 U.S.C § 13……………………………………………………………...26

25 U.S.C. §13 #6…………………………………………………………..11

Indian Law Enforcement Reform Act

25 U.S.C. § 2804 (a)…………………………………………………………….11

.


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Federal Crimes and Criminal Procedure

18 U.S.C. §1162……………………………………………………………..2

18 U.S.C. §1152……………………………………………………………..2

18 U.S.C. §1153……………………………………………………………..2

Regulations:

25 C.F.R §11……………………………………………………..….. ..16, 25

25 C.F.R. § 900.3(5)………………………………………………………..15

25 C.F.R. § 900.5………………………………………………………..…27

25 C.F.R. §900.31……………………………………………….…..………5

25 C.F.R. § 900.154…………………………………………………………3

Miscellaneous:

S. REF, No. 274, 100th Cong., 1ST Sess. 37 (1987), reprinted in 1988

U.S.C.C.A.N. 2620, 2656 ………………………………………………...14,15, 23

“A Second Century of Dishonor: Federal Inequities and California Indians”(1995)

University of California, Los Angeles, Professors‟ Carole Goldberg and Duane

Champagne ……………………………………………………….........6,7,8, 20, 21

“Concurrent Tribal Authority Under Public Law 280” (2000) United States,

Department of Justice Opinion …………………………………………………8,9

“Final Report, Law Enforcement and Criminal Justice Under Public Law 280”

(2007) University of California, Los Angeles, Professors‟ Carole Goldberg and

Duane Champagne…………………………………………………………


1

STATEMENT OF THE ISSUES

Whether Defendants‟ declination of the Los Coyotes Band of Cahuilla &

Cupeño Indians‟ (“Tribe”) request for law enforcement funding through a contract

under the Indian Self-Determination and Education Assistance Act (“ISDEAA”),

on the ground that the Tribe is located in a state subject to Pub. L. No. 83-280

(commonly referred to as “Public Law 280”) violates the ISDEAA, the

Administrative Procedures Act (“APA”), and Equal Protection Clause under the

Fifth Amendment.

STATEMENT OF FACTS

On February 27, 2009 the Tribe submitted a written request to Defendants

seeking a contract for tribal law enforcement services as authorized under the

ISDEAA. Such contracts are commonly referred to as “638 contracts.” (Docket

Entry (“DE”) 1, Exhibit (“Ex”) 1). The Tribe, federally recognized since 1889, has

a land base of 25,000 acres. There are approximately 340 tribal members. The

Tribe administers 17 homes for its members. Other tribal members and non-

members live in private homes on the reservation. The reservation is surrounded

by unoccupied federal lands under the jurisdiction of the United States Forest

Service. (DE 1, Ex.9 pp. 1-2, Excerpt of Record (“ER”) pp. 1-2).

Because of its remoteness, the reservation has been plagued with murders,

thefts, shootings, narcotics, trespass and other violent and non-violent crimes. The


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perception is the Tribe‟s remote reservation is devoid of laws or law enforcement

and where crimes can be committed without repercussion. (Id., ER p. 1).

To address “law and order” on California Indian reservations and in four

other states, Congress enacted Public Law 280 in 1953(18 U.S.C. §1162). Prior to

Public Law 280 the federal government and the Tribe were responsible for law and

order on the reservation, with state criminal jurisdiction limited to crimes

committed by non-Indians against non-Indians. Public Law 280 changed this

jurisdictional landscape by granting the state criminal jurisdiction in California

Indian Country1 regardless of the defendant‟s or victim‟s race. Additionally,

Public Law 280 removed the federal criminal jurisdiction under the Major Crimes

Act and General Crimes Act, 18 U.S.C. §§1152 and 1153, but not all criminal

jurisdiction was removed. Federal jurisdiction remains over criminal laws of

“general application.” Most importantly, Public Law 280 did not divest tribes of

criminal, civil and regulatory jurisdiction. Thus, under Public Law 280 the federal,

state and tribal governments share responsibility for aspects of criminal jurisdiction

on the Tribe‟s reservation.

Due to the lack of funding, staff and inertia, the state will not always provide

effective criminal law enforcement on the Tribe‟s reservation. When tribal

members call law enforcement they are either not responded to or the officers take

1 “Indian Country” is defined at 18 U.S.C. §1151 and includes Indian reservations, Indian allotments and

“dependent Indian communities.”


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up to two hours to arrive. Sheriff deputies for the Los Coyotes area are “Resident

Deputies” limited to day-shifts, 6:00 a.m. to 6:00 p.m. If called after 6:00 p.m. at

least two deputies are required to respond for their safety, causing delay and in

some cases, no response. (Id., ER p.2).

To provide effective policing for its community, the Tribe established its

own law enforcement department. With a seed grant from the Bureau of Justice

Assistance under the Community Oriented Policing Services the Tribe hired a

Chief of Police and adopted a “Peace and Security Code.” (Id., ER p. 2).

On June 29, 2009 Defendant, Office of Justice Services (“OJS”), declined

the Tribe‟s contract request stating:

The amount of money that the BIA, Office of Justice Services spends in

California for law enforcement services is zero. The primary reason for this

is that, as you know, California is in a Public Law 280 state, and so the

costs of law enforcement on Indian reservations is borne by the State, not

the BIA…What we are saying is that BIA does not spend any money for law

enforcement on Indian reservations in the State, so law enforcement is not a

program, function, service or activity that, as a component of its budget, the

OJS provides directly to Indian tribes in California. [Emphasis added]

(DE 1, Ex. 3)

Pursuant to 25 C.F.R §900.154, the Tribe requested an Informal Conference.

During that conference Defendants‟ representatives stated that it was department

policy not to fund law enforcement in Public Law 280 states for the reasons stated

in the declination. The Tribe cited examples where Defendants fund law

enforcement to tribes in Public Law 280 states. Defendants‟ representatives


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explained such funding is limited to: (1) tribes with a Self-Governance Contract

under Title IV of the ISDEAA; and (2) tribes whose reservations straddle a Public

Law 280 and a non-Public Law 280 state. (DE 1, Ex. 4 pp. 38-40, ER pp. 3-5).

Defendants later identified a third category of tribes in Public Law 280 states that

receive law enforcement funding through a 638 contract, as tribes that, prior to

1999, received law enforcement funding through its Tribal Priority Allocation .

(DE 33, Ex. 2, ¶ 9). If a tribe in a Public Law 280 state is not within one of these

categories, which Los Coyotes is not, it is ineligible for a 638 law enforcement

contract.

Following the conference, OJS‟s Designated Representative recommended

that OJS should approve the Tribe‟s contract request. (DE 1, Ex.13 p. 24). The

recommended decision found that: (a) Public Law 280 doesn‟t divest tribes of

their criminal jurisdiction or the federal government‟s law enforcement

responsibility to Tribe; (b) there is a very real and apparent need for law

enforcement on the Tribe‟s reservation that is not being met by local law

enforcement; and (c) Defendants‟ funding policy is arbitrarily applied. (Id.).

OJS claimed the Designated Representative‟s recommendation was non-

binding. (DE 1, Ex. 22). The Tribe brought an action in the United States District

Court, District of Southern California and was granted summary judgment on all


5

but one of its legal claims. (DE 43). Defendants now appeal the District Court‟s

October 28, 2010 decision.

SUMMARY OF THE ARGUMENT

The District Court did not err in finding that the Defendants‟ declination of

the Tribe‟s request for a 638 contract for law enforcement violated the ISDEAA,

25 U.S.C. §450 et seq., the APA, 5 U.S.C. §§553, 706(2)(A) and Equal Protection

under the Fifth Amendment.

Defendants advance four arguments in defense of their declination: (1)

Defendants are not currently providing law enforcement services to the Tribe, thus

there are no program funds to transfer to the Tribe; (2) Defendants‟ declination is

not subject to judicial review; (3) Defendants do not maintain an internal unwritten

policy on funding in Public Law 280 states; and (4) even if there was a policy, it

does not violated the ISDEAA, APA or the Equal Protection Clause.

Defendants‟ first argument is based on an interpretation of the ISDEAA that

is unsupported by statutory language, legislative history, Congressional policy or

case law. Second, Defendants‟ declination is subject to judicial review under the

ISDEAA §450m-1(a), 25 C.F.R. §900.31 and case law. Third, representatives of

Defendants have acknowledged that there is and has been a long standing policy of

not providing law enforcement funding to tribes in Public Law 280 states. Finally,

Defendants‟ policy has not been promulgated pursuant the APA, it is a


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“nonregulatory” requirement that is prohibited under ISDEAA §450k, and the

policy has been arbitrarily applied resulting in a violation of Equal Protection

Clause.

ARGUMENT

DEFENDANTS’ DECLINATION OF THE TRIBE’S REQUEST

FOR A 638 CONTRACT FOR LAW ENFORCEMENT SERVICES

ON THE BASIS THAT THE TRIBE’S RESERVATION IS

LOCATED IN A PUBLIC LAW 280 STATE VIOLATES THE

ISDEAA, APA AND FIFTH AMENDMENT

1. Public Law 280 is No Basis to Deny

the Tribe’s Request for a 638 Contract

OJS‟s declination states, because OJS provides “zero” funding to tribes in

Public Law 280 states, the contract amount requested by the Tribe exceeded the

amount OJS would have spent to provide the service directly. The “principle”

reason for the “zero” funding is that the cost of law enforcement on Indian

reservations in Public Law 280 states is borne by the states, not OJS. Defendants‟

declination demonstrates that they have a fundamental misunderstanding of tribal

law enforcement in a Public Law 280 state.

A leading expert on Public Law 280, Carole Goldberg, a Jonathan D. Varat

Distinguished Professor and Vice Chancellor at the University of California, Los

Angeles (“UCLA”), and UCLA Professor of Sociology Duane Champagne

prepared a report for the Advisory Council on California Indian Policy on March

27, 1996 entitled “A Second Century of Dishonor: Federal Inequities and


7

California Tribes.” The report specifically addressed Defendants‟ policy on

funding law enforcement in California, the jurisdictional vacuum created by Public

Law 280 and the need of tribal law enforcement to fill that vacuum.

The report finds that using Public Law 280 as a pretext to deny California

tribes law enforcement funding is problematic because: (1) tribes in Public Law

280 states other than California already receive Bureau of Indian Affairs (“BIA”)

law enforcement funds; (2) the existence of state jurisdiction does not remove the

need for tribal law enforcement; and (3) tribes in Public Law 280 states continue to

have substantial law enforcement needs, even with the existence of state

jurisdiction. Defendants fail to understand jurisdictional limitations placed on

states under the language of Public Law 280, by the Supreme Court and more

current federal statutes. (Administrative Record (“AR”) 19, Ex. 2, Part 2 pp.100-

106, ER 6-12).

First, Public Law 280 allows only the application of statewide laws on the

reservation, not county or city ordinances (i.e. animal control, zoning). Public Law

280 expressly denies states jurisdiction over certain matters, particularly property

held in trust by the United States and federally guaranteed hunting, trapping, and

fishing rights.

Second, the Supreme Court has limited state criminal jurisdiction to only

criminal laws that are “prohibitory” rather than "regulatory" in nature. Further,


8

tribal internal matters such as enrollment and elections are outside the subject

matter jurisdiction of the state.

Third, current federal statutes reduce state jurisdiction, while simultaneously

increasing tribal sovereignty or federal power. For example, federal environmental

laws such as the Safe Drinking Water Act give tribes rather than states primary

enforcement responsibility for control of contaminants in drinking water on

reservations.

The report concludes:

In sum, …California tribes clearly possess civil and criminal

jurisdiction, even following the enactment of Public Law 280.

To use the state's jurisdiction as a justification for not funding

California tribes overlooks the treatment of tribes in other Public Law

280 states, the absence of state jurisdiction over important matters of

public safety and community welfare, and the inadequacies of state

jurisdiction even where it exists. … (Id. at pp.103-104, ER pp. 9-10)

In 2000 the United States Department of Justice (“DOJ”), Office of Tribal

Justice, issued an opinion titled “Concurrent Tribal Authority Under Public Law

280.” (AR, Ex. 2, Part 2, pp. 107-112, ER pp.13-18) DOJ states “The Federal

Government retains substantial law enforcement authority in Indian County in

Public Law 280 states” by virtue of the fact that all federal criminal laws of general

application are applicable there.

DOJ‟s opinion notes that BIA generally has authority to enforce federal

laws in Indian Country, even in P.L. 280 state.


9

In carrying out its responsibility, the BIA also has authority to commission

tribal police officers as „special law enforcement officers‟ of the BIA to

carry out those responsibilities and to contract out its functions under either

the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §

450 et seq., or the Self-Governance Program, 25 U.S.C. § 458 et seq.

(Emphasis added) (Id. at p. 111, ER p.17).

Against this backdrop of authority, the Tribe is seeking to exercise its

criminal, civil and regulatory jurisdiction. Defendants fail to recognize the day-to-

day reality of the jurisdictional vacuum created by Public Law 280 and instead

focuses on the state‟s limited criminal jurisdiction as the answer to all of the

Tribe‟s law enforcement needs.

2. Defendants Did Not Correctly Decline

Tribe’s Request For a 638 Contract.

Defendants contend the declination was proper because the intent of the

ISDEAA is that only programs, services and activities currently being provided

tribes are contractable. Defendants argue that because they provide zero direct law

enforcement services to the Tribe, there is no law enforcement program or service

to transfer.

Defendants‟ argument begs the question of why there is zero funding in

California for law enforcement services or programs. The simple answer is that

Defendants have a misguided internal policy that because the state has concurrent

criminal jurisdiction on the Tribe‟s reservation that all tribal law enforcement


10

needs are the responsibility of the state, not Defendants. Defendants‟ unwritten

policy will be discussed further in Section 3.

a. Law Enforcement Services and Programs are Contractable Under

the ISDEAA.

As a starting point it must be determined whether law enforcement services

and programs are contractable under the ISDEAA.

Contractable programs and services under the ISDEAA were addressed in

Navajo Nation v. Department of Health & Human Services, 325 F.3d 1133 (9th

Cir. 2003) The Navajo Nation submitted a contract request to the Secretary of the

department of Health and Human Services (“DHHS”) for administration of the

Temporary Assistance to Needy Family (“TANF”) program. The contract was

denied because the TANF program was not contractable. The Court upheld the

DHHS‟s determination finding the TANF program was designed to provide

assistance to needy families regardless of the status of the family being Indian or

non-Indian, as such it was not a program exclusive “for the benefit of Indians

because of their status of Indians.” Id. at 1141.

In Navajo Nation’s discussion of ISDEAA contractable programs, there was

no mention nor was allusion that a program is not contractable unless it was being

directly provided to a tribe. The Court‟s analysis focused exclusively on the

whether the program in question was one in which the Secretary has statutory


11

authority to administer for the exclusive benefit of a tribe, and if there is, it is a

contractable program under the ISDEAA.

Also relevant to the current case, is the Court‟s holding that “Congress

contemplated allowing tribes to contract “for programs and services under the

Snyder Act.” Under the Snyder Act, BIA “shall direct, supervise and expend such

moneys as Congress may from time to time appropriate, for the care, benefit and

assistance of Indians throughout the United States for the following purposes

…For the employment of … Indian police…” 25 U.S.C. §13 #6. The Snyder Act

clearly authorizes Defendants to contract law enforcement programs and services.

Law enforcement programs and services are also contractable under the Indian

Law Enforcement Reform Act, 25 U.S.C. §2804 (a). See also, Hopland Band of

Pomo Indians vs. Norton, 342 F. Supp. 2d 1067 (N.D. Cal. 2004).

Defendant Cruzan in his declaration concedes that law enforcement services

and programs are clearly contractable, stating 165 law enforcement programs are

being operated by tribes pursuant to contracts under ISDEAA. (DE 33, Ex. 3, ¶2).

As a contractable program, Defendants cannot deny the Tribe‟s contract

request on the basis that because they do not already provide those services to the

Tribe.


12

b. Defendants’ Misinterpret the Clear Language of the ISDEAA.

The rule for statutory construction provided if the text is clear and

unambiguous, it will control absent rare and exceptional circumstances. Southern

Utu Indian Tribe v. Secretary of the U.S. Dept. of Health and Human Services et

al., 657 F. 3d 1071 (10th Cir. 2011) Where text is ambiguous, a court must apply

cannons of statutory construction to inform the court‟s interpretation. One such

cannon favors Native Americans. Id. at 1078. With regard to the ISDEAA “…if

the Act can reasonably be construed as the tribe would have it construed, it must be

construed that way.” Id. at 1078. This cannon of construction controls over more

general rules of deference to an agency‟s interpretation of an ambiguous statutes”

Ramah Navajo Chapter v. Salazar et al., 644 F. 3d 1054, 1062 (10th Cir. 2011).

It is against this legal backdrop the Court must review Defendants‟

interpretation of the ISDEAA to determine if it was the intent of Congress to limit

contractable programs to only those programs that are being directly provided the

tribe at the time the contract is request. Defendants first cite §450b(j) for support

of its argument. Section 450b (j) provides that a “self-determination contract” is a

contract between a tribe or tribal organization and the appropriate Secretary for the

“planning, conduct, and administration of programs or services which are

otherwise provided to Indian tribes and their members pursuant to federal law.”

(Emphasis added) The Tribe fails to see how the clear text of §450b(j) supports


13

Defendants‟ argument. Under Defendants‟ interpretation §450b(j) it should read a

“self-determination contract” is a contract between a tribe and the appropriate

Secretary for the “planning, conduct, and administration of programs or services

which are currently being provided directly to the tribe or tribal organization

pursuant to federal law.” Section 450b(j) is not so limited and the clear text of the

section provides that if the Secretary is authorized by federal law to provide a

program or services to Indian tribes and organizations the program or service is

contractable under the ISDEAA.

Similarly, Defendants misinterpret §450f (a)(1). This section provides that

upon request, the Secretary must enter into a contract “to plan, conduct, and

administer programs or portions thereof, including construction contracts provided

for [under federal law]…” Section 450f(a)(1) makes no mention of Defendants‟

caveat that the program must be currently provided by Defendants for the benefit

of the tribe in order to be contractable.

Finally, Defendants insert language into the text of ISDEAA to support their

argument. Defendants restates §450j-1(a)(1) as the contract amount requested by a

tribe “shall not be less than the appropriate [agency] would have otherwise

provided for the operation of the programs or portions thereof for the period

covered by the contract [if the agency had continued to provide the services


14

itself].” Section 450j-1(a)(1) does not contain the language “[if the agency had

continued to provide the services itself].” Under Defendants‟ interpretation of

§450j-1(a)(1) should read “shall not be less than the amount the appropriate agency

is currently allocating to provide and perform the operation of the programs or

portions thereof for the period covered by the contract.”

Even if the Court were to find the text of ISDEAA ambiguous, the cannons

of construction would require a finding in favor the Tribe, because “…the Act can

reasonably be construed as the tribe would have it construed, [and] it must be

construed that way.” Id. at 1062.

c. The Defendants’ Interpretation of the ISEAA is Inconsistent

with Legislative History and Congressional Policy

The ISDEAA was amended in 1988 because Congress found that

Defendants and the Secretary of Indian Health Services had consistently failed

“over the past decade to administer self-determination contracts in conformity with

the law.” (S. REP, No. 274, 100th Cong., 1ST Sess. 37 (1987), reprinted in 1988

U.S.C.C.A.N. 2620, 2656 (“1987 S. Rep.100-274”).

The legislative history of the 1988 amendments made clear that a tribe can

contract for a BIA program regardless if the program is provided at the local BIA

agency. The Senate Report states:

…tribes are eligible to contract for any portion or function operated by either

Secretary for the benefit of tribes, regardless of whether such specific

program or functions are operated locally. For example, a tribe may need to


15

conduct a natural resources planning and management program under a self-

determination contract. The fact that natural resources planning and

management is not operated locally by the Bureau of Indian Affairs agency

office should not prevent the Secretary for entering into a contract with the

tribe. Furthermore, the fact that Secretary has decided to allocate funds to a

local agency in a particular manner should not bar the tribe from contracting

for the function, such as criminal investigators, for which funds have been

allocated to that particular agency.” (1987 Senate Report 100-274 at 2643).

The Senate Report also reminded the Secretaries that by restating the

statutory authority for programs subject to contracting in the new amendments,

Congress was clarifying that the “Secretary is not to consider any program or

portion thereof exempt for self-determination contracts.” (1987 Senate Report 100-

274 at 2642).

Defendants‟ narrow interpretation of the ISDEAA also conflicts with

Congressional policy. Congress has declared that each provision of the ISDEAA

and provision of contracts entered into thereunder shall be “liberally construed for

the benefit of the tribe or tribal organization to transfer of funding, and related

functions, services, activities and programs (or portions thereof,) that are otherwise

contractable under the Act.” (Emphasis added) 25 C.F.R. §900.3(5)

3. The District Court Did Not Err in Finding That

Defendants Maintain a Policy Denying Tribes

in Public Law 280 States 638 Contracts for Law Enforcement

Defendants‟ argue that the District Court erred in finding that they have a

special law enforcement funding policy for tribes in Public Law 280 states.

Defendants dismiss statements from their own representatives regarding its policy.


16

Defendants further dismiss the historical actions of the BIA to promulgate its

policy pursuant to the APA.

During the 2009 Informal Conference, the Tribe questioned OJS

representatives about its funding policy and when the policy was first

implemented. OJS‟s solicitor confirmed that the funding policy was an unwritten,

internal policy that has probably been around since 1953. (DE 1, Ex. 4, p. 37).

In 2009, where the exact law enforcement funding issue was discussed for

the Hopland Band of Pomo Indians, the former OJS Director testified that:

OJS Director: All I can tell you is it‟s my understanding, based upon our

annual President‟s budget justification, that the funds we specifically request

for law enforcement are funds for those tribes that are not subject to Public

Law 280.

Tribal Attorney ... I guess what I‟m asking is, as part of your budgetary

process, are you willing to make that request [for law enforcement funding]?

OJS Director: As part of our process, given the policy of, the past policies

of the department triggering requesting funds for law enforcement, I would

say, no, not without the Sec—not without the Secretary or President saying

to Congress, this is an exception.

Tribal Attorney: … And why is that? Why aren‟t you willing to try to go get

funding for Hopland‟s law enforcement program?

OJS Director: Because I have not discussed it with the Assistant Secretary,

but that‟s been a long standing policy of the Department of the Interior, not

my policy, but long standing policy of the Department of Interior. (DE 19,

Ex.2, Part 2, pp.125-126, ER pp.19-21)

The former OJS Director‟s statement that the policy has been long standing

is supported by BIA actions taken in 1987. BIA published notice seeking to


17

amend 25 C.F.R. §11. Federal Register on March 26, 1987 at 52 FR 9669-01.

(DE 1, Ex. 14). The amendment provided:

Bureau of Indian Affairs law enforcement funds shall not be expended to

provide enforcement services in those areas of Indian Country where,

pursuant to Federal law, states have jurisdiction over offences committed by

Indians.

The notice stated that generally BIA does not provide law enforcement funding to

tribes in Public Law 280 states because it involves a duplication of services and

would possibly encourage some states to avoid discharging their law enforcement

responsibility. The BIA found the regulation necessary “In order to ensure a

consistent Bureau of Indian Affairs‟ policy on funding requests.” (Emphasis

added) (Id.).

In House Conference Report “Making Further Continuing Appropriations

For The Fiscal Year Ending September 30, 1988” on December 21, 1987,

managers of the Appropriation Bill responded to the BIA‟s proposed regulation:

The managers disagree with the proposal of the Bureau of Indian Affairs to

deny funding for law enforcement services in areas where, pursuant to

Federal law, States have jurisdiction over offenses committed by or against

Indians. Funds appropriated for the Bureau‟s law enforcement programs

include funds for the continued operation of such programs in States which

P.L. 83-280 or similar Federal laws are applicable. The managers direct

that the Bureau shall continue to provide funding for law enforcement

programs on the basis of demonstrated need and no tribe shall be denied

funding for a law and order program solely on the basis of P.L. 83-280 or

similar Federal law authorizing the extension of State criminal jurisdiction

over Indians within Indian Country. [Emphasis added] (DE 1, Ex.15).


18

Defendants dismiss these OJS representatives‟ statements, BIA action and

the managers‟ statements as “a few snippets” from the administrative record.

Statements from an OJS solicitor, a former OJS Director, BIA‟s proposed

promulgation of the policy as a regulation, and a House Conference Report

admonishing the policy are clearly more than mere “snippets” of evidence and the

District Court did not err in relying on such evidence.

4. Defendants’ Declination of the Tribe’s Contract Request is

Subject to Judicial Review

Defendants contend the Tribe is challenging Defendants‟ discretionary

allocation of a limited lump sum appropriation for law enforcement and their

decision is not subject to judicial review under the APA. Defendants

mischaracterize and misstate the issues raised in the Tribe‟s case and the District

Court‟s holding below. During oral argument the District Court made clear that it

did not see the Tribe‟s case as a challenge to Defendants‟ allocation of limited law

enforcement funding but one that deals with a “fair playing field for those that

want to submit an application for consideration. (DE 43 p.46, lines 5-8, ER p. 22).

The District Court found the effect of Defendants‟ policy makes the location of the

Tribe‟s reservation a threshold criterion that automatically disqualifies the Tribe

from receiving a 638 contract.

The APA creates a strong presumption of judicial review of agency actions.

Abbott Laboratories v. Gardner , 387 U.S. 136 (1967), Ramah Navajo School


19

Board v. Babbitt, 87 F. 3d. 1338 (D.C. Cir. 1996). The Supreme Court has found

that lack of judicial review is a “very narrow exception” applicable in “rare

instances” and only found where a statute is drawn in such broad terms that in a

given case there is no law to apply or where the decision requires the balancing of

factors which are peculiarly within the agency‟s expertise. Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), Heckler v. Chaney, 470

U.S. 821, 831 (1985).

Defendants rely on Lincoln v. Virgil, 508 U.S. 182 (1993) and Serrato v.

Clark 486 F. 3d 560 (9th Cir. 2007) in support of their argument of lack of judicial

review. At issue in Lincoln was Indian Health Services‟ (“IHS”) decision to

discontinue a pilot project in the southwest that operated a center for diagnostic

and treatment services to handicapped Native American children. In Serrato the

Bureau of Prisons (“BOP”) decided to reallocate funds for the operating of a prison

“boot camp” program. Both programs were funded through a lump-sum

appropriation and the courts found the decisions by IHS and BOP were within the

agencies‟ discretion and not subject to judicial review.

In Lincoln and Serrato, the programs were reevaluated to determine whether

they met their intended goals. In Lincoln, IHS determined the pilot program had

not met its initial purpose of launching a nationwide program of diagnostic and

treatment centers. IHS issued notice of the reallocation decision stating it was


20

“motivated by our goal of increased mental health services for all Indian children.”

Patients would remain eligible for handicapped services but would have to travel a

greater distance to receive them. In Serrato, BOP determined the “boot camp”

program had not reduced recidivism and the funding could be allocated to better

meet BOP‟s key principles. The cost-cutting measure would result “in more

effective and efficient [prison] operations.” Serrato at 569.

The courts in both cases found the underlying authorization acts did not

provided a standard for the courts to use to review the agencies‟ actions. Further,

the agencies‟ decisions required them to balance several factors that were within

their expertise, not the courts, in making their reallocation decision.

Here, Defendants are not deciding to discontinue a law enforcement program

in California and reallocate those funds to a national program in lieu of providing

better law enforcement services in California and other Public Law 280 states. At

issue is the Defendants‟ decision to deny 638 contracts funding to the Tribe simply

because its reservation is in California. The Tribe is foreclosed from any law

enforcement program, unlike the Lincoln plaintiffs who would continue to receive

handicapped services or the plaintiff in Serrato who receive prison services.

Further, Defendants‟ do not maintain expertise regarding tribal law

enforcement in P.L. 280 as found by Professors‟ Goldberg‟s and Champagne‟s:


21

… To use the state's jurisdiction as a justification for not funding California

tribes overlooks …., the absence of state jurisdiction over important matters

of public safety and community welfare, and the inadequacies of state

jurisdiction even where it exists. … (DE 19 Ex. 2. Part 2, pp.103-104, ER

pp. 9-10)

The District Court correctly applied Ramah Navajo School Board v. Babbitt,

87 F. 3d 1338 (D.C. Cir. 1996) to determine whether it could review the Tribe‟s

APA claims. The District Court notes, unlike Lincoln and Serrato, the reviewable

of Defendants‟ action was proper under Ramah which dealt specifically with the

ISDEAA.

In Ramah, the Defendants again raised Lincoln to bar the court‟s review of

the Defendants‟ allocation of a lump-sum appropriation of contract support

services (“CSS”) under the tribe‟s 638 contract. Congress had not appropriated

sufficient funds to meet all of the CSS needs of the tribes, as such the Defendants

only made a full award to those tribes who had submitted timely CSS requests and

awarded untimely requests at a 50% rate as a penalty.

The court rejected the Lincoln defense finding that the:

“…key to any determination of reviewability is congressional intent.

This court has recently affirmed that we „begin with the strong presumption

that Congress intends judicial review of administrative act [citations

omitted] and that the court will not deny review “unless there is persuasive

reason to believe that was the purpose of Congress.” Id. At 1343-1344.

The court found there was nothing in the text or history of the ISDEAA, or

in prior case law, to support a conclusion the ISDEAA committed allocation of


22

funds to agency discretion. The court found Congress had clearly expressed in the

ISDEAA both its intent to circumscribe as tightly as possible the discretion of the

Secretaries and an intent to provide judicial review of all agency actions, citing 25

U.S.C. §450k(a) and 450m-1(a). The court further found the ISDEAA “reveals

that not only did Congress not intend to commit allocation decisions to agency

discretion, it intended quite the opposite; Congress left the Secretary with as little

discretion as possible .” Id. at 1344.

The Ramah court provides an in depth discussion of the ISDEAA and

specifically §450m-1(a) which provides district courts shall have original

jurisdiction over any civil action or claim against the appropriate Secretary arising

under the Act. The court found nothing is this section that makes an exception for

allocation decisions made pursuant to insufficient congressional appropriations.

Id. at 1344.

As found in Ramah, Congressional intent and the text of ISDEAA makes all

actions taken by the Defendants, including its declination of a contract request and

the underlying rational for the denial, subject to judicial review. While the lump-

sum Appropriation Act might not provide “meaningful law to apply” as found by

the Lincoln court, the ISDEAA and its 1988 legislative history provides the

necessary law to evaluate Defendants‟ actions.


23

5. Defendants’ Policy Violates the ISDEAA § 450k Because it is a

Nonregulatory Requirement.

ISDEAA §450(a)(1) prohibits the Secretary from promulgating any

regulation or imposing any “nonregulatory” requirement, relating to self-

determination contracts or the approval, award, or declination of such contracts.

Congress made clear “The current practice of Federal agencies that impose

„threshold criteria‟ on a self-determination contract application is clearly

inconsistent with the intent of the Indian Self-Determination Act.” (1987 Senate

Report 100-274 at 2643).

A nonregulatory requirement was a further issue in Ramah Navajo School

Brd. v. Babbitt, 87 F.3d 1338 (C.D.D.C. 1996) The BIA‟s policy which funded in

full a tribe‟s CSS if requested timely and funding only 50% of a tribe‟s CSS whose

request was untimely, was found by the court to be a nonregulatory requirement.

The BIA again argued when limited funds are available to fund a 638

contract, it is within its discretion to establish funding policies and requirements.

The court disagreed and held the ISDEAA does not commit allocation of

insufficient funds to BIA discretion and the BIA‟s allocation policy constituted a

nonregulatory requirement prohibited under §450k(a)(1) of the ISDEAA.

The court found §450k(a)(1) provides 16 delineated areas that the Secretary

can promulgate regulations, beyond those limited areas the Secretary has no

delegated authority to impose or implement any regulations, rules or policies


24

effecting the approval or disapproval of a 638 contract. The court found the 50%

penalty was not merely a “general statement of policy” but was an inflexible

policy and constituted a nonregulatory requirement.

Applying this same reasoning to Defendants‟ current policy, it directly

impacts the approval, award and declination of a self-determination contract. It

cannot be considered a regulation because it has never been promulgated pursuant

to the APA as mandated under the ISDEAA and it is not within one of 16 areas

Defendants are permitted to regulate. As such, Defendant OJS‟s policy can only

be categorized as a nonregulatory requirement, prohibited under §450k(a)(1) of

the ISDEAA.

Defendants‟ assert Ramah is inapplicable because the plaintiff in Ramah had

a 638 contract and the Tribe in this case does not. This fact is irrelevant to the

§450k analysis. The ISDEAA §450k applies to requirements relating “…to self-

determination contracts or the approval, award, or declination of such

contract…” The Defendants‟ policy adds the requirement that a tribe seeking a

638 contract must be in non-Public Law 280 state or within one of the three narrow

categories of tribes in Public Law 280 state in order to have the contract approved.

This new requirement violates the ISDEAA.


25

6. Defendants’ Unwritten Policy to Deny Law Enforcement

Funding to Tribes in Public Law 280 States is Subject to the

Notice and Comment Provisions of the APA.

Again relying on the Lincoln v. Virgil, 508 U.S. 182 (1993), Defendants

argue their unwritten policy is not subject to the notice and comment provisions

under the APA because it is a “general statement of policy” regarding the

allocation of law enforcement funds. In Lincoln, as discussed above, the plaintiffs

contended IHS‟s notice to the public that it was discontinuing the pilot program

should have been published under the APA. The Supreme Court held that the

IHS‟s notice advising the public prospectively of the exercise of discretionary

power was not subject to the APA notice and comment requirements.

Lincoln is distinguishable from the Tribe‟s case. First, Defendants have

never issued a notice prospectively to tribes in Public Law 280 states informing

them that they were ineligible for law enforcement funding as a matter of policy.

Defendants attempted to comply with the APA notice and comment provisions in

1987 by publishing notice of an amendment to 25 C.F.R. §11, which would have

made its policy a regulation. This proposed regulation was withdrawn and the

Defendants have not attempted to amend 25 C.F.R. §11.

Secondly, the Lincoln court acknowledges that there are situations where an

agency‟s allocation decision must comply with the notice and comment


26

requirements citing Morton v. Ruiz, 415 U.S. 199 (1974) In Ruiz the Supreme

Court reviewed Defendants‟ eligibility criteria for general welfare assistance.

Defendants had been appropriated funds to provide assistance to needy

Indians under the authority of the Snyder Act, 25 U.S.C §13, but had not

proscribed eligibility criteria. Defendants‟ internal manual provided an applicant

must live on a reservation to be eligible. Defendants never promulgated its

eligibility criteria even though the manual required publication. Tribal members

living near a reservation sued Defendants‟ denial of general assistance.

The Court found that “where rights of individuals are affected, it is

incumbent on agencies to follow their own procedures, even where internal

procedures are possibly more rigorous than otherwise would be required.” Ruiz at

231 Because the Defendants‟ manual required that eligibility criteria be published

pursuant to the APA, failing to do so violated their internal procedures. The Court

determined that limiting eligibility requirements might be necessary in some cases,

the agency must at “a minimum let the standard be known so as to assure that it is

being applied consistently and so as to avoid both the reality and the appearance of

arbitrary denial of benefits to potential beneficiaries.” Id. at 23.

In Lincoln , the Supreme Court cites Ruiz for the proposition that the

Defendants‟ failure to follow its own procedures will render an administrative

policy invalid and under such circumstances “the denial of benefits would be


27

inconsistent with the distinctive obligation or trust incumbent upon the

Government in its dealing with these dependent and sometimes exploited people.”

Lincoln at 199.

Here, Defendants are not only required to promulgate their policy because it

is a substantive rule requiring promulgation under the APA, they must also do so

pursuant to the ISDEAA and their own regulation.

25 C.F.R. §900.5 provides:

Except as specifically provided in the Act [ISDEAA] … an Indian tribe or

tribal organization is not required to abide by any unpublished requirements

such as program guidelines, manuals or policy directives of the Secretary,

unless otherwise agreed to by the Indian tribe or tribal organization and the

Secretary, or otherwise required by law.

Additionally, ISDEAA §450k(a)(2) requires that regulations implementing the Act

shall be promulgated under the rule making provisions of the APA, 5 U.S.C. §§552

and 553.

Defendants‟ policy is invalid because it has not been promulgated.

7. Defendants’ Denial of Tribe’s 638 Contract Request Denies

Tribal Members of Equal Protection.

There are 565 federally recognized tribes in the United States. (DE 33, Ex.2,

¶ 2) In Professors Goldberg‟s and Champagne‟s 2007 “Final Report, Law

Enforcement and Criminal Justice Under Public Law 280” p.7, at least 369 of

those tribes are in the mandatory Public Law 280 states. The Final Report states:


28

Public Law 280 structures law enforcement and criminal justice for 23% of

the reservation-based tribal populations in the lower 48 states and all of

Alaskan Natives. Another way of measuring its impact is that 51% of all

federally recognized tribes in the lower 48 states and 70% of all recognized

tribes (including Alaska Native villages) are affected by Public Law 280.

Given 70% of the federally recognized tribes in the United States are

affected by Public Law 280, it is irrational for Defendants‟ to maintain a law

enforcement funding policy that denies all tribes in Public Law 280 funding except

for those in narrowly defined categories. Defendants‟ policy is not based on an

assessment of need, effectiveness of state law enforcement, the limitations placed

on state criminal jurisdiction or what jurisdiction is exercised by tribes in Public

Law 280 states.

It is further unreasonable for Defendants to deny the Tribe law enforcement

funding without ever evaluating the Tribe‟s need under Defendants‟ funding

methodology. In Defendant Cruzan‟s declaration he states new funding for law

enforcement is determined by looking at several factors such as high crime rates,

crime rate reports, staffing levels shortage, land base, drug/gang activities,

detention facilities etc. (DE 33, Ex. 3, ¶ 4). Under the Defendants‟ policy, the

Tribe is prevented from demonstrating its need since it is not within one of

categories of tribes Defendants provide law enforcement funding to.

In Rincon Band of Mission Indians v. Califano, 464 F. Supp. 934 (D.C. Cal.

(1979) the court found the disproportionate funding by Indian Health Services


29

(“IHS”) of health services in California violated equal protection because IHS‟s

allocation methodology did not effectively determine the health care needs of

California Indians. IHS‟s methodology was supposed to compare California

Indians needs with Indians in other parts of the country. The court found had the

proper methodology been “utilized as intended, and its criteria system soundly

based, any disproportionate funding resulting from the comparative needs of

various Indian populations would be perfectly reasonable and legitimate.” Id. at

937.

This Court upheld the lower court‟s decision but not on constitutional

ground but because IHS had violated the Snyder Act. Nonetheless, this Court

found the allocation program used in the case was unreasonable. The Court stated

“… IHS has a continuing obligation under the Snyder Act to distribute rationally

and equitable all of the available Program funds” citing the lower court. IHS

breached this statutory duty to California Indians by failing to allocate its limited

funds in accordance with a rational distribution standard.” Rincon Band of Mission

Indians v. Harris, 618 F. 2d 569, 573 (9th Cir. 1980).

Similarly, Defendants here have a funding methodology that is applied to

new contract requests when determining the amount to be allocated under a 638

contract. However, the Tribe does not have the benefit of Defendants‟ evaluation

of its law enforcement needs. Instead, Defendants rely on an inflexible and


30

absolute bar to funding based on a geographical factor. This is irrational and

violates Equal Protection.

CONCLUSION

Defendants‟ declination is based on a policy that violates the ISDEAA, the

APA and the Equal Protection Clause of Fifth Amendment. The District Court

was correct in granting the Tribe summary judgment and Defendants‟ appeal

should be dismissed.

Respectfully submitted,

DATED: July 2, 2012 /s/ Dorothy Alther

Dorothy Alther

CALIFORNIA INDIAN

LEGAL SERVICES

[email protected]


1

STATEMENT OF RELATED CASES

Appellants are aware of no related cases pending in this Court.


2

CERTIFICATE OF SERVICE

I certify that on July 2, 2012 I filed the foregoing Answering Brief with the

Court, via the Court‟s CM/ECF system, and that I served opposing counsel by the

same means.

/s/ Dorothy Alther

DOROTHY A. ALTHER


SERVICES

Attorney for Plaintiff-Appellee


3

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,886 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

/s/ Dorothy Alther

DOROTHY A. ALTHER


SERVICES

Attorney for Plaintiff-Appellee


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