IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH … · No. 16-36049 IN THE UNITED STATES COURT...

No. 16-36049

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NORTHERN ARAPAHO TRIBE, for itself and as parens patriae,

Plaintiff-Appellee,

v.

DARRYL LaCOUNTE; LOUISE REYES; NORMA GOURNEAU; RAY NATION; MICHAEL BLACK; and OTHER UNKNOWN INDIVIDUALS, in their individual

and official capacities,

Defendants-Appellants.

On Appeal from the United States District Court for the District of Montana

BRIEF FOR APPELLANTS

CHAD A. READLER Acting Assistant Attorney General

MICHAEL W. COTTER United States Attorney

MARK R. FREEMAN WEILI J. SHAW

(202) 514-1371 Attorneys, Appellate Staff Civil Division, Room 7240 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

Case: 16-36049, 02/10/2017, ID: 10316075, DktEntry: 11-1, of 49

TABLE OF CONTENTS

Page

INTRODUCTION .................................................................................................................. 1

STATEMENT OF JURISDICTION .................................................................................... 3

STATEMENT OF THE ISSUES .......................................................................................... 4

PERTINENT STATUTES AND REGULATIONS ......................................................... 4

STATEMENT OF THE CASE ............................................................................................. 4

A. Statutory Background ........................................................................................ 4

B. Factual Background ........................................................................................... 6

C. District Court Proceedings ............................................................................ 10

D. District Court Decision .................................................................................. 13

SUMMARY OF ARGUMENT ........................................................................................... 15

STANDARD OF REVIEW ................................................................................................. 16

ARGUMENT ......................................................................................................................... 16

I. The Tribe’s Claims for Prospective Injunctive Relief Are Moot ........................ 17

A. The BIA Decisions Challenged by the Tribe Cannot Reasonably Be Expected to Recur ..................................................................................... 17

B. The Gourneau Letter Rendered Moot the Tribe’s Claims for Injunctive Relief .............................................................................................. 20

C. BIA Regulations Underscore that the Tribe’s Injunctive Claims Are Moot .......................................................................................................... 21

D. At a Minimum, the Tribe Cannot Establish a Likelihood of Substantial and Immediate Irreparable Harm ............................................ 23


ii

E. The District Court’s Justification for Granting Injunctive Relief Was Erroneous ................................................................................................ 24

II. The Tribe Lacks a Cause of Action for Prospective Relief ................................. 26

A. The Complaint Does Not State a Cause of Action for Breach of Trust .................................................................................................................. 26

B. Neither the ISDA nor the CDA Permit the Present Suit ......................... 30

III. The Injunction is Contrary to the Public Interest ................................................. 33

A. Ambiguity as to the Injunction’s Application Threatens the BIA’s Provision of Services Under the ISDA ....................................................... 34

B. The Public Interest and the Balance of Equities Weigh Against the Injunction .................................................................................................. 37

CONCLUSION ..................................................................................................................... 38

STATEMENT OF RELATED CASES

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE


iii

TABLE OF AUTHORITIES

Cases: Page(s)

Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013) ........................................................................................................... 17

America Cargo Transp., Inc. v. United States, 625 F.3d 1176 (9th Cir. 2010) ..................................................................................... 21, 24

Association des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013) ..................................................................................... 30 City of L.A. v. Lyons,

461 U.S. 95 (1983) ........................................................................................................ 23, 25

Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013) ............................................................................................ 34

Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) ............................................................................................ 17

Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) ............................................................................................ 37

El Paso Nat. Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014) ........................................................................................... 27

Fortyune v. American Multi–Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) ............................................................................................ 34

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .............................................................................................. 30

Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir. 2005) ............................................................................................ 17

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006) .............................................................................................. 27

Hopland Band of Pomo Indians v. Jewell, 624 F. App’x 562 (9th Cir. 2015) ...................................................................................... 29


iv

Knox v. Service Emps. Int’l Union, Local 1000, 132 S. Ct. 2277 (2012) ......................................................................................................... 24

Los Coyotes Band of Cahuilla & Cupeño Indians v. Jewell, 729 F.3d 1025 (9th Cir. 2013) ............................................................................................ 29

Lyons v. City of L.A., 615 F.2d 1243, cert. denied, 449 U.S. 934 (1980) .......................................................................................... 25

Marceau v. Blackfeet Hous. Auth., 540 F.3d 916 (9th Cir. 2008) ....................................................................................... 26, 28

Menominee Indian Tribe v. United States, 136 S. Ct. 750 (2016) ........................................................................................................... 27

Natural Res. Def. Council v. County of L.A., 840 F.3d 1098 (9th Cir. 2016) ............................................................................................ 16

NavCom Def. Elec., Inc. v. Ball Corp., 92 F.3d 877 (9th Cir. 1996) ................................................................................................ 31

O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................................................................. 23

Pom Wonderful LLC v. Hubbard, 775 F.3d 1118 (9th Cir. 2014) ..................................................................................... 16, 17

Rosebrock v. Mathis, 745 F.3d 963 (9th Cir. 2014) ....................................................................................... 24, 25

Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005) ................................................................................... 29, 30

Shoshone & Arapaho Tribal Court v. Wind River Agency Superintendent, Nos. IBIA 16-034, 16-040 (IBIA Apr. 6, 2016), http://go.usa.gov/x9E5Y .................................................................................................. 10 Small v. Avanti Health Sys., LLC,

661 F.3d 1180 (9th Cir. 2011) ............................................................................................ 16

TRW, Inc. v. F.T.C., 647 F.2d 942 (9th Cir. 1981) .............................................................................................. 23


v

United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) ............................................................................................................. 27

United States v. Mitchell, 463 U.S. 206 (1983) ............................................................................................................. 28

United States v. Tohono O’Odham Nation, 563 U.S. 307 (2011) ............................................................................................................. 27

United States v. W. T. Grant Co., 345 U.S. 629 (1953) ............................................................................................................. 23

Winter v. FloorPro, Inc., 570 F.3d 1367 (Fed. Cir. 2009) .......................................................................................... 31

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ................................................................................................................. 17

Statutes:

Contract Disputes Act of 1978: 41 U.S.C. § 7101 et seq. .......................................................................................................... 6 41 U.S.C. § 7101(7) .............................................................................................................. 31 41 U.S.C. § 7103 .................................................................................................................. 31 Indian Self-Determination and Education Assistance Act: 25 U.S.C. § 5301 et seq. .......................................................................................................... 4 25 U.S.C. § 5302(b) ............................................................................................................... 4 25 U.S.C. § 5304(l ) ................................................................................................... 5, 13, 31 25 U.S.C. § 5302(f)(3) ........................................................................................................... 6 25 U.S.C. § 5305(f)(3) ......................................................................................................... 31 25 U.S.C. § 5321(a) ................................................................................................................ 5 25 U.S.C. § 5321(a)(1) ........................................................................................................... 5 25 U.S.C. § 5321(a)(2) .................................................................................................... 5, 32 25 U.S.C. § 5321(a)(2)(A) ..................................................................................................... 7 25 U.S.C. § 5321(a)(2)(A)-(E) ....................................................................................... 5, 32 25 U.S.C. § 5321(a)(2)(C) ..................................................................................................... 7 25 U.S.C. § 5321(b)(1) ........................................................................................................... 6 25 U.S.C. § 5321(b)(2) ........................................................................................................... 6 25 U.S.C. § 5321(b)(3) ....................................................................................... 5, 10, 31, 32 25 U.S.C. § 5324(j) .......................................................................................................... 6, 31


vi

25 U.S.C. § 5325(a)(1) ........................................................................................................... 5 25 U.S.C. § 5325(f) ......................................................................................................... 6, 31 25 U.S.C. § 5331(d) ........................................................................................................ 6, 31 Indian Tucker Act, 28 U.S.C. § 1505 .................................................................................... 26

Tucker Act, 28 U.S.C. § 1491 ................................................................................................ 26

25 U.S.C. § 476(f) .................................................................................................................... 11

25 U.S.C. § 5123(f) .................................................................................................................. 11

28 U.S.C. § 1292(a)(1) ............................................................................................................... 4

28 U.S.C. § 1331 ........................................................................................................................ 3

28 U.S.C. § 1343 ........................................................................................................................ 3

28 U.S.C. § 1362 ........................................................................................................................ 3

28 U.S.C. § 1367(a) .................................................................................................................... 3

28 U.S.C. § 2201 ........................................................................................................................ 3

Law and Order Code of the Shoshone and Arapaho Tribes: § 1-2-1 ...................................................................................................................................... 7 § 1-3-1 ...................................................................................................................................... 7 § 1-3-2(2) ................................................................................................................................. 7 § 1-3-2(5) ................................................................................................................................. 7 § 1-3-5 ...................................................................................................................................... 7 § 1-3-12 ................................................................................................................................... 7 § 1-3-13 ................................................................................................................................... 7 § 1-3-14 ................................................................................................................................... 7 § 1-3-15 ................................................................................................................................... 7 Rules:

Fed. R. Civ. P. 19(b) ................................................................................................................ 33

Fed. R. Civ. P. 65(d)(1)(C) ..................................................................................................... 34


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Regulations:

25 C.F.R. § 900.6 .......................................................................................................... 5, 21, 22

25 C.F.R. § 900.8 ....................................................................................................................... 5

25 C.F.R. § 900.8(d) ................................................................................................................ 21

25 C.F.R. § 900.151(b) ............................................................................................................ 31

25 C.F.R. § 900.215 ................................................................................................................. 31

25 C.F.R. § 900.217 ................................................................................................................. 31

25 C.F.R. §§ 900.218-.220 ...................................................................................................... 31

Other Authority:

81 Fed. Reg. 74,675 (Oct. 27, 2016) ..................................................................................... 13


INTRODUCTION

This case concerns efforts by the Bureau of Indian Affairs (BIA) to provide

essential services on Wyoming’s Wind River Reservation. The Indian Self-

Determination and Education Assistance Act (ISDA) directs the BIA to contract with

Indian tribal organizations to provide services that would otherwise be provided

directly by the federal government. Implementing the ISDA is uniquely challenging

on the Wind River Reservation because it is the only reservation in the United States

occupied by multiple tribes—here, the Northern Arapaho Tribe and the Eastern

Shoshone Tribe—that have not formed a confederated government. Many programs

necessarily require management on a reservation-wide rather than tribe-specific basis,

and contracts to take over such shared programs require the approval of each tribe.

For several decades, the BIA successfully contracted with the Shoshone and

Arapaho Joint Business Council, a joint entity representing both tribes, to provide

shared programs on the reservation. The BIA was placed in a difficult position,

however, when the tribes became estranged and the Northern Arapaho Tribe stopped

participating in the Joint Business Council. Terminating contracts for existing

programs would have disrupted vital services and caused the layoffs of experienced

tribal employees. To avoid the confusion and disruption that would ensue, the BIA

renewed contracts for existing shared programs with the Council—now operating

without the Northern Arapaho Tribe—while waiting to see if the tribes could resolve

their dispute. When negotiations failed, however, the BIA closed out the contracts


2

and declared that it would not award new contracts for shared programs without both

tribes’ approval.

Despite this unequivocal statement, the district court granted the Northern

Arapaho Tribe’s request for a preliminary injunction prohibiting the BIA from

approving contracts for shared services without the consent of both tribes. The court

effectively converted the agency’s policy declaration into an injunction, without any

elaboration of what constitutes a “shared service” in the difficult circumstances of

the Wind River Reservation. The court’s order thereby wrongly places BIA officials at

risk of contempt for exercising their best judgment about how to implement the

statutory scheme.

The preliminary injunction lacks basis and should be set aside. First, the

circumstances of this case offer no grounds for injunctive relief. All of the

challenged self-determination contracts have expired. The BIA has expressly

committed to both tribes and to the district court that it will not award future

contracts for shared programs without the consent of both tribes. Longstanding BIA

regulations expressly require, moreover, that any new ISDA proposals for shared

programs must have the approval of both tribes. These developments moot the

Tribe’s prospective claims and eliminate any threat of irreparable injury—the essential

foundation for any injunction.

Second and more fundamentally, the Tribe lacks a cause of action. The Tribe

could have challenged the actions at issue by seeking judicial review when the BIA


3

declined the Tribe’s own proposal to operate the programs at issue. It did not do so.

Instead, the Tribe filed this freestanding action in district court. But none of the

sources of law on which the Tribe relies provides a cause of action to challenge or

prevent the award of a self-determination contract. Congress intended the ISDA to

remove barriers to the award of self-determination contracts, not create them.

Finally, the injunction creates real harm. Ambiguity as to the injunction’s scope

hampers the BIA’s efforts to restore and provide services on the Wind River

Reservation. For example, a probate-services contract for one tribe could potentially

be considered a “shared service” within the meaning of the order because the

program would determine rights in property in which members of the other tribe

claim an interest. The injunction improperly places BIA officials in threat of

contempt for exercising their best judgment in resolving these and other novel and

difficult questions. And in practical effect, the injunction will force agency officials to

err on the side of rejecting self-determination contracts, a result Congress could not

have intended.

This Court should accordingly vacate the preliminary injunction.

STATEMENT OF JURISDICTION

The district court did not state the basis for its jurisdiction in this case, but the

complaint asserts jurisdiction under 28 U.S.C. §§ 1331, 1343, 1362, and 2201. ER 96-

97, ¶ 3. The district court also asserted supplemental jurisdiction under 28 U.S.C.

§ 1367(a). ER 15. As explained below, the district court lacked jurisdiction over the


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Northern Arapaho Tribe’s claims for prospective relief—the only claims at issue

here—because those claims are moot.

The district court entered its preliminary injunction on October 17, 2016. ER

24. Appellants timely filed a notice of appeal on December 15, 2016. ER 25-26.

This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).

STATEMENT OF THE ISSUES

1. Whether the Northern Arapaho Tribe’s claims for prospective injunctive

relief are moot.

2. Whether the Tribe lacks a cause of action.

3. Whether the public interest and the balance of equities require vacatur

of the injunction because ambiguity in the injunction’s application puts agency

officials at risk of contempt for good-faith judgments about whether a program is a

“shared service,” hindering the provision of services under the ISDA.

PERTINENT STATUTES AND REGULATIONS

Pertinent statutes and regulations are reproduced in the addendum to this brief.

STATEMENT OF THE CASE

A. Statutory Background

Congress enacted the Indian Self-Determination and Education Assistance Act

(ISDA), 25 U.S.C. § 5301 et seq., to promote “effective and meaningful participation by

the Indian people in the planning, conduct, and administration” of federal programs

and services for Indians. Id. § 5302(b). Under the Act, a “tribal organization” may


5

request to enter into a “self-determination contract” with the Secretary of the Interior

or the Secretary of Health and Human Services, as appropriate, to assume operation

of federally funded programs and services that the Secretary would otherwise have

provided directly. Id. § 5321(a). Such contracts must provide the amount of funding

that the “Secretary would have otherwise provided for the operation of the

programs.” Id. § 5325(a)(1).

The Act defines the term “tribal organization” to include, inter alia, “any legally

established organization of Indians which is controlled, sanctioned, or chartered by”

“the recognized governing body of any Indian tribe.” 25 U.S.C. § 5304(l). The

definition further provides 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.” Id. BIA regulations accordingly require that an “initial

contract proposal”—that is, one for “programs . . . the Indian tribe or tribal

organization is not now carrying out”—include “[a] copy of the authorizing

resolution from the Indian tribe(s) to be served.” 25 C.F.R. §§ 900.6, .8.

The ISDA encourages the expeditious award of contracts. The Secretary must

act on a valid proposal within 90 days or else the proposal is deemed approved. 25

U.S.C. § 5321(a)(2). The Secretary must accept a tribe’s request for a self-

determination contract except in specified circumstances. See id. § 5321(a)(1); id.

§ 5321(a)(2)(A)-(E) (permitted grounds for declination). The Secretary must assist the


6

tribal organization in overcoming any objections to the proposal. Id. § 5321(b)(1)-(2).

And if the Secretary declines a contract, the tribal organization may seek judicial

review directly in district court without pursuing any administrative appeals. Id.

§ 5321(b)(3).

The ISDA also specifies the circumstances under which a tribe or tribal

organization may obtain judicial review. In addition to declinations, judicial review is

available when the Secretary declines to approve a redesign of a program, 25 U.S.C.

§ 5324(j); the Secretary disallows costs, id. § 5325(f); or the parties disagree as to

reporting requirements, id. § 5305(f)(3). Post-award disputes between the contracting

parties are governed by the requirements of the Contract Disputes Act, 41 U.S.C.

§ 7101 et seq. 25 U.S.C. § 5331(d). No provision authorizes suit by a non-party to

cancel an existing self-determination contract or to prevent the Secretary from

entering into future self-determination contracts.

B. Factual Background

The Northern Arapaho Tribe and the Eastern Shoshone Tribe share the Wind

River Reservation in Wyoming. ER 38, ¶ 4. The two tribes jointly own much of the

land on the reservation, and family and other relationships between members of

different tribes are common. The two tribes, however, have not formed a

confederated tribal government. The Wind River Reservation is the only shared

reservation in the United States on which the tribes have not done so.


7

The intertwined geographic, economic, familial, and legal relationships between

the two tribes on the Wind River Reservation make it infeasible to award separate self-

determination contracts for certain kinds of federal programs. To maintain law and

order, the reservation must have a court system capable of serving the entire

reservation. Similarly, wildlife management must occur on a reservation-wide basis

because wildlife do not respect tribal distinctions. More generally, because of fixed

costs, the funding provided for a single federally operated program may be insufficient

to provide adequate services if divided among two separate tribal programs. See 25

U.S.C. § 5321(a)(2)(A), (C) (permitting declination of contract in such circumstances).

For several decades, the two tribes addressed the need for shared programs

through the Shoshone and Arapaho Joint Business Council. ER 39, ¶ 6. The tribes

described the Joint Business Council as “the legislative body” for the two tribes, with

“full authority to enter into negotiations . . . [and] sign contracts” and “the

responsibility to conduct business and establish policy.” ER 54, 56. Acting through

the Joint Business Council, the tribes enacted the Law and Order Code of the

Shoshone and Arapaho Tribes (S&A LOC or Code) to “provide all individuals living

within the Wind River Indian Reservation with an effective means of redress for both

civil and criminal conflicts.” ER 54; S&A LOC § 1-2-1. The Code established the

Shoshone and Arapaho Tribal Court and gave the Joint Business Council power to

manage the court, including the power to appoint and remove judges as well as other

court personnel. See S&A LOC §§ 1-3-1, 1-3-2(2), (5), 1-3-5, -12, -13, -14, -15. The


8

Joint Business Council subsequently authorized self-determination contracts to

operate the Tribal Court as well as other shared programs. ER 56-57; ER 52.

The BIA accordingly entered into self-determination contracts with the Joint

Business Council to operate several shared programs, including the Shoshone and

Arapaho Tribal Court, Fish and Game program, and Tribal Water Engineers program.

ER 39, ¶ 6.

In September 2014, following a breakdown in the relationship between the

tribes, the Northern Arapaho Tribe informed the BIA that it had withdrawn from the

Joint Business Council. The Tribe assured the BIA, however, that “[j]oint tribal

programs remain unaffected.” ER 45. The BIA accordingly extended several joint

self-determination contracts through September 30, 2015, to preserve the continuity

of the programs while it waited to see if the tribes could resolve their dispute. See ER

40 ¶ 9.

In September 2015, with the tribal dispute still ongoing, the BIA renewed the

Joint Business Council’s contract to operate judicial services, this time through Fiscal

Year (FY) 2016. See ER 61-62. Because the Northern Arapaho Tribe no longer

participated in the Joint Business Council, the BIA identified the contracting party as

the “Eastern Shoshone Business Council on behalf of the Joint Business Council.”

ER 63; see also ER 62 (“This contract is with the Joint Business Council to administer

the Wind River Tribal Court . . . .”); ER 61 (listing contractor as the Joint Finance

Office, the joint office responsible for supporting the Joint Business Council and joint


9

programs). The BIA also renewed contracts for the joint Shoshone and Arapaho Fish

and Game and Tribal Water Engineer programs. ER 29-30, 33-34 (listing contractor

as the Joint Finance Office).

The Northern Arapaho Tribe separately submitted its own proposal to operate

the judicial-services program for FY2016 for both itself and the Eastern Shoshone

Tribe. See ER 48. Although the Tribe presumably preferred that the BIA approve

that proposal, it expressly recognized the need to continue operating shared

programs—particularly the tribal court—while negotiations continued between the

tribes to resolve their disagreements. The Tribe told the BIA in November 2015, two

months after the renewal of the judicial-services contract, that the BIA needed to

provide “[a]ctive oversight” because “we are concerned that the shared programs

could run out of funds before the Tribes have a meaningful opportunity to reach

agreement.” ER 120-121. The Northern Arapaho Tribe likewise informed the

Eastern Shoshone Tribe that it “want[ed] the continuation of the federal funding to

support these programs” and to ensure that “essential function[s] [are] not

interrupted.” ER 122-23.

The Northern Arapaho Tribe further informed the BIA that “no [authorizing]

resolution is needed from either Council with respect to funding for the Tribal Court

and Tribal Water Engineer’s Office.” ER 59. The Tribe explained that, pursuant to

the Shoshone and Arapaho Law and Order Code, the tribes had approved the self-

determination contracts for the Tribal Court, Tribal Water Engineer, and Fish and


10

Game Department, and both the Code “and approving resolution by the Tribes

remain in effect.” ER 52.

In December 2015, the BIA declined the Northern Arapaho Tribe’s proposal

to operate the tribal court, stating that it had already awarded the contract to the Joint

Business Council. ER 48. The BIA explained that it had done so because the joint

Law and Order Code of the Shoshone and Arapaho Tribes authorized the Joint

Business Council to manage and administer the tribal court. ER 50. Unless the tribes

amended the code to “specify a different authority on how justice will be carried out

and by whom,” the Joint Business Council would “act[] as the legislative body over

judicial functions of the Wind River Reservation.” ER 50.

Under the ISDA, the Northern Arapaho Tribe was entitled to pursue either an

administrative appeal of this declination or immediate judicial review. See 25 U.S.C.

§ 5321(b)(3). The Tribe filed, but then withdrew, an administrative appeal. See Order,

Shoshone and Arapaho Tribal Court v. Wind River Agency Superintendent, Nos. IBIA 16-034,

16-040 (IBIA Apr. 6, 2016), http://go.usa.gov/x9E5Y; see also ER 91-93. It did not

seek judicial review.

C. District Court Proceedings

Rather than pursue its remedies under the ISDA for the declination of its

FY2016 contract proposal, the Northern Arapaho Tribe filed this suit in February


11

2016 in federal district court in Montana.1 The complaint alleged, among other

things, that the BIA unlawfully entered into self-determination contracts with the

Joint Business Council without the Tribe’s approval, see ER 106-07, ¶ 52; 111-12, ¶ 70,

and that the BIA unlawfully approved the Shoshone Business Council’s unilateral

actions with respect to joint programs, such as transferring funds, replacing personnel,

and removing necessary equipment, ER 112-15, ¶¶ 71-82.2 The complaint asserted

various legal theories, including breach of trust; violations of unspecified federal and

treaty rights; conversion of Northern Arapaho property; denial of equal protection;

and diminishment of privileges and immunities relative to other tribes in violation of

25 U.S.C. § 5123(f) (formerly 25 U.S.C. § 476(f)). ER 116-17, ¶¶ 88-92.

The Northern Arapaho Tribe sought, inter alia, an injunction prohibiting the

BIA from violating the Tribe’s rights and depriving the Tribe of funds appropriated

for its benefit. ER 118, ¶ C. It also sought rescission of contracts made through the

1 The district court subsequently consolidated this case with a second suit in

which the Northern Arapaho Tribe challenges the BIA’s declination of self-determination contracts the Tribe proposed for FY2017 and later. See, e.g., Am. Compl., Ex. 60 (Dkt. 112-1), at 6 (filed as Dkt. 23 in No. 1:16-cv-60 (D. Mont. Oct. 13, 2016)) (proposed contract dates of October 1, 2016 through October 1, 2019). As explained below, no shared self-determination contracts have been approved for the programs and periods at issue in that action. That suit is therefore not a proper vehicle for review of the BIA actions at issue in this case, which concerns the BIA’s extension of shared contracts for FY2016.

2 In addition to various BIA officials in their official and individual capacities, the complaint also named as defendants two officers of the Shoshone Business Council. The Northern Arapaho Tribe later voluntarily dismissed those claims without prejudice. See Notice of Voluntary Dismissal 2 (Dkt. 83).


12

Joint Business Council; a constructive trust on funds and property belonging to the

Tribe or provided for its benefit; and an accounting of all such funds and property.

ER 118-19, ¶¶ D-F. The Tribe moved for a preliminary injunction prohibiting the

United States from, among other things, “[a]uthorizing . . . unilateral action by the

[Shoshone Business Council], whether through a ‘joint’ council or otherwise, which

purports to manage shared [self-determination] programs of the Tribes.” Mot. for

Prelim. Inj. 3-4 (Dkt. 17).

The government opposed the motion for a preliminary injunction and moved

to dismiss the complaint. Among other defenses, the government argued that the

Tribe lacked a cause of action to challenge the BIA’s award of an ISDA contract and

that the ISDA does not create fiduciary duties enforceable in a freestanding civil

action. The government also argued that the Eastern Shoshone Tribe was an

indispensable party to the lawsuit.

Recognizing that the root of the problem was the breakdown in the

relationship between the tribes, the BIA engaged both tribes in extensive mediation

efforts, retaining a mediator and agreeing to assume up to $25,000 in mediation costs.

See Joint Status Report 14-15 (Dkt. 96). Those efforts failed when the Eastern

Shoshone Tribe withdrew from the mediation. Id. at 15.

After negotiations failed, the BIA announced in an August 2016 letter (the

Gourneau Letter) that it would not accept further contract proposals for shared

programs absent express consent from both tribes. The BIA explained that,


13

“[a]lthough it was reasonable for the BIA to extend the current self-determination

contracts on a temporary basis in the hopes that the Tribes would resolve their

dispute,” the BIA would no longer “accept proposals to operate shared programs

from one Tribe or tribal organization without agreement between the Tribes on the

operation of that program, as well as tribal resolutions from both Tribes.” See ER 35

(citing 25 U.S.C. § 5304(l)). The letter stated that the BIA would close out the existing

shared contracts, which expired on September 30, 2016, and invited new proposals

supported by resolutions from each tribe. ER 35-36.

The BIA has since established new federal programs to restore some of the

services formerly provided through these contracts. For example, the BIA has

established a new, federally operated Court of Indian Offenses (also known as a CFR

Court) “[t]o ensure there is not a lapse in public safety” “until such time as the

Eastern Shoshone Tribe and the Northern Arapaho Tribe can agree on the operation

and funding of a court system which is capable of serving the entire population of

the Wind River Indian Reservation.” 81 Fed. Reg. 74,675, 74,676 (Oct. 27, 2016).

D. District Court Decision

The district court granted the Northern Arapaho Tribe’s motion for a

preliminary injunction and denied the government’s motion to dismiss.

The court held that the BIA commitment announced in the Gourneau Letter

did not moot the Tribe’s claim for prospective relief. It explained only that “[t]he

Gourneau Letter lacks any apparent legal force” and “[t]he BIA could change its


14

position on the approval of these contracts at any time.” ER 6. The court also held

that the Eastern Shoshone Tribe was not a required and indispensable party under

Federal Rule of Civil Procedure 19(b). ER 11-13.

With respect to the Tribe’s preliminary-injunction motion, the district court

held that the Tribe had established a likelihood of success on the merits of its breach-

of-trust claim. ER 17. The court concluded that the ISDA’s requirement that the BIA

obtain “the approval of each . . . Indian tribe” benefitted by a multi-tribe contract

establishes a “specific statutory trust duty” sufficient to establish a breach of trust

claim. ER 19-20 (emphasis omitted). The district court declined to rule on the

Tribe’s likelihood of success on its other claims. ER 21.

As for the other preliminary injunction factors, the district court held that

“[t]he prospect of allegedly unlawful approvals in the future poses irreparable harm

to” the Tribe. ER 22. It held that the balance of equities favored the Tribe because

the Tribe had a legitimate interest in protecting its approval right, whereas the BIA

and the Shoshone Business Council lacked any legitimate interest in denying that

right. ER 22-23. Finally, the court held that “[n]o harm would inure to the public

interest if the Court were to issue a preliminary injunction that tracked the terms of

the Gourneau Letter, and, more explicitly, the terms of § 5304(l).” ER 23 (citation

omitted).

The court accordingly entered a preliminary injunction ordering that, “in

accordance with the Gourneau Letter (Doc. 97-1), Defendants shall refrain from


15

approving [ISDA] contracts for multi-tribal, shared services without the approval, via

tribal government resolution, of both the Northern Arapaho Tribe and the Eastern

Shoshone Tribe.” ER 24.

SUMMARY OF ARGUMENT

The district court erred in granting a preliminary injunction because the

Northern Arapaho Tribe’s claims for prospective relief are moot. The BIA has

unequivocally stated that it will no longer award such contracts without resolutions

from both tribes. Moreover, BIA regulations require that future proposals to take

over those programs must include authorizing resolutions from the tribes served. For

the same reasons, the Tribe cannot establish a likelihood of irreparable harm.

The district court also erred in concluding that the Tribe had a likelihood of

success on its breach-of-trust claims. As this Court and others have recognized, the

ISDA does not create fiduciary trust duties actionable through a breach-of-trust claim.

Nor does the ISDA itself provide the Tribe a cause of action. To the contrary,

permitting non-parties to challenge or prevent the award of self-determination

contracts would be contrary to the ISDA’s statutory scheme.

Finally, the injunction causes ongoing harm to the BIA’s efforts to administer

federal programs and the ISDA on the Wind River Reservation. The unique

circumstances of this shared reservation create ambiguities as to whether programs

constitute shared services within the meaning of the injunction. The injunction

therefore subjects officials to the risk of contempt and hinders the award of self-


16

determination contracts. For these reasons, the public-interest and balance-of-harms

factors also weigh against the injunction.

STANDARD OF REVIEW

This Court reviews the district court’s determination regarding mootness de

novo and its underlying factual determinations for clear error. Natural Res. Def. Council

v. County of Los Angeles, 840 F.3d 1098, 1102 (9th Cir. 2016).

The Court reviews the district court’s grant of a preliminary injunction for

abuse of discretion. Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1184 (9th Cir.

2011). “[A] district court abuses its discretion if the court rests its decision on an

erroneous legal” conclusion, as determined through de novo review, or “on a clearly

erroneous finding of fact.” Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th

Cir. 2014).

ARGUMENT

The district court erred in granting the preliminary injunction because the

Northern Arapaho Tribe’s claims for prospective relief are moot. The court further

erred by finding that the Tribe had established the elements required for a preliminary

injunction. To obtain a preliminary injunction, “the moving party must establish that:

(1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the

absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an

injunction is in the public interest.” Pom Wonderful LLC v. Hubbard, 775 F.3d 1118,


17

1124 (9th Cir. 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008)). The Tribe cannot establish any of these factors.

I. THE TRIBE’S CLAIMS FOR PROSPECTIVE INJUNCTIVE RELIEF ARE MOOT

The district court erred in granting a preliminary injunction because the

Northern Arapaho Tribe’s claims for prospective injunctive relief are moot. A case

becomes moot if “‘changes in the circumstances that prevailed at the beginning of

litigation have forestalled any occasion for meaningful relief.’” Gator.com Corp. v. L.L.

Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc). Where a plaintiff seeks

injunctive relief, a case “is normally moot upon the termination of the conduct at

issue” unless “there is a likelihood of recurrence.” Demery v. Arpaio, 378 F.3d 1020,

1025-26 (9th Cir. 2004). Such a case is “no longer a ‘Case’ or ‘Controversy’ for

purposes of Article III,” “[n]o matter how vehemently the parties continue to dispute

the lawfulness of the conduct that precipitated the lawsuit.” Already, LLC v. Nike, Inc.,

133 S. Ct. 721, 726, 727 (2013).

A. The BIA Decisions Challenged by the Tribe Cannot Reasonably Be Expected to Recur

The Northern Arapaho Tribe claims that the BIA erred in renewing contracts

with the Joint Business Council, from which the Tribe had withdrawn, without the

Tribe’s consent. That claim cannot support injunctive relief, however, because there is

no reasonable likelihood that those decisions will recur.


18

The contract renewals at issue in this case occurred as the BIA attempted to

prevent the collapse of longstanding and vital programs on the Wind River

Reservation amid an acrimonious dispute between the Northern Arapaho Tribe and

the Eastern Shoshone Tribe. The BIA had successfully funded shared programs

through contracts with the Joint Business Council for decades before the Northern

Arapaho Tribe withdrew. ER 38-39. Terminating those contracts immediately would

have cut off long-standing programs and services, affected public safety on the

reservation, and required layoffs of the tribal employees with the most experience

providing those services. It would also have created substantial disruption while the

BIA sought to restore services through other means. Inflicting those harms would

have been particularly unnecessary and wasteful if (as the BIA hoped) the tribes

subsequently came to agreement. The BIA was therefore reluctant to terminate the

shared programs while it reasonably believed that the tribes would resolve their

dispute.

Initially, the Northern Arapaho Tribe did not object to renewing the existing

shared contracts, assuring the BIA that “[j]oint tribal programs remain unaffected.”

ER 45. Although the Tribe later submitted its own proposals to operate joint

programs for both tribes, ER 48, it continued to acknowledge the need for shared

programs to keep operating while the tribes negotiated a resolution of their

disagreement. Indeed, the Northern Arapaho Tribe asked the BIA for “[a]ctive

oversight” because “we are concerned that the shared programs could run out of


19

funds before the Tribes have a meaningful opportunity to reach agreement.” ER 120-

21; see also ER 122-23 (informing the Eastern Shoshone Tribe that it “want[ed] the

continuation of the federal funding to support these programs” and to ensure that

“essential function[s] [are] not interrupted”).

The Northern Arapaho Tribe also told the BIA that at least some of the

programs “may proceed under on-going authority from both Tribes provided in the

Shoshone and Arapaho Law and Order Code.” ER 46. As the Tribe explained, “no

resolution is needed from either Council with respect to funding for the Tribal Court

and Tribal Water Engineer’s Office” because, “[p]ursuant to the [Shoshone and

Arapaho Law and Order Code],” the tribes had “approved these [self-determination]

contracts,” and both “[t]he [Code] and approving resolution by the Tribes remain in

effect.” ER 52, 59; see also ER 54, 56-67 (resolutions authorizing Code and judicial-

services self-determination contract).

These unique circumstances prompted the BIA to renew the shared judicial

services, fish and game, and water engineer contracts through FY2015 and then

FY2016. See ER 40 ¶ 9; ER 61-63 (FY2016 funding agreement with the Eastern

Shoshone Business Council on behalf of the Joint Business Council). The BIA also

undertook extensive efforts to mediate the dispute between the tribes, retaining a

mediator and paying the mediation costs out of the agency’s funds. See Joint Status

Report 14-15 (Dkt. 96).


20

When the severity of the tribes’ estrangement became clear, however, the BIA

ceased trying to keep the shared programs intact. After the Eastern Shoshone Tribe

withdrew from mediation, the BIA determined that it had no choice but to allow the

shared contracts to expire. The BIA accordingly announced in the Gourneau Letter

that, “[a]lthough it was reasonable for the BIA to extend the current self-

determination contracts on a temporary basis in the hopes that the Tribes would

resolve their dispute,” it would not accept further contract proposals for shared

programs absent express consent from both tribes. ER 35. It again invited the tribes

to submit new proposals supported by resolutions from both tribes, as it had done

repeatedly throughout the dispute. ER 36.

B. The Gourneau Letter Rendered Moot the Tribe’s Claims for Injunctive Relief

The Gourneau Letter eliminated any basis for the Tribe’s claim for prospective

injunctive relief. All the challenged self-determination contracts with the Joint

Business Council have now expired. The Gourneau Letter unequivocally states that

the BIA will not enter into contracts for shared programs in the future without the

consent of both tribes. ER 35-36. The government made the same representation to

the district court. See Joint Status Report 19-20 (Dkt. 96) (challenged conduct will not

recur because BIA has stated it “will not accept proposals from one Tribe to operate

programs on behalf of multiple Tribes absent the consent of all Tribes”).


21

This Court “presume[s] the government is acting in good faith” when it makes

declarations of this type. America Cargo Transp., Inc. v. United States, 625 F.3d 1176,

1180 (9th Cir. 2010). The circumstances here fully warrant that presumption. As

noted above, the challenged contract renewals were the result of exceptional

circumstances in which the government sought to preserve existing programs pending

negotiations between the tribes. The government issued the Gourneau Letter after it

became clear that, contrary to hope and expectation, the tribes would not resume their

historic cooperation. There is accordingly no reason to doubt that the Gourneau

Letter represents the government’s policy going forward.

C. BIA Regulations Underscore that the Tribe’s Injunctive Claims Are Moot

BIA regulations provide further assurance that the Tribe faces no risk that the

agency will issue new contracts for shared services without its consent.

As already noted, all of the challenged self-determination contracts between

the BIA and the Joint Business Council are now expired. Consequently, any new

contract for shared services at the Wind River Reservation would have to issue from a

new contract proposal. The agency’s longstanding regulations require that an “initial

contract proposal”—defined as “a proposal for programs, functions, services, or

activities that . . . the Indian tribe or tribal organization is not now carrying out,” 25

C.F.R. § 900.6—must include “[a] copy of the authorizing resolution from the Indian

tribe(s) to be served.” Id. § 900.8(d).


22

This particular regulation did not apply to the contract renewals that the

Northern Arapaho Tribe challenges in this lawsuit because it applies only to “initial

contract proposals,” not to renewals of existing programs. At the time the Tribe filed

its complaint, the challenged self-determination contracts remained in force, and a

proposal to renew those contracts also would not have been an “initial contract

proposal.”

The regulation does apply prospectively, however, because all of the challenged

self-determination contracts expired on September 30, 2016. The BIA has not

renewed or awarded new contracts for these programs.3 As a result, any contract

proposal for the shared programs at issue will necessarily be “a proposal for programs

. . . that . . . the Indian tribe or tribal organization is not now carrying out.” 25 C.F.R.

§ 900.6. Therefore, any such proposal must include authorizing resolutions from both

tribes, wholly apart from the district court’s injunction. That longstanding regulatory

requirement for new contracts underscores the conclusion that, following the

Gourneau Letter and the expiration of the previous contracts with the Joint Business

Council, the Tribe’s claims for injunctive relief in this case are moot.

3 Subsequent to the Gourneau Letter, the tribes submitted contract proposals

to operate two small, shared transportation programs. Because both tribes submitted authorizing resolutions, the BIA approved the contracts. The contracts for these programs, which generally have not been at issue in this litigation, are the only outstanding self-determination contracts for shared programs on the Wind River Reservation. Pursuant to the Gourneau Letter, renewal of these contracts would require authorization from both tribes.


23

D. At a Minimum, the Tribe Cannot Establish a Likelihood of Substantial and Immediate Irreparable Harm

At a minimum, the BIA decision reflected in the Gourneau Letter should have

precluded an award of preliminary injunctive relief under well-settled principles of

equitable discretion. Even if cessation of conduct does not moot a case, a plaintiff

must still bear the burden of demonstrating that equitable relief is warranted, a

showing that requires “more than the mere possibility” of recurrence “which serves

to keep the case alive.” United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953); see also

TRW, Inc. v. F.T.C., 647 F.2d 942, 954 (9th Cir. 1981) (discussing difference between

standards and burdens of proof). To obtain equitable relief, a plaintiff must establish

a “likelihood of substantial and immediate irreparable injury.” City of Los Angeles v.

Lyons, 461 U.S. 95, 111 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 502 (1974)).

That “requirement . . . cannot be met where there is no showing of any real or

immediate threat that the plaintiff will be wronged again.” Lyons, 461 U.S. at 111.

For the reasons discussed above, the Northern Arapaho Tribe cannot point to

any real or immediate threat that the BIA will award contracts for shared services over

its objection in the near future. Consequently, the Tribe has not demonstrated a

“likelihood of substantial and immediate irreparable injury,” and there is no proper

basis for an injunction. Lyons, 461 U.S. at 111.


24

E. The District Court’s Justification for Granting Injunctive Relief Was Erroneous

The district court wrongly believed that the Tribe’s claims for prospective relief

remained live because “[t]he Gourneau Letter lacks any apparent legal force” and

“[t]he BIA could change its position on the approval of these contracts at any time.”

ER 6. That reasoning contradicts this Court’s repeated guidance concerning the

mootness of claims against the government.

In general, a defendant’s voluntary cessation of challenged conduct does not

necessarily moot a case because the defendant could “resum[e] . . . the challenged

conduct” upon dismissal of the case. Knox v. Service Employees Int’l Union, Local 1000,

132 S. Ct. 2277, 2287 (2012). As this Court has stressed, however, a change in

government policy “presents a special circumstance in the world of mootness.”

America Cargo Transp., 625 F.3d at 1180. “Of course there is always the possibility of

bad faith and a change of heart. But, unlike in the case of a private party, we presume

the government is acting in good faith.” Id. This Court’s “prior cases are consistent

with this principle,” and many “other courts have followed the same principle of

deference.” Id. (citing cases).

The district court therefore erred in in its apparent belief that a governmental

change of policy must be irreversible in order to moot a case. This Court explained

in Rosebrock v. Mathis, 745 F.3d 963, 974 (9th Cir. 2014), that “in light of the

presumption that the Government acts in good faith, we have previously found the


25

heavy burden of demonstrating mootness to be satisfied in ‘policy change’ cases

without even discussing procedural safeguards or the ease of changing course.” See

also Lyons v. City of Los Angeles, 615 F.2d 1243, 1245 (9th Cir.), cert. denied, 449 U.S. 934

(1980) (holding that challenge to city attorney’s authority over prosecution of city

employees was moot because “[t]he city attorney has now announced an official

policy of referring [such cases] to the district attorney”). In Rosebrock, the Court

concluded that a challenge to the government’s selective enforcement of a regulation

was mooted by the government’s “recommitment to strict enforcement” of the

regulation, even though nothing “prevent[ed] [the government] from” revising that

policy. 745 F.3d at 974; see also id. at 973 (“Our confidence in the Government’s

voluntary cessation is at an apex” where the government has “reemphasiz[ed], or

recommitt[ed] to, an existing policy . . . .” (citation omitted)).

That reasoning is dispositive here. The Gourneau Letter “was a clear

statement, broad in scope, and unequivocal in tone”; the letter “addresse[d] all of the”

conduct at issue in the injunction; the Tribe’s case was a “catalyst” for the letter; and

“the agency’s officials have not engaged in conduct similar to that challenged by the”

Tribe since the issuance of the letter. Rosebrock, 745 F.3d at 973-974; see also Joint

Status Report 20-22 (Dkt. 96) (providing detailed response to allegation that BIA

broke earlier promises). Nor is the Gourneau Letter a temporary moratorium of the

type that has been found not to support mootness. See Lyons, 461 U.S. at 100-01

(finding case not mooted by “six-month moratorium on the use of ” chokeholds).


26

The district court further erred by failing to appreciate that mootness arises not

only from the Gourneau Letter, but also from BIA regulations made applicable by the

expiration of the challenged self-determination contracts. As noted above, those

regulations require that an initial contract proposal include authorizing tribal

resolutions from the tribes served. The BIA therefore cannot “change its position,”

ER6, without changing its own regulations.

II. THE TRIBE LACKS A CAUSE OF ACTION FOR PROSPECTIVE RELIEF

The preliminary injunction was unwarranted for the further reason that the

Northern Arapaho Tribe’s claims for prospective relief do not rest on a viable cause

of action. The district court therefore erred as a matter of law in concluding that the

Tribe had a likelihood of success on the merits of its claims for prospective relief.

A. The Complaint Does Not State a Cause of Action for Breach of Trust

The principal legal theory advanced in the complaint—and the sole basis for

the district court’s finding that the Northern Arapaho Tribe is likely to succeed on the

merits—is the contention that the BIA’s approval of shared-services contracts under

the ISDA without the Northern Arapaho Tribe’s consent constituted an actionable

breach of trust. See ER 14. That conclusion was erroneous.4

4 Ordinarily, “[a] cognizable claim that rests on the federal government’s trust

obligation is enforceable through the Tucker Act, 28 U.S.C. § 1491, or the Indian Tucker Act, 28 U.S.C. § 1505.” Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 921 n.3 (9th Cir. 2008). Those statutes authorize jurisdiction over certain damages claims in


27

The ISDA’s requirements cannot be enforced through a breach-of-trust action.

As the Supreme Court has held, “[t]he ISDA and [the Contract Disputes Act]

establish a clear procedure for the resolution of disputes over ISDA contracts,” and

the “general trust relationship” between the United States and Indian tribes “does not

override the clear language of those statutes.” Menominee Indian Tribe v. United States,

136 S. Ct. 750, 757 (2016). The Tribe therefore cannot use a breach-of-trust claim to

obtain judicial review outside of the procedures specified by the ISDA and the CDA.

The ISDA, moreover, does not concern the traditional subject matter of a

breach-of-trust claim, let alone establish the type of fiduciary trust duties that could

be actionable through a breach-of-trust claim. The Supreme Court recently reiterated

that, although there is a “‘general trust relationship between the United States and the

Indian tribes,’” “any specific obligations the Government may have under that

relationship are ‘governed by statute rather than the common law.’” Menominee Indian

Tribe, 136 S. Ct. at 757 (quoting United States v. Jicarilla Apache Nation, 564 U.S. 162, 165

the Court of Federal Claims. However, the Court of Federal Claims “has no general power to provide equitable relief against the Government or its officers.” United States v. Tohono O’Odham Nation, 563 U.S. 307, 313 (2011). This Court has nonetheless considered “breach of trust” claims seeking equitable relief under the APA’s waiver of sovereign immunity. Gros Ventre Tribe v. United States, 469 F.3d 801, 808 (9th Cir. 2006). The Court has not clearly specified what source of law supplies the cause of action for such a claim. Cf. El Paso Nat. Gas Co. v. United States, 750 F.3d 863, 892 (D.C. Cir. 2014) (rejecting equitable breach-of-trust claim “[r]egardless of whether we read the claim as brought under the APA or under a cause of action implied by the nature of the fiduciary relationship itself ”). This case does not require the Court to resolve that question.


28

(2011)). To establish an enforceable trust duty, a statute must “clearly give the Federal

Government full responsibility to manage Indian resources and land for the benefit

of the Indians,” “thereby establish[ing] a fiduciary relationship and defin[ing] the

contours of the United States’ fiduciary responsibilities.” United States v. Mitchell, 463

U.S. 206, 224 (1983) (Mitchell II). In other words, the government must have

“assumed plenary control over . . . assets held in trust,” thereby “assum[ing] an

obligation, as trustee, to preserve those assets.” Marceau v. Blackfeet Hous. Auth., 540

F.3d 916, 924 (9th Cir. 2008). These trust duties must apply to a “trust corpus”

consisting of property—for example, “Indian timber, lands, [or] funds”—with

beneficial title belonging to Indian tribes or their members. Mitchell II, 463 U.S. at 225.

The district court was plainly mistaken in its unexplained belief that the ISDA

creates enforceable trust duties. Far from assuming plenary government control of

property belonging to Indians, the ISDA does the opposite: it directs the government

to delegate the management of federal programs and federal funds to Indian tribes.

Cf. Marceau, 540 F.3d at 925 (finding no fiduciary trust duty where “Congress

specifically intended that [the government] not assume more responsibility [for the

program] than was necessary”).

Nor does the statute create actionable trust obligations with respect to any

Indian property that could be considered a trust corpus. Funding for self-

determination contracts under the ISDA usually comes from general appropriations


29

from Congress. The relevant statutes do not generally earmark funds for specific

tribes, let alone grant specific tribes property interests in government funds.

For these reasons, this Court recognized in an unpublished opinion that

“[n]othing in the [ISDA] is . . . reasonably read to impose on the United States a

specific fiduciary obligation to approve [a] [t]ribes’ contract applications or to allocate

funding” for certain purposes. Hopland Band of Pomo Indians v. Jewell, 624 F. App’x 562,

563 (9th Cir. 2015). This Court has also held that the BIA’s choices about how to

allocate funds from its lump-sum appropriation for the operation of Indian programs

are “unreviewable acts of agency discretion.” Los Coyotes Band of Cahuilla & Cupeño

Indians v. Jewell, 729 F.3d 1025, 1038 (9th Cir. 2013). That conclusion would make little

sense if, as the district court believed, the BIA’s funding decisions under the ISDA are

subject to review under breach-of-trust principles.

The Federal Circuit—which reviews ISDA cases on direct appeal from contract

disputes under the Contract Disputes Act—has likewise rejected the contention that

the ISDA creates enforceable trust duties. See Samish Indian Nation v. United States, 419

F.3d 1355, 1368 (Fed. Cir. 2005). The court explained that, unlike the statutory

schemes in which the Supreme Court has recognized breach of trust claims, the ISDA

“nowhere uses the express language of a trust” and “does not confer on the

government pervasive or elaborate control over” property held in trust. Id. The

ISDA has “precisely the opposite effect”—“[i]nstead of arrogating control and

authority to the government,” it “delegates to tribal organizations authority over


30

federal programs.” Id. The ISDA also does not “convert the underlying statutory

programs into entitlements fairly analogized to a trust corpus.” Id.

Because the ISDA does not create enforceable trust duties, the Northern

Arapaho Tribe’s breach-of-trust claim fails at the threshold. The district court’s

finding of a likelihood of success on the merits—which rested solely on this claim—

must likewise fall, and the preliminary injunction should be vacated. See Garcia v.

Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (“Because it is a threshold inquiry, when

‘a plaintiff has failed to show the likelihood of success on the merits, we need not

consider the remaining three [Winter elements].’” (quoting Association des Eleveurs de

Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013)) (alteration in

original)).

B. Neither the ISDA nor the CDA Permit the Present Suit

The Northern Arapaho Tribe has also suggested at times that its cause of

action arises under the ISDA itself, or relatedly, under the Contract Disputes Act

(CDA), which the ISDA makes applicable to post-award disputes. The district court

did not reach that contention, let alone find that the Tribe has a likelihood of

succeeding on the merits on that basis. Regardless, neither the ISDA nor the CDA

provides a cause of action for this suit.

Nothing in the ISDA contemplates that a plaintiff may bring a civil action in

district court directly challenging the award of a self-determination contract to

another tribe. The statute provides for judicial review in specific and carefully defined


31

circumstances, such as when the Secretary declines a self-determination contract, 25

U.S.C. § 5321(b)(3); when the Secretary declines to approve a redesign of a program,

id. § 5324(j); when the Secretary disallows costs, id. § 5325(f); or when the parties

disagree as to reporting requirements, id. § 5305(f)(3). None of these provisions

authorizes either a freestanding suit for violation of the consent requirement in 25

U.S.C. § 5304(l) or a suit to challenge or prevent the award of a contract to another

tribe or tribal organization.

Nor does the Contract Disputes Act authorize lawsuits of this kind. Congress

provided that self-determination contracts are subject to the CDA, 25 U.S.C.

§ 5331(d), and BIA regulations clarify that post-award challenges to a contract must

be pursued under the CDA, see 25 C.F.R. §§ 900.151(b), .215, .217. But the CDA only

contemplates review of contract claims by “a party to a Federal Government

contract.” 41 U.S.C. § 7101(7). It does not permit non-parties to bring claims. See

NavCom Def. Elec., Inc. v. Ball Corp., 92 F.3d 877, 879 (9th Cir. 1996); Winter v. FloorPro,

Inc., 570 F.3d 1367, 1371-72 (Fed. Cir. 2009) (“[T]he CDA does not permit appeals by

anyone who is not a ‘party to a Government contract . . . .’”). The CDA also requires

procedures—including submission of a written claim to the contracting officer—that

the Northern Arapaho Tribe has not followed here. See 41 U.S.C. § 7103; 25 C.F.R. §§

900.218-.220.

It is unsurprising that Congress provided no direct means to challenge or

prevent the award of a self-determination contract to another tribe or tribal


32

organization. As previously noted, Congress intended the ISDA to minimize barriers

to the award of self-determination contracts. For example, Congress required the

Secretary to act on a valid contract proposal within 90 days, 25 U.S.C. § 5321(a)(2),

directed the Secretary to approve a contract unless one of five enumerated exceptions

applies, id. § 5321(a)(2)(A)-(E), and permitted immediate judicial review of a

declination, id. § 5321(b)(3). Use of the courts by non-parties to challenge or prevent

the award of self-determination contracts would cause substantial and unpredictable

disruption to this scheme.

Indeed, as far as counsel for the defendants are aware, success on the Tribe’s

claims would mark the first time a non-party has used the judicial system to prevent or

set aside the BIA’s award of a self-determination contract to another tribal

organization. More plaintiffs would likely follow. Because every award of an ISDA

contract in some sense reduces the pool of appropriated funds available to support

ISDA contracts for other tribes, tribes have a significant incentive to challenge

contract awards to other tribes. Individuals dissatisfied with the way a tribe operates

federal programs—for example, disappointed litigants in a tribal court—could also

attempt to sue to challenge the relevant contract’s validity.

This concern is not hypothetical. In this very case, individual tribal members

sought to intervene on the ground that, as litigants before the tribal court that was

funded under the BIA’s shared-services contract with the Joint Business Council, they

had an interest in the court’s operations. The intervenors sought an injunction


33

rescinding the BIA’s judicial-services contract with the Joint Business Council (or the

Eastern Shoshone Business Council on behalf of the Joint Business Council) and

directing the BIA to award the contract directly to the joint tribal court as an

independent entity. See Compl. in Intervention 29-30 (Dkt. 28-1). The district court

denied intervention, but it is unclear why on the Tribe’s theory individual tribal

members would not have a cause of action to challenge the award of contracts under

the ISDA. Were litigants of this type able to regularly challenge self-determination

contracts in district court, it would significantly impair the BIA’s ability to operate the

ISDA scheme.5

III. THE INJUNCTION IS CONTRARY TO THE PUBLIC INTEREST

Ambiguities as to the injunction’s application also threaten to hamper the BIA’s

provision of services on the Wind River Reservation. The public-interest and

balance-of-equities factors of the preliminary-injunction analysis therefore weigh

5 The government argued below that that this action should be dismissed under

Federal Rule of Civil Procedure 19(b) because the Eastern Shoshone Tribe is a required party that cannot be joined because of sovereign immunity. To the extent the Northern Arapaho Tribe seeks injunctive relief related only to its own contract proposals, we do not contend that Rule 19(b) forecloses the claim (although, for the reasons already discussed, the claim is both moot and foreclosed on other grounds). The Eastern Shoshone Tribe is a required party, however, with respect to the Northern Arapaho Tribe’s remaining claims for relief in district court, many of which directly affect the Eastern Shoshone Tribe’s legal interests—for example, in seeking rescission of contracts that also serve the Eastern Shoshone, or an accounting of funds and property held by it.


34

heavily against the injunction. These harms are particularly troubling given the

absence of any threat of irreparable harm to the Tribe.

A. Ambiguity as to the Injunction’s Application Threatens the BIA’s Provision of Services Under the ISDA

An order granting an injunction “must describe in reasonable detail—and not

by referring to the complaint or other document—the act or acts restrained or

required.” Fed. R. Civ. P. 65(d)(1)(C). This rule “was designed to prevent uncertainty

and confusion on the part of those faced with injunctive orders” and to ensure that

those subject to the injunction “receive fair and precisely drawn notice of what the

injunction actually prohibits.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1047

(9th Cir. 2013) (quoting Fortyune v. American Multi–Cinema, Inc., 364 F.3d 1075, 1086-87

(9th Cir. 2004)).

The district court believed that the injunction would impose no burden on the

BIA because its order “tracked the terms of the Gourneau Letter, and, more

explicitly, the terms of [25 U.S.C.] § 5304(l).” ER 23 (citation omitted). But the

Gourneau Letter was not drafted with the precision required for a judicial injunction

enforceable by contempt. And the terms of the district court’s injunction vary even

from the terms used in the Letter or the statute. The preliminary injunction prohibits

the BIA from approving contracts for “multi-tribal, shared services” without

authorizing resolutions from both tribes. Those terms are not defined in the


35

Gourneau Letter, in the ISDA, or in the BIA’s implementing regulations. Cf. ER 35-

36 (using term “shared program”).

The difficulty lies in determining with certainty whether, in the unusual

circumstances of the Wind River Reservation, a particular BIA-funded program

constitutes a “multi-tribal, shared service[]” within the meaning of the injunction.

Although in some cases the answer will be obvious, in others this determination will

require significant judgment and will be open to good-faith debate. As previously

discussed, the Wind River Reservation is the only Indian reservation in the United

States that is occupied by two different tribes who have not entered into a

confederated government. At the same time, the tribes jointly hold much of the land

on the Wind River Reservation. Their members live among each other and family and

other relationships between members of different tribes are common. As a result,

federally funded programs directed at one tribe commonly also benefit or affect the

other tribe and its members. The BIA must therefore consider, for example, the risk

that the district court would deem a tribe-specific probate-services contract a “shared

service” within the meaning of the preliminary injunction because the program would

administer intertribal transfers and determine rights in property in which members of

the other tribe claim an interest. Similarly, the court might judge a contract to explore

hydroelectric development on one tribe’s separate lands a “shared service” because

such development would impact jointly-held lands and waters. Or the court might

consider a contract for economic development services targeted at one tribe a “shared


36

service” because, for example, it would issue credit guarantees allowing one tribe’s

businesses to purchase supplies from those of the other tribe.

Although the BIA would have to grapple with these ambiguities at the Wind

River Reservation regardless of the district court’s injunction, the injunction wrongly

places individual BIA officials at risk of contempt for exercising their best judgment

in doing so. As noted, the agency has expressly and publicly committed to obtain the

consent of each tribe before entering into new contracts for shared programs, and the

BIA’s regulations require that result in any event. But agency officials should not face

a risk of contempt (or even more likely, accusations of contempt deployed as

negotiation tools) for good-faith judgments about exactly which programs are

encompassed within that commitment, and which are not, in the difficult

circumstances of the Wind River Reservation.

The threat of contempt for good-faith attempts to implement the ISDA,

moreover, will surely induce officials to err on the side of treating programs as shared

services. And given the tribes’ ongoing unwillingness to cooperate in the

administration of most such programs, such a determination would likely result in

rejection of the proposals. The end result will be more programs administered by the

federal government, rather than by the tribes themselves, contrary to Congress’s

purpose in the ISDA of encouraging Indian self-determination.


37

B. The Public Interest and the Balance of Equities Weigh Against the Injunction

For these reasons, the public-interest or balance-of-equities factors clearly

counsel against the district court’s injunction. See Drakes Bay Oyster Co. v. Jewell, 747

F.3d 1073, 1092 (9th Cir. 2014) (“When the government is a party, these last two

factors merge.”). The government and the public share a strong interest in protecting

the BIA’s ability to provide services and implement the ISDA’s self-determination

objectives on the Wind River Reservation.

The district court’s contrary holding lacks basis. The court reasoned that the

Tribe “possesses a legitimate interest in its approval being required for shared tribal

programs” and that “[t]his requirement harms no legitimate interest of the Federal

Defendants or the SBC,” “especially when Federal Defendants seem willing to enact

the injunction voluntarily.” ER 22-23. But as explained above, recent developments

obviate any meaningful threat to the Tribe’s rights, whereas the court’s injunction

threatens the government’s and the public’s interest in the effective provision of

services under the ISDA. For the same reason, there is no basis for the district court’s

conclusory statement that “[n]o harm would inure to the public interest if the Court

were to issue a preliminary injunction that tracked the terms of the Gourneau Letter.”

ER 23.


38

CONCLUSION

For the foregoing reasons, the Court should vacate the preliminary injunction.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

MICHAEL W. COTTER United States Attorney

MARK R. FREEMAN WEILI J. SHAW

(202) 514-1371 Attorneys, Appellate Staff Civil Division, Room 7240 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

FEBRUARY 2017


STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, appellants state that they know of no

related case pending in this Court.

/s/ Weili J. Shaw WEILI J. SHAW


CERTIFICATE OF SERVICE

I hereby certify that on February 10, 2017, I electronically filed the foregoing

with the Clerk of the Court using the appellate CM/ECF system. Counsel for all

parties to the case are registered CM/ECF users and will be served by the CM/ECF

system.

/s/ Weili J. Shaw WEILI J. SHAW


Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2(a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2(c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Unrepresented Litigant

("s/" plus typed name is acceptable for electronically-filed documents)

Date

(Rev.12/1/16)

16-36049

9,225

s/ Weili J. Shaw Feb 10, 2017


ADDENDUM

Case: 16-36049, 02/10/2017, ID: 10316075, DktEntry: 11-2, Page 1 of 19

TABLE OF CONTENTS

25 U.S.C. § 5302 ............................................................................................................... Add. 1

25 U.S.C. § 5304 ............................................................................................................... Add. 1

25 U.S.C. § 5321 ............................................................................................................... Add. 2

25 U.S.C. § 5324 ............................................................................................................... Add. 3

25 U.S.C. § 5325 ............................................................................................................... Add. 4

25 U.S.C. § 5331 ............................................................................................................... Add. 5

41 U.S.C. § 7101 ............................................................................................................... Add. 5

41 U.S.C. § 7103 ............................................................................................................... Add. 6

41 U.S.C. § 7104 ............................................................................................................... Add. 6

41 U.S.C. § 7107 ............................................................................................................... Add. 6

25 C.F.R. § 900.6 .............................................................................................................. Add. 7

25 C.F.R. § 900.8 .............................................................................................................. Add. 7

25 C.F.R. § 900.150 .......................................................................................................... Add. 7

25 C.F.R. § 900.151 .......................................................................................................... Add. 8

25 C.F.R. § 900.170 .......................................................................................................... Add. 8

25 C.F.R. § 900.215 .......................................................................................................... Add. 9

25 C.F.R. § 900.216 .......................................................................................................... Add. 9

25 C.F.R. § 900.217 .......................................................................................................... Add. 9

25 C.F.R. § 900.218 ........................................................................................................ Add. 10

81 Fed. Reg. 74675 ........................................................................................................ Add. 11


Shoshone and Arapaho Law and Order Code § 1–2–1 .......................................... Add. 14




Shoshone and Arapaho Law and Order Code § 1–3–12 ........................................ Add. 15





Add. 1

25 U.S.C. § 5302

§ 5302. Congressional declaration of policy

(a) Recognition of obligation of United States

The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.

(b) Declaration of commitment

The Congress declares its commitment to the maintenance of the Federal Government's unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services. . . .

. . . .

25 U.S.C. § 5304

§ 5304. Definitions

For purposes of this chapter, the term—

. . . .

(l) “tribal organization” means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, 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 . . .

. . . .


Add. 2

25 U.S.C. § 5321

§ 5321. Self-Determination Contracts

(a) Request by tribe; authorized programs

(1) The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof, including construction programs—

(A) provided for in the Act of April 16, 1934 (48 Stat. 596), as amended;

(B) which the Secretary is authorized to administer for the benefit of Indians under the Act of November 2, 1921 (42 Stat. 208), and any Act subsequent thereto;

(C) provided by the Secretary of Health and Human Services under the Act of August 5, 1954 (68 Stat. 674), as amended;

(D) administered by the Secretary for the benefit of Indians for which appropriations are made to agencies other than the Department of Health and Human Services or the Department of the Interior; and

(E) for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department of Health and Human Services or the Department of the Interior within which it is performed.

. . . .

(2) If so authorized by an Indian tribe under paragraph (1) of this subsection, a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or renew a self-determination contract, to the Secretary for review. Subject to the provisions of paragraph (4), the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that—

(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;

(B) adequate protection of trust resources is not assured;

(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;


Add. 3

(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 5325(a) of this title; or

(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under paragraph (1) because the proposal includes activities that cannot lawfully be carried out by the contractor.

. . . .

(b) Procedure upon refusal of request to contract

Whenever the Secretary declines to enter into a self-determination contract or contracts pursuant to subsection (a) of this section, the Secretary shall—

(1) state any objections in writing to the tribal organization,

(2) provide assistance to the tribal organization to overcome the stated objections, and

(3) provide the tribal organization with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised, under such rules and regulations as the Secretary may promulgate, except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 5331(a) of this title.

. . . .

25 U.S.C. § 5324

§ 5324. Contract or grant provisions and administration

. . . .

(j) Proposal to redesign program, activity, function, or service

Upon providing notice to the Secretary, a tribal organization that carries out a nonconstruction self-determination contract may propose a redesign of a program, activity, function, or service carried out by the tribal organization under the contract, including any nonstatutory program standard, in such manner as to best meet the local geographic, demographic, economic, cultural, health, and institutional needs of the Indian people and tribes served under the contract. The Secretary shall evaluate any proposal to redesign any program, activity, function, or service provided under the contract. With respect to declining to approve a redesigned program, activity,


Add. 4

function, or service under this subsection, the Secretary shall apply the criteria and procedures set forth in section 5321 of this title.

. . . .

25 U.S.C. § 5325

§ 5325. Contract funding and indirect costs

(a) Amount of funds provided

(1) The amount of funds provided under the terms of self-determination contracts entered into pursuant to this chapter shall not be less than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered by the contract . . . .

(b) Reductions and increases in amount of funds provided

. . . .

Notwithstanding any other provision in this chapter, the provision of funds under this chapter is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this chapter.

. . . .

(f) Limitation on remedies relating to cost disallowances

Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs shall be barred unless the Secretary has given notice of any such disallowance within three hundred and sixty-five days of receiving any required annual single agency audit report or, for any period covered by law or regulation in force prior to October 19, 1984, any other required final audit report. Such notice shall set forth the right of appeal and hearing to the board of contract appeals pursuant to section 5331 of this title.

. . . .


Add. 5

25 U.S.C. § 5331

§ 5331. Contract disputes and claims

(a) Civil actions; concurrent jurisdiction; relief

The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this chapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this chapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this chapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this chapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 5321(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract).

. . . .

(d) Application of chapter 71 of Title 41

Chapter 71 of Title 41 shall apply to self-determination contracts, except that all administrative appeals relating to such contracts shall be heard by the Interior Board of Contract Appeals established pursuant to section 8 of such Act (41 U.S.C. 607).

. . . .

41 U.S.C. § 7101

§ 7101. Definitions

In this chapter:

. . . .

(7) CONTRACTOR.—The term “contractor” means a party to a Federal Government contract other than the Federal Government.

. . . .


Add. 6

41 U.S.C. § 7103

§ 7103. Decision by contracting officer

(a) CLAIMS GENERALLY.—

(1) SUBMISSION OF CONTRACTOR'S CLAIMS TO CONTRACTING OFFICER.—Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision.

(2) CONTRACTOR'S CLAIMS IN WRITING.—Each claim by a contractor against the Federal Government relating to a contract shall be in writing.

. . . .

41 U.S.C. § 7104

§ 7104. Contractor's right of appeal from decision by contracting officer

(a) APPEAL TO AGENCY BOARD.—A contractor, within 90 days from the date of receipt of a contracting officer's decision under section 7103 of this title, may appeal the decision to an agency board as provided in section 7105 of this title.

(b) BRINGING AN ACTION DE NOVO IN FEDERAL COURT.—

(1) IN GENERAL.—Except as provided in paragraph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.

. . . .

41 U.S.C. § 7107

§ 7107. Judicial review of agency board decisions

(a) REVIEW.—

(1) IN GENERAL.—The decision of an agency board is final, except that—

(A) a contractor may appeal the decision to the United States Court of Appeals for the Federal Circuit within 120 days from the date the contractor receives a copy of the decision; . . .

. . . .


Add. 7

25 C.F.R. § 900.6

§ 900.6 Definitions.

Unless otherwise provided in this part:

. . . .

Initial contract proposal means a proposal for programs, functions, services, or activities that the Secretary is authorized to perform but which the Indian tribe or tribal organization is not now carrying out.

. . . .

25 C.F.R. § 900.8

§ 900.8 What must an initial contract proposal contain?

An initial contract proposal must contain the following information:

. . . .

(c) The full name(s) of the Indian tribe(s) proposed to be served.

(d) A copy of the authorizing resolution from the Indian tribe(s) to be served.

. . . .

25 C.F.R. § 900.150

§ 900.150 What decisions can an Indian tribe or tribal organization appeal under this subpart?

(a) A decision to decline to award a self-determination contract, or a portion thereof, under section 102 of the Act;

(b) A decision to decline to award a construction contract, or a portion thereof, under sections 105(m) and 102 of the Act;

(c) A decision to decline a proposed amendment to a self-determination contract, or a portion thereof, under section 102 of the Act;

(d) A decision not to approve a proposal, in whole or in part, to redesign a program;

(e) A decision to rescind and reassume a self-determination contract, in whole or in part, under section 109 of the Act except for emergency reassumptions;


Add. 8

(f) A decision to refuse to waive a regulation under section 107(e) of the Act;

(g) A disagreement between an Indian tribe or tribal organization and the Federal government over proposed reporting requirements;

(h) A decision to refuse to allow an Indian tribe or tribal organization to convert a contract to mature status, under section 4(h) of the Act;

(i) All other appealable pre-award decisions by a Federal official as specified in these regulations, whether an official of the Department of the Interior or the Department of Health and Human Services; or

(j) A decision relating to a request for a determination that a law or regulation has been superseded by the Act.

25 C.F.R. § 900.151

§ 900.151 Are there any appeals this subpart does not cover?

This subpart does not cover:

(a) Disputes which arise after a self-determination contract has been awarded, or emergency reassumption of self-determination contracts or suspension of payments under self-determination contracts, which are covered under § 900.170 through § 900.176 of these regulations.

(b) Other post-award contract disputes, which are covered under subpart N.

. . . .

25 C.F.R. § 900.170

§ 900.170 What happens in the case of emergency reassumption or suspension or withholding or delay of payments?

(a) This subpart applies when the Secretary gives notice to an Indian tribe or tribal organization that the Secretary intends to:

(1) Immediately rescind a contract or grant and reassume a program; or

(2) Suspend, withhold, or delay payment under a contract.

. . . .


Add. 9

25 C.F.R. § 900.215

§ 900.215 What does this subpart cover?

(a) This subpart covers:

(1) All HHS and DOI self-determination contracts, including construction contracts; and

(2) All disputes regarding an awarding official's decision relating to a self-determination contract.

. . . .

25 C.F.R. § 900.216

§ 900.216 What other statutes and regulations apply to contract disputes?

(a) The Contract Disputes Act of 1978 (CDA), Public Law 95–563 (41 U.S.C. 601 as amended);

. . . .

25 C.F.R. § 900.217

§ 900.217 Is filing a claim under the CDA our only option for resolving post-award contract disputes?

No. The Federal government attempts to resolve all contract disputes by agreement at the awarding official's level. These are alternatives to filing a claim under the CDA:

(a) Before issuing a decision on a claim, the awarding official should consider using informal discussions between the parties, assisted by individuals who have not substantially participated in the matter, to aid in resolving differences.

(b) In addition to filing a CDA claim, or instead of filing a CDA claim, the parties may choose to use an alternative dispute resolution mechanism, pursuant to the provisions of the Administrative Dispute Resolution Act, Public Law 101–552, as amended, 5 U.S.C. 581 et seq., or the options listed in section 108(1)(b)(12) of the Indian Self–Determination Act, as applicable.


Add. 10

25 C.F.R. § 900.218

§ 900.218 What is a claim under the CDA?

(a) A claim is a written demand by one of the contracting parties, asking for one or more of the following:

(1) Payment of a specific sum of money under the contract;

(2) Adjustment or interpretation of contract terms; or

(3) Any other claim relating to the contract.

. . . .


Add. 11


Add. 12


Add. 13


Add. 14

Shoshone and Arapaho Law and Order Code § 1–2–1

Section 1–2–1. Jurisdiction; Tribal Policy

It is hereby declared as a matter of tribal policy and legislative determination, that the public and tribal interests demand that the tribes provide all individuals living within the Wind River Indian Reservation with an effective means of redress for both civil and criminal conflicts against members, non-enrolled members, and other persons who through their residence, presence, business dealings, other acts or failures to act, or other significant minimum contacts with this reservation and/or its residents commit criminal offenses against the tribes or incur civil obligations to persons or entities entitled to the tribes' protection. This action is deemed necessary as a result of the confusion and conflicts caused by the increased contact and interaction between the tribes, their members, and other residents of the reservation and other persons and entities over which the tribes have not previously elected to exercise jurisdiction. The jurisdictional provisions of this Law and Order Code, to insure maximum protection for the tribes, their members and other residents of the reservation, should be applied equally to all persons.


Section 1–3–1. Courts Established

(1) There is hereby established a Shoshone and Arapaho Tribal Court to handle all matters of a judicial nature within the jurisdiction of the Shoshone and Arapaho Tribes as provided in this Code. It shall be a court of general civil and criminal jurisdiction and shall hear appeals from administrative bodies of the Shoshone and Arapaho Tribes. It shall consist of one (1) chief judge and three (3) associate judges. Each tribe may appoint two (2) as mutually agreeable.

. . . .


Section 1–3–2. Judges

(1) There shall be appointed for a term not to exceed four (4) years:

a) One (1) chief judge; and


Add. 15

b) Three (3) associate judges.

(2) The appointment shall be made by the Joint Business Council and a judge may not be removed prior to the expiration of the term except as provided hereinafter.

. . . .

(5) All associate judges will be appointed by majority vote of the Joint Business Council for successive terms of office when retained by their tribes at a general election of the tribal business councils on a separate ballot when fifty percent (50%) of the voters choose to retain.

. . . .


Section 1–3–5. Removal of Judges

Any judge may be removed from office prior to the expiration of his term of office by an affirmative vote of three-fourths (3/4) of the Joint Business Council only upon the grounds of neglect of duty or gross misconduct, and only after the holding of a public hearing, at which the judge, after being given at least five (5) days’ notice, is given an opportunity to answer all charges and present evidence in defense. This shall also apply to the prosecutor, court administrator, juvenile and probation officer.


Section 1–3–12. Court Administrator

The Joint Business Council shall appoint a full-time court administrator whose job it will be to aid the chief judge in administering the courts, scheduling cases, processing papers related to the court system, and do other things as the chief judge directs to assure the orderly and efficient operation of all the courts. . . . .


Section 1–3–13. Prosecutor

The Joint Business Council shall appoint a full-time and permanent prosecutor to prosecute all violations of the Code on behalf of the tribes, adult and juvenile. . . . .


Add. 16


Section 1–3–14. Juvenile Officer

The Joint Business Council shall appoint a juvenile officer full-time whose duties include looking after the interests of neglected, dependent or delinquent juveniles, making investigations and filing petitions, being present in court when juvenile cases are heard, preparing pre-sentence or pre-dispositional reports and recommendations, supervising probations and furnish assistance as requested by any judge in matters relating to all juvenile cases.


Section 1–3–15. Probation Officer

The Joint Business Council shall appoint a probation officer full-time who shall be considered an employee of the court whose duties include supervising and following up probation and parole of adults and juveniles, preparing recommendations for imposition, modification, or revocation of sentences, probation or parole, being present in court for dispositional hearings, sentences, and modification or revocation hearings, and further assisting the court as requested by any judge in matters relating to any case.


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