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Judge issues injunction on BIA, orders no more one- tribe contracts

Oct 18, 2016 By Daniel Bendtsen, Staff Writer

Federal district court judge Brian Morris issued an injunction Monday against the Bureau of Indian Affairs, banning the agency from issuing any new contracts for the Shoshone Business Council to operate programs on behalf of both tribes on the Wind River Indian Reservation.

Morris refused to dismiss the lawsuit from the Northern Arapaho Business Council, which he said has a "sufficient likelihood of success" in its court case to show that the BIA violated its trust obligation to the tribe.

For the better part of the last century, the NABC and SBC had forged agreements with the federal government through a Joint Business Council.

SBC can't run it all

The NABC chose to withdraw from the JBC in 2014. The federal government responded by issuing self-determination contracts in September 2015 to the "SBC acting on behalf of the JBC."

"No member of one tribe may hold office or legislate for the other tribe," Morris said in his order. "The tribes have not entered into a joint constitution to consolidate their respective governments."

The Department of Justice had argued the Arapaho complaint was moot because all SBC-as-JBC contracts have expired and local BIA superintendent Norma Gourneau promised in an Aug. 3 letter that no similar contracts will be issued in the future.

Morris said the case cannot be considered moot because Gourneau's letter "lacks any apparent legal force."

"The BIA seems to think that the Gourneau letter corrects any errors that it may have made in awarding the 638 contracts without the consent of the Northern Arapaho Tribe," Morris said.

"Nothing prevents the BIA at this point from extending the 638 contracts for a further 'temporary' period without the approval of the Northern Arapaho Tribe in an attempt to force the Northern Arapaho Tribe and the Eastern Shoshone Tribe to work out a compromise."

Morris also said court judgment was appropriate because the Northern Arapaho Tribe had exhausted "administrative remedies" and the BIA was "acting beyond its authority" in issuing contracts to SBC-as-JBC.

Tribal court

Morris did not address the request by the NABC to prevent the BIA from deposing the Shoshone and Arapaho Tribal Court.

When federal funding for the tribal court expired at the end of September, the BIA had indicated it would institute its own court.

However, the NABC has continued funding the tribal court at the displeasure of the SBC.

The Arapaho had also sued the Department of Interior last year for failing to issue a contract to NABC as it had the SBC last year.

Morris ruled the federal government had erred, citing 1994 legislation that states the NABC should have had the right "to seek immediate judicial relief to review a declination finding or to secure the award and funding of an approved contract."

Morris said that legislation was enacted specifically because the BIA has a history of failing to "administer self-determination contracts in conformity with the law."

The Arapaho also contend the BIA had violated the "one person, one vote" rule under the Equal Protection Clause, but Morris said he did not have enough information to make a decision about that claim.

He said he would defer his opinion on the "viability of these claims" until the court record is further developed.

In a press release, NABC chairman Dean Goggles said he hoped Monday's ruling was the first step in improving the management of joint programs.

"The old JBC was a broken system. We need to find new ways to cooperate on these shared programs," Goggles said.

"Direct funding to each tribe for its share of services would allow for better accountability.

"Then, the tribes can work on cooperative management agreements for each program. If those work out, great. If they fail, the services continue under tribal management, and at least they would not be under BIA control."

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2017-10-18

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