Arapaho Tribe loses federal funds lawsuit; no separate funding

Jun 27, 2017 By Daniel Bendtsen, Staff Writer

The Northern Arapaho Tribe has lost the bulk of its lawsuit against the federal government over the issuance of self-determination contracts.

Monday's ruling is a major setback for the tribe that has sought to increasingly divorce itself from joint governmental operations with the Eastern Shoshone.

In ongoing litigation since February 2016, the tribe's business council has argued that the Bureau of Indian Affairs has -- in recent years -- violated the tribe's rights to federal funds guaranteed by the Self-Determination Act of 1975.

Until 2015, federal contracts for basic governmental services worth more than $14 million were awarded jointly to the tribes via the Joint Business Council.

After the Northern Arapaho Business Council announced its intention to leave the JBC, both tribes applied separately to receive all funding to unilaterally continue those programs.

The BIA issued four contracts for joint programs -- the Shoshone and Arapaho Tribal Court, Fish and Game, Tribal Water Engineer, and Juvenile Treatment Court -- to the SBC to operate those programs "on behalf of the JBC."

The contract requests from the Arapahos were denied, and the tribe filed suit.

In its motion for summary judgment, the NABC demanded issuance of contracts, as well as damages for the funds that had been denied.

Since October, the tribe has -- using its own coffers -- continued to fund the semi-functioning tribal court in hopes that it would soon become financially backed by the U.S. government.

In his Monday order, federal district court judge Brian Morris denied the request for damages and closed the case.

The tribe's attorneys had been in settlement talks with the Department of Justice in the spring and had hoped to reach a settlement -- one that included both contracts and damages -- before Morris ruled from the bench.

Monday's ruling eradicates nearly all of the leverage the tribe had to force the BIA to issue its requested contracts.

Precedent a major loss

While Morris said in October the BIA was wrong to issue tribal court and similar programmatic contracts to the SBC, it also said the BIA was equally justified in denying those contracts to the NABC when the tribe applied again for funding for the 2017 fiscal year.

Most of those Arapaho contracts, Morris said, would have equally infringed on the rights of the Shoshones.

Legislative history of self-determination contracts indicates that "a tribal organization needs to obtain tribal resolutions only from the tribes it proposes to serve."

Because the Arapaho's tribal court -- according to the contract request -- claimed jurisdiction over all American Indians within the "exterior boundaries of the Wind River Reservation," federal attorneys argued that approval from the Shoshones was needed.

The tribe argued that their assertion of jurisdiction conforms to a 2004 Supreme Court ruling, United States v. Lara, which determined that a tribe has the authority to prosecute non-member Indians for crimes committed within the tribe's territorial jurisdiction.

Unique conditions

In a new precedent, Morris said that decision does not apply on the "unique" Wind River Indian Reservation -- the only reservation in the U.S. to be shared by separate sovereign and nonconfederated tribes.

"This claim fails to recognize the unique nature of NAT and EST being forced to share the Wind River Reservation without a confederation agreement," Morris said. "EST members will interact more regularly with the NAT Tribal Court than any other non-member Indians. Unlike other non-member Indians, EST members could be living on their own reservation, without having willingly submitted to the NAT Tribal Court's jurisdiction, yet nevertheless be subject to the proposed NAT court's jurisdiction."

The judge remanded the negotiations of an Arapaho tribal court back to the BIA.

Morris did say that, if the BIA continues to deny applications from the tribe for an Arapaho court, the federal agency will need to provide more adequate explanation than it has in the past.

"The BIA timely must consider the proposal. In the event that the BIA declines the proposal, it must explain more accurately and fully any reasons for its declination," he said. "The stated reasons for declination of the first judicial services contract prove insufficient."

Wildlife and water

The tribe had also sought to receive 100 percent of the funds that had previously been provided to the JBC.

Morris said BIA was again justified in denied the contract request because federal code requires the agency "at the same time to maintain . . . services to the non-contracting tribes."

That mandate would not have been possible with all available funding being granted to the Arapaho, he said.

"Nothing in (federal statute) requires the BIA to approve a severable portion of the previous funding if the 638 proposal requests funds 'in excess of the applicable funding level'," Morris said.

The tribe also argued the BIA failed to provide the tribe with technical assistance, as required by law, to overcome the agency's opposition to the contract proposals.

However, Morris said that "no amount of technical assistance could have overcome this missing prerequisite to BIA approval."

The tribe had also asked to receive 70 percent of available funds to run its own tribal water engineer program. However, Morris noted that proposal also sought jurisdiction over the entire reservation, not just Arapaho trust land. Issuing that contract would have also violated Shoshone rights, he said.

Juvenile services

Morris did decide the BIA erred in not issuing a contract for youth and drug services, because its stated reasons for declination that are justified by law were only made once the lawsuit was filed.

In its "post hoc" argument, the BIA noted that the youth and drug services is a discretionary program and only "authorize(s)," but does not "direct" the BIA to "contract with or make a grant to any tribal organization" for "the improvement of tribally funded programs or activities."

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