No. 11-57222 IN THE UNITED STATES COURT OF · PDF fileno. 11-57222 in the united states court...
Transcript of No. 11-57222 IN THE UNITED STATES COURT OF · PDF fileno. 11-57222 in the united states court...
No. 11-57222
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________
LOS COYOTES BAND OF CAHUILLA AND CUPENO INDIANS,
Plaintiff-Appellee,
v.
KEN SALAZAR, Secretary of the Interior, Et Al.
Defendants-Appellants.
________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
________________________________
ANSWERING BRIEF OF APPELLEE
________________________________
Dorothy Alther, Esq.
CALIFORNIA INDIAN LEGAL
SERVICES
609 S. Escondido Blvd.
Escondido, CA 92025
(760) 746-8941
Attorney for Appellee
LOS COYOTES BAND OF
CAHUILLA AND CUPENO INDIANS
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 1 of 39
i
TABLE OF CONTENTS
STATEMENT OF THE ISSUES…………………………………………………1
STATEMENT OF FACTS ……………………………………………………….1
SUMMARY OF THE ARGUMENT……………………………………………....5
ARGUMENT………………………………………………………………….....…6
DEFENDANTS‟ DECLINATION OF THE TRIBE‟S REQUEST FOR A 638
CONTRACT FOR LAW ENFORCEMENT SERVICES ON THE BASIS THAT
THE TRIBE‟S RESERVATION IS LOCATED IN A PUBLIC LAW 280 STATE
VIOLATES THE ISDEAA, APA AND FIFTH AMENDMENT…………..…….6
1. Public Law 280 is No Basis to Deny
the Tribe‟s Request for a 638 Contract ……………………………..……6
2. Defendants Did Not Correctly Decline
Tribe‟s Request for a 638 Contract. ………………………………..…...9
a. Law Enforcement Services and Programs are Contractable Under
the ISDEAA…………………………………………………………10
b. Defendants‟ Misinterpreted the Clear Language of the
ISDEAA……………………………………………………………..12
c. The Defendants‟ Interpretation of the ISEAA is Inconsistent
with Legislative History and Congressional Policy………………….14
3. The District Court Did Not Err in Finding That
Defendants Maintain a Policy Denying Tribes
in Public Law 280 States 638 Contracts for Law Enforcement………..15
4. Defendants‟ Declination of the Tribe‟s Contract Request is
Subject to Judicial Review……………………………………………...18
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 2 of 39
ii
5. Defendants‟ Policy Violates the ISDEAA § 450k Because it is a
Nonregulatory Requirement. ………………………………………….23
6. Defendants‟ Unwritten Policy to Deny Law Enforcement
Funding to Tribes in Public Law 280 States is Subject to the
Notice and Comment Provisions of the APA. …………………………25
7. Defendants‟ Denial of Tribe‟s 638 Contract Request Denies Tribal
Members of Equal Protection…………………………………………..28
CONCLUSION………………………………………………………………… ..30
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 3 of 39
iii
TABLE OF AUTHORITIES
Cases:
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)……………………….…18
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)……19
Heckler v. Chaney, 470 U.S. 821, 831 (1985)……………………………………19
Hopland Band of Pomo Indians vs. Norton,
342 F. Supp. 2d 1067 (N.D. Cal. 2004)…………………………….11
Lincoln v. Virgil, 508 U.S. 182 (1993)……………………19, 20, 21, 22, 25, 26, 27
Morton v. Ruiz, 415 U.S. 199 (1974)………………………………………….25, 26
Navajo Nation v. Department of Health & Human Services,
325 F.3d 1133 (9th Cir. 2003)……………………………………....10
Ramah Navajo Chapter v. Salazar et al.,
644 F. 3d 1054, 1062 (10th Cir. 2011)………………………………12
Ramah Navajo School Board v. Babbitt, 87 F. 3d 1338
(D.C. Cir. 1996)…………………………………………18, 21, 22, 24
Rincon Band of Mission Indians v. Califano,
464 F. Supp. 934 (D.C. Cal.1979)………………………………….28
Rincon Band of Mission Indians v. Harris,
618 F. 2d 569, 573 (9th Cir. 1980)…………………………………..29
Serrato v. Clark, 486 F. 3d 560 (9th Cir. 2007) ……..……………………9, 20, 21
Southern Utu Indian Tribe v. Secretary of the U.S. Dept. of Health and Human
Services et al., 657 F. 3d 1071 (10th Cir. 2011)…………………….12
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 4 of 39
iv
Constitution:
United States Constitution
Fifth Amendment. …………………………………………………1,5, 6,30
Statutes:
Administrative Procedure Act:
5 U.S.C. §552 ……………………………………………………………...27
5 U.S.C. § 553…………………………………………………………...5, 27
5 U.S.C. § 706(2)(A)…………………………………………………..……5
Indian Self-Determination and Education Assistance Act:
25 U.S.C. §450 et seq……………………………………………………..5, 9
25 U.S.C.§450(a)(1)………………………………………………………..13
25 U.S.C.§450b(j)…………….………………………………………..12, 13
25 U.S.C.§450j-1(a)(1)…………………………………………………….13
25 U.S.C.§ 450k……………………………………………………..6, 22, 24
25 U.S.C. §450k(a) ………………………………………………………..22
25 U.S.C.§450k(a)(1)……………………………………………….….23, 24
25 U.S.C.§450k(a)(2)………………………………………………………27
25 U.S.C.§450m-1(a)……………………………………………………5, 22
25 U.S.C. §458 et. seq……………………………………………………….9
Snyder Act:
25 U.S.C § 13……………………………………………………………...26
25 U.S.C. §13 #6…………………………………………………………..11
Indian Law Enforcement Reform Act
25 U.S.C. § 2804 (a)…………………………………………………………….11
.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 5 of 39
v
Federal Crimes and Criminal Procedure
18 U.S.C. §1162……………………………………………………………..2
18 U.S.C. §1152……………………………………………………………..2
18 U.S.C. §1153……………………………………………………………..2
Regulations:
25 C.F.R §11……………………………………………………..….. ..16, 25
25 C.F.R. § 900.3(5)………………………………………………………..15
25 C.F.R. § 900.5………………………………………………………..…27
25 C.F.R. §900.31……………………………………………….…..………5
25 C.F.R. § 900.154…………………………………………………………3
Miscellaneous:
S. REF, No. 274, 100th Cong., 1ST Sess. 37 (1987), reprinted in 1988
U.S.C.C.A.N. 2620, 2656 ………………………………………………...14,15, 23
“A Second Century of Dishonor: Federal Inequities and California Indians”(1995)
University of California, Los Angeles, Professors‟ Carole Goldberg and Duane
Champagne ……………………………………………………….........6,7,8, 20, 21
“Concurrent Tribal Authority Under Public Law 280” (2000) United States,
Department of Justice Opinion …………………………………………………8,9
“Final Report, Law Enforcement and Criminal Justice Under Public Law 280”
(2007) University of California, Los Angeles, Professors‟ Carole Goldberg and
Duane Champagne…………………………………………………………
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 6 of 39
1
STATEMENT OF THE ISSUES
Whether Defendants‟ declination of the Los Coyotes Band of Cahuilla &
Cupeño Indians‟ (“Tribe”) request for law enforcement funding through a contract
under the Indian Self-Determination and Education Assistance Act (“ISDEAA”),
on the ground that the Tribe is located in a state subject to Pub. L. No. 83-280
(commonly referred to as “Public Law 280”) violates the ISDEAA, the
Administrative Procedures Act (“APA”), and Equal Protection Clause under the
Fifth Amendment.
STATEMENT OF FACTS
On February 27, 2009 the Tribe submitted a written request to Defendants
seeking a contract for tribal law enforcement services as authorized under the
ISDEAA. Such contracts are commonly referred to as “638 contracts.” (Docket
Entry (“DE”) 1, Exhibit (“Ex”) 1). The Tribe, federally recognized since 1889, has
a land base of 25,000 acres. There are approximately 340 tribal members. The
Tribe administers 17 homes for its members. Other tribal members and non-
members live in private homes on the reservation. The reservation is surrounded
by unoccupied federal lands under the jurisdiction of the United States Forest
Service. (DE 1, Ex.9 pp. 1-2, Excerpt of Record (“ER”) pp. 1-2).
Because of its remoteness, the reservation has been plagued with murders,
thefts, shootings, narcotics, trespass and other violent and non-violent crimes. The
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 7 of 39
2
perception is the Tribe‟s remote reservation is devoid of laws or law enforcement
and where crimes can be committed without repercussion. (Id., ER p. 1).
To address “law and order” on California Indian reservations and in four
other states, Congress enacted Public Law 280 in 1953(18 U.S.C. §1162). Prior to
Public Law 280 the federal government and the Tribe were responsible for law and
order on the reservation, with state criminal jurisdiction limited to crimes
committed by non-Indians against non-Indians. Public Law 280 changed this
jurisdictional landscape by granting the state criminal jurisdiction in California
Indian Country1 regardless of the defendant‟s or victim‟s race. Additionally,
Public Law 280 removed the federal criminal jurisdiction under the Major Crimes
Act and General Crimes Act, 18 U.S.C. §§1152 and 1153, but not all criminal
jurisdiction was removed. Federal jurisdiction remains over criminal laws of
“general application.” Most importantly, Public Law 280 did not divest tribes of
criminal, civil and regulatory jurisdiction. Thus, under Public Law 280 the federal,
state and tribal governments share responsibility for aspects of criminal jurisdiction
on the Tribe‟s reservation.
Due to the lack of funding, staff and inertia, the state will not always provide
effective criminal law enforcement on the Tribe‟s reservation. When tribal
members call law enforcement they are either not responded to or the officers take
1 “Indian Country” is defined at 18 U.S.C. §1151 and includes Indian reservations, Indian allotments and
“dependent Indian communities.”
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 8 of 39
3
up to two hours to arrive. Sheriff deputies for the Los Coyotes area are “Resident
Deputies” limited to day-shifts, 6:00 a.m. to 6:00 p.m. If called after 6:00 p.m. at
least two deputies are required to respond for their safety, causing delay and in
some cases, no response. (Id., ER p.2).
To provide effective policing for its community, the Tribe established its
own law enforcement department. With a seed grant from the Bureau of Justice
Assistance under the Community Oriented Policing Services the Tribe hired a
Chief of Police and adopted a “Peace and Security Code.” (Id., ER p. 2).
On June 29, 2009 Defendant, Office of Justice Services (“OJS”), declined
the Tribe‟s contract request stating:
The amount of money that the BIA, Office of Justice Services spends in
California for law enforcement services is zero. The primary reason for this
is that, as you know, California is in a Public Law 280 state, and so the
costs of law enforcement on Indian reservations is borne by the State, not
the BIA…What we are saying is that BIA does not spend any money for law
enforcement on Indian reservations in the State, so law enforcement is not a
program, function, service or activity that, as a component of its budget, the
OJS provides directly to Indian tribes in California. [Emphasis added]
(DE 1, Ex. 3)
Pursuant to 25 C.F.R §900.154, the Tribe requested an Informal Conference.
During that conference Defendants‟ representatives stated that it was department
policy not to fund law enforcement in Public Law 280 states for the reasons stated
in the declination. The Tribe cited examples where Defendants fund law
enforcement to tribes in Public Law 280 states. Defendants‟ representatives
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 9 of 39
4
explained such funding is limited to: (1) tribes with a Self-Governance Contract
under Title IV of the ISDEAA; and (2) tribes whose reservations straddle a Public
Law 280 and a non-Public Law 280 state. (DE 1, Ex. 4 pp. 38-40, ER pp. 3-5).
Defendants later identified a third category of tribes in Public Law 280 states that
receive law enforcement funding through a 638 contract, as tribes that, prior to
1999, received law enforcement funding through its Tribal Priority Allocation .
(DE 33, Ex. 2, ¶ 9). If a tribe in a Public Law 280 state is not within one of these
categories, which Los Coyotes is not, it is ineligible for a 638 law enforcement
contract.
Following the conference, OJS‟s Designated Representative recommended
that OJS should approve the Tribe‟s contract request. (DE 1, Ex.13 p. 24). The
recommended decision found that: (a) Public Law 280 doesn‟t divest tribes of
their criminal jurisdiction or the federal government‟s law enforcement
responsibility to Tribe; (b) there is a very real and apparent need for law
enforcement on the Tribe‟s reservation that is not being met by local law
enforcement; and (c) Defendants‟ funding policy is arbitrarily applied. (Id.).
OJS claimed the Designated Representative‟s recommendation was non-
binding. (DE 1, Ex. 22). The Tribe brought an action in the United States District
Court, District of Southern California and was granted summary judgment on all
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 10 of 39
5
but one of its legal claims. (DE 43). Defendants now appeal the District Court‟s
October 28, 2010 decision.
SUMMARY OF THE ARGUMENT
The District Court did not err in finding that the Defendants‟ declination of
the Tribe‟s request for a 638 contract for law enforcement violated the ISDEAA,
25 U.S.C. §450 et seq., the APA, 5 U.S.C. §§553, 706(2)(A) and Equal Protection
under the Fifth Amendment.
Defendants advance four arguments in defense of their declination: (1)
Defendants are not currently providing law enforcement services to the Tribe, thus
there are no program funds to transfer to the Tribe; (2) Defendants‟ declination is
not subject to judicial review; (3) Defendants do not maintain an internal unwritten
policy on funding in Public Law 280 states; and (4) even if there was a policy, it
does not violated the ISDEAA, APA or the Equal Protection Clause.
Defendants‟ first argument is based on an interpretation of the ISDEAA that
is unsupported by statutory language, legislative history, Congressional policy or
case law. Second, Defendants‟ declination is subject to judicial review under the
ISDEAA §450m-1(a), 25 C.F.R. §900.31 and case law. Third, representatives of
Defendants have acknowledged that there is and has been a long standing policy of
not providing law enforcement funding to tribes in Public Law 280 states. Finally,
Defendants‟ policy has not been promulgated pursuant the APA, it is a
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 11 of 39
6
“nonregulatory” requirement that is prohibited under ISDEAA §450k, and the
policy has been arbitrarily applied resulting in a violation of Equal Protection
Clause.
ARGUMENT
DEFENDANTS’ DECLINATION OF THE TRIBE’S REQUEST
FOR A 638 CONTRACT FOR LAW ENFORCEMENT SERVICES
ON THE BASIS THAT THE TRIBE’S RESERVATION IS
LOCATED IN A PUBLIC LAW 280 STATE VIOLATES THE
ISDEAA, APA AND FIFTH AMENDMENT
1. Public Law 280 is No Basis to Deny
the Tribe’s Request for a 638 Contract
OJS‟s declination states, because OJS provides “zero” funding to tribes in
Public Law 280 states, the contract amount requested by the Tribe exceeded the
amount OJS would have spent to provide the service directly. The “principle”
reason for the “zero” funding is that the cost of law enforcement on Indian
reservations in Public Law 280 states is borne by the states, not OJS. Defendants‟
declination demonstrates that they have a fundamental misunderstanding of tribal
law enforcement in a Public Law 280 state.
A leading expert on Public Law 280, Carole Goldberg, a Jonathan D. Varat
Distinguished Professor and Vice Chancellor at the University of California, Los
Angeles (“UCLA”), and UCLA Professor of Sociology Duane Champagne
prepared a report for the Advisory Council on California Indian Policy on March
27, 1996 entitled “A Second Century of Dishonor: Federal Inequities and
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 12 of 39
7
California Tribes.” The report specifically addressed Defendants‟ policy on
funding law enforcement in California, the jurisdictional vacuum created by Public
Law 280 and the need of tribal law enforcement to fill that vacuum.
The report finds that using Public Law 280 as a pretext to deny California
tribes law enforcement funding is problematic because: (1) tribes in Public Law
280 states other than California already receive Bureau of Indian Affairs (“BIA”)
law enforcement funds; (2) the existence of state jurisdiction does not remove the
need for tribal law enforcement; and (3) tribes in Public Law 280 states continue to
have substantial law enforcement needs, even with the existence of state
jurisdiction. Defendants fail to understand jurisdictional limitations placed on
states under the language of Public Law 280, by the Supreme Court and more
current federal statutes. (Administrative Record (“AR”) 19, Ex. 2, Part 2 pp.100-
106, ER 6-12).
First, Public Law 280 allows only the application of statewide laws on the
reservation, not county or city ordinances (i.e. animal control, zoning). Public Law
280 expressly denies states jurisdiction over certain matters, particularly property
held in trust by the United States and federally guaranteed hunting, trapping, and
fishing rights.
Second, the Supreme Court has limited state criminal jurisdiction to only
criminal laws that are “prohibitory” rather than "regulatory" in nature. Further,
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 13 of 39
8
tribal internal matters such as enrollment and elections are outside the subject
matter jurisdiction of the state.
Third, current federal statutes reduce state jurisdiction, while simultaneously
increasing tribal sovereignty or federal power. For example, federal environmental
laws such as the Safe Drinking Water Act give tribes rather than states primary
enforcement responsibility for control of contaminants in drinking water on
reservations.
The report concludes:
In sum, …California tribes clearly possess civil and criminal
jurisdiction, even following the enactment of Public Law 280.
To use the state's jurisdiction as a justification for not funding
California tribes overlooks the treatment of tribes in other Public Law
280 states, the absence of state jurisdiction over important matters of
public safety and community welfare, and the inadequacies of state
jurisdiction even where it exists. … (Id. at pp.103-104, ER pp. 9-10)
In 2000 the United States Department of Justice (“DOJ”), Office of Tribal
Justice, issued an opinion titled “Concurrent Tribal Authority Under Public Law
280.” (AR, Ex. 2, Part 2, pp. 107-112, ER pp.13-18) DOJ states “The Federal
Government retains substantial law enforcement authority in Indian County in
Public Law 280 states” by virtue of the fact that all federal criminal laws of general
application are applicable there.
DOJ‟s opinion notes that BIA generally has authority to enforce federal
laws in Indian Country, even in P.L. 280 state.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 14 of 39
9
In carrying out its responsibility, the BIA also has authority to commission
tribal police officers as „special law enforcement officers‟ of the BIA to
carry out those responsibilities and to contract out its functions under either
the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §
450 et seq., or the Self-Governance Program, 25 U.S.C. § 458 et seq.
(Emphasis added) (Id. at p. 111, ER p.17).
Against this backdrop of authority, the Tribe is seeking to exercise its
criminal, civil and regulatory jurisdiction. Defendants fail to recognize the day-to-
day reality of the jurisdictional vacuum created by Public Law 280 and instead
focuses on the state‟s limited criminal jurisdiction as the answer to all of the
Tribe‟s law enforcement needs.
2. Defendants Did Not Correctly Decline
Tribe’s Request For a 638 Contract.
Defendants contend the declination was proper because the intent of the
ISDEAA is that only programs, services and activities currently being provided
tribes are contractable. Defendants argue that because they provide zero direct law
enforcement services to the Tribe, there is no law enforcement program or service
to transfer.
Defendants‟ argument begs the question of why there is zero funding in
California for law enforcement services or programs. The simple answer is that
Defendants have a misguided internal policy that because the state has concurrent
criminal jurisdiction on the Tribe‟s reservation that all tribal law enforcement
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 15 of 39
10
needs are the responsibility of the state, not Defendants. Defendants‟ unwritten
policy will be discussed further in Section 3.
a. Law Enforcement Services and Programs are Contractable Under
the ISDEAA.
As a starting point it must be determined whether law enforcement services
and programs are contractable under the ISDEAA.
Contractable programs and services under the ISDEAA were addressed in
Navajo Nation v. Department of Health & Human Services, 325 F.3d 1133 (9th
Cir. 2003) The Navajo Nation submitted a contract request to the Secretary of the
department of Health and Human Services (“DHHS”) for administration of the
Temporary Assistance to Needy Family (“TANF”) program. The contract was
denied because the TANF program was not contractable. The Court upheld the
DHHS‟s determination finding the TANF program was designed to provide
assistance to needy families regardless of the status of the family being Indian or
non-Indian, as such it was not a program exclusive “for the benefit of Indians
because of their status of Indians.” Id. at 1141.
In Navajo Nation’s discussion of ISDEAA contractable programs, there was
no mention nor was allusion that a program is not contractable unless it was being
directly provided to a tribe. The Court‟s analysis focused exclusively on the
whether the program in question was one in which the Secretary has statutory
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 16 of 39
11
authority to administer for the exclusive benefit of a tribe, and if there is, it is a
contractable program under the ISDEAA.
Also relevant to the current case, is the Court‟s holding that “Congress
contemplated allowing tribes to contract “for programs and services under the
Snyder Act.” Under the Snyder Act, BIA “shall direct, supervise and expend such
moneys as Congress may from time to time appropriate, for the care, benefit and
assistance of Indians throughout the United States for the following purposes
…For the employment of … Indian police…” 25 U.S.C. §13 #6. The Snyder Act
clearly authorizes Defendants to contract law enforcement programs and services.
Law enforcement programs and services are also contractable under the Indian
Law Enforcement Reform Act, 25 U.S.C. §2804 (a). See also, Hopland Band of
Pomo Indians vs. Norton, 342 F. Supp. 2d 1067 (N.D. Cal. 2004).
Defendant Cruzan in his declaration concedes that law enforcement services
and programs are clearly contractable, stating 165 law enforcement programs are
being operated by tribes pursuant to contracts under ISDEAA. (DE 33, Ex. 3, ¶2).
As a contractable program, Defendants cannot deny the Tribe‟s contract
request on the basis that because they do not already provide those services to the
Tribe.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 17 of 39
12
b. Defendants’ Misinterpret the Clear Language of the ISDEAA.
The rule for statutory construction provided if the text is clear and
unambiguous, it will control absent rare and exceptional circumstances. Southern
Utu Indian Tribe v. Secretary of the U.S. Dept. of Health and Human Services et
al., 657 F. 3d 1071 (10th Cir. 2011) Where text is ambiguous, a court must apply
cannons of statutory construction to inform the court‟s interpretation. One such
cannon favors Native Americans. Id. at 1078. With regard to the ISDEAA “…if
the Act can reasonably be construed as the tribe would have it construed, it must be
construed that way.” Id. at 1078. This cannon of construction controls over more
general rules of deference to an agency‟s interpretation of an ambiguous statutes”
Ramah Navajo Chapter v. Salazar et al., 644 F. 3d 1054, 1062 (10th Cir. 2011).
It is against this legal backdrop the Court must review Defendants‟
interpretation of the ISDEAA to determine if it was the intent of Congress to limit
contractable programs to only those programs that are being directly provided the
tribe at the time the contract is request. Defendants first cite §450b(j) for support
of its argument. Section 450b (j) provides that a “self-determination contract” is a
contract between a tribe or tribal organization and the appropriate Secretary for the
“planning, conduct, and administration of programs or services which are
otherwise provided to Indian tribes and their members pursuant to federal law.”
(Emphasis added) The Tribe fails to see how the clear text of §450b(j) supports
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 18 of 39
13
Defendants‟ argument. Under Defendants‟ interpretation §450b(j) it should read a
“self-determination contract” is a contract between a tribe and the appropriate
Secretary for the “planning, conduct, and administration of programs or services
which are currently being provided directly to the tribe or tribal organization
pursuant to federal law.” Section 450b(j) is not so limited and the clear text of the
section provides that if the Secretary is authorized by federal law to provide a
program or services to Indian tribes and organizations the program or service is
contractable under the ISDEAA.
Similarly, Defendants misinterpret §450f (a)(1). This section provides that
upon request, the Secretary must enter into a contract “to plan, conduct, and
administer programs or portions thereof, including construction contracts provided
for [under federal law]…” Section 450f(a)(1) makes no mention of Defendants‟
caveat that the program must be currently provided by Defendants for the benefit
of the tribe in order to be contractable.
Finally, Defendants insert language into the text of ISDEAA to support their
argument. Defendants restates §450j-1(a)(1) as the contract amount requested by a
tribe “shall not be less than the appropriate [agency] would have otherwise
provided for the operation of the programs or portions thereof for the period
covered by the contract [if the agency had continued to provide the services
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 19 of 39
14
itself].” Section 450j-1(a)(1) does not contain the language “[if the agency had
continued to provide the services itself].” Under Defendants‟ interpretation of
§450j-1(a)(1) should read “shall not be less than the amount the appropriate agency
is currently allocating to provide and perform the operation of the programs or
portions thereof for the period covered by the contract.”
Even if the Court were to find the text of ISDEAA ambiguous, the cannons
of construction would require a finding in favor the Tribe, because “…the Act can
reasonably be construed as the tribe would have it construed, [and] it must be
construed that way.” Id. at 1062.
c. The Defendants’ Interpretation of the ISEAA is Inconsistent
with Legislative History and Congressional Policy
The ISDEAA was amended in 1988 because Congress found that
Defendants and the Secretary of Indian Health Services had consistently failed
“over the past decade to administer self-determination contracts in conformity with
the law.” (S. REP, No. 274, 100th Cong., 1ST Sess. 37 (1987), reprinted in 1988
U.S.C.C.A.N. 2620, 2656 (“1987 S. Rep.100-274”).
The legislative history of the 1988 amendments made clear that a tribe can
contract for a BIA program regardless if the program is provided at the local BIA
agency. The Senate Report states:
…tribes are eligible to contract for any portion or function operated by either
Secretary for the benefit of tribes, regardless of whether such specific
program or functions are operated locally. For example, a tribe may need to
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 20 of 39
15
conduct a natural resources planning and management program under a self-
determination contract. The fact that natural resources planning and
management is not operated locally by the Bureau of Indian Affairs agency
office should not prevent the Secretary for entering into a contract with the
tribe. Furthermore, the fact that Secretary has decided to allocate funds to a
local agency in a particular manner should not bar the tribe from contracting
for the function, such as criminal investigators, for which funds have been
allocated to that particular agency.” (1987 Senate Report 100-274 at 2643).
The Senate Report also reminded the Secretaries that by restating the
statutory authority for programs subject to contracting in the new amendments,
Congress was clarifying that the “Secretary is not to consider any program or
portion thereof exempt for self-determination contracts.” (1987 Senate Report 100-
274 at 2642).
Defendants‟ narrow interpretation of the ISDEAA also conflicts with
Congressional policy. Congress has declared that each provision of the ISDEAA
and provision of contracts entered into thereunder shall be “liberally construed for
the benefit of the tribe or tribal organization to transfer of funding, and related
functions, services, activities and programs (or portions thereof,) that are otherwise
contractable under the Act.” (Emphasis added) 25 C.F.R. §900.3(5)
3. The District Court Did Not Err in Finding That
Defendants Maintain a Policy Denying Tribes
in Public Law 280 States 638 Contracts for Law Enforcement
Defendants‟ argue that the District Court erred in finding that they have a
special law enforcement funding policy for tribes in Public Law 280 states.
Defendants dismiss statements from their own representatives regarding its policy.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 21 of 39
16
Defendants further dismiss the historical actions of the BIA to promulgate its
policy pursuant to the APA.
During the 2009 Informal Conference, the Tribe questioned OJS
representatives about its funding policy and when the policy was first
implemented. OJS‟s solicitor confirmed that the funding policy was an unwritten,
internal policy that has probably been around since 1953. (DE 1, Ex. 4, p. 37).
In 2009, where the exact law enforcement funding issue was discussed for
the Hopland Band of Pomo Indians, the former OJS Director testified that:
OJS Director: All I can tell you is it‟s my understanding, based upon our
annual President‟s budget justification, that the funds we specifically request
for law enforcement are funds for those tribes that are not subject to Public
Law 280.
Tribal Attorney ... I guess what I‟m asking is, as part of your budgetary
process, are you willing to make that request [for law enforcement funding]?
OJS Director: As part of our process, given the policy of, the past policies
of the department triggering requesting funds for law enforcement, I would
say, no, not without the Sec—not without the Secretary or President saying
to Congress, this is an exception.
Tribal Attorney: … And why is that? Why aren‟t you willing to try to go get
funding for Hopland‟s law enforcement program?
OJS Director: Because I have not discussed it with the Assistant Secretary,
but that‟s been a long standing policy of the Department of the Interior, not
my policy, but long standing policy of the Department of Interior. (DE 19,
Ex.2, Part 2, pp.125-126, ER pp.19-21)
The former OJS Director‟s statement that the policy has been long standing
is supported by BIA actions taken in 1987. BIA published notice seeking to
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 22 of 39
17
amend 25 C.F.R. §11. Federal Register on March 26, 1987 at 52 FR 9669-01.
(DE 1, Ex. 14). The amendment provided:
Bureau of Indian Affairs law enforcement funds shall not be expended to
provide enforcement services in those areas of Indian Country where,
pursuant to Federal law, states have jurisdiction over offences committed by
Indians.
The notice stated that generally BIA does not provide law enforcement funding to
tribes in Public Law 280 states because it involves a duplication of services and
would possibly encourage some states to avoid discharging their law enforcement
responsibility. The BIA found the regulation necessary “In order to ensure a
consistent Bureau of Indian Affairs‟ policy on funding requests.” (Emphasis
added) (Id.).
In House Conference Report “Making Further Continuing Appropriations
For The Fiscal Year Ending September 30, 1988” on December 21, 1987,
managers of the Appropriation Bill responded to the BIA‟s proposed regulation:
The managers disagree with the proposal of the Bureau of Indian Affairs to
deny funding for law enforcement services in areas where, pursuant to
Federal law, States have jurisdiction over offenses committed by or against
Indians. Funds appropriated for the Bureau‟s law enforcement programs
include funds for the continued operation of such programs in States which
P.L. 83-280 or similar Federal laws are applicable. The managers direct
that the Bureau shall continue to provide funding for law enforcement
programs on the basis of demonstrated need and no tribe shall be denied
funding for a law and order program solely on the basis of P.L. 83-280 or
similar Federal law authorizing the extension of State criminal jurisdiction
over Indians within Indian Country. [Emphasis added] (DE 1, Ex.15).
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 23 of 39
18
Defendants dismiss these OJS representatives‟ statements, BIA action and
the managers‟ statements as “a few snippets” from the administrative record.
Statements from an OJS solicitor, a former OJS Director, BIA‟s proposed
promulgation of the policy as a regulation, and a House Conference Report
admonishing the policy are clearly more than mere “snippets” of evidence and the
District Court did not err in relying on such evidence.
4. Defendants’ Declination of the Tribe’s Contract Request is
Subject to Judicial Review
Defendants contend the Tribe is challenging Defendants‟ discretionary
allocation of a limited lump sum appropriation for law enforcement and their
decision is not subject to judicial review under the APA. Defendants
mischaracterize and misstate the issues raised in the Tribe‟s case and the District
Court‟s holding below. During oral argument the District Court made clear that it
did not see the Tribe‟s case as a challenge to Defendants‟ allocation of limited law
enforcement funding but one that deals with a “fair playing field for those that
want to submit an application for consideration. (DE 43 p.46, lines 5-8, ER p. 22).
The District Court found the effect of Defendants‟ policy makes the location of the
Tribe‟s reservation a threshold criterion that automatically disqualifies the Tribe
from receiving a 638 contract.
The APA creates a strong presumption of judicial review of agency actions.
Abbott Laboratories v. Gardner , 387 U.S. 136 (1967), Ramah Navajo School
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 24 of 39
19
Board v. Babbitt, 87 F. 3d. 1338 (D.C. Cir. 1996). The Supreme Court has found
that lack of judicial review is a “very narrow exception” applicable in “rare
instances” and only found where a statute is drawn in such broad terms that in a
given case there is no law to apply or where the decision requires the balancing of
factors which are peculiarly within the agency‟s expertise. Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), Heckler v. Chaney, 470
U.S. 821, 831 (1985).
Defendants rely on Lincoln v. Virgil, 508 U.S. 182 (1993) and Serrato v.
Clark 486 F. 3d 560 (9th Cir. 2007) in support of their argument of lack of judicial
review. At issue in Lincoln was Indian Health Services‟ (“IHS”) decision to
discontinue a pilot project in the southwest that operated a center for diagnostic
and treatment services to handicapped Native American children. In Serrato the
Bureau of Prisons (“BOP”) decided to reallocate funds for the operating of a prison
“boot camp” program. Both programs were funded through a lump-sum
appropriation and the courts found the decisions by IHS and BOP were within the
agencies‟ discretion and not subject to judicial review.
In Lincoln and Serrato, the programs were reevaluated to determine whether
they met their intended goals. In Lincoln, IHS determined the pilot program had
not met its initial purpose of launching a nationwide program of diagnostic and
treatment centers. IHS issued notice of the reallocation decision stating it was
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 25 of 39
20
“motivated by our goal of increased mental health services for all Indian children.”
Patients would remain eligible for handicapped services but would have to travel a
greater distance to receive them. In Serrato, BOP determined the “boot camp”
program had not reduced recidivism and the funding could be allocated to better
meet BOP‟s key principles. The cost-cutting measure would result “in more
effective and efficient [prison] operations.” Serrato at 569.
The courts in both cases found the underlying authorization acts did not
provided a standard for the courts to use to review the agencies‟ actions. Further,
the agencies‟ decisions required them to balance several factors that were within
their expertise, not the courts, in making their reallocation decision.
Here, Defendants are not deciding to discontinue a law enforcement program
in California and reallocate those funds to a national program in lieu of providing
better law enforcement services in California and other Public Law 280 states. At
issue is the Defendants‟ decision to deny 638 contracts funding to the Tribe simply
because its reservation is in California. The Tribe is foreclosed from any law
enforcement program, unlike the Lincoln plaintiffs who would continue to receive
handicapped services or the plaintiff in Serrato who receive prison services.
Further, Defendants‟ do not maintain expertise regarding tribal law
enforcement in P.L. 280 as found by Professors‟ Goldberg‟s and Champagne‟s:
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 26 of 39
21
… To use the state's jurisdiction as a justification for not funding California
tribes overlooks …., the absence of state jurisdiction over important matters
of public safety and community welfare, and the inadequacies of state
jurisdiction even where it exists. … (DE 19 Ex. 2. Part 2, pp.103-104, ER
pp. 9-10)
The District Court correctly applied Ramah Navajo School Board v. Babbitt,
87 F. 3d 1338 (D.C. Cir. 1996) to determine whether it could review the Tribe‟s
APA claims. The District Court notes, unlike Lincoln and Serrato, the reviewable
of Defendants‟ action was proper under Ramah which dealt specifically with the
ISDEAA.
In Ramah, the Defendants again raised Lincoln to bar the court‟s review of
the Defendants‟ allocation of a lump-sum appropriation of contract support
services (“CSS”) under the tribe‟s 638 contract. Congress had not appropriated
sufficient funds to meet all of the CSS needs of the tribes, as such the Defendants
only made a full award to those tribes who had submitted timely CSS requests and
awarded untimely requests at a 50% rate as a penalty.
The court rejected the Lincoln defense finding that the:
“…key to any determination of reviewability is congressional intent.
This court has recently affirmed that we „begin with the strong presumption
that Congress intends judicial review of administrative act [citations
omitted] and that the court will not deny review “unless there is persuasive
reason to believe that was the purpose of Congress.” Id. At 1343-1344.
The court found there was nothing in the text or history of the ISDEAA, or
in prior case law, to support a conclusion the ISDEAA committed allocation of
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 27 of 39
22
funds to agency discretion. The court found Congress had clearly expressed in the
ISDEAA both its intent to circumscribe as tightly as possible the discretion of the
Secretaries and an intent to provide judicial review of all agency actions, citing 25
U.S.C. §450k(a) and 450m-1(a). The court further found the ISDEAA “reveals
that not only did Congress not intend to commit allocation decisions to agency
discretion, it intended quite the opposite; Congress left the Secretary with as little
discretion as possible .” Id. at 1344.
The Ramah court provides an in depth discussion of the ISDEAA and
specifically §450m-1(a) which provides district courts shall have original
jurisdiction over any civil action or claim against the appropriate Secretary arising
under the Act. The court found nothing is this section that makes an exception for
allocation decisions made pursuant to insufficient congressional appropriations.
Id. at 1344.
As found in Ramah, Congressional intent and the text of ISDEAA makes all
actions taken by the Defendants, including its declination of a contract request and
the underlying rational for the denial, subject to judicial review. While the lump-
sum Appropriation Act might not provide “meaningful law to apply” as found by
the Lincoln court, the ISDEAA and its 1988 legislative history provides the
necessary law to evaluate Defendants‟ actions.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 28 of 39
23
5. Defendants’ Policy Violates the ISDEAA § 450k Because it is a
Nonregulatory Requirement.
ISDEAA §450(a)(1) prohibits the Secretary from promulgating any
regulation or imposing any “nonregulatory” requirement, relating to self-
determination contracts or the approval, award, or declination of such contracts.
Congress made clear “The current practice of Federal agencies that impose
„threshold criteria‟ on a self-determination contract application is clearly
inconsistent with the intent of the Indian Self-Determination Act.” (1987 Senate
Report 100-274 at 2643).
A nonregulatory requirement was a further issue in Ramah Navajo School
Brd. v. Babbitt, 87 F.3d 1338 (C.D.D.C. 1996) The BIA‟s policy which funded in
full a tribe‟s CSS if requested timely and funding only 50% of a tribe‟s CSS whose
request was untimely, was found by the court to be a nonregulatory requirement.
The BIA again argued when limited funds are available to fund a 638
contract, it is within its discretion to establish funding policies and requirements.
The court disagreed and held the ISDEAA does not commit allocation of
insufficient funds to BIA discretion and the BIA‟s allocation policy constituted a
nonregulatory requirement prohibited under §450k(a)(1) of the ISDEAA.
The court found §450k(a)(1) provides 16 delineated areas that the Secretary
can promulgate regulations, beyond those limited areas the Secretary has no
delegated authority to impose or implement any regulations, rules or policies
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 29 of 39
24
effecting the approval or disapproval of a 638 contract. The court found the 50%
penalty was not merely a “general statement of policy” but was an inflexible
policy and constituted a nonregulatory requirement.
Applying this same reasoning to Defendants‟ current policy, it directly
impacts the approval, award and declination of a self-determination contract. It
cannot be considered a regulation because it has never been promulgated pursuant
to the APA as mandated under the ISDEAA and it is not within one of 16 areas
Defendants are permitted to regulate. As such, Defendant OJS‟s policy can only
be categorized as a nonregulatory requirement, prohibited under §450k(a)(1) of
the ISDEAA.
Defendants‟ assert Ramah is inapplicable because the plaintiff in Ramah had
a 638 contract and the Tribe in this case does not. This fact is irrelevant to the
§450k analysis. The ISDEAA §450k applies to requirements relating “…to self-
determination contracts or the approval, award, or declination of such
contract…” The Defendants‟ policy adds the requirement that a tribe seeking a
638 contract must be in non-Public Law 280 state or within one of the three narrow
categories of tribes in Public Law 280 state in order to have the contract approved.
This new requirement violates the ISDEAA.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 30 of 39
25
6. Defendants’ Unwritten Policy to Deny Law Enforcement
Funding to Tribes in Public Law 280 States is Subject to the
Notice and Comment Provisions of the APA.
Again relying on the Lincoln v. Virgil, 508 U.S. 182 (1993), Defendants
argue their unwritten policy is not subject to the notice and comment provisions
under the APA because it is a “general statement of policy” regarding the
allocation of law enforcement funds. In Lincoln, as discussed above, the plaintiffs
contended IHS‟s notice to the public that it was discontinuing the pilot program
should have been published under the APA. The Supreme Court held that the
IHS‟s notice advising the public prospectively of the exercise of discretionary
power was not subject to the APA notice and comment requirements.
Lincoln is distinguishable from the Tribe‟s case. First, Defendants have
never issued a notice prospectively to tribes in Public Law 280 states informing
them that they were ineligible for law enforcement funding as a matter of policy.
Defendants attempted to comply with the APA notice and comment provisions in
1987 by publishing notice of an amendment to 25 C.F.R. §11, which would have
made its policy a regulation. This proposed regulation was withdrawn and the
Defendants have not attempted to amend 25 C.F.R. §11.
Secondly, the Lincoln court acknowledges that there are situations where an
agency‟s allocation decision must comply with the notice and comment
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 31 of 39
26
requirements citing Morton v. Ruiz, 415 U.S. 199 (1974) In Ruiz the Supreme
Court reviewed Defendants‟ eligibility criteria for general welfare assistance.
Defendants had been appropriated funds to provide assistance to needy
Indians under the authority of the Snyder Act, 25 U.S.C §13, but had not
proscribed eligibility criteria. Defendants‟ internal manual provided an applicant
must live on a reservation to be eligible. Defendants never promulgated its
eligibility criteria even though the manual required publication. Tribal members
living near a reservation sued Defendants‟ denial of general assistance.
The Court found that “where rights of individuals are affected, it is
incumbent on agencies to follow their own procedures, even where internal
procedures are possibly more rigorous than otherwise would be required.” Ruiz at
231 Because the Defendants‟ manual required that eligibility criteria be published
pursuant to the APA, failing to do so violated their internal procedures. The Court
determined that limiting eligibility requirements might be necessary in some cases,
the agency must at “a minimum let the standard be known so as to assure that it is
being applied consistently and so as to avoid both the reality and the appearance of
arbitrary denial of benefits to potential beneficiaries.” Id. at 23.
In Lincoln , the Supreme Court cites Ruiz for the proposition that the
Defendants‟ failure to follow its own procedures will render an administrative
policy invalid and under such circumstances “the denial of benefits would be
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 32 of 39
27
inconsistent with the distinctive obligation or trust incumbent upon the
Government in its dealing with these dependent and sometimes exploited people.”
Lincoln at 199.
Here, Defendants are not only required to promulgate their policy because it
is a substantive rule requiring promulgation under the APA, they must also do so
pursuant to the ISDEAA and their own regulation.
25 C.F.R. §900.5 provides:
Except as specifically provided in the Act [ISDEAA] … an Indian tribe or
tribal organization is not required to abide by any unpublished requirements
such as program guidelines, manuals or policy directives of the Secretary,
unless otherwise agreed to by the Indian tribe or tribal organization and the
Secretary, or otherwise required by law.
Additionally, ISDEAA §450k(a)(2) requires that regulations implementing the Act
shall be promulgated under the rule making provisions of the APA, 5 U.S.C. §§552
and 553.
Defendants‟ policy is invalid because it has not been promulgated.
7. Defendants’ Denial of Tribe’s 638 Contract Request Denies
Tribal Members of Equal Protection.
There are 565 federally recognized tribes in the United States. (DE 33, Ex.2,
¶ 2) In Professors Goldberg‟s and Champagne‟s 2007 “Final Report, Law
Enforcement and Criminal Justice Under Public Law 280” p.7, at least 369 of
those tribes are in the mandatory Public Law 280 states. The Final Report states:
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 33 of 39
28
Public Law 280 structures law enforcement and criminal justice for 23% of
the reservation-based tribal populations in the lower 48 states and all of
Alaskan Natives. Another way of measuring its impact is that 51% of all
federally recognized tribes in the lower 48 states and 70% of all recognized
tribes (including Alaska Native villages) are affected by Public Law 280.
Given 70% of the federally recognized tribes in the United States are
affected by Public Law 280, it is irrational for Defendants‟ to maintain a law
enforcement funding policy that denies all tribes in Public Law 280 funding except
for those in narrowly defined categories. Defendants‟ policy is not based on an
assessment of need, effectiveness of state law enforcement, the limitations placed
on state criminal jurisdiction or what jurisdiction is exercised by tribes in Public
Law 280 states.
It is further unreasonable for Defendants to deny the Tribe law enforcement
funding without ever evaluating the Tribe‟s need under Defendants‟ funding
methodology. In Defendant Cruzan‟s declaration he states new funding for law
enforcement is determined by looking at several factors such as high crime rates,
crime rate reports, staffing levels shortage, land base, drug/gang activities,
detention facilities etc. (DE 33, Ex. 3, ¶ 4). Under the Defendants‟ policy, the
Tribe is prevented from demonstrating its need since it is not within one of
categories of tribes Defendants provide law enforcement funding to.
In Rincon Band of Mission Indians v. Califano, 464 F. Supp. 934 (D.C. Cal.
(1979) the court found the disproportionate funding by Indian Health Services
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 34 of 39
29
(“IHS”) of health services in California violated equal protection because IHS‟s
allocation methodology did not effectively determine the health care needs of
California Indians. IHS‟s methodology was supposed to compare California
Indians needs with Indians in other parts of the country. The court found had the
proper methodology been “utilized as intended, and its criteria system soundly
based, any disproportionate funding resulting from the comparative needs of
various Indian populations would be perfectly reasonable and legitimate.” Id. at
937.
This Court upheld the lower court‟s decision but not on constitutional
ground but because IHS had violated the Snyder Act. Nonetheless, this Court
found the allocation program used in the case was unreasonable. The Court stated
“… IHS has a continuing obligation under the Snyder Act to distribute rationally
and equitable all of the available Program funds” citing the lower court. IHS
breached this statutory duty to California Indians by failing to allocate its limited
funds in accordance with a rational distribution standard.” Rincon Band of Mission
Indians v. Harris, 618 F. 2d 569, 573 (9th Cir. 1980).
Similarly, Defendants here have a funding methodology that is applied to
new contract requests when determining the amount to be allocated under a 638
contract. However, the Tribe does not have the benefit of Defendants‟ evaluation
of its law enforcement needs. Instead, Defendants rely on an inflexible and
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 35 of 39
30
absolute bar to funding based on a geographical factor. This is irrational and
violates Equal Protection.
CONCLUSION
Defendants‟ declination is based on a policy that violates the ISDEAA, the
APA and the Equal Protection Clause of Fifth Amendment. The District Court
was correct in granting the Tribe summary judgment and Defendants‟ appeal
should be dismissed.
Respectfully submitted,
DATED: July 2, 2012 /s/ Dorothy Alther
Dorothy Alther
CALIFORNIA INDIAN
LEGAL SERVICES
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 36 of 39
1
STATEMENT OF RELATED CASES
Appellants are aware of no related cases pending in this Court.
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 37 of 39
2
CERTIFICATE OF SERVICE
I certify that on July 2, 2012 I filed the foregoing Answering Brief with the
Court, via the Court‟s CM/ECF system, and that I served opposing counsel by the
same means.
/s/ Dorothy Alther
DOROTHY A. ALTHER
CALIFORNIA INDIAN LEGAL
SERVICES
Attorney for Plaintiff-Appellee
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 38 of 39
3
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 6,886 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
/s/ Dorothy Alther
DOROTHY A. ALTHER
CALIFORNIA INDIAN LEGAL
SERVICES
Attorney for Plaintiff-Appellee
Case: 11-57222 07/02/2012 ID: 8235388 DktEntry: 17 Page: 39 of 39