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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 11-128

General Memorandum 11-128
Federal Court Holds BIA Violated Self-Determination Act in Denying 638 Law Enforcement Contract to California Tribe Based Solely on the Tribe's Location in Public Law 280 State

On October 28, 2011, the U.S. District Court for the Southern District of California held that the Office of Justice Services (OJS) of the Bureau of Indian Affairs (BIA), violated the Indian Self-Determination and Education Assistance Act (ISDEAA) when it denied a request by the Los Coyotes Band of Cahuilla & Cupeno Indians (Tribe) for a law enforcement contract based solely on the Tribe's location in California, a Public Law 280 (PL 280) state. Los Coyotes Band of Cahuilla & Cupeno Indians v. Salazar, No. 10cv1448 (S.D. Cal. Oct. 28, 2011). The Court also determined that the OJS's unwritten policy denying law enforcement funding to Indian tribes in PL 280 states violated the Administrative Procedure Act (APA) and the Tribe's right to equal protection of the law. The Court then enjoined the OJS from using California's PL 280 status as the sole reason for declining the Tribe's contract.

In 2010, OJS denied the Tribe's request for a law enforcement contract under the ISDEAA, commonly known as a "638 contract." The Tribe claimed that the OJS denied the contract based on an internal unwritten policy, dating back to 1953, not to provide law enforcement funds to tribes located in PL 280 states. The OJS disputed this argument claiming that the declination was based on the ISDEAA declination criterion that allows a contract to be denied if the amount of funds requested exceeds the amount of funding the Department would have otherwise provided to operate the program itself. The OJS reasoned that because it provides zero law enforcement funding to tribes in California (solely because it is a PL 280 state), any amount of funding requested by the Tribe was in excess of the applicable funding level requested in the contract.

After denial of the contract the Tribe requested an informal conference conducted by a "designated representative" appointed by OJS. The designated representative found that OJS's underlying rationale for making zero law enforcement funding available to tribes in PL 280 states was not valid because PL 280 did not divest tribes of their criminal jurisdiction or divest the federal government of its law enforcement responsibility, and that there was a need for law enforcement on the Tribe's reservation that was not being met by local law enforcement. The designated representative also determined that the policy was arbitrarily implemented, and violated the APA.

The Tribe filed suit in the U.S. District Court for the Southern District of California, challenging OJS's decision and the underlying policy not to provide law enforcement funding to PL 280 states as arbitrary and capricious and contrary to the ISDEAA, the APA, equal protection under the Constitution, and the federal trust responsibility owed to the Tribe. Under the ISDEAA, any implementing regulation must be promulgated under the APA's rulemaking procedures which require notice and comment. The ISDEAA also provides that tribes do not have to abide by any unpublished requirements, such as policy directives of the Secretary, unless agreed to by the tribe or otherwise required by law.

Although the OJS disputed the existence of the unwritten policy of not funding law enforcement in P.L 280 states, the Court determined that such a policy did exist and that it could not be considered a valid regulation because it had not been promulgated through notice and comment as required by the APA; nor could it have been because it was outside the specific areas delineated in the ISDEAA for the exercise of the Secretary's regulatory authority. Thus, the Court determined that it must be deemed a non-regulatory requirement, which with, under the ISDEAA, a tribe is not required to comply.

Additionally, the Court determined that the policy violated the APA for failure to comply with the APA's rulemaking procedures, and that OJS had arbitrarily applied the policy by providing law enforcement funds to selected California tribes whose reservations straddle the border with Nevada and Arizona and to tribes located in other PL 280 states such as Minnesota. Although the Court determined that OJS's refusal to contract did not violate the federal trust responsibility to the Tribe, it held that the underlying policy violated the Tribe's right to equal protection under the U.S. Constitution because tribes in California were treated differently than similarly situated tribes in other PL 280 states with regard to law enforcement funding.

Lastly, the OJS argued that the Court did not have jurisdiction over the APA claims because these were decisions "committed to agency discretion by law," and therefore unreviewable under the APA, citing precedents. The Court rejected this argument on the grounds that the ISDEAA and its legislative history show that Congress did not intend to commit ISDEAA funding allocation decisions to BIA discretion.

The Court then enjoined the OJS from denying the Tribe's 638 contract based solely on California's status as a PL 280 state and held that the OJS's unwritten policy violates the ISDEAA, the APA, and the Tribe's right to equal protection of the law. The Court did not require the OJS to issue the contract or otherwise direct how it should allocate its law enforcement funding, but stated that it merely leveled the playing field to ensure that the Tribe's contract request received a fair evaluation.

Please let us know if you would like more information regarding this decision.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com or 503-242-1745)

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