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Our attorneys assisted an intertribal effort in California to secure state legislation repudiating the use of the “existing Indian family doctrine,” a doctrine used to avoid application of the Indian Child Welfare Act.

GENERAL MEMORANDUM 12-027

GENERAL MEMORANDUM 12-027
Suit Alleges Violation of Indian Self-Determination Act by BIA in California

A complaint was filed on February 2, 2012, by six Indian tribes located in the State of California seeking both injunctive relief and money damages based on the refusal of the Department of the Interior (DOI) to comply with a number of federal laws, including the Indian Self-Determination and Education and Assistance Act (ISDEAA), as amended, 25 U.S.C. § 450f. The complaint raises important issues such as alleged federal discrimination against Indian tribes in California. We have reviewed the complaint which alleges that DOI has made conflicting and erroneous decisions as to the right of tribes in California to contract for the operation of law enforcement services under 25 U.S.C. § 450f as well as the Indian Law Enforcement Reform Act. 25 U.S.C. § 2801. This report assumes the factual allegations in the complaint are correct. We review below the aspects of the case which are significant for the rights of tribes under these statutes both within and outside California.

The complaint is correct that there is no provision in these statutes or any regulations which exempt California tribes from the right to enter into contracts (638 contracts). In declining some tribal applications the DOI and the Bureau of Indian Affairs have relied on an unwritten "policy" of not providing 638 contracts for law enforcement services in states subject to state jurisdiction under Public Law 280. (If so, the policy has been violated in a number of Public Law 280 states, including California). In other instances, DOI has taken the position that the ban on 638 contracts only applies to California. Basing declination on the "policy" of not awarding such contracts in California or not providing funding for such contracts in California, DOI has ignored express statutory language, including that which limits the application of any regulation or policy which has not been promulgated in accordance with the procedures required by the ISDEAA. 25 U.S.C. § 450j-1 and 25 U.S.C. § 450k(a)(1) and the Administrative Procedures Act, 5 U.S.C. § 553. It also ignored the fundamental requirement of the ISDEAA that contracts can only be declined based on a specific finding or controlling legal authority that one of five statutory grounds for declination is present.
25 U.S.C. § 450f (a)(2)(A) through (E).

The approach taken by DOI conflicts in so many ways with the requirements of law that it suggests that these decisions have been made by federal personnel who have never examined the particular provisions of the ISDEAA. More generally, as the complaint points out, DOI ignores the congressional declaration of the broad policy which it seeks to implement in the ISDEAA:

"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 … "

The unilateral establishment of policy by DOI that excludes certain tribes from rights accorded by statutes to most tribes seems to exemplify precisely the "Federal domination" of tribes which the ISDEAA was meant to replace. While these violations primarily affect tribes in California, the same approach of implementing self-determination through illegal policy determinations, if allowed to stand, could be extended to other tribes.

Please let us know if we may provide additional information regarding this matter.

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Bobo Dean (bdean@hobbsstraus.com)
Stephen Quesenberry (squesenberry@hobbsstraus.com)
Tim Seward (tseward@hobbsstraus.com)

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