Cheyenne River Sioux Tribe v. Jewell

• Decision Date: 06 September 2016
• Docket Number: 3:15–CV–03018–KES
• Parties: CHEYENNE RIVER SIOUX TRIBE, Plaintiff, v. Sally JEWELL, Secretary of United States Department of Interior, or her Predecessor in Office, United States Department of Interior, United States Bureau of Indian Education, Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs of the United States Department of Interior, or his Successor in Office, and Charles Roessel, in his official capacity as Director of the Bureau of Indian Education, or his Successor in Office, Defendants.
• Court: U.S. District Court — District of South Dakota

205 F.Supp.3d 1052

CHEYENNE RIVER SIOUX TRIBE, Plaintiff,

v.Sally JEWELL, Secretary of United States Department of Interior, or her Predecessor in Office, United States Department of Interior, United States Bureau of Indian Education, Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs of the United States Department of Interior, or his Successor in Office, and Charles Roessel, in his official capacity as Director of the Bureau of Indian Education, or his Successor in Office, Defendants.

3:15–CV–03018–KES

United States District Court, D. South Dakota, Southern Division.

Signed September 6, 2016

Tracey Zephier, Fredericks, Peebles & Morgan LLP, Rapid City, SD, for Plaintiff.

Kevin M. Snell, Marcia K. Sowles, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

On October 10, 2015, plaintiff, Cheyenne River Sioux Tribe, filed a complaint seeking injunctive relief, declaratory relief, and a writ of mandamus, that would preclude defendants from carrying out plans to restructure the Bureau of Indian Education (BIE). Docket 1. Defendants move to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Docket 14. The Tribe resists this motion and requests a transfer of all or part of the case from the United States District Court for the District of South Dakota, Central Division to the United States District Court for the District of South Dakota, Southern Division. Docket 20. On January 25, 2016, United States District Judge Roberto A. Lange ordered the transfer of this case from the Central Division to this court. Docket 25. This court will now consider the motion to dismiss.

BACKGROUND

The facts, construed in the light most favorable to the non-moving party (the Tribe), are as follows:

The Tribe is a federally recognized Indian Tribe. The Tribe's principal headquarters are located in Eagle Butte, South Dakota. Defendant Sally Jewell is Secretary of the Department of Interior. Defendant Kevin Washburn is the Assistant Secretary for Indian Affairs to the Secretary of the Department of Interior; Washburn is responsible for overseeing the reorganization of the BIE. Defendant Charles Roessel is the Director of the BIE. The BIE is responsible for managing school systems on or near Indian reservations that serve over 40,000 American Indian students in 183 elementary and secondary schools.

In September 2013, Secretary Jewell and Arne Duncan, Secretary of the Department of Education, appointed the American Indian Education Study Group. The Study Group had two main goals: research and diagnose challenges facing BIE funded schools, and recommend potential solutions to improve education in these schools. Docket 1–16 at 2. In carrying out these goals, the Study Group conducted research throughout the country. Part of this research included listening sessions between the Study Group and tribal leaders and tribal educators in New Mexico, South Dakota, Oklahoma, Mississippi, Washington, and Arizona. Docket 1–11 at 7.

In March 2014, Washburn sent a letter to tribal leaders throughout the country; the letter detailed developments in research that had been performed by the Study Group. Docket 1–8. Specifically, Washburn described a "draft framework [of educational reform] based on four pillars[:]" (1) effective teachers and principals; (2) agile organizational environment; (3) budget aligned to capacity building; and (4) comprehensive support through partnerships. Id. at 1. The letter also provided the dates and times of four future consultation sessions that were intended to provide an avenue for comments and feedback on the draft framework of reform. Tribal leaders were also invited to submit comments or concerns through a dedicated email address, fax number, or mail sent to BIE.

The Tribe attended the consultation session in Oglala, South Dakota, on April 28, 2014. During the session, the Tribe examined a "Transformation Plan" and a "Draft Proposal to Redesign the U.S. Department of the Interior's Bureau of Indian Education (Draft Proposal)," both of which expanded upon the four pillars of reform but did not contain specifics regarding the future structure of BIE or budget information. See Docket 1–10; Docket 1–11. The Tribe was also asked to consult on a "Draft Bureau of Indian Education Strategic Plan 2014–2018" (BIE Draft Strategic Plan) while at the consultation session. See Docket 1–13. This BIE Draft Strategic Plan, totaling 41 pages, was not provided to tribal leaders prior to the meeting. Docket 1 at 13–14, ¶ 42. The Tribe, through the Great Plains Tribal Chairman's Association, submitted a formal response to both the Transformation Plan and the BIE Draft Strategic Plan in May 2014. Docket 1–12; Docket 1–14. Defendants did not acknowledge or respond to the Tribe's submissions. Docket 1 at 14, ¶ 45.

In June 2014, defendants released "Findings and Recommendations Prepared by the Bureau of Indian Education Study Group Submitted to the Secretaries of the Departments of the Interior and Education," otherwise known as the "Blueprint for Reform." Docket 1–16. See also Docket 1 at 14, ¶ 45; Docket 15 at 3. This report details the Study Group's final analysis and formal recommendation for BIE reform. The Tribe alleges that this document is substantially similar to the draft report that was released in April 2014 in that it fails to offer specifics regarding budget proposals, staffing changes, or any meaningful empirical data. Docket 1 at 14, ¶ 45.

Also in June 2014, Secretary Jewell issued Order No. 3334: "Restructuring the Bureau of Indian Education." Docket 1–17. The purpose of this Order was

to begin the process of implementing those reforms by redesigning and restructuring the BIE into an innovative organization that will improve operations for both tribally-controlled and BIE-operated schools. The redesign and restructuring of the BIE will occur in two phases to ensure an orderly and minimally disruptive transition and will emphasize: (1) improving responsiveness of BIE operational support to schools; and (2) improving performance of individual schools.

Id. at 1. The Order established that, in Phase I, a School Operations Division of the BIE shall be established, three current Associate Deputy Directors (ADDs) of BIE will be realigned to supervise different areas of the department, Education Line Offices (ELOs) will be restructured and transitioned into Education Resource Centers (ERSs), and a new Office of Sovereignty and Indian Education will be created. Id. at 2. In Phase II, each office of the three ADDs will create Support Solutions Teams. These teams will be responsible for providing greater local support to BIE funded schools. Id.

Defendants, or their representatives, met with the Tribe's representatives two times throughout the remainder of 2014. See Docket 1 at 17–18, ¶¶ 53–54 (stating that the Tribe met with defendants on July 22, and August 13). In each of these meetings, the Tribe alleges that defendants' representatives indicated that BIE was implementing the changes articulated in the report issued by the Study Group and Order 3334. Id. According to reports provided to the Tribe, defendants were moving forward with plans to transition 23 ELOs into approximately 15 ERCs. Docket 1–20 at 12; see also Docket 1–23 at 7. The reports also indicated that the BIE-operated school on the Cheyenne Sioux Reservation would report to a new ERC in Flandreau, South Dakota, while the two Tribally-controlled schools on the reservation would report to a new ERC in Belcourt, North Dakota. Docket 1 at 18, ¶ 57.

On April 22, 2015, during a consultation session in Rapid City, South Dakota, the Tribe submitted a formal statement in response to both the final report released by the Study Group and Order 3334. Docket 1–26. The Tribe articulated its position that defendants had not meaningfully consulted with the Tribe as required by 25 U.S.C. § 2011(b) because they had failed to provide any specifics regarding funding and employment information under the proposed restructuring of BIE. Id. at 2. The Tribe formally requested specific information at that time, and again in a follow up letter sent in May 2015. Docket 1–27.

Defendants formally responded to the Tribe's request in July 2015. Docket 1–28. The letter provided a list of resources already available to the Tribe that pertained to its requests. Id. Defendants indicated, however, that plans pertaining to the budget and potential reallocation of funds were still "being vetted and finalized within the Department of the Interior. During the department's deliberative process, this information is not publically available." Id. at 3.

The Department of the Interior submitted a proposal to Congress on September 15, 2015, outlining the changes contained in Order 3334. Docket 1–29. Both the House and Senate Committees on Appropriations have since approved the Department of Interior's proposal. See Docket 30 at 6 n.2.

The Tribe then filed a four-count complaint. Docket 1. The complaint alleges the following four counts: (1) the Tribe was not consulted before defendants issued the order restructuring BIE; (2) the restructuring plan is arbitrary and capricious under the Administrative Procedures Act (APA); (3) the restructuring plan breaches the trust responsibility owed to the Tribe under the provisions of the 1868 Fort Laramie Treaty; and (4) the restructuring plan breached the settlement agreement that was entered into in Yankton Sioux Tribe et al. v. Kempthorne et al. Id. On December 21, 2015, defendants moved to dismiss the complaint under Rule 12(b)(1) and Rule 12(b)(6).¹ Docket 14.

STANDARD OF REVIEW

Under Federal Rule 12(b)(6), a court must review whether the complaint states a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A complaint must...