Comes Flying v. US Through Bur. of Indian Aff., CIV. 92-3030.
| Decision Date | 23 July 1993 |
| Docket Number | No. CIV. 92-3030.,CIV. 92-3030. |
| Citation | 830 F. Supp. 529 |
| Parties | George COMES FLYING and Fred Comes Flying, Plaintiffs, v. UNITED STATES of America, acting through the BUREAU OF INDIAN AFFAIRS, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Charles M. Thompson, May, Adam, Gerdes, & Thompson, Pierre, SD, for plaintiffs.
Mikal G. Hanson, Asst. U.S. Atty., Pierre, SD, for defendant.
Defendant moved to dismiss this action on October 23, 1992. After initial briefing by the parties, Judge Porter ruled (on April 7, 1993) that additional documentation was required before a decision could be reached on the motion. New materials and briefs have been received, and the matter is now ripe for decision. For the reasons that follow, the motion is granted.
Plaintiffs' basic claim, as pertains to this motion, is that the United States can be held liable for the misfeasance of employees of the Crow Creek housing authority, pursuant to a recently-enacted section of the Indian Self-Determination and Education Assistance Act, Public Law No. 101-512, Title III, § 314 (1990). That section provides:
With respect to claims resulting from the performance of functions ... under a contract, grant agreement, or cooperative agreement authorized by the Indian Self-Determination and Education Assistance Act, ... an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior ... while carrying out any such contract or agreement and its employees are deemed to be employees of the Bureau ... while acting within the scope of their employment in carrying out the contract or agreement: Provided, That ... any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and afforded the full protection and coverage of the Federal Tort Claims Act.
Id. In short, the law allows persons to recover from the United States for losses arising out of the actions of employees who are working under contracts authorized by the Self-Determination Act. Thus, the controlling question for purposes of the current motion is whether the employees whose alleged misfeasance caused plaintiffs' injuries were working under a self-determination contract.1
A "self-determination contract" is one "entered into under Title I of this Act between a 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...." 25 U.S.C.A. § 450b(j) (Supp.1993). The word "Secretary," for purposes of the Act, "means either the Secretary of Health and Human Services HHS or the Secretary of the Interior or both." 25 U.S.C.A. § 450b(i) (Supp. 1993). Thus — even assuming all the other elements of a self-determination contract are met — liability will only attach to the United States based on contracts entered into by one of the above-enumerated Secretaries.
The materials which have been submitted by plaintiffs demonstrate that the contracts at issue were entered into with the Department Secretary of Housing and Urban Development (HUD); not HHS or Interior. Therefore, the applicable contracts cannot be regarded as self-determination contracts.
Plaintiffs argue in the alternative that if the Court finds that the applicable contracts are not self-determination contracts, they should still be allowed to go forward with this action because the contracts could have been authorized under the Act. This is based on a slight twist of the meaning of the phrase "authorized by" in the Act, which this Court rejects. A straightforward, sensible reading of the Act requires that, for the waiver of immunity to apply, the relevant contracts must be actually authorized by the...
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VAL-U CONST. CO. OF SOUTH DAKOTA, INC. v. US
...while carrying out any such contract or agreement and its employees are deemed to be employees of the Bureau.... Comes Flying v. United States, 830 F.Supp. 529, 530 (D.S.D.1993) (quoting ISDEAA, Pub.L. No. 101-512, Title III, § 314 3 The Court finds is advisable to stress the conceptual dif......
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...States v. Nordic Vill., Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) ; Comes Flying v. U.S. through Bureau of Indian Affairs, 830 F. Supp. 529, 530 (D.S.D. 1993) (Bogue, J.)). The United States adds that the Ohlsen Plaintiffs, C De Baca, Cianchetti, and the Sais Plaintiffs ......
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Demontiney v. USA.
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