Tunica-Biloxi Tribe of La. v. U.S.

• Decision Date: 22 September 2008
• Docket Number: Civil Action No. 02-2413 (RBW).
• Citation: 577 F.Supp.2d 382
• Parties: TUNICA-BILOXI TRIBE OF LOUISIANA and Ramah Navajo School Board, Inc., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

577 F.Supp.2d 382

TUNICA-BILOXI TRIBE OF LOUISIANA and Ramah Navajo School Board, Inc., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Civil Action No. 02-2413 (RBW).

United States District Court, District of Columbia.

September 22, 2008.

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Daniel H. MacMeekin, Law Office of Dan MacMeekin, Washington, DC, Michael P. Gross, M.P. Gross Law Firm, P.C., Santa Fe, NM, for Plaintiff.

Rachel J. Hines, Hannah Chanoine, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The Tunica-Biloxi Tribe of Louisiana ("Tunica") and the Ramah Navajo School Board, Inc. ("Ramah Navajo"), the plaintiffs in this civil lawsuit, seek declaratory and injunctive relief along with monetary damages against the United States of America, Michael O. Leavitt in his official capacity as the Secretary of the Department of Health and Human Services, and Dirk A. Kempthorne in his official capacity as the Secretary of the Department of the Interior, under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (2000) (the "CDA"), for alleged "massive violations" of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (2000) (the "Indian Self-Determination Act" or the "Act"). Second Amended Class Action Complaint (the "Compl.") ¶ 1. Currently before the Court is the defendants' renewed motion to dismiss in part the plaintiffs' second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and for summary judgment pursuant to Federal Rule of Civil Procedure 56, along with the plaintiffs' renewed cross-motion for partial summary judgment pursuant to Rule 56. Upon carefully reviewing the plaintiffs' second amended complaint, the parties' motions, and all memoranda of law and exhibits submitted by the parties,¹ the Court concludes that it must grant in part and deny in part the defendants' motion, deny in part the plaintiffs' cross-motion, and stay further consideration of the parties' cross-motions for the reasons that follow.

I. Background

Except where indicated otherwise, the following facts are either undisputed or matters of public record. Finding that "the prolonged [f]ederal domination of Indian service programs ha[d] served to retard rather than enhance the progress of the Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government," 25 U.S.C. § 450(a)(1), Congress passed the Indian Self-Determination Act in 1975 to "permit an orderly transition from the [f]ederal 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," id. § 450a(b). The Act was intended to assist in the accomplishment of the "major national goal" of "provid[ing] the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being." Id. § 450a(c).

Pursuant to the Indian Self-Determination Act, the Secretary of the Department of Health and Human Services and the Secretary of the Department of the Interior are "directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof" that are administered by those Secretaries "for the benefit of Indians because of their status as Indians." Id. § 450f(a)(1). The Act provides that "a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or renew a self-determination contract," to the applicable Secretary, after which the Secretary "shall, within ninety days after receipt of the proposal, approve the proposal and award the contract" unless the Secretary finds that one or more of five statutory criteria for declination have been met. Id. § 450f(a)(2). These criteria for declination include a finding that "the amount of funds proposed under the contract is in excess of the applicable funding level for the contract[ ] as determined under [the Act]." Id. § 450f(a)(2)(D).

"Whenever the Secretary declines to enter into a self-determination contract or contracts" in whole or in part, he must "state any objections in writing to the tribal organization" and "provide assistance to the tribal organization to overcome the stated objections." Id. § 450f(b)(1)-(2). Further, he must "provide the tribal organization with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised." Id. § 450f(b)(3). Alternatively, "the tribe or tribal organization may, in lieu of filing such an appeal, exercise the option to initiate an action in a[f]ederal district court." Id. However, even if the Secretary finds that the level of funding proposed for a self-determination contract is too high, the Secretary is required to approve the remainder of the contract with "a [lower] level of funding [that is] authorized under [the Act]." Id. § 450f(a)(4)(B).

The "level of funding authorized" by the Indian Self-Determination Act is determined in accordance with 25 U.S.C. § 450j-1. That section provides that "[t]he amount of funds provided under the terms of self-determination contracts ... shall not be less than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered by the contract." Id. § 450j-1(a)(1). In addition to this baseline level of funding, also known as the "Secretarial amount," "[t]here shall be added ... contract support costs," id. § 450j-1(a)(2), which "include the costs of reimbursing each tribal contractor for reasonable and allowable costs of" both "(i) direct program expenses for the operation of the [f]ederal program that is the subject of the contract" as well as "(ii) any additional administrative or other expense related to the overhead incurred by the tribal contractor in connection with the operation of the [f]ederal program, function, service, or activity pursuant to the contract," provided such funding does not duplicate the Secretarial amount, id. § 450j-1(a)(3)(A). Further, "the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive" under the contract. Id. § 450j-1(a)(3)(B).

There are two statutory restrictions on the amount of funding that the Secretary may provide for self-determination contracts pursuant to § 450j-1. First, "[n]otwithstanding any other provision in [the Indian Self-Determination Act], the provision of funds ... is subject to the availability of appropriations[,] and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization." Id. § 450j-1(b). Second, "[b]efore, on, and after October 21, 1998, ... funds available to the Indian Health Service ... for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to contracts, grants[,] and compacts" issued pursuant to the Act, "and no funds appropriated by [the Act] shall be available for any contract support costs or indirect costs associated with any contract, grant, cooperative agreement, self-governance compact, or funding agreement entered into between an Indian tribe or tribal organization and any entity other than the Indian Health Service." Id. § 450j-2. This same restriction applies to all "funds available to the Department of the Interior" from November 29, 1999, onwards. Id. § 450j-3.

The Indian Self-Determination Act also restricts the terms of self-determination contracts. Pursuant to 25 U.S.C. § 450j(c)(1)(A), a self-determination contract may not last longer than three years "in the case of [anything] other than a mature contract, unless the appropriate Secretary and the tribe agree that a longer term would be advisable." Mature contracts,² on the other hand, may last "for a definite or an indefinite term, as requested by the tribe." Id. § 450j(c)(1)(B). "The amounts of such contracts may be renegotiated annually to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the tribal organization." Id. § 450j(c)(2).

Finally, self-determination contracts under the Act must "incorporate by reference[ ] the provisions of [a] model agreement" described in the Act itself. Id. § 450l(a)(1). This model agreement provides, inter alia, that, "[s]ubject to the availability of appropriations, the Secretary shall make available to the [contracting Indian tribe or tribal authority] the total amount specified in" an annual funding agreement to be executed separately and incorporated by reference in the self-determination contract. Id. § 450l(c). "Such amount shall not be less than the applicable amount determined pursuant to [§ 450j-1]." Id.

"Since before 1995," the plaintiffs have entered into self-determination contracts with the Indian Health Service (the "IHS"), a component of the Department of Health and Human Services, "to provide health services to members of federally-recognized Indian tribes pursuant to the [Indian Self-Determination Act]." Pls.' Facts ¶ 1. For all of the contracts at issue here, the plaintiffs and the IHS agreed to use a so-called "indirect cost rate"³ negotiated by the plaintiffs and the Office of the Inspector General (the "OIG") of the Department of Interior (the "DOI") until 2003 and between the...