Vigil v. Andrus, 79-1930

• Decision Date: 04 January 1982
• Docket Number: No. 79-1930,79-1930
• Citation: 667 F.2d 931
• Parties: Evelyn VIGIL, a minor, by Ignacio Vigil, Father and Next Friend; Theresa Catheryn Abeyta, a minor, by Sefarina Abeyta, Mother and Next Friend; Sheila Abeyta, a minor, by Edward Abeyta, Father and Next Friend; Curtis Sandoval, a minor, by John Sandoval, Father and Next Friend; Shelly Archuleta, a minor, by Cesarita Archuleta, Mother and Next Friend; Janice Simbola, a minor, by Nelson Simbola, Father and Next Friend; John Martinez, a minor, by Pat Martinez, Father and Next Friend; and Leonard J. De Layo, Superintendent of Education of the State of New Mexico, Plaintiffs-Appellants, Kathy Buurma, a minor, by Clarence Buurma, Father and Next Friend; Alvera Lester, a minor, by Jerry Lester, Father and Next Friend; Mike Rocha, a minor, by Clarice Rocha, Mother and Next Friend; and Mescalero Apache Tribe, Plaintiffs-Intervenors-Appellants-Intervenors, v. The Honorable Cecil B. ANDRUS, Secretary of Interior of the United States of America; The Honorable Morris P. Thompson, Commissioner of Indian Affairs of the Bureau of Indian Affairs of the Department of the Interior; the Honorable John Knebel, Acting Secretary of Agriculture of the United States, and W. F. Warren, Regional Director of the Department of Agriculture of the United States of America, or their successors in office; The Bureau of Indian Affairs; the Department of Agriculture; and the Department of Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 931

667 F.2d 931

Evelyn VIGIL, a minor, by Ignacio Vigil, Father and Next Friend; Theresa Catheryn Abeyta, a minor, by Sefarina Abeyta, Mother and Next Friend; Sheila Abeyta, a minor, by Edward Abeyta, Father and Next Friend; Curtis Sandoval, a minor, by John Sandoval, Father and Next Friend; Shelly Archuleta, a minor, by Cesarita Archuleta, Mother and Next Friend; Janice Simbola, a minor, by Nelson Simbola, Father and Next Friend; John Martinez, a minor, by Pat Martinez Father and Next Friend; and Leonard J. De Layo Superintendent of Education of the State of New Mexico, Plaintiffs-Appellants, Kathy Buurma, a minor, by Clarence Buurma, Father and Next Friend Alvera Lester, a minor, by Jerry Lester, Father and Next Friend; Mike Rocha, a minor, by Clarice Rocha, Mother and Next Friend; and Mescalero Apache Tribe Plaintiffs-Intervenors-Appellants-Intervenors, v. The Honorable Cecil B. ANDRUS, Secretary of Interior of the United States of America; The Honorable Morris P. Thompson, Commissioner of Indian Affairs of the Bureau of Indian Affairs of the Department of the Interior; the Honorable John Knebel, Acting Secretary of Agriculture of the United States, and W. F. Warren, Regional Director of the Department of Agriculture of the United States of America, or their successors in office; The Bureau of Indian Affairs; the Department of Agriculture; and the Department of Interior, Defendants-Appellees.

No. 79-1930.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 26, 1981.

Decided Jan. 4, 1982.

L. Lamar Parrish of Ussery, Burciaga & Parrish, Albuquerque, N. M., for plaintiffs-appellants Evelyn Vigil and other minors.

Robert N. Hilgendorf, Asst. Atty. Gen. of the State of N. M., Santa Fe, N. M., (Jeff Bingaman, Atty. Gen. of the State of New Mexico, Santa Fe, N. M., with him on the brief), for plaintiff-appellant Leonard J. De Layo.

Kim Jerome Gottschalk, Alamogordo, N. M., (George E. Fettinger, Alamogordo, N. M., with him on the brief), Fettinger & Bloom, Alamogordo, N. M., for plaintiffs-intervenors, appellants-intervenors.

James C. Kilbourne, Atty., Dept. of Justice, Washington, D. C., (James W. Moorman, Asst. Atty. Gen., Anne S. Almy, Atty., Dept. of Justice, Washington, D. C., R. E. Thompson, U. S. Atty., Ruth C. Streeter, Asst. U. S. Atty., Albuquerque, N. M., with him on the brief), for defendants-appellees.

Anthony F. Little, Indian Pueblo Legal Services, Inc., Bernalillo, N. M., filed an amicus curiae brief for Santo Domingo Pueblo.

Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

The Mescalero Apache Tribe, several Pueblo and Mescalero Apache school children, and the Superintendent of Education of the State of New Mexico appeal the district court's refusal to enjoin the federal government from discontinuing a program that provided free lunches to all Indian children attending New Mexico public schools. The Bureau of Indian Affairs (BIA) had transferred responsibility for providing free lunches to the United States Department of Agriculture (USDA). Under the USDA's National School Lunch Program, only needy children receive free lunches. The plaintiffs have challenged the transfer of responsibility and the elimination of free lunches for Indian school children not qualifying as needy under USDA guidelines. On appeal the issues are (1) whether, because of either the government's trust obligations to the Indians or the expectation of Congress in making appropriations under the Johnson-O'Malley Act, 25 U.S.C. §§ 452-457, all Indian children attending public schools are entitled to free lunches regardless of need; (2) whether the BIA's transfer of the free lunch program to the USDA and elimination of free lunches for nonneedy Indian school children complied with the Administrative Procedure Act (APA), Ch. 324, §§ 1-12, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.), and the BIA's own rulemaking procedures; and (3) whether providing free lunches without regard to need to Indian children attending federal day schools, contract schools, and boarding schools, while restricting free lunches for Indian children attending public schools to those who are needy, violates the Snyder Act, 25 U.S.C. § 13, or denies Indians attending public schools their constitutional right to equal protection.

For many years the BIA provided free lunches to all Indian school children. If the BIA operated the school, it furnished free lunches directly. If the tribe operated the school or if the children attended public schools, the BIA reimbursed the tribe or the state for the cost of the lunches. To reduce its costs and to make funds available to assist Indians in other ways, the BIA decided to shift the public school portion of its Indian free lunch program to the USDA. However, the USDA provides free lunches only to those children whose families qualify as needy. ¹ Therefore the shift would eliminate free lunches for nonneedy Indian children attending public schools. The BIA and USDA planned to phase-in the program over a period of three school years; during that time, if the USDA was told an Indian child qualified as needy, it would pay for the child's lunch, and if the USDA was not so told, the BIA would pay for the lunch. Beginning with the 1973-74 school year, nonneedy Indian children in the public schools would no longer receive free lunches.

Neither the BIA nor the USDA held evidentiary hearings or rulemaking proceedings before shifting the program to the USDA and ending the free lunch program for nonneedy Indian children, and neither announced the changes in the Federal Register. The USDA disseminated the only announcement on March 31, 1970, when the Child Nutrition Division (CN) of its Food and Nutrition Service ^S issued FNS(CN) Instruction 784-2 to the CN field offices and state educational agencies. The instruction, which had been developed jointly by the Child Nutrition Division and the BIA, informed the state educational agencies that the USDA would begin paying for lunches to needy Indian school children and that the state agencies were to determine which school children qualified. The instruction stated that the BIA would soon inform its own field offices of the change; however, the record does not contain evidence of any such BIA announcement.

According to the record, the government first informed interested Indians of the changes in the free lunch program fourteen months later at a July 8, 1971 meeting held for that purpose in Albuquerque. In attendance were employees of the BIA, the USDA, and the New Mexico Department of Education, and the president of the Mescalero Apache Tribe and other members of the Indian community.

Until 1976 the New Mexico public schools apparently certified all Indian school children as eligible under the National Free Lunch Program. When the USDA learned of the blanket certifications, it informed the schools that the family of each Indian school child for whom a free lunch was sought would have to submit financial information annually, and that the USDA would not reimburse the schools for lunches given to Indian children unless the school maintained current financial information showing eligibility. ² The Indians and the State of New Mexico then brought this suit.

I Whether an Entitlement Existed

The federal government has broad fiduciary obligations to the Indian tribes, Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942), the relationship being akin to guardian and ward, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17-18, 8 L.Ed. 25 (1831); Crain v. First National Bank, 324 F.2d 532, 535 (9th Cir. 1963). But the federal government generally is not obligated to provide particular services or benefits in the absence of a specific provision in a treaty, agreement, executive order, or statute. See Gila River Pima-Maricopa Indian Community v. United States, 427 F.2d 1194, 1198, 190 Ct.Cl. 790, cert. denied, 400 U.S. 819, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970). We agree with the district court that no express provision in any statute or treaty requires the federal government to provide free lunches to all Indian children. While the plaintiffs call attention to many treaties that refer to educating Indian peoples, they have not pointed to any provision specifically encompassing school lunches.

The applicable language of the Snyder Act, the BIA's general authorization to spend money appropriated by Congress, states only that the BIA may spend "for the benefit, care, and assistance of the Indians throughout the United States for the following purposes: General support and civilization, including education." 25 U.S.C. § 13. The Johnson-O'Malley Act, as applicable, authorizes contracts with states or schools "for the education" of Indians, and expenditures under those contracts of "moneys appropriated by Congress for the education ... of Indians in such State or Territory." 25 U.S.C. § 452. The language of each of these Acts is too broad to support a conclusion that Congress has expressly appropriated funds for lunches for all Indian school children.

Plaintiffs argue that Congress was aware of the BIA's long-standing free lunch program and believed it was appropriating funds to support that program. Relying on Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), they argue that this congressional expectation gave specific meaning to the government's trust responsibilities and created an Indian entitlement to continuation of the program.

In Ruiz a unanimous Supreme Court held that Indians who lived near a reservation were entitled to general assistance benefits despite longstanding BIA regulations that expressly limited the benefits to those who lived on a reservation. The Court relied heavily on the BIA's practice of including in its "service area" Indians living near the reservations, and the BIA's many representations to...