Navajo Sues Interior over FY2017 Judicial Contract

Here is the complaint in Navajo Nation v. Dept. of Interior (D.D.C.):


An excerpt:

Plaintiff Navajo Nation (“Nation”) seeks relief for Defendants’ violations of the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. § 5301 et seq. (“ISDEAA”), and regulations promulgated thereunder, and for Defendants’ breach of a self-determination contract made under the ISDEAA. Under the ISDEAA and governing regulations, Defendants may not decline an Indian tribe’s renewal proposal for a self-determination contract, or contract funding, if it is substantially the same as the prior contract. The Nation submitted a renewal proposal to the Department of the Interior (“Department”) for their contract covering operations of the Navajo Nation Judicial Branch that proposed funding in the amount of $17,055,477 for calendar year (“CY”) 2017. This was the same amount that the Nation sought for CY 2016 and was essentially the same amount that the Nation had previously sought for CY 2014 and CY 2015 ($17,055,517) and which had been approved by operation of law because of Defendants’ failure to decline the Nation’sCY 2014 funding proposal within the 90-day review period established by law. Nonetheless, Defendants partially declined the Nation’s renewal proposal for all funding in excess of $1,429,177.00 for CY 2017. Because Defendants’ action violates the ISDEAA and applicable regulations, the Nation is entitled to declaratory and injunctive relief and damages.

Eleventh Circuit Holds that Navajo Attorney Assigned to ICWA Matter in Florida Covered by Federal Tort Claims Act

Here is the opinion in Colbert v. United States.


1 US Opening Brief

2 Navajo Amicus Brief

3 Colbert Brief

4 US Reply

Ninth Circuit Briefs in Hopland Band of Pomo Indians v. Jewell (ISDEAA Law Enforcement Funding)


Hopland Band Opening Brief

Federal Answer Brief

Hopland Reply Brief

Lower court materials here:

21 Tribal Motion for Summary J

32 US Motion for Summary J

32-1 Cruzan Declaration

34 Tribal Response

38 US Reply

55 DCT Order

We posted on this case here and here.

Payment of Contract Support Costs is Mandatory – Why Isn’t the Funding?

Attorneys from Hobbs Strauss have prepared a proposal to enact permanent mandatory funding appropriations for contract support costs under the ISDEAA. The proposal is here:

White Paper and Proposal – Final

They also have an editorial in the ICT on this matter.

Student Note Criticizing Federal Tort Claims Act Coverage of Tribal Contractors

Well, the anti-Indian bug has hit law students! 🙂

This student note, Help Me Help You: Why Congress’s Attempt To Cover Torts Committed by Indian Tribal Contractors with the FTCA Hurts the Government and the Tribes (PDF), is published in the American University Law Review.

The abstract:

Since the Nixon Administration, the U.S. government has attempted to promote tribal self-determination among Native Americans.  Under the Indian Self-Determination Act, the tribes can enter into agreements with the federal government to take over services previously provided to the tribes by the Bureau of Indian Affairs (BIA).  By entering into these contracts, the tribes have been able to administer a wide variety of services, including construction and law enforcement, which bring income and employment to Indian country.  These contracts do not always run smoothly, however, and sometimes people get injured.  Under a series of amendments to the Indian Self-Determination Act, when tribal contractors commit torts, the federal government steps in and defends the tribal contractors under the Federal Tort Claims Act (FTCA) as if they were employees of the government.  The government pays out any settlements or judgments from the Judgment Fund.  This scenario is a complete departure from the traditional FTCA rule whereby contractors are only treated as government employees in exceedingly limited circumstances.

In hastily extending the FTCA to cover tribal contractors, Congress contravened FTCA jurisprudence in theory and in practice.  Congress intended to help the tribes avoid having to buy costly insurance by directly assuming liability under the FTCA.  While perhaps well-intentioned, the result is a system of perverse incentives and a string of inconsistent decisions.  Courts struggle to apply the FTCA’s waiver of the federal government’s sovereign immunity to the tribes, which remain separate sovereigns that retain some of their own sovereign immunity.  The arrangement also creates problems in determining whether tribal contractors are within the scope of their employment and undertaking discretionary functions.  Furthermore, the statutory scheme creates the potential for tribal law to govern the United States’ tort liability and may have inadvertently created a loophole for the intentional torts of tribal law enforcement officers.  The end result of this untenable situation is that savvy tribes recognize the unpredictability of the FTCA protection and purchase private insurance anyway, sometimes with federal contract support funds.  This is the exact result Congress hoped to avoid.

Congress should end the experiment of extending the FTCA to cover tribal contractors and replace it with subsidized private insurance.  This new arrangement would simplify the process for potential claimants and keep the government from having to pay the duplicative costs of insurance and judgments.

I don’t know much about this, but I thought Congress covered the tribes because the tribes were stepping into the shoes of federal service providers. As such, I’m not sure I’m persuaded that ISDEAA contracts should be molded to fit “FTCA jurisprudence … theory and … practice.” But I can’t argue much with the conclusion that there are a lot of unpredictable cases.

The tribes have been winning big on contract support costs cases lately. So if this proposal gets legs and runs, will that increase tribal indirect costs even more?

California Tribes Move for Summary Judgment in Suit to Force Interior to Contract for Law Enforcement Services

Here is the motion in Hopland Band of Pomo Indians v. Salazar (N.D. Cal.):

Hopland Band Motion for Summary J

The complaint is here.

California Tribes Sue Interior over Failure to Contract for Law Enforcement Services under ISDEAA

Here is the complaint in Hopland Band of Pomo Indians v. Salazar (N.D. Cal.):

Hopland Band v. Salazar Complaint

Update in Shirk v. Tanakeyowma (ISDEAA Sovereign Immunity Case)

Here are the federal government’s pleadings in that case (and all the rest of the materials moved here as well):

Proposed United States’ Amicus Brief

Resp to USA’s Amicus Brief

Brief of Amicus Curiae in Opposition to Pltf.’s Motion to Set Aside Judgment

USA’s Mtn to Dismiss

USA’s Reply on MTD

Order Granting Rule 60 Relief (main opinion)

Under Advisement Ruling

Notice of Appeal


Federal Court Finds Interior Violates Self-Determination Act in Denying 638 Public Safety Funds to Tribes in PL280 States

Here are the materials in Los Coyotes Band of Cahuilla and Cupeno Indians (S.D. Cal.):

DCT Order Granting Los Coyotes Motion

Los Coyotes Band Motion for Summary J

Interior Motion for Summary J

Los Coyotes Reply

Interior Reply

Colbert v. United States — FTCA Action against Feds and Navajo Employees in Florida

Here is the opinion:

Colbert v US

And here are the materials:

Colbert Motion for Summary J

 Budget Motion for Summary J

Martine & Navajo Motion for Summary J

USA Motion to Dismiss

The case arises out of a car accident in Florida involving Navajo employees in Florida on business relating to the adoption of a Navajo member.