LOS COYOTES BAND OF CAHUILLA & CUPEÑO INDIANS v. SALLY JEWELL, Secretary of the Interior; DONALD LAVERDURE, Acting Assistant Secretary of the Bureau of Indian Affairs; DARREN A. CRUZAN, Deputy Director of the Office of Justice Legal Services; SELANHONGVA MCDONALD, Special Agent in Charge, District III
No. 11-57222
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 4, 2013
D.C. No. 3:10-cv-01448-AJB-NLS. FOR PUBLICATION. Argued and Submitted May 6, 2013—Pasadena, California.
Opinion by Judge Murguia
Appeal from the United States District Court for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
* Sally Jewell, Donald Laverdure, and Darren A. Cruzan are substituted for their predecessors pursuant to
Before: John T. Noonan, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
SUMMARY**
Bureau of Indian Affairs / Tribal Affairs
The panel reversed the district court‘s summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians, and the court‘s finding that the U.S. Secretary of the Interior violated the Indian Self-Determination and Education Assistance Act, the Administrative Procedure Act, and the Fifth Amendment‘s guarantee of equal protection when the Secretary declined to enter into a self-determination contract with the Tribe to fund law enforcement on the Los Coyotes Reservation.
The panel held that the Secretary properly rejected the Tribe‘s contract request. The panel also held that the Tribe‘s reliance on the Indian Self Determination and Education Assistance Act was misplaced because the Act allows the Tribe to take control of existing programs and obtain funds that the Bureau of Indian Affairs (“BIA“) would otherwise spend on those programs, but here there was no existing BIA
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Stuart F. Delery, Acting Assistant Attorney General, Laura E. Duffy, United States Attorney, Barbara C. Biddle, and John S. Koppel (argued), Attorneys, Appellate Staff Civil Division, Department of Justice, Washington D.C., for Defendants-Appellants.
Dorothy Alther (argued), California Indian Legal Services, Escondido, California, for Plaintiff-Appellee.
OPINION
MURGUIA, Circuit Judge:
I.
The Secretary of the Interior appeals the district court‘s decision granting summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians (the “Tribe“). The district court found that the Secretary violated the Indian Self Determination and Education Assistance Act (“ISDA“), the Administrative Procedure Act (“APA“), and the Fifth
We conclude that the Secretary properly rejected the Tribe‘s contract request. The Tribe‘s reliance on the ISDA is misplaced. The ISDA allows the Tribe to take control of existing programs and obtain the funds that the Bureau of Indian Affairs (“BIA“) would otherwise have spent on those programs. Where there is no existing BIA program, there is nothing that the BIA would have spent on the program, and therefore nothing to transfer to the Tribe. That there is no existing BIA law enforcement program on the Los Coyotes Reservation is a result of the agency‘s decision to allocate resources elsewhere. The allocation of those resources is an exercise of agency discretion. As such, while we may engage in a very limited review to determine if the agency‘s actions complied with constitutional protections such as equal protection, we may not otherwise review the merits of the agency‘s decision. For these reasons, we reverse.
A.
It is hard to dispute that Indian Country may be one of the most dangerous places in the United States.1 Statistics tell
Violence against women is particularly prevalent; in some American Indian communities women are murdered at a rate 10 times the national average. GAO Study at 4-5. Thirty-four percent of American Indian women will be raped during their lifetime, compared to less than one in five women nationwide. Amnesty Int‘l, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA 2 (2006). Not only is this number disheartening, it is an underestimate because the actual rate of sexual violence against American Indian women must be even higher as sexual violence is universally underreported. Id. at 4. The
Not only is sexual violence against American Indian women more common, it is more violent; American Indian women are much more likely than other women to suffer physical injury as a result of sexual violence. Amnesty Int‘l, supra, at 5. Unfortunately, these victims confront health services that receive a fraction of the funding provided for similar services in other communities and that are ill-equipped to effectively treat victims of sexual violence. Id. at 76.
In addition, international drug traffickers exploit the complicated jurisdictional rules and prosecutorial indifference to establish drug distribution operations in Indian Country, often with devastating results for the community. GAO Study, supra, at 15. This, in turn, causes even more crime. Sarah Kershaw, Through Indian Lands, Drugs’ Shadowy Trail, N.Y. Times, Feb. 19, 2006, at 1; Examining Drug Smuggling And Gang Activity In Indian Country: Hearing Before S. Comm. on Indian Affairs, 111th Cong. 9–12 (2009) (statement of Ivan D. Posey, Chairman Eastern Shoshone Tribe).
B.
There is no single cause of the high level of crime in Indian Country, but two factors relevant to this appeal contribute to the problem: the jurisdictional lines between tribal, state, and federal agencies are confusing and unhelpful, and funding for law enforcement is inadequate. See 1-9 Felix S. Cohen, Cohen‘s Handbook of Federal Indian Law § 9.01 (5th Ed. 2012); Williams, supra.
Indian tribes’ unique status as domestic dependent nations results in a complex jurisdictional scheme that hampers law enforcement in Indian Country. Cohen, supra, § 9.01 (“Unfortunately, the intricate web of laws governing criminal jurisdiction in Indian country can hinder law enforcement efforts.” (citation omitted)). A brief overview of the jurisdictional maze is necessary to understand this dispute. As a general rule, Indian tribes are sovereign nations with the
Pursuant to numerous statutes, the federal government exercises jurisdiction in Indian Country. Cohen, supra, § 9.02. The Indian Country Crimes Act makes the general laws of the United States applicable to Indian Country, but the act only applies if either the victim or defendant—but not both—is an Indian.
States generally lack jurisdiction over Indian Country. Cohen, supra, § 9.03. This rule is subject to some exceptions, the most important being a federal statute known as Public Law 280. Id. Public Law 280 explicitly grants six states, including California, authority to enforce criminal laws in Indian Country.
The second problem is a lack of resources. See Williams, supra. Federal funding for law enforcement in Indian Country is well below the funding level for jurisdictions with
The record in this case demonstrates that the BIA must prioritize how its limited law enforcement budget is spent. There are over 550 federally recognized tribes, 77 Fed. Reg. 47868-01, and the BIA provides funding for over 200 law enforcement programs. Darren Cruzan, the Deputy Bureau Director of the Office of Justice Services (“OJS“), provided the district court with a declaration explaining how OJS allocates law enforcement funds. OJS considers seven factors: “(1) reported crime rates; (2) staffing-level shortages; (3) size of land base; [(4)] drug/gang activity; [(5)] detention facility shortages; [(6)] recorded calls for services resulting in a reportable incident; and [(7)] operating expenses for new
OJS “generally does not allocate funds for direct law enforcement services to tribes in Public Law 280 states [like California] because the states have ceded partial jurisdiction over the tribes.” In these states, local or state law enforcement officers have jurisdiction in Indian Country and federal funding is not essential to ensuring some law enforcement presence.
Cruzan did explain that “a number of tribes [in Public Law 280 states] have obtained federal funds for law enforcement services for various reasons.” These reasons are based on unique circumstances relating to certain tribes. For example, the territory of the Fort Mojave Tribe spans the border of California and Arizona. Because Arizona is a non-Public Law 280 state, the BIA funds law enforcement for the Tribe to ensure that the Arizona portion of the reservation receives law enforcement. In another case, the Hoopa Valley Indian Tribe received BIA law enforcement funding despite being in California because of “violent criminal acts related to a dispute over fishing rights.” Additionally, some tribes have entered into Self-Governance Compacts and have
Public Law 280 has been criticized as an unfunded mandate, by which the federal government abdicated its role in policing Indian Country and transferred that obligation to the states without providing the resources necessary to discharge it. Carole Goldberg & Duane Champagne, Is Public Law 280 Fit for the Twenty-First Century? Some Data at Last, 38 Conn. L. Rev. 697, 704 (2006). State governments, including California, appear to have done no better than the federal government in funding law enforcement in Public Law 280 jurisdictions and, as a result, American Indians in Public Law 280 states consistently report
Recognizing the problem of crime in Indian Country, Congress passed the Tribal Law and Order Act of 2010.
Nonetheless, the Act falls short of resolving many of the problems that result in high crime in Indian Country. See Hart, supra, at 176–84; Tribal Law and Order, N.Y. Times, Aug. 2, 2010, at A16. In particular, the Act reportedly fails to confront the shortage of resources that prevents effective law enforcement in Indian Country. Lawlessness on Indian Land, N.Y. Times, Nov. 22, 2012, at A34; Timothy Williams, Higher Crime, Fewer Charges on Indian Land, N.Y. Times, Feb. 20, 2012, at A14; Jasmine Owens, “Historic” in a Bad Way: How the Tribal Law and Order Act Continues the American Tradition of Providing Inadequate Protection to American Indian and Alaska Native Rape Victims, 102 J. Crim. L. & Criminology, 497, 519 (2012).
C.
The Indian Self Determination and Education Assistance Act (“ISDA“),
The ISDA directs the Secretary to “approve the proposal and award the contract” unless the Secretary makes a “specific finding that clearly demonstrates” that there is a statutory basis to reject the contract.
If the contract application is denied, the Secretary must allow the tribe to appeal the decision.
The Los Coyotes Band of Cahuilla and Cupeño Indians is a federally recognized tribe located on the Los Coyotes Indian Reservation in a “very secluded rural area of San Diego County.” The Reservation was established in the early 1900‘s. As early as 1934, the Tribe requested that the BIA appoint a law enforcement officer to the reservation, but the request was denied because funds were not available. With the passage of Public Law 280, California obtained criminal jurisdiction over the Reservation, and the Tribe is entitled to the same law enforcement services as any other community in the county. According to the Tribe, the promise of Public Law 280 has been largely empty, and the sheriff‘s response to complaints of criminal activity on the reservation is slow or non-existent.
In 2004, the Tribe received a grant under the Department of Justice‘s Community Oriented Policing Services (“COPS“) program to fund a part-time police officer, which “had a slight effect in deterring crime.”6 The grant has expired, but the Tribe is able to continue employing the officer on a limited basis without federal funds. The officer received a Special Law Enforcement Commission (“SLEC“) from the BIA, which delegates the BIA‘s authority to enforce federal criminal law in Indian Country to tribal police officers. See
Because of the continuing crime on the Los Coyotes Reservation, the Tribe applied for a 638 contract under the ISDA, seeking $746,110.00 to increase law enforcement on the reservation. The BIA denied the contract application. The BIA explained that it was denying the contract pursuant to
The BIA explained that the “amount of money that the BIA‘s Office of Justice Services spends in California for law enforcement services is zero.” The letter continued, “[t]he principal reason for this is that, as you know, California is a [Public Law] 280 state, and so the cost of law enforcement on Indian reservations is borne by the State, not the BIA.” The BIA clarified that it was not arguing that it was unable to enforce federal laws in Indian Country in California, but
The BIA‘s letter advised the Tribe of its right to appeal the determination. According to BIA regulations, the Tribe could request an “informal conference,”
The BIA appealed the decision to the IBIA. The IBIA, interpreting BIA regulations, held that it lacked jurisdiction because the BIA does not have the right to appeal the recommendation of the mediator in an informal conference. The BIA responded by sending a letter to the Tribe‘s counsel stating that because it had no right to appeal Haberfeld‘s decision, it was treating the decision as non-binding and that the BIA did “not intend to comply with [Haberfeld‘s] gratuitous recommendation that, moreover, failed to address the controlling legal considerations at issue.”
About six months later, the Tribe filed a complaint in district court alleging five causes of action: (1) violation of the ISDA based on the BIA‘s policy of not funding law enforcement in Public Law 280 states, allegedly imposing an impermissible “nonregulatory” condition on 638 contracts; (2) violation of the Administrative Procedure Act and the ISDA based on the theory that the funding policy was not properly promulgated under the notice and comment procedure of the APA; (3) a claim that the denial of the 638 contract was “arbitrary, capricious, and contrary to law“—in violation of the APA; (4) a denial of equal protection in violation of the Fifth Amendment; and (5) a violation of the Secretary‘s trust responsibility to provide the Tribe law enforcement. The parties filed cross-motions for summary judgment and the district court granted summary judgment in favor of the Tribe on the ISDA claim, the two APA claims, and the equal protection claim. The district court granted summary judgment in favor of Defendants on the trust responsibility claim.
II.
A.
We review a district court‘s grant of summary judgment de novo. Holihan v. Lucky Stores, Inc., 87 F.3d 362, 365 (9th Cir. 1996). “Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact in dispute and the district court correctly applied the relevant substantive law.” Id.
The Secretary denied the Tribe‘s contract request because the Tribe requested a contract for a program that was not currently being funded by the BIA. Section 450f(a)(2)(D) authorizes the Secretary to reject a contract if the Tribe requests more money than the BIA is currently spending on the program. The purpose of
The Tribe‘s argument that the Secretary failed to comply with the ISDA is unconvincing. The Tribe points to a few provisions of the ISDA that do not provide a basis to reject the contract request. For example, a “self-determination contract” is defined as a “contract . . . entered into . . . 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
These provisions are not helpful to the Tribe because the Secretary has never cited them to justify denying the contract request. The Tribe could cite to a variety of subsections of the statute that do not justify rejecting the contract request, but that would not change the outcome here because they do not undermine the statutory basis to reject the Tribe‘s request—
The Tribe‘s only response to
Additionally, the Tribe offers no viable alternative reading of the statute. If the ISDA does not limit the contract amount to the current level of funding, then
The district court concluded the BIA violated the ISDA despite the fact that
To accommodate a budget shortfall for CSF funds, the BIA set a deadline for tribes to apply for CSF funding and announced that it would fund only 50% of late requests. Id. at 1343. The D.C. Circuit held that a subsection that stated “the provision of funds under [the Act] is subject to the availability of appropriations,”
The court determined that the penalty for a late submission was a “nonregulatory requirement” that violated
Rather than announcing a general policy, the Notice imposes on the Tribes a “requirement” in the truest sense of the word; under the 1995 plan, Tribes are required to meet the new June 30 deadline or accept a 50% reduction in their CSF entitlement.
This case does not involve an existing 638 contract. Thus, there cannot be a violation of the statutory provisions analyzed in Ramah because those provisions directed the BIA to provide CSF funds to tribes that already had 638 contracts. Moreover, in this case, there is no “requirement” that the Tribe take any action. Cf. Ramah, 87 F.3d at 1350. The contract was not denied because the Tribe failed to do something required by the BIA, but because the amount requested exceeded the amount currently spent on the program—a statutory basis for rejecting the contract. Further, there is no “meaningful law to apply” to the BIA‘s allocation of funds for law enforcement. Cf. Ramah, 87 F.3d at 1347-48. The ISDA is silent on how the BIA should prioritize its funding of law enforcement. In fact,
No reading of the ISDA authorizes federal courts to grant relief when the Secretary properly denies a contract, but the Tribe complains of some “underlying policy” behind the circumstances that made the denial possible. Such an interpretation transforms the ISDA from a tool that allows tribes to take over federally run programs to a tool that allows tribes to demand a contract for a program that does not exist—and then challenge any denial based on the “underlying policy” that caused the program not to exist in the first place. Unfortunately for the Tribe, this result is unworkable and without legal support.
C.
The Tribe‘s argument that the BIA‘s failure to fund law enforcement on the Los Coyotes Reservation was a violation of the APA is foreclosed by Supreme Court precedent. In Lincoln v. Vigil, 508 U.S. 182 (1993), the Court held that courts may not use the APA to review an agency‘s decision to allocate funds absent some statutory constraint on the agency‘s discretion. Id. at 190-94. Lincoln involved a discontinued program that had been operated by the Indian Health Service. Id. at 186–88. The Supreme Court unanimously rejected an APA challenge to the discontinuation brought by children that had received services from the program because the decision to discontinue the program was “committed to agency discretion by law.” Id. at 193 (quoting
The allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion. After all, the very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way.
Id. at 192; see Serrato v. Clark, 486 F.3d 560, 568–70 (9th Cir. 2007) (applying Lincoln). The Court‘s decision was based on the fact that:
an agency‘s allocation of funds from a lump-sum appropriation requires “a complicated balancing of a number of factors which are peculiarly within its expertise“: whether its “resources are best spent” on one program or another; whether it “is likely to succeed” in fulfilling its statutory mandate; whether a particular program “best fits the agency‘s overall policies“; and, “indeed, whether the agency has enough resources” to fund a program “at all.”
Lincoln, 508 U.S. at 193 (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)). As a court, we are institutionally ill-equipped to consider these factors. Id. The Tribe does not identify any specific appropriation it believes should have been allocated for law enforcement on the reservation, let alone specific language in an appropriation that deprives the Secretary the discretion to allocate the funds. The BIA‘s
The district court attempted to distinguish Lincoln on the grounds that “this case is not about the allocation of funds, but rather the eligibility to be considered for a 638 contract in the first place.”9 That line of reasoning is circular. The district court avoided binding precedent forbidding courts from reviewing discretionary funding decisions by framing the issue as one of eligibility for an ISDA contract. But, as explained in Section II B, the district court avoided the clear language of the ISDA by stating that the true issue was not contract eligibility, but instead, the underlying funding policy. The APA does not authorize us to review the BIA‘s allocation of law enforcement funding in Indian Country.
The Tribe also argues that the BIA violated the APA by creating an unwritten policy to not fund law enforcement in Public Law 280 states, but failing to formally promulgate that policy under the APA‘s notice and comment procedure. Even assuming the BIA has a “policy” of not funding law enforcement in Public Law 280 states, it is a “general statement of policy” because it “merely provides guidance to agency officials in exercising their discretionary powers
Finally, the Tribe argues that the unwritten policy was applied arbitrarily, in violation of the APA. That the agency makes exceptions to the rule, however, suggests that the policy is a general statement of policy that preserves the agency‘s flexibility. And, in any event, the BIA was given a lump-sum to allocate as it saw fit, making its allocation unreviewable under the APA. Lincoln, 508 U.S at 190–91 (citing
D.
The Tribe argues that the BIA‘s funding policy violates the Fifth Amendment‘s equal protection guarantee. The district court identified two possible theories that would
An equal protection challenge to the Government‘s allocation of funds must overcome a “strong presumption of constitutionality.” Mathews v. De Castro, 429 U.S. 181, 185 (1976). The decision to allocate funds is subject to rational basis review. Id. The Secretary has no burden to affirmatively prove a justification for the funding decision. Instead, the Tribe bears the burden “to negative every conceivable basis which might support” the distinction in funding. Aleman v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000) (quoting Heller v. Doe by Doe, 509 U.S. 312, 320 (1993)).12
The first theory fails because there is a meaningful distinction between Public Law 280 states and non-Public
The second theory also fails because the Tribe has not negated the reason that the Secretary gave for funding some tribes in Public Law 280 states. A portion of the tribes in Public Law 280 states that receive law enforcement funding are tribes that span a state border and are partially in a non-Public Law 280 state. The Tribe‘s argument that there is no requirement that the funds be spent in any particular state misses the mark. The Secretary must only provide a basis for making the distinction between tribes, and the fact that some tribes have a portion of their jurisdiction that is outside the reach of state law enforcement is a sufficient basis.
To the extent the record suggests that other tribes in Public Law 280 states were given some law enforcement funds, the specific reasons for those allocations are explained in the Cruzan declaration and are not rebutted or even discussed by the Tribe.
III.
If the question is whether the Secretary‘s declination of the Tribe‘s contract application complied with the ISDA, the answer is yes because the Tribe requested more money than the BIA would have spent on law enforcement on the
REVERSED.
Notes
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.