Vernon Solomon v. Interior Regional Housing Authority

oth- themselves protect dence so, they needed To do the scene.

ers on package to believe cause

probable home. We Alaimalo’s drugs was that the offi- contention Alaimalo’s

reject to believe cause probable lacked

cers home. in Alaimalo’s drugs were contention reject Alaimalo’s

Therefore, we challenge prob- failure to lawyers’ his effective him deprived

able the Sixth counsel

assistance Therefore, we guarantees.

Amendment of Alaima- denial court’s the district

affirm for writ petition § 2255

lo’s corpus.

habeas

AFFIRMED. SOLOMON, Plaintiff-

Vernon

Appellant, HOUSING REGIONAL

INTERIOR

AUTHORITY, Defendant-

Appellee.

No. 01-35766. Appeals,

United States

Ninth Circuit. Aug. Submitted

Argued and 20, 2002. Dec.

Filed

H95 . FACTUAL AND PROCEDURAL

BACKGROUND Plaintiff Vernon Solomon is a Native Alaskan. Defendant Regional Interior Housing Authority (Authority) region- is a housing al authority formed Native Alaskan associations pursuant to Alaska § 18.55.996. Statute The Authority pro- housing vides services to low-income Na- tive Alaskans. 1982 Op. Att’y Alaska Gen/ (June 8, J-66-220-82A) (1982 No. WL 48622); 4103(21)(B) see also 25 U.S.C. (recognizing regional housing authorities in the state of Alaska for the Native American Housing Assistance Walleri, J. Michael Law Offices of Mi- Act). and Self-Determination Walleri, Fairbanks, AK, chael J. for. the plaintiff-appellant. Authority grants receives block un- der the Native Housing American Assis- Tracey L. Craig Knutson and Wm. tance 'and Self-Determination Act of Black, Knutson, P.C., Sisson & Anchorage, §§ (NAHASDA). U.S.C. 4101-4243 AK, defendant-appellee. for the grants Those are administered the Sec-

retary Housing Development Urban (HUD). grants 4102. The subject quirements 450e(b). of 25 U.S.C. §§ C.F.R. 1000.48and 1000.50. FLETCHER, ALARCON, Before: B. According to complaint, his Plaintiff GRABER, Judges. Circuit worked for the Authority until when on-the-job injuries he suffered for which GRABER, Judge. Circuit he received a compensation workers’ Upon award. recovering injuries, from his 450e(b) Title 25 provides again sought Plaintiff employment with the “[a]ny contract, subcontract, grant, or sub- Authority. In applied Plaintiff grant pursuant to authorizing [an act] Fed- position counselor, of maintenance eral contracts with or to Indian Instead, hired. Authority organizations or Indians, for the benefit of hired another Native Alaskan. require shall greatest extent applied Plaintiff position for the of tribal feasible,” preference given shall be to Indi- housing Again, officer. Authority de- ans in the and training oppor- and, time, clined hire Plaintiff opted this connected grant. tunities with the instead to employ non-Native. appeal requires us to decide whether that creates a of action for Plaintiff initiated January action in a Native Alaskan applied who unsuccess- 2000. He brought two claims: one under fully job for a with a Native 450e, Alaskan re- a state-law claim U.S.C.. gional housing authority. The answer to alleging that the Authority retaliated is “no.” against him because had he made work- in court for has a claim' under His claim. compensation

ers’ (3) an affect- required; exhaustion which part: “The pertinent alleged, § 450e to choose between party ed in defer- Mr. Solomon employ failure court pursuing 25 USC hire violates non-Native to a ence (4) remedy; an affect- administrative or an applica- regulations agency 450e and [§ ] right of action no party has sought ed Plaintiff Authority].” to[the ble instead, an adminis- but, limited to court remedy. as a damages (5) party affected an remedy; or trative sum- for cross-motions filed parties mechanism available no enforcement has court The district mary judgment. as to Here, is silent the record to it. briefing from the supplemental quested an administra- pursued Plaintiff whether they had that issues on two parties is of no mo- That silence remedy. tive Authority pro- whether raised: however, ment, Congress intended unless immunity and whether sovereign tected alternatives. of those remedial the second § creates 450e 25 U.S.C. first alternative argues that Plaintiff job applicant. unsuccessful an action for follow, we For the reasons applies. supplemental of the After submission intended the fourth hold summary granted briefs, court the district is, here; Plaintiff apply to alternative Authority on in favor judgment action in court no no § creates ground an administra- pursued or not he whether Plain- dismissed The court of action. remedy. tive claim without statelaw supplemental tiffs timely appealed. Plaintiff and prejudice, 450e(b) provides, § as 25 Title U.S.C. to case: relevant OF REVIEW STANDARD pursuant to this grant ... ... Any novo the district de review We (48 April Act of subchapter, the Bal summary judgment. grant court’s 596), U.S.C.A. amended[25 Stat. 1047, 1050 City, 180 F.3d int v. Carson any Act autho- seq.], or other 452 et banc). Cir.1999) (en Viewing the facts grants or with rizing contracts Federal non- most favorable light for the organizations or benefit to Indian whether must determine party, we moving Indians, to require shall of material issues genuine any there are extent feasible— greatest court correct the district fact and whether (1) opportunities preferences Id. applicable law. We ly applied the in connection training and summary judgment grant of may affirm a contracts of such with the administration by the record. supported any ground to given Indians!.] be grants or shall Sch. City Keyser v. Sacramento Unified (9th Cir.2001). Dist., Secretary of for the NAHASDA calls “on behalf of grants to make block HUD DISCUSSION affordable hous- carry out Indian tribes 4111(a). 25 U.S.C. ing activities.” a statute that is enacts When are there- enforcement, under NAHASDA Grants made respect to its silent with Self-Determi- by fore covered any one of at intending could be create Act, 25 (1) and Education Assistance nation an regimes: affected least five remedial (ISDEAA), as a §§ 450-458bbb-2 court party has a authorizing act] to [an ... “grant pursuant administrative for which no exhaustion of organizations to Indian (2) party grants ... affected required; remedies is H97 the benefit of Indians.” 25 U.S.C. 99 S.Ct. 1946. In a case involving an 450e(b); 1000.48; see 24 C.F.R. tribe, apply we the final factor (“To C.F.R. greatest 1000.50 extent determining whether “federal remedies feasible, preference opportunities for would interfere with matters traditionally training in connection relegated to the control of semisovereign administration grants awarded tribes.” Id. at 691 n. Indians.”). part under this shall given (citing Santa Clara Pueblo Mar Defendant receives block tinez, argues NAHASDA. Plaintiff that Defen- . (1978)) L.Ed.2d 106 ISDEAA, dant violated the 450e(b), when it hired a non-Native— A. Class by Benefited instead of position him—for the of tribal In analyzing whether the first factor housing advisor and that the statute autho- weighs in favor implying of a rizes a right of action damages action, we look at the text of the statuto- stemming from the violation. provision ry Cannon, at issue. 441 U.S. at Ash, 66, v. 422 95 689, 99 S.Ct. 1946. Supreme Court 2080, (1975), S.Ct. 45 L.Ed.2d 26 the Su has held that specific wording prohib- that preme Court of the United States estab the denial its of a benefit to an individual lished a four-factor test analyzing or “person” “employee” supports an infer- whether the violation of a federal statute ence that Congress intended to provide a gives rise to a private right of action.1 See private right 689, of action. Id. at 99 S.Ct. Chi., also Cannon v. 677, Univ. contrast, By 1946. 689, 1946, (1979). 60 L.Ed.2d 560 [tjhere would far less reason to infer First, we must determine “whether the a remedy in favor of individual statute was enacted for the benefit of a persons if Congress, instead drafting special class which plaintiff the is a [the statute at issue] with an unmistak- Second, member.” Id. we ascertain must class, able focus on the benefited had whether “any there is legisla indication of written simply as a ban on discrimina- intent, tive explicit implicit, or either to tory conduct recipients of federal create such a remedy or deny one.” funds or prohibition as a against the Cort, 78, 422 U.S. at 95 S.Ct. 2080. This public disbursement of funds to edu- factor requires an legisla examination of cational engaged institutions in discrimi- Cannon, history. tive 694, 441 U.S. at 99 natory practices. Third, S.Ct. 1946. we consider whether 690-98, Id. at 1946. S.Ct. implying a private remedy “would frus Here, trate underlying the the legisla operative wording of 25 U.S.C. tive scheme.” Id. at 99 S.Ct. 1946. 450e does not refer to individual Indians. Finally, analyze we Rather, implying “whether a that, the simply requires federal is remedy inappropriate because when are made to “Indian organiza- subject matter involves an area basi tions or for the benefit of Indians” cally of concern to the States.” Id. at general, Indians should receive associated recently 1. We noted "subsequent Bancorp, deci- Helfer, Inc. v. 224 sions have emphasized key inquiry that the (9th Cir.2000). is that, We concluded "[n]ever- Congress whether provide intended to theless, we still help find the four-factor test plaintiff private right with a of action” and ful in determining provides whether a statute that "there suggestion has even been some of action.” Id. at 1122. that Cort has been overruled.” First Pac. intended Congress explicitly “to whether opportunities training or employment The statute create feasible.” extent greatest subject to that (a con- funds grant term in required recipient a benefit confers collectively, H.R.Rep. No. 93- generally agreements) See grant provision. tracts individually. (1974), reprinted rather than However, 25 U.S.C. U.S.C.C.A.N. meaning of Moreover, traditional policy congressional articulates the 450a of Indian context “preference” word section That the ISDEAA. underlying suggests employment allow In- intended to shows In Morton right. individual freedom greater 553-54, and tribes people dian Mancari, 417 U.S. community (1974), at the Supreme self-governance L.Ed.2d rights preference” level, individual “Indian not to confer held Court Affairs Indians: Bureau individual history long Examining the constitutional. hereby recognizes (a) in federal stat preference” “Indian States United obligation utes, noted of the expression strong to the respond pref a racial so much not preference self-determination for people Indian criterion “an it was erence as participation Indian assuring maximum the cause to further reasonably designed as well as educational the direction 554, 94 Id. at self-government.” of Indian commu- to Indian Federal services other characterization That S.Ct. 2474. services more such as to render nities so it is demonstrates preference Indian . desires of to the needs and responsive for to create ordinarily rights intended not those communities. to Indians, serves but rather individual self-gover goal political (b) advance its com- Congress declares and the Indian Indian tribes nance for of the Fed- the maintenance mitment to as a whole. people continu- unique and eral Government’s with, responsibility relationship and ing hand, the collective benefit other On the to the tribes and to, Indian individual arguably preference here of the Indian through the a whole people Indian on the benefited focus “an unmistakable meaningful Indian Cannon, establishment class.” per- which will policy is an of the benefit very nature self-determination in fa- the Fed- from training orderly transition and mit an for, and applicants, programs individu- domination of Indian who vor of eral to, to effectivé by definition. Indians als services by the Indian meaningful participation inferences, competing these In view of conduct, and ad- planning, in the people That equipoise. factor is first Cort and ser- programs of those ministration against for nor neither weighs alone factor policy, with In accordance vices. to Congress intended a conclusion sup- is committed States the United of action under create a Indian tribes assisting porting § 450e. and stable strong development of Legislative Intent B. of adminis- capable governments, developing tering quality programs factor, to the second Cort turn next We com- respective of their economies Nothing legisla- intent. legislative munities. § 450e addresses history of 25 U.S.C. tive

H99 (b). 450a(a), Cir.1998) 25 U.S.C. The references (stating that the people 450a to “the Indian as a purpose of the ISDEAA is promote whole,” tribes, and to the Indian participation Indian in the administration imply “communities” that the benefits con- programs). of federal But subjecting an by § ferred 450e are not bestowed on indi- organization Indian to an individual action Indians, vidual but instead are bestowed for damages every decision to hire a collectively community on a of Indians. particular non-Indian for a position would undermine the organization’s Indian implication auton- strengthened by omy, not enhance it. application of a familiar principle of statu- ' tory construction: When in- We are mindful the text of a provision cludes in one part of a statute 450e(b) is broad enough to cover con- another, excludes it we deem the grant tractors or recipients who are not assign difference intentional and meaning applies Indians. It grants to contracts and to the omission. Ashcroft, Andreiu v. only not with organizations but also (9th Cir.2001) (en banc). grants contracts and “for benefit of provide did 450e(b) Indians.” 25 U.S.C. (emphasis provisions to enforce the of the IS- added). reason, For that potential all DEAA federal officials who are defendants would be organizations. responsible administering non-Indian, When a pri- defendant self-determination contracts. vate would conflict with parallel 450m-l. The absence provi- the statutory purpose of promoting tribal sion respect recipients grant self-governance. However, many not—if funds, Authority, such as the strongly im- agreements most—of the subject §to 450e plies did pro- not intend to involve a contractor grant recipient a private right vide against action them. organization. an Indian is Congress mani- In summary, Congress so, did not intend to festly thought it because referred first provide private right a of action under to and organi- contracts with Indian § against grant recipient a by a dis- zations. Additionally, self-determination appointed job applicant. Thus, Indian contracts, the primary the type of contract supports second Cort factor Act, of governed by absence are definition a private right § of action under 450e. contracts with organizations. tribal § 450b(j). Consequently, U.S.C. the third Purpose Legislation C. factor Cort disfavors the implication of a The third § us to action under answer 450e. whether would be consistent with the argues, correctly, Plaintiff that Indian underlying legislative purpose of 450e to tribal autonomy is purpose not sole imply a right of action. The an- ISDEAA. Another is to in- swer to that question weighs likewise in crease participation of individual Indi- holding favor of a that there is no such federally programs. ans run See 25 right. 450a(a) obligation U.S.C. “the (recognizing above,

As discussed Congress’ stated of the United to respond States purpose in enacting the ISDEAA strong was to expression people Indian increase Indian tribal autonomy running assuring self-determination by maximum federally programs. administered See Da participation Indian of ... direction Project wavendewa Salt River Agric. Federal services to Indian so communities Improvement Dist., & Power 154 F.3d as to render such responsive services more 71-72, Pueblo, at 436 U.S. of those communi- desires the needs and

to The Court permitting true that ties”)- it is Although Indian quasi- to enforce the claim that the tribes remain recognized an individual to en- might which, by government serve sovereign nations of Indians greater structure, culture, numbers of sover- source sure and has -in- Supreme Court many ways foreign to employed, eignty are that, Congress seeks the federal “[w]here institutions of structed constitutional statute, [Ejfforts in a objectives single, dual promote governments.... state and usually hesitant more than apply must be the statu- judiciary courts the federal a from its silence in a civil infer prohibitions tory purpose, that, serving legislative one substantially interfere with while context Clara the other.” Santa a ability disserve to maintain itself as will a tribe’s Pueblo, at 98 S.Ct. 1670. entity. culturally politically distinct just such situation. Therefore, gov- although federal law Id. affairs, courts role of “the erns Remedy Federal Appropriateness D. among between adjusting relations ... [is] and their members tribes also fourth Cort factor Finally, the- 1670.2 Id. S.Ct. strained.” there is a holding weighs against Pueblo, disappointed Clara right of action for As Santa action analysis permitted rests Again, expressly job applicant. In view de- or Indian tribe. potential that most an Indian proposition aug- overarching desire to Congress’ 450e would in an action fendants autonomy through the IS- organizations ment be Indians or DEAA, factor does that to be the fourth Cort Congress fully expected of a implication support case. 450e. under U.S.C. Pueblo, Supreme Clara Santa 1302(8), which analyzed 25 Remedies E. Available exercising “in

prohibits an Indian tribe fac- summary, three of the four Cort from self-governance” powers conclusion that tors dictate juris- its “deny[ing] any person within to create a did intend not or protection its laws equal diction the § action to enforce U.S.C. prop- any person liberty depriv[ing] noncompli- alleged grant recipient The erty process due of law.” without prefer- ance with 1302(8) for decision was whether issue does not detract The fourth factor ence. for its created thus affirm from our conclusion. We heavily on the Relying enforcement. summary judg- grant of court’s district factor, concluded the Court fourth Cort ground. ment on that that, silence on congressional the face however, note, the absence of matter, We enforcement of the § 450e Clara direct to the tribes. Santa should be left Pueblo, power plenary retains when Clara Unlike in enforcement Santa —which about federal entirely Indian affairs—is silent to the is left over. of the statute here enforcement, below, because, we should be loathe to judicial HUD has as discussed tribes administrative existence an containing ad- it. The promulgated regulations infer Nonetheless, does not necessari- into tribal affairs remedy. the basic intrusion ministrative judicial justify intrusion. ly imply or an added principle Clara Pueblo of Santa remains: aggrieved does leave an Indian by a mination contract —had breached the con- grantee’s NAHASDA unlawful administra- provision tractual that was included in the tion of the Indian without a pursuant 450e). contract to 25 U.S.C. That is remedy. because NAHASDA Although we cannot tell from the record block contain their own remedial us pursued before whether Plaintiff an ad- scheme, by established regulation. HUD remedy, ministrative we need not answer Title provides: 24 C.F.R. 1000.54 factual to decide this case. following procedures applica- or not pursued Whether Plaintiff an ad- complaints ble to arising any out of remedy, ministrative he not enforce the methods of providing for Indian § 450e through a court action damages. preference contained in part, this includ- ing alternate methods. policies Tribal CONCLUSION that meet or requirements exceed the Congress did not create a direct apply. section shall private right of action under 25 U.S.C. (a) complaint Each in writing, shall be job 450e for an applicant when a signed, and filed recipient. with the non-Indian is hired instead of the appli (b) complaint A must filed with the Rather, cant. the applicant must resort to recipient no later than days 20 calendar those remedies established the terms of (or omission) from the date of the action the contract or grant itself. The district upon which the complaint is based. court’s order granting summary judgment (c) Upon receipt of a complaint, the recipient shall promptly stamp the date AFFIRMED. receipt upon time the complaint, immediately acknowledge its re- FLETCHER, BETTY B. Circuit Judge, ceipt. dissenting: (d) Within 20 days calendar of receipt majority holds there is no im- complaint, of a recipient shall either plied right of action for a Native meet, or communicate mail or tele- American to enforce a violation of the Indi- phone, complainant with the in an effort an employment preference requirement recipient resolve matter. The 450(e)(b). contained Be- shall make a determination on a com- majority’s position contrary plaint notify complaint, in writ- precedent settled and effectively eviscer- ing, days within calendar of the sub- ates a statutory preference duly enacted complaint mittal of the recipient. by Congress, I dissent. The of recipient decision the shall consti- tute final administrative action on the I.

complaint. Similarly, an Indian aggrieved by fail the majority’s analysis The gives lip service party ure of to, a to a self-determination con misapplies, fundamentally the four- tract to administer Ash, preference the re Cort v. factor test set forth 422 quirement properly may 66, a remedy 2080, have 95 U.S. S.Ct. 45 L.Ed.2d 26 (1975). directly under the terms of the contract. Beginning with the prong, first Ctr., See Schmasow v. Native Am. 293 there can be little that 450e 382, 304, (1999) Mont. 978 P.2d 305-06 was enacted for special the benefit of a (analyzing whether the defendant —a re class of which a Solomon is member. The cipient of federal funds a self-deter- Supreme language, Court’s in both Cort

1202 to make self-government of Indian Chicago, v. Univ. and Cannon needs (1979), responsive to the more 1946, the BIA L.Ed.2d 677, S.Ct. prefer- “a The groups- inhere to must constituent its that the benefit specifies in a to Indians class,” “specific ence, granted individuals is applied, not as special satisfy but, the test. class,” rath- group, in order racial special as a discrete not pre does wording of operative quasi-sovereign er, The as members employ a required It enacts are cisely that: and activities whose lives entities favor training preference ment fash- unique BIA in a by the governed common It strains applicants. Indian Here, is reason- preference the .... ion otherwise provision, to construe sense legitimate, ato directly related ably and members individual referring to than prin- This the goal. is nonracially based Accord Can Indians. class of special ab- is generally that cipal characteristic 13, S.Ct. & n. non, at 690-93 441 U.S. dis- racial forms of proscribed from sent statutes between (distinguishing crimination. benefit, or public general speak to 2474; id. at see also at Id. conduct, discriminatory simply ban (“The preference 94 S.Ct. 2474 553 n. “phrased terms are those that con- group a “racial” towards not directed benefited”); First Pac. see also persons instead, “Indians”; applies sisting of Heifer, 224 Inc. v. Bancorp, “federally recognized” only to members cases, Cir.2000) (“In we our own in- many operates to exclude tribes. factor of the the first have determined racially to classified who dividuals there is an when is satisfied Cort test sense, prefer- In this as “Indians.” for to the individuals reference explicit in na- than political rather racial ence is enacted.”). the statute was whose benefit ture.”). was con- Mancari Court The char- majority’s disagree I with also employment Indian cerned with whether as somehow stand- of Mancari acterization discrimi- invidious constituted preference employment that an ing proposition did not race. It nation on basis of individual per se preference is pref- employment Indian whether address is not what the put, this right. Simply all, less at much conferred erence sen- majority takes one The case holds. in court. it as and characterizes of context tence out hold- case. Mancari’s holding mis- This, then, majority’s first is ing preference patently factor first take: The Cort consti- Affairs was in the Bureau of Indian in favor of weighs It “equipoise.” whether to do nothing had with tutional action. Rather, the “right.” preference factor, agree I to the As second argument held, response legis- majority to this extent: as to § 450e is silent history of lative discrimina- racial quirement was “invidious However, my agreement enforcement. that it tion,” majority suggests ends there. was not: silent, (I) history is legislative because characterization made Contrary to the (2) intention expresses an 450a does not by appellees, this (3) and self-governance, promote Indian to In- discrimination.” “racial constitute right of Congress provided a preference. deed, a “racial” it is not even in 25 explicitly officials federal criterion Rather, it is an 450m-l, factor— second to further reasonably designed legislative weighs against implying maining two factors is warranted. Oliver intent — I disagree. here. Corp., 1220, 1224 Sealaska 192 F.3d Cir.1999) (citing Touche Ross & Co. v. First, legislative silence is not enough, Redington, 442 560, 575, U.S. itself, support to an inference against (1979)). 61 L.Ed.2d 82 providing right of action. See Cannon, at 99 S.Ct. 1946 As to factor, the third Cort already as (“[I]n ... situations which it is clear above, § discussed 450e has at least two granted that federal law has class important underlying legislative purposes. persons certain it rights, is not necessary 450e(b) The text of speaks directly to an to show intention to create a the furtherance of one of these purposes action, although cause of an explicit pur- by requiring that, “to greatest extent pose deny to such cause of action be would preferences feasible ... opportunities and (internal controlling.”) quotation marks training and employment in connection omitted); see also First Pac. Bancorp, with the administration of such contracts (“The F.3d at 1124 absence of a statement or grants given shall be to Indians.” of intent to create a remedy does not While can there be no question that the necessarily remedy mean that no is avail- promotion of tribal autonomy is another Indeed, case, if able. that were the ISDEAA, text Supreme Court would not developed have perforce constrains tribal autonomy itself a test implied private for an right of ac- by imposing the pref- tion”). erence in place. the first It logic strains say common sense to that the statuto- Second, I majority’s find the argument text, ry (and duly by Congress enacted to about references Indian self-gover- under constitutional or challenge other nance persuasive no more context here), legitimate, but rights application than its to the first Cort factor. explicitly conferred the statute Section 450a does importance discuss the enforced federal court because en- of Indian self-determination to “the Indian them, forcing opposed merely confer- people as a whole” and “individual Indian them, ring will burden autonomy tribes,” also speaks the same time impermissibly. ensuring orderly about “to transition meaningful effective and participation by presents case an entirely different people planning, conduct, scenario from Santa Clara Pueblo v. Mar- programs administration of’ ser- tinez, fact, vices. confers some bene- (1978), L.Ed.2d 106 on majority which the fits “the Indian people as a whole” and relies for the proposition that there can be others on participants individual Indian implied no cause of finding action where programs to be administered. It one arguably would disserve another statu- simply disingenuous suggest otherwise. tory purpose. At the heart of Santa Clara therefore, Pueblo My analysis, could not is that lie first closer very to the core of the weighs concept Cort factor in favor of a action, and the second self-determination: of In- factor is silent. that, The law of this dian Circuit is tribes determine is a who member when the first point two Cort factors of a tribe and who is not. The Court held directions, conflicting analysis of the re- implied there was no private right of pref- requires that provision Act1 Rights Civil the action of one to advance creating a federal erences Indians because at odds would be “plainly action A of in context purposes. this those protecting goal of congressional the with of 450e. the advances Clara Santa self-government.” tribal factor asks fourth Cort Finally, the (em- Pueblo, at 98 S.Ct. 436 U.S. in remedy appropriate a federal whether added). conceive of It is difficult phasis in this district court this context. As self-govern- to tribal central more an issue au- plenary has recognized, case self-determination. than ment affairs. See American thority over Native hand, the case, other on the In this Gen. Contractors Chapter, Assoc. Alaska the enforcement majority concludes Pierce, 1167 n. Am. v. statutory employment federal specific a Cir.1982) (“The of Con- plenary power autonomy tribal so undermines preference problems of special gress to deal with eviscerating that as to warrant generally implic- explicitly and is drawn both Indians In addition to by judicial fiat. preference itself.”) (citing statutory itly from the Constitution canon violating a fundamental 551-52, trumps gen Mancari, specific at construction —the U.S. Laundry Machine eral, v. Bock 2474). Moreover, see Green unlike Santa Clara Co., Pueblo, anyone a case where this is not (1989) is sim conclusion L.Ed.2d — this a of the statute is that enforcement argues balancing prob wrong. If there is ply “left to the tribes”— entirely matter to be autonomy undermining tribal lem promulgated administrative HUD here, Con resolved problem NAHASDA block scheme for enforcement employment prefer gress enacting in it raise the Santa Clara Nor grants. does aggrieved individuals to Allowing ence. tribal issues whether core Pueblo issue of certainly preference to enforce sue context from the tribal should be removed self-government not undermine tribal does in forum. adjudicated a federal conferring preference than any more Rather, simply gives place. first Rather, raises the issue this case Congress’s mandate allowing effect to housing authority whether preference. enforcement money is conduct- cipient grant of federal consistently with hiring procedures any ing serves its Enforcement fur- most do—will multiple purposes of a federal requirements statute. —as hin- arguably objectives ther some while court of federal federal enforcement say that no To dering others. ap- grant and federal schemes statutes warranted right of action could ever be propriate. the Court context is extreme. While

this I hold three of four would have been Pueblo well Santa Clara of, against, weigh favor factors job of the courts that it is not the correct here, and the fourth right of objectives competing legislative to balance I find a is silent. would that scenario is equal weight, action to enforce Here, statute with we have a broad case. § 450e. provision of statutory

multiple specific and a purposes one at issue here. 436 structure than 1. It should also be noted that the made 65-72, totally backdrop 98 S.Ct. 1670. this decision statutory legislative history and different 1205 (1938) 459, II. 82 L.Ed. 638 (noting long “the judicial settled rule of administration that My remedy would be to remand for no judicial one is entitled to relief for a consideration of Solomon’s claim. Solomon supposed or injury threatened until the proceed not be able to with his claim prescribed administrative remedy has if administrative he has not exhausted his exhausted”); been McKart v. United prior filing plain remedies suit. The States, 185, 193-95, 395 U.S. 24 C.F.R. language 1000.54 reflects (1969); 23 L.Ed.2d 194 Marshall v. Bur- its administrative scheme is both Northern, Inc., lington 595 F.2d 513 mandatory and applicable to Solomon’s (9th Cir.1979) (“It is well established in complaint. The regulation title of the is: administrative law that before federal (iWhat procedures apply complaints court question considers of an agency’s arising any out of pro methods jurisdiction, judicial sound policy dictates viding preference?” for Indian regu that there be an exhaustion of administra- lation specify: on to goes remedies.”); tive General Atomics v. Unit- (a) Each complaint shall writ- Comm’n, ed States Regulatory Nuclear ing, signed, and filed recipient. with the Cir.1996). (b) complaint A must be filed with the Accordingly, matter, as a threshold recipient days no later than 20 calendar district court would have to determine (or omission) from the date of the action whether Solomon had exhausted his ad- upon complaint which the is based. ministrative prior remedies to filing suit. (c) Upon receipt of a complaint, the The answer is unclear from the record now recipient shall promptly stamp the date before us. If the district court finds ex- receipt upon time of complaint, haustion, proceed would then to the and immediately acknowledge its re- merits of Solomon’s claim. ceipt. (d) days Within calendar receipt III. complaint, of a recipient shall either meet, or by.mail communicate or tele- I fully acknowledge pres- that this case phone, complainant with the in an effort ents a that is far from straight- to resolve the matter. recipient forward. The fundamental mandate to shall make a determination on a com- liberally construe Indian-law statutes plaint notify complainant, Indians, favor of Montana v. Blackfeet writing, within 30 calendar days of the Indians, 759, 766, Tribe of the complaint submittal recipi- (1985), S.Ct. 85 L.Ed.2d 753 does not ent. The recipient decision shall provide when, here, ready answer constitute administrative final fall on interests both sides of the complaint. However, issue. in the case of the IS- (2002) DEAA, C.F.R. 1000.54 (emphases 450e, add- and specifically ed).2 Myers also Ship- spoke See clearly explaining Bethlehem the balance of Corp., 50-51, building competing S.Ct. interests. The ISDEAA has majority 2. The housing authority writes that we need not be initial decisionmak- —the finding private right concerned about change no er—to its mind toas its own decision. action in federal job court because Indian The notion option that this administrative applicants to, have this avenue of equivalent remediation somehow or a valid substitute open for, "remedy” to them. Note that this es- of action in court is simply sentially request consists of a wrong. formal implements § 450e purposes, multiple feasible, where preference, Al- job applicants. of Indian favor authorized, -explicitly

though and fur- is consistent employment pref- requirement

thers the seeks to majority for Indians.

erence judgment own

substitute its trumps Congress’s

self-determination job prefer- of Indians’

mandate I dissent. Accordingly,

ence. America, STATES

UNITED

Plaintiff-Appellee, HERNANDEZ, Defendant-

Rosa

Appellant. 01-10557.

No. Appeals,

United States Circuit.

Ninth 1, 2002. Nov.

Argued and Submitted 23, 2002.

Filed Dec.

Case Details

Case Name: Vernon Solomon v. Interior Regional Housing Authority

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 20, 2002

Citation: 313 F.3d 1194

Docket Number: 01-35766

Court Abbreviation: 9th Cir.