Ninth Circuit Denies Los Coyotes Band's Self-Determination Act Claim for Law Enforcement Funds

On September 4, 2013, the Ninth Circuit Court of Appeals held in Los Coyotes Band v. Jewell that the Los Coyotes Band of Cahuilla and Cupeño Indians had no claim against the government based on the Bureau of Indian Affairs (BIA) rejection of the Tribe’s request to contract law enforcement services. In short, the Court determined that since the BIA did not carry out or fund a law enforcement program for the Tribe—given that California is a Public Law (PL) 280 state—there was no currently existing program conducted by the BIA that the Tribe may take over under the Indian Self Determination and Education Assistance Act (ISDEAA). Furthermore, the ISDEAA cannot be used to force the BIA to create and fund a new law enforcement program on the Tribe’s reservation. Under these circumstances, the Court held that the BIA properly declined the Tribe’s proposal on the ground that “the amount of funds proposed under the contract is in excess of the applicable funding level under 25 U.S.C. 450f(a)(2)(D).” The Court also rejected the Tribe’s claims that: (1) the BIA allocation system was arbitrary and capricious under the Administrative Procedures Act (APA) and (2) violated equal protection.

In this case, the Tribe asked the BIA to fund an ISDEAA contract for law enforcement services, as the State of California and the County of San Diego had failed to adequately protect tribal citizens. The BIA denied the request pursuant to Section 450f(a)(2)(D) of ISDEAA because the amount of funds proposed under the contract exceeded the funding level for the contract, as determined under Section
450j-1(a). The BIA explained that since it “generally does not allocate funds for direct law enforcement services to tribes in PL 280 states,” its funding for Los Coyotes was zero.

The Court relied on Section 450j-1(a)(1) of the ISDEAA to uphold the BIA’s funding decision. That Section provides that the “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 . . .” The Court interpreted this language to only require the Secretary to fund the proposed contract with the amount that the BIA would have otherwise spent on the program—in this case, zero dollars. The Court also rejected the Tribe’s argument that the BIA’s failure to fund law enforcement on the Tribe’s reservation was arbitrary and capricious and thus violated the APA. The Court held that this argument was foreclosed by the Supreme Court’s decision in Lincoln v. Vigil, 508 U.S. 182 (1993), which prevented APA review of such discretionary allocations. Since the BIA received lump sum appropriations for law enforcement services, the Court held that the BIA was free to decide how to allocate those funds and it was up to the Tribe to show a “specific appropriation” for law enforcement on its reservation, or some language that deprived the BIA of discretion to allocate the funds. Since the Tribe had shown neither, the BIA was free to allocate the funds as it deemed necessary.

The Ninth Circuit’s opinion overturns the district court’s decision that held the BIA could not discriminate against tribes in allocating and contracting law enforcement funding based on their location in states covered by PL 280. The Ninth Circuit rejected this holding and expanded the federal government’s discretion to reject applications for ISDEAA contracts if the federal government is not currently funding the requested program covered by the contract at a particular tribe. The Court’s reasoning sidesteps the fact that there is a contractible program at the BIA for law enforcement services and instead holds that the determinative factor is whether there is funding for a particular law enforcement program at a particular tribe. If not, then the government has no obligation to reallocate funds so that it can contract for those services with a tribe not already funded. This holding undermines the ISDEAA’s goal of reducing “federal domination of Indian service programs,” 25 U.S.C. §§ 450(a)(1), by allowing the BIA to limit programs, such as the provision of law enforcement services, on a tribe-by-tribe basis, based on previous discretionary allocations of program funding.

While this holding precludes use of the ISDEAA to force the BIA to create and fund a program which a tribe or tribal organization may then contract to carry out, the holding is likely to be limited to that particular context. The holding does not preclude tribes or tribal organizations from contracting programs, functions, services, and activities (PFSAs) which the BIA already carries out directly at a particular funding level. Subsection 450j-1(a)(1) mandates that the BIA fund an initial contract at not less than the BIA would otherwise have provided for operating the PFSA directly. However, a contracting tribe or tribal organization may renegotiate contract funding for subsequent years to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the tribal organization under Subsections 450j-1(b)(5) and 450j(c)2 of the ISDEAA.

The Court did note that tribes had “broad discretion to administer a variety of programs,” including law enforcement, under self-governance compacts that provide tribes with single funding agreements. (Opinion at 11 n.3.) In addition, the Court notes that the Tribal Law and Order Act affords tribes the ability to petition the Attorney General to reassume concurrent criminal jurisdiction over their lands. However, the lack of funding for programs in the Tribal Law and Order Act makes this an empty option for many tribes. The Court took great pains to acknowledge the problems with crime and policing in Indian Country, repeatedly citing the statistics showing the prevalence of violence and lawlessness due to jurisdictional and funding problems. Yet, the Court refused to hold that the ISDEAA or the APA can be used to hold the government accountable for its failure to help remedy these problems by ruling against the Tribe. “If the question is whether the BIA should have spent money on law enforcement on the reservation, it is simply not our role to answer,” claimed the Court, noting they doubt funding is adequate.

The Los Coyotes Band may now petition for a rehearing of this case, an en banc hearing by a larger panel of Ninth Circuit judges, or petition the U.S. Supreme Court for review. None of these options appear likely to succeed, but we will continue to monitor this case and others related to this issue (such as Hopland Band v. Salazar, which was stayed in the Northern District Court of California pending this decision).

Please see General Memorandum 11-128 (November 4, 2011) for our report on the lower court’s decision. If we may be of further assistance regarding the Los Coyotes Band v. Jewell decision, please contact us at the information below.