The United States Court of Appeals for the Federal Circuit issued a decision on May 8, 2015, arising under Title I of the Indian Self-Determination and Education Assistance Act (ISDEAA). The decision ultimately affirmed the dismissal of the Yurok Tribe’s claims that the Bureau of Indian Affairs (BIA) was required to award a Title I contract after failing to respond to the contract proposal. The opinion includes a discussion on the scope of programs, functions, services and activities (PFSAs) that may be included in a Title I contract and suggests that, in the view of the Federal Circuit,
Title I contracts may include PFSAs that the BIA was not previously operating. The precedential value of this discussion, however, is questionable.
The Yurok Tribe submitted a letter to the BIA in October of 2011 requesting funding under Title I of the ISDEAA for the Tribe’s Department of Public Safety and Tribal Court. Though there was subsequent communication between the Tribe and the BIA, during which the BIA requested clarifying information, the BIA never formally approved or declined the Tribe’s request. The ISDEAA and the Department of the Interior’s regulations provide that if the Secretary does not decline a Title I contract proposal within 90 days, the proposal is deemed approved and the Secretary must award the contract. In March 2013, the Tribe submitted a letter to the BIA seeking award and performance of a Title I contract pursuant to its October 2011 request. The BIA responded that the October 2011 letter did not qualify as a Title I contract proposal, and that even if it had, the Secretary would have declined it.
The Tribe then filed an action in the Civilian Board of Contract Appeals (CBCA), which has jurisdiction over ISDEAA contract disputes, alleging that a Title I contract had been formed by operation of law and that the BIA had failed to perform on the contract. The Tribe also filed an appeal with the Interior Board of Indian Appeals (IBIA), which has jurisdiction over pre-award disputes, but that appeal was stayed pending the CBCA’s decision.
The CBCA agreed with BIA that the October 2011 letter did not clearly propose a Title I contract and, therefore, the 90-day deadline for the BIA to respond to a contract proposal was never triggered. The CBCA also concluded that, even if the letter was a Title I proposal, Title I contracts are limited to PFSAs that the BIA had already been performing for the Tribe. The Tribe’s October 2011 proposal, however, requested funding for programs that the BIA was not providing. The CBCA determined that it had jurisdiction based on the fact that the Tribe alleged the existence of a contract, but dismissed the case on the basis that the Tribe had failed to state any legal claim for relief because there was never a contract.
On appeal, the Federal Circuit disagreed that the Tribe’s October 2011 letter was not a Title I contract proposal, finding instead that the Tribe’s intent was clear and that the BIA was required to notify the Tribe of any deficiencies in the proposal under 25 C.F.R. § 900.8 (which the BIA had not). Therefore, the Federal Circuit found that the 90-day deadline had been triggered by the October 2011 letter. The Federal Circuit also disagreed with the CBCA’s second ground for dismissal, taking a much more expansive view of which PFSAs may be included in a Title I contract. The Federal Circuit reasoned that because 25 U.S.C. § 450f(a)(1)(B) directs the Secretary to enter into a contract for programs “which the Secretary is authorized to administer for the benefit of Indians under the Act of November 2, 1921 [commonly known as the Snyder Act], and any Act subsequent thereto” (emphasis added),Title I contracts may include any program the Secretary is authorized to provide even if the Secretary is not currently providing it.
Ultimately, the Federal Circuit upheld the CBCA’s dismissal, but on the ground that a contract was never formed. Although the Tribe’s proposal was deemed approved after 90 days, BIA never awarded the contract, and only award and payment make the contract effective, said the court. Thus the case presented a pre-award dispute on which the CBCA could not grant relief. The Tribe may, however, pursue its parallel appeal in the IBIA, which decides pre-award disputes.
The Federal Circuit decision is noteworthy not so much for its ultimate holding as for its discussion of the scope of PFSAs that may be included in a Title I self-determination contract. In addition to finding that the language in 25 U.S.C. § 450f(a)(1)(B) permits the Secretary to enter into a contract for any program she is authorized to administer under the Snyder Act, the Federal Circuit also rejected arguments by the government that the definition of “self-determination contract” in 25 U.S.C. § 450b(j) and the funding requirements set forth in 25 U.S.C. § 450j-1(a)(1) prohibit the proposed contract because the BIA was not providing or funding the proposed services to the Yurok Tribe in particular. The precedential value of this discussion, however, is questionable since it arguably was not necessary to the court’s ruling that a contract was never formed.
Please let us know if we may provide additional information regarding this Federal Circuit opinion.
