Northern Arapaho Tribe v. LaCounte et al
ORDER. IT IS ORDERED, NATs Motion for a Temporary Restraining Order and Preliminary Injunction 114 , is DENIED. Signed by Judge Brian Morris on 3/7/2017. Associated Cases: 1:16-cv-00011-BMM, 1:16-cv-00060-BMM (EMH)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
NORTHERN ARAPAHO TRIBE, for
itself and as parens patriea,
CV-16-11-BLGS-BMM and CV-16-60BLGS-BMM (Consolidated)
DARRYL LaCOUNTE, LOUISE
REYES, NORMA GOURNEAU, RAY
NATION, MICHAEL BLACK, and
other unknown individuals in their
individual and official capacities.
ORDER on Plaintiff’s Motion for a
Temporary Restraining Order and
I. Procedural Background
Plaintiffs Northern Arapaho Tribe (“NAT”) allege that Defendants violated
their right to self-govern when Defendants converted NAT’s funds and federal
funds and programs established by Congress for the benefit of NAT. (Doc. 1.)
NAT named Darrly LaCounte, Louise Reyes, Norma Gourneau, Ray Nation and
Michael Black in their individual and official capacities. These Defendants
(“Federal Defendants”) hold positions with the Bureau of Indian Affairs (“BIA”).
NAT seeks declaratory and injunctive relief related to the awarding of self-
determination contracts along with the establishment of a constructive trust that
would serve as a vehicle to recover allegedly converted funds. (Doc. 1 at 22–25.)
The Court has consolidated the above case (CV 16-11) with a related, but
different case (CV 16-60), concerning the BIA’s declination of NAT’s proposal to
contract for judicial services separate from the Eastern Shoshone Tribe. (Doc. 90.)
NAT has filed a Motion for Temporary Restraining Order (“TRO”) and
Preliminary Injunction in the consolidated cases. (Doc. 114.) NAT requests a TRO
or preliminary injunction that essentially would restrict the court that the BIA has
instituted on the Wind River Reservation (the “C.F.R. Court”) from interfering
with the NAT Tribal Court. Id.
II. Factual Background
The Shoshone Tribe and the United States entered into a Treaty on July 2,
1868. 15 State. 673. The treaty established the Wind River Reservation “for the
absolute and undisturbed use and occupation of the Shoshonee [sic] Indians.” 15
State. 673. The United States resettled the Eastern Shoshone Tribe (“EST”) on the
Wind River Reservation. The United States forced NAT onto the Wind River
Reservation in 1878.
The tribes share the Wind River Reservation. Each tribe governs itself by
vote of its tribal membership at general council meetings or by vote of its elected
business council. N. Arapaho Tribe v. Hodel, 808 F. 2d 741, 744 (10th Cir. 1987).
No member of one tribe may hold office or legislate for the other tribe. The tribes
have not entered into a joint constitution to consolidate their respective
governments. (Doc. 17-8.)
NAT and EST previously had authorized and implemented a joint tribal
court system known as the Shoshone and Arapaho Tribal Court. (Doc. 127 at 16.)
The BIA awarded 638 self-determination contracts to EST to provide the Shoshone
and Arapaho Tribal Court with federal funds. The last 638 Contract awarded to
fund the Shoshone and Arapaho Tribal Court expired on September 30, 2016.
(Doc. 123 at 10.) NAT and EST then submitted separate 638 contract proposals to
jointly operate the court. The BIA rejected these proposals on the basis that neither
proposal had been approved by both tribes. Id.
The Shoshone Business Council (“SBC”) purported to withdraw the EST’s
recognition of the Shoshone and Arapaho Tribal Court by Tribal Resolution on
October 6, 2016. Id. at 11. The Tribal Resolution also requested that the BIA
institute a Court of Indian Offenses (“CFR Court”) on the Wind River Reservation.
Id. The BIA instituted a CFR Court on the Reservation on October 18, 2016, and
announced that “it was proposing a protocol to govern the allocation and transfer
of cases” between the NAT Tribal Court and the newly established CFR Court. Id.
The BIA and the NAT have since exchanged draft Memorandums of
Understanding (“MOU”) that outline protocol for the interactions between the two
court systems. NAT and the BIA have yet to agree or authorize an official MOU.
Id. at 12.
The NAT submitted a proposal in January of 2016 for a separate 638
contract to fund judicial services provided by the NAT Tribal Court to NAT tribal
members and others within the jurisdiction of the court. (Doc. 115 at 11.) The BIA
denied this proposal in April of 2016. Id. The declination serves as the subject of
the CV-16-60-BMM case that is consolidated here.
The Shoshone and Arapaho Tribal Court has operated out of Building 109
on the Wind River Reservation “for decades.” (Doc. 115 at 23-24.) The parties
dispute Building 109’s ownership. NAT claims that it owns Building 109 as a
quasi-tenancy-in-common with EST. The Federal Defendants claim that the BIA
manages the building as federal property. (Doc. 127 at 17, 19.) The Federal
Defendants have notified NAT that the NAT Tribal Court is no longer authorized
to use Building 109 in light of the expiration of the 638 contract for judicial
services that terminated on September 30, 2016. (Doc. 123 at 28-29.) NAT seeks to
have the Court prevent the Federal Defendants from ejecting the NAT Tribal Court
from Building 109 as part of its Motion for a TRO and Preliminary Injunction.
III. NAT’s Motion for a TRO and Preliminary Injunction
Federal Defendants characterize the CV-16-11 case as a challenge to the
BIA’s award of 638 contracts to an EST-led body to fund shared tribal services for
the 2016 fiscal year without NAT’s consent. Id. at 13. Federal Defendants
characterize the CV-16-60 case as a challenge to the BIA’s declination of NAT’s
proposals for 638 contracts that would serve only NAT tribal members. Id. Federal
Defendants claim that neither of these complaints concern the injuries alleged or
the relief sought in NAT’s Motion for a TRO and Preliminary Injunction. Federal
Defendants assert that NAT’s Motion alleges instead injuries to NAT’s sovereignty
as a result of the CFR Court’s interference with the NAT Tribal Court. Id. As a
result, Federal Defendants argue that the Court should deny NAT’s Motion for a
TRO and a Preliminary Injunction on the basis that it falls beyond the scope of
either of the consolidated cases in this action. (Doc. 123 at 13-14.)
Federal Defendants cite three cases for the proposition that courts typically
deny TRO motions “based on allegations and claims for relief that are unrelated to
the complaint filed in the case.” Id. at 13-14. Federal Defendants first point to
Allen v. Reid, No. 15-1905, 2016 WL 3136859, at 4* (D. Minn. June 3, 2016). The
court in Allen denied the plaintiff’s Motion for a TRO on the basis that it included
“several new allegations . . . unrelated to the denial of food alternatives and
medical care” alleged in the complaint. Id. at 3*. Federal Defendants next cite to
Clark v. Bank of Am. N.A., No. 14-14-232, 2015 WL 1433834, at *8 (D. Idaho
Mar. 27, 2015). The court in Clark declined to consider the plaintiff’s TRO or
preliminary injunction because the plaintiff’s motion raised “new arguments” that
related broadly to the mortgage-centered conduct at the heart of her complaint, but
raised new, specific allegations. Id.
Federal Defendants cite last to Dennis v. Thomas, No. 09-1317, 2010 WL
3927488, at *1 (D. Or. Oct. 4, 2010). The plaintiff in Dennis had filed a complaint
alleging inadequate medical care at a prison facility. The plaintiff separately sought
a TRO that would prevent the Bureau of Prisons from transferring him during the
pendency of his lawsuit. Id. The court denied the plaintiff’s motion in part because
the relief he sought extended “beyond the scope of the allegations in his
NAT counters that the core dispute in the consolidated cases involves
“whether the BIA can take actions that disregard the sovereign rights of NAT and
its members.” (Doc. 127 at 24.) NAT specifically claims that Federal Defendants
seek to displace the NAT Tribal Court, and that Federal Defendants’ actions
constituting the displacement comprise this Motion for a TRO. Id. NAT asserts
that the Motion for a TRO relates to the declination action because Federal
Defendants will use the displacement of the NAT Tribal court to argue that the
CFR Court rightfully has used all 638 contract funds allocated for NAT and EST.
Id. NAT alleges that the BIA justifiably would have denied NAT’s 638 Contract
proposal had all funds already been allocated to the CFR Court. Id.
NAT’s characterization of the two consolidated cases and Motion for a TRO
as challenges to the BIA’s interferences with NAT sovereignty proves too broad.
An attenuated connection exists between the declination action and the subject
matter of the TRO. This weak relation fails, however, to place the Motion within
the scope of the declination action complaint. The Court in Clark determined that a
TRO alleging new injuries related to the mortgage subject matter of the complaint
nevertheless fell outside of the scope of the complaint. Clark, 2015 WL at *8. The
Court in Dennis also determined that new injuries contained in the motion for a
TRO placed it outside of the scope of the complaint, even though the plaintiff
credibly alleged that the potential injuries eventually could be traced back to the
medical injuries set out in the complaint. Dennis, 2010 WL at *1.
NAT similarly alleges new interferences with its sovereignty in its Motion
for a TRO. NAT asserts that Federal Defendants interfere with NAT’s right to
operate a tribal court with its own funds. The Federal Defendants’ right, or lack
thereof, to take allegedly interfering actions could affect the declination case to the
extent that the Court would choose to circumscribe the CFR Court’s budget. Such
a circumscription could impose a duty on Federal Defendants to award remaining
funds to the NAT Tribal Court through 638 contracts.
This potential effect on the declination action proves insufficiently direct,
however, even if the Court were to limit the CFR Court’s actions and budget. The
declination action concerns ISDEAA and 638 contract awarding procedure. The
Motion for a TRO concerns BIA regulations and the Federal Defendants’ alleged
interference with the NAT Tribal Court.
The Motion for a TRO and Preliminary Injunction and the consolidated
declination action present distinct facts and address distinct governing statutes and
regulations. The Court determines that the Motion for a TRO and Preliminary
Injunction falls beyond the scope of either Complaint in this consolidated action.
Federal Defendants argue that only NAT’s assertion that the NAT Tribal
Court has a right to occupy Building 109 represents a ripe claim. (Doc. 123 at 14.)
Federal Defendants assert that the Court possesses no jurisdiction over NAT’s
Motion based on the unripe nature of most of NAT’s claims. Id. Federal
Defendants cite to Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998),
that outlines the relevant ripeness standard. The U.S. Supreme Court in Ohio
Forestry directed that a court consider the following in determining whether a case
is ripe: “(1) whether delayed review would cause hardship to the plaintiffs; (2)
whether judicial intervention would inappropriately interfere with further
administrative action; and (3) whether the courts would benefit from further factual
development of the issues presented.” Id.
Other than NAT’s Building 109 claim, all allegations in NAT’s Motion
concern the transfer and allocation of cases and case information between the NAT
Tribal Court and the CFR Court. (Doc. 114.) Federal Defendants claim that NAT
admits that the BIA and NAT currently are working to reach an agreement on an
official MOU that would govern the interactions between the two courts. Doc. 123
at 14, citing Mem. At 8, 13; Doc. 115-8. The BIA, on behalf of the CFR Court, and
NAT, on behalf of the NAT Tribal Court, have exchanged MOU drafts and
continue to engage in discussions. (Doc. 123 at 12.) Federal Defendants assert that
this ongoing dialogue would be interrupted and undermined were the Court to
grant NAT’s Motion for a TRO and Preliminary Injunction. Id. at 15. The Court
Negotiations concerning the operation of the two courts are ongoing.
Interactions between the courts are, and will be, varied, continual, and contextspecific. An order from the Court would prove an undesirable and perhaps
unwieldy solution, particularly as opposed to a protocol negotiated by the parties.
The Court especially is not the proper arbiter for the dispute while the parties
continue to negotiate an MOU. An MOU would provide a set protocol that the
Court could evaluate. The addition of an MOU to the factual record would aid the
Court in coming to a more accurate, useful resolution to the issues presented.
The Court concludes that NAT’s Motion for a TRO and Preliminary
Injunction falls beyond the scope of the complaints in either of the two
consolidated cases in this action. The Court further determines that all of NAT’s
claims, except its claim to occupy Building 109, prove unripe.
Accordingly, IT IS ORDERED:
NAT’s Motion for a Temporary Restraining Order and Preliminary
Injunction (Doc. 114), is DENIED.
DATED this 7th day of March, 2017.
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