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Feds fear Wind River injunction that requires them to negotiate with both tribes, appeal states

March 6, 2017

The federal government is claiming a court order requiring it to negotiate with both tribes on the Wind River Reservation in central Wyoming when providing multi-tribal services is placing employees in legal jeopardy.

The government appealed its case to the Ninth Circuit Court of Appeals in California last month, protesting an October court decision forcing the Bureau of Indian Affairs to receive approval from both the Northern Arapaho and Eastern Shoshone tribes before approving funding for reservation services affecting both tribes.

Court: Feds likely broke law in Wind River tribal negotiations The federal government appears to have acted illegally by entering into contracts with the Eastern Shoshone Tribe to provide multi-tribal services on the Wind River Reservation, according to a court order Monday.

Lawyers for the Bureau of Indian Affairs argue that the October decision was unnecessary because the BIA had already agreed to seek approval from both tribes before entering into any new contracts on the reservation.

“The challenged contract renewals were the result of exceptional circumstances,” U.S. Justice Department attorneys Mark Freeman and Weili Shaw wrote in the Ninth Circuit brief. “The BIA will not enter into contracts for shared programs in the future without the consent of both tribes.”

The dispute goes back to 2014, when the Northern Arapaho left the joint body that the two tribes — each of which has independent sovereignty over the same boundaries — had used for decades to work with the federal government.

The BIA subsequently worked exclusively with the Eastern Shoshone Tribe to provide reservation services, citing the difficulty of entering into two separate agreements for services covering the same reservation and the agency’s hope that the Northern Arapaho would return to the joint council.

After it became increasingly clear that the Northern Arapaho were not going to return to the joint council, BIA Wind River Agency Superintendent Norma Gourneau wrote a letter over the summer stating that agency would begin seeking the approval of both tribes before entering into any new agreements.

In October, Montana U.S. District Court judge Brian Morris issued a preliminary injunction putting legal force behind Gourneau’s letter — effectively forcing the government to abide by what it had already pledged to do.

In its appeal to the Ninth Circuit, the BIA argues that the preliminary injunction is unnecessary for just that reason.

“The Gorneau Letter unequivocally states that the BIA will not enter into contracts for shared programs in the future without the consent of both tribes,” Freeman and Shaw wrote.

Morris wrote in his decision granting the preliminary injunction that the Gourneau letter was not a legal document and would not prevent the BIA from entering into future contracts on the Wind River Reservation without approval from the Northern Arapaho.

“The BIA has committed to no legally binding policy that would prevent such approval from happening in the future,” Morris wrote.

BIA attorneys argued in their appeal that while Gourneau’s letter is not technically legally binding, courts have historically presumed “the government is acting in good faith” and that the court should assume the agency will not violate its own stated policy.

But the lawyers further argue that the injunction requiring the government to follow Gourneau’s letter puts employees at risk of being held in contempt of court.

The October order requires the BIA to consult both tribes on contracts impacting “shared services” and the government argues it is too difficult to determine which services are shared and which are meant only for a single tribe given the overlapping nature of both tribal organizations on the shared reservation.

Wind River tribal services up in the air as Northern Arapaho await federal ruling A federal court ruling expected later this month could upend the relationship between the two tribes on the Wind River Reservation.

“Federally funded programs directed at one tribe commonly also benefit or affect the other tribe and its members,” the government attorneys wrote.

The government believes that it risks violating the injunction — or being accused of violating the injunction — if it enters into agreements with the individual tribes and will be forced to negotiate with both tribes for every service provided.

“Given the tribes’ ongoing unwillingness to cooperate in the administration of most such programs, such a determination would likely result in the rejection of the proposals,” Freeman and Shaw stated in the lawsuit.

The lawyers caution this will lead to more programs administered by the federal government rather than the tribes themselves, as happened when the BIA partially took control of the tribal court in the fall. The BIA is asking the Ninth Circuit to overturn the injunction to avoid this situation because federal law compels the BIA to turn over as many reservation programs to tribes as possible.

The Northern Arapaho Tribe has until March 13 to respond to the government’s appeal.