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(Cite as: 2004 WL 3753251 (W.D.Wash.))

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United States District Court,

W.D. Washington.



UNITED STATES DEPARTMENT OF INTERIOR; Bureau of Indian Affairs, Defendant(s).

No. C02-1955P.

Feb. 6, 2004.

Jennifer K. Dewald, Portland, OR, for Plaintiff.

Jo-Ann M. Shyloski, Tim H. Nusraty, US Department of Justice, Washington, DC, Brian C. Kipnis, US Attorney's Office, Seattle, WA, for Defendants.




*1 This litigation is the latest in a series of lawsuits stretching back more than twenty years concerning plaintiffs' struggle for official recognition as a tribe and what rights and obligations arise from that status. The instant case contains two claims for relief: (1) for a mandate compelling the defendant ("Department") "to immediately consult and cooperate with the Tribe in determining the Tribe's needs for federal services, benefits and funding, to develop a budget to fund the Tribe's ... need for federal services and benefits ... and to submit said budget to Congress for appropriation and funding ..." and (2) for money damages "for the amount of federal funding the Tribe would have received under the [Indian] Self-Determination Act from 1996 to the present if the Department had timely consulted with the Tribe and developed a determination of needs and a recommended budget." Second Amended Complaint, ¶¶ 23, 25.

There are three motions presently pending in this matter. The Department has filed a motion to dismiss plaintiff's second cause of action for lack of subject matter jurisdiction. Plaintiff ("the Tribe") has filed a motion for partial summary judgment seeking a declaratory judgment that, as a matter of res judicata or collateral estoppel, plaintiff "has continually existed as a distinct Indian tribe since the time of first sustained contact, and that the Tribe is the successor in interest for all purposes other than treaty fishing rights to the historical Samish Indian tribe." Plaintiff's Memorandum. Defendant cross-moved for an order that the Tribe's summary judgment claims are barred by collateral estoppel and the statute of limitations, and/or that the Court lacks jurisdiction over the claim that plaintiff has been "continually federally recognized."

Having read all the parties' briefing, including the attached exhibits and declarations, and heard oral argument on the motions, the Court makes the following ruling:

IT IS HEREBY ORDERED that the motion to dismiss is GRANTED; plaintiff's second claim is DISMISSED for lack of subject matter jurisdiction.

IT IS FURTHER ORDERED that both motions for summary judgment are DENIED.

IT IS FURTHER ORDERED that defendant file with Court and serve upon plaintiff a copy of the Administrative Record in this matter no later than 45 days from the entry of this order.

I. Background

The genesis of this litigation can be traced back to at least 1979, when the Samish commenced their attempt to achieve federal recognition. In U.S. v. Washington, 476 F.Supp. 1101 (W.D.Wa.1979), aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982), plaintiff was found to not be the historic successor to the Samish tribe for purposes of the fishing rights treaty. In 1982 and again 1987, their request for acknowledgment as a tribe pursuant to newly-adopted federal regulations was denied by the Bureau of Indian Affairs ("BIA" or "the agency").

*2 Plaintiff challenged the propriety of that decision in a series of cases which bounced back and forth between District Court and the Ninth Circuit for 7 years. In August 1995, an Administrative Law Judge issued findings indicating that the Tribe met the mandatory criteria for federal acknowledgement under 25 C.F.R. § 83.7. When that decision was revised by the Assistant Secretary of the Interior, Judge Zilly of this district issued an order in October 1996 reinstating the findings in their entirety.

Upon their recognition in 1996, plaintiff received "New Tribes" funding, money intended to assist them in developing their own tribal government. Plaintiff alleges that this money is allocated without regard to size or need. After three years of New Tribes funding, the BIA "rolled over" the money into a more long-term contract, but the Tribe alleges that it has yet to receive adequate funding to meet its needs and further alleges that the agency has yet to meet with tribal representatives to develop a budget which reflects those needs.

II. Discussion


The Indian Self-Determination Act ("ISDA"), 25 U.S.C. § 450 et seq., grants this Court jurisdiction over "any civil action ... arising under this subchapter" and "over any civil action or claim against the Secretary for money damages arising under contracts authorized by this subchapter." § 450m-1(a). Plaintiff concedes that there is no ISDA contract under which they are bringing suit; they argue instead that this is a case "arising under" the ISDA.

Their argument is not well-taken, however, and a review of the statute leads the Court to the conclusion that, as defendant contends, there is simply no subject matter jurisdiction over this particular claim. The Tribe alleges that they have been discriminatorily labeled a "new tribe" and denied the level of funding that "continuously recognized" tribes have been given. They seek "the amount of federal funding the Tribe would have received under the Self-Determination Act from 1996 to the present if the Department had timely consulted with the Tribe and developed a determination of needs and a recommended budget ..." They maintain that "Samish is and has been entitled to full Self-Determination funding as a continuously recognized tribe and not as a 'new' tribe." (Second Amended Complaint, ¶ 25)

There are two problems with this pleading. First, there is nothing in the statutory language of the ISDA which mandates the agency to "timely consult [ ] with the Tribe and develop[ ] a determination of needs and a recommended budget" or, for that matter, "entitles" a tribe to any funds at all. § 450f(a)(1) only indicates that "[t]he Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct and administer programs or portions thereof ..." The requirement that the BIA consult with a newly acknowledged tribe and prepare a recommended budget is contained in 25 CFR § 83.12(d). Plaintiff has alleged a violation of that section in their First Claim for Relief, which is not before the Court at this time. The ISDA, however, is silent on the agency's duty to consult with a tribe and develop a budget--it is legislation devoted to the formation and implementation of contracts.

*3 What the Tribe completely fails to allege in their second cause of action is that they ever applied for an ISDA contract. Even if they had applied for such contracts and been turned down, there is a mechanism spelled out in the statutory scheme [§ 450f(b) ] for an administrative appeal of such a refusal. Not surprisingly, there is no evidence that plaintiff exhausted their administrative remedies prior to filing their lawsuit, either.

The second problem is that plaintiff has failed to allege factual circumstances which, if true, would constitute a violation of the ISDA. Plaintiff claims in its briefing that "the Department of Interior's position is that the Samish Tribe is ineligible to enter into a contract with the BIA (Response to Mtn to Dismiss, p. 5) and that "the BIA has taken the position that the Samish Tribe is not entitled to enter into one of these ISDA contracts because the Samish Tribe is a 'New' Tribe." (Response, p. 6). Not only is this allegation completely missing from their complaint, but they present no documentary or testamentary evidence that supports this contention. Nor is there any language in the statute which discusses eligibility or differentiates between "new" tribes and any other kind of tribes. Finally, the BIA has admitted in its pleadings and at oral argument that the Tribe is eligible to contract under the ISDA.

The Tribe appears to have confused "eligibility" with "entitlement." The statute directs the Secretary to enter into a self-determination contract "upon request of any Indian tribe by tribal resolution." § 450f(a)(1). "Indian tribe" is defined as "any Indian tribe, band, nation or other organized group or community ... which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians ..." § 450b(e). The Tribe would certainly appear to qualify under this definition and, indeed, the government does not dispute that they are eligible. Nowhere in the ISDA, however, does it guarantee that an eligible tribe applying for contract will be granted one. In fact, as pointed out above, there is an entire procedure devoted to a tribe's appeal rights in the event they are turned down.

Plaintiff having failed to demonstrate (1) that the defendant has in fact declared them ineligible to contract or (2) that the statute under which they are suing guarantees them rights which they have been denied, the Court has no alternative but to find that no subject matter jurisdiction exists under this cause of action (i.e., this case does not "arise under" the ISDA), and to dismiss it on those grounds.


Plaintiffs want to tie their allegedly discriminatory lack of ISDA funding to the BIA's failure to recognize their "continuous tribal existence" and their status as a successor in interest to the historical Samish tribe. For their part, defendant seeks a ruling that, as a matter of law, plaintiff is precluded from raising the issues of their continuous existence and their successor status on grounds of collateral estoppel and statute of limitations.

*4 It is hard to escape the impression that old battles are being re-fought on new turf. Whatever the motivation, both plaintiff's and defendant's motions present issues which are totally collateral and irrelevant to the issues raised in this lawsuit. Regardless of whether the Tribe as been in continuous existence, irrespective of whether it is the successor in interest to the historical Samish tribe, it is federally recognized and eligible to contract for ISDA contracts. Plaintiff claims eligibility, defendant concedes it, and the Court so holds.

The requirement that no "material" fact be in dispute is determined by applicable substantive law. "[I]t is the substantive law's identification of what facts are critical and what facts are irrelevant that governs." [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).] Rutter, Federal Civil Procedure Before Trial, 14:48a(1).

The ISDA is the substantive law at issue here and it says nothing about the need for "continuous recognition" or "successor in interest" status as a precondition for eligibility to contract. Neither of these concepts are material to this litigation, therefore there is no disputed fact or issue of law concerning them upon which this Court can rule. Both summary judgment motions are denied.

III. Case Scheduling Issues

Based on the fact that plaintiff's second cause of action contained a request for money damages, there has been some discussion of the possible need for a jury trial with attendant pretrial discovery in this matter. With the dismissal of the second cause of action, the parties appear to be in agreement that the remaining claim for relief involves a nothing more than an administrative review, with its attendant production of the Administrative Record by defendant and resolution of the matter by dispositive motions. Plaintiff has given some indication that the Administrative Record may need to be supplemented, but that issue is not before the Court at this time.

It will therefore be ordered that defendant file with the Court and serve upon plaintiff a copy of the Administrative Record in this matter no later than 45 days from the entry of this order.

III. Conclusion

Plaintiff having failed to plead a cause of action on which relief can be granted under the Indian Self-Determination Act, defendant's motion to dismiss or lack of subject matter jurisdiction will be granted. Both parties having moved for summary judgment on issues which are irrelevant and beyond the scope of this lawsuit, those motions will be denied.

The clerk is directed to provide copies of this order to all counsel of record.

Slip Copy, 2004 WL 3753251 (W.D.Wash.)