2019 WL 7019033 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
Rebecca LEVY
NO. MPTC-CV-AA-2019-127
DECEMBER 18, 2019

Thomas J. Londregan, Judge

This case arrives on the docket as an administrative appeal from the Education Committee’s denial of tuition benefits for the children of the appellant, Rebecca Levy. The Education Committee of the Mashantucket Pequot Tribe denied the appellant’s request for tuition money above the dollar limits set by the Mashantucket Pequot Tribal Council for her two children to attend private school. The appellant has two children, a daughter K--- Levy and a son, C--- Levy. Both children have been enrolled in the Mashantucket Pequot Education Department’s scholarship program since 2015.



Under the scholarship program guidelines passed by the Tribal Council in 2010 (2010 Guidelines), the maximum amount permitted for students between grades 5 - 8 was $20,000, and the maximum amount for grade 9 - 12 was $30,000. The Tribal Council amended the scholarship program guidelines in 2018. The maximum amount permitted for students between grades 5 - 8 was reduced to $15,000, and the maximum amount for grades 9 - 12 was reduced to $20,000 (the 2018 guidelines).

To understand the appellant’s argument, a timeline of events is required. For the school year 2018-2019 (and for prior years) the appellant’s children were subject to the 2010 guidelines. This appeal does not involve the 2018-2019 school year. In July of 2018, the Tribal Council amended the tuition program and reduced the amounts in the 2010 policy which would affect the current 2019-2020 school year. On September 7, 2018, the Education Department emailed the new guidelines to tribal members. The new guidelines were also posted on the Education Department’s Facebook page. In addition, on December 7, 2018 and May 1, 2019, the guidelines were posted on the Tribe’s intranet page. In late November or early December, 2018, when the appellant received notice of the amended policy, she filed a grievance with the Mashantucket Pequot Education Committee. On January 30, 2019, the appellant was informed that her grievance hearing with the Education Committee would be held the next day January 31, at the Community Center. The appellant could not attend but was told she could participate by phone. However, when she called in, she was informed the meeting had adjourned. On April 2, the appellant received a letter from the Education Committee that her grievance was denied. The Education committee did however state that it did recommend to the Tribal Council that it make an exception to the new tuition cap for “academic excellence.” The Tribal Council declined to do so. The appellant filed a Notice of Appeal on April 10, 2019. The parties filed briefs with the Court and appeared for oral argument on November 6, 2019.

The appellant’s appeal puts forth several arguments that can be summarized as follows:

1. Given the time of the adoption of the new 2018 policy and the length of time for her appeal, she was unable to apply for financial aid directly from the school for the 2019-2020 school year, and therefore has suffered damages.

2. A promise that her children would be grandfathered under the old policy was made by an employee of the Tribe’s Education Department in 2016. The employee at that time was the head of the Education Department and told the appellant that her children would stay under the old 2010 policy.

3. The Education Committee should have awarded her children additional tuition for their “academic excellence.”

4. The Tribal Council denied her benefits notwithstanding the recommendation of the Education Committee to do so based on the academic achievement of her children.

5. The Education Committee did not follow proper procedure by refusing her the opportunity to speak to the Committee when it deliberated this grievance.



This appeal is brought under 40 M.P.T.L. entitled “Administrative Procedure Act” (APA). Under the APA, a person dissatisfied with a “Final Decision” of an Agency is entitled to judicial review by the Tribal Court. Id. at ch. 3. The Education Committee is such an agency for purposes of this appeal. In hearing appeals under the APA the Tribal Court’s review is limited to the agency record before the court, the briefs filed by the parties and the oral arguments presented by the parties. The Tribal Court must not substitute its judgment for that of the agency as to the weight of the evidence or creditability of any witnesses. “The Tribal Court shall affirm the final decision unless the Court finds that the final decision is: i. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the Tribal Law; or, ii. In excess of statutory jurisdiction or authority.” 40 M.P.T.L. ch. 3 § 8(e). The arbitrary, capricious, and abuse of discretion standard has not yet been interpreted by the Mashantucket Pequot Tribal Court in the context of the APA. However, the standard is also found in the employment appeal law, 8 M.P.T.L. ch. 1 § 8(f). Cases decided under Title 8 have considered whether there was “substantial evidence” in the administrative record to support the findings of fact and conclusions drawn therefrom. See Byron v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 57, 60-61 (2013). Federal courts have held that “substantial evidence” means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (In an administrative appeal from a disability hearing the officer admitted a report by a physician “despite its hearsay ... and an absence of cross-examination ... and despite opposing direct medical testimony ... may constitute substantial evidence ....) Id. Numerous employment appeal decisions of the Tribal Court comport with this definition of “substantial evidence.” See Magee v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 40, 53 (2007); Mashantucket Pequot Gaming Enterprise v. Ju Lian Zheng, 6 Mash.Rep. 222, 224 (2014); Mashantucket Pequot Gaming Enterprise v. Scheller, 6 Mash.Rep. 126, 129 (2014).

The Court will adopt the “substantial evidence” standard as articulated above. The Court’s role is thus limited to determine whether or not there was “substantial evidence” before the education committee such that it did not act “arbitrarily, capriciously or in abuse of its discretion.”



1. The Inability to Apply for Financial Aid. At oral argument the Court learned that the Tribal Council has delayed the implementation of the 2018 guidelines for at least one year. The benefits under the 2010 policy guidelines will be awarded for the 2019-2020 school year. This action by the Tribal Council makes moot the appellant’s argument that the timing of the new resolution and the decision on her appeal made it impossible for her to apply for financial aid directly from the school. Her children are covered under the 2010 policy for the 2019-2020 school year, which renders the first reason for her appeal moot. Also rendered moot for any claim of damages is the appellant’s claim that the Education Committee did not follow proper procedure in deciding her appeal.

At this time the appellant has suffered no immediate damages because the 2019-2020 school year is under the prior policy. Nonetheless, the appellant’s other arguments, such as her assertion that her children should be grandfathered, are viable arguments and are not rendered moot by the 2018 policy because they may arise in future school years.

2. The Promise to be Grandfathered Under Prior Guidelines.1 The plaintiff’s claim that a member of its Education Department could bind the Education Committee and the Tribal Council implicates the sovereign immunity of the Tribe. Unless the Tribal Council bestowed actual authority on the Education Department or an official of the Education Committee to grandfather the Levy children under the 2010 policy (notwithstanding the Tribal Council’s resolution amending that policy), any such promise to grandfather the children would be void as a matter of law under the principles of sovereign immunity. From a search of the record, the Court finds that the Tribal Council did not delegate a determination of which children of the Tribe could be grandfathered under the 2010 policy to the Education Committee nor to any members of the Education Committee. There is nothing in the record which gives actual authority or apparent authority to anyone for this proposition. Therefore, this claim must be dismissed under the principles of sovereign immunity. Sovereign immunity is based on the proposition that Indian tribes are “domestic dependent nations” that enjoy sovereign immunity like other governments. See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). Otherwise, tribes would be subject to suits that any employee or official promised something under theories of apparent authority and estoppel. Such claims and suits against a tribe would hamper tribal governments. Federal Native American law specifically rejects such causes of action. See Michigan v. Bay Mills Indian Community, 572 U.S. 782, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014) (holding that tribes enjoy the same common law immunity from suit that other sovereign powers do).

3. Academic Excellence as Grounds to Avoid Tribal Policy. While the Tribal Council’s action in delaying the implementation of the 2018 guidelines would also make moot the Education Committee’s denial of benefits for the 2019-2020 school year based on academic excellence, the Court will address this issue as it is likely to arise again in future years. The Court must begin with an analysis of its jurisdiction. This Court is one of limited jurisdiction. Milios v. Mashantucket Pequot Gaming Commission, 3 Mash.Rep. 226, 228 (2000), aff’d 3 Mash.App. 12 (2001). In establishing the Court, the Tribal Council provided: “The Tribal Court shall have subject matter jurisdiction over civil causes of action ... as expressly conferred upon it by the Tribal Council.” 1 M.P.T.L. ch. 1 § 2(a). Being a court of limited jurisdiction, an express grant of jurisdiction is a prerequisite to the Court’s exercise of jurisdiction. Milios, 3 Mash.App. at 15.

The issue of whether the Education Committee should have considered academic excellence or accommodation for learning disabilities is resolved by reviewing the Tribal Council resolution in question. “The general/specific canon is perhaps most frequently applied to statutes in which a general permission or prohibition is contradicted by a specific prohibition or permission. To eliminate the contradiction, the specific provision is construed as an exception to the general one.” Radlax Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 132 S.Ct. 2065, 2071, 182 L.Ed.2d 967 (2012). This canon of statutory interpretation helps courts to interpret two different statutes which conflict or a single statute with conflicting terms.

Here, the 2018 policy for tuition monies is broken into separate sections. Section 2, which addresses the scholarship program as a whole (hereinafter the “General Provisions Section”), contains a sub-heading entitled “academic excellence.” It states that “[t]hose students with a record of academic excellence may be provided with additional funding in order to pursue his/her academic goals.” Record at MPEC4. Section 4, concerning higher education scholarships (hereinafter the “Higher Ed. Section”), contains a sub-heading entitled “Awards for Academic Excellence.” Record at MPEC9. Section 3, concerning K-12 scholarships (hereinafter the “K-12 Section”), contains no such sub-heading. In fact, the K-12 Section states “[s]cholarship amount not to exceed approved cap.” Record at MPEC5. This phrase is a specific exception to the general rule that students may be awarded additional scholarship money for academic excellence. If the Tribal Council had intended that additional awards for academic excellence be distributed to K-12 students it would not have included this phrase limiting funding to the pre-approved amounts.

Assuming, arguendo, that the academic excellence clause in the General Provisions Section does apply to K-12 students, it does not change the outcome in this case. The facts are clear and undisputed. Here, after the appellant filed her grievance, the Education Department recommended to the Tribal Council that the appellant’s children be given additional awards for academic excellence. Nonetheless, the Tribal Council made the decision not to follow the recommendation of the Education Department. It chose to uphold the new caps set out in the 2018 policy. Record at MPEC53. The Court cannot inquire into the reasoning of the Tribal Council for this decision. It would be beyond the scope of review for this appeal.

The policy is devoid of any authority granted to the Education Committee to award supplemental monies for academic excellence for grade and high school students.2 Having no authority, this Court cannot find that the Education Committee acted “arbitrarily, capriciously and in abuse of its discretion” in declining to award monies for academic excellence when it had no authority from the Tribal Council to do so.

Likewise, the fact that the Education Committee did not award additional monies under the Standing Committee Protocols for “extenuating circumstances” was not “arbitrary, capricious, or an abuse of discretion” since that protocol is discretionary and not mandatory on the Education Committee. The Court need not determine what would or would not constitute “extenuating circumstances” under the facts of this case. The Education Committee’s decision to follow the 2018 policy was supported by the facts of this case.

4. No Appeal Lies From Action of Tribal Council. The Education Committee made a recommendation to the Tribal Council for an exception for the appellant’s children for “academic excellence.” Notwithstanding the recommendation by the Education Committee, the Tribal Council “denied the committee’s recommendation based on policy and decided to uphold the new MPTN scholarship guidelines.” Record at MPEC53. Accordingly, the committee declined to award additional tuition funds for academic excellence. This appeal commenced under the Administrative Procedures Act, 40 M.P.T.L. ch. 1 §§ 1, et seq. Under the APA, the definition of an agency specifically, by its terms, “does not include the Mashantucket Pequot Tribal Council.” 40 M.P.T.L. ch. 1 § 3(b). The real decision maker on an award for academic excellence is the Tribal Council and not the Committee. The Committee merely made a recommendation to the Tribal Council. It was the Tribal Council that denied the benefit. No appeal can be taken from a decision of the Tribal Council.3

5. The Education Committee Followed Proper Procedure By Conducting an Informal Hearing. This case involves the interpretation of Tribal Council resolutions for the 2010 and 2018 school years. The record does not indicate when the appellant was told to call in to the hearing and how late she was in doing so. The claims raised by the appellant are substantially legal in nature given the interpretation of the 2010 and 2018 policies and the issues of sovereign immunity. Under tribal law for informal hearings, there is no right to be present at the hearing. See 40 M.P.T.L. ch. 2 § 4(a) (“An Informal Hearing may include or consist of a review of statements, affidavits, and documents submitted by the parties to a Hearing Official; or, an informal meeting between the parties and the Hearing Official.”) (emphasis added). Aggrieved parties are permitted to submit written statements.

With the exception of the promise to be grandfathered, there were little or no facts in dispute and the whole issue was whether applying the 2018 policy by the Education Committee was “arbitrary, capricious and an abuse of discretion” under the facts of this case.

The Tribe has waived its sovereign immunity for such claims insofar as it has passed the Administrative Procedures Act, 40 M.P.T.L. This act grants jurisdiction to the Tribal Court to review a final decision by an agency, including the decision by the hearing officer whether to conduct a formal or informal hearing as allowed by said act. Id. The Education Committee is one such administrative body or agency.

Under ch. 2 § 1 of the Administrative Procedures Act, the hearing officer may decide to conduct an informal hearing as opposed to a formal hearing. Informal hearings are appropriate when the matter may be determined by an interpretation of tribal law without reference to the facts of a particular case. See 40 M.P.T.L. ch. 2 §§ 2-4.

This case deals with the implementation of a Tribal Council resolution revising tuition limitations for grades 5 - 8 and grades 9 - 12. All that the Education Department had to do, and did do, at the hearing was apply the 2018 policy. The Court finds that the decision to conduct an informal hearing rather than a formal hearing was not “arbitrary, capricious or an abuse of discretion” by the agency. See 40 M.P.T.L. ch. 3 § 8(b)-(e).

That said, the Education Committee should have given the appellant more than one day notice to participate in the hearing since it had made the decision to allow her to do so. Since the appellant has suffered no damages at this time, the Court considers such a procedural misstep to be “harmless error.” For the reasons stated above, the appellant’s appeal is dismissed.

All Citations
2019 WL 7019033



The appellant claimed that this promise was made in 2016 and her children were grandfathered since that time and therefore should continue to be grandfathered notwithstanding the new 2018 policy. The record discloses that the 2010 policy was not changed in 2016. The Education Committee did approve another version of the policy in 2016, but it was never passed by the Tribal Council. The appellant’s children have been under the 2010 policy and were not “grandfathered” in 2016.


The 2018 guidelines do not allow the Committee to award additional scholarship money for academic excellence for middle school and high school students such as the appellant’s children. This academic excellence policy only applies to secondary school tuition. Record at MPEC9.


While the Court found tribal sovereign immunity under the facts of this case, the Court will leave for another day judicial review of Tribal Council action when property rights have accrued to a tribal member and when such property rights are deprived without due process of law. In such a case the Indian Civil Rights Act (hereinafter the “ICRA”) may very well apply. Compare Haloma v. MacDonald, 1 Navajo Rptr. 341 (Navajo D. Ct. May 18, 1977), aff’d 1 Navajo Rptr. 189 (Navajo App. Ct. Jan. 24, 1978) where the Navajo Appellate Court ruled that “judicial review by tribal courts of council resolutions is mandated by the Indian Civil Rights Act.” 1 Navajo Rptr. at 206 (a case involving misappropriation of public funds). When a court is faced with reviewing any legislative action there is a presumption that the legislative act was proper and legal and that the Tribal Council acted from proper motives. Simply reducing the amount of the tuition as a benefit of membership does not implicate “property rights” under the ICRA. 20 M.P.T.L. ch. 1 § 1(a)(8); 25 U.S.C. § 1302(a)(8). The appellant does not challenge the right of the Council to reduce tuition amounts, nor does she allege an improper motive. She argues that her children should be grandfathered. With that said, once a right accrues to the tribal member, the ICRA must be reviewed. So the timeline and the recent decision of the Tribal Council to delay the 2018 policy for one year was an important fact in this case to determine if any property rights had accrued to the appellant. The Court finds that no such property rights did accrue to the appellant.