Opposition Brief — New Mexico Taxation & Revenue Department v. Ramah Navajo School Board, Inc.

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( Supreme Court, U.S,

\d FILED

No. 86-367 | SEP 20 068

JOSEPH F-SPAITOL IR,

IN THE CLERK

UNITED STATES SUPREME COURT

October Term, 1987

NEW MEXICO TAXATION AND

REVENUE DEPARTMENT,

Petitioner,

RAMAH NAVAJO SCHOOL BOARD, INC.

AND

LEMBKE CONSTRUCTION COMPANY, INC.

Respondents.

ON CERTIORARI TO

THE COURT OF APPEALS OF NEW MEXICO

RESPONDENT RAMAH NAVAJO SCHOOL BOARD

INC.'S BRIEF IN OPPOSITION

MICHAEL PAUL GROSS

ROTH, VAN AMBERG, GROSS,

AMARANT & ROGERS

347 East Palace Avenue

Post Office Box 1447

Santa Fe, New Mexico 87504

(505) 988-8979

Counsel for Respondent

October 1986

SO” mn

——————— EE = =

—

QUESTION PRESENTED

Did the New Mexico Court of Appeals err

in holding that attorney's fees were

properly awarded by the district court

under 42 U.S.C. §1988 because the Petition-

er Tax Department had violated rights

conferred on Respondent Ramah Navajo School

Board by treaty, general federal statutes,

and a comprehensive Indian education scheme

-- The Indian Self-Determination And

Education Assistance Act, 25 U.S.C. §§450

et. seq. -- as well as a series of direct

appropriations by Congress to Respondent

Board for construction of the Ramah Navajo

School?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

ADDITIONAL STATUTES AND TREATY

INVOLVED

REGULATIONS INVOLVED

ADDITIONS TO STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

(1)

(2)

(3)

(4)

The Principal Issue

Addressed By The Petition

Has Already Been Settled.

The Instant Case Does Not

Present An Appropriate

Vehicle For Examining THe

Question Presented.

Even Within The Parameters

Of Existing Section 1983

Law, The Case Presents No

Novel Question Or Issue.

The Only Indien Tax

Decision Involving

Attorney's Fees Cited By

Petitioner Was Incorrect In

Its Holding And Easily

Distinguished On Its Facts.

CONCLUSION

APPENDIX A = Order and Motion For

Correction Of Record Below (Excerpt)

CC E'’~S ne

APPENDIX B - Decision in Central

Machinery oo. . State of Arizona,

No. CA-CIvV 7779, June a7, 1985,

Arizona Court of Appeals, 12 Indian

Law Reporter 5073, cert. bending

Arizona Supreme Court 7a

APPENDIX ¢c . Regulations Involveqd-

Indian Self-Determination Act

Regulations, 25 C.F.R. Parts 27) and

274 22a

APPENDIX p - Regulations Involved 25

C.F.R, Part 32 27a

iii

TABLE OF AUTHORITIES

CASES

Brown v. Board of Education, 347

U.S. 483 (1954)

Bryan v. Itasca County, 426 U.S.

373 (1976)

Busby School v. United States, 8

Ci. CE. 596 (1965)

Central Machinery Co. v. Arizona

State Tax Comm'n, 448 U.S. 160

(1980)

Central Machinery Co. v. Arizona

State Tax Comm'n, No. CA-CIV

7779, June 27, 1985, 12 Indian

Law Reporter 5073 (Arizona Court

of Appeals), cert. granted,

Arizona Supreme Court

Chase v. McMasters, 573 F.2d 1011

(8th Cir. 1978), cert. den., 439

U.S. 965 (1978)

Confederated Salish and Kootenai

Tribes v. Moe, 392 F.Supp. 1297

(D.Mont. 1974), aff'd other

grounds, 425 U.S. 463 (1976)

Consolidated Freightways Vv

Kassel, 556 F.Supp. 740 (S.D.

Iowa 1983), aff'd, 730 F.zd 1139

(8th Cir.), cert. denied, 105

S.Ct. 126 (1984)

Maine v. Thiboutot, 448 U.S. 1

(1980)

Page

14, 15,

16, 19

McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164 (1973)

Mescalero Apache Tribe v. Jo es,

411 U.S. 145 (1973)

Middlesex Cty. Sewerage Aut orit

v. National Sea Clammers, 453

U.S. 1 (1981)

Natonabah v. Gallup-McKinley cty.

Sch. Bd., 355 F.Supp. 716 (D.N.M.

1973)

Pennhurst State School and

Hospital _v. Halderman, 451 U.S.

832 (1982)

Ramah Navajo School Board, Inc.

v. Bureau of Rev., 458 U.S. 832

(1982)

Rockbridge v. inc , 449 F.2a

567 (9th Cir. 1971)

United States v,. Mitchell, 463

U.S. 206 (1983)

Warren Trading Post Ca. -,

Arizona Tax Comm'n, 380 U.S. 685

(1965)

Washington v. . ibes o

Colville Res., 447 U.S. 134

(1980)

ite ountain ache ibe v.

Bracker, 448 U.S. 136 (1980)

White Mountain ache ribe v.

Williams, No. 81-5348 (9th Cir.

1986)

9, 10,

24, 34,

a?, 20

22, 23

14, 16,

a7, ad

Passim

a0, ii

14, 23

19,

20, 21

Sa, 22

Wi iams V. e, 358 U.S. 217

(1959)

akima Gian Nation v. White-

side, 617 F.Supp. 735 (E.D. Wash.

1985)

UNITED STATES CONSTITUTION

Indian Commerce Clause, Art. I,

§8, cl. 3

TREATY

1868 Treaty between the United

States and the Navajo Tribe, 15

Stat. 668, 669, Art. II and Art.

STATUTES

42 U.S.C. §1983 oe F

42 U.S.C. §1988

The Indian Self-Determination And

Education Assistance Act, 25

U.S.C. §§450 et. seg.

Johnson O'Malley Act, 25 U.S.C.

§452

Snyder Act, 25 U.S.C. §13

Buck Act, 4 U.S.C. §§105 et. seq.

New Mexico Enabling Act, 36 Stat.

558-559, §2(B)

Ramah Navajo School Appropriation

Acts, Public Laws 92-369; 93-120;

93-245; 93-404; 94-165; 95-74

14,

19,

10,

14, 15

1, i,

2, il

15, 16,

as, 229

a, 19

be By 4,

8, 13, 22

4, 5

6, di

5, il

i, 1, 2,

7, 8,

13, di5

25 U S.C. §2010, Pub. L. 95-561,

Title Ix, §1130, 92 Stat. 2321

Developmentally Disabled Act, 42

U.S.C. §§6000 et. seq.

REGULATIONS

25 C.F.R. Parts 271 and 274

25 C.F.R. Part 32

OTHER

House Report No. 98-748

vii

Sy ae

at,

18, 19

12, 13

ADD ON TES ATY INVOLVED

1868 Treaty between the United States and

the Navajo Tribe, 15 Stat. 668 and 669:

Art. II ... and the United States

agrees that no persons except those

herein so authorized to do, and

except such officers, soldiers,

agents and employés of the govern-

ment, or of the Indians, as may be

authorized to enter upon Indian

reservations in discharge of duties

imposed by law, or the orders of the

President, shall ever be permitted to

pass over, settle upon, or reside in,

the territory described in this

article.

Art. VI. In order to insure the civili-

zation of the Indians entering into this

treaty, the necessity of education is

admitted....

Public Law 92-369, 86 Stat. 508, 510

(1972):

For construction, ee Of sev

buildings and other facilities;

Provided further, that not to exceed

$950,000 shall be for assistance to

the Ramah School on the Navajo Indian

Reservation, New Mexico;

Public Law 93-120, 87 Stat. 431:

For construction, major repair and

improvements of irrigation and power

systems, buildings, utilities, and

other facilities; acquisition of

lands and interests in lands;

preparation of lands for farming; and

architectural and engineering

services contract, $53,703,000 to

remain available until expended....

Public. Law 93-245, 87 Stat. 1073:

Provided further, That $2,700,000 of

the amount appropriated under this

heading in the Department of Interior

and Related Agencies Appropriation

Act, 1974, shall be available for

assistance to the Ramah Navajo School

Board, Incorporated, New Mexico, for

the construction of school facili-

ties.

Public Law 93-404, 88 Stat. 810:

Provided further, That not to exceed

$1,195,000 shall be available to

assist the Ramah Navajo Board, Inc.,

including not to exceed $800,000 for

construction of school facilities and

not to exceed $395,000 for purchase

of school equipment.

Public Law 94-165, 89 Stat. 985:

Provided further, That not to exceed

$2,229,000 shall be available for

assistance to the Ramah Navajo School

Board, Incorporated, New Mexico, for

the construction of school facili-

ties.

Public Law 95-74, 91 Stat. 293:

Provided further That not to exceed

$2,062,000 shall be available for

assistance to the Ramah Navajo School

Board, Incorporated, New Mexico, for

the construction of an Instructional

Media Center.

Additional relevant portions of the Indian

Gel f-Determination Act, 25 U.S.C. $$450 et

seq., January 4, 1975, 88 Stat. 2203-2217:

§ 450n. Sovereign immunity and

trusteeship rights unaffected

Nothing in this Act shall be con-

strued as -~

(1) affecting, modifying, dimini-

shing, or otherwise impairing the

sovereign immunity from suit enjoyed

by an Indian tribe; or

(2) authorizing or requiring the

termination of any existing trust

responsibility of the United States

with respect to the Indian people.

§ 458. School construction, acquisi-

tion, or renovation contracts--

Authorization; prerequisites

(a) The Secretary is authorized

to enter into a contract or contracts

with any State education agency or

school district for the purpose of

assisting such agency or district in

the acquisition of sites for, or the

construction, acquisition, or

renovation of facilities (including

all necessary equipment) in school

districts on or adjacent to or in

close proximity to any Indian

reservation or other lands held in

trust by the United States for

Indians, if such facilities are

necessary for the education of

Indians residing on any such reser-

vation or lands.

Eligibility of private schools

to receive funds; maximum amount

more than 25 per centum of such funds

as may be authorized and appropriated

pursuant to this section on any

school eligible to receive funds

under section 458d of this title.

§458d. Same, eligibility for funds

of tribe oor tribal organization

controlling or managing private

schools; report to Congressional

Committees

The Secretary is authorized and

directed to provide funds, pursuant

to this Act; the Act of April 16,

1934; or any other authority granted

to him to any tribe or tribal

organization which controls and

manages any previously private

school. The Secretary shall transmit

annually to the Committees on

Interior and Insular Affairs of the

United States Senate and House of

Representatives a report on the

educational assistance program

conducted pursuant to this section.

25 U.S.C. 2010, Public Law 95-561, Title

XI, §1130, November 1, 1978, 92 Stat. 2321:

It shall be the policy of the Bureau

in carrying out the functions of the

Bureau, to facilitate Indian control

of Indian affairs in all matters

relating to education.

The Johnson O'Malley Act 25 U.S.C. 452,

April 16, 1934 c. 147, §1, 48 Stat. 596;

June 4, 1936, c. 490, 49 Stat. 1458:

The Secretary of the Interior is

authorized, in his discretion, to

enter into a contract or contracts

with any State or Territory, or

political subdivision thereof, or

with any State university, college,

er school, or with any appropriate

State or private corporation, agency,

er institution, for the education,

medical attention, agricultural

assistance, and social welfare,

including relief of distress, of

Indians in such State or Territory,

through the agencies of the State of

Territory or of the corporations and

organizations, herein before named

and to expend under such contract or

contracts, moneys appropriated by

Congress for the education, medical

attention, agricultural assistance

and social welfare, including relief

of distress, of Indians in such State

or Territory.

The Snyder Act, 25 U.S.C. Sec. 13, Nov. 2,

2921, C. 435, %2 Stat. 208:

The Bureau of Indian Affairs under

the supervision of the Secretary cf

the Interior, shall direct, super-

vise, and expend such moneys aS

Congress may from time to time

appropriate, for the benefit, care,

and assistance of the Indians

throughout the United States for the

following purposes:

General support and civilization,

including education....

New Mexico Disclaimer of Jurisdiction over

Indian Lands, Enabling Act, Sec. 2(B), 36

Stat. 558-559, N.M. Const., Art. XXI, sec.

_..but nothing herein provided for,

shall preclude the said state from

taxing, as other lands and other

property are taxed, any lands and

other property outside of an Indian

reservation owned or held by any

Indian, save and except such lands as

have been granted or acquired as

aforesaid or as may be granted or

confirmed to any Indian or Indians

under any act of congress; but said

ordinance shall provide that all such

lands shall be exempt from taxation

by said state so long as to such

extent as congress has prescribed or

may hereafter prescribe;

The Buck Act, 4 U.S.C. §109, 61 Stat. 645:

Nothing in Sections 105 and 106 of

this title shall be deemed to

authorize the levy or collections of

any tax on or from any Indian that

otherwise taxed.

REGULATIONS INVOLVED

y The relevant portions of the

regulations implementing the Indian Self-

Determination Act, supra, found at 25

C.F.R. Parts 271 and 274, are reproduced in

Appendix C.

2. The relevant portions of the regula-

tions implementing Title XI of Public Law

95-561, supra, found at 25 C.F.R. Part 32,

are reproduced in Appendix D.

ADDITIONS TO STATEMENT OF THE CASE

Respondent Ramah Navajo School Board,

Inc. is a Navajo tribal school board and is

incorporated under New Mexico law.

The State of New Mexico failed to prov~

ide educational! services to the Ramah

Navajo community starting in 1968 when y & A

closed a public high school serving the

community and failed to make proper

provision for Ramah Navajo children

elsewhere.

Among the laws which the Board alleged

had been violated by the Petitioner's tax

was a series of Congressional appropria-

tions specifically earmarked to this

Respondent for the purpose of constructing

this particular school. Pub. L. 92-369, 86

Stat. 510 (1972); Pub. L. 93-245, 87 Stat.

1073 (1973) (amending Pub. L. 93-120, 87

Stat. 431 (1973))# Pub. L. 937-404, 88 Stat.

810 (1974); Pub. L. 94-165, 89 Stat. 985

(1975); Pub. L. 95-74, 91 Stat. 293 (1977).

These appropriations were conveyed to

Respondent Board through a series of

contracts with the Bureau of Indian Affairs

mandated by The Indian Self-Determination

And Education Assistance Act. See, Ramah

Navajo School Bd. v. Bureau of Rev.., 458

U.S. 832, at 835 and 841 (1982).

The Board has already paid the legal

fees at issue in this petition from the tax

refund resulting after mandate issued in

Ramah, supra. Only fees incurred in

connection with the instant motion for fees

have not yet been paid. (See Appendix A.)

Recovery of the fees at issue here would

therefore make the Board whole.

REASONS FOR DENYING THE WRIT

The respondent, Ramah Navajo School

Board, Inc., respectfully requests that

this Court deny the Petition for Writ of

Certiorari, seeking review of the New

Mexico Court of Appeals' decision in this

case. That opinion is reported at

—— EN

N.M. , 720 P.2a 1243 and is printed at

Appendix A to the Petition.

(1) The Principal Issue Addressed By

The Petition Has Already Been

Settled.

Petitioner's whole argument proceeds on

the assumption that this Court in deciding

Ramah Navajo School Bd. v. Bureau of Rev.,

supra, failed to find a State violation of

an individual right conferred or guaranteed

by federal law. Yet less than ten years

earlier, in McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164, at 181 (1973), this

Court unanimously found just such a

violation in the case of a Navajo living

and working on the Navajo reservation who

had been assessed an Arizona income tax:

Finally, we cannot accept the notion

that it is irrelevant "whether the

state income tax infringes on {appell-

ant's] rights as an jndividual Navajo

Indian," as the State Court of Appeals

maintained. 14 Ariz. App. at 454, 484

P.2d at 223. To be sure, when Congress

has legislated on Indian matters, it

has, most often, dealt with the tribes

as collective entities. But _<hose

entities are, after all, composed of

individual Indians, and the legislation

confers individual rights. This court

has therefore held that "the question

has always been whether the state action

infringed on the right of reservation

Indians to make their own laws and be

ruled by them." Williams v. Lee, supra,

at 220 (358 U.S. 217) ... In this case,

appellant's rights as a reservation

Indian were violated when the state

collected a tax from her which it has no

jurisdiction to impose. (emphasis

added)

Ramah, supra, relies expressly on this

earlier holding:

In White Mountain (Apache Tribe ov.

Bracker, 448 U.S. 1 (1980)), we recog-

nized that the federal and tribal

interests arise from the broad power of

Congress to regulate tribal affairs

under the Indian Commerce Clause, Art.

I, §8, cl. 3, and from the semi-autono-

mous status of Indian tribes. 448 U.S.,

at 142, 100 §.C.t., at 2583. These

interests tend to erect two 'independent

but related' barriers to the exercise of

state authority over commercial activity

on an Indian reservation: state author-

ity may be pre-empted by federal law, or

it may interfere with the Tribe's

ability to exercise its sovereign

functions. ibid. (citing, inter alia,

Warren Trading Post Co. v. Arizona State

Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242,

14 L. Ed. 2d 165 (1965); McClanahan v.

izona tate Tax Comm'n., supra; and

Williams v. Lee, 358 U.S. 217, 79 S.Ct.

269, 3 L. Ed. 2d 251 (1959)).

458 U.S., at 837.

McClanahan is on all fours with the

instant case. An income tax was involved

in both. See, 411 U.S., at 180, character-

izing the gross receipts tax involved in

Warren Trading Cost Co. v- Arizona State

Tax Comm'n, supra, as an “income tax".

Both involved reservation Indian activities

and both involved the Treaty. with the

Navajos of 1868, 15 Stat. 668, and the same

general laws of the United States, €.9-,

the Buck Act, 4 U.S.C. §105 et. seg., which

determines when States may tax individuals

on federal lands. Both also involve nearly

identical state enabling legislation. See,

New Mexico Enabling Act, 36 Stat. 558-559

§2(B), N.M. Const. Art. XXI, sec. 2. If

anything the instant case more clearly

concerns violation of individual rights

because McClanahan involved no comprehen-

sive regulatory scheme at all, let alone

one as important as education. Nor did it

involve direct appropriations to an Indian

or Indian entity. See, infra, PP- 12-15.

This case arises from a singular set of

facts. | It involves a remote Indian

community which formed a partnership with

Congress to replace a lost public high

school. In doing so Congress decided that

the federal responsibility} for Indian

education could be fulfilled at Ramah only

if it financed construction of the new

school directly through the community's own

school board. It therefore enacted a

series of direct appropriations to the

+ Congress has long recognized its

responsibilities for Indian education. For

example, in the legislative history for

Public Law 98-511, 98 Stat. 2366, amending

Public Law 95-561, House Report No. 98-748

contained this language:

It is the clear and firm position of

this Committee that with respect to

those tribes with whom the Federal

Government has a formal relationship,

education is Vv esponsibil-

ity. Moreover, it is one of the highest

deqree j ducia standard

of care in administrative actions and

special congressional attention.

Report, supra, at 16. (emphasis added)

‘

Board as part of the broad Indian self-

determination scheme first announced

administratively by President Nixon and

later made law through the Self-Determina-

tion Act, supra. Ramah Navajo School Bd.

v. Bureau of Rev., 458 U.S., at 834.

By enacting the Self-Determination Act

and the series of appropriations to this

Board Congress conferred a unique right on

Respondent to full use of that corpus. Yet

the Tax Department would have this Court

define the limits of a broad civil rights

statute, 42 U.S.C. §1983, through a review

of this case. It posits that many similar

cases may surface in which Indian tribes

will seek attorney's fees, yet it has not

cited nor can Respondent find a _ single

additional tax case in which Congress

created a discrete fund for a named Indian

tribe or organization.

Given the doctrinal singularity of the

line of Indian tax cases starting at least

with McClanahan, supra,* which depend on a

unique relationship between the Indian

Commerce Clause, Art. I, §8, cl. 3, and the

semi-autonomous nature of tribal govern-

ments, it is difficult to see how a review

of the instant case could significantly

advance understanding of Section 1983.

Petitioner contends that ambiguity persists

in the law of Section 1983 following

Thiboutot-Middlesex-Pennhurst. > Yet even

if this assumption were true, using an

Indian tax case to refine or clarify the

meaning of the phrase "Constitution or

. Among those in this line are:

Mescalero Apache Tribe v. Jones, 411 U.S.

145 (1973); Bryan v. Itasca County, 426

U.S. 373 (1976); Washington v. Conf. Tribes

of Colville Res., 447 U.S. 134 (1980);

Central Machinery Co. v. Arizona State Tax

Comm'n, 448 U.S. 160 (1980); White Mountain

Machinery Co. v. Bracker, 448 U.S. 136

(1980); and Ramah Navajo School Bd. v.

Bureau of Rev., 458 U.S. 832 (1982)

3 Maine v. Thiboutot, 448 U.S. 1

(1980); Middlesex County Sewerage Authority

v. National Sea Clammers, 453 U.S. 1

(1981); Pennhurst State School and Hospital

v. Halderman, 451 U.S. 1 (1981).

laws" in Section 1983 would be disadvan-

tageous because so much of the Indian law

in this area depends on a special linkage

between the Indian Commerce Clause and the

body of Indian statutes and case law which

has built up over more than a century. In

Indian tax cases, the distinction between

the Constitution and laws of the United

States has in some senses been blurred,

rendering Indian cases quite ineffective as

vehicles for examining broader questions

focussing on that distinction.

(3) Even Within The Parameters of

Existing Section 1983 Law, The

Case Presents No Novel Question Or

issue.

The instant case falls squarely within

the holding of Maine v. Thiboutot, supra,

where federal social security welfare

benefits had been denied by State action in

violation of federal law. The benefits

conferred on Plaintiff in that case, like

the appropriations here, became legal

entitlements after they were enacted by

Congress. See the lower court's discus-

sion, Appendix A to Petition, pp. 19a-23a,

720 P.2d, at 1253-1255. This Court in

Pennhurst, supra, recognized this point

when it said:

[R]espondents here, unlike the plaintiff

j iboutot who da at state law

prevented him from receiving federal

funds to which he is entitled, can only

Claim that the State plan has not

provided adequate ‘assurances' to the

Secretary. It is at least an open

question whether an individual's

interest in having a State provide these

'assurances' is a ‘right secured' by the

laws of the United States within the

meaning of Section 1983. (emphasis

added)

Pennhurst State School and Hospital ov.

Halderman, 451 U.S. 1, at 28 (1981). By

necessary implication, then, this Court has

already accepted that an individual's claim

to a discrete federal appropriation

constitutes a "right" within the meaning of

Section 1983. That is exactly what we have

here. Nothing more is needed.

However, to make the point even more

clearly, Pennhurst may be distinguished on

several other grounds as well. The issue

in that case concerned a so-called "Bill of

Rights" in legislation for the handicapped.

Plaintiffs there claimed that Section 6010

of the Developmentally Disabled Act, 42

U.S.C. §§ 6000, et. seqd-, created substan-

tive rights enforceable through Section

1983 requiring affirmative state action to

provide programs for the handicapped.

Nothing in the Act expressly stated this

intent nor was any money granted under the

Act for this purpose. Plaintiffs were thus

arguing that an affirmative state obli-

gation to spend an unknown amount of money

arose under the Act as an implied condition

for receipt of federal funds granted under

the Act for other purposes. The affirm-

ative nature of the obligation sought to be

imposed on states in Pennhurst contrasts

completely with the prohibition against

state action found in McClanahan and Ramah.

As the Court noted in Pennhurst:

The case for inferring intent is at its

weakest where, as here, the rights

asserted impose affirmative obligations

on the states to fund certain services,

since we may assume that Congress will

not implicitly attempt to impose massive

financial obligations on the States.

451 U.S., at 16.

It also contrasts with the presumption

in Indian tax cases that the absence of

explicit Congressional prohibitions against

state taxation is not an expression of

Congressional consent. When the Tax

Department in this very case argued earlier

that the presumption should go against the

Board and in favor of the State, as is true

in non-Indian situations, the Court

replied: "This argument is clearly

foreclosed by our precedents." 458 U.S.,

at 843. In short, in Pennhurst this Court

held that the language in Section 6010 of

the Disabled Act was “intended to be

hortatory, not mandatory". 451 U.S., at

Wiis It held this way precisely because

Pennhurst differed so radically on its

facts from Thiboutot; no federal funds were

at issue in Section 6010 whereas social

security funds, like the construction funds

here, were at issue in Thiboutot.

(4) he ndia ax ecision

Involving Attorney's Fees Cited By

Petitioner Was Incorrect in Its

Holding And Easily Distinguished

On Its Facts.

White Mountain Apache Tribe v. Williams,

No. 81-5348 (Ninth Circuit, Slip Opinion,

August 20, 1986), is the only case cited by

Petitioner for the proposition that 42

U.S.C. §§1983 and 1988 do not extend to

Indian preemption and related tax cases.

First, that case was incorrectly decided

because it fails ‘to recognize that the

tribe in question had enforceable rights

under the timber regulations at issue

there. Had the United States failed to

enforce the timber scheme the tribe ccvld

presumably have sued for breach of trust or

breach of administrative obligations to

enforce those rights. See, e€.G-, United

States v. chell, 463 U.S. 206 (1983); and

ockb Vv. j , 449 F.2d 567 (9th

Cir. 1972). And see, Appendix B, pp. 17a-

18a.

Given the doctrine announced in

McClanahan v. rizona te Tax Comm'n,

supra, the Ninth Circuit erred in not

recognizing the tribe's right to be free

from state coercion including taxation.

McClanahan, supra, 411 U.5., at 181.

Congressional accommodation of the timber

interests of the Apache Tribe in that case

easily distinguish it from the trucking

company in the dormant Commerce Clause case

Consolidated Freightways v. Kassel, 556 F.

Supp. 740 (S.D. Iowa 1983), aff'd 730 F.2d

1139 (8th Cir.), cert. denied, 105 S.Ct. 126

(1984), principally relied upon by the

majority in White Mountain. No legislation

protecting truckers existed and thus there

were no statutory rights involved in Kassel.

More generally, White Mountain contrasts

with several other Indian decisions, each

of which held or implied that tax chal-

lenges by Indian tribes or individuals

against state tax agencies or officiais

coula be framed and prosecuted under 42

U.S.C. §1983. Confederated Salish and

Kootenai Tribes v. Moe, 392 F. Supp. 1297,

at 1304-5 (D. Mont. 1974), aff'd other

grounds, 425 U.S. 463 (1976); Chase _ Vv.

McMasters, 573 F.2d 1011, 1014-16 (8th Cir.

1978), cert. denied, 439 U.S. 965 (1978);

and see especially, Cent al Machine Co.

v. State of Arizona, No. CA-CIV 7779, June

27, 1985, 12 Indian Law Reporter 5073,

cert. pending Arizona Supreme Court, which

discusses the issues involved here at

length. (Reproduced in Appendix B.) (But,

see, the non-tax decision in Yakima Indian

Nation v. Whiteside, 617 F.Supp. 735

(E.D.Wash. 1985)).

yet, even if all this were not true,

White Mountain clearly involves facts which

differ fundamentally from the instant case

on the peint at issue here. Thus:

White Mountain involved no _ contracts

between the federal government and an Indian

tribe or organization.

White Mountain involved no direct

appropriation of funds creating a corpus

earmarked for a particular Indian entity.

White Mountain did not involve education,

"perhaps the most important function of

state and local government," Brown v. Board

of Education, 347 U.S. 483, at 493 (1954),

quoted in the decision below, Appendix A to

the Petition, at 22a, 720 P.2d, at 1255.

Finally, White Mountain involved no

third-party beneficiaries, such as_ the

Indian children here whose rights have been

recognized under contracts awarded pursuant

to The Indian Self-Determination Act. Busby

School of the Northern Cheyenne Tribe v.

United States, 8 Cl.Ct. 596, at 602 (1985)

and see, e.g., Natonabah v. Gallup-McKinley

oun : | 355 F. Supp. 716 (D.N.-M.

1973) (holding that individual rights were

violated in the case of Navajo children

when federal grants to 4 public school

district were misused.)

All of these points were considered by

the court below and demonstrate that as

regards Section 1983 White Mountain and the

instant case are vastly different. The

points of similarity which made them

"indistinguishable" in terms of state

taxing powers (Petition at 13) have little

bearing on the question presented here,

which in any case was neither addressed nor

decided in either Bracker or Ramah.

ONCLUSION

For the foregoing reasons the Petition

for Writ of Certiorari should be denied.

Respectfully submitted:

MICHAEL PAUL GROSS

Roth, Van Amberg, Gross,

Amarant & Rogers

Post Office Box 1447

Santa Fe, NM 87504-1447

(505) 988-8979

Counsel for Respondent

October 1986.

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF NEW MEXICO

Friday, February 14, 1986

NO. 16,235

BUREAU OF REVENUE, STATE

OF NEW MEXICO,

Petitioner,

vs.

RAMAH NAVAJO SCHOOL BOARD, INC.

and LEMBKE CONSTRUCTION,

Respondents.

This matter: coming on for consideration

by the Court upon Motion of Respondent to

correct the record and for leave to file a

response, and the Court having considered

said motion and being sufficiently advised;

NOW, THEREFORE, IT IS ORDERED that

Motion to correct the record and for the

leave to file a response is hereby granted.

ATTEST:

Rose Marie Alderete

Clerk of the Supreme Court

of the State of New Mexico

IN THE SUPREME COURT

STATE OF NEW MEXICO

RAMAH NAVAJO SCHOOL BOARD, INC.

AND LEMBKE CONSTRUCTION CO., INC.

Petitioners-Appellees,

vs. No. 16,235

BUREAU OF REVENUE, STATE OF Court of Appeals

NEW MEXICO, No. 7960

Respondent-Appellant.

MOTION TO CORRECT RECORD AND

R V om 4 S

COMES NOW the Appellee, Ramah Navajo

School Board, Inc., by and through Michael

P. Gross, its attorney, and moves this

Court under Civil Appellate Rules 8/(f) and

16, in order to effect substantial justice

that it grant leave to correct the record

by inclusion of the attorney's affidavit in

support of Plaintiffs' motion for attor-

ney's fees considered by the trial court

and for leave to file a short response to

the Petition for Certiorari out of time....

Respectfully submitted:

ROTH, VAN AMBERG, GROSS,

AMARANT & ROGERS

By_/s/ Michael P. Gross

Michael P. Gross

347 East Palace Ave.

Post Office Box 1447

Santa Fe, NM 87504-1447

505/988-8979

CERTIFICATE OF SERVICE

I, the undersigned, certify that a true

and correct copy of the foregoing Motion tc

Correct Record ana for Leave to File

Response was maielad first class postage

prepaid to Gerald B. Richardson, P.O. Box

630, Santa Fe, New Mexico, 87509 on this

13th day of February, 1986.

/s/ Michael P. Gross

MICHAEL P. GROSS

EXHIBIT "A"

STATE OF NEW MEXICO COUNTY OF SANTA FE

IN THE DISTRICT COURT

FIRST JUDICIAL DISTRICT

RAMAH NAVAJO SCHOOL BOARD, INC.

and LEMBKE CONSTRUCTION CO., INC.,

Petitioners,

Vv. Civ. No. SF 78-438

BUREAU OF REVENUE OF NEW MEXICO,

Respondent.

ATTORNEY'S AFFIDAVIT

IN SUPPORT OF MOTION

FOR ATTORNEY'S FEES

I, the undersigned, being first duly

sworn hereby depose and state:

1. I am the attorney of record for the

Ramah Navajo School Board, Inc. and Lembke

Construction Co., Inc., the Petitioners in

the above-styled action.

4. By agreement between the Petitoners,

all legal costs connected with this action

have been assumed by the Ramah Navajo

—— a —<<xoxo<—— — &&@& “OO

School Board, Inc. In turn, the Ramah

Navajo School Board, Inc., paid for legal

services on this matter on an hourly basis

from date of filing the claim for refund

through the appeal to the New Mexico Court

of Appeals. Thereafter, and for the

balance of the case, fees have and will be

paid on a contingent basis determined by

the level of recovery, if any, of refunds

and other payments by the Board. The

attached summary sheet of time sheets shows

that over two-thirds of the legal services

on this case have been performed on @

contingent fee basis.

/s/ Michael P. Gross

MICHAEL P. GROSS

State of New Mexico

)

County of Santa Fe )

SUBSCRIBED AND SWORN to before me this

6th day of October, 1982.

lh lan

NOTARY PUBLIC

My commission expires:

8/24/86

APPENDIX B

ARIZONA COURT OF APPEALS

CENTRAL MACHINERY CO. V- ARIZONA

No. 1 CA-CIV 7779 (Ariz. Ct. App., June 27,

1985)

Summary

In Central Machinery Co. V- Arizona

State Tax Comm'n, 488 U.S. 160 (1980), the

Supreme Court held that the Indian trader

statutes preempted Arizona's imposition of

a transaction privilege tax on the sale of

tractors to an enterprise of the Gila River

Indian Tribe. On remand, Central Machinery

seeks to recover attorney fees under 42

U.S.C. §1988 arguing that its preemption

claim is cognizable under 42 U.S.C. §1983.

The superior court agreed and awarded fees

to Central Machinery. The state of Arizona

appealed.

The court of appeals affirms the ruling

of the superior court holding that the

Indian trader statues created enforceable

rights cognizable under 42 U.S.C. §1983,

the Civil Rights Act of 1871. Since the

attorney fees provision of 42 U.S.C. §1988

is applicable to section 1983 claims,

Central Machinery is entitled to attorney

fees. In reaching its decision, the court

relies on the Supreme Court's discussion of

the Indian trader statutes in Warren

tRading Post Co. v. Arizona State Tax

Comm'n, 380 U.S. 685 (1965), and Congress'

intent "to protect Indians against prices

deemed unfair or unreasonable by the Indian

Commissioner."

Full Text

Before MEYERSON, GRANT and HAIRE,

Appellate Judges

MEYERSON, Presiding Judge

In Maine v. Thiboutot, 448 U.S. 1, 100

S. Ct. 2502, 65 L.Ed.2d 555 (1980), the

United States Supreme Court held that 42

U.S.C. § 1983 provides a cause of action to

enforce substantive rights granted by

federal statutes. The issue in this case

) pee

js whether the Indian trader statutes, 25

u.S.C. §§ 261-64, create such rights

thereby entitling plaintiff-appellee

Central Machinery Company (Central Machin-

ery) to recover attorney's fees under 42

U.S.C. gioss.+ We hold that substantive

rights are created by the Indian trader

statutes and therefore affirm the trial

court's judgment granting fees to Central

Machinery.

I. Background

This dispute began in 1973 when Central

nechineny sold farm tractors to Gila River

Farms, an enterprise of the Gila River

Indian Tribe (tribe). The state of Arizona

imposed a transaction privilege tax on the

sale of the tractors. The tax was passed

on to Gila River Farms. Central Machinery

lfhe Civil Rights Attorney's Fees

Awards Act of 1976, 42 U.S.C. §1988,

authorized reasonable attorney's fees to

the prevailing party jn actions brought

under certain statutes, including 42 U.S.C.

§1983.

paid the tax under protest and initiated

state administrative proceedings to claim a

refund.

Central Machinery's claim ultimately

reached the United States Supreme Court.

Central Machinery Co. v. Arizona State Tax

Comm'n, 448 U.S. 160, 100 S. Ct. 2592, 65

L.Ed.2d 684 [7 Indian L. Rep. 1040] (1980).

Relying upon its earlier decision in Warren

Trading Post Co. v. Arizona State Tax

Comm'n, 380 U.S. 685, 85 S. Ct. 1242, 14

L.Ed.2d 165 (1965), the Court held that the

Indian trader statutes preempted Arizona's

imposition of sale tax on the transaction.

On remand, Central Machinery attempted

to recover attorney's fees under 42 U.S.C.

§1988. It argued that its preemption claim

was cognizable under 42 U.S.C. §1983

thereby entitling it to an award of fees.

The superior court granted fees to Central

10a

Machinery? and defendant~appellant state of

Arizona has filed this appeal.

II. 42 U.S.C. §1983

The Civil Rights Act of 1871, 42 U.S.C.

§1983, establishes a cause of action on

behalf of any party who has been injured,

under color of law, through the deprivation

of any “rights, privileges, or immunities

secured by the Constitution and laws" of

the United States. The question before the

Supreme Court in Maine v.- Thiboutot was

“whether the phrase ‘and laws,' as used in

§1983, means what it says, OF whether it

should be limited to some subset of laws."

448 U.S. 4. The Supreme Court rejected the

contention that the phrase “and laws"

should be read as limited to civil rights

or equal protection laws. The Court held

that 42 U.S.C. §1983 encompassed claims

2The parties agreed that Gila River

Farms would bear the costs and legal fees

throughout the litigation and that any

recovery of fees would be transmitted to

it.

lla

based on purely statutory violations of

federal law and further concluded that the

attorney's fees provisions of 42 U.S.C.

§1988 were therefore applicable.

In Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67

L.Ed.2d 694 (1981), the Supreme Court

indicated in dictum that two factors may

limit the existence of a cause of action

under section 1983. First, the statute

must provide substantive rights to those

who seek to bring an action to enforce the

statute. Second, the Court indicated that

there might be no remedy under section 1983

if any express remedy contained in the

statue is exclusive. The second limitation

was expanded upon in Middlesex County

Sewerage Authority v. National Sea Clammers

Asa'n, 453 U.S. 1, 1201 &.Ct. 2615, 69

L.Ed.2d 435 (1981). In that decision, the

Court found that expressly created statu-

tory remedies in two federal statutes

12a

manifested congressional intent that 4

supplemental remedy under 42 U.S.C. §1983

was precluded.

The Indian trader statutes make no

reference to any statutory remedy.

Therefore, we are not concerned in this

decision with the second limiting factor

enunciated by the Supreme Court. Rather,

we are concerned with the first limitation,

namely whether the Indian trader statutes

create enforceable rights.

III. Indian Trader Statutes

Comprehensive federal regulation of

Indian traders has existed from 1790 until

the present day. The Commissioner of

Indian Affairs is vested with the “sole

power and authority to appoint traders to

the Indian tribes" and to specify the "kind

and quantity of goods and the prices at

which such goods shall be sold to the

Indians." 25 U.S.C. §261. Pursuant to the

authority of the Indian trader statutes,

13a

the Commissioner of Indian Affairs has

promulgated detailed regulations pre-

scribing the manner in which trade shall be

carried on with Indians. See generally 25

C.F.R. §§140.1, - .26 (1984). In Warren

Trading Post Co., the United States Supreme

Court held that the Indian trader statutes

and the regulations promulgated thereunder

preempted the ability of the state of

Arizona to impose a sales tax upon a

company engaged in retail trading business

with Indians on the Arizona part of the

Navajo Indian Reservation. In Central

Machinery Co. v. Arizona State Tax Comm'n,

the Court extended its holding in Warren

Trading Post Co. to a situation involving

an Indian trader who was not licensed and

who did not have a permanent place of

business on the reservation.

The Supreme Court's characterization of

the Indian tra.cr statutes in Warren

Trading Post Co. is determinative of this

14a

appeal:

Wwe think the assessment and collec-

tion of this tax would to a substan-

tial extent frustrate the evident

congressional purpose of ensuring

that no burden shall be imposed upon

Indian traders for trading with

Indians on reservations except as

authorized by Acts of Congress or by

valid regulations promulgated under

those Acts. This state tax on gross

income would put financial burdens on

appellant or the Indians with whom it

deals ... and could thereby disturb

and disarrange the statutory plan

Congress set _ up in order to protect

dians against rices deemed unfair

Indians against PEs ee ee —tndiat

unreasonable by the Indian

Commissioner.

—SooS———————S—SO

380 U.S. at 690-91 (emphasis added). The

Court's description of the Indian trader

statutes reflects its conclusion that

Congress' intent in passing the statutes

was to “protect Indians. against prices

deemed unfair or unreasonable by the Indian

Commissioner." We conclude that the Indian

trader statutes therefore establish

enforceable rights and thus fit within the

phrase "and laws" contained in 42 g.8.¢. %§

1983. See Chase V- McMasters, 573 F.2d

1011 [5 Indian L. Rep. c-8] (8th Cir.

15a

1978), cert. denied, 439 U.S. 965, 99 S.Ct.

453, 58 L.Ed. 2d 423 (1978).

Iv. Analysis

We believe that our conclusion is also

supported by the decision of the Ninth

Circuit Court of Appeals in White Mountain

Apache Tribe v. Williams, No. 81-5348 (11

Indian L. Rep. 2056] (9th Cir., Feb. 7,

1984), rehearing granted, (April 25, 1984).

in that case, the court held that pre-

emption of Arizona state taxes by a federal

law regulating the harvest and sale of

tribal timber did not’ create cights

enforceable under section 1983. The

court's reasoning combined with the

interpretation of the Indian trader

statutes given by the Supreme Court in

Warren Trading Post Co. requires that we

reach the contrary result in the present

case.

In White Mountain apache Tribe, the

court noted that the “availability of a

16a

§1983 cause of action for state violations

of federal statutory law depend[s] upon

congressional intent in passing the statute

at issue." Slip op. at 14. The court

recognized that a preemption claim under a

federal statute may give rise to a section

1983 cause of action. Id. at 16. Bmt.Ghr

Gould, Inc. vV- Wisconsin Dept. of Industry.

Labor and Human Relations, 750 F.2d 608

(7th Cir. 1984), review granted, 53

U.S.L.W. 3821 (U.S., May 20, 1985) (No. 84-

1484). As the court noted, the quest ion

becomes one of congressional intent.°

3pespite a persuasive dissent, 4

majority of the court found that the

central purpose of the federal law

regulating the harvest of timber on Indian

reservations was merely to grant to the

Secretary of the Interior authority to

regulate the harvest and sale of the

tribe's own timber. Thus, the court

concluded that the statute created no new

rights. The court further concluded that

Congress' purpose in promoting tribal self-

government likewise gave rise to no rights

cognizable under section 1983. The court

viewed the federal statute as allocating

the power to tax the timber activities

among different sovereigns and that the

distribution of such powers between a state

17a

In light of Warren Trading Post Co., we

must necessarily conclude that the Indian

trader statutes do evidence a congressional

intent to create enforceable rights. As

explained by the United States Supreme

Court, the purpose behind these statutes is

to “protect Indians against prices deemed

unfair or statutes is to "protect Indians

against prices deemed unfair or unreason-

able by the Indian Commissioner." 380 U.S.

at 691. We view this statement as an

express indication by the Supreme Court

that Congress intended that for the benefit

and protection of Indians, the tribes were

entitled to the right to be free from state

taxation on their transactions with

traders.

and an Indian tribe was outside the scope

of section 1983.

The dissent concluded that the federal

law reflected a congressional intention to

benefit specially Indian tribal timberland

owners and to confer federal rights upon

then. The dissent appears to us to have

the better argument.

18a

The state of Arizona relies heavily on

Consolidated 2 tways Corp. v. Kassel,

730 F.2d 1139 (8th Cir. 1984), cert.

denied, U.S. , 105 S.Ct. 126,

L.Ed.2d (1984). In that decision, the

plaintiff had been successful in invali-

dating Iowa's ban on 65-foot twin trailer

trucks under the commerce clause. The

plaintiff then sought fees alleging that

the commerce clause claim was cognizable

under section 1983. The court rejected the

request finding that the commerce clause

did not grant enforceable rights but rather

allocated power between the state and

federal governments. Id. at 1144. Thus,

the decision is not at all analogous

because here we are concerned with 4a

supremacy clause claim predicated upon 4

federal law which has as its avowed purpose

the protection of Indians in their business

relationships with traders.

Our holding is also consistent with the

19a

Ninth Circuit decision in Boatowners and

Tenants Ass'n v. Port of Seattle, 716 F.2d

669 (9th Cir. 1983). In that decision, the

court rejected the contention that the

plaintiffs had a section 1983 claim under

the River and Harbor Improvements Act. The

court found that the purpose of the Act was

to “improve navigation, enhance commerce,

and reduce vehicle-vessel traffic problems,

all to the benefit of the general public."

Id. at 673 (emphasis added). The court

concluded that there was no "evidence

whatsoever of an intent" to create "any

special benefit" for the class of pleasure

craft owners. Id. at 673-74. The River

and Harbor Improvements Act can be easily

contrasted with the Indian trader statutes

by virtue of the supreme Court's clear

characterization of Congress' intent under

the Indian trader statutes to benefit and

protect Indians in their dealings with

traders.

20a

The Ninth Circuit Court of Appeals in

' white Mountain Apache Tribe acknowledges

“F

that claims under the supremacy clause may

involve rights enforceable under section

1983. For the foregoing reasons, we hold

that such a claim has been presented in

this matter and we therefore affirm the

ruling of the superior court. 4

47mne state's final argument can be

easily dismissed. The state argues that

only Congress, not the courts, can author-

ize attorney's fees. Alyeska Pipeline

Serv. Co. v. Wilderness Society, 421 U.S.

420, 95 S.Ct. 1612, 44 L.Ed.2da 141 (1975).

Because the Indian trader statutes make no

reference to fees, the state alleges that a

few award is impermissible. But Congress

has expressly provided for an award of fees

in section 1983 suits. 42 U.S.C. §1988.

we have determined that Central Machinery's

claim is one properly brought under section

1983 and therefore the provisions of 42

U.S.C. §1988 are applicable.

APPENDIX c

INDIAN SELF-DETERMINATION ACT

REGULATIONS, 25 C.F.R. PART 271 AND PART 274

RULES AND REGULATIONS

SUBPART A——GENERAL PROVISIONS

(EXCERPTS)

§ 271.1 Purpose and scope.

(a) The purpose of the regulations in this Part is to give

the application and approval process for non-profit con-

tracts with the Bureau under section 102 of Title I of the

Indian Self-Determination and Education Assistance Act

(Public Law 93-638, 88 Stat. 2203). Title I is known as the

Indian Self-Determination Act. Contracts under the Act in-

clude “tribal governmental functions” as defined in §

271.2(q), “business related functions” as defined in §

271.2(d), and certain contractable trust resources programs

or parts of programs as set forth in § 271.82. The nature of

contracts with Indian entities which do not fall within the

purview of the Act, including contracts which may provide

for profit, and the conditions for entering into such con-

tracts, are set forth in the regulations implementing the Act

of June 25, 1910 (86 Stat. 861, 25 U.S.C. 47), commonly

referred to as the “Buy Indian” Act.

(b) Section 104 of Title I of the Act provides authority for

making grants for certain purposes. It is the Bureau's policy

to make grants for the purposes specified in Section 104 of

the Act in lieu of contracts, Part 272 of this chapter gives

the procedures and requirements for obtaining grants

under section 104 of the Act.

(1) Affecting, modifying, diminishing, or otherwise im-

22a

Indian tribe;

(2) Authorizing or requiring the termination of any trust

responsibility of the United States with respect to the Indian

people; or

(3) Permitting significant reduction in services to Indian

people as a result of this Part.

(d) Nothing in these regulations shall be construed to

mandate a tribe to apply for a contract or contracts with the

Bureau to plan, conduct, and administer all or parts of any

| Bureau program. Such applications under these regulations

are strictly voluntary.

--§ 271.2 Definitions

(i) “Indian” means a person who is a member of an

Indian tribe.

| (j) “Previously private school” means a school (other than

a Federal school formerly operated by the Bureau) that is

operated primarily for Indian students in any grade or

grades from age 8 years through grade(s) 12; and, which at

the time of application is controlled, and sanctioned or

chartered by the governing body(s) of an Indian tribe(s).

(n) “Superintendent” means the official in charge of a

_ Bureau of Indian Affairs agency office except that:

(2) The term means the Chief, Division of Facilities

_ Engineering, for matters regarding contracting for all or

part of the construction, building, and utilities program

which is contractable under this part and which is within

the responsibility of the Division of Facilities Engineering.

(p) “Tribal government, “tribal governing body” and

“tribal council” means the recognized governing body of an

Indian tribe.

23a

(q) “Tribal governmental function” means all programs

authorized to be administered by the Bureau for the benefit

of Indians enumerated as line items in the Bureau's annual

budget requests under the Activities of Education and

Indian Services, the Subactivities of Direct Employment

and Road Maintenance, and those programs related to Ir-

rigation and Power Operation and Maintenance identified

‘as a part of the subactivity minerals, mining, irrigation and

power under the Activity of Tribal Resources Development.

(x) “Tribal organization” means the recognized governing

body of any indian tribe; or any legally established

organization of Indians or tribes which is controlled, sanc-

tioned, or chartered by such governing body or bodies or

which is democratically elected by the adult members of the

Indian community to be served by such organization and

which includes the maximum participation of Indians in all

phases of its activities; Prouded, That a request for a con-

tract must be made by the tribe that will receive services

under the contract; Prouded further, That in any case

where a contract is let to an organization to perform services

benefiting more than one Indian tribe, the approval of each

such Indian tribe shall be a prerequisite to the letting of

such contract.

§ 271.4.Statement of policy.

(a) The Congress has recognized the obligation of the

United States to respond to the strong expression of the

Indian people for self-determination by assuring maximum

Indian participation in the direction of educational as well

as other Federal services to Indian communities so as to

render such services more responsive to the needs and

desires of those communities.

(b) The Congress has declared its commitment to the

24a

ee es

—

;

maintenance of the Federal Government's unique and con-

tinuing relationship with and responsibilities to the Indian

people through the establishment of s meaningful Indian

Pi determination policy which will permit an orderly tran-

- PART 274——SCHOOL CONSTRUCTION

CONTRACTS OR SERVICES FOR

TRIBALLY OPERATED

| PREVIOUSLY PRIVATE SCHOOLS

SUBPART A——-GENERAL PROVISIONS

§ 274.1 Purpose

The purpose of the regulations in this Part is to give the

application and approval process for obtaining a contract

or services from the Bureau for school construction for

previously private schools now controlled and operated by

tribes or tribally approved Indian organizations under se-

cons 204 and 208 of Title I of the Indian Self-

Determination and Education Assistance Act (Pub. L.

93-688. 88 Stat. 2205).

| § 274.2 Scope. |

4 The Act authorizes the expenditure of funds authorized

|| and appropriated under Part B of the Act to contract or

provide for tribally operated previously private schools.

After an application has been completed and approved by

the tribe, the application is forwarded through Bureau

channels to the Commissioner for ranking by priority. If a

project is within the funding priority, the Bureau contrac:

ting officer offers to negotiate a contract with the applicant

subject to approval by the requesting tribe(s) for planning.

25a

sl iicaceniaieiiaalitieeaammaniiillll

architectural-engineering design, facilities, construction,

and purchase of equipment.to provide educational facilities

meeting Bureau space standards and construction code

regulations. Subject to approval by the requesting tribe(s),

the applicant then has the following options:

(a) Enter into a contract with the Bureau under which the

applicant performs all or part of the necessary work with the

Bureau performing the rest.

(b) Request that the Bureau perform or arrange for the

performance of all the necessary work.

[40FR 51303, Nov. 4, 1975, as amended at 43 FR $7445,

Aug. 23, 1978]

(a) “Act” means the Indian Self-Determination and

Education Assistance Act (Pub. L.93-638.88 Stat. 2203).

{n) “Previously private school” means a school (other than

a Federal school formerly operated by the Bureau), that is

operated primarily for Indian students from age 5 years

through grade(s) 12; and, which at the time of application

is controlled, sanctioned, or chartered by the governing

body(s) of an Indian tribe(s).

96a

—egncee rey

APPENDIX D

25 CFR PART 32, EXCERPTS,

IMPLEMENTING PUBLIC LAW 95-561, TITLE xI

25 U.S.C. §§2001-2019.

PART 32 ——INDIAN EDUCATION

POLICIES

$32.1 Purpose and scope.

The purpose of the Part is to state the policies to Be

followed by all schools and education programs under the

jurisdiction of the Bureau of Indian Affairs. Contract

schools operated by Indian Tribes or Alaska Native entities

may develop their independent policies, consistent with

contractual obligations, or adhere to these. The adherence

to the appropriate policies shall reflect the best interests of

the student, the Federal government, the Tribes and Alaska

Native entities, and shall be based on educationally round

judgment.

§32.3 Mission statement

Recognizing the special rights of Indian Tribes and

Alaska Native entities and the unique govermment-to-

government relationship of Indian Tribes and Alaska

Native villages with the Federal Government as affirmed by

the United States Constitution, United States Supreme

Court decisions, treaties, Federal statutes, and Executive

Order, and as set out in the Congressional declaration in

sections 2 and 3 of the Indian Self-Determination and

Education Assistance Act (Pub. L. 95-658; 88 Stat. 2203; 25

U.S.C. 450 and 450a), it is the responsibility and goal of the

Federal government to provide comprehensive education

programs and services for Indians and Alaska Natives. As

27a

acknowledged in section 5 of the Indian Child Welfare Act

of 1978 (Pub. L. 95-608; 92 Stat. $069; 25 U.S.C. 1901), in

the Federal Government's protection and preservation of

Indian Tribes and Alaska Native villages and their

resources, there is no resource more vital to such Tribes and

villages than their young people and the Federal Govern-

ment has a direct interest, as trustee, in protecting Indian

and Alaska native children, including their education. The

mission of the Bureau of Indian Affairs, Office of Indian

Education Programs, is to provide quality education oppor-

tunities from early childhood through life in accordance

with the Tribes’ needs for cultural and economic well-being

in keeping with the wide diversity of Indian Tribes and

Alaska Native villages as distinct cultural and governmental

entities. The Bureau shall manifest consideration of the

whole person, taking into account the spiritual, mental,

physical and cultural aspects of the person within family

and Tribal or Alaska Native village contexts.

§32.4 Policies

(n) Priorities tn contracts and grants. Provide financial

support through contracts, grants or other funding

mechanisms with first priority given to the Tribes and

Alaska Native entities, Tribal organizations, Tribally con-

trolled community colleges, and Indian or Alaska Native

professional or technical assistance organizations which

have the sanction of the benefitting Tribes and Alaska

Native entities.

(0) Community school concept. Promote the community

school concept by encouraging year around multi-use of

educational facilities, equipment and services for Tribal,

Alaska Native village and community development.

(p) Education close to home. Provide day and residential

educational services as close to an Indian or Alaska Native

student's home as possible, except when a student elects to

r tend a school elsewbere for specialized curricular offerings

or services.

29a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.