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July 1, 2004.

GALE NORTON, Secretary of the Interior; DAVID ANDERSON, Assistant Secretary of Indian Affairs; CLAY GREGORY, Acting Regional Director, Pacific Regional Office, Bureau of Indian Affairs; and DALE RISLING, SR., Superintendent of the Central California Agency of Bureau of Indian Affairs, Defendants.

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge



This case presents an issue of first impression whether the "contractible programs" authorized by the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450 et seq., include the contracts contemplated by the Indian Law Enforcement Reform Act of 1990, 25 U.S.C. § 2801 et seq. This order holds in the affirmative and therefore denies the government's motion to dismiss.


  The Hopland Band of Pomo Indians is a federally-recognized Indian tribe. The tribe is the beneficial owner of the Hopland Indian Reservation, which covers approximately 2,070 acres of trust and fee land in Mendocino County, California. The tribe exercises powers of self-government on its reservation through the Hopland Tribal Council, its governing body. Pursuant to the authority granted to it under the Hopland constitution, the tribal council adopted an ordinance in July 2002 creating the Hopland Police Department, which provides law enforcement on the reservation to all persons who live, work and visit there. The council's decision to create a police department was a response to the steady increase in visitors to a reservation casino that opened in August 1996. Nearly 8,000 people now visit the casino on a daily basis.

  To provide more effective law enforcement on the reservation, the council determined that some of the tribe's police officers should apply to the federal government for commissions to be deputized to enforce federal law on the reservation. Such commissions are authorized by the federal Indian Law Enforcement Reform Act (ILERA). The council also determined that the officers should apply to the Mendocino County Sheriff's Department for peace-officer status under the California Penal Code so they could similarly enforce California criminal law. A sheriff of any county within California may deputize any federal or state law enforcement officer as a peace officer with the authority to enforce the provisions of the California Penal Code. See Cal. Penal Code § 830.6.

  Traditionally, the enforcement of federal law on Indian lands has been a responsibility of the Bureau of Indian Affairs, an agency within the Department of the Interior. Under the ILERA, the BIA is authorized to delegate that responsibility to tribal police through a written contract and, once the contract is in place, through federal commissions called "special law enforcement commissions" or "SLECs" issued to individual tribal officers determined to be qualified on a case-by-case basis. The written contract is commonly referred to as a "deputation agreement." It sets forth the scope of the tribal police officers' authority under the SLECs and the type of training, certification and security clearance the tribal officers must complete before they can be commissioned as federal agents. The BIA maintains a standard deputation agreement that can be modified on a case-by-case basis as necessary. The details of this statute and the implementing regulations will be set forth below.

  In February 2003, Michael B. Meese, Chief of the Hopland Police Department, submitted applications for SLECs pursuant to the ILERA to the Sacramento office of the law enforcement division of the BIA for himself and two other tribal officers (Compl. ¶ 21). The government concedes that it began the process of negotiating the necessary deputation agreement with the Hopland Band (Br. 6). Chief Meese's applications were "approved" by the BIA's office of law enforcement services in Phoenix (Compl. ¶ 22). That office prepared SLEC cards for the three tribal officers and sent them to Chief Meese. In March 2003, Chief Meese returned signed SLEC cards to the BIA's Phoenix office for affixing photos, lamination and subsequent return to the tribe (id. ¶ 23). The BIA, however, never returned the signed SLEC cards to the Hopland Band (id. ¶ 24).

  Instead, the BIA informed the tribe that the Department of the Interior had placed a moratorium on the issuance of any further deputation agreements (ibid.). The department said it was reviewing the terms and conditions of its standard deputation agreement (ibid.). In June 2003, the Hopland Band, through counsel, requested that the Assistant Secretary of Indian Affairs provide "a waiver from the moratorium on issuing Special Law Enforcement Commissions" for Chief Meese and two other tribal police officers (id. ¶ 27). The request was denied in August 2003. The denial provided in relevant part (id. Exh. C):
The Federal Government has an interest in ensuring that Federal and federally commissioned officers are able to respond to calls immediately and with all of the necessary and recommended law enforcement tools. The BIA has determined that it is necessary to clarify the authority that SLEC Agreements confer on tribal law enforcement. Consequently, it is necessary to refine the model SLEC Agreement to make clear the BIA's intent and policy regarding law enforcement in Indian country throughout the United States. The BIA relies on these agreements to help provide effective law enforcement. Due to the importance of these agreements and the impact they have on numerous agencies, this clarification has involved an in-depth interagency effort. The BIA, in consultation with the Department of Justice, will finalize the model agreement as expeditiously as possible. No new agreements will be signed until that time.
  In response, the Hopland Band invoked yet another federal statute, the Indian Self-Determination and Education Assistance Act (ISDEAA), often referred to as Public Law No. 93-638. It requires the Secretary of the Interior to enter into certain types of contracts aimed at enhancing tribal self-government. The Hopland Band prepared and submitted to the BIA a proposed contract under the ISDEAA (often called a "638 contract") for law enforcement services that "the BIA currently provides on Indian Reservations throughout the United States, including the State of California" (id. ¶ 29). The contract set forth the scope and criteria of the proposed program for law enforcement services, including the minimum standards the tribe's police officers would need to be commissioned as federal deputies, very much like the deputation contract contemplated under the ILERA (id. Exh. D). In effect, the tribe sought to obtain the deputation agreement authorized by the ILERA as a "contractible" program under the ISDEAA. The programs or services subject to contract under the ISDEAA are listed below. Under the ISDEAA, the Secretary of the Interior is mandated to enter into contracts with tribal governments for law enforcement services (or other "contractible" service) unless the Secretary makes specific findings to justify rejecting the proposed contract.

  In October 2003, defendant Dale Risling, Sr., Superintendent of the Central California Agency of the BIA, notified the Hopland Band that the BIA had rejected the tribe's 638 contract for law enforcement services. The BIA set forth three reasons to support its decision, specifically that: (i) deputation agreements and SLECs were not "programs, functions, services or activities" contractible under the ISDEAA; (ii) since California is a Public Law 280 state, the BIA did not provide law enforcement services to tribes within the state; and (iii) the Department of the Interior had placed a temporary nationwide moratorium on the issuance of deputation agreements preventing the BIA from concluding one with the tribe (id. Exh. E).

  * * *

  In November 2003, the Hopland Band's police department investigated two crimes that occurred on the reservation and referred the complaints to the Mendocino County District Attorney for prosecution. The district attorney returned the two cases explaining (id. ¶ 32):
. . . [A] prosecutor's office can only accept referrals directly from a law enforcement agency employing policeman [sic] with official peace officer's status as defined under Penal Code section 832 et seq. Since your department does not yet fall under the Penal Code as an official police department we cannot accept referrals directly from you.
Although California Penal Code Section 830.6(b) authorizes a county sheriff to deputize a tribe's police officers as California peace officers, the sheriff's department in Mendocino County refused to so deputize the Hopland Band's police officers until the officers were issued SLECs and deputized by the federal government (id. ¶ 33). So, the tribe needs the federal deputation in order to be cross-deputized to enforce state law.

  * * *

  Based on the foregoing, the Hopland Band filed this action in January 2004, asserting five claims. The tribe contends that the government violated the ISDEAA by declining to enter into its proposed 638 contract for law enforcement services (id. ¶¶ 41-42). According to the tribe, the decision unreasonably discriminated against the tribe and its members in violation of the Fifth Amendment to the United States Constitution (id. ¶ 37), was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § ...

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