Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit
04-1029
KAW NATION,
Appellant,
v.
Gale A. Norton, SECRETARY OF THE INTERIOR,
Appellee,
and
KAW NATION OF OKLAHOMA, ex rel. GUY MUNROE,
WANDA STONE, GUYETTA MONROE-MARTIN,
and THE KAW NATION GENERAL COUNCIL,
Intervenors.
Michael Minnis, Doerner, Saunders, Daniel & Anderson, L.L.P., of Oklahoma
City, Oklahoma, argued for appellant.
Kyle E. Chadwick, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for appellee. With him
on the brief were Peter D. Keisler, Assistant Attorney General, and David M. Cohen,
Director.
Lindsay R. Naas, of Chandler, Arizona, argued for intervenors. Of counsel on
the brief were Charles A. Hobbs, Jerry C. Straus, and Eric D. Lemont, Hobbs, Straus,
Dean & Walker, LLP, of Washington, DC.
Appealed from: United States Department of Interior Board of Contract Appeals
United States Court of Appeals for the Federal Circuit
04-1029
KAW NATION,
Appellant,
v.
Gale A. Norton, SECRETARY OF THE INTERIOR,
Appellee,
and
KAW NATION OF OKLAHOMA, ex rel. GUY MUNROE,
WANDA STONE, GUYETTA MONROE-MARTIN,
and THE KAW NATION GENERAL COUNCIL,
Intervenors.
___________________________
DECIDED: May 2, 2005
___________________________
Before MICHEL, Chief Judge, SCHALL and DYK, Circuit Judges.
DYK, Circuit Judge.
Appellant, styled Kaw Nation (“the EC4 Group”), claims to represent the
federally-recognized Kaw Nation Indian tribe. The EC4 Group appeals from a decision
by the Department of the Interior Board of Contract Appeals (“IBCA” or “Board”). The
Board held that the Department of Interior (“Interior”) was not authorized to accept the
retrocession of the tribal court program and required that the agency release withheld
program funds to the tribe pursuant to the 2003 Annual Funding Agreement of the
Nation’s self-governance compact. Kaw Nation ex rel. Guy Munroe, Executive Council
Chairman; Wanda Stone and Guyetta Monroe-Martin, Executive Council Members; and
the Kaw Nation Gen. Council, No. IBCA 4455A (July 31, 2003) (“IBCA Decision”).
Appellee, Gale A. Norton, Secretary of Interior (“Interior”) urges that the appeal should
be dismissed as moot, in light of the fact that the government has now paid the disputed
amounts and will not seek to recover them, and also urges us to vacate the Board’s
decision. Intervenors, styled Kaw Nation of Oklahoma, ex rel. Guy Munroe, Wanda
Stone, Guyetta Monroe-Martin, and the Kaw Nation General Council (“the Munroe
Group”) were the prevailing parties before the IBCA, and also claim to represent the
Kaw Nation. The Munroe Group agrees that the appeal should be dismissed as moot,
but urges that we not vacate the judgment. We agree that the case is moot, but hold
that exceptional circumstances warrant vacatur of the judgment.
BACKGROUND
The Kaw Nation is a federally-recognized Indian tribe, organized pursuant to the
Oklahoma Indian Welfare Act of 1936, ch. 831, 49 Stat. 1967, codified in 25 U.S.C.
§ 501 et seq., and operating under a constitution adopted by the Nation and approved
by Interior on August 4, 1990. The present controversy is basically an intratribal dispute
between two factions of the Kaw Nation—the EC4 Group, and the opposing faction, the
Munroe Group. The controversy has resulted in litigation before the Board (which is the
subject of the present appeal); in the Kaw Nation tribal courts; the Oklahoma state
04-1029 2
courts; the United States District Court for the Western District of Oklahoma; the Tenth
Circuit; and before the Interior Board of Indian Appeals (“IBIA”).1
Under its constitution, the Tribe has two legislative bodies: a seven-member
Executive Council and a General Council composed of all adult tribal members. The
Executive Council is empowered to act by majority vote. The constitution also provides
for a judicial branch, composed of a Supreme Court consisting of three judges and such
inferior courts as may be established by tribal law. The constitution provides that judges
of the Kaw Supreme Court and judges of the inferior courts are selected by the
Executive Council and confirmed by the General Council.
At the time the Tribe’s constitution was approved, the Kaw Nation did not have
an operating court system, and judicial power was then vested in the Interior
Department, Bureau of Indian Affairs (“BIA”) Court of Indian Offenses. The Kaw
Nation’s court system was established in 1991. Funding for the tribal courts has been
provided by the Federal Government by agreement with the Tribe pursuant to the Indian
Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (“ISDA”).
This agreement is enforceable against the government if the required payments are not
made. See generally Cherokee Nation of Okla. v. Leavitt, 125 S. Ct. 1172 (2005).
Among the monies to be paid to the tribe in 2003 under the agreement were funds in
1
See, e.g., In re Removal of Clyde F. McCauley, No. CIV-02-12, (Kaw
Tribal District Court, March 12, 2003); In re Removal of Clark Pepper, No. CIV-02-13,
Kaw Tribal District Court, March 12, 2003; Michael Minnis & Assocs., P.C. v. Kaw
Nation, 90 P.3d 1009 (Okla. Ct. App. 2003); Kaw Nation, ex rel. Clyde McCauley v.
Lujan, 378 F.3d 1139 (10th Cir. 2004); Kaw Nation of Okla. v. Acting S. Plains Reg’l
Dir., BIA, IBIA 03-94-A, IBIA 03-107-A, (IBIA June 18, 2003).
04-1029 3
the approximate amount of $7,617, which the tribe was to apply to the approximately
$80,000 annual cost of operating the Kaw Nation Court system.
Under the pertinent regulations, a Tribe that receives funding under a self-
governance compact for a program that would otherwise be administered by the BIA
may voluntarily retrocede the program upon submission of a written notice to the Office
of Self Governance (“OSG”) that includes a “Tribal resolution or other official action of
its governing body”. 25 C.F.R. Ch. VI, Subpart N—Retrocession, § 1000.333 (2004).
The regulations further provide that retrocession will become effective on a date
mutually agreed upon by the Tribe and the BIA, or as provided in the compact. 25
C.F.R. § 1000.334.2
The present controversy arose when, in the middle of 2002, proceedings were
pending in the Tribal Courts to remove appellants, the EC4 group, from their positions
on the Executive Council based on allegations of self-dealing. The EC4 Group, in turn,
alleged defects in the process by which the judges were appointed. Based on these
alleged defects, the EC4 Group, acting as a majority of the Executive Council, sought to
return control of the Kaw Nation courts to the BIA and to release the funds destined for
the operation of the Tribal Courts under the Self-Governance Compact. The EC4
Group claimed this action was authorized by the Tribe’s constitution and by the
applicable federal regulations governing retrocession. At the November 16, 2002,
2
The Kaw Nation Compact of Self-Governance provides that the effective
date of retrocession “shall be forty-five calendar days from the date of request by the
Nation, unless the United States and the Nation mutually agree to an effective date
more or less than forty five calendar days from the date of the request by the Nation.
Then the mutually agreed upon date shall be the effective date of such retrocession.”
(J.A. at 105.)
04-1029 4
meeting, the measure was approved by the EC4 Group, despite the objections of the
remaining three members of the Executive Council, i.e., the Munroe Group. On
December 12, 2002, the EC4 Group further formalized this action when, acting as a
majority of the Executive Council, it passed a resolution to “explicitly turn[] the control of
its courts back to the BIA and submit[] to the jurisdiction of the courts of the [BIA] and
knowingly release[] the monies . . . under said compact.” Kaw Nation Executive Council
Resolution No. 96A. The controversy continued when, on February 9, 2003, the Kaw
General Council purported to cure one of the alleged defects in the selection of judges
by approving those appointments that were in question.
On February 28, 2003, based on the actions of the Executive Council, the OSG
recognized the retrocession of the tribal court program, and informed the Executive
Council that it was retaining a portion of the Kaw Nation’s 2003 funding for tribal courts
and would use the funds to defray the costs of operating a court system for the Tribe.
The OSG informed the tribe that as of five days from the date of the letter (March 5,
2003), the Nation could not expend federal funds for its tribal courts, and that any funds
expended for that purpose would be deemed disallowed costs subject to required
repayment. The letter also stated that the decision could be appealed to the IBCA,
consistent with 25 C.F.R. § 1000.428, which entitles Tribes to appeal post-award
administrative decisions to the IBCA. Under 25 C.F.R. § 900.230, which is incorporated
by reference into 25 C.F.R. § 1000.429, “Indian tribes and tribal organizations shall
continue performance of a contract during the appeal of any claims.”
Despite the February 2003 OSG decision, the removal actions against the EC4
members nonetheless proceeded in the tribal courts. On March 10, 2003, the Kaw
04-1029 5
Nation district court issued separate decisions removing two of the four members of the
EC4 Group from the Executive Council.3 Then, on March 17, 2003, the BIA advised the
Executive Council Chairman that it had “re-assumed” jurisdiction over civil and criminal
matters for the Kaw Nation, and that it would no longer recognize orders and decisions
issued by the Kaw Nation courts. (J.A. at 69.) On April 8, 2003, the BIA further notified
the Executive Council that it would not recognize any actions taken by the tribal court
after February 28, “the date the [OSG] accepted the retrocession of the Tribal Court
under Kaw Executive Council Resolution No. 96A.” (J.A. at 71.) On April 29, 2003, the
BIA published a final Federal Register notice, 68 Fed. Reg. 22728 stating that “[t]he
Kaw Nation’s retrocession and closing of its tribal court creates a jurisdictional vacuum”
and that the BIA “must immediately reassume juridical jurisdiction . . . until such time as
the Nation reestablishes its court.”4
The Munroe Group filed an appeal of the February 28, 2003, decision with the
IBCA on March 26, 2003, alleging that the government, in accepting the retrocession of
the tribal courts, had breached the self-determination agreement with the Tribe, and had
improperly withheld approximately ten percent of the $80,000 annual cost of operating
the Kaw Nation court system. On May 7, 2003, the Munroe Group petitioned the Board
for a Stay of the Retrocession action. The Munroe Group claimed, inter alia, that the
3
Removal actions were also proceeding against the other two members of
the EC4 Group. They were removed by order of the tribal court in November of 2003.
4
There was initially some confusion in the proceedings below as to whether
the Tribe’s action was a voluntary retrocession of a federally-funded program, governed
under 25 C.F.R. Part 1000; or required emergency reassumption of judicial jurisdiction,
governed under 25 C.F.R. § 11.100(c); or was subject to both regulatory regimes. The
government later clarified in its filings before the IBCA that Interior’s action involved a
voluntary retrocession and not an emergency reassumption.
04-1029 6
BIA violated various procedural regulations in making the retrocession effective and
also violated the terms of the tribal constitution and of the funding agreement.
Before the IBCA, Interior moved to dismiss the appeal, arguing, inter alia, that the
IBCA lacked jurisdiction to order a stay of a voluntary retrocession of a self-governance
program by the tribal government; that the Munroe Group lacked standing to pursue the
appeal; and that the IBCA lacked jurisdiction to review Interior’s determination regarding
the recognition of tribal officials. In June 2003, the Board nonetheless issued the
requested stay which had the effect of requiring Interior to pay the withheld funds to the
tribe. This payment was subsequently made.
The IBCA found that the Munroe Group had standing to maintain the appeal
because Chairman Munroe “not only headed the Executive Council but . . . was the
Chief Executive Officer of the Nation [and] was expressly authorized by the General
Council to challenge the Department’s action accepting the purported ‘retrocession’ . . .
[and] was also sustained by the General Council when he sought the removal of two of
the EC4 Group and then replaced them with new Executive Council members who
agreed with him that the Nation’s judicial functions should not be retroceded to BIA.”
IBCA Decision, slip op. at 15.
The EC4 Group participated in the IBCA proceeding through the filing of a Notice
of Special Appearance to advise the Board that the Kaw Nation had not authorized the
appeal and subsequently submitted briefs objecting to the Munroe Group’s petition to
stay the retrocession, and in support of the government’s motion for reconsideration of
the Board’s order granting the stay. On July 30, 2003, the EC4 group filed a request
with the IBCA, seeking to be recognized as a party to the action.
04-1029 7
On July 31, 2003, the IBCA, exercising jurisdiction under the Contract Disputes
Act, as made applicable to disputes arising under the ISDA pursuant to 25 U.S.C.
§ 450m-1(d), denied the EC4 Group’s motion to be recognized as a party and granted
the Munroe Group’s motion for summary judgment “nullifying [Interior’s] February 28,
2003, letter and its consequences,” and holding that “[t]he Kaw Nation is entitled to
retain its judicial functions.” IBCA Decision, slip op. at 16. The grounds for the decision
were three-fold.
First, the Board held that the OSG decision of February 28, 2003, “violate[d] the
Compact provisions and the regulations at 25 CFR 1000.334 and 1000.336, [sic]
requiring negotiation with the Chairman, as the designated official under the Compact,
concerning the effective date of the retrocession and the amount of funds, if any, to be
returned to the Government.” Id. at 9.5 Second, the Board concluded that the
“judiciary was not a ‘program’ [within the retrocession regulations] as such [but a]
governmental function,” which could not be retroceded. Id. at 13-14. Third, the Board
held that the OSG “violated principles of Federal Indian law under which an Indian tribe
has the right to interpret its own governing documents in resolving internal disputes” and
that the OSG knew the validity of the retrocession “was openly disputed and was the
subject of ongoing proceedings within the Kaw Nation.” Id. at 9. The Kaw Nation
General Council had “clearly expressed its disapproval of the attempts to retrocede the
judicial branch . . . and the Kaw Nation courts were in the process of rendering a
5
Under the regulations governing retrocession, the effective date of the
retrocession and the amount of funds, if any, to be returned to the government, required
negotiation with the Tribe, 25 C.F.R. §§ 1000.334 and 1000.336.
04-1029 8
decision.” Id. at 10. However, the Board did not explain why its own exercise of
jurisdiction did not raise similar problems concerning interference in intratribal disputes.
The EC4 Group filed an appeal of the IBCA decision with this court in October
2003, challenging, among other things, the Board’s denial of its request to be
recognized as a party. We granted the Munroe Group’s motion for leave to intervene in
November 2003. Interior initially filed a separate appeal of the IBCA decision, which
was then consolidated with the EC4 Group appeal. However, on August 4, 2004, the
Assistant Secretary for Indian Affairs formally rescinded the government’s February
2003 acceptance of the retrocession of funding and stated that the government no
longer wished to pursue its claim to the withheld funds. The letter also “rescinded” the
letters stating the position that the actions undertaken by the Kaw nation courts were
invalid; and acknowledged that the Kaw Nation possessed a functioning court system.6
The parties confirmed at oral argument that the funds which were the subject of
the original dispute before the IBCA have been released and that Interior does not seek
recovery of those funds.
DISCUSSION
This court has jurisdiction to review decisions of the IBCA under 28 U.S.C.
§ 1295(a)(10). Thompson v. Cherokee Nation of Okla, 334 F.3d 1075, 1084 (Fed. Cir.
2003), aff’d sub nom Cherokee Nation of Okla v. Leavitt, 125 S. Ct. 1172 (2005). We
review the IBCA’s assertion of jurisdiction and grant of summary judgment without
6
On February 15, 2005, the BIA rescinded the Federal Register notice of
April 29, 2003 and confirmed the functioning of the Kaw Nation court system. 70 Fed.
Reg. 7756 (Feb. 15, 2005).
04-1029 9
deference. Id.; see also Babbitt v. Oglala Sioux Tribal Pub. Safety Dep’t, 194 F.3d
1374, 1377 (Fed. Cir. 1999).
I
Interior and the Munroe Group urge that the case is moot because the
government has abandoned its appeal, has paid the disputed amounts to the Kaw
Nation, and has waived any right it might have to recover those payments. We agree.
The Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership makes clear that a party’s voluntary action can render moot a case or
controversy. 513 U.S. 18, 20 (1994). The controversy in Bancorp centered on the
applicability of “the new value exception” to the absolute priority rule, and, in particular,
whether or not that exception had survived the enactment of the Bankruptcy Code. Id.
Subsequent to the Supreme Court’s grant of certiorari, the parties stipulated to a
consensual plan of reorganization, which received the approval of the Bankruptcy Court.
Id. The Court held that confirmation of the plan mooted the controversy underlying the
original dispute. Id. Similarly here, the release of the disputed funds and the waiver by
Interior of any future right to secure their return has mooted the controversy that formed
the basis for the original contract action before the IBCA.
II
Although the EC4 Group agrees that there is no longer a live controversy with
respect to the underlying contract claim, it nonetheless urges that the appeal is not
moot. Specifically, it argues that we must decide whether the IBCA properly had
jurisdiction over the dispute. The EC4 Group asserts that the IBCA did not have
jurisdiction because the matter was an internal tribal dispute and because the Munroe
04-1029 10
Group lacked standing to bring the appeal. Appellants further contend that such
jurisdictional challenges can never become moot. We disagree.
While the EC4 Group may be correct that we could decide these jurisdictional
issues before reaching the question of mootness, there is no requirement that we do so.
What the EC4 Group fails to comprehend is that, generally, we may address
jurisdictional issues in any order. See Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005)
(finding judicial review barred and declining to reach issue of Tucker Act jurisdiction);
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) (deciding personal rather
than subject matter jurisdiction issue); Myers Investigative & Sec. Servs., Inc. v. United
States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (holding that standing, like mootness, is a
threshold jurisdictional issue, and deciding issue of standing without reaching mootness
issue). Indeed, where, as here, the underlying controversy is clearly moot, the preferred
course is to decide mootness, before reaching difficult questions more closely tied to the
merits of the underlying controversy, such as subject matter jurisdiction. We therefore
decline to reach the issue of the propriety of the IBCA’s original exercise of jurisdiction
in light of the undisputed fact that the underlying contract claim is now moot, and the
case has “lost its character as a present, live controversy of the kind that must exist if
we are to avoid advisory opinions on abstract questions of law.” Princeton Univ. v.
Schmid, 455 U.S. 100, 103, (1982) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)).7
7
The EC4 Group also argues that the appeal is not moot because the
Munroe Group has applied to the IBCA for attorney fees under the Equal Access to
Justice Act. This argument is without merit. In Bancorp, for example, the Court
recognized that the power of a court to award costs did not prevent the underlying
controversy from being moot. 513 U.S. at 21.
04-1029 11
III
The crux of this case is whether we should simply dismiss the appeal for
mootness, or whether we should also vacate the decision of the Board. In addition to
challenging the denial of its request to be recognized as a party, the EC4 Group urges
that we vacate the decision. The government also urges vacatur. The Munroe Group,
the prevailing party below, opposes. We conclude that the IBCA decision should be
vacated.
Under the Supreme Court’s decision in Bancorp, when a case becomes moot by
voluntary action of the losing party, vacatur of the judgment on appeal is generally not
appropriate.8 513 U.S. at 24-25. However, there is an exception for special
circumstances:
[M]ootness by reason of settlement does not justify vacatur of a judgment
under review. This is not to say that vacatur can never be granted when
mootness is produced in that fashion. As we have described, the
determination is an equitable one, and exceptional circumstances may
conceivably counsel in favor of such a course.
Id. at 29.
Thus, any appraisal of whether exceptional circumstances warrant vacatur
requires a balancing of the equities, and, in particular, a weighing of the public interest
in preserving “the orderly operation of the federal judicial system” versus the private
interests of the parties seeking vacatur. Id. at 27.
8
Although Interior contends that the BIA’s rescission letter of August 2004
should not be considered voluntary action, but rather an independent agency action,
that contention is without merit. See Karcher v. May, 484 U.S. 72, 83 (1987) (decision to
decline to pursue an appeal constitutes voluntary action).
04-1029 12
While we doubt that the judgment, if not vacated, could have any continuing res
judicata or collateral estoppel effect on the EC4 Group,9 the decision of the IBCA may
have continuing effects as precedent. Under these circumstances, the equities favor
vacating the judgment.
First, the judgment potentially affects parties who did not cause the controversy
to become moot. If only the Secretary, the party that caused the case to become moot,
were affected by the precedential effect of the decision, vacatur on appeal would not be
appropriate. As the Court observed in Bancorp, where “the losing party has voluntarily
forfeited his legal remedy by the ordinary processes of appeal . . . [,] the judgment is not
unreviewable, but simply unreviewed by his own choice.” 518 U.S. at 25.
However, the EC4 group had nothing to do with the mootness, and, in fact,
strenuously opposed the actions of the Secretary that caused the case to become moot.
The primary effect of leaving the decision in place is to potentially adversely affect its
interests.
The Munroe Group urges that exceptional circumstances are not present here,
asserting that they are entitled to the benefit of the Board decision in their continuing
dispute with the EC4 Group. They argue that the EC4 appeal should be “dismissed,
with prejudice” (Br. of Intervenor at 15.) and that “[k]eeping the IBCA decision intact
assures that no one can challenge the validity of the Kaw Nation tribal court system—
especially during the period from February 28, 2003 through July 31, 2004.” (Br. of
9
See Dana v. E.S. Originals, Inc., 342 F.3d 1320, 1323 (Fed. Cir. 2003)
(holding that parties to be collaterally estopped must have had an opportunity to fully
and fairly litigate the issue in question); Aqua Marine Supply v. Aim Machining, Inc., 247
F.3d 1216, 1221 (Fed. Cir. 2001) (recognizing the issue but declining to decide on the
facts of that case).
04-1029 13
Intervenor at 25.) Far from negating the existence of exceptional circumstances, we
think that this desire to preserve any effects of the IBCA decision regarding the validity
of the court system demonstrates the existence of the exceptional circumstances that
Bancorp requires in order to justify vacatur. See Associated Gen. Contractors v. City of
New Haven, 41 F.3d 62, 67 (2d Cir. 1994) (noting that the rationale of avoiding any
adverse collateral effects of a judgment mooted during the pendency of the appeal was
“especially compelling when the party that prevailed [below] seeks to moot the appeal”);
see also Aqua Marine, 247 F.3d at 1220-21.
Courts have held that even “moral appraisals” and the potential practical effect
on third parties may make vacatur appropriate. In Microsoft Corp. v. Bristol Technology,
Inc., 250 F.3d 152 (2d Cir. 2001), the Second Circuit found that exceptional
circumstances sufficient to vacate a judgment based on voluntary settlement included
the fact “that individuals (some not named parties) are the subject of moral appraisals
integral to the findings on punitive damages.” Id. at 156; see also N. Cal. Power Agency
v. Nuclear Regulatory Comm’n, 393 F.3d 223, 225 (D.C. Cir. 2004) (granting appellant’s
request to vacate an agency order when appellant was not a party to the settlement
between the appellee and the intervenor that mooted the order).
Second, the decision of the Board in this case, invalidating a decision of the
Secretary, at its heart involves an intratribal dispute and in this respect presents difficult
and complex issues that may be beyond the Board’s jurisdiction. Typically, the courts
are reluctant to resolve such intratribal disputes at all because their resolution is viewed
as an intrusion into tribal sovereignty. The Supreme Court, on various occasions, has
reaffirmed the principle that “Indian tribes occupy a unique status under our law” and
04-1029 14
that they “retain some of the inherent powers of the self-governing political communities
that were formed long before Europeans first settled in North America.” Nat’l Farmers
Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985) (citations omitted).
In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59-60 (1978), the Court recognized a
need to respect tribal sovereignty by avoiding the resolution of intratribal disputes in the
federal courts, and noted, in particular, that “resolution in a foreign forum of intratribal
disputes of a more ‘public’ character, . . . cannot help but unsettle a tribal government’s
ability to maintain authority.”
The same concern exists with respect to the authority of the IBCA to resolve
tribal disputes. The IBCA has exclusive jurisdiction to hear claims regarding self-
determination contracts that are brought pursuant to the Contract Disputes Act.
However, it is by no means apparent that the Contract Disputes Act confers jurisdiction
to resolve intratribal disputes. Arguably, if the federal government is to play any role in
deciding such disputes, the appropriate agency is the BIA. The BIA has “both the
authority and responsibility to interpret tribal law when necessary to carry out the
government-to-government relationship with the tribe.” Ransom v. Babbitt, 69 F. Supp.
2d 141, 150 (D.D.C. 1999) (quoting United Keetowah Band of Cherokee Indians in
Okla. v. Muskogee Area Dir., 22 IBIA 75, 80 (June 4, 1992)) (emphasis omitted). Such
BIA decisions concerning matters of tribal governance are generally appealable to the
Board of Indian Appeals,10 and not to the Board of Contract Appeals.11 See 43 C.F.R. §
10
Decisions of the BIA made at the level of Assistant Secretary or above,
are apparently reviewable in district court. Shawnee Tribe v. Assistant Sec’y Indian
Affairs, 39 IBIA 4 (2003).
04-1029 15
4.1(b)(2)(i) (2004) (BIA administrative actions issued under 25 C.F.R. Chapter I (which
includes Tribal Government matters) are appealable to the IBIA). On the other hand, it
may be argued that the Board, in the exercise of its undisputed jurisdiction over the
contracts dispute, inevitably was required to resolve the intratribal dispute.
As noted earlier, we decline to decide this difficult issue of the Board’s authority.
It is sufficient that other cases have recognized the appropriateness of vacating a
judgment on appeal when there are questions as to the authority of the tribunal under
review. In Microsoft, the Second Circuit determined that exceptional circumstances
warranted vacatur of a district court order that awarded $1 million in punitive damages
and granted injunctive relief, subsequent to the parties’ voluntary settlement of a federal
and state antitrust dispute, in part because it was “unclear whether the district court had
the power to reach the issue of punitive damages.” 250 F.3d at 155. Similarly, in Wal-
Mart Stores, Inc. v. Rodriguez, 322 F.3d 747, 750 (1st Cir. 2003), the First Circuit found
that, after the parties had voluntarily settled the underlying dispute, federalism concerns
nonetheless provided exceptional circumstances sufficient to support vacatur of an
“unusual” federal district court injunction that restrained local law enforcement from
bringing a Puerto Rican antitrust action. So here, tribal sovereignty concerns and the
questions as to the IBCA’s jurisdiction to resolve intratribal disputes support a finding of
exceptional circumstances that warrants vacatur.
11
In this case, the Munroe Group sought review before the IBIA of the OSG
decisions of March 17, 2003 (advising that the BIA had reassumed jurisdiction over civil
and criminal matters) and April 8, 2003 (advising that the BIA would not recognize the
removal of two EC4 Group members that occurred after the February 28, 2003
decision). The IBIA declined to exercise jurisdiction at that time because the same
issues were under review in a matter pending before the district court. (J.A. at 152-53.)
04-1029 16
CONCLUSION
For the foregoing reasons, we vacate the decision below and remand to the
IBCA to dismiss the case as moot.
VACATED AND REMANDED
COSTS
No costs.
04-1029 17