Los Coyotes Band of Cahuilla & Cupeno Indians, Plaintiff-Appellee,
Sally Jewell [*], Secretary of the Interior; Donald Laverdure, Acting Assistant Secretary of the Bureau of Indian Affairs; Darren A. Cruzan, Deputy Director of the Office of Justice Legal Services; Selanhongva McDonald, Special Agent in Charge, District III, Defendants-Appellants.
Argued and Submitted May 6, 2013—Pasadena, California
Appeal from the United States District Court[*] for the Southern District of California Anthony J. Battaglia, District Judge, Presiding D.C. No. 3:10-cv-01448-AJB-NLS
Stuart F. Delery, Acting Assistant Attorney General, Laura E. Duffy, United States Attorney, Barbara C. Biddle, and John S. Koppel (argued), Attorneys, Appellate Staff Civil Division, Department of Justice, Washington D.C., for Defendants-Appellants.
Dorothy Alther (argued), California Indian Legal Services, Escondido, California, for Plaintiff-Appellee.
Before: John T. Noonan, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges.
Bureau of Indian Affairs / Tribal Affairs
The panel reversed the district court's summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians, and the court's finding that the U.S. Secretary of the Interior violated the Indian Self-Determination and Education Assistance Act, the Administrative Procedure Act, and the Fifth Amendment's guarantee of equal protection when the Secretary declined to enter into a self-determination contract with the Tribe to fund law enforcement on the Los Coyotes Reservation.
The panel held that the Secretary properly rejected the Tribe's contract request. The panel also held that the Tribe's reliance on the Indian Self Determination and Education Assistance Act was misplaced because the Act allows the Tribe to take control of existing programs and obtain funds that the Bureau of Indian Affairs ("BIA") would otherwise spend on those programs, but here there was no existing BIA program, and therefore nothing to transfer to the Tribe. The panel further held that the Administrative Procedure Act did not authorize the court to review the BIA's allocation of law enforcement funding in Indian Country. Finally, the panel held that the BIA's funding policy did not violate the Fifth Amendment's equal protection guarantee.
MURGUIA, Circuit Judge.
The Secretary of the Interior appeals the district court's decision granting summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians (the "Tribe"). The district court found that the Secretary violated the Indian Self Determination and Education Assistance Act ("ISDA"), the Administrative Procedure Act ("APA"), and the Fifth Amendment's guarantee of equal protection when the Secretary declined to enter into a self-determination contract with the Tribe to fund law enforcement on the Los Coyotes Reservation.
We conclude that the Secretary properly rejected the Tribe's contract request. The Tribe's reliance on the ISDA is misplaced. The ISDA allows the Tribe to take control of existing programs and obtain the funds that the Bureau of Indian Affairs ("BIA") would otherwise have spent on those programs. Where there is no existing BIA program, there is nothing that the BIA would have spent on the program, and therefore nothing to transfer to the Tribe. That there is no existing BIA law enforcement program on the Los Coyotes Reservation is a result of the agency's decision to allocate resources elsewhere. The allocation of those resources is an exercise of agency discretion. As such, while we may engage in a very limited review to determine if the agency's actions complied with constitutional protections such as equal protection, we may not otherwise review the merits of the agency's decision. For these reasons, we reverse.
It is hard to dispute that Indian Country may be one of the most dangerous places in the United States. Statistics tell only part of the story, and they are saddening: American Indians are victims of violent crime at a rate twice the national average. Steven W. Perry, American Indians and Crime: A BJS Statistical Profile, 1992–2002 iv (2004). The Department of Justice estimates that American Indians experience rates of violent crime higher than most racial and ethnic groups. U.S. Gov't Accountability Office, GAO–11–252 4 (2011) (hereinafter "GAO Study")
Violence against women is particularly prevalent; in some American Indian communities women are murdered at a rate 10 times the national average. GAO Study at 4–5. Thirty-four percent of American Indian women will be raped during their lifetime, compared to less than one in five women nationwide. Amnesty Int'l, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA 2 (2006). Not only is this number disheartening, it is an underestimate because the actual rate of sexual violence against American Indian women must be even higher as sexual violence is universally underreported. Id. at 4. The underreporting problem may be much worse in American Indian communities because of chronically underfunded and ineffective law enforcement and distrust of authority. Id. The total number (not per-capita) of rapes on the Navajo reservation in 2009 was 10 percent higher than in Detroit—which has a population about four times the size. Timothy Williams, Washington Steps Back From Policing Indian Lands, Even as Crime Rises, N.Y. Times, Nov. 12, 2012, at A13.
Not only is sexual violence against American Indian women more common, it is more violent; American Indian women are much more likely than other women to suffer physical injury as a result of sexual violence. Amnesty Int'l, supra, at 5. Unfortunately, these victims confront health services that receive a fraction of the funding provided for similar services in other communities and that are ill-equipped to effectively treat victims of sexual violence. Id. at 76.
In addition, international drug traffickers exploit the complicated jurisdictional rules and prosecutorial indifference to establish drug distribution operations in Indian Country, often with devastating results for the community. GAO Study, supra, at 15. This, in turn, causes even more crime. Sarah Kershaw, Through Indian Lands, Drugs' Shadowy Trail, N.Y. Times, Feb. 19, 2006, at 1; Examining Drug Smuggling And Gang Activity In Indian Country: Hearing Before S. Comm. on Indian Affairs, 111th Cong. 9–12 (2009) (statement of Ivan D. Posey, Chairman Eastern Shoshone Tribe).
The problem appears to be getting worse. Over the past decade, violent crime has decreased 13 percent nationally, but it has skyrocketed in Indian Country. Williams, supra. Over the past decade, homicides have increased 41 percent and rapes have increased 55 percent in Indian Country. Id. Gang violence is on the rise in much of Indian Country, creating a new source of crime. Erik Eckholm, Gang Violence Grows on an Indian Reservation, N.Y. Times, Dec. 14, 2009, at A14; Examining the Increase of Gang Activity in Indian Country: Hearing Before the S. Comm. on Indian Affairs, 111th Cong. 50–53 (2009) (statement of Carmen Smith, Chief of Police Warm Springs Tribal Police Department); Id. at 46–50 (statement of Sampson Cowboy, Executive Director of Navajo Nation Division of Public Safety).
There is no single cause of the high level of crime in Indian Country, but two factors relevant to this appeal contribute to the problem: the jurisdictional lines between tribal, state, and federal agencies are confusing and unhelpful, and funding for law enforcement is inadequate. See 1–9 Felix S. Cohen, Cohen's Handbook of Federal Indian Law § 9.01 (5th Ed. 2012); Williams, supra.
Indian tribes' unique status as domestic dependent nations results in a complex jurisdictional scheme that hampers law enforcement in Indian Country. Cohen, supra, § 9.01 ("Unfortunately, the intricate web of laws governing criminal jurisdiction in Indian country can hinder law enforcement efforts." (citation omitted)). A brief overview of the jurisdictional maze is necessary to understand this dispute. As a general rule, Indian tribes are sovereign nations with the authority to prosecute Indians who commit crimes within tribal jurisdiction. Cohen, supra, § ...