United States Court of Appeals, District of Columbia Circuit
Navajo Nation, a federally recognized Indian tribe, Navajo Nation Department of Justice, Appellant
United States Department of the Interior and Ryan Zinke, in his official capacity as Secretary, United States Department of the Interior, Appellees
December 9, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-01909)
D. Gordon argued the cause for appellant. With him on the
briefs were Philip Baker-Shenk and Jessica Farmer.
S. Koppel, Attorney, U.S. Department of Justice, argued the
cause for appellees. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, and Mark
R. Freeman, Attorney.
Before: Kavanaugh and Pillard, Circuit Judges, and Sentelle,
Senior Circuit Judge.
Sentelle, Senior Circuit Judge
Navajo Nation delivered a proposed funding agreement to the
Bureau of Indian Affairs, an agency within the United States
Department of the Interior, during a partial government
shutdown. By law, the BIA had 90 days after receipt to act on
the proposal or it would be deemed approved. The BIA did not
consider the proposal "received" until normal
government operations later resumed, and issued a partial
declination 90 days after that date. The Nation filed an
action to enforce the proposal, contending that the BIA's
declination was untimely. The district court granted summary
judgment to the DOI, holding that because the Nation had
remained silent when the BIA indicated its position on the
deadline, the Nation was equitably estopped from asserting an
earlier one. The Nation brought the present appeal. We
reverse the judgment.
enacted the Indian Self-Determination and Education
Assistance Act ("ISDEAA") to help Indian tribes
assume responsibility for programs or services that a federal
agency would otherwise provide to the tribes' members. 25
U.S.C. §§ 5301 et seq. The transfer of
authority from the Department of the Interior
("DOI") to a tribe is memorialized in a
"self-determination contract." The ISDEAA includes
a model contract specifying a multi-year term, with the
funding amount for each year to be determined during
subsequent negotiations and incorporated through annual
funding agreements. Id. § 5329(c). When a tribe
submits a proposed annual funding agreement to DOI, "the
Secretary shall, within ninety days after receipt of the
proposal, approve the proposal and award the contract unless
the Secretary provides written notification" to the
tribe that the proposal is declined for one of five reasons
provided by the statute. Id. § 5321(a)(2).
"[T]he Secretary may extend or otherwise alter the
90-day period . . . if before the expiration of such period,
the Secretary obtains the voluntary and express written
consent of the tribe" to do so. Id. "A
proposal that is not declined within 90 days (or within any
agreed extension . . .) is deemed approved . . . ." 25
C.F.R. § 900.18.
2012, DOI Secretary Sally Jewell entered into a
self-determination contract under the ISDEAA whereby the
federal government would fund the Navajo Nation's
("the Nation") judicial operations from January 1,
2012 through December 31, 2016. The contract requires the
parties to negotiate a separate funding agreement for each
calendar year that it covers.
October 4, 2013, the Nation hand-delivered a proposal to
Raymond Slim, an ISDEAA Specialist in the Self-Determination
Office in the Bureau of Indian Affairs ("BIA")
Navajo Regional Office. Slim marked it for intra-office mail
delivery to Jeanette Quintero, a BIA official that the BIA
claims is responsible for making award and declination
decisions for the Nation's contracts under the ISDEAA.
However, Quintero was furloughed at that time pursuant to a
partial government shutdown caused by a lapse in
congressional appropriations. Quintero returned to work on
October 17, 2013, when normal governmental operations
resumed, and apparently received the proposal on that date.
October 21, 2013-two business days after normal government
operations resumed-the BIA sent a letter to the Nation
acknowledging its receipt of the proposal. The letter stated
that, due to the government shutdown, the BIA considered the
proposal to have been received on October 17, 2013. The
letter asserted that the BIA had until "90 days after
October 17, 2013 to approve, decline, or award the proposal,
" and that this "90-day period will end on
January 15, 2014." (emphasis in original). The
letter directed the Nation to contact Quintero or her
colleague Frances Price if it had any questions. The Nation
did not respond to this letter.
November 7, 2013, the BIA sent another letter to the Nation,
this time identifying substantial changes between the
proposal and the CY 2013 annual funding agreement, including
the fact that the Nation's requested budget amount had
increased from about $1.3 million to over $17 million. The
letter requested that the Nation respond to the BIA's
concerns by November 29, 2013, so that the BIA could complete
its review of the proposal, and stated that the BIA would
"hold the approval" of the proposal until the
Nation submitted the requested documents. The letter directed
the Nation to contact Quintero, Price, or their colleague
Daniel Largo, Jr., if it had any questions. The Nation did
not respond to this letter.
proposal was properly "received" on the date it was
hand-delivered (October 4), rather than on the date
government operations resumed (October 17), then the 90-day
window for the Secretary to act on it closed on January 2,
2014, rather than January 15 as asserted by the BIA. But the
BIA neither approved nor denied the proposal by January 2,
2014, nor did it ever receive the ...