IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW … 1 Affidavit of Michael P Gross.pdf · Case...
Transcript of IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW … 1 Affidavit of Michael P Gross.pdf · Case...
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
RAMAH NAVAJO CHAPTER, et al. v. SALLY JEWELL, et al.
No. CIV 90-0957 JAP/KBM
Exhibit 1
In Support of
CLASS COUNSEL APPLICATION
FOR AWARD OF ATTORNEYS FEES AND COSTS
AFFIDAVIT OF CLASS COUNSEL MICHAEL P. GROSS
IN SUPPORT OF APPLICATION FOR
ATTORNEY’S FEES AND COSTS
AND FINAL SETTLEMENT AGREEMENT
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 1 of 29
1
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
RAMAH NAVAJO CHAPTER,
OGLALA SIOUX TRIBE, and
PUEBLO OF ZUNI, for themselves
and on behalf of a class of persons
similarly situated,
Plaintiffs,
vs. No. CIV 90-0957 JAP/KBM
SALLY JEWELL, Secretary of the
Interior, in her official capacity;
UNITED STATES DEPARTMENT OF
INTERIOR; KEVIN WASHBURN, Assistant
Secretary of Interior for Indian Affairs,
in his official capacity; and UNITED
STATES OF AMERICA
Defendants.
AFFIDAVIT OF CLASS COUNSEL MICHAEL P. GROSS
IN SUPPORT OF APPLICATION FOR ATTORNEY’S FEES AND COSTS
AND FINAL SETTLEMENT AGREEMENT
State of New Mexico )
County of Santa Fe ) ss.
I, Michael P. Gross, being first duly sworn, do depose and state as follows:
1. I am Class Counsel in the above-captioned litigation. Serving as Co-Class
Counsel are C. Bryant Rogers and (since 2001) Lloyd B. Miller.
2. This affidavit incorporates and supplements affidavits I filed as attachments to our
motions for fees and costs in connection with three previous settlements (Dkt. Nos. 201, 206, and
1145-3).
3. My curriculum vitae is attached as Exhibit A. I have an AV Martindale-Hubbell
rating.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 2 of 29
2
INTRODUCTION
4. The agreement now before this Court is more than just an agreement to pay a
large sum of money. If approved it will also reaffirm, and thus help institutionalize, the
fundamental trust relationship between the United States and American Indian Tribes while
creating an enforceable tribal contract right. That contractual right is to operate federally-funded
governmental services and programs under ISDA1 in place of bureaucratic Federal agencies.
The Ramah Navajo Chapter’s road to self-determination is a winding pathway into both the
promise and the problems of reaching the goal. So is the Oglala Sioux Tribe’s. Each is my
individual client and a Class Representative.
BACKGROUND
5. In late July 1968, one month after graduating from law school, I arrived in
Window Rock, AZ, on the Navajo Reservation for my new job at a poverty-war legal services
program now called DNA Legal Services, Inc. I anticipated moving on to a standard law
practice after two or so years. That never happened. Instead, I am still working for my first
client, the Ramah Navajo Chapter, and in a sense still on my first assignment—a fight for the
community’s survival.
6. My first assignment was to work on a lawsuit to reopen a public high school
serving Ramah Navajos as well as non-Indians. The school was located in the tiny Anglo village
of Ramah, NM, 100 miles from our office. Six weeks before I arrived in Window Rock, the
State of New Mexico had closed the school. It was the only local school that Ramah Navajo
students could attend. I was told the New Mexico State Department of Education had ordered the
1 The Indian Self-Determination and Education Assistance Act of 1975, P.L. 93-638, as
amended, 25 U.S.C. §§ 450 et seq. (ISDA).
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 3 of 29
3
school closed because of declining enrollment. Yet the population of the local Navajo
community was increasing. Why the school’s enrollment declined while the Navajo population
was increasing is a story of mid- twentieth-century bureaucratic indifference.
7. The Ramah Navajo Chapter is an isolated satellite community, distant from the
main Navajo Reservation.2 No practical plan had been made for the Ramah Navajo students to
attend another public school. The school year was about to start and the Navajos wanted the
school reopened. Our program director had promised the community that a suit would be filed
before then.
8. In the 1950s the Bureau of Indian Affairs had built a dormitory near the public
high school in Ramah village. It housed elementary- and high-school-aged Ramah Navajo
children. Parents fetched them in pick-up trucks on Friday and brought them back to the dorm
on Monday morning. But then in the 1960s the Navajo population began to rise. Enrollment in
the dormitory rose accordingly. Soon space became scarce. In response, the BIA unilaterally
decided to give preference in the dormitory to elementary-school children. As a result, the older
Navajo children were displaced. Soon there was no room in the dormitory for Navajo high-
school students. The high-schoolers had no way to get to the offered alternative, a school at
Zuni 26 miles west of Ramah village. Standard-size school buses could not traverse the narrow,
rock-strewn trails on the 300-square-mile Ramah Navajo Reservation, where most of the
students lived. As a consequence, the high school’s enrollment declined below minimum State
standards. So the State closed the school. Simply put, none of the responsible agencies—the
2 In Navajo the community is T’lochin’toh—Little Onion Water —so named because small
wild onions grew around nearby water sources. Sam Martinez, a community elder, told me that
in the 1870s Mormon settlers armed with land patents from Santa Fe claimed title to the best
watered lands in the valley. The Navajos were driven south and west into more barren country.
When I arrived in 1968, the Ramah Navajos numbered about 1500. Today there are between
3500 and 4000 Ramah Navajos.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 4 of 29
4
State education department, the county school board, or the Bureau of Indian Affairs (Tribes
were not yet in the equation) —had consulted the others. Such was the state of Indian affairs in
the second half of the twentieth century.
9. The Navajos were told to enroll their high-school children in distant Federal
Indian boarding schools or religiously-sponsored family placements in Utah (designed to
promote conversions and disconnect Navajo children from their families). Most dropped out.
We filed suit. After more than a year, the suit fizzled. At age 27, I was now in charge of a failed
lawsuit. But out of the court defeat came a self-help project to start a new Ramah Navajo high
school from scratch. Twenty-two years after I became Ramah’s lawyer, I filed this lawsuit; 25
years after that comes this culminating settlement.
10. In working up the 1968 lawsuit I researched Indian education. It happened that in
August 1968 a draft version of a Senate report on the subject had been published. For two and
one half years, New York Senator Robert Kennedy chaired a subcommittee of the Senate Labor
and Public Welfare Committee that had been investigating Indian education.3 The final report
was called “Indian Education: A National Tragedy—A National Challenge.”4 It detailed the
atrocity that was then called Indian education. I had never heard the term “coercive
assimilation.” The Senate report and its seven-volume record used the term to describe the
systematic, deliberate efforts of the Federal Government in alliance with churches, States, and
3 Two months before the draft study was circulated, Senator Kennedy was assassinated.
4 S. Rpt. 91-501 (1969). The Senate Report showed how, by federal policy starting in the
late 1800s, young Indian children had been seized by force from their homes and families and
placed in distant boarding schools, often controlled by religious orders. There they were
subjected to mouth washings with soap or beaten for speaking their own languages, forced to
wear little military uniforms or dresses depending on sex, forbidden from practicing their
religions, forced to attend Christian churches, denied contact with their families, and taught that
their native ways and languages were inferior. Many children died trying to walk home in
winter.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 5 of 29
5
U.S. Territories to change by force the cultures, habits, and life-styles of American Indians. It
was a deliberate, Federally-endorsed effort to extinguish Indian Tribes, cultures, and languages.5
The effort concentrated on children. The practice had the same deleterious effects that de jure
segregation had on African-Americans and for the same purpose: exploitation. African-
Americans were exploited for their labor; American Indians for their lands and resources.
11. The original Ramah lawsuit was dead. I racked my brain for a way to solve the
problem. I asked Dillon Platero, the Navajo director of the only Indian-controlled school in the
country, the Rough Rock Demonstration School,6 whether Rough Rock could open a branch 200
miles away in Ramah. Mr. Platero was sympathetic but said distance precluded a satellite at
Ramah.
12. Then something of a miracle happened. In December 1969, a newly-created
private foundation interested in Indian affairs contacted me through its attorney, a law-school
classmate who knew of my involvement with the Ramah Navajos. Could I please come up with
some ideas for seed-money projects the benefactress Anne Maytag Shaker could consider?
13. Among my suggestions was a grant to the Ramah Navajo Chapter to explore ways
to start its own school from scratch. Ms. Shaker seized on that suggestion. No Indian
community had done that since the Cherokee Nation’s schools in Oklahoma were forcibly shut
5 “The dominant policy of the Federal Government towards the American Indian has been
one of coercive assimilation. The policy has resulted in: A. The destruction and disorganization
of Indian communities and individuals; B. A desperately severe amd self perpetuating cycle of
poverty for most Indians; C. The growth of a large, ineffective, and self-perpetuating
bureaucracy which retards the elimination of Indian poverty; and D. A waste of Federal
appropriations.” S. Rpt. 91-501, supra, at 21.
6 While pioneering and innovative in many ways, the Rough Rock school had been built
and staffed by the Bureau of Indian Affairs. The BIA then asked the Rough Rock Chapter
whether it wanted to operate the new school. The community accepted and BIA turned over the
completed Rough Rock Demonstration School to the newly elected school board as a completed
package in 1966.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 6 of 29
6
down by the U.S. Army in the late 1800s.
14. The Shaker Foundation offered $2,500 to the Ramah Navajo community on
condition it would create a non-profit, incorporated “school board” to start a new school. I
prepared articles of incorporation for a Ramah Navajo School Board and invited prominent
Navajo leaders including Mr. Platero and the then-deputy director of my legal services program
Peterson Zah7 to attend a special Ramah Navajo Chapter meeting on February 7, 1970. At the
packed, electrifying Chapter meeting, the community voted unanimously to accept the money
and approve the articles. One woman, Bertha Lorenzo, a grandmotherly elder, energetically said,
“It’s time we Ramah Navajos did something for ourselves!” The Chapter immediately elected a
five-person board. Ms. Lorenzo was one of them. I filed the articles the next Monday and then
sought further assistance from the Robert F. Kennedy Memorial Foundation.
15. To help the new organization get started, the Kennedy Memorial immediately
offered the services of Donald Olson, a former VISTA volunteer who could speak some Navajo.
Within six weeks, the new Ramah Navajo School Board and I traveled to Washington, DC. Mr.
Olson laid the groundwork for our trip. The Board, Mr. Olson, and I met with prominent
Senators and Representatives and were given a special tour of the White House. The Nixon
White House played a prominent role in all these events. One of my law-school friends, Bobbie
Kilberg, was a White House Fellow. She arranged several key meetings for us and worked on
putting the idea through the bureaucracy of the BIA. Our visit climaxed at the Interior
Department where we met with Commissioner of Indian Affairs Louis R. Bruce. A few days
later, while still in Washington, the Board received a signed commitment for $368,000 from
Commissioner Bruce for the new school’s first term. The amount had been computed by BIA
7 Mr. Zah was later elected Chairman of the Navajo Nation and, later still, its President.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 7 of 29
7
staff who multiplied the per pupil cost of educating an Indian high school student for a year at a
BIA boarding school by the expected enrollment of the new school. The Board wanted to open
its new school in time for the next school year, barely seven months away.
16. Returning from Washington, I quit my legal services job to become “temporary
coordinator” for the new Board. My wife and I moved to Ramah village in May. The
understanding was that I would leave whenever the Board wished, presumably in the fall.
17. The plan was to put the new school in the abandoned public high school in Ramah
village until funds for a new school on the Ramah Reservation could be obtained. My first task
was to negotiate a lease for the high school building with its owner, the Ramah Village Water
and Sewage Association, the only public entity in the unincorporated village. As far as we could
tell, this was the first formal agreement ever entered between the Ramah Navajos and the Anglo
residents of Ramah village.
18. From March until September 1970, we hired teachers; developed a curriculum
(based on a community survey); found caches of used books; created a cafeteria out of an
abandoned WPA stone building on the property; and renovated the high school structure with a
separate $60,000 grant from the Navajo Office of Economic Opportunity. We bought a fleet of
spanking new mini-school buses to negotiate the twisting, rock-strewn, unpaved reservation
roads where the students lived. Navajo men were hired to do the work. My office was a make-
shift desk inside a World War II-era aluminum trailer.
19. In June 1970 Navajo students started to return from distant boarding schools and
placement homes to help renovate their own school. We housed them in Army surplus tents on
the ball field at the old school. College students came from around the country to serve as
counselors. Jack Perkins of NBC News did a feature on the new school project for the Huntley-
Brinkley News Show.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 8 of 29
8
20. Throughout, the Board made all decisions. Mr. Olson helped instruct them on
how to run meetings and control outsiders like me. Thus was created the first modern Indian
school started from scratch by an American Indian Tribe.
21. In July 1970, President Nixon’s Message to Congress on Indian Affairs8 made
national news. President Nixon cited the Ramah Navajo school project as a notable example of
Indian self-determination.9 He denounced the existing-policy of Indian termination.
Termination meant that Tribes deemed “ready for full citizenship” were instantly cut off from
Federal protection and services promised by the treaties in exchange for the vast land areas the
Tribes had ceded to the United States. Turning moderately prosperous Tribes into poverty-
stricken enclaves overnight, the termination policy was a disaster.
22. The President called for a new policy of Indian self-determination. Under his
proposal, the United States’ special trust relationship and its treaty and other commitments to
Indian Tribes would be retained while qualified Indian Tribes would have the opportunity to
operate and control Federal programs serving their communities. Central was the idea of
reducing the Federal bureaucracy by placing control of Indian programs and services in the
hands of Tribes. Essential was the pledge that programs under contract would be funded to
maintain the same quality and quantity of services as when operated by the Federal agencies.
23. When the Ramah Navajo School was dedicated on September 11, 1968, President
Nixon sent a congratulatory telegram. The school opened three days later. A month later, I was
gently asked to resign. Enthusiasm, energy, excitement, elation dominated. Ramah Navajos
8 Richard M. Nixon, Special Message to Congress on Indian Affairs (July 8, 1970), in
Public Papers of the Presidents, Richard Nixon 1970, at 564 (1971).
9 Indian education and self-determination are inextricably connected. That is why Public
Law 93-638 is entitled the Indian Self-Determination and Education Assistance Act. Title I
covers contracting Federal programs; Title II deals with Indian education.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 9 of 29
9
were seizing control of their lives.
24. The publicity and, especially, the Message to Congress attracted attention from
many Indian communities. After resigning from the Ramah Navajo School Board that fall,
I became a consulting attorney on Indian education for the newly-created Native American
Rights Fund (NARF). My job was to respond to requests for assistance from Indian
communities all over the country seeking to replicate Ramah’s achievement.
25. One of the first was Oglala Sioux Tribe, where several Tribal leaders took a lead
in promoting Indian self-determination. They had heard about Ramah and wanted to hear more.
NARF sent me to Pine Ridge, South Dakota to meet with them. Birgil Kills Straight, Gerald
Clifford, and Oglala Sioux President Gerald One Feather and I sat in a small conference room in
the run-down, BIA-operated Loneman Day School near Pine Ridge, the tribal capital. They
wanted to take over the school. I told them other Indian communities had contacted me through
NARF with similar objectives. That sparked the idea of getting us all together. I suggested
taking it a step further by forming a grassroots Coalition of Indian Controlled School Boards
(CICSB). Its premise was that the members would collectively help that member furthest along
in planning its own locally-controlled Indian school and then help the next one. Mr. Kills
Straight became the first President of the Board and Gerald Clifford became Executive Director.
I served as its counsel for the next ten years.
26. The CICSB became the leading promoter of Indian self-determination in the
1970s. Its first success was forcing the BIA to make a Ramah-type grant of $50,000 to the Wind
River Indian Education Association in Wyoming. Accompanying the Association to
Washington, the CICSB and I had met with a reporter named William Greider. His November 7,
1971, Washington Post Sunday magazine article exposed the BIA’s delays in fulfilling the
President’s policy promoting Indian school control. The Wind River contract issued forthwith.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 10 of 29
10
A few years later, that success led to formation of a public school district within the Wind River
Reservation controlled by a school board of elected Arapahos and Shoshones.
27. With help from a number of small foundations, CICSB and I, as its counsel,
helped found other Ramah-type schools: On the Pine Ridge Reservation in South Dakota, the
Loneman Day School and Little Wound School came under control of locally-elected tribal
school boards; at Keshena, in Wisconsin, the Menominee (Alternative) Indian School led to
formation of a new public school district coextensive with the newly restored Menominee Indian
Tribe’s reservation; and on the Alamo Reservation near Magdalena, New Mexico, the Alamo
Navajo School followed Ramah’s model in creating a BIA-funded contract school under ISDA.
All are still in operation.
PASSAGE OF ISDA AND ORIGINS OF THIS LAWSUIT
28. In 1973, CICSB asked me to review and critique a new bill, No. S1017,
introduced by Senator Henry “Scoop” Jackson of Washington. The bill contained two titles.
Title I was based on President Nixon’s call for Indian self-determination; Title II aimed at
reforming Indian education in public schools based on the Senate report on Indian education.
Initially, Title I only “authorized” the Secretaries to contract with an Indian Tribe to operate
programs previously operated by the BIA and the IHS. I suggested the word “directed” be
added. The Committee accepted that suggestion.10
See 25 U.S.C. § 450f(a)(1). That one-word
change turned the Act from a discretionary program into a mandate. Years later, it provided the
10
Michael P. Gross, opinion letter to Gerald Clifford, Director, CICSB, March 27, 1973,
reproduced in Hearings on S.1017 and Related Bills to Promote Maximum Indian Participation
in the Government and Education of the Indian People, before the Subcomm. on Indian Affairs of
the S. Comm. on Interior & Insular Affairs, 93d Cong., 1st Sess., at 230, 233 (1973). See also
Gary B. Senese, Self-Determination and the Social Education of American Indians (Praeger
1991) pp. 124-125, 135 fn. 16, 17 & 18 (word “directed” substituted for “authorized” into key
operative section of bill that became Public Law 93-638, following suggestion of Michael P.
Gross in 1973 testimony on a predecessor bill). The Act substitutes “directed” for “authorized.”
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 11 of 29
11
basis for this lawsuit.
29. With assistance from C. Bryant Rogers (Co-Class Counsel in the instant case), I
briefed and argued the first case under ISDA to reach the Supreme Court, Ramah Navajo School
Board, Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 852 (1982). The case arose when
New Mexico sought to tax the construction of the new Ramah school complex that Congress had
funded. The Ramah Navajo School Board asked me to challenge the tax. I filed suit but lost in
the trial and appellate state courts. The Supreme Court reversed the State courts, holding that
ISDA preempted the New Mexico tax because the tax impeded Congress’s purpose to provide
enough funding to build the entire school complex.
30. Meanwhile, tribal efforts to carry out the promise of ISDA moved back to the
Federal agencies. The first problem was lack of judicial remedies to require compliance with
ISDA.11
Substantive issues were even more vexing. Soon after passage of ISDA in 1975, Tribes
began complaining that the funds provided by the BIA (and the IHS) were not sufficient to
operate contracted programs and services at parity with the level at which the agencies operated
them. Although the BIA deserves credit for developing the concept of contract support costs
(CSC), it never asked for enough money to pay them. CSC was paid from left-over monies, if
any. Payment was arbitrary, inconsistent, and inadequate. From 1975 through 1987, Indian
Tribes and their legal counsel, including the undersigned, participated in seemingly endless
investigations, conversations, negotiations, and confrontations over the issue until CSC were
11
In the early 1980s, I had sought damages from the Interior Department under the Contract
Disputes Act in an ISDA case involving a tribal school in Montana where the BIA was supposed
to maintain school facilities but did not. The lawsuit had been dismissed in critical part on the
ground that the Contract Disputes Act did not extend to “sociological type agreements” under
that early version of ISDA. When Congress considered the 1988 ISDA amendments, the case—
Busby School of the Northern Cheyenne Tribe v. United States, 8 Cl. Ct. 596 (1985)—was cited
as a reason to explicitly bring ISDA contracts under the CDA. S. Rpt. 100-297, at 33. See Publ.
L. 100-472 § 206(a), codified at 25 U.S.C. § 450m-1(d).
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 12 of 29
12
made mandatory by the 1988 amendments to ISDA.
31. It is a reflection of the intensity of the dispute that this lawsuit is now about to
enter its 26th
year. Agency resistance to parity fueled the dispute. Implicit in the ISDA scheme
is the need for the two Federal Indian agencies to reduce in-house infrastructure as their
programs are contracted out to Tribes. As early as 1978, the Office of Management and Budget
advised the agencies to reduce their overhead as contracting increased.12
Despite that memo
reflecting a central ISDA premise, someone on the eve of passage persuaded Congress to insert a
loosely-worded proviso into the 1988 amendments. See 25 U.S.C. § 450j-1(b).13
The Tribes
argued the proviso did not authorize reductions in CSC. For the FY 1994 appropriation, the
appropriators presumably with BIA approval and perhaps at its instance then engineered the first
capped CSC appropriation, again without warning to or input from Tribes.
32. The Secretaries assumed the caps together with the proviso would allow them to
continue business as usual—fully funding their own in-house programs while imposing the
burdens of capped CSC entirely on tribal contractors in direct defiance of the parity principle.
Until the Supreme Court decided the issue in favor of the Class, most judges decided it for the
Government. The result was that despite the 1978 OMB admonition and the Nixon Message,
federally-run Indian programs remained protected while tribally-run programs had to sacrifice
12
“We believe that the Department [of the Interior], through the proper management of its
existing resources, can and should provide to the tribal contractors the full amount of contract
support funds which are rightly due them. Furthermore, we expect the Bureau’s own overhead
costs to decrease as the overall level of Self-Determination Act contracting increases.” OMB
Director James T. McIntyre, Jr. to Cecil B. Andrus, Secretary of the Interior, April 13, 1978,
reproduced in Ramah Navajo Chapter v. Lujan, 10th
Cir. No. 94-2253, Record on Appeal, at 194-
195.
13 We could find no legislative history for the proviso. It appeared shortly before the bill
reached the floor for a vote and no hearings were held on it. The proviso protected programs
operated by the agencies at the expense of contracted programs, defeating the parity principle,
and also made the Secretaries’ provision of funds under ISDA “subject to the availability of
appropriations.”
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 13 of 29
13
program levels.
33. In 1989, a year after Public Law 100-473 was enacted, the Ramah Navajo
Chapter’s outside accountant John Donham and in-house finance officer Earla Begay came to
my office to complain that the Interior Department was not following the law. The CSC paid
were inadequate. Program levels could not be maintained. The two experts laid the blame on
manipulation of “indirect cost rates” used to determine how much CSC were to be paid. They
educated me on the complexities of the rate-making system and how its application prevented
RNSB and other Tribes from receiving enough contract support to maintain parity with BIA
program levels as required by law. Based on their analysis, I prepared a contract dispute for the
Chapter to send to its contracting officer at the BIA.
34. In October 1990, following denial of the Chapter’s contract dispute by the
contracting officer, we filed this suit. The Tenth Circuit upheld our rate-making claim, Ramah
Navajo Chapter v. Lujan, 112 F.3d 1455 (1997). That decision led to our first partial settlement
agreement (PSA I). Ramah Navajo Chapter v. Babbitt, 50 F. Supp. 2d 1091 (D.N.M. 1999), Dkt.
287. Thereafter, two new Class Representatives joined the case—the Oglala Sioux Tribe, my
client, and the Pueblo of Zuni, Co-Class Counsel Miller’s client—in order to bring two
additional claims for underpayment of CSC. The new claims led to a second partial settlement
agreement (PSA II), which was approved in 2002. Ramah Navajo Chapter v. Norton, 250 F.
Supp. 2d 1303, Dkt. 730, 731. A third partial settlement agreement (PSA III), reforming the
rate-making system, was approved in 2008. Dkt. 1159.
35. By then my firm had taken on the IHS on behalf of the Tunica-Biloxi Tribe of
Louisiana and the Ramah Navajo School Board. Tunica-Biloxi Tribe of Louisiana v. United
States, U.S.D.C. D.C. No. 1:02-cv-02413. The claims were based on the same rate-making and
shortfall claims presented here. In the course of that case, I discovered yet another rate-making
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 14 of 29
14
maneuver that reduced indirect cost rates dramatically for all Indian contractors using fixed-with-
carry-forward rates, as most did. I dubbed this procedure “double dipping.” It produced
artificially-exaggerated indirect cost “over-recoveries” (which cause rate reductions) by double
counting any given year’s over-recovery a second time in the succeeding rate cycle. While the
maneuver could be justified if both over- and under-recoveries (which increase rates) were
treated even-handedly, most under-recoveries—which increase future rates—were dumped into
a new “shortfall” column in its rate template.14
Interior’s rate-making agency, claiming legal
support from the caps on CSC, then ignored this ultra vires “shortfall” in the rate calculation.
The maneuver eliminated most under-recoveries.
36. Indirect cost rates plummeted. The result was to reduce CSC payments below
statutory requirements with devastating impact on contractors.15
Discovering and understanding
these obscure rate-making maneuvers helped inform the dimensions of our claims in this case.
THE DISPUTE’S EFFECT ON TRIBES
37. Because of this long legal war and the agencies’ failure to protect program parity,
the mood and circumstances at Ramah and elsewhere in Indian country have changed visibly. In
my observation the legal disputes surrounding ISDA have dampened initial enthusiasm among
many Tribes.16
In many places the excitement of the 1970s has given way to trench warfare as
14
Of course, as the Salazar v. Ramah decision confirms, these insufficiently funded capped
appropriations did not reduce the legal obligation of the United States to pay the full amount of
CSC under the statutory scheme in effect then as now.
15 The bizarre double-dipping maneuver and the shortfall column were rectified by the new
rate-making options in PSA III. None of the hours worked on the IHS case are used here as basis
for our fee application.
16 ISDA has become one of the most litigious areas of dispute between Indian Tribes and
the Federal Government. The current USCA by rough count cites 90 or more cases (some
overlapping) concerning disputes over implementation of the Act. An uncountable further
number of disputes were settled without lawsuit or reported court decision. These disputes were
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 15 of 29
15
tribal administrators shuttle endlessly back and forth to the Area or Regional offices of the
funding agencies and even to Washington, DC, to demand what ISDA says should be paid.
38. The annual budgets of the two Ramah entities together are more than $25 million
per year. Yet funding problems still plague both. Ramah opened an ISDA-funded health clinic
in the late 1970s. It has fallen into disrepair. The award-winning school buildings and clinic—
featured in a national architecture magazine in the late 1970s—have developed plumbing and
sanitation problems. Sidewalks are cracked, and there is general deterioration. Mold problems
closed the elementary school building for two years. Monies from the BIA and IHS to fix and
maintain the facilities have seldom materialized and never in adequate amounts. Earlier this
year, these problems were featured in an exposé on a local TV station.
39. In 2007 the School Board sued the IHS for failing to pay the proper amounts for
operation of the health clinic. In a 2012 hearing, the School Board’s Executive Director testified
that the unemployment rate in the Ramah Navajo community was 70 percent. (In 1968 the rate
was 60 percent.) He said that no Ramah Navajo owned a local business. Virtually all
employment in the Ramah Navajo community comes from the two Ramah entities that operate
the self-determination contracts. In other words, there is no local economy. At the hearing,
undisputed evidence showed deteriorating social conditions at Ramah, including an alarming
increase in suicides. (The suit against the IHS was finally settled during cross-appeals in early
2015.)
40. In the summer of 2014 when the BIA did not pay already contracted program and
contract support amounts to the School Board and the Chapter, both became desperate. The
Department had owed much of the money for more than a year. The excuse given was that a
spawned by the resistance of the agencies—especially at field offices—to faithful and
enthusiastic implementation of the Act.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 16 of 29
16
new automated financial system was not working properly and that the contracting officer was
overworked. It took action by the Assistant Secretary for Indian Affairs to get those monies
paid.
41. In the 1970s, as noted above, the Ramah Navajo community received funding
from Congress to build a new school and health clinic. The new complex is in the heart of the
Ramah Navajo Reservation, some 20 miles from the village of Ramah where the old high school
was located in Pine Hill, NM. When the complex was built, the BIA also paved the road to the
new school. Roads, however, go in two directions. Two decades later, the paved road made it
possible for the Anglos in Ramah village to persuade its public school district to run school buses
into the heart of the Ramah Navajo Reservation.
42. At first few Ramah Navajo school children got on those buses. Yet the Ramah
Navajo community saw the danger. A lawsuit over the busing ended inconclusively. Busing
into Ramah public schools continued. In the early 2000s the Gallup school district (whose
territory includes the village of Ramah but excludes most of the Ramah Reservation) built a new
school complex including a high school in the village. Attracted by the new facilities and aware
of the increasing deterioration of the school campus at Pine Hill, increasing numbers of Ramah
Navajos started attending the Ramah village public schools, transported back and forth on the
new paved road by the Gallup school buses. In other words, the troubles the Ramah Navajos
have experienced in funding their own self-determination school are driving many parents to
send their children to the new facilities in the Anglo village where in 1968 the state of New
Mexico had closed the high school. Most Ramah Navajos do not live within the public school
district operating the refurbished schools in Ramah village, including the reopened high school.
As a result they have no political control over those schools. Morale within the Navajo
community has declined. Several years ago, the Ramah Navajo schools had an enrollment of
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 17 of 29
17
over 500; now the enrollment is well below 300. The community has lost its zip.
43. At Pine Ridge conditions are just as bad.17
Many other Tribes are experiencing
similar conditions. While some have achieved a measure of economic security, there is a crisis
in Indian health care and education, and the situation is worsening, not getting better. Dozens of
articles and government studies document this crisis. A selection is cited in Exhibit B to this
declaration. In short, the promise of self-determination has been fulfilled haphazardly at best.
44. I attribute a significant portion of the deterioration at Ramah and continuing
unacceptable economic and social conditions at Pine Ridge and elsewhere to the Federal
bureaucracies. While Ramah and Pine Ridge do not reflect all of Indian country, they do reflect
a large portion. See unsolicited email from A. Gay Kingman, Executive Director of the Great
Plains Tribal Chairman’s Association and director of the Coalition of Large Tribes, to Michael
Gross, July 31, 2015 (attached as Exhibit C, without attachments). As Ms. Kingman’s email
suggests, many of these problems can be traced to the lack of CSC. She notes that Tribes are
still forced to take direct program monies to pay overhead. The turf war between the agencies
and Tribes over control of Indian monies and jobs continues.18
While top leadership in the
Department of the Interior is sympathetic, the bureaucracy’s self-preservation engine grinds
away protecting itself by denying or delaying funds to self-determination contractors. The
17
See, e.g., In the Spirit of Crazy Horse, National Geographic cover story, August 2012, at
51: Liver disease Pine Ridge Reservation 21.3 (United States 9.7); suicides per 100,000 Pine
Ridge Reservation 37.2 (United States 10.9). Pine Ridge is home base for Class Representative
Oglala Sioux Tribe.
18 Of Counsel Paul E. Frye has noted that this resistance has historical antecedents. See
Felix S. Cohen, The Legal Conscience: Selected Papers of Felix S. Cohen (1970) at 307, where
Cohen described the resistance of BIA bureaucrats to even informing tribal leaders of attributes
of tribal self-government preserved in the Indian Reorganization Act of 1934. As Cohen wrote,
“while every official was in favor of self-government generally, by the same token he was
opposed to self-government in the particular field over which he had any jurisdiction.” Id. at
309.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 18 of 29
18
Federal bureaucracies’ reaction to the Supreme Court’s ruling was typical.
45. In the fall of 2012—only months after the Supreme Court handed down its
decision in this case—the two Federal agencies charged with carrying out Indian policy together
with OMB proposed a plan to defeat parity once and for all. They adopted the most extreme of
several options listed by the Court as to how Congress could deal with CSC appropriations. We
dubbed it the “mini-caps” plan. It would have added to the Indian appropriations bill for the next
fiscal year a list of every Indian Tribe and tribal organization contracting under the Act. Each
individual entity was to be assigned a precise dollar amount for CSC. Each would thus receive
its own separate annual appropriation for CSC. The aim was to bypass the Ferris doctrine on
which the Supreme Court’s ruling rested.19
Under the mini-caps proposal, every contractor
would be paid only what Congress appropriated to it, whether too high or too low. Because each
entity would in effect receive a discrete appropriation, Salazar v. Ramah would have become
irrelevant. An uproar ensued. Indian Tribes around the country and their lawyers, including the
undersigned, protested loudly. Within a few weeks, the plan was withdrawn; the agencies
reversed course and proposed full funding of CSC in the annual appropriations for FY 2014, FY
2015, and FY 2016. The episode illustrates the vulnerability of the entire self-determination
policy.
46. In my view, as important as the promised money in this settlement is the necessity
of furthering Congress’s goal to maintain program levels under contract in parity with in-house-
19
“When a Government contractor is one of several persons to be paid out of a larger
appropriation sufficient in itself to pay the contractor, . . . the Government is responsible to the
contractor for the full amount due under the contract, even if the agency exhausts the
appropriation in service of other permissible ends. . . . That is so even if an agency's total lump-
sum appropriation is insufficient to pay all of the contracts the agency has made.” Salazar v.
Ramah Navajo Chapter, 132 S.Ct. at 2189 (citations and internal edits omitted) (quoting
Cherokee Nation v Leavitt, 543 U.S. 631, 637 (2005)).
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 19 of 29
19
run programs of the two Federal agencies involved. These are contracts with a profound social
purpose. ISDA’s aim is to reintroduce effective tribal governments. To do that, enough
resources must be provided to keep contracted programs at the same levels they would be under
the government’s control.20
Because Congress has now appropriated sufficient monies for CSC,
parity has been achieved for the past three years. But that is not enough. Approval of this
settlement will show Class Members and their constituents as well as the funding agencies that
the Class Members really “can sue city hall,” in this case the agencies. ISDA serves as a partial
redress of coercive assimilation. The sanctity of contract undergirding that law allows Tribes to
better shape their own destinies. In this way, the Supreme Court decision in this case—
interpreting the Model Contract in ISDA according to fundamental principles of contract law—
compares to some small degree with Brown v. Board of Education, 347 U.S. 483 (1954).21
Basic contract law principles are now the guidepost framing long established and reconfirmed
Indian rights to self-government. Within the context of the unique relationship between the
United States and Indian Tribes, this Court can now play a central role by actualizing the
promise of self-determination and thus helping to guarantee a better future for them.
20
As the OMB Director noted in 1978, parity requires that the agencies reduce their
overhead as contracting expands. See, n. 12, supra.
21 Indeed, one state court in the 1970s held—in a case in which I represented the Indian
side—that rectifying coercive assimilation by creating a reservation school district would violate
the state constitution’s equal protection clause. Geraud v. Schrader, 531 P.2d 872, 882 (Wyo.
1975). That decision is now essentially as dead as Plessy v. Ferguson. Despite the Geraud
decision, the community on the Wind River Reservation, Wyoming, managed to organize a
public high school district like Menominee’s a few years later. Its high school basketball team
later became a state-wide sensation, winning the state championship several times. For an
argument that coercive assimilation is a violation of equal protection, see Michael P. Gross,
Indian Control for Quality Indian Education, 49 North Dakota Law Review 237 (1973).
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 20 of 29
20
NEGOTIATION OF THE SETTLEMENT22
47. As Class Counsel, I have had overall responsibility for the entire case. There
have been two monetary settlements and one equitable settlement to date. In this fourth
settlement, as in the others, my role has been:
a. To coordinate and consult with all attorneys and parties in preparing and
presenting the Plaintiffs’ positions to both the mediator and the opposing parties;
b. To conduct legal research and prepare a series of position papers, briefs,
and other documents with Co-Class Counsel;
c. To attend and lead all negotiation sessions with the Defendants;
d. To work with Co-Class Counsel and with Chief Magistrate Judge Karen
B. Molzen over the course of three years and especially in the last phase to help conclude
the agreement on all remaining issues;
e. To negotiate this deal with the Government along with Co-Class Counsel
C. Bryant Rogers and Co-Class Counsel Lloyd B. Miller and their respective firms, and
independent counsel retained by my firm in negotiating terms and conditions of the
settlement agreement;
f. To work with Co-Class Counsel to oversee the activities of the Class’s
statisticians and accountants;
g. To work with Co-Class Counsel to help draft settlement documents
including the final settlement agreement, the joint motion for preliminary and final
approval of the settlement agreement. the Class notice, distribution procedures, and other
22
My colleagues, Co-Class Counsel C. Bryant Rogers and Lloyd B. Miller, have
expounded on the details of our settlement negotiations. I do not repeat those details here. I
endorse the descriptions given by Mr. Rogers and Mr. Miller.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 21 of 29
21
documents necessary to conclude this settlement;
h. To oversee selection of a Settlement Administrator and Class Monitor; and
i. To consult by phone, email, and fax and to attend meetings with the Class
Representatives and Indian organizations including the Great Plains Tribal Chairmen’s
Association, the Coalition of Large Tribes, and the National Congress of American
Indians. I have also attended meetings of the Interior Department’s Work Group on
Contract Support Costs, an appointed body of the Interior Department and tribal
representatives organized by the Bureau of Indian Affairs to serve as a forum for
discussing questions, concerns, and proposals about CSC prompted by this case. A
parallel body exists under the IHS.
48. Prior to the instant negotiations, I represented the Class as follows::
a. By developing the original theory of this case in terms of the rate
methodology and adding the shortfalls claim to it;
b. By succeeding in getting the Class certified under FRCvP 23;
c. By recruiting a team of lawyers experienced in Indian law and Federal
practice to assist me;
d. By preparing with our team all pleadings and motions through the Tenth
Circuit appeal, including oral argument on the motion for summary judgment in the
Tenth Circuit Court of Appeals, whose 2-1 decision reversing this Court’s grant of
summary judgment to the defendants was indispensable for the ultimate victory in the
Supreme Court; and
e. By participating with our team in the preparation of arguments and
pleadings in the Supreme Court.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 22 of 29
22
49. My involvement in this final settlement has been as follows: In July 2012, one
month after the Supreme Court decision in favor of the Class on the caps issue, we began
settlement talks with the Department of Justice. We met in Washington, DC. Our legal team
presented a spreadsheet that estimated total damages based on the Federal Government’s own
records. Those records included statutorily-required Department of the Interior budget estimates
and reports to Congress on CSC shortfalls, Federal Register notices, Departmental memoranda to
tribal contractors, appropriation acts, and other sources the authenticity of which was never
challenged. We argued these documents should serve as basis for our negotiations. We pointed
out that collecting data from individual Class Members going back to 1994 would be time-
consuming at best and impossible at worst.
50. At our next session, the Government flatly rejected our contentions based on its
own global data. It maintained that the “macro” information—even though prepared by the
Interior Department and certified to Congress as accurate—was largely inaccurate and could not
serve as a basis for settlement. Its legal counsel stated that because this was a contract case,
damages could and should be computed precisely for each Class Member. The Government
offered to search its own archives. At first the Government’s lawyers would not settle unless we
went through the exercise of computing individual Class Member’s precise damages. This
would have taken years if possible at all. To save time the parties agreed to do statistical
sampling. We reasoned that the time it would take to litigate damages could possibly exceed
another five years and the outcome of such continued litigation might not be favorable.
51. The Class located a highly regarded statistician, Michael Larsen, an Associate
Professor of Statistics at George Washington University. His curriculum vitae is attached as
Exhibit F to this affidavit. The Government’s statistician and ours then created the statistical
plan. All of this took months.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 23 of 29
23
52. The details of the plan were complex. It required over 100 sample entities to be
chosen randomly. Chances of being selected were dependent on the size of the entities, so for
example, larger contractors had a greater chance of being chosen than smaller; as a result some
class members were randomly chosen for more than one year. For smaller Class members,
chances of selection dropped. The goal was to statistically determine Class-wide damages.
53. The plan required each chosen entity to submit audits, contracts, and similar
financial data. All of the chosen sample entities complied with enthusiasm and maximum
cooperation. But not all the entities could locate required documents, especially for earlier years.
54. As a result, the Government mined its own archives. These were located
primarily in Lenexa, Kansas, near Kansas City, MO, but also in BIA regional offices throughout
the United States. Each expedition to these archives required considerable planning. The sides
exchanged all data collected.
55. In addition to the statisticians, each side chose a principal accounting firm to
assemble the incoming data from the sample entities and analyze the data according to each
side’s understanding of the parameters set in the sampling plan. In addition, the Class retained
two independent accountants, John Donham and Marcel Kerkmans, who had served as expert
witnesses in earlier phases of this case. They helped analyze the data and develop interpretations
for Class Counsel. They often participated in face-to-face negotiations. In addition, the Class
retained Yan Lu, a University of New Mexico Associate Professor of Statistics, who assisted in
the early phases of the negotiation. After her contract ended, we retained Zachary Treisman, a
Lecturer in Mathematics at Western State Colorado University to help the legal team understand
and evaluate the work of the two principal statisticians.23
23
We knew him because his late father, attorney Eric Treisman, had been part of our legal
team in this case.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 24 of 29
24
56. For more than a year and half, the statisticians and the two principal accounting
firms communicated extensively with each other. Many issues arose. Documents from one
tribal contractor were often not in the form used by others; some sampled contractors could find
only a few of the requested documents; interpretation of the documents was often difficult. Even
seemingly minor task—the names of the Class Members—proved vexing at times since some
were known by several names. Class Counsel took part in resolving each and every one of these
issues.
57. Because of the confidentiality of negotiations under Rule 408 of the Federal Rules
of Evidence, I do not here describe further details of the settlement process or the major legal
issues debated. Suffice to say there were several. Co-Class Counsel Rogers and Miller give
some further detail in their affidavits.
58. In the end, statistical sampling as implemented by each side produced different
estimates of damages. After the Class made a settlement offer in September 2014, the parties
agreed to bring in a mediator. Over the course of two days in December 2014, Chief Magistrate
Judge Karen B. Molzen managed to bring the parties to agreement on the dollar amount of the
settlement. The parties then had to draft and agree upon the other settlement issues and draft the
agreement, tasks that required seven more months. The Class Representatives played a major
role in the mediation, as they had in previous negotiation sessions.
59. The compromise takes into account the risks of continued litigation. These are
significant. Among them are the possibility of Class de-certification and prolonged delay
including further appeals.
60. In February 2015, lead counsel for the Department of Justice James Todd
announced that settlement payments in this case were subject to the Treasury Department’s
Offset Program. Under 31 U.S.C. § 3716 and 26 U.S.C. § 6331(h), Treasury is required to set
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 25 of 29
25
off against any payments by the United States to a party any amounts that party owes to the
United States. Treasury has asserted that in this case it must offset even the debtor’s share of
attorneys’ fees and costs from the Class settlement. The Department of Justice has indicated it
will continue to try to persuade Treasury exercise its statutory authority to exempt from such
offsets class action attorneys’ fees and costs. Justice indicates there is hope Treasury will do so.
But Justice has also told us that formal resolution of this issue would take months at best. In the
interest of expediting the settlement, Class Counsel have agreed to take the risk that our fees (and
possibly even cost reimbursements) might be reduced. The extent of the problem is unknown.
The issue illustrates the complexity of the negotiation and why it has taken so long to conclude.
It also shows how much Class Counsel are willing to risk to conclude this important agreement.
TIME AND COSTS
61. I am a sole practitioner. To assist me in these tasks, I have engaged two seasoned
lawyers as “of counsel” to my firm. Daniel H. MacMeekin has been working with me since
2002, not only on this case but on many other matters, almost all of them arising under ISDA.
Paul Frye, a seasoned Indian law expert, has been working with me since November 2014 solely
on this case. In addition to my time records attached as Exhibit D are those of Mr. MacMeekin,
Exhibit E, and of Mr. Frye, Exhibit F. Respective curriculum vitae are also included. Further,
the three firms representing the Class through Mr. Rogers, Mr. Miller and myself, jointly
engaged the Washington, D.C. law firm of Sidley Austin LLP to assist in drafting the Class brief
in the United States Supreme Court. Mr. Carter Phillips of that firm also presented the oral
argument on behalf of the Class. Exhibit G contains timesheets for Sidley Austin, LLP. The
hours shown in each exhibit are as follows: Michael P. Gross 6,131.82, Daniel H. MacMeekin
3,364.21, Paul E. Frye 122.60, and Sidley Austin, LLP 665.00, for a total of 10,283.63.
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 26 of 29
26
62. My time sheets start in June 2001 when work began on the Class’s motion for
summary judgment addressing this issue. Eleven years later that motion for summary judgment
led to the Supreme Court’s decision in Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181
(2012). Although I recorded time on the “caps” issue before 2001, that time is not included in
Exhibit D. Nor is time spent on the companion Tunica case researching rate-making issues,
even though my work in that case produced insights helping lead to better understanding of the
entire funding scheme of the Interior Department's rate-making agencies and thus helped in the
negotiation of the instant settlement. I have, however, included in Exhibit D unpaid work on
behalf of the Class performed in the summer and fall of 2001 in preparing two amicus briefs, one
in the Ninth Circuit on rehearing in Shoshone-Bannock v. Thompson, 279 F.3d 660 (9th
Cir.
2002), and one in the Tenth Circuit, Cherokee Nation v. United States, No. 07-7106, on appeal
from 190 F.Supp.2d 1248 (E.D. Okla. 2001). I have also included in that exhibit unpaid work on
behalf of the Class in the spring of 2004 in preparing an amicus brief to the Supreme Court in the
latter case. Each of these cases presented ISDA contract support issues of critical importance to
the Class’s position on lump-sum appropriations and the caps. The work performed on these
matters was directed at preserving and advancing the Class’s interests with respect to the caps
issue. I consider it an integral part of the representation of the Class in this matter.
63. Exhibit H to this affidavit is a record of unreimbursed costs through August 31,
2015, incurred for services performed for the benefit of the Plaintiff Class in reaching this
settlement.
64. In 1999, after testifying in support of Class Counsel’s PSA I fee request,
J. Eugene Gallegos, a prominent lawyer in Santa Fe, asked me to join his complex litigation and
oil and gas royalty holders practice. I moved my office to his. After PSA I, I expected my work
in this case to diminish or even end. It did not and in fact expanded exponentially. I therefore
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 27 of 29
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 28 of 29
Case 1:90-cv-00957-JAP-KBM Document 1313-1 Filed 09/29/15 Page 29 of 29