court of appeals amicus brief final 03 18 2019 (00200362 ...docket no. 9:17-cv-00088-m-dlc u.s....

No. 18-35729

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHEN MCCOY,

Plaintiff / Appellant,

v.

SALISH KOOTENAI COLLEGE, INC., DBA Salish Kootenai College,

Defendant / Appellee,

CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD

RESERVATION,

Intervenor / Appellee

Appeal from the U.S. District Court for District of Montana, Missoula

Docket No. 9:17-cv-00088-M-DLC

U.S. District Judge Dana L. Christensen

BRIEF OF AMICUS CURIAE

THE AMERICAN INDIAN HIGHER EDUCATION CONSORTIUM

IN SUPPORT OF APPELLEES

SALISH KOOTENAI COLLEGE, INC. AND CONFEDERATED SALISH AND

KOOTENAI TRIBES OF THE FLATHEAD RESERVATION

AND SUPPORTING AFFIRMANCE

Natalie A. Landreth*

Melody L. McCoy

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

Tel: (303) 447-8760

Fax: (303) 443-7776

[email protected]

*COUNSEL OF RECORD FOR AMICUS CURIAE

Case: 18-35729, 03/18/2019, ID: 11232883, DktEntry: 31, of 20

mailto:[email protected]

i

STATEMENT OF CORPORATE DISCLOSURE

Pursuant to Fed. Rs. App. P. 29(a)(4) and 26.1, Amicus Curiae, American

Indian Higher Education Consortium, by and through its undersigned counsel, files

this Statement of Corporate Disclosure.

American Indian Higher Education Consortium has no parent corporation

and no publicly traded corporation currently owns 10% or more of its stock.


ii

Table of Contents

STATEMENT OF CORPORATE DISCLOSURE ......................................................................... i

TABLE OF AUTHORITIES ......................................................................................................... iii

INTEREST OF AMICUS CURIAE ................................................................................................. 1

ARGUMENT .................................................................................................................................. 2

I. A BRIEF HISTORY AND PRESENT OVERVIEW OF TRIBAL COLLEGES AND

UNIVERSITIES (TCUS) SHOWS THE POTENTIAL IMPACT OF THE FEDERAL

STATUTORY INTERPRETATION ISSUE RAISED IN THIS CASE ............................. 2

II. THE FEDERAL STAUTORY INTERPRETATION ISSUE SHOULD BE EXAMINED

IN THE CONTEXT OF THE FEDERAL – TRIBAL GOVERNMENT-TO-

GOVERNMENT RELATIONSHIP WITHIN WHICH TCUS EXIST .............................. 5

CONCLUSION ............................................................................................................................. 12

CERTIFICATE OF COMPLIANCE ............................................................................................ 13

CERTIFICATE OF SERVICE ..................................................................................................... 14


iii

TABLE OF AUTHORITIES

Cases

Cherokee Nation v. Leavitt, 543 U.S. 631(2005)....................................................... 6

Frank’s Landing Indian Cmty. v. Nat'l Indian Gaming Comm’n,

2019 WL 1119912 (9th

Cir. Mar. 12, 2019) ........................................................... 5

Gila River Indian Cmty. v. U.S. Dep’t of Veterans Affairs, 899 F.3d 1076

(9th

Cir. 2018) ......................................................................................................... 6

Menominee Indian Tribe v. United States, 136 S.Ct. 750 (2016) .............................. 6

Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014) ...................... 5, 10, 11

Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012) .......................................... 6

United States v. Lara, 541 U.S. 193 (2004) ............................................................... 5

Warren Trading Post Co. v. Ariz. State Tax Comm’n, 380 U.S. 685 (1965) ............ 5

Statutes

Equity in Educational Land-Grant Status Act of 1994, Pub. L. No. 103-382,

108 Stat. 3518 (1994), codified as amended at 7 U.S.C. §§ 301-309 .................... 9

Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975,

Pub. L. No. 93-638, codified as amended at 25 U.S.C. §§ 5301-5332 ......... 5, 6, 7

Navajo Community College Act of 1971, Pub. L. No. 92–189,

85 Stat. 646 (1971) ................................................................................................. 2

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (1964) .... 6

Tribally Controlled College or University Assistance Act (TCCUAA) of 1998,

Pub. L. No. 105-244, § 901, 112 Stat. 1828 (1998) ............................................... 8

Tribally Controlled Community College Assistance Act (TCCCAA) of 1978,

Pub. L. 95–471, Oct. 17, 1978, 92 Stat. 1325, codified at

25 U.S.C. §§ 1801-1864 (1978) ............................................................................. 7

Legislative Materials

S. Rep. No. 98-64 (1983) ........................................................................................... 9

S. Rep. No. 103-194 (1993) ....................................................................................... 9

S. Rep. No. 110-46 (2007) …………………………………………………………8

S. Rep. No. 114-060 (2015) ....................................................................................... 6

H.R. Rep. No. 93-1600 (1974), reprinted in 1974 U.S.C.C.A.N. 7775 .................... 7


iv

H.R. Rep. No. 95-1558 (1978) ......................................................................... 2,8, 11

Oversight Hearing on Advancing the Federal-Tribal Relationship through Self-

Governance and Self-Determination Before the S. Comm. on Indian Affairs,

112th Cong. (2012),

https://www.indian.senate.gov/sites/default/files/upload/files/CHRG-

112shrg78812.pdf ................................................................................................... 7

Executive Materials

Exec. Order No. 13,021, 61 Fed. Reg. 54,329 (1996) ............................................... 9

Exec. Order No. 13,270, 67 Fed. Reg. 45,288 (2002) ............................................... 9

Exec. Order No. 13,592, 76 Fed. Reg. 76,603 (2011) .............................................10

National Science Foundation, NSF’s Tribal Colleges and Universities Program:

Nations United in Improving Science and Technology Education for Native

Americans, NSF 02-072,

https://www.nsf.gov/pubs/2002/nsf02072/nsf02072.pdf

(last visited Mar. 18, 2019) ...................................................................................10

Statement on Signing the Indian Self-Determination and Education Assistance Act,

The American Presidency Project (Jan. 4, 1975),

http://www.presidency.ucsb.edu/ws/index.php?pid=4739 .................................... 6

U.S. Dep’t of Agric., Nat’l Inst. of Food and Agric., Newsroom Blog, Tribal

Colleges Celebrate Land-Grant [Status 25th] Anniversary (Oct. 19, 2018),

https://nifa.usda.gov/blog/tribal-colleges-celebrate-land-grant-anniversary

(last visited Mar. 18, 2019). .................................................................................... 9

U.S. Dep’t of Educ., President’s Board of Advisors on Tribal Colleges and

Universities, Tribal Colleges and Universities: Education as the Engine for

Economic Development in Indian Country (2007)................................................. 8

U.S. Gov’t Accountability Office, GAO-19-87, Indian Programs:

Interior Should Address Factors Hindering Tribal Administration of

Federal Programs (2019) ..................................................................................6, 11

Rules

Fed. R. App. P. 26.1 ................................................................................................... i


v

Fed. R. App. P. 29(a)(2) ............................................................................................. 1

Fed. R. App. P. 29(a)(4) ......................................................................................... i, 1

Fed. R. App. P. 32(a)(5) ...........................................................................................13

Fed. R. App. P. 32(f) ................................................................................................13

Other Authorities

An Outstanding Return on Investment: Tribal Colleges and Their Contributions to

Montana, Montana Budget & Policy Center (2017),

http://montanabudget.org/report/tribal-colleges-and-their-contributions-to-

montana (last visited March 18, 2019) ................................................................... 4

Felix S. Cohen, Handbook of Federal Indian Law § 22.03[2][b][i]

(Nell Jessup Newton ed., 2012) ................................................................. 2, 8, 7, 8

History, Dine College, https://www.dinecollege.edu/about_dc/history/

(last visited Mar. 18, 2019) ..................................................................................... 2

Hope Stockwell, Tribal Colleges in Montana: Funding and Economic Impacts

(2016), http://leg.mt.gov/content/Committees/Interim/2015-2016/State-Tribal-

Relations/Meetings/July-2016/tribal-college-report-strc-july-2016.pdf ................ 4

Tribal Colleges & Universities: Educating, Engaging, Innovating, Sustaining,

AIHEC, http://www.aihec.org/who-we-are/docs/AIHECbrochure_2018.pdf

(last visited Mar.19, 2019). ..................................................................................... 3

Who We Serve, AIHEC, http://www.aihec.org/who-we-serve/index.htm

(last visited Mar. 19, 2019) ................................................................................. 2-3

William Wood, It Wasn’t An Accident: the Tribal Sovereign Immunity Story,

62 Am. U. L. Rev. 1587 (2013) ............................................................................11


1

INTEREST OF AMICUS CURIAE

The American Indian Higher Education Consortium (AIHEC) was founded

in 1973 and is the national 501(c)(3) organization for American Indian and Alaska

Native Tribal Colleges and Universities (TCUs). AIHEC presently has 35 regular

member TCUs, and 2 developing institution members. AIHEC provides leadership

and advocacy for TCUs on federal law and policy to strengthen tribal sovereignty

and improve higher education. AIHEC has a substantial interest in a correct and

consistent resolution of the federal statutory interpretation issue of first impression

raised in this case, which is whether a tribal college is an employer subject to suit

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17.

AIHEC submits this amicus brief to provide the Court with relevant backdrop and

framework information about TCUs generally that has not been presented by the

parties in this action but which will assist the Court’s analysis and determination of

the issue.

Pursuant to Fed. Rs. App. P. 29(a)(2) and 29(a)(4)(D), Amicus states that all

parties, through their counsel, have consented to the filing of this brief. Pursuant to

Fed. R. App. P. 29(a)(4)(E), Amicus further states that: (1) no counsel to a party

authored this brief in whole or in part; (2) no party or party’s counsel contributed

money intended to fund preparing or submitting this brief; and (3) no person –


2

other than amicus, its members, or its counsel – contributed money that was

intended to fund preparing or submitting this brief.

ARGUMENT

I. A BRIEF HISTORY AND PRESENT OVERVIEW OF TRIBAL

COLLEGES AND UNIVERSITIES (TCUS) SHOWS THE

POTENTIAL IMPACT OF THE FEDERAL STATUTORY

INTERPRETATION ISSUE RAISED IN THIS CASE

In 1968, the largest federally recognized American Indian tribe, the Navajo

Nation, whose Reservation extends within the States of Arizona, New Mexico, and

Utah, established the first tribal college as an innovative, culturally-based way to

address the long unmet postsecondary educational needs of its people. See

History, Dine College, https://www.dinecollege.edu/about_dc/history/ (last visited

Mar. 18, 2019. Soon, Congress began to fund the college. See the Navajo

Community College Act of 1971, Pub. L. No. 92–189, 85 Stat. 646 (1971). Within

the next ten years, “other tribes [began] to establish community colleges.” Felix S.

Cohen, Handbook of Federal Indian Law § 22.03[2][b][i] (Nell Jessup Newton ed.,

2012) (citing H.R. Rep. No. 95-1558, at 2 (1978). Between 1978 and 2011, “the

number of tribally controlled colleges [grew] from just a handful to 33.” Id.

(citation omitted).

“[TCUs] are chartered by their respective tribal governments, including the

ten tribes within the largest reservations in the United States.” Who We Serve,


https://www.dinecollege.edu/about_dc/history/

3

AIHEC, http://www.aihec.org/who-we-serve/index.htm (last visited Mar. 19,

2019). Today, 37 TCUs nationwide “operate more than 75 campuses in 16 states.”

Id. TCUs “serve students from well more than 250 [of the 573] federally

recognized Indian tribes,” and they also serve non-Indians.1 Id. On an annual

basis, TCUs collectively typically serve about 30,000 academic students directly,

offering associate, baccalaureate and masters degree programs. Tribal Colleges &

Universities: Educating, Engaging, Innovating, Sustaining, AIHEC,

http://www.aihec.org/who-we-are/docs/AIHECbrochure_2018.pdf (last visited

Mar.19, 2019). They serve tens of thousands more American Indians, Alaska

Natives, and other rural community residents in academic-related and community-

based programs. “TCUs vary in enrollment (size), focus (liberal arts, sciences,

workforce development/training), location, (woodlands, desert, frozen tundra, rural

reservation, urban). Who We Serve, supra. “However, tribal identity is the core of

every TCU, and they all share the mission of tribal self-determination and service

to their respective communities.” Id.

1 It was reported over a decade ago that “[a]bout 20% of students attending

tribal colleges are non-Indian, although the [TCUs] rarely receive funds to educate

them.” Cohen, § 22.03[2][b][i] (citing U.S. Dep’t of Educ., President’s Board of

Advisors on Tribal Colleges and Universities, Tribal Colleges and Universities:

Education as the Engine for Economic Development in Indian Country 7 (2007).


http://www.aihec.org/who-we-serve/index.htm

www.aihec.org/who-we-are/docs/AIHECbrochure_2018.pdf

4

Of the 37 TCUs at present nationwide, 12 – almost one-third -- are located in

states within the federal Ninth Judicial Circuit. Aaniih Nakoda College; Blackfeet

Community College; Chief Dull Knife College; Fort Peck Community College;

Little Big Horn College; Salish Kootenai College; and, Stone Child College are

located in Montana. Dine College; San Carlos Apache College; and, Tohono

O’Odham Community College are located in Arizona. California Tribal College is

located in California. Northwest Indian College is located in Washington.

Ilisagvik College is located in Alaska.

Montana, where Appellee Salish Kootenai College is located, is the only

state in which each federally recognized tribe has established a fully

accredited TCU. See Hope Stockwell, Tribal Colleges in Montana: Funding and

Economic Impacts (2016), http://leg.mt.gov/content/Committees/Interim/2015-

2016/State-Tribal-Relations/Meetings/July-2016/tribal-college-report-strc-july-

2016.pdf. The impact of TCUs in Montana is noteworthy on several bases. In

Academic Year 2013-2014, TCUs in Montana served 2,401 full-time students. Id.

at 2 (footnote omitted). In 2009, TCUs “in Montana infused $76.2 million directly

into the state’s economy.” An Outstanding Return on Investment: Tribal Colleges

and Their Contributions to Montana, Montana Budget & Policy Center (2017),

http://montanabudget.org/report/tribal-colleges-and-their-contributions-to-montana

(last visited March 18, 2019 (citing Stockwell, supra).


https://en.wikipedia.org/wiki/Higher_education_accreditation_in_the_United_States

https://en.wikipedia.org/wiki/Higher_education_accreditation_in_the_United_States

leg.mt.gov/content/Committees/Interim/2015-2016/State-Tribal-Relations/Meetings/July-2016/tribal-college-report-strc-july-2016.pdf



http://montanabudget.org/report/tribal-colleges-and-their-contributions-to-montana

5

II. THE FEDERAL STAUTORY INTERPRETATION ISSUE

SHOULD BE EXAMINED IN THE CONTEXT OF THE FEDERAL

– TRIBAL GOVERNMENT-TO-GOVERNMENT

RELATIONSHIP WITHIN WHICH TCUS EXIST

From its inception, the United States has had official government-to-

government relations with Indian tribes. See, e.g., Warren Trading Post Co. v.

Ariz. State Tax Comm’n, 380 U.S. 685, 687 n.4 (1965) (first United States treaty

with an Indian tribe was in 1778). In addition to the Constitutional provisions in

Article I, see United States v. Lara, 541 U.S. 193, 200-201 (2004), “for much of

the Nation’s history, treaties, and legislation made pursuant to those treaties, [have]

governed relations between the Federal Government and the Indian tribes.” Id. at

201 (citation omitted). Court decisions likewise have defined aspects of the

federal-tribal relationship now for “[t]wo centuries . . . .” Michigan v. Bay Mills

Indian Cmty., 134 S. Ct. 2024, 2040-2041 (2014) (Sotomayor, J., concurring). See,

e.g., Frank’s Landing Indian Cmty. v. Nat’l Indian Gaming Comm’n, 2019 WL

1119912, at *2 (9th Cir. Mar. 12, 2019) (discussing the “government-to-

government relationship between the United States and [federally] recognized

tribe[s]”).

The core of federal-tribal relations today is the Indian Self-Determination

and Education Assistance Act (ISDEAA) of 1975, Pub. L. No. 93-638, codified as


6

amended at 25 U.S.C. §§ 5301-5332. As this Court stated recently, the ISDEAA

“authorizes Indian tribes to contract with the federal government to provide

services that were previously provided by the federal government.” Gila River

Indian Cmty. v. U.S. Dep’t of Veterans Affairs, 899 F.3d 1076, 1077 (9th Cir.

2018). Earlier this year, the Government Accountability Office reported that the

ISDEAA “authorizes federal recognized tribes to assume the administration of a

variety of federal programs – or portions thereof – that were previously managed”

by federal agencies. U.S. Gov’t Accountability Office, GAO-19-87, Indian

Programs: Interior Should Address Factors Hindering Tribal Administration of

Federal Programs 1 (2019); see also Cherokee Nation v. Leavitt, 543 U.S.

631(2005); Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012); and

Menominee Indian Tribe v. United States, 136 S.Ct. 750 (2016) (trilogy of

Supreme Court decisions discussing ISDEAA based on tribal breach of contract

claims under the ISDEAA for contract “support costs”).

Formally recognized as “milestone” legislation when it was enacted, see

Statement on Signing the Indian Self-Determination and Education Assistance Act,

The American Presidency Project (Jan. 4, 1975),

http://www.presidency.ucsb.edu/ws/index.php?pid=4739, the ISDEAA remains

“one of the most important legislative acts affecting Indian country of the last four

decades.” S. Rep. No. 114-060, at 2 (2015). The ISDEAA expressly incorporates


http://www.presidency.ucsb.edu/ws/index.php?pid=4739

7

the federal-tribal relationship. “Congress [has carefully reviewed] the Federal

Government’s historical and special legal relationship with, and resulting

responsibilities to, American Indian people.” 25 U.S.C. § 5301(a) (congressional

statement of findings). “Congress declares its commitment to the maintenance of

the Federal Government’s unique and continuing relationship with, and

responsibility to, individual Indian tribes and to the Indian people as a whole . . . .”

25 U.S.C. § 5302(b) (congressional declaration of policy). Legislative history

confirms Congress’ specific reliance on the federal-tribal relationship as the

ISDEAA’s foundation. H.R. Rep. No. 93-1600 (1974), reprinted in 1974

U.S.C.C.A.N. 7775, at 7781 (the new federal policy of Indian self-determination is

“consistent with the maintenance of the Federal trust responsibility and the unique

Federal-Indian relationship.”). Within the last decade, Congress has continued to

progress the federal-tribal relationship through the ISDEAA. See Oversight

Hearing on Advancing the Federal-Tribal Relationship through Self-Governance

and Self-Determination Before the S. Comm. on Indian Affairs, 112th Cong.

(2012), https://www.indian.senate.gov/sites/default/files/upload/files/CHRG-

112shrg78812.pdf.

While “Tribes themselves provided the genesis” of the original Tribally

Controlled Community College Assistance Act (TCCCAA) of 1978, 25 U.S.C. §§

1801-1864, Pub. L. 95–471, Oct. 17, 1978, 92 Stat. 1325 (1978), see Cohen, §


https://www.indian.senate.gov/sites/default/files/upload/files/CHRG-112shrg78812.pdf

https://www.indian.senate.gov/sites/default/files/upload/files/CHRG-112shrg78812.pdf

8

22.03[2][b][i], Congress made clear the TCCCAA’s direct ascension from the

ISDEAA and its federal-tribal government-to-government foundation. TCUs

“represent a model expression of [Indian] self-determination as enunciated in” the

ISDEAA. H.R. Rep. No. 95-1558, at 3 (1978). The TCCCAA “channels . . .

funds to tribal entities and is consistent with the current congressional thrust

toward [Indian] self-determination.” Id. at 7. The TCCCAA “is also intended to

recognize the legal responsibility that the federal government has for the education

of the American Indian, a responsibility embedded in the more than 200 Treaties

which exist between the federal government and the Indian Nations.” Id. at 2.

The federal government has an intergovernmental relationship with

the Indian tribal governments. This legislation carries out this

intergovernmental relationship by having funds go only to those

institutions chartered and controlled by federally recognized tribes.

These are, effectively, tribal entities and are viewed as such by both

the tribal governments and the institutions.

Id. at 7. “There should be no doubt … that [the TCCCAA is] built around the

special legal relationship that exists between the federal government and Indian

Nations.” Id. at 8.

Successive reauthorizations of and amendments to the TCCCAA, “renamed

the Tribally Controlled College or University Assistance Act (TCCUAA) in 1998,”

Cohen, § 22.03[2][b][i] (citing Pub. L. No. 105-244, § 901, 112 Stat. 1828 (1998),

have reaffirmed its ISDEAA and federal-tribal government-to-government

foundations. E.g., S. Rep. No. 110-46, at 2 (2007) (“The Federal government has


9

repeatedly recognized the unique relationship between the United States and Indian

tribes … [and as] a result of this unique relationship the Federal government

provides funding to tribal colleges and universities”); S. Rep. No. 98-64, at 3

(1983) (“Tribally Controlled Community Colleges are playing a vital role in the

realization of Indian Self-Determination”); .

Such foundations also underlie the landmark Equity in Educational Land-

Grant Status Act of 1994, see Pub. L. No. 103-382, 108 Stat. 3518 (1994), codified

as amended at 7 U.S.C. §§ 301-309), which extended land-grant status to TCUs

and authorized appropriations consistent with that designation. See S. Rep. No.

103-194, at 1 (1993). The new, additional federal financial support for TCUs was

expressly based on “the historic special relationship of the United States to

American Indian tribal governments.” Id. at 3; see also U.S. Dep’t of Agric., Nat’l

Inst. of Food and Agric., Newsroom Blog, Tribal Colleges Celebrate Land-Grant

[Status 25th] Anniversary (Oct. 19, 2018), https://nifa.usda.gov/blog/tribal-

colleges-celebrate-land-grant-anniversary (last visited Mar. 18, 2019

The Executive Branch of the United States government recently has duly

carried out the federal-tribal government-to-government relationship in the context

of TCUs. Beginning in 1996, three successive Presidents issued Executive Orders

regarding TCUs. Exec. Order No. 13,021, 61 Fed. Reg. 54,329 (1996); Exec.

Order No. 13,270, 67 Fed. Reg. 45,288 (2002) (expressly noting the “unique




10

relationship between the United States and Indian tribes”); Exec. Order No.

13,592, 76 Fed. Reg. 76,603 (2011) (expressly noting that the “United States has a

unique political and legal relationship with the federally recognized American

Indian and Alaska Native . . . tribes”).

The Executive Orders in turn have led to multiple TCU initiatives in and

partnerships with federal agencies that acknowledge and implement “the

relationship among sovereign Indian tribes, TCUs, and the Federal Government.”

National Science Foundation, NSF’s Tribal Colleges and Universities Program:

Nations United in Improving Science and Technology Education for Native

Americans, NSF 02-072 at 6,

https://www.nsf.gov/pubs/2002/nsf02072/nsf02072.pdf (last visited Mar. 18,

2019).

In sum, issues involving the status of TCUs under general federal statutes

such as the Civil Rights Act must be understood and determined in the context of

the historic but enduring federal – tribal government-to-government relationship,

which in turn is based on the sound recognition in federal law of tribal sovereignty.

As “separate sovereigns pre-existing the Constitution,” Michigan, 134 S. Ct. at

2030 (Kagan, J., delivering the opinion of the Court) (citation omitted), and

expressly recognized in the Constitution, Indian tribes in this country are well-

understood to be “among the family of sovereigns” – nations with their own


https://www.nsf.gov/pubs/2002/nsf02072/nsf02072.pdf

11

governments and laws, capable of entering into treaties with the United States. See

William Wood, It Wasn’t An Accident: the Tribal Sovereign Immunity Story, 62

Am. U. L. Rev. 1587, 1611 (2013); see also U.S. Gov’t Accountability Office,

GAO-19-87, Indian Programs: Interior Should Address Factors Hindering Tribal

Administration of Federal Programs 5 (footnote omitted) (“Indian tribes and

nations are recognized as ‘distinct independent political communities’ that are part

of the unique political structure of layered sovereigns and internal governments

that comprise the U.S. system of government”).

“Indian tribes are domestic dependent nations that exercise inherent

sovereign authority.” Michigan, 134 S. Ct. at 2030 (internal quotations and

citations omitted). As Congress aptly stated four decades ago, the TCUs that

sovereign tribes establish and operate to meet the specific higher education needs

of the local communities that they serve are most certainly “tribal entities and are

viewed as such” by TCUs, tribal governments, and the federal government. H.R.

Rep. No. 95-1558, at 7.


12

CONCLUSION

For the reasons stated above and by Appellee and Intervenor-Appellee, the

judgment below should be affirmed.

DATED this 18th day of March, 2019,

Respectfully submitted,

/s/ Natalie A. Landreth*

Natalie A. Landreth

Melody L. McCoy

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

Phone: (303) 447-8760

Fax: (303) 443-7776

Email: [email protected]

/s/ Michael G. Black

Michael G. Black

Beck, Amsden & Staples, PLLC

1946 Stadium Dr. #1

Bozeman, MT 59715

Phone: (406) 586-8700

Fax: (406) 586-8960

Email: [email protected]

*Counsel of Record for Amicus Curiae


13

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitations of

Fed. R. App. P. 32(a)(7)(B) because it contains, 2,270 words, excluding the parts

of the brief exempted by Fed. R. App. P. 32(f). This brief also complies with the

typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements

of Fed. R. App. P. 32(a)(6) because it was prepared in the Microsoft Word using

Times New Roman, a proportionally spaced typeface, and 14-point font.

Dated this 18th day of March 2019.


/s/ Natalie A. Landreth

Natalie A. Landreth

Counsel of Record for Amicus Curiae


14

CERTIFICATE OF SERVICE

I hereby certify that on March 18th, 2019, a copy of the foregoing brief was

electronically filed with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system. The

following participants in this case were registered CM/ECF users at the time of this

filing and that service will be accomplished by the appellate CM/ECF system to

the following:

Torrance Coburn, Attorney of record for Appellant

Martin S. King, Attorney of record for the Appellee

John Harrison, Attorney of record for Intervenor-Appellee

Dated this 18th day of March 2019.


/s/ Natalie A. Landreth

Natalie A. Landreth

Counsel of Record for Amicus Curiae


court of appeals amicus brief final 03 18 2019 (00200362 ...docket no. 9:17-cv-00088-m-dlc u.s....

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