JOHNSON BEAR ROBE,
LONEMAN SCHOOL CORPORATION,
a corporation chartered under the Oglala Sioux Tribe;
Larry Parker, in his official capacity as
Bureau of Indian Affairs Administrator for Loneman School Corporation;
and Does 1 through 10 inclusive,
[2000 DSD 44]
Michael P. Acosta, Hot Springs, SD
Attorney for Plaintiff
Joseph P. Lux, Costello, Porter, Hill, Heisterkamp &
Bushnell, Rapid City, SD
Attorney for Defendant Loneman School
Diana J. Ryan, US Attorney's Office, Rapid City, SD
Attorney for Defendant Parker
Richard H. Battey, Senior U. S. District Judge
[¶1] On June 21, 1999, plaintiff Johnson Bear Robe ("Bear Robe") filed an action for declaratory and injunctive relief alleging he was improperly suspended and later terminated from his employment with Loneman School Corporation ("Loneman School"). The complaint was amended on January 4, 2000. On March 14, 2000, Bear Robe filed a motion for summary judgment. On May 4, 2000, defendant Loneman School filed a cross-motion for summary judgment. On June 1, 2000, the United States of America, on behalf of defendant Larry Parker ("Parker") also filed a cross-motion for summary judgment. (1) This Court has jurisdiction pursuant to 28 USC § 1331.
[¶2] The following material facts are undisputed. On October 20, 1975, Bear Robe was convicted in federal court of voluntary manslaughter. See United States' Response to Plaintiff's Motion for Summary Judgment, Exhibit 10, Affidavit of Mark R. Vukelvich ("Vukelvich Aff") at ¶ 2(d). A judgment of conviction was entered on December 5, 1975. See United States' Response to Plaintiff's Statement of Material Facts at ¶ 10. Because Bear Robe was only 20 years of age at the time of his conviction, his conviction was eventually set aside pursuant to the Federal Youth Corrections Act ("FYCA"), 18 USC § 5021 (repealed 1984). See Plaintiff's Statement of Material Facts ("PSMF") at ¶ 11; United States' Response to PSMF at ¶ 11.
[¶3] Bear Robe began working for Loneman School as a bus driver, mechanic, and transportation supervisor in 1991. See PSMF at ¶ 1; United States' Response to PSMF at ¶ 1. Loneman School is a nonprofit corporation chartered by the Oglala Sioux Tribal Council and administered by the Loneman School Board ("the school board"). See Loneman School's Statement of Material Facts ("Loneman's SMF") at 1. Loneman School receives its funding through various federal grants authorized by the Tribally Controlled Schools Act of 1988, 25 USC §§ 2501 to 2511. See United States' Response to PSMF at ¶ 15.
[¶4] As a recipient of federal grants under the Tribally Controlled Schools Act, Loneman School is obligated by the Indian Child Protection and Family Violence Prevention Act ("ICPFVPA"), 25 USC § 3207(c), to conduct character investigations of its employees. On December 19, 1997, the BIA submitted Bear Robe's fingerprints as a part of this mandated character investigation. See United States' Response to PSMF at ¶ 16. The investigation revealed Bear Robe's 1975 voluntary manslaughter conviction. See id.
[¶5] Sometime in early 1998, the BIA informed the school board of continued deficiencies in its operation of the grant program at Loneman School. See Plaintiff's First Amended Complaint, Exhibit B, Oglala Sioux Tribal Ordinance. To avoid a total resumption of the grant by the BIA, the school board entered into a settlement agreement whereby Loneman School was placed under the supervision of a BIA oversight administrator. See First Amended Complaint, Exhibit C, Settlement Agreement. Under the terms of this agreement, the BIA administrator was given broad oversight authority, including the authority to "oversee all financial transactions and personnel decisions at the school... [and] review all personnel actions/decisions prior to their finalization to ensure procedural compliance with the policy manual ... ." Id.
[¶6] In a letter dated August 13, 1998, Bear Robe was informed that Loneman School had obtained knowledge of his voluntary manslaughter conviction. See First Amended Complaint, Exhibit D, Letter from Loneman School Superintendent Gerald Ray ("Ray"). Bear Robe was also instructed that such a conviction, if true, would make him ineligible for future employment with Loneman School under § 3207(b) of the ICPFVPA. See id. Bear Robe was given ten days to present the school board with documentation to refute the results of the criminal history check. See id. Shortly thereafter, Bear Robe was placed on administrative leave by Superintendent Ray. See First Amended Complaint at ¶ 10. Within ten days, however, Bear Robe was returned to duty based upon the recommendation of his probation officer, and shortly thereafter he received word that his employment contract for the 1998/99 school year had been ratified.
See id at ¶ 12.
[¶7] Bear Robe's employment status remained static until February 12, 1999. On this date, Dori Richards, Attorney-Advisor for the Office of the Solicitor, issued a memorandum advising that Bear Robe's conviction must be considered in reviewing his character under the ICPFVPA, regardless of whether the conviction had been set aside pursuant to the FYCA. See First Amended Complaint, Exhibit H, Memorandum of Dori Richards. In conformance with this opinion, Bear Robe was placed on administrative leave pending further review. See PSMF at ¶ 3; United States' Response to PSMF at 3. On March 26, 1999, the school board met and voted 4-0 to reinstate Bear Robe. See PSMF at ¶ 4. On this same day, however, Bear Robe was again placed on administrative leave -- this time by BIA Oversight Administrator Larry Parker ("Parker"). See PSMF at ¶¶ 4-6; United States' Response to PSMF at ¶ 4-6. In a confirmatory memorandum written to Bear Robe, Parker stated:
Pursuant to the settlement agreement in effect for Loneman School, as the BIA Oversight Administrator, I must "review all personnel actions/decisions prior to their finalization ... and decide actions necessary to bring Loneman School into compliance with Federal law.
Plaintiff's First Amended Complaint, Exhibit M, Parker Memorandum. On April 8, 1999, counsel for Bear Robe presented a letter to Parker seeking an administrative appeal of Parker's decision to place Bear Robe on indefinite leave. See PSMF at 7; United States' Response to PSMF at 8. On April 9, 2000, Parker held a special meeting with the school board whereupon the school board voted to terminate Bear Robe from his employment with Loneman School. PSMF at 8; United States' Response to PSMF at 8. On this same day, Bear Robe was notified of his termination by a letter written on Loneman School stationery and signed by Principal Joe Fast Horse ("Fast Horse") and BIA Oversight Administrator Parker. See First Amended Complaint, Exhibit P, Termination Letter. The letter stated, in pertinent part:
I regret to inform you that at a special meeting of the Interim Loneman School Board ... a motion was passed to rescind their reinstatement action taken on March 26, 1999, and passed a motion to terminate you from your position of Transportation Supervisor at Loneman School ... Your termination is due to you not meeting the minimum character standards to be employed in a position which has contact and/or control of Indian children as prescribed in P.L. 101-630 section 408, P.L. 101-647 subchapter V, and 25 CFR part 63.
On April 22, 1999, counsel for Bear Robe spoke to Attorney-Advisor Richards to request that Bear Robe be permitted to appeal his termination through the BIA administrative process. See First Amended Complaint, Exhibit S, Confirmatory Letter of Richards. In response, Richards observed that "[t]he decision whether or not to terminate Mr. Bear Robe's employment remains with the school board." Id. Accordingly, Bear Robe was not permitted to pursue an administrative appeal of this matter within the BIA. On June 21, 1999, the above entitled action was filed with this Court.
SUMMARY JUDGMENT STANDARD
[¶8] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶9] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. See Anderson v. Liberty Lobby, Inc., 477 US 242, 106 SCt 2505, 2513, 91 LEd2d 202 (1986). The Supreme Court has instructed that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 US 317, 327, 106 SCt 2548, 2555, 91 LEd2d 265 (1986). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," and "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 106 SCt at 1356.
[¶10] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 US 451, 468, 112 SCt 2072, 2083 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 US at 468 n.14, 112 SCt at 2083 n.14 (quoting Anderson, 477 US at 248, 106 SCt at 2510). To survive summary judgment there must be evidence that "reasonably tends to prove" the plaintiff's theory; the defendant meets the burden under Fed. R. Civ. P. 56(c) when it is conclusively shown that the facts upon which the nonmoving party relied to support the allegations were not susceptible of the interpretation which was sought to give them; only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Id. (citations omitted).
[¶11] As noted above, each party to this action seeks summary judgment as a matter of law. Because both Loneman School and the United States challenge this Court's jurisdiction on the grounds of immunity, this argument forms the first topic of discussion.
[¶12] Immunity of Loneman School
[¶13] Loneman School urges this Court to grant summary judgment in its favor on the ground that it has not waived its tribal immunity from suit. Bear Robe responds that the Oglala Sioux Tribal Council waived Loneman School immunity when it included a "sue and be sued" clause in the tribal ordinance chartering the school. Because Loneman School has not waived its immunity from suit, it will be dismissed from this action.
[¶14] In the Eighth Circuit, an assertion of tribal sovereign immunity is a jurisdictional question. See Rupp v. Omaha Indian Tribe, 45 F3d 1241, 1244 (8th Cir. 1995); see also Brown v. United States, 151 F3d 800, 804 (8th Cir. 1998). Indian tribes have long been treated as "domestic dependent nations" that exercise inherent sovereign authority over their members and territories. See Cherokee Nation v. Georgia, 30 US 1, 5 Pet. 1, 17, 8 L. Ed. 25 (1831). Consequently, suits against Indian tribes are barred by the doctrine of tribal sovereign immunity absent a clear waiver by the tribe or congressional abrogation. See Santa Clara Pueblo v. Martinez, 436 US 49, 58, 98 SCt 1670, 1677, 56 LEd2d 106 (1978). Further, it is undisputed that a tribe's sovereign immunity may extend to tribally created entities such as Loneman School. See Dillon v. Yankton Sioux Tribe Housing Auth., 144 F3d 581, 583 (8th Cir. 1998) (holding that tribally created housing authority is to be treated as tribal agency rather than separate corporate entity).
[¶15] Loneman School cites the language contained in the Revised Corporate Charter of the Loneman School Corporation ("the charter") for the proposition that it is shielded by tribal immunity in this case. Specifically, Loneman School points to section six of the charter which empowers Loneman School:
(d) to sue and be sued in its corporate name to the extent allowed by law, the Oglala Sioux Tribe hereby giving its irrevocable consent to allowing the Corporation to sue and be sued upon any contract, claim or obligation of the Corporation arising out of the accomplishment of its purposes and hereby authorizing the Corporation to waive any immunity from suit which it might otherwise have: provided, however, that neither the Oglala Sioux Tribe of the Pine Ridge Reservation, nor any of its property, shall be liable for the debts or obligations of the Corporation.
Loneman School's Brief in Support of Motion for Summary Judgment ("Loneman School Brief"), Exhibit 2, Revised Corporate Charter of Loneman School Corporation. Loneman School argues that "[t]he Tribal Council did not give a blanket waiver of sovereign immunity, in fact the Tribe made it clear it was not waiving any immunity from suit ... [but] merely authorized the Loneman School Corporation to waive its inherent immunity from suit," which Loneman School did not choose to do in this case. See Loneman School Brief at 3 (emphasis in original).
[¶16] It is well settled that a waiver of tribal sovereign immunity "cannot be implied but must be unequivocally expressed." Santa Clara Pueblo, 436 US 49, 98 SCt at 1677; Rupp v. Omaha Indian Tribe, 45 F3d 1241, 1245 (8th Cir. 1995) (observing that "nothing short of an express and unequivocal waiver can defeat the sovereign immunity of an Indian nation"). While the inclusion of a "sue or be sued" provision in a tribal corporate charter may be sufficient to waive immunity, Rosebud Sioux Tribe v. A & P Steel, Inc., 874 F2d 550 (8th Cir. 1989), this result is not preordained.
[¶17] In the recent cases of Dillon v. Yankton Sioux Tribe Housing Authority, 144 F3d 581 (8th Cir. 1998), and Hagen v. Sissteon - Wahpeton Community College, 205 F3d (8th Cir. 2000), the Eighth Circuit examined sue and be sued provisions virtually identical to the clause at issue in this case and determined they were not sufficient to waive immunity on behalf of the tribe. In Dillon, the Eighth Circuit rejected an assertion that the tribe had waived its immunity through a sue or be sued clause contained in a corporate charter because the resolution required the tribal agency (the Housing Authority) to have waived its immunity under the terms of a written contract between itself and the plaintiff. See Dillon, 144 F3d at 584. Because no such waiver occurred, the sue or be sued clause standing alone was held to be insufficient. See id.
[¶18] In Hagen, former employees of the Sisseton-Wahpeton Community College filed a federal race discrimination action against the tribally chartered college. On appeal, the Eighth Circuit held that as a tribal agency the college was immune from suit and because the college had not waived its immunity by virtue of a sue and be sued clause in the college's charter, the court was without subject matter jurisdiction to hear the case:
We also reject appellees' argument that the College waived its immunity because of a "sue-and-be-sued" clause in the College's charter in effect at the time their contracts were not renewed. The charter provided that the College could "sue and be sued in its corporate name in a competent court to the extent allowed by law." It also provided that the Tribe gave its "consent to allowing the [College] to sue and be sued upon any contract" and "authorize[d] the [College] to waive any immunity from suit which it might otherwise have."
Hagen, 205 F3d at 1044. Because the charter language examined in both Dillon and Hagen mirrors the provision presented in this case, this Court concludes, as it must, that Loneman school did not waive its immunity from suit by including this provision in its Corporate charter. Accordingly, Loneman School's motion for summary judgment will be granted.
[¶19] Immunity of the United States
[¶20] The United States also challenges this Court's jurisdiction on immunity grounds alleging that it has not consented to suit in this case. Specifically, the United States contends there has been no federal agency action which is reviewable under the Administrative Procedure Act ("APA) because it was the Loneman School Board, and not Parker, which acted to end Bear Robe's employment. (2) Without such agency action, the United States argues, the waiver of immunity contained in § 702 of the APA is not implicated.
[¶21] The United States is immune from suit unless it consents to be sued. See United States v. Dalm, 494 US 596, 608, 110 SCt 1361, 1368, 108 LEd2d 548 (1990). This consent must be unequivocally expressed in statutory text, United States v. Nordic Village, Inc., 503 US 30, 112 SCt 1011, 1016, 117 LEd2d 181 (1992), and the scope of a sovereign immunity waiver is strictly construed in favor of the sovereign. See Nordic Village, 112 SCt at 1014-15. Section 702 of the APA has been held to embody such consent. See Sabhari v. Reno, 197 F3d 938, 943 (8th Cir. 1999); McBride v. Coleman, 955 F2d 571, 580-81 (8th Cir. 1992). Section 702 provides in pertinent part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
Under this section, federal courts maintain broad equitable power to remedy those actions of the United States government which adversely affect private citizens. See McBride, 955 F2d at 581 (observing that "the APA was specifically amended by Congress in 1976 to 'strengthen [the] accountability [of the government] by withdrawing the defense of sovereign immunity in actions seeking relief other than money damages ... '" (quoting H.R. Rep. No. 1656, 94th Cong., 2d Sess. 4, reprinted in 1976 USCCAN 6121, 6124)).
[¶22] In this case, Bear Robe maintains the United States waived its immunity pursuant to the § 702 of the APA, first when BIA Oversight Administrator Parker placed him on indefinite administrative leave despite the school board's reinstatement vote, and later, when Parker threatened the school board that a future vote for reinstatement could result in the resumption of the school by the BIA. See Plaintiff's Memorandum of Points and Authorities in Opposition to United States' Cross-Motion for Summary Judgment ("Opposition to US Motion for Summary Judgment") at 1-2. This conduct, argues Bear Robe, was sufficiently adverse and final as to give rise to an "agency action" within the purview of § 702. This Court agrees.
[¶23] While it is undisputed that it was the school board who voted to terminate Bear Robe's employment, it cannot be said, as is argued by the United States, that the school board "had a choice" in the matter. See United States' Response on Behalf of Larry Parker to Plaintiff's Motion for Summary Judgment ("United States' Response Brief") at 4. A review of the Settlement Agreement entered into between Loneman School and the BIA reveals that as the BIA Oversight Administrator for Loneman School, Parker was endowed with the power to make whatever decisions where necessary to bring Loneman School into compliance with federal law. See Addendum/Clarification to Settlement Agreement § X. This inherent authority to assure compliance with federal law was reiterated by Parker in the letter he wrote placing Bear Robe on indefinite administrative leave:
Pursuant to the settlement agreement currently in effect for Loneman School, as the BIA Oversight Administrator, I must "review all personnel actions/decisions prior to their finalization ... and decide actions necessary to bring Loneman School into compliance with Federal law." In this capacity of Administrative oversight, to assure compliance with Federal law, I orally and in person informed you last Friday, March 26, 1999 that you were being placed on administrative leave. This memorandum is to conform and clarify that oral directive.
Parker Memorandum at 1. Pursuant to Parker's authority to assure compliance with federal law, in this case § 3207 of the ICPFVPA, Parker placed Bear Robe on indefinite administrative leave and later insured that the school board voted to terminate Bear Robe despite its reluctance to do so. In addition, it is of some note that Bear Robe's final letter of termination was jointly signed by both Loneman School Principal Joe Fast Horse and Larry Parker.
[¶24] Based upon the foregoing, it is the conclusion of this Court that the United States has waived its immunity from suit for the actions of BIA Oversight Administrator Parker. The BIA cannot place the power to "decide" in the hands of a BIA Oversight Administrator, only to later deflect the responsibility for such decisions onto the school board in the hopes of invoking the shield of sovereign immunity.
[¶25] The FYCA's Impact on the Requirements of the ICPFVPA
[¶26] The Court now turns to the merits of this case. In requesting summary judgment as a matter of law, Bear Robe argues that because his conviction was set aside under the FYCA, the BIA should not have considered it when assessing his character pursuant to the ICPFVPA. In sharp contrast, the United States argues that since Bear Robe's conviction involved both a "crime of violence" and a "crime against a person," it must be considered when assessing his character under the ICPFVPA, regardless of whether it was previously set aside under the FYCA. The effect of a set aside conviction on the character requirements of the ICPFVPA is a question of first impression, and while this Court must proceed without the guidance of pertinent case law, some enlightenment can be found in a close reading of the language of the statutes along with a review of the objectives that lie behind these statutes.
The FYCA provides in pertinent part:
(a) Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.
(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.
18 USC § 5021(a)-(b) (emphasis added).
[¶27] In enacting the "set aside" provision of the FYCA, Congress hoped to spur youthful offenders into productive citizenship by providing them with a "fresh start." See United States v. Nicolace, 90 F3d 255, 258 (8th Cir. 1996) (citing Doe v. Webster, 606 F2d 1226, 1234 (D.C. Cir. 1979)). Many courts, however, including the Eighth Circuit, have refused to equate the "set aside" requirements found in the FYCA with "expungement." See, e.g., United States v. Doe, 747 F2d 1358, 1359 (11th Cir. 1984) (per curiam) (no expunction); United States v. Doe, 732 F2d 229, 230-32 (1st Cir. 1984) (same); United States v. Doe, 556 F2d 391, 392-93 (6th Cir. 1977) (same); United States v. McMains, 540 F2d 387 (8th Cir. 1976) (same). Hence, while a conviction may be "set aside" under the FYCA, the records themselves are not destroyed and they may be used in calculating a defendant's criminal history, see Nicolace, 90 F3d at 258, or to enhance a defendant's criminal sentence, see United States v. Gardner, 860 F2d 1391 (7th Cir. 1988); United States v. Campbell, 724 F2d 812 (9th Cir. 1984).
[¶28] Contrasting the idea of a "fresh start" articulated by Congress in the FYCA is the broadly worded and far reaching mandate of the ICPFVPA, 25 USC § 3201 et seq. The ICPFVPA is premised in part on the Congressional finding that "no resource ... is more vital to the continued existence and integrity of Indian tribes than their children and the United States has a direct interest, as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe." § 3201(a)(1)(F).
[¶29] With this in mind, the ICPFVPA requires tribal organizations receiving federal funds under the Tribally Controlled Schools Act of 1988 to conduct an investigation into the character of each individual who is employed, or who is being considered for employment, for positions involving regular contact with, or control over, Indian children. See 25 USC § 3207(c)(1). Those persons subject to investigation must be found to possess "minimum standards of character" before being permitted to work around Indian children. See id. An employee is said to be without the "minimum standards of character" if he has been "found guilty of, or entered a plea of nolo contendre or guilty to, any offense under Federal, State, or tribal law involving crimes of violence; sexual assault, molestation, exploitation, contact or prostitution; or crimes against persons." Id. at 3207(b)-(c). In enacting this statute, Congress cast a wide net, choosing to shield Indian children from any person whose criminal background demonstrated a propensity for violence or inappropriate sexual conduct. While Congress could have included an exception for those persons whose convictions have been set aside pursuant to federal, state, or tribal law, it did not do so. Rather, the statute speaks in the broadest terms, disqualifying any person who has committed (at any time) a "crime of violence" or "crime against the person."
[¶30] Having weighed Congress' goal of providing youthful offenders such as Johnson Bear Robe with a fresh start against Congress' responsibility to protect Indian children from the potential of harm perpetrated by persons employed or funded by the federal government, this Court concludes that the goals articulated in the FYCA must give way to Congress' obligation to protect Indian children. Accordingly, Bear Robe does not meet the minimum standards of character required by the ICPFVPA and his termination cannot be said to have been improper. CONCLUSION
[¶31] Based upon the foregoing discussion, it is hereby
ORDERED that Bear Robe's motion for summary judgment (Docket #21) is denied.
IT IS FURTHER ORDERED that Loneman School's motion for summary judgment (Docket #27) is granted.
IT IS FURTHER ORDERED that the United States'
motion for summary judgment on behalf of Larry Parker (Docket #33) is granted.
1. Because Larry Parker is sued only in his official
capacity as an administrator for the Bureau of Indian Affairs, the United States
of America is the proper defendant to this case.
2. The United States also
insists that Bear Robe's case against Parker in his official capacity should be
dismissed because neither the Declaratory Judgment Act, the ICPFVPA, nor the
FYCA waives the sovereign immunity of the United States. Because this Court
concludes that the United States has waived immunity from suit pursuant to
section 702 of the APA, it need not address this argument.
1. Because Larry Parker is sued only in his official capacity as an administrator for the Bureau of Indian Affairs, the United States of America is the proper defendant to this case.
2. The United States also insists that Bear Robe's case against Parker in his official capacity should be dismissed because neither the Declaratory Judgment Act, the ICPFVPA, nor the FYCA waives the sovereign immunity of the United States. Because this Court concludes that the United States has waived immunity from suit pursuant to section 702 of the APA, it need not address this argument.