[00:00:01] Speaker 00: Good morning, Your Honors. [00:00:02] Speaker 00: Samuel Kent, the petitioner in this case, representing myself. [00:00:08] Speaker 00: I would like to request to reserve about four minutes for rebuttal and may it please the court. [00:00:15] Speaker 00: So this case involves a question, well, several questions, but the primary question that I think the court can very easily resolve this case on is the issue of whether or not [00:00:24] Speaker 00: 41 USC 4712 is not applicable to the ISDEAA as a result of it being a federal contracting or procurement law or whether or not the agency decision that was issued denying relief to the petitioner [00:00:45] Speaker 00: supports that interpretation by the agency whatsoever. [00:00:49] Speaker 00: I would submit that the plain language of Section 47-12 makes clear which circumstances are excluded from the application of its coverage, and it does not identify ISDEAA agreements within that language. [00:01:07] Speaker 00: The proposition that the provisions of the ISDEAA, which speak to procurement and acquisition laws and regulations, is not speaking to this particular municipal retaliation law when it is read in context or in the context of the legislative history that underlines why those provisions were included in the ISDEAA in the first place. [00:01:36] Speaker 00: First and foremost, so when the Act originally came out under the ISDAA, there was consideration about changing the language and identifying the contracts under that law as self-determination grants just because there was an issue with [00:01:54] Speaker 00: The fact that when federal or the BIA was faced with essentially transferring over authority for the provision of these federal services to Indian tribes, they were effectively [00:02:09] Speaker 00: The BIA imposed a great deal of regulations and requirements that made it impractical or essentially stood as a barrier to proper participation in these programs. [00:02:20] Speaker 00: So there was a need for a solution to resolve that and prevent that from happening. [00:02:25] Speaker 00: It was public law 98-250 or so in examining whether or not the, so sorry, let me back up a little bit. [00:02:35] Speaker 00: I apologize, I'm a little bit nervous, [00:02:38] Speaker 00: So originally there was a concern because the ISDEAA had provisions stating it should not be construed as being a grant or cooperative agreement under the Federal Grants and Cooperative Agreement Act. [00:02:55] Speaker 00: And the question was raised to the GAO, I believe, about whether or not it was a violation of that law for the Secretary of the Interior [00:03:07] Speaker 00: to utilize self-determination contracts. [00:03:12] Speaker 00: But ultimately, what ended up happening is it was determined that it would be too difficult to revise the Department of Interior or the BIA's regulations to permit the use of those or to change the name from self-determination contracts to grants. [00:03:29] Speaker 00: And so there is a great deal of legislative history that is referred to in the reply brief that speaks directly to the issue of clarifying the fact that self-determination contracts [00:03:41] Speaker 00: The reason for the provisions excluding or exempting federal procurement laws or acquisition laws has a specific legislative history that is not applicable in this circumstance just because the language of Section 47 and 12 specifically identifies grants and grants have a specific [00:04:02] Speaker 00: legislative meaning in the context of the legal instruments that are used for the transfer of appropriated funds. [00:04:09] Speaker 04: I'm wondering if I could interrupt you just to ask a more specific question. [00:04:13] Speaker 04: I know you're very conversant in all of this. [00:04:17] Speaker 04: It's obvious, and you spent a lot of your career looking at these things. [00:04:23] Speaker 04: So I wanted to split it up between talk about the housing and the transportation as two separate. [00:04:32] Speaker 04: If I go down the housing route, I think you've already identified that the ISDEAA has a presumption that these federal contract laws don't apply to self-determination contracts. [00:04:51] Speaker 04: And it seems that the housing contract [00:04:58] Speaker 04: was a self-determination contract. [00:05:01] Speaker 04: Do you agree with that? [00:05:04] Speaker 00: Yes. [00:05:05] Speaker 00: So the underlying HIP agreement was a self-determination contract. [00:05:10] Speaker 00: But the position that I'm submitting to court is that whether or not the underlying legal instrument is a self-determination contract or not, [00:05:22] Speaker 00: sign language of the whistleblower retaliation statute, it does not by itself identify it as a procurement law and it actually has a specific section about which areas that are exempted from its coverage and it doesn't include these agreements and then also... Okay, I understand that but if... Sorry. [00:05:47] Speaker 04: We have the intersection, of course, of 4712. [00:05:52] Speaker 04: We've got 5324. [00:05:55] Speaker 04: And then we have the specific agreements. [00:06:00] Speaker 04: Right. [00:06:01] Speaker 04: If we were to disagree with you and say, well, we can't resolve it just by a big rainbow over 4712, [00:06:10] Speaker 04: But we have to look at the particular contract grant and status. [00:06:15] Speaker 04: Let me take you then to the transportation segment and ask you, is that [00:06:26] Speaker 04: Was that issued as a self-determination contract, the TTP? [00:06:32] Speaker 00: Yes. [00:06:33] Speaker 00: So my position is that it was not actually a self-determination contract. [00:06:38] Speaker 00: I know my friend on the other side argued that the language in the TTP original statute stating that it was supposed to be [00:06:55] Speaker 00: conducted in accordance with the self-determined ISDEA agreement. [00:06:58] Speaker 00: But as identified in the reply brief, there are specific requirements that an ISDEA contract, in fact, have to fulfill in order to be an ISDEA contract. [00:07:10] Speaker 04: One of those was the actual- Could I ask you, yeah, could I just ask you, because I know when you get into government contracts, it's like another world of lingo. [00:07:19] Speaker 04: Could you, you want to tell us in kind of simple terms, [00:07:24] Speaker 04: how you would characterize the TTP agreement. [00:07:29] Speaker 04: What kind of agreement is it? [00:07:33] Speaker 00: Correct, so the BIA identifies it according to its own unique terms, which it calls a government-to-government program agreement. [00:07:45] Speaker 00: So it's almost as if the BIA created a separate category outside of ISDEAA agreements. [00:07:52] Speaker 00: And I believe the other one is like a self-governance compact. [00:07:58] Speaker 00: And then it has a separate category that it identifies as a government-to-government program agreement. [00:08:04] Speaker 00: But ultimately, [00:08:10] Speaker 00: It is the terms of the actual contract state that the provisions of the ISDA are supposed to apply for the purposes of the Federal Report Claims Act and the Prompt Payment Act. [00:08:21] Speaker 00: So I don't believe that it would be possible to import from that language that, for whatever reasons, the whistleblower protection law is somehow excluded as a result of the Congress's purpose of essentially having these programs [00:08:39] Speaker 00: implemented in accordance with an overall federal policy of permitting Indian tribes to engage in these federal programs. [00:08:47] Speaker 03: Thank you. [00:08:48] Speaker 00: Yeah. [00:08:50] Speaker 03: Council, would you like to reserve some time for your vote? [00:08:54] Speaker 00: Yes, please. [00:08:54] Speaker 00: Thank you. [00:08:55] Speaker 03: Okay. [00:08:55] Speaker 03: Let's hear from opposing council, please. [00:09:02] Speaker 02: Thank you, Your Honors. [00:09:03] Speaker 02: Jamie Lilly on behalf of the respondents. [00:09:06] Speaker 02: Just like to begin by addressing Judge McHugh's question about the tribal transportation program agreements. [00:09:13] Speaker 02: Those agreements by statute are required to be issued in accordance with ISDA, and program agreements are a contracting option that is fully ISDA compliant. [00:09:25] Speaker 03: Can I stop you right there and ask you for the support for that? [00:09:29] Speaker 03: Your brief makes that assertion, but I am challenged to find support for it. [00:09:34] Speaker 02: Your Honor, the tribal transportation [00:09:37] Speaker 02: program statute requires in a number of places that the that private transportation that funds dispensed by the agency under the tribal transportation program agreement comply with ISDA. [00:09:55] Speaker 02: and program agreements. [00:09:58] Speaker 03: So, Council, that's what I'm looking for, specifically, is that support. [00:10:03] Speaker 03: I think the statute, 23 U.S.C., Section 202, B6A, certainly indicates that they could be. [00:10:10] Speaker 03: I think it indicates that if the tribe requests that they may be administered pursuant to the Self-Determination Act, but I can't see in our record where that happened, and the agreement we have says that it was authorized pursuant to Section 202. [00:10:26] Speaker 02: Yes, Your Honor. [00:10:27] Speaker 02: Authorized pursuant to the Tribal Transportation Program Statute. [00:10:33] Speaker 03: So what the Director said, right, but the Director said is that this agreement was made pursuant to Public Law 638, which of course is the Self-Determination Act, and it says including [00:10:46] Speaker 03: the HIP and the TTP administered in this case. [00:10:49] Speaker 03: The HIP, I think, you're not going to get pushback at least from me, that the HIP agreement in this case was a self-determination contract. [00:10:56] Speaker 03: But I'm trying to figure out what is the basis for this, for sweeping in the TTP agreement. [00:11:03] Speaker 02: Yes. [00:11:03] Speaker 02: I'm quoting from our brief on page 20, 23 USC 202 B6A, that funds are made available to tribes [00:11:13] Speaker 02: in accordance with Indian self-determination. [00:11:16] Speaker 03: I see that. [00:11:17] Speaker 03: Your brief keeps asserting that, but I don't think the statute says that. [00:11:20] Speaker 03: That's the problem we've got. [00:11:22] Speaker 03: I think the statute, the most I can get from the statute is that the tribe could have made that request, and maybe the tribe did make that request. [00:11:29] Speaker 03: I don't know that. [00:11:30] Speaker 03: If you've got that from the record, that would be helpful as well. [00:11:36] Speaker 02: Your Honor, it's not in the administrative record in this case, but the [00:11:44] Speaker 02: I think it would come as a surprise to the many tribes that administer programs pursuant to the Tribal Transportation Program that they were not shielded by the Indian Self-Determination Act and made in accordance with the Indian Self-Determination Act. [00:12:01] Speaker 03: Well, that may be, and it may be that they've made that request, but what we've got is a template consistent with the TTP statute. [00:12:12] Speaker 02: Yes, Your Honor. [00:12:14] Speaker 02: And those programs agreements are in accordance with the Indian Self-Determination Act. [00:12:23] Speaker 04: Right, but that's kind of like circular, and your brief has only about two pages on this. [00:12:29] Speaker 04: It comes down to this phrase, what does it mean to be in accordance with the Indian Self-Determination Act? [00:12:36] Speaker 04: Something could be in accordance with that act, but not be a self-determination agreement. [00:12:43] Speaker 04: It might have a different moniker. [00:12:45] Speaker 04: It might have a different legal status. [00:12:48] Speaker 04: And so I'd like to know from you what, besides that little phrase, would make these [00:12:59] Speaker 04: transportation agreements, self-determination agreements. [00:13:05] Speaker 02: Your Honor, they are administered in accordance with the selection. [00:13:07] Speaker 04: No, no, don't tell me that. [00:13:08] Speaker 04: Because that's what you keep saying. [00:13:12] Speaker 04: I feel like we're in this Mobius loop. [00:13:14] Speaker 04: Yeah, it's in accordance with. [00:13:16] Speaker 04: But that really is the question we're trying to get under, is what does that mean? [00:13:24] Speaker 04: If something is a program agreement, it's not necessarily a self-determination agreement. [00:13:30] Speaker 04: Would you agree with that? [00:13:34] Speaker 02: No, Your Honor. [00:13:35] Speaker 02: Program agreements under the Tribal Transportation Program are [00:13:40] Speaker 02: in accordance with the Self-Determination Act. [00:13:43] Speaker 02: I know the language that you'd prefer for me to avoid, but that is the language of the statute. [00:13:47] Speaker 04: No, I don't want you to avoid the language. [00:13:50] Speaker 04: I want you to explain it, because all it says in your brief is, voila, here's this language, therefore, issue solved. [00:13:59] Speaker 04: But it doesn't seem to me that just because something would be in accord with that statute, which might mean it's not colliding, [00:14:09] Speaker 04: with the statute, it doesn't mean that it's necessarily an agreement that is a self-determination agreement. [00:14:18] Speaker 04: So that's where I'm trying to figure out how do you, what are the indicia of the self-determination agreement that place these transportation agreements within a self-determination agreement? [00:14:36] Speaker 02: I think they include all the requirements of Self-Determination Act agreements. [00:14:44] Speaker 02: They are in accordance with the requirements of Self-Determination Act agreements and so incorporate the 5324A1 provision that exempts program agreements from procurement and contracting laws. [00:15:01] Speaker 02: I think these are very common agreements between tribes and the [00:15:07] Speaker 02: the agency, and that are fully ISDA compliant, both with the substantive provisions of ISDA and the exemption for federal contracting and current laws. [00:15:20] Speaker 02: I hope that answers your question, that in accordance with means compliant with and subject to those substantive provisions. [00:15:32] Speaker 01: It seems as though it may be that there are concentric circles, so you've got first the question of in accordance with and perhaps a subset of that is self-determination contracts. [00:15:47] Speaker 01: Your argument is [00:15:49] Speaker 01: There aren't concentric circles, if that makes any sense, correct? [00:15:54] Speaker 02: I'm not sure that I follow the concentric circles analogy. [00:15:57] Speaker 02: I know that there are different contracting instruments within the tribal transportation program agreements that might be available, something that looks more like a traditional Self-Determination Act agreement, and then there are program agreements, all of which comply with the [00:16:15] Speaker 02: the substantive provisions of ISDA and are exempt from program and contracting agreements. [00:16:20] Speaker 02: Is that what you meant by concentric circles? [00:16:24] Speaker 01: There are different kinds of agreements, and you seem to be arguing they all fall within the self-determination. [00:16:31] Speaker 01: Aegis, and I'm not sure I see that from the statutory construction. [00:16:41] Speaker 02: Your Honor, the statute itself imposes those requirements, and the agency and tribes have struck these agreements. [00:16:53] Speaker 03: Can you show us where the statute itself imposes? [00:16:55] Speaker 03: You've said that a couple times. [00:16:56] Speaker 03: That would be helpful to me. [00:16:58] Speaker 02: Yes. [00:16:59] Speaker 02: So the provision of the Tribal Transportation Program Agreement [00:17:06] Speaker 02: is 202A2B and then we've also cited the Federal Register Notice 81 Federal Register 78-457 talking about program agreements being a type of contracting instrument. [00:17:24] Speaker 02: It's a very common contracting instrument that hundreds of the federally recognized tribes use under the Tribal Transportation Program Agreement with [00:17:36] Speaker 02: the full understanding that these are compliant with the Self-Determination Act and exempt from procurement and contracting laws. [00:17:43] Speaker 03: Well, I don't think it's going to be your position that the funds have to be made available to the tribe. [00:17:49] Speaker 03: Transportation funds have to be made available in accordance with the Self-Determination Act, is it? [00:17:55] Speaker 03: That they would all have to be Self-Determination contracts? [00:17:58] Speaker 02: that they need to all be ISDA compliant. [00:18:02] Speaker 03: If the tribe requests. [00:18:03] Speaker 03: I mean, at a minimum, the statute says expressly the tribe has to make that request, right? [00:18:08] Speaker 02: Yes, Your Honor. [00:18:09] Speaker 03: Okay. [00:18:09] Speaker 03: And we don't have that in the record for starters. [00:18:12] Speaker 03: I think you've indicated we don't have that in our administrative record. [00:18:16] Speaker 02: I think that's right, Your Honor, but I don't know that it would be possible to have a program agreement that was not ISDA compliant. [00:18:24] Speaker 04: I think that's where we're getting into the problem is that just because it's ISDA compliant doesn't mean it's necessarily a self-determination contract. [00:18:31] Speaker 04: And what if the tribe had not requested it? [00:18:34] Speaker 04: So let's just pretend we have a tribe that didn't request it. [00:18:41] Speaker 04: Would it still be a self-determination contract? [00:18:44] Speaker 02: I think perhaps the point of confusion is you're asking whether the tribe requests ISDA compliance. [00:18:52] Speaker 02: So if the tribe requests it and the agency and the tribe issue a program agreement pursuant to ISDA, then it is in accordance with ISDA and therefore exempt from procurement law. [00:19:05] Speaker 04: But the tribe doesn't request it, the language that Judge Christian read. [00:19:10] Speaker 02: doesn't request a self-determination act. [00:19:13] Speaker 02: Well, doesn't request it, yes. [00:19:15] Speaker 04: I mean, what does that language mean if the tribe requests it? [00:19:20] Speaker 02: I don't know if it requests some other type of agreement or contracting adoption. [00:19:26] Speaker 02: It hasn't been an issue in this case, but I'd be happy to. [00:19:29] Speaker 04: Well, but how do we know it's not an issue? [00:19:31] Speaker 04: Because we don't have a record. [00:19:32] Speaker 02: Because, Your Honor, the [00:19:37] Speaker 02: the program agreements are ISDA compliant options. [00:19:40] Speaker 02: So I think the notion that the agreement is a program agreement answers the question of whether it satisfies ISDA. [00:19:50] Speaker 02: If it were some other type of agreement. [00:19:52] Speaker 03: Well, what if the statute said it does, or if the statute said it has to? [00:19:56] Speaker 03: And that's why I think perhaps it is the case that now all three of us have asked that question. [00:20:03] Speaker 03: Where does the statute require that? [00:20:05] Speaker 03: I just don't see it. [00:20:07] Speaker 02: Your Honor's question is, if a tribe were to request something outside of the ISDA framework. [00:20:16] Speaker 03: The statute seems to expressly allow the tribe to do that, but I think I've pressed this point, and I don't want to belabor it. [00:20:22] Speaker 03: I'm interrupting Judge Thomas. [00:20:27] Speaker 03: Oh, you didn't have another question? [00:20:29] Speaker 03: No. [00:20:29] Speaker 03: I thought. [00:20:30] Speaker 03: Well, then great. [00:20:30] Speaker 03: Maybe you can take one more run at mine. [00:20:32] Speaker 03: Where does the statute require this, please? [00:20:35] Speaker 02: Where does the statute require a accordance with ISSO? [00:20:39] Speaker 03: At a transportation grant, transportation program funding must be an Indian self-determination contract. [00:20:47] Speaker 02: And, Your Honor, it does not use the term, must be Indian self-determination, but it says that all the programmatic functions and the expenditure of funds by the agency must be in accordance with ISDA at the provision that we've cited. [00:21:03] Speaker 02: Okay. [00:21:03] Speaker 03: So I think you're citing 202B6A. [00:21:05] Speaker 03: Is that right? [00:21:06] Speaker 03: Or are you relying on a different statutory provision? [00:21:08] Speaker 03: 202A2B. [00:21:12] Speaker 03: A2B. [00:21:12] Speaker 03: A2B. [00:21:13] Speaker 03: Okay. [00:21:13] Speaker 03: That's fine. [00:21:14] Speaker 03: And then, so just one more. [00:21:17] Speaker 03: request A to B. Can you tell us what other import we should give to the language in the statute that conditions all of this upon the tribe requesting? [00:21:31] Speaker 03: Is it program funding? [00:21:35] Speaker 02: I'm sorry, Your Honor. [00:21:37] Speaker 03: I'm not sure I followed the question. [00:21:39] Speaker 03: Does the statute requires that the tribe requests a contract pursuant to the Self-Determination Act? [00:21:47] Speaker 03: that it be administered in that fashion. [00:21:49] Speaker 03: And you've already said that you don't have that for us here in the record. [00:21:55] Speaker 03: But your insistence that the contract must be in accordance with the Indian Self-Determination Act seems to read out that requirement in the statute, those words from the statute that say, if requested by the tribe. [00:22:10] Speaker 03: So what do we do with that? [00:22:10] Speaker 02: Perhaps this would be helpful. [00:22:12] Speaker 02: A program agreement by its nature is ISDA compliant. [00:22:16] Speaker 02: The fact that the tribe entered into a program agreement means that it is in a contractual relationship with the agency that is ISDA compliant. [00:22:28] Speaker 02: And so the program agreement demonstrates that we are within the section of the statute about ISDA compliance and therefore that the exemption provision applies. [00:22:43] Speaker 04: I guess maybe a different way of asking it is, what does this consent provision mean? [00:22:48] Speaker 04: What's the practical import of that? [00:22:54] Speaker 02: We'll have to speculate, Your Honor, that tribes could request or negotiate with the agency other contracting options and vehicles. [00:23:07] Speaker 02: But a program agreement is one that is compliant with this stuff. [00:23:12] Speaker 01: And where does it say that? [00:23:13] Speaker 01: That's the problem. [00:23:14] Speaker 01: You know, I'm looking at A to B, and that just says the secretary can enter into a contract with the tribe. [00:23:27] Speaker 01: That's the site you gave. [00:23:29] Speaker 01: The one I think we're looking at is B6A and 7A. [00:23:37] Speaker 02: Yes, the expenditure of funds must be used to come. [00:23:41] Speaker 02: Yes, Your Honor. [00:23:43] Speaker 02: And then the Federal Register discussion of program agreements discusses ISTA. [00:23:52] Speaker 03: We've taken you considerably over your time. [00:23:54] Speaker 03: If there are no further questions, we'll hear the rebuttal from opposing counsel. [00:23:59] Speaker 03: Had you wrapped up that question? [00:24:00] Speaker 03: I guess we have. [00:24:01] Speaker 03: All right. [00:24:01] Speaker 03: So we'll hear from opposing party, please. [00:24:04] Speaker 00: Yes, so I think I might be able to provide a degree of clarity. [00:24:08] Speaker 00: So whether or not the agreements at issue are ISDA agreements or some other form of contracting vehicle, the issue in this case that I would submit the court would be best focused on is the fact that 4712, the whistleblower retaliation law, [00:24:28] Speaker 00: It's not a procurement law that is within the meaning of the procurement laws that are exempted under the IAEA. [00:24:38] Speaker 00: The legislative history points directly to specific meanings for procurement acquisition. [00:24:43] Speaker 00: 41 USC section 111 actually has a specific [00:24:51] Speaker 00: application for procurement, which includes all stages of the process for acquiring property or services. [00:24:57] Speaker 00: And there's also, under applicable federal appropriations law, a differentiation between procurement agreements and also grant agreements. [00:25:11] Speaker 00: And that differences whether or not [00:25:13] Speaker 00: the purpose of the relationship between the federal government and then the entity that it is Contracting with is seeking goods or services for the benefit of the federal government or whether or not it's for It serves some public purpose and just so I understand your argument you have kind of an all-or-nothing argument in other words Both programs transportation and housing [00:25:39] Speaker 04: rise or fall with your argument, and that there's not a difference between the two programs. [00:25:44] Speaker 00: Is that right? [00:25:48] Speaker 00: Yes and no. [00:25:50] Speaker 00: So the BIA does differentiate between ISEA contracts and program agreements under the TTP. [00:25:59] Speaker 00: So if you look at the regulations that were promulgated for the TTP program, at 25 CFR 170.5, it has a definition for the term agreement, which differentiates it from being a [00:26:19] Speaker 00: Program agreement, a self-determination contract, a compact or, forgive me. [00:26:31] Speaker 04: Well, we're only looking at program agreements and self-determination. [00:26:37] Speaker 04: So is, in your view, [00:26:43] Speaker 04: You know, what the government argues is that all these agreements under 202 are really made in accord with ISDEA, and therefore they fall within that statute. [00:26:59] Speaker 04: You make the opposite. [00:27:01] Speaker 04: So you're not going under 202. [00:27:04] Speaker 04: You're going under 4712. [00:27:07] Speaker 04: Right. [00:27:09] Speaker 04: we were to disagree with you in broad terms that 4712 doesn't answer the question that you would like it to answer, then it would seem to me that you would not prevail. [00:27:22] Speaker 04: Is that right? [00:27:26] Speaker 00: Depends on the question. [00:27:27] Speaker 00: I suppose the [00:27:29] Speaker 00: I understand that the issue in this case was the belief that 4712 for some reason doesn't apply to these agreements, the ISDAA agreements, which is the agency director's rationale for denying relief. [00:27:43] Speaker 00: The position that I was presenting is that there's a specific meaning for the exemption for procurement laws that [00:27:53] Speaker 00: what's included in the provisions of the DAA. [00:27:57] Speaker 00: And that conflicts with the actual underlying reason or congressional intent for enacting the whistleblower protection law. [00:28:09] Speaker 00: So I'm not sure if I'm making that any clearer. [00:28:15] Speaker 03: I understand your position. [00:28:16] Speaker 03: Thank you. [00:28:17] Speaker 03: We've now taken you significantly over your time, but we're going to thank you both for your argument and advocacy. [00:28:21] Speaker 03: We'll take that case under advisement. [00:28:23] Speaker 03: and go on to the next case on the calendar.