Chippewa Cree Tribe of the Rocky Boy's Reservation v. USDOI, No. 15-71772 (9th Cir. 2018)
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The Ninth Circuit denied a petition for review of the Department's decision ordering the Tribe to provide relief to a member that was removed from the Tribe's governing body in retaliation for his whistleblowing. The member informed the Department that some members of the Tribe's governing body (the Business Committee) were misusing federal stimulus funds.
The panel held that the member was an employee and thus eligible for whistleblower protection under the American Recovery and Reinvestment Act; the Department's order did not infringe on the Tribe's sovereignty and powers of self-governance; the Tribe voluntarily agreed to federal oversight when it accepted the stimulus funds; the Tribe did not have a due process right to a hearing with cross-examination before the Department reached its conclusion; although the Department did commit a procedural error where the Tribe did not have access to the Inspector General's report until the Department issued its preliminary decision, the error was harmless; and the Department did not err in finding that the removal of St. Marks was retaliatory. Finally, the court rejected the Tribe's argument regarding the monetary reward because it was raised for the first time on appeal.
Court Description: Tribal Issues / Whistleblower The panel denied a petition for review by the Chippewa Cree Tribe challenging a decision of the U.S. Department of the Interior that ordered the Tribe to provide relief to Ken St. Marks, who was removed from the Tribe’s governing body – the Business Committee – in retaliation for his whistleblowing. St. Marks informed the Department of the Interior that members of the Business Committee were misusing federal stimulus funds awarded to the Tribe by the Department pursuant to the American Recovery and Reinvestment Act. The Act contains robust whistleblower protections. The panel rejected the Tribe’s challenges to the Department of Interior’s decision. First, the panel held that St. Marks was an “employee” and eligible for whistleblower protection under the Act because he provided services on behalf of his employer, the Tribe. Second, the panel held that the Department’s order did not infringe on the Tribe’s sovereignty and powers of self-governance, and moreover, the Tribe voluntarily agreed to federal oversight when it accepted the stimulus funds. Third, the panel held that the Tribe did not have a due process right to a hearing with cross-examination before the Department reached its conclusion where the Tribe consented to the procedures outlined in the Act, which do not include a hearing. The panel noted that the Department did commit a procedural CHIPPEWA CREE TRIBE V. USDOI 3 error where the Tribe did not have access to the Inspector General’s report until the Department issued its preliminary decision, but this was harmless error. Finally, the panel held that the Department did not err in finding that the removal of St. Marks was retaliatory. The panel held that the Tribe could not raise for the first time on appeal its argument that the Department incorrectly calculated St. Marks’s monetary award. The panel addressed St. Marks’s petition for review in a concurrently filed memorandum disposition.
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