1. Presenting your case Avoid exceeding 30 words on a slide Can you stretch the rule when quoting documents?

2. Handout distributed in advance GasPlus, LLC v. Dep’t of Interior, 510 F. Supp. 2d 18 (D.C. D.C. 2007) GasPlus, a gasoline distributor, entered into a Management Agreement with Nambe Pueblo under which GasPlus would supervise the business, select personnel, negotiate prices, coordinate deliveries, prepare budgets, use Pueblo funds to build or expand the business, and consult with the Pueblo. A few months thereafter, the newly elected Governor of the Pueblo asked BIA to review the Management Agreement under 25 U.S.C. § 81. [etc.]

6. GasPlus, LLC v. Dep't of Interior (D.C.D.C.) GasPlus management agreement with Nambe Pueblo Avoid N.M. excise tax using Registered Indian Tribal Distributor 25 U.S.C. § 81 (2000)(“No agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless.”) Test: legal interest in property; no longer “relative to their lands” Operation of facility is not enough

7. R. S. 2103 (1871) "No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other person in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other monies, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows:* * * "(2) It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it.* * * "All contracts or agreements made in violation of this section shall be null and void.“

8. §81. Contracts with tribes (2000) (a) Definitions (b) Approval: No agreement with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary. (c) Exception: Subsection (b) of this section shall not apply to any agreement or contract that the Secretary determines is not covered under that subsection. (d) Unapproved agreements: The Secretary shall refuse to approve an agreement if the contract— (1) violates Federal law; or (2) does not include a provision that— (A) provides for remedies in the case of a breach (B) references the right of the Indian tribe to assert sovereign immunity; or (C) includes an express waiver of the right of the Indian tribe to assert sovereign immunity (e) Regulations. (f) Construction Nothing in this section shall be construed to— (1) require the Secretary to approve a contract for legal services by an attorney; (2) amend or repeal the authority of the National Indian Gaming Commission under the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.); or (3) alter any ordinance of an Indian tribe that requires approval by the Secretary of any action

9. 25 CFR 84.002 Encumber means to attach a claim, lien, charge, right of entry or liability to real property (referred to generally as encumbrances). Encumbrances covered by this part may include leasehold mortgages, easements, and other contracts or agreements that by their terms could give to a third party exclusive or nearly exclusive proprietary control over tribal land.

10. Management Agreement Jan. 2001 "Supervise and direct the general operations of' the gasoline distribution business "Select and train personnel to run the daily operations" "Negotiate prices and coordinate deliveries of [g]asoline" "Develop policies for the purpose of maximizing net income" "Maintain proper and suitable records and books of account" "Bill and collect revenues and fees from sales of …[g]asoline" "Pay or cause to be paid out of [Nambe Pueblo's] funds operating expenses" "Market, promote, and advertise" the distribution business "Supervise and pay, out of [Nambe Pueblo's] funds, construction... to build or expand the" business "Maintain books and records for the" business "[P]repare and file with the appropriate authorities on behalf of [Nambe Pueblo] monthly reports" "Prepare annual operating and capital expenditure budgets“

11. BIA & court proceedings Feb. 2002 Regional Director found invalid GasPlus appealed to IBIA Ass’t Sec’y took jurisdiction-- 25 CFR 2.20 June 2003 ASIA affirmed Sept. 2003 APA action filed in U.S.D.C.D.C. Nov. 2004 remanded to BIA re remedies Nov. 2005 Assoc. Dep. Sec’y affirmed Jan. 2006 2 nd amended complaint Apr. 2006 3d amended complaint

12. Docket entries—initial defense 02/13/2004-7-ANSWER to Complaint (Amended Complaint) by UNITED STATES DEPARTMENT OF THE INTERIOR.(Lehman, Devon) (Entered: 02/13/2004) 04/12/2004-8-ADMINISTRATIVE RECORD by UNITED STATES DEPARTMENT OF THE INTERIOR. 06/11/2004-9-MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order # 2 Statement of Undisputed Material Facts)(Lehman, Devon) (Entered: 06/11/2004)

13. Docket entries—remand to agency 08/03/2004-13-MOTION to Remand by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order)(Lehman, Devon) 08/03/2004-14-MOTION to Stay Filing of Defendant's Response to Plaintiff's Motion for Summary Judgment Pending Court's Resolution of Defendant's Motion to Remand by UNITED STATES DEPARTMENT OF THE INTERIOR. (Attachments: # 1 Text of Proposed Order)(Lehman, Devon)

14. Decision on cross motions Sept. 2007 Sec. 81 doesn’t preclude GasPlus standing Arbitrary, capricious, not in accord with law? Sec. 81 elements: tribe; encumbers; 7+ years “encumbers” means legal interest in land Proprietary control is not enough Senate report example is unclear but Wis. v. Koberstein was disapproved Focus on legal interest in land, not ability to control land as proprietor

15. Post decision proceedings Motion to publish opinion Notice of appeal (dismissed 4 months later) Motion for attorney fees per 28 U.S.C. 2412 Jan. 2009 Opinion awarding $177,000

16. 28 U.S.C. 2412 (EAJA) (a)(1) a judgment for costs, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States …. (d)(1)(A) a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action

17. Memo Opinion re EAJA Jan. 2009 Awards fees re claims v. USA not Bivens claims v. individuals $150 filing fee recoverable under 2412(a) Award under 2412(b) requires showing bad faith by USA—not here 2412(d) award (capped at $125/hr): statute “could not be more clear” “no support in text” Award includes IBIA/Ass’t Sec’y proceedings