IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 175-73

The Minnesota Chippewa Tribe, P.O. Box 588, Federal Building, Room 420, Bemidji, Minn. 56601, Telephone: (218) 751-2985;

· Coalition of Eastern Native Americans, 927 15th Street, N.W., Suite 612, Washington, D.C. 20005, Telephone: (202) 638-2287;

Seneca Nation of Indians, P.O. Box 268-A, Irving, N.Y. 14081, Telephone: (716) 945-1790;

California Indian Education Association, Inc., P.O. Box 4095, Modesto, Calif. 95352, Telephone: (209) 523–9257;

National Indian Training and Research Center, 2121 South Mill Avenue, Suite 107, Tempe, Ariz. 85252, Telephone: (602) 967-9484;

Nez Perce Tribe of Idaho, P.O. Box 205, Lapwai, Idaho 83540, Telephone: (208) 843-2362;

North Slope Borough School District, P.O. Box 307, Barrow, Alaska 99723 Telephone: (907) 852-6930;

Reservation School District of the Kashia Band of Pomo Indians of the Stewarts Point Rancheria, c/o Sidney Parrish, President, Stewarts Point, Calif. 95480, Telephone: (707) 785–2801; Plaintiffs,

v.

Frank C. Carlucci, Individually and as Acting Secretary of the Department of Health, Education and Welfare;

Sidney P. Marland, Individually and as Assistant Secretary of the Department of Health, Education and Welfare;

John R. Ottina, Individually and as Acting United States Commissioner of Education;

Caspar W. Weinberger, individually and as Director of the Office of Management and Budget;

Richard M. Nixon, Individually and as President of the United States;

COMPLAINT FOR A DECLARATORY JUDGMENT AND MANDATORY INJUNCTION

Plaintiffs allege:

1. This is an action for a declaratory judgment and mandatory injunction to compel the defendants to comply with the terms and provisions of the Indian Education Act, Title IV of P.L. 92-318, 86 Stat. 334 (hereinafter the "Act"). Plaintiffs, in their First Claim, seek an order compelling the defendant Nixon, to appoint the members of the National Advisory Council on Indian Education, established by the Act. Plaintiffs, in their Second Claim, seek an order compelling the remaining defendants to constitute the Office of Indian Education, established by the Act as a Bureau of the Office of Education, and to set up the other administrative machinery, mandated by the Act, for the implementation of the Act, including the promulgation of regulations under the Act. By their Third Claim, plaintiffs seek an order compelling the defendants to release and expend the funds appropriated by Congress for expenditure in fiscal year 1973 pursuant to the provisions of the Act.

2. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1337, 1361, 1362, and 5 U.S.C. §§ 701-706. The amount in controversy exceeds $10,000 exclusive of interest and costs.

3. Plaintiff, THE MINNESOTA CHIPPEWA TRIBE, is a duly recognized Indian tribe consisting of the Chippewa Indians of the White Earth. Leech Lake, Fond du Lac, Nett Lake, Grand Portage and Mille Lac Reservations and organized under the Indian Reorganization Act, 25 U.S.C. $ 476. THE MINNESOTA CHIPPEWA TRIBE through its Education Committee is actively involved with education programs affecting tribal members throughout the State of Minnesota: the Tribe itself administers a college scholarship program and intends to assume, in 1973, the administration of two more educational programs, the first to provide for the special educational needs of tribal members in elementary and secondary schools, and the second to provide for adult vocational education. Tribal members are beneficiaries of programs to be funded under Parts A, B, and C of the Act, and the Tribe is a potential grantee entitled of preferential consideration in programs funded under Parts B and C.

4. Plaintiff, COALITION OF EASTERN NATIVE AMERICANS, is an unincorporated association, representing approximately 60 Indian tribes, communities

or groups, in the Eastern part of the United States. The COALITION was formed on December 9, 1972 at the conclusion of a conference of Eastern Indians. At that time, the COALITION elected an 11 person steering committee. The tribes and groups represented by the COALITION have members who are beneficiaries of programs to be funded under Parts A, B, and C of the Act.

5. Plaintiff, the SENECA NATION OF INDIANS, is an American Indian tribe recognized by the Secretary of Interior. Tribal members are beneficiaries of programs funded under Parts A, B, and C of the Act, and the Tribe is a potential grantee entitled to preferential consideration in programs funded under Parts B and C.

6. Plaintiff, CALIFORNIA INDIAN EDUCATION ASSOCIATION, INC., is a non-profit Indian organization organized pursuant to the laws of the State of California. CALIFORNIA INDIAN EDUCATION ASSOCIATION is organized to improve the educational opportunities of the Indian children in the State of California. Members of this organization have children who are beneficiaries of programs to be funded under Parts A, B, and C of the Act. The CALIFORNIA INDIAN EDUCATION ASSOCIATION is eligible to be a grantee and is entitled to preferential consideration under Parts B and C of the Act.

7. Plaintiff, NATIONAL INDIAN TRAINING AND RESEARCH CENTER, is a non-profit corporation organized pursuant to the District of Columbia Non-Profit Corporation Act. NATIONAL INDIAN TRAINING AND RESEARCH CENTER has been active in the development of training programs for education personnel in the Bureau of Indian Affairs Education Division and has trained personnel located on a number of reservations throughout the United States. NATIONAL INDIAN TRAINING AND RESEARCH CENTER is a potential grantee under Parts B and C of the Act.

8. Plaintiff, the NEZ PERCE TRIBE OF IDAHO, is a duly recognized Indian tribe with a constitution and by-laws approved by the Secretary of the Interior. The NEZ PERCE Tribe, through its tribal executive committee, is actively involved with educational programs including a scholarship program, vocational assistance and educational components of the Tribe's community action program. Tribal members are beneficiaries of programs funded under Parts A, B, and C of the Act and the Tribe is a potential grantee entitled to preferential consideration in programs funded under Parts B and C. In particular, tribal members are enrolled in public schools operated by the State of Idaho which are entitled to a specific amount of grant funds provided in Part A.

9. Plaintiff, NORTH SLOPE BOROUGH SCHOOL DISTRICT, is a duly organized school district operated pursuant to the laws of the State of Alaska. NORTH SLOPE BOROUGH SCHOOL DISTRICT will eventually operate three schools which are presently operated by Bureau of Indian Affairs and two which are presently operated by the State of Alaska as public schools. The eventual takeover and operation of these schools by the school board will be in part dependent upon the amount of money the district can obtain from Part A of this Act. Residents of the school district are beneficiaries of programs to be funded under Parts A, B, and C of the Act, and the district is entitled to funds under Part A and is a potential grantee entitled to preferential consideration in programs funded under Parts B and C.

10. Plaintiff, RESERVATION SCHOOL DISTRICT OF THE KASHIA BAND OF POMO INDIANS, STEWARTS POINT RANCHERIA, is a duly organized public school district operated pursuant to the laws of the State of California. The RESERVATION SCHOOL DISTRICT presently operates an all-Indian public school in Sonoma County, California. Residents of the RESERVATION SCHOOL DISTRICT are beneficiaries of programs to be funded under Parts A. B, and C of the Act, and the district is entitled to funds under Part A and is a potential grantee entitled to preferential consideration in programs funded under Parts B and C.

11. Defendant, FRANK C. CARLUCCI, is the Acting Secretary of the Department of Health. Education and Welfare, and, as such, is the principal officer of the United States Government charged with the administration and budget of the education programs of the Department of Health, Education and Welfare. 12. Defendant SIDNEY P. MARLAND, is an Assistant Secretary of the Department of Health, Education and Welfare, responsible for the overall supervision of the Office of Education.

13. Defendant, JOHN R. OTTINA, is the Acting United States Commissioner of Education and, as such, is charged by the Act with specific responsibility for its execution and implementation.

14. Defendant, CASPER W. WEINBERGER, is the Director of the Office of Management and Budget and, as such, has authority for the release and expenditure of the funds, appropriated by Congress, for expenditure in fiscal year 1973 pursuant to the terms of the Act.

15. Defendant, RICHARD M. NIXON, is President of the United States and is charged by the Constitution with the ultimate responsibility for the faithful execution of the laws of the United States. By § 442 (a) of the Act, the President must appoint the members of the National Advisory Council on Indian Education. On information and belief, defendant NIXON has not officially delegated this responsibility to an official in his administration.

STATUTORY PROVISIONS

16. In recognition of the federal obligation to provide for the educational needs of American Indians, to counteract the adverse effects of past federal Indian education policies termed by the special Subcommittee on Indian Education of the Senate Committee on Labor and Public Welfare “a national tragedy" and to assure the future welfare and survival of the Indian communities, the Congress of the United States passed the Indian Education Act, P.L. 92–318, 86 Stat. 334 and it was approved by the President on June 23, 1972.

17. The Act consists of four major parts. Part A, § 411(a), contains a Declaration of Policy "to provide financial assistance to local educational agencies to develop and carry out elementary and secondary school programs specially designed to meet "the special educational needs of Indian students and directs the Commissioner of Education (hereinafter Commissioner) to effectuate the policy by carrying out a program of making grants to local education agencies “which are entitled to payments" in accord with a non-discretionary formula based on average per pupil expenditures and numbers of Indian students. Part A also amends Title I of the Federal Impact Aid Law, P.L. 81-874, 20 U.S.C. § 240 by providing that applications on the basis of children who reside on Indian lands "shall set forth adequate assurance that Indian children will participate on an equitable basis in the school program of the local education agency" (§ 411 (c) (1)).

18. Part B of the Act directs the Commissioner of Education to "carry out a program of making grants for the improvement of educational opportunities for Indian children" (§ 421 (a)). State and local educational agencies, Indian tribes, and Indian organizations are eligible grantees under provisions of this Part. Indian educational agencies, organizations, and institutions are to be given preference as grantees.

19. Part C directs the Commissioner to "carry out a program of making grants" for adult education for Indians (§ 431), and requires the Commissioner to give priority to applications from Indian educational agencies, organizations, and institutions.

20. Part D establishes in the Office of Education a Bureau to be known as the Office of Indian Education, which, along with the Commissioner, shall have the responsibility for administering the Act (§ 441 (a)). The Act directs that the Office of Indian Education shall be headed by a Deputy Commissioner of Education from a list of nominees submitted to him by the National Advisory Council on Indian Education (§ 441 (a)). Part D also establishes the aforementioned National Advisory Council on Indian Education, consisting of fifteen members who are Indian and Alaska Natives appointed by the President of the United States (§ 442 (a)). In addition to submitting to the Commissioner a list of nominees for the position of Deputy Commissioner of Indian Education, the Council shall advise the Commissioner with respect to the administration of the Act; shall review applications for assistance under the Act; shall evaluate any programs within the Department of Health, Education and Welfare for Indians or from which they can benefit; shall assist the Commissioner in developing March 31 of each year a report on its activities and recommendations for the improvement of federal education programs designed for Indians.

21. Public Law 92-607, Chapter IV, passed into law on October 31, 1972 and approved by the President that day, appropriates a total of $18,000,000 for carrying out the Act in fiscal year 1973, specifically $11,500,000 for Part A. $5,000,000 for Part B, $500,000 for Part C, and $1,000,000 for the General Education Provision Act. Chapter XI of this Act provides that no part of any of these appropriated funds shall remain available beyond the end of fiscal year 1973, June 30. 1973. The United States budget for fiscal year 1974 indicates that the Administra

tion proposes to "rescind" this appropriation. No such legislation has been introduced in Congress.

22. 20 U.S.C. § 1226, 84 Stat. 166, as amended by P.L. 91-230 (1970), provides that funds appropriated in any fiscal year for any programs administered by the Commissioner of Education shall remain available for obligation and expenditure until the end of such fiscal year, notwithstanding any other provision of law, unless expressly in limitation of the general provisions concerning education (20 U.S.C. § 1221ff.)

FIRST CLAIM

23. Defendant Nixon has not appointed the members of the National Advisory Council on Indian Education, in violation of the trust obligation of the United States to the Indians, in violation of the will of Congress that he appoint such members, and in violation of his duty, mandated by the Constitution, to faithfully execute the laws enacted by Congress.

24. Because of defendant Nixon's illegal failure to appoint the members of the National Advisory Council on Indian Education, the plaintiff, and those they represent, are being illegally denied the benefits of the Indian Education Act. Continued failure and refusal by the defendant Nixon to appoint the members of the National Advisory Council on Indian Education will cause the plaintiffs irreparable injury, for which they have no adequate remedy at law.

SECOND CLAIM

25. The defendants Carlucci, Marland, and Ottina have legally failed to implement the terms and provisions of the Indian Education Act. Specifically: (a) These defendants have failed to promulgate regulations under the Act; (b) These defendants have frustrated the functions of the Office of Indian Education by failing to appoint a Deputy Commissioner of Indian Education; (c) These defendants have made no grant to any local educational agency entitled to payment under Part A of the Act;

(d) These defendants have failed to carry out a program of making grants for the improvement of educational opportunities for Indian children as required by Part B of the Act;

(e) These defendants have failed to carry out a program of making grants for adult education for Indians, as required by Part C of the Act;

(f) These defendants have failed to require assurances of equitable participation of Indian children in school programs of local educational agencies applying for funds under Title I of P.L. 81-874, as mandated by Part A of the Act; (g) These defendants have failed in all other respects to implement the terms and provisions of the Act.

26. By so failing to implement the Act, the defendants Carlucci, Marland, and Ottina are in violation of the trust obligation of the United States to the Indians, in violation of the intent and will of Congress as expressed in the Act, and in violations of their duty, mandated by the Constitution, to faithfully execute the laws enacted by Congress.

27. Because of the defendants Carlucci, Marland, and Ottina's general and specific failures to implement the terms of the Act, the plaintiffs, and those they represent, are being denied the benefits of the Indian Education Act. Continued failure and refusal by these defendants to implement the Act will cause plaintiffs irreparable injury, for which they have no adequate remedy at law.

THIRD CLAIM

28. The plaintiffs allege that defendants Weinberger, Carlucci, Marland, and Ottina have illegally failed to release the funds appropriated by Congress for the implementation of the Indian Education Act in fiscal year 1973, which expires on June 30, 1973. (See attached affidavit of Thomas W. Fredericks.)

29. This failure to release appropriated funds by defendants Weinberger, Carlucci, Marland, and Ottina violates the trust obligation of the United States to the Indians, violates the will of Congress that these funds be expended according to the terms and provisions of the Act in fiscal year 1973, violates their duty, mandated by the Constitution, to faithfully execute the laws enacted by Congress, and is in violation of 20 U.S.C. § 1226.

30. Because of the failure of the defendants Weinberger, Carlucci, Marland, and Ottina to release funds appropriated for expenditure in fiscal year 1973 under the terms and provisions of the Act, the plaintiffs, and those they rep

resent, are being illegally denied the benefits of the Indian Education Act and the money appropriated therefore for fiscal year 1973. Continued failure and refusal by these defendants to release and expend the appropriated funds will cause the plaintiffs irreparable injury for which they have no adequate remedy at law.

WHEREFORE, Plaintiffs pray for a judgment as follows:

1. As to the First Claim:

(a) A declaratory order that the defendant Nixon. by not appointing the members of the National Advisory Council on Indian Education is violating the trust responsibility of the United States to the Indians, is violating the Congressional mandate of the Act that he shall make such appointments, and is violating his constitutional responsibility to faithfully execute the laws of the United States, and

(b) A mandatory injunction ordering the defendant Nixon to appoint the members of the National Advisory Council on Indian Education in sufficient time to obligate the funds appropriated for expenditure pursuant to the term and provisions of the Act in fiscal year 1973.

2. As to the Second Claim:

(a) A declaratory order that the defendants Carlucci, Marland, and Ottina, by failing to implement the Indian Education Act, are violating the trust responsibility of the United States to the Indians, are violating the Congressional mandate that the Act will be implemented, and are violating their constitutional responsibility to faithfully execute the laws of the United States, and

(b) A mandatory injunction ordering defendants Carlucci, Marland, and Ottina to promulgate the regulations under the Act, to appoint a Deputy Commissioner of Indian Education, to grant the entitlements to local education agencies under Part A of the Act, to grant the funds to qualified applicants for the purpose of improving the educational opportunities for Indian children as required by Part B of the Act, to grant the funds for improving the educational levels of adult Indians as required by Part C of the Act, and to require assurances of equitable participation of Indian children in school programs of local education agencies applying for funds under Title I of P.L. 81-874, as mandated by Part A of the Act, and to take any other measures necessary for implementing the Act.

3. As to the Third Claim:

(a) A declaratory order that the impoundment by defendants Weinberger, Carlucci, Marland, and Ottina of the $18,000,000 appropriated by Congress for expenditure in fiscal year 1973 pursuant to the terms and provisions of the Indian Education Act violates the trust responsibility of the United States to the Indians, violates the Congressional mandate of the Act and the appropriations Act, violates the defendants' responsibility, mandated by the Constitution, to faithfully execute the laws of the United States, and violates 20 U.S.C. § 1226. (b) A mandatory injunction ordering the defendants Weinberger. Carlucci, Marland, and Ottina to release and expend by June 30, 1973 (according to the terms and conditions of the Indian Education Act) the $18,000,000 appropriated by Congress for such expenditure in fiscal year 1973. Respectfully submitted.