United Urban Indian Council, Inc. v. USDOL and Citizen Potawatomi Nation, 2000-WIA-4 (ALJ Dec. 12, 2000)

May 9, 2009

DOL Home > OALJ Home > WIA/JTPA/CETA Collection

USDOL/OALJ Reporter

United Urban Indian Council, Inc. v. USDOL and Citizen Potawatomi Nation, 2000-WIA-4 (ALJ Dec. 12, 2000)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Date Issued: 12/12/00
Case Number: 2000-WIA-4

In the Matter of

UNITED URBAN INDIAN COUNCIL, INC.,
Complainant,

U.S. DEPARTMENT OF LABOR,
Respondent,

and

CITIZEN POTAWATOMI NATION,
Party-in-Interest.

DECISION AND ORDER

This matter arises under Title I of the Workforce Investment Act (WIA), 29 U.S.C. § 2911, et seq., and the regulations thereunder at 20 C.F.R. §§ 626-668. Title I of the WIA governs the Indian and Native American (INA) Program which is designed to provide and coordinate employment and training services to eligible Native Americans residing in designated program areas.

Statement of the Case

On September 13, 1999, the Department of Labor (DOL) solicited applications for WIA-INA grants. The United Urban Indian Council d/b/a American Indian Education Training and Employment Center (UUIC), the incumbent grantee, submitted an application to serve Cleveland County and Oklahoma County, Oklahoma. The Citizen Potawatomi Nation (Potawatomi) also submitted an application to serve Cleveland County and that portion of Oklahoma County that is within the tribal jurisdiction statistical area (TJSA). By letter dated March 1, 2000, the Grant Officer informed UUIC that it was re-designated to serve as grantee of its current jurisdiction, with the exception of Cleveland County and the TJSA portion of Oklahoma County. The Grant Officer designated the Potawatomi as the recipient of the grant for Cleveland County after competition yielded a score of 65 points, out of a possible 100 points, for UUIC and 90 out of 100 points for the Potawatomi. The Potawatomi was awarded the grant for the TJSA of Oklahoma County on the grounds that the Potawatomi has highest priority as the only applicant with jurisdiction over the area.¹

[Page 2]

On March 27, 2000, UUIC requested a hearing before an administrative law judge, pursuant to 20 C.F.R. § 627.801. UUIC challenges the Grant Officer's award of the TJSA of Oklahoma County to the Potawatomi. The Potawatomi Nation requested and was granted the opportunity to participate as a party in interest. A telephonic conference was conducted on June 14, 2000, at which time the parties agreed to submit stipulations of fact and closing argument briefs in lieu of a formal hearing. Briefs were submitted by the Grant Officer, UUIC, and the Potawatomi on or about September 18, 2000. Reply briefs were submitted on or about October 18, 2000.

Stipulations

The parties have stipulated to the following:

1. The entire administrative file submitted by the Department of Labor (DOL) is hereby admitted and stipulated to the extent that it preserves the legal issues of fact and law that are the basis of this appeal.

2. The contested area consists of those designated Tribal Jurisdictional Statistical Areas (TJSAs) as having "on or near reservation" status for the Citizen Nation Potowatomi Tribe of Oklahoma, the Iowa Tribe of Oklahoma, the Kickapoo Tribe of Oklahoma, and the Sac and Fox Tribe of Oklahoma, all east of Post Oak Road in Oklahoma County to the Oklahoma County border.

3. The western boundary of the Iowa Tribe of Oklahoma and the Kickapoo Tribe of Oklahoma is the Indian Meridian.

4. The western boundary of the Citizen Potawatomi Nation is approximately half a mile west of the Indian Meridian.

5. Indian Meridian Road is synonymous with the Indian Meridian.

6. The parties submitted a map delineating the boundaries of the contested area.

Standard of Review

The standard of review in INA non-selection cases is "whether there is a basis in the record to support the Department's decision." 20 C.F.R. § 667.825(a). Review is not de novo but is limited to determining "whether relevant factors were considered by the Grant Officer in making his decision and whether the ultimate decision reflects reasoned decision-making in accordance with the governing statutes, rules and regulations." County of Los Angeles Community and Senior Citizen Services v. DOL, 87-JTP-17 at 4, Dep't Labor, June 29, 1988); see also Nato Indian Nation v. U.S. Dept. of Labor, 1997-JTP-13 (ALJ, Oct. 7, 1998) (the ALJ held that the JTPA and its regulations curtailed his review power such that he must "review the evidence available to the grant officer at the time he made he made his decision, and determine whether the decision was not 'arbitrary and capricious, an abuse of discretion, or not in accordance with the law'"). The Grant Officer has the burden of production, whereas Complainant has the "burden of persuasion." 20 CFR § 667.810(e).

[Page 3]

Discussion

The Grant Officer states in her Declaration dated October 5, 2000, attached to her reply brief, that the decision to award the TJSA portion of Oklahoma County to the Potawatomi was based upon the determination that the Potawatomi is entitled to highest priority pursuant to § 668.210. Section 668.210 provides that the highest priority designation shall be given to Indian tribes, Alaska Native entities, or consotia that include a tribe or entity, for those geographic areas over which they have legal jurisdiction.

The purpose behind the highest priority requirement of § 668.210 is spelled out in § 166(a)(2) of the WIA which provides that "All programs assisted under this section [Native American Programs] shall be administered in a manner consistent with the principles of the Indian Self-Determination and Education Assistance Act (25 USC §450 et seq.) And the government-to-government relationship between the Federal Government and Indian tribal governments." Section 450(a) of the Indian Self-Determination and Education Assistance Act states:

The Congress, after careful review of the Federal government's historical and special legal relationship with, and resulting responsibilities to, American Indian peoples, finds that (1) the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities; and (2) the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons.

The Grant Officer explains that she was advised of the Potawatomi's highest priority status by a technical representative of the Employment and Training Administration's (ETA) Division of Indian and Native American Programs (DINAP). Relying upon data published by the Census Bureau ² , DINAP determined that the contested area is a TJSA over which the Potawatomi has jurisdiction, and consequently the Potawatomi is entitled to receive highest priority in the area.

[Page 4]

In opposition to the Grant Officer's determination, UUIC argues that (1) the Grant Officer's designation of the area as a TJSA is unsupported by law and (2) The Potawatomi does not have legal jurisdiction over the area because the area extends beyond the Potawatomi's exterior boundaries. In the alternative, UUIC argues that the Grant Officer should have granted UUIC priority based on its status as the incumbent grantee.

Party-in-Interest, the Potawatomi, supports the Grant Officer's decision, maintaining that "[t]he portion of Oklahoma County to be served by the Potawatomi under the grant is within the TJSA, the reservation boundaries as extended by a near reservation designation, of the consortium tribes represented by the Potawatomi, i.e., an area over which the Potawatomi have 'legal jurisdiction'."

As it is uncontested that the Potawatomi has the capability to administer the program and meets all eligibility and regulatory requirements, the only issue to be determined is whether the Potawatomi has legal jurisdiction over the disputed area, and is thus entitled to highest priority.

The parties have stipulated that the contested area is a TJSA for the Potawatomi and other named tribes. The U.S. Census Bureau defines "tribal jurisdiction statistical areas (TJSAs)" as "areas, delineated by Federally-recognized tribes in Oklahoma without a reservation, for which the Census Bureau tabulates data," and further states "TJSAs represent areas generally containing the American Indian population over which one or more tribal governments have jurisdiction." Appendix A, "General Population Characteristics Oklahoma," 1990 Census of Population, U.S. Department of Commerce, Bureau of the Census ³ ; see also 20 C.F.R. § 646.510.⁴ Thus, the designation of the area as the TJSA of the Potawatomi, by definition, signifies that the Potawatomi has jurisdiction over the area and is therefore entitled to highest priority pursuant to section 668.210.

Moreover, UUIC's argument that it should be designated the grantee for the TJSA of Oklahoma County because of its incumbency must fail in light of section 668.210. The designation of highest priority status to the Potawatomi pursuant to section 668.210 supercedes any claim to priority based on incumbency. Thus, the Grant Officer's decision to award the grant to the Potawatomi Nation is supported by the record and is in accordance with the law.

[Page 5]

ORDER

Accordingly, it is hereby ORDERED that the Grant Officer's designation of the Potawatomi Nation as the Workforce Investment Act section 166 grantee for program years 2000 and 2001 for the Tribal Jurisdictional Statistical Area of Oklahoma County, Oklahoma is hereby

AFFIRMED.

IT IS SO ORDERED.

Thomas M. Burke
Associate Chief Judge

Washington, DC

TMB/msm

NOTICE OF APPEAL RIGHTS. Any party dissatisfied with this Order of Dismissal may appeal it to the Administrative Review Board within 20 days after receipt of the Order, by filing exceptions specifically identifying the procedure, fact, law, or policy to which exception is taken. Thereafter the decision of the administrative law judge shall become the final decision of the Secretary unless the Secretary, within 30 days of such filing, has notified the parties that the case has been accepted for review. The petition for review may be filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington, D.C. 20210. A copy of any such petition must also be provided to the Chief Administrative Law Judge, Office of Administrative Law Judges, 800 K Street, N.W., Washington, D.C., 20001-8002.

[ENDNOTES]

¹Although several other tribes share jurisdiction over the area with the Potowatomi, namely the Iowa Tribe of Oklahoma, the Kickapoo Tribe of Oklahoma, and the Sac and Fox Tribe of Oklahoma, the other tribes did not apply for the grant. Furthermore, the Chairman and Secretary of the Iowa tribe signed a resolution authorizing the Potawatomi to provide employment services and a job training program in their TJSA.

²The Grant Officer's reliance upon data from the Census Bureau is supported by the WIA. See § 182(a), 29 U.S.C. § 2932 (1998) ("All data relating to disadvantaged adults and disadvantaged youth shall be based on the most satisfactory data from the Bureau of the Census"); see also 20 CFR §§ 646.510 and 668.296(b)(3).

³Judicial notice is hereby taken of the census data relied upon by the Grant Officer to determine that the area in question qualifies as a TJSA over which the Potawatomi has jurisdiction. See, e.g., United States v. Esquivel, 88 F.3d 722 (9th Cir. 1996) (taking judicial notice of census data submitted by the government).

⁴It is noteworthy that at 20 CFR § 646.510 the DOL regulations administering the INA - Welfare to Work Program specifically provide that "in Oklahoma, service areas will be determined by reference to the 'tribal jurisdiction statistical areas' (TJSAs)." Although the WIA regulations do not contain a similar provision, it may be argued that the Department should determine service areas in Oklahoma under both statutes in a uniform manner, thereby providing further support for the Grant Officer's decision.