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NORTHERN CALIFORNIA RECORD

Friday, March 29, 2024

9th Circuit denies Native American tribe's petition for review of whistleblower case

Lawsuits
Whistleblower

SAN FRANCISCO – A Montana Native American tribe has an appeal of a U.S. Department of Interior decision denied in court.

U.S. Circuit Judge Michelle Friedland, on the bench of the U.S. Court of Appeals for the 9th Circuit, issued a 21-page ruling on Aug. 21 denying a petition for review of a department decision against the Chippewa Cree Tribe of the Rocky Boy's Reservation, Montana involving a former member of a governing board.

The department ordered the tribe to provide relief to Ken St. Marks, a member who became a whistleblower, and was removed from the tribe's governing body in retaliation, the ruling states.

St. Marks, as stated in the ruling, "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," which contains "robust whistleblower protections."

According to the ruling, in 2009 and 2010, the tribe "received over $27 million in stimulus funds to complete construction of a water pipeline on its reservation," via the American Recovery and Reinvestment Act (ARRA). Funding agreements were signed with the Department of Interior to administer the funds, nevertheless, "as a condition of receiving the water pipeline funding, the tribe executed two modifications to those pre-existing agreements," the ruling states

These modifications, per the ruling, "required the tribe to comply with the Act’s whistleblower protections, and specifically provided that those protections would be 'enforceable pursuant to processes set up by ARRA.'"

St. Marks was the owner of a construction company involved in building the pipeline. He is a member of the tribe.

In August 2012, "St. Marks reported to the department that he believed members of the tribe, including individuals on the tribe’s governing committee, were misusing ARRA funds," the ruling states.

He was elected to serve as chairman of the tribe committee in November of that year.

The ruling pointed that St. Marks claimed "he informed members of the tribe of the alleged fraud in an open letter on March 5, 2013, but the committee disputes that the letter was ever sent," which led him to file "a whistleblower complaint with the department, alleging that he had 'been threatened and retaliated against,' and that there was a petition circulating to remove him as chairman."

He was removed of the chairman position on March 25, 2013, on grounds of neglect of duty, the ruling states.

The department's investigator general started an investigation right after St. Marks' removal to find out more about his claims. A year later, the report was released, and "offered no conclusion as to whether St. Marks was the victim of a prohibited reprisal," the ruling states.

Later, a preliminary order was issued, stating that "the tribe had engaged in a prohibited reprisal when the committee removed St. Marks from office," the ruling states.

After reviewing evidence submitted by the tribe, the department confirmed the decision and awarded St. Marks with $650,000 to cover back pay, front pay, travel costs, and legal fees, as well as it ordered the tribe “'to stop any and all reprisals against St. Marks arising out of' his whistleblower activities."

In regards to the reprisal challenge, Friedland's ruling stated that the tribe "not only lacked clear and convincing evidence, but in fact lacked any 'contemporaneous evidence documenting discovery of the alleged unauthorized behavior' or any 'timely, formal . . . process and procedure to investigate and adjudicate any of the allegations'” and that the same tribe "has not presented a compelling argument that the department’s decision was arbitrary or capricious."

U.S. Court of Appeals for the 9nth Circuit case number 15-71772

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