United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-3998

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Johnson Bear Robe, *

*

Plaintiff/Appellant, *

*

v. *

*

Larry Parker, in his official capacity as * Appeal from the United States

Bureau of Indian Affairs administrator * District Court for the

for Loneman School Corporation, * District of South Dakota.

*

Defendant/Appellee, *

*

Loneman School Corporation, a *

corporation chartered under the *

Oglala Sioux Tribe, *

*

Defendant. *

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Submitted: October 15, 2001

Filed: November 9, 2001

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Before WOLLMAN, Chief Judge, LAY, and RILEY, Circuit Judges.

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1

The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota.

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WOLLMAN, Chief Judge.

Johnson Bear Robe sued the Loneman School Corporation and Larry Parker,

in his official capacity as Bureau of Indian Affairs administrator for Loneman School

Corporation, alleging wrongful termination. The district court1

 granted summary

judgment to both defendants. Bear Robe appeals only the grant of summary judgment

to the United States on behalf of Larry Parker. We affirm.

I.

Bear Robe was convicted in federal court of voluntary manslaughter in 1975.

Because Bear Robe was 20 years old at the time, the conviction was later set aside

under the Federal Youth Corrections Act (FYCA), 18 U.S.C. § 5005-5026 (1982)

(repealed 1984). 

In 1991, Bear Robe began working for Loneman School Corporation as a bus

driver, mechanic and transportation supervisor. Loneman School is a nonprofit

corporation chartered by the Oglala Sioux Tribal Council and administered by the

Loneman School Board. Because of various deficiencies, unrelated to this case, in

the school board’s operation of Loneman School, the Bureau of Indian Affairs (BIA)

and the school board entered into a settlement agreement under which a BIA

oversight administrator would supervise the school board’s activities.

To address the problem of child abuse on Indian reservations, Congress in 1990

enacted the Indian Child Protection and Family Violence Prevention Act, 25 U.S.C.

§§ 3201-10 (2001) (the Act). The Act requires each Indian tribal organization that

receives funding under the Tribally Controlled Schools Act of 1988 to conduct

investigations of each individual who is employed in a position that involves regular
2

As amended on December 27, 2000, by the Omnibus Indian Advancement Act

of 2000, Pub.L. 106-568, sec. 814, 114 Stat. 2868, 2918. The amendment added the

distinction between felony and misdemeanor convictions, and the phrase “or offenses

committed against children.”

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contact with, or control over, Indian children. 25 U.S.C. § 3207(c)(1). Persons

employed in such positions must meet the standards of character established by the

tribal organization. 25 U.S.C. § 3207(c)(2). Those standards must include a

provision prohibiting the employment of the following described persons: 

The minimum standards of character that are to be prescribed

under this section shall ensure that none of the individuals appointed to

positions [that involve regular contact with or control over Indian

children] have been found guilty of, or entered a plea of nolo contendere

or guilty to, any felonious offense, or any of two or more misdemeanor

offenses, under Federal, State, or tribal law involving crimes of

violence; sexual assault, molestation, exploitation, contact or

prostitution; crimes against persons; or offenses committed against

children. 25 U.S.C. § 3207(b).2

Because it receives federal funding under the Tribally Controlled Schools Act

of 1988, Loneman School asked the BIA to conduct a background investigation on

Bear Robe. The investigation uncovered Bear Robe’s manslaughter conviction. Bear

Robe was suspended and given a hearing before the school board. Although the

school board desired to continue Bear Robe’s employment in light of his long,

successful employment at the school, the BIA oversight administrator required that

Bear Robe be terminated. Accordingly, Bear Robe was terminated in April 1999.

Bear Robe filed this suit in June 1999, seeking declaratory and injunctive relief

from his suspension and termination. The district court granted summary judgment

to Loneman School on the basis of the Oglala Sioux Tribe’s sovereign immunity, and
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to Parker on the basis of the provisions of the Act. Bear Robe appeals from only the

latter ruling.

II.

We review the district court's grant of summary judgment de novo. Henerey

v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is

proper if the evidence, viewed in the light most favorable to the nonmoving party,

demonstrates that no genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).

Bear Robe argues that the BIA improperly ignored the regulations adopted

pursuant to the Act, 25 C.F.R. §§ 63.1-63.9. He contends that 25 C.F.R. §§ 63.16(b)

and 63.17(f) require, or at least allow, the school board to consider factors other than

the mere fact of his conviction when deciding whether to retain him. Those sections

provide that tribal organizations may conduct their own background checks covering

the past five years, and they list various factors that are to be considered in evaluating

past conduct. This argument is unavailing; however, in light of the plain language

of 25 U.S.C. §§ 3207(b) and (c)(2) and 25 C.F.R. §§ 63.10(b), 63.12, and 63.19(a).

The school board and the BIA may possess discretion in cases in which a background

investigation reveals evidence of other bad character, such as a bad credit report or

an arrest without conviction, but they have no discretion in the case of an employee

who has been convicted of a crime of violence. Under the plain meaning of the Act

and its implementing regulations, then, Bear Robe’s conviction is an absolute bar to

employment in a position that involves regular contact with Indian children, unless

the fact that it was set aside under the FYCA removes it from the proscription

contained within the Act. 
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We have held that the set aside provision of the FYCA is not equivalent to

expungement of the record. United States v. McMains, 540 F.2d 387, 389 (8th Cir.

1976). Thus, the record of conviction is available and may be used in calculating a

defendant’s criminal history for sentencing. United States v. Nicolace, 90 F.3d 255,

258 (8th Cir. 1996). Although we recognize that the set aside provision of the FYCA

was enacted to give youthful offenders a fresh start, see id. at 258, our precedents

make clear that a set aside under the FYCA does not wipe the slate clean. See, e.g.,

id.; McMains, 540 F.2d at 389. Even those circuits that have held that the set aside

provision provides a remedy akin to expungement hold that the conviction remains

available to law enforcement. See, e.g., Doe v. Webster, 606 F.2d 1226, 1244 (D.C.

Cir. 1979) (set aside conviction may only be accessed by law enforcement during a

criminal investigation). Accordingly, we conclude that Bear Robe’s conviction for

voluntary manslaughter constitutes a bar to his continued employment in the position

he held.

Although this result may seem harsh in light of Bear Robe’s satisfactory

conduct following the set aside of his conviction, Congress has adopted a bright line

rule that persons who fall within the Act’s proscriptions are not to be employed in

positions that involve regular contact with children in federally funded Indian

schools. See Delong v. Dept. of Health and Human Services, 264 F.3d 1334, 1342

(Fed. Cir. 2001). There is no exception in the statute for set-aside convictions. 

Bear Robe argues that his termination is inappropriate because his probation

officer told him that he need not inform potential employers about his set-aside

conviction. Whether the probation officer’s advice was legally correct is irrelevant,

for the question before us is whether the school could continue to employ Bear Robe

in a position that involves regular contact with Indian children once it became aware

of his conviction.
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The additional arguments Bear Robe raised at oral argument have no bearing

on the question on which the district court granted summary judgment, and thus we

need not address them.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.