United States Court of Appeals for the Federal Circuit 

04-1029 

KAW NATION, 

Appellant, 

v. 

Gale A. Norton, SECRETARY OF THE INTERIOR, 

Appellee, 

and 

KAW NATION OF OKLAHOMA, ex rel. GUY MUNROE, 

WANDA STONE, GUYETTA MONROE-MARTIN, 

and THE KAW NATION GENERAL COUNCIL, 

 Intervenors. 

Michael Minnis, Doerner, Saunders, Daniel & Anderson, L.L.P., of Oklahoma 

City, Oklahoma, argued for appellant. 

Kyle E. Chadwick, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for appellee. With him 

on the brief were Peter D. Keisler, Assistant Attorney General, and David M. Cohen, 

Director. 

Lindsay R. Naas, of Chandler, Arizona, argued for intervenors. Of counsel on 

the brief were Charles A. Hobbs, Jerry C. Straus, and Eric D. Lemont, Hobbs, Straus, 

Dean & Walker, LLP, of Washington, DC. 

Appealed from: United States Department of Interior Board of Contract Appeals 
 

United States Court of Appeals for the Federal Circuit 

04-1029 

KAW NATION, 

 Appellant, 

v. 

Gale A. Norton, SECRETARY OF THE INTERIOR, 

 Appellee, 

and 

KAW NATION OF OKLAHOMA, ex rel. GUY MUNROE, 

WANDA STONE, GUYETTA MONROE-MARTIN, 

and THE KAW NATION GENERAL COUNCIL, 

 Intervenors. 

 ___________________________ 

 DECIDED: May 2, 2005 

 ___________________________ 

Before MICHEL, Chief Judge, SCHALL and DYK, Circuit Judges. 

DYK, Circuit Judge. 

 Appellant, styled Kaw Nation (“the EC4 Group”), claims to represent the 

federally-recognized Kaw Nation Indian tribe. The EC4 Group appeals from a decision 

by the Department of the Interior Board of Contract Appeals (“IBCA” or “Board”). The 

Board held that the Department of Interior (“Interior”) was not authorized to accept the 

retrocession of the tribal court program and required that the agency release withheld 

program funds to the tribe pursuant to the 2003 Annual Funding Agreement of the 
Nation’s self-governance compact. Kaw Nation ex rel. Guy Munroe, Executive Council 

Chairman; Wanda Stone and Guyetta Monroe-Martin, Executive Council Members; and 

the Kaw Nation Gen. Council, No. IBCA 4455A (July 31, 2003) (“IBCA Decision”). 

Appellee, Gale A. Norton, Secretary of Interior (“Interior”) urges that the appeal should 

be dismissed as moot, in light of the fact that the government has now paid the disputed 

amounts and will not seek to recover them, and also urges us to vacate the Board’s 

decision. Intervenors, styled Kaw Nation of Oklahoma, ex rel. Guy Munroe, Wanda 

Stone, Guyetta Monroe-Martin, and the Kaw Nation General Council (“the Munroe 

Group”) were the prevailing parties before the IBCA, and also claim to represent the 

Kaw Nation. The Munroe Group agrees that the appeal should be dismissed as moot, 

but urges that we not vacate the judgment. We agree that the case is moot, but hold 

that exceptional circumstances warrant vacatur of the judgment. 

BACKGROUND 

The Kaw Nation is a federally-recognized Indian tribe, organized pursuant to the 

Oklahoma Indian Welfare Act of 1936, ch. 831, 49 Stat. 1967, codified in 25 U.S.C. 

§ 501 et seq., and operating under a constitution adopted by the Nation and approved 

by Interior on August 4, 1990. The present controversy is basically an intratribal dispute 

between two factions of the Kaw Nation—the EC4 Group, and the opposing faction, the 

Munroe Group. The controversy has resulted in litigation before the Board (which is the 

subject of the present appeal); in the Kaw Nation tribal courts; the Oklahoma state 

04-1029 2 
courts; the United States District Court for the Western District of Oklahoma; the Tenth 

Circuit; and before the Interior Board of Indian Appeals (“IBIA”).1

 

Under its constitution, the Tribe has two legislative bodies: a seven-member 

Executive Council and a General Council composed of all adult tribal members. The 

Executive Council is empowered to act by majority vote. The constitution also provides 

for a judicial branch, composed of a Supreme Court consisting of three judges and such 

inferior courts as may be established by tribal law. The constitution provides that judges 

of the Kaw Supreme Court and judges of the inferior courts are selected by the 

Executive Council and confirmed by the General Council. 

At the time the Tribe’s constitution was approved, the Kaw Nation did not have 

an operating court system, and judicial power was then vested in the Interior 

Department, Bureau of Indian Affairs (“BIA”) Court of Indian Offenses. The Kaw 

Nation’s court system was established in 1991. Funding for the tribal courts has been 

provided by the Federal Government by agreement with the Tribe pursuant to the Indian 

Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (“ISDA”). 

This agreement is enforceable against the government if the required payments are not 

made. See generally Cherokee Nation of Okla. v. Leavitt, 125 S. Ct. 1172 (2005). 

Among the monies to be paid to the tribe in 2003 under the agreement were funds in 

 1

 See, e.g., In re Removal of Clyde F. McCauley, No. CIV-02-12, (Kaw 

Tribal District Court, March 12, 2003); In re Removal of Clark Pepper, No. CIV-02-13, 

Kaw Tribal District Court, March 12, 2003; Michael Minnis & Assocs., P.C. v. Kaw 

Nation, 90 P.3d 1009 (Okla. Ct. App. 2003); Kaw Nation, ex rel. Clyde McCauley v. 

Lujan, 378 F.3d 1139 (10th Cir. 2004); Kaw Nation of Okla. v. Acting S. Plains Reg’l 

Dir., BIA, IBIA 03-94-A, IBIA 03-107-A, (IBIA June 18, 2003). 

04-1029 3 
the approximate amount of $7,617, which the tribe was to apply to the approximately 

$80,000 annual cost of operating the Kaw Nation Court system. 

Under the pertinent regulations, a Tribe that receives funding under a selfgovernance compact for a program that would otherwise be administered by the BIA 

may voluntarily retrocede the program upon submission of a written notice to the Office 

of Self Governance (“OSG”) that includes a “Tribal resolution or other official action of 

its governing body”. 25 C.F.R. Ch. VI, Subpart N—Retrocession, § 1000.333 (2004). 

The regulations further provide that retrocession will become effective on a date 

mutually agreed upon by the Tribe and the BIA, or as provided in the compact. 25 

C.F.R. § 1000.334.2

 

The present controversy arose when, in the middle of 2002, proceedings were 

pending in the Tribal Courts to remove appellants, the EC4 group, from their positions 

on the Executive Council based on allegations of self-dealing. The EC4 Group, in turn, 

alleged defects in the process by which the judges were appointed. Based on these 

alleged defects, the EC4 Group, acting as a majority of the Executive Council, sought to 

return control of the Kaw Nation courts to the BIA and to release the funds destined for 

the operation of the Tribal Courts under the Self-Governance Compact. The EC4 

Group claimed this action was authorized by the Tribe’s constitution and by the 

applicable federal regulations governing retrocession. At the November 16, 2002, 

 2 The Kaw Nation Compact of Self-Governance provides that the effective 

date of retrocession “shall be forty-five calendar days from the date of request by the 

Nation, unless the United States and the Nation mutually agree to an effective date 

more or less than forty five calendar days from the date of the request by the Nation. 

Then the mutually agreed upon date shall be the effective date of such retrocession.” 

(J.A. at 105.) 

04-1029 4 
meeting, the measure was approved by the EC4 Group, despite the objections of the 

remaining three members of the Executive Council, i.e., the Munroe Group. On 

December 12, 2002, the EC4 Group further formalized this action when, acting as a 

majority of the Executive Council, it passed a resolution to “explicitly turn[] the control of 

its courts back to the BIA and submit[] to the jurisdiction of the courts of the [BIA] and 

knowingly release[] the monies . . . under said compact.” Kaw Nation Executive Council 

Resolution No. 96A. The controversy continued when, on February 9, 2003, the Kaw 

General Council purported to cure one of the alleged defects in the selection of judges 

by approving those appointments that were in question.

On February 28, 2003, based on the actions of the Executive Council, the OSG 

recognized the retrocession of the tribal court program, and informed the Executive 

Council that it was retaining a portion of the Kaw Nation’s 2003 funding for tribal courts 

and would use the funds to defray the costs of operating a court system for the Tribe. 

The OSG informed the tribe that as of five days from the date of the letter (March 5, 

2003), the Nation could not expend federal funds for its tribal courts, and that any funds 

expended for that purpose would be deemed disallowed costs subject to required 

repayment. The letter also stated that the decision could be appealed to the IBCA, 

consistent with 25 C.F.R. § 1000.428, which entitles Tribes to appeal post-award 

administrative decisions to the IBCA. Under 25 C.F.R. § 900.230, which is incorporated 

by reference into 25 C.F.R. § 1000.429, “Indian tribes and tribal organizations shall 

continue performance of a contract during the appeal of any claims.” 

Despite the February 2003 OSG decision, the removal actions against the EC4 

members nonetheless proceeded in the tribal courts. On March 10, 2003, the Kaw 

04-1029 5 
Nation district court issued separate decisions removing two of the four members of the 

EC4 Group from the Executive Council.3

 Then, on March 17, 2003, the BIA advised the 

Executive Council Chairman that it had “re-assumed” jurisdiction over civil and criminal 

matters for the Kaw Nation, and that it would no longer recognize orders and decisions 

issued by the Kaw Nation courts. (J.A. at 69.) On April 8, 2003, the BIA further notified 

the Executive Council that it would not recognize any actions taken by the tribal court 

after February 28, “the date the [OSG] accepted the retrocession of the Tribal Court 

under Kaw Executive Council Resolution No. 96A.” (J.A. at 71.) On April 29, 2003, the 

BIA published a final Federal Register notice, 68 Fed. Reg. 22728 stating that “[t]he 

Kaw Nation’s retrocession and closing of its tribal court creates a jurisdictional vacuum” 

and that the BIA “must immediately reassume juridical jurisdiction . . . until such time as 

the Nation reestablishes its court.”4

The Munroe Group filed an appeal of the February 28, 2003, decision with the 

IBCA on March 26, 2003, alleging that the government, in accepting the retrocession of 

the tribal courts, had breached the self-determination agreement with the Tribe, and had 

improperly withheld approximately ten percent of the $80,000 annual cost of operating 

the Kaw Nation court system. On May 7, 2003, the Munroe Group petitioned the Board 

for a Stay of the Retrocession action. The Munroe Group claimed, inter alia, that the 

 3 Removal actions were also proceeding against the other two members of 

the EC4 Group. They were removed by order of the tribal court in November of 2003. 

4 There was initially some confusion in the proceedings below as to whether 

the Tribe’s action was a voluntary retrocession of a federally-funded program, governed 

under 25 C.F.R. Part 1000; or required emergency reassumption of judicial jurisdiction, 

governed under 25 C.F.R. § 11.100(c); or was subject to both regulatory regimes. The 

government later clarified in its filings before the IBCA that Interior’s action involved a 

voluntary retrocession and not an emergency reassumption. 

04-1029 6 
BIA violated various procedural regulations in making the retrocession effective and 

also violated the terms of the tribal constitution and of the funding agreement. 

Before the IBCA, Interior moved to dismiss the appeal, arguing, inter alia, that the 

IBCA lacked jurisdiction to order a stay of a voluntary retrocession of a self-governance 

program by the tribal government; that the Munroe Group lacked standing to pursue the 

appeal; and that the IBCA lacked jurisdiction to review Interior’s determination regarding 

the recognition of tribal officials. In June 2003, the Board nonetheless issued the 

requested stay which had the effect of requiring Interior to pay the withheld funds to the 

tribe. This payment was subsequently made. 

The IBCA found that the Munroe Group had standing to maintain the appeal 

because Chairman Munroe “not only headed the Executive Council but . . . was the 

Chief Executive Officer of the Nation [and] was expressly authorized by the General 

Council to challenge the Department’s action accepting the purported ‘retrocession’ . . . 

[and] was also sustained by the General Council when he sought the removal of two of 

the EC4 Group and then replaced them with new Executive Council members who 

agreed with him that the Nation’s judicial functions should not be retroceded to BIA.” 

IBCA Decision, slip op. at 15. 

The EC4 Group participated in the IBCA proceeding through the filing of a Notice 

of Special Appearance to advise the Board that the Kaw Nation had not authorized the 

appeal and subsequently submitted briefs objecting to the Munroe Group’s petition to 

stay the retrocession, and in support of the government’s motion for reconsideration of 

the Board’s order granting the stay. On July 30, 2003, the EC4 group filed a request 

with the IBCA, seeking to be recognized as a party to the action. 

04-1029 7 
On July 31, 2003, the IBCA, exercising jurisdiction under the Contract Disputes 

Act, as made applicable to disputes arising under the ISDA pursuant to 25 U.S.C. 

§ 450m-1(d), denied the EC4 Group’s motion to be recognized as a party and granted 

the Munroe Group’s motion for summary judgment “nullifying [Interior’s] February 28, 

2003, letter and its consequences,” and holding that “[t]he Kaw Nation is entitled to 

retain its judicial functions.” IBCA Decision, slip op. at 16. The grounds for the decision 

were three-fold. 

First, the Board held that the OSG decision of February 28, 2003, “violate[d] the 

Compact provisions and the regulations at 25 CFR 1000.334 and 1000.336, [sic] 

requiring negotiation with the Chairman, as the designated official under the Compact, 

concerning the effective date of the retrocession and the amount of funds, if any, to be 

returned to the Government.” Id. at 9.5

 Second, the Board concluded that the 

“judiciary was not a ‘program’ [within the retrocession regulations] as such [but a] 

governmental function,” which could not be retroceded. Id. at 13-14. Third, the Board 

held that the OSG “violated principles of Federal Indian law under which an Indian tribe 

has the right to interpret its own governing documents in resolving internal disputes” and 

that the OSG knew the validity of the retrocession “was openly disputed and was the 

subject of ongoing proceedings within the Kaw Nation.” Id. at 9. The Kaw Nation 

General Council had “clearly expressed its disapproval of the attempts to retrocede the 

judicial branch . . . and the Kaw Nation courts were in the process of rendering a 

 5 Under the regulations governing retrocession, the effective date of the 

retrocession and the amount of funds, if any, to be returned to the government, required 

negotiation with the Tribe, 25 C.F.R. §§ 1000.334 and 1000.336. 

04-1029 8 
decision.” Id. at 10. However, the Board did not explain why its own exercise of 

jurisdiction did not raise similar problems concerning interference in intratribal disputes. 

The EC4 Group filed an appeal of the IBCA decision with this court in October 

2003, challenging, among other things, the Board’s denial of its request to be 

recognized as a party. We granted the Munroe Group’s motion for leave to intervene in 

November 2003. Interior initially filed a separate appeal of the IBCA decision, which 

was then consolidated with the EC4 Group appeal. However, on August 4, 2004, the 

Assistant Secretary for Indian Affairs formally rescinded the government’s February 

2003 acceptance of the retrocession of funding and stated that the government no 

longer wished to pursue its claim to the withheld funds. The letter also “rescinded” the 

letters stating the position that the actions undertaken by the Kaw nation courts were 

invalid; and acknowledged that the Kaw Nation possessed a functioning court system.6

 

The parties confirmed at oral argument that the funds which were the subject of 

the original dispute before the IBCA have been released and that Interior does not seek 

recovery of those funds. 

DISCUSSION 

This court has jurisdiction to review decisions of the IBCA under 28 U.S.C. 

§ 1295(a)(10). Thompson v. Cherokee Nation of Okla, 334 F.3d 1075, 1084 (Fed. Cir. 

2003), aff’d sub nom Cherokee Nation of Okla v. Leavitt, 125 S. Ct. 1172 (2005). We 

review the IBCA’s assertion of jurisdiction and grant of summary judgment without 

 6 On February 15, 2005, the BIA rescinded the Federal Register notice of 

April 29, 2003 and confirmed the functioning of the Kaw Nation court system. 70 Fed. 

Reg. 7756 (Feb. 15, 2005). 

04-1029 9 
deference. Id.; see also Babbitt v. Oglala Sioux Tribal Pub. Safety Dep’t, 194 F.3d 

1374, 1377 (Fed. Cir. 1999). 

I 

Interior and the Munroe Group urge that the case is moot because the 

government has abandoned its appeal, has paid the disputed amounts to the Kaw 

Nation, and has waived any right it might have to recover those payments. We agree. 

The Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall 

Partnership makes clear that a party’s voluntary action can render moot a case or 

controversy. 513 U.S. 18, 20 (1994). The controversy in Bancorp centered on the 

applicability of “the new value exception” to the absolute priority rule, and, in particular, 

whether or not that exception had survived the enactment of the Bankruptcy Code. Id. 

Subsequent to the Supreme Court’s grant of certiorari, the parties stipulated to a 

consensual plan of reorganization, which received the approval of the Bankruptcy Court. 

Id. The Court held that confirmation of the plan mooted the controversy underlying the 

original dispute. Id. Similarly here, the release of the disputed funds and the waiver by 

Interior of any future right to secure their return has mooted the controversy that formed 

the basis for the original contract action before the IBCA. 

II 

Although the EC4 Group agrees that there is no longer a live controversy with 

respect to the underlying contract claim, it nonetheless urges that the appeal is not 

moot. Specifically, it argues that we must decide whether the IBCA properly had 

jurisdiction over the dispute. The EC4 Group asserts that the IBCA did not have 

jurisdiction because the matter was an internal tribal dispute and because the Munroe 

04-1029 10 
Group lacked standing to bring the appeal. Appellants further contend that such 

jurisdictional challenges can never become moot. We disagree. 

While the EC4 Group may be correct that we could decide these jurisdictional 

issues before reaching the question of mootness, there is no requirement that we do so. 

What the EC4 Group fails to comprehend is that, generally, we may address 

jurisdictional issues in any order. See Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005) 

(finding judicial review barred and declining to reach issue of Tucker Act jurisdiction); 

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) (deciding personal rather 

than subject matter jurisdiction issue); Myers Investigative & Sec. Servs., Inc. v. United 

States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (holding that standing, like mootness, is a 

threshold jurisdictional issue, and deciding issue of standing without reaching mootness 

issue). Indeed, where, as here, the underlying controversy is clearly moot, the preferred 

course is to decide mootness, before reaching difficult questions more closely tied to the 

merits of the underlying controversy, such as subject matter jurisdiction. We therefore 

decline to reach the issue of the propriety of the IBCA’s original exercise of jurisdiction 

in light of the undisputed fact that the underlying contract claim is now moot, and the 

case has “lost its character as a present, live controversy of the kind that must exist if 

we are to avoid advisory opinions on abstract questions of law.” Princeton Univ. v. 

Schmid, 455 U.S. 100, 103, (1982) (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)).7

 7 The EC4 Group also argues that the appeal is not moot because the 

Munroe Group has applied to the IBCA for attorney fees under the Equal Access to 

Justice Act. This argument is without merit. In Bancorp, for example, the Court 

recognized that the power of a court to award costs did not prevent the underlying 

controversy from being moot. 513 U.S. at 21. 

04-1029 11 
III 

The crux of this case is whether we should simply dismiss the appeal for 

mootness, or whether we should also vacate the decision of the Board. In addition to 

challenging the denial of its request to be recognized as a party, the EC4 Group urges 

that we vacate the decision. The government also urges vacatur. The Munroe Group, 

the prevailing party below, opposes. We conclude that the IBCA decision should be 

vacated. 

Under the Supreme Court’s decision in Bancorp, when a case becomes moot by 

voluntary action of the losing party, vacatur of the judgment on appeal is generally not 

appropriate.8

 513 U.S. at 24-25. However, there is an exception for special 

circumstances: 

[M]ootness by reason of settlement does not justify vacatur of a judgment 

under review. This is not to say that vacatur can never be granted when 

mootness is produced in that fashion. As we have described, the 

determination is an equitable one, and exceptional circumstances may 

conceivably counsel in favor of such a course. 

Id. at 29. 

Thus, any appraisal of whether exceptional circumstances warrant vacatur 

requires a balancing of the equities, and, in particular, a weighing of the public interest 

in preserving “the orderly operation of the federal judicial system” versus the private 

interests of the parties seeking vacatur. Id. at 27. 

 8 Although Interior contends that the BIA’s rescission letter of August 2004 

should not be considered voluntary action, but rather an independent agency action, 

that contention is without merit. See Karcher v. May, 484 U.S. 72, 83 (1987) (decision to 

decline to pursue an appeal constitutes voluntary action). 

04-1029 12 
While we doubt that the judgment, if not vacated, could have any continuing res 

judicata or collateral estoppel effect on the EC4 Group,9

 the decision of the IBCA may 

have continuing effects as precedent. Under these circumstances, the equities favor 

vacating the judgment. 

First, the judgment potentially affects parties who did not cause the controversy 

to become moot. If only the Secretary, the party that caused the case to become moot, 

were affected by the precedential effect of the decision, vacatur on appeal would not be 

appropriate. As the Court observed in Bancorp, where “the losing party has voluntarily 

forfeited his legal remedy by the ordinary processes of appeal . . . [,] the judgment is not 

unreviewable, but simply unreviewed by his own choice.” 518 U.S. at 25. 

However, the EC4 group had nothing to do with the mootness, and, in fact, 

strenuously opposed the actions of the Secretary that caused the case to become moot. 

The primary effect of leaving the decision in place is to potentially adversely affect its 

interests. 

The Munroe Group urges that exceptional circumstances are not present here, 

asserting that they are entitled to the benefit of the Board decision in their continuing 

dispute with the EC4 Group. They argue that the EC4 appeal should be “dismissed, 

with prejudice” (Br. of Intervenor at 15.) and that “[k]eeping the IBCA decision intact 

assures that no one can challenge the validity of the Kaw Nation tribal court system—

especially during the period from February 28, 2003 through July 31, 2004.” (Br. of 

 9

 See Dana v. E.S. Originals, Inc., 342 F.3d 1320, 1323 (Fed. Cir. 2003) 

(holding that parties to be collaterally estopped must have had an opportunity to fully 

and fairly litigate the issue in question); Aqua Marine Supply v. Aim Machining, Inc., 247 

F.3d 1216, 1221 (Fed. Cir. 2001) (recognizing the issue but declining to decide on the 

facts of that case). 

04-1029 13 
Intervenor at 25.) Far from negating the existence of exceptional circumstances, we 

think that this desire to preserve any effects of the IBCA decision regarding the validity 

of the court system demonstrates the existence of the exceptional circumstances that 

Bancorp requires in order to justify vacatur. See Associated Gen. Contractors v. City of 

New Haven, 41 F.3d 62, 67 (2d Cir. 1994) (noting that the rationale of avoiding any 

adverse collateral effects of a judgment mooted during the pendency of the appeal was 

“especially compelling when the party that prevailed [below] seeks to moot the appeal”); 

see also Aqua Marine, 247 F.3d at 1220-21. 

Courts have held that even “moral appraisals” and the potential practical effect 

on third parties may make vacatur appropriate. In Microsoft Corp. v. Bristol Technology, 

Inc., 250 F.3d 152 (2d Cir. 2001), the Second Circuit found that exceptional 

circumstances sufficient to vacate a judgment based on voluntary settlement included 

the fact “that individuals (some not named parties) are the subject of moral appraisals 

integral to the findings on punitive damages.” Id. at 156; see also N. Cal. Power Agency 

v. Nuclear Regulatory Comm’n, 393 F.3d 223, 225 (D.C. Cir. 2004) (granting appellant’s 

request to vacate an agency order when appellant was not a party to the settlement 

between the appellee and the intervenor that mooted the order). 

Second, the decision of the Board in this case, invalidating a decision of the 

Secretary, at its heart involves an intratribal dispute and in this respect presents difficult 

and complex issues that may be beyond the Board’s jurisdiction. Typically, the courts 

are reluctant to resolve such intratribal disputes at all because their resolution is viewed 

as an intrusion into tribal sovereignty. The Supreme Court, on various occasions, has 

reaffirmed the principle that “Indian tribes occupy a unique status under our law” and 

04-1029 14 
that they “retain some of the inherent powers of the self-governing political communities 

that were formed long before Europeans first settled in North America.” Nat’l Farmers 

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851 (1985) (citations omitted). 

In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59-60 (1978), the Court recognized a 

need to respect tribal sovereignty by avoiding the resolution of intratribal disputes in the 

federal courts, and noted, in particular, that “resolution in a foreign forum of intratribal 

disputes of a more ‘public’ character, . . . cannot help but unsettle a tribal government’s 

ability to maintain authority.” 

The same concern exists with respect to the authority of the IBCA to resolve 

tribal disputes. The IBCA has exclusive jurisdiction to hear claims regarding selfdetermination contracts that are brought pursuant to the Contract Disputes Act. 

However, it is by no means apparent that the Contract Disputes Act confers jurisdiction 

to resolve intratribal disputes. Arguably, if the federal government is to play any role in 

deciding such disputes, the appropriate agency is the BIA. The BIA has “both the 

authority and responsibility to interpret tribal law when necessary to carry out the 

government-to-government relationship with the tribe.” Ransom v. Babbitt, 69 F. Supp. 

2d 141, 150 (D.D.C. 1999) (quoting United Keetowah Band of Cherokee Indians in 

Okla. v. Muskogee Area Dir., 22 IBIA 75, 80 (June 4, 1992)) (emphasis omitted). Such 

BIA decisions concerning matters of tribal governance are generally appealable to the 

Board of Indian Appeals,10 and not to the Board of Contract Appeals.11 See 43 C.F.R. § 

 10 Decisions of the BIA made at the level of Assistant Secretary or above, 

are apparently reviewable in district court. Shawnee Tribe v. Assistant Sec’y Indian 

Affairs, 39 IBIA 4 (2003). 

04-1029 15 
4.1(b)(2)(i) (2004) (BIA administrative actions issued under 25 C.F.R. Chapter I (which 

includes Tribal Government matters) are appealable to the IBIA). On the other hand, it 

may be argued that the Board, in the exercise of its undisputed jurisdiction over the 

contracts dispute, inevitably was required to resolve the intratribal dispute. 

As noted earlier, we decline to decide this difficult issue of the Board’s authority. 

It is sufficient that other cases have recognized the appropriateness of vacating a 

judgment on appeal when there are questions as to the authority of the tribunal under 

review. In Microsoft, the Second Circuit determined that exceptional circumstances 

warranted vacatur of a district court order that awarded $1 million in punitive damages 

and granted injunctive relief, subsequent to the parties’ voluntary settlement of a federal 

and state antitrust dispute, in part because it was “unclear whether the district court had 

the power to reach the issue of punitive damages.” 250 F.3d at 155. Similarly, in WalMart Stores, Inc. v. Rodriguez, 322 F.3d 747, 750 (1st Cir. 2003), the First Circuit found 

that, after the parties had voluntarily settled the underlying dispute, federalism concerns 

nonetheless provided exceptional circumstances sufficient to support vacatur of an 

“unusual” federal district court injunction that restrained local law enforcement from 

bringing a Puerto Rican antitrust action. So here, tribal sovereignty concerns and the 

questions as to the IBCA’s jurisdiction to resolve intratribal disputes support a finding of 

exceptional circumstances that warrants vacatur. 

 11 In this case, the Munroe Group sought review before the IBIA of the OSG 

decisions of March 17, 2003 (advising that the BIA had reassumed jurisdiction over civil 

and criminal matters) and April 8, 2003 (advising that the BIA would not recognize the 

removal of two EC4 Group members that occurred after the February 28, 2003 

decision). The IBIA declined to exercise jurisdiction at that time because the same 

issues were under review in a matter pending before the district court. (J.A. at 152-53.) 

 

04-1029 16 
CONCLUSION 

For the foregoing reasons, we vacate the decision below and remand to the 

IBCA to dismiss the case as moot. 

VACATED AND REMANDED 

COSTS 

 No costs.

04-1029 17