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NIHB Supplemental Submission - Definition of Indian
Judicial deference is even required when the court disagrees with the agency‘s
interpretation. 70
―[T]he case for deference is particularly strong when the agency has interpreted
regulatory terms regarding which it must often apply its expertise.‖ 71 Along with the BIA,
IHS and other agencies within HHS have the greatest expertise in determining who is an
―Indian‖ for purposes of programs serving Indians. As a result, courts would accord a higher
level of deference to any reasonable regulatory definition of the term ―Indian‖ that HHS
promulgates.
This deference is illustrated in Alaska Chapter, Associated General Contractors v.
Pierce, 72 where the court gave substantial deference to another agency‘s definition of Indian
even though it was alleged to go beyond the ISDEAA definition. In Pierce, the plaintiff
challenged a regulation promulgated by the Department of Housing and Urban Development
(―HUD‖) that defined ―Indian‖ for the purposes of the ISDEAA‘s Indian hiring preference
requirement. 73 HUD interpreted the ISDEAA definition to include ―any person recognized
as being an Indian or Alaskan Native by a Tribe, the Government, or any state,‖ with a
―tribe‖ then defined as ―an Indian tribe, band, pueblo, group or community of Indians or
Alaskan Natives.‖ 74 The court upheld the regulatory definition because it was ―rationally
related to the fulfillment of Congress‘ unique obligation toward Indians and Alaska
Natives.‖ 75
A court would give a reasonable definition of ―Indian‖ adopted by HHS or another
Federal agency to implement the ACA at least as much deference as the court in Pierce. This
is also a clear example of the fact that HHS has the inherent authority to promulgate such a
regulation in the first instance.
5.3 Statutory Ambiguity Should Be Resolved by Regulations.
5.3.1 References to More Than One Statute Has Created Ambiguity for
Those Charged with Implementing ACA.
70 See, e.g., Am. Radio Relay League, Inc. v. F.C.C., 617 F.2d 875, 881 (D.C. Cir. 1980) (―Had
we been the rulemakers in this case, we might have been more hesitant in encroaching on the domain
of the innocent amateur operators. Nonetheless, we cannot say that the agency abused its discretion in
adopting the rules that it did.‖).
71 Wash. Urban League v. F.E.R.C., 886 F.2d 1381, 1386 (3rd Cir. 1989) (citations omitted.
Accord MCI Telecommunications Corp. v. F.C.C., 822 F.2d 80, 84-85 (D.C.Cir. 1987); W. Union Tel.
Co. v. FCC, 541 F.2d 346, 351 (3rd Cir.1976).
72 694 F.2d 1162 (9th Cir. 1982).
73 See 42 U.S.C. § 450e(b)(i) (requiring that ―preferences and opportunities for training and
employment in connection with the administration of such contracts or grants shall be given to
Indians‖).
74 24 C.F.R. § 805.102.
75 Alaska Chapter, 694 F.2d at 1170.
National Indian Health Board Page 17 of 24 October 31, 2011