Several provisions of the Indian Self-Determination
and Education Assistance Act 1 ("ISDEAA ") were
amended in 1988 to foreclose the United States Bureau
of Indian Affairs ("BIA ") from engaging in the practice
of the "[i]nappropriate application of federal
procurement laws and acquisition regulations to self-
determination contracts "2. To affect these purposes,
Congress added provisions exempting self-
determination contracts " entered into pursuant to the
ISDEAA from "the Office of Federal Procurement
Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and [the]
Federal acquisition regulations promulgated
thereunder "3. Additionally, Congress added a
definition of self-determination contracts that was
intended to clarify "self-determination contracts are
not procurement contracts, as defined by the Federal
Grant and Cooperative Agreement Act of 1977 4, and
the system of federal acquisition regulations contained
in Title 41 of the Code of Federal Regulations should
not apply to self-determination contracts. "5

The fundamental statutory interpretation question
underlying this petition involves what effect a
subsequent "technical "6 change to the language of
exemption provisions that is intended "to conform the
1975 language with the 1988 Amendments 7" have on
the scope of Federal laws that self-determination
contracts are exempted from. Moreover, did Congress
intend this technical change to authorize the BIA to
exclude the application of any Federal law conceivably
related to "contracts " from self-determination
contracts, including an entire positive law title of the
United States Code, regardless of their subject matter?
Is the presence of the term "contract " in both the
exemption provision and the name of a Title of the
United States Code a sufficient basis to overlook the
complete absence of evidence Congress contemplated
this technical change to vastly expand the scope of
Federal laws precluded by the exemption provisions?
The precedence of this Court and well-established
principles of statutory construction would readily lead
one to conclude the answer to be no. However, an
undivided panel of the United States Court of Appeals
for the Ninth Circuit upheld a decision by the BIA
Director to deny Mr. Kent 's claim for relief under 41
U.S.C. § 4712(c) based upon such an interpretation
after applying the arbitrary and capricious standard of
review under the Administrative Procedures Act. 8

The questions presented are:

1. Did the United States Court of Appeals for the
Ninth Circuit err in construing 25 U.S.C. §
5324(a)(1) to exempt self-determination contracts
from the whistleblower protections of 41 U.S.C. §
4712?

2. Is it permissible for a Federal Court to ignore the
plain text of the Federal statute granting it
jurisdiction to review a case in favor of electing to
apply an interpretive process that both begins and
affords primacy to the statutory provisions of a
related but ultimately irrelevant and separate
statute?

3. Does ambiguity in amendatory statutory language
implicitly authorize Federal courts and agencies to
broadly expand the scope of an explicitly defined
statutory exemption beyond its originally intended
purpose where Congress has

Did the Ninth Circuit err in construing a statutory provision to exempt self-determination contracts from whistleblower protections?