Error: Bad annotation destination
 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 self-

governance 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 self-

determination 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 Wal-

Mart 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
