Andrus v. Glover Construction Company

PETITIONER: Andrus
RESPONDENT: Glover Construction Company
LOCATION: Police Car

DOCKET NO.: 79-48
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 446 US 608 (1980)
ARGUED: Mar 24, 1980
DECIDED: May 27, 1980

ADVOCATES:
Andrew J. Levander - on behalf of the Petitioners
D. D. Hayes - on behalf of the Respondent

Facts of the case

Question

Media for Andrus v. Glover Construction Company

Audio Transcription for Oral Argument - March 24, 1980 in Andrus v. Glover Construction Company

Warren E. Burger:

We will hear arguments first this morning in No. 79-48, Andrus, Secretary of the Interior v. Glover Construction Company.

Mr. Levander, you may proceed whenever you are ready.

Andrew J. Levander:

Thank you Mr. Chief Justice, and may it please the Court.

This case is here on the government's petition to review a decision of the United States Court of Appeals for the Tenth Circuit.

The focal point of this case is the so-called Buy Indian Act.

The act itself is quite brief.

It authorizes the Secretary of the Interior insofar as may be practicable to employ Indian labor and to make purchases of Indian industry in the open market.

The Secretary has delegated his authority under the act to the Bureau of Indian Affairs and the Bureau in turn has promulgated a detailed policy statement concerning Buy Indian contracting.

The Buy Indian program is fairly narrow in scope.

It pertains only to BIA procurement and that by definition pertains to the welfare of Indians, Indian tribes and Indian lands.

The policy statement directs the local BIA contracting officer where practicable to first ascertain that there is a qualified 100 percent Indian owned contractor capable of filling the contracting need.

If there is more than one such firm in the normal competitive area, whatever the contracting need is, then the BIA officer is directed to arrange competitive bidding among the various Indian firms.

If there is only one such qualified firm, then the BIA officer is authorized to negotiate a contract with that firm at a fair and reasonable price.

And if there is no such qualified firm or if no firm is willing to fulfill the contracting need at a fair and reasonable price, then BIA turns the contract over to open competitive bidding.

William H. Rehnquist:

Mr. Levander, are you going to cover the chronology of the statutes and the regulations some time in your argument?

Andrew J. Levander:

Yes, I will attempt to.

Now, the controversy in this case centers on a five-mile stretch of Indian logging road that cuts through Indian trust lands in Pushmataha County, Oklahoma.

In 1977, in accordance with the BIA program I just described, the BIA contacted three qualified Indian firms in the normal competitive area and asked each to submit a bid.

The respondent, which is a non-Indian corporation, was not asked to bid and subsequently the contract was awarded to Indian Nations Construction Company, a company wholly owned by three Indians.

The price that it was awarded at was considered to be fair and reasonable both by BIA and the National Highway Administration.

William H. Rehnquist:

When did the Secretary first start construing the Buy Indian Act to cover construction of roads?

Andrew J. Levander:

I think that as we detailed in our brief that the earlier reports -- the Buy Indian Act itself was enacted in 1910.

However, suitable language appeared in a series of appropriations acts between 1884 and 1908, almost identical language.

And the temporary administrative reports, that is reports that were required by Congress to be filed by the Secretary of the Interior and the Commissioner of Indian Affairs reflected all during this period, including 1910 and thereafter, that the Commissioner of Indian Affairs and the Secretary considered the Buy Indian Act and the preference contained in the act to apply not only to goods, as respondent argues, but also construction of all kinds.

For example, the 1908 appropriations act specifically expressly applied the preference to irrigation construction and a road on the Hooper Valley Indian Reservation and it --

William H. Rehnquist:

That was before the Buy Indian Act was even enacted.

Andrew J. Levander:

There was a predecessor act which has the same language and therefore should be construed similarly, and in 1910 when the act was enacted the legislative history and again the contemporary administrative reports show that Congress intended the act to apply to construction as well as to goods.

The 1910, 1911, 1912 reports all show that the Commissioner of Indian Affairs and the Secretary of the Interior considered it their duty to employ Indians and to hire Indian teams, which are the sort of forerunners of today's modern corporation.

Certainly at that time Indians didn't have corporations, but they did have entrepreneurs who had teams.

And Rep. Sherman's statement, which is quoted at page 23 of our brief, I believe, and a subsequent comment in 1910 by Rep. Burke all show that they expected the act to be applied to irrigation construction, and I don't think that for the purposes of this case that you can distinguish meaningfully between irrigation construction and road construction.