Nos. 09-2281, 09-2291.

657 F.3d 1071 (2011)

SOUTHERN UTE INDIAN TRIBE, Plaintiff-Appellant/Cross-Appellee, v. Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services; Richard H. Carmona, Surgeon General of the United States; Charles W. Grim, Assistant Surgeon General and Director of the Indian Health Service; James L. Toya, Director, Albuquerque Area Office of the Indian Health Service; United States Indian Health Service; United States Public Health Service; United States Department of Health And Human Services, Defendants-Appellees/Cross-Appellants.

United States Court of Appeals, Tenth Circuit.

September 19, 2011.

Attorney(s) appearing for the Case

Steven C. Boos of Maynes, Bradford, Shipps & Sheftel, LLP, Durango, CO, ( Monte Mills of Southern Ute Indian Tribe Legal Department, Ignacio, CO, with him on the briefs), for Plaintiff-Appellant/Cross-Appellee.

Jeffrica Jenkins Lee , Attorney, Civil Division ( Tony West , Assistant Attorney General; Gregory J. Fouratt , United States Attorney; and Barbara C. Biddle , Attorney, Civil Division, with her on the briefs), Department of Justice, Washington, D.C., for Defendants-Appellees/Cross-Appellants.

Before MURPHY, SEYMOUR and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

This is the second appeal in litigation arising from the Secretary of Health and Human Services' ("HHS") decision not to enter into a self-determination contract with the Southern Ute Indian Tribe ("Tribe"). In an initial order, the district court ruled that HHS's decision was unlawful, granted summary judgment to the Tribe, and directed the parties to prepare a proposed order for injunctive relief...


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