But the lawyers further argue that the injunction requiring the government to follow Gourneau’s letter puts employees at risk of being held in contempt of court.

The October order requires the BIA to consult both tribes on contracts impacting “shared services” and the government argues it is too difficult to determine which services are shared and which are meant only for a single tribe given the overlapping nature of both tribal organizations on the shared reservation.

“Federally funded programs directed at one tribe commonly also benefit or affect the other tribe and its members,” the government attorneys wrote.

The government believes that it risks violating the injunction — or being accused of violating the injunction — if it enters into agreements with the individual tribes and will be forced to negotiate with both tribes for every service provided.

“Given the tribes’ ongoing unwillingness to cooperate in the administration of most such programs, such a determination would likely result in the rejection of the proposals,” Freeman and Shaw stated in the lawsuit.