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Self-determination case goes before U.S. Supreme Court
Tuesday, November 9, 2004

The U.S. Supreme Court will hear oral arguments today in a case that will determine whether tribes should receive full funding for carrying out the goal of self-determination.

As part of the landmark Indian Self-Determination and Education Assistance Act, passed in 1975, the federal government ushered in a new era of Indian policy. Instead of making decisions for tribes under various health, education and other federal programs, tribes would make them for themselves.

Along with Indian gaming, the policy is considered the only successful one implemented by the government. But tribal leaders say they are being treated unfairly because the contracts they enter into with the Department of Health and Human Services aren't fully funded.

"We firmly believe that the way the federal government is dealing with the tribes is a discriminatory policy," said Ron Allen, the chairman of the Jamestown S'Klallam Tribe of Washington and treasure of the National Congress of American Indians, at a Senate hearing this year. "Nowhere else in this government ... do they treat contractors like they do Indian tribes."

This practice is felt acutely when it comes to the health and well-being of American Indians and Alaska Natives. Due to the rising costs of health care, tribal leaders say their contracts are being shortchanged by millions. This year's shortfall will be $93 million, according to figures from NCAI.

The issue comes to a head as the high court considers two cases involving tribal self-determination contracts with the Indian health Service, an agency of HHS. Cherokee Nation v. Thompson and Thompson v. Cherokee Nation will be argued together by a lawyer for tribes and by the Department of Justice.

The cases represent a multi-year battle waged by the Cherokees and tribes across the nation. At least three federal circuit courts have considered whether IHS should fully fund the contracts.

In July 2003, the Federal Circuit Court of Appeals held that the Cherokee Nation is owed money for administering IHS programs, a figure was put at $8 million over a three-year period. The tribe administers all hospitals, health clinics, dental services, mental health programs, and alcohol and substance abuse programs that were formerly managed by IHS.

But in November 2002 the 10th Circuit Court of Appeals came to a different conclusion. The judges said the Cherokee Nation and the Duck Valley Shoshone-Paiute Tribe of Nevada had to live with shortfalls in the IHS budget.

The conflicting decisions reflect what the government says are limits in the federal appropriations process. First, IHS can only give out a certain, capped amount for tribal contracts, and second, the agency can't shift funds around to make up for any shortfalls.

"Those limits reflect the fact that self-determination agreements are not government procurement contracts -- they are not purchases for the federal government," one of the government's brief stated, hoping to draw a distinction with contracts for tribes and contracts for non-Indians.

"Instead, they are governmental funding arrangements under which the tribes are substituted for a federal agency both in furnishing governmental services and in receiving federal funding for that purpose," the brief continued.

It is not clear which way the justices will go on the matter. By accepting the case, they only signaled a need to resolve the conflict among the circuit courts. In non-Indian contract cases, they have been supportive of contractors.

If the justices, who are often divided along ideological lines, rule for the government, tribes have a backup plan. They are pushing for a bill that would clearly direct agencies to fund the contracts, an idea Bush administration officials opposed.

"An awful lot of agencies in Washington are scared to death of any kind of change that might benefit tribes," the retiring Sen. Ben Nighthorse Campbell (R-Colorado) said at a hearing in April. "They always give us this kind of doublespeak [on] how they want to do things to help Indian people but when it comes down to supporting a bill to help Indian people, somehow they find a way to oppose the damn bill."

IHS officials acknowledge they provide only 19 percent of contract support costs to tribes in a budget where $1.5 billion is managed through self-determination contracts. At the hearing, IHS director Dr. Charles Grim said providing 100 percent of the costs would hurt other Indian programs.

The hearing today may or may not see the appearance of Chief Justice William Rehnquist, who recently underwent surgery for thyroid cancer. He was not present for oral arguments yesterday but will participate in consideration of the case.

Rehnquist's status has fueled speculation that he may retire and give President Bush an opening to appoint a new member of the court and a new chief justice.

Lower Court Decisions:
Fed Circuit: Thompson v. Cherokee Nation (July 3, 2003) | 10th Circuit: Cherokee Nation v. Thompson (November 26, 2002) |

Relevant Documents:
Docket Sheet No. 03-853: Thompson v. Cherokee Nation | Docket Sheet No. 02-1472: Cherokee Nation v. Thompson | Department of Justice Petition No. 03-853 | Department of Justice Supplemental Brief No. 02-1472

Related Decisions:
9th Circuit: Shoshone-Bannock v. Thompson (October 16, 2001) | 9th Circuit: Navajo Nation v. HHS, No. 99-16129 (April 8, 2003)

Relevant Links:
Contract Support Cost Litigation - http://www.cscclass.net
Contract Support Costs, NCAI - http://www.ncai.org/main/pages/issues/
governance/contract_support.asp
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html