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Contracts still an issue despite Supreme Court win
Thursday, April 14, 2005

The Indian Health Service is still not treating tribes fairly despite the U.S. Supreme Court's unanimous ruling in favor of self-determination contracts, tribal leaders said on Wednesday.

On March 1, the high court ruled 8-0 that the IHS must fully fund contracts, including support costs, with tribes and tribal organizations that carry out federal programs. The justices said the federal government must uphold its promises to Indian people.

The decision was widely hailed as a victory for Indian rights. But in testimony to the Senate Indian Affairs Committee, tribal leaders cited persistent inequities in the funding of self-determination contracts.

"Failure to adequately fund contract support costs is defeating the very programs that appear to be helping improve health conditions for American Indians and Alaska Natives," said Sally Smith, the chair of the National Indian Health Board.

The testimony was backed up by internal IHS figures released by the Cherokee Nation and the law firm that brought the case to the Supreme Court. The document showed $99 million shortfall for health care contracts for this year, and predicted a $126 million shortfall for next year.

The decision came out after Congress finalized the 2005 federal budget. But the Bush administration has not asked for supplemental money to patch up the holes and has only asked for an additional $5 million for next year, Dr. Charles Grim, the director of the IHS, said in his testimony.

Nevertheless Grim pointed out that the agency's commitment to the policy of self-determination is reflected in the budget. "The share of the IHS budget allocated to tribally operated programs has grown steadily over the years to the point where today over 50% of our budget is transferred through self-determination contracts," the testimony stated.

Rachel Joseph, the chairwoman of the Lone Pine Paiute Shoshone Tribe of California, testified that self-determination contracting has improved over the years. The IHS at first refused to fund contract support costs but later changed its position, she said.

"Funding CSC removed a deterrent to tribal contracting," her testimony stated. Tribal leaders have said they are unwilling to contract for IHS programs because they know they will not receive all the money needed to provide services.

In addition to the IHS, the Supreme Court decision affected the Bureau of Indian Affairs. Yet no new funds have been addressed to address an estimated $37 million shortfall.

In testimony to the Senate last month, Interior Secretary Gale Norton said the decision would not have a major impact on her department. She cited a Congressional rider that allows federal agencies to limit contract support costs.

The rider is different from the one considered in the Supreme Court case. That one only applied for the years 1994 through 1997, while a subsequent rider, according to Norton, covers later years.

The issue is expected to be raised today as tribal leader testify before the House Appropriations subcommittee that handles Interior's budget bill.

Relevant Documents:
Senate Committee on Indian Affairs Testimony (April 13, 2005)

Get the Decision Cherokee Nation v. Leavitt:
Sylalbus | Opinion [Breyer] | Concurrence [Scalia]

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

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