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Tribes continue fight for self-determination contracts
Friday, December 16, 2005

Two important legal cases seeking to force the federal government to abide by its promises to tribal governments are moving forward in the courts.

In one case, the Shoshone-Bannock Nation of Idaho claimed a major victory. On December 12, a federal judge ordered the Department of Health and Human Service and the Indian Health Service to pay the tribe $595,000 for failing to fully fund self-determination contracts for health care.

"The Shoshone-Bannock Tribes, like many tribal contractors operating IHS programs and facilities, are severely underfunded," U.S. Magistrate Janice M. Stewart wrote in the 15-page opinion.

In the second case, a federal judge in New Mexico recently reactivated a lawsuit filed by Zuni Pueblo. The tribe claims HHS and IHS underpaid self-determination contracts by at least $200 million, and attorneys are seeking to certify a class action on behalf of over 300 tribal governments.

The action come several months after the U.S. Supreme Court, in March 2005, handed down its decision in Cherokee Nation v. Leavitt, a precedent-setting case. By a unanimous 8-0 vote, the justices said the federal government must fully fund its self-determination and self-governance contracts.

"The question before us is whether the government's promises are legally binding," Justice Stephen G. Breyer wrote on March 1. "We conclude that they are."

Tribal leaders celebrated the win but have run into opposition from the Bush administration, whose officials admit to the shortfalls but say there is little they can do about them. They say they are blocked by a rider that was inserted into an appropriations bill after the first self-determination contract lawsuit was filed.

The Bush administration also opposes a bill that would ensure that tribes receive all the money they are due under legally binding agreements. Officials say fully funding the contracts will hurt Indian programs.

The failure to fund the contracts has dire effects on Indian Country, the judge in the Shoshone-Bannock case noted. "Tribal contractors were left to raid tribal trust fund revenues needed for economic development and other tribal assistance programs, cut the level of already underfunded services to tribal members, cut administrative expenses and risk violating federal requirements and prudent management standards, or abandon tribal self-determination altogether," Stewart wrote.

In the case, the Department of Justice sought to exclude the Shoshone-Bannocks from the benefits of the Cherokee Nation decision. Government attorneys argued that the tribe failed to ask the U.S. Supreme Court to review the dispute.

But Stewart concluded that it was in the best interest of justice and the federal trust responsibility to award the tribe money for contracts entered into for the years of 1996 and 1997.

In the Zuni case, the judge rejected an attempt by two other tribes to take control of the lawsuit. Lloyd Miller, the attorney who is handling the case and who also worked on the Cherokee case, said the decision "puts to rest an issue which had distracted both the Court and the parties from moving the case forward."

Miller said Zuni Pueblo hopes to obtain class action certification for the case in early 2006. He said a trial would be held afterwards.

In the Cherokee case, the decision was 8-0 because the late chief justice William H. Rehnquist didn't participate. He had missed the oral arguments for the case due to his treatment for cancer. He died in September.

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 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:
Shoshone-Bannock Tribes - http://www.shoshonebannocktribes.com
Contract Support Cost Litigation - http://www.cscclass.net
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html