IHS resolves another self-determination dispute

Wednesday, February 20, 2008  

After years of battles in the courtroom, the Indian Health Service has finally settled a long-running self-determination dispute.

Last week, the agency paid $41.2 million to the Yukon-Kuskokwim Health Corporation for an underfunded contract. The money will be used to provide health care to more than 50 Alaska Native villages.

According to attorneys who handled the case, the payout is the largest ever for a self-determination contract. In recent years, IHS has paid over $20 million to the Cherokee Nation of Oklahoma and over $6 million to the Shoshone-Paiute Tribes of Nevada.

But $200 million -- and possibly more -- are at issue in a class action lawsuit against the federal government. Tribes and Alaska Natives say the IHS has failed to live up to its promises to pay them for health care services.

In March 2004, Indian Country thought the U.S. Supreme Court resolved the dispute. In a unanimous ruling, the justices said the government must fully fund self-determination contracts not just for the cost of the program but for additional support costs.

"The government does not deny that it promised to pay the relevant contract support costs. Nor does it deny that it failed to pay," Justice Stephen G. Breyer wrote in the 8-0 decision.

Despite the victory, IHS has said it isn't required to pay the contract support costs due to restricting language in appropriations law. But in another court case involving the Southern Ute Tribe of Colorado, a federal judge struck down the policy as unlawful.

"The mere failure of Congress to appropriate funds, without further words modifying or repealing, expressly or by clear implication, the substantive law, does not in and of itself defeat a government obligation created by statute," Judge William P. Johnson wrote last June.

The dispute stems from the Indian Self-Determination and Education Assistance Act of 1975. The landmark law authorizes tribes to assume programs -- ranging from health care to social services -- that were previously managed by federal agencies.

The self-determination policy has been a success, with hundreds of tribes entering into contracts and compacts to take control of their destinies. But IHS has never completely fulfilled its promise to pay for the costs of the programs along with the contract support costs.

Tribes have asked Congress to clear up the matter but several bills that would require IHS to pay the contract support costs have not made it very far. The issue also affects contracts from the Department of the Interior.

The $41 million paid to the Yukon-Kuskokwim Health Corporation includes interest. The original health care contract was underpaid by $26 million.

Civilian Board of Contract Appeals Documents:
Order | Joint Request for Judgment

Supreme Court Decision in Cherokee Nation v. Leavitt:
Syllabus | Opinion [Breyer] | Concurrence [Scalia]

Relevant Links:
Yukon-Kuskokwim Health Corporation - http://www.ykhc.org
Indian Health Service - http://www.ihs.gov
Contract Support Cost Litigation - http://www.cscclass.net
Contract Support Costs, NCAI - http://www.ncai.org/Contract_Support.36.0.html