The Menominee Tribal Clinic in Keshena, Wisconsin, operates with funds from a self-determination contract. Photo: MTC

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Menominee Nation loses contract support costs case at Supreme Court

Monday, January 25, 2016

The U.S. Supreme Court issued its first Indian law decision of its current term on Monday, ruling against the Menominee Nation of Wisconsin in a contract support costs case.

By a unanimous vote, the justices held that the tribe waited too long to pursue certain Indian Self-Determination and Education Assistance Act (ISDA) claims against the Indian Health Service. The court determined there were no "extraordinary circumstances" that warranted an extension of a six-year deadline established by the Contract Disputes Act (CDA).

"The ISDA and CDA establish a clear procedure for the resolution of disputes over ISDA contracts, with an unambiguous 6-year deadline for presentment of claims," Justice Samuel Alito wrote for the majority in the nine-page decision.

The outcome of Menominee Indian Tribe of Wisconsin v. US was not surprising. At oral arguments last month, the justices expressed skepticism at the tribe, with Alito asking for the number of days -- 707, to be exact -- it took for the tribe to present its claims of being shortchanged by the IHS.

Indianz.Com SoundCloud: U.S. Supreme Court Oral Arguments in Menominee Indian Tribe of Wisconsin v. United States

Alito again cited the 707 days in explaining why the tribe shouldn't have waited so long. Even though the Supreme Court had yet to resolve two prior contract support costs cases -- Cherokee Nation v. Leavitt from 2005 and Salazar v . Ramah Navajo Chapter from 2012 -- he said the tribe's legal team committed "tactical" mistakes that cannot be excused.

The decision means the tribe cannot pursue shortfalls for the years 1996, 1997 and 1998. Claims for subsequent years, however, were presented on time so those aren't at issue.

But the ruling will carry a wider impact in Indian Country because it resolves a split among the lower courts. In a different case, the Federal Circuit Court of Appeals had allowed an Alaska Native contractor to pursue out-of-time claims against the IHS, a decision that conflicted with the D.C. Circuit Court of Appeals.

By affirming the D.C. Circuit's approach in the Menominee Nation's case, the Supreme Court has essentially foreclosed all future contract support cost claims that weren't filed within six years.

Oglala Sioux Tribe President John Yellow Bird Steele at the Ramah settlement announcement in Albuquerque, New Mexico, on September 17, 2015. Photo: Bureau of Indian Affairs

At the same time, Indian Country as a whole is slowly moving past the underlying issue that prompted the litigation. Nearly 700 tribes are sharing in a $940 settlement to the Ramah case. A federal judge finalized the agreement last week and the Menominees are due to receive $2.93 million for shortfalls at the Bureau of Indian Affairs, according to a document prepared by the legal team in the Ramah case.

Both the IHS and the BIA have since agreed to fully fund contract support costs in their respective budgets. Congress has adopted the approach in the fiscal year 2016 omnibus appropriations act that became law last month.

Additionally, the Obama administration is seeking to make contract support costs a mandatory part of the budget rather than discretionary. Congress has not agreed to that proposal so far.

Supreme Court Decision:
Menominee Tribe of Wisconsin v. United States (January 25, 2015)

Supreme Court Documents:
Oral Argument Transcript | Question Presented

DC Circuit Court of Appeals Decision:
Menominee Indian Tribe of Wisconsin v. USA (September 2, 2014)

Federal Circuit Court of Appeals Decision:
Arctic Slope Native Association v. Sebelius (November 9, 2012)

Supreme Court Decisions:
Salazar v. Ramah Navajo Chapter (June 18, 2012)
Cherokee Nation v. Leavitt (March 1, 2005)