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