Supreme Court puts off action on self-determination litigation

Monday, November 28, 2011  

The U.S. Supreme Court today declined to take action on a self-determination case but the issue remains on the docket as the Obama administration seeks resolution of a major class action filed by tribes.

The Indian Self-Determination and Education Assistance Act authorizes tribes and Alaska Native entities to enter into contacts to manage federal programs. The law requires the government to pay for the cost of the program plus associated "contract support costs."

Congress, however, has failed to provide enough appropriations to cover the contract support costs. As a result, agencies like the Indian Health Service and the Bureau of Indian Affairs have refused to fully fund all of the contracts.

In Arctic Slope Native Association v. Sebelius, the Arctic Slope Native Association entered into a contract to manage the Samuel Simmonds Memorial Hospital in Alaska. Last December, the Federal Circuit Court of Appeals ruled that the IHS was not required to pay all of the contract support costs due to a spending cap in appropriations law.

The Arctic Slope Native Association asked the Supreme Court to review the decision. The Department of Justice filed a response in opposition on October 31 but, on the same day, filed a petition in Salazar v. Ramah Navajo Chapter, a class action involving more tribes.

In May, the 10th Circuit Court of Appeals ruled that the BIA must pay all of the contract support costs owed to tribes. The decision addressed the same spending cap in appropriations law at issue in the Arctic Slope case.

The justices were due to consider the Arctic Slope petition at their November 22 conference. But the Obama administration has suggested the Supreme Court accept both cases.

The Supreme Court could be going that route, having failed to list the Arctic Slope petition on an order list today. The Ramah Navajo case is further behind in the process so it could be several months before the issue is resolved.

Separately, the Supreme Court today declined petitions in Evans v. Wapato Heritage, a lease dispute, and Lomas v. Hedgpeth, an Indian criminal defendant case.

Federal Circuit Decision:
Arctic Slope Native Association (December 15, 2010)

10th Circuit Decision:
Ramah Navajo Chapter v. Salazar (May 9, 2011)

10th Circuit sides with tribes on self-determination contracts (5/9)