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Supreme Court adds second Indian law case to upcoming term

Tuesday, June 30, 2015

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

The U.S. Supreme Court agreed to hear a second Indian law case today as it wrapped up a term that saw a slew of high-profile decisions.

In an order list, the justices granted a petition in Menominee Indian Tribe of Wisconsin v. US, a contract support cost case. Arguments will be heard during the court's upcoming term, which starts in October.

The move marks the third time in a decade that the court will rule on self-determination contracts. The outcome will affect how far back the Indian Health Service must go to pay tribes for contract support costs.

"[T]he question presented has great practical importance for the government’s efforts to achieve an orderly resolution of a significant number of outstanding tribal claims for contract support costs," the Department of Justice said in a May 26 brief that urged the high court to hear the case.

Indianz.Com SoundCloud: DC Circuit Court of Appeals oral arguments in Menominee Indian Tribe v. US

As of January 2015, the Obama administration settled $679 million in contract support cost shortfalls at the IHS. Negotiations continue with tribes and Alaska Native organizations and the final figure is expected to top $1 billion.

The Menominee Nation of Wisconsin is among those waiting to be paid. In 2005, the tribe submitted claims going back to contract year 1996 but some were denied due a statute of limitations in the Contract Disputes Act.

The law requires disputes to be submitted within six years. Since the tribe waited until 2005, claims for contract years 1996 through 1998 were deemed to be barred by the statute of limitations.

But the tribe believes it is entitled to a "tolling" or a pause in the deadline Its petition notes that the Supreme Court had not yet ruled in the first contract support cost case, known as Cherokee Nation v. Leavitt, until March 2005.

The D.C. Circuit Court of Appeals, however, did not agree. A September 2014 decision determined that the tribe did not present enough "extraordinary circumstances" to warrant tolling.

But both the tribe and the Department of Justice pointed out that the ruling conflicted with another one from the Federal Circuit Court of Appeals. The question will now be settled by the high court, whose last ruling on contract support costs was in Salazar v . Ramah Navajo Chapter in June 2012.

"The Federal and D.C. Circuits’ conflicting decisions, ruling on materially similar facts involving tribal claims for withheld CSC funding, result in diametrically opposed precedents," the tribe wrote in its petition.

A view of the U.S. Supreme Court. Photo by Indianz.Com

The case joins Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case, on the October 2015 docket. It marks the first time since the October 2010 term that more than one Indian law will be heard by the court.

Through the Tribal Supreme Court Project, the National Congress of American Indians and the Native American Rights Fund have been trying to keep Indian law disputes away from the justices. Since John G. Roberts took on the position of chief justice of the court in 2005, tribal interests have won just two cases and have lost nine.

The question accepted by the Supreme Court in the Menominee Nation case follows:

Whether the D. C. Circuit misapplied this Court’s Holland decision when it ruled that the Tribe was not entitled to equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act?

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

Federal Circuit 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)