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WEDNESDAY, APRIL 9, 2003

The Navajo Nation on Tuesday lost a second attempt to increase the amount of money needed to administer welfare programs for the largest tribal population in the country.

In a unanimous decision, a full panel of the 9th Circuit Court of Appeals rejected the tribe's funding lawsuit. Eleven judges who reheard the case, first decided a year ago, arrived at the same conclusion: welfare programs can't be contracted under the landmark Indian Self-Determination Act.

"[P]rograms or services that are 'for the benefit of Indians because of their status as Indians' must be federal programs specifically targeted to Indians and not merely programs that collaterally benefit Indians as a part of the broader population," wrote Judge M. Margaret McKeown the majority.

The dispute arose when the Navajo Nation sought to administer a Temporary Assistance for Needy Families (TANF) program. But rather than going through the Personal Responsibility and Work Opportunity Reconciliation Act, the 1996 law that shifted federal welfare programs to the states, the tribe asked for a self-determination contract.

The move would have allowed the tribe to obtain additional "contract support costs" from the federal government. The welfare act, on the other hand, contains no such provision.

But even those additional funds aren't enough to cover shortfalls that run in the millions, tribal leaders say. Based on late 1990s studies, as much as $81 million in support costs is needed in order to carry out the programs effectively.

The courts have been sympathetic to the complaints. However, they have deferred to the federal agencies, which in turn are dependent on how much money Congress gives them. The 10th Circuit Court of Appeals confronted this issue in another funding dispute involving the Cherokee Nation of Oklahoma and the Duck Valley Shoshone-Paiute Tribe of Nevada.

"As this case demonstrates, the adequacy of the funding provided for tribal indirect costs has proven to be a recurring and troublesome issue," wrote Judge Stephen H. Anderson in a unanimous November 2002 decision against the two tribes.

Like the Navajo Nation, the tribes are suing to obtain a greater pot of money to administer health programs. Last week, the tribes petitioned the Supreme Court to hear the case.

Tribal TANF programs are often tailored to meet specific needs that state welfare programs cannot. With about 26 percent of Native Americans living in poverty, more than twice the national poverty rate, advocates say tribes can better serve their own people.

"Welfare reform must work for everyone," said Sen. Max Baucus (D-Mont.), who has introduced a bill to create a special $500 million tribal TANF fund. "And it's important that tribes exercise their sovereignty to make welfare programs best fit the needs of their people."

Get the Decision:
NAVAJO NATION v. DEP'T OF HEALTH & HUMAN SERVS., No. 99-16129 (9th Cir. April 08, 2003)

Relevant Links:
Navajo Nation - http://www.navajo.org
Office of Family Assistance - http://www.acf.hhs.gov/programs/ofa
Department of Health and Human Services - http://www.hhs.gov

Related Stories:
Court rebuffs tribes on contract funding dispute (11/27)
Navajo Nation challenges contract policy (10/04)