For over 20 years, tribal contractors have fought with the United States to be paid the full administrative costs of their contracts, like other government contractors. The Supreme Court has affirmed that the requirement to pay the full amount of contract support costs due to tribes and tribal organizations under the Indian Self-Determination and Education Assistance Act (ISDEAA) is a binding legal obligation on the part of the federal government. Nevertheless, funding for CSC has historically been appropriated on a discretionary basis, leading to decades of implementation challenges and litigation that has twice put the question of the federal government’s liability for unpaid contract support costs before the Supreme Court. It is time to square the appropriations process with the mandatory nature of contract support costs under substantive law: funding for contract support costs must be appropriated on a mandatory basis.

The United States Supreme Court has twice considered the United States’ responsibility to pay contract support costs to contracting tribes and tribal organizations under ISDEAA contracts. In both instances, the Supreme Court has held that due to the legally binding nature of an ISDEAA contract, a tribal contractor has the right to recover its promised contract support costs in full - even if the contracting agency underpaid those costs due to aggregate restrictions on amounts allocated by the agencies or appropriated by Congress for payment of contract support costs.