A view of the U.S. Supreme Court. File Photo © Indianz.Com
Tribal Chairmen take on ‘The Bureau'
By Karin Eagle
Native Sun News Staff Writer RAPID CITY — At a recent meeting of the Great Plains Tribal Chairman’s Association (GPTCA) in Rapid City, tribal leaders and other representatives met to discuss testimony strategies for a “consultation” with representatives of the Bureau of Indian Affairs (BIA). Attorney Michael Gross was present on the day of the meeting with the BIA which was held on Aug. 19. He was the attorney for Ramah School and Oglala which covered the 20 year law suit that received a favorable ruling from the Supreme Court and found the government at fault. Salazar v. Ramah Navajo Chapter, 567 U.S. (2012), was a United States Supreme Court case in which the Court held that the United States government, when it enters into a contract with a tribe for services, must pay contracts in full so long as funds are available, regardless of whether sufficient funds are available to pay all such contracts. This case was litigated over a period of 22 years, beginning in 1990, until it was finally decided in 2012. Contract support costs (CSC) are defined under the Act as an amount for the reasonable costs for those activities that must be conducted by a tribal contractor to ensure compliance with the terms of the contract and prudent management. They include costs that either the Secretary never incurred in her direct operation of the program or are normally provided by the Secretary in support of the program from resources other than those under contract. It is important to understand that, by definition, funding for contract support costs is not already included in the program amounts contracted by tribes. The Act directs that funding for contract support costs be added to the contracted program to provide for administrative and related functions necessary to support the operation of the health program under contract. Some of the issues that the participants at the GPTCA working group determined to be the most imperative to address included tribes and schools having to rely on program funds to cover CSC. GPTCA stated in a recent resolution that the settlement funds in the Ramah case, which have still not been paid to the tribes, must come from the judgment funds and not program funds. The discussion was also set to address the current CSC and existing Indirect Cost negotiations. Tribes are being limited to low Indirect Costs and it appears the government is still limiting the tribes for contracts. Tribal discussions which included Finance Officers and Auditors have recommended an updating of the entire CSC or Indirect Costs System was also supposed to be addressed. There are discrepancies among all the contracts that Tribes have including variances among tribes for negotiation of Indirect Costs Rates and long delays on notification of what the Indirect cost Rate should be. A series of consultations between tribes and the Department of Interior were ordered by Congress. They were intended to pave the way for a permanent resolution of the contract support costs issue. However, only for 2014 and 2015 did Congress require the two agencies to pay full CSC. The consultation began with a round of introductions following a prayer offered by Cleve Her Many Horses. The BIA representatives began with a power point presentation that presented the questions that other tribes had posed at previous consultations. This was not something that appeared to sit well with the current participants. Many questions were voiced as to why other tribe’s questions were presented in place of the GPTCA’s concerns. The consultation fell apart once people started to comment on why no court reporters or any other manner of recording of the proceedings. The participants of the consultation peaceful, but united, stood and exited the room, ending the meeting. “While we think Congress' aim is to stabilize full funding of CSC, the committee's directive does not say that, “says Gross, “The naked command could therefore lead to a retraction of the full funding promise now in ISDA. In other words there is a real risk that the agencies may still win this fight after all.” “Caps (or mini-caps, one for each contractor as tried in 2013) may be reinstated with a built-in legal wall preventing contracting tribes from ever receiving enough CSC to maintain programs at their Secretarial level. That would nullify the Supreme Court victory, “ continued Gross “It would kill the Parity-of-Service-Opportunity as between contracted and non-contracted programs at the heart of the self-determination idea presented by President Nixon to Congress in 1970. The bureaucracies would have won.” “Indian Country would have succeeded in court but lost the war, “concluded Gross,” The one-sided colonial relationship between the U.S. and Indian tribes would go on indefinitely.” Gross explained that CSC are overhead monies and forcing tribes to take program monies to pay overhead from their programs diminishes program levels and quality of service; that is exactly what has been happening since the capped appropriations for CSC were hatched in 1994 (BIA) and 1999 (IHS). Gross addressed the meeting hours before the BIA consultation, encouraging the tribal leaders to consider the options available that should be emphasized. One fix, according to Gross, is to create a permanent and indefinite fund for CSC to be available to pay full CSC no matter the size of annual appropriations for Indian programs. The idea would be to remove CSC from the annual budget wars. Another strategy would be to call for a complete annual accounting of the Secretaries' expenditures for BIA and IHS programs and services. Such an accounting should include expenditures called "inherent Federal functions" which have never been systematically measured. It would include the Secretaries' in-house overhead costs for running in-house operated Indian programs. It would also include an accounting of how much in-kind assistance the Secretaries receive from other agencies, such as GAO vehicles, employee benefits, legal services, etc. These amounts represent savings to the agencies when tribes take over program operation. Gross concluded his rallying efforts by stating that, “The Upper Mid West Tribes, and Indian Country generally, should request immediate hearings by the Senate and House committees overseeing Indian affairs on the future of CSC and Indian self-determination generally, including the outrageous, unauthorized aggrandizement of power over Indian education by the Bureau of Indian Education.” “That agency is usurping self-determination rights of local as well as tribal schools all over the country,” said Gross, “It must be stopped.” However, the “consultation” did not go according to what many of the participants believed. Considering that there were no BIA leaders, only representatives, at the meeting, many of the tribal representatives questioned the actual validity of the event as a true consultation. Oglala Sioux Tribe (OST) chairman Bryan Brewer spoke of attending previous “consultations” by himself and others from the OST council. Those meetings were walked out of by participating tribes due to the false belief that actual negotiations would be held with the BIA. Brewer suggested that this might also be the case at this meeting and suggested that participants not sign in as speakers or participants. Gross recommended that due to the fact that a person who did not sign in they would not be recognized as having attended in any historical accounting of the consultation series. Gross offered the option of making a stand even in the signing process by writing the participants name and adding the phrase “Under protest, do not consider this a consultation”. Nearly every single participant signed the paper, whether they intended to speak or not, in this manner. The resolution that the GPTCA has issued regarding CSC concludes with a powerful call to President Obama:
BE IT FINALLY RESOLVED, that President Obama has announced “To honor treaties and recognize tribes' inherent sovereignty and right to self-government under U.S. law, it is the policy of the United States to promote the development of prosperous and resilient tribal communities,” and under the Obama Policy, the Departments of the Interior and HHS should honor Public Law 93-638 Contract Support Costs as an essential part of Indian Self-Determination and tribal self-government. BE IT FINALLY RESOLVED that this resolution shall be the policy of the Great Plains Tribal Chairman’s Association unless and until withdrawn by subsequent resolution. Resolution No. 4-2-7-14.The GPTCA can be contacted by mail at PO Box 988, Rapid City, SD 57701 with the physical address being 321 Kansas City Street, Rapid City, SD 57701; or by phone at (605) 721-6168. Their fax is (605) 721-6174. (Contact Karin Eagle at staffwriter@nsweekly.com) Copyright permission Native Sun News
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