indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Sovereignty and E-Commerce:  Innovating and Reshaping the  Borders of Indian Country - Arizona State University Third Annual Tribal Government E-Commerce CLE Conference
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Supreme Court to resolve self-determination dispute
Tuesday, March 23, 2004

The U.S. Supreme Court on Monday agreed to hear a dispute over a federal funding policy that tribes say is costing them hundreds of millions of dollars.

Lawsuits over contract support costs have been brought by a handful of tribes but the issue affects all of Indian Country. This year alone, tribes who manage federal programs will run up against a $142 million shortfall, according to estimates from the National Congress of American Indians.

"If the U.S. has a contractual relationship with anybody out there in the U.S., it honors those contracts," Ron Allen, the treasurer of NCAI and chairman of the Jamestown S'Klallam Tribe of Washington, said last month. "Today, the U.S. is not honoring the full contracts that it has with existing tribes."

Over the last 30 years, tribes have taken over programs previously managed by the Bureau of Indian Affairs and the Indian Health Service. But tribes have long questioned whether they are receiving enough support funds to effectively carry out the programs.

In a case brought by the Cherokee Nation of Oklahoma, the Federal Circuit Court of Appeals ruled that the tribe is owed full support costs for administering IHS programs. The unanimous decision, issued by a three-judge panel in July 2003, held the Department of Health and Human Services liable for failing to pay.

The ruling conflicted with an earlier one from the 10th Circuit Court of Appeals. A three-judge panel in November 2002 said the Cherokee Nation and the Duck Valley Shoshone-Paiute Tribe of Nevada will have to live with the funding shortages.

In agreeing to resolve the dispute, the Supreme Court consolidated both cases. The Bush administration at first opposed review of the 10th Circuit case but changed its mind after losing in the Federal Circuit.

The dispute is rooted in the landmark Indian Self-Determination and Education Assistance Act. The law, passed in 1975, authorizes tribes to enter into contracts to manage BIA and IHS programs.

The law dictates that tribes receive no less than the amount the government would have spent on the programs. It also requires the government to provide tribes with additional funds needed to carry out the contracts.

In briefs to the high court, the Department of Justice says the federal agencies are at the mercy of Congress when doling out the contract support costs. Government lawyers cite two limits: the amount Congress appropriates for the contracts; and a restriction on "reprogramming," or shifting other funds, to cover any shortfalls.

"Those limits reflect the fact that self-determination agreements are not government procurement contracts -- they are not purchases for the federal government," one brief stated. "Instead, they are governmental funding arrangements under which the tribes are substituted for a federal agency both in furnishing governmental services and in receiving federal funding for that purpose."

The Federal Circuit ruled that this line of thought wasn't an adequate defense for the Secretary of Health and Human Services, who oversees the IHS. "We cannot agree that the Secretary had discretion to refuse to reprogram to meet his contractual obligations," wrote Judge Timothy B. Dyk.

The 10th Circuit, on the other hand, deferred to agency discretion, which is based on the Congressional limits. "This court finds the contracts at issue are conditioned on the IHS having sufficient funding," wrote Judge Stephen H. Anderson.

Tribes have not had luck in pressing their views before the Supreme Court. Since 2001, Indian interests have lost the overwhelming majority of cases that reach the justices.

An avenue out of a potential negative decision is already being pursued by tribal leaders. NCAI is urging members of Congress to amend existing law in order to fund contracts fully.

"It is time to change the system for funding these government contracts," NCAI president Tex Hall wrote in a November 7 letter to the Senate Indian Affairs Committee and the House Resources Committee. "Indian tribes should no longer be treated as 'second class' contractors."

Lower Court Decisions:
Fed Circuit: Thompson v. Cherokee Nation (July 3, 2003) | 10th Circuit: Cherokee Nation v. Thompson (November 26, 2002) |

Relevant Documents:
Docket Sheet No. 03-853: Thompson v. Cherokee Nation | Docket Sheet No. 02-1472: Cherokee Nation v. Thompson | Department of Justice Petition No. 03-853 | Department of Justice Supplemental Brief No. 02-1472

Related Decisions:
9th Circuit: Shoshone-Bannock v. Thompson (October 16, 2001) | 9th Circuit: Navajo Nation v. HHS, No. 99-16129 (April 8, 2003)

Relevant Links:
Contract Support Costs, NCAI - http://www.ncai.org/main/pages/issues/
governance/contract_support.asp

Related Stories:
Supreme Court weighs self-determination dispute (03/09)
Court rules tribe owed self-determination funds (07/07)
Appeals court turns down Navajo Nation again (04/09)
Court rebuffs tribes on contract funding dispute (11/27)
Navajo Nation challenges contract policy (10/04)

Copyright © 2000-2004 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Tribes mount another fight after Trump approves another pipeline (3/24)
Native Sun News Today: Navajo elders continue long fight on land (3/24)
Editorial: Just another day of trying to keep up with the Trumps (3/24)
Elizabeth LaPensée: Video games encourage indigenous culture (3/24)
Mary Annette Pember: Native women work with youth offenders (3/24)
Tiffany Midge: Trump continues to conjure hero Andrew Jackson (3/24)
John Kane: Seneca Nation money train coming to end in New York (3/24)
Grand Ronde Tribes secure approval of school mascot agreement (3/24)
Editorial: Federal recognition for tribes in Virginia is long overdue (3/24)
Seneca Nation ends casino payments after sending $1.4B to state (3/24)
Appeals court hears slew of Indian cases amid focus on nominee (3/23)
Internal tribal disputes continue to trip up federal court system (3/23)
Mark Trahant: Indian health care gains ignored in political debate (3/23)
Native Sun News Today: Young fighters maintain Lakota tradition (3/23)
Ivan Star Comes Out: America loses its self-respect and humanity (3/23)
Rosalyn LaPier: Why water remains sacred to indigenous peoples (3/23)
Winona LaDuke: North Dakota spreads filth about water protectors (3/23)
Harold Monteau: Tribal governments are abusing their own people (3/23)
Alex Jacobs: Donald Trump in middle of the 'deep state civil war' (3/23)
Secretary Zinke announces 'doggy days' for Interior Department (3/23)
Keystone XL Pipeline route crosses Ponca Tribe's forced removal (3/23)
Indian lawmaker resigns after being charged for child prostitution (3/23)
Pinoleville Pomo Nation buys site of long-delayed casino project (3/23)
High court pick acknowledges poor treatment of 'sovereign' tribes (3/22)
Dakota Access submits another status update entirely under seal (3/22)
Court allows claim for alleged underpayment in Cobell settlement (3/22)
South Dakota tribes continue to extend Class III gaming compacts (3/22)
Cowlitz Tribe secures approval to offer liquor as casino debut nears (3/22)
Native Sun News Today: Community project continues at Pine Ridge (3/22)
Cronkite News: Copper mine on sacred site complains about delays (3/22)
Mary Annette Pember: Awareness for missing and murdered sisters (3/22)
Stacy Pratt: Visiting the gravesite of Andrew Jackson in Tennessee (3/22)
Murder charge filed for fatal shooting of Navajo Nation police officer (3/22)
Muckleshoot Tribe still seeking answers for fatal shooting by officer (3/22)
Hopland Band submits claim for county raid of marijuana operation (3/22)
Chukchansi Tribe sued for $21M by gaming development company (3/22)
Seminole Tribe accused of breaking contract with outlet at casino (3/22)
Indian Child Welfare Act survives attack from conservative groups (3/21)
Senate Committee on Indian Affairs schedules hearing on diabetes (3/21)
Ponca Tribe hosts 282-mile walk to retrace trail of forced removal (3/21)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.