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Campbell says agencies afraid of helping tribes
Friday, April 30, 2004

For the second time in two weeks, Sen. Ben Nighthorse Campbell (R-Colo.) is upset over the federal government's response to bills aimed at helping tribes.

At a packed hearing on Wednesday, the retiring senator criticized the Bureau of Indian Affairs (BIA) and the Indian Health Service (BIA) for opposing his contract support costs bill. He blamed Washington, D.C., bureaucrats for keeping tribes from exercising self-determination.

"An awful lot of agencies in Washington are scared to death of any kind of change that might benefit tribes," the chairman of the Senate Indian Affairs Committee said. "They always give us this kind of doublespeak [on] how they want to do things to help Indian people but when it comes down to supporting a bill to help Indian people, somehow they find a way to oppose the damn bill."

Campbell has received support from Indian Country for S.2172, the Tribal Contract Support Cost Technical Amendments of 2004. The bill would ensure that tribes receive full funding for contracts to manage BIA and IHS services. Currently, the two agencies don't provide all support costs to tribes.

"We firmly believe that the way the federal government is dealing with the tribes is a discriminatory policy," said Ron Allen, the chairman of the Jamestown S'Klallam Tribe of Washington. "Nowhere else in this government ... do they treat contractors like they do Indian tribes."

But representatives of the BIA and the IHS said they opposed Campbell's solution even as they admitted that existing law is confusing. The bill, in fact, resolves the inconsistency the two agencies referred to in their testimony.

"If this is not the answer, what is?" Campbell asked.

"If [the mission of] the Department of Interior and the Indian Health Service .. is to try and help Indians," he added, "we are not doing a very good job of it. It's as simple as that."

Dr. Charles Grim, director of the IHS, testified that the agency supports the policy of self-determination. He said that about $1.5 billion of the IHS budget is managed directly by tribes.

Yet he acknowledged that, of that mount, only 19 percent is in the form contract support costs. That means tribes and tribal organizations only receive 81 percent of the funding needed to carry out health programs. Grim argued that providing 100 percent would force the IHS to take away money from other Indian programs.

William Sinclair, the director of the BIA's Office of Self-Governance and Self-Determination, raised similar concerns. He added that 100 percent funding would create an "entitlement" for tribes although the bill includes a disclaimer against entitlements.

Campbell said the bill would not pass without the Bush administration's support. He added that Republican and Democrat administrations have fought similar proposals in the past.

The inaction means that the U.S. Supreme Court will likely be the final arbiter in the matter. This fall, the justices will hear oral arguments in a contract support case brought by the Cherokee Nation of Oklahoma, whose principal chief Chad Smith testified on Wednesday.

The Federal Circuit Court of Appeals ruled that IHS owed the tribe $8 million in damages for failing to pay full support costs. But the 10th Circuit Court of Appeals, in a related case, said the tribe was not owed any money.

"An obligation does not have the same definition in Indian Country as it does in the rest of the contracting world," Smith said. "We find that a bit peculiar."

Campbell's bill includes a provision that would not upset the tribe's damage award should the Supreme Court uphold the lower court ruling. The provision would apparently not authorize an award if the tribe loses either.

At a hearing last week, Campbell was upset with the BIA's "unhelpful" response to his federal recognition bill. He also lashed out at assistant secretary Dave Anderson for not attending the hearing.

"I'm a little disappointed [in Anderson]," Campbell said last Wednesday. "He seems to have taken a hike on us. He's just not around most of the time when he should be."

Anderson did not appear before the committee this week either because he was traveling out West. Previously, Campbell criticized Grim for not wanting to testify for a hearing on the IHS budget. At a consultation session with tribal leaders later on Wednesday, Grim made a point to note that he was at the hearing.

Get the Bill:
Tribal Contract Support Cost Technical Amendments of 2004 (S.2172)

Hearing Testimony:
Written Statements | Real Video

Contract Support Cost Litigation:
Sonosky, Chambers, Sachse, Endreson & Perry

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