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- By Levi Rickert
In a 5-4 decision announced today, the U.S. Supreme Court ruled in favor of Native American tribes receiving reimbursement for healthcare administration costs.
The majority ruled in favor of the two tribes — the San Carlos Apache Tribe and Northern Arapaho Tribe —that brought the Becerra, Secretary of Health and Human Services, et al. v. San Carlos Apache Tribe suit to the high court.
In the case, the court ruled tribes are entitled to reimbursement for indirect costs incurred in providing services, regardless of whether those services were paid for by the Indian Health Service (IHS) or other sources.
The majority opinion, written by Chief Justice John Roberts, found that the 1975 Indian Self-Determination and Education Assistance Act (ISDA) requires IHS to pay the contract support costs that a tribe incurs when it collects and spends program income—revenue from third-party payers like Medicare, Medicaid, and private insurers—to further the functions, services, activities, and programs transferred to it from IHS in a self-determination contract.
"If IHS does not cover costs to support a tribe’s expenditure of program income, the tribe would have to divert some program income to pay such costs, or it would have to pay them out of its own pocket," Roberts writes for the majority. "Either way, the tribe would face a systemic funding shortfall relative to IHS—a penalty for pursuing self-determination."
The opinion notes that the self-determination contracts of the two tribes mandate them to use program income to enhance the services and functions they've taken over from IHS. "When the Tribes do so and incur administrative costs, ISDA requires IHS to pay those support costs," Roberts writes.
Roberts was joined in the majority by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson. Justice Brent Kavanaugh filed a dissenting opinion, which was joined by conservative Justices Samuel Alito, Clarence Thomas, and Amy Coney Barrett.
While he did not pen the Court’s decision, Gorsuch is viewed by Indian Country as one of the most knowledgeable of the high court’s justice in Indian federal law.
The case was argued on March 25, 2024 before the Supreme Court. The case involving the San Carlos Apache Tribe was actually joined with another case, the Becerra v. Northern Arapaho Tribe case that was brought by the Northern Arapaho Tribe, located in Ethete, Wyo. Since both cases were similar, the two were consolidated into the Becerra v. San Carlos Apache Tribe.
The main issue of the case was whether the Indian Health Service (IHS) was required to pay contract support costs (CSC) not only to support IHS-funded activities, but also to support the Tribe’s expenditure of income collected from third parties.
The federal government argued that ruling in the tribe’s favor would require Congress to cut funding significantly from other sources to meet the additional CSC obligations, though it is impossible to say for sure where the cuts might come from.
IHS, as often as it has requested additional funding, has not received even a fraction of the amount that it would need to fully fund Indian health care, much less a potential increase in CSC obligations. IHS relies largely on Congress for program funding.
After Thursday’s decision was announced, the U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra released the following statement on the Supreme Court decision: “The Court has rendered its decision, and we remain firmly committed to executing our obligations under federal law and supporting tribal self-determination and sovereignty. In recognition of the potential budgetary impact of this decision, we urge Congress to act on the FY 2025 President’s Budget proposal to shift the IHS budget from discretionary to mandatory funding starting in FY 2026 to protect the overall appropriation for the Indian Health Service and create more adequate and stable funding into the future.”
The National Congress of American Indians (NCAI), the Native American Rights Fund (NARF), and the National Indian Health Board (NIHB) applauded Thursday’s decision.
“Today’s decision is a victory for Tribal Self-Determination and Tribal Sovereignty,” National Congress of American Indians (NCAI) President Mark Macarro said in a news release. “This ruling will help ensure that Tribal Nations administering healthcare services to their citizens and communities do so with the full funding to which they are entitled under federal law and their contracts with the Indian Health Service.”
John Echohawk, Executive Director of the Native American Rights Fund (NARF) agreed. “Congress passed the Indian Self-Determination Act with the purpose of empowering Tribal Nations and ensuring that tribally run healthcare programs would be on equal footing with those run by the Indian Health Service. This decision honors the commitment Congress made to Tribal Nations’ rights to self-determination.”
“Today's Supreme Court decision represents a monumental victory for Tribal sovereignty and the future health of Our People. Now, in order to honor this decision, Congress must properly include these Contract Support Costs in future appropriations to not increase the burden on an already underfunded IHS budget,” William “Chief Bill” Smith, Valdez Native Tribe, NIHB Chairman said in a statement. “This is a win for Tribal sovereignty, and now Congress must fulfill the nation's promises to properly fund healthcare for Tribal Nations. It’s well past time to properly fund the Indian Health Service—mandatory appropriations is the path to health equity and full support for Tribal sovereignty, and the time for that is now.”
The law firm Jenner & Block represented the Northern Arapaho Tribe in the case. Jenner & Block Partner Adam Unikowsky, who argued the case on behalf of the tribe, said the decision fulfills the Self-Determination Act’s promise of ensuring that Tribes that provide health care stand on an equal footing with the Indian Health Service.
“The Supreme Court’s decision will promote tribal sovereignty and provide resources for health care in under-served communities,” Unikowsky said in a statement.
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