Sunday, November 07, 2004
Copyright © Las Vegas Review-Journal

Indian relations at heart of case

Justices considering whether government must reimburse tribes for operating programs

WASHINGTON -- The Supreme Court on Tuesday will hear arguments in a contract dispute over federal health funding that strikes at the heart of the government's relationship with American Indian tribes.

The question before the justices is whether the Department of Health and Human Services is required to reimburse millions of dollars to the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada and the Cherokee Nation in Oklahoma for operating Indian health programs.

"At issue is whether the government has to honor its contracts with Indian tribes," said Lloyd Miller, a partner at Sonosky, Chambers, Sachse, Endreson & Perry LLP in Washington, D.C., who will argue the case for the tribes.

It is the first test of a 29-year-old law that has allowed tribes to manage their health care and other services with reimbursements from the government, attorneys said.

"It's whether the government has to treat Indian tribal contractors the same as it treats other government contractors or whether they are the special rule that lets the government off the hook," Miller said.

The Shoshone-Paiute tribes say the government owes them $3.5 million for costs incurred in fiscal 1996 and 1997.

Justice Department attorneys will represent the Department of Health and Human Services. A Justice Department policy bars its attorneys from commenting, spokesman John Nowacki said.

But the government argued in court documents that it has no obligation to pay since the law covering such payments says funding is "subject to the availability of appropriations" and there were shortfalls in the amounts earmarked by Congress.

Shortfalls ranged from $43 million in 1996 to $82 million in 1997, government lawyers said in a brief filed with the court.

If the American Indians win, the decision would affect hundreds of tribes who contract with the government, as well as other contractors. For instance, most tribes have at least one self-determination compact or contract with the Indian Health Service, according to agency spokeswoman Athena Elliott.

In a broader sense, a decision favoring the tribes would reaffirm the government's policy to foster tribal independence, according to tribal attorneys.

If the government wins, it could get out of reimbursing the two tribes for the costs they incurred, attorneys said. It also could leave other contractors questioning the reliability of government contracts.

The case is a consolidation of two lawsuits that were considered in lower courts and resulted in opposing rulings.

The dispute revolves around whether the Department of Health and Human Services must use money set aside as part of a lump-sum congressional appropriation to pay overhead expenses, like staffing and equipment, the tribes incurred.

Under the Indian Self-Determination and Education Assistance Act of 1975, tribes gained the right to enter into contracts with the government to operate federal programs.

The act allows the tribes to administer federal clinics, hospitals and other facilities and programs that were operated by the Department of Health and Human Services.

The Shoshone-Paiutes have about 1,800 members who mainly live on or near the Duck Valley Reservation in the desert of Northern Nevada and southern Idaho. Their health facilities are located in Owyhee.

Indian tribes as well as some federal government contractors are closely watching the case, said Christopher Karns, a partner in the Indian Law Practice Group of Dorsey & Whitney LLP.

"It's not an issue that lends itself to a lot of politicking," Karns said in an interview. "It's more of a straight-forward statutory construction."

The case is significant because it represents the first time the Supreme Court will examine the Indian Self-Determination and Education Assistance Act, said John Dossett, general counsel at the National Congress of American Indians.

"This is the major federal policy driving Indian affairs since the 1970s," said Dossett, who helped draft the NCAI's amicus brief in this case.

"The bigger philosophical issue is the whole relationship between the government and Indian tribes," he said. "Prior to the act, it was a paternalistic relationship. The self-determination act gives tribes control over these programs and services and, in a lot of ways, it's what gives them control over the reservation."

Besides the tribes, the case has implications for businesses and other groups contracting with the government, said Miller, the tribal attorney.

"It's a good court for this case," Miller said. "The court is, on the whole, very sensitive to the concerns of contractors dealing with the government and the need to assure contractors that their contracts with the government are as enforceable as contracts with anyone else."