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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 23–250 and 23–253
_________________
XAVIER BECERRA, SECRETARY OF HEALTH AND
HUMAN SERVICES, et al., PETITIONERS
23–250
v.
SAN CARLOS APACHE TRIBE
on writ of certiorari to the united states
court of appeals for the ninth circuit
XAVIER BECERRA, SECRETARY OF HEALTH AND
HUMAN SERVICES, et al., PETITIONERS
23–253
v.
NORTHERN ARAPAHO TRIBE
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 6, 2024]
Chief Justice Roberts delivered the opinion of
the Court.
The Indian Self-Determination and Education
Assistance Act (ISDA), 88Stat. 2203, 25 U. S. C. §5301
et seq., enables an Indian tribe to enter into
contracts with the Indian Health Service (IHS) to assume
responsibility for administering the healthcare programs that IHS
would otherwise operate for the tribe. To fund the tribe’s
administration of such programs, IHS must turn over to the tribe
the appropriated funds the agency would have used to operate the
programs, as well as an additional sum to cover “contract support
costs.” §5325(a). These costs are administrative expenses incurred
by the tribe that IHS does not incur when it runs the programs,
typically because the agency can rely on existing Government
resources unavailable to the tribe. The tribe may also collect
funds due from third parties—such as Medicare, Medicaid, and
private insurers—to help finance the programs. The question before
us is whether ISDA requires IHS to pay contract support costs to
support tribal programs funded by such third-party payments.
I
In 1975, Congress passed ISDA to promote
“effective and meaningful participation by the Indian people in the
planning, conduct, and administration” of federal healthcare
programs. §5302(b). Such programs provide, for instance, hospitals,
dental clinics, and ambulance services. After ISDA’s enactment, a
tribe can either continue receiving healthcare services directly
from the Federal Government through IHS, or it can assume
responsibility for administering those services itself. If a tribe
elects the latter route, ISDA obligates IHS to enter into a
“self-determination contract” with the tribe. §5321(a)(1). Under
this contract, the tribe receives funds to operate federal
healthcare programs that IHS previously operated for the tribe’s
members.
When IHS administers healthcare programs itself,
it funds its operations through congressional appropriations and
third-party insurance payments. Historically, IHS’s funding came
from “moneys as Congress may from time to time appropriate.” §13.
But in 1976 Congress enacted the Indian Health Care Improvement Act
(IHCIA), 90Stat. 1400, 25 U. S. C. §1601
et seq., to create greater parity between IHS and other
healthcare providers. After IHCIA, when IHS provides healthcare
services to a tribal member with Medicare, Medicaid, or private
insurance coverage, IHS may collect the funds due from those
third-party insurers for the services provided to the insured
tribal member. See 42 U. S. C. §§1395qq(a), 1396j(a); 25
U. S. C. §1621e(a). Congress specified that third-party
collections “shall not be considered in determining appropriations”
for IHS. 25 U. S. C. §1641(a). Third-party payments now
represent a “significant portion” of IHS’s tribal healthcare
budget—over $1.8 billion in 2024 alone. Dept. of Health and Human
Servs., Fiscal Year 2024, Indian Health Service: Justification for
Estimates for Appropriations Committees, p. CJ–193 (2023).
Healthcare programs administered by tribes under
self-determination contracts have a parallel funding structure.
First, IHS provides to the tribes the appropriated funds that IHS
would have used to operate such programs absent the
self-determination contract. ISDA specifies that this sum—called
the Secretarial amount—“shall not be less” than the Secretary of
Health and Human Services would have otherwise allocated for the
operation of the programs during the period covered by the
contract. §5325(a)(1).
Second, like IHS when it runs the healthcare
programs, contracting tribes can collect revenue from third-party
payers like Medicare, Medicaid, and private insurers. See 42
U. S. C. §§1395qq(a), 1396j(a); 25 U. S. C.
§1621e(a). ISDA calls the funds received from third-party payers
“program income” and requires that tribes use those funds “to
further the general purposes of the contract” with IHS.
§5325(m)(1). Just as third-party collections are not considered in
determining IHS’s appropriations, Congress has specified that a
tribe’s program income “shall not be a basis for reducing” the
Secretarial amount. §5325(m)(2); see §1641(a).
The Secretarial amount from IHS and program
income from third-party payers do not, however, place contracting
tribes on equal footing with IHS. Tribes incur overhead and
administrative expenses that IHS does not incur when it runs the
healthcare programs. For example, as a federal agency, IHS does not
have to pay state-mandated workers’ compensation on the salaries of
its doctors—but the tribes do. IHS can also rely on other federal
agencies, such as the Office of Personnel Management, for general
administrative functions—but the tribes cannot. They have to manage
on their own dime the auditing, insurance, financial, personnel,
and other management systems associated with providing healthcare
under self-determination contracts.
To address this systematic shortfall in funding,
Congress amended ISDA to account for “contract support costs.” IHS
is now required to cover such “reasonable costs for activities
which must be carried on by a [tribe] as a contractor to ensure
compliance with the terms of the [self-determination] contract.”
§5325(a)(2). Contract support costs eligible for repayment include
“direct program expenses for the operation of the Federal program”
and “any additional administrative or . . . overhead
expense incurred by the [tribe] in connection with the operation of
the Federal program, function, service, or activity pursuant to the
contract.” §5325(a)(3)(A). These categories of contract support
costs are recoverable so long as they do not duplicate any funding
provided through the Secretarial amount.
Ibid. Contract
support costs are limited, however, to “costs directly attributable
to” self-determination contracts. §5326. And no funds are available
for “costs associated with any contract . . . entered
into between [a tribe] and any entity other than [IHS].”
Ibid.
II
These cases involve self-determination
contracts between the IHS and two tribes: The San Carlos Apache
Tribe and the Northern Arapaho Tribe.
A
The San Carlos Apache Tribe is located on the
San Carlos Apache Indian Reservation, which was established in 1871
and encompasses 1.8 million acres spanning three counties in
southeastern Arizona. In 2011, the Tribe entered into a three-year
self-determination contract with IHS. The Tribe agreed to assume
control of and manage the Community Health Representative Program,
Emergency Medical Services Program, Alcohol and Substance Abuse
Program, Behavioral Health Services Program, Teen Wellness Program,
and Health and Human Services. App. 52. In accordance with the ISDA
“model agreement” set forth in Section 5329(c), the Tribe’s
contract incorporated “[t]he provisions of title I of [ISDA],”
i.e., the provisions applicable to self-determination
contracts, and specified that “[e]ach provision of [ISDA] and each
provision of this Contract shall be liberally construed for the
benefit of the [Tribe].”
Id., at 51.
In separate annual funding agreements
incorporated into the contract, the parties specified the amount of
funds due from IHS to the Tribe each year. The funding agreements
included a Scope of Work attachment that described the activities
the contract required the Tribe to perform. See
id., at
99–102 (FY 2013 Scope of Work). The required activities included,
among other things, “[m]aintain[ing] an efficient billing
system[ ] to maximize third party revenues” from “Medicare,
[Medicaid], Private Insurance, and IHS Contract Health Services”
and “[g]enerat[ing] maximum third party revenues for all eligible
patient transports.”
Id., at 101–102.
In 2019, the Tribe sued the Government for
breach of contract. As relevant, the Tribe contended that although
it used both the Secretarial amount and program income to operate
its healthcare programs under the self-determination contract, IHS
failed to pay contract support costs for the Tribe’s healthcare
services to the extent they were funded by program income.
Id., at 10–11. The Tribe sought roughly $3 million in unpaid
contract support costs for the three-year contract.
Id., at
16–17.
The District Court dismissed the Tribe’s claim,
observing that ISDA’s contract support cost provisions in Section
5325(a) do not mention third-party revenue.
San Carlos Apache
Tribe v.
Azar, 482 F. Supp. 3d 932, 934–935 (Ariz.
2020). The Ninth Circuit reversed and remanded. 53 F. 4th 1236,
1245 (2022). It reasoned that the Tribe’s self-determination
contract incorporated ISDA, which required the Tribe to spend
third-party program income on healthcare.
Id., at 1241–1242.
Those portions of the Tribe’s healthcare programs funded by
third-party income thus constituted “activities which must be
carried on by [the Tribe] as a contractor to ensure compliance with
the terms of the contract,” §5325(a)(2), and the contract support
costs associated with those activities were incurred “in connection
with the operation of the Federal program,” §5325(a)(3)(A)(ii).
Id., at 1241–1242. The text of ISDA, the Court reasoned,
therefore indicated that IHS was required to reimburse the Tribe
for those costs.
Id., at 1243.
The Ninth Circuit stated that, at the very
least, it could not “conclude that §5325(a) unambiguously excludes
[the] third-party-revenue-funded portions of the Tribe’s healthcare
program from [contract-support-cost] reimbursement.”
Ibid.
(emphasis deleted). The Court was also unable to conclude that
Section 5326 “unambiguously” meant that spending of third-party
insurance receipts was not “directly attributable” to the Tribe’s
self-determination contract.
Id., at 1244. Based on these
ambiguities, the Ninth Circuit applied the Indian canon and
construed the statute in the Tribe’s favor.
Id., at
1244–1245
.
B
The Northern Arapaho Tribe resides on the Wind
River Reservation, which covers more than 2.2 million acres in west
central Wyoming. In 2016, the Tribe entered into a
self-determination contract with IHS to assume control of the
reservation’s health division, the Wind River Family and Community
Health Care System. App. 124. In accordance with the model
agreement, the contract incorporated ISDA’s Title I provisions and
stated that each provision of ISDA and of the contract must be
“liberally construed for the benefit of the [Tribe].”
Ibid.
Like the San Carlos Apache Tribe’s contract, the
Northern Arapaho Tribe’s contract also incorporated an annual
funding agreement and a Scope of Work attachment. Among other
things, the Scope of Work specified that the Tribe would employ
experienced individuals, such as “third-party claims specialists,”
in a financial office; bill and collect “[i]nsurance and
[t]hird-[p]arty receivables”; “maintain accreditation standards in
order to qualify for funds through third party-payers”; secure
“Medicare and Medicaid numbers for billing purposes”; meet
requirements for “periodic renewal of accreditation or
certification” to “maintain eligibility for these funds”; use IHS’s
third-party billing system for one year to give the “Tribe time to
set up its own functioning . . . third-party billing
system”; and conduct “[q]uality assurance and all third-party
billing processes.”
Id., at 184–186.
In 2021, the Tribe sued the Government for
damages and declaratory relief. As relevant, the Tribe alleged
that, pursuant to the contract’s requirements, it had collected
third-party revenues and spent them to provide healthcare services,
yet IHS had paid no contract support costs for services funded by
such program income. The Tribe averred that it spent all of its
program income on activities enumerated in the Scope of Work, so
the income was spent as “part of the Federal program carried out by
the Tribe” under the contract.
Id., at 110–111. The Tribe
thus contended that Section 5325(a)(3)(A) required payment of
contract support costs related to the spending of those funds. It
sought approximately $1.5 million in damages for the two-year
period at issue.
Id., at 116–117.
The District Court dismissed the complaint.
Northern Arapaho Tribe v.
Cochran, 548 F. Supp.
3d 1134, 1143 (Wyo. 2021). A divided panel of the Tenth Circuit
reversed, with each of the three judges writing separately. 61
F. 4th 810 (2023). Judge Moritz voted to reverse because “the
relevant statutory provisions are ambiguous, and the Indian canon
of statutory construction resolves the ambiguity in the Tribe’s
favor.”
Id., at 812. Judge Eid also voted to reverse, but in
her view the statute unambiguously supported the Tribe’s
interpretation.
Id., at 823–828 (opinion concurring in
judgment). Judge Baldock dissented in part.
Id., at 828–830.
Although he also viewed the Tribe’s contract support costs as
reimbursable under Section 5325(a), he would nonetheless have
affirmed the District Court based on the “superseding provision” of
Section 5326.
Id., at 828–829.
We granted certiorari in both cases. 601
U. S. ___ (2023).
III
It is undisputed that IHS must pay the Tribes
the Secretarial amount and the contract support costs associated
with spending that amount to operate the healthcare programs they
assumed from IHS. It is also undisputed that the Tribes’ contracts
require them to collect program income and that IHS must cover the
cost of collecting that income. See Brief for Petitioners 21, 38.
The only question is whether IHS must also cover the contract
support costs the Tribes incur when they spend program income on
the healthcare programs.
A
The ISDA provisions that govern the amount IHS
must pay as contract support costs under a self-determination
contract are Sections 5325(a)(2) and (a)(3)(A). Both provisions peg
the amount to the requirements of the contract. Because a
self-determination contract requires a tribe to spend program
income to further the programs transferred to it in the contract,
these provisions require IHS to pay contract support costs when a
tribe does so, just as IHS must pay contract support costs to
support a tribe’s spending of the Secretarial amount.
Section 5325(a)(2) defines contract support
costs as “consist[ing]” of “the reasonable costs for activities
which must be carried on by a tribal organization as a contractor
to ensure compliance with the terms of the contract.”[
1] The touchstone for determining which
“activities” must receive contract support costs is therefore “the
terms of the contract.” It follows that if a tribe must collect and
spend program income to ensure compliance with its contract, then
the reasonable administrative and overhead costs it incurs in doing
so are “contract support costs” under Section 5325(a)(2).
The Tribes’ contracts and ISDA plainly require
them to collect program income and spend it to comply with their
contracts. Each self-determination contract entered into under ISDA
must contain the provisions of the “model agreement” set forth in
Section 5329(c). §5329(a)(1). The model agreement incorporates into
the contract “[t]he provisions of title I of [ISDA].” §5329(c)
(model agreement §1(a)(1)). Title I of ISDA includes Section
5325(m)(1), which requires tribes to use “program income earned
. . . in the course of carrying out a self-determination
contract” to “further the general purposes of the contract.”
The “purposes” of the contract are no mystery.
The model agreement requires that each self-determination contract
include a “purpose” clause listing the “functions, services,
activities, and programs” to be transferred from IHS to the tribe.
See §5329(c) (model agreement §1(a)(2)). Tribes are thus
contractually required to use program income to further the
functions, services, activities, and programs transferred to them
in their contracts. When they do so and incur reasonable costs for
required support services, those costs are “contract support costs”
under Section 5325(a)(2).
In addition to satisfying the definition set
forth in Section 5325(a)(2), those costs are also “eligible costs
for the purposes of receiving funding” under Section 5325(a)(3)(A).
That provision specifies two types of “reasonable and allowable
costs” that may be reimbursed. First, “direct program expenses for
the operation of the Federal program that is the subject of the
contract” are covered. §5325(a)(3)(A)(i). “Direct” contract support
costs include the support expenses of particular programs, such as
workers’ compensation insurance for ambulance drivers or training
for emergency room nurses. See §5304(c). Second, “any additional
administrative or other expense incurred by the governing body of
the [tribe] and any overhead expense incurred by the tribal
contractor in connection with the operation of the Federal program,
function, service, or activity pursuant to the contract” are also
eligible for funding. §5325(a)(3)(A)(ii). Such “indirect” contract
support costs encompass expenses that benefit multiple programs,
such as auditing infrastructure, personnel systems, and legal
services. See §5304(f ).
Direct contract support costs incurred when
using program income are covered because the functions, services,
activities, and programs that a tribe agrees to administer in IHS’s
stead under a self-determination contract constitute the “Federal
program that is the subject of the contract.” When IHS administers
the Federal program for the tribe’s members, it uses congressional
appropriations and third-party insurance payments to do so. See 25
U. S. C. §§13, 1621e(a); 42 U. S. C.
§§1395qq(a), 1396j(a). IHS must use the third-party collections to
provide healthcare services. See 25 U. S. C.
§§1621f(a)(1), 1641(c)(1)(B). So IHS’s Federal program comprises
congressionally funded
and third-party funded healthcare.
When that program is transferred to the tribe from IHS, the tribe,
rather than IHS, becomes the entity collecting program income and
spending it on the Federal program. The tribe’s resultant direct
contract support costs are incurred “for the operation of the
Federal program that is the subject of the contract.” Those costs
are thus eligible to receive funding under Section
5325(a)(3)(A)(i).
Indirect contract support costs that result from
spending program income must be covered by IHS for the same reason.
A tribe’s self-determination contract requires it to spend program
income on furthering the Federal programs, functions, services, or
activities it assumes from IHS. §§5325(m)(1); 5329(c). When the
tribe does so—as IHS did when it operated the program, function,
service, or activity—and incurs administrative and overhead
expenses, those expenses are incurred “in connection with the
operation of the Federal program, function, service, or activity
pursuant to the contract.” Such expenses are thus eligible for
reimbursement under Section 5325(a)(3)(A)(ii).
The self-determination contracts of the San
Carlos Apache Tribe and the Northern Arapaho Tribe go to some
length to require them to collect program income by maintaining
third-party billing systems and generating maximum third-party
revenues. See App. 101–102, 184–186. Once the Tribes collect
third-party income, they must use it. §§5325(m)(1), 5329(c). The
Tribes aver that they have collected and spent program income as
required by their contracts to carry out the operations IHS
transferred to them.
Id., at 9–11, 109–115; Brief for
Northern Arapaho Tribe 29 (“Northern Arapaho is prepared to prove
that every penny of program income was, in fact, spent on
activities enumerated in the contractual scope of work.”). The
reasonable direct and indirect contract support costs they incurred
as a result are eligible for repayment under Section 5325(a)
because they were incurred to “ensure compliance with the terms of
the contract,” §5325(a)(2), and “for the operation of ” and
“in connection with the operation of ” the “Federal program”
they assumed from IHS, §5325(a)(3)(A).[
2]
B
IHS’s obligation to pay contract support costs
is limited by Section 5326, but the limitations of that provision
do not preclude payment of costs incurred by the required spending
of program income under a self-determination contract. Section 5326
requires that IHS pay contract support costs “only for costs
directly attributable to contracts . . . pursuant to
[ISDA].” It further provides that no funds “shall be available for
any contract support costs or indirect costs associated with any
contract, grant, cooperative agreement, self-governance compact, or
funding agreement entered into between [a tribe] and any entity
other than [IHS].” §5326.
When a tribe spends program income to further
the healthcare programs it assumes from IHS and incurs contract
support costs, the costs it incurs are “directly attributable” to
the self-determination contract. Contrary to the Government’s
assertion, there is no extended chain of causation: The Tribes’
self-determination contracts require the collection of program
income. See
supra, at 5, 7. The self-determination contracts
then require the expenditure of program income. And the
self-determination contracts govern the activities on which that
income may be spent. The required contract support costs that
result are “directly attributable” to the binding terms of the
contract.
Nor are such costs “associated with” any
contract between a tribe and a third party. Those costs are instead
associated with the contract referred to in the phrase
“
contract support costs.” In other words, the costs are
“associated with” the “contract” that requires the work that
generates the costs—the self-determination contract.
A tribe’s contracts with third-party payers are
quite different. A Medicare or Medicaid provider agreement, for
example, does not generate contract support costs by specifying
which healthcare services a tribe must provide; rather, it simply
serves as a predicate for the tribe to collect program income after
it has already rendered services to a tribal member who is a
Medicare or Medicaid beneficiary. And when a tribe bills a private
insurance company for services rendered to an insured tribal
member, the tribe might have no pre-existing and ongoing agreement
with the insurance company at all.
The history of Section 5326 confirms this
analysis. Congress enacted this provision in 1998 after the Tenth
Circuit’s decision in
Ramah Navajo Chapter v.
Lujan,
112 F.3d 1455 (1997).
Ramah involved a Tribe that had
self-determination contracts with the Bureau of Indian Affairs
(BIA) for various programs, including law enforcement, and separate
contracts with the State of New Mexico for criminal justice and
juvenile offender restitution programs.
Id., at 1458–1459.
The Tenth Circuit held that the BIA was required to pay the Tribe’s
full indirect contract support costs—not only for the programs
administered under the BIA contracts, but also for those
administered under the state contracts.
Id., at 1462–1463.
The Government and the Tribes agree that Congress added Section
5326 to override
Ramah and clarify that IHS may not pay
costs incurred to support non-ISDA contracts. See Brief for
Petitioners 8; Brief for Northern Arapaho Tribe 46; Brief for San
Carlos Apache Tribe 12–14.
The direct attribution and association problems
present in
Ramah are not implicated here. In
Ramah,
the state contracts, not the BIA contracts, required the activities
that resulted in the contract support costs for the criminal
justice and juvenile offender restitution programs. Although those
costs might have had an attenuated relation to the programs
operated under the BIA contracts, they were “directly attributable”
to and “associated with” the state contracts, not the BIA
self-determination contracts. Here, the self-determination contract
itself requires tribes to spend program income to further
healthcare programming. The contract support costs tribes incur
when they do so are recoverable under Sections 5325(a) and
5326.
IV
A
The Government’s arguments to the contrary
find no support in ISDA’s text. The Government begins with the
premise that Section 5325(a)(2)’s requirement to pay contract
support costs is “tied to” Section 5325(a)(1)’s Secretarial amount.
Brief for Petitioners 21. But nothing in Section 5325(a)(2)
suggests that contract support costs are
limited to programs
funded by the Secretarial amount. In fact, Section 5325(a)(2)
defines contract support costs as tied to “the terms of the
contract,” which require tribes to fund programs with program
income. See §§5325(m)(1), 5329(c).
The Government then attempts to extend its
flawed premise to Section 5325(a)(3)(A), asserting that the
contract support costs of spending program income are ineligible
for repayment under that provision because the “Federal program”
comprises only the Secretarial amount.
Id., at 22. But
besides reciting Section 5325(a)(3)(A), the Government cites no
statutory text to support this assertion.
Ibid. And Section
5325(a)(3)(A) refers to eligible costs for the operation of the
“Federal program” without limiting that program to the Secretarial
amount.
B
Leaving the text behind, the Government argues
that the tribes should not get contract support costs for spending
program income because that would give them the flexibility to
spend such income on a broader range of activities than IHS can.
Id., at 29. But none of the Government’s cited differences
withstand scrutiny.
First, the Government says that IHS cannot offer
healthcare services to non-Indians unless the beneficiary tribe
requests it, whereas a tribe running its own programs can
unilaterally decide to offer such services.
Ibid. This
difference is irrelevant. Before either IHS or a contracting tribe
may offer healthcare services to non-Indians, both must make the
same determination: Whether such services will result in a denial
or diminution of services to eligible Indians. §§1680c(c)(1)(B),
(c)(2). And the fact that the contracting tribe can act
unilaterally in this regard is the natural result of
self-determination.
Next, the Government says that when IHS collects
Medicare and Medicaid proceeds, it must “first” use such proceeds
to ensure compliance with those programs.
Id., at 29
(quoting §1641(c)(1)(B)). But tribes also have to ensure compliance
with Medicare and Medicaid requirements using program income.
§1641(d)(2)(A).
Finally, the Government contends that while
Congress has prohibited IHS from using Medicare and Medicaid
proceeds to construct new facilities, tribes do not face this
prohibition and thereby have greater ability to expand their
operations.
Id., at 30. But to the extent that a tribe
expands its programs beyond the “Federal program,” IHS would not
have to pay contract support costs for the tribe’s new
programs.
Even if there are minor differences between what
IHS and tribes can do with program income, that should not be
surprising given ISDA’s design to provide tribes greater
flexibility in planning and implementing healthcare programs
attuned to the needs of their communities. See §5302(a). The
Government points to nothing in ISDA’s text to suggest that those
differences excuse IHS from paying contract support costs when
tribes spend program income on the programs they have assumed from
IHS.
C
As for the dissent, its central assertion is
that the support costs tribes incur when they spend program income
are not incurred in the “performance of their contracts.”
Post, at 7 (opinion of Kavanaugh, J.). But the Tribes’
contracts plainly require them to collect income from third-party
insurers. See
supra, at 5, 7. And by incorporating Section
5325(m)(1), see §§5329(a)(1), (c), self-determination contracts
plainly require tribes to use that income “to further the general
purposes of the[ir] contract[s].” The dissent complains that “the
contracts do not address how the tribes must spend their
third-party income.”
Post, at 8. But as we have explained,
the “purpose” clause of each contract describes the programs which
tribes must further using program income. See
supra, at
9–10. The support costs tribes incur when they do so are incurred
in the “performance of their contracts” to “ensure compliance with
the terms of the[ir] contract[s].”
Post, at 7;
§5325(a)(2)
. And those costs are “directly attributable” to
and “associated with” tribes’ self-determination contracts. See
supra, at 12–13. Obfuscating this straightforward reading of
the relevant ISDA provisions, the dissent points to Section 5388(j)
and the costliness of ISDA’s mandates. But Section 5388(j) does not
apply to self-determination contracts, and complaints about costs
are the domain of Congress, not this Court.
V
Aside from being inconsistent with the
statute’s text, IHS’s failure to cover contract support costs for
healthcare funded by program income inflicts a penalty on tribes
for opting in favor of greater self-determination. Congress
designed the statute to avoid such a counterproductive result.
Underlying ISDA was a congressional finding that
federal domination of Indian service programs had denied tribes an
effective voice in the planning and implementation of programs
responsive to the true needs of their communities. See §5301(a)(1).
Congress thus designed ISDA to promote “maximum Indian
participation” in the administration of healthcare programs.
§5302(a). To that end, Congress’s consistent directive to IHS is to
place contracting tribes in the same financial position as IHS, so
that tribes do not face a self-determination penalty when they take
control of their own healthcare.
When tribes enter into self-determination
contracts and assume control of IHS’s programs, they receive the
same amount of congressionally appropriated funds to run the
programs as IHS would have. See §5325(a)(1). Congress also allows
tribes, like IHS, to fund the programs with income from third-party
payers. See 42 U. S. C. §§1395qq(a), 1396j(a); 25
U. S. C. §1621e(a). To be clear, IHS needs to collect
these funds just to cover its obligations to tribal members.
Indeed, 60 percent or more of the yearly budget of some IHS
healthcare facilities relies on third-party revenues. Dept. of
Health and Human Servs., Fiscal Year 2024, IHS, at CJ–193; see also
IHS, Indian Health Manual §5–1.1(B) (2024) (“[T]hird-party billing
and collections have become critical activities for the IHS.
. . . Safeguarding this revenue stream and related assets
is vital to IHS health care programs.”). Like IHS, tribes choosing
self-determination in healthcare need to collect and spend program
income if they are to maintain the same level of services they
received from IHS. For that reason, Congress specifically
instructed IHS that program income “shall not be a basis for
reducing” a tribe’s Secretarial amount. §5325(m)(2).
Contract support costs are necessary to prevent
a funding gap between tribes and IHS. By definition, these are
costs that IHS does not incur when it provides healthcare services
funded by congressional appropriations and third-party income.
§§5325(a)(2)(A) and (B). But they are costs that tribes must bear
when they provide, on their own, healthcare services funded by the
Secretarial amount and program income. 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. Either way, the tribe would
face a systemic funding shortfall relative to IHS—a penalty for
pursuing self-determination.
* * *
The self-determination contracts of the San
Carlos Apache Tribe and Northern Arapaho Tribe require them to
collect and spend program income to further the functions,
services, activities, and programs transferred to them from IHS.
When the Tribes do so and incur administrative costs, ISDA requires
IHS to pay those support costs.
The judgments of the Courts of Appeals for the
Ninth and Tenth Circuits are
Affirmed.
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