The San Carlos Apache said Monday that the federal government owes it $3 million in health services, one of two tribes arguing before the Supreme Court for more support from the Indian Health Service.
But attorneys for the government argued that allowing tribes to claim additional overhead costs for the health care they provide to their members would complicate the system and ultimately drain money for Native American care in other tribes.
Caroline Flynn, an assistant U.S. attorney general, told the justices that the tribes’ argument “would lead to a fundamental change” in the law that determines how tribes are compensated for the costs they incur in providing care to their members.
Flynn said if the court sided with the tribes, it would “change the way the statute has been administered for 35 years.” What the tribes want is “a potential tripling of the federal government’s liability for contract maintenance costs and ultimately transforming what the statute defines as ordinary maintenance costs into the primary component of contract funding,” Flynn said.
That was disputed by Adam Unikowski, who spoke on behalf of the Northern Arapaho Tribe of Wyoming, which he said is seeking $1.5 million in refunds from 2016 and 2017. He said the Indian Self-Determination and Education Act (ISDA) “entitles the Tribes to reimbursement of disputed contract maintenance costs in this case” from the Indian Health Service.
“In the ISDA contract, IHS transferred to the tribe the responsibility for both collecting and spending the health care program revenues,” Unikowsky said. “So when the tribe provides health care services using program revenue, it does so as a means of fulfilling its treaty obligation to achieve the overall goals of the treaty. So act according to the contract.
At issue is the interpretation of the contract that the IHS enters into with tribes that agree to take over the work of providing health care to their members instead of the federal government. Under this deal, the government gives tribes the money it would normally spend on health care, along with additional funding to compensate tribes for the overhead costs of administering such care.
Flynn said IHS currently spends about $1 billion a year on contract maintenance costs out of a total program budget of about $8 billion.
“It stands to reason that if all of a sudden contract maintenance costs just explode, Congress will have to find the cuts elsewhere to keep the budget under the discretionary spending caps,” she said.
Several justices picked up on that theme during arguments, with Justice Brett Cavanaugh asking whether such an increase in IHS spending would ultimately hurt the overall program.
“Because Congress couldn’t cut without changing the rules, mandated spending, right, so it’s going to have to come out of the other discretionary funding?” Kavanaugh asked.
But Justice Ketanji Brown Jackson asked if the government could not simply renegotiate its treaties with the tribes in such a situation.
“If costs go up, which seems to be a big concern of yours, you explored with Judge Cavanaugh where the cuts might come from,” Jackson said. “But I wonder if there’s anything that precludes renegotiating the contracts in light of potential cost escalations of the nature you’re talking about.”
The government said the added costs could ultimately range from $800 million to $2 billion, a number the tribes said was “out of thin air” and that Judge Neil Gorsuch appeared skeptical of.
Gorsuch also questioned the government’s claim that a ruling in favor of the tribes would open the door to the potential for non-Native Americans to receive IHS-funded health care, something attorneys for both the San Carlos Apaches and the Northern Arapahos have strongly denied .
“You raised the specter that they would expand their programs to help non-Indians,” Gorsuch said. “Maybe they are free to do that – you’re right – by law. But in terms of contract support services that will be required to be paid for by the government, it appears to be limited.
Gorsuch also pointed to larger stakes in tribal health care, which he says has been long underfunded.
“There’s not enough money even to provide health care for the Indians on the reservations, and in many cases you’re working out of dilapidated old buildings. That’s what we’re really talking about,” he said.