The federal government doesn’t give tribal health agencies enough money to administer how they spend federal and private insurance reimbursements, the U.S. Supreme Court ruled Thursday.
The Northern Arapaho Tribe of Wyoming and the San Carlos Apache Tribe of Arizona sued Indian Health Services (IHS) in recent years, saying the IHS hasn’t been paying them enough money to administer spending of Medicare, Medicaid and private insurance moneys in tribal-run health agencies.
The Northern Arapaho Tribe had asked for $1.5 million in damages from the federal government in its 2021 lawsuit. The San Carlos Apache Tribe had asked for $3 million in unpaid contract support costs.
The U.S. Supreme Court sided with both tribes against the federal government in a 5-4 decision Thursday, saying the law supports IHS giving the added money to the tribes, and that failing to do so will discourage tribes from running their own health agencies in lieu of IHS.
A ‘Legal Triumph’
The Northern Arapaho Tribe issued a celebratory statement.
“This legal triumph is the culmination of work by many Northern Arapaho officials, staff members and legal representatives,” said the Northern Arapaho Business Council, which is the tribe’s executive governing body, in a Thursday statement. “We thank Wind River Family & Community Health Care CEO Richard Brannon for bringing the idea of this legal challenge to our attention, as well as our entire legal team — including outside counsel with the firms of Jenner & Block and Hobbs, Straus, Dean & Walker who assisted in taking this issue to the 10th Circuit Court of Appeals and, ultimately, the Supreme Court.”
Chief Justice John Roberts delivered the majority opinion. He said not covering administrative costs of spending outside insurance funds runs contrary to the 1975 Indian Self-Determination Act, which was designed to give tribes more sovereignty over their programs.
Also, “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,” wrote Roberts. “Congress designed the statute to avoid such a counterproductive result.”
Federal entities often run tribal programs such as health care and police agencies, but tribes can and do take over those operations if they wish.
Dissent
Justice Brett Kavanaugh authored the dissent, joined by Justices Amy Barret, Clarence Thomas and Samuel Alito.
He said it defies the prevalent understanding and practical systems in place for three decades to have the IHS pay for tribes overhead and administration costs of spending third-party funds.
“And Congress has never turned that consistent Executive Branch practice,” wrote Kavanaugh. “The extra federal money that the Court today green-lights does not come free.”
The federal government estimates that adopting the tribes position could cost between $800 million and $2 billion annually, and potentially billions more in retroactive payments, Kavanaugh added.
Currently, Congress appropriates about $8 billion annually for American Indian health care.
Kavanaugh argued that if Congress doesn’t add more money to IHS the court’s decision will lend favor to tribes rich enough to get their own health care agencies off the ground, transferring money from poorer tribes to richer tribes.
The decision will drain other Congress-funded programs as well, Kavanaugh wrote, adding that the decision should have been made by the legislative branch.
Correction - an earlier version of this story said the Northern Arapaho Tribe had requested $150 million, but the figure is $1.5 million.
Clair McFarland can be reached at clair@cowboystatedaily.com.
