Lindsay Whitehurst
Associated Press
WASHINGTON — The Supreme Court sided with tribes Thursday in a dispute with the federal government over the cost of health care when tribes run programs in their own communities.
The 5-4 decision means the government will cover millions in overhead costs that two tribes faced when they took over running their health care programs under a law meant to give Native Americans more local control.
Covering those costs is “necessary to prevent a funding gap,” Chief Justice John Roberts wrote in the majority opinion, joined by the three liberal justices and fellow conservative Justice Neil Gorsuch. Not reimbursing them forces tribes to “pay a penalty for pursuing self-determination.”
The Department of Health and Human Services had argued it isn’t responsible for the overhead costs associated with billing insurance companies, Medicare and Medicaid.
Paying those costs for all tribes that run their own health care programs could total between $800 million and $2 billion per year, the agency said.
“The extra federal money that the Court today green-lights does not come free,” Justice Brett Kavanaugh wrote in the dissent, which was joined by other conservative Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett. “In my view, the court should leave those difficult appropriations decisions and tradeoffs to Congress.”
The federal Indian Health Service has provided tribal health care since the 1800s under treaty obligations, but the facilities are often inadequate and understaffed, the San Carlos Apache Tribe in Arizona said in court documents.
Health care spending per person by the IHS is just one-third of federal spending in the rest of the country, the Northern Arapaho Tribe in Wyoming said in court documents. Native American tribal populations have an average life expectancy of about 65 years, nearly 11 years less than the U.S. as a whole.
Attorney Adam Unikowsky, who represented the Northern Arapaho Tribe, said the decision puts tribes on equal footing with IHS on health care and will “promote tribal sovereignty and provide resources for health care in under-served communities.”
“Today’s U.S. Supreme Court decision is a momentous victory for the Northern Arapaho people and the sovereignty of all tribes. This ruling upholds the promise of the Indian Self-Determination Act, which Congress passed with the intention of reimbursing tribes for their costs in administering health care programs. A judicial finding to the contrary would have cost our Tribe alone millions of dollars, leading to reduced services and programs that our community relies upon,” read a statement by the Northern Arapaho Business Council.
The tribes contracted with IHS to run their own programs ranging from emergency services to substance-abuse treatment. The agency paid the tribes the money it would have spent to run those services, but the contract didn’t include the overhead costs for billing insurance companies or Medicare and Medicaid, since other agencies handle it when the government is running the program.
The tribes, though, had to do the billing themselves. That cost the San Carlos Apache Tribe nearly $3 million in overhead over three years and the Northern Arapaho Tribe $1.5 million over a two-year period, they said. Two lower courts agreed with the tribes.
The Department of Health and Human Services appealed to the Supreme Court, arguing that that tribes do get some money for overhead costs but the government isn’t responsible for costs associated with third-party income.
“Today’s decision is a victory for tribal self-determination and tribal sovereignty,” National Congress of American Indians President Mark Macarro said in a statement. “This ruling ensures 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 contracts with the Indian Health Service.”
John Echohawk, executive director of the Native American Rights Fund, 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.”
U.S. Senator Brian Schatz, D-Hawai‘i, chairman of the Senate Committee on Indian Affairs, and U.S. Senator Lisa Murkowski, R-Alaska, vice chairman of the Committee, released statements.
“Nearly 50 years ago, Congress enacted the Indian Self-Determination and Education Assistance Act to promote Tribal sovereignty. The law allowed Tribes to enter into self-determination contracts and take over their health care services from IHS, with confirmation that the federal government would reimburse their incurred costs. And today, the Supreme Court affirmed IHS’s responsibility to cover all of these costs, including contract support costs. This decision is a huge win for Indian Country, and a powerful reminder of the federal government’s trust and treaty obligations to Tribal Nations,” Schatz said.
“I am encouraged by this ruling, as it affirms Tribal self-determination under the Indian Self-Determination and Education Assistance Act and recognizes that adequate resources are critical to addressing the unmet health care needs of Native people,” Murkowski said. “I have seen firsthand how self-determination improves the delivery of Indian healthcare in Alaska and across the nation. I will continue working to ensure the federal government fulfills its trust responsibility to Native peoples.”
The majority of federally recognized tribes now contract with IHS to run at least part of their own health care programming.
ICT contributed to this report.