News Coverage of Indian Health Service Continued Recalcitrance to Pay Contract Support Costs to Alaska Natives


One quick note: the Begich letter is addressed to all CSC claims, not just Alaska tribal claims.

On Using Indians and Tribes as Shills in the Supreme Court

I’ve defended the Office of Solicitor General in the past, lamented that despite their best efforts, they keep losing Indian cases as the tribal trustee. But lately, it seems like the SG is using Indian tribes as shills to clean up some other messes. They used the Tohono O’odham Section 1500 CFC suit to clean up that mess — they waited for years for the right case, and when the Indian cases came, that was the right time. The OSG may have thought that the tribal contract support costs cases were the right cases to clean up the mess with the Congressional Judgment Fund (they were wrong).

Now another tribe has given the government a chance to clean up another mess — attorney fees under the Equal Justice Act. The case is Pecore v. United States (Pecore Cert Petition, lower court materials here). I know next to nothing about the EJA, but if the petition is right, and there is a serious circuit split, then the government might jump right in. We’ll know at the end of next month when the response to the cert petition is due. If the government acquiesces, we must all realize they’re doing it because the petitioner is tribal. Tribal interests are at the bottom of the barrel when it comes to favored, repeat parties at the Supreme Court.

A footnote — recall the Arizona cert petition on the next major immigration case filed earlier this summer. In the lower court, when Arizona had no say in the caption, the case was called Gonzales v. Arizona. Gonzales was the lead plaintiff, and a lot of people and groups signed on. Now that Arizona has lost below, they rewrote the caption. The case is now captioned Arizona v. Inter Tribal Council of Arizona. All the rest of the respondents are listed in alphabetical order, including Gonzales, except the tribal respondents, who are listed first. If the Court hears this case, it’ll be an Indian-related case first and foremost. Arizona knows what it’s doing.

Federal Circuit Order IHS to Pay Contract Support Costs in Arctic Slope v. Sebelius (on Remand from SCT)

Here is the opinion.

Here is the Supreme Court’s GVR order.

Previous lower court order here.

Arctic Slope Native Assn. v. Sebelius Granted, Vacated and Remanded (GVR)

As we guessed earlier, in light of Salazar v. Ramah Navajo Chapter, the Supreme Court GVR’d Arctic Slope v. Sebelius this morning. The case returns to the Federal Circuit for further consideration.

Sebelius v. Southern Ute Indian Tribe was denied

The order list is here.

In other Supreme Court news:
No health care decision today.

U.S. v. Arizona (immigration law case) was reversed in part and affirmed in part.

SCOTUSBlog Recap on Ramah Navajo Chapter’s Big WIN

Here, with an excerpt on the plain English:

Plain English summary

Every contract is a deal between two parties, and both are supposed to perform their part of the deal.   That means that, if the job covered by the contract is done as it should be, then that party is entitled to be paid what has been promised.  This case involved Indian tribes that sued the government because it did not pay all of the costs it had promised to cover when the two sides made their deal for the tribe to provide education and other government-like functions for their members.   The Court ruled that a promise is a promise, even if the government doesn’t have immediately available enough money to pay all of the contractors it had promised to pay for their services.  Congress has to locate the money to cover such a promise, the Court said.

Supreme Court Affirms Patchak and Ramah

From How Appealing:

Justice Elena Kagan delivered the opinion of the Court in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, No. 11-246. Justice Sonia Sotomayor issued a dissenting opinion. You can access the oral argument via this link.

Justice Sotomayor delivered the opinion of the Court in Salazar v. Ramah Navajo Chapter, No. 11-551. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito, Jr. joined. You can access the oral argument via this link.

CourtArtist: “Low Jinks at the Court”


In a playful break of decorum a lawyer at respondent’s table stuck the quill pen that is traditionally given to counsel behind his ear. It should be noted that this occured a half-hour before the Justices would take the bench, and spectators had just begun to be seated.

The case being argued was Salazar v. Ramah Navajo Chapter.

Lyle Dennison (SCOTUSblog) Commentary on Ramah Argument


An excerpt:

No one suggested during a Supreme Court hearing that Congress had done a dumb thing in the way it has treated Indian tribes as partners (the most critical comment was that Congress had acted in a “schizophrenic” way), but sheer irrationality was what seemed to be troubling the Justices. On the one hand, Congress told the government it had to accept every contract offered by an Indian tribe to provide government services.  But, on the other hand, it said every year that the government could not pay for everything it got in return.   On Wednesday, the Court was trying to figure out what to do about that — other than simply handing the problem back to Congress (an option that did get discussed). The argument came in the case of Salazar v. Ramah Navajo Chapter, et al. (docket 11-551)

Initial Commentary on Ramah Oral Argument

A few quick comments about today’s argument. Know that I’m reading a cold transcript. All the “laughter” indicators suggest today’s argument was a jolly one.

Justices Sotomayor, Ginsburg, and Kagan asked the majority of questions, and their questions suggested some sympathy with the tribal position. Chief Justice Roberts, and Justices Kennedy, Scalia, and Breyer participated as well. Justices Alito and, as is his custom, Thomas asked no questions. If the questions were any indicator, I’d say there may be no more than three votes for the tribal position.

This is a complex, technical question that I find difficult to sort out. On one hand, the tribal interests wish to access Congress’s judgment fund in cases where a self-determination act contract is breached in that Congress has not appropriated enough funds to cover the costs of the contract. If there were a trial, tribal interests hope to prove that the Department of Interior’s practice of allocating these costs to individual tribes is arbitrary and capricious, but they cannot do that since this case comes to the Court on summary judgment.

On the other hand, the government reads the appropriations cap as an absolute bar to accessing the judgment fund, and moreover that this isn’t a contract breach case at all. The government’s briefing suggests a constitutional bar, but that question never seemed to have much salience on the argument.

Justice Scalia’s questioning suggested that a Congressional spending cap is absolute, and controls the outcome. If so, then the contract breach theory probably dissolves, and the access to the judgment fund goes with it. There may be some play in how the government allocates the money under the spending cap, but that will just put tribes against each other and the Department of Interior.

The tribal interests face a plain language problem, and Carter Phillips effort to rely on the Redbook promulgated by the Comptroller that basically says, “Don’t worry, federal contractors, everyone’s going to get paid even with a spending cap,” seemed to fall flat. Indian tribes as contractors are different because the government cannot cancel those contracts (and the history of tribal-federal relations that informs this arrangement is irrelevant to the Court).

I find it interesting and a bit unfortunate that the government and a majority(?) of the Court are willing to apply rules that are detrimental to Indian tribes because of their unique status and that of the statutory framework that applies to them. Justice Sotomayor’s questions suggest she shares that concern. I do not believe that special rules unique to tribal interests that benefit those tribes would withstand scrutiny by the Court, although we haven’t seen anything like that reach the Court lately.