Feds Must Fund Native American Services

DENVER (CN) - The 10th Circuit has reversed a lower court's ruling that blocked Native Americans' attempts to recover self-governance funding that the federal government says they are due each year, but hasn't paid in full since 1994.

The nearly two-decade old fight pitting the plaintiff class of Indian tribes and organizations including Navajo, Sioux and Zuni affiliates against the defendant federal government was an effort by Native Americans to recover funding used for law enforcement, economic development and natural resource management on their lands.

The funds were protected by the Indian Self-Determination and Education Assistance Act (ISDA), the plaintiffs argued, which mandates that the government enter into contracts with tribes and tribal organizations "for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law."

The Act provides for contract support costs (CSCs), or "reasonable costs for activities that must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management."

Congress mandates that all self-determination contracts are fully funded, but has failed to sufficiently appropriate CSC funds every year since 1994, the plaintiffs argued, "instead capping appropriations at a level well below the sum total of CSCs."

According to the plaintiffs, "Contracts for programs absolutely essential to self-government, such as law enforcement, economic development, and natural resource management, have become 'unworkable.'... As a result, several tribes and tribal organizations brought suit seeking to collect the promised, but unappropriated, CSCs."

The government fought against the claims to recover funding and cited the phrase "subject to the availability of appropriations," included in both the ISDA and all self-determination contracts.

The phase "unambiguously eliminates the government's obligation to pay CSCs unless Congress appropriates funds to pay all CSCs on every self-determination," the government argued.

The plaintiffs argued that the sufficient funds existed to cover all contract costs, and they countered that the phrase must be interpreted from the perspective of an individual contractor, not by reference to all contractors who might lay claim to a given appropriation.

A three-judge appeals panel agreed with the tribes.

"Following a recent Supreme Court case addressing a nearly identical issue, we conclude that plaintiffs' interpretation is reasonable," Judge Carlos Lucero, writing for the appeals panel, ruled.

According to Cherokee Nation of Oklahoma v. Leavitt, "if the amount of an unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations that exhaust the funds."

"We hold that the government remains liable because the annual CSC appropriations were sufficient to cover any individual contract," the panel ruled.

Lucero and Judges Monroe McKay and Harris Hartz reversed the district court's order of summary judgment in favor the government and remanded the lawsuit for further proceedings.

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