U.S. Must Cover Tribal Funding Shortfalls

     (CN) – The government must cover 17 years worth of funding shortfalls meant to support programs that help Native American tribes, the Supreme Court ruled Monday.



     Though the Interior Department is supposed to pay tribes for activities they conduct in compliance with the Indian Self-Determination and Education Assistance Act (ISDA), Congress has capped the appropriations since 1994 at a level well below the sum total.
     No longer able to support their programs because of the funding shortfalls, the Ramah Navajo Chapter, Oglala Sioux Tribe and Pueblo of Zuni filed a federal class action. The complaint seeks to recover contract-support costs (CSCs), named for the self-determination contracts between Indian tribes and the United States.
     A New Mexico federal judge sided with the government on the basis of the phrase “subject to the availability of appropriations,” included in both the ISDA and all self-determination contracts. The court held that this language eliminates the government’s obligation to pay contract-support costs unless Congress appropriates funds to pay all costs on every self-determination costs.
     But the 10th Circuit reversed last year, finding that the language “only Congressional funding decisions – not discretionary allocation decisions made by an agency – can render an appropriation unavailable.”
     “We hold that the government remains liable because the annual CSC appropriations were sufficient to cover any individual contract,” Judge Carlos Lucero wrote for a three-judge panel.
     The U.S. Supreme Court affirmed, 5-4, on Monday.
     “When an agency makes competing contrac­tual commitments with legally available funds and then fails to pay, it is the government that must bear the fiscal consequences, not the contractor,” Justice Sonia Sotomayor wrote for the majority.
     “As the government points out, the state of affairs re­sulting in this case is the product of two congressional decisions which the BIA has found difficult to reconcile,” she added. “On the one hand, Congress obligated the secretary to accept every qualifying ISDA contract, which includes a promise of ‘full’ funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay in full each tribal contractor. The government’s frustra­tion is understandable, but the dilemma’s resolution is the responsibility of Congress.”
     To rectify the situation, Congress could stop requiring the BIA to enter into self-determination contracts, according to the court. Congress could also let the BIA pay less than the full amount of contract support costs, or pass a moratorium on the formation of new self-determination contracts, or make line-item appropriations, or appropriate more funds to cover the costs.
     “The desirability of these options is not for us to say,” the 18-page decision states. “We make clear only that Congress has ample means at hand to resolve the situation underlying the tribes’ suit. Anyone of the options above could also promote transparency about the government’s fiscal obligations with respect to ISDA’s directive that contract support costs be paid in full. For the period in question, however, it is the govern­ment – not the tribes – that must bear the consequences of Congress’ decision to mandate that the government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but ‘insufficient to pay all the contracts the agency has made.'”
     A seven-page dissent says that the majority’s “conclusion cannot be squared with … unambig­uous restrictions on the payment of contract support costs.”
     “Only if appropriations were ‘available’ may the tribes hold the government liable for the unpaid amounts,” Chief Justice John Roberts wrote, joined by
     Justices Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito.
     “The fact that the secretary could have allocated the funds to the other tribe is irrelevant,” Roberts added (emphasis in original). “What matters is what the secretary actually does, and once he allocates the funds to one tribe, they are not ‘available’ to another.”

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