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  • Courts and Indian Country Legal progress in an era of self-determination

    Steven Boos Enlarge photo

    Steven Boos

    The relationship between the federal government and Native American communities has swung wildly from extreme to extreme, with policies concerning Indians usually in place only long enough to wreak havoc on tribes and individual Indians before being declared a failure and a new – and sometimes completely opposite – policy being implemented.

    Attempts to exterminate Indians gave way to the indifference of the Reservation Period and the loss of significant tribal lands through the Allotment Era. In the late 1920s, Congress commissioned a report that deemed that approach a complete failure and led to the passage of the Indian Reorganization Act, which supported the adoption of tribal constitutions that still guide the operation of many tribal governments, including the Southern Ute Indian Tribe.

    Despite these efforts to support tribes as governments, in the 1950s, federal policy drastically shifted back to eliminating tribal governments, during which time some tribes lost their legal status as tribes, many Indians were relocated to urban centers in the hope that they would lose their Indian identity and state jurisdiction was extended over Indian lands.

    Once again, this approach was determined to be a disaster for tribes – President Nixon called it “wrong” – and was largely abandoned by the late 1960s.

    A major policy shift toward strengthening tribes occurred through the adoption of the Indian Self-Determination Act (Public Law 93-638) in 1975. The ISDA (or “638” as it is known in Indian Country) stated that Indian communities could contract with the United States to take over and run any federal program providing services to Indians. In theory, the federal bureaucracies providing such services, primarily the Bureau of Indian Affairs and the Indian Health Service, would fade away as Indian communities took over the functions of these agencies.

    Where this transition has occurred, Indian communities have shown a remarkable ability to redesign and improve the often archaic services provided by federal agencies. For example, Indian-run health-care programs have been able to provide physicians and clinics in such remote locations as Navajo Mountain, where the IHS never provided such services. Indian communities have also proved much more effective in financial management of these programs.

    Despite these successes and the good intentions of the self-determination policy, its effectiveness has been hampered by some of those charged with implementing it.

    The problem at the heart of this transition has always been that the federal bureaucrats who were responsible for transferring programs to the control of Indian communities were the very people who would lose their jobs if the ISDA was successful. Consequently, there has been 40 years of resistance and foot-dragging by the agencies, requiring Congress to step in repeatedly to amend the ISDA and take action to ensure that the agencies did their jobs in transferring programs to Indian communities.

    One of the main struggles has been over a type of funding called contract support costs, or “CSC.” Under the ISDA, Indian communities that contract to take over a federal program receive money to ensure that Indian communities do not need to divert direct service funds to pay for administrative functions that the federal government was able to provide through other means.

    The federal agencies have never taken steps to ensure that Indian communities received 100 percent of the CSC funds stated in their ISDA contracts. Tribes have fought for decades to receive the money that the government promised, in writing, to pay in the ISDA contracts. In response, the federal agencies have argued that, unlike their relationships with other federal contractors, they do not have to keep their contractual promises to Indians and can simply choose not to pay.

    In other cases, the agencies have tried to force language into ISDA contracts, against the wishes of the Indian communities and in clear violation of the mandate of the ISDA, through which the Indian communities would forever give up their claims to CSC funding.

    The federal courts have repeatedly rejected agency efforts to eliminate adequate CSC funding for Indian communities. June 18 saw a new decision from the United States Supreme Court, in a case called Salazar vs. Ramah Navajo Chapter. In that case, the court told the federal agencies that if Congress appropriates enough money to pay the amount owed by the government for an ISDA contract, the agencies must pay 100 percent of that amount.

    In a related case, on June 25, the high court turned down the government’s petition seeking review of the 10th Circuit Court of Appeals decision in Sebelius vs. Southern Ute Indian Tribe. The Court of Appeals had ruled in favor of the Southern Ute tribe and held that the agencies could not force an Indian tribe to accept ISDA contract language giving up a statutory right to CSC funding. By refusing to review that decision, the Supreme Court upheld the lower court’s ruling.

    Although Indian Country still faces challenges in this era of self-determination, these cases mark great victories for Indian communities and support the efforts of many tribes to operate their own programs free from the often overbearing hand of the federal government.

    Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at sboos@mbssllp.com.

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    Cliff Vancura/Durango Herald