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Tribal Contracts Must Be Honored—Permanently

Senator Mark Begich
7/29/14

Most Americans know of the broken treaties that scar the history of the United States’ treatment of its First Peoples. Many do not know of more recent broken promises.

For years, the federal government systematically breached its contracts with Indian tribes under the Indian Self-Determination and Education Assistance Act (ISDEAA). The Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) refused to pay—and Congress refused to appropriate—the full amount of “contract support costs” necessary to carry out tribal contracts.

The failure to pay these costs, which include necessary administrative and overhead costs, meant that tribes were forced to either reduce essential governmental services to their people or subsidize federal programs with scarce tribal funding.

Tribes deliver excellent services to their people. In Alaska, we know health outcomes are better when patients receive services in a culturally appropriate and familiar environment. The “Nuka System of Care,” developed by Southcentral Foundation, an IHS service provider in Anchorage, offers a holistic system of care that is dedicated to the physical, mental, emotional and spiritual wellness of a person.

The model also is being used to treat Alaska’s veterans, with great results. Tribes and tribal organizations delivering excellent care shouldn’t be penalized for their use of self-determination contracts, they should be supported. Tribes have been fighting for decades to get the federal government to honor its contractual commitments.

After 20 years of litigation and two Supreme Court decisions in favor of tribes, the federal government is currently negotiating settlements of claims for unpaid contract support costs that total in the billions of dollars.

In 2014, Congress removed contract support cost spending caps and instructed BIA and IHS to fully pay tribes what they are due. This was a major step forward and I’m proud of the work to get these caps lifted.

But because they were not provided any additional funding to pay for these debts, BIA and IHS used discretionary funding that normally would have been directed towards other vital programs—in effect robbing Peter to pay Paul. Removing the caps shows progress but it is not a permanent solution nor does it guarantee full funding in the next Congress and beyond.

A permanent solution is necessary to ensure that full funding of contract support costs continues indefinitely and is not paid for by cuts to BIA and IHS programs. As the House and Senate appropriations committees recognized this year, until such a solution is enacted the Committees are “in the untenable position of appropriating discretionary funds for the payment of any legally obligated contract support costs.”

That’s why, as a member of the Senate Appropriations Committee, I have introduced legislation to resolve this dilemma and ensure that tribal contractors are treated fairly and paid in full like other government contractors. The bill is a simple amendment that adds contract support costs to the list of mandatory appropriations. Payment of full contract support is mandatory; appropriating the resources to guarantee those payments also should be mandatory.

That means contract support cost funding would no longer have to compete with funding for other BIA and IHS programs. As a separate permanent appropriation, these costs would no longer come out of the agencies’ discretionary appropriation. Not only the obligation to fully pay, but the funds to do so, would be permanently established in federal law.

The United States must ensure that its contractual promises to tribes do not go the way of the broken treaties. My bill proposes a common sense solution that squares the appropriations process with the mandatory nature of contract support cost obligations.

At no net cost, the federal government would avoid liability, protect Indian programs, and honor tribal contracts.

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