Justice Sonia Sotomayor

Supreme Court: Government Must Pay Tribal Contract Support Costs

Rob Capriccioso

WASHINGTON – In all the outrage over the U.S. Supreme Court’s anti-tribal findings in Patchak on June 19, it was easy to miss a much friendlier decision, in the tribal self-determination case, Salazar v. Ramah Navajo Chapter.

In a 5 – 4 ruling, the high court backed the tribe, writing that the federal government must pay contract support costs to tribes that enter into agreements to manage federal programs. Chief Justice John Roberts dissented, along with Justices Samuel Alito, Stephen Breyer, and Ruth Bader Ginsburg.

“Consistent with longstanding principles of government contracting law, we hold that the government must pay each tribe’s contract support costs in full,” Justice Sonia Sotomayor wrote for the majority.

“This gets us back to the principle that the government must pay us what we are entitled to,” Rodger Martinez, president of the Ramah Navajo Chapter in New Mexico, told The Guardian newspaper.

“The government was trying to treat tribal contractors differently from all other contractors,” Jonathan Cohn, a lawyer for the tribe, told the paper. “If you were talking about a defense contractor, I don't think this case would have reached the Supreme Court – the government would have paid up long ago.”

For years, tribes have complained that they are forced to pay such costs when the federal government should have been paying, as stated under the Indian Self-Determination and Education Assistance Act.

In this case, the tribe, from 1994 to 2001, contracted with the Department of the Interior to provide certain services. During each of those years, “Congress appropriated sufficient funds to pay any individual tribal contractor’s contract support costs in full, but did not appropriate enough to pay all tribal contractors collectively,” the ruling noted. Instead, Interior paid the tribe on a uniform, pro rata basis, so the tribe ended up suing under the Contract Disputes Act.

Sotomayor noted the Supreme Court's 2005 decision in Cherokee Nation v. Leavitt, another self-determination case, in which the court “stressed that the government’s obligation to pay contract support costs should be treated as an ordinary contract promise, noting that [Indian Self-Determination and Education Assistance Act] 'uses the word ‘contract’ 426 times to describe the nature of the Government’s promise.'"

Indeed, the ISDEA, enacted in 1975, authorizes some agencies of the federal government to enter into contracts with tribes and Alaska Native Corporations to manage federal programs. The law not only required the government to pay for the programs, but also for “contract support costs.” The law reversed a three-decade effort by the U.S. government to terminate its relations with and trust responsibilities toward tribes.

The U.S. Congress has long been aware of the shortfall to tribes, but it has never legislated a comprehensive appropriations remedy. The high court now says that the executive branch must make up the difference.

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