Financial Self-Determination for Native Nations

Black’s Law Dictionary defines the “right of self-determination for peoples” as the “right of the postcolonial populations of the world’s countries to be free to decide for themselves how they wish to be governed in a decolonized world.”

Within this definition, adopted from international law, is the recognition that certain nation states, such as the United States, have a history of colonization that has impacted the ability of “postcolonial populations” to engage in self-determination.

In the aftermath of World War II, Native Nations within what is now known as the United States, and Indigenous Peoples around the world, participated in decolonial movements and advocated for increased self-determination. These efforts, and other historical Indigenous advocacy, catalyzed the shift in federal policy in “Indian Affairs” from outright dominion and assimilation to one of self-determination.

Although the Indian Reorganization Act of 1934 (IRA) seemed to embody a measure of self-determination, in actuality IRA contained incentives for Native Nations to adopt federal government-style constitutions and governing structures, somewhat furthering assimilation.

The capstone legislation that marked a fuller shift toward true self-determination was the Indian Self-Determination Education and Assistance Act of 1975 (ISDA). In ISDA, Congress provided that the “prolonged federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people,” recognizing “the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other federal services to Indian communities.”

When the Supreme Court granted certiorari in two cases last year, concerns arose as to whether it would adhere to the text of ISDA, including the codification of the Indian canon of construction, or whether it would instead focus on atextual practicality arguments due to the financial implications at issue—similar to how the Court refused to uphold principles of self-determination and inherent Tribal sovereignty in Sherrill v. Oneida, a case involving state taxation of reclaimed ancestral lands.

Ultimately, the issue seemed be: How sincerely does the federal government takes its own policy of self-determination for Native Nations that seek to provide healthcare programs under IDSA self-determination contracts?

In a 5-4 decision, the Supreme Court held in Becerra v. San Carlos Apache Tribe that ISDA requires the Indian Health Service (IHS)—an agency within the Department of Health and Human Services that is responsible for providing federal health services to American Indians and Alaska Natives—to pay Native Nations for certain contract support costs spent in furtherance of healthcare programming it assumes on behalf of IHS.

In reaching this determination, the Court focused on the text of ISDA, including Congress’s findings and policy declarations, and the contracts between IHS and two Native Nations, which in this consolidated case were the San Carlos Apache Tribe and the Northern Arapaho Tribe.

Importantly, the Court considered the purpose of both ISDA and the purpose of the self-determination contracts, highlighting the importance of congressional due diligence in codifying with specificity.

The majority decision, delivered by Chief Justice John Roberts, relied on the text of ISDA and the contracts for two reasons. First, ISDA was enacted for the purpose of promoting the “effective and meaningful participation by the Indian people in the planning, conduct, and administration” of federal healthcare programs. This participation provided Native Nations the statutory ability to assume administrative responsibility for such programs via self-determination contracts.

Second, under ISDA, each self-determination contract must contain provisions of the “model agreement” set forth in the statute, including a requirement that Native Nations use program income earned from the contract to “further the general purposes of the contract.”

Furthermore, the codification of the Indian canon of construction likely prevented the Court from considering it as an atextual anomaly subject to being overruled. Indeed, neither the majority nor the dissent mention the canon, beyond referring to the Ninth Circuit’s reliance on the canon in its decision.

The prevention of rendering the Indian canon as atextual by codifying it into statute is one of the more important lessons we can learn from the Becerra decision.

Speaking of atexualism, the minority dissent authored by Justice Brett M. Kavanaugh argues that the text of ISDA should not lead to IHS responsibility for certain contract support costs.

For Justices supposedly dedicated to textualism, the dissent relies, in part, on atextual factors including the fact that the executive branch has not historically understood ISDA to cover such costs and that such costs may take “money away from other federal programs” or impose “additional costs on taxpayers.” But such impracticality arguments should be tossed to the wayside post-McGirt v. Oklahoma, where the Court focused on congressional intent to determine whether Congress meant to diminish or disestablish a reservation.

The minority in Becerra also posits that, because another statute, the Indian Health Care Improvement Act of 1976, is not specifically mentioned within ISDA, Congress did not intend for Medicaid or Medicare funding (the contract support costs at issue) to be part of the healthcare programming costs for which Native Nations are entitled to reimbursement.

The majority, however, specifically addresses this issue, noting that when IHS administers federal programs, it uses third-party insurance payments, and Native Nations stepping in to administer programs in place of IHS should be on equal footing with IHS, including receiving those third-party payments IHS is responsible for recouping.

The majority in Becerra seeks to again “hold the government to its word” because letting the federal government off the hook for recouping and reimbursing Native Nations for these costs would be tantamount to erecting a “self-determination penalty” against them for administering their own healthcare programs.

If we, as citizens, attorneys, judges, and elected officials, truly value democracy, we must support the revitalization of self-determination for Native Nations who have been here since time immemorial and who continue to bear the brunt of settler colonialism. Becerra plays a small, but important role, in furthering the realization of decolonization and self-determination by requiring the federal government keep its promises to Native Nations, especially those enacted by Congress.

Nazune Menka (Denaakk’e & Lumbee) is an assistant professor of law and faculty director for the Center for Indian Law and Policy at Seattle University School of Law.