The Northern Arapaho Tribe is taking a case against the Department of Health and Human Services to the U.S. Supreme Court. The lawsuit in question, Becerra v. Northern Arapaho Tribe, revolves around funding for health care and questions of tribal self-governance – and its outcome could have a big impact on the financial future of the tribe.
Wyoming Public Radio’s Hannah Habermann spoke with Adam Crepelle, an Assistant Professor at Loyola University’s School of Law, about the case.
This copy has been lightly edited for brevity and clarity.
Hannah Habermann: Adam, what is your background in Indigenous law and policy? How did you get interested in this field?
Adam Crepelle: I'm enrolled in the United Houma Nation, located in Louisiana. And right when I started law school, the BP oil spill happened and the Houma are located directly on Louisiana's Gulf Coast. So we were hit hard by this spill, and it seemed like everyone in Louisiana was receiving BP money except the United Houma Nation.
As a first-year law student, I assumed all my professors would know about Indian law and everything else. I quickly learned that was not the case, and same thing with seemingly every lawyer in Louisiana. So, I just took it upon myself to learn about Indian law and the more I learned, the more intrigued I got. And that's how I became a professor.
HH: Before we dive into the specifics of this current case, could you just take a minute to explain the relationship between the federal Indian Health Service (IHS), which is part of theDepartment of Health and Human Services, and tribes in the U.S.? How does that sort of partnership help provide care to tribal communities on the ground?
AC: The federal government has been providing health care to tribes for about 200 years now. Going back to the Jefferson administration, it's offered health services to tribes. And eventually, that got codified into treaties. It's evolved over the years and its current manifestation is the Indian Health Services. So today, the IHS offers numerous programs for tribes that will operate health care and various healthcare centers on reservations.
For our purposes, one of the things to keep in mind is that with the IHS, the funding can be transferred directly to tribes themselves, pursuant to 1970s self-determination legislation for tribes. And what studies have consistently shown is that when tribes take over the health care programs, they tend to outperform the federal government. And the IHS itself does not have the best record when it comes to health care.
HH: Thanks for explaining a little bit of that history and the way in which that partnership is written into treaties. I think that's important for people to remember. With that context in mind, what's going on in the case specifically?
AC: The Northern Arapaho Tribe has a contract to perform the health services on its reservation. Pursuant to the federal legislation I just referenced, it has a contract with the IHS. The contract specifically contemplates the tribe is going to build third party insurers like private insurance companies, Medicare and Medicaid. So what happens with the federal self-determination legislation is the federal government transfers the funding the IHS would use to serve the tribe to the tribe itself.
But what they found out when they first implemented this policy is that the tribes have costs the IHS does not on the administrative side. With the direct costs, there's no issues there, but what sets the issue in this case is known as contract support cost. How much overhead is the federal government willing to provide for the tribe, such as auditing and things like that?
In this case, the tribe is saying the Indian Health Services owes funds to cover the third-party insurance too, contract support costs for private insurance companies, Medicare and Medicaid. And the federal government, whenever it was sent the bill said, “No, we're not paying that.” So the tribe sued and that's what brings us to federal court and the U.S. Supreme Court.
HH: So basically, there's two options where either the IHS can provide the health care services or the tribes can take that funding and provide those services themselves. And sometimes that involves contracting with third-party companies, and there's some fees associated with doing that third-party contracting. And essentially, those are the fees that they're asking the government to cover.
AC: That’s basically it, yeah.
HH: Can you walk us through what the different rulings might look like for this case? And how might those rulings impact members of the Northern Arapaho Tribe and just impact tribal self-governance more broadly?
AC: As you might imagine, like most legal cases, this one's all about money. And that's one of the problems with the IHS, historically it's just grossly underfunded. What's going to happen with the tribes if they prevail, they'll have funding to take over more programs. But if the tribes lose at the Supreme Court, then they won't be able to collect the contract support costs from third parties. And if you can't collect the contract support costs, the tribes will have to bear those costs themselves and it's going to be much more expensive to manage these programs. Tribes might reconsider even accepting private insurance and other insurers like that.
What the feds are saying is if Northern Arapaho prevails, then this is going to deplete funding from the tribes that do not have self-governance contracts. That's kind of how the federal government's pitching is a catch-22 – sure, Northern Arapaho will be better off, but it's going to harm all the other tribes that don't have self-governance contracts.
HH: From your perspective, how many tribes have the same setup that the Northern Arapaho tribe has with the self-governance contracts and how many have the alternative route of using that funding from the IHS directly?
AC: I don't know the exact number offhand, but a significant portion of tribes do have self governance contracts.
(Note: According to the IHS, as of July 2016, the IHS and tribes have negotiated 90 self-governance compacts that fund agreements with over 350 of the 567 federally recognized tribes – roughly 60 percent.)
HH: Am I correct that there isanother case that is similarly related to tribal self-governance and healthcare that is also moving through the Supreme Court?
AC: Yes, that’s what prompted the Supreme Court to take this case. There's a circuit split – so the 9th Circuit had the same conclusion as the 10th Circuit Court of Appeals, that tribes are entitled to reimbursement. But the D.C. Circuit Court of Appeals said “No, tribes are not entitled to reimbursement for contract support costs for third party insurers.” That's what inspired the Supreme Court to take this case.
HH: When will this case actually be heard by the Supreme Court judges?
AC: The Supreme Court is slated to hear an oral argument, but it doesn't have a date set yet. I'm guessing sometime in 2024.
HH: In the two outcomes you described, what are the implications for the Northern Arapaho Tribe directly? How might that impact their financial plans and their business plans? And how might that impact people on the ground?
AC: That is the issue – if the tribe is not getting those costs reimbursed, then the tribe is going to have to find the funding to cover those costs some other way. There's going to have to take funding from already cash-strapped budgets in many cases, so you might have less cops on the road, or you might not have the road unpaved that might have otherwise been paved. Tribes are gonna have to make hard budgeting decisions.
HH: Anything else that you want to add that would help the average person in Wyoming or on the Wind River Reservation better understand this case and how it might impact them specifically?
AC: At the 10th Circuit, there were three judges who heard the case and all three of the judges agreed – the statutory scheme is very complicated. One judge said the statute was complicated but clearly in favor of the tribes. Another judge said the statute was complicated but clearly in favor of the feds. The third judge, who had the deciding vote, said it's complicated and ambiguous. Therefore, we're going to go to the Indian Canons of Construction, which go back to the 1830s. They basically say if a statute is ambiguous and can be reasonably construed in favor of the tribes, the courts are supposed to do that.
So basically, a tie goes to tribes. It was a close call and the tribes barely prevailed at the 10th Circuit. We'll see what happens at the Supreme Court. The Supreme Court has not been very favorable to tribal interests in recent years.
