Yesterday, in San Carlos Apache Tribe v. Becerra, the Ninth Circuit held the Indian Self-Determination Education and Assistance Act (ISDEAA) requires payment of contract support costs (CSC) for all activities that are required for compliance with the Tribe’s ISDEAA contract/compact “includ[ing] the third-party-revenue-funded portions of the program.” In so holding, the lower court’s dismissal of the case was reversed and remanded for further proceedings.
San Carlos Apache’s holding departs from the only other circuit court to have considered this issue. In Swinomish Indian Tribal Cmty. v. Becerra, the D.C. Circuit held that health care programs funded by third-party revenue were not eligible for CSC funds. 993 F.3d 917 (D.C. Cir. 2021). The Swinomish Court’s primary reasoning was that the Tribe’s third-party revenue only funded health care programs considered extra, or additional to, those necessary for the contract.
But San Carlos Apache methodically dismantles Swinomish. First, the San Carlos Apache Court explains that because the ISDEAA requires tribes to spend their third-party revenue on healthcare services, “the ‘cost of complying’ with a contract between IHS and a tribe includes the cost of conducting those additional activities.” Second, the Court explains that “[b]ecause the statutory language is ambiguous, the Indian canon applies, and the language must be construed in favor of the Tribe.”
Though this opinion is a major win for tribal health care programs—particularly those situated within the Ninth Circuit—the law in most of the country is even more unsettled as a result of the circuit split. San Carlos Apache provides a careful analysis of a complicated issue with far-reaching consequences for tribal communities. Other circuits should look to its example rather than to the example set by Swinomish. In the meantime, this case is one to watch.
Corinne Sebren is an associate with Galanda Broadman. Her practice focuses on civil rights, Indigenous health law, regulatory analysis, and complex litigation.
