By Corinne Sebren and Henry Oostrom-Shah
June 2023 Update: The 9th circuit denied the petition for rehearing en banc in San Carlos Apache. The 10th Circuit has denied rehearing as well.
April 2023 Update: The San Carlos Apache (9th circuit) and the Northern Arapaho Tribe (10th circuit) cases have both filed petitions for rehearing en banc.
On March 6, in Northern Arapaho Tribe v. Becerra, 61 F.4th 810 (10th Cir. 2023), a fragmented panel of the Tenth Circuit deepened an emerging circuit split.
Now, both the Ninth and Tenth Circuits have held that third-party revenue funded tribal health care programs are eligible for reimbursement of contract support costs under the Indian Self-Determination Education and Assistance Act (ISDEAA). See San Carlos Apache Tribe v. Becerra, 53 F.4th 1236 (9th Cir. 2022). The D.C. Circuit stands alone in excluding the third-party revenue funded portions of these programs from reimbursement. See Swinomish Indian Tribal Community v. Becerra, 993 F.3d 917, (D.C. Cir. 2021).
Though two judges of the three-judge 10th Circuit panel agreed on the overall outcome of the case, all three panelists diverged on their statutory interpretations of the ISDEAA.
Judge Moritz, the author of the opinion, understood the relevant ISDEAA funding provisions to be ambiguous and invoked the Indian canon of construction, which allows a Tribe’s reasonable statutory interpretation to control. Like his colleagues in the Ninth Circuit, Judge Moritz looked to the Tribe’s ISDEAA contract itself to support an interpretation that favored full reimbursement for contract support costs associated with third-party revenue funded programs.
Judge Eid took a different path to reach the same result as Judge Moritz. She held in favor of the Tribe’s position without resorting to the Indian canon of construction. In Judge Eid’s eyes, even though the contract support cost funding scheme contemplated by the ISDEAA is “undoubtedly complex and requires a good deal of analysis,” the meaning of the statute is clear. Her concurrence notes that third-party revenues are not happenstance supplemental funds—instead, “the statutory text contemplates this additional money and requires the tribe to inject it back into its healthcare program.”
Judge Baldock, the lone dissenter, frankly acknowledged that the “complexity of the statutory scheme” barred the panel from “reach[ing] a consensus on its meaning.” However, he would have dismissed the Tribe’s complaint. Judge Baldock explained that one provision within the ISDEAA, 25 U.S.C § 5326, “plainly” limits another, 25 U.S.C. § 5325.
The vigorous debate in Northern Arapaho Tribe v. Becerra, demonstrates that there are still unsettled interpretations of the ISDEAA’s funding provisions. A lot of money is on the line for the infamously and chronically underfunded tribal health programs these provisions affect. Here, for example, the Northern Arapaho Tribe sought to recover over $1.5 million for 2016 and 2017 expenses alone.
On March 8, 2023, IHS filed a petition in the Ninth Circuit in the San Carlos Apache case for a rehearing en banc to keep their arguments against reimbursement alive. The government's brief sounded the alarm on this still-unsettled "inter-circuit conflict implicating vast sums of money." It is likely a similar petition will be filed in the Tenth Circuit. Meanwhile, several other related cases are pending. See, e.g., Ketchikan Indian Community v. Becerra, No. 3:21-cv-00028 (D. Alaska Feb 12, 2021); Metlakatla Indian Community v. Becerra, No. 3:20-cv-00282 (D. Alaska Nov 05, 2020). These cases remain ones to keep a close watch on.
Corinne Sebren is an associate with Galanda Broadman. Her practice focuses on civil rights, Indigenous health law, regulatory analysis, and complex litigation.
Henry Oostrom-Shah is a student law clerk with Galanda Broadman. After graduating from Boston University School of Law this May, he will work as a public defender in Portland, Oregon.
