Washington Lawyer - March/April 2025 - 17

FEATURE
The Tribal Self-Governance Amendments of 2000 established Title V,
which extended the BIA self-governance model into the health care
realm and repealed Title III. Other important provisions in the 2000
amendments included appeal procedures and burden-of-proof stipulations
for HHS heads who reject terms in an offer by tribes. As of 2021,
50 percent of federally recognized tribes have been accepted into the
self-governance program, overseen by the Office of Self Governance
within the DOI.
" In the 1980s, in response to the paternalism these agencies brought to
the implementation of the statute, the self-governance movement blossomed, "
Strommer says. " What the self-governance program did was
strengthen the tribal position at the bargaining table and open up a
number of things either agency would decide on a policy level not to
put on the table for negotiations. Once tribes negotiated the agreements,
there were provisions in both of those statutory provisions that
prevented both agencies from micromanaging how tribes carried out
the program. "
Pavel says it took not just amendments but court cases for the ISDEAA
to be fully enabled. " There is something about bureaucracies that they
don't want to give up control, " Pavel says. " Those amendments made it
very clear that the original act meant what it said - tribes get every dollar
that the feds would have used to operate that program. "
ONE STEP FORWARD, TWO STEPS BACK
The High Court has heard a handful of cases involving the ISDEAA, with
funding for administrative costs being a major and consistent issue. " A lot
of this litigation has focused on to what extent the administrative cost is
required to be paid for these tribal contractors, " Strommer says.
In Cherokee Nation v. Leavitt (2005), the Court determined that the government
was legally bound to pay the contract support costs. The Court
also addressed fundamental issues, including the binding nature of selfgovernance
contracts, according to Strommer.
Self-determination contracts " are not procurement contracts, " Strommer
stresses. " They are different. They are government-to-government contracts
between two sovereigns, and agencies are required to fully fund
them for administrative costs on top of the program dollars. "
The most recent Supreme Court case involving the ISDEAA is Becerra. In a
5-4 decision authored by Chief Justice John Roberts, the Court in 2024
agreed that IHS must pay contract support costs for the activities that
tribes carry out under self-determination contracts, including expenses
incurred when spending program income from third-party payers such
as Medicare, Medicaid, and private insurers.
Smith says that in Becerra, the Supreme Court upheld the very essence
of the ISDEAA's promise of self-determination. Quoting Justice Roberts,
Smith says that the ISDEAA was intended to provide an " effective voice
in the planning and implementation of programs responsive to the true
needs of their communities, " and that IHS not covering the administrative
costs of outside programs would result in " a penalty on tribes for
opting in favor of greater self-determination. "
" This case was a significant victory for tribes, " Smith adds.
However, while Becerra is a cause of relief, Smith says that every year the
justices take up a case involving Native Americans, and that " it is sometimes
one step forward and two steps back with Indian law at the
Supreme Court. " She points to the Court's 2022 decision in Oklahoma
v. Castro-Huerta, which held that the federal government and
states have concurrent jurisdiction to prosecute crimes committed
by non-Natives against Natives on Native American land.
" It overruled almost 200 years of precedent, " says Smith. " This case
was a massive blow to tribal sovereignty and reversed the longstanding
principle established in Worcester v. Georgia. "
GEOFFREY STROMMER
Hobbs, Straus, Dean & Walker, LLP
A LOOK AHEAD
Notwithstanding uncertainty
in the courts, there
is much to appreciate
about the ISDEAA. Osborne
says that the act's
expanding scope is a signature
of its success. He
points to Congress's enactment
in 2015 of the
U.S. Department of Transportation's
(DOT) Tribal
Transportation Self-Governance
Program, which
emulates the ISDEAA in
providing tribes greater
control and decisionmaking
authority over
DOT funds for safe and
adequate transportation and public road access.
" That illustrates the success from the past and also the trajectory
into the future as tribes hopefully can replicate this mode across
other agencies, " Osborne says.
For Pavel and Smith, the ISDEAA informs their own leadership and
advocacies. Smith often speaks to Native American students, encouraging
them to pursue a career in the law and to appreciate that
" it is really important to recognize the government-to-government
relationship between the United States and Indian tribes and promote
tribal self-determination. "
When Pavel helped create the Native American Bar Association of
Washington, D.C., in the mid-1990s, the organization gave Native
American attorneys a place to share experiences. " The work we do
in D.C. is hard, and it is hard to be this far from home. But tribal leaders
need us to be here because they need to further their growth,
their capacity, and the exercise of their rights, " she says.
These rights tie in directly with the ISDEAA. " The success we are seeing
in Indian Country really can be laid at the foundation of the Indian
Self-Determination Act, " Pavel says. " It was really that movement
of self-determination that has led us to where we are today, where
tribal governments are key stakeholders in the success of rural economies
across America and hold the federal government accountable
to be better, more effective, and efficient with its resources. "
Richard Blaustein is a D.C. Bar member and freelance journalist covering
science, the environment, and legal issues.
MARCH/APRIL 2025 * WASHINGTON LAWYER 17
Hobbs, Straus, Dean & Walker
Washington Lawyer - March/April 2025

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