The US Supreme Court will hear a case involving health care and the Northern Arapaho tribe

The Northern Arapaho Tribe is suing the Department of Health and Human Services in the US Supreme Court. The case in question, Becerra v. Northern Arapaho Tribe, revolves around health care funding and tribal governance issues – and its outcome could have a major impact on the tribe’s financial future.

Wyoming Public Radio’s Hannah Haberman spoke with Adam Kreppel, assistant professor at Loyola University School of Law, about the case.

This copy has been lightly edited for brevity and clarity.

Hannah Haberman: Adam, what is your background in Indigenous law and politics? How did you become interested in this field?

Adam Kreppel: I am enrolled in the United Houma Nation located in Louisiana. And right when I started law school, the BP oil spill happened and Houma is right on the Gulf Coast of Louisiana. We were hit hard by this spill and it seemed like everyone in Louisiana was getting money from BP except the United Houma Nation.

As a first year law student I assumed all my professors would know about Indian law and all. I quickly learned that this was not the case and the same thing happened to seemingly every attorney in Louisiana. So, I just set out to learn about Indian law, and the more I learned, the more intrigued I became. And so I became a professor.

CC: Before we dive into the specifics of this case, could you take a minute to explain the relationship between the federal Indian Health Service (IHS), which is part of the Department of Health and Human Services, and US tribes? How does this kind of partnership help provide care for tribal communities on the ground?

air conditioning: The federal government has provided tribal health care for about 200 years. Going back to the Jefferson administration, it offered health services to tribes. And eventually it was codified in treaties. It has evolved over the years and its current manifestation is the Indian Health Services. So today, IHS offers multiple programs for tribes that will run health care and various health centers on reservations.

For our purposes, one of the things to keep in mind is that with the IHS, funding can go directly to the tribes themselves, under the tribal self-determination legislation of the 1970s. And what studies consistently show is that when tribes take over health care programs, they tend to outperform the federal government. And IHS itself doesn’t have the best results when it comes to health care.

CC: Thanks for explaining a bit of this history and how this partnership is written into contracts. I think it’s important for people to remember. With this context in mind, what exactly is going on in this case?

air conditioning: The Northern Arapaho Tribe has a contract to provide health services on its reservation. Under the federal law I just mentioned, there is a contract with IHS. The contract specifically provides for the tribe to build third-party insurers such as private insurance companies, Medicare and Medicaid. So what happens with federal self-determination legislation is that the federal government transfers the funding that IHS would use to serve the tribe to the tribe itself.

But what they realized when they first implemented this policy is that tribes have costs that IHS doesn’t incur on the administrative side. With direct costs there are no problems there, but what defines the problem in this case is known as the contract maintenance cost. How much overhead is the federal government willing to provide for the tribe, like auditing and things like that?

In that case, the tribe says Indian Health Services also owes funds to cover third-party insurance, contract maintenance costs for private insurance companies, Medicare and Medicaid. And the federal government, whenever they were sent the bill, said, “No, we’re not going to pay it.” So the tribe sued, and that took us to federal court and the U.S. Supreme Court.

CC: So basically there are two options where either IHS can provide the health services or the tribes can take that funding and provide those services themselves. And sometimes that involves contracting with third-party companies, and there are some fees associated with that third-party contracting. And essentially those are the fees they want the government to cover.

air conditioning: Basically it is, yes.

CC: Can you walk us through what different solutions might look like for this case? And how might these decisions affect Northern Arapaho tribal members and simply affect tribal governance more broadly?

air conditioner: As you can imagine, like most lawsuits, it’s all about money. And that’s one of the problems with IHS, historically, it’s just been severely underfunded. What will happen to the tribes, if they prevail, they will have funding to take on more programs. But if the tribes lose in the Supreme Court, then they won’t be able to collect the costs of maintaining the treaty from third parties. And if you can’t collect the costs of maintaining the treaty, the tribes will have to cover those costs themselves, and it will be much more expensive to run these programs. Tribes may even reconsider accepting private insurance and other similar insurers.

What the feds are saying is that if the Northern Arapahoes prevail, it will deplete funding from tribes that don’t have self-government treaties. This is how tilting the federal government is a catch 22 – sure, the Northern Arapahoes will be better off, but it will hurt all the other tribes that don’t have self-government treaties.

CC: From your perspective, how many tribes have the same setup as the Northern Arapaho Tribe with the self-government treaties, and how many have the alternative way of directly using that IHS funding?

air conditioning: I don’t know the exact number outright, but a significant number of tribes have self-government treaties.

(Note: According to IHSas of July 2016, IHS and tribes have negotiated 90 self-government compacts that fund agreements with more than 350 of the 567 federally recognized tribes—approximately 60 percent.)

CC: Am I correct that there is another case that is similarly related to tribal self-governance and health care that is also moving through the Supreme Court?

air conditioning: Yes, that’s what led the Supreme Court to take this case. There is a circuit split – so the 9th Circuit has the same conclusion as the 10th Circuit Court of Appeals that the tribes are entitled to recovery. But the D.C. Court of Appeals said, “No, tribes are not entitled to contract maintenance reimbursement for third-party insurers.” That’s what inspired the Supreme Court to take this case.

CC: When will this case actually be heard by the Supreme Court justices?

air conditioner: The Supreme Court is scheduled to hear oral arguments, but no date has yet been set. I’m guessing sometime in 2024.

CC: In the two outcomes you described, what are the direct consequences for the Northern Arapaho tribe? How might this affect their financial plans and business plans? And how might this affect people on earth?

air conditioning: That’s the problem – if the tribe doesn’t get those costs reimbursed, then the tribe will have to find funding to cover those costs some other way. In many cases, you will have to take funding from already tight budgets, so you may have fewer cops on the road, or you may not have an unpaved road that would otherwise be paved. Tribes will have to make tough budget decisions.

CC: Anything else you would like to add that would help the average person in Wyoming or on the Wind River Reservation better understand this case and how it might affect them specifically?

air conditioning: In the 10th Circuit, there were three judges who heard the case and all three judges agreed – the legal scheme is very complex. One judge said the statute was complicated but clearly favored the tribes. Another judge said the statute was complex but clearly favored the feds. The third judge, who had the casting vote, said it was complex and ambiguous. So we’re going to go back to the Indian canons of construction, which date back to 1830. They basically say that if a statute is ambiguous and can reasonably be interpreted in favor of the tribes, the courts should do so.

So basically the tie goes to the tribes. It was a close game and the Tribes barely prevailed in the 10th circuit. We’ll see what happens in the Supreme Court. In recent years, the Supreme Court has not been very kind to tribal interests.

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