Self-Determination and Self-Governance
A major part of our practice is the representation of Indian tribes and tribal organizations in the area of contracting and self-governance compacting under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450 et seq. ("ISDA"). Our work in this area involves lobbying, negotiated rule-making, litigation, contract and compact negotiations and providing day-to-day advice to our tribal clients regarding the requirements, benefits and obligations of ISDA. Our firm is a nationally recognized leader in this highly specialized Indian law field.
Since passage of this landmark legislation in 1975, we have represented tribes and tribal organizations in Congress on issues related to ISDA. Our firm was instrumental in helping draft substantial portions of the text and legislative history of the 1988 ISDA Amendments, and took the advocacy lead on behalf of a large number of tribes to draft and secure successful passage of the historic 1994 Amendments. This leadership role continues today: members of the firm were deeply involved in the successful effort to pass the new Title V self-governance legislation (which established permanent legislation for self-governance within the Department of Health and Human Services), and we remain deeply involved in tribal initiatives to improve the Indian Reservation Roads (IRR) Program in the new surface transportation reauthorization legislation (i.e., TEA-21 reauthorization), to rewrite Titles IV and VI, to enact a new Title VII, and to revise all ISDA's provisions regarding contract support costs.
Our firm has represented tribal clients in every negotiated rulemaking committee established to implement ISDA. Most recently, partners of our firm participated as legal counsel on the Title V Self-Governance Negotiated Rulemaking Committee, and were appointed by the tribal representatives of their respective committees to serve as the Tribal Caucus representatives for the final Preamble Drafting Committee. Attorneys of our firm have also played lead roles on the Title I Negotiated Rulemaking Committee, the IRR Program Negotiated Rulemaking Committee, and the Indian Health Service and Bureau of Indian Affairs Contract Support Cost work groups.
We have helped our tribal clients negotiate and carry out numerous self-determination contracts and self-governance compacts, involving a variety of programs such as water projects, sanitation and facilities construction, the provision of health and social services, and road construction. (See also self-determination construction and transportation). We regularly assist in negotiating and drafting our clients' ISDA contracts, compacts and annual funding agreements. Members of our firm have also frequently provided seminars in Indian country for tribal leaders regarding ISDA.
Our firm's extensive knowledge of ISDA and its regulations, and our regular dealings with the Bureau of Indian Affairs, the Bureau of Reclamation, the Indian Health Service and other federal agencies, provide an advantage both in negotiations with those agencies and in litigation regarding their administration of ISDA. Part of this work involves drafting our clients' contracting officer claims and negotiating and (where possible) settling them without litigation. When necessary, our work has also involved important litigation over ISDA matters -- ranging from disputes with the Bureau of Indian Affairs and Indian Health Service over contract support costs to litigation regarding the authority of the Secretary of Interior to impose rules and penalties on tribal contractors. Among the cases that we have handled are the following:
- Cherokee Nation of Okla. and Shoshone-Paiute Tribes of the Duck Valley Reservation v. Leavitt, 125 S. Ct. 1172 (2005), aff'g Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1080 (Fed. Cir. 2003) and rev'g Cherokee Nation of Okla. and Shoshone-Paiute Tribes of the Duck Valley Reservation v. Thompson, 311 F.3d 1054 (10th Cir. 2002) (establishing government liability in damages for the Indian Health Services' failure to pay full contract support costs). Click here for more information.
- Appeals of Cherokee Nation, IBCA Nos. 4434/4435-2002 (IBCA 2003) (Contract Disputes Act claims involving the Bureau of Indian Affairs' untimely payment of Indian Reservation Roads program funds, resulting in payment to the Cherokee Nation of over $800,000).
- Pueblo of Zuni v. United States, No. CIV00-0365 LH/WWD (D.N.M.), consolidated into Ramah Navajo Chapter and Oglala Sioux Tribe v. Norton, No. CIV 90-0957 (the portion of a nationwide class action brought to recover damages for failure of Bureau of Indian Affairs to pay full tribal "direct" contract support costs required by ISDA) ($29 million partial settlement approved Dec. 6, 2002, sub nom. Ramah Navajo Chapter, Oglala Sioux Tribe and Pueblo of Zuni v. Norton, 250 F. Supp.2d 1303 (D.N.M. 2002)).
- Shoshone-Bannock Tribes v. Shalala, 988 F. Supp. 1306 (D. Or. 1997) (holding that the agency violated ISDA by failing to award any portion of headquarters office administrative functions or associated funds and awarding the Tribes attorneys fees), appealed on other issues sub nom. Shoshone-Bannock Tribes v. Sec'y, Dep't of Health and Human Servs., 279 F.3d 660 (9th Cir. 2002) (reversing district court ruling over contract support cost claim).
- Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997), on remand 50 F. Supp.2d 1091 (D.N.M. 1999) (counsel for absent "DCA" class members initially excluded from nationwide class settlement based on miscalculated indirect cost rates, added back into settlement to share $900,000).
- Ramah Navajo School Bd., Inc. v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996) (establishing the rights of tribal contractors under ISDA to contract support costs and invalidating a Bureau of Indian Affairs allocation procedure).