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 the ISDA.
Since passage of this landmark legislation in 1975, we have represented tribes and tribal organizations in Congress on issues related to the 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 that revamped Title I of the Act, made permanent Title IV of the Act (the self-governance rules for the Interior Department), and laid the groundwork for the 2000 enactment of the Title V self-governance legislation for the Department of Health and Human Services). We continue to advocate for improvements to ISDA, including improvements to its funding mechanisms and revisions to Title IV.
Our firm has represented tribal clients in every negotiated rulemaking committee established to implement the ISDA. For example, 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 also played lead roles on the Title I Negotiated Rulemaking Committee, the IRR Program Negotiated Rulemaking Committee, the committee which developed the agencies’ Internal Agency Procedures Manual, and the Indian Health Service and Bureau of Indian Affairs Contract Support Cost Work Groups which developed the IHS and BIA contract support cost policies.
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. We regularly assist in negotiating and drafting our clients' ISDA contracts, compacts and annual funding agreements. Members of our firm also frequently provided seminars in Indian country for tribal leaders regarding the ISDA.
Our firm's extensive knowledge of the ISDA and its regulations, and our regular dealings with the Bureau of Indian Affairs, the Indian Health Service, the Bureau of Reclamation, and other federal agencies, provide an advantage both in negotiations with those agencies and in litigation regarding their administration of the 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:
- Salazar v. Ramah Navajo Chapter, 132 S.Ct. 2181 (2012) (holding Department of Interior liable for failure to pay full contract support costs notwithstanding appropriations language providing that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organizations for contract support costs”).
- Arctic Slope Native Association, Ltd. v. Sebelius, 133 S.Ct. 22 (2012) (reversing and remanding for reconsideration in light of Salazar v. Ramah, 132 S.Ct. 2181 (2012)), on remand, 501 Fed. Appx. 957 (Fed. Cir. 2012) (holding that IHS was obligated to pay full contract support costs in recent years).
- Cherokee Nation v. Leavitt, 543 U.S. 631 (2005), aff'g Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1080 (Fed. Cir. 2003) and rev'g Cherokee Nation v. Thompson, 311 F.3d 1054 (10th Cir. 2002) (establishing government liability in damages for the Indian Health Service’s failure to pay full contract support costs).
- Arctic Slope Native Association, Ltd. v. Sebelius, 699 F.3d 1289 (Fed. Cir. 2012) (holding equitable tolling of statutory time limit for Contract Disputes Act claims for unpaid contract support costs to be warranted).
- 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 the 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 the agency violated the ISDA by failing to award any portion of headquarters office administrative functions or associated funds, and failing to pay contract support costs, 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).
- Southcentral Foundation v. Roubideaux, No. 13-164, Dkt. 77 (D. Alaska Sept 23, 2014) (holding IHS liable for failing to add contract support costs to certain contracted Methamphetamine and Suicide Prevention Initiative and Domestic Violence Prevention Initiative tribally-contracted operations)
- Yukon-Kuskokwim Health Corp. v. National Labor Relations Bd., 234 F.3d 714 (D.C. Cir. 2000) (overturning National Labor Relations Board ruling that the NLRA applies to tribal consortium administering a federal hospital under the Indian Self-Determination Act outside an Indian reservation, and remanding to the NLRB for further proceedings), on remand 341 NLRB No. 139 (2004) (declining to exercise jurisdiction over tribal health care provider).
- American Dental Association v. Alaska Native Tribal Health Consortium, 3AN-06-4797CI (Alaska. Sup. Ct. 2006) (upholding the dental health aid program against state regulation)