PRESS RELEASE: Supreme Court Rules 5-4 in Favor of Tribes on Reimbursement of Contract Support Costs for Third-Party Expenses

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FOR IMMEDIATE RELEASE

“Today, the Supreme Court required the United States to uphold its responsibility to fully support Tribal self-determination under the Indian Self Determination Education and Assistance Act (ISDEAA). Contract support costs are necessary to ensure that Tribes that exercise their rights under ISDEAA receive the same amount of funding support as other federally run programs. Tribal governments know the needs of their people, and protecting and supporting Tribal self-determination is essential to ensuring the health and well-being of American Indians and Alaska Natives. NCUIH is a strong supporter of Tribal self-determination and proudly signed on to the National Indian Health Board’s amicus brief to the Supreme Court in support of the respondent Tribes.”

– NCUIH CEO, Francys Crevier (Algonquin)

Washington, D.C. (June 6, 2024) – The Supreme Court delivered their opinion in Becerra v. San Carlos Apache (consolidated with Becerra v. Northern Arapaho Tribe), authored by Chief Justice John Roberts. The decision in this case will benefit and assist Tribes operating under self-determination contracts with IHS. Moving forward, additional funding will be allocated within IHS’ budget to pay contract support costs related to Tribes using third-party revenue for administering their healthcare programs. In support of Tribal sovereignty and efforts of Tribes to ensure IHS carries out the federal trust responsibility, NCUIH signed on to the amicus brief filed by the National Indian Health Board (NIHB).

The court relied on language found in the Indian Self-Determination Act (ISDA), to show that, under Section 5325(a), the contract support costs incurred are eligible for repayment since they were done so to “ensure compliance with the terms of the contract.” The collection and spending of third-party revenue was done by Tribes as required by their contracts with IHS – to carry out operations transferred from IHS to the Tribes. Therefore, the court interprets ISDA to assume the administrative and overhead costs incurred as a result would be defined as contract support costs. Section 5326 of ISDA was also discussed by the court, which found that the limitations included “do not preclude payment of costs incurred by the required spending of program income under a self-determination contract.”

A highlight of the opinion is the court recognizing that reading ISDA differently would penalize Tribes who pursue self-determination. The purpose of contract support costs is to prevent funding gaps between IHS and Tribes, and finding differently would impact Tribes ability to finance and operate their healthcare programs.

About NCUIH

The National Council of Urban Indian Health (NCUIH) is a national non-profit organization devoted to the support and development of quality, accessible, and culturally-competent health and public health services for American Indians and Alaska Natives (AI/ANs) living in urban areas. NCUIH advocates for the 41 Urban Indian Organizations contracting with the Indian Health Service under the Indian Healthcare Improvement Act.

NCUIH respects and supports Tribal sovereignty and the unique government-to-government relationship between our Tribal Nations and the United States. NCUIH works to support those federal laws, policies, and procedures that respect and uplift Tribal sovereignty and the government-to-government relationship. NCUIH does not support any federal law, policy, or procedure that infringes upon or in any way diminishes Tribal sovereignty or the government-to-government relationship.

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NCUIH Contact: Meredith Raimondi, Vice President of Policy and Communications, mraimondi@ncuih.org, 202-417-7781

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DOJ and DOI Responses to the Not Invisible Act Commission’s Recommendations Includes MMIP Resources for Urban Indian Communities

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On March 5, 2024, the Department of Justice (DOJ) and the Department of Interior (DOI) (“the agencies”) released their response to the Not Invisible Act Commission’s (“Commission”) findings and recommendations on how to combat the missing or murdered Indigenous people (MMIP) and human trafficking (HT) crisis. The Commission’s findings and recommendations and the responses by the DOJ and DOI mention urban Indian organizations (UIOs) and urban American Indian and Alaska Native people and communities. Importantly, the agencies state that UIOs are eligible for funding under Office on Violence Against Women (OVW) programs.

Key Responses by the Agencies

UIOs are referenced in sections pertaining to law enforcement and investigative resources, coordinating resources, victim and family resources and services, and Alaska-specific issues. The following are key responses by the agencies to the Commission’s findings and recommendations.

Law Enforcement and Investigative Resources

In response to the Commission’s recommendation of the DOJ Office of Victims of Crime (OVC) and the Department of Health and Human Services (HHS) Office on Trafficking Persons (OTIP), the agencies stated that the Office of Justice Programs (OJP)/OVC’s Project Beacon: Increasing Access to Services for Urban American Indian and Alaska Native Victims of Human Trafficking, “currently funds five urban Indian centers that are working to increase their capacity to provide comprehensive services to Native victims through strategic collaborative partnerships with both Tribal and non-Tribal organizations and agencies.” The agencies also said that the DOJ “will work with other agencies as appropriate to further explore the recommendation regarding tracking and aggregating racially biased policing in and around Indian Country, of Indians in urban areas, and in Alaska”, which was a specific recommendation of the Commission.

Coordinating Resources

The Commission recommended that either the OVW or the OVC provide technical assistance to small-staff advocacy organizations by employing “user-friendly, virtual tutorials” to “enhance the [grant funding] application experience and…accommodate the diverse circumstances in Tribal and urban Indian communities (including communities lacking access to broadband.”

As part of their response, the agencies stated “DOJ’s OVW offers live and recorded pre-application webinars to go over application requirements in detail and answer questions about the application process.”

Victim and Family Resources and Services

The Commission found that “[t]here has been a historical lack of services for [American Indian and Alaska Native] victims and families of MMIP and HT that are Native-led, culturally specific, and trauma-informed” and that “[u]rban areas bear the burden of providing culturally-relevant resources to an extremely diverse population: 70 % of [American Indian and Alaska Native] people live in urban areas. Further, the system actors with whom urban Indian organizations interact are less likely to have any training or competence in providing culturally relevant services” which “exacerbates the trauma experienced within [American Indian and Alaska Native] communities.” The Commission recommended that “[s]ervices…be provided through an integrated care model utilizing a public health and safety approach, and include Native-led, culturally specific practices and care. Baseline funding to implement, strengthen, and seek TTA to provide continuum of care models for survivors and families of MMIP and HT, such as, First Nations Mental Wellness Continuum Framework, must be provided to [American Indian and Alaska Native] Tribal nations, Indigenous-led Community Based Organizations (CBO) and urban Indigenous organizations.”

The agencies responded by saying that the Bureau of Indian Affair’s (BIA) Tiwahe Program framework “is an Indigenous approach to thinking about well-being within a system, with the well-being of individuals, communities, Tribes, and the natural environment working in an interlinked and interdependent ways.” UIOs are one type of entity that can use this framework. Additionally, the OVC’s Tribal Victim Services Set-Aside Formula Grant Program (TVSSA) and other OJP/OVC funding opportunities provide “funding to support comprehensive, culturally appropriate, trauma-informed, victim-sensitive services” to both urban and Tribal community located American Indian and Alaska Native crime victims. Lastly, UIOs themselves are eligible for funding through OVW grant programs, including those supporting culturally specific services for survivors of domestic violence, dating violence, sexual assault, and stalking.

Alaska-Specific Issues

The Commission recommended that “[t]he MMIP Regional Outreach Program through the [Executive Office of the United States (U.S.) Attorneys (EOUSA)] must be expanded to include more than one coordinator and [Assistant U.S. Attorney (AUSA)] to serve Alaska.”

As part of their response, the agencies stated “[a]s program regions are fully staffed, the regional AUSAs and coordinators will begin regional outreach to federal, Tribal, state, and local law enforcement; victim- and MMIP-related governmental and nongovernmental organizations; and urban Indian organizations to provide information about the program’s resources, roles, and services provided and develop a regional resource list.”

Background on the Commission

The National Council of Urban Indian Health (NCUIH) along with other national Native organizations worked in support of the Not Invisible Act legislation, which was enacted in October 2020. The Act required the Secretary of the Interior, in coordination with the Attorney General to establish and appoint a joint commission on violent crime against American Indian and Alaska Native people. Secretary of the Interior Haaland was the lead sponsor of the Not Invisible Act when she served in Congress. The bill was passed unanimously by voice vote in both chambers of Congress.

Commissioner Sonya Tetnowski is a citizen of the Makah Tribe and CEO of the Indian Health Center of Santa Clara Valley. She currently serves as the President California Consortium of Urban Indian Health (CCUIH) and previously served as NCUIH’s Board President. Ms. Tetnowski works daily in support of the health and wellness services to American Indians and Alaska Natives living in urban areas. Violence against American Indians and Alaska Natives is a public health crisis and is considered a social determinant of health (SDOH). NCUIH is committed to the reduction of violence impacting Native communities.

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NCUIH Requests that CMS Include UIOs in its Proposed Framework on Reimbursement for Traditional Healing Services

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On March 27, 2024, and April 29, 2024, the National Council of Urban Indian Health (NCUIH) submitted comments to the Centers for Medicare and Medicaid Services (CMS) Director of the State Demonstrations Group, Jacey Cooper, regarding the Proposed Framework for Traditional Health Care Practices in Section 1115 demonstrations (“Proposed Framework”) in response to CMS’s request for feedback. CMS sought advice and input on the scope of coverage of Traditional Health Care Practices that could be provided at Indian Health Service (IHS) and Tribal facilities, recommendations on provider qualifications, and monitoring and evaluation criteria. As part of its responses, NCUIH requested that CMS include urban Indian organizations (UIOs) in the Proposed Framework because UIOs are critical to providing Traditional Healing services to urban American Indian and Alaska Native populations.

Background

During a March 6, 2024, presentation, CMS provided an overview of the Section 1115(a) demonstration process and a high-level overview of the four pending demonstration proposals to cover Traditional Health Care Practices- Arizona, California, New Mexico, and Oregon. CMS discussed the development of a Proposed Framework for potential coverage of Traditional Health Care Practices, consistent with the authorities in the Indian Health Care Improvement Act. The presented Proposed Framework does not include UIOs as eligible facilities. CMS solicited feedback following the March 2024 presentation and an April 3, 2024, webinar on the Proposed Framework.

For more information on Section 1115 Demonstrations, please click here.

Funding is a Barrier for UIOs to Provide Traditional Healing Services to Native People

Inclusion of UIOs in CMS’ Proposed Framework is critical, as UIOs fill an essential gap in care for American Indian and Alaska Native people living off reservations by providing culturally sensitive and community-focused care options, including traditional healing services and programs. Funding continues to be a barrier for UIOs to provide traditional healing services to their Native patients. They have to work to stretch already limited dollars to include these vital services because healthcare funding sources, including Medicaid, do not adequately reimburse for traditional healing services.

NCUIH’s Requests and Recommendations

In its March 27 comments, NCUIH requested that CMS:

  • Include services delivered at UIOs to American Indian and Alaska Native Medicaid beneficiaries in the Proposed Framework.
  • Host Urban Confers or UIO Listening Sessions Consistently Throughout the Development of the Proposed Framework.

In its April 29, comments NCUIH recommended that CMS:

  • Include Traditional Healing services provided at UIOs in the Proposed Framework.
    • Allow Tribes, UIOs, and States the flexibility to develop a solution which serves all American Indian and Alaska Native beneficiaries.
    • Ensure the Proposed Framework reflects the requests of Tribes and UIOs.
    • Ensure the Proposed Framework does not create inequities in care.
  • Respect confidentiality for Traditional Healers and Traditional Healing practices.
  • Engage with UIOs by hosting an Urban Confer and continue to engage with Tribes.

NCUIH will continue to monitor the development of the Proposed Framework and advocate for UIO inclusion.

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