On June 6, 2024, the Supreme Court released their opinion in Case No. 23-250, Becerra v. San Carlos Apache (consolidated with Case No. 23-235, Becerra v. Northern Arapaho Tribe). The Justices ruled 5-4 in favor of the Tribes and the majority opinion was authored by Chief Justice Roberts. The National Council of Urban Indian Health (NCUIH) applauds this decision, and has been in support of Tribes in this case, signing on to the amicus brief filed by the National Indian Health Board (NIHB). NCUIH appreciates that the court supports self-determination and its importance in furthering the health and well-being of American Indian and Alaska Native people.

Read the Court’s Opinion here.

The question presented in this case was whether under the Indian Self Determination Act (ISDA), a Tribe is entitled to recover contract support costs for expenses it incurs when spending third-party revenue to operate its healthcare program. During Oral Argument, on March 25, 2024, the Justices aimed their questions at how ISDA should be interpreted, and whether the spending of third-party revenue collected by Tribes is governed by ISDA contracts. At that time, concerns were raised over impacts the court’s decision would have if found in favor of the opposing party. For the Tribal respondents, they argued that Tribes would then be fully responsible for costs associated with third-party expenditures. For the federal government, they argued that there would be unavoidable impacts on IHS funding.  

Summary of the Court’s Holding 

The court found that self-determination contracts between Tribes and IHS require spending and collection of third-party revenue, therefore, by doing so and incurring administrative costs, IHS is then required to reimburse for those contract support costs. Statutory language provided in ISDA, specifically Section 5325(a), identifies that contract supports costs are requirements of a self-determination contract. The court then infers that this extends to third-party revenue because Tribes incur these costs to be in compliance with the terms of their contract with IHS. The court also addresses the limitations of ISDA found in Section 5326 but does not find that they would preclude payment of contract support costs incurred by spending of third-party revenue under a self-determination contract.  

 In response to arguments raised by the federal government, the court does not find any support within the language of ISDA. There is no language that suggests contract support costs are limited to programs funded by the Secretarial amount. Additionally, the court disagrees with the federal government stating that tribes should not be able to spend third-party revenue on a broader range of activities than IHS can. The differences raised by the federal government do not survive scrutiny, as the court does not see substantial differences between Tribes and IHS in proving services to non-Indians or requirements to “first” use Medicare and Medicaid proceeds to be in compliance with the programs. The court also finds no merit in the argument that Tribes are able to use third-party revenue to construct facilities, since IHS would not be required to pay contract support costs for new programs.   

 An impactful and meaningful aspect of the court’s opinion comes from the recognition that reading ISDA differently would be a harsh penalty on Tribes who pursue self-determination. The court recognizes the detrimental impacts to Tribes and the financing of their healthcare programs and services. If IHS was not required to cover contract support costs for third-party revenue, Tribes would be responsible and would have to divert income from other areas or pay out of pocket. This is contrary to the purpose of contract support costs, which are designated by Congress to fill the funding gap between Tribes and IHS. 

Impact on Urban Indian Organizations 

While this case has no strong relation to Urban Indian Organizations, there will be impacts to the IHS budget and how funds are allocated. UIOs receive funds through the urban health line item, but as they are only 1% of the entire IHS budget,  it is not likely that these funds will be affected by budget allocation changes.  NCUIH included the Tribal request to reclassify Contract Support Costs in its written testimony to Congress and will continue to advocate for Congress to honor this request. In discussing the financial impact, it is important to note that the amount suggested by the federal government of an additional $2 billion per year was not supported by any evidence. The appropriations process will be where the increased obligation for contract support costs will be addressed, which could take Congress several years, potentially not until FY2026. Even though contract support costs are an indefinite appropriation, there is still a limit to the amount of funds that can be provided. Avoiding decreases to line items outside of contract support costs would be most effective through shifting contract support costs from discretionary to mandatory funding. This is supported by the Biden Administration and was included in the President’s FY2025 Budget Proposal, classifying contract support costs as mandatory beginning in 2026. 

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.

On May 10, 2024, the Centers for Medicare and Medicaid Services (CMS) issued a final rule regarding ensuring access to Medicaid services. This final rule addresses access to care, quality and health outcomes, and better addressing health equity issues in the Medicaid program across fee-for-service (FFS), managed care delivery systems, and in home and community-based services (HCBS) programs. While the final rule was not responsive to comments submitted by the National Council of Urban Indian Health (NCUIH), CMS stated that states with one or more urban Indian organizations (UIOs) that furnish health care services must consult with the UIO(s) on a regular, ongoing basis. UIOs are also eligible to be on states’ Medicaid Advisory Committees (MACs).

Background

On May 3, 2023, CMS issued the proposed rule on ensuring access to Medicaid services. The proposed rule included both proposed changes to current requirements and newly proposed requirements that would advance CMS’s efforts to improve access to care, quality, and health outcomes, and better promote health equity for Medicaid beneficiaries across FFS and managed care delivery systems, including for home and community-based services provided through those delivery systems. These proposed requirements were intended to increase transparency and accountability, standardize data and monitoring, and create opportunities for states to promote active beneficiary engagement in their Medicaid programs.

NCUIH’s Advocacy and CMS’ Response

On July 3, 2023, NCUIH submitted written comments and recommendations to CMS Administrator, Chiquita Brooks-LaSure, in response to the May 2, 2023, request for comment on the CMS proposed rule regarding ensuring access to Medicaid services. In its comments, NCUIH asked that CMS:

• Ensure UIO and American Indian and Alaska Native representation on each state Medicaid Advisory Committee (MAC) and Beneficiary Advisory Group (BAG)—now called the Beneficiary Advisory Council (BAC).
• Ensure the rule does not impose additional burdensome reporting requirements on providers.
• Engage with the Tribal Technical Advisory Committee (TTAG) to consider regulations or guidance to enforce the state consultation and confer requirements.
• Support 100% Federal Medical Assistance Percentage (FMAP) for Medicaid services provided at UIOs to ensure American Indian and Alaska Native Medicaid beneficiaries receive appropriate, quality culturally competent care.

NCUIH will continue to advocate for CMS to ensure UIO American Indian and Alaska Native beneficiaries have continued access to Medicaid services.