Tribes Win at SCOTUS While Brett Kavanaugh Cries Into His Beer
June 6 was a pretty good day!
On June 6, the same day we here at Wonkette were celebrating the 30th anniversary of Farmer v. Brennan, your corrupt Supreme Court celebrated by doing the right thing for twice this year. In a bit of Nice Times, an important Supreme Court case that was teetering on the edge of resolving very badly was boosted to victory by Associate Justice Neil Gorsuch and Chief Justice John Roberts joining the three good justices, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor. Some people on the court wanted to raid the piggy banks of tribal health providers, but someone else (:cough: Gorsuch *cough*) tripped them before they could get there.
The consolidated cases of Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe determined an important question of funding for tribal health services, and ensure that tribes won’t bear hundreds of millions of dollars of overhead costs, which would harm already marginal health services. The basics date back to basically forever or at least to before yr Wonkette was born, when the US government entered into treaties with many tribes that included a “medicine” clause, and then universalized that obligation after involuntarily kicking indigenous people off their lands, often the very lands that the treaties guaranteed to them forever.
Food and healthcare were the government’s make-goods for genocide and land theft, but the government wasn’t very good at making good. Trying to do better Congress created the Indian Health Service in 1955. They didn’t do any better. So that failure led to a 1975 law that that allowed for tribes to manage and provide services that were technically the responsibility of the US government, billing the IHS for costs.
In a shocking turn of events, even 1975’s Indian Self-Determination and Education Assistance Act (the “ISDA” for some reason) didn’t turn reservations into healthcare paradises. According to filings in the case by the Northern Arapaho (of Wyoming, natch), federal spending on the Indian Health Service is only one third the per capita spending of similar government programs with other beneficiaries. Meanwhile, our indigenous sibs are living 11 years less than the general population, on median (or however you grammar that).
Of course tribal governments want to do better than that. And they’re trying, but when the IHS doesn’t provide services directly, it’s still handicapping local tribal health services even compared to its absurdly low expenditures (which make it hard to recruit doctors and others).
One of the biggest ways the IHS shorts local health initiatives is just roundabout enough that it hasn’t been challenged before now. When the IHS provides services directly and a patient has Medicaid, Medicare, or other insurance coverage, it bills those other sources and collects the money. But in a quirk of bureaucracy reduction, it doesn’t do the billing itself. Instead either the General Services Administration or the Social Security Administration handles the paperwork and forwards IHS the monies.
When tribes take over health services, the IHS gives a lump sum per year that is expected to cover only those eligible who do not have some other insurance. The local service is required by their contract to bill those other agencies and private insurers on their own to make up the difference. The IHS could take the documentation from a local health service and pass it on to the GSA or SSA as part of its own paperwork, but it chooses not to. And because the IHS doesn’t pay for the billing process out of its own budget, it does not reimburse locals for the expense of hiring billing experts and chasing down all the insurance companies when locals do that billing.
In other countries this wouldn’t be such a large expense, because they have single payer plans. In the USA medical billing can be quite expensive. The Department of Health and Human services estimates that distributed local billing would cost between $800 million and $2 billion if every tribe chose to provide health services under the ISDA. Among the parties to the current lawsuit, the San Carlos Apache were out $1M per year for one three-year period under review by the court, and the Northern Arapaho $750K per year for two years.
The case shouldn’t have been particularly hard. The ISDA Act specifically requires IHS to provide sufficient funds for “contract support costs,” and the contracts specifically require medical billing and spending the insurance income on the contracts’ original health-related efforts. SCOTUSblog sums up Robert’s opinion like so:
“The reasonable direct and indirect contract support costs they incurred as a result,” Roberts continued, “are eligible for repayment” under federal law because the expenses arose as a result of the tribes’ contract with the IHS.
That’s what your lawyers call “dispositive.” Indian Country Today reported on the reaction from Wyoming:
“Today’s U.S. Supreme Court decision is a momentous victory for the Northern Arapaho people and the sovereignty of all tribes. This ruling upholds the promise of the Indian Self-Determination Act, which Congress passed with the intention of reimbursing tribes for their costs in administering health care programs. A judicial finding to the contrary would have cost our Tribe alone millions of dollars, leading to reduced services and programs that our community relies upon," read a statement by the Northern Arapaho Business Council.
Despite the straightforward nature of statutory wording, statutory intent, and the contracts themselves, the bulk of SCOTUS’s conservatives still found a way to make an easy decision into a squeaker.
In his dissent, Kavanaugh countered that federal law does “not support the Court’s decision.” And more broadly, he continued, “the extra federal money that the Court today green-lights does not come free.”
Kavanaugh was shedding a lot of tears for that money:
[T]oday’s decision may require Congress to substantially increase its overall annual appropriations for Indian healthcare, thereby taking money away from other federal programs or imposing additional costs on taxpayers.
We guess he gets weepy when the government is forced to spend money on persons who don’t have the minimal decency to be publicly traded corporations. I’m sure indigenous people the continent over are feeling terribly sad that Justice Kegstand et al. are having to endure the US government not listening to them. In the meantime, Roberts and Gorsuch can split half a cookie for following the contracts’ plain wording to its obvious conclusion.
Now all we have to do is increase actual services until enrolled tribal members have the same life expectancy as the rest of us. That shouldn’t be too hard, as long as we can keep counting on this SCOTUS to make good decisions.
[SCOTUSblog / Indian Country Today / ruling]
I did a couple of clinical rotations on the Kalispell reservation. To say that the federal government has failed to assist indigenous leaders to retain sufficient general practice providers for reservation populations is a profound understatement. The facilities available to indigenous practitioners were disgracefully inadequate, the clinics were understaffed, underfunded, and lacking in some of the most basic diagnostic tools.
Along with my OB/GYN clinicals my time spent working in the reservation medical clinic were the most emotionally taxing experiences of my entire education.
Yeah, somehow Gorsuch rules the right way in cases involving first nations pretty regularly. Not sure why, but we'll take it!