In advance of the November 13 White House Tribal Nations Conference, tribal leaders are stepping up criticism of the Obama administration regarding its plan to cap future contract support cost (CSC) reimbursements to tribes, while avoiding payment of millions of dollars in what is already owed.
Sixty tribal leaders and organizations sent a letter October 28 directly to President Barack Obama on the matter. Brian Cladoosby, newly elected president of the National Congress of American Indians, and Ron Allen, a leader with the Self-Governance Communication and Education Tribal Consortium, were among the signatories.
“Mr. President, your Administration has been a beacon of hope in its management of Native American affairs,” the tribal leaders wrote. “But when it comes to honoring the Nation’s commitment to the contracting and compacting Tribes who were historically, and illegally, underpaid, and who continue to be underpaid, the Administration has permitted fiscal concerns to eclipse the imperative to do justice and to honor the Nation’s obligations.”
The tribes say they have been forced to pay at least $200 million in CSC for which the federal government is responsible, and they note the Supreme Court ruled in two recent rulings said that the government is responsible for such costs as part of its trust responsibility obligations to tribes.
“In June 2012—more than 16 months ago—the Supreme Court rejected the Government’s defense to these breach of contract claims, and ruled that the Government acted illegally in failing to pay Tribes and tribal contractors the full contract price due under their Indian Self-Determination Act contracts,” the tribal leaders noted in their letter. “But rather than acting quickly to resolve these claims and to make amends to tribes and tribal contractors who have had to litigate their claims every step of the way, the agencies have instead engaged in renewed dilatory tactics which only further delay justice and further burden tribes with slow, expensive and unnecessary accounting battles.”
The decision to write directly to the president came after unsuccessful attempts to get the Indian Health Service (IHS), the Bureau of Indian Affairs (BIA), and the Office of Management and Budget (OMB) to abandon plans to try to cap CSC payments to tribes as part of the congressional budgetary process, according to tribal leaders. White House Indian-focused staffers, including Jodi Gillette and Charles Galbraith, have also been unsuccessful in getting rid of the plan, despite multiple pleas from tribes.
The plan to cap CSC was first released by the White House as part of the president’s budget plan last April, but it was knocked down by Republicans in the House and Democrats in the Senate as part of the continuing resolution budget process in September and October.
In the letter, the tribal leaders call the administration’s plan “hostile,” adding, “[n]othing could be a more direct attack on the Indian Self-Determination Act and the Nation’s commitment to Tribal Self-Governance than this new initiative.”
Tribal leaders are calling on the president to have the OMB promptly withdraw the proposal. They also point out several problems they have with the administration’s approach here to date, noting that the IHS and the BIA have failed to promptly settle all outstanding historical claims over unpaid contract support costs.
“This failure is stunning, since the BIA and IHS regularly reported to Congress on the precise extent of the agencies’ annual underpayments,” the tribal leaders wrote. “The IHS even reported those annual underpayments by individual tribe. Despite years of contemporaneous data documenting the Government’s underpayments, the agencies have launched a campaign to re-audit all contracts, to re-calculate new indirect cost rates, to retroactively create new accounting rules, and to essentially convert fixed-price tribal contracts into cost-reimbursable contracts, all in an effort to laboriously re-determine the amount of underpayments on a tribe-by-tribe and year-by-year basis. The result: in 16 months IHS has settled 16 out of roughly 1,600 claims—just one percent of all the outstanding claims against IHS. For its part, the BIA has yet to even begin to re-audit a sample of the 9,000 contracts that were underpaid by the agency, an exercise that could push off any settlement for years.”
Tribal leaders are now telling the president that the “time for delay is over.
“The Supreme Court has spoken,” they wrote. “It has declared that the agencies acted illegally when they failed to fully pay each tribe’s contract. Given the wealth of available data about the underpayments compiled by the agencies themselves, settlement of all cases should have taken but a few months; it should not take a few years. This Administration has settled historic tribal claims when far less data was available and where no court rulings existed, much less definitive Supreme Court rulings in the tribes’ favor. The time to settle all outstanding claims is now.”