Sonosky, Chambers, Sachse, Endreson & Perry, LLP was established in 1976 with a single purpose – to represent Indian tribes. And that is what we continue to do today – we represent tribes across the country in litigation, lobbying, economic development, health care, self-determination and self-government, transportation, tribal government, and more. Read more . . .
News and Announcements
On June 6, 2024, the Supreme Court issued a historic decision in Becerra v. San Carlos Apache Tribe concluding that the Indian Health Service practice of not reimbursing contract support costs incurred in operating tribal health care programs funded with Medicare, Medicaid, private insurance and other program income violated the Indian Self-Determination Act and contracts and compacts awarded under that Act. IHS estimates the immediate impact could be an additional $800 million to $2 billion in annual payments to Tribes, although the precise amount is unknown. The Court’s decision is available here: https://www.supremecourt.gov/opinions/23pdf/23-250_2dp3.pdf
Our firm is honored to have represented the San Carlos Apache Tribe in this historic litigation. Lloyd Miller argued the case on the Tribe’s behalf, and critical members of the team included Becca Patterson, Whitney Leonard and Chloe Cotton, together with our colleagues at the Sidley Austin firm. (Adam Unikowsky from Jenner & Block argued on behalf of the Northern Arapaho Tribe.)
Lloyd Miller and Becca Patterson first successfully litigated this issue in 2015-2016 in Navajo Health Foundation—Sage Memorial Hospital, Inc. v Burwell, 263 F.Supp.3d 1083 (D. NM 2016). (The government filed, then abandoned, an appeal in that case.) But in 2021, the D.C. Circuit rejected a similar tribal claim in Swinomish Indian Community v. Becerra, 993 F.3d 917 (D.C. Cir. 2021).
In 2022, in San Carlos Apache Tribe v. Becerra, 53 F.4th 1236 (2022), the Ninth Circuit agreed with the outcome in Navajo Health Foundation, as did the Tenth Circuit in 2023 in Northern Arapaho Tribe v. Becerra, 61 F.4th 810 (2023). The Supreme Court granted the government’s certiorari petitions in both cases due to the conflict among the three Circuits.
Writing for the Court, Chief Justice Roberts reasoned that “Because a self-determination contract requires a tribe to spend program income to further the programs transferred to it in the contract, these provisions require IHS to pay contract support costs when a tribe does so[.]”
The Court relied on section 5325(m)(1) of the Act, which is a part of every contract and which provides that “[t]he program income earned by a tribal organization in the course of carrying out a self-determination contract—(1) shall be used by the tribal organization to further the general purposes of the contract … .” Since section 5325(a)(2) links IHS’s duty to reimburse contract support costs to “activities which must be carried out by a tribal organization as a contractor to ensure compliance with the terms of the contract,” the Court reasoned that 5325(m)(1)’s program income spending mandate requires IHS to reimburse contract support costs attributable to spending program income.
The Court also ruled that section 5325(a)(3) supports the Tribes because that section links contract support cost reimbursements to the operation of the “Federal program” covered by the contract, and the “Federal program” that Tribes take over from IHS is a program that is funded both with annual appropriations and with program income earned from Medicare, Medicaid and other sources.
In a concluding section, Chief Justice Roberts explains that “Aside from being inconsistent with the statute’s text, IHS’s failure to cover contract support costs for healthcare funded by program income inflicts a penalty on tribes for opting in favor of greater self-determination. Congress designed the statute to avoid such a counterproductive result.”
In the wake of the Court’s decision, Tribes across the country can be expected both to seek additional reimbursements for the annual cost of operating their self-determination contracts and self-governance compacts, and to file additional claims for back damages. Contract damages are generally paid through the Treasury Department’s Judgment Fund, and not by the contracting agency.
JOB ANNOUNCEMENT – Litigation Associate
Sonosky, Chambers, Sachse, Endreson & Perry LLP is seeking an associate attorney with 1-3 years of litigation experience in federal, state or tribal courts for our Washington D.C. or Portland, OR office. This position has the flexibility to accommodate both a hybrid work schedule and which office the associate will be located in.
Sonosky Chambers is a national law firm dedicated to representing Native American interests in a wide range of endeavors – including trial and appellate litigation, federal Indian law, tribal law, Indian self-determination and self-governance matters, transportation and infrastructure, natural resources, and economic development, among others.
To apply, candidates should send an application that includes a cover letter, resume, law school transcript, and a writing sample to Mary Pavel at mpavel@sonosky.com or visit our website at http://www.sonosky.com/careers.html to apply.
This position is open until filled. Applicants must be licensed to practice law. More details about the firm are available at www.sonosky.com.
The Indian Law Section is pleased to announce that the 2024 Lawrence R. Baca Lifetime Achievement Award Recipient is Lloyd Miller.
Lloyd Miller is a partner with Sonosky, Chambers, Sachse, Miller & Monkman LLP, and has devoted his 45-year career exclusively to advocating for American Indian and Alaska Native rights. Lloyd is best known for his long-fought victories in two Supreme Court cases, Cherokee Nation v. Leavitt [2005] and Salazar v. Ramah Navajo Chapter [2012]. These two victories and follow on litigations resulted in Tribes recovering an estimated $2 billion in damages against the United States, and also led to the creation of two indefinite appropriations accounts permitting the Indian Health Service and the Bureau of Indian Affairs to fund in full tribal contracts and compacts awarded under the Indian Self-Determination Act. These and related litigations (including the San Carlos case currently pending before the Supreme Court) built on extensive congressional work that Lloyd did in pressing for the enactment of amendments to the Indian Self-Determination Act in the 1980s and 1990s, as well as a series of later congressional oversight hearings examining agency practices under that Act. Read more...