Whether the Indian Self-Determination and Education Assistance Act requires the Indian Health Service to pay contract support costs for tribal healthcare programs based on third-party revenue collected by the tribe, or whether such costs are limited to those directly attributable to the IHS contract and excludable under 25 U.S.C. § 5326

No question identified. : 2 under 28 U.S.C. 1254(1). Copies of the opinion of the court of appeals, which is reported at 53 F.4th 1236, and the order denying rehearing are attached. App., infra, la-19a. 1. Congress enacted the Indian Self-Determination and Education Assistance Act (ISDA or ISDEAA), Pub. L. No. 93-638, 88 Stat. 2203, in 1975 to promote “effective and meaningful participation by the Indian people in the planning, conduct, and administration” of federal programs and services for Indians. 25 U.S.C. 5302 (b). Until that time, such programs and services were primarily administered directly by the federal government. See S. Rep. No. 274, 100th Cong., 1st Sess. 2-3 (1987). Under the ISDA, Indian tribes may elect to enter into “self-determination contracts” with the Secretary of Health and Human Services (HHS) or the Secretary of the Interior to assume operation of programs administered by those Departments. 25 U.S.C. 5321. This case involves a self-determination contract between a tribe and the Indian Health Service (IHS), to which the HHS Secretary has delegated his ISDA contracting authority. When a tribe enters into a self-determination contract, IHS must transfer to the tribe the amount of appropriated funds that the Secretary, through IHS, would otherwise have provided to the program. 25 U.S.C. 5325(a) (1). This is commonly known as the “Secretarial amount.” Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 186 (2012). The ISDA also requires IHS to pay tribes “contract support costs” to cover the cost to the tribe of necessary 3 program activities that IHS would not have covered with its appropriated funds. See 25 U.S.C. 5325(a) (2). Specifically, the ISDA defines contract support costs as an amount “added to” the Secretarial amount to cover “the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which” “normally are not carried on by the * * * Secretary in his direct operation of the program” or “are provided by the Secretary in support of the contracted program from resources other than those under contract.” Ibid. The ISDA breaks down “eligible” contract support costs into “direct” and “indirect” categories. See 25 U.S.C. 5325(a) (3) (A). Direct contract support costs generally include specific expenses the tribe must cover to operate the federal program, such as paying into state workers’ compensation programs for healthcare employees. 25 U.S.C. 5325(a) (3) (A) (i); see Cherokee Nation v. Leavitt, 543 U.S. 631, 635 (2005). Indirect contract support costs include “any additional administrative or other expense incurred by the governing body of the Indian Tribe * * * and any overhead expense incurred by the tribal contractor in connection with the operation of the Federal program x kK pursuant to the contract.” 25 U.S.C. 5325(a) (3) (A) (ii). These indirect costs are typically pooled overhead costs that benefit multiple programs, such as auditing infrastructure. See Cherokee Nation, 543 U.S. at 635. As also relevant here, in 1998, Congress enacted a provision clari 4 7 fying that “notwithstanding any other provision of law,” IHS may pay tribes contract support costs “only for costs directly attributable to contracts x * * pursuant to the Indian Self” Determination Act,” and may not pay “any contract support costs or indirect costs associated with any contract, grant, cooperative agreement, self-governance compact, or funding agreement” between the tribe “and any entity other than the Indian Health Service.” 25 U.S.C. 5326. In separate legislation titled the Indian Health Care Improvement Act, as amended, Congress gave contracting tribes the option to collect third-party payment for services from payors like Medicare, Medicaid, and private health insurers. See 25 U.S.C. 162le, 1641(d). The ISDA addresses this “program income,” providing that such income “shall not be a basis for reducing t