Ramah wins landmark case in U.S. Supreme Court

By Bill Donovan
Special to the Times

WINDOW ROCK, June 21, 2012

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A promise is a promise, even when it comes from the federal government, according to a decision released this week by the U.S. Supreme Court in a case involving the Ramah Chapter.

"This is a big case," said former Navajo tribal chairman and president Peterson Zah, who has been involved with concerns by the Ramah Chapter back to when he was director of DNA People's Legal Services in the 1970s.

The case could mean millions of dollars to the Ramah Chapter and some 322 other tribes and organizations that joined the lawsuit over the years.

In a 5-4 decision, the Supreme Court ruled on behalf of the Ramah Chapter and others that the federal government must pay contract support costs to tribes that enter into agreements to manage federal programs.

"Consistent with longstanding principles of government contracting law, we hold that the government must pay each tribe's contract support costs in full," wrote Justice Sonia Sotomayor for the majority opinion.

Rodger Martinez, president of the Ramah Chapter, in interviews with The Guardian and other papers, said this just reaffirms the chapter's belief that "the government must pay us what we are entitled to."

Zah agrees, pointing out that when the Indian Self-Determination Act was approved during the Nixon administration, the BIA and other federal agencies began subcontracting hundreds of programs to tribes and other organizations.

In a lot of these cases, especially in areas like law enforcement, the federal government agreed to give tribes money to pay the costs to administer the programs.

In other cases, while the tribe got the money to pay for services, money for administration was capped, leaving the tribe or the organization scrambling to find other sources to pay for part or all of the administration.

The Supreme Court ruling puts that obligation squarely back on the shoulders of the federal government.

What occurred too often, said Zah, is that the federal government would make promises to pay for contract costs but later revise that, paying only a portion of the costs and saying in some cases that the money to pay all of the costs wasn't available.

The court ruling points out that from 1994 to 2001, Congress did not appropriate enough funds to pay all of the tribal contractors collectively, so the Interior Department reimbursed the tribe proportionally, giving them between 72 to 92 percent of their funds they should have been given.

In her majority opinion, Sotomayor says that once Congress appropriates enough funds to pay the contracts, the government can't back out of a promise on grounds of "insufficient appropriation," even if the contract uses language such as "subject to the availability of appropriations."

The ruling says the federal government has options it can look at to pay for the full cost and it is not the duty of the Supreme Court to mandate which of these options it should take.

"We make clear only that Congress has ample means at hand to resolve the situation underlying the tribes' suit," the opinion states.

Zah said that Michael Gross, a former DNA attorney who works now in Santa Fe, should be given credit, along with those in the chapter who have worked hard to make the federal government realize that they have an obligation to remain true to their word.

For Gross, it's part of a personal saga that began almost from the first day of his career at DNA when he was assigned to help Ramah Chapter when the federal government closed down its high school.

Gross was able to get foundations interested in the community's concerns about the closing of the school and eventually get enough funds to reopen it. And then he began tackling other problems within the schools and the chapter to where he now continues to handle their legal problems from his office in Santa Fe.

But he said Wednesday that while this is a victory, the legal battle may still be going on for years since the Supreme Court sent the matter back to the district court to resolve issues such as how much money the federal government will have to pay.

At one point in the proceedings, federal attorneys indicate they would continue to fight if they lost the case before the Supreme Court but Gross said that recently they indicated a willingness to resolve the issues in a timely manner.

He said federal attorneys once said in one of the proceedings that this was a "billion dollar case."

"That's their words, not mine," he said, adding that he has declined to give out any money figures since everything is still up in the air.

One indication of how much money the Ramah Chapter may receive may come from a settlement that was reached with the federal government over various other aspects of the case.

In that settlement, the federal government agreed to pay out $76 million, with $400,000 going to the Ramah Chapter.

One positive aspect of this case, Gross said, is that it seems that members of the U.S. Senate have been watching it because in discussions about future funding for these kinds of contracts, senate officials said Tuesday that there is enough money in the budget to pay all of the contract costs so there should not be any arguments in the future.

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