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UNITED STATES COURT OF FEDERAL CLAIMS ) ) SAMISH INDIAN NATION, a federally ) recognized Indian tribe, ) Case No. 02-1383L ) (Chief Judge Edward J. Damich) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) Samish Indian Nation's Opposition to United States' Motion to Dismiss Regarding Tribal Priority Allocations and Indian Health Service Funding Craig J. Dorsay, Esq. Attorney at Law 2121 S.W. Broadway, Suite 100 Portland, Oregon 97201 Tel: (503) 790-9060; Fax: (503) 242-9001 [email protected] Counsel of Record for Plaintiff Samish Indian Nation Of Counsel: William R. Perry, Esq. Anne D. Noto, Esq. Sonosky, Chambers, Sachse, Endreson & Perry, LLP 1425 K Street, N.W., Suite 600 Washington, D.C. 20005 Tel: (202) 682-0240; Fax: (202) 682-0249 [email protected]; [email protected] May 2, 2007

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Table of Contents Table of Authorities.................................................................................................................. vii Question Presented ..................................................................................................................... 1 Introduction................................................................................................................................ 1 Statement of the Case ................................................................................................................. 2 Facts........................................................................................................................................... 7 A. B. Tribal Priority Allocations ....................................................................... 7 Indian Health Service Funding ............................................................... 15

Argument ................................................................................................................................. 23 I. This Court has jurisdiction................................................................................. 23 A. B. C. D. II. A statutory scheme is money-mandating where a "fair interpretation" of the statutes supports a damages remedy. ..................... 23 A statutory scheme that provides money for the benefit of a designated class of beneficiaries is money-mandating. ........................... 25 Indian law principles must inform the understanding of Congressional intent here. ...................................................................... 27 The statutory schemes underlying TPA and IHS are moneymandating. ............................................................................................. 31

The Government's Arguments Should Be Rejected ........................................... 32 A. B. C. Lincoln v. Vigil, 508 U.S. 182 (1993) is not controlling here........................................................................................................ 32 This Court's Mitchell line of cases does not support dismissal here. ....................................................................................... 36 Other arguments by the government have no merit................................. 38

Conclusion ............................................................................................................................... 40

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Appendix I. History relating to federal recognition of the Samish Indian Nation Ex. 1 Page

United States Department of the Interior, Office of Hearings and Appeals, Recommended Decision of Administrative Law Judge Torbett, No. Indian 93-1 (Aug. 31, 1995)..............................................................1 Assistant Secretary for Indian Affairs, Final Determination to Acknowledge the Samish Tribal Organization as a Tribe (Nov. 8, 1995) ..................................................................................................................66 Assistant Secretary's Decision, 61 Fed. Reg. 15,825 (April 9, 1996) ................................................................................................................109 Greene v. Babbitt, No. C89-645Z (Final Judgment) (W.D. Wash. Nov. 1, 1996)....................................................................................................111

Ex. 2

Ex. 3 Ex. 4 II.

Tribal Priority Allocations Ex. 5 Declaration of James H. McDivitt .....................................................................113 Attachment A........................................................................................140 Attachment B ........................................................................................164 Attachment C ........................................................................................190 Ex. 6 United States Department of the Interior, Budget Justifications, F.Y. 1992, as printed in Department of the Interior and Related Agencies Appropriations for 1992, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 102nd Cong. part 2, 885-891, 1297-1316 (1991) .............................................................................................222 United States Department of the Interior, Budget Justifications, F.Y. 1993, as printed in Department of the Interior and Related Agencies Appropriations for 1993, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 102nd Cong. part 2, 877-883, 1231-1250 (1992) .............................................................................................238 United States Department of the Interior, Budget Justifications, F.Y. 1994, as printed in Department of the Interior and Related Agencies Appropriations for 1994, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 103rd Cong. part 2, 867-873, 1202-1226 (1993) .............................................................................................254

Ex. 7

Ex. 8

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Ex. 9

United States Department of the Interior, Budget Justifications, F.Y. 1995, as printed in Department of the Interior and Related Agencies Appropriations for 1995, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 103rd Cong. part 2, 961-967, 1328-1351 (1994) .............................................................................................272

Ex. 10 United States Department of the Interior, Budget Justifications, F.Y. 1996, as printed in Department of the Interior and Related Agencies Appropriations for 1996, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 104th Cong. part 2, 773-781, 1150-1280 (1995) .............................................................................................289 Ex. 11 United States Department of the Interior, Budget Justifications, F.Y. 1997, as printed in Department of the Interior and Related Agencies Appropriations for 1997, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 104th Cong. part 4, 1-5, 298349 (1996) ........................................................................................................321 Ex. 12 United States Department of the Interior, Budget Justifications, F.Y. 1998, as printed in Department of the Interior and Related Agencies Appropriations for 1998, Hearings Before a Subcomm. of the H. Comm. on Appropriations, 105th Cong. part 2, 631-679, 972-1022 (1997) ...............................................................................................351 B. Ex. 13 Appropriations Acts on TPA Department of the Interior and Related Agencies Appropriations Act for FY 1992, Pub. L. No. 102-381, 106 Stat. 1374, 1388-90 (1992)...............................................................................................................386 Department of the Interior and Related Agencies Appropriations Act for FY 1994, Pub. L. No. 103-138, 107 Stat. 1379, 1390-92 (1993)...............................................................................................................390 Department of the Interior and Related Agencies Appropriations Act for FY 1995, Pub. L. No. 103-332, 108 Stat. 2499, 2510-12 (1994)...............................................................................................................394 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-169 - 1321-170 (1996)...............................................................................................................398 Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009, 3009-192 - 3009-194 (1996) ......................................401 Department of the Interior and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-83, 111 Stat. 1543, 1554-1555 (1997) ....................405

Ex. 14

Ex. 15

Ex. 16

Ex. 17 Ex. 18

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Ex. 19 Ex. 20 C. Ex. 21 Ex. 22 Ex. 23 D.

Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501, 1501A-164 (1999)...........................................................................409 Interior Appropriations Act for FY 2001, Pub. L. No. 106-291, 114 Stat. 922, 934-935, 944 (2000)...................................................................411 Congressional Committee Reports on TPA S. Rep. No. 103-114, 49-51 (1993) ...................................................................415 H.R. Rep. No. 103-158, 49-50 (1993) ...............................................................419 S. Rep. No. 102-345, 46-48 (1992) ...................................................................422 Congressional Hearings and Reports submitted to Congress on TPA

Ex. 24 Department of the Interior and Related Agencies Appropriations for 1996, Hearings Before a Subcomm. of the H. Comm. on Appropriations, Part 11, 104th Cong. 936, 969 (1995) .......................................426 Ex. 25 Fiscal Year 1998 Budget, Oversight Hearing of the President's Budget Request for the Bureau of Indian Affairs and the Indian Health Service, Before the S. Comm. on Indian Affairs, 105th Cong. part 2, addendum, 1-19 (1997)................................................................429 Ex. 26 Department of the Interior and Related Agencies Appropriations for Fiscal Year 1998, Hearings on H. R. 2107 before a Subcomm. of the S. Comm. on Appropriations, 105th Cong. 111, 119-120 (1997)...............................................................................................................440 Ex. 27 H.R. 2107, Interior Appropriations Bill for Fiscal Year 1998, 105th Cong. §118 (1997) ............................................................................................444 Ex. 28 U.S. General Accounting Office: Report to Congressional Requesters: Indian Programs, Tribal Priority Allocations Do Not Target the Neediest Tribes, GAO/RCED 98-181, at 1-6 (July 1998) ................................................................................................................448 Ex. 29 Tribal Allocations by BIA Fiscal Year 1999, Hearing Before the S. Comm. on Indian Affairs, on Task Force Findings on Providing a Method of Distributing Additional Tribal Priority Allocations Funds, 105th Cong. 22-29, 93 (1998)................................................................455 Ex. 30 Empowerment of Tribal Governments: Final Workgroup Report, Tribal Workgroup on Tribal Needs Assessments, Related to: Bureau of Indian Affairs Tribal Priority Allocations (May 1999) 1-3 (Executive Summary) .................................................................................465

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Ex. 31 Department of Interior Bureau of Indian Affairs, Report on Tribal Priority Allocations, 1-5, 86 (July 1999) ..................................................................... 472 III. Indian Health Service Funding Ex. 32 Declaration of David T. Mather ........................................................................485 A. Ex. 33 Ex. 34 Ex. 35 Ex. 36 B. Ex. 37 Ex. 38 Ex. 39 Ex. 40 Ex. 41 C. Statutes Indian Health Care Improvement Act (IHCIA), Pub. L. No. 94437, tit. II, § 201, 90 Stat. 1400 (1976)..............................................................504 Indian Health Care Amendments of 1980, Pub. L. No. 96-537, 94 Stat. 3173, 3178 (1980).....................................................................................519 Indian Health Care Amendments of 1988, Pub. L. No. 100-713, 102 State. 4784-4785, 4800-4803, 4428 (1988).................................................521 Indian Health Amendments of 1992, Pub. L. No. 102-573, 108 Stat. 4526-4530, 4544-4546 (1992)...................................................................528 Congressional Committee Reports on IHCIA amendments H.R. Rep. No. 94-1026, 13-17 (1976) ...............................................................536 S. Rep. No. 96-758, 2-27 (1980), as reprinted in 1980 U.S.C.C.A.N. 6645-6648, 6664-6670 ...............................................................541 S. Rep. No. 100-508, 1-5, 8-11, 29, 37-40 (1988), as reprinted in 1988 U.S.C.C.A.N. 6183- 6187, 6190-6193, 6211, 6219-6222..........................550 S. Rep No. 102-392, 1-7, 14-16 (1992), as reprinted in 1992 U.S.C.C.A.N. 3943-3949, 3956-3958 ...............................................................564 H.R. Rep. No. 102-643, 42,73-74 (1992) ..........................................................574 Congressional Committee Reports on IHS

Ex. 42 H.R. Rep. No. 103-740, 51-52 (1994) (Conf. Rep.) ...........................................578 Ex. 43 H.R. Rep. No. 104-173, 94-98 (1995) ...............................................................581 Ex. 44 H.R. Rep. No. 104-625, 91 (1996) ....................................................................587 Ex. 45 S. Rep. No. 105-56, 97 (1997) ..........................................................................589 Ex. 46 S. Rep. No. 106-99, 98 (1999) ..........................................................................591

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Ex. 47 S. Rep. No. 107-170, 1-2 (2002) .......................................................................593 IV. Congressional Committee Report on Federally Recognized Tribes Ex. 48 H.R. Rep. No. 103-781, 1-4 (1994), as reprinted in 1994 U.S.C.C.A.N. 3768, 3768-3770.........................................................................595

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Table of Authorities Cases Agwiak v. United States, 347 F.3d 1375 (Fed. Cir. 2003) .................................................... 24, 37 Bath Iron Works Corp. v. United States, 20 F.3d 1567 (Fed. Cir. 1994) .................................... 34 Bowen v. Massachusetts, 487 U.S. 879 (1988).......................................................................... 38 Britell v. United States, 372 F.3d 1370 (Fed. Cir. 2004)............................................................ 30 Byrnes v. United States, 330 F.2d 986 (Ct. Cl. 1963) ................................................................ 33 Chippewa Indians of Minn. v. United States, 307 U.S. 1 (1939) ................................................ 27 Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003)............................................................. 24 Doe v. United States, 100 F.3d 1576 (Fed. Cir. 1997) ......................................................... 25, 26 Doe v. United States, 16 Cl. Ct. 412 (1989) .............................................................................. 34 Doe v. United States, 463 F.3d 1314 (Fed. Cir. 2006) ............................................................... 37 Duwamish v. United States, 79 Ct. Cl. 530 (1934) ...................................................................... 2 Gentry v. United States, 546 F.2d 343 (Ct. Cl. 1976) ................................................................ 30 Grav v. United States, 886 F.2d 1305 (Fed. Cir. 1989).............................................................. 26 Greene v. Babbitt, 943 F.Supp. 1278 (W.D. Wash. 1996) ................................................1, 3, 4, 5 Greene v. Lujan, 1992 WL 533059 (W.D. Wash.), aff'd, Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995)................................................................................................... 2, 3 Greene v. United States, 996 F.2d 973 (9th Cir. 1993) ............................................................... 27 Hannon v. United States, 29 Fed. Cl. 142 (1993) ...................................................................... 33 Joint Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975) .................................................................................................................................. 27 Katz v. Cisernos, 16 F.3d 1204 (Fed. Cir. 1994) ....................................................................... 38 Lebeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007) .......................................................... 37 Lincoln v. Vigil, 508 U.S. 182 (1993).......................................................................32, 33, 34, 35 McBryde v. United States, 299 F.3d 1357 (Fed. Cir. 2002)........................................................ 26 McHenry v. United States, 367 F.3d 1370 (Fed. Cir. 2004) ....................................................... 37 Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968)........................................... 27 Morton v. Ruiz, 415 U.S. 199 (1974) ................................................................. 28, 29, 30, 31, 33 Nat'l Ctr. For Mfg. Sci. v. United States, 114 F.3d 196 (Fed. Cir. 1997) ................................... 38 Navajo Nation v. United States, 347 F.3d 1327 (Fed. Cir. 2004) ............................................... 36 Reidell v. United States, 43 Fed. Cl. 770 (1999)........................................................................ 24

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Rincon Band of Mission Indians v. Califano, 464 F. Supp. 934 (N.D.Cal. 1979), aff'd sub nom Rincon Band of Mission Indians v. Harris, 618 F.2d 569 (9th Cir. 1980) .................................................................................................................................. 20 Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005) ........... 3, 5, 20, 25, 29, 37 Samish Tribe of Indians v. United States, 6 Ind. Cl. Comm. 159 (1958) ...................................... 2 Saraco v. United States, 61 F.3d 863 (Fed. Cir. 1995)............................................................... 26 Sawyer v. United States, 930 F.2d 1577 (Fed. Cir. 1991) .......................................................... 26 Suburban Mortg. Assoc., Inc. v. United States Dep't of Hous. and Urban Dev., 480 F.3d 1116 (Fed. Cir. 2007) ........................................................................................... 38 Tiger v. W. Inv. Co., 221 U.S. 286 (1911) ................................................................................. 27 Tyson v. United States, 32 F. Supp. 135 (Ct. Cl. 1940).............................................................. 26 United States v. Dion, 476 U.S. 734 (1986)............................................................................... 27 United States v. Mitchell, 445 U.S. 535 (1980) ......................................................................... 36 United States v. Mitchell, 463 U.S. 206 (1983) ..............................................................36, 37, 38 United States v. Navajo Nation, 537 U.S. 488 (2003)................................................................ 36 United States v. Nice, 241 U.S. 591 (1916) ............................................................................... 27 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003)...........................1, 2, 23, 36 Vigil v. Rhoades, 953 F.2d 1225 (10th Cir. 1992) ...................................................................... 33 White Mountain Apache Tribe v. United States, 249 F.3d 1364, aff'd 537 U.S. 465 (2003)........................................................................................................................... 35, 36 Treaties and Statutes 1855 Treaty of Point Elliott. 12 Stat. 927 (Jan. 22, 1855)............................................................ 2 31 U.S.C. § 1304 ...................................................................................................................... 34 Anti-Deficiency Act, 31 U.S.C. § 1341(a) ................................................................................ 34 Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501, § 127 (1999) .......................................................................................................................... 14 Department of the Interior and Related Agencies Appropriations Act for FY 1993, Pub. L. No. 102-381, 106 Stat. 1374 (1992) ........................................................................ 14 Department of the Interior and Related Agencies Appropriations Act for FY 1994, Pub. L. No. 103-138, 107 Stat. 1379 (1993) ........................................................................ 14 Department of the Interior and Related Agencies Appropriations Act for FY 1995, Pub. L. No. 103-332, 108 Stat. 2499 (1994) ........................................................................ 14 Department of the Interior and Related Agencies Appropriations Act for FY 1998, Pub. L. No. 105-83, 111 Stat. 1543 (1997).......................................................................... 14

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Department of the Interior and Related Agencies Appropriations Act for FY 2001, Pub. L. No. 106-291, 114 Stat. 922 (2000).......................................................................... 15 Federally-Recognized Indian Tribe List Act of 1994, Pub. L. No. 103-454, § 103(4), 108 Stat. 4791 (1994), codified at 25 U.S.C. § 479a................................................ 27 Higher Education Tribal Grant Authorization Act, Pub. L. No. 102-325, pt. B, 106 Stat. 798 (1992), codified at 25 U.S.C. §§ 3301-3307 ........................................................... 7 Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, Pub. L. No. 99-570, tit. IV, subtit. C, 100 Stat. 3207, codified as amended at 25 U.S.C. §§ 2401-2478 ............................................................................................................ 7 Indian Child Protection and Family Violence Prevention Act, Pub. L. No. 101630, tit. IV, 104 Stat. 4544 (1990), codified at 25 U.S.C. §§ 3201-3211................................ 7 Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069, codified at 25 U.S.C. §§ 1901-1963 ....................................................................................................... 7 Indian Health Care Improvement Act, Pub. L. No. 94-437, 90 Stat. 1400 (1976), codified as amended at 25 U.S.C. §§ 1601-1683......................................................16, 17, 32 Indian Health Care Amendments of 1980, Pub. L. No. 96-537, 94 Stat. 3173.................................................................................................................. 16, 20 Indian Health Care Amendments of 1988, Pub. L. No. 100-713, 102 Stat. 4784.................................................................................................................. 16, 18 Indian Health Amendments of 1992, Pub. L. No. 102-573, 108 Stat. 4526 .............. 16, 18 Indian Self-Determination Act, 25 U.S.C. §§ 450-450n ....................................... 5, 17, 20, 21, 29 25 U.S.C. § 450f ............................................................................................................. 9 25 U.S.C. § 450j-1(a)(1) ............................................................................................... 21 25 U.S.C. §§ 476(f), (g) ................................................................................................ 30 Indian Tucker Act, 28 U.S.C. § 1505........................................................................................ 24 Johnson-O'Malley Act, ch. 147, 48 Stat. 596 (1934), codified as amended at 25 U.S.C. §§ 452-457 ................................................................................................................ 7 Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996) ........................................................................................................................ 14 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996)........................................................................................... 14 Snyder Act, 25 U.S.C. § 13..........................................................................................5, 7, 16, 35 Tucker Act, 28 U.S.C. § 1491(a)(1) .......................................................................................... 24 Congressional Materials Department of Interior Bureau of Indian Affairs, Report on Tribal Priority Allocations (July 1999) ................................................................................................. 11, 12

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Department of the Interior and Related Agencies Appropriations for 1996, Hearings Before a Subcomm. of the Comm. on Appropriations, Part 11, 104th Cong. 969 (1995)................................................................................................................ 10 Department of the Interior and Related Agencies Appropriations for Fiscal Year 1998, Hearings on H. R. 2107 before a Subcomm. of the S. Comm. on Appropriations, 105th Cong. (1997) .................................................................................... 10 Empowerment of Tribal Governments: Final Workgroup Report, Tribal Workgroup on Tribal Needs Assessments, Related to: Bureau of Indian Affairs Tribal Priority Allocations (May 1999)............................................................................... 11 Fiscal Year 1998 Budget, Oversight Hearing of the President's Budget Request for the Bureau of Indian Affairs and the Indian Health Service, Before the S. Comm. on Indian Affairs, Part 2, Addendum, 105th Cong. (1997).................................. 10, 28 H.R. 2107, 105th Cong. § 118 (1997) ........................................................................................ 10 H.R. Rep. No. 102-643 (1992).................................................................................................. 19 H.R. Rep. No. 103-158 (1993).................................................................................................. 13 H.R. Rep. No. 103-740 (1994).................................................................................................. 22 H.R. Rep. No. 103-781 (1994), as reprinted in 1994 U.S.C.C.A.N. 3768.................................. 27 H.R. Rep. No. 104-173 (1995).................................................................................................. 22 H.R. Rep. No. 104-625 (1996).................................................................................................. 22 H.R. Rep. No. 94-1026 (1976), as reprinted in 1976 U.S.C.C.A.N. 2652.................................. 17 S. Rep. No. 100-508 (1988), as reprinted in 1988 U.S.C.C.A.N. 6183...........................18, 19, 20 S. Rep. No. 102-345 (1992) ...................................................................................................... 13 S. Rep. No. 102-392 (1992), as reprinted in 1992 U.S.C.C.A.N. 3943...................................... 19 S. Rep. No. 103-114 (1993) ...................................................................................................... 13 S. Rep. No. 105-56 (1997)........................................................................................................ 22 S. Rep. No. 106-99 (1999)........................................................................................................ 22 S. Rep. No. 107-170 (2002) ...................................................................................................... 19 S. Rep. No. 96-758 (1980), as reprinted in 1980 U.S.C.C.A.N. 6645.................................. 16, 17 Tribal Allocations by BIA, Fiscal Year 1999, Hearing Before the S. Comm. on Indian Affairs on Tribal Priority Allocations, 105th Cong. (1998) ......................................... 8 U.S. General Accounting Office: Report to Congressional Requesters: Indian Programs, Tribal Priority Allocations Do Not Target the Neediest Tribes, GAO/RCED 98-181 (July 1998) ......................................................................................... 12

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Question Presented Whether Congress, in providing funds for the benefit of every federally recognized tribe, can fairly be understood to have intended a damages remedy where the government wrongfully excludes one tribe. Introduction The Samish Indian Nation ("Tribe") suffered a significant wrong at the hands of the federal government. After a federal bureaucrat dropped the Tribe from a 1969 list of tribes (an occurrence that could not later be explained or justified), the federal government simply stopped providing the Tribe with all the programs and services the government provided for the benefit of every other federally recognized tribe. The Samish were cut off without a cent. Efforts by the Tribe to restore its proper place as a federally recognized tribe were met with decades of agency delay, repeated denials of due process, and an unsavory course of federal conduct, including improper ex parte contacts that were later roundly criticized by the federal court that reviewed the matter. Greene v. Babbitt, 943 F.Supp. 1278, 1282-1295 (W.D. Wash. 1996). Congress provides certain federal funding for the benefit of all federally recognized tribes. This includes Tribal Priority Allocations ("TPA") and Indian Health Service ("IHS") funding, which are the subject of this opposition.1 Congress provides these funds (and the relevant federal agencies administer these funds) with the clear intention that they serve all federally recognized tribes. The legal issue here ­ whether the statutory schemes underlying TPA and IHS funding are "money-mandating" ­ turns on a fair inference of Congressional intent regarding damages under the narrow circumstances presented. United States v. White Mountain Apache Tribe, 537

1

In its Order of April 3, 2007, this Court authorized the Tribe to address these programs first. 1
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U.S. 465, 472 (2003). Where Congress provides funds to benefit every federally recognized tribe, but a federal agency nevertheless arbitrarily and wrongfully denies one tribe the benefits of such funding, it is fair to infer that Congress intended the harmed tribe to have a claim for damages. This is reinforced by the fact that the Bureau of Indian Affairs ("BIA") and IHS construed and implemented the TPA and IHS statutory schemes to require that every federally recognized tribe be benefited and Congress provided funding year after year based on the understanding that all tribes would be served, as we demonstrate below. Accordingly, the motion to dismiss should be denied. Statement of the Case The Tribe was a party to the 1855 Treaty of Point Elliott. 12 Stat. 927 (Jan. 22, 1855), and its status as a separate tribal entity was confirmed in litigation binding on the United States. Duwamish v. United States, 79 Ct. Cl. 530, 533 (1934); Samish Tribe of Indians v. United States, 6 Ind. Cl. Comm. 159 (1958). Prior to 1969, Samish Indians received federal health and other benefits provided by the United States to members of Indian tribes. Greene v. Babbitt, 64 F.3d 1266, 1269 (9th Cir. 1995), aff'g Greene v. Lujan, 1992 WL 533059, No. C89-645Z, at *7-*8 (W.D. Wash. Feb. 25, 1992). From that time forward, other tribes continued to receive federal funds to address a wide range of needs, but the Samish Indian Nation was excluded from participation in all federal programs from 1969 until 1996. Second Amended Complaint, ¶9. This did not arise from any action by Congress. Nor was there any formal administrative decision by the Department of the Interior ("Department") that the Samish were not entitled to federal recognition. Instead, the change was triggered by the action of a low level bureaucrat in the BIA, who prepared a list of tribes.

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Although the Samish Tribe was included on a 1966 BIA list of tribes, the Tribe was omitted from the list when it was revised in 1969. 2 These lists were "`never intended to be . . . list[s] of federally recognized tribes,'" and the Department employee who prepared the 1966 and 1969 lists had no authority to determine whether tribes were federally recognized. Ex. 1, ALJ Decision, App. B at 1, Fdgs., 1, 3. Nor could the Department adequately explain why the Tribe had been omitted from the 1969 list.3 Nevertheless, the 1969 list was later used by Department employees for purposes of determining whether they would treat the Tribe as recognized. Ex. 1, ALJ Decision, App. B at 1. The Federal Circuit, in summarizing this history, characterized the Department's conduct as "wrongful[]" and "arbitrary and capricious." Samish Indian Nation v. United States, 419 F.3d 1355, 1373 (Fed. Cir. 2005). In 1972, the Tribe petitioned the Department for a determination of its continued tribal existence. Greene, 943 F. Supp. at 1281. After extensive delays by the government, in February 1987, the Assistant Secretary for Indian Affairs issued a decision denying the Tribe's petition for recognition. In April 1989, the Tribe filed suit challenging the Assistant Secretary's adverse decision. The federal district court found that the Department's decision violated due process, as the Tribe was not afforded a hearing, and "there is evidence that would lead an objective bystander to believe that some of the decision-makers prejudged the case."4 On remand, the Administrative Law Judge ("ALJ") appointed to hear the Tribe's claim found that:
2

Ex. 1, United States Department of the Interior, Office of Hearings and Appeals, Recommended Decision of Administrative Law Judge Torbett, No. Indian 93-1 (Aug. 31, 1995) ("ALJ Decision"), App. B at 1, Fdgs. 1-3.
3

Greene, 943 F. Supp. at 1288 n.13; Ex. 4, Greene v. Babbitt, No. C89-645Z (Final Judgment) (W.D. Wash. Nov. 1, 1996).
4

Greene v. Lujan, 1992 WL 533059, at *9 (W.D. Wash.), aff'd, Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995). 3
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[T]here is no question that there is a preponderance of evidence to support the Petitioners as to each and every element contained in the recognition regulations. Further, there is no question that the quality of the evidence demonstrates that it is reasonable and believable that the Samish have continually existed as an Indian tribe up until this very day. The quality of the proof supports the Petitioner as to each element contained in the recognition regulations. Ex. 1, ALJ Decision at 19 (emphasis added). The ALJ also found that the failure of the Department to treat the Tribe as a federally recognized tribe was the result of the clerical error ­ under which the Tribe was removed from an internal list of Indian tribes which was later used by Interior personnel as a short-hand reference list. The ALJ concluded that the Department had no rational basis for omitting the Tribe, and that the list of tribes was not intended to be used by the Department to determine which Indian groups were or should be recognized by the United States. See Ex.1, ALJ Decision, App. B at 1. The ALJ's decision was forwarded to the Assistant Secretary for Indian Affairs for final action. In her decision, the Assistant Secretary removed the ALJ's findings that the Interior Department had no rational basis for omitting the Tribe from the Department's list of tribes. Ex. 2 at 38-39. The Assistant Secretary did this at the ex parte urging of Department officials because of concern about Department liability for not treating the Tribe as a recognized tribe between 1969 and 1996. Greene, 943 F. Supp. at 1282-85, 1288. The Tribe appealed that part of the Assistant Secretary's decision which removed findings made by the ALJ. On appeal, the district court found the ex parte communications to be unlawful,5 reinstated the findings, and characterized the Department's action as follows:

5

The court further found that "[t]he proceedings before the Bureau of Indian Affairs have been marred by both lengthy delays and a pattern of serious procedural due process violations. The decision to recognize the Samish took over twenty-five years, and the Department has twice disregarded the procedures mandated by the APA, the Constitution, and this Court." Greene, 943 F. Supp. at 1288 (footnote omitted). 4
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the omission of the Samish from a list of tribes prepared by [the Department of the Interior] in the 1960s was neither based on actual research, nor was it intended to be used as the basis for determining which Indian groups are to be recognized by the United States. 943 F. Supp. at 1288 n.13. The court emphasized the arbitrary nature of the Department's treatment of the Tribe: The Department of Interior could not adequately explain why the Samish had been omitted from a list of federally recognized tribes prepared during the 1970s. Ex. 4, Greene v. Babbitt, No. C89-645Z, slip op. at 2. The final decision in the Greene proceedings established that the Tribe continually existed as an Indian tribe from treaty times and accordingly should have been federally recognized all along. The Tribe brought this action in 2002. The Tribe contended that but for the wrongful action of the government in failing to treat the Samish as a federally recognized tribe from 1969 to 1996, the Tribe would have received the benefit of programs and services provided to every other tribe. This Court, in its initial ruling, dismissed the Tribe's claims. On appeal, the Federal Circuit affirmed with respect to claims arising solely under the Indian Self-Determination Act and Snyder Act, reversed with respect to the statute of limitations (holding that the remaining claims are not barred), and remanded for a determination by this Court on the "moneymandating" issue. Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005). The Tribe filed a Second Amended Complaint to refine and narrow its claims. The government again moved to dismiss. The Tribe sought discovery regarding the administrative construction and implementation of some of the statutes at issue ­ including those under which TPA and IHS funding are provided ­ to show that federal agencies have construed these statutes to provide funds to benefit all federally recognized tribes.

5
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This Court, acknowledging the relevance of the government's construction of the statutes, granted the Tribe's motion for limited discovery. As the Court stated, given the unique set of circumstances that brought Plaintiff before the Court, particularly the finding in Greene that the omission of the Tribe from the 1969 unofficial list was arbitrary, Plaintiff should have the opportunity to make this argument [that agency construction provides evidence from which to "fairly infer" that the statutory scheme is money-mandating] once all the relevant jurisdictional facts are known. Order of July 21, 2006, at 8. The Tribe submitted discovery requests, but the government responses were generally evasive, misleading or incomplete. See Ex. 5, Declaration of James H. McDivitt ("McDivitt Dec."), ¶45-49.6 In an effort to avoid protracted discovery disputes, the Tribe proposed that the Court permit briefing now on two major programs ­ TPA and IHS funding. Despite the government's failure to provide full answers to the Tribe's discovery requests, the Tribe offered to respond to the motion to dismiss on TPA and IHS, based on the Tribe's own research and experts. The Court ordered briefing as to TPA and IHS funding, as well as certain basic issues raised by the government. Order of April 3, 2007. This opposition addresses these matters in accordance with the Court's order. We turn next to the jurisdictional facts regarding TPA and IHS funding.

6

James H. McDivitt, is a career federal official (now retired) who served, among other things, as the Budget Officer for the BIA, Chief of Staff to the Assistant Secretary for Indian Affairs, and Deputy Assistant Secretary for Management, Indian Affairs in the Department of Interior. In these positions, he had major responsibilities regarding all aspects of the BIA budget, and became knowledgeable about the implementation and history of TPA and its predecessors. Id., ¶¶1-8. Mr. McDivitt's Declaration is offered 1) to respond to the Declaration of Debbie L. Clark submitted by the government with its motion to dismiss, 2) to provide a more detailed description of TPA and the manner in which it is funded, and 3) to provide jurisdictional facts pertaining to agency construction of the statutory scheme under which TPA is provided for the benefit of tribes. 6
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Facts A. Tribal Priority Allocations

The federal government provides funds for the benefit of every federally recognized Indian tribe. One major source of such funds is Tribal Priority Allocations, a category of funds appropriated by Congress each year. Ex. 5, McDivitt Dec., ¶17. TPA funding comprises about half the BIA operating budget and provides funds for core governmental functions in Indian country.7 TPA funds public safety programs, such as fire protection, tribal courts and road maintenance. Vital education programs ­ higher education scholarships, adult vocational education and Johnson-O'Malley aid to public schools in Indian country ­ are also TPA funded. So too are programs that address key social problems, including child abuse and neglect, and welfare assistance. Overall, TPA funds governmental activity that is essential to any government's ability to meet its responsibilities. Id., ¶17.8

7

TPA is part of the Bureau of Indian Affairs Appropriation Account "Operation of Indian Programs," and includes the subactivities Tribal Government, Human Services, Education, Public Safety and Justice, Community Development, Resource Management, Trust Services and General Administration. Id., ¶17. Within each of these categories, TPA funds specific program elements for a broad range of important programs for the benefit of Indian tribes and their members. Id.
8

TPA is provided under a range of federal statutes including the Johnson-O'Malley Act, ch. 147, 48 Stat. 596 (1934), codified as amended at 25 U.S.C. §§ 452-457, the Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069, codified at 25 U.S.C. §§ 1901-1963, the Higher Education Tribal Grant Authorization Act, Pub. L. No. 102-325, pt. B, 106 Stat. 798 (1992), codified at 25 U.S.C. §§ 3301-3307, the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, Pub. L. No. 99-570, tit. IV, subtit. C, 100 Stat. 3207, codified as amended at 25 U.S.C. §§ 2401-2478, and the Indian Child Protection and Family Violence Prevention Act, Pub. L. No. 101630, tit. IV, 104 Stat. 4544 (1990), codified at 25 U.S.C. §§ 3201-3211, as well as the annual Interior Appropriations Acts and the Snyder Act, 25 U.S.C. § 13. The government erroneously contends that the Tribe did not "allege or mention the TPA program in its First Amended Complaint . . ." and argues that the "Court should dismiss Plaintiff's statutes that were not contained in its previous complaint." Gov. Mot. at 14 n.3. As stated here and in the Second Amended Complaint, see ¶30a(iv), the TPA program is funded pursuant to a number of different statutes and the Tribe identified these statutes in its First Amended Complaint, in ¶¶5.d, 5.aa, 5.bb, 5.dd, 5.ff, 5.mm, and 5.nn. 7
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Formally established in Fiscal Year 1993, TPA was intended to provide tribes with input into the budgeting process, and flexibility to shift funds among TPA programs to address tribal needs. Under TPA, tribes set the priorities among the included programs. Funds provided for the benefit of a tribe under TPA can be used for any program within TPA, without special authorization from Congress. Thus, TPA is intended to support the federal Self-Determination policy, by providing for more tribal participation in the BIA budget process and greater tribal authority to allocate TPA funds to meet tribal needs.9 The Department's policy, practice and express statements confirm that TPA was provided for the benefit of every federally recognized Tribe. Ex. 5, McDivitt Dec., ¶50. Each year as part of the formal federal budget process, the BIA submits to Congress its Budget Justification (a lengthy document known as the "Green Book" because of the color of its cover). Ex. 5, McDivitt Dec., ¶¶9-12. The Green Book provides the basic program descriptions, rationales and amounts requested by the administration from Congress for the BIA's various activities, subactivities and programs. With respect to TPA, each Green Book, starting with Fiscal Year 1992, contained a table reporting the amount the BIA requested for TPA for the benefit of every federally recognized Tribe. See Id., ¶41. 10 In other words, the Department's practice in the

9

Prior to Fiscal Year 1993, most programs that are now part of TPA were funded under the BIA's "Operations of Indian Programs" appropriations account. During the 1970's these were generally referred to as "banded programs." From the early 1980's through 1992, the programs were part of the "Indian Priority System" within the BIA Budget. Ex. 5, McDivitt Dec., ¶¶18, 33. See also Ex. 29, Tribal Allocations by BIA, Fiscal Year 1999, Hearing Before the S. Comm. on Indian Affairs on Tribal Priority Allocations, 105th Cong. 28-29, 93 (1998). These were predecessors to TPA, and certain basic principles applied to these predecessors as they did to TPA ­ including that every federally recognized tribe benefited from these funds and that once a tribe received such funds those became part of the base funding for the benefit of that Tribe and were generally made available for the benefit of that Tribe in subsequent years. Second Amended Complaint, ¶30(a)(ii); Ex. 5, McDivitt Dec., ¶34.
10

See also Exs. 6 ­ 12 (Green Book TPA Tables for Fiscal Years 1992-1998). Mr. McDivitt, who has extensive experience regarding BIA budget matters, compared the official, published lists of 8
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relevant years (as it is now) was to request TPA funding from Congress on a tribe-by-tribe basis ­ with a specific amount designated for the benefit of each tribe.11 Attachments A-C of McDivitt Dec.). The Department administered TPA consistent with its Green Book requests. That is, after requesting TPA for every federally recognized Tribe, once Congress appropriated funds, "every federally recognized tribe was allocated some funds every year." Id., ¶19. As to these TPA funds, each tribe had the option of contracting to operate programs and provide services itself under the Indian Self-Determination Act,12 or having the programs and services provided by the BIA for the tribe's benefit. Ex. 5, McDivitt Dec., ¶19. Also, "once a federally recognized tribe received a particular amount of TPA funds, that amount became part of that Tribe's "base funding," and the Tribe was routinely allocated that amount in subsequent years as well." Id., ¶20; See Second Amended Complaint, ¶30a. As noted by Mr. McDivitt, the Department "never excluded a federally recognized tribe from an allocation of TPA (or its predecessors)." Ex. 5, McDivitt Dec., ¶21. The Department's statements to Congress reinforce this same point ­ that every federally recognized tribe benefited from TPA. During House Interior Appropriations Subcommittee federally recognized tribes with the TPA tables in the Green Books for fiscal years 1992, 1994 and 1998, and found that the lists reflect the Department's request to Congress to provide TPA to benefit every federally recognized tribe. Ex. 5, McDivitt Dec., ¶41. McDivitt further stated that "[i]f a similar comparison were made for each of the fiscal years, I am confident they would similarly show that the BIA allocated some TPA funding to every federally recognized tribe." Id. The published lists of federally recognized tribes examined by Mr. McDivitt are at 53 Fed. Reg. 52,829 (Dec. 29, 1988) and 61 Fed. Reg. 58,211 (Nov. 13, 1996). The 1988 list was the most recently-published list at the time the BIA prepared its budget justifications for FYs 1992 and 1994.
11

Id., ¶¶39-43 (and

The Department's policy was (and is) to support TPA funding for newly recognized tribes, and to seek separate funding for newly recognized in order to protect the base funding levels of other tribes. In some instances such additional new tribe funding was not received in the first year following recognition. Ex. 5, McDivitt Dec., ¶22.
12

25 U.S.C. § 450f. 9
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hearings in March 1995, the Committee submitted written questions to the Assistant Secretary for Indian Affairs, one of which asked whether every tribe regardless of size received TPA. The Assistant Secretary responded stating: Yes, Tribal Priority Allocations are distributed to every tribe. The Federal Government has a government-to-government relationship with all federallyrecognized tribes.13 The Department also told Congress that once TPA was appropriated and allocated to benefit a Tribe, that funding became a part of the tribe's "base funding," which (subject to overall increases or decreases) would be provided to the tribe in future years.14 Beginning in the mid-1990's, Congress considered whether to change the manner in which TPA was allocated among tribes. One proposal was to impose a "means testing" approach ­ to limit or eliminate TPA for those tribes that had the most outside income, including income from gaming.15 The Department "opposed means testing" and "argued it [the Department] lacked the authority to reduce a tribe's share of TPA funds. . . ." Ex. 5, McDivitt Dec., ¶21. As part of its process for considering means testing and other options, Congress asked the Department and the tribes to establish a workgroup. See Ex. 5, McDivitt Dec., ¶35. The resulting workgroup, which included both BIA and Tribal participants, closely examined the

13

Ex. 24, Department of the Interior and Related Agencies Appropriations for 1996, Hearings Before a Subcomm. of the Comm. on Appropriations, Part 11, 104th Cong. 969 (1995) (emphasis added). Ex. 5, McDivitt Dec., ¶29. See also, id., ¶30; Ex. 25, Fiscal Year 1998 Budget, Oversight Hearing of the President's Budget Request for the Bureau of Indian Affairs and the Indian Health Service, Before the S. Comm. on Indian Affairs, Part 2, Addendum, 105th Cong. 17 (1997). ("TPA base programs are those in which funds are distributed on a pro-rata basis among all Tribes.") (emphasis added).
14

Ex. 26, Department of the Interior and Related Agencies Appropriations for Fiscal Year 1998, Hearings on H. R. 2107 before a Subcomm. of the S. Comm. on Appropriations, 105th Cong. 120 (1997). See Ex. 5, McDivitt Dec., ¶32.
15

See Ex. 27, H.R. 2107, 105th Cong. § 118 (1997). This provision was ultimately not enacted, but was the subject of Congressional hearings and extensive consideration. 10
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history and policies surrounding TPA. The Tribal workgroup, which completed its report in May 1999, described TPA as follows: For years, Tribal Priority Allocations (TPA) base funds have been provided through the Bureau of Indian Affairs (BIA) to each of the more than 550 Tribal governments on a recurring basis. Tribes have used TPA funds to operate core governmental functions and essential programmatic services to address all Tribal needs.16 The Department submitted its report on TPA to Congress in July 1999. In its report, the Department described the unique mission and legal obligations that the BIA had to Indian tribes which made it unlike any other federal agency. The BIA is unique among government agencies in many respects. It is unique in relation to its own mission and structure. Some agencies operate programs or deliver services directly to beneficiaries; others are grant making agencies. Even in an agency that may combine the two functions, the line of demarcation is clear and established by statute. With few exceptions, potential beneficiaries of Federal services or grants do not have any form of "right" to the service or to a particular share of benefits; they merely have the right of access on equitable grounds. The BIA, on the other hand, serves all Federally recognized Tribes and groups. It operates either programs or contracts for the delivery of services at the discretion of the Tribes. The Tribes also have the right to change from direct BIA services to contracting and back again at virtually any time and for virtually any reason. 17 In response to a specific question raised as to whether "the most prosperous Tribes be required to give up their TPA allocations," the Tribal workgroup responded: No, Tribes should not be required to give up their TPA allocations. Consistent with Federal treatment of other governmental entities, any standard or criteria used to define "prosperous" should not be considered for Tribal governments. ***
16

Ex. 30, Empowerment of Tribal Governments: Final Workgroup Report, Tribal Workgroup on Tribal Needs Assessments, Related to: Bureau of Indian Affairs Tribal Priority Allocations (May 1999) at 3 (Executive Summary) (emphasis added).
17

Ex. 31, Department of Interior Bureau of Indian Affairs, Report on Tribal Priority Allocations, at 3-4 (July 1999) (emphasis added).

11
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All Tribes must be funded to fulfill the United States Government's unique responsibilities to Indian Tribal governments which are grounded in the Constitution, and treaties developed by the Congress and the Federal common law over the course of more than 200 years. Id. at 86. The BIA agreed with the Tribal position on this issue. The BIA stated (id.): BIA agrees with the TPA Tribal Workgroup and the responding Tribal leaders that Tribes should not be required to give up their TPA allocation based on prosperity or some measure of self-sufficiency. Despite the lengthy consideration of options regarding allocation of TPA, Congress did not then enact any provision to authorize means testing, and has not done so to this day. But the means testing debate underscores the common understanding of Congress, the Department and the tribes that absent a specific statutory provision to the contrary, the Department can not unilaterally reduce (much less eliminate) TPA funding for a tribe.18 As stated by Mr. McDivitt, who was a key BIA official on budget matters during this period, "I never heard any Department official express the view that the Department had the authority to exclude a federally recognized tribe from TPA." Ex. 5, McDivitt Dec., ¶21.19 Consistent with the representations by the Department, Congress clearly understood that TPA was provided for the benefit of every federally recognized tribe. Ex. 5, McDivitt Dec., ¶25. First, year after year Congress appropriated funds for TPA, following the express representation by the Department (in the Green Books) that it intended to provide TPA to every federally

18

"[A]ll of the discussions about modifications to the allocation were premised on the fundamental understanding that under the existing system, all federally recognized Indian tribes received an allocation of TPA." Ex. 5, McDivitt Dec., ¶28.
19

Congress also solicited a report from the General Accounting Office regarding the allocation of TPA funds. GAO in a report issued in 1999 found that "[a]ll federally recognized tribes are eligible to receive TPA funds," and that under TPA, "[t]he funding process used today has remained essentially the same since the early 1970's." Ex. 28, U.S. General Accounting Office: Report to Congressional Requesters: Indian Programs, Tribal Priority Allocations Do Not Target the Neediest Tribes, GAO/RCED 98-181, at 3 (July 1998); see also Ex. 5, McDivitt Dec., ¶¶32-33. 12
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recognized tribe. This longstanding pattern ­ the Department requesting TPA for the benefit of every federally recognized tribe and Congress providing the funds ­ provides significant evidence that Congress understood where the money was going and that Congress approved of that principle of allocation. Second, where Congress, in the appropriations process, provided an increase or decrease in TPA funds from the overall amount the Department proposed in the Green Book, Congress specified that every tribe would share in the increase or decrease. For example, in connection with a TPA increase regarding the 1994 Interior Appropriations Act, the Senate Appropriations Committee specified that "the additional $3,000,000 which the Committee recommends for tribal priority allocations represents an increase for distribution to all tribes according to their base."20 Similar instructions appeared in other years ­ each time directing that the overall amount be allocated among all tribes.21 Third, Congress expressly affirmed that each tribe could use its TPA funds for various purposes ­ in addition to the basic purpose of TPA to authorize tribes to reallocate funds among various TPA programs. For example, beginning with the 1993 Appropriations Act, Congress authorized tribes to set their own eligibility criteria for general assistance payments to indigent Indians, at the same time requiring that increased payment levels for general assistance shall be met exclusively from funds available to the tribe from within its tribal priority allocation.

20

Ex. 21, S. Rep. No. 103-114, at 51 (1993). See also Ex. 22, H.R. Rep. No. 103-158, at 50 (1993) (TPA increase "to be distributed to all tribes for their highest priority programs.") (emphasis added).
21

Ex. 23, S. Rep. No. 102-345, at 48 (1992) (TPA increase: "The Committee expects the Bureau to distribute this funding to all tribal budgets according to their base") (emphasis added). 13
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Ex. 13, Pub. L. No. 102-381, 106 Stat. 1374, 1389-1390 (1992) (emphasis added).22 Likewise, beginning with the 1995 Interior Appropriations Act, Congress specified that tribes could use TPA "for unmet indirect costs of ongoing contracts, grants or compact agreements".23 And, beginning with the Interior Appropriations Act for FY 1998, Congress further authorized tribes to use TPA to cover the costs of repair or replacement of school facilities.24 Fourth, Congress used express language when it intended to authorize any departure from the allocation of TPA to all tribes as specified by the Department in each Green Book. Beginning with the 2000 Appropriations Act, Congress authorized the Department to "redistribute any Tribal Priority Allocation funds," to a limited degree. Generally, the

reallocation under this provision could not result in any tribe having its TPA reduced by more than 10 percent for the fiscal year, with narrowly specified exceptions.25 In the 2001

Appropriations Act, Congress reiterated all of the foregoing provisions and also placed a limitation on the allocation of TPA to Alaska Native tribes having fewer than 25 members,

22

Congress did the same in Interior Department Appropriations Acts for subsequent Fiscal Years. See, e.g., Ex. 14, Department of the Interior and Related Agencies Appropriations Act for FY 1994, Pub. L. No. 103-138, 107 Stat. 1379, 1392 (1993); Ex. 15, Department of the Interior and Related Agencies Appropriations Act for FY 1995, Pub. L. No. 103-332, 108 Stat. 2499, 2512; Ex. 16, Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-170 (1996); Ex. 17, Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104208, 110 Stat. 3009, 3009-193 (1996); Ex. 18, Department of the Interior and Related Agencies Appropriations Act for FY 1998, Pub. L. No. 105-83, 111 Stat. 1543, 1555 (1997).
23

Ex. 15, 108 Stat. at 2511. Congress reiterated this in the Interior Appropriations Acts for Fiscal Years 1996, 1997, 1998 and subsequent years. See Exs. 16-18.
24 25

Ex. 18, 111 Stat. at 1555-56.

Ex. 19, Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501, § 127 (1999). 14
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directing that the TPA shares of those tribes be paid to the regional corporation of which such tribe was a part.26 In sum, Congress repeatedly appropriated funds for TPA in response to the specific tribeby-tribe request of the Department, specified that funding increases or decreases be shared by all tribes, authorized the use of TPA for particular purposes beyond the scope of TPA programs, and authorized a very limited re-allocation of TPA funds by the Department (while rejecting broader proposals to impose a means testing approach). While one or another of these actions, standing alone, might not be sufficient evidence, together clearly demonstrate that Congress (like the Department) intended that every federally recognized tribe would benefit from TPA. B. Indian Health Service Funding

Like TPA, federal funding provided to the Indian Health Service (IHS) is, and has been, allocated to benefit all federally recognized tribes and their members. These funds are used to provide hospital, medical, dental, mental health, and preventative care. Some of this care is provided in IHS-funded hospitals, clinics or other facilities. To the extent an IHS-funded facility is not capable of providing the service needed, the necessary health care is obtained through third party health care providers whose services are paid for by IHS funds under a program known as contract health care. In either instance (direct IHS care or contract health care), every federally recognized tribe has the option of operating these health programs under the Indian SelfDetermination Act, or having IHS operate the program for the Tribe's benefit. Ex. 32,

Declaration of David T. Mather ("Mather Dec.") ¶¶9, 10.27 Since 1976, these services have been

26

Ex. 20, Department of the Interior and Related Agencies Appropriations Act for FY 2001, Pub. L. No. 106-291, 114 Stat. 922, 944 (2000).
27

David T. Mather is a health care consultant with close to 30 years working with tribes and tribal organizations that operate health care facilities funded through the Indian Health Service. He has considerable experience serving on IHS workgroups established to address allocation methodologies 15
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provided in large part pursuant to the Indian Health Care Improvement Act ("IHCIA")28 and funded through annual appropriations. The largest part of the annual appropriations for the IHS has been for personnel and health services (the "services" appropriation). Ex. 32, Mather Dec., ¶8. These funds are

disbursed annually to local health care facilities which may be operated by IHS, a tribe or a consortium of tribes. Id., ¶9.29 The disbursements of these funds are generally based on prior years' funding levels, referred to as base budgets, which may be adjusted periodically "for inflation, population growth, Congressional earmarks, or by formula for selected operating units." Id., ¶10. In providing funds for Indian health services, Congress intends the funds to benefit every federally recognized tribe. Since the mid-1970's Congress has directed IHS to address the health care needs of tribes to facilitate self-determination. Throughout this period, IHS ­ albeit

sometimes reluctantly ­ took steps to fulfill these mandates, accounting for certain categories of funds on a tribe-by-tribe basis and developing the capacity