Salazar v. Ramah Navajo Chapter

Whether the government is required to pay contract support costs to a tribal contractor, where Congress has imposed an express statutory cap on the money available to pay these support costs and the amount of the tribal contract support costs exceed the cap.

The Indian Self-Determination and Education Assistance Act (“ISDA”) provides for the payment of contract support costs. These are costs that would be paid by the government if the tribal contract did not exist. Congress has mandated that all ISDA contracts should provide for the payment of these costs. Since 1994 the costs have not been paid because Congress has not appropriated sufficient funds to pay all of them.

Several different tribes brought suit against the Secretary of the Interior to collect the contract support costs. The United States District Court for the District of New Mexico granted summary judgment in favor of the government saying that the term “subject to the availability of appropriations” which appears in the ISDA means that Congress must appropriate enough money to fund all of the contract costs together. The Tenth Circuit reversed and remanded. The Tenth Circuit interpreted “subject to the availability of appropriations” to mean that the government must pay if Congress appropriates enough money to pay an individual contract support cost and the only reason it is not paid is that an agency split up the money. The Tenth Circuit followed Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631.