Court Says Equitable Tolling Does Apply in ISDA Contract Support Cost Dispute

In a contract support claim against the Indian Health Service, the Civilian Board of Contract Appeals’ dismissal of several plaintiffs’ contract claims was affirmed in part and reversed in part by the U.S. Court of Appeals Federal Circuit yesterday. The case involved Arctic Slope Native Association; Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the Metlakatla Indian Community.

The Civilian Board of Contract Appeals had dismissed the claims against the IHS on the ground that the appellants had failed to present them to a contracting officer within six years after the claims accrued, as required by section 605(a) the Contract Disputes Act (“CDA”), 41 U.S.C. § 605(a).

The plaintiffs argued that the CDA’s six-year presentment period was subject to equitable tolling. They pointed out that the Supreme Court had delayed all pending contract support litigation while it considered Cherokee Nation v. Leavitt, and that the statute of limitations should not apply to those cases. The Board of Contract Appeals held that the CDA’s presentment period is a jurisdictional requirement that is not subject to tolling, either equitable or legal.

The court held that the six-year presentment period is (emphasis added) subject to equitable tolling and remanded the case to the board to determine whether it satisfies the requirements of the equitable tolling doctrine.

For more information contact richard.phelps@falmouthinstitute.com

Falmouth Institute’s CEO to Present at NCAI’s Annual Convention in October

Richard Phelps, CEO of Falmouth Institute, will present Managing Your Financial Assets in Uncertain Times: What Tribal Leaders Want to Know – Wednesday, October 14 - 1:30 p.m.-4:00 p.m. during NCAI’s Annual Convention. During this workshop, Mr. Phelps will provide newly elected and seasoned leaders with basic to more complex information about financial and investment management, risk assessment and the overall financial environment. Don’t miss this opportunity to hear from one of Indian Country’s top financial experts.

Also, during the show, make sure to visit Falmouth Institute at Booth #623 in the Exhibit Hall.

For additional information about the convention, please click here.

Dorgan Introduces Carcieri Fix

Sen. Byron Dorgan, D-N.D., has introduced legislation amending the 1934 Indian Reorganization Act, providing the long-anticipated “fix” to the Supreme Court ruling in Carcieri v. Salazar.

In Carcieri, the Supreme Court held that the Secretary of the Interior exceeded his authority by taking land into trust for the Narragansett Tribe, which was not under federal jurisdiction, or recognized, at the time the Indian Reorganization Act was enacted in 1934. Dorgan’s technical amendments to the IRA would reaffirm the Secretary’s authority to take lands into trust for Indian tribes, regardless of when they were recognized. The amendment also ratifies the prior trust acquisitions of the Secretary, who for the past 75 years has been exercising his authority to take lands into trust, as intended by the Indian Reorganization Act. Read more here.

Show Off Your Community

Help us add a new feature to American Indian Report! Send us digital photos (5 to 10) of your community and we'll publish them on our Web page. Let the world know about the great sights and scenes in Indian Country.

Please include your name (if you want to be anonymous we won't publish your name, but we need contact information in case we have a question.), the name of your tribe, and captions for each photo, so we can let people know what they are looking at.

Please send photos or questions to editor@americanindianreport.com

We hope to get this started in January 2010, so get out your digital camera and start clicking.

DOI May Change Rule on Where Tribal Casinos Can be Located

The Wall Street Journal is reporting that the Obama Administration may reverse an Interior Department regulation that tribal casinos must be within commuting distance of the tribe’s reservation. If the directive, issued by the Bush Administration, is reversed, it could spur a new wave of casinos in Indian Country and assist state governments, some of which receive payments from the tribes based on casino revenue. George Skibine, deputy assistant secretary at the Bureau of Indian Affairs, told the WSJ that he expects a decision on whether the policy will be changed "fairly soon".

Tribes Overpaying for Medical Services

During just one three-month period in 2008, the Indian Health Service and tribes paid $14 million over the Medicare rate for medical services, according to a Health and Human Services Inspector General’s report released last week. The money for the services comes from the Contract Health Services program -- a program so cash-strapped every year that it cannot cover medical care for tribal members for a full fiscal year, giving rise to the wry admonishment frequently heard in Indian Country … “Don’t get sick after June.”

Between January and March last year, IHS and tribes paid above the Medicare rate for 22 percent of hospital claims, resulting in $1 million in overpayments. But most overpayments were for hospital outpatient claims. If IHS and tribal payments for non hospital claims were capped at the Medicare rate, they could have saved as much as $13 million between January and March 2008.

While 22 percent of hospital claims were paid above the Medicare rate, the resulting overpayments only accounted for 3 percent of the total $33 million that IHS and tribes spent on hospital claims between January and March 2008, according to the report. IHS and tribes paid above the Medicare rate for 71 percent of non hospital claims. Most of these claims paid above the Medicare rate were for physician services.

Thomas May be Ousted as Pequot Chairman

The Mashantucket Pequot Tribal Council could vote tomorrow to expel tribal chairman Michael Thomas from the council, according to the New London Day.

Thomas has been on administrative leave since August 31, “pending the outcome of an internal review.” On August 19, in a letter to tribal members, Thomas revealed the tribe's dire financial circumstances and his plans to deal with the crisis.

The council told Thomas they were “appalled” by his letter and that he had betrayed their trust. In the letter, Thomas pledged to preserve tribal government and incentive payments to tribal members before paying creditors. Under the tribe's constitution and by-laws, the council may, by a three-fifths vote, expel any council member “for neglect of duty or gross misconduct after due notice and opportunity to be heard.”

The Day reported on Thomas' letter in an Aug. 26 story that also reported the tribe, which owns Foxwoods Resort Casino and MGM Grand at Foxwoods, was nearing default and seeking to restructure $2.3 billion worth of debt.

Indian Affairs Secretary Addresses N.D. School Children

Interior Assistant Secretary-Indian Affairs Larry Echo Hawk speaks at the Bureau of Indian Education’s Theodore Jamerson Elementary School in Bismarck, N.D., following President Obama’s national address to students on working hard and setting educational goals.