Becerra v. San Carlos Apache Tribe

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 222–256
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 6, 2024
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
222 OCTOBER
TERM, 2023
Syllabus
BECERRA, SECRETARY OF HEALTH AND HUMAN
SER
VICES, et al. v. SAN CARLOS APACHE TRIBE
certiorari to the united states court of appeals for
the ninth circuit
No. 23–250. Argued March 25, 2024—Decided June 6, 2024*
The Indian Self-Determination and Education Assistance Act, 25 U. S. C.
§ 5301 et seq., enables an Indian tribe to enter into a “self-determination
contract” with the Indian Health Service to assume responsibility for
administering the healthcare programs that IHS would otherwise oper-
ate for the tribe. § 5321(a)(1). When IHS administers such programs
itself, it funds its operations through congressional appropriations and
third-party insurance payments. Healthcare programs administered
by a tribe under a self-determination contract have a parallel funding
structure. First, IHS must provide to the tribe the Secretarial amount,
which “shall not be less” than the congressionally appropriated amount
that IHS would have used to operate such programs absent the self-
determination contract. § 5325(a)(1). Second, like IHS when it runs
the healthcare programs, a contracting tribe can collect revenue from
third-party payers like Medicare, Medicaid, and private insurers. See
42 U. S. C. §§ 1395qq(a), 1396j(a); 25 U. S. C. § 1621e(a). These third-
party funds are called “program income” and must be used by the
tribe “to further the general purposes of the contract” with IHS.
§ 5325(m)(1).
The Secretarial amount and program income, however, do not place a
contracting tribe on equal footing with IHS. That is because the tribe
must incur certain overhead and administrative expenses that IHS does
not incur when it runs the healthcare programs. To remedy this fund-
ing shortfall, Congress amended ISDA to require IHS to pay the tribe
“contract support costs” to cover such “reasonable costs for activities
which must be carried on by a [tribe] as a contractor to ensure compli-
ance with the terms of the [self-determination] contract.” § 5325(a)(2).
Contract support costs eligible for repayment include “direct program
expenses for the operation of the Federal program” and “any additional
administrative or . . . overhead expense incurred by the [tribe] in connec-
tion with the operation of the Federal program, function, service, or
activity pursuant to the contract.” § 5325(a)(3)(A). Such costs are lim-
*Together with No. 23–253, Becerra v. Northern Arapaho Tribe, on
certiorari to the United States Court of Appeals for the Tenth Circuit.

Cite
as: 602 U. S. 222 (2024)
223
Syllabus
ited, however, to those “directly attributable to” self-determination con-
trac
ts. § 5326. And no funds are available for “costs associated with
any contract . . . entered into between [a tribe] and any entity other
than [IHS].” Ibid.
These cases involve self-determination contracts between IHS and
two tribes—the San Carlos Apache Tribe and the Northern Arapaho
Tribe. Both Tribes sued the Government for breach of contract, con-
tending that although they used the Secretarial amount and program
income to operate the healthcare programs they assumed from IHS
under their self-determination contracts, IHS failed to pay the contract
support costs they incurred by providing healthcare services using pro-
gram income. The Ninth and Tenth Circuits concluded that each Tribe
was entitled to reimbursement for such costs.
Held: ISDA requires IHS to pay the contract support costs that a tribe
incurs when it collects and spends program income to further the func-
tions, services, activities, and programs transferred to it from IHS in a
self-determination contract. Pp. 233–243.
(a) Sections 5325(a)(2) and (a)(3)(A) peg contract support costs to the
requirements of a self-determination contract. Section 5325(a)(2) de-
fnes contract support costs as “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.” If a tribe therefore must
collect and spend program income to ensure compliance with its con-
tract, then the reasonable administrative and overhead costs it incurs in
doing so are “contract support costs.”
Each self-determination contract entered into under ISDA incorpo-
rates Section 5325(m)(1), which requires a contracting tribe to use
“program income earned . . . in the course of carrying out a self-
determination contract” to “further the general purposes of the con-
tract.” See §§ 5329(a)(1), (c). The purposes of the contract are the
“functions, services, activities, and programs” transferred from IHS to
the tribe in its contract. See § 5329(c) (requiring a “purpose” clause
listing the “functions, services, activities, and programs” to be trans-
ferred from IHS to the tribe). When the tribe uses program income to
further the functions, services, activities, and programs it assumed from
IHS and incurs reasonable costs for required support services, those
costs are “contract support costs” under Section 5325(a)(2).
Those costs are also “eligible costs for the purposes of receiving fund-
ing ” under Section 5325(a)(3)(A), which specifes that both direct and
indirect contract support costs may be reimbursed. Direct contract
support costs are “direct program expenses for the operation of the
Federal program that is the subject of the contract.” § 5325(a)(3)(A)(i).
Page Proof Pending Publication

Page Proof Pending Publication
224 BECERRA
v. SAN CARLOS APACHE TRIBE
Syllabus
When a tribe spends program income to further the functions, services,
ac
tivities, and programs that it agrees to administer in IHS's stead
under its self-determination contract and incurs direct contract support
costs, those costs are incurred “for the operation of the Federal program
that is the subject of the contract” and are thus eligible for reimburse-
ment. Indirect contract support costs are “any additional administra-
tive or other expense . . . incurred by [a tribe] in connection with the
operation of the Federal program, function, service, or activity pursuant
to the contract.” § 5325(a)(3)(A)(ii) (Supp. III). When a tribe spends
program income to further the functions, services, activities, and pro-
grams that it assumes from IHS and incurs indirect contract support
costs, those costs are incurred “in connection with the operation of the
Federal program, function, service, or activity pursuant to the contract”
and are thus eligible for reimbursement.
The self-determination contracts of the Tribes require them to collect
program income. Once the Tribes collect such income, they are con-
tractually required to use it. The Tribes aver that they have collected
and spent program income as required by their contracts to carry out
the operations IHS transferred to them. The reasonable direct and in-
direct contract support costs they incurred as a result are eligible for
repayment under Section 5325(a) because they were incurred to “ensure
compliance with the terms of the contract,” § 5325(a)(2), and “for the
operation of ” and “in connection with the operation of ” the “Federal
program” they assumed from IHS, § 5325(a)(3)(A). Pp. 233–236.
(b) The limitations in Section 5326 do not preclude payment of
costs incurred by the required spending of program income under a
self-determination contract. When a tribe spends program income to
further the healthcare programs it assumes from IHS and incurs con-
tract support costs, the costs it incurs are “directly attributable” to the
self-determination contract. And such costs are not “associated with”
any contract between the tribe and a third party. They are instead
“associated with” the contract that requires the work that generates the
support costs—the self-determination contract. The history of Section
5326 confrms this analysis. Pp. 237–239.
(c) The Government's arguments to the contrary fnd no support in
ISDA's text. Pp. 239–240.
(1) Contrary to the Government's assertion, nothing in Section
5325(a)(2) suggests that contract support costs are limited to programs
funded by the Secretarial amount. In fact, Section 5325(a)(2) defnes
contract support costs as tied to “the terms of the contract,” which
require tribes to fund programs with program income. Nor does the
Government cite any statutory text to support its assertion that the
contract support costs of spending program income are ineligible for

Cite
as: 602 U. S. 222 (2024)
225
Syllabus
repayment under Section 5325(a)(3)(A) because the “Federal program”
compr
ises only the Secretarial amount. That provision refers to eligi-
ble costs for the operation of the “Federal program” without limiting
that program to the Secretarial amount. P. 239.
(2) The Government also argues that tribes should not get contract
support costs for spending program income because that would give
them fexibility to spend such income on a broader range of activities
than IHS can. But the differences cited by the Government do not
withstand scrutiny. First, the difference between IHS's and a tribe's
ability to offer healthcare services to non-Indians is irrelevant because
both must make the same determination before either can offer such
services: Whether such services will result in a denial or diminution
of services to eligible Indians. §§ 1680c(c)(1)(B), (c)(2). Next, although
IHS must “frst” use Medicare and Medicaid proceeds to ensure compli-
ance with those programs, a tribe must also use such proceeds to ensure
compliance with those programs. §§ 1641(c)(1)(B), (d)(2)(A). Finally,
although tribes might have greater ability to expand their operations
because they, unlike IHS, are not prohibited from usi ng Medicare
and Medicaid proceeds to construct new facilities, to the extent that a
tribe expands its programs beyond the “Federal program,” IHS would
not have to pay contract support costs for the tribe's new programs.
Pp. 239–240.
(d) A contrary reading of the statute would impose a penalty on
tribes for opting in favor of greater self-determination. Contract sup-
port costs are necessary to prevent a funding gap between tribes and
IHS. If IHS does not cover those costs to support a tribe's expenditure
of program income, the tribe would have to divert some program income
to pay such costs, or it would have to pay them out of its own pocket.
Either way, it would face a penalty for pursuing self-determination, con-
trary to the policy underlying ISDA. Pp. 241–243.
No. 23–250, 53 F. 4th 1236; and No. 23–253, 61 F. 4th 810, affrmed.
Roberts, C. J., delivered the opinion of the Court, in which Sotomayor,
Kagan, Gorsuch, and Jackson, JJ., joined. Kavanaugh, J., fled a dis-
senting opinion, in which Thomas, Alito, and Barrett, JJ., joined, post,
p. 243.
Caroline A. Flynn argued the cause for petitioners in both
cases. With her on the briefs were Solicitor General Prelo-
gar, Principal Deputy Assistant Attorney General Boynton,
Deputy Solicitor General Kneedler, Daniel Tenny, and
Joshua Dos Santos.
Page Proof Pending Publication

Page Proof Pending Publication
226 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
Adam G. Unikowsky argued the cause for respondent in
N
o. 23–253. With him on the brief were Keith M. Harper,
Charl es W. Ga lbrai th, Leo n ard R. Po w ell, Geo ff rey D.
Strommer, Caroline P. Mayhew, Stephen D. Osborne, and El-
liott A. Milhollin. LLoyd B. Miller argued the cause for
respondent in No. 23–250. With him on the brief were Rebe-
cca A. Patterson, Whitney A. Leonard, Chloe E. Cotton, Car-
ter G. Phillips, Virginia A. Seitz, and Eric D. McArthur.*
Chief Justice Roberts delivered the opinion of the
Court.
The Indian Self-Determination and Education Assistance
Act (ISDA), 88 Stat. 2203, 25 U. S. C. § 5301 et seq., enables
an Indian tribe to enter into contracts with the Indian Health
Service (IHS) to assume responsibility for administering the
healthcare programs that IHS would otherwise operate for
the tribe. To fund the tribe's administration of such pro-
grams, IHS must turn over to the tribe the appropriated
funds the agency would have used to operate the programs,
as well as an additional sum to cover “contract support
costs.” § 5325(a). These costs are administrative expenses
incurred by the tribe that IHS does not incur when it runs
the programs, typically because the agency can rely on exist-
ing Government resources unavailable to the tribe. The
tribe may also collect funds due from third parties—such as
Medicare, Medicaid, and private insurers—to help fnance
*Briefs of amici curiae urging affrmance in both cases were fled for
the Coalition of Large Tribes et al. by Jennifer H. Weddle, Troy A. Eid,
John E. Echohawk, Melody L. McCoy, Kim Jerome Gottschalk, Morgan
Saunders, Josh Newton, and Howard G. Arnett; for Legal Scholars by Seth
P. Waxman, Kevin M. Lamb, Laura E. Powell, and Monte Mills, pro se;
for NAFOA by C. Bryant Rogers, Hyland Hunt, and Ruthanne M. Deutsch;
for the National Congress of American Indians et al. by Steven D. Gordon,
Philip M. Baker-Shenk, and James T. Meggesto; and for the National In-
dian Health Board et al. by Andrew B. Brantingham, Vernle Charles
(Skip) Durocher, Jr., Anthony Jones, Robert R. Yoder, and Steven Boos.

Cite
as: 602 U. S. 222 (2024)
227
Opinion of the Court
the programs. The question before us is whether ISDA re-
quires
IHS to pay contract support costs to support tribal
programs funded by such third-party payments.
I
In 1975, Congress passed ISDA to promote “effective and
meaningful participation by the Indian people in the plan-
ning, conduct, and administration” of federal healthcare pro-
grams. § 5302(b). Such programs provide, for instance,
hospitals, dental clinics, and ambulance services. After
ISDA's enactment, a tribe can either continue receiving
healthcare services directly from the Federal Government
through IHS, or it can assume responsibility for administer-
ing those services itself. If a tribe elects the latter route,
ISDA obligates IHS to enter into a “self-determination con-
tract” with the tribe. § 5321(a)(1). Under this contract, the
tribe receives funds to operate federal healthcare programs
that IHS previously operated for the tribe's members.
When IHS administers healthcare programs itself, it funds
its operations through congressional appropriations and
third-party insurance payments. Historically, IHS's fund-
ing came from “moneys as Congress may from time to time
appropriate.” § 13. But in 1976 Congress enacted the In-
dian Health Care Improvement Act (IHCIA), 90 Stat. 1400,
25 U. S. C. § 1601 et seq., to create greater parity between
IHS and other healthcare providers. After IHCIA, when
IHS provides healthcare services to a tribal member with
Medicare, Medicaid, or private insurance coverage, IHS may
collect the funds due from those third-party insurers for the
services provided to the insured tribal member. See 42
U. S. C. §§ 1395qq(a), 1396j(a); 25 U. S. C. § 1621e(a). Con-
gress specifed that third-party collections “shall not be con-
sidered in determining appropriations” for IHS. 25 U. S. C.
§ 1641(a). Third-party payments now represent a “signif-
cant portion” of IHS's tribal healthcare budget—over $1.8
Page Proof Pending Publication

Page Proof Pending Publication
228 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
billion in 2024 alone. Dept. of Health and Human Servs.,
Fisca
l Year 2024, Indian Health Service: Justifcation of Esti-
mates for Appropriations Committees, p. CJ–193 (2023).
Healthcare programs administered by tribes under self-
determination contracts have a parallel funding structure.
First, IHS provides to the tribes the appropriated funds that
IHS would have used to operate such programs absent the
self-determination contract. ISDA specifes that this sum—
called the Secretarial amount—“shall not be less” than the
Secretary of Health and Human Services would have other-
wise allocated for the operation of the programs during the
period covered by the contract. § 5325(a)(1).
Second, like IHS when it runs the healthcare programs,
contracting tribes can collect revenue from third-party pay-
ers like Medicare, Medicaid, and private insurers. See 42
U. S. C. §§ 1395qq(a), 1396j(a); 25 U. S. C. § 1621e(a). ISDA
calls the funds received from third-party payers “program
income” and requires that tribes use those funds “to fur-
ther the general purposes of the contract” with IHS.
§ 5325(m)(1). Just as third-party collections are not consid-
ered in determining IHS's appropriations, Congress has
specifed that a tribe's program income “shall not be a basis
for reducing ” the Secretarial amount. § 5325(m)(2); see
§ 1641(a).
The Secretarial amount from IHS and program income
from third-party payers do not, however, place contracting
tribes on equal footing with IHS. Tribes incur overhead
and administrative expenses that IHS does not incur when
it runs the healthcare programs. For example, as a federal
agency, IHS does not have to pay state-mandated workers'
compensation on the salaries of its doctors—but the tribes
do. IHS can also rely on other federal agencies, such as the
Offce of Personnel Management, for general administrative
functions—but the tribes cannot. They have to manage on
their own dime the auditing, insurance, fnancial, personnel,
and other management systems associated with providing
healthcare under self-determination contracts.

Cite
as: 602 U. S. 222 (2024)
229
Opinion of the Court
To address this systematic shortfall in funding, Congress
amended
ISDA to account for “contract support costs.”
IHS is now required to cover such “reasonable costs
for activities which must be carried on by a [tribe] as a con-
tractor to ensure compliance with the terms of the [self-
determination] contract.” § 5325(a)(2). Contract support
costs eligible for repayment include “direct program ex-
penses for the operation of the Federal program” and “any
additional administrative or . . . overhead expense incurred
by the [tribe] in connection with the operation of the Federal
program, function, service, or activity pursuant to the con-
tract.” § 5325(a)(3)(A). These categories of contract sup-
port costs are recoverable so long as they do not duplicate
any funding provided through the Secretarial amount. Ibid.
Contract support costs are limited, however, to “costs di-
rectly attributable to” self-determination contracts. § 5326.
And no funds are available for “costs associated with any
contract . . . entered into between [a tribe] and any entity
other than [IHS].” Ibid.
II
These cases involve self-determination contracts between
the IHS and two tribes: The San Carlos Apache Tribe and
the Northern Arapaho Tribe.
A
The San Carlos Apache Tribe is located on the San Carlos
Apache Indian Reservation, which was established in 1871
and encompasses 1.8 million acres spanning three counties
in southeastern Arizona. In 2011, the Tribe entered into
a three-year self-determination contract with IHS. The
Tribe agreed to assume control of and manage the Commu-
nity Health Representative Program, Emergency Medical
Services Program, Alcohol and Substance Abuse Program,
Behavioral Health Services Program, Teen Wellness Pro-
gram, and Health and Human Services. App. 52. In ac-
cordance with the ISDA “model agreement” set forth in
Section 5329(c), the Tribe's contract incorporated “[t]he
Page Proof Pending Publication

230 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
provisions of title I of [ISDA],” i. e., the provisions applicable
to
self-determination contracts, and specifed that “[e]ach
provision of [ISDA] and each provision of this Contract shall
be liberally construed for the beneft of the [Tribe].” Id.,
at 51.
In separate annual funding agreements incorporated into
the contract, the parties specifed the amount of funds due
from IHS to the Tribe each year. The funding agreements
included a Scope of Work attachment that described the ac-
tivities the contract required the Tribe to perform. See id.,
at 99–102 (FY 2013 Scope of Work). The required activities
included, among other things, “[m]aintain[ing] an effcient
billing system . . . to maximize third party revenues” from
“Medicare, [Medicaid], Private Insurance, and IHS Contract
Health Services” and “[g]enerat[ing] maximum third party
revenues for all eligible patient transports.” Id., at 101–102.
In 2019, the Tribe sued the Government for breach of con-
tract. As relevant, the Tribe contended that although it
used both the Secretarial amount and program income to op-
erate its healthcare programs under the self-determination
contract, IHS failed to pay contract support costs for the
Tribe's healthcare services to the extent they were funded
by program income. Id., at 10–11. The Tribe sought
roughly $3 million in unpaid contract support costs for the
three-year contract. Id., at 16–17.
The District Court dismissed the Tribe's claim, observing
that ISDA's contract support cost provisions in Section
5325(a) do not mention third-party revenue. San Carlos
Apache Tribe v. Azar, 482 F. Supp. 3d 932, 934–935 (Ariz.
2020). The Ninth Circuit reversed and remanded. 53
F. 4th 1236, 1245 (2022). It reasoned that the Tribe's self-
determination contract incorporated ISDA, which required
the Tribe to spend third-party program income on health-
care. Id., at 1241–1242. Those portions of the Tribe's
healthcare programs funded by third-party income thus con-
stituted “activities which must be carried on by [the Tribe]
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
231
Opinion of the Court
as a contractor to ensure compliance with the terms of the
contrac
t,” § 5325(a)(2), and the contract support costs associ-
ated with those activities were incurred “in connection with
the operation of the Federal program,” § 5325(a)(3)(A)(ii).
Id., at 1241–1242. The text of ISDA, the Court reasoned,
therefore indicated that IHS was required to reimburse the
Tribe for those costs. Id., at 1243.
The Ninth Circuit stated that, at the very least, it could
not “conclude that § 5325(a) unambiguously excludes [the]
third-party-revenue-funded portions of the Tribe's health-
care program from [contract-support-cost] reimbursement.”
Ibid. (emphasis deleted). The Court was also unable to con-
clude that Section 5326 “unambiguously” meant that spend-
ing of third-party insurance receipts was not “directly attrib-
utable” to the Tribe's self-determination contract. Id., at
1244. Based on these ambiguities, the Ninth Circuit applied
the Indian canon and construed the statute in the Tribe's
favor. Id., at 1244–1245.
B
The Northern Arapaho Tribe resides on the Wind River
Reservation, which covers more than 2.2 million acres in
west central Wyoming. In 2016, the Tribe entered into a
self-determination contract with IHS to assume control of
the reservation's health division, the Wind River Family and
Community Health Care System. App. 124. In accordance
with the model agreement, the contract incorporated ISDA's
Title I provisions and stated that each provision of ISDA and
of the contract must be “liberally construed for the beneft
of the [Tribe].” Ibid.
Like the San Carlos Apache Tribe's contract, the Northern
Arapaho Tribe's contract also incorporated an annual fund-
ing agreement and a Scope of Work attachment. Among
other things, the Scope of Work specifed that the Tribe
would employ experienced individuals, such as “third-party
claims specialists,” in a fnancial offce; bill and collect “[i]n-
surance and [t]hird-[p]arty receivables”; “maintain accredita-
Page Proof Pending Publication

Page Proof Pending Publication
232 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
tion standards in order to qualify for funds through third
par
ty-payers”; secure “Medicare and Medicaid numbers for
billing purposes”; meet requirements for “periodic renewal
of accreditation or certifcation” to “maintain eligibility for
these funds”; use IHS's third-party billing system for one
year to give the “Tribe time to set up its own function-
ing . . . third-party billing system”; and conduct “[q]uality
assurance and all third-party billing processes.” Id., at
184–186.
In 2021, the Tribe sued the Government for damages and
declaratory relief. As relevant, the Tribe alleged that, pur-
suant to the contract's requirements, it had collected third-
party revenues and spent them to provide healthcare serv-
ices, yet IHS had paid no contract support costs for services
funded by such program income. The Tribe averred that it
spent all of its program income on activities enumerated in
the Scope of Work, so the income was spent as “part of the
Federal program carried out by the Tribe” under the con-
tract. Id., at 110–111. The Tribe thus contended that Sec-
tion 5325(a)(3)(A) required payment of contract support costs
related to the spending of those funds. It sought approxi-
mately $1.5 million in damages for the two-year period at
issue. Id., at 116–117.
The District Court dismissed the complaint. Northern
Arapaho Tribe v. Cochran, 548 F. Supp. 3d 1134, 1143 (Wyo.
2021). A divided panel of the Tenth Circuit reversed, with
each of the three judges writing separately. 61 F. 4th 810
(2023). Judge Moritz voted to reverse because “the relevant
statutory provisions are ambiguous, and the Indian canon of
statutory construction resolves the ambiguity in the Tribe's
favor.” Id., at 812. Judge Eid also voted to reverse, but in
her view the statute unambiguously supported the Tribe's
interpretation. Id., at 823–828 (opinion concurring in judg-
ment). Judge Baldock dissented in part. Id., at 828–830.
Although he also viewed the Tribe's contract support costs
as reimbursable under Section 5325(a), he would nonetheless

Cite
as: 602 U. S. 222 (2024)
233
Opinion of the Court
have affrmed the District Court based on the “superseding
prov
ision” of Section 5326. Id., at 828–829.
We granted certiorari in both cases. 601 U. S. ––– (2023).
III
It is undisputed that IHS must pay the Tribes the Secre-
tarial amount and the contract support costs associated with
spending that amount to operate the healthcare programs
they assumed from IHS. It is also undisputed that the
Tribes' contracts require them to collect program income and
that IHS must cover the cost of collecting that income. See
Brief for Petitioners 21, 38. The only question is whether
IHS must also cover the contract support costs the Tribes
incur when they spend program income on the healthcare
programs.
A
The ISDA provisions that govern the amount IHS must
pay as contract support costs under a self-determination con-
tract are Sections 5325(a)(2) and (a)(3)(A). Both provisions
peg the amount to the requirements of the contract. Be-
cause a self-determination contract requires a tribe to spend
program income to further the programs transferred to it in
the contract, these provisions require IHS to pay contract
support costs when a tribe does so, just as IHS must pay
contract support costs to support a tribe's spending of the
Secretarial amount.
Section 5325(a)(2) defnes contract support costs as “con-
sist[ing]” of “the reasonable costs for activities which must
be carried on by a tribal organization as a contractor to en-
sure compliance with the terms of the contract.”
1
The
1
Section 5325(a)(2) further specifes that contract support costs are for
activities which “(A) normally are not carried on by [IHS] in [its] direct
operation of the program; or (B) are provided by [IHS] in support of the
contracted program from resources other than those under contract.” It
is undisputed in these cases that the Tribes are seeking contract support
costs for activities that satisfy Sections 5325(a)(2)(A) and (B). Brief for
Northern Arapaho Tribe 33.
Page Proof Pending Publication

234 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
touchstone for determining which “activities” must receive
contrac
t support costs is therefore “the terms of the con-
tract.” It follows that if a tribe must collect and spend pro-
gram income to ensure compliance with its contract, then the
reasonable administrative and overhead costs it incurs
in doing so are “contract support costs” under Section
5325(a)(2).
The Tribes' contracts and ISDA plainly require them to
collect program income and spend it to comply with their
contracts. Each self-determination contract entered into
under ISDA must contain the provisions of the “model agree-
ment” set forth in Section 5329(c). § 5329(a)(1). The model
agreement incorporates into the contract “[t]he provisions
of title I of [ISDA].” § 5329(c) (model agreement § 1(a)(1)).
Title I of ISDA includes Section 5325(m)(1), which requires
tribes to use “program income earned . . . in the course of
carrying out a self-determination contract” to “further the
general purposes of the contract.”
The “purposes” of the contract are no mystery. The
model agreement requires that each self-determination con-
tract include a “purpose” clause listing the “functions, serv-
ices, activities, and programs” to be transferred from IHS to
the tribe. See § 5329(c) (model agreement § 1(a)(2)). Tribes
are thus contractually required to use program income to
further the functions, services, activities, and programs
transferred to them in their contracts. When they do so and
incur reasonable costs for required support services, those
costs are “contract support costs” under Section 5325(a)(2).
In addition to satisfying the defnition set forth in Section
5325(a)(2), those costs are also “eligible costs for the pur-
poses of receiving funding ” under Section 5325(a)(3)(A).
That provision specifes two types of “reasonable and allow-
able costs” that may be reimbursed. First, “direct program
expenses for the operation of the Federal program that is
the subject of the contract” are covered. § 5325(a)(3)(A)(i).
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
235
Opinion of the Court
“Direct” contract support costs include the support expenses
of
particular programs, such as workers' compensation insur-
ance for ambulance drivers or training for emergency room
nurses. See § 5304(c). Second, “any additional administra-
tive or other expense incurred by the governing body of the
[tribe] and any overhead expense incurred by the tribal con-
tractor in connection with the operation of the Federal pro-
gram, function, service, or activity pursuant to the contract”
are also eligible for funding. § 5325(a)(3)(A)(ii). Such “indi-
rect” contract support costs encompass expenses that beneft
multiple programs, such as auditing infrastructure, person-
nel systems, and legal services. See § 5304(f ).
Direct contract support costs incurred when using pro-
gram income are covered because the functions, services, ac-
tivities, and programs that a tribe agrees to administer in
IHS's stead under a self-determination contract constitute
the “Federal program that is the subject of the contract.”
When IHS administers the Federal program for the tribe's
members, it uses congressional appropriations and third-
party insurance payments to do so. See 25 U. S. C. §§ 13,
1621e(a); 42 U. S. C. §§ 1395qq(a), 1396j(a). IHS must use
the third-party collections to provide healthcare services.
See 25 U. S. C. §§ 1621f(a)(1), 1641(c)(1)(B). So IHS's Fed-
eral program comprises congressionally funded and third-
party funded healthcare. When that program is transferred
to the tribe from IHS, the tribe, rather than IHS, becomes
the entity collecting program income and spending it on the
Federal program. The tribe's resultant direct contract sup-
port costs are incurred “for the operation of the Federal
program that is the subject of the contract.” Those costs
are thus el ig ible to receive fundi ng under Sec ti on
5325(a)(3)(A)(i).
Indirect contract support costs that result from spending
program income must be covered by IHS for the same rea-
son. A tribe's self-determination contract requires it to
Page Proof Pending Publication

236 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
spend program income on furthering the Federal programs,
func
tions, services, or activities it assumes from IHS.
§§ 5325(m)(1), 5329(c). When the tribe does so—as IHS did
when it operated the program, function, service, or activity—
and incurs administrative and overhead expenses, those ex-
penses are incurred “in connection with the operation of the
Federal program, function, service, or activity pursuant to
the contract.” Such expenses are thus eligible for reim-
bursement under Section 5325(a)(3)(A)(ii).
The self-determination contracts of the San Carlos Apache
Tribe and the Northern Arapaho Tribe go to some length to
require them to collect program income by maintaining
third-party billing systems and generating maximum third-
party revenues. See App. 101–102, 184–186. Once the
Tr ibes col lec t th ird-par ty i ncome, they must use it.
§§ 5325(m)(1), 5329(c). The Tribes aver that they have col-
lected and spent program income as required by their con-
tracts to carry out the operations IHS transferred to them.
Id., at 9–11, 109–115; Brief for Northern Arapaho Tribe 29
(“Northern Arapaho is prepared to prove that every penny
of program income was, in fact, spent on activities enumer-
ated in the contractual scope of work.”). The reasonable di-
rect and indirect contract support costs they incurred as a
result are eligible for repayment under Section 5325(a) be-
cause they were incurred to “ensure compliance with the
terms of the contract,” § 5325(a)(2), and “for the operation
of ” and “in connection with the operation of ” the “Federal
program” they assumed from IHS, § 5325(a)(3)(A).
2
2
To the extent that the Tribes spent program income on activities enu-
merated in their contractual Scope of Work, they spent it on the “Federal
program” they expressly agreed to assume from IHS. Contract support
costs i ncurred i n connec ti on w ith that spendi ng are recoverable.
§ 5325(a)(3)(A). Although Section 5325(m)(1)'s requirement that the
Tribes spend program income to further the “general purposes” of their
self-determination contracts allows them some fexibility in their spending,
we need not decide the extent of that fexibility in these cases. The only
question before us now is whether the Tribes can recover contract support
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
237
Opinion of the Court
B
IHS'
s obligation to pay contract support costs is limited
by Section 5326, but the limitations of that provision do not
preclude payment of costs incurred by the required spending
of program income under a self-determination contract.
Section 5326 requires that IHS pay contract support costs
“only for costs directly attributable to contracts . . . pursuant
to [ISDA].” It further provides that no funds “shall be
available for any contract support costs or indirect costs as-
sociated with any contract, grant, cooperative agreement,
self-governance compact, or funding agreement entered into
between [a tribe] and any entity other than [IHS].” § 5326.
When a tribe spends program income to further the
healthcare programs it assumes from IHS and incurs con-
tract support costs, the costs it incurs are “directly attribut-
able” to the self-determination contract. Contrary to the
Government's assertion, there is no extended chain of causa-
tion: The Tribes' self-determination contracts require the
collection of program income. See supra, at 230, 231–232.
The self-determination contracts then require the expendi-
ture of program income. And the self-determination con-
tracts govern the activities on which that income may be
spent. The required contract support costs that result are
“directly attributable” to the binding terms of the contract.
Nor are such costs “associated with” any contract between
a tribe and a third party. Those costs are instead associated
with the contract referred to in the phrase “contract support
costs.” In other words, the costs are “associated with” the
“contract” that requires the work that generates the costs—
the self-determination contract.
A tribe's contracts with third-party payers are quite dif-
ferent. A Medicare or Medicaid provider agreement, for
example, does not generate contract support costs by
costs at all when they collect and spend program income pursuant to
their contracts.
Page Proof Pending Publication

Page Proof Pending Publication
238 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
specifying which healthcare services a tribe must provide;
rather
, it simply serves as a predicate for the tribe to collect
program income after it has already rendered services to a
tribal member who is a Medicare or Medicaid benefciary.
And when a tribe bills a private insurance company for serv-
ices rendered to an insured tribal member, the tribe might
have no pre-existing and ongoing agreement with the insur-
ance company at all.
The history of Section 5326 confrms this analysis. Con-
gress enacted this provision in 1998 after the Tenth Circuit's
decision in Ramah Navajo Chapter v. Lujan, 112 F. 3d 1455
(1997). Ramah involved a Tribe that had self-determination
contracts with the Bureau of Indian Affairs (BIA) for various
programs, including law enforcement, and separate contracts
with the State of New Mexico for criminal justice and juve-
nile offender restitution programs. Id., at 1458–1459. The
Tenth Circuit held that the BIA was required to pay the
Tribe's full indirect contract support costs—not only for the
programs administered under the BIA contracts, but also for
those administered under the state contracts. Id., at 1462–
1463. The Government and the Tribes agree that Congress
added Section 5326 to override Ramah and clarify that IHS
may not pay costs incurred to support non-ISDA contracts.
See Brief for Petitioners 8; Brief for Northern Arapaho
Tribe 46; Brief for San Carlos Apache Tribe 12–14.
The direct attribution and association problems present in
Ramah are not implicated here. In Ramah, the state con-
tracts, not the BIA contracts, required the activities that
resulted in the contract support costs for the criminal justice
and juvenile offender restitution programs. Although those
costs might have had an attenuated relation to the programs
operated under the BIA contracts, they were “directly
attributable” to and “associated with” the state contracts,
not the BIA self-determination contracts. Here, the self-
determination contract itself requires tribes to spend
program income to further healthcare programming. The

Cite
as: 602 U. S. 222 (2024)
239
Opinion of the Court
contract support costs tribes incur when they do so are re-
coverable
under Sections 5325(a) and 5326.
IV
A
The Government's arguments to the contrary fnd no sup-
port in ISDA's text. The Government begins with the
premise that Section 5325(a)(2)'s requirement to pay contract
support costs is “tied to” Section 5325(a)(1)'s Secretarial
amount. Brief for Petitioners 21. But nothing in Section
5325(a)(2) suggests that contract support costs are limited
to programs funded by the Secretarial amount. In fact, Sec-
tion 5325(a)(2) defnes contract support costs as tied to “the
terms of the contract,” which require tribes to fund pro-
grams with program income. See §§ 5325(m)(1), 5329(c).
The Government then attempts to extend its fawed prem-
ise to Section 5325(a)(3)(A), asserting that the contract sup-
port costs of spending program income are ineligible for
repayment under that provision because the “Federal pro-
gram” comprises only the Secretarial amount. Id., at 22.
But besides reciting Section 5325(a)(3)(A), the Government
cites no statutory text to support this assertion. Ibid.
And Section 5325(a)(3)(A) refers to eligible costs for the op-
eration of the “Federal program” without limiting that pro-
gram to the Secretarial amount.
B
Leaving the text behind, the Government argues that the
tribes should not get contract support costs for spending pro-
gram income because that would give them the fexibility to
spend such income on a broader range of activities than IHS
can. Id., at 29. But none of the Government's cited differ-
ences withstand scrutiny.
First, the Government says that IHS cannot offer health-
care services to non-Indians unless the benefciary tribe
requests it, whereas a tribe running its own programs can
Page Proof Pending Publication

Page Proof Pending Publication
240 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
unilaterally decide to offer such services. Ibid. This dif-
ference
is irrelevant. Before either IHS or a contracting
tribe may offer healthcare services to non-Indians, both must
make the same determination: Whether such services will
result in a denial or diminution of services to eligible Indians.
§§ 1680c(c)(1)(B), (c)(2). And the fact that the contracting
tribe can act unilaterally in this regard is the natural result
of self-determination.
Next, the Government says that when IHS collects Medi-
care and Medicaid proceeds, it must “frst” use such proceeds
to ensure compliance with those programs. Id., at 29 (quot-
ing § 1641(c)(1)(B)). But tribes also have to ensure compli-
ance with Medicare and Medicaid requirements using pro-
gram income. § 1641(d)(2)(A).
Finally, the Government contends that while Congress has
prohibited IHS from using Medicare and Medicaid proceeds
to construct new facilities, tribes do not face this prohibition
and thereby have greater ability to expand their operations.
Id., at 30. But to the extent that a tribe expands its pro-
grams beyond the “Federal program,” IHS would not have
to pay contract support costs for the tribe's new programs.
Even if there are minor differences between what IHS and
tribes can do with program income, that should not be sur-
prising given ISDA's design to provide tribes greater fexi-
bility in planning and implementing healthcare programs at-
tuned to the needs of their communities. See § 5302(a).
The Government points to nothing in ISDA's text to suggest
that those differences excuse IHS from paying contract sup-
port costs when tribes spend program income on the pro-
grams they have assumed from IHS.
C
As for the dissent, its central assertion is that the support
costs tribes incur when they spend program income are
not incurred in the “performance of their contracts.” Post, at

Cite
as: 602 U. S. 222 (2024)
241
Opinion of the Court
248 (opinion of Kavanaugh, J.). But the Tribes' contracts
plai
nly require them to collect income from third-party in-
surers. See supra, at 230, 231–232. And by incorporating
Section 5325(m)(1), see §§ 5329(a)(1), (c), self-determination
contracts plainly require tribes to use that income “to fur-
ther the general purposes of the[ir] contract[s].” The dis-
sent complains that “the contracts do not address how the
tribes must spend their third-party income.” Post, at 250.
But as we have explained, the “purpose” clause of each con-
tract describes the programs which tribes must further
using program income. See supra, at 234. The support
costs tribes incur when they do so are incurred in the “per-
formance of their contracts” to “ensure compliance with the
terms of the[ir] contract[s].” Post, at 248; § 5325(a)(2). And
those costs are “directly attributable” to and “associated
with” tribes' self-determination contracts. See supra, at
237. Obfuscating this straightforward reading of the rele-
vant ISDA provisions, the dissent points to Section 5388( j)
and the costliness of ISDA's mandates. But Section 5388( j)
does not apply to self-determination contracts, and com-
plaints about costs are the domain of Congress, not this
Court.
V
Aside from being inconsistent with the statute's text,
IHS's failure to cover contract support costs for healthcare
funded by program income inficts a penalty on tribes for
opting in favor of greater self-determination. Congress de-
signed the statute to avoid such a counterproductive result.
Underlying ISDA was a congressional fnding that federal
domination of Indian service programs had denied tribes an
effective voice in the planning and implementation of pro-
grams responsive to the true needs of their communities.
See § 5301(a)(1). Congress thus designed ISDA to promote
“maximum Indian participation” in the administration of
healthcare programs. § 5302(a). To that end, Congress's
Page Proof Pending Publication

242 BECERRA
v. SAN CARLOS APACHE TRIBE
Opinion of the Court
consistent directive to IHS is to place contracting tribes in
the
same fnancial position as IHS, so that tribes do not face
a self-determination penalty when they take control of their
own healthcare.
When tribes enter into self-determination contracts and
assume control of IHS's programs, they receive the same
amount of congressionally appropriated funds to run the pro-
grams as IHS would have. See § 5325(a)(1). Congress also
allows tribes, like IHS, to fund the programs with income
from th ird-par ty payers. See 42 U. S. C. §§ 1395qq(a),
1396j(a); 25 U. S. C. § 1621e(a). To be clear, IHS needs to
collect these funds just to cover its obligations to tribal mem-
bers. Indeed, 60 percent or more of the yearly budget of
some IHS healthcare facilities relies on third-party revenues.
Dept. of Health and Human Servs., Fiscal Year 2024, IHS, at
CJ–193; see also IHS, Indian Health Manual § 5–1.1(B) (2024)
(“[T]hird-party billing and collections have become critical
activities for the IHS. . . . Safeguarding this revenue stream
and related assets is vital to IHS health care programs.”).
Like IHS, tribes choosing self-determination in healthcare
need to collect and spend program income if they are to
maintain the same level of services they received from IHS.
For that reason, Congress specifcally instructed IHS that
program income “shall not be a basis for reducing ” a tribe's
Secretarial amount. § 5325(m)(2).
Contract support costs are necessary to prevent a funding
gap between tribes and IHS. By defnition, these are costs
that IHS does not incur when it provides healthcare services
funded by congressional appropriations and third-party in-
come. §§ 5325(a)(2)(A) and (B). But they are costs that
tribes must bear when they provide, on their own, healthcare
services funded by the Secretarial amount and program in-
come. If IHS does not cover costs to support a tribe's ex-
penditure of program income, the tribe would have to divert
some program income to pay such costs, or it would have to
pay them out of its own pocket. Either way, the tribe would
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
243
Kavanaugh, J., dissenting
face a systemic funding shortfall relative to IHS—a penalty
for
pursuing self-determination.
***
The self-determination contracts of the San Carlos Apache
Tribe and Northern Arapaho Tribe require them to collect
and spend program income to further the functions, services,
activities, and programs transferred to them from IHS.
When the Tribes do so and incur administrative costs, ISDA
requires IHS to pay those support costs.
The judgments of the Courts of Appeals for the Ninth and
Tenth Circuits are
Affrmed.
Justice Kavanaugh, with whom Justice Thomas, Jus-
tice Alito, and Justice Barrett join, dissenting.
The Indian Self-Determination Act allows Indian tribes to
assume control of healthcare programs that the Federal Gov-
ernment would otherwise administer on a tribe's behalf.
When a tribe assumes control of a healthcare program, the
statute entitles the tribe to federal funding for the costs of
running the program, as well as additional federal funding
for associated administrative costs.
A separate federal law—the Indian Health Care Improve-
ment Act—authorizes tribes that assume control of health-
care programs to collect third-party payments from Medi-
care, Medicaid, and private insurers for the services that
the tribes provide to patients. The tribes may spend that
third-party income for any healthcare-related purpose—for
example, building new healthcare facilities. But spending
the third-party income requires additional expenditures on
overhead.
Consider a tribe that assumes control of a healthcare pro-
gram and receives federal funding pursuant to the Self-
Determination Act. For its services to patients, the tribe
also collects an additional $1 million from Medicare and
Page Proof Pending Publication

244 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
Medicaid pursuant to the Improvement Act. In order to
spend
that $1 million on healthcare, the tribe must incur
some amount of overhead costs—let's say $100,000. Who
pays that $100,000? Must the Federal Government pay it
by giving the tribe another $100,000 in federal funding? Or
does the tribe pay the $100,000 out of the $1 million in third-
party income that it collected?
That is the question in this case. For the past 30 years,
the Executive Branch has interpreted the relevant statutory
provisions, 25 U. S. C. §§ 5325–5326, to require tribes to pay
those overhead costs out of the third-party income collected
from Medicare, Medicaid, and private insurers. And Con-
gress has never over tur ned that consistent Executive
Branch practice.
But today, the Court upends that long-settled understand-
ing and requires the Federal Government to furnish addi-
tional funding to the tribes for the costs of spending the
third-party income. I respectfully dissent.
As I see it, the relevant statutory provisions do not sup-
port the Court's decision. And the extra federal money that
the Court today green-lights does not come free. The Fed-
eral Government estimates that adopting the tribes' position
could cost between $800 million and $2 billion annually (and
potentially many billions more in retroactive payments).
Yet as of now, Congress appropriates about $8 billion annu-
ally for Indian healthcare. So if Congress does not change
the overall annual appropriations for Indian healthcare, the
Court's decision will divert funding from poorer tribes to
richer tribes. (There are 574 federally recognized tribes.)
That is because poorer tribes are less likely to administer
their own healthcare programs and therefore do not receive
third-party income from Medicare, Medicaid, and private in-
surers. Alternatively, the Court's decision will require Con-
gress to substantially increase its overall annual appropria-
tions for Indian healthcare, thereby drawing money away
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
245
Kavanaugh, J., dissenting
from other vital federal programs or requiring additional
t
axes.
In my view, the Court should leave those diffcult appro-
priations decisions and tradeoffs to Congress and the Presi-
dent in the legislative process, and not now upset the settled
legal understanding that has prevailed for the last 30 years.
I
The baseline provider of healthcare to American Indians
is the Indian Health Service—a Federal Government agency.
The Indian Health Service runs hospitals and other health-
care programs that serve tribal members.
To facilitate tribal self-determination and self-governance,
the Indian Self-Determination Act allows tribes to assume
control of the healthcare programs that the Indian Health
Service would otherwise operate on the tribes' behalf. See
88 Stat. 2206, as amended, 25 U. S. C. §§ 5321–5332. To
assume control of a healthcare program, a tribe enters
into a “self-determination contract” that identifes both the
healthcare program that the tribe will administer and the
funding that the Indian Health Service will give to the tribe.
§ 5321(a)(1); see § 5329(c).
Under the Act, the federal funding authorized in each self-
determination contract contains two main components: (i) a
secretarial amount and (ii) contract support funding. The
secretarial amount consists of the funds that the Indian
Health Service would have spent on the contracted pro-
grams in the absence of the self-determination contract.
§ 5325(a)(1). And contract support funding covers the addi-
tional costs of certain activities that a tribe “must” carry on
“to ensure compliance with the terms of ” its “contract.”
§ 5325(a)(2).
The contract support funding flls recognized gaps in sec-
retarial funding. When a tribe assumes control of a health-
care program and provides the associated healthcare serv-
Page Proof Pending Publication

246 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
ices, the tribe will sometimes incur costs that the Indian
H
ealth Service would not have incurred, such as the costs of
contributing to state workers' compensation programs for
the healthcare workers, as well as extra administrative costs.
The Federa l Gover nment does not fund those costs
through the secretarial amount, which covers only what the
federal agency would otherwise have spent on the tribe's in-
dividual healthcare program. See § 5325(a)(1). So contract
support funding bridges the gap, covering the workers' com-
pensation and administrative costs that the tribe must ex-
pend to comply with its self-determination contract. See
Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631, 635
(2005). By supplementing the secretarial amount in that
way, contract support funding assists tribes in providing the
same level of care as the Federal Government's healthcare
programs.
A separate federal statute—the Indian Health Care Im-
provement Act—authorizes tribes that operate their own
healthcare programs to collect and spend payments they re-
ceive from Medicare, Medicaid, and private insurers for pro-
viding services to patients. See §§ 1621e(a), 1641(d)(1); 42
U. S. C. §§ 1395qq(a), 1396j(a). By law, the tribe possesses
signifcant fexibility in how to then spend that third-party
income. Specifcally, the tribe may use its Medicare and
Medicaid income for “any health care-related purpose.” 25
U. S. C. § 1641(d)(2)(A).
In this case, the San Carlos Apache Tribe and the North-
ern Arapaho Tribe entered self-determination contracts to
assume control of healthcare programs that beneft their
tribal members. Each tribe therefore receives both a
secretarial amount and contract support funding from the
Federal Government. The tribes use that funding to pro-
vide healthcare services specifed in their contracts, includ-
ing emergency medical services, outpatient primary care,
and dentistry.
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
247
Kavanaugh, J., dissenting
In addition to that federal funding, the two tribes collect
th
ird-party payments from Medicare, Medicaid, and private
insurers. The tribes then spend that third-party income for
additional healthcare purposes, such as improvements to
tribal healthcare facilities. For example, the Northern
Arapaho Tribe spent some of its recent third-party income
on “facility construction.” Tr. of Oral Arg. 78. And the
San Carlos Apache Tribe might spend its third-party income
on construction projects such as “building a garage to house
the ambulances” for an EMS program. Id., at 87.
II
The tribes' basic theory is that the federal funding
authorized by the Self-Determination Act for running the
healthcare programs specifed in the tribes' contracts may be
stretched to also cover the costs associated with the tribes'
spending of the third-party income that they collect under
the Improvement Act. The tribes do not argue that the Im-
provement Act itself authorizes funding to cover those costs.
Instead, they argue that the Self-Determination Act does so.
In assessing the tribes' Self-Determination Act argument,
two provisions of that Act are key. The frst is 25 U. S. C.
§ 5325, which authorizes federal funding for tribes that ad-
minister their own healthcare programs. The second is
§ 5326, which places important constraints on that federal
funding.
Section 5325 begins by authorizing the secretarial amount.
Recall that § 5325(a)(1) entitles each tribe that administers
its own healthcare program to the federal funding that the
Indian Health Service would have otherwise spent on the
“program” covered by that tribe's self-determination “con-
tract.” § 5325(a)(1).
And § 5325(a)(2) then entitles each tribe to contract sup-
port funding. That contract support funding covers only
those costs, such as administrative costs, that the tribe
Page Proof Pending Publication

248 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
“must” incur to provide the healthcare “program” specifed
by
the “contract.” § 5325(a)(2).
1
Section 5326 then imposes two important limitations on
contract support funding. First, § 5326 confnes contract
support funding to costs that are “directly attributable” to,
as relevant here, self-determination contracts. Second,
§ 5326 prohibits contract support funding that is “associated
with any contract” between a tribe and “any entity other
than the Indian Health Service.” Those two limitations
apply “notwithstanding any other provision of law.” § 5326.
2
The tribes argue that the Federal Government must pro-
vide contract support funding to cover the tribes' costs of
spending their third-party income from Medicare, Medicaid,
and private insurers. But the Federal Government dis-
agrees. As the Federal Government sees things, contract
support funding supports only the tribes' performance of
their contracts. So contract support funding provided pur-
suant to the Self-Determination Act cannot be stretched to
cover the entirely separate tribal costs associated with
1
The full text of § 5325(a)(2) states: “There shall be added to the amount
required by [§ 5325(a)(1)] contract support costs which shall consist of an
amount for 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—(A) normally are
not carried on by the [Indian Health Service in] direct operation of the
program; or (B) are provided by the [Indian Health Service] in support of
the contracted program from resources other than those under contract.”
2
The full text of § 5326 states: “Before, on, and after October 21, 1998,
and notw ithst andi ng any other prov isi on of law, funds avai lable to
the Indian Health Service in this Act or any other Act for Indian self-
determination or self-governance contract or grant support costs may be
expended only for costs directly attributable to contracts, grants and com-
pacts pursuant to the Indian Self-Determination Act [25 U. S. C. 5321
et seq.] and no funds appropriated by this or any other Act shall be avail-
able for any contract support costs or indirect costs associated with any
contract, grant, cooperative agreement, self-governance compact, or fund-
ing agreement entered into between an Indian tribe or tribal organization
and any entity other than the Indian Health Service.”
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
249
Kavanaugh, J., dissenting
spending their third-party income from Medicare and Medic-
aid
pursuant to the Improvement Act.
For fve reasons, I agree with the Federal Government.
First, the statutory authorization for contract support
funding in § 5325(a)(2) of the Self-Determination Act does not
even mention the third-party income that tribes collect pur-
suant to the Improvement Act from Medicare, Medicaid,
and private insurance companies. If Congress intended
§ 5325(a)(2) to supply federal funding for the overhead costs
incurred in spending that third-party income, Congress
surely would have said so in the Improvement Act, the Self-
Determination Act, or other statutory text. That is particu-
larly so given the relatively large amount of additional ap-
propriations that would be necessary (up to $800 million to
$2 billion per year, according to the Federal Government).
Congress does not usually employ subtle indirection to dish
out such signifcant pots of federal money to agency pro-
grams. And if the Executive Branch for three decades had
somehow misunderstood Congress's instructions, Congress
could have amended the statute. It did not.
Second, § 5325(a)(2) authorizes contract support funding
only for the activities that a tribe “must” perform to comply
with its self-determination “contract” and support its “con-
tracted program.” That provision authorizes contract sup-
port funding for the administrative costs of spending a tribe's
secretarial amount on the healthcare programs specifed in
the tribe's self-determination contract. Contract support
funding therefore bridges the gap between the secretarial
funds that the Federal Government would have spent on
a healthcare program and what the tribe “must” spend to
obtain the same beneft from those secretarial funds.
§ 5325(a)(2); see supra, at 245.
But all agree that, for example, § 5325(a)(2) does not au-
thorize contract support funding for the costs of spending
the money in the tribe's general treasury—money that the
tribe receives independently of its contract and that the tribe
Page Proof Pending Publication

Page Proof Pending Publication
250 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
may spend for any lawful purpose. In the same way,
§
5325(a)(2) does not authorize contract support funding for
the costs of spending the tribe's Medicare and Medicaid pay-
ments—payments that the tribe receives from transactions
outside of its healthcare contract (pursuant to the Improve-
ment Act) and that the tribe may spend on “any health care-
related purpose.” § 1641(d)(2)(A). The costs of spending
the tribe's Medicare and Medicaid income therefore resemble
the costs of spending money from the tribe's general treas-
ury. And neither category of costs is necessary to support
the tribe's “contract” and “contracted program”—the statu-
torily imposed conditions for obtaining additional contract
support funding. § 5325(a)(2).
3
Third, turning to § 5326, that provision independently re-
stricts contract support funding to the costs that are “di-
rectly attributable” to tribes' self-determination contracts.
The costs of spending the Medicare and Medicaid income are
not directly attributable to the contracts in this case. After
all, the contracts do not address how the tribes must spend
their third-party income. Moreover, the Improvement Act
allows tribes to spend their Medicare and Medicaid income
on “any health care-related purpose,” § 1641(d)(2)(A), not
just to support contractual activities specifed by the self-
determination contracts. And tribes have made use of that
fexibility to spend their third-party income on healthcare
services and construction projects that fall outside of their
individual contracts. For example, the Northern Arapaho
Tribe spent some of its recent third-party income on facility
3
The costs of spending payments from private insurers are similarly
detached from the costs needed to support a tribe's “contract” and “con-
tracted program.” § 5325(a)(2). Tribes collect insurance payments pur-
suant to the Improvement Act, which governs the “reasonable charges”
that a tribe may bill to private insurers. § 1621e(a). And after the tribe
obtains its insurance payments, the tribe may spend them to advance the
“general purposes” of its healthcare contract, § 5325(m)(1)—a broad au-
thorization that mirrors the tribe's ability to spend its Medicare and Med-
icaid payments on “any health care-related purpose,” § 1641(d)(2)(A).

Cite
as: 602 U. S. 222 (2024)
251
Kavanaugh, J., dissenting
construction, even though the tribe's contract does not au-
thor
ize facility construction. See Tr. of Oral Arg. 78. Be-
cause tribes may spend third-party income on programs that
are never mentioned in their self-determination contracts,
the costs of spending that income are not “directly attribut-
able” to those contracts. § 5326.
Fourth, § 5326 separately precludes contract support fund-
ing that is “associated with any contract” between a tribe
and an “entity other than the Indian Health Service.” To
obtain Medicare and Medicaid payments, the tribes enter
into contracts with the Secretary of Health and Human Serv-
ices for Medicare and with state agencies for Medicaid. See
42 U. S. C. §§ 1395cc, 1395qq, 1396a(a)(27), 1396j; see also
Brief for Petitioners 27 (“To receive Medicare and Medicaid
reimbursements, tribal providers enter into agreements with
Medicare and Medicaid authorities”). Those contracts are
plainly contracts between tribes and entities “other than”
the Indian Health Service. 25 U. S. C. § 5326. And the
tribes' requested funding is clearly “associated with” the
money that the tribes receive as a result of those contracts.
Ibid. It follows that tribes may not obtain contract support
funding to cover the costs of spending their Medicare and
Medicaid income. Ibid.
Fi f th, another st atutory prov isi on i n the Self-
Determination Act underscores the separation between
(i) the federal funding that tribes receive due to their self-
determination contracts and (ii) the third-party income that
tribes collect from Medicare, Medicaid, and private insurers.
Section 5388( j) states that all third-party income “earned by
an Indian tribe shall be treated as supplemental funding ” to
the funding available through the tribe's self-determination
contract. Because the tribe's third-party income is “supple-
mental,” the costs of spending that income are legally sepa-
rate from the costs of supporting the contract. For that rea-
son too, contract support funding cannot encompass the costs
of spending third-party income. See Fort McDermitt Pai-
Page Proof Pending Publication

Page Proof Pending Publication
252 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
ute and Shoshone Tribe v. Becerra, 6 F. 4th 6, 14 (CADC
2021).
4
In
my view, each of those fve arguments individually casts
substantial doubt on the Court's conclusion today. And the
fve arguments taken together convincingly show that the
Court's conclusion is mistaken. The bottom line is that
§ 5325 does not authorize and, in any event, §§ 5326 and
5388( j) prohibit the Federal Government from covering the
tribes' costs of spending their third-party income. That
straightforward reading of the Self-Determination Act is
why, for the last 30 years, the Executive Branch has inter-
preted the statute not to authorize funding to the tribes for
the costs of spending third-party income.
III
To reach the contrary conclusion, the Court creates a re-
quirement that is absent from both the statute and the con-
tracts in this case—that tribes must spend all of their third-
party income received from Medicare and Medicaid on the
“programs transferred to them in their” self-determination
contracts. Ante, at 234. By doing so, the Court creatively
attempts to morph (i) the costs that a tribe incurs in spend-
ing that third-party income into (ii) the category of costs that
a tribe must incur to “ensure compliance with” its “con-
tract.” § 5325(a)(2).
The Court's effort to recharacterize the costs of spending
third-party income as contract support costs does not work.
4
Section 5388( j) appears in Title V of the Self-Determination Act, which
governs self-governance compacts as opposed to self-determination con-
tracts. See Cohen's Handbook of Federal Indian Law § 22.02[3], p. 1389
(2012) (compacts give “additional fexibility in program administration”).
But the Self-Determination Act requires the Government to fund both com-
pacts and contracts pursuant to the defnitions of the secretarial amount
and contract support funding in § 5325. See §§ 5325(a), 5388(c). And be-
cause § 5388( j) makes clear that third-party income is separate from the
contract support funding for self-governance compacts, the same is true
regarding the contract support funding for self-determination contracts.

Cite
as: 602 U. S. 222 (2024)
253
Kavanaugh, J., dissenting
The Improvement Act authorizes tribes to spend (and the
tr
ibes do spend) their Medicare and Medicaid income on “any
health care-related purpose. ” § 1641(d)(2)(A). And the
broad phrase “any health care-related purpose” encompasses
activities that are not covered in tribes' contracts, including
“improvements in health care facilities.” Ibid. Indeed, at
oral argument, the tribes in this case forthrightly acknowl-
edged that they may use third-party income to cover the
costs of constructing new healthcare facilities, even though
their contracts do not authorize construction. See Tr. of
Oral Arg. 78, 87–88. That acknowledgment was sensible, as
the phrase “any health care-related purpose” clearly expands
the potential uses of Medicare and Medicaid income beyond
the purposes of a single contract. And that acknowledg-
ment completely undermines the basis for the Court's deci-
sion today.
5
If Congress wanted to limit the tribes' spending of their
third-party income to supporting the programs in tribes'
self-determination contracts—and thereby wanted to cover
the tribes' overhead costs of spending that third-party
income—several provisions in the statute illustrate how
Congress could have done so. See, e.g., § 5325(a)(4)(A) (re-
quiring that tribes use savings for “additional services or
benefts under the contract”). For example, the Self-
Determination Act contains a model contract, and Congress
might have used that contract to set forth specifc require-
ments regarding tribes' use of third-party income. See
§ 5329(c). But Congress did not do so.
Congress had good reasons for granting tribes fexibil-
ity over the spending of their third-party income, and not
limiting that spending to support of the contract. Among
other things, that fexibility fows from the policy of self-
5
Indeed, it is not clear that all Indian tribes want to win on the ground
that the Court relies on today. Going forward from the Court's opinion
today, as I understand it, the tribes may face greater restrictions on the
spending of their third-party income than they have previously faced.
Page Proof Pending Publication

254 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
determination that runs throughout the statute. See § 5302.
F
or present purposes, however, one byproduct of that fexi-
bility is that the overhead costs of spending third-party
income are untethered from the “program” in a self-
determination “contract. ” § 5325(a)(2). Likewise, those
costs are not “directly attributable” to a self-determination
contract. § 5326. As explained above, it follows that the
Federal Government is not authorized to reimburse tribes
for those costs.
In an attempt to avoid that straightforward conclusion, the
tribes in this case (echoed by the Court) represent that, at
least recently, they have voluntarily spent their third-party
income only on their contracted programs. But a few tribes'
voluntary choices not to spend third-party income as freely
as the Improvement Act allows does not solve their statutory
problem—which is that contract support funding by law does
not extend to funding for the costs associated with spending
third-party income.
Nor can the Court glide over those diffculties by invoking
what it calls a “self-determination penalty.” Ante, at 242.
The Court writes that failing to fund the costs of spending
third-party income would penalize tribes for pursuing self-
government, on the theory that tribes would then need to
pay those costs using their third-party income. See ante, at
242–243. But the fact that a tribe must pay, for example,
$100,000 in overhead out of the $1 million in third-party in-
come that it receives does not warrant the label “self-
determination penalty.”
Even within the narrow context of spending Medicare and
Medicaid income, moreover, there is no self-determination
penalty. The tribes can spend third-party income with
much greater fexibility than the Federal Government can.
Compare, e.g., § 1641(c)(1)(B) (the Government must “frst”
spend that income on compliance with Medicare and Medic-
aid requirements), with § 1641(d)(2)(A) (tribes may spend
their third-party income on “any health care-related pur-
Page Proof Pending Publication

Cite
as: 602 U. S. 222 (2024)
255
Kavanaugh, J., dissenting
pose”). For example, the tribes can use their Medicare and
Medicaid
income to construct new healthcare facilities,
whereas Congress has prohibited the Indian Health Service
from using Medicare and Medicaid funds for that same pur-
pose. See Reply Brief 11.
In short, the rather loaded term “self-determination pen-
alty” is not an accurate or appropriate way to describe how
the Executive Branch has construed the statute for the last
30 years. And if there were really such a penalty (there is
not), then the solution lies with Congress, not by judicially
rewriting Congress's funding laws.
The tribes raise a separate policy concern that tribal hospi-
tals are underfunded and that the Federal Government does
not reimburse them for the true costs of tribal healthcare.
They may or may not be right about that. But those argu-
ments boil down to disagreeing with the appropriations
amount that Congress has provided for Indian healthcare.
Appropriations decisions often require painful tradeoffs.
But a court may not depart from the best reading of a statute
simply because a party disagrees with Congress's appropria-
tions decisions for one program.
That basic separation of powers principle carries particu-
lar force when, as here, distorting Congress's appropriations
decisions will have signifcant ripple effects. To reiterate,
according to the Federal Government, if it must fund the
costs of the tribes' spending of their third-party income, that
could require an estimated $800 million to $2 billion annually
in additional federal expenditures. See Brief for Petitioners
44. If the overall annual appropriations amount for Indian
healthcare stays the same, today's decision will divert fund-
ing from poorer tribes to richer tribes (again, because poorer
tribes generally do not administer their own healthcare pro-
grams and therefore do not receive third-party income).
6
6
See Harvard Project on American Indian Economic Development, The
State of the Native Nations 230 (2008) (noting that tribes must have “re-
sources—both human and fnancial—to transition to tribal management”
Page Proof Pending Publication

256 BECERRA
v. SAN CARLOS APACHE TRIBE
Kavanaugh, J., dissenting
Indeed, at oral argument, the Northern Arapaho Tribe ac-
knowledged
that, in light of “simple mathematics,” a decision
like the Court's today would shift money from one class of
tribes to another class of tribes. Tr. of Oral Arg. 61. Alter-
natively, today's decision may require Congress to substan-
tially increase its overall annual appropriations for Indian
healthcare, thereby taking money away from other federal
programs or imposing additional costs on taxpayers.
Rather than experimenting with reallocation of those
funds, or assuming without basis that Congress will increase
appropriations for Indian healthcare at the expense of other
national priorities (it might; it might not), I would simply
follow the statute as written.
7
***
In sum, federal law does not authorize funding to cover
the tribes' costs of spending their third-party income. I re-
spectfully dissent.
of healthcare programs); GAO, F. Rusco, Indian Programs: Interior Should
Address Factors Hindering Tribal Administration of Federal Programs 11
(GAO–19–87, 2019) (“The capacity of a tribal government to administer a
federal program or manage its resources is a key factor that can affect a
tribe's decision to enter into a self-determination contract”).
7
Some of the lower-court litigation in this case has concerned the mean-
ing of § 5325(a)(3)(A), which divides contract support costs into two catego-
ries: direct costs and indirect costs. Of note, the tribes in this case argued
that they are entitled to contract support funding for expenses that fall
within the language of § 5325(a)(3)(A), even if those expenses do not satisfy
§ 5325(a)(2). See Brief for San Carlos Apache Tribe 18; Brief for North-
ern Arapaho Tribe 30. That is incorrect. See Cook Inlet Tribal Council,
Inc. v. Dotomain, 10 F. 4th 892, 895–896 (CADC 2021). The Government
notes, moreover, that adopting the tribes' position on that issue would
have “broad ramifcations beyond the funding dispute at issue here.”
Reply Brief 9, n. 2. I do not read the Court's decision today to adopt the
tribes' position on that issue. Instead, tribes may obtain contract support
funding only for expenses that satisfy both § 5325(a)(2) and § 5325(a)(3)(A).
See ante, at 233–236.
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None