Remote Tribe Wins Some EMS Funding

By Mike Heuer, Courthouse News Service

(CN) – The Pyramid Lake Paiute Tribe in remote northwestern Nevada won partial federal funding for its emergency medical services program serving the Fort McDermitt Tribe.
U.S. District Judge Christopher R. Cooper on Tuesday partially granted the tribe’s motion for summary judgment in its complaint against the Secretary of Health and Human Services and the Indian Health Services, which denied it funding this year.
The Fort McDermitt Paiute and Shoshone tribes, collectively called the Fort McDermitt Tribe, live in a small, remote community along the Nevada-Oregon border, where Indian Health Services (IHS) has operated a tribal health clinic since the 1970s. The clinic provides primary medical, dental and mental health care and drug and alcohol treatment programs.
The IHS has provided emergency medical services for the tribe since 1993, but the program’s costs increased greatly after a 2010 IRS rule requiring contract workers to be classified as employees, Judge Cooper Found. In 2012, the EMS incurred $502,611 in costs against $102,711 in revenue. The difference was paid through clinic revenue and IHS discretionary funds.
The Fort McDermitt Tribe last year designated the Pyramid Lake Tribe as its tribal organization in accordance with the Indian Self Determination and Education Assistance Act. Cooper says the Pyramid Lake Tribe requested $502,611 plus another $196,739 for startup costs and $136,139 for contract support costs from the IHS.
Previously, the Fort McDermitt Tribe designated Humboldt General Hospital as its base hospital for emergency medical services, but Cooper says the hospital in August 2013 notified the IHS it no longer would be the tribe’s base hospital.
“The agency explained that IHS had ‘ceased operation of the Fort McDermitt emergency medical services program’ due to its large operating deficit. Because IHS had discontinued the program, it reasoned that the base amount available for contracting was zero,” Cooper wrote in his 15-page opinion. “It therefore declined the tribe’s proposal as being ‘in excess of the applicable funding amount.'”
The Pyramid Lake Tribe responded by suing the IHS and Health and Human Services “seeking to require IHS to enter into a self-determination contract with the tribe to operate the Fort McDermitt emergency medical services program.”
Both sides sought summary judgment. HHS Secretary Sylvia Burwell also sought dismissal, “for failure to join indispensable parties, namely, other area tribes whose funding may be affected by the outcome of the case.”
Cooper held a hearing on the motions on Aug. 28.
Summing it up, Cooper wrote that Burwell “argues that because the tribe’s proposal implicates the budget for other tribes served by IHS in the region, each of these tribes is a necessary party to this action. She reasons further that because the other tribes are protected by sovereign immunity, they cannot be joined and the case therefore must be dismissed.”
After citing four other cases in Native American law, Cooper says: “The Secretary’s position is that the Pyramid Lake Tribe’s proposal would unfairly benefit the Fort McDermitt Tribe by enabling it to receive more than its share of funding, to the detriment of neighboring tribes.”
The judge says Burwell “argues in her motion for summary judgment that IHS calculates funding for programs based on the ‘tribal share’ that supports the programs that are to be transferred to the tribe” and “contends that the funding level in the Tribe’s proposal was in excess of the tribal share IHS determined the Fort McDermitt Tribe was entitled to receive.”
Burwell claims that share amount came to just $38,746, according to Cooper’s analysis. The judge added that Burwell “argues even if the emergency medical services program remained in existence,” the Pyramid Lake Tribe’s proposal exceeded that sum.
However, “IHS never advanced this tribal share argument in declining the tribe’s proposal,” Cooper found. “It cannot now be used as a post-hoc to justification for the agency’s decision.”
In denying Burwell’s motions and partially granting the tribe’s, Cooper says that while “the court will issue an order declaring that the Secretary violated the ISDEAA by denying the tribe’s proposal outright, it will not direct her to enter into the tribe’s contract at the 2012 amount.”
“Rather, it will direct the Secretary to negotiate with the tribe over what the Secretary ‘would have otherwise provided’ for the emergency medical services program had IHS continued to operate it, plus the administrative and startup cost.”  

More forestry funding needed on Indian lands, tribal leader says

By Kate Prengama, Yakima Herald-Republic

Phil Rigdon, the director of  Yakama Natural Resources Program and president of the Intertribal Timber Council

Phil Rigdon, the director of Yakama Natural Resources Program and president of the Intertribal Timber Council

Federal funding cuts pose dire consequence for the ability of tribes to manage their land and reduce wildfire risks, a Yakama Nation leader told a U.S. Senate hearing Wednesday in Washington, D.C.

Phil Rigdon, the director of the Yakamas’ natural resources program and president of the Intertribal Timber Council, told the Senate Committee on Indian Affairs that programs that once kept tribal forests healthy are now “running on fumes.”

“The consequences of chronic underfunding and understaffing are materializing,” Rigdon told the committee. “The situation is now reaching crisis proportions and it’s placing our forests in great peril.”

There are more than 18 million acres of tribal forest lands held in trust by the federal government, but the Bureau of Indian Affairs gets far less funding per acre for forest management and fire risk reduction than national forests.

Funding has fallen 24 percent since 2001, Rigdon said, and that can have dire consequences.

For example, last year when the Mile Marker 28 Fire broke out off U.S. Highway 97 on the Yakama reservation, only one heavy equipment operator and one tanker truck were able to respond immediately because that’s all the current federal budget supports, Rigdon said in an interview before the hearing.

“Back in the early 1990s, when I fought fire, we would have three or four heavy equipment operators,” he said. “Someone was always on duty. That’s the kind of thing that’s really changed.”

The Mile Marker 28 Fire eventually burned 20,000 acres of forest.

Rigdon noted that the dozens of tribes around the country that are represented by the Timber Council are proud of the work they do when resources are available.

“If you go to the Yakama reservation and see our forests, we’ve reduced disease and the risk of catastrophic fire. If we don’t continue to do that type of work — if we put it off to later — we’ll see the types of 100,000- or 200,000-acre fires you see other places,” Rigdon said.

Currently, there are 33 unfilled forestry positions at the BIA for the Yakama Nation, he added. That limits the program’s ability to hit harvest targets, which hurts the tribe economically and affects the health of the forest.

A 2013 report from the Indian Forest Management Assessment Team found that an additional $100 million in annual funding and 800 new employees are needed to maintain strong forestry programs on BIA land nationwide. The current budget is $154 million.

In addition to the concern over future funding, other members of the panel also discussed the different approaches to forest management by tribes and the Forest Service.

“We’ve done a good job maintaining a healthy forest on a shoestring budget, but the Forest Service is not maintaining its adjacent lands,” said Danny Breuninger Sr., the president of the Mescalero Apache Nation in New Mexico.

Committee member Sen. John McCain, R-Ariz., cited a 2011 Arizona fire as an example of how tribal efforts can succeed. In the wake of a 2002 fire, the White Mountain Apache conducted salvage logging and thinning work while the adjacent national forest did not. When fire hit the region again, federal forests were devastated, but the treated tribal forests stopped the fire’s spread.

Jonathan Brooks, forest manager for the White Mountain Apache, told McCain that lawsuits prevent the Forest Service from doing similar work.

“Active management gets environmental activists angry,” Brooks said. “But what’s more hurtful to the resources: logging, thinning and prescribed fire, or devastating fires?”

Rigdon said the Intertribal Timber Council would like to see increased abilities for tribes to work with neighboring national forests on management projects like thinning, which could support tribe-owned sawmills and reduce fire risks.

The Yakama Nation is working with the Forest Service on developing such a collaborative project, as part of a new program known as “anchor forests.” It’s a pilot program currently being used on a few reservations, and the panelists at the hearing supported expanding it to more regions.

Anchor forests are intended to balance the economic and ecological needs of a forest through a collaborative effort involving tribes, the BIA and local, state and federal agencies.