United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2020 Decided July 23, 2021
No. 19-5336
FORT MCDERMITT PAIUTE AND SHOSHONE TRIBE,
APPELLEE
v.
XAVIER BECERRA, SECRETARY OF HEALTH & HUMAN
SERVICES, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00837)
Joshua Dos Santos, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Ethan P. Davis, Acting Assistant Attorney General when the
briefs were filed, and Daniel Tenny, Attorney.
Rebecca A. Patterson argued the cause for appellee. With
her on the brief were Colin C. Hampson and Whitney A.
Leonard.
Before: TATEL, MILLETT and KATSAS, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: The Fort McDermitt Paiute and
Shoshone Tribe assumed sole control of a medical clinic that
the Indian Health Service previously had operated to benefit
two different tribes. In determining the clinic’s funding, the
agency withheld the amount that it had budgeted as benefitting
members of the second tribe. The agency also withheld an
amount equal to the Medicare and Medicaid reimbursements
received from operating the clinic. We hold that the Indian
Self-Determination and Education Assistance Act permits the
second withholding but not the first.
I
A
The Indian Health Service (IHS), a federal agency within
the Department of Health and Human Services, “provide[s]
health care services to Indians and Indian tribes.” 25 U.S.C.
§ 1661(a)(1). Congress funds the agency through lump-sum
appropriations that grant it considerable discretion “in the
proper ordering of its priorities.” Lincoln v. Vigil, 508 U.S.
182, 193 (1993); see 25 U.S.C. §§ 13, 1621. The agency uses
its funding to administer hospitals and other health programs
that provide care to tribal members. Id. § 1661(c)(2), (3).
The Indian Self-Determination and Education Assistance
Act of 1975 (ISDA) allows Indian tribes to assume control of
the health programs that IHS operates on their behalf. Title I
of the statute allows tribes to assume control of specific
programs by entering self-determination contracts with the
federal government. See 25 U.S.C. § 5321(a). Title V allows
tribes to enter self-governance compacts, which can cover a
wider range of programs on a more permanent basis. See id.
§§ 5384, 5385(b)(2); 1 Cohen’s Handbook of Federal Indian
3
Law § 22.02 (2019) (compacts provide “significant additional
flexibility in program administration”).
To form a self-governance compact, a tribe must agree to
both a compact and a funding agreement with IHS. 25 U.S.C.
§§ 5384(a), 5385(a). The compact must “set forth the general
terms of the government-to-government relationship” between
the parties. Id. § 5384(b). The funding agreement must
identify both the programs that the tribe will administer, id.
§ 5385(d)(1), and the funding that IHS will provide, id.
§ 5385(d)(2)(B).
Subject to the availability of appropriations, tribes
participating in self-governance are entitled to IHS funding for
both “direct program costs” and “contract support costs.” 25
U.S.C. § 5388(c). This appeal concerns only direct program
costs, which courts have also called the “secretarial amount.”
See Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 186
(2012). Under ISDA, the secretarial amount must not be less
than what IHS “would have otherwise provided for the
operation of the programs or portions thereof” but for the self-
governance compact. 25 U.S.C. § 5325(a)(1).
When IHS and a tribe cannot agree on funding, the tribe
may submit a final offer to the agency. 25 U.S.C. § 5387(b).
IHS then has forty-five days to approve or reject the offer. Id.
If IHS does not timely reject an offer, “in whole or in part,”
ISDA deems the agency to have accepted it. Id. Upon a partial
rejection, IHS must give the tribe “the option of entering into
the severable portions of a final proposed compact or funding
agreement … that [IHS] did not reject.” Id. § 5387(c)(1)(D).
If IHS rejects a proposed funding amount as too high, the tribe
must be allowed to proceed with a “lesser funding amount.” Id.
In addition to the secretarial amount and contract support
costs, Indian health programs may receive income from third
4
parties, including reimbursements from Medicare and
Medicaid for treating their beneficiaries. 42 U.S.C.
§§ 1395qq(a), 1396j(a). When IHS operates a health care
program, it bills and receives reimbursements from Medicare
and Medicaid. See id. IHS must place the reimbursements “in
a special fund” and use them only as authorized by the Indian
Health Care Improvement Act (IHCIA). 25 U.S.C.
§ 1641(c)(1)(A), (B). When a tribe operates a health care
program through a self-governance compact, it may elect to bill
for and receive those reimbursements directly. Id.
§§ 1603(25), 1641(d)(1).
B
The Fort McDermitt Paiute and Shoshone Tribe is a
federally recognized Indian tribe with a reservation in parts of
Nevada and Oregon. Prior to the events in this case, IHS
provided health care to the tribe through a clinic in McDermitt,
Nevada, and an accompanying emergency medical services
(EMS) program. Most of the clinic’s patients are members of
the Fort McDermitt tribe or their beneficiaries. Nonetheless,
federal law entitles members of other tribes also to receive care
at the clinic. 42 C.F.R. § 136.12(a).
In 2016, the Fort McDermitt notified IHS of their intent to
assume responsibility for the clinic and a portion of the EMS
program. Upon qualifying for self-governance, the tribe
submitted to IHS a draft compact and funding agreement. The
parties reached an impasse on several issues, including the
clinic’s secretarial funding. In its final offer to the agency, the
tribe requested about $603,000 annually to provide medical
care at the clinic. IHS rejected that amount and awarded only
about $53,000.
The numbers diverged for two reasons. First, the parties
disputed whether the Fort McDermitt were entitled to all the
5
funds that IHS previously had spent on the clinic or whether
the agency could withhold the portion of funds that it
previously had allocated to benefit members of another tribe.
As a general matter, IHS allocates funding among health care
programs according to the number of eligible users who live in
the area assigned to each tribe. See Indian Health Service,
Special General Memorandum 95-02 (Apr. 19, 1995).
Applying that standard, IHS funded the clinic to benefit both
the Fort McDermitt and the nearby Winnemucca Tribe. In
determining the secretarial amount, IHS took the position that
it could not include what it described as the Winnemucca’s
“tribal share” of clinic funding without that tribe’s consent.1
The Fort McDermitt responded that they were entitled to all of
the clinic’s funding because they would be assuming
responsibility for all of its operations.
Second, the parties disputed the treatment of third-party
income. Before the Fort McDermitt assumed control of the
clinic, IHS collected Medicare and Medicaid payments on the
tribe’s behalf for treatment that the clinic provided to Medicare
and Medicaid beneficiaries. In its final offer, the tribe sought
to include the value of those payments in the secretarial
amount, even though the tribe now collects the payments from
Medicare and Medicaid directly. IHS denied the request.
After IHS refused to fund the clinic at the level requested,
the Fort McDermitt entered into the severable portions of its
proposed compact and funding agreement. Because the Fort
McDermitt had asked to take over the entire clinic, and because
IHS did not reject that request, the tribe assumed full control of
1
When IHS and the Fort McDermitt discussed the final offer,
the Winnemucca lacked a recognized governing body and thus could
not provide consent. Although the tribe now has such a body, it has
taken no position in this litigation.
6
the clinic. The tribe also filed this lawsuit challenging IHS’s
refusal to fund the secretarial amount at the level requested.
The district court granted summary judgment to the Fort
McDermitt. It held that the tribe was entitled to all of its
requested funding, including amounts that IHS had budgeted
for the Winnemucca and amounts obtained through Medicare
and Medicaid reimbursements. Fort McDermitt Paiute &
Shoshone Tribe v. Azar, No. 17-837-TJK, 2019 WL 4711401
(D.D.C. Sept. 26, 2019). The government appealed on both
issues.
II
This appeal presents two questions of law, which we
review de novo. See Ramah Navajo Chapter, 567 U.S. at 193–
94.2 We first address whether the Fort McDermitt are entitled
to all the funds that IHS had previously allocated to the clinic
or only to its tribal share of those funds.
A
Title V of ISDA entitles each tribe participating in self-
governance to the same funding that it “would have been
entitled to receive under self-determination contracts”
governed by Title I, including “amounts for direct program
costs specified under section 5325(a)(1).” 25 U.S.C. § 5388(c).
In turn, section 5325(a)(1) provides that funding for direct
2
The Fort McDermitt argue that IHS must support the rejection
of its offer by “clear and convincing evidence.” 25 U.S.C. § 5387(d).
But “clear and convincing evidence” identifies a burden of
persuasion for issues of fact, see Clear and Convincing Proof,
Black’s Law Dictionary (6th ed. 1990), and generally has no
application to issues of law, see Merck Sharp & Dohme Corp. v.
Albrecht, 139 S. Ct. 1668, 1679 (2019).
7
program costs “shall not be less than” what IHS “would have
otherwise provided for the operation of the programs or
portions thereof for the period covered by the contract.”
These provisions link the secretarial amount to spending
on specific healthcare programs, not spending for specific
tribes. The secretarial amount must be not less than what IHS
would have “provided for the operation of the programs or
portions thereof” covered by the self-governance compact or
self-determination contract at issue. To “provide” funding
means to “supply” or “contribute” it. Provide, Black’s Law
Dictionary (6th ed. 1990). So the secretarial amount is keyed
to what IHS would have contributed, in dollars and cents, to
program operations. Moreover, section 5325(a)(1) allocates
funding according to which tribes operate what programs. In
the phrase “programs or portions thereof,” the words “portions
thereof” plainly mean “portions of programs.” And in the
phrase “operation of the programs or portions thereof,” the
prepositional phrase “of the programs or portions thereof”
plainly modifies “operation.” Accordingly, if a tribe operates
a portion of a program, it is entitled to receive no less than what
IHS would have spent to operate that portion. Section
5325(a)(1) thus fixes the secretarial amount based on
programs, or portions of programs, that the tribe operates.
This reading of section 5325(a)(1) tracks a broader pattern:
whenever ISDA refers to “programs … or portions thereof,”
context confirms that the portions at issue are portions of
program operations. For example, ISDA authorizes tribes to
“plan, conduct, and administer [certain] programs or portions
thereof, including construction programs.” 25 U.S.C.
§ 5321(a)(1). Because these “portions” can be conducted or
administered, they must be portions of operations rather than
budgeted funds. Other provisions in ISDA likewise describe
portions of programs as concrete projects that can be
8
performed, administered, redesigned, consolidated, or
delegated. See id. §§ 5385(d)(1), 5386(e), 5387(c)(1)(A)(ii).
Because the phrase “programs … or portions thereof”
consistently bears this meaning throughout ISDA, we presume
that it also does so in section 5325(a)(1). See Env’t Def. v.
Duke Energy Corp., 549 U.S. 561, 574 (2007).
Here, it is undisputed that the Fort McDermitt have
assumed responsibility for all health care programs at the
clinic. The tribe is thus entitled to all the funding that IHS
would have spent to operate the clinic absent the compact. IHS
therefore erred in withholding funds that it had internally
allocated to benefit the Winnemucca.
B
IHS argues that section 5325(a)(1) entitles tribes to only
their “tribal share” of a program’s funding. To support this
view, the agency reads the phrase “portions thereof” in section
5325(a)(1) to refer to different tribes’ relative shares of eligible
users. For the clinic here, IHS says that it has allocated tribal
shares to both the Fort McDermitt and the Winnemucca. So,
IHS argues, it cannot transfer the Winnemucca share without
that tribe’s consent.
This position is incompatible with ISDA’s text. To
reiterate, section 5325(a)(1) links the secretarial amount to
what the agency would have “provided for the operation of the
program or portions thereof” (emphasis added). IHS reads
“portions” to mean tribal shares, but the statute makes clear that
the relevant portions are simply portions of programs that
individual tribes operate.
ISDA’s structure further cuts against reading a concept of
tribal shares into section 5325(a)(1). Title V of ISDA contains
a definition of “tribal share” that by its terms applies only “[i]n
9
this subchapter”—i.e., in Title V. 25 U.S.C. § 5381(a), (a)(8).
But section 5325(a)(1) appears in Title I, which neither defines
“tribal share” nor uses that phrase for any purpose. And the
“tribal share” definition is unhelpful to IHS in any event. Title
V defines a “tribal share” as an “Indian tribe’s portion of all
funds and resources that support secretarial programs, services,
functions, and activities (or portions thereof) that are not
required by the Secretary for performance of inherent federal
functions.” Id. § 5381(a)(8). Although this definition divides
secretarial funds into tribal portions, it also distinguishes
portions of funds from portions of programs. And as explained
above, section 5325(a)(1) references only portions of programs
in fixing the secretarial amount.
Moreover, a different ISDA provision apportions funding
based on tribal shares. ISDA allows tribes to jointly assume
control of a program through an inter-tribal consortium. 25
U.S.C. § 5381(a)(5). It also allows tribes to withdraw from a
consortium and then to operate a portion of the program
independently. Id. § 5386(g)(1)(A). In that event, ISDA
entitles a withdrawing tribe to the “tribal share of funds and
resources” that support the “programs … or portions thereof”
that it will operate independently. Id. § 5386(g)(2)(A). Section
5386(g)(2)(A) thus expressly divides funding according to a
“tribal share” of the relevant program or portions, which
confirms that section 5325(a)(1) does not do so by implication.
See Russello v. United States, 464 U.S. 16, 22–23 (1983).
Against all this, IHS invokes section 5385(b)(1), which
requires each funding agreement to “authorize” self-governing
tribes to “receive full tribal share funding, including tribal
shares of discretionary [IHS] competitive grants” for every
program identified in their compacts. 25 U.S.C. § 5385(b)(1).
The agency reads this language to limit tribes’ secretarial
funding to tribal shares as determined by their relative eligible
10
beneficiaries. But Title V of ISDA defines a “tribal share” to
mean only a tribe’s “portion” of program funds, without
elaborating on whether it should reflect the tribe’s relative
number of beneficiaries or its relative responsibility for
program operations. Id. § 5381(a)(8). Full “tribal share
funding” is thus consistent with a secretarial amount based on
program operations. Moreover, section 5385(b)(1) concerns
the overall funding that tribes must be authorized to receive,
including the mandatory secretarial amount and additional
discretionary grants. Authorizing at least tribal-share funding
for all these amounts does not imply that the secretarial amount
includes no more than tribal-share funding. In any event, a
provision that generally governs all funding cannot control
over another one that specifically defines the secretarial
amount. So, if there were a conflict between the broad
authorization of “tribal share funding” in section 5385(b)(1)
and the specific entitlement to the secretarial amount in section
5325(a)(1), the latter would control. See Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 384–85 (1992).
C
IHS further argues that our reading of section 5325(a)(1)
would allow individual tribes to operate and claim funding for
multi-tribe programs without consent from all affected tribes.
IHS contends that our reading thus violates two other ISDA
provisions, sections 5304(l) and 5383(c)(1)(B) of Title 25.
More generally, IHS worries that our reading is unfair to non-
consenting tribes such as the Winnemucca.
ISDA protects objecting tribes through several provisions,
including the two cited by IHS, that govern which program
operations any one tribe may assume. First, if a tribe seeks to
contract for a program “benefitting more than one Indian tribe,”
all of those tribes must consent. 25 U.S.C. § 5304(l). Second,
11
to qualify for self-governance, a tribe must “request[]
participation” from each tribe “to be served” in its self-
governance compact. Id. § 5383(c)(1)(B). Third, if one tribe
seeks partial control of a multi-tribe program, ISDA permits
IHS to “divide the administration” of the program, but only if
the agency takes “such action as may be necessary to ensure
that services are provided” to the other affected tribes,
“including program redesign in consultation with” those tribes
Id. § 5324(i)(1). Fourth, ISDA permits tribes to join and
withdraw from inter-tribal consortiums, id. § 5386(g)(2)(A),
which it defines as coalitions of “separate Indian tribes that join
together for the purpose of participating in self-governance,”
id. § 5381(a)(5). And if a tribe withdraws from an inter-tribal
consortium, it is “entitled to its tribal share of funds”
supporting programs that the tribe will operate under its own
contract or compact, “calculated on the same basis as the funds
were initially allocated in the [consortium’s] funding
agreement.” Id. § 5386(g)(2)(A). For secretarial funding, this
means that a withdrawing tribe may receive funding that IHS
would have provided for portions of programs that the
withdrawing tribe will operate prospectively. Id. § 5325(a)(1).
These provisions allow individual tribes to protect their
individual interests in program control and funding. Sections
5304(l) and 5383(c)(1)(B) allow each tribe that benefits from a
program to block another tribe from assuming its control. And
because ISDA bases program funding on program control, that
in turn allows each tribe to protect its relative claim to a
program’s funding. Section 5324(i)(1) permits IHS to divide
program administration to account for different tribes taking
different positions on self-governance, but only if IHS accounts
for the interests of all affected tribes. Finally, section
5386(g)(2)(A) permits tribes to band together or split apart for
purposes of operating tribal programs, and it preserves the
ability of a withdrawing tribe to receive its share of funds
12
necessary to support programs that it will operate going
forward. ISDA thus gives individual tribes a significant say in
the operation and funding of multi-tribe programs.3
In this unusual case, IHS did not obtain the Winnemucca’s
consent before transferring full control of the clinic to the Fort
McDermitt. Nor did the agency divide administration of the
clinic. Nonetheless, those omissions have no bearing on the
funding question before us. Section 5304(l), which requires
consent for one tribe to assume responsibility for “services
benefitting more than one Indian tribe,” governs operations as
opposed to funding. Because IHS agrees that the Fort
McDermitt may operate the entire clinic, that issue is not
properly before us. Likewise, section 5383(c)(1)(B) defines
only the “qualified applicant pool” for self-governance, but
IHS agrees that the Fort McDermitt are so qualified. Finally,
section 5324(i)(1) allows severance only when “require[d]” by
the governing contract or compact. And IHS agrees that the
compact in this case authorizes the Fort McDermitt to operate
the entire clinic. In short, although ISDA allows individual
tribes to influence program operations, which in turn affects
secretarial funding, it does not allow IHS to withhold funds that
the agency would otherwise have provided for operations that
it allows a tribe to undertake. On the funding question at issue
here, section 5325(a)(1) is controlling, and the other provisions
invoked by IHS are inapposite.
3
These provisions do not elaborate on which tribes “benefit[]”
from a program, 25 U.S.C. § 5304(l); which tribes are “served” by a
self-governance compact, id. § 5383(c)(1)(B); how IHS may
“divide” program “administration,” id. § 5324(i)(1); or how it may
calculate “tribal share[s],” id. § 5386(g)(2)(A). We need not address
how much discretion these terms give IHS in deciding how to
allocate control of and funding for multi-tribe programs.
13
IHS’s concerns about fairness to the Winnemucca are
misplaced. Members of that tribe historically received care at
other facilities; only two members of the tribe used the clinic
in the entire year before the Fort McDermitt began to operate
it; members of thirty-three other tribes used the clinic during
that same period, without any suggestion that any of those
tribes could veto the Fort McDermitt’s compact; and the
Winnemucca, despite now having a recognized governing body
and thus the legal capacity to act as a tribe, have lodged no
objection to the Fort McDermitt’s position. Moreover, the
Winnemucca are not without protections going forward. For
one thing, they could seek to set aside IHS’s transfer of clinic
operations to the Fort McDermitt, on the theory that it violated
either section 5304(l) or section 5383(c)(1)(B). Alternatively,
they could seek to form an inter-tribal consortium with the Fort
McDermitt to jointly run the clinic. In any event, the
Winnemucca may continue to use the clinic on the same terms
as the Fort McDermitt. 42 C.F.R. § 136.12(a).
In closing, we note that there is a good reason why ISDA
matches program funding to program operations: by granting
each self-governing tribe what IHS “would have otherwise
provided” for programs run by the tribe, section 5325(a)(1)
guarantees the programs a proxy for adequate funding. The
same is not true under IHS’s reading of ISDA, which, in cases
like this one, would permit the agency to give clinics fewer
resources than what it had previously deemed necessary to run
them itself.
* * * *
To recap, the secretarial amount under section 5325(a)(1)
depends on the portions of programs that a tribe operates under
a self-determination contract or self-governance compact. And
because the Fort McDermitt are now responsible for operating
14
the entire clinic, the tribe is entitled to all the funding that IHS
would have otherwise provided for its operation, without any
deduction based on tribal shares. We affirm the district court
on this issue.4
III
We now address whether the secretarial amount must
include the value of Medicare and Medicaid reimbursements
that IHS previously had collected on behalf of the Fort
McDermitt, even though the tribe now collects the
reimbursements directly. The Fort McDermitt argue that the
secretarial amount includes these reimbursements because, had
they not entered into a self-governance compact, IHS would
have provided them with the reimbursements. We disagree.5
To begin, the secretarial amount reflects what IHS would
otherwise have “provided” for clinic operations, but IHS does
not “provide” Medicare and Medicaid reimbursements within
the ordinary meaning of that term. As noted above, to
4
Given this disposition, we do not reach the Fort McDermitt’s
alternative argument that the Winnemucca, whose members used the
clinic only twice in one year, lack any tribal share in it.
5
The Fort McDermitt argue that IHS forfeited this objection by
failing to raise it in its rejection letter. But although the letter agreed
to make a “one-time transfer” of pending Medicare and Medicaid
reimbursements, it also refused to make those reimbursements
“recurring” in the future, thereby preserving the objection that IHS
raises here. J.A. 122. The tribe further argues that the rejection letter
is deficient for failing to identify the specific amount of funding
associated with this issue. But ISDA requires the agency to show
only that “the amount of funds proposed in the final offer exceeds
the applicable funding level to which the Indian tribe is entitled.” 25
U.S.C. § 5387(c)(1)(A)(i). The merits of the Medicare and Medicaid
reimbursement issue are thus properly before us.
15
“provide” means to “supply” or “contribute.” Provide, Black’s
Law Dictionary, supra. Tribes are “entitled” to those payments
under the Social Security Act, 25 U.S.C. § 1641(c)(1)(A), and
can collect them directly from the Centers for Medicare and
Medicaid Services, id. § 1641(d)(1). Moreover, when IHS
collects the payments for a tribe, it functions only as a trustee,
holding the payments in a “special fund” and spending them
under specific statutory criteria. Id. § 1641(c)(1)(A), (B).
Either way, CMS supplies and contributes the payments.
ISDA also expressly excludes third-party income from the
secretarial amount. Section 5388(j) provides that “all Medicare
[or] Medicaid … income earned by an Indian tribe shall be
treated as supplemental funding to that negotiated in the
funding agreement.” 25 U.S.C. § 5388(j). A “supplement” is
“[s]omething added to complete a thing, make up for a
deficiency, or extend or strengthen the whole.” Supplement,
American Heritage Dictionary (4th ed. 2000). Because income
from third parties is “supplemental” to the funds negotiated in
a funding agreement, it must be separate from those funds. And
because the negotiated funds include the secretarial amount,
section 5388(j) requires IHS to calculate that amount separately
from third-party income.
The district court reasoned that section 5388(j) concerns
only how funds are “transferred after the parties have entered
into the funding agreement.” Fort McDermitt Paiute, 2019
WL 4711401, at *8. But section 5388(j) designates all third-
party income as supplemental, without any limit to post-
formation transfers as opposed to pre-formation negotiations.
Moreover, it states that third-party income may not result in
“any offset or reduction in the amount of funds the Indian tribe
is authorized to receive”—and thus specifically controls the
terms of funding agreements. Because section 5388(j) thus
governs the negotiation of funding agreements, its designation
16
of third-party income as “supplemental” excludes that income
from the secretarial amount.
The structure of IHCIA reinforces this conclusion. As
described above, IHCIA allows tribes to receive third-party
income in two ways. IHS can collect that income on tribes’
behalf, hold it in a “special fund,” and then disburse it under
specific statutory criteria. 25 U.S.C. § 1641(c)(1)(A), (B). Or,
tribes participating in self-governance may elect to bill for and
receive the income directly. Id. §§ 1603(25), 1641(d)(1).
IHCIA makes these two methods mutually exclusive; when a
tribe elects to collect the income directly, the provisions
allowing IHS to collect and disburse the funds on the tribe’s
behalf “shall not apply,” and the tribe ceases to be eligible for
payments from its IHS “special fund” for services provided
“during the period of such election.” Id. § 1641(c)(2). IHCIA
thus plainly bars tribes from recovering twice for services
provided to Medicare and Medicaid beneficiaries. And we
decline to adopt a strained interpretation of ISDA that would
allow precisely that double-dipping.
As a last resort, the Fort McDermitt invoke the interpretive
canon that statutes must “be construed liberally in favor of the
Indians.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,
766 (1985). As codified in ISDA, the canon applies only when
a statute is ambiguous. 25 U.S.C. § 5392(f). For the reasons
set forth above, we conclude that ISDA’s text and structure
unambiguously exclude the value of Medicare and Medicaid
reimbursements from the secretarial amount.
IV
The final issue is one of remedy. Because we affirm the
district court on the tribal-share issue, the Fort McDermitt are
entitled to receive funds that IHS withheld on that basis.
However, the record does not clearly identify that amount. In
17
the proceedings below, the district court remarked that the
parties had not identified “the applicable funding amount
associated with each legal issue in dispute.” ECF 24, at 4–5.
The parties responded by stipulating that the secretarial amount
should increase by $551,279 if the Fort McDermitt prevail on
both issues before us. But there was no stipulation as to the
appropriate additional amount if the tribe prevailed on only the
tribal-share issue. Because the record is unclear on that point,
we remand the case for the district court to resolve it in the first
instance.
V
We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
So ordered.