[00:00:02] Speaker 00:
Case number 19-5336, Fort McDermott, Peyote, and Shoshone Tribe versus Alex M. Azar II, Secretary, U.S.

[00:00:11] Speaker 00:
Department of Health and Human Services at All, a balance.

[00:00:15] Speaker 00:
Mr. Dos Santos for the balance, Ms.

[00:00:17] Speaker 00:
Patterson for the appellee.

[00:00:21] Speaker 05:
Good morning.

[00:00:21] Speaker 05:
May it please the court, Josh Dos Santos on behalf of the Indian Health Service.

[00:00:27] Speaker 05:
The Indian Self-Determination Act allows tribes to take over programs that IHS runs for their benefit.

[00:00:34] Speaker 05:
The point of the act in this context is to give tribes greater agency over the provision of their health care.

[00:00:40] Speaker 05:
So whereas by default, the tribe gets the health care from the federal government through IHS, the act allows a tribe to exercise agency and then provide health care services for itself.

[00:00:52] Speaker 05:
The issue in this case arises from the fact that IHS

[00:00:56] Speaker 05:
often provide services for more than one tribe through the same program in order to conserve resources.

[00:01:03] Speaker 05:
Congress foresaw that circumstance, which is very common, and it dealt with it in the following way.

[00:01:09] Speaker 05:
It expressly prohibited tribes from taking over a program in which more than one tribe has a share, unless the other tribe's consent, which makes sense given that the act is about self-determination and agency,

[00:01:23] Speaker 05:
And if one tribe could take over a multi-tribe program without the other tribes having a say in the matter, that would eliminate the other tribes' right to self-determination without their consent.

[00:01:33] Speaker 05:
And then second, Congress gave IHS authority to sever and redesign a program that served more than one tribe so that it could accommodate all of the tribes that are affected.

[00:01:47] Speaker 05:
That's a common sense approach to the issue here.

[00:01:51] Speaker 05:
And the district court's ruling contravenes those principles.

[00:01:55] Speaker 05:
What the district court said was, when there's a multi-tribe program, the first tribe to ask to take it over gets all of the money, not just its share.

[00:02:04] Speaker 05:
And that would effectively deprive the other tribes of the opportunity to provide for their own health care.

[00:02:11] Speaker 01:
Can you just help me out?

[00:02:13] Speaker 01:
There's a steep learning curve on this case for me.

[00:02:21] Speaker 01:
What is, how do you define tribal share in this case?

[00:02:29] Speaker 05:
So tribal share is a longstanding concept.

[00:02:32] Speaker 05:
It means the portion of appropriated funds that IHS allocates on a per tribe basis to each tribe for their benefit.

[00:02:42] Speaker 05:
And the way it works is, as the Supreme Court has previously talked about and acknowledged in both Lincoln versus Vigil,

[00:02:51] Speaker 05:
And then again, in Salazar versus Ramonavajo, IHS receives lump sum appropriations.

[00:02:57] Speaker 05:
And in consultation with the tribes about their needs, it then allocates those funds on a per-tribe basis.

[00:03:05] Speaker 01:
So the way it seemed to be described here, and I may totally misunderstood this, was this large number.

[00:03:13] Speaker 01:
It was 190,000 or something like that for the Winnemucca tribe, which seemed to be a lump

[00:03:20] Speaker 01:
Was that just a lump sum that was for all their health care needs or that was the they get a bigger some than that.

[00:03:26] Speaker 01:
And that was the amount that was dedicated to the clinic program.

[00:03:30] Speaker 05:
There are different buckets of funds.

[00:03:33] Speaker 05:
So the one at issue here is hospital and clinics funds at direct medical services and for direct medical services IHS applies a long standing formula.

[00:03:42] Speaker 05:
And to all the tribes in the region and the one in Moccasher was 190 under that formula.

[00:03:49] Speaker 01:
That was all going into this clinic.

[00:03:51] Speaker 05:
This clinic.

[00:03:52] Speaker 01:
even though they were getting a lot of their, I thought, this is one thing just confused me, and you're the expert.

[00:03:58] Speaker 01:
As I read the record, they were getting almost all of their, I think I would call it direct medical care, but maybe that's my error, through a different process that sounded like just sort of a provider reimbursement process or something like that, not at this clinic.

[00:04:16] Speaker 01:
You know the record, there's two people, two people, maybe six people.

[00:04:19] Speaker 01:
Was that included in their,

[00:04:23] Speaker 01:
agency share or was that dealt with separately?

[00:04:27] Speaker 01:
Am I wrong to say that it's both the same?

[00:04:30] Speaker 05:
That is dealt with separately.

[00:04:31] Speaker 05:
So that's what's called purchase and referred care.

[00:04:34] Speaker 05:
And that's a separate bucket where IHS pays third parties to provide care.

[00:04:40] Speaker 05:
But it's different from direct medical services.

[00:04:43] Speaker 01:
Why did it have so much money attributed to this

[00:04:50] Speaker 01:
clinic when there were so few members using it and I think the record says is it 25 or 50 other tribes would have people who would sort of show up now and then just because I take it the clinic would be open to other people who come in so you don't have to sort of show tribal membership to get in the door and the Winnemucca just seemed to be much like them just a few people a year now and then so why is it that they

[00:05:19] Speaker 01:
had this large share, but none of these other tribes that were also using the clinic did.

[00:05:24] Speaker 01:
And why $190,000 for two people?

[00:05:28] Speaker 05:
Well, so I think what would clarify this for your honor is that shares are not allocated based on how many people end up using a particular clinic.

[00:05:38] Speaker 05:
They're allocated based on how many eligible potential users live in the geographic area that's assigned to each tribe.

[00:05:47] Speaker 05:
What happened here was IHS used that formula, taking into account how many eligible potential users live in the Winnemuccas area and allocated shares accordingly.

[00:05:59] Speaker 05:
At the time, Winnemucca, the Winnemucca tribe, did not have a functioning government.

[00:06:04] Speaker 05:
And you can see in the record, page 244, there were several factions that were vying to be the Winnemucca's government.

[00:06:10] Speaker 05:
So IHS couldn't consult and get a determination as to where Winnemucca would prefer its 190,000 to go.

[00:06:17] Speaker 01:
And then- My understanding is that, right, so that because they didn't have a functioning government, IHS or the secretary, I'm not sure exactly the level,

[00:06:28] Speaker 01:
was making the decisions for Winnemucca as to where those funds should go?

[00:06:35] Speaker 05:
Well, IHS always makes the decision.

[00:06:37] Speaker 05:
It's in consultation with the tribe, but it always makes the decision.

[00:06:40] Speaker 05:
And I do want to highlight the point that Your Honor made about the fact that clinics are open to members of all tribes.

[00:06:46] Speaker 05:
I think that's an important point to keep in mind because it shows that allocations, the shares don't depend upon how many

[00:06:54] Speaker 05:
members of a particular tribe use the clinic.

[00:06:57] Speaker 05:
It's not the case that if several members of a different tribe come and use the clinic, now that tribe acquires a share.

[00:07:04] Speaker 05:
The shares are determined by IHS under a long-standing formula that isn't challenged here.

[00:07:10] Speaker 01:
But in the operation of the clinic, I take it Fort McDermott has been operating the clinic now for a few years?

[00:07:17] Speaker 01:
That's my understanding, yes.

[00:07:20] Speaker 01:
They would still service.

[00:07:22] Speaker 01:
However, many when I'm like a people when members of the women like a tribe.

[00:07:26] Speaker 01:
I'm speaking too quickly.

[00:07:28] Speaker 01:
Came into the clinic, they would still provide the medical services, just as I had before, or would that change with the share withdrawn.

[00:07:36] Speaker 05:
No, that's correct.

[00:07:37] Speaker 05:
Tribes are required to provide care to anyone who comes through the door.

[00:07:42] Speaker 05:
But the point is that if the Fort McDermott tribe takes the Winnemucca's funding share of direct medical services, then there is no money available for a program that the Winnemucca tribe could take over.

[00:07:57] Speaker 01:
So in other words... But until they do, I mean, it seemed to be what Interior was doing before, or the BIA was doing before,

[00:08:06] Speaker 01:
Well, as you said, it's your decision.

[00:08:07] Speaker 01:
It's not really Winamucca's because they didn't have a government, a functioning government to make a self-determination decision at the time of your final response, your response to their final offer.

[00:08:20] Speaker 01:
And so it was your decision where this money should go.

[00:08:28] Speaker 01:
And nothing on the ground changed.

[00:08:31] Speaker 01:
They were going to keep serving these same individuals

[00:08:35] Speaker 01:
And I assume till today, as of today, it would still continue to serve these same individuals, even though now the Winnemucca have a functioning government.

[00:08:42] Speaker 05:
So let me clarify.

[00:08:46] Speaker 05:
The things on the ground would not stay the same because the Winnemucca would have no opportunity to exercise its right of self-determination under the Act.

[00:08:53] Speaker 05:
And in fact, IHS could not take the money away from the Winnemucca and did not have to for the following reason.

[00:09:01] Speaker 01:
But it could not when, like, at the time of the

[00:09:04] Speaker 01:
your final response letter?

[00:09:07] Speaker 05:
Yes.

[00:09:08] Speaker 01:
I think you just said that Interior makes the decision.

[00:09:11] Speaker 01:
You just consult with the tribe.

[00:09:13] Speaker 05:
That's right.

[00:09:13] Speaker 05:
But Congress specifically said that a tribe can't take over a multi-tribe program without the other tribe's consent.

[00:09:20] Speaker 05:
And because, as it stood at the time, Winnemucca had a share here.

[00:09:24] Speaker 01:
Well, how do we know this was a multi-tribe program?

[00:09:27] Speaker 01:
I don't know how we know.

[00:09:28] Speaker 01:
Some of those, it looks like, consortiums where the tribes themselves actually get together.

[00:09:33] Speaker 01:
takeover service from IHS or BIA generally, I guess, other types of services.

[00:09:43] Speaker 01:
But here, it was being run by IHS.

[00:09:46] Speaker 01:
So how was it a multi-tribe program when it was run by IHS?

[00:09:52] Speaker 01:
Just because you allocated the funds there?

[00:09:55] Speaker 05:
It's because IHS allocates funding shares for particular programs on a per-tribe basis.

[00:10:02] Speaker 05:
And you can see how Congress acknowledges this in the statute.

[00:10:05] Speaker 05:
In Section 5324 I1, it says in particular, sometimes a contract will, quote, require the secretary to divide the administration of a program that has previously been administered for the benefit of a greater number of tribes.

[00:10:21] Speaker 05:
You see it also in the fact that in the funding provisions in Title V,

[00:10:25] Speaker 01:
But you're not dividing anything.

[00:10:27] Speaker 01:
I don't get what was divided here.

[00:10:29] Speaker 01:
They're still providing exactly, I mean, maybe they've improved it, but for our purposes, the exact same health services accessible to Winnemucca tribal members as they would have before.

[00:10:44] Speaker 01:
So it wasn't as though Interior divided anything up.

[00:10:47] Speaker 01:
I mean, if it had said, fine, you can run it, the Winnemucca will not go there anymore.

[00:10:52] Speaker 01:
It will just be

[00:10:54] Speaker 01:
your clinic that would make more sense.

[00:10:56] Speaker 01:
But what division was made here in the program?

[00:10:59] Speaker 01:
What division in the program was made as opposed to behind the scenes funding allocations?

[00:11:06] Speaker 05:
The division is the funding allocation in this case.

[00:11:10] Speaker 01:
The tribe now has only divided a program.

[00:11:13] Speaker 01:
Divide the administration of a program.

[00:11:15] Speaker 01:
That's a provision you just pointed me to.

[00:11:17] Speaker 01:
It doesn't say divide funding.

[00:11:18] Speaker 01:
You have to divide the administration of a program, which makes sense if two tribes are both taking over different parts or if a tribe was taking over one part and Interior was gonna keep operating its own part, but the program here, I don't, how is it divided?

[00:11:34] Speaker 01:
How is a program here, the clinic, we'll call the clinic the program, how is it divided?

[00:11:38] Speaker 05:
Let me explain how it works.

[00:11:40] Speaker 05:
You have a program that's supposed to benefit multiple tribes because IHS allocated funding shares for multiple tribes.

[00:11:47] Speaker 05:
One tribe comes to the door and asks to take over the program.

[00:11:50] Speaker 05:
The way in which the tribe gets to administer the program is negotiated.

[00:11:55] Speaker 05:
Maybe they want to run it in exactly the same way.

[00:11:57] Speaker 05:
But the point is they can't take everything because another tribe has a stake here.

[00:12:02] Speaker 05:
And so IHS says, here's what you could take.

[00:12:06] Speaker 05:
including the building, and it's going to use the other tribe's share in a different way.

[00:12:09] Speaker 05:
Sometimes there's more line drawing to be made.

[00:12:13] Speaker 05:
But in this case, what happened is IHS said, you know, fine, you could take the building, run it if you want to run it the same way it was being run.

[00:12:21] Speaker 05:
But the portion that the Winnemucca had here, funding, we're going to use for them once they tell us how they want to use it.

[00:12:30] Speaker 01:
Again, you pointed me to the statutory text here.

[00:12:34] Speaker 01:
And what you're talking about is we're gonna divvy up the funding now.

[00:12:39] Speaker 01:
We had been giving you two sources of funding, now you're gonna get one.

[00:12:42] Speaker 01:
I think I'm, am I correct in reading the record that while it served a lot of other tribes, none of them had funding allocated, right?

[00:12:50] Speaker 01:
It was only, right, is that right?

[00:12:52] Speaker 01:
Okay, at least as to the clinic, I don't want anybody to mess.

[00:12:56] Speaker 01:
But the statute says divide the administration of a program

[00:13:02] Speaker 01:
And it doesn't say divide the funding.

[00:13:05] Speaker 01:
That's why I'm confused.

[00:13:08] Speaker 05:
Well, let me point you to section 5388 as well as section 5325A1.

[00:13:12] Speaker 05:
5388.

[00:13:12] Speaker 05:
Okay.

[00:13:13] Speaker 05:
Sorry.

[00:13:16] Speaker 05:
Yes.

[00:13:16] Speaker 05:
So if you look at section 5388C,

[00:13:20] Speaker 05:
and multiple other places in Title V, it talks about the funding that a tribe gets as its tribal share, which is referring to this very same concept.

[00:13:32] Speaker 05:
If you look at- Sorry, you're in which, in C?

[00:13:34] Speaker 05:
5388C, that's right.

[00:13:39] Speaker 05:
That's this concept that we're talking about.

[00:13:41] Speaker 05:
When you look at 5325A1, it explicitly refers to the fact that funding might be

[00:13:50] Speaker 05:
for only a portion of the program.

[00:13:53] Speaker 05:
So Congress knew that IHS.

[00:13:56] Speaker 01:
Wait, there's nothing, I'm not seeing that in, I'm not seeing it in 53.88C.

[00:14:02] Speaker 01:
Am I missing tribal share?

[00:14:04] Speaker 01:
You said the tribal share isn't here?

[00:14:07] Speaker 01:
That just refers me to 53.25A1 and contract support clause.

[00:14:14] Speaker 05:
So 53, give me a second here.

[00:14:17] Speaker 01:
I'm sorry if I'm not seeing it.

[00:14:19] Speaker 01:
You said 5388C, right?

[00:14:20] Speaker 05:
I did.

[00:14:30] Speaker 05:
One second.

[00:14:34] Speaker 05:
I believe if you look at, sorry, it's 5385B and 5388D.

[00:14:48] Speaker 05:
So 5388D refers to the full share of a tribe.

[00:14:52] Speaker 05:
5385, you see 5385 funding agreements.

[00:14:58] Speaker 01:
Section B, one, it states the Indian- I'm sorry, we gotta get a little bit more sorry, because 50D is pretty complicated.

[00:15:06] Speaker 01:
I'm not quite sure that it's as clear as you might want, but what was the second one you said?

[00:15:10] Speaker 05:
So the point in D is that- 85B?

[00:15:11] Speaker 05:
It refers to the full share.

[00:15:14] Speaker 01:
It does use the phrase full share, but I'm not sure where that gets you.

[00:15:20] Speaker 05:
If you look at 5385B, when it's talking about funding agreements, how much the... I've got to switch to a lot of things here.

[00:15:28] Speaker 05:
Okay?

[00:15:28] Speaker 01:
Mm-hmm.

[00:15:29] Speaker 05:
Okay.

[00:15:30] Speaker 05:
It again says receive full tribal share funding.

[00:15:35] Speaker 05:
Then Congress defined tribal share as the portion that a tribe has in the program.

[00:15:42] Speaker 01:
And where's the definition?

[00:15:45] Speaker 01:
Is that 81?

[00:15:45] Speaker 01:
Is that the one you're talking about?

[00:15:47] Speaker 05:
That's right, 381-88.

[00:15:56] Speaker 01:
Right, but that's got the portions thereof.

[00:15:59] Speaker 01:
And the portions in 53-25-81, again, is talking about program, portion of the program, not portions of funding.

[00:16:06] Speaker 01:
So I just find this really confusing.

[00:16:09] Speaker 01:
Alaska is an area where you get Chevron deference.

[00:16:12] Speaker 01:
Unfortunately, that would help a lot, but you don't.

[00:16:15] Speaker 05:
So let me try to clarify something about the program.

[00:16:19] Speaker 05:
When a tribe is negotiating to take over a program, there's sort of flexibility into how the tribe is going to run it, whether it's going to run it in exactly the same way or not.

[00:16:28] Speaker 05:
So here, the tribe could say, we want to run it just like you were running it.

[00:16:33] Speaker 05:
And if we can only, like say there was no dispute here and they agreed, the Winnemucca has a share that we can't take over.

[00:16:39] Speaker 05:
They could say, we want to run it just like you were running it and just take away the funding that went to Winnemucca.

[00:16:45] Speaker 05:
And Winnemucca can do whatever it wants with it.

[00:16:50] Speaker 05:
It could do that.

[00:16:51] Speaker 05:
So IHS could give it the building.

[00:16:52] Speaker 05:
They could run it the same way, just with year one.

[00:16:55] Speaker 01:
Could IHS do that if it would imperil access to health care for another tribe that doesn't have, at least at the time, the wherewithal to take over its own health care?

[00:17:04] Speaker 01:
Or it would be quite expensive then for IHS to open up another clinic a couple of miles down the road?

[00:17:11] Speaker 05:
Well, because IHS has other options.

[00:17:13] Speaker 05:
But that's the whole point of it.

[00:17:15] Speaker 01:
I'm just trying to say, IHS could approve something in that situation like that?

[00:17:20] Speaker 01:
I would think there would be some breaks within IHS on that in a situation like that.

[00:17:25] Speaker 05:
So I take your honest question to be when IHS has a program where multiple tribes have a share.

[00:17:33] Speaker 05:
and one tribe wants to take over its share, but IHS couldn't really provide healthcare services with the remaining share for the other tribe?

[00:17:41] Speaker 05:
Is that what you're suggesting?

[00:17:43] Speaker 01:
But the tribe that is taking over, you just keep saying taking over is share.

[00:17:46] Speaker 01:
What they're taking over here is a program, the clinic, okay?

[00:17:49] Speaker 01:
And they're taking over the full clinic and they're continuing to provide services to the Winnemucca tribe exactly as they had.

[00:17:56] Speaker 01:
before.

[00:17:57] Speaker 01:
Nothing has changed in the real world.

[00:17:59] Speaker 05:
What has changed is the Winnemucca wouldn't be able to take over anything.

[00:18:04] Speaker 05:
It wouldn't be able to exercise self-determination.

[00:18:06] Speaker 01:
But they couldn't anyhow at the time of your decision.

[00:18:09] Speaker 05:
But now they can.

[00:18:10] Speaker 05:
I mean, they have a government now.

[00:18:11] Speaker 01:
OK.

[00:18:11] Speaker 01:
But at the time of your decision, you were the one making that call, not the Winnemucca tribe.

[00:18:17] Speaker 01:
And so that's why it seems odd to me that the secretary said, we'll have our cake and eat it too.

[00:18:21] Speaker 01:
We'll get the exact same clinic.

[00:18:23] Speaker 01:
will continue to ensure that the Winnemucca get just as much services at that clinic as they did before.

[00:18:28] Speaker 01:
And budgets are always tight.

[00:18:31] Speaker 01:
Now we're going to take away that $190,000 that was dedicated to two people.

[00:18:35] Speaker 05:
It's not that it was dedicated to two people.

[00:18:38] Speaker 05:
It's that it was dedicated to a tribe on the same basis that every other tribe got money.

[00:18:42] Speaker 01:
OK, but on the ground, it was taking care of two people, which

[00:18:46] Speaker 05:
But what I want to emphasize is that was due to the happenstance of the moment that Winnemucca couldn't advise as to where it would have preferred it.

[00:18:54] Speaker 05:
Going forward, what this means is every other tribe in the region has a certain amount of money based on a formula that applied equally that allows it to take over direct services under the act.

[00:19:05] Speaker 05:
Winnemucca will not.

[00:19:07] Speaker 05:
And the Fort McDermott tribe will have a greater share than everybody else.

[00:19:10] Speaker 05:
That's what's going to happen on the ground.

[00:19:14] Speaker 05:
And as to the program issue, IHS has authority to redesign.

[00:19:19] Speaker 05:
It could leave it looking just how it was and say, in order to meet the needs of the other tribe, we're just going to leave you the clinic and meet the needs of the other tribe another way, which is what it did here.

[00:19:31] Speaker 01:
How would it do that?

[00:19:36] Speaker 05:
So with the amount of money, it could either start another program, it could dedicate it to buy more third party services, which is what it has been doing, my understanding is, in the years after this.

[00:19:51] Speaker 06:
The status quo anti-pre-self-determination act.

[00:20:00] Speaker 06:
is that the Indian Health Service would be operating this entire clinic and for the benefit of mostly the Fort McDermott, but also the Winnemucca and whoever else uses it, right?

[00:20:18] Speaker 06:
And let's say it costs them a million dollars to perform all of those operations for all of those tribal members.

[00:20:28] Speaker 06:
Right.

[00:20:29] Speaker 06:
Now the Fort McDermott come in and want to take over all of those operations and 5325 tells us that they should get the amount the Secretary would have paid to operate all of those programs, which is

[00:20:51] Speaker 06:
all of the services for all of the people who use that clinic.

[00:20:57] Speaker 06:
That's what's happening.

[00:21:00] Speaker 06:
And 5325 says they're entitled to that full million dollars, right?

[00:21:08] Speaker 06:
There's no, IHS is not running part of this clinic, nor are the Winamooka running part of this clinic.

[00:21:18] Speaker 05:
Let me back up and sort of,

[00:21:22] Speaker 05:
explain further how this works.

[00:21:25] Speaker 05:
IHS says here's how much money I'm going to allocate for the Fort McDermott tribe to meet its needs.

[00:21:31] Speaker 05:
Here's how much money I'm going to allocate for the Winnemucca tribe to meet its needs.

[00:21:36] Speaker 05:
I'm gonna put that money into this program to meet both of their needs.

[00:21:41] Speaker 05:
When the Fort McDermott tribe asked to take over the program, 5325 foresees that sometimes it's gonna only be able to take over a portion of it, right?

[00:21:50] Speaker 05:
Fort McDermott tribe comes to the door and says, I wanna take over the program.

[00:21:53] Speaker 05:
I just says, well, some of that money was supposed to be going for Winnemucca and if we give you all of it without Winnemucca's consent, it would violate the statutes and Winnemucca would have no ability

[00:22:03] Speaker 05:
to then take over anything and exercise its right to self-determination.

[00:22:08] Speaker 05:
So on the ground, what plaintiffs principally point to is the fact that the allocation that IHS made for Wanamaka did not end up benefiting Wanamaka members on the ground very much, but the answer to that is not to take the Wanamaka's share away.

[00:22:26] Speaker 05:
The answer to that is to let the Winnemucca, now that they have a government, say how they would prefer this to go.

[00:22:31] Speaker 05:
I mean, this scheme is not a use it or lose it scheme and is not one where a tribe acquires other funding allocated by an agency to a different tribe through adverse possession of some kind.

[00:22:44] Speaker 05:
And Congress explicitly said in two places that a self-determination contract request does not require the agency to take money away from one tribe and give it to another.

[00:22:56] Speaker 01:
Can I ask a follow-up?

[00:22:57] Speaker 01:
You said that you've actually been using these funds now to provide more, if I've got the terminology, or direct services to the Winnemucca tribe since all this happened, or what it was called, the PRCs, or whatever you call them.

[00:23:13] Speaker 05:
The way it's worked is, sorry, IHS has ended up buying more PRC

[00:23:19] Speaker 05:
In other words, the one that IHS pays third parties to provide services.

[00:23:24] Speaker 05:
But let me just emphasize that those are different from direct services in several ways.

[00:23:29] Speaker 05:
One is that the tribe can't sort of take it over to operate it itself because it's a third party providing it.

[00:23:34] Speaker 05:
The other is that these funds are supposed to be more of a backstop in cases where a tribe like can't get

[00:23:40] Speaker 05:
services elsewhere.

[00:23:41] Speaker 05:
The tribe is usually supposed to request IHS authorization before it even gets the care.

[00:23:46] Speaker 05:
Sorry, the person who wants care is usually supposed to request the authorization from IHS.

[00:23:52] Speaker 05:
There are all sorts of requirements that must be... I guess that's different.

[00:23:55] Speaker 01:
I was... That's helpful to think about, but I was curious because you said that's what you've been doing, so you've been doing... You've increased that since

[00:24:04] Speaker 01:
I don't know what years, but since events, since the rejection letter by IHS.

[00:24:10] Speaker 01:
But there's an injunction in this case that wasn't a state, as best I can tell.

[00:24:14] Speaker 01:
So I had thought that at least as the litigation progressed, Fort McDermott was getting the funding ordered in the district court's injunction.

[00:24:25] Speaker 01:
Is that right?

[00:24:27] Speaker 05:
No, Your Honor.

[00:24:28] Speaker 05:
The tribe has been getting the funding that IHS approved as a matter of the severance.

[00:24:34] Speaker 05:
So it's gotten everything that IHS said is your portion.

[00:24:37] Speaker 01:
Wait, there's an injunction in this case from the district court, is there not?

[00:24:41] Speaker 01:
That they were to get their requested amount, right?

[00:24:46] Speaker 05:
I believe that the district court said they should, but it did not state a date certain.

[00:24:53] Speaker 05:
And there's no indication that it didn't intend for IHS to be able to appeal.

[00:24:57] Speaker 01:
I'm sorry, I'm incredibly confused.

[00:25:00] Speaker 01:
I thought the tribe comes in and makes an offer.

[00:25:03] Speaker 01:
The government can reject it.

[00:25:05] Speaker 01:
They challenge that rejection.

[00:25:06] Speaker 01:
The district court said, you win.

[00:25:08] Speaker 01:
In a final judgment, we're not here on a PI appeal, in the final judgment, you win Fort McDermott and you have an injunction for the amount that you said you needed.

[00:25:20] Speaker 01:
But the government just hasn't been giving it to them?

[00:25:25] Speaker 05:
Well, again, Your Honor, the district court didn't say turn it over immediately, didn't provide a date certain.

[00:25:30] Speaker 01:
Well, how many years has that injunction been in effect now?

[00:25:33] Speaker 01:
And you didn't ask for it.

[00:25:35] Speaker 05:
It was 2019.

[00:25:38] Speaker 05:
It was like October.

[00:25:40] Speaker 01:
So a year, an injunction, you don't have to comply with an injunction for a year?

[00:25:45] Speaker 01:
Two years?

[00:25:47] Speaker 01:
I'm very confused.

[00:25:48] Speaker 01:
I had assumed you were complying with the injunction pending litigation because you didn't ask for a stay.

[00:25:54] Speaker 05:
My understanding is that IHS gave the tribe the portions that were approved, which 5387 says it should do, and the district court didn't say do it immediately, and the Fort McDermott tribe has not

[00:26:14] Speaker 05:
I think both parties understood this to mean IHS could still seek an appeal.

[00:26:19] Speaker 05:
There was no date certain.

[00:26:21] Speaker 01:
I'm just, okay.

[00:26:24] Speaker 01:
I'm just, I'm very surprised.

[00:26:25] Speaker 01:
I thought, you know, people, of course people can appeal when there's an injunction in place, but you either, you either comply or you stay it.

[00:26:32] Speaker 01:
But apparently I hadn't realized that ignoring it was another option.

[00:26:39] Speaker 03:
Okay.

[00:26:41] Speaker 03:
Just a technical question about the rejection letter.

[00:26:45] Speaker 03:
Sure.

[00:26:45] Speaker 03:
Which I'm asking, because as I understand this statutory scheme, there's a two stage process here, right?

[00:26:51] Speaker 03:
The first question is, did the service properly raise the issue in the rejection letter?

[00:26:56] Speaker 03:
And if it did, then you get to the merits, right?

[00:26:59] Speaker 03:
So my question about the rejection letter is, what in that letter says that the clinic had been funded with money allocated to the Winnemucca?

[00:27:10] Speaker 03:
and that the Winnemucke had a portion of the clinic.

[00:27:14] Speaker 03:
And the reason I ask it, because if it isn't there, and I'd like you to point me to the precise language, because if it isn't there, then if it isn't there, then I don't understand how the rejection letter provides what the statute calls specific findings.

[00:27:32] Speaker 05:
Your Honor, if you look on page 123 of the Joint Appendix,

[00:27:38] Speaker 03:
Are you looking at the rejection letter?

[00:27:40] Speaker 05:
Right, which is the rejection letter.

[00:27:42] Speaker 03:
What does it say?

[00:27:46] Speaker 05:
IHS says, IHS has determined that the tribes share possible and clinic funds is a certain amount minus retained services, comma, as reflected in the exhibit.

[00:28:00] Speaker 05:
Should Winnemucca authorize the tribe to carry out the services on Winnemucca's behalf, an additional $190,000

[00:28:08] Speaker 05:
would be made available.

[00:28:10] Speaker 05:
To date, the Winnemucca has not authorized the tribe to carry out services on its behalf.

[00:28:15] Speaker 05:
The IHS therefore rejects the tribe's proposal.

[00:28:20] Speaker 05:
IHS is clear, and you also have multiple instances in the record, such as, you know, JA 40 to 41, and then the closure report that was attached to the rejection letter stating that Winnemucca tribe has a share.

[00:28:36] Speaker 05:
IHS is clear, Winnemucca has a share, Fort McDermott can only take its share.

[00:28:42] Speaker 05:
That provides what the statute requires, which is, you know, a reason with the controlling legal authority, which it cites here, 5381.

[00:28:49] Speaker 03:
Okay, Judge Millett, Judge Kansas, do you have any further questions?

[00:28:55] Speaker 01:
I had one more.

[00:28:55] Speaker 01:
I just wanted to make sure you were done with your question, Judge Tatel.

[00:28:58] Speaker 01:
Yeah.

[00:28:58] Speaker 01:
I wanted to go back.

[00:28:59] Speaker 01:
You said they couldn't get these funds without the consent of the Winnemucca tribe.

[00:29:06] Speaker 01:
And at the time, my understanding is, because there's no functioning government, IHS or someone in Interior was making those decisions for the tribe.

[00:29:16] Speaker 01:
Is that how it works when you have a tribe with no functioning government?

[00:29:19] Speaker 05:
When you have a tribe with no functioning government, the tribe can't consent to another tribe taking over.

[00:29:24] Speaker 01:
Can Interior make that decision for it?

[00:29:27] Speaker 05:
No.

[00:29:28] Speaker 05:
So it's not the case.

[00:29:31] Speaker 05:
Let me just reiterate.

[00:29:33] Speaker 05:
IHS always makes allocation decisions.

[00:29:35] Speaker 05:
It just consults with tribes.

[00:29:36] Speaker 05:
But when it's the case that one tribe wants to take over another's share, Congress requires a resolution by the other tribe.

[00:29:44] Speaker 05:
IHS can't substitute for that resolution.

[00:29:47] Speaker 01:
And Congress requires that resolution.

[00:29:49] Speaker 01:
That's one of the ones you pointed me to?

[00:29:51] Speaker 05:
Yes.

[00:29:52] Speaker 05:
So in 5381, C1B, which are the eligibility, one of the eligibility provisions under Title V. I'll repeat that more slowly, sorry.

[00:30:00] Speaker 05:
5381.

[00:30:02] Speaker 01:
5381.

[00:30:03] Speaker 05:
C1B.

[00:30:06] Speaker 05:
And then 5301.

[00:30:08] Speaker 01:
I apologize.

[00:30:09] Speaker 01:
I don't have a C in 5381.

[00:30:10] Speaker 01:
Got an A and a B. There's a definition of tribal share, but none.

[00:30:21] Speaker 01:
where it says there has to be a resolution from the tribe.

[00:30:23] Speaker 01:
And so if there's no functioning government.

[00:30:26] Speaker 05:
Oh, sorry, 5383C.

[00:30:27] Speaker 05:
5383, OK.

[00:30:28] Speaker 01:
Sorry.

[00:30:29] Speaker 01:
There's a lot here.

[00:30:31] Speaker 01:
I know.

[00:30:32] Speaker 01:
C1.

[00:30:36] Speaker 05:
B states that it needs resolution of the governing body of each Indian tribe to be served.

[00:30:44] Speaker 01:
Wait, hang on a second.

[00:30:46] Speaker 01:
OK, so this is defined in the qualified applicant pool for those to seek self-governance.

[00:30:51] Speaker 01:
And then it's, what does tribe to be served means?

[00:30:55] Speaker 01:
That doesn't mean that has a tribal share because there are a lot of tribes, I'm sorry, is it 25 or 50 tribes that receive services at this clinic?

[00:31:04] Speaker 01:
How do I know what to be served mean?

[00:31:06] Speaker 01:
It doesn't mean, it can't mean that.

[00:31:10] Speaker 05:
It can't mean anyone who comes to the door because obviously you don't know who's gonna come through the door.

[00:31:13] Speaker 05:
What it is referring to is exactly what we've been talking about, which is- How do I know that's what to be served means?

[00:31:20] Speaker 05:
Well, for example, if you look at 53, let me just double check that it does say this, unless I'm thinking of a different one.

[00:31:30] Speaker 01:
It's just really confusing, the statute.

[00:31:32] Speaker 01:
I know.

[00:31:32] Speaker 01:
If there were like a nice direct provision that would say what you're saying, then the language just keeps changing.

[00:31:39] Speaker 01:
how the definition of applicant pool and there's no doubt that Fort McDermott meets the qualifications to have sought not a self governance compact.

[00:31:48] Speaker 05:
So there it uses the phrase to be served in 5304 it uses the phrase services benefiting more than one Indian tribe.

[00:31:57] Speaker 05:
That's 5304L.

[00:31:58] Speaker 05:
So Congress didn't use the same phrases, but it means the same thing.

[00:32:02] Speaker 05:
It's not saying that every single potential Indian tribe that might be served at the clinic must survive.

[00:32:08] Speaker 01:
I had read this as thinking that Fort McDermott has to have a formal resolution to seek self-governance, the tribe.

[00:32:18] Speaker 05:
That's not true.

[00:32:20] Speaker 01:
But it can't be to be served either.

[00:32:21] Speaker 01:
There's so many being served in this situation.

[00:32:25] Speaker 05:
Right, that's why that's referring to other tribes with a stake in the program.

[00:32:29] Speaker 05:
How do I know that?

[00:32:31] Speaker 01:
Because that's- Well, for the reason that you're suggesting, which is it can't mean anybody who might possibly- Well, it can't mean in this case, but I think this case is unusual.

[00:32:39] Speaker 01:
Usually, you don't have 50 tribes using another tribe.

[00:32:43] Speaker 05:
That isn't unusual.

[00:32:44] Speaker 01:
In every case- Oh, something in the record section is unusual in this case.

[00:32:48] Speaker 01:
OK, I misunderstood.

[00:32:51] Speaker ?:
OK.

[00:32:51] Speaker 05:
IHS always requires the tribes provide healthcare to anyone.

[00:32:55] Speaker 06:
Is there a legal requirement that any clinic, even if the clinic is dedicated to the local tribe, a member of any tribe can go in and get services?

[00:33:15] Speaker 05:
There might be.

[00:33:17] Speaker 05:
I know that IHS requires it, but I don't know off the top of my head whether that's in the statute.

[00:33:22] Speaker 06:
It requires it in the funding contracts.

[00:33:25] Speaker 05:
Right.

[00:33:25] Speaker 01:
OK.

[00:33:26] Speaker 01:
Did Fort McDermott request participation in a self-governance compact by resolution and set at the chest and part of Interior?

[00:33:39] Speaker 05:
I'm sorry.

[00:33:40] Speaker 01:
Did they, to get the ball rolling here on this whole process to take over the clinic, they must have

[00:33:47] Speaker 01:
had to request becoming participation in self-governance compact by resolution or other official actioning of their governing body?

[00:33:59] Speaker 05:
I don't know whether the actual tribe that's requesting to take over does a resolution as well.

[00:34:04] Speaker 05:
Really?

[00:34:05] Speaker 01:
Really?

[00:34:05] Speaker 01:
Interior's not going to re-

[00:34:08] Speaker 01:
tribal government?

[00:34:09] Speaker 01:
Of course they are.

[00:34:09] Speaker 05:
What I'm trying to say is I don't know whether that's, you know, formally, it most likely is.

[00:34:17] Speaker 01:
I think that's what C1B says they have to do.

[00:34:20] Speaker 01:
This is talking about the tribe, the ones that are in the applicant pool.

[00:34:23] Speaker 01:
This is the one that's applying.

[00:34:24] Speaker 01:
This refers to the one that's applying.

[00:34:27] Speaker 01:
And you're going to make sure that the tribe has official resolution.

[00:34:30] Speaker 01:
You have to have official resolution.

[00:34:32] Speaker 05:
You're probably right on that point.

[00:34:34] Speaker 05:
You're probably right on that point.

[00:34:36] Speaker 01:
C1B doesn't help you at all.

[00:34:38] Speaker 05:
No, it definitely does.

[00:34:39] Speaker 01:
No, I think that means that's the part the tribe is taking over this participating in the self governance.

[00:34:44] Speaker 05:
Well, so look at the 5304 L and the proviso that was added there.

[00:34:49] Speaker 01:
Let me try again.

[00:34:50] Speaker 01:
Slow down again.

[00:34:50] Speaker 05:
Okay.

[00:34:51] Speaker 05:
Okay.

[00:34:52] Speaker 05:
If you look at the proviso at the end.

[00:34:58] Speaker 05:
It says, provided that in any case where a contract is later grant made to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite.

[00:35:10] Speaker 01:
So there, it's- But that's not giving them their, that's not an approval to give over the share.

[00:35:14] Speaker 01:
That's just approval to have someone contract to provide their services.

[00:35:19] Speaker 05:
That's right.

[00:35:20] Speaker 05:
And now, if you put that together with the severance provisions, that means Fort McDermott can't take over the program in its entirety because it's benefiting.

[00:35:27] Speaker 01:
But Winnemucca didn't.

[00:35:29] Speaker 01:
Did anyone ask Winnemucca if it's OK?

[00:35:31] Speaker 01:
Not to get their tribal share, just do they mind getting services from?

[00:35:35] Speaker 01:
That's a different question.

[00:35:36] Speaker 01:
Are you OK if the services are provided by Fort McDermott rather than Winnemucca?

[00:35:40] Speaker 01:
That's how I read this.

[00:35:42] Speaker 05:
Well, so that's, you're right.

[00:35:45] Speaker 05:
But you have to combine the provisions.

[00:35:47] Speaker 05:
So here's how it works.

[00:35:49] Speaker 05:
Fort McDermott needs the consent of the Winnemucca to take it over under 5304L.

[00:35:55] Speaker 05:
That was a provisor Congress added after testimony about the fact that it would create lots of problems if tribes could take over programs that other tribes benefit from.

[00:36:03] Speaker 01:
This is, again, services.

[00:36:05] Speaker 01:
This gets me back to my same question.

[00:36:06] Speaker 01:
What does it mean to be services benefiting more than one Indian tribe?

[00:36:10] Speaker 01:
So not just Fort McDermott like we were talking about under the applicant pool.

[00:36:17] Speaker 01:
So to perform services benefiting more than one Indian tribe, that means, how do you know benefiting them means taking your share as opposed to providing medical services to you?

[00:36:32] Speaker 05:
So you have to read this in the context of IHS allocating funds to Indian tribes for decades.

[00:36:43] Speaker 05:
What it means is when a program is supposed to be serving more than one tribe, then a tribe can't take it over without, in its entirety, without the consent of the other.

[00:36:55] Speaker 05:
But then the severance provisions say that when a tribe takes over something it can't completely take over, IHS has to approve the portion that it can take over.

[00:37:06] Speaker 05:
That's what I just did here.

[00:37:08] Speaker 05:
You're requesting to take over a clinic that also serves Winnemucca.

[00:37:13] Speaker 05:
Winnemucca has not consented.

[00:37:14] Speaker 01:
Here's the portion you can take.

[00:37:16] Speaker 01:
It's just the verbs that are confusing me.

[00:37:18] Speaker 01:
It serves dozens of tribes.

[00:37:21] Speaker 01:
It serves anyone who walks in the door, or I guess anyone who's a tribal member.

[00:37:25] Speaker 05:
Right, so this language is not referring to, you have to get the authorization of any tribe that might walk through the door, because that's impossible.

[00:37:32] Speaker 05:
What it's saying, it's referring to IHS's practice of allocating to the tribes.

[00:37:37] Speaker 01:
OK, thank you.

[00:37:38] Speaker 05:
Thanks.

[00:37:39] Speaker 01:
Very confusing, but thank you.

[00:37:40] Speaker 03:
Thank you for working me through it.

[00:37:42] Speaker 03:
Thank you.

[00:37:43] Speaker 03:
We'll hear from the plaintiffs here, from the tribe.

[00:37:48] Speaker 03:
Mr. and Ms.

[00:37:51] Speaker 03:
Patterson.

[00:37:55] Speaker 02:
Thank you.

[00:37:55] Speaker 02:
And may it please the court.

[00:37:56] Speaker 02:
I'm Rebecca Patterson for the Fort McDermott Paiute and Shoshone tribe.

[00:38:01] Speaker 02:
With all due respect, what government council just told you is filled with legal and factual inaccuracies.

[00:38:07] Speaker 02:
So I'm going to do my best to try to clear things up.

[00:38:11] Speaker 02:
First of all, there's been no long standing formula or no decades of IHS providing services to the Winnemawka tribe through the Fort McDermott clinic.

[00:38:22] Speaker 02:
What there has been decades of is IHS serving the Winnemucca tribe through a purchased and referred care program, which means that IHS pays for Winnemucca tribal members to receive services at private non-tribal providers, and they pay for that care.

[00:38:40] Speaker 02:
And this makes sense, and you need to understand a little bit about the geography of the region.

[00:38:45] Speaker 02:
Winnemucca is a city that is 20 times bigger than McDermott.

[00:38:49] Speaker 02:
It has a hospital that serves the entire region,

[00:38:51] Speaker 02:
It has several private healthcare providers.

[00:38:55] Speaker 02:
McDermott has a teeny tiny reservation that if you blink, you will miss it.

[00:38:59] Speaker 02:
I actually did.

[00:39:00] Speaker 02:
I was in Oregon when I first went out there.

[00:39:01] Speaker 02:
I had to turn back around.

[00:39:03] Speaker 02:
And so, and it's an hour and a half from Winnemucca in the wrong direction, as in not towards Reno, the big, big city, but in the wrong direction on a road that is barely impassable in inclement weather.

[00:39:16] Speaker 02:
So

[00:39:18] Speaker 02:
It did not make sense for IHS to serve Winnemucca tribes through this small clinic an hour and a half in the wrong direction.

[00:39:25] Speaker 02:
It made sense for them, for the few people that needed services, to just pay for them to see private health care providers.

[00:39:31] Speaker 02:
What you have here is the SURE service unit that serves 13 tribes.

[00:39:35] Speaker 02:
IHS, in its discretion, decided how it was going to serve those tribes.

[00:39:39] Speaker 02:
Some tribes have clinics.

[00:39:42] Speaker 02:
McDermott, they actually call it a health station because it's fairly small.

[00:39:45] Speaker 02:
But the Walker River tribe has a clinic, the Pyramid Lake tribe has a clinic, the Reno Sparks tribe has a clinic.

[00:39:51] Speaker 02:
Some of these tribes have always just been served primarily by a purchase and referred care health program, such as the Winnemucca tribe.

[00:40:01] Speaker 02:
When a tribe comes into compact or contract, they get the funds for however IHS had determined to serve them.

[00:40:09] Speaker 02:
So when the McDermott tribe comes into contract, they get all the resources that was going towards the clinic that's serving them.

[00:40:16] Speaker 02:
The Winnemucca tribe can still exercise their self-determination rights when they come in, if they come in, if they choose to contract,

[00:40:25] Speaker 02:
They would get the resources for the purchased and referred care program that IHS has always run for their benefit.

[00:40:32] Speaker 02:
Now those resources are not in any of these tables on the record.

[00:40:36] Speaker 02:
Why?

[00:40:36] Speaker 02:
Because when Fort McDermott was contracting, we only requested resources that were relevant to the Fort McDermott program.

[00:40:43] Speaker 02:
We weren't asking about the money for Winnemucca and government council even said that those funds are dealt with separately.

[00:40:51] Speaker 02:
There's a whole nother budget.

[00:40:52] Speaker 02:
There's a whole nother bucket of funding at the service unit that funds that purchase and referred care program.

[00:40:58] Speaker 02:
What happened here is that when the tribe came into contract, all of a sudden IHS said, well, yeah, they've admitted.

[00:41:06] Speaker 02:
We've been using those funds at the McDermott Clinic for the benefit of the group.

[00:41:10] Speaker 03:
Wait, you just broke up.

[00:41:11] Speaker 03:
Could you just repeat that sentence once more?

[00:41:14] Speaker 03:
Sure.

[00:41:14] Speaker 03:
You just broke up.

[00:41:16] Speaker 03:
You said when the tribe came under contract.

[00:41:18] Speaker 03:
What was the rest of your sentence?

[00:41:19] Speaker 02:
When the tribe came into contract here, IHS admitted that all these funds were being used at the Fort McDermott Clinic.

[00:41:27] Speaker 02:
But then they said, we need to cut some of those funds off the top to allocate to Winnemucca.

[00:41:34] Speaker 02:
It doesn't matter.

[00:41:34] Speaker 02:
It's divorced from what they were actually doing.

[00:41:37] Speaker 02:
It's entirely a budgeting exercise.

[00:41:40] Speaker 01:
And that is contrary to the statute, which is very- As a budgeting exercise, do you dispute that those are funds that are budgeted for the Winnemucca tribe?

[00:41:51] Speaker 01:
$190,000 was budgeted for the Winnemucca tribe's health care?

[00:41:57] Speaker 01:
in some form or another?

[00:41:58] Speaker 02:
I don't even think that's clear from the record.

[00:42:02] Speaker 01:
First of all, before 2013, this Tribal- Well, we have charts that say Winnemucca Tribes share $190,000, so I don't know what else that would mean other than those were funds that were budgeted.

[00:42:16] Speaker 01:
Maybe it was a bad allocation decision.

[00:42:18] Speaker 01:
I don't know why they have an extra $190,000 that they can

[00:42:22] Speaker 01:
put in here for, even though they know, I guess they're doing the head count, but they know nobody's gonna come down and use it, why they don't reallocate it, but that's in their wheelhouse.

[00:42:30] Speaker 01:
But I don't think there's, I didn't think there was any factual dispute that this 191,000 had been budgeted for healthcare for the Winnemucca tribal members.

[00:42:43] Speaker 01:
They just hadn't been using it.

[00:42:45] Speaker 02:
Right, well, the reason I say there's a factual dispute is because the 190,000 have been different numbers, but I will, I agree.

[00:42:53] Speaker 01:
There's some number in that, there's some number.

[00:42:56] Speaker 02:
There is some number.

[00:42:57] Speaker 01:
The dollars that you want that have been budgeted to win among the tribes' healthcare.

[00:43:02] Speaker 02:
Correct, and our position is it doesn't matter how much they budgeted.

[00:43:05] Speaker 02:
It could be 190,000, it could be 500,000, it could be 300,000, because the budget doesn't matter.

[00:43:10] Speaker 02:
What matters are their actual expenditures.

[00:43:13] Speaker 02:
That's clear from the statute.

[00:43:15] Speaker 02:
That's clear from Congress who when they were amending the act and they've come back to amend this act three times.

[00:43:20] Speaker 01:
I don't think anything is clear in the statute.

[00:43:22] Speaker 01:
I'm sorry.

[00:43:23] Speaker 01:
It doesn't make clear at all.

[00:43:26] Speaker 02:
So Congress said one of the reasons they needed to amend the statute is because it was, quote unquote, hard to correlate projected budgets with actual expenditures.

[00:43:37] Speaker 02:
And courts that have looked at this issue have looked at 5325.

[00:43:39] Speaker 02:
Where did Congress say that?

[00:43:42] Speaker 02:
They said that in the 1987 Senate report.

[00:43:45] Speaker 02:
I think it's Senate report 100-574.

[00:43:47] Speaker 02:
I assume that's in your brief, right?

[00:43:51] Speaker 01:
I know you were talking about the reasons they did these amendments.

[00:43:55] Speaker 02:
Yes.

[00:43:56] Speaker 02:
And I can find you the exact page site in a second.

[00:44:01] Speaker 02:
That's okay.

[00:44:01] Speaker 02:
Listen, don't waste your time.

[00:44:04] Speaker 01:
So there's nothing in the statute that says that is our problem.

[00:44:10] Speaker 02:
Well, the statute says you get what the secretary was no less, excuse me, the statute says you get no less than what the secretary was otherwise providing.

[00:44:19] Speaker 02:
And every court that has looked at that has said that what that means is their actual expenditures.

[00:44:24] Speaker 02:
What were they spending at that clinic?

[00:44:26] Speaker 02:
You see that both in this circuits cases in the Navajo Nation.

[00:44:30] Speaker 01:
They also says what were portions thereof.

[00:44:31] Speaker 01:
What does that mean?

[00:44:33] Speaker 02:
That's because a tribe doesn't need to contract for every program.

[00:44:37] Speaker 02:
So in this instance, for example, Fort McDermott could have come in and said, we want to take over only diabetes.

[00:44:43] Speaker 02:
And we want UI just to keep running dental and medical and substance abuse programs.

[00:44:49] Speaker 02:
And so they can take over just that portion.

[00:44:51] Speaker 01:
The portions of the program, not portions of the funding.

[00:44:55] Speaker 01:
Right.

[00:44:56] Speaker 01:
Portions of the program.

[00:44:57] Speaker 03:
It refers to the program's funding.

[00:45:00] Speaker 03:
Isn't the answer to this question in the stipulation

[00:45:03] Speaker 03:
The stipulation between the parties says that the $600,000 is what was spent with the actual 2015 expenditures.

[00:45:22] Speaker 03:
Is that what that number is?

[00:45:24] Speaker 02:
Correct.

[00:45:24] Speaker 02:
That's where the tribe based its proposal off of, and that's at Joint Appendix 231, just for anyone else who's following along.

[00:45:31] Speaker 03:
Right, but just the stipulation between the parties, correct?

[00:45:33] Speaker 02:
Correct.

[00:45:35] Speaker 03:
And so HHS agrees that during the year that determines the amount of money that the tribe will get under its contract is $600,000, right?

[00:45:49] Speaker 01:
Sorry, I'm sorry.

[00:45:52] Speaker 01:
I thought it was 555.

[00:45:53] Speaker 01:
I'm a little confused.

[00:45:57] Speaker 01:
I don't see 600,000 on page 231.

[00:46:01] Speaker 01:
I see a projected expenditure of 603.

[00:46:07] Speaker 01:
Is that the number we're talking about?

[00:46:10] Speaker 02:
Right.

[00:46:10] Speaker 02:
So just to clarify, the projected expenditure for 2016 was 603-842, which is based on the actual FY 2015 expenditures, because at the time of negotiation,

[00:46:23] Speaker 02:
15.

[00:46:23] Speaker 02:
Okay.

[00:46:25] Speaker 03:
Okay.

[00:46:26] Speaker 03:
What I just actually worded is they read with us.

[00:46:31] Speaker 03:
This is their stipulation.

[00:46:34] Speaker ?:
Right.

[00:46:35] Speaker 01:
Okay.

[00:46:35] Speaker 01:
Do we have an actual number for 2016

[00:46:38] Speaker 01:
There's so many charts here.

[00:46:40] Speaker 01:
I'm sorry.

[00:46:41] Speaker 02:
Well, that's part of the problem.

[00:46:43] Speaker 02:
The record here is a bit of a mess.

[00:46:46] Speaker 02:
But you do have in 2018, the agency put together a whole new table of what they actually spent in 2016.

[00:46:55] Speaker 02:
That is a joint appendix, I believe, 221.

[00:46:59] Speaker 02:
And give me a second.

[00:46:59] Speaker 02:
I can double check that page.

[00:47:04] Speaker 02:
Excuse me, Joint Appendix 238.

[00:47:06] Speaker 02:
And that table shows that in 2016, they were spending nearly a million dollars at the clinic.

[00:47:12] Speaker 02:
They also paid the full funding amount, the $502,000, to Pyramid Lake as a result of the pyramid.

[00:47:20] Speaker 03:
And that's not an issue in this case, right?

[00:47:23] Speaker 03:
We're only talking about the $600,000 in this case, correct?

[00:47:27] Speaker 02:
Well, it's all somewhat an issue because the agency combined the two and said for both programs, you get 555.

[00:47:33] Speaker 02:
So if you put aside the EMS program, all they awarded the tribe was $53,000 to run the clinic, even though- Sorry, I'm confusing.

[00:47:46] Speaker 01:
On 238, there's an awful lot of numbers and I don't see which paragraph are you talking about on 238?

[00:47:52] Speaker 01:
Did you say JA238?

[00:47:53] Speaker 01:
Did I mishear you?

[00:47:56] Speaker 02:
Excuse me.

[00:47:56] Speaker 02:
It's Joint Appendix 239 is the table.

[00:47:59] Speaker 02:
Okay.

[00:47:59] Speaker 01:
All righty.

[00:48:00] Speaker 01:
Good.

[00:48:01] Speaker 01:
Sure.

[00:48:01] Speaker 01:
Okay.

[00:48:02] Speaker 01:
And this is what they actually spent in 2016?

[00:48:07] Speaker 01:
Correct.

[00:48:09] Speaker 02:
According to the agency, this was put together after the fact.

[00:48:18] Speaker 01:
Where's your number?

[00:48:20] Speaker 01:
Which number?

[00:48:22] Speaker 02:
The number I was pointing to is in that bottom right corner.

[00:48:25] Speaker 02:
It's 982,663.14.

[00:48:26] Speaker 01:
This is personnel compensation, travel, transportation, rent, communications, utilities, contractual services, supplies and material, equipment.

[00:48:44] Speaker 01:
That can't be the clinic.

[00:48:45] Speaker 01:
There has to be medical care.

[00:48:46] Speaker 01:
There's no medical care on this list.

[00:48:49] Speaker 01:
There's no salaries on this list.

[00:48:51] Speaker 01:
I don't understand what this list is.

[00:48:53] Speaker 01:
I guess personal compensation is at all the salaries.

[00:48:56] Speaker 01:
Correct.

[00:48:58] Speaker 02:
And if you look at the grand total, that's what they were spending at the clinic.

[00:49:02] Speaker 02:
They were also spending the $502,000 on the EMS program.

[00:49:05] Speaker 02:
So their own data suggests they were actually spending $1.5 million that year.

[00:49:10] Speaker 02:
We are only asking for $1.1 million here.

[00:49:17] Speaker 02:
But I will also add that this is part of the problem, because the statute is very clear on the agency's burden here.

[00:49:24] Speaker 02:
The agency has a burden to clearly demonstrate their specific findings for declining the letter, not with tables that they added two years after the fact, but within the 45-day statutory window.

[00:49:37] Speaker 02:
The government had a burden here, and they simply did not meet it.

[00:49:41] Speaker 01:
So can I just, again, I'm just

[00:49:44] Speaker 01:
kind of so confusing because you have that chart and then you have on 236 you have for FY 2017 you have 686,000 and then there's another FY 2017 for hospitals and clinics which I thought is the category at issue here and then you have on 234 another one that says FY 2017 hospitals and clinics 555,000 so it just feels like there's numbers all over the place

[00:50:12] Speaker 01:
And so I don't know whether it's 900 or 600 or 500.

[00:50:15] Speaker 02:
And that was the agency's burden to explain that.

[00:50:21] Speaker 02:
And they clearly did not do that here.

[00:50:25] Speaker 01:
What was also your burden to say how much you're, don't you have to show that you're asking for, your argument here is you were asking for what they were spending.

[00:50:33] Speaker 02:
Right.

[00:50:34] Speaker 02:
And as it's estimated.

[00:50:36] Speaker 01:
Which of these numbers is what you were asking for that they were spending?

[00:50:40] Speaker 01:
I thought it was more like the 600,000, then you add up the 500,000 from EMS, and that's how you got to your 1.1 number or something like that.

[00:50:47] Speaker 01:
Exactly.

[00:50:48] Speaker 01:
So you're not asking for this 980 something that you just talked to us about.

[00:50:53] Speaker 02:
No, the tribe was basing off of the data they were provided at the time.

[00:50:57] Speaker 02:
All of these charts were provided after.

[00:51:00] Speaker 02:
So at the data provided at the time, the last full year of data we had was for FY15.

[00:51:05] Speaker 02:
The chart produced by the agency, which is Appendix 110, said, we're projecting expenditures of 603 because that's what we spent for FY15.

[00:51:15] Speaker 02:
So we said, OK, that's our last year expenditures.

[00:51:18] Speaker 02:
We'll add the 603.

[00:51:19] Speaker 02:
And then we added the EMS amount.

[00:51:20] Speaker 02:
That's how you got to the 1.1.

[00:51:22] Speaker 02:
And that was agreed to by stipulation, again, in that joint appendix, page 231, paragraph 12.

[00:51:30] Speaker 01:
Is it right, by the way, that they haven't been given you the money from the injunction?

[00:51:37] Speaker 02:
That's correct.

[00:51:37] Speaker 02:
They actually haven't even added the employee housing services provision in the first summary judgment below that the agency is no longer appealing.

[00:51:45] Speaker 01:
Did they issue an amended funding agreement by December 1, 2016?

[00:51:50] Speaker 01:
The order specifically orders that.

[00:51:52] Speaker 01:
They have not done so.

[00:51:55] Speaker 01:
You haven't gone back to the district court and said.

[00:51:59] Speaker 01:
OK, well, that's your choice, I guess.

[00:52:03] Speaker 03:
OK.

[00:52:05] Speaker 03:
I want to follow up what you said about the rejection letter.

[00:52:10] Speaker 03:
You said they didn't make their case in the rejection letter.

[00:52:12] Speaker 03:
I asked Mr. De Santos that question specifically, and he referred to a couple of sentences

[00:52:19] Speaker 03:
in the letter, what did you, what's your response to his response to my question?

[00:52:25] Speaker 02:
Those couple sentences in the letter, again, were on Joint Appendix 123, just says it just reflects shares allocable to Winamucca.

[00:52:33] Speaker 02:
But it doesn't, that's again, that's the same budgeting argument, the same argument they raised in Pyramid Lake, the same argument.

[00:52:40] Speaker 03:
Say again, what does it, what does it show that it should under the statute?

[00:52:47] Speaker 02:
It should show.

[00:52:48] Speaker 03:
You say it's the amount they budgeted.

[00:52:49] Speaker 03:
What should it show for them to have properly raised this issue in the rejection letter?

[00:52:56] Speaker 02:
It should show that they're actually expending these funds for services for the benefit of the Winnemucca tribe.

[00:53:02] Speaker 03:
And the record doesn't mean.

[00:53:04] Speaker 03:
In the last year, in the last year.

[00:53:07] Speaker 02:
in the last year, even in the last three years.

[00:53:10] Speaker 03:
And so the language, I don't have the language, the language he cited is just budgeting.

[00:53:15] Speaker 03:
It's not actual expenditures.

[00:53:17] Speaker 03:
Is that your point?

[00:53:19] Speaker 01:
Yes.

[00:53:20] Speaker 01:
They also make their argument about you're taking shares allocable to Winnemucca in that same paragraph.

[00:53:27] Speaker 01:
That's their whole argument.

[00:53:28] Speaker 01:
And you exceed the tribes applicable share of IHS programs.

[00:53:31] Speaker 01:
The table shows you are taking shares belonging to other tribes.

[00:53:36] Speaker 01:
Your number, it also reflects shares allocable to Winamucca.

[00:53:39] Speaker 01:
So I don't understand your argument that they didn't raise this point.

[00:53:47] Speaker 02:
I'm not contesting that they didn't make their budgeting point.

[00:53:50] Speaker 02:
We just think that point.

[00:53:50] Speaker 01:
Well, they're also making their shares.

[00:53:52] Speaker 01:
You're taking tribal shares.

[00:53:53] Speaker 01:
They make that argument, too, and the statute for bid.

[00:53:57] Speaker 02:
Right, but that's not at all supported by the record that Winnemucca has any shares in the McDermott Clinic.

[00:54:04] Speaker 02:
And that's what they don't explain.

[00:54:06] Speaker 02:
How does a clinic that is not serving Winnemucca, when you have a tribe that is served by an entirely separate purchased and referred care program, how does that mean that you then are also serving them through this clinic, which you're still not doing?

[00:54:19] Speaker 02:
in the divisibility provisions that Mr. Dos Santos was citing to, what you actually see is IHS actually providing services in that facility and continuing to do so.

[00:54:31] Speaker 02:
So for example, in another service unit of the IHS that served three tribes, two tribes wanted to contract and one did not.

[00:54:39] Speaker 02:
So IHS literally had to redesign and those two tribes contract in two floors of their building and the third floor, IHS is still there providing services to the third tribe.

[00:54:48] Speaker 02:
That's what it looks like when you have a program benefiting multiple tribes.

[00:54:52] Speaker 02:
In this case, if this really was benefiting Winnemucca, when the tribe came into contract.

[00:55:00] Speaker 01:
Was summary judgment inappropriate here because the facts are just a wreck.

[00:55:04] Speaker 01:
We don't know amounts.

[00:55:06] Speaker 01:
You're disputing whether there actually were or were not allocable shares.

[00:55:11] Speaker 02:
Summary judgment was appropriate because the agency has a burden to me and they did not need it.

[00:55:15] Speaker 02:
The parties do not disagree on

[00:55:19] Speaker 02:
You know, we had a spreadsheet that said this number, or a spreadsheet that said that number, or what.

[00:55:24] Speaker 02:
The parties actually stipulated to facts of what was in front of the court.

[00:55:28] Speaker 02:
But the agency has to make specific findings.

[00:55:31] Speaker 02:
And the reason that the court is struggling is because the record is a mess.

[00:55:35] Speaker 02:
They did not make specific findings here.

[00:55:37] Speaker 02:
They did not clearly demonstrate why they're chosen ground for rejection.

[00:55:43] Speaker 02:
And it has to be one of the forces.

[00:55:44] Speaker 01:
What were they supposed to say when they say, this reflects shares allocable to Winamucca,

[00:55:48] Speaker 01:
The tribes share, they have the 190,190,197.

[00:55:54] Speaker 01:
What more are they supposed to do?

[00:55:57] Speaker 02:
They're supposed to explain that the McDermott Clinic is providing services for the benefit of Winnemucca tribes.

[00:56:05] Speaker 02:
and not just a funding share, not just a budget, but what services are they providing there for the Winnemucca tribe, that the McDermott tribe cannot.

[00:56:13] Speaker 01:
But you don't dispute that Winnemucca tribal members were getting services here.

[00:56:16] Speaker 01:
Not many, but that they were.

[00:56:17] Speaker 01:
I didn't think you disputed that.

[00:56:20] Speaker 02:
We do not dispute that two Winnemucca tribal members received services, but that- All right, so you know what services they're getting.

[00:56:25] Speaker 02:
only pursuant to the open door policy.

[00:56:28] Speaker 02:
So that doesn't convert this.

[00:56:31] Speaker 02:
I think even Mr. Dos Santos agrees that just because a tribal member from a neighboring tribe walks in the door, that doesn't mean that the- Right, but then it seems like it's not that they didn't say it here.

[00:56:41] Speaker 01:
They did say it here, and you're just disputing.

[00:56:43] Speaker 01:
You say it's just false.

[00:56:46] Speaker 01:
You never allocated shares for Winnemucca.

[00:56:49] Speaker 01:
That seems to be your argument.

[00:56:50] Speaker 01:
It's not that they didn't explain themselves.

[00:56:54] Speaker 01:
We have allocated shares in the amount of 190,000 global dollars for one Monica tribe.

[00:57:00] Speaker 01:
You're not allowed under the statute to take that.

[00:57:02] Speaker 01:
They've said that.

[00:57:03] Speaker 01:
And so you're seeking more than you're allowed.

[00:57:06] Speaker 01:
They said that.

[00:57:06] Speaker 01:
And you just say, it's just not true.

[00:57:10] Speaker 02:
Correct.

[00:57:10] Speaker 01:
That is our position.

[00:57:11] Speaker 01:
Sounds like a fact.

[00:57:12] Speaker 01:
OK, well, that's not the problem of their letter being insufficient.

[00:57:16] Speaker 01:
That's not like a factual dispute.

[00:57:19] Speaker 01:
Well, they have to- How are we supposed to resolve that?

[00:57:24] Speaker 02:
You're not resolving the factual dispute.

[00:57:26] Speaker 02:
What you're actually reviewing is did the agency, did the IHS clearly demonstrate these specific facts that they're putting at issue here?

[00:57:35] Speaker 01:
Did they clearly?

[00:57:36] Speaker 01:
They've got it there in document and your answer is untrue.

[00:57:39] Speaker 01:
And I don't know what, I don't know what we're supposed to say.

[00:57:44] Speaker 01:
That's just sort of almost like a credibility thing.

[00:57:45] Speaker 01:
It's just, you're just not stating the truth.

[00:57:47] Speaker 01:
It's not that you didn't say enough.

[00:57:48] Speaker 01:
It's that it's false.

[00:57:51] Speaker 01:
And I don't know.

[00:57:52] Speaker 01:
What more, how they were on notice that you were gonna call their credibility into contention here.

[00:58:01] Speaker 02:
They were on notice for a number of reasons.

[00:58:03] Speaker 02:
They did mention their tribal shares argument, which we think, I'll call it an allocation argument.

[00:58:10] Speaker 02:
So they did mention that, I agree with you.

[00:58:12] Speaker 02:
And we think that that is legally incorrect.

[00:58:15] Speaker 02:
We think that is false.

[00:58:16] Speaker 01:
But what they also- Legally incorrect and false are not the same thing.

[00:58:20] Speaker 01:
How is it legally incorrect?

[00:58:21] Speaker 02:
We think both because we think the statute says it's not your budget.

[00:58:25] Speaker 02:
It's not your internal allocation that matters.

[00:58:27] Speaker 02:
When a tribe comes in.

[00:58:28] Speaker 01:
Yes, but the statute also says an awful lot about not taking other tribes shares.

[00:58:32] Speaker 01:
And it makes sense as a sort of concept of self-determination.

[00:58:36] Speaker 01:
So you can't just look at one statutory provision.

[00:58:38] Speaker 01:
You've got to read it as a whole.

[00:58:39] Speaker 01:
So that doesn't just saying pointing to one section doesn't tell me why they're legally wrong on the sections they cite.

[00:58:46] Speaker 02:
The provisions they're citing though do not apply here.

[00:58:49] Speaker 02:
When we're talking about a tribal organization, which is what Mr. Dos Santos was referring to in 5304L, that's when a tribe designates another organization to contract on its behalf.

[00:59:00] Speaker 02:
It was relevant for the EMS program when the Fort McDermott tribe said, we're going to authorize Pyramid Lake to contract for that program.

[00:59:08] Speaker 02:
If Fort McDermott tribe had come in and said, we're going to authorize the Fort McDermott Healthcare Corporation LLC to contract, that's where that definition.

[00:59:17] Speaker 01:
Why does it have to be an outside tribe?

[00:59:19] Speaker 01:
Why couldn't it also be, this was a program that Interior was running for

[00:59:26] Speaker 01:
to provide health care services to two tribes and now one wants to take it over.

[00:59:29] Speaker 01:
What in those statutory provisions says that the requirement of consent to take over the allocable share, tribal share of another tribe is not required?

[00:59:42] Speaker 01:
Where in the statute says that in this circumstance instead of the third party one you're talking about?

[00:59:47] Speaker 02:
Right, so just let's be clear.

[00:59:52] Speaker 02:
When we're talking, you have to look at what is actually happening.

[00:59:55] Speaker 02:
Is IHS providing this for the benefit of multiple tribes?

[00:59:58] Speaker 02:
So let me give you the example that that would apply in.

[01:00:02] Speaker 02:
If Fort McDermott had come in and said, we want a contract for our clinic, and we want a contract for the PRC program serving Winamaka, then they would be- They said, we want a contract for this clinic.

[01:00:15] Speaker 01:
And I said, okay, thank you very much.

[01:00:16] Speaker 01:
This clinic is a two-tribe clinic.

[01:00:19] Speaker 02:
But it's not a two-tripline.

[01:00:21] Speaker 02:
It never was a two-tripline.

[01:00:22] Speaker 02:
That's your factual dispute.

[01:00:25] Speaker 02:
OK.

[01:00:26] Speaker 02:
All right.

[01:00:27] Speaker 02:
Right.

[01:00:28] Speaker 02:
So that's our factual dispute.

[01:00:33] Speaker 02:
But we also think that on the law that they have to provide what the secretary was providing for Fort McDermott.

[01:00:40] Speaker 02:
And so therefore, what they were budgeting doesn't matter.

[01:00:43] Speaker 02:
You have to look at what they were expending.

[01:00:45] Speaker 02:
And that's the legal part of it.

[01:00:46] Speaker 03:
And what is that number?

[01:00:47] Speaker 03:
What is that number?

[01:00:51] Speaker 02:
the amount that they were expending.

[01:00:53] Speaker 03:
Is that the 600?

[01:00:54] Speaker 03:
Is that the 600?

[01:00:56] Speaker 02:
The 600 plus the 500,000 for the EMS program.

[01:00:59] Speaker 02:
So it's 1.9 million total.

[01:01:01] Speaker 03:
OK.

[01:01:02] Speaker 03:
All right, great.

[01:01:03] Speaker 03:
Any other questions, Judge Muller or Judge Katz?

[01:01:06] Speaker 03:
OK.

[01:01:07] Speaker 03:
Thank you, Ms.

[01:01:08] Speaker 03:
Patterson.

[01:01:10] Speaker 03:
Mr. DeSantis, you were way over time, but you can have two minutes.

[01:01:14] Speaker 05:
Thank you.

[01:01:16] Speaker 05:
I'll just briefly state that- You don't have to take a call.

[01:01:20] Speaker 01:
I have a question after you said something.

[01:01:22] Speaker 01:
Just one more question.

[01:01:24] Speaker 01:
Go ahead.

[01:01:25] Speaker 05:
I was just going to say that it seems like the issue has been clarified to the extent that it's clear that IHS said it was budgeting an amount for the Winnemucca here.

[01:01:37] Speaker 05:
And then plaintiffs raise a factual dispute about whether or not that means it's a multi-tribe program and so forth.

[01:01:46] Speaker 05:
But is that the same as actual expenditure?

[01:01:50] Speaker 03:
Is that the same?

[01:01:52] Speaker 05:
I'm not sure what you mean, Your Honor.

[01:01:55] Speaker 03:
I'm looking for the provision of the statute.

[01:01:59] Speaker 03:
Doesn't the statute says that under the contract, they get the amount that was expended in the previous year?

[01:02:06] Speaker 05:
It does not.

[01:02:07] Speaker 05:
The statute says the tribe gets the amount of money that the appropriate secretary would have otherwise provided for the operation of the program.

[01:02:17] Speaker 05:
Doesn't provided mean?

[01:02:19] Speaker 05:
What does provided mean?

[01:02:21] Speaker 05:
So provided means what the secretary was prospectively going to allocate in appropriated funds to the program.

[01:02:30] Speaker 01:
The program, not for the tribe.

[01:02:33] Speaker 05:
To the program, right.

[01:02:35] Speaker 05:
The tribe may, in fact, only be able to take over a portion because it's not authorized to take over the whole.

[01:02:42] Speaker 05:
And then it would give the tribe its portion, its tribal share.

[01:02:48] Speaker 01:
Who made the decision to allocate tribal shares for the Winnemucca tribe to this clinic?

[01:03:03] Speaker 01:
Was that in consultation with the Winnemucca tribe or just by Interior itself?

[01:03:09] Speaker 05:
I just made the decision without consultation because the Winnemucca tribe didn't have a government.

[01:03:14] Speaker 01:
OK.

[01:03:15] Speaker 01:
All right.

[01:03:15] Speaker 01:
And when did it make that decision?

[01:03:18] Speaker 05:
In 2013, which you could see the letter in J.A.

[01:03:22] Speaker 05:
1-24, it has the initial letter saying, we've consulted with tribes in the region when Amaka accepted because they didn't have a government.

[01:03:32] Speaker 05:
And we've allocated tribal shares for the Shirt Service Unit.

[01:03:36] Speaker 05:
Here are tables showing what each tribe is getting.

[01:03:38] Speaker 05:
So my understanding is that that was the most recent round of consultation and allocation.

[01:03:46] Speaker 06:
What's the relationship between the money that you say was allocated to the Winnemucca as a budgeting matter for their tribal share and the money that was actually spent to provide healthcare to the Winnemucca through this separate purchasing program?

[01:04:16] Speaker 06:
Is that part of the allocated share or is that something completely different?

[01:04:21] Speaker 05:
It's something completely different.

[01:04:23] Speaker 06:
When you're doing the allocation of shares, someone at IHS says, we think the Winamooka should have

[01:04:43] Speaker 06:
such and such amount allocated to them, but taking into account that most of their members are getting care through some separate bucket of funds.

[01:04:55] Speaker 05:
So IHS, you could see this in the tables in the 2013 consultation from JA1 to 24.

[01:05:02] Speaker 05:
IHS was allocating based on what are called active users.

[01:05:06] Speaker 05:
which is number of potential users of health care services within the area that's assigned to a particular tribe.

[01:05:14] Speaker 05:
And it did that for all the tribes on the same basis, came up with a number, and then assigned those to programs.

[01:05:24] Speaker 01:
Where is the assignment of this share to the clinic in this letter, or these charts?

[01:05:30] Speaker 01:
As opposed to, I get they get this much money, but where are they assigning it to the clinic?

[01:05:35] Speaker 01:
to the Fort McDermott Clinic?

[01:05:38] Speaker 05:
I believe.

[01:05:38] Speaker 01:
You had to hold some of it.

[01:05:42] Speaker 01:
You had to hold a lot of it back for their PRC, right?

[01:05:47] Speaker 05:
No, no.

[01:05:48] Speaker 05:
PRC is a separate pool of funding.

[01:05:49] Speaker 05:
OK.

[01:05:50] Speaker 01:
All right.

[01:05:50] Speaker 01:
OK.

[01:05:51] Speaker 05:
Really?

[01:05:52] Speaker 01:
OK.

[01:05:53] Speaker 01:
OK.

[01:05:53] Speaker 03:
I don't have a site for you for your question.

[01:05:55] Speaker 03:
All right.

[01:05:58] Speaker 01:
I'm just trying to get this site.

[01:05:59] Speaker 03:
Thank you.

[01:06:01] Speaker 01:
You don't have this side right now?

[01:06:02] Speaker 01:
Sorry, do you have this side?

[01:06:04] Speaker 03:
No.

[01:06:04] Speaker 01:
If you get this, if you get a side that says when you dedicated that to the Fort McDermott Clinic, that would be very helpful to have that.

[01:06:13] Speaker 01:
If that was part, maybe it was part of the 2013 letter.

[01:06:17] Speaker 03:
Okay.

[01:06:19] Speaker 03:
Anything else, Judge Millett?

[01:06:21] Speaker 03:
No.

[01:06:21] Speaker 03:
Judge Casas.

[01:06:23] Speaker 03:
Okay, thank you, Mr. DeSante.

[01:06:24] Speaker 03:
Thank you both.

[01:06:24] Speaker 03:
The case submitted.

[01:06:27] Speaker 03:
Thank you.