better soon for the apple e good morning may please the court justice in atos on behalf of the indian health service the indian self determination act allows tribes to take over programs that i  runs for their benefit the point of the act in this context is to give tribes creator agency or the provision of their healthcare so whereas fight a fault the tribe gets the health care from the federal government through i h s the act allows a try to exercise agency and provide health care services for itself the issue in this case arises from the fact that i test often provide services for more than one tribe through the same program in order to conserve resources congress foresaw that circumstance which is very common and it dealt with it in the following way it expressly prohibited tribes from taking over a program in which more than one tribe has a share unless the other tribes consent which makes sense given that the act is about self determination and agency and if one tried to take over a multitrack program without the other tribes having seen the matter that would eliminate the other tracks right to self determination without their consent and then approach to the to the issue here and the district court's ruling contravenes those principles with the district court said was when there's a multitrack program the st try to ask to take it over gets all of the money not me what is how do you define tribal share in this case so tribal share is a longstanding concept it reimbursement private provider reimbursement process or something like that not at this clinic you know you know the record there's two people people maybe six people was that included in their agency share or was that think that record says of the twenty five or fifty other tribes would have people who would so show up now and then just because i think that the clinic was would be open to other people who come in so you don't have to sort of show kind of the worship to get in the door and want to look at a thing to be much like them just a few people here now and then so why isn't that they had this large share but none of these other tribes that were also using the clinic did and why a hundred and ninety thousand dollars for two people 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 they're allocated based on how many eligible potential users live in the geographic area that's assigned to each tribe what happened here was i use that formula taking into account how many eligible potential users live in so i just couldn't consult and get a discriminations to where and when the market would prefer it's one hundred and ninety thousand to go and that i don't know and it has that right so that because they didn't have a functioning government i guess or do want to highlight of the point that your honor made about the fact that clinics are open to members of all tribes i think that's an important point to keep in mind because it shows that allocations the shares don't depend upon how many members of a particular tribe use the clinic it's not the case that if several members of a different tribe come and use the clinic now that tribe acquires a share of the shares are determined by us under a longstanding formula that isn't challenge here but in that they operation of the clinic i take it for mcdermott has been operating the clinic now for a few years or is my understanding right it would still service however many want to lock up people members of the like a tribe i'm speaking to quickly came into the clinic they would still provide the medical services just as they had before or would that change with a share with gone no that's correct treads are required to provide a cure 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 and so it was your decision so here where this money should go and nothing on the ground change they were going to keep serving they same individuals i same till today as of today would still continue to sometimes a contract will quote require the secretary to divide the ministry of a program that has previously been administered for the benefit of a greater number of tribes you see it also in the fact that in funding provisions and i didn't don't anything i don't get what was divided here are still providing exactly i mean when they've improved it but for our purposes the exact same health service your clinic that would make more sense about what division was made here in the program what division in the program was made as opposed to behind the scene funny like yourself the division is is the works you have a program that's supposed to benefit multiple tracks because i has allocated funding shares for multiple tribes one tribe comes to the door and asked to take over the program the way in which the tribe gets to administer the program is negotiated maybe they want to run it in exactly the same way but the point is they can't take everything because another tribe has a stake here and so i says here's what you can take sometimes it's including the building and it's going to use the other tribes shared a different way  get me into sources of funding now you're going to get one but i think i'm like rectory in the record that well it's heard a lot of other tribes and none of them had funding allocated right was only the right but at least as to the clinic i don't want t talking about when you look at five thousand three hundred and twenty five a one it explicitly refers to the fact that funding may be for only a portion of the program so congress unfortunately that would help a lot you know out so that let me let me try to clarify something about the program when a tribe is negotiating to take over a program there's some flexibility in how the tribe is going to run it whether it's going to run in exactly the same way or not so here the tribe could say we want to run it just like you were running it and if we can only likely say there was no dispute here and they agree you want to make has a share that we can take over they can say we want to run it just like you i take your especially to be when i was has a program where multiple types of share and one tribe wants to take over its share but i just couldn't really provide healthcare services with the remaining share for the other t before nothing has changed in the real world what has changed wouldn't be able to take over anything it wouldn't be able to exercise opportunities but they couldn't anyhow at the time of year until now they can i mean they have a government now that clinic as they did before and budgets are always type of now we're going to take away that one hundred and ninety thousand dollars it was dedicated to it's not that it was that it cute to two people it's that it was dedicated to a tribe on th 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 winnemucca will not and therefore mcdermott tribe will have a greater share than everybody else that's what's go happen on the ground and this is the program issue i has has has authority to redesign it could leave it looking just how it wasn't say in order to meet the needs of the other tribe we're just going to leave you the so with the amount of money it could either start into the program it could dedicate it to putting more rd party services which is what it has been doing my understanding is in the years after this  status quo satis quo ante like pre of to terminations act is that the indian health service would be operating this entire clinic and for the benefit of mostly the fort mcdermott but also the the when america and whoever else uses it right and let's say it costs them a million dollars to perform all of those operations for all of those tribal members right now the court macdermott come in and want to take over all of those operations and five thousand three hundred and twenty five dollars tells us that they should get the i'm out the secretary would have paid to operate all of those programs which is  i want to take over the program i just as well some of that money was supposed to be going to winnemucca and if we give you all of it without winning matches consent it would violate statutes no one in my car would have no ability to then take over at anything exercise its right to sel but the answer to that is not to take the want to because share away if the answer to that is let the one america now that they have a government say how they would prefer this to go i mean this scheme is not a use it or lose it scheme is not one w i just pays their parties are provided services for the let me just emphasize that those are different from direct services and in several ways one is that the tribe can't take it over to operate it itself it's a rd party providing the other is that these funds are supposed to be more of a i'm just i'm very surprised i thought you know people of course people can appeal when there's an injunction place but you know there's either comply but apparently i hadn't realized that ignoring it was another option ok issue in the rejection letter if it did then you could go to the merits right so my question about the rejection letter is what in that letter says that the clinic you've been funded with money allocated to the  then i don't understand how the rejection letter provides with the statute cause specific findings your honor if you look on page one hundred and twenty three of the joint appendix looking at the rejection right doesn't mean they has a tribal share because there are a lot of try this series of twenty five or fifty tribes that receive services at this clinic how do i know what to be served me and doesn't mean it means that it can't mean anyone who comes to the door because obviously you don't know who's going to come to the door what is referring to is exactly what we've been talking about which is i don't know that's what to be served means well that's for example if you look at fifty three let me just double ch was a mess and thinking of a different one this is it it's just really confusing especially for i know there's not if there were like a nice direct provision that would say what you're saying and the language just keeps changing so i'm not how the definition of applicant pool  i'm sorry your legal requirement to at any clinic even if the clinic is dedicated to the local tribe any a member of any tripe can go in and get services whole process to take over the clinic they must of had to request becoming participation in self governance compact by resolution or other official action of the government of the governing body  i don't know whether the actual tribe that's requesting to take over does a resolution really in tears not going to be a tribal government of course they are they do i don't what i'm trying to say is i don't know whether that's so to perform a service is a benefit in more than one indian tribe that means how does benefiting that means taking your share as opposed to providing medical service to you so you have to read this in the context of i guess allocating funds to indian tribes for decades what it means is when a program is supposed to be serving more than one more than serious doesn't say travis it's here is anyone who walks in the door i guess i would have a tribal member but right so this language is not referring to that you have to get the authorization of any tribe that might walk through the door because mr patterson and this makes sense and you need to understand a little bit of the geography of the region winnemucca is a city that is twenty times bigger than interment it has a hospital that serves the entire region it has several private healthcare providers ma the teeny tiny reservation that if you blink you will miss it i actually did i was in oregon when i st went out there i had to turn back around and so and it's an hour and a half from when i'm up in the wrong direction as and not towards reno the big big city but in the wrong direction on a road that is barely impassable in inclement weather so it did not make sense for i just to serve winnemucca tribes through this small clinic an hour and a half in the wrong direction it made sense for them for the few people that needed services to just pay for them to seek private health care providers what you have here is the shirt service unit that serves thirteen tribes i gess in its discretion decided how it was going to serve those tribes some tribes have tribe comes in a contract they get all the resources that was going toward the clinic serving that the winnemucca tribe can still exercise their self determined dirt determination right when they come in and if they come in if they choose to contract they will get the resources for the purchased and referred care program that i just has always run for their benefit now those resources are not in any of these tables on the record why because when part mcdermott was contracting we only requested resources that were relevant to the for retirement program we were asking about money for winnemucca and government counsel even said that those funds are dealt with separately there's a whole nother budget there's a whole nother bucket of funding at the share under ninety thousand dollars so i don't know what else that would mean other than we're funds that were budgeted maybe maybe it was a bad alex vision i don't know why they have an extra one hundred and ninety thousand dollars that they can put in here for even though they know i guess they're going to head count but i know nobody's going to come down and use it why they don't reallocate it but that's that's in their wheel house but i don't think there's i don't think there's any factual dispute that the two hundred and ninety one fountain had been budgeted for health care for the one of the tribal members they just haven't been using it right well the reason i say there's a factual dispute is because the one hundred and ninety thousand have been different numbers that but i the statute i'm sorry there at all 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 actually says that is our problem well she says you get with the secretary with no less giving suffers the same you said you get no less than what the secretary was otherwise providing and every court has looked at has said that what that in this instance for example for mcdermott could have come in and say we want to take over only diabetes and we want you i just to keep running dental and medical and substance abuse program and so they can take over just that portion they actually  the six hundred thousand six hundred one thousand dollars is what this is what is what was spent was the actual two thousand and fifteen expenditures all they awarded the tribe was fifty three thousand dollars to run the clinic even though i am i'm confused about two hundred and thirty eight there's an awful lot of numbers and i don't say which paragraph are you talking about two  correct according to the agency this was cut together after the fact personal compensation travel transportation rent communications utilities contractual services supplies and material equipment right and it will be the cutting edge of the medical care is no medical care on this list and eighty thousand and one me in the us program so their own data suggests they were actually spending one five million and one year we're only asking for one point one here would also add that this is part of the problem because the eight the statute is very clear on the agency's burden here the agency has a burden to clearly demonstrate their specific findings for declining the latter not with people that they added two years after the fact but within the forty five day statutory window the government had a burden here and they simply did not meet it so conscious again i'm just so confusing because you have that chart and then issue here and then you have one to thirty for another one that says f y two thousand and seventeen hospitals and clinics five hundred and fifty five thousand it's just feels like there's numbers all over the place and so i don't know whether it's nine hundred or six hundred or five hundred you're not asking for this nine hundred and ninety dollars something that you just asked talk to us about no the tribe was was basing off of the data they were provided at the time all of these charts were provided after so that the data provided at the time the last full year data money from the injunction because that's correct they actually haven't even added the employee housing services provision in the st summary judgment below that agency is no longer appealing they issue an amended sudden agreement by december st tw sixteen in order specifically orders that they have not done so that you haven't gone back to the district court and said ok well that's your choice i guess they also they also say they also make their argument about your taking shares algal the winnemucca in that same paragraph that's their whole argument and you exceed the tribes a political share of i h s programs the table shows you are taking shares belonging to other program how does that mean that you are also serving them through this clinic which you're still not doing in the in the divisibility provisions that mr dos santos listening to what you actually see is i just actually providing services in that facility and he knew him to do so so for example in another service unit of the i just that served three tribes two tribes wanted a contract and one did not so i just literally had to redesign and those two tracks contract it parties do not disagree on you know we had a spreadsheet that said this number a spreadsheet that said that number or were what the parties actually stipulated to two facts of what was in front of the court but the agency has to make specific findings and the reason that the court is struggling is because the record is a mess they did not make specific findings here they did not they did not clearly demonstrate why they're choosing ground for rejection and ask one of the what were they supposed to say when they say this reflects shares allocable to when america the tribes share was they have one hundred million one hundred and ninety thousand one hundred and ninety seven what were they supposed to do they're supposed to explain that  the crack is then it seems like it's not that they didn't say it here they didn't say it here and you're just disputing you say it's just false you never allocated shares her with america that seems to be your argument they said it's not that they didn't explain themselves they said we have allocated shares i mean one hundred and ninety thousand dollars for one of the tribe you're not allowed under the statute to take that they've said that they say you're seeking more than you're allowed they said that and you just say it's just not true resolving the factual dispute what you're actually reviewing is did the agency to be i h s clearly demonstrate these specific facts that they're putting in issuers to be clear that i got in there and documenting your answer is untrue not your budget it's not your internal allocation that matters when a tribe comes in as some of the statute also says an awful lot about not taking other tribes shares as and that makes sense of the sort of concept of self determination so you that you can't just look at one statutory branch and got to read it as a whole doesn't just saying point one section doesn't tell me why they're legally wrong on the sections they cite the provisions they're citing though do not apply here when we're talking about trying to organization which is what mr dos santos was referring to in fifty come in and said we're going to authorized the fort mcdermott host your corporation l l c contract that's where that f b i didn't have to be an outside tribe why couldn't it also be this was a program that they that interior was running for to run health care services to two tribes and no one wants to take it over why do those what in the statutory provision says that the requirement of consent to take over ballots will share tribal share of at what is actually happening is i just providing this for the benefit of well try to form a good let me let me give you that example that would apply and if for mcdermott had come in and said we want to we want to contract for our clinic and we want to contract for the p secretary was providing for for macdermot and and so therefore what they were budgeting doesn't matter you have to look at what they were extending and that's the legal i mean what is that number what is that number the amount that they were the tribe gets the amount of money that the appropriate secretaries would have otherwise provided or the operation of program doesn't provided mean what is provided me to provided who made the decision allocated to the when to move as a budgeting matter for their tribal share and the money that was actually spent to provide women lucca should have 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 so i guess you could see this in the tables in the twenty thousand consultation from day one to twenty four i just was allocating be some what i called active users which is number of potential users of health care services within the area and that's assigned to a particular tried and it did that for all the tribes on the same pieces came up with a number and then assigned those to programs there is the assignment