United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2020 Decided July 23, 2021

No. 19-5336

FORT MCDERMITT PAIUTE AND SHOSHONE TRIBE,

APPELLEE

v.

XAVIER BECERRA, SECRETARY OF HEALTH & HUMAN 

SERVICES, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00837)

Joshua Dos Santos, Attorney, U.S. Department of Justice, 

argued the cause for appellants. With him on the briefs were 

Ethan P. Davis, Acting Assistant Attorney General when the 

briefs were filed, and Daniel Tenny, Attorney.

Rebecca A. Patterson argued the cause for appellee. With 

her on the brief were Colin C. Hampson and Whitney A. 

Leonard.

Before: TATEL, MILLETT and KATSAS, Circuit Judges.
2

Opinion for the Court filed by Circuit Judge KATSAS. 

KATSAS, Circuit Judge: The Fort McDermitt Paiute and 

Shoshone Tribe assumed sole control of a medical clinic that 

the Indian Health Service previously had operated to benefit 

two different tribes. In determining the clinic’s funding, the 

agency withheld the amount that it had budgeted as benefitting 

members of the second tribe. The agency also withheld an 

amount equal to the Medicare and Medicaid reimbursements 

received from operating the clinic. We hold that the Indian 

Self-Determination and Education Assistance Act permits the 

second withholding but not the first.

I

A

The Indian Health Service (IHS), a federal agency within 

the Department of Health and Human Services, “provide[s]

health care services to Indians and Indian tribes.” 25 U.S.C. 

§ 1661(a)(1). Congress funds the agency through lump-sum 

appropriations that grant it considerable discretion “in the 

proper ordering of its priorities.” Lincoln v. Vigil, 508 U.S. 

182, 193 (1993); see 25 U.S.C. §§ 13, 1621. The agency uses 

its funding to administer hospitals and other health programs

that provide care to tribal members. Id. § 1661(c)(2), (3).

The Indian Self-Determination and Education Assistance 

Act of 1975 (ISDA) allows Indian tribes to assume control of 

the health programs that IHS operates on their behalf. Title I 

of the statute allows tribes to assume control of specific 

programs by entering self-determination contracts with the 

federal government. See 25 U.S.C. § 5321(a). Title V allows 

tribes to enter self-governance compacts, which can cover a 

wider range of programs on a more permanent basis. See id.

§§ 5384, 5385(b)(2); 1 Cohen’s Handbook of Federal Indian 
3

Law § 22.02 (2019) (compacts provide “significant additional 

flexibility in program administration”).

To form a self-governance compact, a tribe must agree to 

both a compact and a funding agreement with IHS. 25 U.S.C. 

§§ 5384(a), 5385(a). The compact must “set forth the general 

terms of the government-to-government relationship” between 

the parties. Id. § 5384(b). The funding agreement must 

identify both the programs that the tribe will administer, id.

§ 5385(d)(1), and the funding that IHS will provide, id. 

§ 5385(d)(2)(B).

Subject to the availability of appropriations, tribes 

participating in self-governance are entitled to IHS funding for 

both “direct program costs” and “contract support costs.” 25 

U.S.C. § 5388(c). This appeal concerns only direct program 

costs, which courts have also called the “secretarial amount.”

See Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 186 

(2012). Under ISDA, the secretarial amount must not be less 

than what IHS “would have otherwise provided for the 

operation of the programs or portions thereof” but for the selfgovernance compact. 25 U.S.C. § 5325(a)(1).

When IHS and a tribe cannot agree on funding, the tribe 

may submit a final offer to the agency. 25 U.S.C. § 5387(b). 

IHS then has forty-five days to approve or reject the offer. Id. 

If IHS does not timely reject an offer, “in whole or in part,” 

ISDA deems the agency to have accepted it. Id. Upon a partial 

rejection, IHS must give the tribe “the option of entering into 

the severable portions of a final proposed compact or funding 

agreement ... that [IHS] did not reject.” Id. § 5387(c)(1)(D). 

If IHS rejects a proposed funding amount as too high, the tribe 

must be allowed to proceed with a “lesser funding amount.” Id.

In addition to the secretarial amount and contract support 

costs, Indian health programs may receive income from third 
4

parties, including reimbursements from Medicare and 

Medicaid for treating their beneficiaries. 42 U.S.C. 

§§ 1395qq(a), 1396j(a). When IHS operates a health care

program, it bills and receives reimbursements from Medicare 

and Medicaid. See id. IHS must place the reimbursements “in 

a special fund” and use them only as authorized by the Indian 

Health Care Improvement Act (IHCIA). 25 U.S.C.

§ 1641(c)(1)(A), (B). When a tribe operates a health care 

program through a self-governance compact, it may elect to bill 

for and receive those reimbursements directly. Id.

§§ 1603(25), 1641(d)(1).

B

The Fort McDermitt Paiute and Shoshone Tribe is a 

federally recognized Indian tribe with a reservation in parts of 

Nevada and Oregon. Prior to the events in this case, IHS 

provided health care to the tribe through a clinic in McDermitt, 

Nevada, and an accompanying emergency medical services 

(EMS) program. Most of the clinic’s patients are members of 

the Fort McDermitt tribe or their beneficiaries. Nonetheless, 

federal law entitles members of other tribes also to receive care 

at the clinic. 42 C.F.R. § 136.12(a).

In 2016, the Fort McDermitt notified IHS of their intent to 

assume responsibility for the clinic and a portion of the EMS 

program. Upon qualifying for self-governance, the tribe 

submitted to IHS a draft compact and funding agreement. The 

parties reached an impasse on several issues, including the 

clinic’s secretarial funding. In its final offer to the agency, the 

tribe requested about $603,000 annually to provide medical 

care at the clinic. IHS rejected that amount and awarded only

about $53,000.

The numbers diverged for two reasons. First, the parties 

disputed whether the Fort McDermitt were entitled to all the 
5

funds that IHS previously had spent on the clinic or whether 

the agency could withhold the portion of funds that it 

previously had allocated to benefit members of another tribe. 

As a general matter, IHS allocates funding among health care 

programs according to the number of eligible users who live in 

the area assigned to each tribe. See Indian Health Service, 

Special General Memorandum 95-02 (Apr. 19, 1995). 

Applying that standard, IHS funded the clinic to benefit both 

the Fort McDermitt and the nearby Winnemucca Tribe. In 

determining the secretarial amount, IHS took the position that 

it could not include what it described as the Winnemucca’s 

“tribal share” of clinic funding without that tribe’s consent.1 

The Fort McDermitt responded that they were entitled to all of 

the clinic’s funding because they would be assuming 

responsibility for all of its operations.

Second, the parties disputed the treatment of third-party

income. Before the Fort McDermitt assumed control of the 

clinic, IHS collected Medicare and Medicaid payments on the 

tribe’s behalf for treatment that the clinic provided to Medicare 

and Medicaid beneficiaries. In its final offer, the tribe sought 

to include the value of those payments in the secretarial 

amount, even though the tribe now collects the payments from 

Medicare and Medicaid directly. IHS denied the request.

After IHS refused to fund the clinic at the level requested, 

the Fort McDermitt entered into the severable portions of its 

proposed compact and funding agreement. Because the Fort 

McDermitt had asked to take over the entire clinic, and because 

IHS did not reject that request, the tribe assumed full control of 

1 When IHS and the Fort McDermitt discussed the final offer, 

the Winnemucca lacked a recognized governing body and thus could 

not provide consent. Although the tribe now has such a body, it has 

taken no position in this litigation.
6

the clinic. The tribe also filed this lawsuit challenging IHS’s 

refusal to fund the secretarial amount at the level requested.

The district court granted summary judgment to the Fort 

McDermitt. It held that the tribe was entitled to all of its

requested funding, including amounts that IHS had budgeted 

for the Winnemucca and amounts obtained through Medicare 

and Medicaid reimbursements. Fort McDermitt Paiute &

Shoshone Tribe v. Azar, No. 17-837-TJK, 2019 WL 4711401 

(D.D.C. Sept. 26, 2019). The government appealed on both 

issues.

II

This appeal presents two questions of law, which we 

review de novo. See Ramah Navajo Chapter, 567 U.S. at 193–

94.

2

 We first address whether the Fort McDermitt are entitled 

to all the funds that IHS had previously allocated to the clinic 

or only to its tribal share of those funds.

A

Title V of ISDA entitles each tribe participating in selfgovernance to the same funding that it “would have been 

entitled to receive under self-determination contracts”

governed by Title I, including “amounts for direct program 

costs specified undersection 5325(a)(1).” 25 U.S.C. § 5388(c). 

In turn, section 5325(a)(1) provides that funding for direct 

2

 The Fort McDermitt argue that IHS must support the rejection

of its offer by “clear and convincing evidence.” 25 U.S.C. § 5387(d). 

But “clear and convincing evidence” identifies a burden of 

persuasion for issues of fact, see Clear and Convincing Proof, 

Black’s Law Dictionary (6th ed. 1990), and generally has no 

application to issues of law, see Merck Sharp & Dohme Corp. v. 

Albrecht, 139 S. Ct. 1668, 1679 (2019).
7

program costs “shall not be less than” what IHS “would have 

otherwise provided for the operation of the programs or 

portions thereof for the period covered by the contract.”

These provisions link the secretarial amount to spending 

on specific healthcare programs, not spending for specific 

tribes. The secretarial amount must be not less than what IHS 

would have “provided for the operation of the programs or 

portions thereof” covered by the self-governance compact or 

self-determination contract at issue. To “provide” funding 

means to “supply” or “contribute” it. Provide, Black’s Law 

Dictionary (6th ed. 1990). So the secretarial amount is keyed 

to what IHS would have contributed, in dollars and cents, to 

program operations. Moreover, section 5325(a)(1) allocates

funding according to which tribes operate what programs. In 

the phrase “programs or portions thereof,” the words “portions 

thereof” plainly mean “portions of programs.” And in the 

phrase “operation of the programs or portions thereof,” the 

prepositional phrase “of the programs or portions thereof” 

plainly modifies “operation.” Accordingly, if a tribe operates 

a portion of a program, it is entitled to receive no less than what 

IHS would have spent to operate that portion. Section 

5325(a)(1) thus fixes the secretarial amount based on 

programs, or portions of programs, that the tribe operates.

This reading of section 5325(a)(1) tracks a broader pattern: 

whenever ISDA refers to “programs ... or portions thereof,” 

context confirms that the portions at issue are portions of 

program operations. For example, ISDA authorizes tribes to 

“plan, conduct, and administer [certain] programs or portions 

thereof, including construction programs.” 25 U.S.C. 

§ 5321(a)(1). Because these “portions” can be conducted or 

administered, they must be portions of operations rather than

budgeted funds. Other provisions in ISDA likewise describe 

portions of programs as concrete projects that can be 
8

performed, administered, redesigned, consolidated, or 

delegated. See id. §§ 5385(d)(1), 5386(e), 5387(c)(1)(A)(ii). 

Because the phrase “programs ... or portions thereof” 

consistently bears this meaning throughout ISDA, we presume 

that it also does so in section 5325(a)(1). See Env’t Def. v. 

Duke Energy Corp., 549 U.S. 561, 574 (2007).

Here, it is undisputed that the Fort McDermitt have

assumed responsibility for all health care programs at the 

clinic. The tribe is thus entitled to all the funding that IHS 

would have spent to operate the clinic absent the compact. IHS 

therefore erred in withholding funds that it had internally 

allocated to benefit the Winnemucca.

B

IHS argues that section 5325(a)(1) entitles tribes to only 

their “tribal share” of a program’s funding. To support this 

view, the agency reads the phrase “portions thereof” in section 

5325(a)(1) to refer to different tribes’ relative shares of eligible 

users. For the clinic here, IHS says that it has allocated tribal 

shares to both the Fort McDermitt and the Winnemucca. So, 

IHS argues, it cannot transfer the Winnemucca share without 

that tribe’s consent.

This position is incompatible with ISDA’s text. To 

reiterate, section 5325(a)(1) links the secretarial amount to 

what the agency would have “provided for the operation of the 

program or portions thereof” (emphasis added). IHS reads

“portions” to mean tribal shares, but the statute makes clear that 

the relevant portions are simply portions of programs that 

individual tribes operate.

ISDA’s structure further cuts against reading a concept of 

tribal shares into section 5325(a)(1). Title V of ISDA contains 

a definition of “tribal share” that by its terms applies only “[i]n 
9

this subchapter”—i.e., in Title V. 25 U.S.C. § 5381(a), (a)(8). 

But section 5325(a)(1) appears in Title I, which neither defines 

“tribal share” nor uses that phrase for any purpose. And the 

“tribal share” definition is unhelpful to IHS in any event. Title 

V defines a “tribal share” as an “Indian tribe’s portion of all 

funds and resources that support secretarial programs, services, 

functions, and activities (or portions thereof) that are not 

required by the Secretary for performance of inherent federal 

functions.” Id. § 5381(a)(8). Although this definition divides 

secretarial funds into tribal portions, it also distinguishes 

portions of funds from portions of programs. And as explained 

above, section 5325(a)(1) references only portions of programs

in fixing the secretarial amount.

Moreover, a different ISDA provision apportions funding 

based on tribal shares. ISDA allows tribes to jointly assume 

control of a program through an inter-tribal consortium. 25 

U.S.C. § 5381(a)(5). It also allows tribes to withdraw from a

consortium and then to operate a portion of the program

independently. Id. § 5386(g)(1)(A). In that event, ISDA 

entitles a withdrawing tribe to the “tribal share of funds and

resources” that support the “programs ... or portions thereof” 

that it will operate independently. Id. § 5386(g)(2)(A). Section 

5386(g)(2)(A) thus expressly divides funding according to a

“tribal share” of the relevant program or portions, which 

confirms that section 5325(a)(1) does not do so by implication. 

See Russello v. United States, 464 U.S. 16, 22–23 (1983).

Against all this, IHS invokes section 5385(b)(1), which 

requires each funding agreement to “authorize” self-governing 

tribes to “receive full tribal share funding, including tribal 

shares of discretionary [IHS] competitive grants” for every

program identified in their compacts. 25 U.S.C. § 5385(b)(1). 

The agency reads this language to limit tribes’ secretarial 

funding to tribal shares as determined by their relative eligible 
10

beneficiaries. But Title V of ISDA defines a “tribal share” to 

mean only a tribe’s “portion” of program funds, without 

elaborating on whether it should reflect the tribe’s relative 

number of beneficiaries or its relative responsibility for 

program operations. Id. § 5381(a)(8). Full “tribal share 

funding” is thus consistent with a secretarial amount based on 

program operations. Moreover, section 5385(b)(1) concerns 

the overall funding that tribes must be authorized to receive, 

including the mandatory secretarial amount and additional 

discretionary grants. Authorizing at least tribal-share funding 

for all these amounts does not imply that the secretarial amount 

includes no more than tribal-share funding. In any event, a

provision that generally governs all funding cannot control 

over another one that specifically defines the secretarial 

amount. So, if there were a conflict between the broad 

authorization of “tribal share funding” in section 5385(b)(1) 

and the specific entitlement to the secretarial amount in section 

5325(a)(1), the latter would control. See Morales v. Trans 

World Airlines, Inc., 504 U.S. 374, 384–85 (1992).

C

IHS further argues that our reading of section 5325(a)(1) 

would allow individual tribes to operate and claim funding for 

multi-tribe programs without consent from all affected tribes. 

IHS contends that our reading thus violates two other ISDA 

provisions, sections 5304(l) and 5383(c)(1)(B) of Title 25. 

More generally, IHS worries that our reading is unfair to nonconsenting tribes such as the Winnemucca.

ISDA protects objecting tribes through several provisions, 

including the two cited by IHS, that govern which program 

operations any one tribe may assume. First, if a tribe seeks to

contract for a program “benefitting more than one Indian tribe,” 

all of those tribes must consent. 25 U.S.C. § 5304(l). Second, 
11

to qualify for self-governance, a tribe must “request[] 

participation” from each tribe “to be served” in its selfgovernance compact. Id. § 5383(c)(1)(B). Third, if one tribe 

seeks partial control of a multi-tribe program, ISDA permits 

IHS to “divide the administration” of the program, but only if 

the agency takes “such action as may be necessary to ensure 

that services are provided” to the other affected tribes, 

“including program redesign in consultation with” those tribes 

Id. § 5324(i)(1). Fourth, ISDA permits tribes to join and 

withdraw from inter-tribal consortiums, id. § 5386(g)(2)(A), 

which it defines as coalitions of “separate Indian tribes that join 

together for the purpose of participating in self-governance,” 

id. § 5381(a)(5). And if a tribe withdraws from an inter-tribal 

consortium, it is “entitled to its tribal share of funds” 

supporting programs that the tribe will operate under its own 

contract or compact, “calculated on the same basis as the funds 

were initially allocated in the [consortium’s] funding 

agreement.” Id. § 5386(g)(2)(A). For secretarial funding, this 

means that a withdrawing tribe may receive funding that IHS 

would have provided for portions of programs that the 

withdrawing tribe will operate prospectively. Id. § 5325(a)(1).

These provisions allow individual tribes to protect their 

individual interests in program control and funding. Sections

5304(l) and 5383(c)(1)(B) allow each tribe that benefits from a 

program to block another tribe from assuming its control. And

because ISDA bases program funding on program control, that 

in turn allows each tribe to protect its relative claim to a 

program’s funding. Section 5324(i)(1) permits IHS to divide 

program administration to account for different tribes taking 

different positions on self-governance, but only if IHS accounts 

for the interests of all affected tribes. Finally, section 

5386(g)(2)(A) permits tribes to band together or split apart for 

purposes of operating tribal programs, and it preserves the 

ability of a withdrawing tribe to receive its share of funds 
12

necessary to support programs that it will operate going 

forward. ISDA thus gives individual tribes a significant say in

the operation and funding of multi-tribe programs.3

In this unusual case, IHS did not obtain the Winnemucca’s 

consent before transferring full control of the clinic to the Fort 

McDermitt. Nor did the agency divide administration of the 

clinic. Nonetheless, those omissions have no bearing on the 

funding question before us. Section 5304(l), which requires 

consent for one tribe to assume responsibility for “services 

benefitting more than one Indian tribe,” governs operations as 

opposed to funding. Because IHS agrees that the Fort 

McDermitt may operate the entire clinic, that issue is not 

properly before us. Likewise, section 5383(c)(1)(B) defines 

only the “qualified applicant pool” for self-governance, but 

IHS agrees that the Fort McDermitt are so qualified. Finally, 

section 5324(i)(1) allows severance only when “require[d]” by 

the governing contract or compact. And IHS agrees that the 

compact in this case authorizes the Fort McDermitt to operate 

the entire clinic. In short, although ISDA allows individual 

tribes to influence program operations, which in turn affects

secretarial funding, it does not allow IHS to withhold funds that 

the agency would otherwise have provided for operations that 

it allows a tribe to undertake. On the funding question at issue 

here, section 5325(a)(1) is controlling, and the other provisions 

invoked by IHS are inapposite.

3 These provisions do not elaborate on which tribes “benefit[]”

from a program, 25 U.S.C. § 5304(l); which tribes are “served” by a 

self-governance compact, id. § 5383(c)(1)(B); how IHS may

“divide” program “administration,” id. § 5324(i)(1); or how it may

calculate “tribal share[s],” id. § 5386(g)(2)(A). We need not address

how much discretion these terms give IHS in deciding how to 

allocate control of and funding for multi-tribe programs.
13

IHS’s concerns about fairness to the Winnemucca are 

misplaced. Members of that tribe historically received care at 

other facilities; only two members of the tribe used the clinic 

in the entire year before the Fort McDermitt began to operate 

it; members of thirty-three other tribes used the clinic during

that same period, without any suggestion that any of those

tribes could veto the Fort McDermitt’s compact; and the 

Winnemucca, despite now having a recognized governing body 

and thus the legal capacity to act as a tribe, have lodged no 

objection to the Fort McDermitt’s position. Moreover, the 

Winnemucca are not without protections going forward. For 

one thing, they could seek to set aside IHS’s transfer of clinic 

operations to the Fort McDermitt, on the theory that it violated 

either section 5304(l) or section 5383(c)(1)(B). Alternatively, 

they could seek to form an inter-tribal consortium with the Fort 

McDermitt to jointly run the clinic. In any event, the 

Winnemucca may continue to use the clinic on the same terms 

as the Fort McDermitt. 42 C.F.R. § 136.12(a).

In closing, we note that there is a good reason why ISDA 

matches program funding to program operations: by granting 

each self-governing tribe what IHS “would have otherwise 

provided” for programs run by the tribe, section 5325(a)(1) 

guarantees the programs a proxy for adequate funding. The 

same is not true under IHS’s reading of ISDA, which, in cases 

like this one, would permit the agency to give clinics fewer 

resources than what it had previously deemed necessary to run

them itself.

* * * *

To recap, the secretarial amount under section 5325(a)(1) 

depends on the portions of programs that a tribe operates under 

a self-determination contract or self-governance compact. And 

because the Fort McDermitt are now responsible for operating
14

the entire clinic, the tribe is entitled to all the funding that IHS 

would have otherwise provided for its operation, without any 

deduction based on tribal shares. We affirm the district court 

on this issue.4

III

We now address whether the secretarial amount must 

include the value of Medicare and Medicaid reimbursements

that IHS previously had collected on behalf of the Fort 

McDermitt, even though the tribe now collects the

reimbursements directly. The Fort McDermitt argue that the 

secretarial amount includes these reimbursements because, had 

they not entered into a self-governance compact, IHS would 

have provided them with the reimbursements. We disagree.

5

To begin, the secretarial amount reflects what IHS would 

otherwise have “provided” for clinic operations, but IHS does 

not “provide” Medicare and Medicaid reimbursements within 

the ordinary meaning of that term. As noted above, to 

4 Given this disposition, we do not reach the Fort McDermitt’s 

alternative argument that the Winnemucca, whose members used the 

clinic only twice in one year, lack any tribal share in it.

5 The Fort McDermitt argue that IHS forfeited this objection by 

failing to raise it in its rejection letter. But although the letter agreed 

to make a “one-time transfer” of pending Medicare and Medicaid 

reimbursements, it also refused to make those reimbursements

“recurring” in the future, thereby preserving the objection that IHS 

raises here. J.A. 122. The tribe further argues that the rejection letter 

is deficient for failing to identify the specific amount of funding 

associated with this issue. But ISDA requires the agency to show 

only that “the amount of funds proposed in the final offer exceeds 

the applicable funding level to which the Indian tribe is entitled.” 25 

U.S.C. § 5387(c)(1)(A)(i). The merits of the Medicare and Medicaid 

reimbursement issue are thus properly before us.
15

“provide” means to “supply” or “contribute.” Provide, Black’s 

Law Dictionary, supra. Tribes are “entitled” to those payments 

under the Social Security Act, 25 U.S.C. § 1641(c)(1)(A), and 

can collect them directly from the Centers for Medicare and 

Medicaid Services, id. § 1641(d)(1). Moreover, when IHS 

collects the payments for a tribe, it functions only as a trustee, 

holding the payments in a “special fund” and spending them

under specific statutory criteria. Id. § 1641(c)(1)(A), (B). 

Either way, CMS supplies and contributes the payments.

ISDA also expressly excludes third-party income from the 

secretarial amount. Section 5388(j) provides that “all Medicare

[or] Medicaid ... income earned by an Indian tribe shall be 

treated as supplemental funding to that negotiated in the 

funding agreement.” 25 U.S.C. § 5388(j). A “supplement” is 

“[s]omething added to complete a thing, make up for a 

deficiency, or extend or strengthen the whole.” Supplement, 

American Heritage Dictionary (4th ed. 2000). Because income 

from third parties is “supplemental” to the funds negotiated in 

a funding agreement, it must be separate from those funds. And 

because the negotiated funds include the secretarial amount, 

section 5388(j) requires IHS to calculate that amount separately 

from third-party income.

The district court reasoned that section 5388(j) concerns

only how funds are “transferred after the parties have entered 

into the funding agreement.” Fort McDermitt Paiute, 2019 

WL 4711401, at *8. But section 5388(j) designates all thirdparty income as supplemental, without any limit to postformation transfers as opposed to pre-formation negotiations. 

Moreover, it states that third-party income may not result in 

“any offset or reduction in the amount of funds the Indian tribe 

is authorized to receive”—and thus specifically controls the 

terms of funding agreements. Because section 5388(j) thus 

governs the negotiation of funding agreements, its designation 
16

of third-party income as “supplemental” excludes that income

from the secretarial amount.

The structure of IHCIA reinforces this conclusion. As 

described above, IHCIA allows tribes to receive third-party 

income in two ways. IHS can collect that income on tribes’ 

behalf, hold it in a “special fund,” and then disburse it under 

specific statutory criteria. 25 U.S.C. § 1641(c)(1)(A), (B). Or, 

tribes participating in self-governance may elect to bill for and 

receive the income directly. Id. §§ 1603(25), 1641(d)(1). 

IHCIA makes these two methods mutually exclusive; when a 

tribe elects to collect the income directly, the provisions 

allowing IHS to collect and disburse the funds on the tribe’s 

behalf “shall not apply,” and the tribe ceases to be eligible for

payments from its IHS “special fund” for services provided 

“during the period of such election.” Id. § 1641(c)(2). IHCIA 

thus plainly bars tribes from recovering twice for services 

provided to Medicare and Medicaid beneficiaries. And we 

decline to adopt a strained interpretation of ISDA that would 

allow precisely that double-dipping.

As a last resort, the Fort McDermitt invoke the interpretive 

canon that statutes must “be construed liberally in favor of the 

Indians.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 

766 (1985). As codified in ISDA, the canon applies only when 

a statute is ambiguous. 25 U.S.C. § 5392(f). For the reasons 

set forth above, we conclude that ISDA’s text and structure 

unambiguously exclude the value of Medicare and Medicaid 

reimbursements from the secretarial amount.

IV

The final issue is one of remedy. Because we affirm the 

district court on the tribal-share issue, the Fort McDermitt are

entitled to receive funds that IHS withheld on that basis. 

However, the record does not clearly identify that amount. In 
17

the proceedings below, the district court remarked that the 

parties had not identified “the applicable funding amount 

associated with each legal issue in dispute.” ECF 24, at 4–5. 

The parties responded by stipulating that the secretarial amount 

should increase by $551,279 if the Fort McDermitt prevail on 

both issues before us. But there was no stipulation as to the 

appropriate additional amount if the tribe prevailed on only the 

tribal-share issue. Because the record is unclear on that point, 

we remand the case for the district court to resolve it in the first 

instance.

V

We affirm in part, reverse in part, and remand for further 

proceedings consistent with this opinion. 

So ordered.