United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2021 Decided August 24, 2021

No. 19-5005

COOK INLET TRIBAL COUNCIL, INC.,

APPELLEE

v.

EVANGELYN DOTOMAIN, DIRECTOR, ALASKA AREA OFFICE,

U.S. INDIAN HEALTH SERVICE, ET AL.,

APPELLANTS

Consolidated with 20-5192

Appeals from the United States District Court

for the District of Columbia

(No. 1:14-cv-01835)

John S. Koppel, Attorney, U.S. Department of Justice, 

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

Jeffrey Bossert Clark, Acting Assistant Attorney General at the 

time the brief was filed, and Daniel Tenny, Attorney. Derek S. 

Hammond and R. Craig Lawrence, Assistant U.S. Attorneys,

entered appearances. 
2

Rebecca A. Patterson argued the cause for appellee. With 

her on the brief were Lloyd B. Miller and Whitney A. Leonard.

Before: HENDERSON, KATSAS and WALKER, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge WALKER.

WALKER, Circuit Judge: Cook Inlet Tribal Council runs 

an alcohol recovery program under a self-determination 

contract with Indian Health Service. The Council says its 

increased facility costs qualify as contract support costs 

pursuant to 25 U.S.C. § 5325(a).

We disagree. 

I

Cook Inlet Tribal Council represents eight federally 

recognized tribes in Alaska. In 1992, it opened an alcohol 

recovery center in Anchorage. The program started with a 

residential treatment center but expanded over the years to 

include several outpatient facilities.

The Council runs its recovery program through a contract 

with Indian Health Service under the Indian SelfDetermination and Education Assistance Act. 25 U.S.C. 

§ 5321. The Act authorizes tribes to provide health services 

otherwise run by the government. In exchange, the 

government pays for the program. See Menominee Indian 

Tribe of Wisconsin v. United States, 577 U.S. 250, 252 (2016) 

(“tribes may enter into ‘self-determination contracts’ with 

federal agencies to take control of a variety of federally funded 

programs”). 
3

The Act requires the government to reimburse contracting 

tribes for two categories of health care expenses. First, Indian 

Health Service must pay the secretarial amount — a negotiated 

sum that can’t be less than what Indian Health Service would 

have spent on the program if it directly provided the health 

care. 25 U.S.C. § 5325(a)(1); see Salazar v. Ramah Navajo 

Chapter, 567 U.S. 182, 186 (2012); see also Menominee Indian 

Tribe of Wisconsin, 577 U.S. at 252 (“A contracting tribe is 

eligible to receive the amount of money that the government 

would have otherwise spent on the program . . . .”).

Second, Indian Health Service must pay for contract 

support costs. Pub. L. No. 100-472, § 205, 102 Stat. 2285, 

2292-94 (1988) (codified at 25 U.S.C. § 5325). These funds

reimburse tribes for contract compliance expenses Indian 

Health Service doesn’t incur (and therefore doesn’t pay) when 

it runs the program. In general, contract support costs cover 

expenses not contemplated by the secretarial amount, like 

workers’ compensation premiums and some overhead 

expenses. 25 U.S.C. § 5325(a)(2)–(3); Cherokee Nation of 

Oklahoma v. Leavitt, 543 U.S. 631, 635 (2005). With the 

secretarial amount and the added contract support costs, the 

government is required to fully fund the contracted-for health 

program run by a tribe.

In 1992, Indian Health Service agreed to pay the Council 

$150,000 to run the alcohol recovery program. Of that total, 

$11,838.50 paid for facility costs. The Council and the 

government agreed that those facility costs — which included

rent and a partial salary for a facilities coordinator — were 

expenses Indian Health Service would have incurred if it ran 

the recovery center. So Indian Health Service paid the facility 

costs from the secretarial amount.
4

The record does not show how much the Council received

for facility costs in 2014. It does, however, show an 

approximately thirteen-fold increase in total funding since 

1992. In 2014, the Council received approximately $2,000,000

from Indian Health Service. 

In 2014, the Council proposed amending the contract to 

add more than $400,000 in annual facility costs. The Council 

insisted these funds be paid as contract support costs to 

supplement any secretarial funds already going towards facility 

costs. For reasons unexplained to this court, the Council did 

not request an increase in the annual secretarial amount to 

cover the unfunded facility costs.

The Council sued Indian Health Service after it denied the 

Council’s proposal, and the district court awarded judgment to 

the Council.

The district court began by finding ambiguity in the

statutory provision defining contract support costs. Cook Inlet 

Tribal Council v. Mandregan, 348 F. Supp. 3d 1, 9-12 (D.D.C. 

2018) (citing 25 U.S.C. § 5325(a)(2)). It then applied the 

Indian Canon to construe that purported ambiguity in favor of 

the Council, holding that its facility costs could be contract 

support costs. 348 F. Supp. 3d at 12. It later ordered Indian 

Health Service to pay $302,000 to the Council. Cook Inlet 

Tribal Council v. Mandregan, No. 1:14-cv-1835 (D.D.C. Apr. 

29, 2020) (order).

The government appeals. We have jurisdiction, 28 U.S.C. 

§ 1291, and our review is de novo. Stoe v. Barr, 960 F.3d 627, 

629 (D.C. Cir. 2020). 
5

II

The Indian Self-Determination and Education Assistance 

Act does not require the government to pay contract support 

costs for expenses Indian Health Service normally pays when 

it runs a health program. Those expenses are eligible for 

reimbursement only under the secretarial amount. Because the 

facility costs here are expenses normally incurred by the 

agency, we reverse the district court.

A

As in all cases of statutory interpretation, we start with the

controlling statute’s text. Van Buren v. United States, 141 S.

Ct. 1648, 1654 (2021). That brings us to 25 U.S.C. 

§ 5325(a)(2), which defines contract support costs. It states, in 

part:

There shall be added to [the secretarial amount] 

contract support costs which shall consist of 

an amount for the reasonable costs for activities 

which must be carried on by a tribal 

organization as a contractor to ensure 

compliance with the terms of the contract and 

prudent management, but which —

(A) normally are not carried on by the 

respective Secretary in his direct 

operation of the program. . . .

25 U.S.C. § 5325(a)(2)(A) (emphases added).

1

 

1 The parties don’t discuss § 5325(a)(2)(B). See id. (adding costs for 

activities which “are provided by the Secretary in support of the 

contracted program from resources other than those under contract”).
6

Put more succinctly, the government must pay contract 

support costs for the “activities” required by the contracted-for 

program — but only if those activities “normally are not carried 

on by” the government agency that would otherwise operate 

the program. That’s because normal expenses are already

reimbursed under the secretarial amount. Id. § 5325(a)(1).

The “activities” in this case concern the provision of

facilities. In 1992, that included rent and part of the salary of a 

facilities coordinator. If the agency normally incurs these costs 

when it runs a program, those costs are not contract support 

costs. 

Here, it is self-evident that the agency normally pays for 

space and staff when it runs a health care center, especially one 

with in-patient services. Whether or not a health center is 

government-run, patients need a place to be treated. And they 

need medical and support staff to treat them and maintain the 

space. The staff, in turn, needs a place to work. And at the risk 

of belaboring the obvious, all of the above — staff, workspace, 

and patient rooms — costs money whether or not the program 

is government-run. 

Perhaps some exceptions or nuances may arise in other 

cases, but those are not at issue here. The Council itself 

considered the facility costs within the secretarial amount when 

it first entered into its contract with the government in 1992.

2

2 The Council says that some categories of expenses will cost more 

for a tribe to provide than the government, and that contract support 

costs are intended to cover this difference. See Appellee’s Br. 44 

n.17; Oral Arg. Tr. 18-19. But that’s not this case. The Council has 

directed us to no evidence that any of the facility costs here — in 

particular, rent and salaries — would cost more for the Council to 
7

B

On appeal, the Council attempts to escape the limits of 

§ 5325(a)(2) by relying on § 5325(a)(3). But § (a)(3) does not 

expand the types of contract support costs made available to 

tribes by § (a)(2). Instead, § (a)(3) merely divides into two the 

contract support costs already defined by § (a)(2).3 

provide. We thus need not consider whether cost differentials of the 

sort flagged by the Council may be addressed as contract support 

costs under § 5325(a)(2) or in negotiations over the secretarial 

amount under § 5325(a)(1). 

3 Sections 5325(a)(1), (a)(2), and (a)(3)(A) provide: 

(1) The amount of funds provided under the terms 

of self-determination contracts entered into pursuant 

to this chapter shall not be less than the appropriate 

Secretary would have otherwise provided for the 

operation of the programs or portions thereof for the 

period covered by the contract, without regard to 

any organizational level within the Department of 

the Interior or the Department of Health and Human 

Services, as appropriate, at which the program, 

function, service, or activity or portion thereof, 

including supportive administrative functions that 

are otherwise contractable, is operated.

(2) There shall be added to the amount required by 

paragraph (1) contract support costs which shall 

consist of an amount for the reasonable costs for 

activities which must be carried on by a tribal 

organization as a contractor to ensure compliance 

with the terms of the contract and prudent 

management, but which —
8

Specifically, § (a)(3) divides contract support costs into

“direct program expenses,” 25 U.S.C. § 5325(a)(3)(A)(i), and 

“any additional administrative or other expense incurred” in 

operating the program, id. § 5325(a)(3)(A)(ii). Direct expenses 

include contract support costs like “workers’ compensation and 

unemployment taxes.” Swinomish Indian Tribal Community v. 

Becerra, 993 F.3d 917, 918 (D.C. Cir. 2021). Indirect expenses 

include contract support costs like “audits and computer 

(A) normally are not carried on by the respective 

Secretary in his direct operation of the program; or

(B) are provided by the Secretary in support of the 

contracted program from resources other than 

those under contract.

(3)(A) The contract support costs that are eligible 

costs for the purposes of receiving funding under 

this chapter shall include the costs of reimbursing 

each tribal contractor for reasonable and allowable 

costs of —

(i) direct program expenses for the operation of the 

Federal program that is the subject of the contract; 

and

(ii) any additional administrative or other expense 

incurred by the governing body of the Indian Tribe 

or Tribal organization and any overhead expense 

incurred by the tribal contractor in connection with 

the operation of the Federal program, function, 

service, or activity pursuant to the contract,

except that such funding shall not duplicate any 

funding provided under subsection (a)(1) of this 

section.
9

systems.” Id.; see also Cherokee Nation of Oklahoma v. 

Leavitt, 543 U.S. 631, 635 (2005) (indirect expenses may 

include “special auditing or other financial management 

costs”). 

But nothing about § (a)(3) changes the limits on contract 

support costs provided by § (a)(2). An expense can be neither 

a direct contract support cost nor an indirect contract support 

cost if it is not, as defined by § (a)(2), a contract support cost. 

And under § (a)(2), no expense is a contract support cost if it —

like facility costs — is “normally” paid by the agency that 

would otherwise administer the program directly. See FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(“A court must . . . interpret the statute as a symmetrical and 

coherent regulatory scheme, and fit, if possible, all parts into 

an harmonious whole.”) (cleaned up). Moreover, the word 

“allowable” in § (a)(3) reinforces this point. 25 U.S.C. 

§ 5325(a)(3)(A). By its terms, § (a)(3) includes “reasonable 

and allowable costs of” direct program expenses and additional 

administrative or overhead expenses. Id. If “allowable” 

simply meant allowable under § (a)(3), the word would do 

nothing. So “allowable” must mean allowable under some 

other law besides § (a)(3). It thus means allowable under 

§ (a)(2), which is the nearest reasonable referent.

The Council says this reading renders superfluous the nonduplication provision in § (a)(3), which says contract support 

costs “shall not duplicate any funding provided under 

subsection (a)(1) of this section [i.e., the secretarial amount].” 

Id. § 5325(a)(3)(A). But it’s far more faithful to the statutory 

scheme to view § (a)(3)’s non-duplication provision as 

reinforcing the rest of the statute in a belt-and-suspenders 

manner, rather than writing § (a)(2)’s “normally” provision 

completely out of the statute — as the Council’s approach 
10

requires — and replacing the “normally” provision with an 

understanding that allows its exact opposite.

The Council fears today’s result will allow the government 

to underfund tribal health programs. But when a tribe contracts 

to run a program that an agency would otherwise provide, the 

agency remains bound to pay (1) what it would have paid, and 

(2) contract support costs for necessary expenses the agency

would not “normally” incur. Id. § 5325(a)(2)(A). If a tribe’s 

secretarial amount does not cover the same facility costs

“normally” incurred by the agency, the tribe’s recourse is 

simple: Sue for a larger secretarial amount. 

* * *

The district court held that the Council’s facility costs are 

contract support costs. Because they are not, we reverse the 

district court’s order granting summary judgment to the 

Council, vacate the court’s judgment awarding the Council 

$302,000, and remand for entry of judgment to Indian Health 

Service.