(Slip Opinion)              OCTOBER TERM, 2023                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

   BECERRA, SECRETARY OF HEALTH AND HUMAN
   SERVICES, ET AL. v. SAN CARLOS APACHE TRIBE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE NINTH CIRCUIT

      No. 23–250.      Argued March 25, 2024—Decided June 6, 2024*
The Indian Self-Determination and Education Assistance Act, 

 et seq., enables an Indian tribe to enter into a “self-de-
  termination contract” with the Indian Health Service to assume re-
  sponsibility for administering the healthcare programs that IHS would
  otherwise operate for the tribe. §5321(a)(1). When IHS administers
  such programs itself, it funds its operations through congressional ap-
  propriations and third-party insurance payments. Healthcare pro-
  grams administered by a tribe under a self-determination contract
  have a parallel funding structure. First, IHS must provide to the tribe
  the Secretarial amount, which “shall not be less” than the congression-
  ally appropriated amount that IHS would have used to operate such
  programs absent the self-determination contract. §5325(a)(1). Second,
  like IHS when it runs the healthcare programs, a contracting tribe can
  collect revenue from third-party payers like Medicare, Medicaid, and
  private insurers. See 42 U. S. C. §§1395qq(a), 1396j(a); 25 U. S. C.
  §1621e(a). These third-party funds are called “program income” and
  must be used by the tribe “to further the general purposes of the con-
  tract” with IHS. §5325(m)(1).
     The Secretarial amount and program income, however, do not place
  a contracting tribe on equal footing with IHS. That is because the tribe
  must incur certain overhead and administrative expenses that IHS
  does not incur when it runs the healthcare programs. To remedy this
  funding shortfall, Congress amended ISDA to require IHS to pay the

——————
  * Together with No. 23–253, Becerra v. Northern Arapaho Tribe, on
certiorari to the United States Court of Appeals for the Tenth Circuit.
2              BECERRA v. SAN CARLOS APACHE TRIBE

                                   Syllabus

    tribe “contract support costs” to cover such “reasonable costs for activ-
    ities which must be carried on by a [tribe] as a contractor to ensure
    compliance with the terms of the [self-determination] contract.”
    §5325(a)(2). Contract support costs eligible for repayment include “di-
    rect program expenses for the operation of the Federal program” and
    “any additional administrative or . . . overhead expense incurred by
    the [tribe] in connection with the operation of the Federal program,
    function, service, or activity pursuant to the contract.” §5325(a)(3)(A).
    Such costs are limited, however, to those “directly attributable to” self-
    determination contracts. §5326. And no funds are available for “costs
    associated with any contract . . . entered into between [a tribe] and any
    entity other than [IHS].” Ibid.
       These cases involve self-determination contracts between IHS and
    two tribes—the San Carlos Apache Tribe and the Northern Arapaho
    Tribe. Both Tribes sued the Government for breach of contract, con-
    tending that although they used the Secretarial amount and program
    income to operate the healthcare programs they assumed from IHS
    under their self-determination contracts, IHS failed to pay the contract
    support costs they incurred by providing healthcare services using pro-
    gram income. The Ninth and Tenth Circuits concluded that each Tribe
    was entitled to reimbursement for such costs.
Held: ISDA requires IHS to pay the contract support costs that a tribe
 incurs when it collects and spends program income to further the func-
 tions, services, activities, and programs transferred to it from IHS in a
 self-determination contract. Pp. 8–18.
    (a) Sections 5325(a)(2) and (a)(3)(A) peg contract support costs to the
 requirements of a self-determination contract. Section 5325(a)(2) de-
 fines contract support costs as “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.” If a tribe therefore
 must collect and spend program income to ensure compliance with its
 contract, then the reasonable administrative and overhead costs it in-
 curs in doing so are “contract support costs.”
    Each self-determination contract entered into under ISDA incorpo-
 rates Section 5325(m)(1), which requires a contracting tribe to use
 “program income earned . . . in the course of carrying out a self-deter-
 mination contract” to “further the general purposes of the contract.”
 See §§5329(a)(1), (c). The purposes of the contract are the “functions,
 services, activities, and programs” transferred from IHS to the tribe in
 its contract. See §5329(c) (requiring a “purpose” clause listing the
 “functions, services, activities, and programs” to be transferred from
 IHS to the tribe). When the tribe uses program income to further the
 functions, services, activities, and programs it assumed from IHS and
 incurs reasonable costs for required support services, those costs are
                    Cite as: 

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                               Syllabus

“contract support costs” under Section 5325(a)(2).
   Those costs are also “eligible costs for the purposes of receiving fund-
ing” under Section 5325(a)(3)(A), which specifies that both direct and
indirect contract support costs may be reimbursed. Direct contract
support costs are “direct program expenses for the operation of the
Federal program that is the subject of the contract.” §5325(a)(3)(A)(i).
When a tribe spends program income to further the functions, services,
activities, and programs that it agrees to administer in IHS’s stead
under its self-determination contract and incurs direct contract sup-
port costs, those costs are incurred “for the operation of the Federal
program that is the subject of the contract” and are thus eligible for
reimbursement. Indirect contract support costs are “any additional
administrative or other expense incurred by [a tribe] in connection
with the operation of the Federal program, function, service, or activity
pursuant to the contract.” §5325(a)(3)(A)(ii). When a tribe spends pro-
gram income to further the functions, services, activities, and pro-
grams that it assumes from IHS and incurs indirect contract support
costs, those costs are incurred “in connection with the operation of the
Federal program, function, service, or activity pursuant to the con-
tract” and are thus eligible for reimbursement.
   The self-determination contracts of the Tribes require them to col-
lect program income. Once the Tribes collect such income, they are
contractually required to use it. The Tribes aver that they have col-
lected and spent program income as required by their contracts to
carry out the operations IHS transferred to them. The reasonable di-
rect and indirect contract support costs they incurred as a result are
eligible for repayment under Section 5325(a) because they were in-
curred to “ensure compliance with the terms of the contract,”
§5325(a)(2), and “for the operation of” and “in connection with the op-
eration of” the “Federal program” they assumed from IHS,
§5325(a)(3)(A). Pp. 8–12.
   (b) The limitations in Section 5326 do not preclude payment of costs
incurred by the required spending of program income under a self-de-
termination contract. When a tribe spends program income to further
the healthcare programs it assumes from IHS and incurs contract sup-
port costs, the costs it incurs are “directly attributable” to the self-de-
termination contract. And such costs are not “associated with” any
contract between the tribe and a third party. They are instead “asso-
ciated with” the contract that requires the work that generates the
support costs—the self-determination contract. The history of Section
5326 confirms this analysis. Pp. 12–14.
   (c) The Government’s arguments to the contrary find no support in
ISDA’s text. Pp. 14–16.
      (1) Contrary to the Government’s assertion, nothing in Section
4              BECERRA v. SAN CARLOS APACHE TRIBE

                                  Syllabus

    5325(a)(2) suggests that contract support costs are limited to programs
    funded by the Secretarial amount. In fact, Section 5325(a)(2) defines
    contract support costs as tied to “the terms of the contract,” which re-
    quire tribes to fund programs with program income. Nor does the Gov-
    ernment cite any statutory text to support its assertion that the con-
    tract support costs of spending program income are ineligible for
    repayment under Section 5325(a)(3)(A) because the “Federal program”
    comprises only the Secretarial amount. That provision refers to eligi-
    ble costs for the operation of the “Federal program” without limiting
    that program to the Secretarial amount. Pp. 14–15.
            (2) The Government also argues that tribes should not get con-
    tract support costs for spending program income because that would
    give them flexibility to spend such income on a broader range of activ-
    ities than IHS can. But the differences cited by the Government do
    not withstand scrutiny. First, the difference between IHS’s and a
    tribe’s ability to offer healthcare services to non-Indians is irrelevant
    because both must make the same determination before either can of-
    fer such services: Whether such services will result in a denial or dim-
    inution of services to eligible Indians. §§1680c(c)(1)(B), (c)(2). Next,
    although IHS must “first” use Medicare and Medicaid proceeds to en-
    sure compliance with those programs, a tribe must also use such pro-
    ceeds to ensure compliance with those programs. §§1641(c)(1)(B),
    (d)(2)(A). Finally, although tribes might have greater ability to expand
    their operations because they, unlike IHS, are not prohibited from us-
    ing Medicare and Medicaid proceeds to construct new facilities, to the
    extent that a tribe expands its programs beyond the “Federal pro-
    gram,” IHS would not have to pay contract support costs for the tribe’s
    new programs. Pp. 15–16.
       (d) A contrary reading of the statute would impose a penalty on
    tribes for opting in favor of greater self-determination. Contract sup-
    port costs are necessary to prevent a funding gap between tribes and
    IHS. If IHS does not cover those costs to support a tribe’s expenditure
    of program income, the tribe would have to divert some program in-
    come to pay such costs, or it would have to pay them out of its own
    pocket. Either way, it would face a penalty for pursuing self-determi-
    nation, contrary to the policy underlying ISDA. Pp. 17–18.
No. 23–250, 

; and No. 23–253, 

, affirmed.

   ROBERTS, C. J., delivered the opinion of the Court, in which SO-
TOMAYOR, KAGAN, GORSUCH, and JACKSON, JJ., joined.    KAVANAUGH, J.,
filed a dissenting opinion, in which THOMAS, ALITO, and BARRETT, JJ.,
joined.
                        Cite as: 

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                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     United States Reports. Readers are requested to notify the Reporter of
     Decisions, Supreme Court of the United States, Washington, D. C. 20543,
     [email protected], of any typographical or other formal errors.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                           Nos. 23–250 and 23–253
                                   _________________


  XAVIER BECERRA, SECRETARY OF HEALTH AND
      HUMAN SERVICES, ET AL., PETITIONERS
23–250               v.
          SAN CARLOS APACHE TRIBE
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT



  XAVIER BECERRA, SECRETARY OF HEALTH AND
      HUMAN SERVICES, ET AL., PETITIONERS
23–253               v.
          NORTHERN ARAPAHO TRIBE
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE TENTH CIRCUIT
                                 [June 6, 2024]

  CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
  The Indian Self-Determination and Education Assistance
Act (ISDA), 

, 

 et seq., enables
an Indian tribe to enter into contracts with the Indian
Health Service (IHS) to assume responsibility for adminis-
tering the healthcare programs that IHS would otherwise
operate for the tribe. To fund the tribe’s administration of
such programs, IHS must turn over to the tribe the appro-
priated funds the agency would have used to operate the
programs, as well as an additional sum to cover “contract
support costs.” §5325(a). These costs are administrative
2          BECERRA v. SAN CARLOS APACHE TRIBE

                       Opinion of the Court

expenses incurred by the tribe that IHS does not incur
when it runs the programs, typically because the agency
can rely on existing Government resources unavailable to
the tribe. The tribe may also collect funds due from third
parties—such as Medicare, Medicaid, and private insur-
ers—to help finance the programs. The question before us
is whether ISDA requires IHS to pay contract support costs
to support tribal programs funded by such third-party pay-
ments.
                                I
   In 1975, Congress passed ISDA to promote “effective and
meaningful participation by the Indian people in the plan-
ning, conduct, and administration” of federal healthcare
programs. §5302(b). Such programs provide, for instance,
hospitals, dental clinics, and ambulance services. After
ISDA’s enactment, a tribe can either continue receiving
healthcare services directly from the Federal Government
through IHS, or it can assume responsibility for adminis-
tering those services itself. If a tribe elects the latter route,
ISDA obligates IHS to enter into a “self-determination con-
tract” with the tribe. §5321(a)(1). Under this contract, the
tribe receives funds to operate federal healthcare programs
that IHS previously operated for the tribe’s members.
   When IHS administers healthcare programs itself, it
funds its operations through congressional appropriations
and third-party insurance payments. Historically, IHS’s
funding came from “moneys as Congress may from time to
time appropriate.” §13. But in 1976 Congress enacted the
Indian Health Care Improvement Act (IHCIA), 

, 

 et seq., to create greater parity be-
tween IHS and other healthcare providers. After IHCIA,
when IHS provides healthcare services to a tribal member
with Medicare, Medicaid, or private insurance coverage,
IHS may collect the funds due from those third-party insur-
ers for the services provided to the insured tribal member.
                 Cite as: 

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                     Opinion of the Court

See 42 U. S. C. §§1395qq(a), 1396j(a); 25 U. S. C. §1621e(a).
Congress specified that third-party collections “shall not be
considered in determining appropriations” for IHS. 

(a). Third-party payments now represent a
“significant portion” of IHS’s tribal healthcare budget—
over $1.8 billion in 2024 alone. Dept. of Health and Human
Servs., Fiscal Year 2024, Indian Health Service: Justifica-
tion for Estimates for Appropriations Committees, p. CJ–
193 (2023).
   Healthcare programs administered by tribes under self-
determination contracts have a parallel funding structure.
First, IHS provides to the tribes the appropriated funds
that IHS would have used to operate such programs absent
the self-determination contract. ISDA specifies that this
sum—called the Secretarial amount—“shall not be less”
than the Secretary of Health and Human Services would
have otherwise allocated for the operation of the programs
during the period covered by the contract. §5325(a)(1).
   Second, like IHS when it runs the healthcare programs,
contracting tribes can collect revenue from third-party pay-
ers like Medicare, Medicaid, and private insurers. See 42
U. S. C. §§1395qq(a), 1396j(a); 25 U. S. C. §1621e(a). ISDA
calls the funds received from third-party payers “program
income” and requires that tribes use those funds “to further
the general purposes of the contract” with IHS.
§5325(m)(1). Just as third-party collections are not consid-
ered in determining IHS’s appropriations, Congress has
specified that a tribe’s program income “shall not be a basis
for reducing” the Secretarial amount. §5325(m)(2); see
§1641(a).
   The Secretarial amount from IHS and program income
from third-party payers do not, however, place contracting
tribes on equal footing with IHS. Tribes incur overhead and
administrative expenses that IHS does not incur when it
runs the healthcare programs. For example, as a federal
agency, IHS does not have to pay state-mandated workers’
4          BECERRA v. SAN CARLOS APACHE TRIBE

                      Opinion of the Court

compensation on the salaries of its doctors—but the tribes
do. IHS can also rely on other federal agencies, such as the
Office of Personnel Management, for general administra-
tive functions—but the tribes cannot. They have to manage
on their own dime the auditing, insurance, financial, per-
sonnel, and other management systems associated with
providing healthcare under self-determination contracts.
    To address this systematic shortfall in funding, Congress
amended ISDA to account for “contract support costs.” IHS
is now required to cover such “reasonable costs for activities
which must be carried on by a [tribe] as a contractor to en-
sure compliance with the terms of the [self-determination]
contract.” §5325(a)(2). Contract support costs eligible for
repayment include “direct program expenses for the opera-
tion of the Federal program” and “any additional adminis-
trative or . . . overhead expense incurred by the [tribe] in
connection with the operation of the Federal program, func-
tion, service, or activity pursuant to the contract.”
§5325(a)(3)(A). These categories of contract support costs
are recoverable so long as they do not duplicate any funding
provided through the Secretarial amount. Ibid. Contract
support costs are limited, however, to “costs directly at-
tributable to” self-determination contracts. §5326. And no
funds are available for “costs associated with any contract
. . . entered into between [a tribe] and any entity other than
[IHS].” Ibid.
                             II
  These cases involve self-determination contracts between
the IHS and two tribes: The San Carlos Apache Tribe and
the Northern Arapaho Tribe.
                           A
  The San Carlos Apache Tribe is located on the San Carlos
Apache Indian Reservation, which was established in 1871
and encompasses 1.8 million acres spanning three counties
                  Cite as: 

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                      Opinion of the Court

in southeastern Arizona. In 2011, the Tribe entered into a
three-year self-determination contract with IHS. The Tribe
agreed to assume control of and manage the Community
Health Representative Program, Emergency Medical Ser-
vices Program, Alcohol and Substance Abuse Program, Be-
havioral Health Services Program, Teen Wellness Program,
and Health and Human Services. App. 52. In accordance
with the ISDA “model agreement” set forth in Section
5329(c), the Tribe’s contract incorporated “[t]he provisions
of title I of [ISDA],” i.e., the provisions applicable to self-
determination contracts, and specified that “[e]ach provi-
sion of [ISDA] and each provision of this Contract shall be
liberally construed for the benefit of the [Tribe].” 

.
   In separate annual funding agreements incorporated into
the contract, the parties specified the amount of funds due
from IHS to the Tribe each year. The funding agreements
included a Scope of Work attachment that described the ac-
tivities the contract required the Tribe to perform. See 

at 99–102 (FY 2013 Scope of Work). The required activities
included, among other things, “[m]aintain[ing] an efficient
billing system[ ] to maximize third party revenues” from
“Medicare, [Medicaid], Private Insurance, and IHS Con-
tract Health Services” and “[g]enerat[ing] maximum third
party revenues for all eligible patient transports.” 

 at
101–102.
   In 2019, the Tribe sued the Government for breach of con-
tract. As relevant, the Tribe contended that although it
used both the Secretarial amount and program income to
operate its healthcare programs under the self-determina-
tion contract, IHS failed to pay contract support costs for
the Tribe’s healthcare services to the extent they were
funded by program income. 

 at 10–11. The Tribe sought
roughly $3 million in unpaid contract support costs for the
three-year contract. 

 at 16–17.
   The District Court dismissed the Tribe’s claim, observing
that ISDA’s contract support cost provisions in Section
6          BECERRA v. SAN CARLOS APACHE TRIBE

                     Opinion of the Court

5325(a) do not mention third-party revenue. San Carlos
Apache Tribe v. Azar, 

, 934–935 (Ariz.
2020). The Ninth Circuit reversed and remanded. 

, 1245 (2022). It reasoned that the Tribe’s self-de-
termination contract incorporated ISDA, which required
the Tribe to spend third-party program income on
healthcare. 

 at 1241–1242. Those portions of the Tribe’s
healthcare programs funded by third-party income thus
constituted “activities which must be carried on by [the
Tribe] as a contractor to ensure compliance with the terms
of the contract,” §5325(a)(2), and the contract support costs
associated with those activities were incurred “in connec-
tion with the operation of the Federal program,”
§5325(a)(3)(A)(ii). Id., at 1241–1242. The text of ISDA, the
Court reasoned, therefore indicated that IHS was required
to reimburse the Tribe for those costs. Id., at 1243.
   The Ninth Circuit stated that, at the very least, it could
not “conclude that §5325(a) unambiguously excludes [the]
third-party-revenue-funded portions of the Tribe’s
healthcare program from [contract-support-cost] reim-
bursement.” Ibid. (emphasis deleted). The Court was also
unable to conclude that Section 5326 “unambiguously”
meant that spending of third-party insurance receipts was
not “directly attributable” to the Tribe’s self-determination
contract. Id., at 1244. Based on these ambiguities, the
Ninth Circuit applied the Indian canon and construed the
statute in the Tribe’s favor. Id., at 1244–1245.
                            B
  The Northern Arapaho Tribe resides on the Wind River
Reservation, which covers more than 2.2 million acres in
west central Wyoming. In 2016, the Tribe entered into a
self-determination contract with IHS to assume control of
the reservation’s health division, the Wind River Family
and Community Health Care System. App. 124. In accord-
ance with the model agreement, the contract incorporated
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                       Opinion of the Court

ISDA’s Title I provisions and stated that each provision of
ISDA and of the contract must be “liberally construed for
the benefit of the [Tribe].” 

   Like the San Carlos Apache Tribe’s contract, the North-
ern Arapaho Tribe’s contract also incorporated an annual
funding agreement and a Scope of Work attachment.
Among other things, the Scope of Work specified that the
Tribe would employ experienced individuals, such as “third-
party claims specialists,” in a financial office; bill and collect
“[i]nsurance and [t]hird-[p]arty receivables”; “maintain ac-
creditation standards in order to qualify for funds through
third party-payers”; secure “Medicare and Medicaid num-
bers for billing purposes”; meet requirements for “periodic
renewal of accreditation or certification” to “maintain eligi-
bility for these funds”; use IHS’s third-party billing system
for one year to give the “Tribe time to set up its own func-
tioning . . . third-party billing system”; and conduct “[q]ual-
ity assurance and all third-party billing processes.” 

 at
184–186.
   In 2021, the Tribe sued the Government for damages and
declaratory relief. As relevant, the Tribe alleged that, pur-
suant to the contract’s requirements, it had collected third-
party revenues and spent them to provide healthcare ser-
vices, yet IHS had paid no contract support costs for ser-
vices funded by such program income. The Tribe averred
that it spent all of its program income on activities enumer-
ated in the Scope of Work, so the income was spent as “part
of the Federal program carried out by the Tribe” under the
contract. 

 at 110–111. The Tribe thus contended that
Section 5325(a)(3)(A) required payment of contract support
costs related to the spending of those funds. It sought ap-
proximately $1.5 million in damages for the two-year period
at issue. 

 at 116–117.
   The District Court dismissed the complaint. Northern
Arapaho Tribe v. Cochran, 

, 1143
(Wyo. 2021). A divided panel of the Tenth Circuit reversed,
8         BECERRA v. SAN CARLOS APACHE TRIBE

                     Opinion of the Court

with each of the three judges writing separately. 

 (2023). Judge Moritz voted to reverse because “the rel-
evant statutory provisions are ambiguous, and the Indian
canon of statutory construction resolves the ambiguity in
the Tribe’s favor.” 

. Judge Eid also voted to re-
verse, but in her view the statute unambiguously supported
the Tribe’s interpretation. 

 at 823–828 (opinion concur-
ring in judgment). Judge Baldock dissented in part. 

 at
828–830. Although he also viewed the Tribe’s contract sup-
port costs as reimbursable under Section 5325(a), he would
nonetheless have affirmed the District Court based on the
“superseding provision” of Section 5326. 

 at 828–829.
  We granted certiorari in both cases. 

 (2023).
                             III
   It is undisputed that IHS must pay the Tribes the Secre-
tarial amount and the contract support costs associated
with spending that amount to operate the healthcare pro-
grams they assumed from IHS. It is also undisputed that
the Tribes’ contracts require them to collect program in-
come and that IHS must cover the cost of collecting that
income. See Brief for Petitioners 21, 38. The only question
is whether IHS must also cover the contract support costs
the Tribes incur when they spend program income on the
healthcare programs.
                             A
  The ISDA provisions that govern the amount IHS must
pay as contract support costs under a self-determination
contract are Sections 5325(a)(2) and (a)(3)(A). Both provi-
sions peg the amount to the requirements of the contract.
Because a self-determination contract requires a tribe to
spend program income to further the programs transferred
to it in the contract, these provisions require IHS to pay
contract support costs when a tribe does so, just as IHS
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                           Opinion of the Court

must pay contract support costs to support a tribe’s spend-
ing of the Secretarial amount.
   Section 5325(a)(2) defines contract support costs as “con-
sist[ing]” of “the reasonable costs for activities which must
be carried on by a tribal organization as a contractor to en-
sure compliance with the terms of the contract.”1 The
touchstone for determining which “activities” must receive
contract support costs is therefore “the terms of the con-
tract.” It follows that if a tribe must collect and spend pro-
gram income to ensure compliance with its contract, then
the reasonable administrative and overhead costs it incurs
in doing so are “contract support costs” under Section
5325(a)(2).
   The Tribes’ contracts and ISDA plainly require them to
collect program income and spend it to comply with their
contracts. Each self-determination contract entered into
under ISDA must contain the provisions of the “model
agreement” set forth in Section 5329(c). §5329(a)(1). The
model agreement incorporates into the contract “[t]he pro-
visions of title I of [ISDA].” §5329(c) (model agreement
§1(a)(1)). Title I of ISDA includes Section 5325(m)(1), which
requires tribes to use “program income earned . . . in the
course of carrying out a self-determination contract” to “fur-
ther the general purposes of the contract.”
   The “purposes” of the contract are no mystery. The model
agreement requires that each self-determination contract
include a “purpose” clause listing the “functions, services,
activities, and programs” to be transferred from IHS to the
tribe. See §5329(c) (model agreement §1(a)(2)). Tribes are
——————
   1 Section 5325(a)(2) further specifies that contract support costs are for

activities which “(A) normally are not carried on by [IHS] in [its] direct
operation of the program; or (B) are provided by [IHS] in support of the
contracted program from resources other than those under contract.” It
is undisputed in these cases that the Tribes are seeking contract support
costs for activities that satisfy Sections 5325(a)(2)(A) and (B). Brief for

.
10         BECERRA v. SAN CARLOS APACHE TRIBE

                      Opinion of the Court

thus contractually required to use program income to fur-
ther the functions, services, activities, and programs trans-
ferred to them in their contracts. When they do so and in-
cur reasonable costs for required support services, those
costs are “contract support costs” under Section 5325(a)(2).
   In addition to satisfying the definition set forth in Section
5325(a)(2), those costs are also “eligible costs for the pur-
poses of receiving funding” under Section 5325(a)(3)(A).
That provision specifies two types of “reasonable and allow-
able costs” that may be reimbursed. First, “direct program
expenses for the operation of the Federal program that is
the subject of the contract” are covered. §5325(a)(3)(A)(i).
“Direct” contract support costs include the support ex-
penses of particular programs, such as workers’ compensa-
tion insurance for ambulance drivers or training for emer-
gency room nurses. See §5304(c). Second, “any additional
administrative or other expense incurred by the governing
body of the [tribe] 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”    are    also     eligible    for    funding.
§5325(a)(3)(A)(ii). Such “indirect” contract support costs
encompass expenses that benefit multiple programs, such
as auditing infrastructure, personnel systems, and legal
services. See §5304(f ).
   Direct contract support costs incurred when using pro-
gram income are covered because the functions, services,
activities, and programs that a tribe agrees to administer
in IHS’s stead under a self-determination contract consti-
tute the “Federal program that is the subject of the con-
tract.” When IHS administers the Federal program for the
tribe’s members, it uses congressional appropriations and
third-party insurance payments to do so. See 

, 1621e(a); 42 U. S. C. §§1395qq(a), 1396j(a). IHS must
use the third-party collections to provide healthcare ser-
vices. See 25 U. S. C. §§1621f(a)(1), 1641(c)(1)(B). So IHS’s
                 Cite as: 

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                     Opinion of the Court

Federal program comprises congressionally funded and
third-party funded healthcare. When that program is
transferred to the tribe from IHS, the tribe, rather than
IHS, becomes the entity collecting program income and
spending it on the Federal program. The tribe’s resultant
direct contract support costs are incurred “for the operation
of the Federal program that is the subject of the contract.”
Those costs are thus eligible to receive funding under Sec-
tion 5325(a)(3)(A)(i).
   Indirect contract support costs that result from spending
program income must be covered by IHS for the same rea-
son. A tribe’s self-determination contract requires it to
spend program income on furthering the Federal programs,
functions, services, or activities it assumes from IHS.
§§5325(m)(1); 5329(c). When the tribe does so—as IHS did
when it operated the program, function, service, or activ-
ity—and incurs administrative and overhead expenses,
those expenses are incurred “in connection with the opera-
tion of the Federal program, function, service, or activity
pursuant to the contract.” Such expenses are thus eligible
for reimbursement under Section 5325(a)(3)(A)(ii).
   The self-determination contracts of the San Carlos
Apache Tribe and the Northern Arapaho Tribe go to some
length to require them to collect program income by main-
taining third-party billing systems and generating maxi-
mum third-party revenues. See App. 101–102, 184–186.
Once the Tribes collect third-party income, they must use
it. §§5325(m)(1), 5329(c). The Tribes aver that they have
collected and spent program income as required by their
contracts to carry out the operations IHS transferred to
them. Id., at 9–11, 109–115; Brief for 

 (“Northern Arapaho is prepared to prove that
every penny of program income was, in fact, spent on activ-
ities enumerated in the contractual scope of work.”). The
reasonable direct and indirect contract support costs they
12           BECERRA v. SAN CARLOS APACHE TRIBE

                          Opinion of the Court

incurred as a result are eligible for repayment under Sec-
tion 5325(a) because they were incurred to “ensure compli-
ance with the terms of the contract,” §5325(a)(2), and “for
the operation of ” and “in connection with the operation of ”
the “Federal program” they assumed from IHS,
§5325(a)(3)(A).2
                               B
  IHS’s obligation to pay contract support costs is limited
by Section 5326, but the limitations of that provision do not
preclude payment of costs incurred by the required spend-
ing of program income under a self-determination contract.
Section 5326 requires that IHS pay contract support costs
“only for costs directly attributable to contracts . . . pursu-
ant to [ISDA].” It further provides that no funds “shall be
available for any contract support costs or indirect costs as-
sociated with any contract, grant, cooperative agreement,
self-governance compact, or funding agreement entered
into between [a tribe] and any entity other than [IHS].”
§5326.
  When a tribe spends program income to further the
healthcare programs it assumes from IHS and incurs con-
tract support costs, the costs it incurs are “directly attribut-
able” to the self-determination contract. Contrary to the
Government’s assertion, there is no extended chain of cau-
sation: The Tribes’ self-determination contracts require the
——————
  2 To the extent that the Tribes spent program income on activities enu-

merated in their contractual Scope of Work, they spent it on the “Federal
program” they expressly agreed to assume from IHS. Contract support
costs incurred in connection with that spending are recoverable.
§5325(a)(3)(A). Although Section 5325(m)(1)’s requirement that the
Tribes spend program income to further the “general purposes” of their
self-determination contracts allows them some flexibility in their spend-
ing, we need not decide the extent of that flexibility in these cases. The
only question before us now is whether the Tribes can recover contract
support costs at all when they collect and spend program income pursu-
ant to their contracts.
                 Cite as: 

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                     Opinion of the Court

collection of program income. See supra, at 5, 7. The self-
determination contracts then require the expenditure of
program income. And the self-determination contracts gov-
ern the activities on which that income may be spent. The
required contract support costs that result are “directly at-
tributable” to the binding terms of the contract.
   Nor are such costs “associated with” any contract be-
tween a tribe and a third party. Those costs are instead
associated with the contract referred to in the phrase “con-
tract support costs.” In other words, the costs are “associ-
ated with” the “contract” that requires the work that gener-
ates the costs—the self-determination contract.
   A tribe’s contracts with third-party payers are quite dif-
ferent. A Medicare or Medicaid provider agreement, for ex-
ample, does not generate contract support costs by specify-
ing which healthcare services a tribe must provide; rather,
it simply serves as a predicate for the tribe to collect pro-
gram income after it has already rendered services to a
tribal member who is a Medicare or Medicaid beneficiary.
And when a tribe bills a private insurance company for ser-
vices rendered to an insured tribal member, the tribe might
have no pre-existing and ongoing agreement with the insur-
ance company at all.
   The history of Section 5326 confirms this analysis. Con-
gress enacted this provision in 1998 after the Tenth Cir-
cuit’s decision in Ramah Navajo Chapter v. Lujan, 

 (1997). Ramah involved a Tribe that had self-
determination contracts with the Bureau of Indian Affairs
(BIA) for various programs, including law enforcement, and
separate contracts with the State of New Mexico for crimi-
nal justice and juvenile offender restitution programs. 

at 1458–1459. The Tenth Circuit held that the BIA was
required to pay the Tribe’s full indirect contract support
costs—not only for the programs administered under the
BIA contracts, but also for those administered under the
state contracts. 

 at 1462–1463. The Government and
14         BECERRA v. SAN CARLOS APACHE TRIBE

                      Opinion of the Court

the Tribes agree that Congress added Section 5326 to over-
ride Ramah and clarify that IHS may not pay costs incurred
to support non-ISDA contracts. See Brief for Petitioners 8;
Brief for 

; Brief for San Carlos
Apache Tribe 12–14.
   The direct attribution and association problems present
in Ramah are not implicated here. In Ramah, the state
contracts, not the BIA contracts, required the activities that
resulted in the contract support costs for the criminal jus-
tice and juvenile offender restitution programs. Although
those costs might have had an attenuated relation to the
programs operated under the BIA contracts, they were “di-
rectly attributable” to and “associated with” the state con-
tracts, not the BIA self-determination contracts. Here, the
self-determination contract itself requires tribes to spend
program income to further healthcare programming. The
contract support costs tribes incur when they do so are re-
coverable under Sections 5325(a) and 5326.
                             IV
                              A
   The Government’s arguments to the contrary find no sup-
port in ISDA’s text. The Government begins with the prem-
ise that Section 5325(a)(2)’s requirement to pay contract
support costs is “tied to” Section 5325(a)(1)’s Secretarial
amount. Brief for Petitioners 21. But nothing in Section
5325(a)(2) suggests that contract support costs are limited
to programs funded by the Secretarial amount. In fact, Sec-
tion 5325(a)(2) defines contract support costs as tied to “the
terms of the contract,” which require tribes to fund pro-
grams with program income. See §§5325(m)(1), 5329(c).
   The Government then attempts to extend its flawed
premise to Section 5325(a)(3)(A), asserting that the con-
tract support costs of spending program income are ineligi-
ble for repayment under that provision because the “Fed-
eral program” comprises only the Secretarial amount. Id.,
                  Cite as: 

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                      Opinion of the Court

at 22. But besides reciting Section 5325(a)(3)(A), the Gov-
ernment cites no statutory text to support this assertion.

 And Section 5325(a)(3)(A) refers to eligible costs for
the operation of the “Federal program” without limiting
that program to the Secretarial amount.
                              B
   Leaving the text behind, the Government argues that the
tribes should not get contract support costs for spending
program income because that would give them the flexibil-
ity to spend such income on a broader range of activities
than IHS can. 

. But none of the Government’s
cited differences withstand scrutiny.
   First, the Government says that IHS cannot offer
healthcare services to non-Indians unless the beneficiary
tribe requests it, whereas a tribe running its own programs
can unilaterally decide to offer such services. 

 This
difference is irrelevant. Before either IHS or a contracting
tribe may offer healthcare services to non-Indians, both
must make the same determination: Whether such services
will result in a denial or diminution of services to eligible
Indians. §§1680c(c)(1)(B), (c)(2). And the fact that the con-
tracting tribe can act unilaterally in this regard is the nat-
ural result of self-determination.
   Next, the Government says that when IHS collects Med-
icare and Medicaid proceeds, it must “first” use such pro-
ceeds to ensure compliance with those programs. Id., at 29
(quoting §1641(c)(1)(B)). But tribes also have to ensure
compliance with Medicare and Medicaid requirements us-
ing program income. §1641(d)(2)(A).
   Finally, the Government contends that while Congress
has prohibited IHS from using Medicare and Medicaid pro-
ceeds to construct new facilities, tribes do not face this pro-
hibition and thereby have greater ability to expand their
operations. Id., at 30. But to the extent that a tribe ex-
pands its programs beyond the “Federal program,” IHS
16         BECERRA v. SAN CARLOS APACHE TRIBE

                      Opinion of the Court

would not have to pay contract support costs for the tribe’s
new programs.
   Even if there are minor differences between what IHS
and tribes can do with program income, that should not be
surprising given ISDA’s design to provide tribes greater
flexibility in planning and implementing healthcare pro-
grams attuned to the needs of their communities. See
§5302(a). The Government points to nothing in ISDA’s text
to suggest that those differences excuse IHS from paying
contract support costs when tribes spend program income
on the programs they have assumed from IHS.
                                C
   As for the dissent, its central assertion is that the support
costs tribes incur when they spend program income are not
incurred in the “performance of their contracts.” Post, at 7
(opinion of KAVANAUGH, J.). But the Tribes’ contracts
plainly require them to collect income from third-party in-
surers. See supra, at 5, 7. And by incorporating Section
5325(m)(1), see §§5329(a)(1), (c), self-determination con-
tracts plainly require tribes to use that income “to further
the general purposes of the[ir] contract[s].” The dissent
complains that “the contracts do not address how the tribes
must spend their third-party income.” Post, at 8. But as
we have explained, the “purpose” clause of each contract de-
scribes the programs which tribes must further using pro-
gram income. See supra, at 9–10. The support costs tribes
incur when they do so are incurred in the “performance of
their contracts” to “ensure compliance with the terms of
the[ir] contract[s].” Post, at 7; §5325(a)(2). And those costs
are “directly attributable” to and “associated with” tribes’
self-determination contracts. See supra, at 12–13. Obfus-
cating this straightforward reading of the relevant ISDA
provisions, the dissent points to Section 5388(j) and the
costliness of ISDA’s mandates. But Section 5388(j) does not
apply to self-determination contracts, and complaints about
costs are the domain of Congress, not this Court.
                  Cite as: 

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                      Opinion of the Court

                               V
   Aside from being inconsistent with the statute’s text,
IHS’s failure to cover contract support costs for healthcare
funded by program income inflicts a penalty on tribes for
opting in favor of greater self-determination. Congress de-
signed the statute to avoid such a counterproductive result.
   Underlying ISDA was a congressional finding that fed-
eral domination of Indian service programs had denied
tribes an effective voice in the planning and implementa-
tion of programs responsive to the true needs of their com-
munities. See §5301(a)(1). Congress thus designed ISDA
to promote “maximum Indian participation” in the admin-
istration of healthcare programs. §5302(a). To that end,
Congress’s consistent directive to IHS is to place contract-
ing tribes in the same financial position as IHS, so that
tribes do not face a self-determination penalty when they
take control of their own healthcare.
   When tribes enter into self-determination contracts and
assume control of IHS’s programs, they receive the same
amount of congressionally appropriated funds to run the
programs as IHS would have. See §5325(a)(1). Congress
also allows tribes, like IHS, to fund the programs with in-
come from third-party payers. See 42 U. S. C. §§1395qq(a),
1396j(a); 25 U. S. C. §1621e(a). To be clear, IHS needs to
collect these funds just to cover its obligations to tribal
members. Indeed, 60 percent or more of the yearly budget
of some IHS healthcare facilities relies on third-party reve-
nues. Dept. of Health and Human Servs., Fiscal Year 2024,
IHS, at CJ–193; see also IHS, Indian Health Manual §5–
1.1(B) (2024) (“[T]hird-party billing and collections have be-
come critical activities for the IHS. . . . Safeguarding this
revenue stream and related assets is vital to IHS health
care programs.”). Like IHS, tribes choosing self-determina-
tion in healthcare need to collect and spend program income
if they are to maintain the same level of services they re-
18        BECERRA v. SAN CARLOS APACHE TRIBE

                     Opinion of the Court

ceived from IHS. For that reason, Congress specifically in-
structed IHS that program income “shall not be a basis for
reducing” a tribe’s Secretarial amount. §5325(m)(2).
   Contract support costs are necessary to prevent a funding
gap between tribes and IHS. By definition, these are costs
that IHS does not incur when it provides healthcare ser-
vices funded by congressional appropriations and third-
party income. §§5325(a)(2)(A) and (B). But they are costs
that tribes must bear when they provide, on their own,
healthcare services funded by the Secretarial amount and
program income. If IHS does not cover costs to support a
tribe’s expenditure of program income, the tribe would have
to divert some program income to pay such costs, or it would
have to pay them out of its own pocket. Either way, the
tribe would face a systemic funding shortfall relative to
IHS—a penalty for pursuing self-determination.

                         *     *   *
  The self-determination contracts of the San Carlos
Apache Tribe and Northern Arapaho Tribe require them to
collect and spend program income to further the functions,
services, activities, and programs transferred to them from
IHS. When the Tribes do so and incur administrative costs,
ISDA requires IHS to pay those support costs.
  The judgments of the Courts of Appeals for the Ninth and
Tenth Circuits are
                                                   Affirmed.
                  Cite as: 

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                   KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                    Nos. 23–250 and 23–253
                          _________________


  XAVIER BECERRA, SECRETARY OF HEALTH AND
      HUMAN SERVICES, ET AL., PETITIONERS
23–250               v.
          SAN CARLOS APACHE TRIBE
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT



  XAVIER BECERRA, SECRETARY OF HEALTH AND
      HUMAN SERVICES, ET AL., PETITIONERS
23–253               v.
          NORTHERN ARAPAHO TRIBE
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE TENTH CIRCUIT
                         [June 6, 2024]

  JUSTICE KAVANAUGH, with whom JUSTICE THOMAS,
JUSTICE ALITO, and JUSTICE BARRETT join, dissenting.
  The Indian Self-Determination Act allows Indian tribes
to assume control of healthcare programs that the Federal
Government would otherwise administer on a tribe’s
behalf. When a tribe assumes control of a healthcare
program, the statute entitles the tribe to federal funding for
the costs of running the program, as well as additional
federal funding for associated administrative costs.
  A separate federal law—the Indian Health Care
Improvement Act—authorizes tribes that assume control of
healthcare programs to collect third-party payments from
Medicare, Medicaid, and private insurers for the services
that the tribes provide to patients. The tribes may spend
that third-party income for any healthcare-related
2         BECERRA v. SAN CARLOS APACHE TRIBE

                  KAVANAUGH, J., dissenting

purpose—for example, building new healthcare facilities.
But spending the third-party income requires additional
expenditures on overhead.
   Consider a tribe that assumes control of a healthcare
program and receives federal funding pursuant to the Self-
Determination Act. For its services to patients, the tribe
also collects an additional $1 million from Medicare and
Medicaid pursuant to the Improvement Act. In order to
spend that $1 million on healthcare, the tribe must incur
some amount of overhead costs—let’s say $100,000. Who
pays that $100,000? Must the Federal Government pay it
by giving the tribe another $100,000 in federal funding? Or
does the tribe pay the $100,000 out of the $1 million in
third-party income that it collected?
   That is the question in this case. For the past 30 years,
the Executive Branch has interpreted the relevant
statutory provisions, 25 U. S. C. §§5325–5326, to require
tribes to pay those overhead costs out of the third-party
income collected from Medicare, Medicaid, and private
insurers.    And Congress has never overturned that
consistent Executive Branch practice.
   But today, the Court upends that long-settled
understanding and requires the Federal Government to
furnish additional funding to the tribes for the costs of
spending the third-party income. I respectfully dissent.
   As I see it, the relevant statutory provisions do not
support the Court’s decision. And the extra federal money
that the Court today green-lights does not come free. The
Federal Government estimates that adopting the tribes’
position could cost between $800 million and $2 billion
annually (and potentially many billions more in retroactive
payments). Yet as of now, Congress appropriates about $8
billion annually for Indian healthcare. So if Congress does
not change the overall annual appropriations for Indian
healthcare, the Court’s decision will divert funding from
poorer tribes to richer tribes. (There are 574 federally
                 Cite as: 

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                  KAVANAUGH, J., dissenting

recognized tribes.) That is because poorer tribes are less
likely to administer their own healthcare programs and
therefore do not receive third-party income from Medicare,
Medicaid, and private insurers. Alternatively, the Court’s
decision will require Congress to substantially increase its
overall annual appropriations for Indian healthcare,
thereby drawing money away from other vital federal
programs or requiring additional taxes.
   In my view, the Court should leave those difficult
appropriations decisions and tradeoffs to Congress and the
President in the legislative process, and not now upset the
settled legal understanding that has prevailed for the last
30 years.
                              I
   The baseline provider of healthcare to American Indians
is the Indian Health Service—a Federal Government
agency. The Indian Health Service runs hospitals and
other healthcare programs that serve tribal members.
   To facilitate tribal self-determination and self-
governance, the Indian Self-Determination Act allows
tribes to assume control of the healthcare programs that
the Indian Health Service would otherwise operate on the
tribes’ behalf. See 

, as amended, 25 U. S. C.
§§5321–5332. To assume control of a healthcare program,
a tribe enters into a “self-determination contract” that
identifies both the healthcare program that the tribe will
administer and the funding that the Indian Health Service
will give to the tribe. §5321(a)(1); see §5329(c).
   Under the Act, the federal funding authorized in each
self-determination contract contains two main components:
(i) a secretarial amount and (ii) contract support funding.
The secretarial amount consists of the funds that the Indian
Health Service would have spent on the contracted
programs in the absence of the self-determination contract.
§5325(a)(1). And contract support funding covers the
4         BECERRA v. SAN CARLOS APACHE TRIBE

                  KAVANAUGH, J., dissenting

additional costs of certain activities that a tribe “must”
carry on “to ensure compliance with the terms of ” its
“contract.” §5325(a)(2).
   The contract support funding fills recognized gaps in
secretarial funding. When a tribe assumes control of a
healthcare program and provides the associated healthcare
services, the tribe will sometimes incur costs that the
Indian Health Service would not have incurred, such as the
costs of contributing to state workers’ compensation
programs for the healthcare workers, as well as extra
administrative costs.
   The Federal Government does not fund those costs
through the secretarial amount, which covers only what the
federal agency would otherwise have spent on the tribe’s
individual healthcare program. See §5325(a)(1). So
contract support funding bridges the gap, covering the
workers’ compensation and administrative costs that the
tribe must expend to comply with its self-determination
contract. See Cherokee Nation of Okla. v. Leavitt, 

 (2005). By supplementing the secretarial amount
in that way, contract support funding assists tribes in
providing the same level of care as the Federal
Government’s healthcare programs.
   A separate federal statute—the Indian Health Care
Improvement Act—authorizes tribes that operate their own
healthcare programs to collect and spend payments they
receive from Medicare, Medicaid, and private insurers for
providing services to patients. See §§1621e(a), 1641(d)(1);
42 U. S. C. §§1395qq(a), 1396j(a). By law, the tribe
possesses significant flexibility in how to then spend that
third-party income. Specifically, the tribe may use its
Medicare and Medicaid income for “any health care-related
purpose.” 

(d)(2)(A).
   In this case, the San Carlos Apache Tribe and the
Northern Arapaho Tribe entered self-determination
contracts to assume control of healthcare programs that
                  Cite as: 

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                   KAVANAUGH, J., dissenting

benefit their tribal members. Each tribe therefore receives
both a secretarial amount and contract support funding
from the Federal Government. The tribes use that funding
to provide healthcare services specified in their contracts,
including emergency medical services, outpatient primary
care, and dentistry.
   In addition to that federal funding, the two tribes collect
third-party payments from Medicare, Medicaid, and private
insurers. The tribes then spend that third-party income for
additional healthcare purposes, such as improvements to
tribal healthcare facilities. For example, the Northern
Arapaho Tribe spent some of its recent third-party income
on “facility construction.” Tr. of Oral Arg. 78. And the San
Carlos Apache Tribe might spend its third-party income on
construction projects such as “building a garage to house
the ambulances” for an EMS program. 

.
                              II
   The tribes’ basic theory is that the federal funding
authorized by the Self-Determination Act for running the
healthcare programs specified in the tribes’ contracts may
be stretched to also cover the costs associated with the
tribes’ spending of the third-party income that they collect
under the Improvement Act. The tribes do not argue
that the Improvement Act itself authorizes funding to
cover those costs. Instead, they argue that the Self-
Determination Act does so.
   In assessing the tribes’ Self-Determination Act
argument, two provisions of that Act are key. The first is

, which authorizes federal funding for
tribes that administer their own healthcare programs. The
second is §5326, which places important constraints on that
federal funding.
   Section 5325 begins by authorizing the secretarial
amount. Recall that §5325(a)(1) entitles each tribe that
administers its own healthcare program to the federal
6            BECERRA v. SAN CARLOS APACHE TRIBE

                        KAVANAUGH, J., dissenting

funding that the Indian Health Service would have
otherwise spent on the “program” covered by that tribe’s
self-determination “contract.” §5325(a)(1).
  And §5325(a)(2) then entitles each tribe to contract
support funding. That contract support funding covers only
those costs, such as administrative costs, that the tribe
“must” incur to provide the healthcare “program” specified
by the “contract.” §5325(a)(2).1
  Section 5326 then imposes two important limitations on
contract support funding. First, §5326 confines contract
support funding to costs that are “directly attributable” to,
as relevant here, self-determination contracts. Second,
§5326 prohibits contract support funding that is “associated
with any contract” between a tribe and “any entity other
than the Indian Health Service.” Those two limitations
apply “notwithstanding any other provision of law.” §5326.2
  The tribes argue that the Federal Government must
provide contract support funding to cover the tribes’ costs
of spending their third-party income from Medicare,
——————
   1 The full text of §5325(a)(2) states: “There shall be added to the

amount required by [§5325(a)(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—(A) normally are not carried on by the [Indian Health Service in]
direct operation of the program; or (B) are provided by the [Indian Health
Service] in support of the contracted program from resources other than
those under contract.”
   2 The full text of §5326 states: “Before, on, and after October 21, 1998,

and notwithstanding any other provision of law, funds available to the
Indian Health Service in this Act or any other Act for Indian self-
determination or self-governance contract or grant support costs may be
expended only for costs directly attributable to contracts, grants and
compacts pursuant to the Indian Self-Determination Act [

 et seq.] and no funds appropriated by this or any other Act shall
be available for any contract support costs or indirect costs associated
with any contract, grant, cooperative agreement, self-governance
compact, or funding agreement entered into between an Indian tribe or
tribal organization and any entity other than the Indian Health Service.”
                 Cite as: 

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                   KAVANAUGH, J., dissenting

Medicaid, and private insurers.            But the Federal
Government disagrees. As the Federal Government sees
things, contract support funding supports only the tribes’
performance of their contracts. So contract support funding
provided pursuant to the Self-Determination Act cannot be
stretched to cover the entirely separate tribal costs
associated with spending their third-party income from
Medicare and Medicaid pursuant to the Improvement Act.
   For five reasons, I agree with the Federal Government.
   First, the statutory authorization for contract support
funding in §5325(a)(2) of the Self-Determination Act does
not even mention the third-party income that tribes collect
pursuant to the Improvement Act from Medicare, Medicaid,
and private insurance companies. If Congress intended
§5325(a)(2) to supply federal funding for the overhead costs
incurred in spending that third-party income, Congress
surely would have said so in the Improvement Act, the Self-
Determination Act, or other statutory text. That is
particularly so given the relatively large amount of
additional appropriations that would be necessary (up to
$800 million to $2 billion per year, according to the Federal
Government). Congress does not usually employ subtle
indirection to dish out such significant pots of federal
money to agency programs. And if the Executive Branch
for three decades had somehow misunderstood Congress’s
instructions, Congress could have amended the statute. It
did not.
   Second, §5325(a)(2) authorizes contract support funding
only for the activities that a tribe “must” perform to comply
with its self-determination “contract” and support its
“contracted program.” That provision authorizes contract
support funding for the administrative costs of spending a
tribe’s secretarial amount on the healthcare programs
specified in the tribe’s self-determination contract.
Contract support funding therefore bridges the gap
between the secretarial funds that the Federal Government
8           BECERRA v. SAN CARLOS APACHE TRIBE

                      KAVANAUGH, J., dissenting

would have spent on a healthcare program and what the
tribe “must” spend to obtain the same benefit from those
secretarial funds. §5325(a)(2); see supra, at 4.
   But all agree that, for example, §5325(a)(2) does not
authorize contract support funding for the costs of spending
the money in the tribe’s general treasury—money that the
tribe receives independently of its contract and that the
tribe may spend for any lawful purpose. In the same way,
§5325(a)(2) does not authorize contract support funding for
the costs of spending the tribe’s Medicare and Medicaid
payments—payments that the tribe receives from
transactions outside of its healthcare contract (pursuant to
the Improvement Act) and that the tribe may spend on “any
health care-related purpose.” §1641(d)(2)(A). The costs of
spending the tribe’s Medicare and Medicaid income
therefore resemble the costs of spending money from the
tribe’s general treasury. And neither category of costs is
necessary to support the tribe’s “contract” and “contracted
program”—the statutorily imposed conditions for obtaining
additional contract support funding. §5325(a)(2).3
   Third, turning to §5326, that provision independently
restricts contract support funding to the costs that are
“directly attributable” to tribes’ self-determination
contracts. The costs of spending the Medicare and Medicaid
income are not directly attributable to the contracts in this
case. After all, the contracts do not address how the tribes
must spend their third-party income. Moreover, the
——————
  3 The costs of spending payments from private insurers are similarly

detached from the costs needed to support a tribe’s “contract” and
“contracted program.” §5325(a)(2). Tribes collect insurance payments
pursuant to the Improvement Act, which governs the “reasonable
charges” that a tribe may bill to private insurers. §1621e(a). And after
the tribe obtains its insurance payments, the tribe may spend them to
advance the “general purposes” of its healthcare contract, §5325(m)(1)—
a broad authorization that mirrors the tribe’s ability to spend its
Medicare and Medicaid payments on “any health care-related purpose,”
§1641(d)(2)(A).
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                   KAVANAUGH, J., dissenting

Improvement Act allows tribes to spend their Medicare and
Medicaid income on “any health care-related purpose,”
§1641(d)(2)(A), not just to support contractual activities
specified by the self-determination contracts. And tribes
have made use of that flexibility to spend their third-party
income on healthcare services and construction projects
that fall outside of their individual contracts. For example,
the Northern Arapaho Tribe spent some of its recent third-
party income on facility construction, even though the
tribe’s contract does not authorize facility construction. See
Tr. of Oral Arg. 78. Because tribes may spend third-party
income on programs that are never mentioned in their self-
determination contracts, the costs of spending that income
are not “directly attributable” to those contracts. §5326.
   Fourth, §5326 separately precludes contract support
funding that is “associated with any contract” between a
tribe and an “entity other than the Indian Health Service.”
To obtain Medicare and Medicaid payments, the tribes
enter into contracts with the Secretary of Health and
Human Services for Medicare and with state agencies for
Medicaid. See 42 U. S. C. §§1395cc, 1395qq, 1396a(a)(27),
1396j; see also Brief for Petitioners 27 (“To receive Medicare
and Medicaid reimbursements, tribal providers enter into
agreements with Medicare and Medicaid authorities”).
Those contracts are plainly contracts between tribes and
entities “other than” the Indian Health Service. 

. And the tribes’ requested funding is clearly
“associated with” the money that the tribes receive as a
result of those contracts. 

 It follows that tribes may
not obtain contract support funding to cover the costs of
spending their Medicare and Medicaid income. 

   Fifth, another statutory provision in the Self-
Determination Act underscores the separation between
(i) the federal funding that tribes receive due to their self-
determination contracts and (ii) the third-party income that
tribes collect from Medicare, Medicaid, and private
10           BECERRA v. SAN CARLOS APACHE TRIBE

                       KAVANAUGH, J., dissenting

insurers. Section 5388(j) states that all third-party income
“earned by an Indian tribe shall be treated as supplemental
funding” to the funding available through the tribe’s self-
determination contract. Because the tribe’s third-party
income is “supplemental,” the costs of spending that income
are legally separate from the costs of supporting the
contract. For that reason too, contract support funding
cannot encompass the costs of spending third-party income.
See Fort McDermitt Paiute and Shoshone Tribe v. Becerra,

 (CADC 2021).4
   In my view, each of those five arguments individually
casts substantial doubt on the Court’s conclusion today.
And the five arguments taken together convincingly show
that the Court’s conclusion is mistaken. The bottom line is
that §5325 does not authorize and, in any event, §§5326 and
5388(j) prohibit the Federal Government from covering the
tribes’ costs of spending their third-party income. That
straightforward reading of the Self-Determination Act is
why, for the last 30 years, the Executive Branch has
interpreted the statute not to authorize funding to the
tribes for the costs of spending third-party income.
                           III
  To reach the contrary conclusion, the Court creates a
requirement that is absent from both the statute and the
contracts in this case—that tribes must spend all of their
——————
  4 Section 5388(j) appears in Title V of the Self-Determination Act,

which governs self-governance compacts as opposed to self-
determination contracts. See Cohen’s Handbook of Federal Indian Law
§22.02[3], p. 1389 (2012) (compacts give “additional flexibility in program
administration”).     But the Self-Determination Act requires the
Government to fund both compacts and contracts pursuant to the
definitions of the secretarial amount and contract support funding in
§5325. See §§5325(a), 5388(c). And because §5388(j) makes clear that
third-party income is separate from the contract support funding for self-
governance compacts, the same is true regarding the contract support
funding for self-determination contracts.
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                        KAVANAUGH, J., dissenting

third-party income received from Medicare and Medicaid on
the “programs transferred to them in their” self-
determination contracts. Ante, at 10. By doing so, the
Court creatively attempts to morph (i) the costs that a tribe
incurs in spending that third-party income into (ii) the
category of costs that a tribe must incur to “ensure
compliance with” its “contract.” §5325(a)(2).
   The Court’s effort to recharacterize the costs of spending
third-party income as contract support costs does not work.
The Improvement Act authorizes tribes to spend (and the
tribes do spend) their Medicare and Medicaid income on
“any health care-related purpose.” §1641(d)(2)(A). And the
broad phrase “any health care-related purpose”
encompasses activities that are not covered in tribes’
contracts, including “improvements in health care
facilities.” Ibid. Indeed, at oral argument, the tribes in this
case forthrightly acknowledged that they may use third-
party income to cover the costs of constructing new
healthcare facilities, even though their contracts do not
authorize construction. See Tr. of Oral Arg. 78, 87–88.
That acknowledgment was sensible, as the phrase “any
health care-related purpose” clearly expands the potential
uses of Medicare and Medicaid income beyond the purposes
of a single contract. And that acknowledgment completely
undermines the basis for the Court’s decision today.5
   If Congress wanted to limit the tribes’ spending of their
third-party income to supporting the programs in tribes’
self-determination contracts—and thereby wanted to cover
the tribes’ overhead costs of spending that third-party
income—several provisions in the statute illustrate how
Congress could have done so. See, e.g., §5325(a)(4)(A)
(requiring that tribes use savings for “additional services or
——————
  5 Indeed, it is not clear that all Indian tribes want to win on the ground

that the Court relies on today. Going forward from the Court’s opinion
today, as I understand it, the tribes may face greater restrictions on the
spending of their third-party income than they have previously faced.
12         BECERRA v. SAN CARLOS APACHE TRIBE

                   KAVANAUGH, J., dissenting

benefits under the contract”). For example, the Self-
Determination Act contains a model contract, and Congress
might have used that contract to set forth specific
requirements regarding tribes’ use of third-party income.
See §5329(c). But Congress did not do so.
   Congress had good reasons for granting tribes flexibility
over the spending of their third-party income, and not
limiting that spending to support of the contract. Among
other things, that flexibility flows from the policy of self-
determination that runs throughout the statute. See
§5302. For present purposes, however, one byproduct of
that flexibility is that the overhead costs of spending third-
party income are untethered from the “program” in a self-
determination “contract.” §5325(a)(2). Likewise, those
costs are not “directly attributable” to a self-determination
contract. §5326. As explained above, it follows that the
Federal Government is not authorized to reimburse tribes
for those costs.
   In an attempt to avoid that straightforward conclusion,
the tribes in this case (echoed by the Court) represent that,
at least recently, they have voluntarily spent their third-
party income only on their contracted programs. But a few
tribes’ voluntary choices not to spend third-party income as
freely as the Improvement Act allows does not solve their
statutory problem—which is that contract support funding
by law does not extend to funding for the costs associated
with spending third-party income.
   Nor can the Court glide over those difficulties by invoking
what it calls a “self-determination penalty.” Ante, at 17.
The Court writes that failing to fund the costs of spending
third-party income would penalize tribes for pursuing self-
government, on the theory that tribes would then need to
pay those costs using their third-party income. See ante, at
17–18. But the fact that a tribe must pay, for example,
$100,000 in overhead out of the $1 million in third-party
income that it receives does not warrant the label “self-
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                   KAVANAUGH, J., dissenting

determination penalty.”
   Even within the narrow context of spending Medicare
and Medicaid income, moreover, there is no self-
determination penalty. The tribes can spend third-party
income with much greater flexibility than the Federal
Government can.        Compare, e.g., §1641(c)(1)(B) (the
Government must “first” spend that income on compliance
with Medicare and Medicaid requirements), with
§1641(d)(2)(A) (tribes may spend their third-party income
on “any health care-related purpose”). For example, the
tribes can use their Medicare and Medicaid income to
construct new healthcare facilities, whereas Congress has
prohibited the Indian Health Service from using Medicare
and Medicaid funds for that same purpose. See Reply Brief
11.
   In short, the rather loaded term “self-determination
penalty” is not an accurate or appropriate way to describe
how the Executive Branch has construed the statute for the
last 30 years. And if there were really such a penalty (there
is not), then the solution lies with Congress, not by
judicially rewriting Congress’s funding laws.
   The tribes raise a separate policy concern that tribal
hospitals are underfunded and that the Federal
Government does not reimburse them for the true costs of
tribal healthcare. They may or may not be right about that.
But those arguments boil down to disagreeing with the
appropriations amount that Congress has provided for
Indian healthcare. Appropriations decisions often require
painful tradeoffs. But a court may not depart from the best
reading of a statute simply because a party disagrees with
Congress’s appropriations decisions for one program.
   That basic separation of powers principle carries
particular force when, as here, distorting Congress’s
appropriations decisions will have significant ripple effects.
To reiterate, according to the Federal Government, if it
must fund the costs of the tribes’ spending of their third-
14           BECERRA v. SAN CARLOS APACHE TRIBE

                        KAVANAUGH, J., dissenting

party income, that could require an estimated $800 million
to $2 billion annually in additional federal expenditures.
See Brief for Petitioners 44.        If the overall annual
appropriations amount for Indian healthcare stays the
same, today’s decision will divert funding from poorer tribes
to richer tribes (again, because poorer tribes generally do
not administer their own healthcare programs and
therefore do not receive third-party income).6 Indeed, at
oral argument, the Northern Arapaho Tribe acknowledged
that, in light of “simple mathematics,” a decision like the
Court’s today would shift money from one class of tribes to
another class of tribes. Tr. of Oral Arg. 61. Alternatively,
today’s decision may require Congress to substantially
increase its overall annual appropriations for Indian
healthcare, thereby taking money away from other federal
programs or imposing additional costs on taxpayers.
  Rather than experimenting with reallocation of those
funds, or assuming without basis that Congress will
increase appropriations for Indian healthcare at the
expense of other national priorities (it might; it might not),
I would simply follow the statute as written.7
——————
  6 See Harvard Project of American Indian Economic Development, The

State of the Native Nations 230 (2008) (noting that tribes must have
“resources—both human and financial—to transition to tribal
management” of healthcare programs); GAO, F. Rusco, Indian Programs:
Interior Should Address Factors Hindering Tribal Administration of
Federal Programs 11 (GAO–19–87, 2019) (“The capacity of a tribal
government to administer a federal program or manage its resources is
a key factor that can affect a tribe’s decision to enter into a self-
determination contract”).
  7 Some of the lower-court litigation in this case has concerned the

meaning of §5325(a)(3)(A), which divides contract support costs into two
categories: direct costs and indirect costs. Of note, the tribes in this case
argued that they are entitled to contract support funding for expenses
that fall within the language of §5325(a)(3)(A), even if those expenses do
not satisfy §5325(a)(2). See Brief for 

; Brief
for 

. That is incorrect. See Cook Inlet Tribal
Council, Inc. v. Dotomain, 

, 895–896 (CADC 2021). The
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                       KAVANAUGH, J., dissenting

                        *    *    *
  In sum, federal law does not authorize funding to cover
the tribes’ costs of spending their third-party income. I
respectfully dissent.




——————
Government notes, moreover, that adopting the tribes’ position on that
issue would have “broad ramifications beyond the funding dispute at
issue here.” Reply Brief 9, n. 2. I do not read the Court’s decision today
to adopt the tribes’ position on that issue. Instead, tribes may obtain
contract support funding only for expenses that satisfy both §5325(a)(2)
and §5325(a)(3)(A). See ante, at 8–12.