Full opinion text
OPINION STEWART, United States Magistrate Judge. I i INTRODUCTION Plaintiff, Shoshone-Bannoek Tribes of the Fort Hall Reservation (“Shoshone-Bannoek Tribes”), is a federally recognized “tribal organization” under the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. §§ 450a-450n (“IS-DEA”), with tribal headquarters located in Fort Hall, Idaho. The Complaint contains ten claims for relief for declaratory and in-junctive relief and monetary damages based on violations of various provisions of the IS-DEA by the following defendants: Donna E. Shalala, Secretary of the United States Department of Health and Human Services (“HHS”) (“Secretary”); Michael H. Trujillo, Director, Indian Health Service (“IHS”); Douglas Black, IHS Director of Office of Tribal Activities; and James R. Floyd, former IHS Portland Area Director. The alleged violations concern the allocation and timing of release of funds by IHS to the Shoshone-Bannoek Tribes for the operation of certain health care services for fiscal year ending September 30,1996 (“FY 1996”). This court has jurisdiction pursuant to 25 U.S.C. § 450m-l(a) and 28 U.S.C. § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and.28 U.S.C. .§ 636(c). Now before this court are the Shoshone-Bannoek Tribes’ Motion for Partial Summary Judgment (docket #30). and defendants’ cross Motion for Summary Judgment (docket #37). The Shoshone-Bannoek Tribes have agreed to dismiss without prejudice their First and Second Claims (concerning the Fort Hall Service Unit administrative shares) because they are moot and the Third and Fifth Claims (concerning the adjusted 70/30 formula to allocate funds and the Fort Hall Service Unit Transitional Amount) because they are not yet ripe. Thus, the eross-mo-tions for summary judgment are directed at the six remaining claims. For the reasons that follow, the parties’ motions are granted in part and denied in part. II. UNDISPUTED FACTS Although no party submitted a concise statement of material facts in support of its summary judgment motion, as required under Local Rule 220-9(a), the bulk of facts surrounding this dispute as alleged in the Complaint either are admitted in the Answer or are treated as undisputed in the parties’ submissions. The undisputed facts are as follows: A. IIIS Organization IHS, a part of HHS, provides or funds a wide array of inpatient, outpatient, community health and other health care services for the benefit of approximately 1.2 million American Indians and Alaska Natives throughout the United States, including the Shoshone-Bannock Tribes. IHS has three administrative levels which service the Sho-shonerBannock Tribes: (1) the Headquarters Office located primarily in Rockville, Maryland, which manages 12 Area Offices; (2) the Portland Area Office for Idaho, Washington, and Oregon located in Portland, Oregon, which services 41 tribes; and (3) the local Fort Hall Service Unit located in Fort Hall, Idaho, which directly services the Shoshone-Bannock Tribes. B. ISDEA 1. Title I Contracting Process In 1975, Congress adopted the ISDEA. This law shifted control over federal programs serving tribes from IHS to the tribes themselves. The primary means for this transfer is the Title I contracting process. Title I directs the Secretary, at the request of any tribe or tribal organization, to enter into a “self-determination contract” to “plan, conduct and administer” any IHS program. 25 U.S.C. § 450f(a)(l). Title I governs the process from the initial proposal through to IHS’ funding and oversight of the program after a contract is approved. Within 90 days after receipt of a contract proposal from a tribal organization, the Secretary must award a contract under Title I “unless the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates” that one of the following five specific declination criteria applies: (A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory; (B) adequate protection of trust resources is not assured; (C) the proposed project or function to be contracted cannot be properly completed or maintained by the proposed contract; (D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 450j-l(a) of this title; or (E) the program, function, service, or activity ... that is the subject of the proposal ... includes activities that cannot lawfully be carried out by the contractor. 25 U.S.C. § 450f(a)(2). If the Secretary declines to enter into a self-determination contract, she must “state any objections in writing,” “provide assistance to the tribal organization to overcome the stated objections,” and allow a “hearing on the record” with “full discovery” and “the opportunity to appeal.” 25 U.S.C. § 450f(b). Although the Secretary may partially decline a contract proposal that “proposes in part to plan, conduct, or administer a program, function, service, or activity that is beyond the scope of programs covered” by Title I or “proposes a level of funding that is in excess of the applicable level,” she nonetheless “shall approve any severable portion of a contract proposal that does not support a declination finding.” 25 U.S.C. § 450f(a)(4). 2. Funding The ISDEA requires that funding for a self-determination contract “shall not be less than the appropriate Secretary would' have otherwise provided for the operation of the programs” covered by the contract. 25 U.S.C. § 450j-l(a)(l). This is commonly referred to as the “Secretarial Amount.” The ISDEA forbids the Secretary from reducing the amount of funding for virtually any reason except a reduction in appropriations or tribal authorization: Notwithstanding any other provision in this Act, the provision of funds under this Act is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this Act. 25 U.S.C. § 450j-l(b). Until 1988, the Secretarial Amount only included funds for the direct operation of health care programs. Although a tribe contracted to operate a particular program at the Service Unit level, IHS maintained its administrative operations at the Area and Headquarters levels. However, subsequent amendments to the ISDEA broadened the scope of self-determination contracts. In 1988, Congress added Title III to the ISDEA which permits tribes to take over comprehensive responsibility to plan, conduct, consolidate, administer, and even redesign all health care programs, services and functions previously provided by IHS. Title III compacts are funded by Annual Funding Agreements. The 1988 amendments also required the Secretary to provide “contract support costs” to cover administrative overhead and other specified indirect costs associated with a particular program under a self-determination contract. 25 U.S.C. § 450j — 1(a)(2). In addition, a new provision conferred jurisdiction on the -federal district courts over any civil action or claim under the ISDEA. 25 U.S.C. § 450m-l(a). In October 1994, Congress enacted additional amendments known as the Indian Self-Determination Contract Reform Act of 1994, Title I, Public Law 103-413. Among other changes, those amendments enabled tribes to contract with IHS to take over IHS Area Office and Headquarters Office administrative functions for the Service Unit programs which they have contracted to operate. 25 U.S.C. § 450j — 1(a)(1). Because IHS’s administrative components support all IHS health care programs and all tribes, a tribe may take over only that portion of the administrative components supporting the particular Service Unit program for which the tribe has contracted to operate. That amount is referred to as the “tribal share.” Consequently, the “Secretarial Amount” now includes both funds for operation of a particular program, as well as any connected tribal share, ie. the Area and Headquarters administrative functions that support the program. The 1994 amendments also extensively detailed the types of contract support costs that must be paid. 25 U.S.C. § 450j — 1(a)(2), (3) and (5). 3. Self-Determination by the Shoshone-Bannock Tribes Since October 1980, pursuant to the IS-DEA, the Shoshone-Bannock Tribes have operated certain IHS-funded tribal community health-care programs of the Fort Hall Reservation under one or more self-determination contracts. As of early 1995, these services included mental health services, the community health representative program, various alcohol treatment programs, the maternal child health program, and other similar community outreach programs. IHS retained certain other administrative programs, such as the Medical Records Department and Quality Assurance/Quality Improvement services. IHS also directly administered the Public Health Nursing (“PHN”) program and the Not-So-Gah-Nee Clinic, and operated other direct and administrative programs benefitting the Shoshone-Bannock Tribes from the Portland Area Office and Headquarters. This lawsuit involves two contract proposals submitted by the Shoshone-Bannock Tribes to the IHS Portland Area Office in mid-1995 to increase the scope of the tribes’ self-determination contracting and assume their tribal share of the Secretarial Amount. These proposals were negotiated and awarded in part, and declined in part, in late 1995. . C.PHNProposal On April 26, 1995, the Shoshone-Bannock Tribes transmitted Resolution No. HTWF-95-0236 (the “PHN Proposal”) to the IHS Portland Area Office, proposing that the Shoshone-Bannock Tribes assume the PHN program, together with the Secretarial Amount supporting that program at the Service Unit, Area and Headquarters levels. IHS approved the proposal to run the PHN program, but not the level of funding proposed for the tribal share of the Secretarial Amount. The statutory approval/declination period, as extended by the parties, expired on September 15,1995. IHS never issued a written declination decision, and has not yet paid any portion of the Secretarial Amount for the Fort Hall Service Unit level for the PHN program to the Shoshone-Bannoek Tribes. On November 6, 1995, the Shoshone-Bannock Tribes notified IHS in writing of their intent to sue under 25 U.S.C. § 450m-l(a) “to compel the Secretary to award and fund” the Service Unit portion of the Secretarial Amount of the PHN Proposal. D. Tribal Shares Contract Proposal On July 11, 1995, the Shoshone-Bannoek Tribes adopted Tribal Counsel Resolution No. CTRT-95-0627 (the “Tribal Shares Contract Proposal”), proposing that they operate all administrative functions at the Area and Headquarters levels associated with or supporting all local community health care programs previously contracted by them. By agreement of the parties, this Tribal Shares Contract Proposal was combined with the comparable portion of the PHN Proposal and negotiated together. In negotiations during November 1995, the Shoshone-Bannoek Tribes and IHS reached agreement on the various budget lines and associated functions covered by the Tribal Shares Contract Proposal. However, IHS rejected the Shoshone-Bannoek Tribes’ proposal regarding: (1) the amount of funds available for contracting at the Portland Area Office level; (2) the methodology for determining the tribal share of the Portland Area Office funds; and (3) the amount to be actually awarded and paid as the tribal share for various Area Office and Headquarters functions. IHS also determined not to immediately pay any contract support costs. On November 29,1995, IHS issued a “Partial Declination Letter” of the Tribal Shares Contract Proposal. The IHS Decision declined to fund the proposal at the full amount pursuant to the proposed timetable, and instead agreed to fund only 20% of the tribal share for the Portland Area Office for FY 1996. This decision was based on a “Release Plan” developed by the Area Office to match the pace at which it elected to make tribal shares of its administrative functions available in FY 1996 and later years for all tribes. III. THE REMAINING CLAIMS The Shoshone-Bannoek Tribes’ remaining six claims challenge four specific actions taken by IHS which affect the amount and timing of the funding which the Shoshone-Bannoek Tribes claim are due under the ISDEA for FY 1996. First, the Shoshone-Bannoek Tribes contend that IHS improperly withheld certain funds (“Title I Retained Funds”) from the Secretarial Amount for the Portland Area Office in violation of 25 U.S.C. § 450j-l(a) and (b). Complaint, ¶¶ 61-66 (Fourth Cause of Action). Second, the Shoshone-Bannoek Tribes contest the timing of the release of funds under the Portland Area Office “Release Plan.” They claim that this denial violates 25 U.S.C. § 450j-l(a) and (g) by not fully funding approved administrative functions (Complaint, ¶¶ 72-74 (Sixth Cause of Action)) and violates 25 U.S.C. § 450k by imposing a no-nregulatory requirement relating to self-determination contracting (Complaint, ¶¶ 75-78 (Seventh Cause of Action)). Third, the Shoshone-Bannoek Tribes contend that IHS failed to fully fund the Secretarial Amount for IHS Headquarters’ administrative functions in violation of 25 USC §§ 450f(a)(l) and (2) and 450j-l(a) and (g). Complaint, ¶¶ 79-83 (Eighth Cause of Action). Fourth, the Shoshone-Bannoek Tribes contend that IHS failed to pay their contract support costs in violation of 25 USC § 450j-1(a)(2) and (g). Complaint, ¶¶ 84-88 (Ninth Cause of Action) and ¶¶ 89-90 (Tenth Cause of Action). IV. STANDARD OF REVIEW Before addressing the merits of the remaining claims, this court must first determine the threshold issue of the proper standard of review under the ISDEA. The IS-DEA, 25 U.S.C. § 450m-l(a), authorizes district courts to exercise jurisdiction over civil actions brought under the ISDEA and to order appropriate relief, but does not provide any standard for review. The parties agree that the issue in this case is whether IHS has exceeded its statutory authority, but disagree as to the appropriate standard of review to resolve that issue. Defendants contend that the Administrative Procedures Act, 5 U.S.C. §§ 701-706 (“APA”), provides the applicable standard of review. The APA provides that “the reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Shoshone-Bannock Tribes disagree and urge this court to adopt a de novo standard of review. A. Applicability of the APA When a statute simply provides for review, without providing any standards, or procedures, the Supreme Court has held that “consideration is to be confined to the administrative record and that no de novo proceeding may be held.” United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963). Aecord-ingly, “[w]hen a statute authorizes judicial review of agency action without providing standards for that review, we look to the [APA] for guidance.” Sierra Club v. Glickman, 67 F.3d 90, 96 (5th Cir.1995). This general principle has been applied under a variety of statutes. However, “[i]n most instances, of course, where Congress intends review to be confined to the administrative record, it so indicates, either expressly or by use of a term like ‘substantial evidence.’” Chandler v. Roudebush, 425 U.S. 840, 862, n. 37, 96 S.Ct. 1949, 1960 n. 37, 48 L.Ed.2d 416 (1976). The Shoshone-Bannock tribes contend that the APA should not apply because: (1) the use of the phrase “civil action” in § 450m-l(a) contemplates a trial de novo; (2) § 450m-l(a) refers to “original jurisdiction” and not “review” or “appeal;” (3) it is anomalous to obtain full discovery for an ISDEA administrative appeal under 25 U.S.C. § 450f(b)(3), but not in a district court proceeding; (4) the APA bans monetary damages which the ISDEA expressly allows a district court to award; and (5) the legislative history of the ISDEA supports a civil trial, rather than review under the APA. The only reported case construing § 450m-l(a) held that the allocation of contract support costs by the Secretary of the Department of the Interior among competing tribal applicants was subject to judicial review without addressing what standard of review would apply. Ramah Navajo Sch. Bd., Inc. v. Babbitt, 87 F.3d 1338 (D.C.Cir.1996). Although making several direct references to the APA, Ramah did not explicitly state that the APA provides the standard of review. To muddy the waters even further, a footnote suggests that the district court “in its discretion, might choose to hold a hearing” on remand. Id at 1341, n. 2. The dissent argued, that such an approach “turns principles of administrative law on their head ... because it postures the district court as the primary decision maker rather than as a reviewing court with only limited writ under the APA.” Id at 1352. In unreported decisions, two other district courts considering the appropriate standard of review under the ISDEA have rule that the APA standard of review controls. Yukon-Kuskokwim Health Corp. v. Shadala, No. A-96-155CV (JWS) (D Alaska, April 15, 1997) (order establishing scope of review) (“YKHC”)-, California Rural Indian Health Bd. v. Shalala, No. C-96-3526 (ND Cal, April 24,1997) (order denying motion to compel discovery) (“California Health Bd.”). Addressing the same arguments raised here, both courts concluded that the ISDEA is ambiguous and resolved the ambiguity by applying the presumption against de novo review. The Shoshone-Bannock Tribes argue that both of these decisions are mistaken for three reasons: (1) if ambiguous, the ISDEA must be construed in favor of the tribes; (2) the presumption against de novo review should not be applied to unique Indian legislation such as the ISDEA; and (3) Congress clearly intended to enable tribes to pursue a normal civil suit for violation of their statutory rights. This court agrees and declines to follow the lead of its sister courts. 1. Statutory Language Section 450m-l(a) of the ISDEA grants district courts “original jurisdiction” over “civil- actions” with authorization not only to enjoin or compel agency action, but to “order appropriate relief including money damages.” This language is certainly less direct than it might have been if Congress had stated, for example, that “review shall be de novo.” However, in combination, these three phrases are sufficient to connote the right to de novo review. The phrase “original jurisdiction” has been distinguished from appellate jurisdiction both by Black’s Law Dictionary 991 (5th ed.1990) and by Article III, Section 2, clause 2 of the United States Constitution. Because Congress is considered to be generally familiar with the law when it enacts a statute, Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184, 108 S.Ct. 1704, 1711, 100 L.Ed.2d 158 (1988), it is reasonable to assume that Congress was cognizant of Article III when it enacted the ISDEA. Thus, the term “original jurisdiction” is consistent with the possibility that Congress meant to provide for de novo review. However, a court with “original jurisdiction” may exercise essentially appellate powers, as with district court review under the APA, while courts with appellate jurisdiction may conduct de novo review, as with appellate review of a district court’s conclusions of law. Therefore, very little may be inferred about the standard of review by use of the phrase “original jurisdiction” standing alone. However, Congress’ use of the phrase “civil action” in combination with “original jurisdiction” supports de novo review. Congress has often used both terms when vesting jurisdiction in the district courts in matters that typically proceed de novo, e.g., 28 U.S.C. §§ 1331, 1332, 1335, 1337, 1338, 1339, 1340 and 1343, or concurrently in the district courts and the Court of Claims. 5 U.S.C. §§ 8715 and 8912. In addition, the phrase “civil action” has been read by the Supreme Court and the Ninth Circuit in other contexts to require de novo review of agency action. In Chandler, 425 U.S. at 845, 96 S.Ct. at 1952, the Supreme Court held that under Title VII, federal employees are entitled to the same rights as private-sector employees, namely full discovery and de novo review of Civil Service Commission discrimination decisions, explaining: The terminology employed by Congress— “assign the case for hearing,” “scheduled ... for trial,” “finds,” — indicates clearly that the “civil action” to which private-sector employees are entitled under the amended version of Title VII is to be a trial de novo. Similarly in Nabors v. United States, 568 F.2d 657, 660 (9th Cir.1978), citing Chandler, the Ninth Circuit held that “the language of [the ADEA], ‘A civil action .. for such legal or equitable relief as will effectuate the purposes of this chapter,’ would be to us a most unusual way of specifying review' on an administrative record.” This conclusion was buttressed by the similarities between the ADEA and Title VII, which outweighed the differences. This ease involves neither additional terminology concerning a hearing and trial as in Chandler nor similarities with another statute as in Nabors. However, any lingering doubt regarding Congress’ intent is dispelled by its authorization of money damages for violations of the ISDEA. The APA does .not authorize money damages, 5 U.S.C. § 702, although it does permit actions “to enforce [a] statutory mandate ... which happens to be one for the payment of money.” Bowen v. Massachusetts, 487 U.S. 879, 108 S.C.t. 2722, 101 L.Ed.2d 749 (1988). A tribe generally will seek an order to force an agency to enter into and fund a self-determination contract." However, in somé situations, an order to reverse, enjoin, or compel certain agency action may be insufficient. For example, when an appropriation has lapsed or is not sufficient, the appropriate remedy will be money damages rather than injunctive relief. Potential damages also may include interest on a loan obtained by a tribe to fund a program pending the receipt of funding. Congress’ specific authorization of money damages signals that tribes may hold the Secretary accountable for inju: ries caused by her violations of the ISDEA and are not merely limited to equitable relief under the APA. Aso, the jurisdiction of a district court is concurrent with the Court of Claims under the Contract Disputes Act, 41 U.S.C. §§ 601-613. The standard of review under that Act is one of a “proceeding] de novo in accordance with the rulés'of the appropriate court.” ■ 41 U.S.C. § 609(a)(3). Hence, review by a district court of such claims also must be de novo absent any statutory basis to distinguish between the two courts. 2. Legislative History The ISDEA’s legislative history confirms this interpretation. In 1975 Congress observed that “prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people,” 25 U.S.C. § 450(a)(1), and mandated that control shift to the tribes. The Secretary originally was delegated broad general authority to “perform any and all acts and to make such rules and regulations as may be necessary and proper for the purposes of carrying out” the ISDEA. 25 U.S.C. § 450k(a) (1983). However, bureaucratic recalcitrance ultimately motivated Congress to enact massive amendments in 1988 and 1994 to restrict that authority. Among the many problems noted were: (1) the “inappropriate application of federal procurement laws— resulting] in excessive paperwork and unduly burdensome reporting requirements;” (2) the agency creation of an oppressive “contract monitoring bureaucracy;” (3) agency “imposition [of] additional reporting requirements on tribal contractors which often are not required under applicable law and regulations;” and (4) reallocation of funds due tribal contractors “to pay for such items as federal computer equipment acquisition and software development costs ... federal pay and retirement costs ... [and] federal contract monitoring costs.” S Rep No 100-274, 100th Cong, 1st Sess at 7-8 (1987) reprinted in 1988 U.S.Code Cong & Admin News at 2619 (“1987 Senate Report”). As a result, Congress reduced the Secretary’s general discretion by requiring that “all federal requirements for self-determination contracts and grants under this Act shall be promulgated as regulations in conformity with [the APA].” 25 U.S.C. § 450k (1994). It also created the additional remedy in federal district court, explaining: The strong remedies provided in these amendments are required because of those agencies’ consistent failures over the past decade to administer self-determination contracts in conformity with the law. Self-determination contractors’ rights under the Act have been systematically violated particularly in the area of funding indirect costs. Existing law affords such contractors no effective remedy to redressing such violations. Tribal contractors are denied access to injunctive relief to compel agency compliance with the law where the effect of any court order would be to require the Federal government to add funds to the plaintiffs contract. Furthermore, tribal contractors are unable to recover legal fees under the Equal Access to Justice Act even when they prevail on contract disputes in agency administrative proceedings. 1987 Senate Report at 37. Six years later, frustrated with the Secretary’s resistance to the 1988 amendments, Congress reinforced almost every section of the ISDEA, adopted a model self-determination contract (25 U.S.C. § 4500, and stripped the Secretary of all her delegated rulemaking authority except for 16 narrow areas. 25 U.S.C. § 450k(a)(l). Congress had specific problems in mind which it addressed with appropriate remedies, namely injunctive relief and recovery of legal fees. However, Congress’ apparent lack of discussion concerning the standard of review does not compel the conclusion that it rejected de novo review. Instead, no such discussion may have been necessary based on the expression of Congressional intent through other language in the ISDEA. Under the ISDEA, a tribe has two alternate appeal routes when the Secretary declines a self-determination contract. The tribe may obtain “a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity to appeal on the objections raised.” 25 U.S.C. § 450f(b)(3) (emphasis added). That appeal may either be within the agency or to an Administrative Law Judge (“ALJ”). 25 U.S.C. § 450f(e)(2). Any review of that decision is governed by the APA. Alternatively, a tribe may “in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court.” 25 U.S.C. § 450f(b)(3). There is no doubt that Congress intended to allow a tribe to save time by shorteutting the administrative appeal process. In 1994 Congress added to § 450m-l(a) the phrase permitting relief in court “to compel the Secretary to award and fund an approved self-determination contract” in order “to clarify the right of contractors to seek immediate judicial relief to review a declination finding or to secure the award and funding of an approved contract, without first invoking further administrative levels of appeal or similar ‘exhaustion’ procedures which could further delay the contracting-process.” S Rep No 103-374, 103rd Cong, 2d Sess. 14 (1994) (“1994 Senate Report”), p. 13 (emphasis added). This language reveals Congress’ intent to permit the tribes to forego the administrative exhaustion requirement and quickly seek relief in a federal district court. However, speedy justice does not necessarily preclude the opportunity to obtain full discovery and a factual hearing, if appropriate. In construing a statute, courts must “look to the provisions of the whole law, and its object and policy.” United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402 (1993). The ISDEA’s object and policy are best achieved, and any agency mischief best redressed, by affording tribes the right to de novo review of their claims. The Secretary does not merely act as an impartial regulator, but has an obvious conflict of interest when enforcing the ISDEA’s mandate to transfer federal programs and funds to tribes on demand. It is difficult to imagine an issue on which an agency would have a greater self-interest than when determining whether, and how much, of its own authority and funding must be surrendered to a third party. .Given this history of Congressional concern with agency malfeasance, it would be ironic indeed if Congress offered the tribes nothing more than a record-based, deferential court review of agencies’ actions which they already enjoyed under the APÁ for administrative appeals. To deny a tribe the same rights with respect to a claim filed in a federal district court than it is entitled to obtain through the administrative process would be a perverse result. A tribe should be entitled to the same full discovery, hearing and de mow.review when it elects to proceed directly to court as it is entitled to receive if it elects to proceed before the agency or .an ALJ. 3. Presumption Favoring Indian Rights In addition to these reasons for rejecting the APA standard of review to the ISDEA, statutes affecting Indian rights, such as the ISDEA, should be liberally construed, and “doubtful expressions [should be] resolved in favor of the Indians.” State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie Tribal Gov’t, 101 F.3d 1286, 1294 (9th Cir.1996), cert granted — U.S.-, 117 S.Ct. 2478, 138 L.Ed.2d 2987 (1997), citing Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 41, 63 L.Ed. 138 (1918). In giving Indian tribes access to federal courts to determine their rights and obligations under the Indian Child Welfare Act, the Ninth Circuit earlier explained in this same case: Because of the unique legal status of Indians in American jurisprudence, legal doctrines often must be viewed from a different perspective from that which would obtain in other areas of the law. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980) (The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law). Moreover, “standard principles of statutory construction do not have their usual force in cases involving Indian law.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 2403, 85 L.Ed.2d 753 (1985),-Rather, “[t]he canons of construction. applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians.” Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 1258, 84 L.Ed.2d 169 (1985). Statutes are to be construed liberally in favqr of the Indians; ambiguous provisions are to be interpreted to the Indians’ benefit. Blackfeet Tribe, 471 U.S. at 766, 105 S.Ct. at 2403. Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 553 (9th Cir.1991). Similarly, the Tenth Circuit recently concluded that “the canon of construction favoring Native Americans controls over the more general rule of deference to agency interpretations of ambiguous statutes.” Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 at 1462 (10th Cir.1997). Contrary to California Health Board, this court does not perceive the standard of review as merely a procedural issue to which this presumption favoring Native Americans is inapplicable. The standard of review is critical because it not only affects a tribe’s ability to obtain discovery, but also affects the amount of deference to be accorded the agency’s decision. Neither the Supreme Court nor .the Ninth Circuit has given any indication that the presumption applies in some situations, but not others. In fact, the presumption has been applied in at least two cases involving procedural rights. People of the Village of Gambell v. Clark, 746 F.2d 572 (9th Cir.1984), rev’d on other grounds sub nom Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (extending the geographic reach of certain procedural protections afforded to subsistence users challenging proposed oil development under Title VIII- of the Alaska National Interest Lands Conservation Act); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (construing the Indian Civil Rights Act to provide only limited federal judicial review of tribal actions). The rationale behind the presumption should apply equally to all issues of statutory construction, wherever they may arise in uniquely Indian legislation. As a practical matter, any court would prefer not to review de novo funding decisions “which would entangle the court in assessing and balancing policies, programs, and principles of federal appropriations, the details of which no court is equipped to handle.” YKHC at 11. However, this court cannot ignore its obligation to decide disputes brought before it, regardless of the factual intricacies or technical issues involved. It is the responsibility of the parties to properly educate the court, not of the court to improperly defer to an agency decision. Because a tribe claiming that the Secretary has violated its rights under the ISDEA is better protected by a civil trial de novo before an impartial court, than by deferential judicial review of an agency-created record, any ambiguity in § 450m-l(a) should be resolved in favor of the right to de novo review. B. Defendants’ Request to Limit the Record Arguing for application of the APA, defendants request this court not to consider the depositions, answers to interrogatories, and admissions which they have provided through discovery in this case, but to instead limit review to the “administrative record” consisting solely of documents produced by them. Based on this court’s decision that the APA does not govern the standard of review, defendants’ request is denied. C. Burden of Proof Unlike the usual civil case in which the plaintiff bears the burden of proof by a preponderance of the evidence, the ISDEA places the burden of proof in any hearing or on appeal on the Secretary “to establish by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof.)” 25 U.S.C. § 450f(e). V. WITHHOLDING OF TITLE I RETAINED AMOUNT (Fourth Claim) The Fourth Claim alleges that defendants violated 25 U.S.C. § 450j-l(a) and (b) by improperly deducting a “Title I Retained Amount” from the amount of Portland Area Office funds available for self-determination contracting. Defendants respond that the “Title I Retained Amount” reflects funding associated with programs and functions that the Secretary must continue to perform and which are not subject to self-determination contracts by the tribes. In order to determine what funds are available for contracting by the tribes, defendants must calculate the Secretarial Amount which is the “amount of funds ... the ... Secretary would have otherwise provided for the operation of the programs ... covered by the contract ... including supportive administrative functions that are otherwise contractable.” 25 U.S.C. § 450j-1(a)(1). According to the defendants, the Title I Retained Amount is not “otherwise contractable,” and therefore is properly deducted from the Secretarial Amount. In determining the Secretarial Amount for contracting by the Shoshone-Bannoek Tribes, defendants subtracted five items from the Portland Area Office Budget of approximately $15.6 million for FY 1996, namely: (1) “Earmarked Funds” of $376,554; (2) “Residual Amount” of $2,134,000; (3) “Self-Governance Amount” of $1,320,-209; (4) “Title I Retained Amount” of $1,320,-209 (which is in dispute); and (5) “Service Unit Transitional Amount” of $1,603,001. Plaintiffs Exhibit 4, p. 5. As a result of these deductions, less than half, or $6.67 million, was available to all Portland Area tribes contracting under Title I in FY 1996. At that time, 31 tribes in the Portland Area Office, including the Shoshone-Bannock Tribes, were “Title I” contracting tribes, and the other 10 tribes were “self-governance” or “compacting” tribes under Title III. Four of these five deductions are not in dispute. However, the Shoshone-Bannock Tribes contend that deduction of the Title I Retained Amount violates 25 U.S.C. § 450j-l (a) and (g) for two reasons: (1) the Title I Retained Amount consists of amounts defendants may not lawfully deduct from the Secretarial Amount; and (2) defendants failed to satisfy the ISDEA’s declination requirements. A. Deduction of the Title I Retained Amount from the Secretarial Amount The parties have a basic disagreement over the purpose of the Title I Retained Amount. The Portland Area Office budget contains various line items for hospitals and climes, various programs (Dental, Mental Health, Alcoholism, Public Health Nursing, and Health Education), direct operations, contract health care services, and the Office of Environment, Health, and Engineers. The Shoshone-Bannock Tribes argue that once the Portland Area Office budgets a certain amount to a certain program, such as Maternal & Child Health, then that line item constitutes the Secretarial Amount for the operation of that program which cannot be reduced. They point out that the ISDEA specifically requires that the Secretarial Amount: (1) shall not be reduced to make funding available for contract monitoring or administration by the Secretary; (3) shall not be reduced by the Secretary to pay for Federal functions, including, but not limited to, Federal pay costs, Federal employee retirement benefits, automated data processing, contract technical assistance or contract monitoring; (4) shall not be reduced by the Secretary to pay for the costs of Federal personnel displaced by a self-determination contract; 25 U.S.C. § 450j — 1(b) (emphasis added). Defendants respond that the Title I Retained Amount is not a prohibited reduction of the Secretarial Amount under, the ISDEA, but is an appropriate deduction to cover the cost of services which the tribes cannot assume. The Title I Retained Amount is described in the Portland Area Office budget worksheet as: the amount required for continued direct administration of existing and future Title I contracts. The Title I retained amount also provides for the staffing that will be required to evaluate, negotiate, and award proposals for continued assumption of service unit programs and Area Office and Headquarters shares; and negotiate Annual Funding Agreements (AFA’s) required [by] P.L. 103-413, the Amendments to P.L. 93-638. Plaintiffs Exhibit 4, p. 20. This description is confirmed by Thomas Tahsuda, the former Acting Director of the Portland Area Office’s Division of Self-Determination Services, who testified that the Title I’ Retained Amount is the “amount required by the area office for the continued administration of Title I contracts.” Plaintiffs Exhibit 5, p. 4. For example, it provides for the “review [of] proposals that were submitted for Maternal & Child Health program assumptions or for area office shares or for the redesign of program funds for the Maternal & Child Health program.” Plaintiffs Exhibit 26, p. 2. This same principle applies to other programs. Id. The amount does not include program evaluation once a program has been taken over by a tribe. Plaintiffs Exhibit 5, p. 18. However, it does include the review, evaluation and negotiation of proposals by tribes, such as the annual funding agreement negotiations. Id at 18,21. According to Mr. Tahsuda, the Title I Retained Amount was derived by withholding a flat 15% from the relevant line items on the Title I Amounts Available Spreadsheet. Plaintiffs Exhibit 5, pp. 5-6. It was “an estimate by the joint IHS tribal work group that 15 percent set aside in that column was a reasonable set aside.” Id. Defendants are adamant that the cost of evaluating contract proposals and negotiating annual funding agreements aré not contract-able, but are inherently federal functions which tribes cannot assúme. Those duties which the ISDEA imposes on the Secretary which no tribe can perform include: entering into self-determination contracts, 25 U.S.C. § 450f(a)(l); reviewing and approving or declining contract proposals, 25 U.S.C. § 450f(a)(2); providing technical service in connection with development of new self-determination contracts, tribal assumption of programs, and modification of existing contracts, 25 U.S.C. § 450h(d); evaluating proposals to ■ redesign programs, 25 U.S.C. § 450j(j); determining the amount of funds the “Secretary would have otherwise provided for the operation of’ contracted programs, 25 U.S.C. § 450j — 1(a)(1); and negotiating annual funding amounts, 25 U.S.C. § 450j-1(a)(3)(B). . Because the Division of Acquisitions, Office of Support Services, is responsible for some of these functions, none of its budget is made available for tribes under Title 1. Plaintiffs Exhibit 4, p. 5, 1. 65. However, as explained at oral argument, not all of these functions are performed solely by that office. That office may require the assistance of employees who are covered by other line items in the budget. For example, a social worker in the Maternal and Child Health Care Program may be required, among other functions, to participate in the evaluation of a new contract proposal by a tribe to take over that program. When providing that function, the social worker is performing a function that only IHS can perform. As long as the Portland Area Office retains employees to support certain programs which have not yet been fully assumed by all of the Portland area.tribes, those employees may need to spend part of their time reviewing contract proposals. Once all tribes assume a particular program, then, of course, that need ceases. Until then, this continuing responsibility is a cost that IHS must cover by retaining some funds. Based on the undisputed facts, this court is persuaded that the concept of the Title I Retained Amount is not inherently an improper reduction from the Portland Area Office budget for contract monitoring or administration. Instead, it is intended to cover costs which are not for the operation of any program and therefore which should not be included in the Secretarial Amount. Confusion arises because of the way in which the Portland Area Office deducted the Title I Retained Amount. Instead of subtracting a lump sum from the entire budget to cover Title I non-contractable costs,, the Portland Area Office first divided its budget into line items and then subtracted 15% from certain line items to cover these costs. This method gives the misleading appearance that the Portland Area Office first determined the cost of operating a program (or the Secretarial Amount), and then improperly reduced that amount. However, appearance does not comport with reality. Each line item in the budget does not in fact represent the Secretarial Amount for that line item. Although this court concludes as a matter of law based on undisputed facts that the Title I Retained Amount in theory is a proper deduction from the Portland Area Office budget, it is not at all clear that the amount deducted is proper. Although characterized by defendants as an issue of contractability, this issue is more appropriately characterized as essentially one of funding. The Shoshone-Bannock Tribes did not propose to operate any noncontraetable, inherently federal functions which they cannot assume. Instead, the issue is whether the 'funds requested by the Shoshone-Bannock Tribes for each targeted line item of the Area Office budget exceed the amount the Secretary would have otherwise spent for the tribes for that activity. Thus, even if some amount should be retained by the Portland Area Office for Title I contracting activities, this court must determine whether the Secretary has met her burden with respect to the amount retained. That issue is addressed next. B. The Secretary’s Finding Regarding the Title I Retained Amount The ISDEA directs the Secretary to approve and award proposed contracts “unless the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or is supported by a controlling legal authority that,” one of five specific “declination criteria” applies. 25 U.S.C. § 450f(a)(2). The Secretary declined the proposal concerning the Title I Retained Amount based on criterion D: “the amount of funds proposed under the contract is in excess of the applicable funding level for the contract.” 25 U.S.C. § 450f(a)(2)(D). To prevail, the Secretary must “establish by clearly demonstrating the validity” of that reason for declining the Tribal Shares Contract Proposal. 25 U.S.C. § 450f(e)(l). The Secretary’s Partial Declination Letter explained as follows: In determining the amounts available for contracting under 106(a)(1) the Tribes take the amount budgeted for a particular line, subtracts [sic] the Title III residual and the amount awarded to Title III compact tribes from that amount and multiplies that amount by [the Shoshone-Bannock Tribes’ share of the Portland Area User Population] to arrive at their Tribal share. In our opinion, this methodology overstates the Tribes’ 106(a)(1) amount. Pursuant to section 102(a)(2)(D) we decline to contract in the amount proposed by the Tribes. The 106(a)(1) amount should be computed in the following manner. The amount budgeted for PAIHS for a particular line item should be reduced by: the Title III residual, the amount awarded to Title III tribes in compacts, the amount retained to provide services to Tribes who contract under Title I of the [ISDEA], and by the amount retained to avoid adverse impact to non-contracting Tribes. The remainder is the amount available for contracting under Title 1. Plaintiff’s Exhibit 3, p. 2 (emphasis added). The Shoshone-Bannock Tribes contend that this statement does not meet the Secretary’s obligation to contain a “specific finding” explaining how the cited declination criterion D applies, and does not contain any controlling legal authority supporting the conclusion that the amount proposed by the Shoshone-Bannock Tribes in fact exceeds the applicable funding level. Contrary to the Shoshone-Bannock Tribes’ contention, the Partial Declination Letter provides a sufficient explanation of the legal basis for the Secretary’s decision. However, the evidence in the record is inadequate to clearly demonstrate that the amount proposed by the Shoshone-Bannock Tribes for the Secretarial Amount in fact exceeds the applicable funding level. The record reveals only that for FY 1996, an unidentified IHS joint tribal work group estimated that 15% of the budgeted cost for certain programs should be retained for Title I noncontractable costs. But the amount required for evaluation of new contract proposals obviously will vary from year to year depending on the number of new contract proposals submitted. Defendants have not provided this court with any information as to how many Title I contracts were estimated for FY 1996, how the joint tribal group reached the 15% figure, why it is reasonable, and how it compares to prior or subsequent years. In fact, the methodology for calculating the Title I Retained Amount changed dramatically for FY 1997. The worksheet for that year contains a new column labeled “106(a)(1)” which represents the Secretarial Amount calculated as the budget less “earmarked funds,” “residual amount,” and “self-governance amount.” Defendants’ Exhibit E, “Title I Tribal Shares Allocation Methodology for Area Office Shares FY 1997,” p. 4. From the Secretarial Amount, the “Title I Retained Amount” is deducted. However, the “Title I Retained Amount” is no longer a flat 15% figure, as in FY 1996, but is a different round number for each line item, e.g. $5,000 for Maternal & Child Health, which is much less than 15%. Defendants have provided no explanation for this difference. In addition, when all tribes move from Title I contracts into self-governance (Title III) compacts, the Portland Area Office will no longer need any Title I Retained Amount. In fact, the Portland Area Office anticipated some change in the amounts withheld by stating that the Title I Amount available to the tribes “will be increased periodically as downsizing occurs.” Plaintiffs Exhibit 4, p. 20'. Eventually it will need only to retain the “Residual Amount” which is the “amount of resources required to maintain the minimum federal activity required by statute if all Tribes compact under Self-Governance all IHS programs, activities, functions, and services.” Plaintiffs Exhibit 4, p. 20. In other words, at the same time as the number of Title I contracts decrease, Title III compacts will increase. Therefore, one would expect the Title I Retained Amount and Title III “Residual Amount” to bear an inverse proportion to one another. However, the “Residual Amount” is the same for both FY 1996 and FY 1997 ($2,134,000), while the Title I Retained Amount decreased slightly from $1,320,209 for FY 1996 to $1,182,386 for FY 1997. The explanation for this apparent inconsistency lies in the definition of “Residual Amount.” Although only 10 of the 41 Portland Area tribes had entered into compacts; the Portland Area Office deducted not just the “Residual Amount” for those 10 tribes, but the “Residual Amount” for the other 31 non-compacting tribes as well. This results in a duplicative deduction since a tribe will not fall into both categories at the same time. If a tribe is entering into a Title I contract, it will not also be negotiating a Title III compact and vice versa. Yet in FY 1996, a Title I contracting tribe suffered a 15% reduction in available Title I funds to cover the cost of negotiating the Title I contract, as well as a reduction for the “Residual Amount” as if it were already a compacting tribe. Defendants have not offered any justification for this apparent “double-dipping” other than substantially greater oversight and review responsibilities under Title I than under Title III. Unlike Title I, the Secretary has no discretion under Title III to decline to enter into a compact, but is restricted to negotiating terms. Thus, the Secretary’s Title I responsibilities require a larger staff to review the substance of proposals than do her Title III responsibilities. However, the requirement of additional staff under Title I fails to justify a deduction under both Title I and Title III for a Title I contracting tribe. Instead, the deduction should move from one category to the other as a tribe moves from one category to the other. In other words, although defendants are entitled to deduct some amount to pay for the cost of Title I non-contractable activities, the record is inadequate for this court to conclude on summary judgment that the 15% figure is an appropriate amount for that deduction. The ISDEA requires the Secretary to satisfy her burden of proof to clearly demonstrate the basis for her declination decision. That burden is not satisfied by the Secretary unilaterally removing from consideration whatever sum the Secretary chooses, with the remainder then defined as the Secretarial Amount. Such an approach serves to eliminate any scrutiny by the agency or the court of how the Secretarial Amount was calculated in the first place and whether the remaining amount reflects the amount the Secretary had been spending for the operation of a particular program for the tribes. Congress clearly foreclosed this strategy to avoid judicial review by crafting specific declination criteria. Instead, the Secretary is obligated to present evidence of the amount it has historically spent to operate certain programs or, conversely, spent to provide non-contractable Title I functions. For example, if a tribe submits a proposal seeking $1.2 million to take over operation of a clinic, but the Secretary determines that IHS spends only $1 million per year to operate this clinic, then the Secretary may issue a partial declination letter agreeing to a contract of only $1 million. Conversely, the Secretary. may determine that 15% of its $1.2 million budget for the clinic accurately represents non-contractable costs and may issue a partial declination letter agreeing to a contract of only $1.02 million. However, in both cases, when challenged by the tribe, the Secretary bears the burden to clearly demonstrate- that its determination is accurate concerning either the cost to operate the clinic or the amount of non-contractable costs. Due to the lack of evidence to clearly demonstrate that the 15% retainage was necessary to fund the Title I non-con-tractable functions, as opposed to one-tenth or even ten times as much, the Secretary is not entitled to summary judgment sustaining her declination based on the Title I Retained Funds. The question remains whether this failure of proof in turn entitles the Shoshone-Bannock Tribes to summary judgment. Heightened evidentiary requirements, such as clear and convincing evidence, must be taken into account when ruling on a motion for summary judgment, just as when ruling on a motion for directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). “Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” Id. Consequently, the proper inquiry is whether the evidence presented is such that a fact-finder could reasonably find either that the defendants have clearly demonstrated that the Title I Retained Amount is proper or that they have not. Although a genuine issue of material fact exists as to whether or not the 15% retainage is reasonable, this court is far from certain that the quality and quantity of evidence submitted is sufficient for defendants to meet their burden of proof at a hearing. However, at the time they filed their summary judgment motions, the parties did not know whether this court would apply the de novo standard of review and that uncertainty may well have affected the type of evidence submitted. Trial courts should act with caution in granting summary judgment and may deny summary judgment “where there is reason to believe that the better course would be to proceed to a full trial.” Id 477 U.S. at 255, 106 S.Ct. at 2513 citing Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948). Exercising that caution, this court would prefer to deny summary judgment to both parties on the Fourth Claim and hold a hearing to permit the record to be more fully developed as to the proper amount of the Title I Retained Amount. YI. DENIAL OF 80% OF PORTLAND AREA OFFICE SHARE (Sixth & Seventh Claims) The Sixth and Seventh Claims both concern the Portland Area Office administrative share. The Sixth Claim alleges that defendants violated 25 U.S.C. § 450j-l(a) and (g) by failing to award 100% funding for all Area administrative functions proposed by the Shoshone-Bannoek Tribes. The Seventh Claim alleges that defendants violated 25 U.S.C. § 450k by unlawfully imposing on the Shoshone-Bannoek Tribes the Portland Area Office “Release Plan.” According to the “Release Plan,” the Secretary determined that it would release only approximately 20% of its Area administrative shares for FY 1996 Title I contracting on January 1, 1996, another 58% on October 1, 1996, and the remainder in FY 1997 and 1998. This is described in the Partial Declination Letter as follows: The Tribe has requested that all negotiated Area Shares be released upon award of the contract. We decline to do so. Again the lengthy tribal consultation process that began in March of 1995 has resulted in the development of a Portland Area “release plan”. The schedule of release of available Area Office shares is January 1, 1996,— 20%; October 1, 1996 — 58%, and the remaining in FY 1997 and FY 1998. The Portland Area cannot release all funds to the Shoshone-Bannoek Tribe or any other Tribe applying for its Area shares in FY 1996. Plaintiffs Exhibit 3, pp. 3-4. This schedule was based on the Portland Area Office’s determination that if all tribes requested administrative shares in 1996, it could reduce its staff by 30 full-time employ-. ees at a salary savings of $1,494,000. Plaintiffs Exhibit 27, pp. 4-5. However, of that amount, $1,125,000 would be used to fund “employee separation” costs, leaving a total amount of $369,000 — or approximately 20%— available for distribution by July 1, 1996. IHS subsequently adopted a uniform “Tribal Shares Transfer Schedule Policy” in December 1996. Defendants’ Exhibit F. According to that policy, 100% of an applicant's share in liquid form is payable immediately, with payment of 50% of the encumbered assets deferred for up to 12 months and the remaining 50% deferred for up to 24 months. To the extent that the Shoshone-Bannoek Tribes allege in the Sixth Claim -that the Secretary awarded only 20% of the Portland Area Office share, they are mistaken. They were awarded 100%, but payment was deferred pursuant to the “Release Plan.” Although the Shoshone-Bannock Tribes express concern that the Secretary has permanently refused to pay 80% of the FY 1996 and FY 1997 Area shares to which they are entitled, that fear is unfounded. The Secretary has paid 78% of the FY 1996 Area shares to the Shoshone-Bannock Tribes and has not denied its obligation to pay the remaining 22% before the end of FY 1998 (September 30, 1998) as required by the “Release Plan.” Instead, the issue is whether or not the Secretary should complete payment sooner rather than later. Also with respect to both the Sixth and Seventh Claims, the Shoshone-Bannock Tribes argue that the “Release Plan” is illegal because (1) the ISDEA prohibits deferred payments, and (2) the Secretary has improperly withheld payment. As discussed below, this court concludes that deferred payments are permitted, but that payments may not be deferred for an unreasonable length of time. A. Deferral of Payments The Shoshone-Bannock .Tribes contend that nothing in the ISDEA permits the Secretary to retain any portion of the Secretarial Amount and release funds incrementally. However, no provision of the ISDEA requires full payment immediately upon award of a Title I contract. The ISDEA requires that upon approval of a Title I contract, “the Secretary shall add to the contract the full amount of funds to which the contractor is entitled.” 25 U.S.C. § 450j-l(g). In addition, the ISDEA requires the Secretary to approve any severa-ble portion of a contract proposal. 25 U;S.C. § 450f(a)(4). Although these provisions mandate full funding upon approval of a contract or any severable portion, they do not mandate that the Secretary pay the contract amount in full at any particular point in time. To the contrary, two other provisions of the ISDEA provide the Secretary with discretion as to the timing of payments under self-determination contracts. According to 25 U.S.C. § 450j(b), “[p]ayments ... under any [self-determination] contracts ... may be made ... in such installments and on such conditions as the appropriate Secretary deems necessary to carry out the purposes of this part.” This provision clearly permits th