Questions for the Record — USET SPF President, Chief Kirk Francis, Legislative Hearing on H.R. 5549 (July 28, 2022)
Summary
Questions for the Record with answers by Hon. Kirk Francis, President of the United South and Eastern Tribes Sovereignty Protection Fund (USET SPF), for the Committee on Natural Resources, Subcommittee for Indigenous Peoples of the United States, legislative hearing on H.R. 5549, July 28, 2022. Questions come from Rep. Leger Fernández and Rep. Grijalva on advance appropriations and mandatory funding for the Indian Health Service. The answers say chronic underfunding left Tribal Nations under-resourced during the COVID-19 crisis, call for a Marshall Plan for Tribal Nations, and describe care rationing and clinic closures during the 2018 shutdown. They state the Indian Health Service is funded at approximately 1/10th of what is necessary. The text appears to include the written testimony that follows.
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COMMITTEE ON NATURAL RESOURCES SUBCOMMITTEE FOR INDIGENOUS PEOPLES
OF THE UNITED STATES
1324 LHOB & CISCO WEBEX July 28, 2022 at 1:00 p.m. ET
Questions for the Record
USET SPF President, Chief Kirk Francis
Legislative Hearing on H.R. 5549
Questions from Rep. Leger Fernández for Hon. Kirk Francis, President, United South and Eastern Tribes
Sovereignty Protection Fund
1. President Biden’s FY2022 budget request notably called for advance appropriations for the Indian
Health Service.
a. Can you speak to the historic nature of this request coming from an administration?
The President’s requests for both FY22 and FY23 are historic. With regard to advance
appropriations—it shows this Administration understands how CRs and shutdowns
impact the delivery of health care in Indian Country. We appreciate that the
Administration took action to immediately include this proposal in its first budget
request. While we have been advocating for this important stabilization mechanism over
multiple Administrations and Congresses, this is the first time it appeared in a Budget
Request.
b. Why do you think this was not included for FY2023?
I think the Administration realizes that while advance appropriations is of critical
importance for Indian Country to provide stability and parity in the short-term, in the
long-term, mandatory funding is what holds the greatest potential for the federal
government to fully deliver upon its promises. I can’t speak to why both proposals were
not included together, but we do applaud the Administration for committing to include
an historic mandatory funding proposal in the FY23 Request. We look forward to
crafting legislation to make this a reality.
Questions from Rep. Grijalva for Hon. Kirk Francis, President, United South and Eastern Tribes
Sovereignty Protection Fund
1. Your testimony notes that the COVID-19 pandemic has demonstrated the need for a comprehensive
overhaul of tribal funding mechanisms. a. Can you elaborate more on this observation?
We have provided extensive testimony on this issue to the U.S. Commission on Civil
Rights. If the Subcommittee is willing, I respectfully request that this testimony be
entered into the hearing record. To briefly summarize for the purposes of this question:
The chronic underfunding of all federal Indian agencies and programs, as well as the
chronic federal neglect of Tribal Nation infrastructure, left us severely under-resourced
and at extreme risk during the COVID-19 crisis. On nearly every measure—health care,
housing, economic development—Tribal Nations and our people have faced more
challenges than other governments and populations during the pandemic. Even as
Congress and the Administration attempted to provide relief to Tribal Nations, we faced
and continue to face, barriers in accessing funds, implementing programs, and delivering
upon reporting requirements. In addition to the extreme loss of life in Indian Country, the
pandemic has underscored just how far the United States has to go in honoring its
promises to us.
That is why, in addition to full and mandatory funding, USET SPF is advocating for a
Marshall Plan for Tribal Nations. Much like the U.S. investment in the rebuilding
European nations following World War II via the Marshall Plan, the legislative and
executive branches should commit to the same level of responsibility to assisting in the
rebuilding of Tribal Nations, as our current circumstances are, in large part, directly
attributable to the shameful acts and policies of the United States. In the same way the
Marshall Plan acknowledged America’s debt to European sovereigns and was utilized to
strengthen our relationships and security abroad, the United States should make this
strategic investment domestically. Strong Tribal Nations will result in a strengthened
United States.
2. Your testimony mentions the many consequences that tribal governments faced during the last
government shutdown in 2018.
a. Can you speak more on the difficulties that the United South and Eastern Tribes
Sovereignty Protection Fund’s (USET SPF) member tribal nations experienced during this
time?
Some of our member Tribal Nations reported rationing care, clinic closures, the
furloughs of necessary staff, and even having to absorb the cost of paying federal
employees in order to continue to provide services. In addition, providers refused to sign
multi-year contracts, further exacerbating existing staffing difficulties.
b. What about within your own Nation?
3. In your experience, how does discretionary annual funding for the Indian Health Service impact
current tribal health disparities?
Discretionary funding caps contribute to a lack of full funding for the Indian Health Service. The
effects of this chronic underfunding compound over years and decades. The underfunding of the
IHS, from our perspective, is the reason for Indian Country’s health disparities. It is impossible
to provide adequate health care when the agency is funded at approximately 1/10th of what is
necessary (approx. $6B vs. $50B). And it is impossible for the agency to dig itself out of this
hole with the 5 or 10% increases provided through the appropriations process.
Many Tribal Nations are forced to limit what types of care are eligible under the
Purchased/Referred Care program, focusing on life-or-limb, as opposed to urgent or preventative
care. This underfunding means that our patients are not receiving care until the later stages of
illness or other health problems, when they are harder to treat and the stakes are higher.
The uncertainty of discretionary funding also makes our continuity of care unstable. For
example, some Tribal Nations are often unable to provide multi-year contracts to providers,
including doctors.
4. Your testimony notes that there is some confusion in Indian Country about which entity in Congress
has the authority to secure advance appropriations for the Indian Health Service. a. Can you
elaborate more on this?
My testimony references what appears to be federal confusion on whether authorizing
legislation is required to enact advance appropriations or Congressional appropriators already
have the authority to include advance appropriations for IHS in appropriations legislation.
According to a 2020 CRS report on this issue,
“In practice, there is no single procedural process for programs to begin receiving advance
appropriations. Some programs have received an explicit prior authorization for advance
appropriations (e.g., certain medical care accounts at the VA), and such funding has been
subsequently provided in appropriations acts. Other programs have been provided advance
appropriations without any explicit underlying authorization for an alternative period of
funding.”
Confusion over the path forward for this proposal in the House is further muddled by a lack of
clarity on what outstanding information House appropriators are seeking from IHS and OMB in
order to move forward with this proposal. Again, if we could have this information, we would be
more than happy to assist in advocating for its release. Regardless, USET SPF maintains that the
time is now to enact advance appropriations for IHS and other federal Indian agencies and
programs. The House of Representatives must work to better honor its trust and treaty
obligations by taking immediate steps to enact advance appropriations—whatever those steps
may be.
July 10, 2020
Testimony of the United South and Eastern Tribes Sovereignty Protection Fund
Before the U.S. Commission on Civil Rights Virtual Public Briefing:
Assessing COVID-19 and the Broken Promises to Native Americans
Chairwoman Lhamon and members of the U.S. Commission on Civil Rights (USCCR), thank you for
holding this hearing and for the opportunity to provide testimony on the ways in which the federal
government’s chronic failure to uphold its fiduciary trust and treaty obligations to Tribal Nations
has exacerbated the COVID-19 public health emergency in Indian Country. I am Lynn Malerba, Chief of
the Mohegan Tribe and Secretary for the United South and Eastern Tribes Sovereignty Protection Fund
Board of Directors. I also serve on numerous federal advisory committees, including as Chair of the Indian
Health Service (IHS) Tribal Self-Governance Advisory Committee and on the Department of Justice’s Tribal
Nations Leadership Council.
USET SPF is a non-profit, inter-tribal organization advocating on behalf of 30 federally recognized Tribal
Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico1. USET SPF is
dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal
Nations, and assisting our membership in dealing effectively with public policy issues.
Introduction
As the Commission is well aware, Native peoples have endured many injustices as a result of federal
policy, including federal actions that sought to terminate Tribal Nations, assimilate Native people, and to
erode Tribal territories, learning, and cultures. This story involves the cession of vast land holdings and
natural resources, oftentimes by force, to the United States out of which grew an obligation to provide
benefits and services—promises made to Tribal Nations that exist in perpetuity. These resources are the
very foundation of this nation and have allowed the United States to become the wealthiest and strongest
world power in history. Federal appropriations and services to Tribal Nations and Native people are simply
a repayment on this perpetual debt.
At no point, however, has the United States honored these sacred promises; including its historic and
ongoing failure to prioritize funding for Indian country. The chronic underfunding of federal Indian programs
continues to have disastrous impacts upon Tribal governments and Native peoples. As the United States
continues to break its promises to us, despite its own prosperity, Native peoples experience some of the
greatest disparities among all populations in this country and have for generations. It is no surprise, then,
that the failures of the federal government are coming into horrifyingly sharper focus due to the global
pandemic. Decades of broken promises, neglect, underfunding, and inaction on behalf of the federal
1 USET SPF member Tribal Nations include: Alabama-Coushatta Tribe of Texas (TX), Aroostook Band of Micmac Indians (ME),
Catawba Indian Nation (SC), Cayuga Nation (NY), Chickahominy Indian Tribe (VA), Chickahominy Indian Tribe–Eastern Division
(VA), Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton
Band of Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee
Wampanoag Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi Band of Choctaw Indians (MS), Mohegan Tribe
of Indians of Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), Pamunkey Indian Tribe (VA),
Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian Nation (ME),
Poarch Band of Creek Indians (AL), Rappahannock Tribe (VA), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida (FL),
Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag Tribe
of Gay Head (Aquinnah) (MA).
Because there is strength in Unity
government have left Indian Country severely under-resourced and at extreme risk during this COVID-19
crisis.
Our existing systems of service delivery and infrastructure are experiencing greater stress than those of
other units of government, as we seek to maintain essential services and deliver upon our commitments, as
well as dedicate resources to the unique circumstances of COVID-19 response. In addition, many of the
business entities that Tribal Nations have established — both in order to determine our own destiny and
also out of necessity (due to the chronic underfunding of the federal trust obligation)— are currently
shuttered or experiencing steep declines in revenue. This is having a profoundly negative effect on Tribal
government operations, as many rely on these non-federal resources to maintain the services that the
federal government should be funding in full, in accordance with its trust and treaty obligations derived from
the cession of our lands and resources. At the same time, Indian Country is treated as merely another
grantee—forced to track, monitor, and apply for numerous streams of federal funding to address the
pandemic and its impacts, some of which is being severely mismanaged. While this would be burdensome
under normal circumstances, it is nearly impossible under the reduced capacity caused by COVID-19, and
runs counter to the sacred terms of our diplomatic relationship.
In the short-term, federal COVID relief, response, and recovery measures must be focused on rapid,
equitable deployment to Tribal Nations in a manner that reflects our unique circumstances and the federal
trust obligation. The federal government must support and uphold our sovereign right to determine how
best to use relief funding to the benefit of our citizens. And it must ensure that funding is delivered via the
most expedient mechanisms while providing sufficient opportunity for Tribal Nations to expend these
resources. In addition, Congress must exercise its oversight authority, as the Administration distributes the
funding from past and future legislative packages. Moreover, Congress can and should immediately
address the lack of governmental parity facing Tribal Nations in access to public health and emergency
management tools.
In the long-term, the United States must confront and correct its ongoing and shameful failures to honor its
sacred promises to Tribal Nations, many of which have been outlined in detail by the Commission in the
Broken Promises report. As the Commission states in Broken Promises, “the United States expects all
nations to live up to their treaty obligations; it should live up to its own.” The time is long overdue for a
comprehensive overhaul of the trust relationship and obligations, one that results in the United States finally
keeping the promises to made to us as sovereign nations in accordance with our special and unique
relationship. This change is urgently needed, as the global pandemic exposes for the whole word to see the
extent to which generations of federal neglect and inaction have created the unjust and untenable
circumstances facing Tribal Nations in the fight against COVID-19.
COVID-19’s Impact on Indian Country and the USET SPF Region
Indian Country continues to face disproportionately high rates of COVID-19 infection, even as rates are
declining for other populations. At the same time, the historically under-resourced Indian Health System is
facing steep declines in revenue, increases in COVID-19 response expenses, and is not well-equipped to
treat the disease. Our region, the Nashville Area of the Indian Health Service (IHS), for example, is one of
the hardest hit. Despite the incomplete picture painted by the partial data available to Tribal Nations and
Tribal Epidemiology Centers (TECs), as of July 7th, the Nashville Area has the third highest rate of positive
cases at over 11%. One USET SPF member Tribal Nation, the Mississippi Band of Choctaw Indians, is
currently fighting an outbreak, with one of the highest rates of infection in the entire nation at 960 per
10,000.
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Chronic Underfunding Results in Catastrophic Deficits in Health Care Infrastructure and
Operating Budgets
While much has been reported upon regarding the American health system’s lack of capacity to
handle a surge in infection-related hospitalizations, the Indian Health System, in many cases, does
not have the capacity to treat severe, or even moderate, cases of COVID-19 at all. Chronic and
extreme underfunding leaves Indian Country without much of the health care infrastructure
available to the rest of America. While there are 605 health facilities serving 574 federally
recognized Tribal Nations and our citizens across the country, just 46 of those facilities are
hospitals, with 13 meeting the criteria to be designated as Critical Access Hospitals. A scant 46
facilities have emergency rooms, while 20 have operating rooms and non offer tertiary care such
as open heart surgery or neonatal intensive care. The entire Indian Health System has just 37 ICU
beds,1,257 hospital beds, and 81 ventilators, with few personnel trained in their operation. The
Nashville Area has just two Tribal hospitals, with a majority of our citizens served by Tribal health
clinics, which lack the capacity to treat all but the most mild COVID-19 cases. Our clinics do not
have emergency rooms; they do not have intensive care units. Many do not have negative
pressure isolation rooms, employees and other patients are automatically exposed, should a
COVID-19 patient present to the clinic. Some of them do not have a full-time physician on staff.
They provide mainly primary care and community health services. Much of the secondary care,
and nearly all of the tertiary care needed, must be purchased from non-IHS facilities with limited
Purchased/Referred Care (PRC) dollars.
As you know, the PRC program is severely underfunded, with many facilities exhausting these
dollars completely by the summer of each Fiscal Year. While this budget line has received a
significant infusion of funding through coronavirus relief legislation, even this level of funding is
likely to be surpassed by the impacts of COVID-19. Due to the dangers associated with the
disease, many USET SPF Tribal Nations report operating health centers with just a ‘skeleton crew’
and a high number of staff on furlough. This causes a higher number of patients to be referred out
for care.
In addition, many Tribal Nations, including USET SPF member Tribal Nations, are reporting steep
declines in 3rd party reimbursements for care provided to our patients. With our clinics operating at
a staffing deficit, along with the cancelation of non-essential procedures and visits, we are unable
to bill sources federal and private insurance and receive critical reimbursements for the provision of
care. This shortfall represents an existential threat to continuity of operations, given the role that
third party billing (especially Medicaid and Medicare) plays in providing further resources in the
face of chronic underfunding on the part of the federal government. For some Tribal Nations, 3rd
party reimbursements comprise 50-60% of total operating budgets. At a recent Congressional
hearing, IHS Director, Rear Admiral, Michael Weahkee, stated that third party collections had
dropped between 30-80% and that it would take years to recover these losses, which, by Indian
Country’s estimate, total well over $1 billion.
Tribal Public Health Entities Denied Access to Surveillance Data
Our ability to respond to this public health crisis is further stymied by lack of access to quality public
health data at the federal and state levels. While the chronic underfunding of the Indian Health
System has played a significant role in preventing the development of a robust Tribal public health
infrastructure, states have cultivated extensive public health infrastructure. This includes the
establishment of reportable disease and vital statistics reporting mechanisms, outbreak
investigation, contact tracing, data collection, and quarantine measures for all residents, including
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AI/AN people. This data is then shared with the Centers for Disease Control and Prevention (CDC)
through cooperative agreements with each of the states.
In recognition of this lack of public health infrastructure at the Tribal level, the 1996 reauthorization
of the Indian Health Care Improvement Act (IHCIA) established 12 Tribal Epidemiology Centers
(TECs) across Indian country, one of which is housed at USET. In 2010, the permanent
reauthorization of IHCIA designated TECs as Public Health Authorities and further compelled the
Secretary of Health and Human Services (HHS) to share any and all health data with Tribal
Nations. However, this directive has not been honored, for the most part, and Tribal Nations and
TECs continue to experience frequent challenges in accessing data on both the federal and state
level—including vital COVID-19 data—on top of the consistent lack of investment in TECs and
Tribal public health capacity. TECs continue to petition both the CDC and state public health
departments for this vital information, but have only received state data where there are positive
Tribal-state relationships and some extremely limited COVID-19 testing data from CDC. This
hinders the work of TECs and, in turn, COVID-19 response at the Tribal level, as we are without an
accurate picture of the reach of the disease into our communities.
Federal Government Fails to Provide Adequate PPE and Testing Supplies
Over the course of the pandemic, Tribal Nations have received expired personal protective
equipment (PPE), faulty PPE procured by IHS through a company owned by a former Trump
official, and testing machines that have been known to provide a high rate of false negatives,
impairing the ability to diagnose in a timely manner; continuing the spread of the disease.. While
other units of government have access to the Strategic National Stockpile (SNS), this access is not
guaranteed for Indian Country and the Federal Emergency Management Agency (FEMA) is forcing
the Indian Health System providers to exhaust all other PPE resources before making a request for
resources through the SNS2. Legislation is pending that would confirm full Indian Health System
access. In the meantime, Tribal Nations must access PPE and other supplies through IHS’
National Supply Service Center, which experiences issues with volume and delays, or through the
private market. USET SPF member Tribal Nations continue to report difficulties with access to PPE
and reliable testing supplies.
Loss of Government Revenue Threatens Response and Essential Tribal Government
Services
Revenue losses due to the closure of Tribal government economic development entities are also
hindering COVID response and mitigation, as well as the provision of governmental services. As
the Commission noted in Broken Promises, Tribal Nations engage in gaming and other industries
in order to generate the revenue that funds essential government services to our people—services
that the federal government consistently fails to fund, despite the federal trust obligation. For
several months of this year, Tribally-owned business entities closed in order to protect employees
and the public, as well as promote public health objectives. At one point, for example, all of the
Tribally-owned gaming operations in the USET SPF region were shuttered. Though many have
reopened, at least partially, these reopenings were most often out of economic necessity and are
tenuous, as outbreaks continue across the country and patronage remains down.
2
See:
https://www.ihs.gov/sites/coronavirus/themes/responsive2017/display_objects/documents/ITU%20FEMA%20Res
ource%20Request%20Guidance%2003292020.pdf
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Lack of Connectivity Hinders Telehealth, Public Health Measures, Telework, and Distance
Learning
According to a 2018 Federal Communications Commission (FCC) report on broadband deployment
in Indian Country, just 46.6% of housing units on rural Tribal lands have access to high speed
broadband, a nearly 27-point gap when compared with non-Tribal rural households. The same
report also noted differences in mobile 4G LTE coverage between Tribal and non-Tribal
communities at 96% versus 99.8%. As our nation becomes ever more dependent upon these tools,
both to combat the disease and to maintain our way of life amid lockdowns, the digital divide
between Indian Country and other communities throughout America becomes even more stark.
In the case of one USET SPF member Tribal Nation, for example, lack of connectivity is impeding
its COVID-19 response. With homelands that comprise multiple communities spread across
numerous counties, some of its citizens live in areas with sufficient connectivity and others do not.
This acts as a barrier to public health announcements and other urgent communications from
Tribal leadership and officials, as well as access to information from other reliable sources
regarding COVID-19 prevention measures. It also creates extreme difficulty as the Tribal Nation
works to trace the contacts of those who have been infected.
Connectivity issues also impact Indian Country’s ability to adapt to the ‘new normal’ of conducting
our daily business in the virtual realm. In the absence of adequate broadband and 4G, many of the
adaptive measures that other communities have taken are unavailable to some Tribal communities.
This leaves our citizens without access to preventative care and check-ups, the ability to telework,
and the opportunity to continue their studies during school closures—compounding the disparities
we already face in these areas.
Lack of Housing Spreads Disease and Prevents Isolation of COVID Patients
The federal underinvestment in Indian Country’s housing infrastructure, as discussed in Broken
Promises, is contributing to the spread of COVID-19 in many Tribal Nations. The ongoing lack of
affordable housing has lead to overcrowded conditions, with multi-family and multi-generational
households common. Homelessness is also a problem, with citizens of some USET SPF member
Tribal Nations without a permanent address, shuttling between the houses of friends and relatives.
Both scenarios facilitate further COVID-19 infection, as those who are positive are unable to isolate
themselves from other residents in the case of overcrowded conditions and homeless individuals
are potentially infecting multiple households as they seek temporary lodging. Both allow the
disease to have a greater reach into Tribal communities than it has in many non-Native
communities.
Congressional Response to COVID-19 does not Reflect Prioritization of Trust Obligations
Since March, USET SPF and Tribal Nations and organizations across the country have been focused on
ensuring the robust inclusion of Indian Country as Congress takes legislative action in the fight against the
pandemic. It should be noted that the Coronavirus Aid, Relief, and Economic Security (CARES) Act
represents the largest transfer of resources to Indian Country in a single piece of legislation, at over $10
billion. However, this sum represents just 0.5% of the approximately $2 trillion in total funding. And while
the CARES Act and the three other legislative measures aimed at providing relief and response to the
public health emergency each contain provisions that seek to provide relief and support to Indian Country,
many of these do not reflect our unique circumstances and structures. And these provisions and set-asides
are spread throughout numerous agencies and programs within the Executive Branch, each with their own
mechanisms and requirements, making it burdensome and complicated for Tribal Nations to identify and
access critical funding.
5|Page
Indian Country is an Afterthought
While every member of Congress has an obligation to both their constituents and Tribal Nations, a
majority who serve in the legislative branch are unaware of their dual responsibilities as a federal
official. As Representative Tom Cole, one of four Tribal citizens serving in the U.S. Congress
stated regarding the Congressional oath of office during a 2014 meeting of the House Rules
Committee, “when we swear allegiance to the Constitution, you swear allegiance to Indian
sovereignty whether you know it or not.” Indeed, many in Congress are under-educated regarding
the diplomatic relationship between the U.S. and Tribal Nations, and its constitutional
underpinnings. This often leads to a failure to fully prioritize the interests of Tribal Nations during
Congressional deliberations for all but a handful of members, typically those who have direct
relationships with Tribal Nations (usually because of geography) and serve on committees whose
jurisdiction includes a primary focus on federal Indian agencies and programs, despite the
obligation to do so.
This was certainly true during consideration of COVID-19 relief and response legislation, as the
first two packages contained limited funding for Indian Country. And despite the substantial amount
of funding dedicated to Tribal Nations in the CARES Act, this is just a small sliver of the total, with a
majority of these resources are allocated through carve outs and set asides in funding aimed at
other units of government or non-Tribal interests. While USET SPF and our membership
recognizes and supports efforts to include our governments throughout legislation, this shoe-
horning in of Indian Country leads to the design and implementation of provisions in ways that are
not appropriate for Tribal Nations or reflective of the trust obligation. Many of these provisions are
difficult to implement or unworkable for Tribal governments, while others reach some, but not all, in
Indian Country.
The nature of the negotiations process for these types of extremely large packages of legislation
forces members of Congress to offer a small number of top priorities to be carried forward at the
discretion of Congressional leadership. Thus, with the conflicts inherent in representing those who
voted you into office and all federally-recognized Tribal Nations concurrently, the priorities of local
constituents most often supersede those of Indian Country. Even those who serve on relevant
committees of jurisdiction must contend with these competing priorities. Because of this, a very
small number of Indian Country’s specific priorities, which numbered more than 40, were
incorporated into the final CARES Act, with approximately 1/10 of the total funding available to
Tribal Nations allocated in provisions crafted specifically for our governments.
This inconsistency in advocating for Indian Country is further compounded by the lobbying process
and its transactional nature. Special interest lobbying drives much of the conversation at the
Congressional level and although Tribal Nations, as governments to which the federal government
has an obligation, should not have to conduct lobbying, many do so because of the influence this
representation carries. Despite our unique, diplomatic relationship, many in Congress incorrectly
view us as a special interest group. Indian Country should not be forced to expend its already
limited resources to encourage the federal government to do its job.
Ultimately, these realities result in an incomplete and administratively complex Congressional
response to the COVID-19 pandemic in Indian Country, with some of our priorities included in
broad legislation and other attempts to drive resources toward our communities spread throughout
federal agencies and programs designed with other units of government in mind. While it is
critically important that Tribal Nations be included as sovereign governments throughout legislative
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efforts the Coronavirus public health emergency, to do so without accounting for the diverse and
unique circumstances of Tribal Nations leaves many without the ability to access the relief and
resources intended for us.
Indian-Specific Policy Change Remains Sidelined
Although USET SPF continues to advocate for the greater inclusion of Tribal Nations in COVID
response legislation, the issues with the legislative process discussed above leave many of Indian
Country’s specific proposals, particularly those focused only on our interests, still pending with
Congress. Notably, two non-controversial proposals seeking to provide parity to Tribal Nations in
access to public health resources, which were introduced in March, currently await Congressional
action. S. 3486/H.R. 6274, The CDC Tribal Public Health Security and Preparedness Act and S.
3514/H.R. 6352, The Tribal Medical Supplies Stockpile Access Act, would guarantee Indian
Country’s access to critical public health tools that state, local, and territorial governments currently
enjoy: Public Health Emergency Preparedness funding through the Centers for Disease Control
and Prevention, and the Strategic National Stockpile, respectively. That these bills have not
already been incorporated into COVID-19 relief legislation is concerning, but what is more
disturbing is that Tribal Nations do not already have access to these resources. This points to the
continued lack of investment in Indian Country’s public health infrastructure and a failure to
recognize our sovereign right to protect our people.
Congressional Oversight is Lacking
As we will discuss further, the Administration’s implementation of Congress’ directives is at best,
inconsistent and slow, and at worst, negligent and in active conflict with Congressional intent and
the trust obligation. As federal agencies continue to mishandle COVID-19 response and the
implementation of legislation, Tribal Nations have sought Congressional intervention. Though many
of our allies in the House and Senate have lodged inquiries with federal agencies and applied
pressure where possible, it remains unclear what formal steps will be taken to ensure this is
corrected moving forward. Just recently, the Senate Committee on Indian Affairs held its first
oversight hearing on COVID-19 response in Indian Country. The only federal witnesses were the
Director of IHS and one of the Federal Emergency Management Agency’s (FEMA) regional
administrators, despite the fact that Indian Country has had dealings with numerous departments
and agencies over the course of the pandemic. Congress needs to exercise its oversight authority
to understand the Administration’s wholly inadequate response to this crisis in Indian Country. With
a divided Congress, and during a time when both the executive and legislative branches are feeling
increased pressure to achieve agreement on the 4th COVID-19 stimulus package prior to recessing
for the month of August, it is unclear whether Indian Country will see action to right these wrongs.
The legislative branch, and all branches of the federal government, must work to better understand the
diplomatic relationship between Tribal Nations and the United States, and the resulting legal and moral
obligations owed to us. All members of Congress should be focused on their obligations to our
governments in addition to their responsibilities to their constituents. Despite this lengthy history and our
great story of perseverance and strength, public perception of Tribal Nations and Native people remains
biased, inaccurate, and harmful to our progress. Because of these deeply held misperceptions, Native
experiences and voices are largely invisible or fundamentally misrepresented in public discourse, including
at the federal level. We are a forgotten people in our homelands. These misconceptions are rooted in a
failure of the United States to confront its own shameful history, including the atrocities committed against
our ancestors and the theft of our lands and resources. It is time for this country to acknowledge and
reconcile the complete and truthful story of our relationship—starting with our elected leaders.
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Administration’s Failure to Uphold its Obligations to Indian Country during a Global Pandemic
As the Trump Administration implements COVID-19 response, mitigation, and relief legislation, USET SPF
is advocating for the proper administration of new programs and the expeditious release of federal funds to
Tribal Nations. Despite the urgency posed by the public health crisis and the federal trust obligation to
Tribal Nations, the disbursement of resources intended for Indian Country has not been consistent,
expeditious, or equitable throughout the Executive Branch. While some agencies have consulted with Tribal
Nations on an expedited basis, implemented Tribal guidance, and quickly distributed resources, many have
not. Each Department and Agency is disbursing these critical funds using different, oftentimes complicated,
methodologies, including competitive grants, which is causing delays and barriers to receipt of urgently
needed resources. At the same time the Administration has utilized the cover provided by the focus on
global crisis to take action on political priorities hostile to the interests of Tribal Nations.
Treasury has Mismanaged the Coronavirus Relief Fund
The Department of Treasury is failing to properly administer the $8 billion Tribal set-aside in the
governmental Coronavirus Relief Fund (CRF). Despite extensive Tribal advocacy and guidance
shared with Treasury during the implementation of Title V of the CARES Act, the Department has
undercut our interests and the trust obligation at every turn. This has resulted in unreasonable
delays and deep inequities in disbursement of this funding.
o Failure to use Tribally-Provided Data
Following the passage of the CARES Act and two consultation sessions with Tribal
Nations, the Department required the swift submission of certain Tribal data points—
population/enrollment number, number of employees, and total land base—in order to
access CRF funds. Tribal Nations were required to attest to the validity of these numbers
under penalty of law. Soon afterward, Treasury announced that it would not be utilizing any
of the painstakingly prepared Tribal data in its initial distribution of 60% of the CRF Tribal
set aside based on population, claiming that there were inaccuracies in the data submitted
by Tribal Nations.
Instead, Treasury relied upon a set of data used by the Department of Housing and Urban
Development (HUD) to distribute Indian Housing Block Grant funding. This data set is
based on the self-report of racial background (American Indian/Alaska Native only or in
combination with one or more other races) during the U.S. Census for individuals living
within a given ‘formula area.’ While this data set may make sense for the administration of
HUD programs, it is extremely ill-suited to the administration of the CRF. First, there is little
correlation between this data and Tribal enrollment numbers or citizenship. Tribal Nations
count citizens across the United States and not just within a particular service area. Many
Tribal Nations provide essential governmental services to their citizens regardless of
where they live. This data is based on racial classification instead of the political
designation that is citizenship in a federally-recognized Tribal Nation. Tribal citizenship
does not change based on an individual’s location.
In addition, due to inaccuracies in Census counts, the restriction to ‘formula area’, and
previous Tribal Nation decisions opting not to access HUD programs, several Tribal
Nations, including many USET SPF Tribal Nations, had extremely low population numbers
in this data set or, egregiously, a recorded population number of zero. It is indefensible to
suggest these numbers are in any way representative of actual Tribal enrollment numbers.
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Though Tribal Nations have informed Treasury of these shortcomings and Treasury has
access to Bureau of Indian Affairs (BIA) Tribal Nation enrollment numbers, which better
represent Tribal populations, Treasury has taken no action to right this wrong. As a result,
a lawsuit has been lodged against the Department. During the course of litigation, it has
been revealed that by Treasury’s own estimate, the utilization of HUD data has resulted in
at least $679 million in underpayments to Tribal Nations.
▪ Recommendation: Treasury should be statutorily required to utilize Tribally-
provided (and attested to) data in any future distributions of CRF funding. In
addition, those Tribal Nations who received distributions utilizing a population
number that does not reflect actual enrollment must receive additional funding to
correct this inequity.
o Routing Funds to For-Profit Corporations
Early in its administration of CRF monies and following at least one private Alaska-specific
consultation, Treasury announced that it had determined for-profit Alaska Native
Corporations (ANCs) meet the definition of “Indian Tribe” under Title V of the CARES Act
and were therefore, eligible to be direct recipients of the $8 Tribal set aside from the CRF,
a fund that is clearly designated for units of government—not for-profit corporations. While
ANCs do provide services to Alaska Native Tribal Nations and people, they are not the
governments for whom the CRF was intended. Notably, this decision was reached in
collaboration with the Department of the Interior’s Bureau of Indian Affairs headed by
Assistant Secretary for Indian Affairs (ASIA), Tara Mac Lean Sweeney, who is a
beneficiary and former employee of an ANC, and whose husband is a registered lobbyist
for another. ASIA Sweeney failed to recuse herself from these deliberations, and the
matter is currently being jointly investigated by both DOI and Treasury’s inspectors
general.
▪ Recommendation: The CARES Act should be amended to clarify that the definition
of “Indian Tribe” under Title V is consistent with the 1994 Federally Recognized
Tribes List Act, as called for in the House-passed Health and Economic Recovery
Omnibus Emergency Solutions (HEROES) Act.
o Data Breach
On April 17th, several hours prior to the scheduled closure of Treasury’s online data
collection portal, the confidential data Tribal Nations had uploaded in order to qualify for
CRF resources was shared publicly. Despite this reckless breach of the trust obligation
and calls for action from Tribal Nations, Tribal organizations, and Tribal advisory
committees the Department has not issued any statement or information regarding next
steps to protect our governments from fraud or investigate the source of the release.
▪ Recommendation: Treasury should be required to conduct a thorough
investigation of the source and extent of the data breach, as well as provide credit
monitoring and other safeguards to Tribal Nations whose data was exposed.
o Lack of Transparency and Guidance
While Treasury participated in a single, one hour listening session on CRF expenditures at
the behest of Indian Country, USET SPF Tribal Nations continue to have several
outstanding questions regarding eligible CRF expenditures, documentation, and
recoupment procedures. This is compounded by the lack of clear instructions on the
process for submitting questions or point of contact to provide answers. The possibility of
back-end audits and federal recoupment of resources for unallowable expenditures looms,
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leaving many Tribal Nations with an untenable position when it comes to determining how
to expend CRF resources under a quickly approaching statutory deadline. At the same
time, it remains somewhat unclear exactly how each Tribal Nation’s individual allocation
was calculated under Treasury’s methodology. In pursuit of these necessary details, USET
SPF has written to Treasury several times to request the opportunity for our own phone
call with officials, as well as a FAQ document specific to the circumstances of Tribal
Nations.
▪ Recommendation: Treasury should be subject to transparency and reporting
requirements, such as those outlined in the HEROES Act. In addition, Treasury
should disclose its CRF calculations on an individual basis to each Tribal Nation
receiving funds. Finally, Treasury should be required to publish Tribal FAQs, as
well as provide a point of contact for questions related to the CRF.
HHS Refuses to provide Meaningful Access to Provider Relief Fund
Tribal Nations have not had sufficient access to the $175 billion Provider Relief Fund (PRF),
funded by the CARES Act and the Paycheck Protection and Health Care Enhancement Act,
administered at the discretion of the Department of Health and Human Services (HHS). These
funding authorizations were secured by Congress in order to provide broad relief to the American
healthcare system, including the Indian Healthcare System, which has been facing deep economic
impacts due to both losses in revenue and additional expenses associated with caring for COVID-
19 patients. Though healthcare providers across the country are facing declines in revenue and
increases in COVID-19 response expenses, IHS, Tribally-operated healthcare facilities, and Urban
Indian Organizations (ITUs) have been disproportionately impacted, and are the only entities to
which HHS has a trust obligation. With the unmet obligations of the federal government and the
substantial decline in 3rd party revenue as a result of the pandemic, Tribal Nations have been
operating with greatly diminished resources to address COVID-19. While HHS did increase its
Tribal set-aside from $400 million to $500 million in response to Tribal advocacy, this represents
0.28% of the total and is insufficient to 3rd party shortfalls and rising COVID-related expenses. This
sum is just 50% of what IHS estimates ($1 billion) has been lost by the Indian Health System, and
approximately 29% of the Tribal estimate ($1.7 billion). And although Tribal health care providers
have been eligible for other streams of PRF funding, it is unclear whether Indian Country has
benefitted or will benefit from additional provider relief dollars in a substantive way. HHS has
instituted a host of requirements and rules associated with each funding stream available under the
PRF. This includes an after-the-fact restriction on eligibility for a distribution to Medicaid providers if
the provider has already received a distribution targeted to Medicare providers3. While Tribal
Nations do bill both programs, our Medicaid patient population tends to be much greater than that
of Medicare.
o Recommendation: Given HHS’ broad discretionary authority over the PRF, the Department
should, at least, triple the set-aside for Tribal Nations. However, based on communications
with White House and HHS officials, it is unlikely that this will occur. In the absence of
further HHS action and in consultation with Tribal Nations, Congress should include a
Tribal Health Care Provider Relief Fund in the upcoming 4th COVID relief legislative
package.
CDC Creates Barriers to Funding and Data Access
The first coronavirus relief package, the Coronavirus Preparedness and Response Supplemental
Appropriations Act, directed that not less than $40 million in CDC funding for public health activities
3
https://www.hhs.gov/sites/default/files/provider-relief-fund-medicaid-chip-factsheet.pdf
10 | P a g e
be reserved for Tribal Nations and organizations. As this directive was implemented, Tribal Nations
and organizations urged that these funds be sent to the IHS via interagency transfer in order to
remove barriers to expeditious distribution that exist within the CDC, as well as ensure these funds
could be received via Indian Self-Determination and Education Assistance Act (ISDEAA) contracts
and compacts. While the CDC did act to double the set aside, it claimed that it was legally unable
to initiate the transfer. Instead, it acted to unilaterally to route a portion of those funds through
existing cooperative agreements with Tribal organizations, including USET, with the remainder
available directly to Tribal Nations via grant application. This caused major delays in distribution of
this critical funding at a time when no other resources were available to Tribal Nations, both
because of the deliberations around this decision and because of the grant application process.
Now, approximately 4 months later, Tribal Nations are just now receiving notices of award for these
dollars. Though CDC did not set a ceiling for these awards and encouraged Tribal Nations to
request all that was necessary, some USET SPF member Tribal Nations report that award levels
are far less than that for which they applied, while others received the full amount.
More recently, the CDC refused to provide access to TECs and Tribal Nations seeking vital public
health data. As noted earlier, state public health agencies report public health data, including data
collected from and about Tribal citizens, to the CDC. This data would allow TECs and other Tribal
public health authorities to conduct critically important surveillance work around COVID-19 and
other diseases and conditions. Yet, despite eventual agreement from the CDC in the presence of a
Congressional committee to provide requested data, TECs are still waiting.
o Recommendations: The authority of the executive branch to make interagency transfers at
the request of and for the benefit of Tribal Nations must be confirmed, by statute, if
necessary. A request for legislative language to achieve this has been included in
numerous communications with Congress to no avail.
In addition, the federal and state governments should be statutorily required to share all
available public health data with TECs and Tribal Nations. USET SPF and others are
proposing that this be made a requirement of state cooperative agreements with CDC.
Reservation Disestablishment without a Court Order
For the first time since the termination era, the Department of the Interior (DOI) has taken action to
disestablish a Tribal reservation, ordering the homelands of the Mashpee Wampanoag Tribe taken
out of trust on March 27th. The order from Secretary David Bernhardt came as the Tribal Nation
worked to respond to the COVID-19 public health emergency, during active litigation on the status
of the land, and following the rescission of the 2014 Carcieri M-Opinion4 and the issuance of a
new, more burdensome and restrictive 4-part test5 to meet the definition of “under federal
jurisdiction” in the Indian Reorganization Act—which a federal court recently ruled6 was an attempt
to change the rules around the Mashpee lands acquisition. At a time when the whole nation,
including Indian Country, was responding to the crisis and uncertainty caused by coronavirus, this
Administration acted unilaterally to further destabilize the Mashpee Wampanoag Tribe and all
Tribal Nations. Tribal homelands are fundamental to our existence as sovereign governments and
our ability to thrive as vibrant, healthy, self-sufficient communities. Since DOI was under no court
4
https://www.bia.gov/sites/bia.gov/files/assets/bia/ots/pdf/Solicitors_Memo_re_Determining_Eligibility_for_Land
_into_Trust_under_Category_1.pdf
5
https://www.bia.gov/sites/bia.gov/files/assets/bia/ots/pdf/Solicitors_Procedures_for_Determining_Eligibility_for
_Land_into_Trust_under_Category_1.pdf
6
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv2242-75
11 | P a g e
order to take the land out of trust, the disestablishment of the Mashpee reservation can only be
interpreted as a hostile act—one aimed at undermining Tribal governments.
o Recommendation: USET SPF has been advocating for a fix to the Supreme Court decision
in Carcieri v. Salazar, since it was handed down in 2009. Carcieri has created a deeply
inequitable 2-class system, in which some Tribal Nations have the ability to restore their
homelands and others do not. This 2-class system serves to deny these Tribal Nations a
critical component of the trust relationship, vital aspects of the exercise of inherent
sovereignty, and the opportunity to qualify for several government programs. USET SPF
continues to call for the immediate passage of a fix that contains the two features
necessary to restore parity to the land-into-trust process: (1) a reaffirmation of the status of
current trust lands; and (2) confirmation that the Secretary has authority to take land into
trust for all federally recognized Tribal Nations.
Education Funds Inordinately Delayed
While the CARES Act was signed into law on March 27th, the Bureau of Indian Education (BIE)
only recently disbursed $69 million critical funding allocated to BIE for schools operated by the
agency, Tribally-controlled schools, and Tribal Colleges and Universities, despite the school year
having already ended. In mid-April, BIE announced that $46 million of this total would be allocated
to BIE and Tribally-controlled schools to support distance learning and the logistics of school
closures. Following a nearly two-month silence, the funds were authorized for release on June 4th.
However, USET SPF heard reports from member Tribal Nations that the transfer of funds has been
unduly burdensome and delayed. Further, there has been no public announcement regarding the
methodology for distribution. In addition, the Department of Education was required to set aside
$153.75 million for BIE from the CARES Act’s Education Stabilization Fund. Those dollars were
transferred to BIE on June 15th and were just recently disbursed to Tribally-controlled schools with
the paternalistic condition that a spending plan be submitted.
o Recommendation: Congress should launch an inquiry into why this funding was delayed,
as Indian Country still has not been provided with an explanation. In addition, future
COVID-19 stimulus legislation should include hard deadlines for distribution. Tribal self-
determination should be promoted by reducing or eliminating reporting requirements
associated with the funding.
Tribal Nations must Cost-share for Federal Disaster Relief
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) imposes a
25% cost-share imposed upon Tribal governments (and other units of government) as a condition
of receiving direct Category B Public Assistance from the Federal Emergency Management
Agency under. Additionally, public assistance funds are only provided on a reimbursement basis.
Both the cost-share and the nature of Category B funding distribution are currently serving as
barriers to Tribal Nation access to this funding and by extension, the activities and resources it
supports, including the purchase of emergency supplies and hiring necessary emergency
management personnel. Unlike other units of government, Tribal Nations do not have access to tax
revenue from which to draw in order to provide the cost-share and conduct these emergency
activities pending reimbursement. And the federal government has unique trust and treaty
obligations to Tribal Nations.
Under the Stafford Act, the President has the authority to waive the cost-share, as well as provide
up-front funding to Tribal governments during the COVID-19 emergency. On April 20th, several
Tribal organizations wrote to the President urging these actions. While the Administration has since
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indicated that CRF funding can be used to cover the cost-share, no further action has been taken
on the Tribal requests.
o Recommendation: The President should act immediately to waive the cost-share and
provide up front resources to Tribal Nations. However, given that this is unlikely and would
be limited to the COVID-19 emergency, Congress should amend the Stafford Act to
permanently waive the cost-share for Tribal Nations and offer the option to receive
resources in advance in recognition of the trust obligation.
SBA Initial Refusal to Lend to Tribal Gaming Entities
The Small Business Administration (SBA) was charged with administering the Paycheck Protection
Program (PPP), a CARES Act provision that offers loans to small businesses, many of which are
forgivable, in order to keep workers on payroll. In establishing the PPP, Congress sought to ensure
that small businesses of all types had the opportunity to support employees during the extreme
economic downturn and widespread closures caused y COVID-19. In acknowledgement of the role
that our businesses play in supporting economies across the country and the federal trust
obligation, Congress explicitly included all Tribal Business Concerns (TBCs) meeting size criteria,
without regard for industry, as eligible for these loans. However, in implementing this provision,
SBA initially applied its 1953 regulations to the PPP, deeming TBCs that operate in the gaming
industry ineligible. This is a failure to recognize the role that TBCs play in the delivery of essential
government services to Tribal Nations and the economic health of surrounding communities, and to
ensure that federal law benefits Tribal Nations in an equitable manner. Although SBA eventually
reversed its guidance, it caused unnecessary delays in the delivery of resources to TBCs and their
employees when they were needed most. Every moment that Tribal Nations and organizations
must spend advocating for the federal government to uphold its obligations is a moment taken
away from the fight against COVID-19, as well as focus on our own progress and advancement.
o Recommendation: Congress must provide greater clarity during the drafting process and
oversight during the implementation process to ensure the broad application of laws for
Tribal Nations.
HRSA Funds Available to ‘Rural’ Tribal Nations Only
The Health Resources and Services Administration (HRSA) is subjecting the $15 million set aside
for Tribal Nations it is administering the under CARES Act to the agency’s narrow definition of
‘rural.’ This is an arbitrary and unnecessary barrier, especially during a national crisis, for many
Tribal Nations, including many USET SPF members, to whom HRSA has a trust obligation. HRSA
has further opted to deliver this funding via grants.
o Recommendation: For the duration of the COVID-19 emergency and beyond, all Tribal
Nations should be considered rural for the purposes of HRSA funding.
Threats to Tribal Nation Protecting Community through Highway Checkpoints
The federal government failed to coordinate a national response to the COVID-19 crisis, with some
in the Administration choosing to politicize the disease and public health measures. This has
resulted in many Tribal Nations, including USET SPF Tribal Nations, closing their borders and
taking other measures that differ from those of adjacent jurisdictions. For example, when it became
clear that the state of South Dakota was not going to institute the public health measures
necessary to control the spread of COVID-19 within its borders, the Cheyenne River Sioux Tribe
(CRST) acted to protect its citizens by installing checkpoints on the highways leading to its
homelands. These checkpoints have been immensely successful in identifying COVID and
mitigating its spread in CRST’s community. However, when the Tribal Nation refused to remove the
checkpoints, the governor of South Dakota wrote to the White House and Department of Interior
13 | P a g e
(DOI) to request intervention. Despite its legal obligation to uphold and defend Tribal sovereignty
and self-governance, DOI threatened to withdraw CRST’s law enforcement funding if it did not
comply with the governor’s request.
o Recommendation: In recognition of Tribal sovereignty and the trust obligation, the federal
government should work with tribal governments to ensure they have the support needed
when checkpoints and reservation closures are needed. Statutes, regulations, and
guidance should confirm Tribal public health and jurisdictional powers to protect our
communities.
Failure to Defend IHCIA
Litigation over the constitutionality of the Affordable Care Act’s (ACA) individual mandate to carry
health insurance, and by extension, the entire law, has moved to the U.S. Supreme Court. On June
26th, the Trump Administration filed a brief reaffirming its position that the entire law must fall,
without arguing that the Indian Health Care Improvement Act (IHCIA) or the ACA’s Indian-specific
provisions are severable. These provisions are clearly unrelated to the insurance reforms of the
ACA and the individual mandate in particular. Rather, they were included as a part of the ACA in
order to, at long last, ensure permanence for this foundational law and bring the Indian Health
System into the 21st century. This is a failure to uphold its obligations to protect the interests of
Tribal Nations, and is particularly egregious as Indian Country battles this pandemic, since the
IHCIA is the primary, stand-alone statutory framework for the delivery of health care services to
Native people. It is of the utmost importance that the Supreme Court’s long-established severability
rules are applied in this case. Striking down the ACA without severing IHCIA and the AI/AN-specific
provisions would have devastating impacts on the health of Tribal Nations and Native people.
o Recommendation: The Administration must take seriously its trust obligation to Tribal
Nations by defending the severability of these provisions.
Long-term Solutions
Deep and chronic failures require bold, systemic changes. Centuries of neglect and dishonorable dealings,
as well as a relationship predicated on the demise of our governments, cannot be wiped away by working
within the parameters of a system built to work against our interests. This reality is intensifying as Tribal
Nations are forced to fight COVID-19 from a position of extreme deficiency. USET SPF commends USCCR
for its commitment to revealing the results of this flawed relationship and proposing both short- and long-
term recommendations designed to ensure the federal government better honors its promises to Tribal
Nations in Broken Promises. While USET SPF endorses and supports many of USCCR’s
recommendations, we are also seeking fundamental and lasting change to U.S.-Tribal Nation relations in
order to truly improve the delivery of federal trust and treat obligations. This includes the removal of existing
barriers that interfere with our ability to implement our inherent sovereign authority to its fullest extent
which, in turn, will allow Indian Country to realize its great potential.
Full and Mandatory Funding for all Federal Indian Programs
Above all, the COVID-19 crisis is highlighting the urgent need to provide full and guaranteed
federal funding to Tribal Nations in fulfillment of the trust obligation. In the long-term USET SPF is
calling for a comprehensive reexamination of federal funding delivered to Indian Country across the
federal government. Because of our history and unique relationship with the United States, the
trust obligation of the federal government to Native peoples, as reflected in the federal budget, is
fundamentally different from ordinary discretionary spending and should be considered mandatory
in nature. Payments on debt to Indian Country should not be vulnerable to year to year
“discretionary” decisions by appropriators. Recently, some in Congress have called for mandatory
funding for specific agencies serving Indian Country. USET SPF strongly supports this proposal,
14 | P a g e
which is more consistent with the federal trust obligation, and urges that this be realized via an
entirely new budget component—one that contains all of the funding dedicated to Indian Country.
Not only would this streamline access to these dollars, this mechanism would reflect true
prioritization of and reverence for America’s trust obligation to and special relationship with Tribal
Nations.
Reforming the Office of Management and Budget
The Office of Management and Budget (OMB) asserts that over $21 billion in federal dollars is
appropriated to Indian Country annually. From the perspective of Tribal advocates, including those
who serve on budget formulation committees for federal agencies, this number seems to be widely
inflated, with far less actually reaching Tribal Nations and Tribal citizens. We suspect that OMB
arrives at this figure by tallying the amount for which Tribal Nations and entities are “eligible”,
regardless of whether these dollars actually reach Indian Country. Regardless, this represents less
than 1/10 of 1% of the annual value that the U.S. enjoys from federal lands and the natural
resources derived off of these lands, and just 0.45% of the total federal budget for Fiscal Year (FY)
2020. On a recent call with Tribal Nations and other units of government, the White House touted
the way in which it was honoring its promises to veterans, as evidenced by its FY 2021 Budget
Request, the largest ever at $243 billion to serve a population of 9.3 million. By contrast, the FY
2021 Budget request contains deep cuts to Indian programs, and even if the $21 billion figure is
accurate, does not similarly reflect the honoring of promises to Tribal Nations and Native people.
Both USET SPF and the Tribal Interior Budget Council (TIBC) have asked OMB for a full
accounting of federal funding distributed to Indian Country. To date, OMB has not responded to
this request. USET SPF firmly believes that this information is absolutely essential to the
measurement of the federal government’s own success in meeting its obligations and the work of
Tribal Nations. Congress must hold OMB accountable and require the agency to provide the
necessary detail to support its Indian Country funding claim on an annual basis.
As an agency of the U.S. government, OMB must also be required, at a minimum, to meaningfully
consult with Tribal Nations as it formulates budget requests and carries out other Executive
actions. OMB has taken the position that it does not have the same consultation requirements as
other federal agencies because it is an extension of the Executive Branch. This is incorrect as all
branches and divisions of the federal government share equally in the federal trust responsibility
and obligations. And it is precisely because the OMB holds this important position within the
Executive Branch that it has clear consultative responsibilities to Tribal Nations. OMB is entrusted
with verifying that the actions of federal agency actions comply with applicable law and policy,
including Tribal consultation requirements. OMB must be held to the same standards as those
agencies it oversees and seek to obtain consent from Indian Country for its actions.
USET SPF recommends a dedicated Tribal Affairs position be established at OMB to serve as an
advocate for Tribal Nations and coordinate within the agency on the development of policies and
budgets impacting Tribal Nation interests. Currently, examiners assigned to specific federal
agencies or programs and housed in different departments are the only OMB personnel dedicated
to Indian Country. USET SPF firmly believes that the creation of a higher-level, more
comprehensive position would assist the agency in fulfilling its obligations to Tribal Nations and be
more befitting of the sacred duty to our people.
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Cabinet Level Department for Tribal Affairs
Despite centuries of diplomatic relations with the United States, the federal officials charged with
the most direct engagement with Indian Country and the administration of a majority of our funding
lack the seniority necessary to conduct these relations in a manner reflective of our nation-to-nation
relationship. The IHS Director and ASIA each oversee agencies within larger executive
departments, and because of this, do not have direct access to the President and are not fully
empowered to execute on the government’s trust obligations. The time has come for the federal
government to acknowledge and respect our nationhood and its promises by elevating our
interests to the level of the President’s cabinet. Just as foreign nations engage with the United
States via the State Department, Tribal Nations should have a Department of Tribal Affairs through
which the trust obligation is delivered.
Expansion of Self-Governance Contracting and Compacting
Despite the success of Tribal Nations in exercising authority under the Indian Self-Determination
and Education Assistance Act (ISDEAA), the goals of self-governance have not been fully realized.
Many opportunities still remain to improve and expand upon its principles. An expansion of Tribal
self-governance to all federal programs under ISDEAA would be the next evolutionary step in the
federal government’s recognition of Tribal sovereignty and reflective of its full commitment to Tribal
Nation sovereignty and self-determination. In the case of COVID-19 response, it would provide for
a streamlined and expeditious approach to the receipt and expenditures of funding from across the
federal government, and ensure these resources can be utilized in ways that reflect the diversity of
Tribal governments.
USET SPF, along with Tribal Nations and organizations, has consistently urged that all federal
programs and dollars be eligible for inclusion in self-governance contracts and compacts. We must
move beyond piecemeal approaches directed at specific functions or programs and start ensuring
Tribal Nations have real decision-making in the management of our own affairs and assets. It is
imperative that Tribal Nations have the expanded authority to redesign additional federal programs
to serve best our communities as well as have the authority to redistribute funds to administer
services among different programs as necessary.
Further, Congress and the Administration should consider modifications to reporting requirements
under ISDEAA and other methods of funding distribution. The administrative burden of current
reporting requirements under ISDEAA including site visits, “means testing,” or other standards
developed unilaterally by Congress or federal officials are barriers to efficient self-governance and
do not reflect our government-to-government relationship. While obtaining data around Tribal
programs is critical to measuring how well we as Tribal governments are serving our citizens and
how well the federal government is delivering upon its obligations, Tribal Nations find themselves
expected to report data in order to justify further investment in Indian Country. This runs counter to
the trust obligation, which exists in perpetuity. The data collected by Tribal Nations must be
understood as a tool to be utilized in sovereign decision-making, not to validate the federal
government’s fulfillment of its own promises.
Because funding for federal Indian affairs is provided in fulfillment of clear legal and historic
obligations, those federal dollars should not be subject to a grant-based mentality. USET SPF
points out that federal funding directed to foreign aid and other federal programs are not subject to
the same scrutiny. Grant funding fails to reflect the unique nature of the federal trust obligation and
Tribal Nations’ sovereignty by treating Tribal Nations as non-profits rather than governments. We
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reiterate the need for the federal government to treat and respect Tribal Nations as sovereigns as it
delivers upon the fiduciary trust obligation, as opposed to grantees.
Evolve the Consultation Process
Broadly, the U.S. must work to reform the Tribal consultation process, as conducted by agencies
across the federal government. Tribal Nations continue to experience inconsistencies in
consultation policies, the violation of consultation policies, and mere notification of federal action as
opposed to a solicitation of input. Letters are not consultation. Teleconferences are not
consultation. Providing the opportunity for Tribal Nations to offer guidance and then failing to honor
that guidance is not consultation. This has happened with great frequency during the COVID-19
pandemic. Meaningful consultation is a minimal standard for evaluating efforts to engage Tribal
Nations in decision-making, and in the context of high-stakes infrastructure projects, Tribal consent
is required to fulfill the federal treaty and trust responsibilities. The determination of what level of
consultation is required should come from Tribal Nations. Meaningful consultation requires that
dialogue with Tribal partners occur with a goal of reaching consent.
Restore Tribal Homelands
USET SPF Tribal Nations continue to work to reacquire our homelands, which are fundamental to
our existence as sovereign governments and our ability to thrive as vibrant, healthy, self-sufficient
communities. And as our partner in the trust relationship, it is incumbent upon the federal
government to prioritize the restoration of our land bases. The federal government’s objective in
the trust responsibility and obligations to our Nations must be to support healthy and sustainable
self-determining Tribal governments, which fundamentally includes the restoration of lands to all
federally-recognized Tribal Nations, as well as the legal defense of these land acquisitions. With
this in mind, USET SPF continues to call for the immediate passage of a fix to the Supreme Court
decision in Carcieri v. Salazar. No Tribal Nation should have to defend the status of its homelands
from the illegal and arbitrary acts of the federal government, especially during a public health crisis.
Recognize Inherent Tribal Jurisdiction
Tribal Nations are political, sovereign entities whose status stems from the inherent sovereignty we
have as self-governing peoples, which pre-dated the founding of the Republic. The Constitution,
treaties, statutes, Executive Orders, and judicial decisions all recognize that the federal
government has a fundamental trust relationship to Tribal Nations, including the obligation to
uphold the right to self-government. Our federal partners must recognize the inherent right of Tribal
Nations to fully engage in self-governance and expand the authority of Tribal governments, so we
may exercise full decision-making in the management of our own affairs and governmental
services, including jurisdiction over our lands and people. This includes a full recognition of our
powers to protect our communities during the COVID-19 crisis, as well as Tribal criminal
jurisdiction by fixing the Supreme Court decision in Oliphant v. Suquamish Indian Tribe.
Invest in and Rebuild Tribal Infrastructure
For generations, the federal government – despite abiding trust and treaty obligations – has
substantially under-invested in Indian Country’s infrastructure. While the United States faces
crumbling infrastructure nationally, there are many in Indian Country who lack even basic
infrastructure, such as running water and passable roads. Now, the nation and world are
witnessing the deadly consequences of this neglect, as COVID-19 spreads through Tribal
communities that are unable to implement such simple public health measures as frequent hand
washing. According to a report released in 2017 by National Congress of American Indians, there
exists at least $50 billion in unmet infrastructure obligations across Indian Country. The United
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States must commit to rebuilding the sovereign Tribal Nations that exist within its domestic borders.
Much like the U.S. investment in the rebuilding European nations following World War II via the
Marshall Plan, the legislative and executive branches should commit to the same level of
responsibility to assisting in the rebuilding of Tribal Nations, as our current circumstances are, in
large part, directly attributable to the shameful acts and policies of the United States. In the same
way the Marshall Plan acknowledged America’s debt to European sovereigns and was utilized to
strengthen our relationships and security abroad, the United States should make this strategic
investment domestically. Strong Tribal Nations will result in a strengthened United States. At the
same time, any infrastructure build-out, in Indian Country and beyond, must not occur at the
expense of Tribal consultation, sovereignty, sacred sites, or public health.
Remove Barriers to Economic Development
Economic sovereignty is essential to Indian Country’s ability to be self-determining and self-
sufficient. In the case of COVID-19, economic sovereignty can mean life or death for Tribal
Nations. Currently, there is no source of funding available to Tribal Nations that will address the
loss of revenue we have experienced due to closures, even as large corporate interests have been
provided for in relief legislation. The revenue generated by Tribally-owned entities is typically our
sole source of non-federal funding, as many Tribal Nations do not tax economic activity occurring
within our borders. Although Tribal Nations have authority to tax noncitizens doing business in
Indian Country, when other jurisdictions, namely state and local governments, can tax those same
noncitizens for the same transactions, Tribal Nations must lower their taxes to keep overall pricing
at rates the market can bear or forgo levying a tax at all. The application of an outside
government's tax often makes the Tribal tax economically infeasible. When other units of
government siphon away our revenue through dual taxation, our ability to use this revenue for the
benefit of our citizens, through governmental programs and services, is jeopardized. Dual taxation
hinders Tribal Nations from achieving our own revenue generating potential, and in the case of
COVID-19, leaves many Tribal Nations without access to a revenue stream that can be utilized in
this fight. No other unit of government in the United States is subject to the taxation of an equally
sovereign peer.
Rebuilding of our Tribal Nations involves rebuilding of our Tribal economies as a core foundation of
healthy and productive communities. The tax treatment of Tribal Nations and our instrumentalities
must reflect our governmental status, as well as the trust obligation to support our economies. As a
matter of economic fairness, Congress and the Administration must work with Tribal Nations to
support and advance initiatives that would bring certainty in tax jurisdiction to Tribal lands by
confirming the exclusive authority of Tribal governments to assess taxes on all economic activities
occurring within our borders. Further, Treasury should establish an Office of Tribal Affairs for the
purpose of conducting ongoing, effective Tribal consultations, to review how pending and new
legislation impacts Tribal, and for the establishment of Treasury related policy that honors the trust
relationship the federal government has to tribes as set forth in the U.S. Constitution.
Conclusion
We appreciate the Commission’s willingness to reexamine and update Broken Promises through the lens of
the COVID-19 pandemic and its devastating effect on Tribal Nations. The circumstances that Tribal Nations
face during this public health emergency are directly attributable to the federal government’s centuries of
dishonorable action and inaction in its relationship with us. The United States’ shameful and unjust neglect
of its duties is coming to the fore as this illness ravages our dangerously under-resourced communities.
COVID-19 represents an existential threat to our people, our governments, and our way of life. The
pandemic is exposing the ever-widening gap between the trust obligation owed to Tribal Nations and the
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execution of that obligation. USET SPF demands accountability for the persistent, chronic failure to uphold
legal and moral promises to Tribal Nations. Though these failures have persisted throughout changes in
Administration and Congress, it is time that both the legislative and executive branches confront and
correct them. At a time when Americans finally coming to realize the urgent need for our country to
reconcile with its past, it should begin by atoning for its original sins against this land’s first peoples.
Countless lives are being lost due to historic and modern inaction. To continue to neglect this solemn duty,
especially during a worldwide pandemic, will be catastrophic for Indian Country and the nation as a whole.
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