United South and Eastern Tribes Sovereignty Protection Fund — H.R. 5549 (July 26, 2022)

Summary

Written testimony of the United South and Eastern Tribes Sovereignty Protection Fund (USET SPF), dated July 26, 2022, for the House Natural Resources Subcommittee on Indigenous Peoples of the United States hearing on H.R. 5549, the Indian Health Service Advance Appropriations Act. Kirk Francis, Chief of the Penobscot Indian Nation and President of the USET SPF Board of Directors, presents it. The testimony supports advance appropriations and cites the Broken Promises Report, issued in December 2018, which concluded that funding of the federal trust responsibility remains "grossly inadequate". It says that since Fiscal Year (FY) 1998 appropriated funds for the Indian Health Service (IHS) and Bureau of Indian Affairs (BIA) were released before the new fiscal year in only one year, FY 2006.

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                                                                                                   1730 Rhode Island Avenue, NW
                                                                                                   Suite 210
                                                                                                   Washington, DC 20036
                                                                                                   P: (615) 872-7900
                                                                                                   F: (615) 872-7417
                                                                                                   www.usetinc.org
                                                                                                               July 26, 2022
          Testimony of the United South and Eastern Tribes Sovereignty Protection Fund
  Before the House Natural Resources Subcommittee on Indigenous Peoples of the United States
  for the Legislative Hearing on H.R. 5549, the Indian Health Service Advance Appropriations Act

Chairwoman Leger Fernandez, Ranking Member Obernolte, and members of the Subcommittee, thank you
for the opportunity to provide testimony regarding the federal government’s ongoing failure to uphold its
trust and treaty obligations to Tribal Nations and our ongoing support for necessary reforms like Advance
Appropriations. I am Kirk Francis, Chief of the Penobscot Indian Nation and President of the United South
and Eastern Tribes Sovereignty Protection Fund (USET SPF) Board of Directors.

USET SPF is a non-profit, inter-tribal organization advocating on behalf of thirty-three (33) federally
recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of
Mexico.1 USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and
authorities of Tribal Nations and in assisting its membership in dealing effectively with public policy issues.

Background
As the Subcommittee is well aware, Tribal Nations and Native peoples have endured many injustices as a
result of federal policies of ethnocide and genocide, 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. Indeed, in December
2018, the U.S. Commission on Civil Rights issued the Broken Promises Report, following years of
advocacy from Tribal Nations and organizations seeking an update to the 2003 Quiet Crisis Report, which
found deep failures in the delivery of federal fiduciary trust and treaty obligations. The Commission

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), Monacan Indian Nation (VA), Nansemond Indian Nation (VA), 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), Upper Mattaponi Indian Tribe (VA) and the Wampanoag Tribe of Gay Head (Aquinnah)
(MA).
                                       Because there is Strength in Unity
concluded that the funding of the federal trust responsibility and obligations remains “grossly inadequate”
and a “barely perceptible and decreasing percentage of agency budgets.” The report confirms what we in
Indian Country already know—with the exception of some minor improvements, the U.S. continues to
neglect to meet its “most basic” obligations to Tribal Nations. Though these chronic failures have persisted
throughout changes in Administration and Congress, it is time that both the legislative and executive
branches confront and correct them.

Regrettably, this is not the first time that USET SPF has appeared before this Subcommittee urging action
on federal funding to Indian Country generally and stabilization mechanisms, like advance appropriations,
in particular. It is important to note here that there is some question as to whether the Subcommittee is
required to authorize advance appropriations or whether House appropriators can take action
independently. Regardless, in 2019, we testified in support of legislation that would provide advance
appropriations for IHS and the Bureau of Indian Affairs. That same year, we also provided testimony
regarding the findings and recommendations of the Broken Promises Report, which include a
recommendation to provide advance appropriations. Both of these hearings occurred soon after a 35-day
federal government shutdown—the longest in history. Now, we are testifying as the United States struggles
to emerge from a once-in-a-generation pandemic. Despite the documented, tangible consequences that
each of these historic moments have had in Indian Country, especially on public health and health care
service delivery, Congress has failed to address long-standing, systemic issues in our funding and has
even failed to act on the comparably minor proposal to provide advance appropriations for IHS.

On top of chronic underfunding and its accordant challenges, Tribal Nations face the problem of
discretionary funding that is almost always delayed. Since Fiscal Year (FY) 1998, there has only been one
year (FY 2006) in which appropriated funds for the Indian Health Service (IHS) and Bureau of Indian Affairs
(BIA) were released prior to the beginning of the new fiscal year. Due to Congressional inaction and
gridlock resulting from unrelated issues, these delays in funding severely hinder the federal government’s
execution of its trust obligations to Tribal Nations—having destabilizing and disruptive effects on the
provision of basic government services in Indian Country. This includes vital programs and services such
as housing, law enforcement, road maintenance, social services, and health care—to name a few. Tribal
Nations have long urged the federal government to insulate the federal fiduciary obligation from its own
failures to enact appropriations legislation—including most recently during the FY 2022 appropriations cycle
in which we had historic support from both the Biden Administration and from the Senate Budget and
Appropriations Committee. However, not even this level of support was enough to achieve advance
appropriations for the most chronically underfunded federal health care program. Yet again, we must
appear before this Subcommittee to assert that it is time for Congress to recognize its responsibility to
ensure that funding for federal Indian programs and services, at the very least, reaches Indian Country on
time.

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 and came into stark relief during both the 35-day shutdown and the COVID-19
pandemic. While Indian Country has long known these failures and justices, the COVID pandemic brought
them into the full light of day as Indian Country was disproportionately impacted as a consequence of these
failures. 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 has exposed for the whole world 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.

35-day Government Shutdown
As is becoming lamentably routine in Washington, the 2018-2019 federal government shutdown was
precipitated by political disagreement over partisan issues largely unrelated to overall spending and
completely unrelated to Indian Country. Yet, year after year, the execution of the federal fiduciary trust
obligation is held hostage to partisan bickering and gridlock. As you are likely well-aware, the 2018-2019
shutdown, given its historic length, nearly brought the funding and services the United States is obligated to
provide to Tribal Nations to a halt.

The effects of the shutdown on the federal government’s execution of its trust responsibility and obligations
to Tribal Nations rippled across Indian Country. More than 50% of BIA workers were furloughed. And while
nearly 60% of IHS employees were forced to continue working without pay, as of late January 2019, the
agency had begun to deny specialty care. This close call could have resulted in tragic ends, up to and
including loss of life in Indian Country—all due to the federal government’s inaction.

The shutdown had destructive and disruptive effects on our ability to provide essential governmental
services to our people, as well as our ability to fulfill grant requirements. Many Tribal Nations were forced to
assess and prioritize programs and services; to determine how to cut expenses, including furloughs or
workforce reductions, as well as service reductions. Further, despite being awarded new, annual and
multiple year grants, for new or continuing programs or services, some USET SPF member Tribal Nations
lacked the available personnel to distribute the funds. Because of the shutdown, we either lost the ability to
perform critical grant deliverables because of the uncertainty of lack of funds, or we missed critical windows
to begin and complete those deliverables. This situation put some Tribal Nations in a position of potentially
losing precious grant dollars by having to return the funds or failing in performing the grant deliverables,
and/or needing to request extensions, which are not guaranteed.

COVID-19 and its Effect on Service Delivery
Throughout the COVID-19 pandemic Indian Country has faced disproportionately high rates of COVID-19
infection and considerably poorer outcomes than other populations. At the same time, the historically
under-resourced Indian Health System has been forced to contend with numerous challenges, including
steep declines in revenue, increases in COVID-19 response expenses, and dangerously insufficient
infrastructure to treat the disease.

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 of the IHS, where USET SPF member Tribal Nations are located, has just two Tribal
hospitals, with a majority of our citizens served by Tribal health clinics (many of which are upwards of 30
years old), which, at the beginning of the pandemic, lacked the capacity to treat all but the mildest 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 during the height of the COVID-19 pandemic with just a ‘skeleton crew’ and
the ability to provide acute care only. This caused a higher number of patients to be referred out for care.

In addition, many Tribal Nations, including USET SPF member Tribal Nations, reported steep declines in
3rd party reimbursements for care provided to our patients in 2020 and beyond. With our clinics operating
at a staffing deficit, along with the cancelation of non-essential procedures and visits, we were 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 2020 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, totaled well over $1 billion.

These are just a few of the impacts Tribal Nations experienced and continue to experience as a result of
the chronic underfunding of the Indian Health System during the COVID-19 pandemic. While many of these
issues are systemic and will require sustained effort to correct, there are many opportunities to enact
reforms in the short-term that will bring stability and parity to our funding. This includes advance
appropriations.

Support for Advance Appropriations
Following the longest federal government shutdown in history and a devastating pandemic, Indian Country,
joined by additional allies, has renewed calls for legislative action to insulate the federal fiduciary trust
responsibility and obligations from Congressional inaction and political stalemates. The time has arrived for
the United States to prioritize its commitments to Indian Country by taking the necessary steps to deliver
upon its obligations. This would require fundamental changes to the way federal Indian programs are
funded.

The vast majority of funding for Indian programs appears on the discretionary side of the budget. That our
funding is vulnerable to governmental inaction and political bickering is a failure of the federal government
to honor its sacred duty to Tribal Nations. In the short-term, all federal Indian funding must be protected
from shutdowns and continuing resolutions through advance appropriations legislation. This would ensure
that the federal government continues to provide funding to Tribal Nations, regardless of partisan politics,
and provide some certainty to our people, patients, and employees each year. It would also bring our
funding into parity with other discretionary programs that the federal government deems critical, including
those at the Department of Education, Department of Housing and Urban Development, Department of
Labor, and the Department of Veterans Affairs which are authorized for advance appropriations. Finally,
stability and certainty in our funding would represent efforts toward a more complete recognition of federal
trust and treaty obligations.
With this in mind, USET SPF lends its unequivocal support to legislation that would put an end to the
instability of CRs and shutdowns for all federal Indian agencies, programs, and funding. This includes
strong support for advance appropriations authority for both IHS and BIA. USET SPF strongly supports
H.R. 5549, the IHS Advance Appropriations Act, and H.R. 5567, the Indian Programs Advance
Appropriations Act (IPAAA). We extend our appreciation to the bills’ respective sponsors, Reps. Young and
McCollum, for introduction and their tireless support for federal Indian funding. We further note that
advance appropriations for IHS and BIA have bipartisan support across the House, as evidenced by the
bills’ cosponsors.

However, despite consistent advocacy and growing support for this common-sense reform, advance
appropriations for both agencies remain elusive. Together, Indian Country and the Biden Administration
spent the last appropriations cycle advocating for this change and yet Advance Appropriations for IHS in FY
2023 was not included in FY 2022 omnibus appropriations legislation. While the Senate proposal for FY
2022 would have provided Advance Appropriations for the IHS Services and Facilities accounts for the first
time in FY 2023, this authority did not carry over as the final bill was negotiated. The House proposal’s
report language indicated that the House Interior Appropriations Committee did not provide advance
appropriations authority for IHS because of a purported lack of detail from the agency. However, it remains
unclear what information is being sought. If, in fact, questions from appropriators remain, USET SPF and
our partners are more than willing to assist.

Advance appropriations for IHS (and all federal Indian agencies and programs), and the certainty it would
bring, is long overdue. USET SPF once again urges this Congress to act swiftly to bring the destabilizing
effects of its own inaction to an end for Indian Country. As leaders who have consistently demonstrated a
true understanding of this commitment and obligation, we implore this Subcommittee to work with your
colleagues to ensure enactment of these bills, to facilitate the provision of any necessary information from
IHS to appropriators and/or to urge appropriators to take independent action to provide advance
appropriations to IHS.

Indian Country Funding Mechanisms Need Comprehensive Overhaul
While we strongly support Advance Appropriations as a vital mechanism to bring certainty in the short-term,
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. Inadequate funding to Indian Country needs to be viewed as unfilled treaty and trust
obligations and should not be vulnerable to year to year “discretionary” decisions by appropriators.

Above all, the COVID-19 crisis has highlighted the urgent need to provide full and guaranteed federal
funding to Tribal Nations in fulfillment of the trust obligation. 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. Honoring the first promises made by this country, in pursuing the
establishment of its great principled democratic experiment, should not be a discretionary decision.

For the very first time, the President’s Budget Request proposes a shift in funding IHS from the
discretionary to the mandatory side of the federal budget, a move that stabilizes the agency and is more
representative of perpetual trust and treaty obligations. Further, a substantial request of $9.1 billion for IHS
in FY 2023 includes a 10-year plan to close funding gaps, increasing IHS funding to $36.7 billion in FY
2032—a 296% increase over this period—and exempting agency funds from sequestration. This change
makes meaningful inroads in the chronic underfunding of the IHS, while responding to the dangerous
instability the Indian Health System faces during continuing resolutions and government shutdowns. Year
after year, USET SPF has urged multiple Administrations and Congresses to request and enact budgets
that honor the unique, Nation-to-Nation relationship between Tribal Nations and the United States,
including providing full and mandatory funding. While we firmly believe all Indian Country funding should be
fully funded today, including the IHS, we recognize that the Biden Administration has taken an
unprecedented and positive step forward in its proposal to move us closer to that reality.

In addition to doing so as a part of the IHS proposal, the Request proposes mandatory funding for Contract
Support Costs and 105(l) leases—binding obligations—at BIA and the Bureau of Indian Education. While
we contend that all federal Indian agencies and programs should be subject to mandatory funding, in
recognition of perpetual trust and treaty obligations, we support the immediate transfer of these lines to the
mandatory side of the federal budget. This will ensure that funding increases are able to be allocated to
service delivery, as opposed to the federal government’s legal obligations.

These proposals represent a dramatic shift in federal Indian policy and the delivery of trust and treaty
obligations—for which USET SPF has consistently and passionately advocated. Never before has an
Administration issued a Budget Request that calls for mandatory funding, as well as a plan to substantially
increase funding for an agency charged with fulfilling sacred promises to Tribal Nations. We now call upon
Congress, and this Subcommittee in particular, to work with Tribal Nations and the Administration fulfill its
responsibilities and work with Tribal Nations and IHS to ensure that these proposals are crafted and
enacted.

Further, USET SPF is urging the expansion of self-governance to all federal agencies, programs, and
funds. Much of the federal funding across Indian Country is delivered through the competitive grant process
(and often through the states). Not only is this an abrogation of the federal trust responsibility to force Tribal
Nations to compete for federal dollars, the competitive grant process often precludes Tribal Nations from
having access to those dollars at all. Grant funding fails to reflect the unique nature of the federal trust
obligation and Tribal sovereignty by treating Tribal Nations as non-profits rather than governments. Self-
governance Contracting and Compacting should be an available option across the federal system.

In addition, USET SPF urges Congress to exercise its oversight authority in determining how much actual
funding actually reaches Indian Country. The Office of Management and Budget (OMB) asserts that over
$26 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. Both USET SPF and the Tribal Interior
Budget Council (TIBC) have asked OMB for a full accounting of federal funding distributed to Indian
Country and while recent efforts have been made to issue improved crosscut reports, greater detail
continues to be necessary. 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.

Finally, 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. Following
insufficient levels of funding for Tribal Nations in the Infrastructure Investment and Jobs Act, the United
States must commit to supporting the rebuilding and restoration of 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.

Conclusion
While USET SPF recognizes this Subcommittee’s strong, long-standing commitment to Indian Country, we
cannot accept funding mechanisms for federal Indian programs that continue to leave us vulnerable and fail
to reflect and respect fiduciary trust obligations. As we look toward recovery from the global pandemic,
USET SPF calls upon Congress, the Administration, and the whole of the federal government to join us in
working toward a legacy of change for Tribal Nations, Native people, and the sacred trust relationship.
COVID-19 has underscored the urgent need for radical transformation in the recognition of our
governmental status and the delivery of federal obligations our people. We can no longer accept the status
quo of incremental change that continues to feed a broken system. The federal government must enact
policies that uphold our status as sovereign governments, our right to self-determination and self-
governance, and honor the federal trust obligation in full. We look forward to partnering with this Committee
in an effort to advance these policies and bring them to urgently necessary fruition.


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