By Mary Annette Pember | ICT

Just two weeks after the 50th anniversary of the signing of the Indian Self-Determination and Education Assistance Act, President Donald Trump launched a series of executive orders and federal layoffs that have put billions of dollars in tribal funding back into the spotlight.

Nearly every tribe in Indian Country relies at least in part on the transformational self-determination act, known as Public Law 638. It helps fund essential services such as hospitals, health clinics, education, climate projects, agriculture, law enforcement, firefighting and other programs under the United States’ trust and treaty obligations.

Attorney Lloyd Miller, an Indian law expert, told ICT the act provided a monumental boost to tribal sovereignty.

“The statute is a powerful means, I would almost say a weapon, for tribes to seize back control of local government services,” said Miller, a partner at Sonosky, Chambers, Sachse, Miller and Monkman law firm.

Most tribes, however, also have opted to receive some direct federal funding for projects or services, which allows them to receive funds from the U.S. government while still having tribal oversight of the programs.

Both of those options, however, have been upended since Trump was sworn in on Jan. 20.

In his first day back in office, the Trump administration ordered a freeze of federal grants and loans, throwing into question whether so-called 638 contracts would be among the programs targeted. The Trump administration later rescinded the order, but tribes have reported ongoing problems accessing the funding for their programs.

Then, on Thursday, Feb. 13, the Trump administration announced layoffs of hundreds of thousands of probationary federal employees across the U.S., including thousands working under the Indian Health Service, the Department of the Interior, the Bureau of Indian Affairs, the Bureau of Indian Education and other agencies. Officials later rescinded the layoffs for IHS workers amid complaints they would be “catastrophic” for Native communities.

The federal employees targeted for layoff, who had been hired within the last year or two and were not yet eligible for civil service protection, included some direct-fund positions but were not 638-funded jobs, officials told ICT.

‘Independent of federal control’

About two-thirds of tribal governments operate services entirely or partially under 638 contracts or compacts. Most also receive some direct funding as well.

“Nearly all tribes have at least one self-determination contract and one direct service still being provided by the federal government, “ said Jay Spaan, Cherokee, executive director of the Self-Governance Communication and Education Tribal Consortium. The consortium is hosting a conference April 7 in Chandler, Arizona, commemorating passage of the act and its impact.

Under the act, tribes assume control and funding over health, education, housing, governance and other programs. Prior to the passage of the act in 1975, tribes received services directly from the federal government, which determined the types and amounts of funding with little consultation from tribal citizens and leadership.

In the 1970s, Congress transitioned to a policy of self-determination for tribes. In his July 1970 address to Congress, President Richard Nixon laid out the beginning of the self-determination policy.

“We must make it clear that Indians can become independent of federal control without being cut off from federal concern and support,” Nixon said.

The act, signed on Jan. 4, 1975, requires the federal government to give tribes the same amount of money it had or would spend to operate a given program or service. If the tribe makes a request to take over a federal program serving its citizens, the government must agree.

Although there are various ways in which tribes can enter into 638 agreements with the government, the overall rules governing the process make clear that the 638 contracts are agreements between sovereign nations — tribal nations and the U.S. government.

“There’s absolutely no law authorizing the President to cease 638 payments or any other federal dollars going to Indian Country,” said Matthew Fletcher, professor at the University of Michigan Law School and co-director of the university’s Program in Race, Law and History.

“Any assertion of the power to stop payments because money supposedly supports ‘DEI’ or ‘wokeness’ is just a pure power play that no judge should allow,” said Fletcher, a citizen of the Grand Travers Band of Ottawa and Chippewa Indians who is the author of Turtle Talk, a leading blog on Indian law.

When the self-determination statute was first enacted, tribes were limited to contracting services, and soon found that the government was reluctant to hand over control, effectively thwarting the self-determination element intended by Congress, according to Miller.

In the 1980s and 1990s, tribally led initiatives helped amend the statute to add new authority, called self-governance compacting. Compacting moves away from treating tribes as contractors and reinforces that they are sovereign governments with decision-making authority over how resources are used.

Although the term 638 is often used to broadly describe both compacts and contracts, there is an important distinction. Compacted tribes have the freedom to consolidate federal programs and get lump-sum funding to administer them. Among the benefits of 638 agreements is the ability for tribes to move money from one program to another if necessary and to supplement funding through revenue from tribal businesses.

Indian policy experts agree that self-determination has been very successful for tribes and their citizens and has brought sustained economic development.

In 1970, the unemployment rate for Native people was 10 times the national average, and 40 percent of the Native population lived below the poverty line. Overall, federal spending per person on Native Americans was only two-thirds of the spending on the average non-Native U.S. citizen. In health, the comparable figure was 50 percent; in education, tribal funding was only 50-60 percent off the federal amount spent on mainstream education.

After the 1975 passage of the act, the rate of Native families in poverty declined by over 23 percent, according to a report by the Harvard Project on American Indian Economic Development.

The average income for Native Americans living on reservation increased by 61 percent from 1989 until 2022, and crowded housing declined by nearly 50 percent between 1990 and 2010.

Experts attribute the growth to the increase in 638 services. The Administration for Native Americans, part of the U.S. Department of Health and Human Services, notes that the statute has meant greater authority for tribes over their governmental services and programs, with the ability to make decisions, control funds and allocate services where needed.

And tribal citizens aren’t the only people who benefit from self-determination programs. In rural areas, tribal entities may be among the top employers, and the 37 tribal colleges and universities in the U.S. attract many non-Native students.

Accessing the funds

The latest actions by the Trump administration, however, have created funding problems for tribes.

In the past, tribes have been able to “draw down” from the agreed-upon funding as needed through the Bureau of Indian Affairs or the Indian Health Service through its Tribal Self-Governance Program.

Since the Trump funding freeze was announced in January, however, tribes have had difficulty accessing the digital portals to receive reimbursement from the 638 funds, according to Native leaders who were not authorized to speak on behalf of individual tribes.

Even after a federal judge issued a sweeping order to free up the funds, tribes reported holdups in accessing the money.

“This is like nothing we’ve seen before,” said Aaron Payment, a board member of the Sault Ste. Marie Tribe of Chippewa Indians in Michigan and a former vice president of the National Congress of American Indians. “The freeze is far more serious than the two-month government shutdown in 2015.”

Some tribes have the capacity to pull financial resources from other sources, he said, but there is no guarantee that they will be reimbursed later.

How the funds are accessed can vary. Some tribes get 638 funding from the government per fiscal year, and by the end of October, they have received their funding for the year. For some programs, however, such as those associated with the Department of Housing and Urban Development, 638 funding is drawn down by tribes on a monthly basis.

And with some federal grant programs, such as those under the Environmental Protection Agency, funding may be structured under a reimbursement agreement.

Another stumbling block for tribes in receiving the agreed-upon federal funding is the timeliness of agencies in releasing money. Under the Prompt Payment Act, the government gets an additional 30 days past the due date to release funding.

The funding depends on Congress, however. According to the Impoundment Control Act of 1974, the president can seek reduction in funding previously appropriated by Congress for federal activities, but only if the reduction is approved by a majority of each chamber of Congress.

The reductions would not apply to funding that had already been approved; it would apply only to future funding.

‘Vulnerable position’

Some tribes have opted for other methods of funding.

Rather than take over federal services and programs via 638, some tribes receive federal services through direct funding, in which agencies such as the Indian Health Service manage and provide services to the tribe.

Miller and Payment agree that “direct-service” tribes are especially vulnerable to government shutdowns or executive orders such as those issued recently by Trump.

The Sault St. Marie tribe, a direct-service tribe, lost two doctors and two nurse practitioners during the 2015 government shutdown, according to Payment. Subsequently, the tribe passed a resolution allowing them to move funds around as needed in the future.

The layoffs announced on Feb. 13 are believed to have impacted more than 3,500 workers across Indian Country. In addition to the 950 in the Indian Health Service, the layoffs targeted 2,600 workers at the Department of the Interior, 118 BIA workers, two positions in the Office of Assistant Secretary of Indian Affairs, and about half the Office of Tribal Justice at the Department of Justice.

The BIE was expected to lose about 40 employees. Two BIE tribal colleges, Haskell Indian Nations University in Kansas and Southwestern Indian Polytechnic Institute in New Mexico, were also expected to face layoffs. Sources told ICT that Haskell was expected to lose 24 percent of its staff and could face loss of accreditation.

The Trump administration’s proposed “buyout” offer for federal civilian employees — the legality of which has been challenged — could also impact direct-service tribes, Miller said. There is no guarantee, for example, that doctors and other health care workers accepting the buyouts could be replaced.

“It would have a devastating impact for direct-service tribes,” Miller said. “The direct-service tribes are in a vulnerable position. They are much more subject to the whims of the political process.”

What’s ahead

Miller cautioned that it is too early to fully understand the Trump administration’s decisions on tribes, and notes there’s no evidence that the administration set out to hurt tribes specifically with the recent actions.

“The new administration doesn’t even have people in place yet to begin making more granular decisions about what is appropriate,” he said.

He and Payment agree that the decision-making so far appears to reflect a lack of knowledge about tribes and the federal government's trust and treaty obligations.

Payment noted that the position of Tribal Advisor to the Office of Management and Budget has not been filled by the Trump administration. The former advisor, Elizabeth Molle-Carr, a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, issued a statement during the Biden administration’s final White House Nations Summit in December.

“Appointing a tribal advisor to [the Office of Management and Budget] has ensured that tribal voices are not just heard but fully considered and integrated into federal decision-making,” she said.

It’s unclear if the position will be filled during the new administration or if anyone is in place to speak up for tribes.

In a webinar presented by Pechanga.net called, “The New Normal: The Chaos of the First Two Weeks of the Trump Administration,” Ernest Stevens Jr., chairman of the Indian Gaming Commission, called on tribes and tribal organizations to unify their response to threats to tribal sovereignty.

“We (tribes) can’t afford to think this is going away,” he said.

A coalition of national and regional Native organizations — including the National Congress of American Indians, Native American Rights Fund, National Indian Health Board, National Indian Education Association and the Indian Gaming Association — sent a letter to Trump and leaders in Congress calling on them to ensure that the United States’ trust and treaty obligations do not “become collateral damage in the Trump administration’s implementation of its other priorities such as limiting diversity, equity, inclusivity.”

The coalition held an emergency meeting on Friday, Feb. 14, and issued a second letter to Trump calling on the administration to issue exemptions to the layoff of workers involved in providing tribal services that are obligated under trusts and treaties.

The cutbacks could have “unintended life or death consequences” for tribal citizens who rely on the services, according to the letter, a copy of which was obtained by ICT.

The coalition letter was followed up with a letter written by U.S. Sen. Ben Ray Luján, a Democrat from New Mexico, that was signed by nine other U.S. senators asking the administration to halt the layoffs of Indian Health Service staff.

“Tribal Nations have a legal and political relationship with the United States, and the federal government has a fundamental obligation to fulfill its treaty and trust responsibilities to Tribal Nations — an obligation that includes providing services such as health care to Native communities,” the letter states.

The Trump administration initially responded by exempting doctors, nurses and other critical care staff from layoffs. Newly confirmed Health Secretary Robert F. Kennedy Jr. followed up late Friday by halting all layoffs within the Indian Health Service, sources told ICT.

The Coalition of Large Tribes, COLT, issued an emergency resolution in support of a tribal exemption from any funding freeze or revaluation of services to tribal governments or citizens.

Details of the layoffs, meanwhile, continue to emerge across Indian Country as communities began to learn about the tearful calls and abrupt emails that gave federal employees just a few hours to leave the buildings where they had worked.

The aftermath has left some officials wondering whether tribes will move to drop the direct funding option altogether in favor of 638 funds.

“I think nothing's off the table at this point because … we have to be innovative in our problem solving and addressing these unique challenges that are arising,” said Tasha R. Mousseau, vice president of Wichita and Affiliated Tribes in Anadarko, Oklahoma. Mousseau is Wichita, Kiowa, and Caddo.

“We are a self-governance tribe,” she said. “When we think about the federal government, there's a legal obligation for them to provide health care. I would argue there's also a moral obligation to do that as well.”

Stevens, with the National Indian Gaming Commission, said the impact of federal funding cuts would be widespread.

“If the administration comes for us,” he said, “they are coming for America.”

Jourdan Bennett-Begaye contributed to this report.

Collected from Minnesota Public Radio News. View original source here.