Comments

During the year, USET SPF leadership attends consultations, listening sessions, commission meetings, and various committees to advocate legislation on various issues, subjects, and initiatives.  USET SPF also will comment on notices of proposed rulemaking, legislation, or court cases.  Click on the links below for specific comments you would like to view from USET SPF.

Topic
Title
Funding

USET SPF Comments on IHS FY 2019 Opioid Grant Funds

SUMMARY:  Among other instructions for distribution of these funds, IHS is directed to develop a grant-based opioid addiction Special Behavioral Health Pilot Program (SBHPP) to be modeled after the Special Diabetes Program for Indians (SDPI). Though USET SPF is glad to see IHS initiate consultation to distribute additional FY 2019 program funding, we note the limited amount of resources available under this line and with this in mind, question whether SDPI is an appropriate model. As future budget requests are developed, the agency, along with Congress, must consider that, much like SDPI, Tribal governments will require a robust, steady stream of resources to create and sustain culturally appropriate opioid prevention, treatment, and aftercare services.
We urge IHS, as well as Congress, to explore opportunities to deliver this funding to Tribal Nations through self-governance contracting and compacting. Though we are aware that IHS is carrying out instructions from Congress in distributing the $10 million through SBHPP grants, USET SPF continues to convey our opposition to the grant-based model of funding. USET SPF recommends IHS distribute funding to each IHS Area where the Area Directors can consult with Tribal Nations to determine the best method of allocation, including through Tribal shares and other formula-based methods.
When seeking to address the opioid epidemic in Indian Country, we urge IHS to remember the federal trust obligation and to distribute critical addiction funding in a manner that upholds the sovereign status of Tribal Nations.

Culture and Heritage / Consultation

USET SPF Comments on NPS Draft Programmatic Agreement – Emergency Supplemental Funding for Hurricanes Harvey, Irma, and Maria

SUMMARY:  USET SPF supports the development a draft agreement that directs the way forward for Tribal Historic Preservation Offices (THPOs) to evaluate the effects to historic properties with the use of Emergency Supplemental funding from the Historic Preservation Fund (ESHPF), as this is a central function of the trust responsibility and obligations. As NPS moves forward with the Programmatic Agreement (PA), it is critical that consultation occur on all aspects.
While we are supportive of the PA as written, we have serious concerns about one element in the Tribal Consultation section—specifically the development of Tribal Protocols. Despite a proposed finalization date of October 1, 2019, it is unclear whether NPS has consulted with Tribal Nations in the development of Protocols. A draft was not included in the draft PA, nor was this document discussed on the August 22nd conference call regarding the PA. The Tribal Protocols cannot and should not be finalized in the absence of Tribal advice and guidance. We urge the NPS to extend the deadline for the finalization and to conduct consultation with Tribal Nations on the Protocols.
USET SPF appreciates the opportunity to provide these comments to the NPS and, with additional Tribal consultation, is committed to support the NPS as it moves forward with implementing the draft PA and promulgating Tribal Protocols. We commend the agency for taking action to recognize the historical, cultural, and spiritual relationships that Tribal Nations have within our territories and lands in which we have ancestral or cultural ties.

Research

USET SPF Letter to NIH re: All of Us, Draft Data Sharing Policy and Intellectual Property Initiative

SUMMARY:  USET SPF expresses concern to the National Institutes of Health (NIH) regarding three initiatives including:

  • All of Us;
  • Proposed Provisions for a Draft NIH Data Management and Sharing Policy; and
  • Intellectual Property, Inventions, and Patent Rights in Biomedical Research.

Dear Tribal Leader letters (DTLLs) dated as early as April 2019 for all three initiatives convey that NIH wishes to engage in Tribal consultation and request input from Tribal Nations on how these initiatives may affect Tribal communities. Though the DTLLs were descriptive of the individual initiatives, they failed to include important consultation timelines as well as comment submission deadlines that are critical to the provision of Tribal advice and guidance. Frustratingly, we have recently been made aware that not only does consultation conclude for two of these initiatives in August 2019, but that the third has already concluded without announcement. Thus far, the actions of NIH have been of great concern not just to USET SPF, but to Tribal leaders, and members of the NIH Tribal Advisory Committee (TAC) who have commented on NIH’s conduct with regard to continued ineffective communications and insufficient consultation practices. As in our previous comments, USET SPF continues to underscore that NIH must recognize the critical importance of meaningful engagement with Tribal Nations and move forward in a manner that is inclusive and transparent.
NIH has a legal and moral trust obligation uphold the sovereign status of Tribal Nations, as we seek to protect, regulate, and maintain ownership over the data of our citizens and Nations. This obligation supersedes other interests. Tribal Nations and AI/AN individuals continue to face negative impacts from the unauthorized and unpermitted use of genomic data without Tribal Nation informed consent. Therefore, it is essential that the sovereignty, ownership, privacy, and use of our data is protected, as NIH sets research practices within the agency. While USET SPF recognizes the importance of scientific discovery and advancement, it is critical that NIH seek to prevent ethical violations against our communities and our people. Before finalizing these three initiatives, NIH must work with Tribal Nations and the NIH TAC to resolve outstanding concerns from Indian Country in order to ensure sovereignty is upheld and past abuses never happen again. Vital to this work is a transparent and meaningful consultation process.

Health/CMS

USET SPF Comments re: South Carolina Community Engagement Section 1115 Demonstration Waiver Application

SUMMARY:  Though the application includes an exemption for citizens of the only federally-recognized Tribal Nation in South Carolina, the Catawba Indian Nation, this exemption fails to include the entire population served by the Indian Health System, as well as the citizens of other Tribal Nations living in South Carolina. USET SPF is also deeply concerned regarding the overall lack of Tribal consultation with the Catawba Indian Nation on the formulation and submission of the application to CMS. As such, we oppose the application as it reflects a refusal to acknowledge Tribal sovereignty, the federal trust responsibility and obligations as well as the unique government-to-government relationship between the federal government and Tribal Nations.
USET SPF is concerned that CMS considers a state-by-state optional exemption for “members of federally recognized Tribes” to have satisfied its trust and treaty obligations to Tribal Nations. This approach is flawed for two reasons: 1. It fails to capture the entire population of AI/AN to which CMS has an obligation and 2. It inappropriately places access to a federal program, delivered in fulfillment of this obligation, in the hands of states.
USET SPF continues to underscore that CMS has clear authority to make blanket accommodations to ensure that work requirements within 1115 Demonstration waivers do not pose a barrier to access to Medicaid for AI/ANs. We urge CMS to retract its deeply flawed legal interpretation and work with Tribal Nations to not just preserve but expand access to Medicaid for AI/ANs. We continue to oppose, in the strongest possible terms, any action taken by the federal government that fails to recognize its sacred duty to Tribal Nations, including the approval of any 1115 waiver that does not contain an exemption for AI/AN from work requirements.

Justice / Funding USET SPF Comments on Potential Future Crime Victims Fund Tribal Set-Aside Funding

SUMMARY: USET SPF is deeply concerned about DOJ’s previous and continued administration of this funding. Despite receiving guidance from USET SPF, and Tribal Nations and organizations across Indian Country, that DOJ should provide maximum flexibility in the award of these dollars, DOJ’s outreach, solicitation, and grant requirements have not yet honored this expectation. This has resulted in the return of precious funding designated and intended for victims’ services in Indian Country. We urge DOJ to implement Tribal guidance and expectations in order to distribute the set-aside, as intended, including removing arbitrary and restrictive barriers to accessing funds.
DOJ’s goal and chief priority with the Victims of Crime Act (VOCA) Tribal set aside and other funds must be to do everything in its power to ensure their full and equitable distribution in Indian Country. This includes working to remove any requirements or limitations acting as barriers to the receipt of dollars by any Tribal Nation/organization applicant. As an agency of the federal government, DOJ has trust and treaty obligations to Tribal Nations, including fiduciary obligations. Subjecting Tribal Nations to onerous application and reporting requirements—treating them as non-profits—in order to access these dollars runs counter to that obligation, as well as the intent of Congress in establishing the set aside.
USET SPF urges DOJ to take the appropriate steps to distribute the total set-aside in Indian Country as intended.

OMB / Economy USET SPF Comments on OMB Request for Comment on the Consumer Inflation Measures Produced by Federal Statistical Agencies

SUMMARY: OMB’s proposal to change the consumer price index used to estimate the Official Poverty Measure (OPM) is deeply concerning to USET SPF. By proposing this action without first engaging in Tribal consultation, the OMB has failed – yet again – to fulfill its trust and treaty obligations owed to Tribal Nations under the U.S. Constitution, treaties, statutes, executive orders, and policies.
It is unclear whether the OMB has the authority to consider an action with such far-reaching, long-term consequences outside of the formal notice and comment rulemaking process. USET SPF strongly urges the OMB to rescind the proposed changes and engage in Tribal consultation on the impacts that any alteration in the use of consumer price indices may have on Tribal Nations and the fulfillment of the agency’s treaty and trust obligations. To better address budget and policy matters affecting Tribal Nations going forward, OMB should also establish a dedicated Indian desk within the agency. When paired with the consistent offering of a detailed cross-cut report on Indian Country appropriations, the OMB will evolve to a more transparent and accessible agency in doing its part to ensure that the United States is fulling its obligations to Tribal Nations.

IHS / CHAP Consultation USET SPF Comments on IHS National CHAP Consultation June 6, 2019
SUMMARY:  A national CHAP would expand access of the program to mid-level providers, including community health aides, behavioral health aides, and dental health aide therapists (DHATs) to Tribal Nations across the country. When IHS consulted with Tribal Nations on creating a draft policy that would expand CHAP in June 2016, USET SPF provided comments expressing our support for the nationalization of the program with maximum flexibility for Tribal Nations. We continue to support the expansion of CHAP, but underscore that this must not come at the expense of other vital IHS services. We also continue to seek flexibility for Tribal Nations to implement programs under CHAP in a manner that is representative of our inherent sovereignty.
In order for a truly “seamless transition” toward a nationalized CHAP, the agency must not look to eliminate existing programs and funding. Rather, CHAP should be integrated as a compliment to current community health infrastructure, with its own adequate funding. To achieve a model of healthcare that is sustainable, efficient, and culturally comprehensive, IHS must continue to collaborate and meaningfully consult on an ongoing basis with Tribal Nations on the implementation of a national CHAP.
Health Care / Funding USET SPF Comments on FY 2019 Funding for ISDEAA 105(l) Leases 4.26.2019

SUMMARY: In our comments we express our deep disappointment to learn that IHS has done nothing to avoid a shortfall in funding for this legal obligation and has, in fact, requested that Congress instead limit its liability. While the agency assured Tribal Nations that last year’s reprogramming would be conducted on a one-time basis, IHS is again seeking to cannibalize other line items to address its own failure to project 105(l) lease costs. This remains an unacceptable, unsustainable, and careless solution to a systemic problem at IHS. We reiterate that IHS cannot fund its own legal obligations on the backs of other critical programs. It is particularly disturbing that the agency is proposing to fund these leases by taking from the services line—reducing funding for direct health care services to Native people. It is offensive for IHS to suggest that Tribal Nations would recommend that any of the lines in the services appropriation be reduced, as well as for the agency to seek to circumvent the Maniilaq decision through Congressional action.
When it comes to meeting the legal requirements of 105(l) leases, IHS cannot continue to ignore its obligation to implement guidance from Indian Country. We again call for short- and long-term solutions to this shortfall that respect and uphold treaty and trust responsibilities and obligations. We remind IHS that consultation is meaningless if the expectations and desires of Tribal Nations are not honored.

Environment / Water

USET SPF Submits Comments to EPA on WOTUS Step 2 Proposed Rule 4.15.2019

SUMMARY: In September 2017, USET SPF provided comment [linked] to EPA on the first step in revising the definition of Waters of the United States (WOTUS) that would rescind and recodify the 2015 definition. Today’s comments reiterate our previous points regarding the protection of Treatment in a Manner Similar to a State (TAS) and the critical importance of meaningful and robust Tribal consultation on the proposed rule. We also provide additional comment on how EPA has conducted outreach thus far and has failed to address the deep concerns from Indian Country on the protection of Tribal waters. Should Tribal waters be polluted as a result of implementation of the revisions to WOTUS, the proposed rule does not provide an avenue or adequate resources to allow Tribal Nations to seek justice or other recourse. USET SPF continues to assert that any revisions to the definition of WOTUS must move forward in a manner that respects Tribal sovereignty and upholds federal treaty and trust responsibilities.

Health / Food

USET SPF Comments to USDA and FNS on SNAP Requirements – Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without Dependents 4.2.2019

SUMMARY: SNAP is a critical nutrition assistance program that ensures millions of low-income families, including American Indian and Alaska Natives (AI/ANs), have access to food. As a federal program, it is also a critical mechanism by which the United States meets its trust responsibility and obligations to Tribal Nations. The imposition of work requirements on AI/AN SNAP recipients runs counter to this sacred duty. USET SPF urges the USDA to meaningfully consult with Tribal Nations on the proposed rule and ensure that AI/ANs are exempt from any work requirements within the SNAP program. We continued to underscore that services provided through SNAP are another mechanism that the federal government utilizes to deliver upon the federal trust obligation to Tribal Nations. Impeding the ability of Tribal communities to utilize this program would be a violation of that obligation. The urgency and overall lack of outreach from the agency is troubling, as the proposed rule would limit access to critical food resources for Tribal Nations. USDA, FNS, and OTR must immediately provide the necessary exemptions within the proposed rule that are reflective of the unique relationship between the federal government and Tribal Nations. Further, the agencies must work to engage meaningfully with Indian Country to ensure that the proposed rule with not significantly reduce access to basic nutrition services.

Opioids

USET SPF Comments to NIH on 2018 Tribal Consultation on the Opioid Crisis in Indian Country 3.28.2019

SUMMARY: In response to the agency’s request for information seeking additional input to the NIH 2018 Tribal Consultation on the Opioid Crisis in Indian Country regarding the seven topics provided by the agency, we convey our support for the distribution of behavioral health funding through non-competitive formula or base funding under a contracting and compacting model as well as underscore the critical importance of meaningful Tribal consultation. We further encourage NIH to consider opportunities to Tribal Nations to prevent and treat addiction using traditional medicine and cultural practices that is respective of the unique treatment priorities of Tribal communities due to historical trauma.

Health

USET SPF Comments to HHS on Tribal Consultation Policy 3.15.2019

SUMMARY:  The critical component Tribal consultation has in the government-to-government relationship between Tribal Nations and the United States. Tribal Nations access various programs within HHS, not just services through IHS. We further caution HHS from making any unilateral revisions to the TCP that would diminish HHS’ ability to fully deliver upon the trust responsibility and obligations. As an agency of the federal government, HHS, including all OPDEV’s, are charged with delivering upon the trust responsibility to provide comprehensive health care to Tribal Nations.

Health

USET SPF Comments to HHS on the National Viral Hepatitis Action Plan 3.11.2019

SUMMARY:  According to the Centers for Disease Control and Prevention (CDC), AI/ANs are experiencing devastating effects of HCV infections, including:

  • the highest mortality rate at 10.8 deaths per 100,000 population compared to a national average of 4.5 deaths per 100,000 in 2016;
  • 2.3 times higher (age-adjusted) rates of chronic liver disease and cirrhosis deaths compared to Whites in 2016;
  • a 9% increase in mortality rates from 2010 to 2016; and
  • 2.9 times higher HCV incidence (number new of cases) rates compared to Whites in 2016.

The NVHAP must fully reflect the unique HCV treatment circumstances of Tribal communities and include critical strategies on how the agency will ensure Tribal governments and citizens have access to quality health care. The federal government has a trust responsibility to ensure Tribal Nations have access to resources, financial and otherwise, to address HCV in our communities. Among the vital resources needed to combat HCV in Tribal communities is access to direct federal funding for treatment and prevention programs. It is critical now, more than ever, that HHS address the disparities Tribal Nations face in access to critical funding resources when seeking to treat HCV infection within our communities.

Economic Development

USET SPF Comments to SBA and HUBZone Program Office on Proposed Revisions 2.14.2019

SUMMARY: Unlike other individually owned enterprises, Tribal governments relay on Tribally-owned enterprises for economic development to provide basic government services such as public safety, education, housing, and cultural programs. Therefore, modifications to the HUBZone Program can only be effective in Indian Country if they are inclusive of individual Native American as well as Tribal governments which have critical capital responsibilities that are essential to growing their economies, creating economic opportunities, and providing services. In our letter, we provide comments and recommendations to the SBA on how to implement the HUBZone Program in order have a meaningful and significant difference in the success of Tribal
enterprises.

LAND USET SPF Comments on DOI evaluation of the Secretary of the Interior’s authority to take land into trust in Alaska under the IRA via the extension of Section 5 of the IRA to Alaska in 1936 1.25.2019
SUMMARY: In our letter we provide input on DOI’s consideration of these issues given the significance of fee-to-trust acquisitions for all Tribal Nations, as well as the wide-ranging consequences that might follow different treatment for a group of Tribal Nations on the basis of geography  that is not supported by law.  We urge DOI, in accordance with its trust obligations and the clear mandates of Section 5 of the IRA as extended to Alaska as well as subsequent acts of Congress, including but not limited to 25 U.S.C. §5123 (f) and (g), to halt further examination of the Secretary’s trust acquisition authority in Alaska. Further, M-37043 should be restored as binding legal authority on DOI. To act otherwise contravenes clear statutory directives, and undermines DOI’s obligation to uphold its trust responsibility Tribal Nations in Alaska and across the United States.
HEALTH USET SPF Comments to Center for Medicare and Medicaid Services Virginia Work Requirements 1115 Demonstration Waiver 1.4.2019

SUMMARY:In our comments we oppose mandatory Medicaid work and community engagement requirements that do not provide an exemption for American Indians and Alaska Natives (AI/ANs), and express our concern that the Demonstration Application does not clearly exempt AI/ANs from new premiums and cost-sharing as required by the Social Security Act. We further stated changes or improvements to the Medicaid program must move forward in a manner that respects Tribal sovereignty and upholds federal treaty and trust responsibilities. Conditioning access to Medicaid on state imposed work requirements is a violation of the federal trust obligation. We continue to oppose, in the strongest possible terms, any action taken by the federal government that fails to recognize this sacred duty, including the approval of the Extension Application, or any 1115 waiver, that does not contain an exemption for AI/AN from work requirements. We urge CMS to retract its deeply flawed legal interpretation and work with Tribal Nations to preserve AI/AN access to Medicaid. We also urge CMS to ensure that existing statutory AI/AN protections from premiums and cost-sharing are reflected in the waiver.

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Centers for Medicare & Medicaid Services (CMS) approved Maine’s request for a new Medicaid demonstration project, entitled “MaineCare” in accordance with section 1115(a) of the Social Security Act. The approval is effective December 21, 2018 through December 31, 2023.