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
Department of Treasury’s Financial Crimes Enforcement Network/Economic Development USET SPF Comments to the Financial Crimes Enforcement Network on the Corporate Transparency Act – May 5, 2021

Summary: The Corporate Transparency Act (CTA) was enacted to prevent money laundering, terrorism financing, and other illicit activity. While USET SPF supports the goals of the CTA, implementing the directives of this law should not come at the expense of protecting the private, sensitive, and proprietary information of Tribal enterprises and businesses established pursuant to the governing laws and regulations of Tribal Nations. Our Tribal enterprises and businesses were established to create jobs and stimulate economic growth within our communities, and because of federal failures, continue to subsidize trust and treaty obligations. As FinCEN moves forward in developing the CTA reporting requirements, it must uphold our status as sovereign governments and honor the federal trust obligation in full. We look forward to continuing this dialogue and working with FinCEN to ensure CTA reporting requirements are developed with the best interests of Tribal Nation enterprises and businesses in mind.

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Department of Commerce’s Economic Development Administration/Consultation and Economic Development USET SPF Comments to EDA re: Consultation and Tribal For-Profit Grant Eligibility – April 28, 2021

Summary: USET SPF recognizes that these consultations were on a specific regulatory issue, but the manner and method EDA pursued on these consultations provide a fundamental example of why the agency must work to improve its consultation and coordination efforts with Tribal Nations. As departments and agencies have been actively reviewing and consulting on their consultation policies and plans per the Biden Presidential Memorandum directives, USET SPF has been actively engaged in these proceedings. We welcome the opportunity to provide similar recommendations on how EDA can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with the federal government.

We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that EDA join us in realizing this change and advocate for this change among its partners in the Executive Branch.

Topic
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United States Department of Agriculture/Infrastructure and Land USET SPF Comments on USDA Broadband ReConnect Program Final Rule – April 27, 2021

Summary: While the ReConnect Program will not solve all the broadband access and connectivity issues throughout Indian Country, it provides yet another resource for addressing Tribal Nation broadband disparities during and after the COVID-19 crisis. The COVID-19 pandemic has exacerbated current service delivery and infrastructure deficits throughout Indian Country, bringing centuries of federal neglect and failures to the forefront. This includes the chronic underfunding of broadband infrastructure in Indian Country. Acknowledging and understanding the diversity of Indian Country’s circumstances and priorities for broadband access will further USDA’s directive to appropriately award ReConnect Program funds to Tribal Nation applicants. As USDA proceeds in implementing new regulations for the ReConnect program, it is imperative that all due circumstantial considerations be given to benefit Tribal Nations. USET SPF looks forward to continuing to work with USDA to close the digital divide in Indian Country.

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Federal Energy Regulatory Commission/Consultation, Natural Resources, and Infrastructure USET SPF Comments: Federal Energy Regulatory Commission Creation of the Office of Public Participation – April 23, 2021

Summary: Upon review of FERC communications sent to Tribal Nations, it appears that its current Tribal Liaison is located within the Office of the General Counsel. This sends a message to Tribal Nations that the Commission views us as nothing more than a liability. The Commission should commit to more respectful, diplomatic relations with Tribal Nations and empower its Tribal Liaison position by creating an Office reporting directly to the Commissioners and specifically focused on Tribal Nation coordination, collaboration, and consultation. This action would ensure that issues affecting Tribal Nations are not lumped into the Commission’s Office of Public Participation and would further acknowledge FERC’s commitment to working with Tribal Nations on a Nation-to-Nation level. USET SPF strongly recommends that the Commission direct its efforts to determine more appropriate avenues for engagement and consultation with Tribal Nations.

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Department of Labor/Consultation USET SPF Comments to DOL on Tribal Consultation – April 21, 2021

Summary: An essential aspect of the federal trust responsibility and obligations to Tribal Nations is the duty to consult on the development of Federal policies and actions that have Tribal implications. This requirement is borne out of the sacred relationship between the federal government and Tribal Nations, as well as numerous treaties, court cases, laws, and executive actions. It is a recognition of our inherent sovereignty and self-determination. For too long, the United States has failed to fully uphold and implement EO 13175 and other consultation directives. This has resulted in irreparable damage to Tribal Nation homelands, sacred sites, and interests, as well as costly litigation against the federal government. Recent events, including the COVID-19 crisis, have underscored the urgent need for radical transformation in the recognition of our governmental status and the delivery of federal obligations to our people.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that DOL join us in realizing this change and advocate for this change among its partners in the Executive Branch.

 
Topic
Title
Department of the Treasury, Department of Veterans Affairs, the Social Security Administration, and the Small Business Administration/Consultation USET SPF Comments to Treasury, VA, SBA, and SSA re: Tribal Consultation
April 15, 2021

Summary: USET SPF welcomes the opportunity to provide recommendations on how the Joint Agencies can improve their consultation and coordination efforts with Tribal Nations. In an environment like the one created by the Presidential Memorandum, where Tribal Nations are receiving more requests for consultation than many can reasonably accommodate, we appreciate the convenience of a combined consultation. However, we caution against an overreliance on this model on issues where there may not be shared or common interest and note that it likely does not have much broader application beyond this space. We would further argue that this only serves to underscore the need to standardize the consultation process across the federal government and discuss this in greater detail in the attached.

We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with the federal government. While each executive department and its agencies must reevaluate its protocols and procedures for Tribal consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in this process. The federal government must work to standardize and provide a uniform foundation to its Tribal consultation methods to provide certainty to Tribal Nations and federal officials alike. It is time for a Tribal Nation-defined consultation model, with dual consent as the basis for strong and respectful diplomatic relations between two equally sovereign nations. In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute.

In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Instead of sending comments to each individual agency that participated in this consultation regarding updates to their Tribal consultation policies and work plans—as detailed in the March 8, 2021 DTLL—we have decided to offer comments that are relevant to each federal agency. Our recommendations focus on general principles of how federal departments and agencies must improve their coordination and consultation efforts, as well as specific issues Tribal Nations have encountered regarding actions and activities conducted by the Joint Agencies participating in these consultations.

We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that the Joint Agencies join us in realizing this change and advocate for this change among its partners in the Executive Branch.

Topic
Title
Department of State/Consultation USET SPF Comments to the Department of State re: Tribal Consultation
April 15, 2021

Summary: USET SPF welcomes the opportunity to provide recommendations on how the Department of State can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with the federal government. While each executive department and its agencies must reevaluate its protocols and procedures for Tribal consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in this process. The federal government must work to standardize and provide a uniform foundation to its Tribal consultation methods to provide certainty to Tribal Nations and federal officials alike. It is time for a Tribal Nation-defined consultation model, with dual consent as the basis for strong and respectful diplomatic relations between two equally sovereign nations.

In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute.

In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Our recommendations focus on general principles of how federal departments and agencies must improve their coordination and consultation efforts, as well as specific issues Tribal Nations have encountered with the Department of State actions and activities.

We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that the Department of State join us in realizing this change and advocate for this change among its partners in the Executive Branch.

Topic
Title
Department of Housing and Urban Development/Consultation USET SPF Comments HUD Consultation on Consultation
April 5, 2021
Summary: USET SPF welcomes the opportunity to provide recommendations on how HUD can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with the federal government.
While each executive department and its agencies must reevaluate its protocols and procedures for Tribal consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in this process. The federal government must work to standardize and provide a uniform foundation to its Tribal consultation methods to provide certainty to Tribal Nations and federal officials alike. In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Our recommendations focus on general principles of how federal departments and agencies must improve their coordination and consultation efforts, as well as specific issues Tribal Nations have encountered with HUD actions and activities.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that HUD join us in realizing this change and advocate for this change among its partners in the Executive Branch.
Topic
Title
Department of Transportation/Consultation USET SPF Comments_DOT Consultation on Consultation  March 31, 2021
Summary: USET SPF welcomes the opportunity to provide recommendations on how DOT and its various agencies can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with the federal government. While each executive department and its agencies must reevaluate its protocols and procedures for Tribal consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in this process.
In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute. In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Our recommendations focus on general principles of how federal departments and agencies must improve their coordination and consultation efforts, as well as specific issues Tribal Nations have encountered with DOT actions and activities.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that DOT join us in realizing this change and advocate for this change among its partners in the Executive Branch.
Topic
Title
Department of Interior/Consultation USET SPF Comments re: DOI Consultation on ARP Funding
March 31
Summary: We write on behalf of United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) to provide the attached comments to the Department of the Interior (DOI) in response to its consultation on the allocation of funding appropriated to Indian Affairs under the American Rescue Plan Act (ARP). USET SPF appreciates DOI’s swiftness in organizing this consultation, as we have consistently urged the expedient distribution of COVID-19 relief funding. Although there is hope on the horizon, COVID-19 continues to impact Tribal Nations and its effects will likely be felt long after the pandemic ends. It is with this in mind that we remain focused on timely and equitable distributions of ARP resources in a manner reflective of Tribal sovereignty and the diverse circumstances of individual Tribal Nations.
Due to the federal government’s chronic failure to fully fund trust and treaty obligations, as well as ongoing failures to provide necessary resources, Tribal Nations continue to operate with limited and diminishing resources as we work to address the impacts of COVID-19. While the $31.2 billion allocated to Tribal Nations under ARP provides opportunities in both the short- and long-term, DOI needs to work with Tribal Nations to ensure the $1.75 billion it administers, as well as the $20 billion under Treasury’s Fiscal Recovery Fund, is distributed as equitably as possible and in full recognition of Tribal sovereignty. Expeditious, but thoughtful, distribution of these resources will allow Tribal Nations to both address and begin to recover from the COVID-19 pandemic.
Environmental Protection Agency / Consultation USET SPF Comments on EPA Consultation on Tribal Consultation
March 31, 2021
Summary: Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with the federal government. While each executive department and its agencies must reevaluate its protocols and procedures for Tribal consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in this process.
In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute. In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Our recommendations focus on general principles of how federal departments and agencies must improve their coordination and consultation efforts, as well as specific issues Tribal Nations have encountered with EPA actions and activities.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that EPA join us in realizing this change and advocate for this change among its partners in the Executive Branch.
Topic
Title
Department of Health and Human Services/Consultation USET SPF Comments on HHS Consultation on Tribal Consultation – March 26, 2021
Summary: An essential aspect of the federal trust responsibility and obligations to Tribal Nations is the duty to consult on the development of federal policies and actions that have Tribal implications. This requirement is borne out of the sacred relationship between the federal government and Tribal Nations, as well as numerous treaties, court cases, laws, and executive actions. It is a recognition of our inherent sovereignty and self-determination. For too long, the United States has failed to fully uphold and implement EO 13175 and other consultation directives. This has resulted in irreparable damage to Tribal Nation homelands, sacred sites, and interests, as well as costly litigation against the federal government. Recent events, including the COVID-19 crisis, have underscored the urgent need for radical transformation in the recognition of our governmental status and the delivery of federal obligations to our people.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that HHS join us in realizing this change and advocate for this change among its partners in the Executive Branch.
Topic
Title
Treasury / Coronavirus Relief Fund USET SPF Comments re: Treasury CRF Tribal Allocation – March 24
Summary: We are hopeful that this is the first of many steps that Treasury will take to rectify its failures to uphold trust and treaty obligations to Tribal Nations in the distribution CRF resources and in prior dealings with Indian Country. However, we also have several concerns and questions about this consultation, as well as recommendations for Treasury’s future engagement with Tribal Nations.
As Treasury examines how it might allocate remaining CRF resources, including those that have been held back pending a decision in Chehalis v. Yellen, it should do so with a mind toward equity and justice. This situation demands immediate action to provide relief to Tribal Nations egregiously and uniquely harmed by Treasury’s use of IHBG data. This includes the plaintiff Tribal Nations in the litigation against Treasury on this issue—the Miccosukee Tribe, the Shawnee Tribe, and the Prairie Band of Potawatomi. It also necessarily includes those additional Tribal Nations who were listed as having a population of zero or, due to past lack of participation in IHBG, did not appear on HUD’s list at all. Due to the extreme inequity in the allocation of population-based resources to these Tribal Nations, Treasury must prioritize them in any distribution of residual CARES Act funding.
In addition, while the March 18th and 23rd consultations did not provide clarity, USET SPF is operating under the assumption that remaining CARES Act funds, inclusive of Chehalis v. Yellen dollars, are likely to total in the hundreds of millions. We presume that these funds could more broadly address the inaccuracy of IHBG. While a smaller number of Tribal Nations have been harmed more deeply than others, a much larger number of Tribal Nations were also unfairly shorted in the population distribution through the use of IHBG. USET SPF urges Treasury to also address these discrepancies based on the self-certified population numbers of Tribal Nations.
While USET SPF understands the spirit of this consultation to be one of reconciliation, we underscore the need for Treasury to ensure its primary focus is on upholding its obligations to Tribal Nations on an equitable basis. This includes prioritizing those Tribal Nations who were most egregiously harmed and left unjustly under-resourced during a global pandemic as a result of the use of IHBG data in allocating governmental relief funding. It is our hope and expectation that Treasury will take this failure into account as it determines how to distribute remaining CRF dollars.
United States Department of Agriculture / Consultation USET SPF Comments to USDA on Tribal Consultation – March 22
SUMMARY: USET SPF notes that the DTLL combined Tribal consultation with the Executive Order on “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” We remind USDA that we are not racial entities. Rather, we have a political relationship with the United States that has been established through the federal government’s trust and treaty obligations.
USET SPF welcomes the opportunity to provide recommendations on how USDA and its various agencies can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better,” in a way that truly modernizes our relationship with 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.
While each executive department and its agencies must reevaluate its protocols and procedures for Tribal consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in this process. The federal government must work to standardize and provide a uniform foundation to its Tribal consultation methods to provide certainty to Tribal Nations and federal officials alike. It is time for a Tribal Nation-defined consultation model, with dual consent as the basis for strong and respectful diplomatic relations between two equally sovereign nations. In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute. In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Our recommendations focus on general principles of how federal departments and agencies must improve their coordination and consultation efforts, as well as specific issues Tribal Nations have encountered with USDA actions and activities.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that USDA join us in realizing this change and advocate for this change among its partners in the Executive Branch.
Indian Health Service / ARP Funding USET SPF Comments on American Rescue Plan IHS Funding – March 19

SUMMARY: At a level nearly equal to the entire Fiscal Year 2021 appropriation for IHS, these funds have the potential to facilitate enormous change in the Indian Healthcare System, during the COVID-19 public health emergency and beyond. It is with this in mind that USET SPF urges IHS to take both a short- and long-term approach to the use of these dollars, and as we have previously advocated, utilize methodologies that will ensure rapid distribution to our communities that is equitable, flexible, and reflective of our sovereign governmental status.

As the COVID-19 pandemic enters its second year, Tribal Nations are feeling hopeful, as vaccine deployment continues across our communities. However, in seeking to respond to this once-in-a-lifetime public health threat, our staff and resources have also been severely taxed and in many cases, depleted. While Tribal Nations have seen some relief in previous legislative packages, in my cases, access to these resources has been uneven, with allocation amounts frequently insufficient to truly respond to the impacts of COVID-19 on our health systems. USET SPF celebrates and welcomes the $6.1 billion authorized for the Indian Healthcare System. However, it is critical that these resources be distributed in a manner that recognizes both the trust obligation, as well as current and ongoing inequities.

We appreciated hearing some of IHS’ thought process around these themes on the consultation call and urge an expeditious, but thoughtful, distribution of these resources.  This will allow our health systems to both address and recover from the COVID-19 pandemic.

Consultation / Department of the Interior USET SPF Comments on DOI Consultation  – March 19

SUMMARY: USET SPF welcomes the opportunity to provide recommendations on how DOI and its various agencies can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions alone are not sufficient to address systemic failures in the various consultation processes across the federal government. Broadly, the U.S. must work to reform the Tribal consultation process—to “build back better” in a way that truly modernizes our relationship with the federal government.
In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute. In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Recognizing that Tribal consultation is a Nation-to-Nation matter, USET SPF defers to its member Tribal Nations to provide specific comments DOI from their individual perspectives and experiences. For USET SPF’s part, we offer the attached general principles, as well as some specific recommendations for DOI.
We can no longer accept the status quo of incremental change that continues to maintain 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. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that DOI join us in realizing this change and advocate for this change among its partners in the Executive Branch.

Consultation / Department of Defense

USET SPF Comments re: DoD Consultation Plan of Action – March 8

SUMMARY: USET SPF welcomes the opportunity to provide recommendations on how the department and its various agencies can improve its consultation and coordination efforts with Tribal Nations. We see the value in the spirit of the January 26th Executive Memorandum, which is to recommit and refocus federal agencies to engaging in meaningful Tribal consultation. However, these actions are not sufficient to address systemic failures in the various consultation processes across the federal government. 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.
While each executive department and its agencies must reevaluate its protocols and procedures for Tribal Consultation, communication, and engagement, there must be a broader reconciliation across the federal government to provide certainty, consistency, and accountability in Tribal consultation. The federal government must work to standardize and provide a uniform foundation to its Tribal Consultation methods to provide certainty to Tribal Nations and federal officials alike. It is time for a Tribal Nation-defined consultation model, with dual consent as the basis for strong and respectful diplomatic relations between two equally sovereign nations.  In the short term, we must move beyond the requirement for Tribal consultation via Executive Order to a strengthened model achieved via statute. In the long term, we must return to the achievement of Tribal Nation consent for federal action as a recognition of sovereign equality and as set out by the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Recognizing that Tribal consultation is a Nation-to-Nation matter, USET SPF defers to its member Tribal Nations to provide specific comments DoD from their individual perspectives and experiences. For USET SPF’s part, we offer the attached general principles, as well as some specific recommendations for DoD.
An essential aspect of the federal trust responsibility and obligations to Tribal Nations is the duty to consult on the development of Federal policies and actions that have Tribal implications. This requirement is borne out of the sacred relationship between the federal government and Tribal Nations, as well as numerous treaties, court cases, laws, and executive actions. It is a recognition of our inherent sovereignty and self-determination. For too long, the United States, including the DoD, has failed to fully uphold and implement EO 13175 and other consultation directives. This has resulted in irreparable damage to Tribal Nation homelands, sacred sites, and interests, as well as costly litigation against the federal government. Recent events, including the COVID crisis, have 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. This includes evolving away from the broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that DoD join us in realizing this change.

Veterans Affairs / Indian Health Service Memorandum of Understanding

USET SPF Comments re: VA-IHS MOU Update – March 2

SUMMARY: The draft agreement would replace and supersede the MOU signed by IHS and the VA in 2010 to account for updates in policy and other changes within the agencies’ respective healthcare systems. While USET SPF supports efforts by IHS and the VA to bring necessary updates and revisions to the MOU, we underscore that ongoing Tribal consultation must be an integral part of its drafting and implementation. As agencies of the federal government, it is incumbent upon IHS and the VA to ensure that implementation of the MOU reflects the trust obligation to and sovereign status of Tribal Nations.
The federal government has a dual obligation to Native American veterans who have pre-paid for their healthcare, both through the cession of Tribal homelands and resources, as well as the defense of our nation. All barriers in access to critical health care services for Native American veterans must be viewed as a violation of this obligation. USET SPF reminds IHS and the VA that while it is important to build upon previous MOUs, there is still much progress to be made when it comes to fully delivering upon promises to Native American veterans. Central to the success of the revised MOU is on-going collaboration with Tribal Nations. We stand ready to work with IHS and the VA to ensure implementation of the MOU is reflective of Tribal sovereignty, self-governance, and self-determination.

Community Reinvestment Act (CRA)

USET SPF Comments to the Federal Reserve on the Community Reinvestment Act, Docket No. R-1723, RIN: 7100-AF94 – February 16

SUMMARY: Economic sovereignty is essential to Indian Country’s ability to be self-determining and self-sufficient. The current COVID-19 pandemic has resulted in harmful impacts to Indian Country’s financial and operational capabilities, exacerbating existing inequities resulting from the federal government’s failure to deliver upon its obligation to support Tribal economic development, as well as centuries of termination policy. Modernizing the CRA to benefit economic opportunity for Indian Country will provide the foundation for economic recovery and growth during and following the COVID-19 crisis. USET SPF is pleased to have the Federal Reserve take a proactive and determined approach in addressing the financial shortfalls of capital access and investment in Indian Country.
The CRA established several criteria to rate financial institutions based on four main areas: assessment area delineations, lending tests, community development tests, and ratings. However, there is not much discernible data regarding the local economic impact of non-Native banking institutions on Tribal communities. What is undeniably apparent, though, is that Tribal Nations continue to experience inequitable access to financial resources provided by non-Native banking institutions. The COVID-19 pandemic has further emphasized the shortfalls of these institutions and their inclination to overlook the financial circumstances of Indian Country. CRA regulations must be revised to ensure that regulators are educated on the challenges Tribal Nations experience in accessing financial resources from banking institutions. Similarly, in conducting examinations of these institutions, regulators should be trained to identify and document instances where these institutions fail to meet CRA directives to support Tribal communities. This data can be utilized to improve financial services for Tribal Nations and our citizens, especially as Indian Country continues to address the economic and operational ramifications of the COVID-19 crisis. Adopting and implementing these recommendations with further the Federal Reserve’s trust and treaty obligations to support economic opportunity and development for Tribal Nations. USET SPF looks forward to continuing to work with the Federal Reserve to ensure that beneficial and pragmatic updates included in the modernization of current CRA regulations.

Tribal Broadband

USET SPF Comments to NTIA on Tribal Broadband Connectivity Grant Program – February 11

SUMMARY: Decades of broken promises, neglect, underfunding, and inaction on behalf of the federal government have left Indian Country severely under-resourced and at extreme risk during this 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.
On February 2, 2021 NTIA announced three Tribal Consultations scheduled for February 5, 10, and 12, 2021 to receive recommendations from Tribal Nations regarding implementation of the TBCG Program. USET SPF has several concerns regarding questions posed by NTIA during these consultations, which will inform how they agency will structure the implementation and disbursement of TBCG Program funds. Specifically, we are concerned that program funds could potentially be allocated in a manner that does not support equitable access for all Tribal Nations. Similarly, USET SPF is concerned with questions posed by NTIA regarding the streamlining of historical, environmental, and cultural review processes for infrastructure deployment. In structuring the TBCG Program, NTIA must support and uphold our sovereign right to determine how best to use these funds for the benefit of our citizens. NTIA must ensure that funding is delivered via the most expedient mechanisms while providing sufficient opportunity and equitable access for all Tribal Nations to receive and expend these resources.
Acknowledging and understanding the diversity of Indian Country’s circumstances and priorities for broadband access will further NTIA’s directive to equitably disburse TBCG Program funds. As NTIA proceeds in structuring the funding allocation and programmatic requirements and deliverables of the TBCG program, it is imperative that all due circumstantial considerations be given to benefit Tribal Nations. In the arena of federal broadband funding and support for Tribal Nations, NTIA has largely been absent and an unknown federal entity in Indian Country. However, implementation of the TBCG Program provides NTIA with an opportunity to build upon its delivery of trust and treaty obligations to Tribal Nations. While the TBCG Program will not solve all the broadband access and connectivity issues throughout Indian Country, it has the potential to lay a foundation for addressing Tribal Nation broadband disparities during and after the COVID-19 crisis.

Health IT Modernization

USET SPF Comments to IHS on Health IT Modernization – January 22

SUMMARY: Based on the update provided by IHS during the listening session held on January 14th, steady progress continues to be made on the modernization of health IT within the Agency. While progress has been made, USET SPF underscores the importance of including Tribal Nations throughout the process. Through the health IT modernization process, the federal government must ensure it upholds its trust obligations of providing healthcare Tribal Nations in a manner that does not burden the chronically underfunded Indian health system.
IHS must be cognizant of and prepared to address a diverse set of circumstances and requirements when implementing the replacement of RPMS and beyond. USET SPF asserts that the federal government has fallen short of its trust obligation to Indian Country by under-resourcing our health IT. In partnership with Tribal Nations, IHS must work to ensure that the entire Indian Health System is brought into the 21st century. This includes working to upgrade and maintain our health IT systems.

Coronavirus USET SPF Comments re: Coronavirus Response and Relief Supplemental Appropriations Act – January 8
SUMMARY: The $1 billion includes critical funding for the Indian Healthcare System to plan for and administer COVID-19 vaccines within Indian Country as well as funding for a multitude of COVID-19 testing and surveillance activities. On Monday, January 4th, IHS hosted a consultation call with Tribal leaders to gather input on what factors to consider in developing a methodology for the allocation of these funds. USET SPF reiterates the feedback and recommendations provided by the leaders of our Member Tribal Nations on the call who underscored the importance of utilizing a methodology that will ensure rapid distribution to our communities that is equitable, flexible, and reflective of our sovereign governmental status.
Due to the federal government’s chronic failure to fully fund the Indian Healthcare System, as well as ongoing failures to provide necessary resources, Tribal Nations continue to operate with limited and diminishing resources as we work to address the impacts of COVID-19. As the virus continues to ravage our communities, it is critical that IHS work in conjunction with Tribal Nations, not just in determining a rapid, equitable, and non-competitive mechanism for the $1 billion in funding, but in all resource determinations and allocations in order to better deliver upon the federal trust responsibility.
FEMA/Pandemic USET SPF Comments re: FEMA Tribal Pandemic Assistance – January 8
SUMMARY:  As the pandemic took hold in the United States in early 2020, FEMA issued several policy revisions and guidance’s to its Public Assistance programs following the March 13, 2020 Presidential Nationwide Emergency Declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). USET SPF appreciates the efforts of FEMA to expand opportunities for Tribal Nations to access Public Assistance programs and resources during this unprecedented pandemic. FEMA has reported that over 200 Tribal Nations have applied for assistance from FEMA as Public Assistance recipients or subrecipients under an emergency or major disaster declaration. However, there remain several barriers for Tribal Nations in access to Public Assistance funds, as well as the full range of programs and services offered by FEMA.
The COVID-19 pandemic has created an unprecedented nationwide and global emergency requiring significant, immediate response and coordination. As COVID-19 cases continue to rise exponentially in the U.S., Indian Country continues to face disproportionately high rates of COVID-19 infection. FEMA has a fiduciary trust obligation to ensure Tribal Nations are provided access to vital funds and resources to address COVID-19. In order to fulfill this obligation, FEMA must remove programmatic barriers to access resources, establish uniform practices for coordination with Tribal Nations across its regions, and assist Tribal Nations with obtaining up-front resources and a waiver of the 25 percent cost-share. Additionally, USET SPF strongly recommends that FEMA actively consult and coordinate with Tribal Nations on a regular basis. While we appreciate the recent efforts by FEMA to consult on the numerous programmatic and guidance changes it has taken in response to COVID-19, Tribal Consultation should have occurred at the onset of COVID-19 and on a much more frequent basis throughout 2020. USET SPF looks forward to continuing to work with FEMA to address COVID-19 impacts on Tribal Nations and to ensure vital funds and resources are available to Indian Country.