Emergencies in Lakota territory highlight the importance of a presidential decree to reform investment in tribal nations

White Horse, OST tribal treasurer says White House decree 'could be more effective’

As President Joe Biden seeks reelection in 2024, Northern Plains Native Program specialists question his actions on their behalf. His decree on reforming funding for tribal nations addresses the need to strengthen sovereignty. Yet, experience with federal treaty rights obstructions prompts concerns in Indian Country about the decree’s effectiveness in upholding financial obligations.

The decree demonstrates a “commitment to ushering in the next era of tribal self-determination by ensuring that tribal nations have greater autonomy over how they invest federal funding.” Biden signed it on Dec. 6 at the third annual White House Tribal Nations Summit, which hosted Native authorities and Cabinet members.

Meanwhile, tribal citizens daily face the impact of bureaucracy’s shortcomings in delivering funds. Oglala Sioux Tribal President Frank Star Comes Out proclaimed a state of emergency June 10 for the breakdown of the water system in the Native nation’s capital of Pine Ridge, S.D. Citing treaty rights violations, he claimed the U.S. Agriculture Department failed to move on the slated project, estimated at $11 million in 2017.

On another issue, he declared a state of emergency in law enforcement on Nov. 13 due to the U.S. Interior Department’s failure “to honor their treaty trust and statutory obligations to the Oglala Sioux Tribe.” Half a year earlier, the tribe had won a court order requiring federal officials to help update the Native nation’s police funding project. On Dec. 29, the Oglala filed again to compel the action, claiming the Interior defendants didn’t comply.

The Coalition of Large Tribes backed the Oglala. COLT published a statement saying, “The same chronic underfunding persists throughout South Dakota and elsewhere.” Chairman Marvin Weatherwax, Blackfeet, said the United States “must honor its treaty and trust obligations – and provide adequate funding for law enforcement. The reality we face—a handful of officers patrolling areas the size of the states of Delaware or West Virginia—at any given time is shocking to people who don’t live on Indian reservations,” he added.

Adequate water supply and law enforcement are just two of the many needs Star Comes Out addressed in testimony to the Congressional Appropriations Committee on May 7 in Washington.

The title of Biden’s attempt to prioritize treaty obligations is Executive Order on Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self Determination. Otherwise known as Executive Order 14112, it affirms “the fundamental right of a people to determine their own destiny and to prosper,” according to a White House fact sheet.

“Programs that tribes rely on are difficult to access, have overly burdensome federal reporting requirements, have unnecessary limitations, or impose requirements on tribes,” the document reads. The system can “undermine their ability to make their own decisions about where and how to meet the needs of their communities.” The Administration deems the acknowledgment “historic.”

Issuing an order of this nature has its pros and cons, according to Michaela Madrid, the program director for the Native Governance Center. The nonprofit is dedicated to assisting Northern Plains Native nations in building capacity to exercise sovereignty. Madrid oversees tribal consulting support programs.

An executive order has inherent drawbacks, she told Buffalo’s Fire. “The pro is that it can move fast and it doesn’t necessarily get held up in some of the inefficiencies,” said Madrid. “To say it nicely, that happens when you’re trying to push things through Congress.” However, she added, “Anything that can happen quickly and easily usually means that it can be reversed just as quickly and just as easily.”

Madrid, who is a citizen of the Lower Brule Sioux Tribe, assists 23 Native Nations in the Mni Sota Makoce, or North Dakota and South Dakota region. While the executive order is meant to support Native communities, she said, laws are already in place that address the same issues.

She cited the Indian Self-Determination and Education Assistance Act. The law authorizes tribes and tribal organizations to provide their own services with the money the federal government is obligated to invest due to the trust responsibilities and treaty obligations of the United States. The law “does a lot of the same things that this executive order is seeking to do,” Madrid said.

The Administration claims the order, in fact, “moves federal funding programs closer to the model of the Indian Self-Determination and Educational Assistance Act.” The White House fact sheet mentions that the act “has allowed tribal nations to build and run their own hospitals, schools, and police forces to better meet the needs of their communities using the same federal dollars.”

The order provided eight months, or 240 days, for federal agencies to develop guidance on assessing additional tribal funding needs. Within 18 months of the order, or 540 days, they should report their findings on the optimum level of support.

The timeline is too aggressive and lacks access points for tribal intervention, according to Madrid. “It’s just really hard to gather input from 573 recognized tribes within that time,” she said.

“The federal government doesn’t really know how to best engage tribes – how to make their programs accessible,” said Madrid. Input-gathering sessions “tend to be pretty hard to participate in and usually just don’t have the amount of time and resources dedicated to them that really need to exist in order for them to fully be successful,” she said.

The directive created “a one-stop-shop for federal funding available to tribes,” the Tribal Access to Capital Clearinghouse.

“In some ways, I think it’s a great step in the right direction, and we’re excited that the administration is excited to kind of streamline some of these really cumbersome federal funding processes,” she said. However, it’s “hard to solve an inefficient system through another inefficient system,” she added.

Oglala Sioux Tribal Council Treasurer Cora White Horse said the executive order isn’t specific enough regarding who to consult. “It does call for consultation, but it doesn’t say consultation with specific tribes or regions,” said White Horse. “It just basically generally says tribal leaders.”

The order charges the White House Council on Native American Affairs members with convening appropriate representative agencies to share best practices, track progress on implementing recommendations, and evaluate the need for reassessment of funding. Consultation-based progress will be discussed at the annual White House Tribal Nations Summit.

“Every tribe has different needs. And I think that it could be more effective if they could individualize the assistance that they’re trying to give,” White Horse told Buffalo’s Fire.

As the former LaCreek District Council Representative and a citizen of the Oglala Sioux Tribe, she is skeptical about the reporting criteria in the process. Tribal expenditures “are the most monitored programs of any programs in the United States,” said White Horse. “We have to have our budgets approved by BIA, and then they have to be approved by DOI, and then they have to be approved by OMB, and then when the money is spent, then we have to have them audited,” she said.

“And we have to make sure that we’re in compliance with everything, and if we’re not, we have to have a plan to come into compliance,” she added. “So I think that if they really want to help tribes, they should provide some type of funding to help us to stay in compliance.”

Instead, the initiative endeavors to address the surveillance issue by reducing the burden of proof. “As a result of this executive order, tribes will spend less of their resources cutting through bureaucratic red tape to apply or comply with federal administrative requirements and use federal dollars more effectively,” states the fact sheet. “No longer will tribes be faced with seemingly unnecessary and arbitrary limitations when they are accessing critical funding for public safety, infrastructure, education, energy, and much more.”

This is the third decree on Native American Affairs to emanate from the Biden Administration. Executive Order 13175 of Nov. 6, 2000 was entitled Consultation and Coordination with Indian Tribal Governments. It charged “all executive departments and agencies with engaging in regular, meaningful, and robust consultation with tribal officials in the development of federal policies.”

On Nov. 30, 2022, the President signed a Memorandum on Uniform Standards for Tribal Consultation. It outlines the principles for nation-to-nation consultation and details steps federal officials must follow. Its body affirms that tribal Nations provided input on these “minimum” requirements during more than 90 national-level tribal meetings addressing consultation policy.

Madrid said she hopes the federal government will put even more effort into corresponding with Native nations moving forward. White Horse suggested that if agency officials can’t reach out to individual Native nations, they can perhaps gather them by region to hold conversations.

However, she advocated for more individualized attention. The latest decree on funding reform reflects “good intention,” said White Horse. “But I think that the only way there can actually be real effective directives” is to consult on a tribe-by-tribe basis. “How can you expect each tribe to be the same, right? That’s like having a school with 570 kids and expecting everything to work for each one.”

Sourcing & Methodology Statement:

Exec. Order No. 14,112, 3 88 FR 86021 (2023). https://www.federalregister.gov/documents/2023/12/11/2023-27318/reforming-federal-funding-and-support-for-tribal-nations-to-better-embrace-our-trust

The United States Government. (2023, December 6). Fact sheet: President Biden signs historic executive order to usher in the next era of tribal self-determination. The White House. https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/06/fact-sheet-president-biden-signs-historic-executive-order-to-usher-in-the-next-era-of-tribal-self-determination/ 

Dateline:

BISMARCK, N.D.