BROKEN PROMISES: CONTINUING FEDERAL FUNDING SHORTFALL FOR NATIVE AMERICANS

EXECUTIVE SUMMARY

U.S. Commission on Civil Rights

Briefing Before the United States Commission on Civil Rights Held in Washington, DC

Briefing Report December 2018

The full report, including the "Executive Summary," is available at: https://www.usccr.gov/pubs/2018/12-20-Broken-Promises.pdf.

(There are some minor anomalies in copying the report from its web site to this page)

Since our nation’s founding, the United States and Native Americans have committed to and sustained a special trust relationship, which obligates the federal government to promote tribal self-government, support the general wellbeing of Native American tribes and villages, and to protect their lands and resources. In exchange for the surrender and reduction of tribal lands and removal and resettlement of approximately one-fifth of Native American tribes from their original lands,1 the United States signed 375 treaties,2 passed laws, and instituted policies that shape and define the special government-to-government relationship between federal and tribal governments. Yet the U.S. government forced many Native Americans to give up their culture and did not provide adequate assistance to support their interconnected infrastructure, self-governance, housing, education, health, and economic development needs.

Due at least in part to the failure of the federal government to adequately address the wellbeing of Native Americans over the last two centuries, Native Americans continue to rank near the bottom of all Americans in terms of health, education, and employment. Many Native Americans face unique challenges and harsh living conditions resulting from the United States having removed their tribes to locations without access to adequate resources and basic infrastructure upon which their tribal governments can foster thriving communities. As reflected in the report text that follows, Native Americans are more likely to live in poverty, be unemployed, experience rape or abuse, and be killed by police than any other ethnic or racial group. Native Americans have 1.6 times the infant mortality rate of non-Hispanic whites, and the life expectancy for Native peoples is 5.5 years less than the national average. Native American students have the lowest high school graduation rates in the nation. The broken treaties have left many reservations without adequate access to clean water, plumbing, electricity, internet, cellular service, roads, public transportation, housing, hospitals, and schools. The often-isolated locations, lack of accurate and full inclusion in the media and in textbooks, and persistent discrimination have rendered their reality often invisible to other Americans.

In a 2003 report titled A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, the U.S. Commission on Civil Rights (Commission) took on the task of “evaluat[ing] budgets and expenditures of the [six] major federal agencies sponsoring Native American programs.”3 Herein, the Commission updates that 2003 report and examines Congress’ continued failure to fully fund treaty and statutory obligations.

In A Quiet Crisis, a majority of the Commission found that “funding for services critical to Native Americans—including health care, law enforcement, and education—is disproportionately lower than funding for services to other populations.”4

The 2003 report also found that this disproportionately low funding was despite the historical and ongoing promises made to Native Americans based on the federal “trust” relationship.5 The trust relationship is based upon a number of treaties made between the U.S. and Native American tribes that “recognized and established unique sets of rights, benefits, and conditions for the treaty- making tribes who agreed to cede [] millions of acres of their homelands to the United States and accept its protection.”6

In the 2003 report, as in this one, “[s]pecific focus was given to the adequacy of funding and whether it has kept pace with inflation.”7 The 2003 report focused on “unmet needs,” defined as:

[blockquote]the portion of basic needs among Native Americans that the government is supposed to supply but does not. Basic needs encompass such critical items as health (e.g., medical facilities, clean drinking water); education (e.g., books, structurally sound school buildings); law enforcement (e.g., a sufficient number of law enforcement personnel); and housing (e.g., indoor plumbing, a sufficient number of houses).8 [blockquote]

A Quiet Crisis summarized the funding shortfall to which Native Americans were subjected as follows:

At least in policy, the nation has clearly stated its promise to Native Americans. But laws and policies are meaningless without resources to enforce them. Resources are an important demonstration of the U.S. government’s commitment to its responsibilities, including the obligation to preserve civil and other rights. . . .

Under-funding violates the basic tenets of the trust relationship between the [federal] government and Native peoples and perpetuates a civil rights crisis in Indian Country.9

In A Quiet Crisis, the majority of the Commission found that due to the failure of the federal government’s efforts to carry out its promises,10 “Native Americans continue to rank at or near the bottom of nearly every social, health, and economic indicator.”11 The report explained that, despite significantly increased federal spending between 1994 and 2003, the sums failed to “compensate for a decline in spending power” or “overcome a long and sad history of neglect and discrimination,”12 and concluded that “Native Americans living on tribal lands do not have access to the same services and programs available to other Americans, even though the government has a binding trust obligation to provide them.”13

On May 14, 2015, twenty Members of the United States House of Representatives sent a bipartisan letter to the Commission, requesting an update to A Quiet Crisis.14 These Members of Congress stated their concern that the “lack of basic infrastructure” in Indian Country had “only grown over the past decade.”15 The Congressional letter highlighted some of the concerning developments since A Quiet Crisis, including “significant budget cuts due to sequestration, increasing threats from natural disasters, and a continued lack of quality housing, educational support, and economic development opportunity.”16 The letter asked the Commission to update the 2003 report “to help ensure that the federal government is making progress in fulfilling its trust and treaty responsibilities.”17

Congress requested that the updated report include an “assessment of whether the federal government is now better meeting its responsibilities to tribal members; what efforts the federal government has taken to implement the Commission’s 2003 recommendations—specifically with regard to infrastructure development; and what actions, if any, are needed to best address the unmet needs in Indian Country to uphold the federal trust responsibility and achieve self-governance for Indian nations.”18

Unfortunately, the Commission’s current study reflects that the efforts undertaken by the federal government in the past 15 years have resulted in only minor improvements, at best, for the Native population as a whole. And, in some respects, the U.S. Government has backslid in its treatment of Native Americans, and there is more that must be done compared to when the Commission issued A Quiet Crisis.19

Federal funding for Native American programs across the government remains grossly inadequate to meet the most basic needs the federal government is obligated to provide. Native American program budgets generally remain a barely perceptible and decreasing percentage of agency budgets. Since 2003, funding for Native American programs has mostly remained flat, and in the few cases where there have been increases, they have barely kept up with inflation or have actually resulted in decreased spending power.

To be sure, many Native Americans are succeeding as teachers, doctors, lawyers, artists, writers, scientists, and entrepreneurs, among other professions, and some tribes are experiencing greater economic prosperity. Also, some efforts have been made to recognize tribal sovereignty and promote self-determination. For example, the U.S. Department of the Interior (DOI) is reorganizing the Bureau of Indian Education (BIE) to support the direct operation of schools by tribal education authorities. But significant work remains. While support costs for tribal nations who choose to manage their own healthcare programs under the Indian Self-Determination and Education Assistance Act now have a separate indefinite annual appropriation, the overall Indian Health Service (IHS) budget meets just over half of the health care needs of Native Americans who suffer striking health deficiencies and disparities. And under the Tribal Law and Order Act of 2010, tribal courts now have enhanced sentencing authority. Yet, the lack of funding for tribal courts remains a significant barrier for tribes wishing to implement the Act.

In 2016, the Commission held a briefing entitled A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, 2016 Update, during which it received testimony from a number of expert witnesses, including advocates, researchers, legal scholars, and representatives of federal agencies. The Commission draws this report from the above-referenced sources and independent research. Further, the Commission has considered and been informed by recent reports and briefings from its State Advisory Committees (SACs).20 Commissioners and staff visited Indian Country including the Eastern Shoshone and the Northern Arapaho Tribes at the Wind River Reservation in Wyoming, the Quinault Reservation in Washington State, the Standing Rock Indian Reservation and Camp Site in North Dakota, and the Pine Ridge Reservation in South Dakota. Commissioners and staff also engaged with and received comments from tribes, tribal leaders, and stakeholders through multiple meetings and briefings. This report examines the role, obligations, and jurisdiction of the federal government under the trust relationship with respect to Native American communities, and details Commission findings about whether current levels of funding are sufficient to meet Native American community needs.

This report commences with background about the government-to-government relationship between the United States and tribes, and federal obligations for Native Americans. The introduction also identifies the Native American population and provides an overview of the relevant federal budget programs and the scope, methodology, and organization of this report. As this report uses many acronyms, in addition to defining them in the text, a Glossary of Acronyms is provided for the reader in Appendix I.

Chapter 1 examines the Commission’s research on criminal justice and public safety issues for Native American communities. Chapter 2 examines health care issues and related disparities that impact Native Americans. Chapter 3 examines the issues and challenges in Native American access to education. Chapter 4 examines the issues and challenges in Native American access to housing. Chapter 5 examines federal budget disparities impacting Native Americans in economic development issues, including infrastructure, natural resources and the role of the federal government in Native American enterprises. Finally, after this broad review, the Commission sets forth its findings and recommendations.21

The Commission’s findings and recommendations primarily focus on the special trust relationship between the United States and Native Americans, improved data collection, and the inadequate funding of federal programs serving the social and economic needs of Native Americans. Unequal treatment of tribal governments and lack of full recognition of their sovereign status by state and federal governments also diminish tribal self-determination and negatively impact criminal justice, health, education, housing and economic outcomes for Native Americans.

One of the Commission’s most significant recommendations is for Congress to honor the federal government’s trust obligations and pass a spending package to fully address unmet needs, targeting the most critical needs for immediate investment. This spending package should also address the funding necessary for the buildout of unmet essential utilities and core infrastructure needs in Indian Country such as electricity, water, telecommunications, and roads.

The Commission majority approved key findings including the following:

The Trust Relationship

The special government-to-government relationship between the federal government and Indian tribes is based on Article I, Section 8 of the Constitution, and has been shaped and defined by 375 treaties between the federal government and Indian tribes, Supreme Court decisions, laws, regulations, Executive Orders, and the customary practices of foreign relations. Congress has also passed over 150 laws that promote the welfare of Native Hawaiians and establish a special political and legal relationship similar to the trust relationship with other Native Americans.

Since our nation’s founding, the United States and Native Americans have committed to and sustained this special trust relationship, which obligates the federal government to promote tribal self-government, support the general welfare of Native American tribes and villages, and to protect their lands and resources. Courts have acknowledged the legal status of Native Americans as both a sovereign political entity and as a racial group with constitutionally guaranteed rights to equal protection. Federal laws dealing with Native Americans are not based upon impermissible racial classifications and are expressly provided for in the Constitution.

In the Commission’s 2003 A Quiet Crisis report, the Commission documented the federal government’s historic failure to carry out its promises and trust obligations. These failures included longstanding and continuing disregard for tribes’ infrastructure, self-governance, housing, education, health, and economic development. The Commission found these failures created a civil rights crisis in our nation. Despite some progress, the crisis remains and the federal government continues to fail to adequately support the social and economic welfare of Native Americans.

Data

Data on Native American and Native Hawaiians and Other Pacific Islander racial groups are often incomplete, inaccurate, old, or not tracked by the federal government. The best available data suggest sometimes extreme social and economic disparities between these communities and national averages. There is a critical need for more accurate and current data collection for these communities, including disaggregated data on American Indian, Alaska Native, and Native Hawaiian and Other Pacific Islander subpopulations, to improve the ability of federal, state, local, and tribal governments to monitor conditions and make more informed policy and spending decisions.

Federal Expenditures

Health, education, public safety, environmental quality, and business development are interconnected, and investment in these areas in Indian Country promotes a cycle of social and economic prosperity.

Federal programs designed to support the social and economic well-being of Native Americans remain chronically underfunded and sometimes inefficiently structured, which leaves many basic needs in the Native American community unmet and contributes to the inequities observed in Native American communities.

More than 20 federal agencies provide targeted services to Native Americans. Major programs that are underfunded include:

o U.S. Department of Justice (DOJ) and Bureau of Indian Affairs (BIA) public safety and justice programs;

o IHS health care, behavioral health, urban Indian health, and water sanitation programs;

o DOI programs such as BIE programs and BIA real estate services and forest, wildlife, and road maintenance programs; and

o U.S. Department of Housing and Urban Development (HUD) programs that help meet the housing needs of Native Americans and Native Hawaiians.

Tribal Sovereignty

Tribal nations are distinctive sovereigns that have a special government-to-government relationship with the United States. Unequal treatment of tribal governments and lack of full recognition of the sovereign status of tribal governments by state and federal governments, laws, and policies diminish tribal self-determination and negatively impact criminal justice, health, education, housing and economic outcomes for Native Americans.

Criminal Justice

Native Americans collectively suffer from one of the nation’s highest rates of crime and victimization. The federal government has a trust responsibility to provide for public safety in Indian Country. Although overall funding for public safety in Indian Country has increased, it does not come close to meeting the public safety needs in Indian Country or the needs to police and protect natural resources.

Health Care

The federal trust relationship establishes a responsibility to provide health care to Native Americans. Resulting in part from the failure of the federal government to honor its trust responsibilities, vast health disparities exist between Native Americans and other populations.

Funding for the IHS and Native American health care is inequitable and unequal. IHS expenditures per capita remain well below other federal health care programs, and overall IHS funding covers only a fraction of Native American health care needs, including behavioral health needs to address the suicide epidemic in Indian Country.

Education

The most recent available data reflect that Native American students comprise 1.1 percent (0.5 million) of the total 50.6 million public school students in the U.S., but Native American students experience discernable disparities in access to educational opportunity, compared to their non-Native peers. These disparities in educational opportunities have a profound impact on the social and economic opportunities and well-being of Native students and of Native communities. Educational disparities in access to educational opportunity also exist between Native Hawaiian and non-Hawaiian students.

The federal government has failed in its trust obligation to provide educational services that address the unique situation of Native American students.

Housing

Since the Commission’s 2003 report, the housing crisis in Indian Country has worsened. In addition to the continuing lack of affordable housing in Indian Country, since 2003, the number of Native Americans living in overcrowded households or households without adequate kitchens or plumbing has grown. Native Hawaiians issues such as lower home ownership rates, housing with inadequate plumbing, kitchens, and electric/heating systems, and overcrowded housing.

The federal government’s ongoing failure to increase funding for the Indian Housing Block Grant (Block Grant) program has (1) been a major obstacle to maintaining aging housing stock and increasing total housing in Indian Country and (2) steadily eroded the number of new affordable housing units developed in Indian Country each year.

Economic Development

While many Native Americans are succeeding as teachers, doctors, lawyers, artists, writers, scientists, and entrepreneurs, the poverty rate of Native Americans is approximately twice the national average. They experience higher rates of unemployment than any other racial group. The unemployment rate for Native Americans approaches 80 percent or higher on some reservations. Individuals on tribal land are more likely to lack access to broadband internet compared to other individuals living in rural areas.

The federal government has failed to honor its trust responsibility to promote Native American self-determination via its support of economic development in Indian country. The federal government has failed to assist the tribes with the individualized economic development necessary for tribes to exercise self-determination and make a knowledgeable decision as to how to best develop and manage their nation’s resources for the tribe’s benefit.

The Commission majority approved key recommendations including the following:

Keeping Promises

The federal government should invest in Native American communities because such investment strengthens America. Recognizing the federal government’s ongoing and historic failure to honor its trust obligations to protect and support Native Americans, the federal government should do the following:

o Congress should study and determine the funding necessary for the buildout of unmet essential utilities and core infrastructure needs in Indian Country such as electricity, water, telecommunications, and roads.

o Congress should honor the federal government’s trust obligations and pass a spending package dedicated to address fully these unmet needs, targeting the most critical needs for immediate investment.

o Congress should ensure funds are available and accessible on an equitable need basis to all tribal governments.

o Congress should require an annual report from appropriate federal agencies on unmet essential utility and core infrastructure needs, and the reach of funds appropriated to meet them.

The federal government should provide steady, equitable, and non-discretionary funding directly to tribal nations to support the public safety, health care, education, housing, and economic development of Native tribes and people. These commitments should include:

o Increased funding for DOJ public safety initiatives and BIA public safety and justice programs in Indian Country, including funding to implement fully the due process mandates of the Tribal Law and Order Act of 2010 and Violence Against Women Act of 2013, including but not limited to funding for indigent defense, sufficiently trained and credentialed judges, mandated jury trials, recordkeeping, and compliance with criminal law and procedural notice requirements.

o Increased, non-discretionary, and advance appropriations for IHS to bring it to parity with other federal health programs, such as the Veterans Health Administration, including for facilities and urban Indian health. Congress should also provide funding to implement the Indian Health Care Improvement Act, including job training programs to address chronic shortages of health professionals in Indian Country and a mental health technician training program to address the suicide crisis in Indian Country.

o Full funding for the operation of BIE schools, increased funding for Native American English Language Learner programs and Native Hawaiian education programs, and grant funding to develop curricula and lesson guides that state and local school districts may then choose to adopt to maximize instruction that includes non-derogatory, culturally inclusive discussion of Native American history and student experience. Congress should appropriate sufficient funding for BIE schools to allow the BIE to bring all BIE schools up to minimum standards of habitability for their students and to attract, recruit, and retain teachers to come to and continue teaching in BIE schools. Congress should also provide funding for professional development programs to enhance the skills of current BIE teachers.

o Reauthorization of the Native American Housing Assistance and Self Determination Act of 1996 (NAHASDA), increased appropriations to the Block Grant program and Indian Housing Loan Guarantee Fund to meet fully the housing needs of Indian Country, and increased funding for similar Native Hawaiian housing programs.

o Increased funding for BIA programs such as real estate trust services, forestry and wildlife programs, tribal resilience, and road maintenance programs. DOI should also increase availability of the Land Buy-Back Program to more tribes.

o Increased funding for the Federal Communications Commission, Office of Native Affairs and Policy to help increase broadband and telecommunications penetration in Indian Country.

o Increased funding for the U.S. Department of Energy, Office of Indian Energy Policy and Programs and Tribal Energy Loan Guarantee Program.

Tribal Sovereignty

The federal government should adopt policies for Native American programs and programs that affect Native Americans that promote equal treatment of tribal governments as compared to other governments. The federal government should provide sufficient funding, training, tools, and resources to tribal nations to provide their citizens the opportunity to exercise self-government and self-determination.

o Congress should provide sufficient funds to tribal law enforcement agencies, tribal courts, and tribal detention facilities to allow those criminal justice components to fulfill their responsibilities to their citizens. Congress should also ensure funds from the Crime Victims Fund are set aside annually to meet sufficiently the needs of Native American victims of crime.

o Congress should appropriate sufficient funding for BIE schools to allow the BIE to bring all BIE schools up to minimum standards of habitability for their students and to attract, recruit, and retain teachers to come to and continue teaching in BIE schools. Congress should condition ongoing funding on BIE development of policies and programs accountable for provision of equitable and culturally responsive educational opportunity as well as for student performance results.

o Congress should appropriate sufficient funding to BIA, U.S. Department of Agriculture (USDA), and U.S. Department of Energy programs to provide tribes with sufficient funding and technical assistance to allow tribes to exercise self- reliance and self-determination in the protection, management, and development of their natural, agricultural, and energy resources.

o Congress should provide consistent, non-discretionary funding to tribal governments to create parity between tribal governments and other governments by allowing tribal governments to leverage federal funding. Congress should make available to tribes programs such as the New Market Tax Credit program, the Community Development Financial Institutions Fund (CDFI) Bond Guarantee Program, and the Low-Income Tax Credit Program, which are designed for the purpose of leveraging and attracting capital to public projects and represent billions in potential investment.

o The federal government should provide more consistent, transparent, and deferential consultation with tribal governments and strive to reach mutually agreed solutions when working with tribes on infrastructure planning and the use and development of natural resource that occurs on or affects tribal lands and communities. For example, during the development of the Dakota Access Pipeline the federal government should take in the health, spiritual, and cultural concerns of Native Americans and issue a decision that is consistent with those concerns.

o Congress should provide direct, long-term funding to tribes, analogous to the mandatory funding Congress provides to support Medicare, Social Security, and Medicaid, avoiding pass-through of funds via states. Competitive grant programs such as for DOJ criminal justice initiatives should be available in addition to sufficient baseline funding.

• Congress can acknowledge a government-to-government relationship with Native Hawaiians to confirm its intent to provide Native Hawaiians at least all the same federal benefits that Native Americans have. Congress should pass legislation to provide a process for the reorganization of a Native Hawaiian governing entity and to confirm the special political and legal relationship between the United States and such Native Hawaiian governing entity.

Our nation has broken its promises to Native Americans for too long. The United States government must rededicate itself to working with tribal governments to tackle the crisis in Indian Country, including through living up to treaty obligations just as the United States expects all nations to live up to their own. The federal government should provide steady, equitable, and non- discretionary funding directly to tribal nations to support the public safety, health care, education, housing, and economic development of Native tribes and people.

Introduction to Federal Funding for Native American Programs

As a preliminary matter, throughout this report, the term “Native American” is used in lieu of “American Indian” or other terminology when not specifically citing or paraphrasing other work. The term should be understood to include Alaska Natives unless otherwise noted. Unless otherwise indicated, Native Hawaiians are not included in the Native American category because the Native Hawaiian community does not currently have the same government-to-government relationship with the U.S. federal government identical to the one that Native American tribes have.22 Thus, issues concerning Native Hawaiians will be discussed with explicit references to that population throughout this report, similar to the Commission’s 2003 report. Congress has determined the federal government has a special political and trust relationship with Native Hawaiians in part because it bears responsibility for the overthrow of the Kingdom of Hawaii and the annexation of Hawaii, which suppressed Native Hawaiians’ sovereignty over their land. 23 This trust obligation is represented by over 150 statutes authorizing programs and services similar to, but separate from, those provided to Native Americans.24

The term “Indian Country” is used throughout this report, and is defined as:

[blockquote] [A]ll land within the limits of any Indian reservation under the jurisdiction of the United States Government,... all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, . . . and [] all Indian allotments[.]25 [/blockquote]

The Federal Trust Relationship

There are currently 573 federally recognized tribes across the U.S.26 Native American or Alaska Native tribal sovereign entities have a government-to-government relationship with the U.S. and are entitled to certain federal benefits, services, and civil rights protections.27 The government-to- government relationship between the federal government and Native American tribes has been given form and substance by numerous treaties, laws, Supreme Court decisions, and Executive Orders.28

Treaties between the United States and various tribal nations initially established the federal government’s commitment to provide for Native Americans.29 As part of entering into treaties, the federal government acquired Native American lands and agreed to provide Native Americans with certain services such as the preservation of law and order, education, housing, and health care. Stacy Bohlen, Executive Director of the National Indian Board of Health, described her view of the promises made in treaties at the 2016 briefing: “[W]e exchanged 400 million plus acres of land, and our way of life, and our very lives, for peace, and for the provisions that are provided for in the treaties, and a basic human dignity of having basic services for American Indian and Alaska Native people.”30

“Congress’s trust obligation to provide services deriving from its original trust obligations now takes the form in the multitude of statutes detailing federal services provisions to Indians and tribes.”31 Congress has also enacted statutes that define the United States’ trust responsibilities with regard to management of property and other trust assets. “While Congress has certainly established a national policy favoring tribal self-government, and has chosen to comply with its obligations to preserve tribal self-government, it is unlikely that Indian tribes can sue to force Congress to comply with its trust duty.”32 Enforcing a particular trust duty owed by the United States to Native Americans requires identifying a substantive source of law that contains the specific duty.33 In the absence of a specific duty, the government’s general trust duty only requires its compliance with applicable statutes and regulations.34 This state of affairs—that Congress can limit the United States’ liability for breach of the trust—has led scholars to criticize Congress’s lack of setting out specific trust duties, and allege that this “allows Indian interests to be marginalized when they could and should be better protected.”35

The primary delegation of Congressional authority to the Executive Branch can be found in the Snyder Act of 1921. In this Act, Congress delegated broad authority to the Executive Branch for carrying out the federal trust relationship for the welfare of American Indians by authorizing the expenditure of such funds as Congress may appropriate for the benefit, care, and assistance to Native Americans throughout the United States.36 The Restatement of the Law of American Indians further explains that “[t]he general trust relationship extends to the federal officers who have been delegated authority by Congress to administer Indian-affairs policies.”37 In 2014, the Secretary of the Interior reiterated the executive branch’s role in the federal trust relationship by stating that “[t]he trust responsibility doctrine imposes fiduciary standards on the conduct of the executive” and contains “a paramount commitment to protect their unique rights and ensure their wellbeing, while respecting tribal sovereignty.”38

Congress has also enacted numerous statutes promising services and funding aimed to promote “Indian self-determination.”39 For example, in 2016, Congress reaffirmed a duty to promote tribal self-determination regarding governmental authority and economic development as follows:

Other statutes include the right to self-government as well as important corresponding civil rights.41 According to Professors Cornell and Kalt, who co-direct the Harvard Project on American

Congress finds that:

there exists a unique relationship between the Government of the United States and the governments of Indian tribes;

there exists a unique Federal responsibility to Indians; through treaties, statutes, and historical relations with Indian tribes, the United States has undertaken a unique trust responsibility to protect and support Indian tribes and Indians;

the fiduciary responsibilities of the United States to Indians also are founded in part on specific commitments made through written treaties and agreements securing peace, in exchange for which Indians have surrendered claims to vast tracts of land, which provided legal consideration for permanent, ongoing performance of Federal trust duties; and the foregoing historic Federal-tribal relations and understandings have benefitted the people of the United States as a whole for centuries and have established enduring and enforceable Federal obligations to which the national honor has been committed.40

Indian Economic Development, tribal self-determination includes the control of cultural and religious affairs; the use of natural resources; business permitting and regulation; the provision of social services such as education, health care, housing, and family services; infrastructure development; law making and legislation; citizenship criteria; and more.42 Moreover:

“The United States’ trust relationship with Indians and tribes authorizes the federal government to promote tribal self-government.”44 At the same time, Native Americans have also been “subject to enduring efforts to strip them of their land, their possessions, and even their identities.”45 Jacqueline Pata, Executive Director of the National Congress of American Indians (NCAI), noted in her testimony before the Commission in 2016:

[Blockquote][T]ribes are subject to federal law, but operate under their own constitutions, administer their own judicial systems, and implement self-managed tax and regulatory regimes. . . . [T]ribes in the current era of self-determination expect and demand government-to-government relations, rather than assuming the earlier role of a dependent subject to paternalistic management by non-Indian governments.43[/blockquote]

In the course of American history, Indian tribes lost millions of acres of land through treaties and agreements, causing devastating losses through displacement and disruption of culture and religion. . . . After federal policies, such as removal, relocation, forced assimilation, allotment, and termination, the continuing viability of tribal cultures and governments reflects the determination of Indian tribes to endure as distinct peoples. Indeed, understanding the role of tribes as governing entities is central to understanding the resilience of Indian Country and Native people today. Efforts to disband and assimilate tribes have drawn on the view of American Indians/Alaska Natives as ethnic or racial groups, as opposed to self- governing entities.46

The Commission notes that the locations of some reservations come from historic discrimination, and the trauma of forced relocation and other injustices continues.47 The Native American people continue to face everyday challenges due to disproportionately high rates of violence and crime victimization;48 poor physical, mental, and behavioral health conditions;49 high rates of suicide;50 low educational achievement and attainment;51 poor housing conditions;52 high rates of poverty53 and unemployment;54 and other challenges, which are exacerbated by the shortfall of federal assistance.

Fulfillment of the trust relationship is also crucial for protecting the civil rights of Native Americans.55 Therefore, the Commission reported in 2003 that the “federal government’s failure to avail Native Americans of services and programs available to other Americans violates their civil rights.”56 A Quiet Crisis demonstrated in 2003 that funding for Native American programs and services were disproportionately lower than funding for programs and services to other

The purpose behind the trust is and always has been to ensure the survival and welfare of Indian tribes and people. This includes an obligation to provide those services required to protect and enhance Indian lands, resources, and self- government, and also includes those economic and social programs that are necessary to raise the standard of living and social wellbeing of the Indian people populations.57 As this report will document, Native American programs and services continue to be underfunded at the federal level.

For the Commission’s 2016 A Quiet Crisis Update briefing, NCAI submitted written testimony stating that the federal trust obligation is critical to the wellbeing of Indian Country.58 Similarly, the American Indian Policy Review Commission, established in 1975 to conduct a comprehensive review of Indian affairs, noted in a 1977 report:

to a level comparable to the non-Indian society.59

NCAI noted in its written statement to the Commission that tribes face the continued challenge of being able to govern effectively for the revitalization of Indian Country, as many tribes face “tremendous” economic need that is specifically due to adverse federal policies, and accordingly face challenges to finance their government services.60 “While tribal leaders pursue solutions for tribal authority to provide government revenue,” NCAI wrote, “the fulfillment of trust and treaty obligations remains of utmost importance to the wellbeing of American Indian and Alaska Native people.”61

Population, Location, and Socioeconomic Status of Native Americans

Native Americans are often referred to as the “invisible minority,” because of their small population numbers that are not always tracked by the federal government.62 Advocates report a critical need for more accurate data collection for the Native American population, which includes the need for disaggregation of data about Native American populations.63 According to them, accurate data collection produces data that capture the community’s true needs, and “thus can drive larger programmatic funding resulting in a cost-effective use of federal resources.”64 But as NCAI notes, Native Americans can be described as the “Asterisk Nation” because “an asterisk, instead of a data point, is often used in data displays when reporting racial and ethnic data due to various data collection and reporting issues, such as small sample size, large margins of error, or other issues related to the validity and statistical significance of data on American Indians and Alaska Natives.65 NCAI opines that Native Hawaiians also experience their own host of data collection and reporting issues. Native Hawaiians often get grouped with other Asians, but they have a unique history as indigenous people, and experience unique challenges that differentiate them; therefore, many advocates and scholars have highlighted the need for disaggregated data about Native Hawaiians.66

Another layer of complexity regarding Native American populations stems from the issue of identity in Native American communities. The ability to define tribal membership is an issue that has been continuously and contentiously debated among scholars, researchers, advocates, policymakers, and Native American individuals.67 Identity for Native Americans can be seen as both membership in a political entity as well as a race, and the two are intertwined in the current legal definitions of tribes.68 Courts have acknowledged the legal status of Native Americans as both a set of sovereign political entities and as a racial group with constitutionally guaranteed rights to equal protection.69 The Supreme Court has repeatedly held that “classifications singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the Federal Government’s relations with Indians.”70

The 2016 American Community Survey of the U.S. Census (ACS) showed that the total U.S. population was 323.1 million. Out of the total U.S. population, 2.6 million people identified as American Indian and Alaska Native alone. See Table 1. In addition, 2.9 million people identified as American Indian and Alaska Native, in combination with one or more other races in the U.S. Together, 5.5 million people identified as American Indian and Alaska Native, either alone or in combination with one or more other races in the U.S.71 See also Appendix B: Total American Indian and Alaska Native Alone or in Any Combination by Selected Tribal Groupings.

Despite being relatively small, the Native American population is growing rapidly. The total U.S. population grew by 14 percent from 281.4 million in 2000 to 323.1 million in 2016. See Table 1. In comparison, the American Indian and Alaska Native alone or in combination population increased by about 35 percent, more than twice as fast as the total U.S. population.

TABLE 1: Native American (American Indian and Alaska Native) U.S. Population Alone and/or in Combination with Other Races/Ethnicities and Total U.S. Population in 2000, 2010, and 2016

EXECUTIVE SUMMARY

Race

2000

2010

2016 page33image135320320

Total U.S. Population

281,421,906

308,745,538

323,127,515

American Indian and Alaska Native alone or in combination.

4,119,301

5,220,579

5,586,703

American Indian and Alaska Native alone.

2,475,956

2,932,248

2,676,399

American Indian and Alaska Native in combination.

1,643,345

2,288,331

2,910,304

American Indian and Alaska Native; White.

1,082,683

1,432,309

1,926,535

American Indian and Alaska Native; Black or African American.

182,494

269,421

page33image135393664333,113

American Indian and Alaska Native; White; Black or African American.

112,207

230,848

308,494

American Indian and Alaska Native; Some Other Race.

93,842

115,752

104,436

American Indian and Alaska Native; Asian.

52,429

58,829

37,046

Source: 2016 American Community Survey 1-Year Estimates; U.S. Census Bureau, The American Indian and Alaska Native Population: 2010 (January 2012), 4, https://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf.72

In 2016, the Native Hawaiian and Other Pacific Islander alone-or-in-combination population was 1.36 million in the U.S,73 increasing from 874,414 in 2000 and 1.22 million in 2010.74 The Native Hawaiian and Other Pacific Islander alone-or-in-combination population increased 56 percent from 2000 to 2016, and 11.5 percent from 2010 to 2016. See Table 2.

TABLE 2: Native Hawaiian and Other Pacific Islander U.S. Population Alone and/or in Combination with Other Races/Ethnicities and Total U.S. Population in 2000, 2010, and 2016

Source: 2016 American Community Survey 1-Year Estimates; U.S. Census Bureau, The Native Hawaiian and Other Pacific Islander Population: 2010 (May 2012), 4, https://www.census.gov/prod/cen2010/briefs/c2010br-12.pdf.

As of 2010, the American Indian and Alaska Native alone-or-in-combination population was highly concentrated in certain locations.75 Of the 187 counties with relatively higher numbers of Native Americans, 55 (29 percent) were in Oklahoma, and most of the remaining counties were in the upper Midwest; the four corners area of the Southwest where Arizona, Colorado, New Mexico, and Utah meet; and in Alaska.76 See Figure 1.

EXECUTIVE SUMMARY

Race

2000

2010

page35image1361149762 016 page35image136116128

Total U.S. Population

281,421,906

308,745,538

323,127,515 page35image138465344

Native Hawaiian and Other Pacific Islander alone or in combination.

874,414

1,225,195

1,366,322

Native Hawaiian and Other Pacific Islander alone.

398,835

540,013

595,986

Native Hawaiian and Other Pacific Islander in combination.

475,579

685,182

770,336

Native Hawaiian and Other Pacific Islander; White.

112,964

169,991

201,252

Native Hawaiian and Other Pacific Islander; Asian.

138,802

165,690

204,186

Native Hawaiian and Other Pacific Islander; White; Asian

89,611

143,126

175,587

Native Hawaiian and Other Pacific Islander; Some Other Race.

35,108

58,981

38,875

Native Hawaiian and Other Pacific Islander; Black or African American.

29,876

50,308

page35image13622096040,543 page35image136224080

page36image138590208

Source: U.S. Census Bureau, The American Indian and Alaska Native Population: 2010, January 2012, 8, https://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf.

Similarly, the population of Native Hawaiians and Other Pacific Islanders was also highly concentrated as of 2010.77 More than half (52 percent) of the Native Hawaiians and Other Pacific Islander alone-or-in-combination population lived in Hawaii and California.78 Additionally, ten states (Hawaii, California, Washington, Texas, Florida, Utah, New York, Nevada, Oregon, and Arizona) represented over three-quarters of the U.S. Native Hawaiians and Other Pacific Islander population.79 See Figure 2.

Source: U.S. Census Bureau, The Native Hawaiian and Other Pacific Islander Population: 2010, May 2012, 8, https://www.census.gov/prod/cen2010/briefs/c2010br-12.pdf.  

page37image138676624 

Overview of the Federal Budget for Native American Programs

Federal funding supports Native American programs in a number of areas, such as public safety, health care, education, housing, and economic development. More than 20 federal agencies provide services to Native Americans.80 The primary agencies with responsibilities for Native American programs that have historically provided the largest amount of financial assistance are the U.S. Department of the Interior (DOI), the U.S. Department of Justice (DOJ), the U.S. Department of Health and Human Services (HHS), the U.S. Department of Education (ED), the U.S. Department of Housing and Urban Development (HUD), and the U.S. Department of Agriculture (USDA).81 These agencies and their roles with regard to the Native American community are discussed in more detail in later chapters of this report, while this section focuses on the overall federal budget process.

The federal budget process begins when the President submits a budget request to Congress, which then develops its own budget plan called the “budget resolution.” Congress next considers budget legislation through appropriations bills. The federal budget contains funding for both mandatory spending and discretionary spending. Mandatory funding represents about two-thirds of the overall budget and is required to support programs like Medicare, Social Security, and Medicaid. Discretionary funding is left up to Congress each year and supports defense, education, some low- income assistance, transportation, and other programs and services.82

The term “set-aside” is used by federal agencies and in this report to identify funds allocated to Native American programs from funding for programs available to all populations.83 For example, a program may be funded at $100 million; from the $100 million the amount of $5 million or 5 percent might be specifically targeted or set aside for Native American individuals, governments, or organizations.84

Typically, federal programs that are funded through annual appropriations may have obligations to use those funds at the start of the fiscal year, however, certain programs may experience a delay in the availability of their funding until after the start of the fiscal year (October 1) or in subsequent fiscal years.85 According to the Tribal Self-Governance Communication and Education Consortium (SGCE), delayed funding can have a significant impact upon program planning and operations, including budgeting, recruitment, retention, service delivery, facility maintenance and construction.86 The SGCE provides technical assistance to the Office of Self-Governance (within DOI) and the Office of Tribal Self-Governance (within HHS).87 As an example of how delayed funding can adversely affect the provision of services, the SGCE noted in its strategic plan that “[p]roviding sufficient, timely, and predictable funding is needed to ensure the federal government meets its obligation to provide health care for American Indians and Alaska Natives.”88

The Indian Self-Determination and Education Assistance Act (Self-Determination Act) requires the HHS Secretary and DOI Secretary to consult with and solicit the participation of Indian tribes and tribal organizations annually in developing the budget for IHS and BIA.89 The participation of Indian tribes and tribal organizations is sought in formulating annual budget requests, which the Secretary then submits to the President for submission to Congress.90 The HHS also conducts annual budget consultation meetings with Indian tribes.91 Within the IHS specifically, the Budget Formulation Workgroup prepares tribal budget recommendations based on consultation meetings with the tribes.92 In addition, tribal leaders and federal officials within the Tribal-Interior Budget Council collaborate to develop annual budget requests for Indian programs in DOI.93

In FY 2019, the total amount of federal funding requested for programs serving tribes and Native American Communities across over twenty federal agencies and sub-agencies was approximately $20.0 billion.94 This is a decrease from the FY 2018 enacted federal funding level of $22.0 billion, and a slight increase from the FY 2017 enacted federal funding level of $19.9 billion.95

Scope, Methodology and Organization of Report

The report reviews the adequacy of federal funding for programs and services targeting “American Indians, Federally Recognized Indian Tribal Governments and Native American Organizations.”96 This report focuses on quantifying unmet needs, which are the portion of basic needs among Native Americans that the government is supposed to provide for under the trust relationship but does not. In preparing this report, the Commission analyzed budgets of federal agencies that have financial assistance responsibilities for Native American nations. The analysis focused on the funding amounts for Native American programs after the A Quiet Crisis report, that being between fiscal years (FY) 2003 and 2018, as well as requests for FY 2019.97 The federal fiscal year runs from October 1 through September 30, beginning the previous calendar year.98 The Commission reviewed the amount the relevant Presidential Administrations requested and the amount Congress appropriated, conducted a literature review, and analyzed documents pertinent to the topic. The Commission has attempted to provide the most updated information for requested and appropriated funding levels for federal programs, as well as specific program updates, when the information is available. This report also incorporates testimony and findings from the Commission’s February 2016 briefing, Quiet Crisis: Federal Funding and Unmet Needs in Indian Country.99

This report refers to dollar values in a few different ways, and discussions about funding levels and values will be appropriately noted throughout the report. “Actual funding” or “current dollars” both refer to the dollar amount appropriated in the year discussed.100 “Adjusted funding” or “constant dollars” both refer to the dollar value after adjusting for inflation.101

To facilitate comparison across agencies, this report uses actual budget authority as the definitive amount of funding, unless otherwise noted. Budget authority is the amount that Congress determines an agency is allowed to spend for a given fiscal year.102 OMB defines budget authority as, “the authority provided by law to incur financial obligations that will result in outlays.”103 This report also uses the term “program level” when it refers to an agency’s budget authority in addition to its receivables, such as payment for products, services, and interest. The term “requested appropriations” generally refers to the amount of funding proposed by the President based on an agency’s past spending, its future estimates, and expressed priorities.

As noted, this report is organized into five chapters: criminal justice, health care, education, housing, and economic development. Each chapter attempts to quantify the needs of Native American communities and to investigate a baseline of services being offered to determine if those needs are being met. Other relevant civil rights data, such as disparate criminal justice and educational outcomes, along with related historical and legal issues, are also addressed.

1 See U.S. Indian Claims Commission, Final Report: August 13, 1946–September 30, 1978, 1979, at 1, https://www.narf.org/nill/documents/icc_final_report.pdf (“The period of greatest westward expansion, 1815 to 1860, saw 260 treaties signed. Two hundred and thirty of all the treaties between 1789 and 1868 involved Indian lands, 76 called for removal and resettlement, and nearly 100 dealt with boundaries between Indian and white lands primarily. These treaties and other Government agreements embodied 720 land cessions from 1784 to 1894.”).

2 See Harvard Law School Library, “American Indian Law: Treaties,” https://guides.library.harvard.edu/c.php?g=309883&p=2070028 (last accessed October 1, 2018) (describing Indian Affairs: Laws and Treaties Volume 2, edited by Charles J. Kappler, also known as the “Kappler Report,” which compiles 366 of the 375 treaties recognized by the State Department).

3 U.S. Commission on Civil Rights, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country (2003), 6, https://www.usccr.gov/pubs/na0703/na0204.pdf [hereinafter USCCR, A Quiet Crisis]. These six key agencies sponsoring Native American programs are the U.S. Department of Health and Human Services, the U.S. Department of Interior, the U.S. Department of Housing and Urban Development, the U.S. Department of Justice, the U.S. Department of Education, and the U.S. Department of Agriculture.

4 Ibid., 5.

5 Ibid., 5–6; see also infra notes 26-61.

6 U.S. Dep’t of the Interior, Bureau of Indian Affairs, “Frequently Asked Questions: What are Indian treaty rights?” https://www.bia.gov/frequently-asked-questions (last accessed Aug. 23, 2018); see also American Indian Treaties, National Archives, https://www.archives.gov/research/native-americans/treaties. The latter website includes links to a number of resources that catalogue laws and treaties pertaining to Native Americans in the U.S.

7 USCCR, A Quiet Crisis, supra note 3, at 6.

8 Ibid., 9.

9 Ibid., 5–6.

10 See The Federal Trust Relationship, infra notes 26–61 (discussing the federal trust relationship) .

 11 USCCR, A Quiet Crisis, supra note 3, at ix.

12 Ibid.

13 Ibid., 113.

14 Letter from Rep. Derek Kilmer to then-Chair Castro, Vice Chair Timmons-Goodson, and Commissioners on May 14, 2015 [hereinafter Kilmer letter]. See infra Appendix A. The Commission voted to provide an update to A Quiet Crisis in June 2015. See U.S. Commission on Civil Rights, Commission Business Meeting, June 29, 2015, transcript, at 24–37.

15 Kilmer letter, supra note 14. 16 Ibid.

17 Ibid.

18 Ibid.

19 See infra Discussion and Sources cited in Chapters 1–5.

20 A brief list of the Commission’s past and current research and reports on Native American and Native Hawaiian issues is listed in Appendix J.

21 See infra Findings and Recommendations.

22 See Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community, 81 FED. REG. 71,278–323 (Oct. 14, 2016) (codified at 43 C.F.R. pt. 50) [hereinafter Native Hawaiian Final Rule]. In 2016, the U.S. Department of the Interior issued a final rule specifying procedures to allow a unified Native Hawaiian government, if one is established in the future, to enter into a formal government-to-government relationship with the U.S. As background to the rule, the Department of the Interior noted that Congress had “federally acknowledged or recognized” the Native Hawaiian community as reflected in more than 150 enacted U.S. statutes that already appear to establish a unique political trust relationship. See 81 FED. REG. 71,278 (Oct. 14, 2016); see also Frances Kai-Hwa Wang, Dept. of Interior Finalizes Rule to Recognize Native Hawaiian Government, NBC NEWS, Sept. 23, 2016, https://www.nbcnews.com/news/asian-america/department-interior- finalizes-rule-recognize-native-hawaiian-government-n653631; Office of Hawaiian Affairs, OHA applauds Obama administration (May 27, 2014), https://www.oha.org/news/oha-applauds-obama-administrations-consideration-of- administrative-path-to-federal-recognition/. While some Native Hawaiians have applauded this action by the U.S. Department of the Interior, others do not agree. See generally Brieanah Ka’ohinani Wylde Gouveia, Paradise Lost: the Controversy Behind US Federal Recognition of Native Hawaiians, Henry Fowler Policy Paper Competition, https://www.roanoke.edu/Documents/pa/Brieanah%20Gouveia%20Fowler%20Paper%202017.pdf; see also Frances Kai-Hwa Wang, Some Protest [U.S.] Rule for Recognition of Native Hawaiian Government, NBC NEWS, Sept. 26, 2016, https://www.nbcnews.com/news/asian-america/some-protest-us-rule-recognition-native-hawaiian- government-n654501.

23 Native Hawaiian Final Rule, at 71,278–282.

24 Id.; See also Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004), cert. denied, 545 U.S. 1114 (2005) (exclusion of Native Hawaiians from Department of Interior regulations acknowledging the federally recognized status of Indian tribes did not violate Equal Protection component to the Fifth Amendment's Due Process Clause under rational basis scrutiny). The Ninth Circuit in Kahawaiolaa stated: [It] would have more confidence in the outcome if the Department of Interior had applied its expertise to parse through history and determine whether native Hawaiians, or some native Hawaiian groups, could be acknowledged on a government-to-government basis. It would have been equally rational, if perhaps not more so, for the Department to have decided to undertake that inquiry in the first instance . . . . Thus, in the end, we must commit this question to Congress to apply its wisdom in deciding whether or not native Hawaiians should be included among those eligible to apply for federal tribal recognition. 386 F.3d at 1283.

25 18 U.S.C. § 1151.

26 U.S. Dep’t of the Interior, Bureau of Indian Affairs, “Frequently Asked Questions: What is a federally recognized tribe?” https://www.bia.gov/frequently-asked-questions.

27 Ibid.

28 See American Law Institute, Restatement of Law: the Law of American Indians, Tentative Draft No. 1 (April 22, 2015) at §4(b); See also Indian Health Service, “About Us,” https://www.ihs.gov/aboutihs/ (last accessed September 19, 2018) (collecting statutes that apply to the provision of health care services for Native Americans); U.S. Dep’t of the Interior, Bureau of Indian Affairs, “Frequently Asked Questions: What is the federal trust responsibility?” https://www.bia.gov/frequently-asked-questions (last accessed Aug. 24, 2018).

29 USCCR, A Quiet Crisis, supra note 3, at 3.

30 Stacy Bohlen, Executive Director of the National Indian Board of Health, Testimony, Briefing before the U.S. Commission on Civil Rights, Washington D.C., Feb. 19, 2016, p. 22, https://www.usccr.gov/calendar/2016/02-19- Unedited-Transcript.pdf [hereinafter Briefing Transcript].

31 American Law Institute, Restatement of Law: the Law of American Indians, Tentative Draft No. 1 (April 22, 2015) at §4, comment e.

32 Id.

33 See Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750 (2016). 34 See Gros Ventre Tribe v. United States, 469 F.3d 801, 810–12 (9th Cir. 2006).

35 See, e.g., Daniel I.S.J. Rey-Bear & Matthew L.M. Fletcher, “We Need Protection from our Protectors:” The Nature, Issues, and Future of the Federal Trust Responsibilities to Indians, 6 Mich. J. Envtl. & Admin. L. 397, 400 (Spring 2017); see also id. at 450 (“[a]bsent a judicial rediscovery of Indian law, Congress will have to legislate to correct the Court’s misadventures.”) (quoting David Getches, Remarks at Federal Bar Association Indian Law Conference, 84 U. Colo. L. Rev. 201, 202 (2013)).

36 Snyder Act, Pub. L. No. 67–85 42 Stat. 208, (1921) (codified at 25 U.S.C. § 13).

37 American Law Institute, Restatement of Law: The Law of American Indians, Tentative Draft No. 1 (April 22, 2015) at §4(b); see also U.S. Dep’t of the Interior, Bureau of Indian Affairs, “Frequently Asked Questions: What is the federal trust responsibility?” https://www.bia.gov/frequently-asked-questions (last accessed Aug. 24, 2018).

38 Secretary of the Interior, Order No. 3335, Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries, at 4 (August 20, 2014), https://www.doi.gov/sites/doi.gov/files/migrated/news/pressreleases/upload/Signed-SO-3335.pdf; see also Solicitor Thompkins to Secretary Jewell, M-37045, Reaffirmation of the United States’ Unique Trust Relationship with Indian Tribes and Related Indian Law Principles (Jan. 18, 2017), https://www.doi.gov/sites/doi.gov/files/uploads/m- 37045.pdf.

39 Some such laws on Indian self-determination are the Indian Reorganization Act of 1934, 25 U.S.C. § 5101 et seq. (1934); Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq.; Indian Education Act of 1972, Pub. L. No. 92-318 (codified as amended in scattered subsections of §§ 7, 12, 16, and 20 of the U.S. Code); Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638 (1975) (codified at 25 U.S.C. § 5301 et seq.); and the American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341 (1978) (codified at 42 U.S.C. § 1996).

40 Indian Trust Asset Reform Act, Pub. L. No. 114-178, 130 Stat. 432 (Jun. 22, 2016) (codified at 25 U.S.C. § 5601).

41 See generally supra note 39.

42 Stephen Cornell and Joseph P. Kalt, American Indian Self-Determination: The Political Economy of a Successful Policy, Harvard Kennedy School Faculty Research Working Paper Series, (Nov. 2010), 3, http://nni.arizona.edu/pubs/jopna-wp1_cornell&kalt.pdf [hereinafter Cornell et. al., American Indian Self Determination].

43 Ibid.

44 American Law Institute, Restatement of the Law: The Law of American Indians, Tentative Draft No. 1 (April 22, 2015) at §4, commented.

45 USCCR, A Quiet Crisis, supra note 3, at 2.
46 Jacqueline Pata, Executive Director of the National Congress of American Indians [hereinafter NCAI], Written

Statement for the U.S. Commission on Civil Rights, Feb. 19, 2016, at 1–2 [hereinafter NCAI Statement].

47 See, e.g., Laurence J. Kirmayer, Joseph P. Gone, and Joshua Moses, Rethinking Historical Trauma, 51 TRANSCULTURAL PSYCHIATRY 3d 3, 304, 311 (2014), http://journals.sagepub.com/doi/pdf/10.1177/1363461514536358. See also Emma Brown, U.S. government has ‘dismally failed’ to educate Native American children, lawsuit alleges, WASH. POST, Jan. 12, 2017, https://www.washingtonpost.com/news/education/wp/2017/01/12/u-s-government-has-dismally-failed-to-educate- native-american-children-lawsuit-alleges/?utm_term=.9c5033a6bad4. Brown’s article quotes Don E. Watahomigie, chairman of the Havasupai tribal council, who asserts, “The United States government has confined us to this remote location. . . . The United States government promised quality education to our people. The United States government failed on this promise, and as a result our people suffer.” See also Chapter 3 infra notes 544–561 (on education, including discussion of forced separation of children and prohibition of language and other traditions) and Chapter 4 infra notes 807-808 (on housing, including discussion of forced relocation and repossession of land) .

48 U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Victimization, 2012 (October 2013), 7, http://www.bjs.gov/content/pub/pdf/cv12.pdf. See also Lynn Rosenthal, THE WHITE HOUSE, The Tribal Law and Order Act of 2010: A Step Forward for Native Women (July 29, 2010), https://www.whitehouse.gov/blog/2010/07/29/tribal-law-and-order-act-2010-a-step-forward-native-women; Dominique Daye Hunter, INDIGENOUS WOMXN IN SOLIDARITY EMPOWERED AND RISING (IWISER), What is the Tribal Law and Order Act? And Why Does it Matter? (Oct. 4, 2017), https://iwiser4.com/2017/10/04/violence- against-american-indian-women-the-tribal-law-and-order-act-implementation-and-effects/; U.S. Department of Health and Human Services, Indian Health Service, Fact Sheet: Disparities (Apr. 2018), 2, https://www.ihs.gov/newsroom/includes/themes/responsive2017/display_objects/documents/factsheets/Disparities.p df [hereinafter HHS, IHS, Fact Sheet: Disparities].

49 HHS, IHS, Fact Sheet: Disparities, supra note 48, at 2; Melissa L. Walls, et al., Mental Health and Substance Abuse Services Preferences among American Indian People of the Northern Midwest, 42 CMTY. MENTAL HEALTH J. 6, 522 (2006), https://link.springer.com/content/pdf/10.1007%2Fs10597-006-9054-7.pdf; NCAI, Fiscal Year 2017 Indian Country Budget Request: Upholding the Promises, Respecting Tribal Governance—For the Good of the People (2016), 56, http://www.ncai.org/resources/ncai-publications/NCAI-2017-BudgetReport-Layout-FINAL.pdf [hereinafter NCAI, FY 2017 Indian Country Budget Request]; Kathleen Brown-Rice, Examining the Theory of Historical Trauma Among Native Americans, THE PROF. COUNS., http://tpcjournal.nbcc.org/examining-the-theory- of-historical-trauma-among-native-americans/ (last accessed Sept. 24, 2018); U.S. Dep’t of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), Office of Applied Studies, The National Survey on Drug Use and Health Report: Substance Use Among American Indian or Alaska Native Adults (2010), 1, http://www.iaia.edu/wp-content/uploads/2011/04/Substance-Use-Among-AI-Adults.pdf. Native Americans also experience higher rates of binge alcohol episodes and illicit drug use compared to the general population. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, INDIAN HEALTH SERVICE, Trends in Indian Health (2014), 192, https://www.ihs.gov/dps/includes/themes/newihstheme/display_objects/documents/Trends2014Book508.pdf [hereinafter IHS, Trends in Indian Health]. See also U.S. Dep’t of Health and Human Services, Substance Abuse and Mental Health Services Administration, Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings (2014), 88, https://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf. In 2013, the rate of substance dependence or abuse among Native Americans aged 12 or older was 14.9 percent—the highest rate among all population groups nationwide. See also infra notes 384–451 (discussing behavioral health).

50 See U.S. Dep’t of Health and Human Services, Indian Health Service, Fact Sheet: Behavioral Health (January 2015), https://www.ihs.gov/newsroom/includes/themes/responsive2017/display_objects/documents/factsheets/BehavioralH ealth.pdf; National Tribal Budget Formulation Workgroup, Recommendations on the Indian Health Service Fiscal Year 2017 Budget: Turning the Corner in Indian Health Treaty and Trust Obligations: Writing a New Future for American Indians and Alaska Natives, May 2015, 24, https://www.nihb.org/docs/06242015/Final%20FY%202017%20IHS%20budget%20full%20report.pdf [hereinafter Tribal Budget Workgroup, Recommendations on the IHS FY 2017 Budget].

51 See DONNA MARTINEZ, School Culture and American Indian Educational Outcomes, PROCEDIA —SOC. AND BEHAV. SCI., Vol. 116 (2014), 165, 199 (2014) , https://ac.els-cdn.com/S1877042814001955/1-s2.0- S1877042814001955-main.pdf?_tid=9cfb0a4b-076a-4afc-9204- d72e2eb4859b&acdnat=1526399366_b385d9da205b9ad6e8ea1702542a2bb8 [hereinafter Martinez, School Culture and American Indian Educational Outcomes]; U.S. Dep’t of Education, National Center for Education Statistics, Institute of Education Sciences, Trends in High School Dropout and Completion Rates in the United States: 2014 (March 2018), 24, https://nces.ed.gov/pubs2018/2018117.pdf.

52 See Secretary Shaun Donovan, U.S. Dep’t of Housing and Urban Development (HUD), testimony before the Senate Committee on Banking, Housing, and Urban Affairs and Committee on Indian Affairs, Aug. 25, 2010, https://www.gpo.gov/fdsys/pkg/CHRG-111shrg62798/html/CHRG-111shrg62798.htm; U.S. Dep’t of Housing and Urban Development, Continuity and Change: Demographic, Socioeconomic, and Housing Conditions of American Indians and Alaska Natives (2014), xv, https://www.huduser.gov/portal//publications/pdf/housing_conditions.pdf [hereinafter HUD, Housing Conditions of American Indians and Alaska Natives]. An overcrowded household is considered one that contains more than one person per room. U.S. Dep’t of Housing and Urban Development, Office of Policy Development and Research, Urban Institute, Housing Needs of American Indians and Alaska Natives in Tribal Areas (January 2017), 67, https://www.huduser.gov/portal/sites/default/files/pdf/HNAIHousingNeeds.pdf [hereinafter HUD Housing Needs]; U.S. Government and Accountability Office, Native American Housing: Additional Actions Needed (March 2014), introductory summary, http://www.gao.gov/assets/670/662063.pdf [hereinafter GAO, Additional Actions Needed].

53 U.S. Census Bureau, Poverty Status in the Past 12 Months, American Community Survey 5-Year Estimates (2016), https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_5YR/S1701. See also Jens Manuel Krogstad, One-in-four Native Americans and Alaska Natives are living in poverty, Pew Research Center, FACT TANK (June 13, 2014), http://www.pewresearch.org/fact-tank/2014/06/13/1-in-4-native-americans-and-alaska-natives-are-living-in-poverty/ (stating that the poverty rate among the Standing Rock Sioux Tribe in North Dakota is 43.2 percent, which is almost triple the national average).

54 See U.S. Dep’t of Labor, Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, https://data.bls.gov/timeseries/LNS14000000 (last accessed Sept. 24, 2018); Dedrick Asante-Muhammad, Beyond Standing Rock: The Native American Economic Experience, HUFFINGTON POST (Mar. 1, 2017), https://www.huffingtonpost.com/entry/beyond-standing-rock-the-native-american- economic_us_58b6e21de4b0e5fdf619792b; U.S. Senate Committee on Indian Affairs, Unemployment on Indian Reservations at 50 Percent: The Urgent Need to Create Jobs in Indian Country, hearing transcript (Jan. 28, 2010), at 3, https://www.indian.senate.gov/sites/default/files/upload/files/January2820102.pdf; Vincent Schilling, Getting Jobbed: 15 Tribes With Unemployment Rates Over 80 Percent, INDIAN COUNTRY TODAY (Aug. 29, 2013), https://newsmaven.io/indiancountrytoday/archive/getting-jobbed-15-tribes-with-unemployment-rates-over-80- percent-iAV-3u_770-C6fEcCc3lfA/; Shelly Hagan, Where U.S. Unemployment Is Still Sky-High: Indian Reservations, BLOOMBERG, Apr. 5, 2018, https://www.bloomberg.com/news/articles/2018-04-05/where-u-s- unemployment-is-still-sky-high-indian-reservations (reporting that tribal water systems experienced approximately 60 percent more water-quality violations in the past decade than non-tribal water systems).

55 USCCR, A Quiet Crisis, supra note 3, at 5. 56 Ibid.

57 Ibid.

58 NCAI Statement, supra note 46, at 2.

59 American Indian Policy Review Commission, Final Report to Congress, (May 17, 1977), 130, https://files.eric.ed.gov/fulltext/ED164229.pdf.

60 NCAI Statement, supra note 46 at 2.

61 Ibid.

62 USCCR, A Quiet Crisis, supra note 3, at 7.

63 See, e.g., NCAI, “Data Disaggregation: The Asterisk Nation,” http://www.ncai.org/policy-research- center/research-data/data (last accessed July 17, 2018); NCAI Policy Research Center, Federal Data Collection in American Indian/Alaska Native Communities (undated), 1, https://www.fws.gov/nativeamerican/pdf/tek-federal- data.pdf; Urban Indian Health Commission, Invisible Tribes: Urban Indians and Their Health in a Changing World, October 2007, at 2, https://www2.census.gov/cac/nac/meetings/2015-10-13/invisible-tribes.pdf; U.S. Dep’t of the Interior, Office of Policy Analysis, 2016 American Indian and Alaska Native Data Workshop Summary Report (November 2016), 2–3, https://www.doi.gov/sites/doi.gov/files/uploads/indian_data_workshop_summary_report_- _final_draft_3_20_2017.pdf; Chase Sackett, U.S. Dep’t of Housing and Urban Development, Office of Policy Development and Research, Who Counts? Identifying Native American Populations, EVIDENCE MATTERS (Spring 2015), https://www.huduser.gov/portal/periodicals/em/spring15/highlight2.html.

64 NCAI, Federal Data Collection in American Indian/Alaska Native Communities, 1, https://www.fws.gov/nativeamerican/pdf/tek-federal-data.pdf.

65 NCAI, “Data Disaggregation: The Asterisk Nation,” http://www.ncai.org/policy-research-center/research- data/data (last accessed July 17, 2018). See also U.S. Census Bureau, American Community Survey Design and Methodology (January 2014), 29–30, https://www2.census.gov/programs- surveys/acs/methodology/design_and_methodology/acs_design_methodology_report_2014.pdf. The ACS attempts to achieve accuracy in data collection to produce reliable estimates of populations in American Indian areas, Alaska Native areas, Hawaiian homelands, and American Indian tribal subdivisions—including those with active and functioning governments—by “[sampling] these areas with smaller populations at higher rates relative to those areas with larger populations.” Ibid.

66 U.S. Dep’t of Education, “Data and Statistics on Native Hawaiian and Pacific Islanders,” https://sites.ed.gov/aapi/data-and-statistics/ (last accessed Sept. 24, 2018); Jamaal Abdul-Alim, Disaggregation Key to Fighting “Model Minority” Myth for Asian-Americans, Pacific Islanders and Native Hawaiians, DIVERSE: ISSUES IN EDUCATION, (Oct. 31, 2011), 1, http://diverseeducation.com/article/16585/. See also 42 U.S.C. § 11702(a) (recognizing “special responsibilities and legal obligations to the indigenous people of Hawaii resulting from the unique and historical relationship” between the U.S. government and the indigenous peoples of Hawaii).

67 Ryan W. Schmidt, American Indian Identity and Blood Quantum in the 21st Century: A Critical Review, J. ANTHROP. (2011), Article ID 549521, at 1, https://www.hindawi.com/journals/janthro/2011/549521/cta/.

68 Sarah Krakoff, Inextricably Political: Race, Membership, and Tribal Sovereignty, 87 WAS. L. REV. 1041, 1043 (2012). See also Matthew L.M Fletcher, Tribal Membership and Indian Nationhood, 37 AM. INDIAN L. REV. 1, 9–13 (2013) (where the author states that, “It is impossible to avoid the fact that racial ancestry is critical to tribal membership criteria.”).

69 See Morton v. Mancari, 417 U.S. 535, 553–54 (1974) (characterizing Congress’s power to create an employment preference for Native Americans in the Bureau of Indian Affairs as grounded in federal legislative authority to govern on behalf of “quasi-sovereign” tribes according to the trust relationship). Case law subsequent to Morton v. Mancari has noted the inclusion of Native Americans as a racial minority in race-based classifications designed to remedy past discrimination. See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 205 (1995) (observing that “Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities” were presumed disadvantaged by racial bias in a law challenged under the Fifth Amendment’s Due Process Clause); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478 (1989) (examining a law that defined minority groups as “Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.”). See also Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537, 566–68 (1996) (discussing Supreme Court jurisprudence that has reviewed Native Americans’ rights as members of sovereign tribes and as a distinct racial minority).

70 See, e.g., U.S. v. Antelope, 430 U.S. 641, 645 (1977) (citing Worcester v. Georgia, 31 U.S. 515 (1832) and United States v. Mazurie, 419 U.S. 544, 557 (1975)).

71 See OFFICE OF MANAGEMENT AND BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity, 62 FED. REG. 58,582 (Oct. 30, 1997). Federal standards on racial and ethnic data require a minimum of five racial categories, including American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White. These standards “were developed in cooperation with Federal agencies to provide consistent data on race and ethnicity throughout the Federal Government. Development of the data standards stemmed in large measure from new responsibilities to enforce civil rights laws.” See also USCCR, A Quiet Crisis, supra note 3, at 1.

72 The Commission has chosen to use data from the U.S. Census Bureau to provide information about the American Indian and Alaska Native self-identified population in the U.S., while recognizing the challenges that the Bureau has historically had in achieving an accurate count of this population. See Carol Chiago Lujan, American Indians and Alaska Natives Count: The US Census Bureau’s Efforts to Enumerate the Native Population, 38 The American Indian Quarterly 3, 2014, http://go.galegroup.com/ps/i.do?v=2.1&it=r&sw=w&id=GALE%7CA381053736&prodId=AONE&userGroupNam e=tel_k_clarkhigh; see also U.S. Census Bureau, “Press Release: Census Bureau Releases Estimates of Undercount and Overcount in the 2010 Census” (May 22, 2012), https://www.census.gov/newsroom/releases/archives/2010_census/cb12-95.html (“Coverage of the American Indian and Alaska Native population varied by geography. American Indians and Alaska Natives living on reservations were undercounted by 4.9 percent, compared with a 0.9 percent overcount in 2000. The net error for American Indians not living on reservations was not statistically different from zero in 2010 or 2000.”). The U.S. Census Bureau has historically had challenges with achieving an accurate count of the American Indian/Alaska Native population, due to a number of factors including high mobility rates, a transient population, a mistrust of the federal government, geographical challenges, language barriers, and other methodological problems. Census data are used to determine things such as school district definitions, the allocation of Congressional seats in the House of Representatives, and the distribution of federal funds to tribal, state, and local governments for various programs in criminal justice, health care, education, housing, economic development, and others. Some tribes, for example, have been historically undercounted in the Census, and an inaccurate count of the American Indian/Alaska Native population can have serious implications for critical funding decisions for federal programs that serve Indian Country. The U.S. Census Bureau, however, has taken steps to address some of these challenges to achieve a more accurate count of the American Indian and Alaska Native population; IHS, Trends in Indian Health, supra note 49, at 10. Some federal agencies use alternate population estimates to calculate their service population. One example of this is IHS, that uses population data derived from the 2000 U.S. Census Population with Bridged-Race Categories to calculate mortality and nationality adjusted population rates for its service population. This report explains:

The 2000 Census allowed respondents to report more than one race category to describe their race. The birth and death certificates (vital events) used by the states for years 2007–2009 allow only a single race category to be reported. Vital event totals are used in the numerator and the 2000 Census bridged population is used as the denominator to produce the birth or death rates that occur in the population of interest. The denominator data are based on the 2000 Census bridge file, which re- categorizes responses to a single race where more than one race was reported. This corresponds to the single race categories used on birth and death certificates[.]

Corbrett Hodson, Congressional and Legislative Affairs, IHS, Email to the U.S. Commission on Civil Rights (Sept. 25, 2018) (on file). IHS has explained further that Census data may include individuals who are not eligible for IHS health care services (as the IHS service population is estimated at 2.2 million American Indians and Alaska Natives that are members or decedents of members of federally recognized tribes), as many of these individuals “are members of state recognized tribes or individuals who have a relative who was an American Indian or Alaska Native but have no records of tribal enrollment.” Additionally, many American Indian and Alaska Native individuals identified in the Census data reside in urban areas, and most of IHS’ services are provided in geographic areas “on or near reservations.” Ibid. IHS further explained:

The IHS service population estimates are based on official U.S. Census Bureau county data, representing self-identified American Indian and Alaska Native people who may or may not use IHS services. The IHS service population is based on the 2000 Census bridged-race file and consists of American Indians and Alaska Natives identified to be eligible for IHS services. IHS service populations between census years are estimated using a smoothing technique in order to show a gradual transition between census years. This normally results in upward revisions to service population figures projected prior to a census, since each Census tends to do a better job in enumerating American Indian and Alaska Native people. IHS service populations beyond the latest census year with available data are projected through linear regression techniques, using the most current ten years of American Indian and Alaska Native birth and death data provided by the National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).

Ibid.

73 U.S. Census Bureau, Native Hawaiian and Other Pacific Islander alone or in combination with one or more other races, 2016 American Community Survey 1-Year Estimates, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/16_1YR/B02012.

74 U.S. Census Bureau, The Native Hawaiian and Other Pacific Islander Population: 2010 (May 2012), 4, https://www.census.gov/prod/cen2010/briefs/c2010br-12.pdf.

75 U.S. Census Bureau, The American Indian and Alaska Native Population: 2010 (January 2012), 8, https://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf.

76 Ibid.

77 U.S. Census Bureau, The Native Hawaiian and Other Pacific Islander Population: 2010 (May 2012), 7, https://www.census.gov/prod/cen2010/briefs/c2010br-12.pdf.

78 Ibid.

79 Ibid.

80 These federal agencies include the U.S. Department of the Interior (DOI), under which the Bureau of Indian Affairs (BIA) and the Bureau of Indian Education (BIE) are housed; the U.S. Department of Justice (DOJ), under which the Office of Tribal Justice (OTJ) is housed; the U.S. Department of Health and Human Services (HHS), under which the Indian Health Service (IHS) is housed; the U.S. Department of Education (ED); the U.S. Department of Housing and Urban Development (HUD); the U.S. Department of Agriculture (USDA); the U.S. Department of Commerce, under which the U.S. Census Bureau and the National Oceanic and Atmospheric Administration are housed; the U.S. Department of the Treasury; the U.S. Department of Energy; the U.S. Department of Transportation; the U.S. Environmental Protection Agency; the U.S. Department of Labor; the U.S. Department of Homeland Security, under which the Federal Emergency Management Agency (FEMA) is housed; the U.S. Department of Defense; the U.S. Department of Veterans Affairs; the Small Business Association; the Federal Communications Commission (FCC); the U.S. Equal Employment Opportunity Commission; the National Science Foundation; the White House Council on Native American Affairs; and other agencies.

81 USCCR, A Quiet Crisis, supra note 3, at 11.
82 For an overview of the federal budgeting process, see Center on Budget and Policy Priorities, Introduction to the

Federal Budget Process (Aug. 23 2017), https://www.cbpp.org/sites/default/files/atoms/files/3-7-03bud.pdf. 83 Ibid.

84 See Christopher D. Boesen, National American Indian Housing Council, Testimony before the Senate Committee on Indian Affairs, Feb. 23, 2000 (discussing examples of Native American funding set-asides).

85 Congressional Research Service, Advance Appropriations, Forward Funding, and Advance Funding: Concepts, Practice, and Budget Process Considerations (Oct. 8, 2015), https://fas.org/sgp/crs/misc/R43482.pdf.

86 Tribal Self-Governance Communication and Education Consortium (SGCE), National Tribal Self-Governance—A Legacy for the Future: National Tribal Self-Governance 2015–2017 Strategic Plan and Priorities (Mar. 26, 2015), 12, http://www.tribalselfgov.org/wp-content/uploads/2017/04/17-19-SG-Strategic-Plan-online.pdf [hereinafter Tribal Self-Governance Communication and Education Consortium, National Tribal Self-Governance 2015–2017 Strategic Plan and Priorities].

87 Tribal Self-Governance Communication and Education Consortium, “About SGCE,” https://www.tribalselfgov.org/about-sgce/ (last accessed July 17, 2018).

88 Tribal Self-Governance Communication and Education Consortium, National Tribal Self-Governance 2015–2017 Strategic Plan and Priorities, supra note 86, at 12.

89 25 U.S.C. § 5325(i). 90 Id.

91 U.S. Dep’t of Health and Human Services, Tribal Consultation Policy (Dec. 12, 2010), 7, 10, https://www.hhs.gov/sites/default/files/iea/tribal/tribalconsultation/hhs-consultation-policy.pdf; see also U.S. Dep’t of Health and Human Services, “Tribal Consultation,” https://www.hhs.gov/about/agencies/iea/tribal- affairs/consultation/index.html (last accessed Sept. 24, 2018).

92 U.S. Dep’t of Health and Human Services, Indian Health Service, “Tribal Budget Consultation,” https://www.ihs.gov/budgetformulation/tribalbudgetconsultation (last accessed Sept. 24, 2018).

93 U.S. Dep’t of the Interior, “Tribal-Interior Budget Council (TIBC),” https://www.bia.gov/as-ia/ocfo/tibc (last accessed July 17, 2018).

94 U.S. Dep’t of the Interior, FY 2019 Federal Funding for Programs Serving Tribes and Native American Communities, 6, https://www.doi.gov/sites/doi.gov/files/uploads/fy2019nativeamericancrosscut.pdf.

95 Ibid.
96 USCCR, A Quiet Crisis, supra note 3, at 9.

97 FY 2019 funds had not yet been appropriated at the time the final draft of this report was prepared for the Commissioners’ vote.

98 U.S. Senate, “Glossary Term: Fiscal Year,” https://www.senate.gov/reference/glossary_term/fiscal_year.htm (last accessed July 17, 2018).

99 U.S. Commission on Civil Rights, “U.S. Commission on Civil Rights Announces Panelists for Briefing Related to Quiet Crisis: Federal Funding and Unmet Needs In Indian Country, 2016 Update” (Feb. 16, 2016), http://www.usccr.gov/press/2016/PR_QuietCrisis2016.pdf.

100 USCCR, A Quiet Crisis, supra note 3, at 120. 101 Ibid.

102 See Jason J. Fichtner and Robert Greene, Curbing the Surge in Year-End Federal Government Spending: Reforming “Use It or Lose It” Rules, Mercatus Ctr. at George Mason Univ., Working Paper, September 2014, at 31; See also LEONARD YOO, Closing the Black Fiscal Hole: Alternatives to the “Spend It or Lose It” Policy for Agency Discretionary Spending, 20 N.Y.U. J. LEGIS. & PUB. POL’Y 339, 340–41, 346 (2017). Yoo explains that budget appropriations for each federal agency expire at the end of the fiscal year and cannot “roll over” into the next fiscal year. Thus, agencies typically rush to spend unexpended funds in the final months of each fiscal year. Despite the dearth of data on year-end agency spending, one study found that agencies tend to spend disproportionately higher percentages of their budgets in the final month of the fiscal year. Id. at 346–47.

103 OFFICE OF MANAGEMENT AND BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, Preparation, Submission, and Execution of the Budget, Circulation No. A-11, § 20.3, at 3 (July 2013), https://www.law.umich.edu/facultyhome/margoschlanger/Documents/Publications/Offices_of_Goodness/Office%20 of%20Mgmt%20Budget,%20Exec.%20Office%20of%20the%20President,%20Circular%20No.%20A-11.pdf.

Refbacks

  • There are currently no refbacks.