April 7, 2022

Advancing Tribal Self-Determination and Self-Governance in the 2023 Farm Bill

Farm Bill Blog Series (Part 5 of 5)
Holland & Knight Eyes on Washington Blog
Kayla Gebeck Carroll | Philip Baker-Shenk
U.S. Capitol Building

The 2023 Farm Bill presents a new opportunity to expand the Indian Self Determination and Education Assistance Act of 1975 (ISDEAA) (P.L. 93-638) authority to many more federal funding sources and tribal governments. 

Tribal Self-Governance

ISDEAA authorized the tribal administration of programs, functions, services and activities (PFSAs) funded by the Indian Health Service (IHS) and the Bureau of Indian Affairs (BIA) through what is known as P.L. 93-638 contracting and compacting authority (638 Authority). Acknowledging that 638 Authority has proven to be the most cost-efficient and effective approach to delivering federally funded programs and services in Indian Country for decades, Congress has expanded 638 Authority to the U.S. Department of Housing and Urban Development (HUD), U.S. Department of Transportation (DOT), U.S. Department of Labor (DOL) and U.S. Department of Agriculture (USDA).

Expansion of Tribal Self-Determination and Self-Governance in the 2018 Farm Bill

Most recently, Congress utilized the 2018 Farm Bill to expand a limited form of 638 Authority to USDA's Food Distribution Program on Indian Reservations (FDPIR) and the U.S. Forest Service (USFS) for activities covered under the Tribal Forest Protection Act (TFPA).

The FDPIR 638 Authority authorized the USDA to enter into a limited number of multiyear contracts with tribal governments for the procurement of domestically grown and produced meat, fish, grains and fresh produce distributed through tribal FDPIR programs. The initiative seeks to strengthen regional tribal food economies by incorporating the purchase of traditional and culturally relevant Native American and Alaska Native foods from USDA-authorized tribal farmers and producers. As part of this initiative, the USDA awarded $3.5 million to eight tribal governments throughout the United States to design and set up demonstration projects that allow tribes greater control over the food procurement decisions made for their FDPIR programs.

The forestry-related TFPA 638 Authority enables the USFS to enter into agreements with tribal governments to conduct projects on USFS lands that reduce the threat of fires, insects and disease impacting adjoining tribal trust lands and resources. To assist tribal governments in using this TFPA 638 Authority with USFS for activities under the TFPA, USFS – in partnership with the Intertribal Timber Council (ITC) – has developed a draft Best Practices Guide to Execute a USDA Forest Service 638 Agreement under the TFPA and shared Questions and Answers associated with the last webinar the USFS held on the Authority.

Opportunities to Expand Tribal Self-Determination and Self-Governance Authority in the 2023 Farm Bill

The 2023 Farm Bill presents a variety of new opportunities to build upon the groundwork laid in Congress and the executive branch in the 2018 Farm Bill. A few ideas that Indian Country may wish to consider advocating for include:

  • Making the FDPIR 638 Authority permanent and expand it to all tribal governments administering FDPIR. Nearly all tribal governments operating FDPIR programs have been prevented from utilizing the limited authority under the 2018 Farm Bill. Tribal governments are the best option for ensuring that all tribal members have access to culturally appropriate, healthy foods that are regionally sourced. Congress should make the FDPIR 638 Authority permanent and open to any tribal government wishing to enter into an agreement with USDA. Congress should also expand the application of this 638 Authority to all aspects of administering the program, including tribal discretion on how best to design, purchase and distribute FDPIR food.
  • Expanding 638 Authority to the Supplemental Nutrition Assistance Program (SNAP). With approximately 24 percent of all native households receiving SNAP benefits, tribal governments should be allowed to shape SNAP within existing federal authority parameters to best meet the unique needs of Indian Country. Tribal governments are in the best position to serve their food-insecure citizens and to tailor food assistance programs to meet the unique circumstances in their own communities. Tribal administration offers the most effective and cost-efficient direct communication, outreach, nutrition education and feeding program service delivery through a streamlined process.
  • Expanding the USFS 638 Authority to all projects located on USFS lands that are concurrent with or adjoining Indian Country. The current USFS 638 Authority has enabled major progress in protecting tribal lands from fires, pests and other diseases which impact the growth and harvesting of traditional foods and medicines. However, the current authority is too narrow in scope to properly manage and protect tribal lands that are concurrent with or adjoin USFS and Bureau of Land Management lands. By expanding the 638 Authority to all projects and activities on USFS lands that are located on or adjacent to Indian Country, tribal governments could administer USFS visitor centers, manage timber harvests, enforce recreational activities and carry out other duties associated with USFS lands in a more culturally relevant and cost-effective manner.
  • The USFS 638 Authority should include a right to contract or compact all USFS PFSAs in tribal service delivery areas and on "former" tribal lands. The current USFS 638 Authority is limited, both as to the scope of activity and to the area in which that activity occurs – only on USFS lands that are contiguous with tribal trust lands. Many tribal governments provide services to their members through 638 contracts or compacts, even if they do not have any land held in trust (e.g., tribal governments that maintain a service delivery area, own land in fee or restricted fee status, operate and maintain resources in traditional or ceded lands, etc.). To ensure that tribal governments can utilize USFS 638 Authority to the full extent possible, Congress must expand it to reflect the complexity of Indian land ownership  and ensure that this Authority includes the ability of a tribal government to contract or compact for services on "former" lands and in current day service delivery areas recognized by the IHS and the BIA.

Holland & Knight's Farm Bill blog series will provide insight into what is in the package, emerging areas of interest at the federal level, and how to ensure that your priorities are included in the final package. For more information on advocating for the expansion of tribal self-governance in the 2023 Farm Bill, please email Kayla Gebeck Carroll or Philip Baker-Shenk.

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