Perhaps the most powerful phrase in federal rule-making is “… and tribes.” Those two words require agencies to consult and consider the impact of any action on tribal governments and their citizens. When the process works well, it gives tribes a say in how the agency fulfills its mission.
Then not every federal agency sees consultation the same. Some government regulations are extraordinarily complicated and easily slip past a public debate that includes voiceds from Indian country.
A case in point is the Federal Communications Commission and its rethinking of the rules for its Lifeline program. Lifeline began in 1985 as part of the break-up of the old AT&T telephone network. The idea was to make certain that poor people had access to telephones, essential tools for finding and keeping jobs, keeping in touch with family, or calling a clinic to make a doctor’s appointment. Of course the world has changed much since 1985. Many “home” telephones are now cell phones. And today that connection ought to include broadband access. As the FCC itself says: “Disconnected consumers, which are disproportionately low-income consumers, are at an increasing disadvantage as institutions and schools, and even government agencies, require access for full participation in key facets of society.”
Exactly. The nature of life in this digital age means that American Indians and Alaska Natives, no matter the geography or income, need to find a way to be connected. But even simple ideas run up against the complexity of history, governing during a partisan divide, and the challenges of defining tribal lands and sovereignty.
In recent years, critics of the Lifeline program say that it became a pipeline for fraud. Phone companies determined who was eligible and even filled out the subsidy paperwork. Denver CBS4 reported that some vendors used someone else’s food stamp cards as the identification to sign up for subsidized service. A Tulsa telephone company owner was sent to prison after being convicted of fraudulently selling consumers Lifeline service.
So in 2012 the FCC made substantial changes to the Lifeline program. The idea is to scale back the numbers of eligible consumers so that more resources will be available for new digital Lifelines.
According to the Government Accountability Office, or GAO, those reforms resulted in some 6 million fewer households using the program, dropping from 18 million to 12 million in 2014.
The FCC says Oklahoma is a particularly thorny problem because the “data show that two-thirds of enhanced tribal support goes to non-facilities based Lifeline providers, and it’s unclear whether the support is being used to deploy facilities in tribal areas.” There was no real definition of Indian land in Oklahoma so practically anyone could cite that provision of the subsidy, a monthly discount of $9.25 on telephone bills plus up to an additional $25 a month subsidy for “residents of tribal lands” (depending on service costs). One FCC Commissioner said that because all of Oklahoma is considered Indian country only 339 consumers out of 307,434 did not qualify for the special tribal lands subsidy.
So the FCC’s solution is to invent a new definition of tribal lands in Oklahoma.
Defining tribal lands is easy in a reservation setting. (Or at least it should be.) But it is far more complicated in Oklahoma, Alaska, Nevada, and other regions where the history is different.
It’s in that context that the FCC came up with its new rule that redefines tribal lands within Oklahoma based on a map of the state from 1870 to 1890 to identify “former” reservation lands. Only tribal citizens within those century-old boundaries will be considered eligible for the subsidy.
Brian Howard, a legislative analyst for the National Congress of American Indians, says the use of these maps are problematic because they’re not real boundaries. There is not even a map that can be plotted with Geographic Information Service data (GIS).
What’s more: This Oklahoma map has no statutory authority. It’s an invention of the FCC.
A second element of the FCC proposal carves out an exception within its own mapping system. The FCC says some tribal lands are too “densely populated” and that “is inconsistent with the Commission’s objectives.”
“What level of geographic granularity should we examine to apply any population density-based test?” The commission asked. It said other federal agencies do the same thing, citing the Department of Agriculture’s Food Distribution Program which excludes residents of cities and towns in Oklahoma that are larger than 10,000 people.
Nearly every federal program treats Oklahoma, Alaska, and a few urban areas within Indian country in Nevada and Arizona, in exactly the same manner as they would reservation lands.
In June in St. Paul, Minnesota, the NCAI passed a resolution that called the FCC’s new definition unacceptable. NCAI said the FCC should instead consult with sovereign tribal nations to come up with a definition of tribal lands that “does not exclude urban, suburban, or high density areas within tribal lands.” A filing by NCAI this week before the FCC adds: “In light of this recommendation areas with high-population densities of tribal populations—like Tulsa, Oklahoma, Chandler, Arizona, Anchorage, Alaska, and Reno, Nevada—should still be eligible for the enhanced tribal Lifeline subsidy. Tribal populations are mobile and often move to economic centers for jobs, but that does not always correlate into improved socio-economic circumstances for tribal members.”
The key thing to remember is that tribes were not involved with fraudulent subsidies for Lifeline. Those crimes largely came about because private telephone companies were helping people enroll as well as producing supporting documents. Yet instead of working with tribes to come up with a solution to the problem, the FCC has set in motion its new rule that weakens both tribal authority and control over boundaries.
NCAI strongly urges the FCC to consider the record of evidence regarding the disparate levels in access and affordability of telecommunications services on tribal lands,” NCAI said in comments about the rule. “While this rule-making is focused on transitioning the FCC’s low-income programs to support broadband service, it is critical to recognize that historical and ongoing shifts in technology and service have only increased the Digital Divide on tribal lands.”
Indian country remains well behind the rest of the country when it comes to technology service.
But even more important than the technical details of this proposal, there’s the limited nature of “…and tribes” as being a part of this rule making. Instead of asking for solutions, the FCC is inventing new law.
Mark Trahant is an independent journalist and a member of The Shoshone-Bannock Tribes. This piece was produced in partnership with Native Public Media. For up-to-the-minute posts, download the free Trahant Reports app for your smart phone or tablet.