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Gauging Trust Responsibility Via the Federal Budget

A president’s budget may not be the perfect way to measure the federal government’s commitment to its trust obligations to Indians, but it is one of the best indicators we’ve got for now. And while some Indian advocates are pleased with President Barack Obama’s budget for fiscal year 2012, some say that a new way of gauging federal performance on trust responsibility is long overdue.

First, the good news: Indian programs under Obama’s plan fared a lot better than some Indians feared they would, especially given the recent calls for draconian domestic spending cuts. Several Indian program areas—including education, employment, housing, and cultural protection—are on par or slightly above previous spending levels set out by the Obama administration for 2010 and 2011.

Even better, some areas—tribal health and justice in particular—were targeted for dramatically increased spending. The president’s budget, released February 14, includes $4.6 billion for the Indian Health Service (IHS), which is an increase of 14 percent over the 2010 enacted level (2011 funds were the same as those enacted in 2010, as Congress passed a continuing resolution budget that mirrored 2010 levels). That 2010 level was already a 13 percent increase over the last funding cycle under the Bush administration. Over at the Department of Justice, the budget called for $424 million for criminal justice programs involving tribes. That would be a 29 percent increase over the 2010 enacted level, and that extra money would largely go to a new flexible tribal grant program funded in the Office of Justice Programs.

The advances to Native programs did not go unnoticed in Indian country. “In this political and economic climate, the administration’s budget request is realistic and shows it took pains to protect Indian program funding,” said Holly Cook Macarro, an Indian policy lobbyist for Ietan Consulting. “Now tribal leaders must take their fight to the Hill and work with Indian country’s friends on both sides of the aisle to preserve the funding levels there as well.” Added James Meggesto, a partner with the Akin Gump Strauss Hauer & Feld law firm who specializes in Indian policy: “I think the president’s budget does reflect an effort to minimize budgetary reduction impacts on Indian tribes and tribal programs at a time when there is pressure to streamline the budget.”

Macarro noted that the president’s proposal was a 180-degree turn away from proposals like that of Sen. Rand Paul, R-Kentucky, who recently introduced legislation proposing the elimination of the Bureau of Indian Affairs (BIA) and slashing that of IHS. She said that plans like Paul’s “underscore the ever-present need for tribes to educate the Congress of the federal government’s trust responsibilities and treaty obligations.”

As if to underscore that point, bad news was readily apparent within the president’s budget, too—Indians were not immune from cuts. Noted Joe Valandra, a tribal economic consultant and former National Indian Gaming Commission chief of staff: “The 2012 budget fails most notably in the areas of economic development. There are broad cuts in the BIA and the Department of Labor in jobs training and other economic development support. For example, in the BIA budget, the Community & Economic Development line items have been cut 20 percent, to $35 million, and the Indian Guaranteed Loan Program has been cut from $8 million to $3 million; in the Department of Labor’s budget, Adult Employment & Training were cut almost nine percent. Economic development in Indian country is vital. The cuts in the 2012 budget will most assuredly have a negative impact.” Overall the president’s request for BIA funding was $2.5 billion—4.5 percent less than current levels.

Valandra, who works on behalf of tribal broadband interests, has been disappointed by the Obama administration’s spending in that area thus far. “It is my view that given President Obama’s recent strong statements on the need for all communities to have high-speed broadband as a backbone for long-term economic growth and the failure of the American Recovery and Reinvestment Act funding to make any meaningful impact on Indian country, that one of the priorities for tribes ought to be a guaranteed ‘first-in-line’ position for funding for high-speed broadband and support from the Federal Communications Commission and other federal agencies,” he said. The White House has said it is committed to making strides here, but there has been little progress to date.

When budget shortfalls have been pointed out to officials in the Obama administration, they have indicated Indian country should be happy to be receiving the commitments it is getting. In fact, White House officials tend to go out of their way to argue that the current budget situation is a net gain for Indians. “I think that minus the tough choices the administration has made…overall, the government-wide funding to Native Americans has actually increased,” said Kim Teehee, the senior policy advisor for Native American Affairs, during a recent press conference call. She estimated the overall 2012 increase to be five percent over 2010 and four percent over the continuing resolution levels of 2011. “I think that we fared pretty well in light of all of the tough choices that had to be made,” she said.

The idea of “faring well” is where the budget talk in Indian country gets a whole lot more complicated. No one agrees on how, exactly, Indians should measure the federal government’s overall progress on trust responsibility—mandated in the U.S. Constitution and in treaties. Is there a concrete level of budgetary funding that would translate to 100 percent trust obligations being fulfilled?

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The White House, perhaps not surprisingly, is not committed to a budget number that would be indicative of absolute fulfillment of trust obligations to Native Americans. “I can’t speak to a particular level,” Teehee said. “I just know that our path forward is to honor the relationship between the United States and Indian tribes and to move forward with our policy priorities to advocate for the resources necessary….”

That may be the current White House’s path forward on Indian issues, but it does not include a precisely defined measurement that can be tracked year to year across presidential administrations and Congresses—which is why a hard-core Indian advocate can end up feeling disappointed year after year: “Every proposed federal budget in my lifetime has been a disappointment as it relates to Indian country,” Valandra said. “The budget is the concrete manifestation of the continuing failure to live up to federal obligations, moral and legal, to Indian people. It is where policy is measurable in dollars and the direct effect on the lives of Indian communities.”

The president’s budget provides a sort of arbitrary snapshot of commitment to fulfilling trust obligations, said Chris Stearns, an Indian policy lawyer for the Hobbs Straus Dean & Walker law firm—so its usefulness as a distinct measure of how well the administration is honoring its trust responsibility is limited. “A president’s budget can be a useful gauge of just how committed the federal government is to the trust responsibility, but a lot will depend on what Congress does,” Stearns said. “For one thing, if a president knows that Congress is going to restore cuts no matter what, he or she will be more inclined to leave those cuts in the budget and let Congress figure out whose bison is going to get gored.”

There are ways to get much more concrete in terms of fulfilling federal obligations to Indians, it’s just that no American politicians have been fully committed to going there yet. Some progress has been made via self-governance and self-determination contracts between the federal government and tribal governments, Stearns noted, but there are limitations—especially in that they don’t apply to all tribes in the same way.

One way to limit the question marks surrounding trust obligations would be to simply make funding for Indian programs an entitlement, just like Medicare, Medicaid and Social Security. Stearns said that “cutting-edge approach” was “seriously talked about during health-care reform” last year. “Making Indian programs entitlements would not only honor treaty rights, but provide tribes with a powerful economic path to prosperity,” noted Stearns. Of course, it didn’t happen when the health-care reform legislation was enacted, and it isn’t likely to happen now, when the Republican-controlled House is looking to cut entitlements.

But if there was ever a case to be made for certain federal programs to be made permanent (and permanently funded), the facts are on the side of Indian programs. “While much of the funding for tribal programs is called ‘discretionary,’ tribal program spending really does not fit within that category because the trust responsibility effectively imposes an obligation to strengthen tribal governments through program aid on the federal government,” said Meggesto. “Ironically, in the first days of this Congress, the Constitution was read on the floor of the House, in large measure to set a marker that Congress (and the budget) should be tied to the Constitution and federal responsibilities set forth therein.

“In my opinion, where better to start in terms of federal budgetary responsibility to Indian tribes than the Constitution, which led to the treaty-making era, as firmly and permanently establishing a special obligation on the government to fund Indian country programs in a manner consistent with the promises that have been made both historically and just last year, such as with the enactment of the Claims Resolution Act?

“While I don’t think you can say any cut means the trust responsibility is breached, the government’s duties can be measured by how hard it fights to put money where its obligations are, despite pressures to do the contrary.”

Related: Sen. Rand Paul Set to Ignore Treaty Obligations to Indians

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