House Republicans Propose Increase for the Indian Health Service in FY24 and Advance Appropriations for FY25

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On July 12, 2023, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies released the FY24 Interior, Environment, and Related Agencies Appropriations Bill.

  • IHS Funding: The bill would authorize $7.078 billion for the Indian Health Service (IHS) for FY24, an increase of $149.4 million of the FY23 enacted level, $2.2 billion below the President’s Budget Request, and $43.3 billion below the Tribal Budget Formulation Workgroup request of $51.42 billion.
  • Advance Appropriations: The bill also provides $5.878 billion in advance appropriations for FY 2025.
  • Urban Indian Health: The Subcommittee has not released the bill report, which would include the proposed funding for urban Indian health.
  • CSC and Tribal Leases: The Subcommittee rejected the administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.
  • The Subcommittee will be holding the markup on the bill on July 13, 2023, at 5 PM EST. The hearing will be livestreamed here.

NCUIH Advocacy for Key Priorities: Full Funding, Advance Appropriations

  • On March 24, 2023, the National Council of Urban Indian Health (NCUIH) a letter to Chairman Kay Granger (R-TX-12) and Ranking Member Rosa DeLauro (D-CT-3) of the House Interior Appropriations Committee requesting full funding for IHS and urban Indian health, advance appropriations for IHS, and resources for Native behavioral health in FY 2024.
  • On March 9, 2023, NCUIH CEO Francys Crevier (Algonquin), testified before the House Interior Appropriations Subcommittee as part of American Indian and Alaska Native Public Witness Days advocating for full funding for IHS and to maintain advance appropriations for IHS until mandatory funding is enacted.

Next Steps

The Subcommittee will conduct a markup on the bill on July 13, 2023. Following the Subcommittee markup, the bill will move to full Committee consideration. NCUIH will continue to monitor for the report release and provide additional analysis. The hearing will be livestreamed here.

Key Documents

Supreme Court Upholds Constitutionality of ICWA in 7-2 Ruling, Protecting Native Children and Families

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On June 15, 2023, the Supreme Court reaffirmed and upheld the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). The Justices ruled 7-2 and the majority opinion was authored by Justice Barrett. Justices Gorsuch and Kavanaugh wrote concurring opinions, while Justices Thomas and Alito wrote dissenting opinions. The National Council of Urban Indian Health welcomes the Supreme Court’s decision to reject all challenges to ICWA.

Read the Court’s Opinion here.

Claims raised by Petitioners in this case included that Congress exceeded Article I authority when it enacted ICWA, Congress violated the anticommandeering doctrine when it enacted ICWA, and placement preferences under ICWA are racially discriminatory and violate equal protection. The Supreme Court rejected the first two claims on the merits, while it declined to address the equal protection claim for a lack of standing. Based on the majority’s ruling, ICWA is upheld, and therefore, there are no major changes to ICWA’s implementation.

Justice Barrett Upholds Congress’s Authority to Enact ICWA and Rejects Anticommandeering Claim

Justice Barrett first addressed the Article I claim, explaining that, “in a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian Tribes as ‘plenary and exclusive.’” Authority under Article I provide Congress with a set of enumerated powers, including the power to legislate. Here, the court agreed with the Fifth Circuit’s ruling that Congress did not exceed its authority when it enacted ICWA. It also did not find any merit to the claim that ICWA overrides state authority in child custody proceedings. Barrett explained, “in fact, we have specifically recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children.”

Next, Justice Barrett discussed Petitioner’s anticommandeering claim, which is a doctrine under the Tenth Amendment preventing the federal government from forcing states to pass or not pass certain legislation or enforce federal law. She rejected the anticommandeering argument, as ICWA’s provisions apply both to private individuals and agencies as well as government entities. She also rejected their argument because, “Petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything,” as the burden to search for placement rests on the Tribe or other objecting party. She then addressed claims regarding the recordkeeping requirements, finding that Congress allows it as a logical consequence because under dual sovereignty state courts must apply federal law.

Lastly, Justice Barrett did not decide the equal protection claim, because Petitioner’s lacked standing for the Supreme Court to hear and address the argument. To have standing, a party must show they suffered an injury, (the injury is caused by actions of the opposing party), and a favorable decision in court would remedy the harm caused. Parties must also sue the correct party to have standing, and in this case, they sued federal officials when suit against state officials would have been appropriate. She found their claim of racial discrimination as injurious but did not agree it met the requirements of an injury, nor did she find any ruling by the Supreme Court that would properly remedy their harm. She also addressed Texas, and other states, by finding they cannot raise equal protection claims in court on behalf of their citizens.

In their dissents, Justices Thomas and Alito made their own arguments as to why ICWA should be overturned. Justice Thomas focused on Congress intruding on state power to regulate their own child welfare proceedings in state court. Justice Alito argued that ICWA conflicts with state authority to follow the “best interest of the child” standard when conducting child custody proceedings.

Justice Gorsuch Remains a Champion for Native Rights with His Concurrence

Joined in his concurrence by Justices Sotomayor and Jackson, Justice Gorsuch began by going over the history and background that led to the enactment of ICWA. He argued Congress exercised its lawful authority and stayed within the Constitution’s original design. He also placed emphasis on the purpose of ICWA as a response and tool to protect Native children from the longstanding practice of removing them from their families.

“Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it, and it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Concerns Raised as the Court Leaves Undecided the Issue of Equal Protection

Within his concurrence, Justice Kavanaugh was the only justice to address the equal protection claims raised by Petitioners. He joined the majority opinion but found that the equal protection issue is too important not to be decided. He raises scenarios where children are denied placement, or a prospective parent is denied fostering/adoption based on race. There are questions regarding equal protection principles and Court precedent that can be addressed once a plaintiff brings a claim with standing. Due to this, it is likely there will be more challenges to ICWA specifically targeting the issue of racial discrimination.

A full archive of our coverage on ICWA is available on the NCUIH website.

IHS Director Provides COVID-19 Funding Update: Rescissions Impact $419 Million, $900 Million Remaining for IHS COVID Activities

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On Thursday, June 30, 2023, Indian Health Service (IHS) Director Roselyn Tso released a Dear Tribal Leader and Dear Urban Indian Organization Leader Letter to provide an update on the status of COVID-19 supplemental appropriations provided to the IHS in Fiscal Year (FY) 2020 and FY 2021. In June 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) (Public Law 118-5) into law, which rescinds certain unobligated COVID-19 supplemental funding balances. Approximately $419 million of COVID-19 funding that was transferred to the IHS from COVID-19 appropriations is impacted by the enacted rescissions. IHS has nearly $900 million in remaining COVID-19 funding. These remaining resources are predominately for the uses of ongoing COVID-19 testing, treatment, and vaccination of patients at IHS-operated hospitals and health clinics, and other mitigation activities; and purchasing and distributing personal protective equipment, along with COVID-19 tests, therapeutics, and vaccines, at no cost to IHS, Tribal, and Urban Indian health programs through the IHS National Supply Service Center.

Read the letter.

Background

In FY 2020 and FY 2021, over $9 billion was appropriated or made available to the IHS from six emergency supplemental bills to combat the novel coronavirus. On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) (Public Law 118-5) into law. The FRA suspends the public debt limit through January 1, 2025, establishes new discretionary spending limits, and rescinds certain unobligated COVID-19 supplemental funding balances, among other items.

Prior to the enactment of the FRA, IHS continued to obligate COVID-19 funding and the Agency obligated approximately $600 million during the month of May. The FRA protects IHS funds, particularly those that were directly appropriated to the Agency in the American Rescue Plan Act (ARPA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. However, approximately $419 million of COVID-19 funding that was transferred to the IHS from COVID-19 appropriations is impacted by the enacted recissions.

The rescinded funds were intended to support a variety of ongoing COVID-19 mitigation and recovery activities. For example:

  • COVID-19 testing, treatment, and vaccination activities at IHS-operated hospitals and health clinics, and other mitigation activities;
  • The purchase and distribution of PPE, COVID-19 tests, therapeutics, and vaccines at no cost to IHS, Tribal, and urban Indian health programs over the next several years by the IHS NSSC; and
  • The establishment, expansion, and sustainment of a public health workforce.
 Resources:

Department of Veterans Affairs Seeks Nominations for Membership on the Advisory Committee on Tribal and Indian Affairs

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The Department of Veterans Affairs (VA) Office of Tribal Government Relations (OTGR), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Tribal and Indian Affairs (“the Committee”) to represent the following Indian Health Service (IHS) Areas: Bemidji; California; Great Plains; Nashville; Navajo; Tucson. Nominations for membership on the Committee must be received no later than 5 p.m. EST on August 21, 2023, and should be mailed to OTGR at 810 Vermont Ave. NW, Suite 915H (075) or emailed to tribalgovernmentconsultation@va.gov. Individuals interested in participating in this Committee and who are located in the open IHS areas should work with local tribes and tribal organizations to be nominated.

Requirements for Nomination Submission:

Nominations should be typewritten (one nomination per nominator). The nomination package should include:

(1) a letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (i.e., specific attributes which qualify the nominee for service in this capacity), and a statement from the nominee indicating a willingness to serve as a member of the Committee;

(2) the nominee’s contact information, including name, mailing address, telephone number(s), and email address;

(3) the nominee’s curriculum vitae or resume, not to exceed five pages; and

(4) a summary of the nominee’s experience and qualification relative to the professional qualifications criteria outlined by the VA (diversity in professional and personal qualifications; experience in military service and military deployments; current work with Veterans; committee subject matter expertise; and experience working in large and complex organizations).

The nominee must also appear to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.

The individual selected for appointment to the Committee shall be invited to serve a two-year term. All members will receive travel expenses and a per diem allowance in accordance with the Federal Travel Regulations for any travel made in connection with their duties as members of the Committee. For more information, contact Ms. Stephanie Birdwell and/or Mr. Peter Vicaire, Office of Tribal Government Relations, 810 Vermont Ave., NW, Ste 915H (075), Washington, DC 20420. A copy of the Committee charter can be obtained by contacting Peter.Vicaire@va.gov (612-558-7744) or by accessing the Web site managed by OTGR at: https://www.va.gov/TRIBALGOVERNMENT/index.asp.

Background

The Committee was established in accordance with section 7002 of Public Law 116- 315 (H.R.7105 – Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020). In accordance with Public Law 116-315, the Committee provides advice and guidance to the Secretary of Veterans Affairs on all matters relating to Indian Tribes, tribal organizations, Native Hawaiian organizations, and Native American Veterans. The Committee serves in an advisory capacity and makes recommendations to the Secretary on ways the Department can improve the programs and services of the Department to better serve Native American Veterans.

In carrying out its duties, the Committee’s responsibilities include, but are not limited to:

(1) Identifying for the Department’s evolving issues of relevance to Indian Tribes, tribal organizations and Native American Veterans relating to programs and services of the Department;

(2) Proposing clarifications, recommendations and solutions to address issues raised at tribal, regional and national levels, especially regarding any tribal consultation reports;

(3) Providing a forum for Indian Tribes, tribal organizations, urban Indian organizations, Native Hawaiian organizations and the Department to discuss issues and proposals for changes to Department regulations, policies and procedures;

(4) Identifying priorities and provide advice on appropriate strategies for tribal consultation and urban Indian organizations conferring on issues at the tribal, regional, or national levels;

(5) Ensuring that pertinent issues are brought to the attention of Indian tribes, tribal organizations, urban Indian organizations and Native Hawaiian organizations in a timely manner, so that feedback can be obtained;

(6) Encouraging the Secretary to work with other Federal agencies and Congress so that Native American Veterans are not denied the full benefit of their status as both Native Americans and Veterans;

(7) Highlighting contributions of Native American Veterans in the Armed Forces;

(8) Making recommendations on the consultation policy of the Department on tribal matters;

(9) Supporting a process to develop an urban Indian organization confer policy to ensure the Secretary confers, to the maximum extent practicable, with urban Indian organizations; and

(10) With the Secretary’s written approval, conducting other duties as recommended by the Committee.

AI/AN Veterans

There is an urgent need to ensure that all AI/AN Veterans have access to the benefits they earned through their service.  According to a 2020 VA Report, AI/AN Veterans served in the Pre-9/11 period at a higher percentage than other Veteran populations.  Despite a distinguished record of service, VA’s statistics also show that AI/AN Veterans were more likely to be unemployed, were more likely to lack health insurance, and were more likely to have a service-connected disability when compared to Veterans of other races.  In addition, in Fiscal Year 2017, AI/AN Veterans used Veterans Benefits Administration benefits or services at a lower percentage than veterans of other races.

NCUIH and the VA

The National Council of Urban Indian Health (NCUIH) has continued to advocate on behalf of AI/AN veterans living in urban areas and to strengthen its partnership with VA. In October 2021, Sonya Tetnowski (Makah), Army veteran, NCUIH President, and CEO of the Indian Health Center for Santa Clara Valley, was appointed to the VA’s first-ever Advisory Committee on Tribal and Indian Affairs to represent the voice of urban Indians. She currently serves as a member of the Committee and the Chair of the Veterans Health Administration Subcommittee and has highlighted the importance of looking at the whole person and making sure that their needs are being met. She has also brought forth potential subcommittees, including unhoused urban Veterans, Native Healer utilization, and Behavioral Health and Substance Use.

Thanks to NCUIH’s work with VA, UIOs are now eligible to enter the VA Indian Health Service/Tribal Health Program (THP)/UIO Reimbursement Agreements Program, which provides VA reimbursement to IHS, THP, and UIO health facilities for services provided to eligible AI/AN Veterans. NCUIH is also working to address homelessness among urban Native veterans and works closely with the VA, Department of Health and Human Services (HHS), Housing and Urban Development (HUD), and the White House Committee on Native American Affairs on the implementation of the interagency Native American Veteran Homelessness Initiative.  These efforts have emphasized the critical importance of working with UIOs to reach and serve the significant portion of Native veterans living in urban areas.

Senators Reiterate Trust Responsibility and Highlight Necessity of Mandatory Funding in IHS FY 2024 Appropriations Hearing

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On May 10, 2023, the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies held a hearing, chaired by Senator Merkley, to review the President’s Budget for Fiscal Year (FY) 2024 for the Indian Health Service (IHS). Testimony was provided by Roselyn Tso, IHS Director and Bryan Newland, Assistance Secretary for Indian Affairs within the Department of the Interior. Topics addressed include the proposal to shift from discretionary to mandatory spending, which Director Tso highlighted as the most appropriate long-term solution to the historical underfunding of IHS. The National Council of Urban Indian Health continues to advocate for full funding for IHS and Urban Indian Health and maintain advance appropriations until mandatory funding is enacted in FY 24.

Updates from IHS and Director Tso

Director Roselyn Tso was questioned directly by Senators on various initiatives and programs. The biggest issue raised by Senator Merkley was the proposal to shift contract support costs and 105(l) leases to mandatory funding. Senator Murkowski expanded on this and inquired about any statutory language or legal definition of what these costs are, which would be helpful for Congress when working to reclassify them. Director Tso discussed the importance of contract support costs and 105(l) leases as tools for tribal self-governance.

Senator Murkowski reiterated her support for advanced appropriations but wanted an update as to any authorizing language regarding this legislative proposal to shift to mandatory funding. Jillian Curtis (Director of the Office of Finance and Accounting at IHS) informed that they will work with the Office of Management and Budget (OMB) on a tribal consultation which took place in June, with the goal that it will inform a better legislative package.

Other updates include:

  • Senator Merkley raised the issues of vacancy rates and employee retention, specifically the nurse preceptorship program, which was highlighted as an important goal of IHS. Their request is 1 million dollars to provide training development and support to replenish the workforce they have lost with older generations, as well as integrate recent graduates. IHS is also requesting the elimination of the tax related to loan repayment.
  • Senator Merkley also inquired about the Community Health Aide Program (CHAP) Expansion to the lower 48 states and how this proposed expansion would be implemented. IHS is moving forward with Portland Area expansion and have plans for the Billings Area as well. They are planning to work closely with the Alaska program to uplift the program nationally.
  • Director Roselyn Tso’s Full Testimony

Senator Merkley Emphasized the Importance of a Funding Increase to Eliminate the Health Care Gap

Through his remarks, Senator Merkley pointed to IHS receiving a $2.5 billion increase as a solution to the health care disparities faced within the American Indian and Alaska Native community. He also mentioned how advanced appropriations were a significant achievement for FY 23, and that they would like to build off of this. Within the IHS budget proposal for FY 24, there is a mandatory reclassification proposal for contract support costs and 105(l) leases, which he supports, because reclassifying funds as mandatory would promote and allow for tribal self-governance.

Senator Murkowski Reflected on the Importance of Upholding the Trust Responsibility as a Bipartisan Priority

Senator Murkowski opened her remarks by stating, “this subcommittee has always worked together to fund essential programs that serve our Tribes and Native communities…I think we have made upholding the federal government’s trust responsibility a bipartisan priority. It needs to continue to be so.”  She then highlighted how FY 24 increases almost every budget line, but she noted her disappointment that the budget proposal doesn’t focus on successful implementation of advanced appropriations, but instead proposes mandatory funding for IHS beginning in 2025 without any accompanying legislative text. She also listed her important IHS priorities that have remained unchanged:

  • Funding for VBCs (Village Built Clinics);
  • Facilities construction accounts;
  • Programs that support Alaska Dental Health Therapy;
  • Community Aide Health Programs;
  • Contract Support Costs; and
  • 105(l) lease payments

She emphasized that due to ongoing questions surrounding costs for these programs and initiatives, it has spurred additional court cases and created budget uncertainty. IHS currently has an unobligated balance that needs to be addressed, so the Senator urged IHS to be open and transparent during their conversations so that the best services possible are provided.

Senator Murray Remarked on the Importance of Committing to Federal Investments  

Senator Murray discussed the importance of these programs and how we cannot let partisan infighting negatively impact them. She emphasized this point by discussing the Default on America Act and its impact on IHS, by cutting funding by nearly a billion dollars and taking care away from 2.5 million people. The work being done in the Subcommittee is an opportunity to demonstrate a commitment to tribal communities, so any support needs to be reflected through funding. She reiterated this by stating, “it is important we are holding this hearing today to make sure our nation meets its obligations to our Tribes—honoring their sovereignty and providing the federal investments that we have promised.”