NCUIH Submits Comment on Consistent Application of the Indian Child Welfare Act

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On September 7, the National Council of Urban Indian Health(NCUIH) submitted written comments to the Bureau of Indian Affairs (BIA) and the Administration for Children and Families (ACF) on the BIA and ACF’s efforts to promote the consistent application of the Indian Child Welfare Act (ICWA) and protect children, families, and Tribes.

In the submitted comments, NCUIH made the following specific comments, requests, and recommendations to ACF and BIA in response to the July 8, 2022 correspondence:

  • Ensure that urban child welfare and judicial systems are aware of and able to implement ICWA appropriately
    • According to the National Indian Child Welfare Association (NICWA), American Indian/Alaska Native(AI/AN) children continue to be overrepresented in the state foster care system at a rate 7 times higher than their non-Native peers. Because more than 70% of AI/AN people live in urban settings, this overrepresentation undoubtedly includes AI/AN children living in urban areas.
    • To properly implement ICWA, state courts must determine whether a child is an “Indian Child” for the purposes of ICWA as a threshold determination in the proceedings. There are states with experience in the application of ICWA and making applicability determinations. However, some state courts and child protective agencies may not be aware of this requirement or may make incorrect assumptions about a child’s “Indian child” status based on physical appearance or distance from their Tribe. This process needs to be standardized across all states to ensure the safety of these children
    • An AI/AN child’s physical location should not affect whether they receive ICWA’s protections. Specifically, NCUIH requests that ACF and BIA provide technical assistance on ICWA to state social service and child welfare agencies and courts located in urban areas.
  • Actively inform urban child welfare and judicial systems about urban Indian organizations (UIOs) as a potential resource for ICWA proceedings
    • NCUIH recommended that, as part of their efforts to strengthen and implement ICWA, ACF and BIA actively inform state child welfare and judicial systems located in urban areas about UIOs as a potential ICWA resource.
    • While UIOs are healthcare organizations, they often provide culturally competent services that state child welfare services and courts can refer parents to in accordance with ICWA’s “active efforts” requirements. For example, various UIOs provide the following services: family support services, parenting classes and groups, gender-based violence programs, and breastfeeding support.
    • Because UIOs are AI/AN organizations, they may be able to provide useful contacts or other information when a state child welfare agency throughout the child welfare process, including during the initial “Indian child” determination phase.
    • The UIO connection may be particularly useful in areas, such as Chicago, where there is an active UIO but no federally recognized Tribes nearby, and urban systems may not know where to start with the ICWA process.

Background

Congress enacted ICWA in 1978 to re-establish tribal authority over the adoption of Native American children (25 U.S.C. § 1903.) The goal of the Act was to strengthen and preserve Native American family structure and culture. Studies conducted in advance of ICWA’s drafting showed that between 25% and 35% of all Native children were being removed from their home by state child welfare and private adoption agencies. Of those, 85% were placed with non-Native families, even when fit and willing relatives were available. ICWA was established as a safeguard that requires:

  1. Recognition of Tribal jurisdiction over decisions for their Indian children;
  2. Establishment of minimum Federal standards for the removal of Indian children from their families;
  3. Establishment of preferences for placement of Indian children with extended family or other Tribal families; and
  4. Institution of protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.

According to NICWA, ICWA “[l]essens the trauma of removal by promoting placement with family and community . . . [p]romotes the best interest of Indian children by keeping them connected to their culture, extended family, and community, which are proven protective factors . . . [and] [p]romotes placement stability by ensuring that voluntary adoptions are truly voluntary.”

Next Steps

NCUIH will continue to advocate for  the appropriate application of ICWA to all welfare proceedings involving AI/AN children, regardless of whether the child is located in an urban or rural community.

 

 

USDA Publishes 2022 Tribal Resource Guide

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On August 16, 2022, the United States Department of Agriculture (USDA) released the 2022 edition of the USDA Resource Guide for American Indians and Alaska Natives (Resource Guide). The Resource Guide provides information regarding USDA resources and services available to tribal governments, citizens, and organizations. The Resource Guide covers four categories of USDA programs: 1) agriculture, food sovereignty, and traditional foods; 2) Indian Country economic development; 3) conservation and forestry; and 4) research, extension, and outreach. Additionally, the USDA released the Native Youth Resource Guide (Youth Guide). The Youth Guide summarizes USDA scholarship opportunities, internship programs, cultural summer camps for Native youth, afterschool activities, and resources for employment in the federal government.

Background

The USDA is a federal executive department responsible for food, agriculture, natural resources, rural development, nutrition, and related issues within the United States. The USDA plays an important role in the development of tribal nations and self-governance.  Funding from the USDA helps grow new tribal agricultural ventures, promote traditional food ways, and benefit Indigenous health through foods tailored to American Indian/Alaska Native dietary needs. As a federal agency, the USDA helps advance the federal trust responsibility to Native American communities.

The newly published Resource Guides seek to provide transparency to tribal nations. “These guides can introduce our tribal nation partners to the many USDA funding opportunities and resources that can benefit them and their communities,” remarked Secretary of Agriculture, Tom Vilsack. NCUIH recommends tribal nations use the Resource Guides to help facilitate growth within Indian Country.

Senate Confirms Roselyn Tso as Director of the Indian Health Service

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Tso’s confirmation comes after almost two years without a permanent IHS Director.

Today, September 21, 2022, Roselyn Tso (Navajo) was confirmed as the Director of the Indian Health Service (IHS) by voice vote in the Senate. Her confirmation comes after 21 months without a permanent IHS Director. Elizabeth Fowler (Comanche) has been serving as the Acting Director of IHS since the resignation of the previous Director, Rear Admiral Michael Weahkee (Zuni), in January 2021. The National Council of Urban Indian Health (NCUIH) welcomes Ms. Tso’s confirmation and continues to urge for the elevation of the role to Assistant Secretary within the Department of Health and Human Services (HHS) to bring better representation for the health needs of American Indians/Alaska Natives (AI/ANs).

“We are thrilled to have a confirmed leader for the Indian Health Service, and we graciously thank Liz Fowler for her tireless service during a pandemic that has been devastating our people. We look forward to working with Roselyn Tso to carry out the mission of IHS in fulfilling the trust responsibility to provide health care equity for all American Indians and Alaska Natives. We continue to work with Congress and this Administration to elevate this position within HHS where it belongs to lift Native voices and improve health outcomes,” – Francys Crevier (Algonquin), CEO, NCUIH.

Background

Roselyn Tso

Ms. Tso is a citizen of the Navajo Nation. She began working for IHS in 1984 and most recently served as the Director of the Navajo Area and Director of the Office of Direct Services and Contracting Tribes until her confirmation. Prior to her work in IHS, much of her professional career was spent in Portland, where she served in several capacities, including working with the three urban programs in the Portland Area that provide services ranging from community health to comprehensive primary health care services. Ms. Tso holds a Bachelor of Arts in interdisciplinary studies and a master’s degree in organizational management from Marylhurst University in Portland, Oregon. As the IHS Director, Ms. Tso is responsible for administering a nationwide health care delivery program that is responsible for providing comprehensive health care services to AI/ANs through IHS, Tribes, Tribal organizations, and urban Indian organizations (UIOs).

On March 9, 2022, President Biden announced the nomination of Ms. Tso as Director of IHS. On July 13, 2022, the Senate Committee on Indian Affairs (SCIA) voted to advance her nomination in a business meeting after she appeared before the Committee for her nomination hearing on May 25, 2022.

SCIA Hearing: Confirmation Needed to Address Health Disparities & Tribal Needs

The absence of a confirmed IHS Director has prevented Tribes, Tribal organizations, and UIOs from addressing the health care needs of their Native American populations, which directly falls under the responsibility of IHS. Since the resignation of Rear Admiral Weahkee, there have been countless requests from Indian Country calling on Congress and the Administration to nominate a new IHS director to address the growing health disparities experienced by AI/ANs. NCUIH has previously stressed the importance of appointing a permanent IHS Director and called for the elevation of the role to Assistant Secretary.

During the SCIA hearing to consider her nomination as Director of IHS, Ms. Tso highlighted how Native communities have been disproportionately impacted by COVID-19, which has been made worse given the absence of a confirmed Director. She stated, “I am reminded of the many health disparities facing American Indians and Alaskan Natives – health disparities that in many cases were made worse by COVID-19. For example, sadly, today, too many Navajo families still do not have access to running water in their homes. Access to clean, safe drinking water is essential to the health and well-being of our people.”

In addition, Ms. Tso stated during the hearing that she intends to utilize IHS resources to not only address the disparities caused by COVID-19, but to also “improve the physical, mental, social, and spiritual health and well-being of all American Indians and Alaskan Natives served by the Agency.” To achieve this goal, Ms. Tso said she would prioritize strengthening and streamlining business operations to create a more unified health care system, develop centralized systems to improve patient outcomes, accountability, and transparency, and finally address the needs and challenges experienced by the workforce. To conclude her testimony, Ms. Tso said that if confirmed as the Director of IHS, she would update agency policies and programs, as well as utilize the oversight authority of IHS to best serve each Tribal community.

Today’s full Senate consideration for the nomination of Ms. Tso as Director of IHS is the last step in her confirmation process.

Department of Veterans Affairs Seeking Nominations for IHS Billings Area Committee Member for the Advisory Committee on Tribal and Indian Affairs

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On September 16, 2022, the Department of Veterans Affairs (VA) issued a notice 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 Indian Health Service, Billings Area. The Committee is composed of 15 members with at least one member of the Committee representing urban Indian organizations (UIOs) nominated by a national urban Indian organization.  Appointed members of the Committee are invited to serve a two-year term. Nominations for membership on the Committee must be received no later than 5:00 p.m. EST on October 7, 2022, and should be mailed to the Office of Tribal Government Relations, 810 Vermont Ave. NW, Suite 915H (075), Washington, DC 20420 or emailed to tribalgovernmentconsultation@va.gov.

NCUIH and the VA

The National Council of Urban Indian Health (NCUIH) has continued to strengthen its partnership with the VA and has ensured UIO input is included in VA efforts. In October 2021, Sonya Tetnowski, President of NCUIH and CEO of the Indian Health Center of Satna Clara Valley, Army Veteran, and member of the Makah Tribe was appointed to the VA’s first-ever Advisory Committee on Indian Affairs. On January 25, 2022, during the first meeting of the Committee,  Ms. Tetnowski highlighted that American Indian/Alaksa Native (AI/AN) Veterans face significant barriers in accessing health care and other benefits. In an effort to ensure the Committee can represent the needs of all AI/AN Veterans, NCUIH recommends that UIOs consider working with Tribes and Tribal Organizations to nominate a Committee member.

Committee Objectives and Scope

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.  According to the Office of Tribal Government Relations Director, Stephanie Birdwell, the Committee “…gives tribal leaders as well as American Indian, Native Hawaiians and Alaska Native Veterans a place at the table with the highest levels of leadership within the VA…” and “[i]t offers an unprecedented voice in how programs, policies, and services may be delivered and provided.”

Committee responsibilities include, but are not limited to:

  • Identifying evolving issues of relevance to Indian tribes, tribal organizations and Native American Veterans relating to programs and services of the Department;
  • Proposing clarifications, recommendations and solutions to address issues raised at tribal, regional and national levels, especially regarding any tribal consultation reports;
  • Providing a forum for Indian tribes, tribal organizations, UIOs, Native Hawaiian organizations and the Department to discuss issues and proposals for changes to Department regulations, policies and procedures;
  • Identifying priorities and providing advice on appropriate strategies for tribal consultation and UIOs conferring on issues at the tribal, regional, or national levels;
  • Ensuring that pertinent issues are brought to the attention of Indian tribes, tribal organizations, UIOs and Native Hawaiian organizations in a timely manner, so that feedback can be obtained;
  • 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;
  • Highlighting contributions of Native American Veterans in the Armed Forces;
  • Making recommendations on the consultation policy of the Department on tribal matters;
  • Supporting a process to develop an UIO confer policy to ensure the Secretary confers, to the maximum extent practicable, with urban Indian organizations; and
  • With the Secretary’s written approval, conducting other duties as recommended by the Committee.

NCUIH Comments on the IHS Urban Indian Infrastructure Study

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On August 23, 2022, the National Council of Urban Indian Health (NCUIH) submitted comments regarding additional funding for the Urban Indian Infrastructure Study (Infrastructure Study) provided by the Consolidated Appropriations Act, 2022. The additional fiscal year (FY22) funding for the Infrastructure Study is approximately $800,696. NCUIH supports the appropriation of the additional funding and it recommended that IHS disseminate the findings of the FY21 Infrastructure Study, already in progress, to UIOs prior to making any decisions regarding the use of the additional funding. NCUIH also requested that the Office of Urban Indian Health Programs (OUIHP) create a timeline of when the Infrastructure Study will be released to UIOs, the contracting process necessary to use additional funding, and the deadline for obligation of the additional funding. Lastly, NCUIH requested that IHS host an additional Urban Confer after the release of updates about the scope and results of the FY21 Infrastructure Study.

Background

In 2021, Congress allocated $1 million in funds for IHS to conduct an Urban Indian Infrastructure study through the Consolidated Appropriations Act, 2021. The purpose of the Infrastructure Study is to further understand the most critical deficiencies facing UIOs. IHS contracted with The Innova Group, a healthcare consultancy entity, to conduct the Infrastructure Study.

On March 15, 2022, Congress provided $800,969 in additional funding to IHS for the Infrastructure Study through the Consolidated Appropriations Act, 2022. As of September 2022, the results from the Infrastructure Study have not been released by IHS and The Innova Group. On June 16, 2022, IHS requested input regarding the additional funding from 2022 and how these funds can be utilized by IHS. On June 23, 2022, UIO Leaders and NCUIH attended an Urban Confer where IHS explained that the Infrastructure Study will be completed by December 31, 2022, with results to be released in January 2023.

NCUIH’s Recommendations to IHS

NCUIH made the following recommendations regarding the Infrastructure Study:

  • Provide UIOs with the findings from the first Infrastructure Study prior to making any decisions regarding use of the additional funds
    • It is crucial that UIOs are aware of the scope, results, and usefulness of the Infrastructure Study before they make any recommendations regarding the use of the further funding.
    • Given the timeline presented during the Urban Confer, there should be an 8-month window in which UIOs and IHS will be able to review the Infrastructure Study results following their release in January 2023 and decide as to the best use of the additional funding
  • OUIHP should provide a timeline of the Planning Process to UIOs
    • NCUIH requested a timeline be released to UIOs delineating when the initial Infrastructure Study will be released, the contracting process necessary to use the additional funding, and the deadline for the obligation of the additional funding.
    • The requested timeline will provide clarity to UIOs. With a clearer picture in mind, the planning process and use of the additional FY22 funds for the Infrastructure Study becomes more cooperative between UIOs and IHS.
  • IHS should host an additional Urban Confer after releasing the results of the Infrastructure Study.
    • NCUIH notes that informed feedback from UIOs creates a scenario where the additional funding can be best used to support the needs of UIOs.

NCUIH continues to advocate for transparency in the process of the Infrastructure Study and greater support to address the critical infrastructure needs at UIOs. NCUIH will continue to keep UIOs informed as more information is made available from IHS.

 

 

NCUIH Board Approves Resolution on Advance Appropriations

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On August 22, 2022, the National Council of Urban Indian Health (NCUIH) Board of Directors approved a resolution in support of advance appropriations for the Indian Health Service (IHS). Attaining advance appropriations has been a long-standing priority for NCUIH and Indian Country to ensure stable and predictable funding for IHS and American Indian/Alaska Native (AI/AN) healthcare.

Full Text of Resolution:

WHEREAS the National Council of Urban Indian Health (NCUIH) is the national representative of forty-one (41) urban Indian organizations (UIOs) receiving grants under Title V of the Indian Health Care Improvement Act (IHCIA) and the American Indians and Alaska Natives (AI/ANs) they serve;

WHEREAS NCUIH was established in 1998 to support the development of quality, accessible, and culturally sensitive health care programs for AI/ANs living in urban communities;

WHEREAS the United States has a unique and special relationship with AI/ANs as established through the U.S. Constitution, Treaties with Indian Tribes, U.S. Supreme Court decisions and Federal legislation;

WHEREAS this special relationship includes a trust responsibility to AI/AN citizens as established through Treaties with Indian Tribes, U.S. Supreme Court decisions, and Federal legislation;

WHEREAS the trust relationship requires the United States to provide federal health services to maintain and improve the health of AI/ANs, no matter where they live;

WHEREAS it is the declared policy of the United States, as provided in the ICHIA, “to ensure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy;”

WHEREAS the Indian Health Service (IHS) is chronically underfunded by the federal government, and UIOs historically receive only one percent of appropriated funds for IHS;

WHEREAS the Indian health system, including IHS, Tribal, and UIO (I/T/U) facilities, is the only major federal provider of health care that is funded through annual appropriations;

WHEREAS according to the Congressional Research Service, since FY1997, IHS has only once, in FY2006, received full-year appropriations by the start of the fiscal year;

WHEREAS if IHS were to receive advance appropriations, it would not be subject to government shutdowns, automatic sequestration cuts, and continuing resolutions (CRs) as its funding for the next year would already be in place;

WHEREAS during the thirty-five (35) day government shutdown at the start of FY 2019, the Indian healthcare system was the only federal healthcare entity that was required to continue operations without appropriated funds;

WHEREAS during the FY 2019 shutdown, several UIOs did not have adequate funding to maintain normal operations, and were required to reduce services, lose staff, or close their doors entirely, putting the health and wellbeing of their patients at risk;

WHEREAS in a UIO shutdown survey, five (5) out of thirteen (13) UIOs indicated that they could only maintain normal operations for 30 days without federal funding;

WHEREAS advanced appropriations would uphold the trust responsibility by protecting the Indian healthcare system from future government shutdowns and not counting against spending caps; and

WHEREAS advanced appropriations are imperative to provide certainty to the Indian health system and ensure unrelated budget disagreements do not put AI/AN lives at stake.

NOW THEREFORE BE IT RESOLVED, that NCUIH requests that Congress amend the Indian Health Care Improvement Act to authorize Advanced Appropriation for IHS, including Tribal facilities and UIOs; and

BE IT FURTHER RESOLVED, that this resolution shall be the policy of NCUIH until it is withdrawn or modified by subsequent resolution.

CERTIFICATION

The foregoing resolution was adopted by NCUIH on August 22nd, 2022 with a quorum present.

 

Background on Advance Appropriations for IHS

Advance appropriations are appropriations that become available one year or more after the year for which the appropriations act is passed. The Indian healthcare system, which includes IHS facilities, Tribal facilities, and urban Indian organizations (UIOs), is the only major federal healthcare provider funded through annual appropriations. Funding through annual appropriations leads to funding uncertainty because the availability and amount of the appropriation is subject to the annual budget negotiation process. If IHS were to receive advance appropriations, it would not be subject to government shutdowns, automatic sequestration cuts, and continuing resolutions (CRs) as its funding for the next year would already be in place.

Lapses in federal funding risk American Indian and Alaska Native lives. Every year, on average, Congress passes five continuing resolutions to keep the government open while Congress reaches a budget agreement, and there were long government shutdowns in 1996, 2013, and 2019. During the Fiscal Year (FY) 2019 shutdown, several UIOs did not have adequate funding to maintain normal operations and were required to reduce services, lose staff, or close their doors entirely, putting the health and well-being of their patients at risk. In a UIO shutdown survey, five out of thirteen UIOs indicated that they could only maintain normal operations for 30 days without federal funding. One UIO suffered seven opioid overdoses, five of which were fatal. Presently, it is unlikely that Congress will reach a budget agreement before the September 30 deadline. If Congress does not reach a budget agreement, Congress will need to pass a continuing resolution to avoid a government shutdown.

NCUIH Resources on Advance Appropriations for IHS:

NCUIH and Indian Country Advocacy

NCUIH, along with three other national Native organizations the National Indian Health Board (NIHB), National Congress of American Indians (NCAI), United South and Easter Tribes (USET), have been advocating on behalf of advance appropriations for almost a decade. NIHB, NCAI, and USET have all passed resolutions in support of advance appropriations. However, these resolutions don’t explicitly mention UIOs or urban Indians. NCUIH’s resolution provides context for why advance appropriations are essential for UIOs and urban Indian populations and explicitly includes UIOs in the request for advance appropriations.

On January 17, 2019, NCUIH sent a letter to the Vice Chairman of the Senate Committee on Indian Affairs (SCIA), Tom Udall, in support of IHS advance appropriations legislation. On March 9, 2022, NCUIH joined NIHB and over seventy Tribal nations and national Indian organizations in sending a series of joint letters to Congress requesting advance appropriations for IHS in the FY 2022 omnibus. On June 16, 2022, NIHB and NCAI published a legislative action alert requesting that SCIA support and include IHS advance appropriations in the current FY 2023 appropriations bill. Most recently, NCUIH sent letters to Speaker Pelosi, House Minority Leader McCarthy , Senate Majority Leader Schumer, Senate Minority Leader McConnell, Senate Interior Appropriations Committee,  and SCIA to support advance appropriations for IHS.

Federal and Congressional Support

There has also been strong long-standing support from Congress on this issue. On January 12, 2022, the Native American Caucus sent a letter to House Appropriations Committee Chair DeLauro and Ranking Member Granger requesting that advance appropriations for IHS for FY 2023 be included in the final FY 2022 appropriations bill. On June 3 the Native American Caucus sent another letter encouraging the Committee to work towards shifting IHS from discretionary to mandatory funding and requesting that, while this shift is underway, the Committee include advanced appropriations for IHS  in the final FY 2023 Appropriations bill.

On April 25, 2022, a bipartisan group of 28 Representatives requested up to $949.9 million for urban Indian health in FY 2023 and advance appropriations for IHS until such time that authorizers move IHS to mandatory spending, and 12 Senators sent a letter with the same requests. Last year, for the first time ever, the Senate Appropriations Committee included an additional $6.58 billion in advance appropriations to IHS for FY 2023 in its FY 2022 Interior, Environment, and Related Agencies bill.

Back in 2014, SCIA held its first hearing on advance appropriation bill Indian Health Service Advance Appropriations Act of 2013 (S. 1570). In a 2019 House Natural Resources Subcommittee for Indigenous Peoples (SCIP) hearing on advance appropriations bills H.R. 1128 and H.R. 1135, former IHS Principal Deputy Director, Rear Admiral Michael Weahkee, reaffirmed Indian Country’s repeated request for advance appropriations stating that  “[t]hrough the IHS’s robust annual Tribal Budget Consultation process, Tribal and Urban Indian Organization leaders have repeatedly and strongly recommended advance appropriations for the IHS as an essential means for ensuring continued access to critical health care services. The Department continues to hear directly from tribes advocating support for legislative language that would provide the authority of advance appropriations for the IHS. The issues that Tribes have identified present real challenges in Indian Country and we are eager to work with Congress on a variety of solutions.” More recently on July 28, 2022  IHS Acting Deputy Director Elizabeth Fowler reaffirmed IHS’s support for advance appropriations during a SCIP hearing on the Indian Health Service Advance Appropriations Act (H.R. 5549) stating that  “[IHS] remain[s] firmly committed to improving quality, safety, and access to health care for American Indians and Alaskan Natives. Mandatory funding and advanced appropriations are necessary and critical steps toward that goal… [I] urge the House to act on advanced appropriations through the appropriations process with or without the authorizing legislation that is the subject of this hearing.”
The U.S. Commission on Civil Rights report from 2018, “Broken Promises: Continuing Federal Funding Shortfall for Native Americans” serves as another benchmark of support by including advance appropriations for IHS as a key recommendation to the federal government to ensure greater funding stability for IHS.

History of Advance Appropriations Bills

Legislation on this effort has been introduced in 11 bills since 2013:​

  •  10/2013 – Indian Health Service Advance Appropriations Act of 2013 (R. 3229/S. 1570) ​
  • Sponsor: Rep. Don Young/Sen. Lisa Murkowski ​
  •  1/2015 – Indian Health Service Advance Appropriations Act of 2015 (R. 395)    ​
  • Sponsor: Rep. Don Young ​
  • 1/2017 – Indian Health Service Advance Appropriations Act of 2017 (R. 235) ​
  •  Sponsor: Rep. Don Young ​
  •  2/2019 – Indian Programs Advance Appropriations Act (R. 1128/S. 229) ​
  • Sponsor: Rep. Betty McCollum/Sen. Tom Udall ​
  • 2/2019 – Indian Health Service Advance Appropriations Act of 2019 (R. 1135/S. 2541) ​
  • Sponsor: Rep. Don Young/Sen. Lisa Murkowski​
  •  10/2021 – Indian Health Service Advance Appropriations Act (R. 5549) ​
  •  Sponsor: Rep. Don Young ​
  • 10/2021 – Indian Programs Advance Appropriations Act of 2021 (R. 5567/S. 2985) ​
  • Sponsor: Rep. Betty McCollum/Sen. Ben Ray Lujan​
    • 7/28/2022- Subcommittee for Indigenous Peoples (SCIP) held a hearing on the Indian Health Service Advance Appropriations Act (R.5549)​
  • Sponsor: Rep. Don Young
Next Steps

NCUIH will continue to advocate for Advance Appropriations for the 2022-23 Fiscal Year.

New Omicron Targeting Vaccine Formula Approved as Booster Dose for Individuals 12 years and Older

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On August 31, 2022, the US Food and Drug Administration (FDA) amended the previously issued emergency use authorizations (EUAs) for both the Moderna and the Pfizer-BioNTech (Pfizer) COVID-19 vaccines to authorize the use of bivalent formulations for boosters. The Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices (ACIP) voted to recommend both the Moderna and Pfizer bivalent formulation boosters on September 1, 2022. This new formulation, which can be administered at least two months following the completion of a primary series or a previous booster dose, targets both the original virus and the current Omicron variants.  During a monthly call with Tribal and urban Indian organization (UIO) leaders, the Indian Health Service (IHS) stated that it started shipping the bivalent formulation the week of Labor Day and that these boosters will replace all booster formulations once rolled out. Currently, Omicron variants make up more than 99% of COVID-19 cases within the US.

As it stands, the monovalent (original) COVID vaccine is no longer the recommended booster for people ages 12 and up. In order for an individual to be considered ‘up to date’ on their COVID vaccination, they must have received the bivalent booster, regardless of previous booster status. Individuals who have previously caught COVID-19 can be vaccinated up to three months after the infection.

Background

American Indians and Alaska Natives (AI/ANs) have been disproportionately affected by the COVID-19 pandemic. At the height of the pandemic, AI/ANs were 3.5 times more likely to test positive, 3.2 times more likely to be hospitalized, and 2.2 times more likely to die to due COIVD-19.

Indian Country has had highly successful vaccine rollouts and UIOs have been instrumental in the success of vaccinating AI/AN populations in urban Areas. As of August 2022, AI/ANs have the highest vaccination administration rates in the US with 74.5% of AI/ANs having received at least one dose of one of the three previously available COVID-19 vaccines, per CDC data.

NCUIH Signs on to Amicus Brief in Support of the Indian Child Welfare Act

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On August 19, 2022, the National Council of Urban Indian Health (NCUIH) and five urban Indian organizations (UIOs) (Nebraska Urban Indian Health Coalition, Inc., Sacramento Native American Health Center, Fresno American Indian Health Project, All Nations Health Center, and Oklahoma City Indian Clinic) signed on to the National Indigenous Women’s Resource Center’s (NIWRC) amicus brief to the Supreme Court in support of the constitutionality of the Indian Child Welfare Act (ICWA) in the Brackeen v. Haaland case. NCUIH worked directly with NIWRC to engage with UIOs to ensure that the submitted brief was inclusive of urban American Indians/Alaska Natives (AI/ANs).

The Amicus Brief Argues:

  • ICWA constitutes a critical safeguard that protects Indian women and children from abuse.
    • Indian children are especially susceptible to abuse and trafficking when placed in state-run adoptive and foster homes.
  • Declaring Indian to be a racial classification subject to strict scrutiny would impede Congress’ Trust duty and responsibility to address violence against Native women and children.
    • The Supreme Court used a political, not a racial, classification to eliminate tribal criminal jurisdiction over non-Indians in its 1981 decision in Oliphant v. Suquamish Indian Tribe (Oliphant).
    • Following Oliphant, Indian women and children face high rates of non-Indian violence in the United States.
    • The Violence Against Women Act (VAWA) 2013 utilized the same political classification as ICWA and
    • VAWA 2022 utilized the same political classifications as ICWA and Oliphant.
  • The transformation of Indian into a racial classification would significantly impede Congress’s ability to effectuate its Trust duty and responsibility to protect and safeguard the lives of Native Women and Children

Background and Advocacy

Legal Proceedings and Opposition to ICWA

In Brackeen, Texas, Indiana, Louisiana, and individual plaintiffs sued the federal government, arguing that ICWA and its implanting regulations are unconstitutional because they violate the equal protection and substantive due processes provisions of the Fifth Amendment and violate the anticommandeering doctrine of the Tenth Amendment.  The plaintiffs also argued that ICWA and the implementing regulations violate the nondelegation doctrine and the APA.

The initial 2018 ruling by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas, held that ICWA (including its implementing regulations) is unconstitutional, and the regulations violate the APA.  Specifically, Judge O’Connor held that ICWA violates the Constitution’s guarantee of equal protection because it applies to all children eligible for membership in a Tribe, not just enrolled tribal members, and therefore operates as a race-based statute.  Judge O’Connor further held that ICWA violates the Tenth Amendment’s prohibition on the federal government issuing direct orders to states and unconstitutionally delegates Congress’s power by giving tribes the authority to change adoption placement preferences and make states abide by them.

The Fifth Circuit Court of Appeals overturned the District Court’s decision in most respects. The Court found that Congress had the authority to enact the law. The majority opinion also held that ICWA’s application to all children eligible for tribal citizenship is not a race-based classification and therefore ICWA does not violate equal protection. This reaffirms that the status of “Indian child” is not an unconstitutional racial classification. However, the court was equally divided as to whether references to “other Indian families” and “Indian foster home” are an unconstitutional racial classification. Because the Court was equally divided on this holding the District Court’s ruling was upheld, but it was without precedential authority.  Further, the Court affirmed the District Court’s conclusion that several of the “active efforts” required under ICWA violated the Tenth Amendment, which prohibits the federal government from imposing duties on state officials. The Court was again equally divided on whether ICWA’s placement preferences violate the Tenth Amendment.  This narrow but lengthy decision, which was over 300 pages and decided by a divided 16-judge court, creates a confusing precedent for those trying to navigate the law and makes the case ripe for review by the Supreme Court.   The Fifth Circuit also addressed APA challenges to the Bureau of Indian Affairs rules implementing ICWA.

On February 28, 2022 the U.S. Supreme Court agreed to review the Fifth Circuit’s decision in Brackeen v. Haaland. The challengers and their amici argue that American Indian/Alaska Native is a racial classification rather than a political classification, making ICWA constitutionally suspect under the Equal Protection Clause. The challengers and their amici further argue that ICWA violates several constitutional provisions including anti-commandeering and nondelegation.

  • On May 26, 2022, the Court received amicus briefsfrom supporters of the ICWA challengers highlighting their arguments.
  • On August 19, 2022, the next round of amicus briefs in support of ICWA and Tribal intervenors were due.
  • Oral argument is scheduled for November 9, 2023.
  • The Supreme Court will release its decision by June 30, 2023.

ICWA and its Importance to AI/ANs

It was critical that NCUIH signed onto NIWRC’s brief because of the threat posed by the overturning of ICWA. ICWA represents the gold standard in child welfare proceedings, strengthening and preserving AI/AN family structure and culture. When it was established in 1978, studies showed that between 25% and 35% of all Native children were removed from their homes by state child welfare and private adoption agencies. Of those, 85% were placed with non-Native families, even when fit and willing relatives were available. ICWA ensures that the previously forced removal of AI/AN children from their homes and their placement into white families will not be repeated.

Today, Native children continue to be overrepresented in state foster care systems at a rate 2.7 times higher than their non-Native peers. This means that while AI/AN children represent 0.9% of all children in the United States, they are 2.1% of all children who are placed in foster care. Because more than 70% of AI/AN people live in urban settings, this overrepresentation undoubtedly includes AI/AN children living in urban areas. According to the Indian Health Service (IHS), Native youth living off-reservation often face a higher risk of health problems, including mental health and substance abuse, suicide, gang activity, teen pregnancy, abuse, and neglect. Additionally, IHS found that urban Indian populations experience the same health problems as the general Indian population, but these problems are exacerbated by a lack of access to family and traditional cultural environments.  Challenges to ICWA threaten to place urban Native youth at even greater risk if they enter foster or adoption systems that do not offer protections to keep them from being further removed from their communities and culture.

NCUIH previously provided an in-depth analysis on the impact of ICWA. We will continue to monitor ongoing developments as Brackeen v. Haaland proceeds to oral argument and provide updates on how the case impacts urban Indians.

ICWA as a Vehicle to Challenge Federal Indian Law

It is also important to recognize that this case, as well as other on-going challenges to ICWA are part of a broader effort to attack the foundations of Federal Indian Law.  The recognition that the AI/AN classification is political classification rather than racial is a critical underpinning of not just ICWA, but many laws that relate to housing, healthcare, education, and employment. This political classification goes back to the 19th Century and has been upheld by Courts at multiple levels. Acknowledging the importance of tribal citizenship, AI/ANs are classified by this citizenship, not by their race. However, publications from the organizations supporting this lawsuit and others, including  the Cato Institute and the Goldwater Institute, make clear that they view Native identity as being a matter of race, not political identity and citizenship.  If overturned, the repeal of ICWA would not only upend a law in place for more than 40 years but undercut the heart of tribal sovereignty and the federal government’s trust responsibility to Native communities.  A successful attack on ICWA would have far-reaching implications on all areas of Federal Indian Law and policy.

Next Steps

  • Oral argument for Brackeen is scheduled for November 9, 2022.
  • The Supreme Court will issue a decision by June 30, 2023.
  • NCUIH will continue to closely monitor updates in this case and alert UIOs and stakeholders to what a decision could mean for urban Indian communities. NCUIH will track the upcoming Supreme Court term for updates on Brackeen.

Urban Indian Organizations Eligible to Request Monkeypox Medication and Vaccines via IHS National Supply Service Center

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On Friday, August 12, 2022, the Indian Health Service (IHS) provided updates on the limited initial allocation of Monkeypox countermeasures. These countermeasures include TPOXX oral medication for outpatient treatment of monkeypox infections and the use of the Jynneos vaccine for post-exposure prophylaxis. More details on the use and availability of the countermeasures can be found on the IHS website or on the CDC webpage on Information for Healthcare Professionals.

IHS, Tribal, and urban Indian organization (UIO) health care facilities should work with the IHS National Supply Service Center (IHS NSSC) to request distribution of any of the countermeasures to their facility. IHS NSSC began shipping the Jynneos vaccine on Monday, August 15.

The IHS National Pharmacy and Therapeutic Committee also provided an Emerging Treatments Update regarding recent changes to the administration of the Jynneos vaccine. The updated Emergency Use Authorization (EUA) allows for an intradermal administration of a smaller dose of the vaccine for those 18 years and older. The updated EUA also expands the standard dosing and administration to people under 18. For more details on this, see IHS’ Emerging Treatments Update.

Background

On August 4, 2022 Department of Health and Human Services (HHS) Secretary Becerra declared the ongoing spread of monkeypox within the United States as a Public Health Emergency (PHE).  America currently has the most confirmed cases in the world, and California currently has the most cases in the United States. The first case was confirmed in May 2022. Navajo Nation confirmed their first case on August 24.

Monkeypox is spread through close contact with either an infected person or animal, or with material contaminated with the virus. This can mean close contact with the lesions, bodily fluids or respiratory droplets from someone with the virus, or by using the same bedding as someone who has monkeypox. The virus can be spread from the onset of symptoms up until the rash has fully healed and a new layer of skin has formed. The illness can be present for anywhere from 2 to 4 weeks. It is not yet known if a person is able to spread the virus prior to showing symptoms.

Health Equity and Accountability Act (HEAA) Includes Key Provisions for Urban Indian Health

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On June 23, Senator Cory Booker (D-NJ), Senator Raphael Warnock (D-GA), and Representative Robin Kelly (D-IL-02) reintroduced the Health Equity and Accountability Act of 2022 (HEAA) (S. 4486/H.R. 7585). The bill aims to address racial and ethnic health disparities by creating a more equitable health care system through systemic changes. After much advocacy from the National Council of Urban Indian Health (NCUIH), the bill included critical provisions for urban Indian health, such as 100% Federal Medical Assistance Percentage (FMAP) for urban Indian organizations (UIOs), urban Indian inclusion in the Community Health Aide Program (CHAP), and the first-ever legislative text establishing an urban confer policy with the Department of Veteran Affairs (VA).

Bill Highlights for Urban Indian Health

100% FMAP for Services at UIOs

Congress authorized 100% FMAP for Indian Health Service (IHS) and Tribal health facilities in the Indian Health Care Improvement Act (IHCIA) in order to supplement chronic underfunding of IHS and thus better fulfill the federal government’s trust responsibility to provide safe and quality healthcare to American Indians/Alaska Natives (AI/ANs). UIOs were not included in the IHCIA amendments as an oversight, and therefore services provided at a UIO were not eligible for 100% FMAP. For decades, urban Indian leaders and NCUIH advocated how critical this provision would be in enhancing the ability of UIOs to provide services for IHS-Medicaid beneficiaries. In 2021, NCUIH was successful in securing two years of 100% FMAP in the American Rescue Plan Act (ARPA) and has continued to advocate for an indefinite extension. This bill includes the permanent authorization for UIOs to receive 100% FMAP, bringing them into parity with other providers in the Indian healthcare system.

Conferring with Urban Indian Organizations

This bill includes legislation for both a confer policy with HHS, as well as the first-ever legislative text establishing an urban confer policy with the VA. An urban confer is an established mechanism for dialogue between federal agencies and UIOs. Urban confer policies are a response to decades of deliberate federal efforts (i.e., forced assimilation, termination, relocation) that have resulted in 70% of AI/AN people living outside of Tribal jurisdictions, thus making urban confer integral to address the care needs of most AI/AN persons. Currently, only IHS has a legal obligation to confer with UIOs.

NCUIH was successful in passing urban confer for the Department of Health and Human Services (HHS) (H.R. 5221) in the House and has introduced a companion bill in the Senate (S. 4323). This type of policy would ensure the many branches and divisions within HHS and all agencies under its purview establish a formal confer process to dialogue with UIOs on policies that impact them and their AI/AN patients living in urban centers. A clear communication pathway between federal health agencies and UIOs is imperative, especially during the ongoing COVID-19 pandemic that has disproportionately impacted AI/ANs. Missed opportunities for awareness and information provided to UIOs regarding AI/AN healthcare can be easily avoided through a confer process. For example, key information regarding vaccine distribution for the initial COVID-19 vaccine rollout in December of 2020 was poorly communicated to UIOs and created unnecessary hardships. HHS addressed initial communications only to Tribes and did not direct it to the UIO component of the IHS system. When HHS was asked about whether UIOs needed to similarly decide between an IHS or state vaccine allocation, it was unclear for weeks as to whether they were expected to make such a decision. Eventually, HHS asked UIOs to decide between receiving their vaccine distribution from either their state jurisdiction or IHS on the same day as the initial deadline (which thankfully HHS subsequently extended for several days). Some UIOs were informed of the deadline by their Area office with no formal national communication. Consequently, UIOs were prevented from providing input, resulting in many clinics experiencing serious delays in vaccine distribution. For example, Native American LifeLines, the Baltimore UIO, did not receive vaccines until just 5 days before the general public was eligible. This had dire consequences, as the pandemic took the lives of AI/ANs at the highest rates of any population. Ultimately, this flawed process could have been easily avoided with an urban confer policy.

NCUIH has also been advocating for the creation of an urban confer with the VA. AI/ANs have a long history of distinguished service to this country. Per capita, AI/ANs serve at a higher rate in the Armed Forces than any other group of Americans and have served in all the nation’s wars since the Revolutionary War. In fact, AI/ANs served in several wars before they were even recognized as U.S. citizens. According to a VA report, 140,507 Veterans identify themselves as AI/AN, and a higher percentage of AI/AN Veterans served in the Pre-9/11 period (17.7%) compared to Veterans of all other races (14.0%). The report also showed significant disparities between AI/AN veterans and other Veterans including that AI/AN Veterans had lower personal incomes than Veterans of other races, the percentage of AI/AN Veterans who were unemployed was higher than the percentage of Veterans of other races who were unemployed, AI/AN Veterans were more likely to lack health insurance than Veterans of other races, and AI/AN Veterans were more likely to have a service-connected disability than Veterans of other races. As the VA continues to work more closely with UIOs to increase access to health care services for AI/AN Veterans and address these disparities, it is imperative that a formal confer process is established for the VA.

The HEAA addresses these key parity issue and provides a forum for important feedback from AI/AN stakeholders to HHS and the VA.

Inclusion of UIOs in the National Community Health Aide Program (CHAP)

The legislation includes UIOs as eligible entities for CHAP. This inclusion will increase the availability of health workers in AI/AN communities. Currently, IHS asserts that UIOs are excluded simply because they are not explicitly included in the statutory language of the nationalization of CHAP. Securing UIO inclusion in CHAP is a policy priority for NCUIH in 2022.

Commissions and Committees

HEAA adds UIOs to commissions and committees relating to various health equity provisions. Urban Indian health representatives were added as members of the Commission on Ensuring Data for Health Equity” to provide clear and robust guidance to improve the collection, analysis, and use of demographic data in responding to future public health emergencies.

Commission/Committee Description Urban Indian Inclusion
Commission on Ensuring Data for Health Equity Urban Indian health representatives were added as members of the Commission to provide clear and robust guidance to improve the collection, analysis, and use of demographic data in responding to future public health emergencies.
CREATING MODEL PROGRAMS FOR THE CARE OF INCARCERATED INDIVIDUALS IN THE PRENATAL AND POSTPARTUM PERIODS:

“The Attorney General, acting through the Director of the Bureau of Prisons (in this subsection referred to as the “Director”), shall establish, in not fewer than 6 Bureau of Prisons facilities, programs to optimize maternal health outcomes for pregnant and postpartum individuals incarcerated in such facilities.”

 The Grant allows for the establishment of partnerships with local public entities, including urban Indian organizations, to establish or expand pretrial diversion programs as an alternative to incarceration for pregnant and postpartum individuals.

 

Appropriations: $10,000,000 for each of fiscal years 2023 through 2027.
GRANTS TO PROMOTE REPRESENTATIVE COMMUNITY ENGAGEMENT IN MATERNAL MORTALITY REVIEW COMMITTEES:

The Secretary may, using funds made available to assist an applicable maternal mortality review committee of a State, Indian tribe, tribal organization, or Urban Indian organization

 Appropriations: $10,000,000 for each of fiscal years 2023 through 2027.

 

Tribal Set-Aside: Of the amount made available under the preceding sentence for a fiscal year, not less than $1,500,000 shall be reserved for grants awarded under subsection (d)(9) to Indian tribes, tribal organizations, or Urban Indian organizations.

Next Steps

HEAA has been referred to the Senate Finance Committee and the House Subcommittee on Health, where it awaits consideration.

Resources

Additional Bill Funding for Urban Indian Organizations

HEAA also includes other appropriations for UIOs discussed in greater detail below:

Grant Description Grant Amount
EXPANDING CAPACITY FOR MATERNAL HEALTH OUTCOMES:

 The Secretary shall award grants to eligible entities to evaluate, develop, and expand the use of technology-enabled collaborative learning and capacity-building models and improve maternal health outcomes.

UIOs are included as eligible entities.

 Appropriations: $6,000,000 for each of fiscal years 2023 through 2027.
GRANT PROGRAM TO PROTECT VULNERABLE MOTHERS AND BABIES FROM CLIMATE CHANGE RISKS:

The Secretary of HHS shall establish a grant program to protect vulnerable individuals from risks associated with climate change.

 Appropriations: $100,000,000 for fiscal years 2023 through 2026.
HOUSING FOR MOMS GRANT PROGRAM:

 The Secretary of Housing and Urban Development shall establish a Housing for Moms grant program under this subsection to make grants to eligible entities to increase access to safe, stable, affordable, and adequate housing for pregnant and postpartum individuals and their families.

UIOs included as eligible entities.

 Appropriations: $10,000,000 for fiscal year 2022, which shall remain available until expended.
GRANT PROGRAM FOR HEALTHY FOOD AND CLEAN WATER FOR PREGNANT AND POSTPARTUM INDIVIDUALS:

An eligible entity shall use grant funds awarded under this paragraph to deliver healthy food, infant formula, clean water, or diapers to pregnant and postpartum individuals located in areas that are food deserts, as determined by the Secretary using data from the Food Access Research Atlas of the Department of Agriculture.

 Appropriations: $5,000,000 to carry out this paragraph for fiscal years 2022 through 2024.
MATERNAL MENTAL HEALTH EQUITY GRANT PROGRAM:

SAMHSA will establish a program to award grants to eligible entities to address maternal mental health conditions and substance use disorders with respect to pregnant and postpartum individuals, with a focus on racial and ethnic minority groups.

 Appropriations: $25,000,000 for each of fiscal years 2023 through 2026.
Grants For Innovative Approaches:

HRSA in collaboration with other agencies, including IHS, will award grants to eligible entities for developing and implementing innovative approaches to improve maternal and child health outcomes of victims of domestic violence, dating violence, sexual assault, stalking, human trafficking, sex trafficking, child sexual abuse, or forced marriage.

 Appropriations: $25,000,000 for the period of fiscal years 2023 through 2025.
TELEHEALTH AND RURAL ACCESS PILOT PROJECTS:

The Secretary of Veterans Affairs, in cooperation with the Secretary of Defense and the Secretary of Health and Human Services (referred to in this subsection collectively as the “Secretaries”) shall establish 4-year telehealth pilot projects for the purpose of analyzing the clinical outcomes and cost-effectiveness associated with telehealth services in a variety of geographic areas that contain high proportions of medically underserved populations, including African Americans, Latinos or Hispanics, American Indians or Alaska Natives, and those in rural areas.

 Appropriations: There is authorized to be appropriated to carry out this section for the period of fiscal years 2023 through 2027 an amount equal to the amount of savings for the Federal Government projected to be achieved over such period by implementation of this section.