WASHINGTON — The U.S. Office of Management and Budget is the place at the heart of the federal government where the fates of most tribal funding get decided.
The office, under the direction of the president, gathers vast amounts of information, makes mathematical and political calculations, and then announces the president’s annual budget. Then the U.S. Congress chooses to agree or disagree with OMB’s numbers, and Congress ultimately appropriates millions of dollars to tribes each year.
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Under the current White House, OMB is doing a pretty strong job so far at addressing tribal concerns, many tribes say, positively noting President Joe Biden’s $30.6 billion budget request for Native-serving federal programs for the next fiscal year. OMB also is listening to tribal reasoning to support advanced appropriations for the Indian Health Service, namely that IHS programs are the only federal health care programs that are discretionary, despite treaty and trust obligations.
[RELATED: ‘HISTORIC’ INVESTMENTS: Interior officials brief tribal leaders on Biden’s proposed 2022 budget]
But tribes also widely believe that a pattern of inconsistency, including confusion over the exact number of consultations OMB has conducted with tribes this year alone, points to larger institutional problems the office has in hearing and acting on tribal concerns.
At a July 15 official OMB consultation, held virtually, 11 tribal leaders were selected to pose meaty questions and raise substantial issues during a 90-minute session overseen by Samuel Bagenstos, general counsel of the OMB. Tribal Business News did not sit in on the meeting, as it was closed to the press, but a number of tribal leaders shared their observations after the fact.
“Since the agency really hasn’t been engaged until now, there is a lot for them to learn and understand,” Cheryl Andrews-Maltais, chairwoman of the Wampanoag Tribe of Gay Head (Aquinnah), told Tribal Business News after attending. “If they continue to have consultations and roundtable discussions both regionally and nationally, I’m hopeful we can continue to build a solid relationship to work collaboratively in finding solutions to the decades, if not centuries, of federal neglect.”
Attendees said that Aaron Payment, chairperson of the Sault Ste. Marie Tribe of Chippewa Indians, told OMB that it is supposed to act as a tribal trustee, but it often feels like OMB acts as a “gatekeeper rather than facilitator.” He added that trust and treaty obligations should not be seen as welfare or reparations.
One, Two, Three or Six Consultations?
A basic question surrounding the office is just how many tribal consultations Biden’s OMB has held so far with tribes. The question is important, tribal leaders say, because they want to know what OMB is and is not considering official consultation as it develops its funding plans.
“Does a phone call to the Navajo president count as an official tribal consultation?” one tribal leader asked. “We just don’t know.”
In the past, OMB’s policies have sometimes presented big surprises, even under tribally-friendly administrations, like when President Barack Obama’s OMB tried to make tribes pay for a large portion of their contract support costs, despite U.S. Supreme Court rulings that found the federal government was responsible for the costs. After much tribal consternation, the Obama White House ended up making a major policy change calling for tribal contract support costs to be a mandatory part of the federal budget for a set time.
Lynn Malerba, chief of the Mohegan Tribe, attended the July 15 OMB meeting and was selected to ask a question during it. Among the many issues she raised, she notably told OMB that tribes need to be able to measure how well federal agencies are carrying out trust duties and responsibilities, and she said that chronic underfunding of tribes has had “disastrous impacts.”
“I am not sure about consultations in the past,” Malerba, who has been chief of her tribe since 2010, told Tribal Business News afterward. “I can tell you this is the first that I remember.”
Malerba recalled that PaaWee Rivera, senior adviser for intergovernmental affairs and director of tribal affairs at the White House, said during the July 15 session that this was the Biden OMB’s second consultation, which struck some tribal leaders in attendance as an overly rosy portrayal.
“The first was ‘consultation on consultation,’ and this (one) was more substantive regarding specific budget/agency detail,” Malerba said, explaining what Rivera might have meant. Rivera has not responded to questions from Tribal Business News regarding the consultation. He is a citizen of the Pueblo of Pojoaque.
An OMB official added more confusion to the mix, telling Tribal Business News on July 22 that Biden’s OMB had held six consultations with tribes to date.
The official clarified on July 23 that actually three formal consultations had taken place this year, which still didn’t align with what Malerba said. Informal meetings had also taken place, the official said, but they did not say with whom and when.
“In April, OMB conducted two formal tribal consultation sessions, in advance of submitting OMB’s Tribal Consultation Plan of Actions pursuant to the President’s January 26, 2021 Memorandum on Tribal Consultation,” the official said via email. “In July, OMB issued that Plan, institutionalizing this Administration’s commitment to regularly consulting with tribal communities, including before and after the annual Budget is released. And on July 15th, OMB conducted the post-FY22 Budget formal tribal consultation.”
‘Not sure they understand’
When it’s difficult for an office to keep track of a simple number like how many consultations it has held with tribes to date, tribal leaders worry that more complicated concerns may also be missed.
Such was the case for Choctaw Nation Federal Government Relations Coordinator Joshua Riley, who explained to OMB officials during the July 15 session that the Biden budget provides a $10 million increase for programmatic police services for tribes in Oklahoma, but the tribes had requested $300 million. They are staring down disestablishment threats from leaders in their state and worry that less federal funding will make their public safety efforts seem lackluster and give credence to anti-tribal state officials, Riley told OMB officials.
[RELATED: Choctaw Nation, concerned about Oklahoma’s anti-tribe efforts, asks White House for help]
“I do think that the folks from OMB understood what I was trying to convey to them, as far as the urgency of the need,” Riley later told Tribal Business News. “Though, I’m not sure they understand reservation disestablishment and what that would mean, and exactly what the governor of Oklahoma is trying to do.”
‘Truly historic’
Leaders like Chief Malerba don’t want to come down too hard on the Biden administration because, certainly, the budget released by the White House on May 28 was good for tribes.
“I think this is truly historic that the Office of Management and Budget (is) consulting with tribes,” Malerba said. “It reflects on the commitment to government-to-government consultation and the upholding of trust and treaty obligations.”
The OMB official quoted earlier in this report agreed with that assessment.
“Tribal consultation is a priority for this Administration, and for OMB in particular,” the official said.
“As just one example of how seriously we take our commitment to consult with tribal communities, OMB withdrew the prior Administration’s approval of the sale of the Federal Archives facility in Seattle after tribal communities raised concerns about the prior Administration’s approval process,” the official added. “As part of the withdrawal, OMB required that any future efforts to sell the facility must be preceded by meaningful and robust tribal consultation, consistent with this Administration’s policy.”
The official said that more formal consultations are to come. One is scheduled for September with a focus on Biden’s 2023 budget.
Still, Malerba said that OMB officials need to understand that “inadequate funding to Indian Country needs to be viewed as unfilled treaty and trust obligations” — something that past OMB leadership has tended to ignore.
“This funding is not delivered on the basis of poverty or for social welfare purposes,” she said. “The federal government’s trust obligations are the result of the millions of acres of land and extensive resources ceded to the U.S. — oftentimes by force — in exchange for which it is legally and morally obligated to provide benefits and services in perpetuity.
“At no point has the government fully delivered upon these obligations.”
An institutional remedy
Chairwoman Andrews-Maltais has what she views as an easy remedy for OMB to implement to make sure the office better understands tribes and their concerns.
“Like I and many other tribal leaders have stated, what is needed is a full Indian office within OMB,” she said. “Since OMB is the overarching agency through which all federal funding is vetted, and they influence the legislative budgetary process, they need to be more knowledgeable of and engaged with Indian Country to understand the impacts and implications their decisions have on our tribal governments.”
OMB officials could not say if such a plan was going to happen, but during the consultation itself, OMB officials said that they are “actively thinking about it,” according to attendees.
“They also need to better understand the differences between tribal governments and state and local governments, and the nuanced differences and uniqueness of tribal governments, which has been overlooked for far too long,” Andrews-Maltais added.
Having previously worked in the Obama administration at the U.S. Department of the Interior, the chairwoman realizes that Indian issues all too often get lost in the shuffle at some federal agencies.
“From my perspective, within their authority, they need to become better advocates for how the United States can better fulfill its trust and treaty obligations to all tribes — large and small, land-based and landless, as well as treaty and trust tribes,” Andrews-Maltais said.
She remains “optimistic” that “OMB can be a very effective federal partner if they are willing to put in the effort.”
“This is a turning point in history, and if they are truly committed to working with us, Indian Country is just as committed to working with them,” she said.