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Policy Explainer: The Role of Higher Education Institutions in Upholding the Federal Trust Responsibility as Applied by Arizona State University

kssatter — Tue, 15 Apr 2025 18:04:19 +0000

Policy Explainer: The Role of Higher Education Institutions in Upholding the Federal Trust Responsibility as Applied by Arizona State University

kssatter April 15, 2025

AIPI Blog

Policy Explainer: The Role of Higher Education Institutions in Upholding the Federal Trust Responsibility as Applied by Arizona State University

This brief follows up on the recent AIPI Policy Explainer: Federal Trust Responsibility and Higher Education, which clarified the status of programs supporting American Indian students in higher education in response to recent legal and policy developments by explaining that Federal relationships with Tribal Nations and their citizens/members are based on political distinctions rather than racial classifications.

This brief examines how Arizona State University (ASU) upholds the Federal Trust Responsibility through its long-standing commitment to Tribal Nations and their citizens/members. In alignment with its Charter, which states that ASU measures itself “by whom it includes and how they succeed,” the University acknowledges the significant presence and contributions of Tribal communities.

Recently, ASU President Michael Crow reaffirmed the University’s commitment to Tribal Nations, citizens, and members in a letter dated March 25, 2025, stating,

“Our relationship with tribal nations and communities is an extension of the federal trust responsibilities that are recognized in the U.S. Constitution, treaties, executive orders, and judicial decisions as a government-to-government relationship. ASU has established tribal consultation protocols that honor and recognize tribal sovereignty and self-governance—with longstanding investments in Indian country that generates economic vitality benefiting the entire State.”

He further reiterated ASU’s enduring commitment first articulated in his 2015 statement, “ASU Commitment to American Indian Tribes”:

Further, “We are dedicated to supporting tribal nations in achieving futures of their own making while building and strengthening leadership capacities to address challenges for Native nations in the 21st Century and beyond.”

Legal Foundation for University Programs Serving Tribal Members/Citizens:

As demonstrated in the Brief as mentioned earlier, the legal foundations for universities serving tribal members/citizens is based on the facts that 1) tribal citizenship Is a political distinction, not a racial classification, 2) the Federal Government has a Legal and treaty-based obligation to support American Indian education, and, 3) non-tribal universities have a role in upholding the Federal Trust Responsibility.

In a letter dated February 20, 2025, Tohono O’odham Nation Chairman Verlon Jose addressed this legal foundation in a statement to the Arizona State Senate leadership:

“Maintaining programs that benefit federally recognized tribes, and their members, does not amount to impermissible racial discrimination. It is important to acknowledge that state and federal programs, including university programs, designed to benefit federally recognized tribes, and tribal members, are not race-and sex-based preferences functioning under the guise of diversity, equity and inclusion.”

Chairman Jose notably highlights a critical legal distinction: educational initiatives grounded in Tribal citizenship and the federal trust responsibility are political in nature and therefore remain constitutionally valid and legally protected.

ASU’s Tribal-Focused Programs and Initiatives

ASU supports American Indian, Alaska Native, and Native Hawaiian students, faculty, and communities through a robust network of academic programs, research centers, and government-to-government partnerships:

Research, Policy and Outreach Centers

American Indian Policy Institute – Focuses on Tribal governance and policy.
Center for Tribal Digital Sovereignty – Supports Tribal governments in digital governance.
Indian Legal Program - Trains the next generation of Indian country lawyers and leaders in partnerships with many Tribal Nations, private and governmental entities.
Center for Indian Education – Researches American Indian/Alaskan Native and Native Hawaiian education.
Labriola National American Indian Data Center – Provides resources for Tribal librarianship and archival research.

Degree Programs

American Indian Law, American Indian Studies, and social work programs specializing in American Indian/Alaskan Native and Native Hawaiian issues.

Tribal Partnerships and Consultation

Formal consultation processes with Tribal governments on research, land use, and education.
Tribal Institutional Review Boards to ensure ethical research practices.

Conclusion

Despite evolving legal interpretations of education policies, programs designed to support Tribal students remain legally protected under the U.S. Trust Responsibility to Tribal Nations. These programs are rooted in Tribal sovereignty, treaty obligations, and federal law, not racial classification. Universities and state governments play a critical role in ensuring that American Indian/Alaskan Native and Native Hawaiian students receive the educational support promised through centuries of federal commitments.

ASU’s example shows how public universities can actively fulfill their share of the trust responsibility through collaboration, consultation, and sustained investment in Native communities. Understanding and upholding these responsibilities is essential for university leaders, educators, and policymakers to ensure that American Indian, Alaska Native, and Native Hawaiian students continue to access the educational opportunities promised to them under centuries of federal commitments.

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References

Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988. (1988, April 28). https://www.congress.gov/bill/100th-congress/house-bill/5

Eugene Volokh, The California Civil Rights Initiative: An Interpretive Guide, 44 UCLA L. Rev. 1335 (1997) (“The government categorizes individuals based on political affiliation in various manners…. Tribal Indians … are part of a political entity that is specifically recognized by federal law and the U.S. Constitution, rather than an ethnic group that lacks independent legal status.”)

Exec. Order No. 3416, 3 C.F.R. 3 (2025). https://www.doi.gov/document-library/secretary-order/so- 3416-ending-dei-programs-and-gender-ideology-extremism

National Archives. (n.d.). Ending Illegal Discrimination and Restoring Merit-Based Opportunity. Federal Register: Executive Order 14173.https://www.federalregister.gov/documents/2025/01/31/2025-02097/ending-…

Sandra Day O’Connor College of Law. (n.d.). Libguides: Indian law: Indian education. Indian Education - Indian Law - LibGuides at Arizona State University - College of Law. https://libguides.law.asu.edu/indianlaw/education

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April 15, 2025

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Policy Explainer: Federal Trust Responsibility and Higher Education

kssatter — Tue, 15 Apr 2025 17:00:12 +0000

Policy Explainer: Federal Trust Responsibility and Higher Education

kssatter April 15, 2025

AIPI Blog

Policy Explainer: Federal Trust Responsibility and Higher Education

This explainer clarifies the status of programs supporting American Indian students in higher education in response to recent legal and policy developments. Federal relationships with Tribal Nations and their citizens/members are based on political distinctions rather than racial classifications. The framework outlined in this document reflects the federal government’s unique relationship with and obligations to Tribal Nations.

Legal Framework

Tribal Citizenship Is a Political Distinction, Not a Racial Classification
- The U.S. Supreme Court (e.g., Morton v. Mancari) and Congress (Title 25 of the U.S. Code) have repeatedly reaffirmed the political status of American Indians as citizens and members of Tribal Nations. Consistent with the United States Constitution, Congress’s ability to legislate in Indian Affairs is not based on racial or ethnic minority status but on a government-to-government relationship between the United States and the various Tribal Nations.
- This legal distinction based on tribal citizenship/membership ensures that educational opportunities for American Indian students remain constitutionally valid as an extension of the United States’ trust responsibilities.
The Federal Government Has a Legal and Treaty-Based Obligation to Support American Indian Education
- Federal treaties, laws and regulations mandate support for American Indian education programming and are part of a substantial legal trust responsibility.
- Over 150 treaties include explicit provisions for educational support, reflecting a longstanding federal obligation to uphold Tribal sovereignty and self-determination based on the unique status of tribes and tribal citizens/members.
Non-Tribal Universities Have a Role in Upholding the Federal Trust Responsibility
- Public institutions that receive federal funding, such as Arizona State University (ASU), are integral to fulfilling the trust obligation by offering tailored support services and American Indian-focused academic programs.
- State governments can legally extend educational support to Tribal citizens/members, just as they provide benefits or services based on the state residency/citizenship of certain classes of students.

Tribal Sovereignty and the Federal Trust Responsibility: A Legal Obligation

Tribal Nations are sovereign governments with a distinct political and legal status recognized in the U.S. Constitution, treaties, and federal law. As part of the United States’ sovereign-to-sovereign relationships, Tribal nations and their citizens/members have a unique relationship with the federal government, which is legally bound by treaty and law to uphold its trust responsibility. This obligation is a fundamental aspect of Tribal sovereignty. The federal trust responsibility ensures the protection of Tribal sovereignty, fulfillment of treaty commitments, and support for self-determination, including specific programs such as education.

To operationalize the Trust obligation, Congress has enacted key federal statutes that codify the federal government’s role in supporting education for American Indian, Alaska Native, and Native Hawaiian students. These statutes serve as the basis for implementing the trust responsibility in educational contexts:

Key Federal Statutes

The Indian Self-Determination and Education Assistance Act (1975): This Act empowers Tribal Nations to manage their education programs and services, honoring the government-to-government relationship.
The Tribally Controlled Schools Act (1988): This statute supports the development and operation of schools governed by Tribal Nations, reflecting an enduring commitment to American Indian education.
The Native Hawaiian Education Act (1965): This Act similarly recognizes the unique political and trust relationship between the federal government and Native Hawaiian peoples.

These statutes represent only a portion of the broader legal framework guiding educational support for Tribal Nations. A wide array of additional laws, regulations, and policies collectively shape the implementation of the federal trust responsibility in education and beyond. For a more comprehensive overview, explore the ASU American Indian Education Law Library Guide for curated legal and policy resources.

Conclusion

A long-standing political relationship between the United States and Tribal Nations, anchored in the U.S. Constitution, federal treaties, laws, statutes, and regulations, forms the bedrock of Trust Obligations. For generations, education has been explicitly recognized in treaties as a central pillar of the United States’ obligation to Tribal members/citizens. These treaties and other legal duties guarantee access to education and affirm the political status of Tribal Nations, ensuring that any program designed to benefit Tribal citizens aligns with these foundational promises.

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April 15, 2025

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Fact Sheet: Summary of Congressional Oversight Hearing to “Examine Native Communities’ Priorities for the 119th Congress”

tlmorri3 — Tue, 18 Feb 2025 17:02:38 +0000

Fact Sheet: Summary of Congressional Oversight Hearing to “Examine Native Communities’ Priorities for the 119th Congress”

tlmorri3 February 18, 2025

AIPI Blog

Fact Sheet: Summary of Congressional Oversight Hearing to “Examine Native Communities’ Priorities for the 119th Congress”

On February 12, 2025, the U.S. Senate Committee on Indian Affairs held an oversight hearing, Examining Native Communities' Priorities for the 119th Congress. Chaired by Senator Lisa Murkowski (R-AK), with Vice Chairman Brian Schatz (D-HI), the hearing reaffirmed the committee’s commitment to centering Native voices in policymaking.

Chair Murkowski emphasized the responsibility to uphold trust and treaty obligations—the federal trust responsibility is a legal obligation of the U.S. government to safeguard the rights and interests of Native American Tribes, upheld through the Marshall Trilogy. Additionally, treaty obligations refer to legally binding agreements between certain tribal nations and the U.S. government, such as the Navajo Treaty of 1868. Recognizing these commitments, Chair Murkowski highlighted the importance of engaging directly with tribal leaders to ensure federal policy reflects the priorities of Native nations. She acknowledged the evolving political landscape and the committee’s role in advocating for Native interests through direct engagement and legislative action. Vice Chairman Schatz echoed the committee’s responsibility as a bipartisan advocate for Native priorities, stressing that past legislative successes were achieved through collaboration with Native communities.

The hearing featured testimonies from Native leaders across various sectors, reflecting the broad and pressing challenges facing Indian Country. Key insights from each testimony are outlined below:

Testimonies from Native Leaders:

Mark Macarro, President of the National Congress of American Indians (NCAI): Macarro emphasized the federal government's trust and treaty obligations, advocating for:
- Sustainable Funding: Ensuring consistent and adequate appropriations for programs benefiting Native communities.
- Protection of Sovereignty: Upholding tribal sovereignty in all legislative actions.
- Healthcare Enhancements: Improving access to quality healthcare services for Native populations.
- Full Testimony
The Honorable William Smith, Chairperson / Alaska Area Representative, Valdez Native Tribe / National Indian Health Board (NIHB): Smith focused on healthcare challenges in Native communities, highlighting:
- Trust and Treaty Obligations: Reaffirming the federal government's responsibility to provide healthcare services to Native populations.
- Sustainable Funding: Advocating for consistent and adequate appropriations to support health programs serving American Indian and Alaska Native communities.
- Tribal Self-Governance: Empowering tribes to manage and deliver healthcare services tailored to their communities' specific needs.
- Full Testimony
Rodney Butler, Chairman of the Mashantucket Pequot Tribal Nation and President of the NAFOA Board of Directors: Butler addressed economic development, emphasizing:
- Economic Sovereignty: Empowering tribes to manage and develop their economic resources.
- Infrastructure Investment: Improving infrastructure to support business ventures in Native communities.
- Access to Capital: Facilitating financial opportunities for Native entrepreneurs and businesses
- Full Testimony
Kerry D. Bird, President of the National Indian Education Association (NIEA): Bird focused on educational disparities, calling for:
- Increased Funding: Allocating resources to Native-serving educational institutions.
- Culturally Relevant Curriculum: Integrating Native histories and languages into school programs.
- Support for Educators: Providing professional development tailored to educators serving Native students.
- Full Testimony
Joseph Kūhiō Lewis, Chief Executive Officer, Council for Native Hawaiian Advancement (CNHA): Lewis highlighted critical issues affecting the Native Hawaiian community, advocating for:
- Equitable Funding: Ensuring that Native Hawaiian programs receive fair and consistent financial support.
- Permanent Reauthorization of Legislation: Securing ongoing authorization for existing laws that benefit Native Hawaiians.
- Meaningful Consultation Policies: Developing policies that guarantee Native Hawaiian voices are heard in federal decision-making processes.
- Full Testimony

In short, the hearing stressed the U.S. government's trust and treaty obligations to Native peoples, reinforcing the legal foundation for addressing their priorities. However, the responsibility to uphold these commitments extends beyond Congress. Those serving American Indian communities—whether individuals or organizations—must actively engage in legislative processes, collaborate with tribal leaders, and advocate for policies that support education, healthcare, economic development, and sovereignty. Advancing these initiatives requires collective action, ensuring that Native nations shape the policies that impact their futures.

Posted on

February 18, 2025

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Policy Snapshot: Key Developments in American Indian Education 2024

tlmorri3 — Tue, 07 Jan 2025 22:19:27 +0000

Policy Snapshot: Key Developments in American Indian Education 2024

tlmorri3 January 7, 2025

AIPI Blog

Policy Snapshot: Key Developments in American Indian Education 2024

Read our recent infographic one-pager on American Indian Education. It offers a concise overview of significant legislative and policy advancements related to American Indian education in 2024, elevating efforts to support Tribal communities and education initiatives. Highlighted within the document is a breakdown of Congressional bills, Federal Register notices, and noteworthy milestones such as President Biden’s formal apology for American Indian boarding schools, the establishment of the Carlisle Federal Indian Boarding School National Monument, and the launch of the Department of Interior's Federal Boarding School Initiative.

Infographic

Posted on

January 7, 2025

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Call To Action: NAGPRA Open Committee Meeting

tlmorri3 — Mon, 16 Sep 2024 15:16:26 +0000

Call To Action: NAGPRA Open Committee Meeting

tlmorri3 September 16, 2024

AIPI Blog

Call To Action: NAGPRA Open Committee Meeting

On Monday, September 23, 2024, the National Park Service Native American Graves Protection and Repatriation Review Committee will host their ninth meeting of a ten-meeting series.

The teleconference will be a four-hour virtual meeting open to the public and run from 2:00pm to 6:00pm Eastern Standard Time.

The meeting will include topics related to the Committee’s responsibilities with the addition of comments and presentations by any Indian tribes, Native Hawaiian organizations, museums, Federal agencies, associations, and individuals.

Information on joining the meeting via the Internet or telephone is available on the National NAGPRA Program website.

Previous meetings are available via recording here.

Continue following AIPI for more important policy news and event updates.

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September 16, 2024

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Unrelenting Litigation? The Supreme Court’s Overruling of Chevron in Loper Bright Enterprises & Relentless, Inc. and What’s Next for Tribes

bsantist — Mon, 08 Jul 2024 20:00:38 +0000

Unrelenting Litigation? The Supreme Court’s Overruling of Chevron in Loper Bright Enterprises & Relentless, Inc. and What’s Next for Tribes

bsantist July 8, 2024

AIPI Blog

Unrelenting Litigation? The Supreme Court’s Overruling of Chevron in Loper Bright Enterprises & Relentless, Inc. and What’s Next for Tribes

The decision in Loper Bright Enterprises v. Raimondo. is just as impactful as the U.S. Supreme Court overturning Roe v. Wade, its ruling on Presidential immunity, or any of the other recent blockbuster decisions. On its face, Loper Bright appeared to be a rather benign case involving commercial fishing vessels and whether private parties had to pay for federal observers on those vessels for purposes of monitoring possible overfishing – a scenario with little relevance to most tribes. But what it actually did is much more foundational and potentially far-reaching for Indian Country.

Last Friday, June 28, 2024, the U.S. Supreme Court, with a 6-3 majority divided along ideological lines, released its opinion in the case Loper Bright Enterprises v. Raimondo, Secretary of Commerce (decided together with the case Relentless, Inc. v. Dept. of Commerce), 603 U.S. ____ (2024). The ruling eliminated a fundamental principle of administrative law known as "Chevron deference" that had been in place for 40 years. In sum, the ruling means that federal courts will no longer give deference to federal agency interpretations of ambiguities or gaps in federal law, but instead independently take on those legal interpretations themselves.

This is important because now it will be up to federal courts primarily to address such ambiguities or gaps in the law in the administrative agency context. Going forward that could mean that federal agency actions (including actions affecting tribes) are more frequently overturned by the courts or more frequently decided in the first instance by courts rather than agencies.

The rule of agency deference had been in effect since its pronouncement by the Supreme Court in the case Chevron U.S.A. Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The rule pertained to decisions made by federal administrative agencies involving ambiguous or incomplete congressional statutes and involved a two-step analysis by a court reviewing a challenge to the agency’s action under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. The court would first determine if Congress had specifically addressed the issue at hand in the relevant statute – if so, that was the end of the court’s inquiry and the court either upheld agency action aligning with congressional intent or rejected contrary action. Id. at 842. But if the court determined there to be an ambiguity in the law or the statute did not address the issue at hand, the court was to defer to the agency's expertise and not disturb the agency action in interpreting the statute, so long as the agency in essence acted reasonably and had support for its interpretation. Id. at 843, 865. This deference by the reviewing court had to be given, even if the court independently disagreed with the agency’s interpretation. Id. Under the Loper Bright decision, courts will no longer give such deference and are to interpret ambiguities and gaps in the law themselves in assessing an agency action challenge.

The need for such agency interpretations is very common, because Congress cannot address every possible scenario or contingency when drafting statutes, such that laws are often unclear or incomplete. In the Chevron case, the Supreme Court had reasoned that allowing for agency interpretations made sense because the relevant agency would have the technical expertise and experience to fill in gaps in the law in a practical manner. Now courts will fill that role.

Although the nature of the process issue raised in the case – whether an agency or a court should interpret statutory ambiguities – may seem abstract on the surface, the Loper Bright ruling from Friday is groundbreaking and possibly affects 40 years of subsequent court decisions implementing the Chevron deference rule. It has implications for tribes across the country in many different possible contexts – virtually all federal agencies with which tribes interact could be affected. But the specifics will have to be gained from future litigation testing how courts react with their new-found responsibilities under the Loper Bright decision.

In viewing the future of administrative action, the various views held of Chevron over the past four decades will undoubtedly be invoked. There are those who believed wholeheartedly in its deference to administrative agency experts, and do not believe courts could ever have sufficient technical expertise to tackle agency work. And many of those same supporters believe that agency interpretations of less-than-clear statutes are a form of policy-making that courts should not be taking from the executive branch with its prerogative to create policy under any given Presidential Administration. Those concerns will be compounded when taking into account most federal courts already have full dockets and limited bandwidth to take on a significant portion of the role of federal agencies. On the other hand, there are those who have complained for decades about many of the deficiencies in Chevron, noted in the Supreme Court decision overturning it – among them, the lack of uniformity in defining what constitutes a statutory ambiguity, the “thumb on the scale” bias upholding much agency action, and a lack of congruence with the Administrative Procedure Act in its direction that relevant questions of law are to be decided by reviewing courts, not agencies. Those alleged faults with Chevron are on top of its detractors’ most significant argument – Chevron failed to adhere to the Constitution’s separation of powers requirements and amounts to a power grab by the administrative state.

So what does all of this mean for tribes? Like other parties dealing with federal agencies, many tribes have had a “love it” or “hate it” view of Chevron that often varied depending upon the particular matter at hand. If you were in front of an agency that granted a decision favorable to your cause and the agency had a reasonable basis for doing so, you had a good chance of it withstanding an appeal. But if the agency issued an unfavorable decision to you, or if the actions of another party that you opposed were approved, the chances for reversal on appeal often were challenging. After the Loper Bright decision, that dynamic may be less certain, because a court will now independently review any ambiguous or incomplete provisions of the law at hand, without necessarily taking into account the agency’s attempt to do so. That statement as to predictability is subject, of course, to the assumption that judicial review of agency action will itself be free from political or other predictable leanings.

Regardless of how tribes may have felt about Chevron or its tendency to uphold agency decisions, one thing is almost certain from the Loper Bright decision – tribes need to plan to be part of the litigation that will be necessary to fill in the contours of the decision for years to come. That is not “the sky is falling” talk. Overruling, or at least calling into question, the past 40 years of administrative law precedent decided in Chevron and its progeny, without an overarching framework to take its place other than to say it is up to federal judges to take back from federal agencies the responsibility of interpreting federal law, will cause a major shift. And tribes need to be a part of the foundational rebuilding process. But doing so is likely to be costly for tribes and any other parties who routinely interact with federal agencies. The stability of agency deference likely will give way to the unpredictability of court interpretations (at least initially after this decision); unpredictable courts require a trial-and-error approach to get precedent in place to create future stability; and such an approach obviously will require a greater expenditure of time, effort and resources than a path with greater certainty from the outset.

What is the next step for tribes after Loper Bright and its overruling of Chevron? Litigation budgeting and planning. Because it’s coming, so tribes should get ready. That may be the one near-certainty stemming from the uncertainty caused by Loper Bright.

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July 8, 2024

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Policy Explainer: Digital Equity Act Programs Update

bsantist — Mon, 24 Jun 2024 18:30:12 +0000

Policy Explainer: Digital Equity Act Programs Update

bsantist June 24, 2024

AIPI Blog

Policy Explainer: Digital Equity Act Programs Update

The Infrastructure Investment and Jobs Act (Bipartisan Infrastructure Law or BIL) created several new programs to expand broadband access. The BIL established the Broadband Equity, Access, and Deployment Program (BEAD) and funded the Tribal Broadband Connectivity Program to promote the expansion of broadband infrastructure. Additionally the BIL also included the Digital Equity Act Programs (DEA) to promote the adoption of broadband technology.

This explainer will briefly describe each program and how Tribal Nations can participate. It will also give a short update on the status of each part of the program as of the time this document is published. Please visit the DEA programs website for information on how to apply and additional information on these grant programs.

This explainer will include three important details about each program within the Digital Equity Act Programs (DEA): (1) A short description of each program, (2) How Tribal Nations can participate, (3) Status update of each part of the program as of the time of this document’s publication. Please visit the DEA programs website for information on how to apply and additional information on these grant programs.

The following 3 grant programs make up the DEA programs:

State Digital Equity Planning Grant Program - Eligible entities encouraged to apply for this program included states, territories, and Tribal Nations. The main purpose of this program was to help applicants create a digital equity plan to develop solutions to digital equity barriers. $60 million was allocated to this program with Arizona receiving about $1.1 million to develop its own digital equity plan. This program is in its closeout phase and NTIA has announced that all 50 states have submitted their digital equity plans for approval.

Tribes interested in applying to this program had a different process than states. NTIA stated in the program FAQs that Tribes must submit letters of intent, then NTIA would follow up with further instructions on how to apply. However, the planning grant program received an overwhelming response from Tribes, resulting in planning grant funding moving to the State Digital Equity Capacity Grant Program.

State Digital Equity Capacity Grant Program - This program builds upon the planning grant program,it is intended to help applicants implement their digital equity plans that were developed under the planning grant program. This capacity grant program is allocated $1.44 billion which will be dispersed to states through a funding formula. The program NOFO shows that Arizona will receive just over $16 million. Arizona’s plans to implement the AZ Digital Equity Plan also depend on the approval of the AZ BEAD Initial Proposal Vol. 2. Currently, Arizona and several other states are in the process of getting their initial proposals approved by the NTIA. Awards from this program must be issued by NTIA no later than August 28, 2024.

The program NOFO also explains the planning grant program received a substantial amount of letters of intent from Tribes, which caused problems with oversubscription. Therefore, unused money and the Tribal set aside money from the planning grant program was added to this capacity grant funding program’s Tribal set aside amount. NTIA is designating $45.3 million for Tribal applicants to the capacity grant program.

Tribal Nations are eligible to apply to this program. However, the process is different from states and territories. The Tribal application window will be open from September 25, 2024 - February 7, 2025. This capacity grant program will not award Tribes who are applying for a standalone planning grant. Planning grant funding will only be awarded in conjunction with capacity grant funding to address digital equity plan implementation.

Digital Equity Competitive Grant Program - This grant program is also meant to support digital equity activities. This grant will allow applications from entities other than state governments and Tribal Nations. Currently no NOFO exists to describe the details of this grant program. However, the BIL requires that the competitive grant program begin no later than 30 days after capacity grant awards start going out.

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June 24, 2024

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Reauthorization of H.R. 7888 carries substantial implications for Tribal Sovereignty

bsantist — Thu, 18 Apr 2024 00:05:23 +0000

Reauthorization of H.R. 7888 carries substantial implications for Tribal Sovereignty

bsantist April 17, 2024

AIPI Blog

Reauthorization of H.R. 7888 carries substantial implications for Tribal Sovereignty

Earlier this month, H.R. 7888 was introduced to reauthorize the Foreign Intelligence Surveillance Act of 1978 (FISA). This bill includes an amendment that expands FISA’s current definition of an “Electronic Communication Service Provider” beyond a traditional Internet Service Provider to any service provider with access to electronic communication equipment. This expansion has significant implications for Tribal Nations and tribal entities that work in the digital space.

FISA is meant to be used to gather information on foreign adversaries, and the data can be collected without a court order. However, the collection of electronic information could occur on electronic communication equipment located within the US, which puts the information of everyone using the same US-based equipment at risk. Although the bill provides exceptions for a few entities, it does not mention exemptions for tribal entities. Tribes that operate their own ISPs, data centers, and other digital ventures may be subject to this new proposed definition, and that carries substantial implications for Tribal Sovereignty.

H.R. 7888 passed in the US House of Representatives and is now awaiting a vote in the U.S. Senate. Tribes and tribal entities who have questions or concerns about the bill or are looking for clarification on its impact on Tribal Sovereignty should make sure to reach out to their Senators to give their input on this pending legislation.

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April 17, 2024

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Explainer: BEAD Challenge Process: AZ BEAD Program Update

bsantist — Wed, 13 Mar 2024 20:36:31 +0000

Explainer: BEAD Challenge Process: AZ BEAD Program Update

bsantist March 13, 2024

AIPI Blog

Explainer: BEAD Challenge Process: AZ BEAD Program Update

On March 1, 2024, the Arizona Commerce Authority (ACA) initiated Arizona’s challenge process as required by the Broadband Equity, Access, and Deployment Program (BEAD). The BEAD is a federal grant program administered by the National Telecommunications and Information Administration (NTIA). The BEAD is meant to expand access to high-speed internet across the country, and Arizona has been awarded approximately $993 million to accomplish this goal. This challenge process is the latest step in implementing BEAD, following the development of Arizona’s BEAD Five-Year Action Plan and BEAD Initial Proposals Vol.1 and Vol. 2 in 2023. The full details of Arizona’s BEAD challenge process are on the ACA’s challenge process website, and this explainer will give an introduction to the process.

The BEAD challenge process is a key part of the program because it gives an opportunity to correct the data used to determine how and where BEAD funding is utilized. The BEAD program is based on connecting Broadband Serviceable Locations (BSL), such as houses and apartment buildings, and Community Anchor Institutions (CAI), such as schools and libraries. Therefore it is crucial that data on a BSL in a given area is accurate so that connectivity needs are addressed. Arizona’s BEAD challenge map is an interactive map that shows individual BSLs and CAIs and the information associated with those locations. This map should be reviewed to see if the state’s information on a given location is accurate.

The NTIA guidance document explains that states have 120 days to complete the entire challenge process. This means that the publication of BSLs and CAI data, challenge submission period, rebuttal period, and final determinations must all be completed within 120 days. The ACA established the following timeline for Arizona’s challenge process:

March 1, 2024 - challenge process portal open for registration
March 15, 2024 - challenge process submission starts and rebuttal starts on a rolling basis, service providers will have 15 calendar days from a notification of a challenge to provide a rebuttal
May 14, 2024 - challenge process submission ends
May 15 - June 30, 2024 - Final determination phase

Not everyone is eligible to submit a challenge. The BEAD NOFO only allows states to accept challenges from four categories of challengers. Eligible challengers must register on the ACA website and identify themselves as a part of one of the categories:

Local governments
Tribal governments
Nonprofit organizations
Internet service providers

The Arizona BEAD challenge map uses data from the FCC’s National Broadband Map. However, the BEAD challenge process does not allow challenges to add new BSLs or other locations to the Arizona BEAD challenge map. Challenges regarding new BSLs or other locations can be submitted to the FCC, but they will not be reflected on the Arizona BEAD challenge map. The BEAD challenge process allows for nine different types of challenges based on the circumstances at each BSL identified on the map. These challenge types are:

Availability
Speed
Latency
Data Cap
Business Service Only
Is/is not part of an Enforceable Commitment
Planned Service
Location is/is not a Community Anchor Institution (CAI)
CAI qualifying broadband service is unavailable/available

These challenges can be applied to individual BSLs and CAIs marked on the Arizona BEAD challenge map. Below is a brief explanation of challenge types from the NTIA Model Challenge Process:

Availability & Business Service Only - These challenge types involve the internet service available at a given BSL. Challenges can include screenshots of information from provider websites, declined service requests, and other evidence that providers do not provide residential service to the BSL.
Speed, Latency, & CAI qualifying broadband service - These challenges address internet performance at a given BSL. Online speed tests are used to see how the internet at a BSL measures up to BEAD speed and latency thresholds. Internet speeds at 25/3 Mbps or less are unserved. Speeds between 25/4 - 100/20 Mbps are underserved. In addition to these speed thresholds, latency must also be under 100 ms. For CAIs, internet speed has to meet the 1/1 Gbps threshold to consider the CAI served.
Data Cap - This challenge involves internet service at a BSL that is subject to a data allowance. The NTIA Model Challenge Process indicates that any internet service plans with a data allowance lower than 600 GB/month would be classified as unreasonable.
Technology - This challenge involves the service technology (i.e. wireless, cable, or fiber) available at a given BSL. Information on the residential gateway unit at a BSL is needed to determine if the challenge process map correctly reflects the technology that is available.
Enforceable Commitment & Planned Service - These challenges involve information on other sources of funding for broadband deployment and/or information on current deployment projects scheduled for completion by June 30, 2024. The BEAD NOFO does not allow duplicate funding for a given BSL. Therefore, these challenges may require information on funding commitments or ongoing construction. Additional information such as Tribal Government Resolutions may be required for Tribal areas.
Not part of enforceable commitment - These challenges involve information on areas with enforceable commitments that will not cover 100% of the BSLs in that area.
Location is/is not a CAI - These challenges involve BSLs that may or may not be CAIs. Information on the current status of the facility as well as the information on the location’s operation would be needed to make the determination.

Please refer to the ACA’s BEAD Challenge website for full details and the latest updates on the BEAD challenge process in Arizona. The ACA website has information on how to register as a challenger, datasets for BSLs and CAIs, and upcoming webinars. The ACA is also hosting weekly office hours on the challenge process and preparing to begin the Connecting Arizona Engagement Tour. Continue to follow AIPI for updates on Tribal broadband in Arizona as well as nationally.

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March 13, 2024

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Policy Alert: Potential Impacts of a Federal Government Shutdown on Tribal Telecommunications

tlmorri3 — Fri, 29 Sep 2023 23:06:39 +0000

Policy Alert: Potential Impacts of a Federal Government Shutdown on Tribal Telecommunications

tlmorri3 September 29, 2023

AIPI Blog

Policy Alert: Potential Impacts of a Federal Government Shutdown on Tribal Telecommunications

At this time, the United States government will likely shut down due to Congress not coming together to pass needed legislation through a continuing resolution or the required appropriations bills. Given this situation, each federal agency has created agency contingency plans. As Tribal Government relationships with the Federal Government are intertwined, there will be many impacts on Tribal communities. One area of impact is communications and telecommunications. The shutdown will affect all agencies and programs in some capacity. This alert addresses programs administered by the Federal Communications Commission (FCC) and the Department of Commerce’s National Telecommunications and Information Administration (NTIA). However, the Federal Government maintains a website–Internet for All– consolidating all investments in the Internet, and many, if not all, of these programs will likely be wound down or somehow impacted during a government shutdown.

According to agency plans, programs from prior year appropriations or deemed core emergency programs will continue, but the extent of the continuation is unclear. For example, the Affordable Connectivity Program (ACP) functions will continue to be funded, but it is unclear if new applications and customer support for signups will be supported. It is anticipated that staffing, technical assistance, and the like will not be supported even if the program is.

Federal Communications Commission (FCC)

The FCC administers several important programs that impact broadband infrastructure development in Indian Country, such as the Affordable Connectivity Program (ACP) and the E-Rate program. The FCC’s shutdown plan states that broadband affordability programs like the ACP program will continue during a lapse but does not specifically mention the E-rate program. The FCC’s plan outlines the following agency activities that will continue during a lapse:

Activities necessary for the protection of life or property.
Permissible Spectrum Auction activities that are funded through a source other than lapsed annual appropriations and not affected by the partial lapse in the FCC’s spectrum auctions authority.
Broadband data and mapping activities funded through a source other than lapsed annual appropriations.
Emergency relief programs, including the ACP, Emergency Connectivity Fund, and Telehealth Programs, are funded through a source other than lapsed annual appropriations.

FCC activities that will not continue during a lapse include but are not limited to:

Response to consumer complaints and inquiry phone lines.
Consumer protection and local competition enforcement.
Licensing services, including broadcast, wireless, and wireline.
Management of radio spectrum and the creation of new opportunities for competitive services for the American public.
Equipment authorization.
All other activities not immediately necessary for the protection of life or property or otherwise excepted or funded through a source other than lapsed annual appropriations.

National Telecommunications and Information Administration (NTIA)

NTIA programs such as the Tribal Broadband Connectivity Program (TBCP) and the Broadband Equity, Access, and Deployment Program (BEAD) are key programs for Indian Country. NTIA’s shutdown plan indicates that programs such as the BEAD program, the Enabling Middle Mile Broadband Infrastructure Program, the Digital Equity Act programs, and the Tribal Broadband Connectivity Grant program will continue through a lapse. These programs will continue to the extent that they are funded through other sources. NTIA’s plan also states that the following activities will continue through a lapse:

Management of federal spectrum;
support policy and international treaty development in the areas of the Internet economy, including online privacy, copyright protection, cybersecurity, and the global free flow of information online;
promote the stability and security of the Internet’s domain name system.

NTIA activities funded by other sources that will continue through a lapse include:

Telecommunications research and engineering

Continuing to build and operate a nationwide public safety broadband network, as well as support state and local governments to plan for their participation in the network
Implement certain grant programs
Strengthen and seek greater efficiencies with federal spectrum use.

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September 29, 2023

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