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For our clients in Indian Country, the recent Executive Order is a welcome development as Tribal Nations plan and allocate funding to future projects. On Dec. 6, during the White House Tribal Nations Summit, President Biden signed an <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/06/fact-sheet-president-biden-signs-historic-executive-order-to-usher-in-the-next-era-of-tribal-self-determination/#:~:text=The%20Executive%20Order%20affirms%20that,America" target="_blank" rel="noreferrer noopener">Executive Order titled Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination</a>. This Executive Order demonstrates the Biden administration’s interest in promoting Tribal self-determination. It’s timely for costly, yet necessary, expenditures like the development of  mature cybersecurity and privacy programs, which could benefit from the use of federal funds.

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While efforts have been made since the 1970s to support Tribal self-determination, there remain marked barriers hindering full exercise of inherent sovereignty, particularly in federal funding programs. The Executive Order aims to empower Tribal Nations with greater control over federal funding by recognizing the historical challenges faced by Tribal Nations, stemming from past federal policies that infringed upon their rights to self-governance.

Key points of the Executive Order include:

Accessible, Flexible and Equitable Funding

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Federal agencies are directed to reform funding programs to align with the <a href="https://www.bia.gov/sites/default/files/dup/assets/bia/ots/ots/pdf/Public_Law93-638.pdf" target="_blank" rel="noreferrer noopener">Indian Self-Determination and Educational Assistance Act</a> model, allowing Tribal Nations greater control over federal dollars.

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Agencies must redesign or administer programs in coordination with the <a href="https://www.bia.gov/whcnaa" target="_blank" rel="noreferrer noopener">White House Council on Native American Affairs</a>, reflecting trust in Tribal priorities and decision-making.

The order encourages the pursuit of agreements with Tribal Nations, such as compacts, contracts, co-management and co-stewardship, to enhance collaboration with the federal government.

Agencies are also directed to identify programs where Tribal set-asides can be established, streamline applications, remove unnecessary restrictions and mitigate cost-sharing requirements to reduce bureaucratic hurdles for Tribal governments.

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One-Stop Shop for Federal Funding

The order states that the <a href="https://www.bia.gov/atc" target="_blank" rel="noreferrer noopener">Tribal Access to Capital Clearinghouse</a> will be launched to serve as a centralized resource for Tribes and Native businesses to access information on available federal funding.

Assessment of Federal Obligations

The White House Council on Native American Affairs, the <a href="https://www.whitehouse.gov/omb/" target="_blank" rel="noreferrer noopener">Office of Management and Budget</a> and the <a href="https://www.whitehouse.gov/dpc/" target="_blank" rel="noreferrer noopener">White House Domestic Policy Council</a> are directed to assess chronic funding shortfalls in existing federal funding for Tribes.

Federal agencies will be required to report annually on progress in implementing recommendations to address these shortfalls.

The Executive Order is the third signed by President Biden to strengthen the nation-to-nation relationship, enhance Tribal consultation, and respect Tribal sovereignty. It builds on historic investments in Indian Country, including substantial funding in the <a href="https://www.whitehouse.gov/american-rescue-plan/" target="_blank" rel="noreferrer noopener">American Rescue Plan</a>, the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/06/fact-sheet-the-bipartisan-infrastructure-deal/" target="_blank" rel="noreferrer noopener">Bipartisan Infrastructure Law</a> and the <a href="https://www.irs.gov/inflation-reduction-act-of-2022" target="_blank" rel="noreferrer noopener">Inflation Reduction Act</a>. Additionally, the order acknowledges advancements in federal contracting dollars to Native-owned businesses and the first-ever advance appropriations for the <a href="https://www.ihs.gov/" target="_blank" rel="noreferrer noopener">Indian Health Service</a>, providing stability for healthcare services in Tribal communities.

A key aspect of this Executive Order is its emphasis on increasing funding for internet and broadband access across tribal lands. This critical development bridges the digital divide and enables Tribal nations to strengthen areas like cybersecurity and privacy programs. Such investments are essential for protecting tribal enterprises and healthcare systems, as mature cybersecurity practices are now part and parcel of securing grants and other funding awards.

By enhancing connectivity and providing funding to help Tribal Nations enhance their cybersecurity and privacy posture, the Executive Order not only promotes Tribal self-determination but also helps Nations obtain resources to more closely align with cybersecurity standards, such as the Cybersecurity Maturity Model or the Healthcare 405(d) taskforce recommendations. This approach fosters a more inclusive and secure digital future for Tribal Nations. Overall, the Executive Order signifies a substantial move toward reforming federal funding and support, with the hope that this will strengthen the relationship between the federal government and Tribal nations while respecting and promoting Tribal sovereignty.

If you have questions about the cybersecurity and privacy issues unique to Indian Country, please contact partner <a href="https://www.bakerlaw.com/professionals/kimberly-c-gordy/" target="_blank" rel="noreferrer noopener">Kimi Gordy</a>.

Houston

Seattle

Partner

Kimberly C. Gordy

New York

Associate

Carolina A. Alonso

Jiwon (Jamie) Kim

Review of the Executive Order on Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination