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Cultural Sovereignty in Practice: Recognizing the Right to Wear Regalia at Graduation

kssatter — Thu, 01 May 2025 22:41:53 +0000

Cultural Sovereignty in Practice: Recognizing the Right to Wear Regalia at Graduation

kssatter May 1, 2025

AIPI Blog

Cultural Sovereignty in Practice: Recognizing the Right to Wear Regalia at Graduation

Across the country, American Indian, Alaska Native, and Native Hawaiian students, citizens of sovereign Tribal Nations, are reaching an incredible milestone: graduation. For many, this moment is marked not only by receiving a diploma, but through wearing items of deep personal and cultural significance, such as eagle feathers, beaded caps, or traditional clothing. Tribal regalia is not only a meaningful expression of culture and community, it is also a reflection of constitutionally and federally protected rights. In fact, research shows that when schools and colleges support cultural practices like these, students feel more connected and confident, which can lead to stronger academic success and persistence (Philpot, 2024; Guillory & Wolverton, 2008).

Despite legal protections and academic research, some students still face obstacles when seeking to wear their regalia at graduation. To mitigate these challenges, this resource outlines the legal and policy foundations that support the right to wear tribally affiliated regalia during commencement ceremonies. Furthermore, this document is designed to assist students, families, school personnel, and policymakers in understanding the constitutional and statutory protections that underlie these rights to honor who Tribal students are and where they come from.

Legal and Policy Protections

First Amendment of the U.S. Constitution: The First Amendment guarantees the right to free speech and expression, including cultural and religious significance expressions. Courts have consistently held that students do not lose these rights when they enter school grounds, provided that their expression does not cause substantial disruption. Tribal regalia, including items such as feathers or stoles, can be protected as expressions of personal, cultural, or spiritual identity under this constitutional provision.
American Indian Religious Freedom Act of 1978 (AIRFA): AIRFA affirms the rights of American Indian individuals to access and practice traditional religious customs, including the wearing of culturally significant items. In educational contexts, denying students the ability to wear such items may interfere with the free exercise of these rights.
State-Level Legislation: Several states have enacted laws that explicitly affirm the right of students from federally recognized Tribes to wear traditional regalia at graduation ceremonies. This includes Arizona (A.R.S. § 15-129), and 20 other states. These laws often arose through collaboration between Tribal governments and state legislatures and provide clear precedents that can inform future policymaking.
Every Student Succeeds Act (ESSA): ESSA includes provisions that require meaningful consultation between educational agencies and Tribal governments when designing education policies and programs. Though not specifically focused on commencement attire, this requirement reinforces the need for school systems to engage with Tribal communities on matters that affect their students' experiences, including culturally appropriate representation in school-sponsored events.

Resources for Education Institutions and Stakeholders

For K–12 and Postsecondary Institutions
Schools play a vital role in supporting students' rights under both federal and state law. The following measures can ensure compliance and respect for cultural expression:

Review and Update Dress Code Policies: Institutions should examine graduation attire policies to ensure they do not inadvertently restrict constitutionally or statutorily protected expression.
Collaborate with Tribal Governments: Consultation with Tribal education departments and legal representatives can help clarify policies and prevent potential conflicts.
Educate Administrators and Faculty: Training and professional development can enhance understanding of the legal and cultural importance of regalia, reducing the risk of misinterpretation or bias.

For Students and Families

Understand Your Rights: Become familiar with your school’s policies and applicable state and federal protections. Proactively engage with school administrators early in the academic year or semester.
Exercise Your Rights: When seeking permission to wear cultural items at graduation, it’s important to maintain a written record of your request. Review sample letters and guidance provided by organizations such as the American Civil Liberties Union (ACLU) and the Arizona Department of Education’s Office of Indian Education (ADE-OIE, p. 31).
Seek Legal Guidance if Necessary: If your right to wear regalia is denied, organizations such as the ACLU, Native American Rights Fund (NARF), or your Tribal education department may offer resources or legal support.

For Tribal Governments and Education Departments

Monitor and Support Local Policies: Work collaboratively with local education agencies to ensure that graduation dress code policies are aligned with constitutional rights and Tribal input.
Support State-Level Advocacy: In states without protective legislation, Tribes can encourage policymakers to adopt laws that recognize and protect students’ cultural expression during graduation.

Wearing tribal regalia at graduation is more than a personal choice, it is an exercise of constitutionally and federally protected rights. As students, families, school officials, and policymakers navigate questions of attire at public ceremonies, it is essential to recognize that such expressions are not merely symbolic, they reflect long-standing traditions, legal protections, and the government-to-government relationship between the United States and Tribal Nations.

By grounding decisions in constitutional principles, federal statutes, and established state policy, institutions can ensure that all students are able to celebrate this milestone with dignity, respect, and pride.

Recommended Legal and Policy Resources

ACLU – Know Your Rights: Tribal Regalia
https://www.aclu.org/news/civil-liberties/know-your-rights-tribal-regalia
Arizona Department of Education – Graduation Regalia Toolkit
Graduation Regalia Toolkit on Canva
Native American Rights Fund – Graduation Regalia Resources
https://narf.org/wordpress/wp-content/uploads/2024/04/graduation-flyer.pdf
Policy Corner Blog, Center for Indian Education & American Indian Policy Institute
https://center-for-indian-education.asu.edu/policycornerblog

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May 1, 2025

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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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The Journey of American Indian Education: A Five-Year Review of American Indian Education Laws, Policies and Initiatives

tlmorri3 — Thu, 19 Sep 2024 17:49:52 +0000

The Journey of American Indian Education: A Five-Year Review of American Indian Education Laws, Policies and Initiatives

tlmorri3 Thu, 09/19/2024 - 10:49

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The Journey of American Indian Education: A Five-Year Review of American Indian Education Laws, Policies and Initiatives

In addition to showcasing the shared commitment to Indian education through the CIE-AIPI

collaboration, this document aims to establish a foundational overview for content featured in

the CIE Policy Corner blog by examining the current landscape of Indian education. T o fully

absorb the content within this document and future publications, it is essential to understand

four key elements: First, this document defines the “current” state of education as the past five

years (2019-2024), a period that encompasses significant shifts in Indian education both pre-

and post-pandemic, offering a contemporary perspective on the field. Second, the terms

Indigenous, Native American, and American Indian are used interchangeably. It is vital to

acknowledge and respect that preferences may vary by individual or community and usage of

specific terms should be context-sensitive, acknowledging historical and cultural nuances. Third,

this document is designed to offer an informative overview of the past five years, recognizing

that some aspects may be omitted, with the intention of highlighting notable advancements and

their alignment with historical documents that underscore the federal and local governments’

obligations to effectively serve Indigenous students. Finally, Indian education is examined within

a K-16 framework, encompassing both the K-12 sy

AIPI-CIE 5 Year Education Policy Review 9.18.24

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September 19, 2024

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At the intersection of Law & Policy in Indian Education

tlmorri3 — Tue, 23 Jul 2024 20:12:06 +0000

At the intersection of Law & Policy in Indian Education

tlmorri3 July 23, 2024

AIPI Blog

At the intersection of Law & Policy in Indian Education

Intro

In the governance and regulation of society, law and policy play distinct yet essential roles. While both maintain order and guide behavior, they function differently and serve unique purposes. This document provides an overview of law and policy as they relate to education. Specifically, in the context of Indian Education, this document aims to help educators understand the relationship between education law and policy to support the success of Native American students.

General Law & Policy

A basic understanding of law and policy is vital to understanding how classrooms are impacted. Law is a system of rules that are created by legislative bodies. In the United States, laws can be created by a variety of governmental institutions (Federal, State, Local and Tribal). Use the table below to unpack each level of government and grasp an understanding of their respective governing bodies in addition to the specific audience they serve.

Governmental Institution	Legislative Bodies	Constituents (Audience Served)
Federal	President and Congress (Senate and House of Representatives)	Entire United States population
Tribal	Tribal Council, Tribal Chairperson and Tribal Courts	Members of the respective Native American Tribes
State	Governor and State Legislature (Senate, House/Assembly)	Residents of the respective state
Local	Mayor, City Council, and Local Courts	Residents of cities, towns, and counties within the state

Note: Tribal governments are structured with several tiers of governance similar to the United States. For the purpose of this table, “Tribal Level” includes all branches of Tribal government.

Whether laws are created federally, tribally or locally, they are generally created through a formal legislative process which aims to maintain order, protect rights and property, and deliver justice. Laws have binding legal force and breaking laws can lead to a variety of consequences that include but are not limited to fines, imprisonment or community service.

On the other hand, policies directly influence how laws are implemented and enforced. Policies are the guidelines or principles that inform, shape decision-making and guide behavior to uphold laws within governing entities. Similar to laws, policies can be developed by various levels of government and organizational leaders. In addition to the legislative bodies identified above, the graphic below provides specific examples of policy-creating entities in relation to their governing bodies.

Note: This table does not include all governing bodies/institutions and organizations, this is merely a snapshot to provide a general overview and specific examples.

Policies are crucial to addressing specific community needs and ultimately allow entities to adapt to changing circumstances and priorities for the efficiency, success and sustainability of their respective communities. The next section of this document explores how law and policy work in relation to one another to influence classrooms.

Educational Law & Policy

The relationship between law and policy in education is one of structure, guidance or dominance. Laws specific to education provide the foundational legal framework for academic institutions, and policies guide the implementation of these laws and address specific community needs. For example, the Every Student Succeeds Act (ESSA) which was signed into law in 2015, provides a comprehensive legal framework for various levels of governmental entities and organizations to work together to improve educational outcomes for all students. Government entities (federal, tribal, state and local) are responsible for creating policies that uphold ESSA requirements. Implementing policies to meet ESSA's needs ensures compliance with the law. It is through compliance and implementation that the application of legislation is seen within classrooms. In short, distinguishing between the legal framework provided by ESSA and the policies developed to implement it helps create an understanding of the complex landscape of education.

Furthermore, it is vital to understand that states establish their own educational policies, standards and curricula, while the federal government provides supplementary support through funding and regulations. Often the separation between federal and state education jurisdictions comes down to funding. Federal education policy influences state education policy by attaching conditions to federal funding, thereby encouraging states to adopt certain standards and practices.

The graphic below outlines the collaborative approach mandated by ESSA to integrate Native American history into curricula. Review the graphic to understand how a provision of ESSA requires collaboration between federal, tribal, state, and local levels to ensure the legal frameworks and policies are effectively implemented to address the educational needs of Indigenous students.

As demonstrated by the graphic, the provision to incorporate Native American history in K-12 classrooms exemplifies the movement from law to practice in educational environments. Continually, the interplay between law and policy in education is essential for creating a cohesive and effective educational system.

Conclusion

In the context of education, it is crucial for all individuals serving Indigenous students to understand that law and policy exist in relation to one another rather than independently. An understanding of this relationship is essential for educators trying to navigate academic environments. Through understanding governmental institutions and their role within the larger academic system, educators can ensure their compliance with laws and policies to close educational achievement gaps and cultivate classrooms that guarantee legal protections and educational objectives are upheld. This synergy helps to preserve Native American cultural heritage while also striving to promote academic success among Native American students and their respective communities.

Click the links below to continue exploring the relationship between law, policy and education, particularly in the context of Indian education:

U.S. Department of Education | ESSA Overview
- The U.S. Department of Education provides comprehensive resources and updates on the Every Student Succeeds Act (ESSA). Educators can explore detailed information about the law, its requirements and implementation guidelines.
U.S. Department of the Interior | Bureau of Indian Education (BIE)
- The BIE oversees a network of schools and educational programs for Native American students. The website provides information on laws, policies and regulations that guide the education of Native American students, as well as resources for educators and administrators.
National Organization(s) Report | "Becoming Visible"
- Through a collaboration between the National Congress of American Indians (NCAI) and the National Indian Education Association (NIEA) the 2019 report provides a comprehensive analysis of state efforts to integrate Native American education into K-12 curricula. The report offers an understanding of the complex educational landscape and includes an in-depth look at the multi-layered academic system.

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July 23, 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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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.

Printable copy here.

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March 13, 2024

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Policy Explainer: Supreme Court Term 2022: Highly Consequential For Principles Of Tribal Sovereignty

bsantist — Thu, 03 Aug 2023 21:17:35 +0000

Policy Explainer: Supreme Court Term 2022: Highly Consequential For Principles Of Tribal Sovereignty

bsantist Thu, 08/03/2023 - 14:17

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Policy Explainer: Supreme Court Term 2022: Highly Consequential For Principles Of Tribal Sovereignty

AIPI policy explainers present our expert understanding of key and current Indigenous rights issues by distilling expansive and complex policy information into clear and accessible materials that focus on the most critical and relevant subject matter.

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August 3, 2023

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The Affordable Connectivity Program: Sustaining Individuals and Tribal Networks

bsantist — Mon, 26 Jun 2023 22:32:55 +0000

The Affordable Connectivity Program: Sustaining Individuals and Tribal Networks

bsantist June 26, 2023

AIPI Blog

The Affordable Connectivity Program: Sustaining Individuals and Tribal Networks

The Affordable Connectivity Program (ACP) created in 2021 through the Infrastructure Investment and Jobs Act, assists qualifying households with their monthly internet bills. Families can qualify for the ACP through various methods like income or participation in programs like supplemental nutrition assistance programs or free and reduced-price school lunch programs. The ACP offers a $30 monthly subsidy for those who qualify as well as a $75 monthly subsidy for households on Tribal Lands. The ACP also provides up to a $100 discount towards a laptop, tablet, or desktop computer from participating internet providers. This program has the potential to be a safety net program upon continued funding. And in Indian Country, a safety net not only for households but for Tribal networks.

The ACP has become a pivotal part of closing the digital divide for people nationwide. Broadband may be available in many areas, but affordability can be the most significant barrier to accessing it. This is especially true for rural Tribal community members that pay more to access broadband when it is available. However, most often, the case is that Tribal communities as a whole do not have access to reliable broadband internet. The enormous cost and complicated administrative process often prevent traditional Internet Service Providers (ISP) from building to Tribal communities because there would not be enough subscribers from Tribal communities to offset costs.

The COVID-19 pandemic highlighted the glaring need for internet access for Tribal communities. In response, Congress established new funding programs to expand internet access, such as the Tribal Broadband Connectivity Program. These programs are a meaningful first step to enabling Tribal Nations to bring internet access to their communities as is evidenced by networks that Tribes have implemented because of the 2.5 GHz Rural Tribal Window. These programs provide funding for Tribes to build their own broadband infrastructure. Unfortunately, they do not have much consideration for the sustainability of these new networks. Interestingly, The ACP is becoming a key component in the sustainability of these new Tribal networks.

Through ACP Tribal networks can offer broadband service to community members who otherwise would not have connectivity. However, ACP not only connects a household to broadband internet, it also provides a subscriber that contributes to the Network’s sustainability. Here’s a few examples of how that works. Mikhail Sundust, Executive Director of Digital Connect, explains, “ACP is vital to improving broadband access on tribal lands. The continuation of ACP beyond its current federal funding allocation is crucial not only to help Tribal members get connected and stay connected, but it is also important because it can help smaller, tribally owned ISPs that are working to get up and running and seek sustainability.” Matthew Douglas, Broadband Manager for Acorn Wireless, estimates that 90% of his customers qualify for ACP, making it a critical resource for sustaining the network. The ACP was originally intended to help households afford their internet subscriptions, but we are now seeing that it plays a critical role in sustaining new Tribal networks.

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June 26, 2023

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