Farm Bill Blog Series (Part 5 of 5)

The Farm Bill of 2023 provides a new opportunity to extend the authority of the Indian Self-Determination and Educational Assistance Act of 1975 (ISDEAA) (PL 93-638) to many other sources of funding federal and tribal governments.

Tribal self-governance

The ISDEAA has authorized Tribal Administration of Programs, Functions, Services and Activities (PFSA) funded by the Indian Health Service (IHS) and the Bureau of Indian Affairs (BIA) through what is known as of PL 93-638 Contracting and Compact Authority (638 Authority). Recognizing that the 638 Authority has proven to be the most cost effective and efficient approach to delivering federally funded programs and services in Indian Country for decades, Congress has extended the 638 Authority to US Department of Housing and Urban Development (HUD), US Department of Transportation (DOT), US Department of Labor (DOL), and US Department of Agriculture (USDA).

Extension of Tribal Self-Determination and Self-Government in the 2018 Farm Bill

More recently, Congress used the 2018 Farm Bill to extend a limited form of 638 authority to the USDA Food Distribution Program on Indian Reservations (FDPIR) and the U.S. Forest Service (USFS) for activities covered by the Tribal Forest Protection Act (TFPA).

FDPIR 638 authority has authorized the USDA to enter into a limited number of multi-year contracts with tribal governments for the purchase of domestically grown and produced meat, fish, grains, and fresh produce and distributed through FDPIR tribal programs. The initiative aims to strengthen regional tribal food economies by incorporating the purchase of traditional and culturally relevant Native American and Alaska Native foods from USDA-licensed tribal farmers and producers. Under this initiative, the USDA has awarded $3.5 million to eight tribal governments across the United States to design and implement demonstration projects that give tribes more control over sourcing decisions. food taken for their FDPIR programs.

TFPA 638 forestry-related authority allows USFS to enter into agreements with tribal governments to conduct projects on USFS lands that reduce the threat of fire, insects, and disease affecting the land and adjacent tribal resources. To assist tribal governments in utilizing this TFPA 638 authority with the USFS for activities under the TFPA, the USFS – in partnership with the Intertribal Timber Council (ITC) – has developed a draft Best Practices Guide for executing a USDA Forest Service 638 agreement under the TFPA and shared questions and answers associated with the latest webinar hosted by the USFS on the Authority.

Opportunities to Expand Tribal Authority for Self-Determination and Self-Governance in the 2023 Farm Bill

The 2023 Farm Bill presents a variety of new opportunities to build on the foundation laid in Congress and by the executive branch in the 2018 Farm Bill. Here are some ideas that Indian Country might consider championing:

• Make the 638 FDPIR Authority permanent and extend it to all tribal governments administering the FDPIR. Almost all tribal governments running FDPIR programs have been barred from using the limited authority under the 2018 Farm Bill. Tribal governments are the best option to ensure that all tribal members have access to healthy food and culturally appropriate from the region. Congress should make the FDPIR 638 Authority permanent and open to any tribal government wishing to enter into an agreement with the USDA. Congress should also extend the application of this 638 authority to all aspects of program administration, including tribal discretion over how best to design, purchase, and distribute FDPIR food.




• Extension of authority 638 to Supplemental Nutrition Assistance Program (SNAP). With approximately 24% of all Indigenous households receiving SNAP benefits, tribal governments should be allowed to shape SNAP within the parameters of existing federal authorities to better meet the unique needs of Indian Country. Tribal governments are best placed to serve their food-insecure citizens and to tailor food assistance programs to the unique circumstances of their own communities. Tribal Administration offers the most efficient and cost-effective face-to-face communication, outreach, nutrition education, and food program services through a streamlined process.




• Extend USFS 638 authority to all projects located on USFS lands that are concurrent with or adjacent to Indian Country. The current USFS 638 authority has made major strides in protecting tribal lands from fires, pests, and other diseases that impact the growth and harvesting of traditional foods and medicines. However, the current authority is too narrow in scope to properly manage and protect tribal lands that are concurrent with or adjacent to USFS and Bureau of Land Management lands. By expanding 638 authority to all projects and activities on USFS lands on or near Indian Country, tribal governments could administer USFS visitor centers, manage timber harvesting , apply recreational activities, and perform other tasks associated with USFS lands in a more culturally relevant and cost-effective manner.




• The USFS 638 Authority should include a right to contract or compact all USFS PFSAs in Tribal Service Delivery Areas and on “former” Tribal lands. Current USFS 638 authority is limited, both as to the scope of the activity and the area in which that activity occurs – only on USFS lands that are contiguous with tribal trust lands. Many tribal governments provide services to their members through 638 contracts or covenants, even if they do not have land held in trust (e.g., tribal governments that maintain a service delivery area, own lands under royalty or restricted royalty status, exploit and maintain resources in traditional or surrendered lands, etc.). To ensure that tribal governments can use USFS 638 authority to the fullest extent possible, Congress must expand it to reflect the complexity of Indian land ownership and ensure that this authority includes the ability of a Tribal Government to enter into or enter into contracts for services on “old” lands and in current service delivery areas recognized by the IHS and BIA.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.