By Joe Sexton and Rachel Tobias
As part of this second Trump administration’s aggressive efforts to weave right-wing cultural and partisan political issues into every facet of federal governance, agency heads have announced new funding terms and conditions that attach sweeping new obligations to grant awards (including those for which Congress appropriated funding prior to this administration) meant to fund local infrastructure, homelessness initiatives, housing subsidies, and public transit. Tribal nations are not exempt from the impacts.
These new terms and conditions range from requiring grant recipients to certify they have purged their institutions of any diversity, equity, and inclusion (DEI) policies (without respect to whether or not such policies actually violate federal antidiscrimination laws), to mandating cooperation with immigration‑enforcement authorities[1], and affirming compliance with a selection of President Trump’s slate of politically motivated executive orders, which are unrelated to the underlying grant purposes.
The new conditions raise major risks for grantees, including Tribal nations, because agreeing contractually to such new and far-reaching terms and conditions may require radically altering governmental policies, harm minority groups those governments serve, and subject Tribal government officials to criminal liability if the administration decides they have not adequately complied with the terms.[2]
In King County v. Turner, a federal court has held that these new terms and conditions likely exceeded statutory authority and are arbitrary and capricious under the Administrative Procedure Act (APA), and has issued a preliminary injunction enjoining the federal government from making the grant funds contingent on the plaintiff grant recipients agreeing to the new terms and conditions.[3]
Because of the U.S. Supreme Court’s ruling in Trump v. CASA Inc., earlier this year, the injunction does not preclude the government from enforcing these terms and conditions on any local government that is not named as a Turner plaintiff.[4]
The list of federal agencies seeking to impose the new conditions on a vast array of grant recipients is growing. Tribal nations should understand that if a federal agency seeks to impose new conditions on a grant award or subaward—especially after the appropriation and without clear statutory authorization—there may be grounds to challenge such conditions in court like the plaintiffs in King County v. Turner.
The typical path is to bring an APA claim (or related constitutional claim) in federal court seeking a declaratory judgment and injunctive relief.
Simply put, the administration’s attempt to impose its own requirements on these grant funds violates not only the APA, but the U.S. Constitution’s separation of powers doctrine. Congress holds the power of the purse, not the Executive Branch.
Lawsuits similar to the Turner case are being filed around the country: a coalition of 17 domestic violence and homelessness‑service nonprofits recently secured a preliminary injunction in Rhode Island against grant conditions that would have required them to eliminate DEI initiatives.[5] And the Chicago Housing Authority is suing over new HUD‑imposed anti‑DEI conditions, arguing that only Congress may attach conditions to federal funds.[6]
For Tribal nations facing an effort by a federal agency to impose the new terms and conditions on an approved grant, you can consider seeking injunctive relief. The key first step is mapping whether your funding flows directly from the federal agency or through a subrecipient or pass‑through, and whether the new conditions are being applied to grant programs you participate in.[7]
If the conditions are being applied or you determine they are likely to be, seeking injunctive relief is an option even if you have not received a notice regarding the new conditions from the applicable agency. Even if you’re not currently a plaintiff in ongoing nationwide suits, you may have independent standing to challenge your own award’s conditions and potentially join or coordinate with broader coalitions.
The important takeaway is that the legal landscape is active: agencies are facing successful challenges, and Tribal nations should assess their grants proactively rather than assuming there is no recourse.
Joe Sexton is a partner at Galanda Broadman, whose practice focuses on complex civil litigation defending Indigenous rights and litigating tribal environmental and cultural resources disputes in federal, tribal, state, and administrative forums.
Rachel Tobias is of counsel at Galanda Broadman, supporting the firm’s tribal law and Indigenous rights practice. Rachel holds a JD from the University of New Mexico School of Law and an LL.M. in Fashion Law from Fordham University School of Law.
APPENDIX
