Today's Article
If the European has
taught the Red Man
anything, it
's that a
statement put on
paper rarely
matches reality.
The American Spark
Native American Tribes Still Sometimes Lack Say In Contracts With
Feds

By Cliff Montgomery - Jan. 31st 2019

For over 40 years, U.S. policy has officially declared that Native American tribes must be allowed to govern
themselves.

But if the European has consistently taught the Red Man anything, it’s that a statement put on paper rarely
matches reality.

A recently released study from the Government Accountability Office (GAO) has evaluated “issues related to
tribal self-government.”

More specifically, the GAO “report examines factors affecting tribes’ use of [the] self-determination contracts,
self-governance compacts, and tribal leasing authority” that they hold with the U.S. Department of Interior.

It’s an interesting little read.

Below, the
American Spark offers quotes from the “Highlights” page of the report:


Why GAO Did This Study

“For more than 4 decades, federal Indian policy has promoted tribal self-government—the practical exercise of
Indian tribes and nations’ inherent sovereign authority.

“Under ISDEAA [Indian Self-Determination and Education Assistance Act], federally recognized tribes may
request to enter into self-determination contracts and self-governance compacts with [the U.S. Department
of] Interior, transferring the administration of federal programs to the tribe.

“Under the HEARTH Act [Helping Expedite and Advance Responsible Tribal Home Ownership Act of 2012],
tribes may issue certain leases on their lands without Interior approval if such leases are executed under
approved tribal regulations.

“GAO was asked to evaluate issues related to tribal self-government. This report examines factors affecting
tribes’ use of self-determination contracts, self-governance compacts, and tribal leasing authority under the
HEARTH Act.”

What GAO Found

“GAO found that various factors can affect tribes’ use of self-determination contracts and self-governance
compacts under the Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA), as
amended, and tribal leasing under the Helping Expedite and Advance Responsible Tribal Home Ownership
Act of 2012 (HEARTH Act).

“A key factor that helps tribes use these self-governance mechanisms is tribal government capacity to
administer a federal program or manage these resources. Federal efforts that have helped build this capacity
have included training, such as that offered by the Bureau of Indian Affairs (BIA) in 2014 and 2015 to educate
tribes on the benefits of developing tribal leasing regulations under the HEARTH Act.

“In contrast, GAO found that other factors can hinder tribes’ use of these mechanisms including:

  • Inadequate Information Sharing- The Department of the Interior’s policy and guidance states that tribes
    should be provided necessary information to design programs they would like to self-administer, such as
    the amount of funding available to the tribes for the programs and the amount retained by Interior for
    inherently federal functions.

    However, according to several tribal stakeholders and some BIA regional officials GAO spoke to, some
    of this information is not made available to the tribes prior to self-determination contract negotiations,
    such as information on funding calculations and determinations of inherently federal functions. Without
    this information, according to a tribal stakeholder, tribes may be at a disadvantage when negotiating with
    BIA and designing programs for self-determination contracts.

  • Delays in Disbursing Funds - According to tribal stakeholders, Interior’s process does not ensure that
    funds associated with their self-determination contracts and self-governance compacts are disbursed in
    a timely manner. These funding delays can therefore be a factor that hinders their use of self-
    government mechanisms.

    Some tribal stakeholders said that disbursement delays have ranged from weeks to months. GAO was
    unable to determine the extent to which Interior disburses funds in accordance with ISDEAA or within
    agreed-upon time frames with the tribes, because Interior does not systematically track and monitor the
    disbursement of these funds.

  • Lengthy Review of Proposed Tribal Leasing Regulations - Interior does not have a clearly documented
    process for reviewing proposed tribal leasing regulations submitted under the HEARTH Act with
    identified time frames associated with each step of the process.

    As a result, tribal stakeholders told GAO that they are uncertain about how long the process will take
    and how it aligns with the 120 day requirement in the Act. According to tribal stakeholders and GAO’s
    analysis of proposed regulations submitted from 2012 through 2017, Interior’s review process has
    resulted in lengthy review times—in some cases, multiple years.

    Some tribal officials told GAO that Interior’s lengthy review process had delayed the tribe’s ability to
    make decisions about the use of their resources. By developing a clearly documented process that
    includes established time frames for each step in the review, Interior can help eliminate uncertainty and
    improve the transparency of the review process for the tribes.”

What GAO Recommends

“GAO is making four recommendations, including that Interior develop processes to share how it makes
funding and inherently federal function determinations with tribes, to track and monitor the disbursement of
funds within agreed upon time frames, and for the review of proposed tribal leasing regulations including
review time frames.

“Interior concurred with GAO’s recommendations.”



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