Indian Programs: Interior Should Address Factors Hindering Tribal Administration of Federal Programs
Indian tribes are sovereign nations with the authority to govern and protect their own citizens. However, we found several factors that prevent tribes from taking full advantage of that authority. For example:
When a tribe pursues a contract to administer certain federal programs, tribal leaders aren't given enough information to make a decision or negotiate the contract well.
When a tribe wants authority to approve land leasing agreements for economic development, lengthy federal reviews of tribes' leasing regulations can make them miss business opportunities.
We recommended ways to address these and the other factors we identified.
Federally Recognized Tribal Lands
This is a map showing tribal lands across the United States.
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 (Interior) 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.
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, federally recognized tribes may request to enter into self-determination contracts and self-governance compacts with Interior, transferring the administration of federal programs to the tribe. Under the HEARTH Act, 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. GAO reviewed key legislation and regulations, relevant literature, federal and tribal documents; analyzed agency data; and interviewed federal officials at 12 BIA regional offices, 29 tribes that used at least one of these mechanisms, and 7 tribal organizations.
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.
Recommendations for Executive Action
|Bureau of Indian Affairs||
Priority Rec.The Assistant Secretary of Indian Affairs should develop a process so that all regional and agency offices consistently provide tribes with documentation on calculations and methodologies to identify resources available to administer a program using a self-determination contract. (Recommendation 1)
In response to our recommendation, Interior updated its Indian Affairs Manual in February 2022 to direct BIA regions to provide tribes with documentation on BIA's calculations and methodologies to identify resources available for tribes to administer a program using a self-determination contract or self-governance compact. In particular, BIA regions are directed to provide this information to tribes within five business days of a tribe's notification of intent to contract or move to compact, so that the tribe will have access to the information necessary to negotiate appropriate funding levels with BIA prior to the negotiation. In doing so, Interior will have better assurance that tribes will receive consistent information on the resources available for tribal administration of certain federal programs, which could help address federal barriers to tribal self-governance.
|Bureau of Indian Affairs||The Assistant Secretary of Indian Affairs should develop a process that results in consistent determinations for inherently federal functions and to provide documentation to tribes on specific activities and functions determined to be inherently federal. (Recommendation 2)||
In December 2019, the Secretary of Interior issued a Secretarial Order asking the Office of the Solicitor to develop a list of contractible functions and activities for Indian oil and gas activities--and a list of "inherently federal functions" that are not available. In February 2020, the Office of Solicitor completed its review of the functions and developed a list of inherently federal functions and a list of federal functions and activities for Indian oil and gas activities that are contractible. In April 2021, Indian Affairs and Bureau of Indian Affairs officials said they would study developing a process that would result in consistent determinations for inherently federal functions for other federal functions and activities. In August, 2021, Indian Affairs officials said that they do not have a list of inherently federal functions beyond the oil and gas activities, nor an oversight process that reviews awarding officials' determinations for inherently federal functions for consistency across BIA. Indian Affairs officials said that awarding officials' determinations on inherently federal functions should be consistent due to their training and said that they would provide a copy of this training to us. As of July, 2022, we have not yet received documentation of Interior's training materials or guidance outlining the steps Interior takes to ensure that awarding officials' determinations are consistent across regions. We will continue to monitor Interior's implementation of this recommendation.
|Bureau of Indian Affairs||The Assistant Secretary of Indian Affairs should establish a process to track and monitor the disbursement of funds associated with self-determination contracts and self-governance compacts. (Recommendation 3)||
In response to our recommendation to improve its ability to track and monitor the disbursement of funds, Indian Affairs developed a manual for distribution of resources (26 IAM 3 - Distribution of Resources). The manual provides guidance to all Indian Affairs staff on fund distribution processes, including standard timelines for fund processing. Indian Affairs also developed individual templates for each type of fund distributed to tribes. These documents provide descriptive information on the types of funds and standard distribution timeframes for headquarters, regional, and agency offices to follow. According to Indian Affairs officials, the manual and templates should lead to improved efficiency and timeliness in distribution of funds to tribes. In addition, Indian Affairs developed a series of computer dashboard reports that provide insight into the status of funding and budget obligations. The dashboards are updated daily from the Indian Affairs' accounting system. Managers at the headquarters and regional level can view whether program funds have been obligated by program and by tribal fund center--funds provided to tribes for programs they have contracted. According to officials, Indian Affairs' Office of Budget and Performance Management holds quarterly budget reviews with Bureau of Indian Affairs regional offices and reviews whether funds have been obligated. Indian Affairs reported that in fiscal year 2021 it will conduct an analysis of the timeliness of distribution of funds by comparing distribution to the timelines estimated in the templates for each program.
|Bureau of Indian Affairs||The Assistant Secretary of Indian Affairs should coordinate with the Office of Solicitor and BIA to develop a clearly documented process with established time frames for each step in the process for reviewing proposed tribal leasing regulations submitted under the HEARTH Act. (Recommendation 4)||
BIA, in coordination with the Office of the Solicitor, developed and published a process for reviewing proposed tribal leasing regulations--Part 52 Indian Affairs Manual (IAM) Chapter 13, Approval of Tribal Leasing Regulations under the HEARTH Act. The steps in the review process and updated flowchart include timeframes. In total, a decision (approve or disapprove) must be made by the Secretary of Interior no later than 120 days after the tribal leasing regulations were initially received.