Bureau of Indian Affairs

BIA, through its 12 regional offices and more than 80 agency offices,  administers programs that provide services and funding to tribes. Some  of these factors, such as federal training and resources, can help tribes  develop the tribal capacity needed to take over administration of federal  programs and thereby facilitate tribes’ use of these mechanisms. In  contrast, other factors, specifically federal processes and actions, can  hinder or delay tribes’ use of these mechanisms. Tribal Capacity is a Key Factor That Can Facilitate Tribes’ Use of Self- Determination Contracts, Self-Governance Compacts, and Authority under the HEARTH Act

The capacity of a tribal government to administer a federal program or  manage its resources is a key factor that can affect a tribe’s decision to  enter into a self-determination contract or self-governance compact, or to  use the authority available under the HEARTH Act, according to some  reports we reviewed. In addition, BIA offered  several training sessions in 2014 and 2015 on the HEARTH Act to  educate tribes on the benefits of developing tribal leasing regulations. Factors That Can Hinder Tribes’ Use of Self- Determination Contracts, Self-Governance Compacts, and Authority under the HEARTH Act

We found that several factors can hinder tribes’ ability to use self- determination contracts, self-governance compacts, or leasing authorities  under the HEARTH Act, including: (1) BIA’s approach for sharing key  information with tribes seeking to develop a program using a self- determination contract, (2) Interior’s process to disburse funds to tribes  associated with self-determination contracts and self-governance  compacts, (3) Interior’s review of tribal leasing regulations submitted  under the HEARTH Act, and (4) BIA’s management and maintenance of  federal programs that tribes may pursue to take over under a self- determination contract. However, according  to several tribal stakeholders, they do not receive this information,  including calculations BIA uses to identify the amount of funds available  to tribes, prior to negotiating their self-determination contracts. A tribal  stakeholder told us that, in practice, the negotiation generally consists of  BIA informing the tribe of the amount of funds to request in its proposal  and what federal functions BIA will retain without any documentation to  support its determination of inherently federal functions or the resources  to be made available to the tribe to administer a program using a self- determination contract. Several tribal  stakeholders and federal officials we interviewed said that the process  does not ensure that tribes receive funds within the time frame specified  in ISDEAA’s Model Agreement for self-determination contracts or as  agreed to by Interior and the tribes in their annual funding agreements. We were unable to determine the extent to which Interior disburses funds  for self-determination contracts within the time frame agreed to in a self- determination contract because Interior does not systematically track the  disbursement of funds from the date it received its appropriations through  the date that it made funds available to tribes and does not compare its  actual performance to expected performance. Without establishing a  process for tracking and monitoring the disbursement of funds associated  with self-determination contracts and self-governance compacts, Interior  will not have reasonable assurance it disburses funds in a systematic way  or in accordance with agreed upon time frames. Interior’s Process for Reviewing Proposed Tribal Leasing Regulations

Interior has not clearly documented its process for reviewing proposed  tribal leasing regulations with timeframes associated with each step of the  process. Tribal stakeholders told us that  the lengthy review delayed the tribe’s ability to implement leasing  regulations and delayed the tribe’s ability to make decisions about the use  of tribal resources. This has resulted in lengthy review times—in some cases,  multiple years. By developing a clearly documented review process that  includes established time frames for each step in the process for  reviewing proposed tribal leasing regulations submitted under the  HEARTH Act, Interior can better ensure that it is eliminating uncertainty in  the process to approve tribal leasing regulations. We reviewed relevant laws and regulations including the Indian Self- Determination and Education Assistance Act of 1975 (ISDEAA), as  amended and Helping Expedite and Advance Responsible Tribal Home  Ownership Act of 2012 (HEARTH Act). To assess the reliability of the data, we consulted with  Interior’s Office of Self Governance officials and tribal stakeholders and  compared information provided to us from Interior with information  obtained from the Tribal Self-Governance Communication and Education  Consortium.
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.

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.

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.