Indian Issues: Federal Funding for Non-Federally Recognized Tribes
Released: 2012-05-09T00:00:00

Letter

Background

Federally recognized tribes have a government-to-government relationship with the United States and are eligible to receive certain protections, services, and benefits by virtue of their unique status as Indian tribes. Federal Indian policy—which has undergone significant changes since the end of the colonial era—has influenced how the federal government has recognized and currently recognizes tribes:

Treaty, reservations, and removal era. During this period, the federal government entered into treaties with Indian tribes to, for example, establish peace, fix land boundaries, and establish reservations. For some federally recognized Indian tribes, treaties provided the basis for subsequent actions that established their recognition.

Assimilation era. The Act of February 8, 1887, commonly referred to as the General Allotment Act or the Dawes Act, was a comprehensive congressional attempt to change the role of Indians in American society by encouraging assimilation through individual land ownership. Under this policy, tribes surrendered tribally owned land for individual allotments of land and, in some cases, surplus land was sold to white settlers. As a result of this policy, the total amount of tribal land in the United States was reduced by about 90 million acres.

Indian Reorganization Act of 1934. In the 1930s and 1940s, federal Indian policies generally reflected a shift away from assimilation policies toward increased tolerance and respect for traditional aspects of Indian culture. The Indian Reorganization Act of 1934 encouraged economic development, self-determination, cultural pluralism, and the Specifically, the act permitted tribes to adopt revival of tribalism. constitutions and organize into federally recognized Indian tribes, including tribes without a common linguistic, cultural, or political heritage that lived together on one reservation.

Act of June 18, 1934, ch. 576, 48 Stat. 984 (1934) (known as the Indian Reorganization Act or Wheeler-Howard Act).

Termination era. On August 1, 1953, Congress adopted House Concurrent Resolution 108, which established a policy of making Indians “subject to the same laws and entitled to the same privileges and responsibilities” that apply to other citizens and declared that Indian tribes and their members “should be freed from Federal supervision and control.” Subsequently, in the 1950s and 1960s, the federal government terminated its government-to-government relationships with a number of tribes. Congress has since restored government-to-government relationships with 38 tribes that were terminated during the termination era (see app. II for more information about terminated and restored tribes).

Self-determination era. Since the 1970s, the federal government has adopted policies to promote the practical exercise of tribes’ inherent sovereign powers, including fostering economic development of Indian land and encouraging self-determination of Indian affairs. For example, the Indian Self-Determination and Education Assistance Act of 1975 enables federally recognized Indian tribes to administer certain federal programs for Indians, which were previously administered by the federal government on their behalf.

In 1977, the American Indian Policy Review Commission reported that “he distinction the Department of the Interior draws between the status of recognized and unrecognized tribes seems to be based merely on precedent—whether at some point in a tribe’s history it established a formal political relationship with the Government of the United States.” The commission identified 133 non-federally recognized tribes. At that time, no administrative process was in place for these non-federally recognized tribes to seek federal recognition. In 1978, Interior established an administrative acknowledgment process by which Indian groups could submit a petition to seek federal recognition.

Interior maintains a list of entities that have submitted a letter of intent to petition for federal recognition or have initiated the administrative acknowledgment process by submitting a complete petition. This list includes at least 350 entities, according to Interior’s Office of Federal Acknowledgment. The process of developing a complete petition is expensive and may take years. Consequently, as we reported in November 2001, and as of April 2011, most of these entities have not yet submitted a complete petition. information on seven criteria established in the regulations governing Interior’s administrative acknowledgment process. For example, the entity must submit evidence that it has been identified as an American Indian entity on a substantially continuous basis since 1900 and that it has maintained political influence or authority over its members as an autonomous entity from historic times until the present.

GAO, Indian Issues: Improvements Needed in Tribal Recognition Process, GAO-02-49 (Washington, D.C.: Nov. 2, 2001). making it the 566th federally recognized Indian tribe. Non-federally recognized tribes can generally seek federal recognition through Interior’s administrative acknowledgment process or through other means, such as congressional action. For example, the Lumbee Tribe of North Carolina— which was the subject of legislation but not federally recognized in 1956—petitioned Interior for recognition and has also sought recognition through legislation. As of April 29, 2011, 17 entities had been granted federal recognition through Interior’s administrative acknowledgment process, and 32 had been denied. Federal recognition of the Shinnecock Indian Nation in New York—the tribe most recently recognized through Interior’s administrative acknowledgment process— became effective on October 1, 2010.

Non-Federally Recognized Tribes

No official list of non-federally recognized tribes similar to BIA’s list of federally recognized Indian tribes exists. Non-federally recognized tribes fall into two distinct categories: (1) state-recognized tribes that are not also federally recognized and (2) other groups that self-identify as Indian tribes but are neither federally nor state recognized.

Twelve state governments officially recognize one or more non-federally recognized tribes within their borders, according to state officials we spoke with. Each state government determines which groups in the state, if any, should be recognized. Some of these 12 states—such as North Carolina and South Carolina—have formalized their procedures for recognizing tribes, while other states—such as Massachusetts—have not. For example, North Carolina’s Commission of Indian Affairs and South Carolina’s Commission for Minority Affairs have promulgated regulations outlining the process for entities seeking recognition in those states. Furthermore, some states have established state reservations that are not also federal Indian reservations. No federal agency maintains a list of state-recognized tribes and their reservations, but the U.S. Census Bureau collected information about state-recognized tribes as part of its effort to designate American Indian Areas for the Decennial Census of 2010. The U.S. Census Bureau considers an Indian tribe to be state recognized if it is specifically recognized by a state government through treaty (with, for example, 1 of the original 13 colonial assemblies), state legislation, or other formal process. (See app. III for a list of state- recognized tribes that are not federally recognized and more detailed information about how we compiled this list.)

In some instances, representatives of state governments have acknowledged the existence of a tribe or its members in the state, but the state has not officially recognized the tribe. Forms of acknowledgment may include a governor’s proclamation or legislative resolution. For example, in March 2009 the Texas Senate and House of Representatives each adopted a simple resolution (voted on only by the house in which it was introduced and not sent to the Governor to sign) to commend and recognize the Lipan Apache Tribe of Texas. The resolution stated that the tribe is the present-day incarnation of the clans, bands, and divisions historically known as the Lipan Apaches, who have lived in Texas and Northern Mexico for 300 years. According to Texas officials, such simple resolutions do not go beyond the bounds and the authority of the house that acts on it and do not officially establish any group as a state- recognized tribe. In another example, the California Native American Heritage Commission maintains a list of organized tribal governments in that state—including both federally recognized Indian tribes and non- federally recognized tribes. Despite acknowledging these organized tribal governments and requiring cities and counties to consult with them under certain circumstances, California does not have a process for officially recognizing non-federally recognized tribes, according to a state official we spoke with.

A number of other groups self-identifying as Indian tribes are not federally or state recognized. These include groups in each of the following categories: groups self-identifying as Indian tribes that have initiated but not yet completed Interior’s administrative acknowledgment process, groups self-identifying as Indian tribes that have been denied federal recognition through Interior’s administrative acknowledgment process, Indian tribes whose status as a federally recognized Indian tribe was terminated by the federal government and has not been restored, and other entities that self-identify as Indian tribes.

The Single Audit Act’s Financial Reporting Requirements

The purpose of the Single Audit Act of 1984, as amended, was, among other things, to promote sound financial management, including effective internal controls, with respect to federal awards administered by nonfederal entities. Under the act, certain nonfederal entities—such as a state, local government, Indian tribe, or nonprofit organization—that expend $500,000 or more in federal awards in a fiscal year must have an audit conducted in accordance with Office of Management and Budget (OMB) Circular No. A-133 and submit a report regarding the audit to the Federal Audit Clearinghouse Single Audit Database. OMB Circular No. A-133 sets forth standards for obtaining consistency and uniformity among federal agencies for the audit of nonfederal entities expending federal awards. Audits of nonfederal entities’ financial statements and schedule of expenditures of federal awards must be conducted by an independent auditor in accordance with generally accepted government auditing standards. The report on the audit provides information about the nonfederal entity, its federal programs, and the results of the audit.

Audits are to be completed and the requisite report submitted within the earlier of 30 days after receipt of the auditor’s report or 9 months after the end of the audit period. The federal agency that provides an award directly to the recipient (known as the federal awarding agency) is generally responsible for ensuring that audits for the federal awards it makes are completed and reports are received in a timely manner and in accordance with OMB Circular No. A-133. In cases of continued inability or unwillingness to have an audit conducted, OMB Circular No. A-133 directs federal agencies to take appropriate actions using sanctions such as: withholding a percentage of federal awards until the audit is withholding or disallowing overhead costs, suspending federal awards until the audit is conducted, or terminating the federal award.

Most Non-Federally Recognized Tribes That Received Federal Funding Were Eligible as Nonprofit Organizations or State-Recognized Tribes

Of the list of about 400 non-federally recognized tribes that we compiled, we identified 26 that received federal funding for fiscal years 2007 through 2010. Most of the 26 non-federally recognized tribes were eligible for these funds because of their status as a nonprofit or state-recognized tribe (24 out of 26). Most of the 24 federal programs that provided this funding were authorized to fund either nonprofits or state-recognized tribes (18 out of 24). Other non-federally recognized tribes that received funding but were not nonprofits or state-recognized tribes were awarded funding through programs that had authority to fund other types of entities.

For Fiscal Years 2007 through 2010, 26 Non- Federally Recognized Tribes Received Federal Funding

Out of the approximately 400 non-federally recognized tribes that we identified, we determined that 26 non-federally recognized tribes had received federal funding for fiscal years 2007 through 2010. Twenty-four of these 26 non-federally recognized tribes were organized as nonprofit organizations (see table 1). As nonprofits, these 24 non-federally recognized tribes would be eligible to receive federal funding from any program authorized to fund nonprofits. As we have reported in the past, the federal government is increasingly partnering with nonprofit organizations because nonprofits bring many strengths, such as flexibility to respond to needs and access to those needing services, and in fiscal year 2006, about 700 federal programs provided funding for nonprofits. In addition, we found that 14 of the 26 non-federally recognized tribes that received funding over the 4-year period were state-recognized tribes and would be eligible to receive funding from programs specifically authorized to fund state-recognized tribes. (See app. IV for information about the nonprofit and state-recognition status of non-federally recognized tribes we identified as having received federal funding before fiscal year 2007.)

Of the 26 non-federally recognized tribes that received federal funding over the 4-year period, 2—Eel River Tribe of Indiana and the Powhatan Renape Nation—were neither nonprofits nor state-recognized tribes at any time in fiscal years 2007 through 2010. Federal grants awarded to these two entities are described later in this report.

As of April 29, 2011, at least 24 of the 26 non-federally recognized tribes have pursued, or expressed an interest in pursuing, federal recognition through Interior’s administrative acknowledgment process. Of these 24 entities, 13 have submitted letters of intent to petition for federal recognition and have advanced no further in the process, 5 have been denied, 2 have received federal recognition, 1 had a proposed negative finding published in December 1994, 1 has been under active consideration since November 2010, 1 was deemed ineligible to apply through the administrative acknowledgment process, and 1 requested that its petition be placed on hold.

For Fiscal Years 2007 through 2010, 24 Federal Programs Provided Funding to Non-Federally Recognized Tribes

We identified 24 federal programs that provided funding to the 26 non- federally recognized tribes for fiscal years 2007 through 2010. Specifically, of the 24 programs we identified, 11 programs were authorized to fund nonprofits, 6 had explicit statutory or regulatory authority to fund state-recognized tribes, 1 had authority to fund tribes located on state reservations, and 1 was authorized to fund state- recognized tribes on state reservations. See table 2 for information on the 24 programs, including their assigned number from the Catalog of Federal Domestic Assistance (CFDA). This catalog is administered by the General Services Administration, and it provides information on federal domestic assistance programs, including grant programs. (See also app. V for a list of all federal programs with explicit statutory or regulatory authority to fund state-recognized tribes.) Some of these 24 programs were also authorized to fund other eligible entities, and in some cases non-federally recognized tribes could have received funding if they met the eligibility requirements for the other entities.

Examples of the 24 federal programs that awarded funding to non- federally recognized tribes in the 4-year period and that are authorized to fund nonprofit organizations that meet all applicable eligibility requirements include the following: the Rural Business Enterprise Grants program, administered by the Department of Agriculture, which has statutory authority to fund public bodies, including Indian tribes on state reservations, and private nonprofit corporations for measures designed to finance and facilitate development of small and emerging private business enterprises, among other measures; the Job Opportunities for Low-Income Individuals program, administered by the Department of Health and Human Services (HHS), which has statutory authority to enter into agreements with nonprofits for the purpose of conducting projects that provide technical and financial assistance to private employers that assist them in creating jobs for low-income individuals; and the Retired and Senior Volunteer Program, administered by the Corporation for National and Community Service, which has statutory authority to make grants to or contract with nonprofits to support programs for certain volunteer service projects for senior citizens.

Six of the 24 programs were not authorized to fund either nonprofits or state-recognized tribes, but non-federally recognized tribes received funding under these programs for other reasons. For example, the Department of Housing and Urban Development’s (HUD) Economic Development Initiative-Special Project program awarded funding to the Shinnecock Indian Nation as a result of congressional direction in a committee report accompanying an appropriations act before the tribe was federally recognized. In another example, the Environmental Protection Agency awards environmental justice grants pursuant to research and development provisions in various statutes, such as the Clean Water Act and the Solid Waste Disposal Act, and some of these statutes authorize broad categories of recipients, such as institutions and organizations. In addition, the Department of Education’s (Education) Small, Rural School Achievement Program can provide grants to entities as local education agencies, and the Haliwa-Saponi Indian Tribe of North Carolina received a grant because it is so organized.

The other three programs that were not authorized to provide funding to nonprofits or state-recognized tribes were authorized to provide funding to the following types of entities:

Under the Department of Commerce’s Remote Community Alert Systems Program, eligible grant recipients include “tribal communities” that meet certain requirements.Indiana received funding through this program.

The Eel River Tribe of

The Indian Community Development Block Grant Program is authorized to fund Indian tribes that were eligible recipients under the State and Local Fiscal Assistance Act of 1972. As explained in appendix V, we identified at least six non-federally recognized tribes that have received funding under the act, as well as five federally recognized Indian tribes that received funding before the effective date of their federal recognition.

The Community Development Financial Institutions Fund can provide technical assistance grants for activities that enhance the capacity of a community development financial institution, which is an entity that meets the following five criteria: (1) has a primary mission of promoting community development; (2) serves an investment area or targeted population; (3) provides development services in conjunction with equity investments or loans, directly or through a subsidiary or affiliate; (4) maintains, through representation on its governing board or otherwise, accountability to residents of its investment area or targeted population; and (5) is not an agency or instrumentality of the United States, any state, or political subdivision of a state. The Lumbee Revitalization and Community Development Corporation, which was established by the Lumbee Tribe of North Carolina to foster economic development, received funding through this program.

Some non-federally recognized tribes may have been eligible for some of the federal funding they received through several means. For example, a non-federally recognized tribe that was organized as a nonprofit and was also state recognized may have been eligible to apply for some funding as either a nonprofit or a state-recognized tribe. In these cases, we did not attempt to determine the basis on which the funding was awarded.

Federal Programs Awarded More Than $100 Million in Funding to Non- Federally Recognized Tribes for Fiscal Years 2007 through 2010

Federal agencies awarded more than $100 million in funding to the 26 non-federally recognized tribes for fiscal years 2007 through 2010. As shown in table 3, the majority of this funding was awarded to a small number of non-federally recognized tribes. For example, funding to the Lumbee Tribe of North Carolina accounted for about 76 percent of the federal funding that we identified. Overall, the Lumbee Tribe of North Carolina received more than $78 million awarded by 10 programs in six federal agencies during the 4-year period. Some of this funding was awarded to incorporated entities—such as the Lumbee Regional Development Association—that were created by the Lumbee Tribe of North Carolina to provide services to the Lumbee Indian community. Most of the funding (75 percent) awarded to the Lumbee Tribe of North Carolina was awarded by HUD’s Indian Housing Block Grants program.

Similarly, as shown in table 4, nearly all the federal funding we identified as having been awarded to the 26 non-federally recognized tribes over the 4-year period was awarded by a small number of federal programs. Specifically, 95 percent of the funding was awarded by seven federal programs in four agencies. Each of these programs awarded a total of more than $1.5 million to non-federally recognized tribes during the period. About 67 percent (nearly $69 million) of the funding we identified was awarded by HUD’s Indian Housing Block Grants program. Five non-federally recognized tribes have received funding through this program: the Lumbee Tribe of North Carolina (see sidebar), the MOWA Band of Choctaw Indians, the Haliwa-Saponi Indian Tribe of North Carolina, the Coharie Tribe of North Carolina, and the Waccamaw Siouan Tribe of North Carolina. To determine funding amounts for all federally recognized Indian tribes and eligible non-federally recognized tribes, the program uses a formula that considers factors such as the population and housing conditions of tribal communities. Program funds are used to support such activities as housing development.

Agencies Have Funded Some Likely Ineligible Non- Federally Recognized Tribes, and One Agency Is in the Process of Enforcing Single Audit Act Requirements

During our review, we identified some instances where federal agencies had provided funds to non-federally recognized tribes for which grant eligibility is disputed and one instance where an agency is trying to enforce the Single Audit Act’s reporting requirements. Specifically, when we compared the eligibility requirements for each federal program that provided funding to non-federally recognized tribes for fiscal years 2007 through 2010 with the characteristics of each entity, we found that Education funded some non-federally recognized tribes under the American Indian Vocational Rehabilitation Services Program that appear to be ineligible and that HHS funded two non-federally recognized tribes in New Jersey that the state does not consider to be state recognized. In addition, we identified one instance where HHS has initiated action to better ensure that a non-federally recognized tribe completes its required financial report under the Single Audit Act.

Under Its American Indian Vocational Rehabilitation Services Program, Education Funded Non- Federally Recognized Tribes That Appear to Have Been Ineligible

“The term ‘reservation’ includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act.”

Education told us that under its long-standing interpretation of this “reservation” includes not only the four categories enumerated definition, in the statute, but also “a defined and contiguous area of land where there is a concentration of tribal members and in which the tribe is providing structured activities and services, such as the tribal service areas identified in the tribe’s grant application.” Education’s interpretation allows a tribe to self-define “reservation” by designating any area and providing structured services to tribal members there. Rules of statutory construction weigh against this interpretation. Under the noscitur a sociis rule, words grouped in a list should be given related meaning. Courts rely on this rule “to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.”definition of “reservation,” the area should, like the four areas designated in the statute, be established by or pursuant to a treaty, statute, regulation, executive order, or other formal government recognition. The tribal service areas that constitute “reservations” for purposes of Education’s grants to the United Houma Nation, Lumbee Tribe of North Carolina, Choctaw-Apache Tribe of Ebarb, and Four Winds Cherokee, by Applied here, this rule means that to satisfy the statutory contrast, have been delineated by the tribes themselves, which have then applied for federal grants on the basis of these self-created geographic areas. This approach essentially transforms the grant program into one for “Indian tribes no matter where they are located, to provide assistance to disabled Indians no matter where they reside.” Such an outcome is not what Congress intended or enacted.

In addition, the statute’s use of both the term “reservation” and “tribal service area” undercuts Education’s interpretation because it suggests Congress did not believe a tribal service area is simply a type of reservation. The statute authorizes the department to make grants to certain governing bodies of Indian tribes on federal and state reservations and, elsewhere, discusses how Indians with disabilities living on or near a reservation or tribal service area are to be provided vocational rehabilitation services. If the term “reservation” included the term “tribal service area,” Congress would not have referred to them separately in section 101(a)(11)(F)(ii) of the Rehabilitation Act of 1973, as amended in 1998.

HHS Funded Two Ineligible Non-Federally Recognized Tribes in New Jersey

The state-recognition status of some non-federally recognized tribes in New Jersey has been called into question. The two non-federally recognized tribes in New Jersey that received federal funding in the 4-year period covered by our review were the Nanticoke Lenni-Lenape Indians of New Jersey and the Powhatan Renape Nation. About 30 years ago, the New Jersey legislature passed concurrent resolutions regarding the Confederation of Nanticoke-Lenni Lenape and the Powhatan Renape Nation. Concurrent resolutions are not signed by the Governor and therefore do not have the force of law. In addition, these tribes are referred to in a few state statutes, including the statute establishing the New Jersey Commission on Native American Affairs. Since at least December 2001, however, the state of New Jersey has officially taken the position in correspondence with the Department of the Interior that these actions do not constitute official state recognition and therefore these tribes are not considered to be state recognized. In addition, in 2002, New Jersey law was amended to require specific statutory authorization for the recognition of the authenticity of any group as an American Indian tribe. No state laws contain specific statutory authorization for state recognition of any Indian tribe in New Jersey.

Notwithstanding this history, the Nanticoke Lenni-Lenape Indians of New Jersey and the Powhatan Renape Nation continue to consider themselves, and have represented themselves to HHS, as state-recognized tribes in applying for funding awarded by the Community Services Block Grant program and Low-Income Home Energy Assistance program, respectively, during the 4-year period of our review. These programs, however, are authorized to fund only states and federally and state-recognized Indian tribes. The Nanticoke Lenni-Lenape’s application repeatedly stated that it was state recognized and included the concurrent resolution from the 1980s as evidence of state recognition. Agency officials told us they did not take any additional steps to verify that the entity was in fact state recognized; they also said they have had regular contact with state officials about the awards, and those state officials never told them that the tribe was not state recognized. On the basis of this statement in the grant application, the Nanticoke Lenni-Lenape Indians of New Jersey received two grants totaling $44,405 from the Community Services Block Grant Program—one in fiscal year 2007 and one in fiscal year 2010.

Regarding the Low-Income Home Energy Assistance program, the Powhatan Renape Nation presented itself as state recognized in a letter submitted with its grant application. Agency officials stated that the entity’s state-recognition status would have been verified when it started receiving program funding about 30 years ago. During the 4-year period of our review, the Powhatan Renape Nation received $200,342 from the Low- Income Home Energy Assistance program in fiscal year 2007.

HHS Has Taken Some Initial Steps in Response to the Accohannock Indian Tribe’s Noncompliance with the Single Audit Act

The Accohannock Indian Tribe, one of the non-federally recognized tribes that we identified as receiving federal funds during the period of our review, did not have an audit or submit a report for 2009 as required by the Single Audit Act. According to HHS data, the Accohannock Indian Tribe reported spending over $1 million in federal funds for calendar year 2009 from three different HHS programs—Community Services Block Grant Program Discretionary Awards, Job Opportunities for Low-Income Individuals, and Administration for Native Americans’ Social and Economic Development Strategies Program. The entity’s expenditure of federal funds in 2009 was more than twice the threshold that triggers the Single Audit Act’s requirements. Unless an exception applied, the entity’s audit report would have been due 9 months after the end of the entity’s fiscal year, at the latest. Since the entity’s fiscal year ends on December 31, its audit report would have been due by September 30, 2010, at the latest. As of February 7, 2012, the Accohannock Indian Tribe had not submitted its required audit report for 2009 to the Federal Audit Clearinghouse, which maintains the Single Audit Database.

HHS is the federal awarding agency responsible for ensuring the entity’s compliance with the act because it is the only agency that awarded the Accohannock Indian Tribe federal funds in 2009. The entity’s noncompliance with the Single Audit Act was flagged, and the agency sent a letter of inquiry to the Accohannock Indian Tribe on March 8, 2011. According to agency officials, they did not receive a response to their letter. More recently, after we began inquiring about the issue, the agency sent the entity an Audit Deficiency Notice via certified mail on February 7, 2012. According to agency officials, because the Accohannock Indian Tribe is not a current grantee, the agency has limited enforcement options. Nevertheless, agency officials stated they plan to continue to pursue their administrative options to encourage the Accohannock Indian Tribe to meet its federal financial reporting obligations.

Conclusions

Determining the state-recognition status of non-federally recognized tribes can be a difficult and confusing task, as is trying to determine which entities have state reservations. No official consolidated list of state-recognized tribes or state reservations exists, and states have varying policies and procedures for providing state recognition. Nevertheless, Education provided funds under the American Indian Vocational Rehabilitation Services Program to state-recognized tribes that were not located on state reservations but rather had self-defined tribal service areas, raising substantial questions about the tribes’ eligibility for the funding, and HHS provided funds to two non-federally recognized tribes in New Jersey as state-recognized tribes that are not officially recognized by the state. Finally, when entities expend $500,000 or more in federal funds in a fiscal year, they are required to comply with the reporting requirements of the Single Audit Act. The Accohannock Indian Tribe did not comply with those requirements for 2009. In response, HHS has begun taking administrative steps to encourage the Accohannock Indian Tribe to meet its federal financial reporting obligations.

Recommendations for Executive Action

We are making the following three recommendations.

To ensure that grants under the American Indian Vocational Rehabilitation Services Program are made consistent with applicable law, we recommend that the Secretary of Education review the department’s practices with respect to eligibility requirements and take appropriate action with respect to grants made to tribes that do not have federal or state reservations.

To ensure the proper award and oversight of grants by the Department of Health and Human Services, we recommend that the Secretary of Health and Human Services take the following two actions.

Investigate whether the Nanticoke Lenni-Lenape Indians of New Jersey and the Powhatan Renape Nation met the statutory eligibility requirements for the grants they were awarded and take appropriate action as necessary. In doing so, the agency should consult with the state of New Jersey to determine whether the state has officially or formally recognized the tribes and treats them as state recognized.

Continue to pursue the Accohannock Indian Tribe’s noncompliance with the Single Audit Act and take appropriate action as necessary.

Agency Comments and Our Evaluation

We provided a copy of our draft report to the Departments of Agriculture, Education, Energy, the Interior, Labor, and HHS. In its written response, reprinted in appendix VI, Education stated its commitment to review its practices for determining eligibility for the American Indian Vocational Rehabilitation Services Program and taking appropriate action, if helpful, such as clarifying its interpretation. In addition, Education requested that we change the phase “appropriate corrective action” in the recommendation to simply “appropriate action.” We made that change to the recommendation. Education’s commitment to review its practices and take appropriate action is consistent with our revised recommendation.

While agreeing to review its practices, Education disagreed with our finding (which was the basis for the recommendation) that state- recognized tribes without state reservations, but with self-defined tribal service areas, are likely ineligible for the American Indian Vocational Rehabilitation Services grant program. Education stated that its interpretation of the term “reservation” was reasonable and that we should defer to its interpretation. However, for the reasons detailed in the report, we continue to have substantial questions about whether Education reasonably interpreted the statutory definition of “reservation” for the American Indian Vocational Rehabilitation Services grant program to include tribal service areas. We note that Education’s interpretation effectively rewrites the statute to allow tribes to unilaterally self-define a reservation and then apply for a grant. That reading appears to go beyond Congress’s intent and language.

In addition, Education states that its interpretation is supported by the 1998 amendments to the statute, which (1) authorized American Indian Vocational Rehabilitation Service Program grantees to serve American Indians with disabilities living near reservations as well as those living on reservations, and (2) required states and American Indian Vocational Rehabilitation Service Program grantees to enter into cooperative agreements that, among other things, include procedures for ensuring that American Indians with disabilities living near a reservation or tribal service area are provided vocational rehabilitation services. However, expanding the universe of Indians eligible to receive vocational rehabilitation services to those living “near” a reservation does not alter what qualifies as a “reservation.” Moreover, Congress’s use of both “reservation” and “tribal service area” undercuts Education’s interpretation because it suggests Congress did not believe a tribal service area is simply a type of reservation.

HHS agreed with the two recommendations involving its activities and stated that it will seek to clarify with the state of New Jersey the status of the Nanticoke Lenni-Lenape Indians of New Jersey and the Powhatan Renape Nation. HHS also stated that it will continue to address issues related to compliance with the Single Audit Act related to the Accohannock Indian Tribe. (See app. VII for HHS’s written comments.) The Departments of Agriculture, Education, the Interior, and HHS also provided technical comments, which we incorporated into the report as appropriate. The Departments of Energy and Labor had no comments.

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Appendix I: Objectives, Scope, and Methodology

This review’s objectives were to address (1) the key means by which non- federally recognized tribes have been eligible for federal funding and (2) the amount of federal funding awarded to non-federally recognized tribes for fiscal years 2007 through 2010, by agency and program. In addition, this report provides information about some cases we identified during our work concerning non-federally recognized tribes’ eligibility for funding and compliance with federal financial reporting requirements.

Because no comprehensive list of non-federally recognized tribes exists, we first compiled a list of about 400 such tribes in the contiguous 48 states. To compile this list we relied on information from (1) the Department of the Interior, and obtained a list of all those entities that have submitted a letter of intent to petition for federal recognition through the department’s administrative acknowledgment process or have submitted a complete petition but had not received federal recognition as of April 29, 2011; (2) selected states about state-recognized tribes; and (3) other documents and sources that identified other self-identified tribes that are not federally recognized.

For this review, we compiled a list of states with state-recognized tribes that are not federally recognized. We compiled this list by gathering information from a variety of sources, including information gathered by Interior’s Indian Arts and Crafts Board on state-recognized tribes in all 50 states and information collected by the U.S. Census Bureau. On the basis of this information, we identified 15 states that were most likely to have state-recognized tribes, and we reached out to state officials in each of these states. On the basis of our discussions with officials in these states, we confirmed that 12 of the 15 states had state-recognized tribes. In addition, state officials in the other 33 states had at one time told Interior’s Indian Arts and Crafts Board that their states had no state- recognized tribes that were not also federally recognized. As part of our contact with these 15 states, in addition to inquiring about any state- recognized tribes, we also asked about whether they were aware of any other non-federally recognized tribes within their borders. For the other 33 states, we relied largely on information provided by these states to Interior’s Indian Arts and Crafts Board. According to this information, these states had identified no state-recognized tribes within their borders. We spot-checked this information by contacting 20 states for which we were able to identify a state official who could respond to our questions, and 9 of these states responded to our inquiry and confirmed that they did not have any state-recognized tribes.

To address both objectives of this review, we obtained and reviewed statutes and agency documents; searched databases such as USAspending.gov and the Single Audit Database; analyzed agency- provided data; and met with officials of various federal agencies, including all six agencies with programs that have explicit statutory or regulatory authority to fund certain non-federally recognized tribes, such as state- recognized tribes that are not also federally recognized. These agencies are the Departments of Agriculture, Education, Energy, Health and Human Services, Housing and Urban Development, and Labor. In addition, we traveled to North Carolina and Virginia to meet with state officials, representatives of Native American organizations, and officials from several non-federally recognized tribes located in those states. We selected North Carolina because it had the highest concentration of non- federally recognized tribes that we identified as having received funding during the 4-year period (7 out of 26), including three of the top four recipients of federal funds during the period. We included Virginia because of its proximity to Washington, D.C., and because tribes in the state have received federal funding in the past.

To identify which non-federally recognized tribes had received federal funding during the period 2007 through 2010 and which programs had provided this funding, we searched publicly available funding data from USAspending.gov and agency-provided data. USAspending.gov, a publicly accessible website containing data on federal awards, was launched in December 2007 to comply with the requirements of the Federal Funding Accountability and Transparency Act of 2006. Under that act, federal agencies are required to report information about all federal awards of $25,000 or more. As a result of these searches, we determined that 26 of the about 400 non-federally recognized tribes that we had identified had received federal funding in the 4-year period from 24 federal programs.

To determine by which means non-federally recognized tribes were eligible to receive federal funding, we reviewed the authorizing statutes, program regulations, and eligibility requirements for all 24 programs that had awarded funding to the 26 non-federally recognized tribes during fiscal years 2007 through 2010. In addition, we collected information about the organization and legal status of the 26 non-federally recognized tribes. For example, we searched Internal Revenue Service data to identify which of the receiving entities were organized as nonprofits at any time during the 4-year period. We then analyzed how each entity could have qualified for the funding it received, by comparing the organizational and legal status of the recipient with the statutory and regulatory authority of the awarding program. When a non-federally recognized tribe was eligible to receive federal funding from a program through several means, we did not attempt to single out which means qualified the tribe for the funding received. In those instances where we could not identify any means by which a non-federally recognized tribe was eligible for funding received, we contacted agency officials to determine how the entity had qualified. For example, we contacted two agencies to determine how non- state-recognized tribes in New Jersey qualified for funding from programs that are authorized to fund state-recognized tribes but not to fund other non-federally recognized tribes.

For each non-federally recognized tribe we identified, we searched USAspending.gov and agency-provided data on relevant identifying information, including tribal names provided by Interior for petitioners and by state officials for state-recognized tribes and other non-federally recognized tribes in their states. Where possible, we used available information such as tribal names and addresses to identify each entity’s Data Universal Numbering System (DUNS) number—a nine-digit number assigned by Dun & Bradstreet, Inc., to identify each physical location for businesses. Entities such as non-federally recognized tribes may have multiple DUNS numbers, and we took steps to identify all relevant DUNS numbers by, for example, searching Dun & Bradstreet’s records for additional DUNS numbers associated with a particular entity, such as a previous DUNS number where applicable. We then searched USAspending.gov and agency-provided data on tribal names and DUNS numbers to compile an updated data set on federal funding awarded by federal agencies in the 4-year period to the non-federally recognized tribes we identified.

To determine the amount of federal funding awarded for fiscal years 2007 through 2010 to non-federally recognized tribes, we used the information that we obtained from USAspending.gov and agency-provided data. We supplemented USAspending.gov data with agency-provided data from (1) all seven programs that we identified as each having awarded a total of more than $1.5 million in funding to non-federally recognized tribes in the 4-year period and (2) some additional programs administered by these agencies. Some programs awarded funding appropriated through the annual appropriation process as well as funding appropriated by the American Recovery and Reinvestment Act of 2009. Although the Catalog of Federal Domestic Assistance (CFDA) may assign unique numbers to track these two funding sources, we did not consider the funding as coming from separate programs for the purposes of tallying the number of programs that awarded funding to non-federally recognized tribes.

We took a number of steps to assess the reliability of these data. For example, we compared USAspending.gov against information in single audit reports filed by those non-federally recognized tribes that filed these reports for one or more of the fiscal years included in this review. We also tested the data for missing data and outliers, interviewed agency officials from all seven programs that awarded more than $1.5 million to non- federally recognized tribes in the 4-year period to discuss how they collect and maintain these data, and contacted knowledgeable agency officials to resolve any inconsistencies in these data sources. For example, by reviewing single audits completed by the Lumbee Tribe of North Carolina, we identified an award that was not listed in USAspending.gov; we contacted agency officials to confirm the amounts awarded by fiscal year and program and to determine why the award was not listed. An agency official stated that the award was not listed in USAspending.gov because it was below the reporting threshold required by the Federal Funding Accountability and Transparency Act of 2006. On the basis of information provided by the agency, we were able to include the award in our updated data set. After taking these steps, we concluded that the updated data set was reliable for the purpose of estimating the amount of federal funding awarded by federal agencies to non-federally recognized tribes for fiscal years 2007 through 2010. After collecting this information, we compared the characteristics of each non-federally recognized tribe with applicable program eligibility requirements, and we checked for compliance with the financial reporting requirement in the Single Audit Act, as amended. As a result, we identified some instances where federal agencies had made grants to likely ineligible non-federally recognized tribes and where an agency had initiated actions to enforce federal financial reporting requirements.

We excluded awards received by non-federally recognized tribes as subawards from other entities, including states, because neither USAspending.gov nor the federal agencies maintain reliable information on subawards. We also excluded loans, procurement contracts, and tax expenditures and did not make any effort to determine the amount of funding received directly by individual members of non-federally recognized tribes through, for example, scholarships awarded by federal agencies.

We conducted this performance audit from June 2011 through April 2012, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Tribes Whose Recognition Was Terminated

This appendix provides information about tribes whose relationship with the United States was terminated. These tribes are not eligible to petition for federal recognition through the Department of the Interior’s administrative acknowledgement process, but may have their recognition restored by other means. As of October 1, 2010, federal recognition had been restored for 38 tribes whose relationship with the United States had been terminated (see table 5). These tribes were non-federally recognized upon termination until the effective date of restoration.

For a variety of reasons, it is not possible to provide a comprehensive list of all existing tribes whose recognition was terminated and not restored. For example, some tribes located in western Oregon and terminated in 1956 appear to have been historic tribes that once resided in that area but were no longer organized as tribes at the time of their termination, according to the Department of the Interior. Nonetheless, we identified nine tribes in California whose recognition was terminated and not restored and therefore are non-federally recognized tribes (see table 6).

Appendix III: State-Recognized Tribes

This appendix provides information on state-recognized tribes. We identified 12 states that had state-recognized tribes. Officials in these 12 states identified 61 state-recognized tribes that are not federally recognized, as of September 2011 (see table 7). Some states—such as California and Texas—have acknowledged non-federally recognized tribes in their states but have not officially identified these entities as state recognized, according to officials we spoke with.

We cross-checked the information we received from state officials with information included in (1) a 2008 law review article, (2) the 2010 Census, and (3) correspondence between the states and Interior’s Indian Arts and Crafts Board. Trying to reconcile differences among these sources highlighted the difficulties inherent in trying to develop a comprehensive list of state-recognized tribes. For example, questions were raised about the legal status of legislative resolutions that are not signed by a state’s governor and the significance of other types of designations, such as “historic” or “acknowledged” tribes.

Nonetheless, except for some recent events that have occurred since the 2008 law review article was written and the 2010 Census information was compiled, and a couple of other notable exceptions, the information that we present in table 7 generally matches these other sources. The notable exceptions include the following:

We did not include any entities from New Jersey in table 7. New Jersey does not have any state-recognized tribes, according to New Jersey officials whom we spoke with, as well as correspondence between New Jersey officials and Interior’s Indian Arts and Crafts Board. The 2008 law review article counted three potentially state- recognized tribes in New Jersey, and the 2010 Census data counted two state-recognized tribes.

We did not include any entities from California and Ohio in table 7.

The officials whom we spoke with from those states indicated that their states had not established processes for officially recognizing tribes. The 2010 Census data and the correspondence with Interior’s Indian Arts and Crafts Board also confirmed that those states have no state-recognized tribes. On the basis of legislative resolutions in California and Ohio that were not signed by the states’ governors, the 2008 law review article counted two state-recognized tribes in California and one state-recognized tribe in Ohio.

We included six entities for Massachusetts in table 7 on the basis of the designation provided by a state official. The official also stated that Massachusetts does not have an established formal process for granting state recognition and that these entities are acknowledged by Massachusetts as historic tribes. The 2008 law review article included the same entities as state-recognized tribes, while the 2010 Census counted only one entity in Massachusetts as state recognized. In correspondence with Interior’s Indian Arts and Crafts Board, dated November 16, 2000, the state provided a list of the historic tribes but also stated “here are no officially state recognized tribes.”

Some of the state-recognized tribes listed in table 7—such as the Mattaponi Tribe and the Pamunkey Indian Tribe—were recognized by colonial governments and considered state recognized since the beginning of statehood, while others became state recognized more recently, according to state officials we spoke with. For example, the two state-recognized tribes in Vermont were recognized in 2011, according to an official in that state. In some instances, state governments acknowledged a group long before officially designating it as a state- recognized tribe. Furthermore, some state governments have procedures for recognizing tribes today. As a result, the number of state-recognized tribes may increase, according to state officials we spoke with.

According to some state officials and state websites, their states officially recognize certain Indian entities, but these entities are not considered tribes. For example, South Carolina recognizes “Native American Indian groups,” which the state defines as a number of individuals assembled together, which have different characteristics, interests, and behaviors that do not denote a separate ethnic and cultural heritage today, as they once did. That state also recognizes Native American Special Interest Organizations, which promote Native American culture and address socioeconomic deprivation among people of Indian origin, such as the Little Horse Creek American Indian Cultural Center. In another example, the state of North Carolina recognizes four Indian organizations, each of which represents Indian communities in one or more counties.

Appendix IV: Non-Federally Recognized Tribes That Received Federal Funding before Fiscal Year 2007

This appendix provides information on non-federally recognized tribes that received federal funding before fiscal year 2007. During our review, we identified a significant number of non-federally recognized tribes that received federal funding before fiscal year 2007, as shown in table 8. However, we also found that the publicly available funding data for the pre-2007 period were neither complete nor comprehensive, and therefore we have not included funding that these tribes received in table 8.

In addition to the 64 non-federally recognized tribes listed in table 8, we were able to identify that all of the 26 non-federally recognized tribes having received funding in fiscal years 2007 through 2010 also received funding before fiscal year 2007, except two—Eel River Tribe of Indiana and Wesget Sipu. Cumulatively, counting the post- and pre-2007 periods, we identified 117 non-federally recognized tribes that have received federal funding—26 in fiscal years 2007 through 2010, 64 additional unique non-federally recognized tribes before fiscal year 2007, and 27 additional federally recognized tribes that received funding before the effective date of their recognition.

Appendix V: Statutes and Regulations That Explicitly Include State-Recognized Tribes or Tribes on or in Proximity to State Reservations

This appendix provides information on various statutory and regulatory provisions that authorize federal programs to provide federal funding for non-federally recognized tribes. Specifically, as shown in table 9, there are 34 federal programs that have explicit statutory or regulatory authority to fund state-recognized tribes, tribes on state reservations, or tribes on or in proximity to a state reservation or rancheria.

In addition to the statutes and regulations included in table 9, other statutes and regulations also explicitly include state-recognized tribes. For example:

State-recognized tribes are eligible to participate in the Small Business Administration’s section 8(a) business development program. This program is one of the federal government’s primary means for developing small businesses owned by socially and economically disadvantaged individuals.

The Indian Arts and Crafts Act, as amended, authorizes Indian groups that have been formally recognized as Indian tribes by a state legislature or by a state commission or similar organization legislatively vested with state tribal recognition authority to bring lawsuits against persons who offer for sale or sell a good in a manner that falsely suggests it is Indian produced. Under the act, it is unlawful to offer or display for sale or to sell any good in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization resident in the United States. Under the act and its implementing regulations, an Indian is an individual who is a member of an Indian tribe—a federally or state-recognized tribe—or who is certified by an Indian tribe as a non-member Indian artisan.

Regulations implementing the Native American Graves Protection and Repatriation Act authorize museums and federal agencies to transfer control of culturally unidentifiable Native American human remains in their possession or control to non-federally recognized Indian tribes under certain circumstances.

Additionally, Agriculture’s Rural Housing Preservation Grants program and the Department of Housing and Urban Development’s (HUD) Indian Community Development Block Grant Program have explicit statutory or regulatory authority to fund certain non-federally recognized tribes. Specifically, eligible grant recipients under this statute and regulation include any Indian tribe which had been eligible under the State and Local Fiscal Assistance Act of 1972. The act, which was repealed in 1986, established a trust fund in the U.S. Treasury for a revenue-sharing program among federal, state, and local governments, which included Indian tribes and Alaska Native villages having a recognized governing body which performs substantial governmental functions. The act did not define Indian tribe, but the Department of the Interior’s Bureau of Indian Affairs (BIA), in cooperation with the Bureau of the Census, developed a list of tribes and villages eligible to participate in the revenue-sharing program. BIA officials were not able to locate a copy of this list.

We identified six non-federally recognized tribes—all of which were state recognized—that received revenue-sharing payments and five federally recognized tribes that received revenue-sharing payments before they became federally recognized.tribes are eligible recipients of Rural Housing Preservation Grants program funding and Indian Community Development Block Grant Program funding.

Therefore, at least six state-recognized Finally, some statutes identify members of state-recognized tribes but not the tribe itself as an eligible participant or recipient of a government program. For example, the Indian Health Service provides health care services for members of federally recognized tribes as well as urban Indians. The statutory definition of urban Indians includes Indians who are members of a tribe or other organized group of Indians recognized by the state in which they reside. Members of state-recognized tribes are also eligible for certain scholarships administered by HHS’s Indian Health Service such as the Indian health professions scholarships.

Appendix VI: Comments from the Department of Education

Appendix VII: Comments from the Department of Health and Human Services

Appendix VIII: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the individual named above, Jeffery D. Malcolm (Assistant Director), Mariana Calderón, Colleen Candrl, Jennifer Cheung, Ellen W. Chu, Pamela Davidson, Emily Hanawalt, Catherine Hurley, Ben Shouse, and Jeanette M. Soares made key contributions to this report.