BNUMBER:  B-261111, April 12, 1996.  The 1994 Tribal  Self-Governance Act made permanent the Tribal Self-Governance Project  authorized by Congress in Title III of  the Indian Self-Determination  and Education Assistance Act Amendments of 1988, Pub. L. No. 100-472,  102 Stat. 2285, October 5, 1988.  Under the Self-Governance Program,  Indian tribes enter into annual funding agreements with the Secretary  of the Interior.  These agreements authorize tribes to plan,  consolidate, and administer programs, services, and functions  administered by the Bureau of Indian Affairs.  Tribes may redesign  programs, functions, and services and reallocate funds to carry out  these activities.  The program is designed to provide Indian tribes  with the flexibility to develop programs and to establish funding  priorities to meet their specific needs.   See  140 Cong.  Rec. H11140-41  (daily ed. October 6, 1994). 
DATE:  January 4, 1999
TITLE: [Letter], B-261111, April 12, 1996. The 1994 Tribal Self-
Governance Act made permanent the Tribal Self-Governance Project
authorized by Congress in Title III of the Indian Self-Determination
and Education Assistance Act Amendments of 1988, Pub. L. No. 100-
472, 102 Stat. 2285, October 5, 1988. Under the Self-Governance
Program, Indian tribes enter into annual funding agreements with the
Secretary of the Interior. These agreements authorize tribes to
plan, consolidate, and administer programs, services, and functions
administered by the Bureau of Indian Affairs. Tribes may redesign
programs, functions, and services and reallocate funds to carry out
these activities. The program is designed to provide Indian tribes
with the flexibility to develop programs and to establish funding
priorities to meet their specific needs. See 140 Cong. Rec. H11140-
41 (daily ed. October 6, 1994)., January 4, 1999
**********************************************************************

Matter of:Land Acquisition by the Yurok Indian Tribe

File:     B-279338

Date:     January 4, 1999

DIGEST

Use of funds available to the Yurok Indian Tribe pursuant to a 
"Compact of Self-Governance" between the Tribe and the Department of 
the Interior for land acquisition by the Tribe was consistent with 
law.  Section 450h of Title 25, United States Code, authorizes 
Interior to fund land acquisition by Indian tribes.  Interior's 
decision not to request specific funding for grants under section 450h 
does not preclude Interior's use of "Operation of Indian Program" 
funds to "contract" with Indian tribes for authorized grant purposes.  
Agencies may reprogram funds within appropriation accounts, as long as 
expenditures are within the general purpose of the appropriation and 
are not in violation of any other specific limitation or otherwise 
prohibited. 

DECISION

By letter dated February 20, 1998, the Director, Office of Audit and 
Evaluation, Office of the Secretary, Department of the Interior, 
requested our advice concerning the propriety of the expenditure of 
$1,106,618 by the Yurok Indian Tribe in fiscal year 1996 for land 
acquisition.  The Department of the Interior had made these funds 
available to the Tribe pursuant to a "Compact of Self-Governance" 
between the Tribe and Interior.  As explained below, the use of these 
funds for land acquisition by the Tribe was consistent with law.

Background

During fiscal year 1996, the Yurok Indian Tribe purchased 5,835 acres 
of land on the Yurok reservation in California.  The Tribe made a down 
payment of $1,106,618, from funds available to it under a "Compact of 
Self-Governance" (Compact) and fiscal year 1996 "Annual Funding 
Agreement" (AFA) between the Tribe and Interior.  The Compact between 
the Tribe and Interior provided, among other things, for Tribal 
implementation of  functions and services that Interior is otherwise 
authorized to provide the Tribe.  The AFA provided Federal funds to 
the Tribe to implement the Compact during fiscal year 1996.

The Self-Governance Program

The Yurok Tribe and Interior entered into the Compact of 
Self-Governance applicable during fiscal year 1996 pursuant to Title 
IV of the Indian Self-Determination and Education Assistance Act, 25 
U.S.C.  sec.  458aa-458hh (1994).[1]   The Tribal Self-Governance Act of 
1994, Pub. L. No. 103-413, 108 Stat. 4250, Title II,  sec.  204, October 
25, 1994, added title IV to the Indian Self-Determination and 
Education Assistance Act.  See B-261111, April 12, 1996.  The 1994 
Tribal Self-Governance Act made permanent the Tribal Self-Governance 
Project authorized by Congress in Title III of  the Indian 
Self-Determination and Education Assistance Act Amendments of 1988, 
Pub. L. No. 100-472, 102 Stat. 2285, October 5, 1988.  Under the 
Self-Governance Program, Indian tribes enter into annual funding 
agreements with the Secretary of the Interior.  These agreements 
authorize tribes to plan, consolidate, and administer programs, 
services, and functions administered by the Bureau of Indian Affairs.  
Tribes may redesign programs, functions, and services and reallocate 
funds to carry out these activities.  The program is designed to 
provide Indian tribes with the flexibility to develop programs and to 
establish funding priorities to meet their specific needs.  See 140 
Cong. Rec. H11140-41  (daily ed. October 6, 1994).

The Tribal Self-Governance Act provides extraordinary flexibility in 
implementation of the Tribal Self-Governance Program.  By explicit 
Congressional design, there are few restrictions on what activities 
Interior may "contract" to Indian tribes and great flexibility for the 
tribes to implement programs.  See, e.g., S. Rep. No. 374, 103d Cong., 
2d Sess. 1-3 (1994).  Pursuant to 25 U.S.C.  sec.  458cc(a)(1) (1994), the 
annual funding agreement is to "authorize the tribe to plan, conduct, 
consolidate, and administer programs, services, functions, and 
activities, or portions thereof, administered by the Department of 
Interior through the Bureau of Indian Affairs."  Similar authority 
exists in paragraph (2) for tribes to implement Interior programs, 
other than those of the Bureau of Indian Affairs.  25 U.S.C.  sec.  
458cc(a)(2) (1994).

The Compact and the AFA governing the land acquisition here in 
question are broadly drafted to provide maximum scope to the 
self-governance program, and in general permit Tribal use of the funds 
for any purpose authorized under the statute.  Thus, the Tribe is 
authorized to implement both Bureau of Indian Affairs (BIA) and other 
Interior Department, Indian-related programs, with only a few specific 
exceptions. 

Availability of Appropriations

The Tribal Self-Governance Act, however, does not authorize or provide 
additional funding for any Department of the Interior programs.  
Rather, it permits Interior to contract[2] with Indian tribes only to 
implement otherwise authorized and funded programs.  Under the Compact 
and applicable statutes, the Yurok tribe could only expend funds for 
purposes for which the Interior Department itself could expend funds 
in its implementation of programs to benefit Indians.  In this 
respect, the Act is consistent with the longstanding principle, cited 
by the Office of Audit and Evaluation, that an agency cannot do 
indirectly what it is not permitted to do directly.  18 Comp. Gen. 285 
(1938).  There is no indication in the legislative history of the 
Indian Self-Determination and Education Assistance Act that Congress 
intended to abrogate this principle with regard to Indian 
self-governance programs.  See, e.g., S. Rep. No. 205, 103d Cong., 1st 
Sess. 2 (1993)  ("Under the Self-Governance Demonstration Project, 
tribes can only use Federal funds to operate those programs which the 
Congress has previously authorized.").  Proposed regulations governing 
the Self-Governance Program, recently published by Interior, recognize 
that the "amount of funding [in an AFA] must be subject to the 
availability and level of Congressional appropriations to the bureau 
for that 
program or activity."  63 Fed. Reg. 7202, 7238 (proposed 25 C.F.R.  sec.  
1000.124(c)), February 12, 1998.

Discussion

It is a longstanding principle that statutes for the benefit of 
Indians should be liberally construed.  56 Comp. Gen. 123, 129 (1976).  
Congress codified this principle in the Tribal Self-Governance Act of 
1994, Pub. L. No. 103-413, Title II, October 25, 1994, 25 U.S.C.  sec.  
458aa-458hh (1994), which governs the agreements here in question.  
That Act explicitly directed the Secretary of the Interior to,

     "interpret each Federal law and regulation in a manner that will 
     facilitate--

        "(A) the inclusion of programs, services, functions, and 
        activities in the agreements entered into under this section 
        and 

        "(B) the implementation of agreements entered into under this 
        section."

25 U.S.C.  sec.  458cc(i)(1) (1994).  We presume that Congress intended the 
General Accounting Office do likewise.  See also 25 U.S.C. 450l(c) 
(1994) (Model agreement at section 1(a)(2)).  

The key question in the case at hand is whether Interior itself had 
the necessary authorization and funding to acquire the land in 
question (or to provide a grant for that purpose), and if so whether 
it contracted with the Tribe to exercise such authority.  We conclude 
that it does and it did.

As authority for the acquisition, Interior relies on section 450h of 
Title 25, United States Code, which provides for Self-Determination 
grants to Indian tribes:  

     "The Secretary of the Interior is authorized, upon the request of 
     any Indian tribe (from funds appropriated for the benefit of 
     Indians pursuant to section 13 of this title, and any Act 
     subsequent thereto) to contract with or make a grant or grants to 
     any tribal organization for --

        "(1) the strengthening or improvement of tribal government     
        . . . ; 

        "(2) the planning, training, evaluation of other activities 
        designed to improve the capacity of a tribal organization  . . 
        . ; or
        "(3) the acquisition of land in connection with items (1) and 
        (2) above . . . ."

25 U.S.C.  sec.  450h(a) (1994).  (These grants are commonly known as 
"Section 103" grants, after the section of the Indian 
Self-Determination and Education Assistance Act that authorizes them.)

In our view, section 450h authorizes Interior to fund land acquisition 
by Indian tribes, using any funds appropriated pursuant to section 13 
of title 25 [the Snyder Act[3]], "and any Act subsequent thereto that 
are generally available for Indian programs."  In other words, to 
finance grants under section 450h, Interior may use any funds 
appropriated by Congress pursuant to the Snyder Act or any Act 
subsequent thereto that are generally available for Indian programs.  
Grants pursuant to section 450h historically have been funded from the 
"Operation of Indian Programs" (OIP) appropriation, made annually to 
the Department of the Interior.  See, e.g., Department of Interior and 
Related Agencies Appropriations Act, 1986, Pub. L. No. 99-190, 
December 19, 1985,  sec.  101(d), 99 Stat. 1185, 1234.

The Office of Audit and Evaluation questions whether Interior may 
appropriately use its section 450h authority,  since Congress for 
several years has not provided specific funding for grants under 
section 450h.  Until fiscal year 1987, Interior budget justifications 
included a specific line item for "self determination grants" 
authorized by section 450h.  In the late 1980's, however, at 
Interior's request, Congress stopped providing specific funds for the 
program.  See Department of the Interior and Related Agencies 
Appropriations for 1988, Hearings Before a Subcommittee of the 
Committee on Appropriations, House of Representatives,       100th 
Cong., 1st Sess. (1987) 408 (Interior budget justification for FY 88); 
Department of the Interior and Related Agencies Appropriations for 
1990, Hearings Before a Subcommittee of the Committee on 
Appropriations, House of Representatives, 101st Cong., 1st Sess. 386, 
391-93 (1989) (Interior budget justification for FY 90).

In our view, however, Interior's decision not to request specific 
funding for grants under section 450h does not preclude Interior's use 
of funding authorized under other statutes for the benefit of Indians 
to provide grants under section 450h or to contract with Indian tribes 
for authorized grant purposes, including land acquisition.  Grants 
under section 450h, including grants specifically for land 
acquisition, historically were not funded pursuant to a specific "line 
item" in the appropriation act, but rather were subsumed in the 
general lump-sum OIP appropriation.  See, e.g., Department of the 
Interior and Related Agencies Appropriations for 1986, Hearings Before 
a Subcommittee of the Committee on Appropriations, House of 
Representatives, 99th Cong., 1st Sess. (1985) 416-18 (Interior budget 
justification for FY 86).  As a general matter, agencies are free to 
reprogram funds within appropriation accounts, as long as the 
expenditures are within the general purpose of the appropriation and 
are not in violation of any other specific limitation or otherwise 
prohibited.  20 Comp. Gen. 631 (1941).  Additionally, both Interior 
and Indian tribes have extraordinary flexibility to reprogram and 
reallocate funds in the implementation of self-governance programs.  
Section 458cc(b)(3) of Title 25, which governs funding agreements 
under the Self-Governance Program, provides that each funding 
agreement shall--

     "subject to the terms of the agreement, authorize the tribe to 
     redesign or consolidate programs, services, functions, and 
     activities, or portions thereof, and reallocate funds for such 
     programs, services, functions, and activities, or portions 
     thereof . . . ."  

25 U.S.C.  sec.  458cc(b)(3) (1994).  Paragraph 458cc(b)(6) further 
provides that each funding agreement shall,

     "authorize the tribe and the Secretary to reallocate funds or 
     modify budget allocations within any year, and specify the 
     procedures to be used . . . ."

25 U.S.C.  sec.  458cc(b)(6) (1994).  Since Interior has specific authority 
in section 450h to provide grants to Indian tribes for land 
acquisition and identified available funding in its annual OIP 
appropriation, it is not determinative that Interior did not budget 
for specific funding for grants under section 450h.

In the case at hand, Interior advises that it funded the land 
acquisition in question with "New Tribes" funds transferred to the 
Yurok Tribe prior to fiscal year 1996.  The New Tribes program 
provides the initial source of funding for newly acknowledged tribes 
and enables them to begin federally-funded operations.  Congress 
annually has included New Tribes funding in the OIP appropriation.  
See, e.g., Department of the Interior and Related Agencies 
Appropriations for 1994; Hearings Before and Subcommittee of the 
Committee on Appropriations, House of Representatives, 103d Cong., 1st 
Sess. 938 (1993) (Interior budget justification for FY 94).  The Yurok 
tribe participated in the New Tribes program in fiscal years 1993 
through 1995.  Interior informs us that, pursuant to the Compact, the 
Yurok Tribe carried-over New Tribes funds into fiscal year 1996 and 
that such Funds were available to the Tribe under the Compact and 
fiscal year 1996 AFA.[4]  These funds were subject to the flexible 
reprogramming and reallocation authorities discussed above, and were 
available for activities authorized under the Compact and AFA, 
including, as discussed above, land acquisition.

Accordingly, we have no objection in the case at hand to of the 
expenditure of $1,106,618 by the Yurok Indian Tribe in fiscal year 
1996 for land acquisition.

Comptroller General
of the United States

1. Although the Compact cites Title IV as its underlying authority, 
other parts of the Indian Self-Determination and Education Assistance 
Act govern certain aspects of implementation of the agreement.  See 
140 Cong. Rec. H11141 (daily ed. October 6, 1994).

2."Contracts" under the Indian Self-Determination and Education 
Assistance Act are atypical of Federal procurement contracts.  
Pursuant to 25 U.S.C.  sec.  450e-1 (1994), agreements under the Act are 
not subject to requirements of the Federal Grant and Cooperative 
Agreement Act of 1977, 31 U.S.C.  sec.  6301-6308 (1994).  
See B-222665, July 2, 1986.  Further, with certain limited exceptions 
applicable only to construction contracts, self-determination 
contracts under the Act are not subject to "Federal contracting or 
cooperative agreements laws (including any regulations) except to the 
extent that such laws expressly apply to Indian tribes."  25 U.S.C.  sec.  
450j(a)(1) (1994).  Congressional intent is clear:

            "The Committee wishes to underscore that Congress does not 
            intend for the Departments to treat any Self-Determination 
            Act contracts as ordinary Federal contracts.  They are 
            not.  Rather, Self-Determination Act contracts should be 
            guided by the principle that Indian tribes are sovereign 
            nations, contracts entered into with Indian tribes are 
            done so on a government-to-government basis, and should be 
            free of all unnecessary administrative oversight."

140 Cong. Rec. H11143 (daily ed. October 6, 1994).

3. Section 13 of title 25, United States Code, is commonly referred to 
as the Snyder Act, and authorizes a wide range of programs for the 
benefit of Indians.

4. The Compact provides, "To the extent a program, activity, function, 
or service included within [the AFA] was included within a contract or 
grant entered into pursuant to P.L. 93-638 [The Indian 
Self-Determination and Education Assistance Act], as amended or 
subject to any obligation arising from such contract or grant, that 
contract or grant is terminated and the parties' obligations shall be 
governed by this Compact."  Art. III,  sec.  1.