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.