Wampum

3. Rights of Tribes to Acquire Federal Excess Property

The Indian Self-Determination and Education Assistance Act (ISDEAA) gives tribes the right to assume funds and responsibility for operation and management of programs provided by the Department of the Interior (DOI) and the Department of Health and Human Services (DHHS) to Indians and Alaskan Natives. Tribes can access these funds and responsibilities under two statutory schemes in the Act: self-determination contracting under Title I and self-governance compacting under Titles III and IV.

Both give tribes the right to acquire excess and surplus property from the Bureau of Indian Affairs (BIA), the Indian Health Service (IHS) and the General Services Administration (GSA). The general statutory authority in the ISDEAA is set out in Section 105(f) of Title I, which covers both self-determination and self-governance. Section 105(f)(2) applies if the property at issues is BIA or IHS excess property, and 105(f)(3) if it is excess or surplus government property of other agencies.

A request for BIA or IHS property must state how the property is intended for use in connection with an ISDEAA contract, while a request for other government excess or surplus property need only state how the property is appropriate for use for a purpose for which ISDEAA contracts are authorized. Finally, the secretary (DOI or DHHS) retains the right to unilaterally reacquire BIA or IHS exess property transfered to a tribe in certain circumstances, including contract retrocession, reassumption, termination or expiration, but has no right to reacquire excess or surplus property of other agencies.

4. BIA Policy on BRAC Excess Property Acquisitions

Two guidance documents: "Procedures for Obtaining Department of Defense Properties Including Base Closure and Ralignment Properties (1998)" and "Justification Required for Requesting a Transfer Without Reimbursement". These are "BIA Procedures" and "BIA Justification" hereinafter. [Requested from Olympia Snowe's office, via Cheryl Leaman.] These two BIA guidance docs are in addition to general regulations governing excess and surplus property acquisition (25 C.F.R. part 900, subpart I, sec. 900.85-107).

Step 1: Screening, either of two criteria sufficient: (a) Area Director reviews the NOA to determine if the BIA or a party entering into a self-determination or self-governance contract in the AD's jurisdiction has a requirement for the DOD excess property, or (b) if the excess real property is located with the boundaries of a federally-recognized Indian reservation, there may be authority to acquire the property under 40 U.S.C. sec 483(a)(2) (1998).

Step 2: Assuming either criteria is met, the AD schedules a meeting with the Area Office (AO) deparments (facilities, environment, contracting and grants, budget, realty) and the party or tribe making a self-determination or self-governance contract. The AO then requests pertinent information about the site (maps, environmental docs, etc) from the DOD and conducts a site visit.

Step 3: The AO provides an acquisition recommendation to the Deputy Commissioner of Indian Affairs (DCIA). If the BIA decides to acquire the real property [ebw: details of decision making and makers absent, see 30 ticktock], the DCIA must send a LOI to the responsible Military Department within the timelines (30 days from the NOA date of issue). Following the issuance of the DCIA's LOI, the AO begins preparing the acquisition application, due no later than 60 days from the NOA date of issue.

Justification criteria:

• AP's purpose for the acquisition,


• Authority and funding source for the acquisition. If the BIA seeks to acquire w/o reimbursement, it must include the congressional authorization for the transfer or a letter requesting exception from the reimbursement requirement to the Office of Management and Budget (OMB) with an endorsement by the Secretary of the Interior and an explanation of how the exception will further program objectives,


• if a P.L. 93-638 (self-determination or self-governance) contract is the basis for the acquisition, the contract number and how the property will further the contract's objectives,


• Proposed use and zoning, physical properties, and environmental/cultural characteristics of the property,


• Whether significant changes will be made, and if so, whether funding exists to make those changes.

Tribes pursuing acquisition of excess BRAC property through the BIA or the IHS have a vested interest in working closely with the AO throughout the acquisition to ensure details and deadlines are not missed. Where sec. 105(f)(3) of ISDEAA is being utilized to justify acquisition, the tribal contractor will want to clarify for the BIA the relevant programs. If the land is to be held in trust, then the regulations require that the Tribe include a supporting resolution in its request for the property.

5. IHS Policy on BRAC Excess Property Acquisitions

Follow the BIA policy. HHS will transfer title to the DOI so that the BIA policy applies.

Tomorrow, more Fishing BRAC-ish Waters.