Background Federal agencies have many programs that provide services and benefits to tribes and their members. For example, the Department of the Interior’s (Interior) Bureau of Indian Affairs (BIA) within the Office of the Assistant Secretary-Indian Affairs (Indian Affairs) administers programs in natural resources management, Indian child welfare, and economic development—among other responsibilities. One key BIA responsibility is to facilitate tribes’ development of energy resources on and beneath tribal lands by reviewing and approving leases, permits, and other documents required when the lands with Indian energy resources are held in trust or restricted status. The Bureau of Indian Education (BIE), also within Indian Affairs at Interior, administers education programs to approximately 41,000 students on or near Indian reservations at 185 schools around the country. The Indian Health Service (IHS) within the Department of Health and Human Services is charged with providing health care to approximately 2.6 million Indians through more than 600 IHS or tribally operated facilities as of 2019. When services are not available at these facilities, IHS may pay for services provided through external providers. In addition, as part of its disease prevention efforts, IHS provides technical and financial assistance to Indian tribes for the cooperative development and construction of drinking water and wastewater systems and support facilities. These and other federal programs may also be administered by tribal governments under a self-determination contract or self-governance compact under the Indian Self-Determination and Education Assistance Act of 1975, as amended. BIA and IHS are responsible for administering self-determination contracts that allow for tribal administration of specific government programs, including negotiating and approving each contract and its associated annual funding agreement and disbursing funds to the tribes. Each federally recognized tribe voluntarily decides whether, and to what extent, to pursue the administration of federal programs. According to a 2017 law journal article, by that year, nearly all tribes had used a self- determination contract or self-governance compact to take over the administration for one or more federal programs. In February 2017 we added federal management of programs that serve tribes and their members to our high-risk list of federal areas that are most vulnerable to fraud, waste, abuse, or mismanagement or that are in need of transformation to address economy, efficiency, or effectiveness challenges. In particular, we found numerous challenges facing BIE and BIA and IHS in administering education and health care services, that put the health and safety of American Indians served by these programs at risk. In addition, we reported that BIA mismanages Indian energy resources held in trust and thereby limits opportunities for tribes and their members to use those resources to create economic benefits and improve the well-being of their communities. Our recommendations identified in the high-risk area do not reflect the performance of programs administered by tribes nor are they directed at any tribally operated programs and activities. In our March 2019 high-risk update, we reported that the three agencies demonstrated progress to partially meet all five criteria for addressing high-risk issues: leadership commitment, capacity, action plan, monitoring, and demonstrated progress. We continue to monitor and report on progress made by the agencies in addressing issues in these three program areas. Federal Agency Capacity, Funding Constraints, and Budget Uncertainty Limit Effective Delivery of Some Federal Programs Serving Tribes We have previously reported that constraints in federal agency capacity, funding and budget uncertainty limit effective delivery of some federal programs for tribes and their members managed by Indian Affairs, BIA, BIE, IHS, and in other agencies’ tribal consultation activities as shown in the following examples: High staff vacancies. In November 2016, we found BIA had high vacancy rates at some agency offices and that the agency had not conducted key workforce planning activities to ensure its workforce resources are appropriately deployed. We recommended that BIA establish a documented process for assessing its workforce composition at agency offices taking into account BIA’s mission, goals, and tribal priorities. In response to our recommendation, BIA has taken initial steps to assess its workforce composition; however more work is needed from BIA to establish a process to regularly assess its workforce composition and ensure it meets BIA and tribes’ needs. In February 2017 when we added improving federal management of programs that serve tribes and their members to our high-risk list, we found that high vacancies or declining staff levels across all three designated high-risk areas—education, health care, and Indian energy resources programs. For example, we reported that IHS had over 1,550 vacancies for various health care positions nationwide in 2016, and IHS officials said that the agency’s insufficient workforce was the biggest impediment to providing timely primary care. IHS has made some progress in demonstrating it has the capacity necessary to address the program risks we identified in our reports. For example, among other actions, in January 2019, IHS established an Office of Quality which includes divisions for Enterprise Risk Management and Internal Controls, Quality Assurance, Innovation and Improvement, and Patient Safety and Clinical Risk Management. As of August 2019, the Office of Quality had filled 14 positions. However, there are still key positions in the agency not yet permanently filled, including the Director of the Office of Finance and Accounting and the Deputy Director for Management Operations. In our August 2018 report, we also found that IHS’s overall vacancy rate for clinical care providers was 25 percent. Additionally, in our March 2019 high risk update and testimony, we reported that about 50 percent of all BIE positions had not been filled, according to recent BIE documentation, for a variety of reasons, including difficulty recruiting qualified individuals. Insufficient staff skills or knowledge. We have also identified concerns about existing staff having the right skills and expertise to adequately perform job duties for effective implementation of Indian energy development programs. For instance, in November 2016, we found that BIA had not completed key workforce planning activities, such as an assessment of work skills gaps, that contributed to BIA’s inability to effectively support energy development. We recommended that BIA incorporate effective workforce planning standards by assessing critical skills and competencies needed to fulfill BIA’s responsibilities related to energy development and by identifying potential gaps. Interior agreed with this recommendation and in fiscal year 2019, BIA began identifying the skills and competencies necessary for select Indian energy-related occupations. BIA officials told us that, once complete, agency officials will be able to use the catalog of necessary skills and competencies to identify training needs for existing staff. Additionally, in our March 2019 report on tribal consultation, 47 of 100 tribes that provided comments to federal agencies in 2016 identified insufficient agency officials’ knowledge or training on tribal consultation as a key factor that hinders effective consultation. Several tribal officials we interviewed shared similar concerns, and officials from 9 of 21 agencies we spoke with (43 percent) identified staff knowledge or training as a factor that hinders effective consultation. Inadequate funding. We have previously reported on agency and tribal perspectives on the adequacy of funding and how it impacts federal programs and also examined spending levels of some programs. In May 2018, we reported that federal agencies provided about $370 million to develop, construct, or repair tribal drinking water and wastewater infrastructure projects to address tribes’ needs in fiscal year 2016. This amount is about 11 percent of the more than $3 billion in total existing tribal drinking water and wastewater infrastructure needs that IHS had identified that same year. Further, in January 2019, we found that funding shortfalls— estimated at 60 percent for one BIA program in a 2013 report to Congress— may limit tribal options for administering federal programs using self- determination contracts or self-governance compacts. Many tribal stakeholders told us that they supplement federal funding when there are funding shortfalls. As we have previously reported, when tribes financially supplement the federal program they take over, it diverts funds away from other economic development opportunities and other government functions and services they provide to their communities and citizens. In our March 2019 report on tribal consultation, according to tribal comments we reviewed and interviews with tribal officials we found tribes’ ability to participate in consultations is limited by availability of funding from the tribe, federal agencies, or other sources. Tribes and agencies both identified insufficient resources, including funding to support tribes’ participation in consultation activities, as a key factor hindering effective consultation. Effects of budget uncertainty. Budget uncertainty arises during continuing resolutions—temporary funding periods during which the federal government has not passed a budget—and during government shutdowns. Failure to enact annual appropriations for federal tribal programs in a timely manner may exacerbate the problem of limited resources. For example, in our September 2018 report examining advance appropriations authority for IHS, IHS officials and tribal representatives described several effects of budget uncertainty on their health care programs and operations. Among other things, we reported that effects of budget uncertainty include (1) exacerbated challenges related to recruitment and retention of staff, and (2) additional administrative burden and costs for both IHS and tribes involved in calculating revised allocations and modification of hundreds of tribal contracts each time a new continuing resolution is enacted. IHS officials and tribal representatives said that advance appropriation authority could mitigate the effects of this uncertainty because IHS could use this authority to ensure continuity of health care services during lapses in annual appropriations. Management Weaknesses at Federal Agencies Hinder Effective Delivery of Some Federal Programs Serving Tribes In our prior work, we have found a range of management weaknesses related to internal controls at Indian Affairs, BIA, BIE, and IHS that hinder effective delivery of some federal programs for tribes as shown in the following examples: Oversight weaknesses. In March 2016, we found that weaknesses in Indian Affairs oversight led to safety and health deficiencies at BIE school facilities that endangered students. We recommended that Indian Affairs ensure that all BIE schools are annually inspected for safety and health, as required by its policy, and that inspection information is complete and accurate. Indian Affairs has taken steps toward implementing our recommendations. For example, in April 2019 Indian Affairs provided documentation that it had assessed the quality of two fiscal year 2018 BIE safety inspection reports. However, Indian Affairs has not provided us with documentation that it has assessed the quality of BIE safety inspection reports for fiscal year 2019—the first year BIE was responsible for inspecting all of its schools. We believe it is important that the agency demonstrate that BIE is capable of inspecting all schools for safety in fiscal year 2019 and that they produce inspection reports for schools that are complete and accurate. As of November 2019, we have not received further updates from the agency on this recommendation’s status. Additionally, in March 2016, we reported on weaknesses in IHS’s oversight of the timeliness of patient care that led to long wait times at IHS facilities. We found that IHS had not set any agency-wide standards for patient wait times at IHS federally-operated facilities. We recommended that IHS (1) develop and communicate specific agency-wide standards for patient wait times in federally- operated facilities, and (2) monitor patient wait times and ensure corrective actions are taken when standards are not met. IHS agreed with our recommendations and implemented the first recommendation by publishing patient wait time standards as part of its Indian Health Manual website in August 2017. As of March 2019, IHS officials said that the agency was working to implement the second recommendation by developing system-wide monitoring capacity. We will continue to review IHS’s progress. Management weaknesses. In June 2015, we found shortcomings in BIA’s management of permits, and other approvals for energy development have led to lengthy review times and negatively impacted energy development on tribal lands. These lengthy review times have increased energy development costs for tribes, delayed projects, and led to lost revenue, among other impacts. For example, according to a tribal official, BIA took as long as 8 years to review some of its energy-related documents. In the meantime, the tribe estimates it lost $95 million in revenue that it could have earned from tribal permitting fees, oil and gas severance taxes, and royalties. We recommended that BIA develop a documented process to track its review and response times and enhance its data collection efforts. As of November 2019, the agency had taken initial steps toward implementing the recommendation by developing system enhancements to capture key dates during the review and approval process for energy-related documents. However, BIA needs to collect data from its system, develop time frames, and monitor agency performance to fully address these recommendations. In our January 2019 work on tribal self-governance, we reported that Interior’s process does not ensure that funds associated with self-determination contracts and self-governance compacts are disbursed in a timely manner, according to tribal stakeholders. These funding delays can therefore be a factor that hinders tribal use of these agreements. When funds are not disbursed in a timely manner, a tribal stakeholder told us that tribes may have to use funds from their general revenue accounts or seek other sources to cover federal program expenses. According to several tribal stakeholders, when a tribe has to use its own funds for the administration of federal programs—even temporarily—it can adversely affect the tribe in various ways. To help ensure that funds are disbursed in a timely manner, we recommended that Interior establish a process to track and monitor the disbursement of funds associated with self-determination contracts and self-governance compacts. Interior agreed with this recommendation, and as of November 2019, we are following up on its status. Weaknesses in planning. In May 2017, we found that Indian Affairs did not have a comprehensive capital asset plan to guide funding for construction projects to maintain, repair, or replace infrastructure at its 185 BIE schools. Specifically, although Indian Affairs had determined which 10 schools it planned to replace next, it did not have a long-term capital asset plan for the remaining 175 BIE schools. Many of the 175 schools were in poor condition and had safety hazards. We recommended Indian Affairs develop a comprehensive long-term capital asset plan that includes a prioritized list of projects with the greatest need of funding. Indian Affairs agreed with the recommendation. As of October 2018, Indian Affairs provided a list of deferred maintenance projects for 2018 and documentation of processes for prioritizing such projects, among other things, but as of November 2019 had not yet provided documentation that it had completed a comprehensive long-term capital asset plan. In conclusion, the resource constraints and management weaknesses in federal programs that serve tribes limit federal agencies’ effective delivery of programs to Native Americans. In many cases, we have made recommendations to agencies to take steps to address identified issues. While agencies have made some progress addressing recommendations to improve tribal programs identified in our high-risk and other areas, continued work to address these and other issues is needed. Sustained congressional attention to these issues and the relevant factors contributing to the disparities identified in the U.S. Civil Rights Commission’s report will help the federal government makes progress in addressing the needs of Native Americans. Chairman Gallego, Ranking Member Cook and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions that you may have at this time. GAO Contacts and Staff Acknowledgments For further information regarding this testimony, please contact Anna Maria Ortiz at (202) 512-3841 or ortiza@gao.gov. If you or your staff have any questions about health care issues in this testimony or the related reports, please contact Jessica Farb at (202) 512-7114 or farbj@gao.gov. For questions about education, please contact Melissa Emrey-Arras at (617) 788-0534 or emreyarrasm@gao.gov. For questions about energy resource development, please contact Frank Rusco at (202) 512-3841 or ruscof@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Key contributors to this statement include Lisa Van Arsdale (Assistant Director), Swati Thomas (Analyst-in-Charge), Edward Bodine, Kelly DeMots, Summer Lingard-Smith, Elizabeth Sirois, Jeanette Soares, Kiki Theodoropoulos and Leigh White. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.


Background Federal agencies have varying roles in planning, approving, and implementing infrastructure projects, depending on their missions and authorities. Some federal agencies help fund or construct infrastructure projects, and others grant permits or licenses for activities on private or federal lands. Agencies that manage federal lands, such as the Bureau of Land Management, may construct infrastructure on lands they manage and must also approve projects on those lands. The circumstances under which federal agencies may need to consult with tribes will vary based on the agencies’ responsibilities for infrastructure projects as well as an infrastructure project’s potential effects on tribes’ land, treaty rights, or other resources or interests. Federal agencies are generally responsible for identifying relevant tribes that may be affected by proposed projects, notifying the tribes about the opportunity to consult, and then initiating consultation, as needed. One or more tribes located near or far from the proposed project site may have treaty rights within lands ceded in treaties or interests in lands with cultural or religious significance outside of lands ceded in treaties. Additionally, the Federal Permitting Improvement Steering Council— which was created to make the process for federal approval for certain (large) infrastructure projects more efficient—has issued two annual reports that identified best practices for, among other things, consulting with tribes. These best practices include: training staff on trust and treaty rights; providing clear information on proposals in a consistent and timely manner; holding consultations on lands convenient to tribes when possible; compensating tribes for consultant-like advice; and working to build strong, ongoing dialogue between tribal authorities and agency decision makers, among others. In 2017, Executive Order 13807 directed agencies to implement the techniques and strategies identified by the steering council as best practices, as appropriate. For purposes of this testimony, Native American cultural resources means Native American cultural items as defined by NAGPRA, archaeological resources that are remains of past activities by Native Americans, and historic properties to which Indian tribes attach cultural or religious significance. Examples of Federal Laws and Regulations That Apply to Native American Cultural Resources ARPA, NAGPRA, and section 106 of the NHPA are examples of federal laws that apply to Native American cultural resources. These laws and their implementing regulations contain many different provisions applicable to Native American cultural resources, including requirements for federal agencies to consult with Indian tribes in certain circumstances. ARPA and NAGPRA, among other things, prohibit trafficking of certain archaeological resources and Native American cultural items, respectively. In August 2018, we reported on federal laws that address the export, theft, and trafficking of Native American cultural items and any challenges in proving violations of these laws. That report included a discussion of ARPA and NAGPRA. In addition, we reported in August 2018 that ARPA and NAGPRA contain provisions prohibiting the removal of archaeological resources and Native American cultural items from certain lands unless certain conditions are met, including consultation with Indian tribes. Specifically, ARPA prohibits, among other things, the excavation or removal of archaeological resources from public or Indian lands without a permit from the federal agency with management authority over the land. If the federal agency determines that issuance of such a permit may result in harm to, or destruction of, any religious or cultural site, the agency must notify any Indian tribe which may consider the site as having religious or cultural importance and meet, upon request, with tribal officials to discuss their interests. NAGPRA prohibits the intentional removal from, or excavation of, Native American cultural items from federal or tribal lands unless an ARPA permit has been issued and other requirements are met. Specifically, regulations implementing NAGPRA require federal agency officials to take reasonable steps to determine whether a planned activity on federal lands may result in the excavation of human remains or other cultural items. Officials are also required to consult with certain tribes, including any tribe on whose aboriginal lands the planned activity will occur, about the planned activity. After consultation, the federal agency official must complete and follow a written plan of action that includes, among other things, the planned treatment, care, and disposition of human remains and other cultural items recovered. NAGPRA and its implementing regulations also include provisions regarding inadvertent discovery of Native American cultural items on federal and tribal lands. Specifically, the person making the discovery must notify the responsible federal agency or tribal official, stop any activity occurring in the area of the discovery, and make a reasonable effort to protect the human remains or other cultural item discovered. The NAGPRA regulations specify procedures for the agency and tribal officials to take after receiving a notification and when the activity that resulted in the inadvertent discovery can resume. Section 106 of the NHPA In March 2019, we reported that under section 106 of the NHPA and its implementing regulations, federal agencies are required to consult with Indian tribes when agency “undertakings” may affect historic properties— including those to which tribes attach religious or cultural significance— prior to the approval of the expenditure of federal funds or issuance of any licenses. The implementing regulations require agencies to consult with Indian tribes for undertakings that occur on or affect historic properties on tribal lands or may affect historic properties to which Indian tribes attach religious or cultural significance, regardless of where the historic properties are located. In addition, these regulations establish the following four-step review process for federal agencies, with tribal consultation required for each step: (1) initiating the section 106 process, (2) identifying historic properties, (3) assessing adverse effects, and (4) resolving adverse effects. Examples of Factors Tribes and Selected Agencies Identified That Impact the Effectiveness of Federal Agencies’ Consultation Efforts As we found in March 2019, tribes and selected federal agencies identified a number of factors that hinder effective consultation on infrastructure projects, based on our review of the comments submitted by 100 tribes to federal agencies in 2016 on tribal consultation and our interviews with officials from 57 tribes and 21 federal agencies. Tribes identified a variety of factors that hinder effective consultation. For the purposes of this testimony, we are highlighting those factors that more than 60 percent of the 100 tribes identified as concerns. For example: Agencies’ timing of consultation. Sixty-seven percent of tribes that provided comments to federal agencies in 2016 identified concerns with agencies initiating consultation late in project development stages; according to one tribal official we interviewed, late initiation of consultation limits opportunities for tribes to identify tribal resources near proposed project sites and influence project design. Agency consideration of tribal input. Agencies often do not adequately consider the tribal input they collect during tribal consultation when making decisions about proposed infrastructure projects, according to 62 percent of tribes that provided comments to federal agencies in 2016. Tribes’ comments included perceptions that agencies consult to “check a box” for procedural requirements rather than to inform agency decisions. Agency respect for tribal sovereignty or the government-to- government relationship. Other concerns were related to agencies’ level of respect for (1) tribal sovereignty or (2) the government-to- government relationship between the United States and federally recognized tribes, according to 73 percent of tribes that provided comments to federal agencies in 2016. Comments included concerns that some agency practices are inconsistent with this relationship. For example, tribes cited agencies limiting consultation to tribal participation in general public meetings and sending staff without decision-making authority to represent the U.S. government in consultation meetings. Agency accountability. Sixty-one percent of tribes that provided comments to federal agencies in 2016 raised concerns related to the extent of agencies’ accountability for tribal consultation, stating that some agencies or officials are not held accountable for consulting ineffectively or for not consulting with relevant tribes. For example, comments included concerns that tribes may not have appeal options short of litigation when they believe that federal officials did not adhere to consultation requirements. In addition, officials from 21 federal agencies included in our March 2019 report identified factors that they had experienced that limit effective consultation for infrastructure projects. For the purposes of this testimony, we are highlighting those factors that more than 60 percent of the 21 agencies identified as concerns. For example: Maintaining tribal contact information. Officials from 14 of 21 agencies (67 percent) cited difficulties obtaining and maintaining accurate contact information for tribes, which is needed to notify tribes of consultation opportunities. For example, ongoing changes or turnover in tribal leadership make it difficult to maintain updated tribal information, according to some agency officials we interviewed. Agency resources to support consultation. Officials from 13 of 21 agencies (62 percent) cited constraints on agency staff, financial resources, or both to support consultation. Officials from these agencies said that they have limited funding to support consultation activities, such as funding for their staff to travel to in-person consultation meetings for infrastructure projects. Agency workload. Officials from 13 of 21 agencies (62 percent) identified a demanding workload for consultation as a constraint, because of large numbers of tribes involved in consultation for a single project, high volumes of consultations, or lengthy consultations, among other reasons. Officials from some of these agencies said that it may be difficult to stay on project schedules when there are multiple tribes to consult with or multiple agencies involved. In March 2019, we also found that the 21 agencies in our review had taken some steps to facilitate tribal consultation, but the extent to which these steps had been taken varied by agency. For example: Developing information systems to help contact affected tribes. Eighteen agencies developed systems to help notify tribes of consultation opportunities, which generally include contact information for tribal leaders or other tribal officials. Three of these agencies also included information on tribes’ geographic areas of interest. For example, the Department of Housing and Urban Development developed a system that aims to identify over 500 tribes’ geographic areas of interest and includes their contact information. The Federal Permitting Improvement Steering Council identified developing a central federal database for tribal points of contact as a best practice. We recommended that the council should develop a plan to implement such a database and consider how it will involve tribes to help maintain the information, among other actions. Developing policies to communicate how they considered tribal input. Five agencies’ tribal consultation policies specify that agencies are to communicate with tribes on how tribal input was considered. For example, the Environmental Protection Agency’s policy directs the most senior agency official involved in a consultation to send a formal, written communication to the tribe to explain how the agency considered tribal input in its final decision. However, 16 agencies did not call for such communications in their policies. We recommended that these agencies update their tribal consultation policies to better communicate how tribal input was considered in agency decision- making. Addressing capacity gaps through training. Most of the 21 selected federal agencies have taken steps to facilitate tribal consultation for infrastructure projects by providing a range of training opportunities for staff involved in tribal consultation to help build agency officials’ knowledge of tribal consultation topics. For example, the U.S. Army Corps of Engineers coordinates an immersive, 4-day training, hosted by a tribe on the tribe’s land or reservation for agency staff and other participating agency officials, which focuses on cultural competency important for tribal consultation. Utilizing various approaches to address resource constraints. Some of the selected federal agencies used various approaches to help address resource constraints agencies and tribes may face when consulting on infrastructure projects, according to agency officials. For example, the Bureau of Land Management’s policies state that the agency may use its appropriated funds and designated accounts to reimburse tribal members’ travel expenses to attend meetings in connection with some consultations. The Nuclear Regulatory Commission collects fees from project applicants to cover agency costs related to consultation. In conclusion, effective consultation is a key tenet of the government-to- government relationship the United States has with Indian tribes, which is based on tribal sovereignty. Failure to consult, or to consult effectively, sows mistrust; risks exposing the United States to costly litigation; and may result in irrevocable damage to Native American cultural resources. In our March 2019 report, we made recommendations to 17 agencies to take steps to improve their tribal consultation practices, which agencies generally agreed with and in one case, have implemented. However, sustained congressional attention to these issues and the relevant factors impacting the effectiveness of agencies’ consultation efforts may help to minimize the negative impacts on tribes’ cultural resources, when relevant federal laws and regulations apply. Chairman Gallego, Ranking Member Cook, and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions that you may have at this time. GAO Contacts and Staff Acknowledgments For further information regarding this testimony, please contact Anna Maria Ortiz at (202) 512-3841 or ortiza@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Key contributors to this statement include Lisa Van Arsdale (Assistant Director), Brad Dobbins, Leslie Kaas Pollock, and Jeanette Soares. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.