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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).


Office of Management and Budget Releases 2011 Circular A-133 Compliance Supplement

The Single Audit Act of 1984 (31 U.S.C. § 7501 et seq.) established requirements for audits of states, local governments, and Indian tribal governments that administer federal financial assistance programs. Each year, the Office of Management and Budget (OMB) issues a Compliance Supplement to assist auditors in performing the required audits by identifying existing important compliance requirements that the federal government expects to be considered as part of an audit. On June 6, 2011, OMB issued a notice in the FEDERAL REGISTER of the 2011 Compliance Supplement's availability, and offered interested parties an opportunity to comment. See Notice of Availability of the 2011 OMB Circular A-133 Compliance Supplement, 76 Fed. Reg. 108 (June 6, 2011). The deadline for comments is October 31, 2011. The 2011 Supplement may be viewed at the following link:

This 2011 Supplement is effective for audits of fiscal years beginning after June 30, 2010, and supersedes the OMB 2010 Circular A-133 Compliance Supplement. In total, the 2011 Supplement includes 248 individual programs; a list of specific changes made to individual programs can be found at Appendix 5 in the 2011 Supplement.

New to the 2011 Supplement are some program-wide and Indian Self-Determination and Education Assistance Act-specific changes. First, the Matrix of Compliance Requirements in Part 2 of the 2011 Supplement adds "Reporting" requirements for Program #15.022, Tribal Self-Governance, to reflect subaward reporting requirements under the Federal Funding Accountability and Transparency Act (Transparency Act) (31 U.S.C. § 6101); and adds "Special Tests and Provisions" requirements for Program #15.047, Indian Education Facilities, Operations, and Maintenance, due to the requirements of the American Recovery and Reinvestment Act (ARRA) (PL 111-5).

Second, the Compliance Requirements in Part 3 were updated to reflect additional compliance requirements and related audit objectives that the auditor shall consider in every audit, including: (1) the effect of the Buy-American Act (41 U.S.C. § 10a-10d), and its exceptions for international agreements, on ARRA-funded projects in Section I, Procurement and Suspension and Debarment [see pp. 3-I-1 to 3 of the 2011 Supplement]; (2) a clarification of the use of "best available data" for ARRA quarterly reporting [See p. 3-L-6 of the 2011 Supplement]; and (2) the effect of the (Transparency Act) on reporting requirements in Section L, Reporting. The 2011 Supplement confirms that the same approach used for subaward reporting under the Transparency Act as is used for ARRA Section 1512 reporting when the Matrix of Compliance Requirements indicates that Reporting is "applicable." Therefore, the designation "Not Applicable" means the program is not subject to Transparency Act reporting while "Applicable" means that award recipients must provide the required reports. [See p. 3-L-1 of the 2011 Supplement].

The 2011 Supplement adds requirements related to subaward reporting under the Transparency Act and a comparison between ARRA requirements and Transparency Act requirements to Part III Section L. [See pp. 3-L-7 to 11, 3-L-15 to 17 of the 2011 Supplement]. Each program in Part IV has been updated with a new "III.L.5, Subaward Reporting under the Transparency Act" section to assist the auditor in determining whether reporting under the Transparency Act applies to that program. Because programs and awards with ARRA funding are exempt from the Transparency Act subaward reporting requirements, the 2011 Supplement also notes that for those programs or clusters with ARRA and non-ARRA funding, that the Transparency Act reporting only applies to non-ARRA funds.

Part 4, Agency Program Requirements, does not list any substantive changes to ISDEAA program requirements under Department of Interior Sections 15.000 to 15.047 besides the addition of ARRA reporting requirements for ARRA-funded projects under Program # 15.047 and Transparency Act reporting requirements for subawards under Program # 15.022. There are no changes to the Indian Health Service Self-Governance compact program requirements under Department of Health and Human Services Section 93.210. However, a number of programs, including some that are ARRA-funded, do have substantive changes; please review Appendix 5 to the 2011 Supplement at for a list of all program changes.

Please let us know if we may provide additional information regarding the Office of Management and Budget's 2011Circular A-133 Compliance Supplement.

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Inquires may be directed to:
Geoff Strommer ( or
Moriah O'Brien (

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