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Hobbs Straus successfully defended a former casino workers’ suit against a Tribe in a Tenth Circuit case finding absence of federal jurisdiction over non-Indian contract and tort disputes arising in Indian country. (2009)

General Memorandum 16-031

General Memorandum 16-031
DOI Publishes List of Non-BIA Programs Eligible for Inclusion in Self-Governance Funding Agreements

On April 29, 2016, in the FEDERAL REGISTER, the Department of the Interior (DOI) published the attached notice which lists non-Bureau of Indian Affairs (BIA) programs, services, functions, and activities (or portions thereof) eligible to be included in self-governance funding agreements and lists the FY 2016 programmatic targets for these non-BIA bureaus. DOI annually publishes this notice in the FEDERAL REGISTER. These programs are eligible for inclusion in Funding Agreements until September 30, 2016.

Determining Eligible Programs, Services, Functions, and Activities (PSFAs). There are two categories of PSFAs (or portions thereof) eligible to be included in self-governance funding agreements:

1) Any non-BIA PSFA that is administered by DOI that is "otherwise available to Indian tribes or Indians;" and
2) Any non-BIA PSFA that is of "special geographic, historical, or cultural significance" to a tribe.

Funding agreements cannot include PSFAs that are "inherently Federal" or where the statute establishing the existing program does not authorize the type of participation sought by the tribe. However, a tribe need not be identified in the authorizing statutes in order for a PSFA or element of such PSFA to be included in a self-governance funding agreement. While general legal and policy guidance regarding what constitutes an inherently federal function exists, the non-BIA bureaus will determine whether a specific function is "inherently Federal" on a case-by-case basis considering the totality of circumstances. In those instances where a tribe disagrees with a bureau's determination, the tribe may request reconsideration from the Secretary of Interior.

Non-BIA Bureaus. Tribes may include PSFAs from the following non-BIA bureaus in self-governance funding agreements: Bureau of Land Management; Bureau of Reclamation; Office of Natural Resources Revenue; National Park Service; Fish and Wildlife Service; U.S. Geological Survey; and the Office of the Special Trustee for American Indians. The attached notice lists the FY 2016 tribal self-governance agreements with non-BIA agencies at the Department of the Interior.

Please let us know if we may provide additional information or assistance regarding this FEDERAL REGISTER notice.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com)
Moriah O'Brien (mobrien@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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