Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Silakkuagvik Communications, Inc.
Docket No. A-98-84
Decision No. 1675
DECISION
Silakkuagvik Communications, Inc. (Appellant) appealed the May 27, 1998 determination by the Administration for Native Americans (ANA) that Appellant was not an eligible applicant for funding under the Native American Programs Act of 1974, as amended by the Native American Languages Act of 1992. Appellant, the owner and operator of public radio station KBRW in Barrow, Alaska, sought a grant for a Traditional Language and History Project which would: (1) inventory and catalog KBRW's Inupiaq language audio tape collection as well as the collection of KOTZ, another Alaskan public radio station; (2) permanently archive KBRW's and KOTZ's collections on optical storage media; and (3) create an interactive learning resource in the form of a Inupiaq language CD-ROM. See id. at 2-4. ANA determined that Appellant was ineligible for a grant because it failed to provide assurance that its board of directors was representative of the community to be served, as required by 45 C.F.R. . 1336.33(a) (implementing the Native American Languages Act). Appellant appealed ANA's determination to the Board pursuant to 45 C.F.R. . 1336.35. Under this provision, if the Board concludes that an applicant is eligible, the applicant may compete in the next cycle of grant proposals considered by ANA.
As explained in detail below, we conclude that ANA properly determined that Appellant did not qualify as an eligible applicant based on the criteria in ANA's announcement of the availability of grants under the Native American Languages Act. Although the Board gave Appellant ample opportunity to respond to ANA's explanation of why Appellant did not meet these criteria and to furnish additional evidence, Appellant simply maintained that it had met the criteria without providing any additional support for its position. Accordingly, we uphold ANA's determination.
Background
The Native American Languages Act authorizes the Secretary to award grants "to be used to assist Native Americans in ensuring the survival and continuing vitality of Native American languages." 42 U.S.C. 2991b-3(a). Section 2991b-3(a) authorizes the award of such grants in accordance with section 2991b, which provides for grants to --
public and nonprofit private agencies, including but not limited to, governing bodies of Indian tribes on Federal and State reservations, Alaska Native villages and regional corporations established by the Alaska Native Claims Settlement Act . . . .,
and such public and nonprofit private agencies serving Native Hawaiians, and Indian and Alaska Native organizations in urban or rural areas that are not Indian reservations or Alaska Native villages . . . .
In 1996, ANA issued regulations which specify the eligible applicants for grants under the Native American Languages Act as well as other programs authorized by amendments to the Native American Programs Act. Section 1336.33 provides in relevant part:
(a) Eligibility for the listed programs is restricted to the following specified categories or organizations. . . . If the applicant, other than a tribe or an Alaska Native Village government, is proposing a project benefiting Native Americans or Native Alaskans, or both, it must provide assurance that its duly elected or appointed board of directors is representative of the community to be served.
(1) . . . Preservation and Enhancement of Native American Languages:
(I) Federally recognized Indian Tribes;
(ii) Consortia of Indian Tribes;
(iii) Incorporated non-Federally recognized Tribes;
(iv) Incorporated nonprofit multi-purpose community based Indian organizations;
(v) Urban Indian centers;
(vi) National and regional incorporated nonprofit Native American organizations with Native American community-specific objectives;
(vii) Alaska Native villages . . .
(viii) Incorporated nonprofit Alaska Native multi- purpose community-based organizations;
(ix) Nonprofit Alaska Native Regional Corporations/Associations in Alaska with village specific projects;
(x) Nonprofit Native organizations in Alaska with village specific projects;
(xiv) Nonprofit Alaska Native community entities or tribal governing bodies (Indian Reorganization Act or traditional councils) as recognized by the Bureau of Indian Affairs.
ANA's regulations thus limit eligibility for a grant under the Native American Languages Act to Native American or Alaska Native organizations which are either governmental entities (i.e., a tribe or Alaska Native Village government) or corporations with a board of directors representative of the community to be served.
ANA also provided guidance regarding grant eligibility in a program announcement published in the Federal Register on January 9, 1998 (Program Announcement No. 93612-982, 63 Fed. Reg. 1475). The program announcement lists the same categories of eligible applicants as the regulations and states in pertinent part:
If the applicant, other than a tribe or an Ala ska Native Village government, is proposing a project benefiting Native Americans, Alaska Natives, or both, it must provide assurance that its duly elected or appointed board of directors is representative of the community to be served. To establish compliance with this requirement in the regulations, applicants must provide information establishing that at least ninety (90) percent of the individuals serving on a non-profit applicant's board fall into one or more of the following categories: (1) a current or past member of the community to be served; (2) a prospective participant or beneficiary of the project to be funded; or (3) have a cultural relationship with the community be to served.
63 Fed. Reg. 1475, 1477.
Appellant is a private non-profit membership organization that operates KBRW, a sole service non-commercial public radio station providing multi-lingual program services to the North Slope of Alaska (an incorporated Borough). See Appellant's Application for Funding, ANA Ex. B, Tab E at 1-2. Appellant's board of directors consists of nine members. Appellant's appeal file, Tab 6. Seven of the nine board members are Alaska Natives, while the remaining two board members are Caucasians. Id.
The information concerning the composition of Appellant's board of directors was submitted with Appellant's appeal to the Board. Appellant's grant application did not contain any such information, and ANA's determination of ineligibility simply cited the provisions in the regulations and program announcement concerning the composition of the board.
Parties' Positions
On appeal, Appellant asserted that "in every respect, Silakkuagvik Communications is an organization owned and operated by Native Alaskans." Letter dated 6/23/98, at 1. Appellant pointed out that the regulations do not contain the requirement in the program announcement that 90% of the members of the board of directors meet one of three specified criteria. Nevertheless, Appellant contended that all of the members of its board meet two of the three criteria. Specifically, Appellant asserted that all of the board members "are current members of the Native communities to be served." Id. at 2. Appellant further asserted that "[e]ach of the nine Board members has a Native cultural relationship with the community to be served . . . ." Id.
ANA determined that the seven board members who are Alaska Natives are members of the community to be served. See ANA Br. dated 8/17/98, at 5. However, ANA took the position that Appellant must also establish that at least one of the two remaining board members meets a criterion in the program announcement in order for Appellant to be eligible for a grant. (Although 90% of nine is 8.1, ANA rounded down to eight.) ANA stated that the fact that Appellant's list of board members shows that the two Caucasian board members have post office boxes in Barrow, Alaska--one of the areas served by KBRW--is insufficient to establish that these individuals are members of the Native community to be served or have a cultural relationship with that community. See id. at 6.
In response to this Board's inquiry, Appellant provided additional information regarding the two board members in question. According to Appellant, one is a homeowner in Barrow who was married to an Inupiaq resident of Barrow for a number of years but later divorced. This individual at one time served as the Borough's Director of Health and Social Services and in this capacity implemented many previously unavailable health services in Barrow and other villages in the North Slope, including the Community Health Aide Practitioner program, which trained Native American men and women to deliver first response health care in each village. In addition, this individual serves as the North Slope's only court-appointed guardian representing Native American children before the state and federal court system. See Appellant's letter dated 10/21/98, at 1. The other individual is also a homeowner in Barrow, where he has lived for 17 years. He works for an air service company which is wholly owned and operated by a Native American family. He has also held appointed and elective office in Barrow, mostly recently having been elected to the Barrow City Council. In addition, he is active in a variety of community activities including Boy Scouts and the PTA. See id. at 2.
ANA responded that this additional information did not establish Appellant's eligibility for the grant because it showed only that the two individuals in question are members of the Barrow community, not the Alaska Native community. ANA also maintained that Appellant had not identified either individual's relationship with "any [N]ative cultural group or involvement in any ceremonial/cultural activities." ANA letter dated 11/3/98, at 2.
In a letter dated November 6, 1998, the Board stated that it tentatively appeared that the information provided by Appellant did not show that either of the two Board members in question met any criterion in the program announcement. The Board asked Appellant to "provide any additional information you may have concerning one or both of these individuals which in your view would establish that such a criterion was met . . ." and also stated that Appellant could reply to ANA's November 3, 1998 letter. Board letter dated 11/6/98, at 1. In response, Appellant simply maintained that "these long-time residents are individuals who have demonstrated their membership in the community." Appellant's letter dated 11/23/98, at 1.
Analysis
Appellant did not identify which category of eligible applicants listed in the regulation it claimed applied; however, it appears that the only category that could apply is section 1336.33(a)(1)(x): nonprofit Native organizations in Alaska with village specific projects. (The remaining non-government entities listed are multi-purpose or national or regional organizations, which Appellant clearly is not.) Under the applicable regulations (which are binding on the Board pursuant to 45 C.F.R. . 16.14), in order to qualify as such an organization, Appellant must have a board of directors representative of the community to be served. Appellant maintained that all of its board members are current members of the community to be served and thus representative of that community within the meaning of the regulations. Appellant viewed the community to be served as the residents of the geographic areas served by its radio station. However, those areas include significant numbers of non-Alaska Natives. See Appellant's appeal file, Tab 8. Since Appellant's proposed grant was for the purpose of ensuring the survival of the Inupiaq language traditionally spoken by Alaska Natives, ANA logically limited the community to be served to the Alaska Native community. Accordingly, ANA properly found that the mere fact that board members live in Barrow does not make the board representative of the community to be served.
Moreover, the 90% standard reflects a reasonable determination by ANA that, in order for a board of directors to be representative of the community served, substantially all of the board members must have the same characteristics as that community. The fact that Alaska Natives constitute a majority of Appellant's board and thus control Appellant's operations does not necessarily mean that the board is representative of the Alaska Native community as that requirement was implemented in the program announcement. Accordingly, ANA properly found the fact that seven of nine members of Appellant's board of directors are Alaska Natives insufficient to establish that Appellant was an eligible applicant.
Appellant nevertheless maintained that it was an eligible applicant because the two remaining board members met the criterion in the program announcement that they have a cultural relationship with the community to be served. For the same reasons discussed above with respect to the first criterion, this criterion requires a cultural relationship with the Alaska Native community, not with the residents of the geographic areas served by KBRW generally. Thus, the requisite cultural relationship is not established by the holding of municipal office or participation in Boy Scouts or the PTA in these areas, even assuming that these can be considered cultural activities. In addition, although these two individuals provide services to the Alaska Native community in the course of their employment, on its face this constitutes a professional relationship with that community. It is conceivable that one or both of these individuals could have established cultural ties with that community as a result of their professional relationship; however, Appellant did not allege that that was the case or provide any documentation (such as an affidavit from either individual) that would support a finding to that effect.
Appellant also stated in support of its position that one of the two remaining board members had been married to an Inupiaq resident of Barrow. While ANA found this insufficient to establish that she was a member of the Inupiaq community, a tribal government has the right to define its own membership for tribal purposes. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Thus, it is possible that the Inupiaq considered a non-Native spouse as an Inupiaq. In that event, the subsequent divorce would be irrelevant since the program announcement accepts a "past member" of the community to be served as representative of that community. Absent any allegation by Appellant that the individual in question was at one time considered an Inupiaq under tribal law, however, we cannot conclude that Appellant was an eligible applicant on this basis.
As Appellant pointed out, the regulations simply require that the board of directors be representative of the community to be served. However, the program announcement clearly indicates that ANA interpreted this requirement as meaning that 90% of the board of directors meet one of three criteria. This Board has consistently held that it will defer to a federal agency's interpretation of a statute or regulation if the interpretation is reasonable and the party against whom it is to be applied had timely notice of the interpretation (or, in the absence of notice, did not reasonably rely on its own interpretation). See, e.g., Maryland Dept. Of Human Resources, DAB No. 1667, at 22 (1998). As indicated by the foregoing discussion, we conclude that ANA's interpretation of section 1336.33 is reasonable. In addition, Appellant had timely notice of ANA's interpretation since it was included in the Federal Register notice announcing the availability of grants under the Native American Languages Act. Moreover, the Board will not substitute its judgment for that of ANA, the agency charged with administering the grant program, where ANA has reasonably applied its interpretation of the regulations to the facts presented by Appellant.
Conclusion
For the reasons set forth above, we uphold ANA's determination that Appellant was not an eligible applicant for a grant under the Native American Languages Act of 1992. This decision does not preclude ANA from reconsidering its determination of ineligibility based on any evidence that may subsequently be provided by Appellant, however.
______________________
Donald F. Garrett
______________________
M. Terry Johnson
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Cecilia Sparks Ford
Presiding Board Member