SUBJECT: Ponca Native American Church

DATE: February 20, 1998

Docket No. A-98-5

Decision No. 1648

PNAC did not identify in its application the eligibility category under which it claimed to qualify for SEDS funding, and ANA did not assert that PNAC was required to do so. However, since Native American churches are not specifically listed in the Announcement or regulations as eligible applicants, ANA was necessarily obligated to consider whether this church qualified under any of the listed categories. ANA concluded that the only arguably applicable category was as a multipurpose organization and that PNAC did not qualify for that category.

Despite PNAC's claim that ANA never defined this term, the definition of the kind of organization eligible under this category is set forth in the Announcement itself, as follows:

> A "multi-purpose community-based Native American organization" is an association and/or corporation whose charter specifies that the community designates the Board of Directors and/or officers of the organization through an elective procedure and that the organization functions in several different areas of concern to the members of the local Native American community. These areas are specified in the by-laws and/or policies adopted by the organization. They may include, but need not be limited to, economic, artistic, cultural, and recreational activities, and the delivery of human services such as health care, day care, counseling, education and training.

Announcement at 44,135 (emphasis added).

PNAC was incorporated on August 14, 1996, and its application included its corporate documents. Its certificate of incorporation describes the purpose for which the corporation was formed as "exclusively religious." ANA Br., Att. B at 41. The corporate bylaws state that "the purpose of the corporation is exclusively religious." Id. at 45. PNAC did not point to any official policy statement adopted by the organization modifying or expanding its purposes, and none appears in the record. PNAC's proposal for funding makes a number of statements about the organization's aspirations to serve broader needs of the community in the future (and the proposal was approved for submission by PNAC's Board of Directors). See id. at 2, 20-26. Nevertheless, ANA correctly determined that offering a variety of services or activities (or intending in the future to do so) is not equivalent to an organization establishing multiple purposes. ANA Resp. to DAB Questions at 6. The definition of a multipurpose organization requires us to look not at the general intentions or proposed activities of an organization to determine its purposes but rather at the specific language of official bylaws or adopted policy statements. The official documents submitted by PNAC unequivocally state a single exclusive purpose. Consequently, we cannot find that PNAC is a multipurpose organization within the meaning of the term as defined in the Announcement.

Nevertheless, in order to qualify as an eligible multipurpose organization, PNAC had to show more than that it conducted service and cultural activities other than prayer services. PNAC had to show more than that its tax status was broad enough to permit wider activities. PNAC had to show that it had adopted a charter, bylaws or policy statements setting forth multiple purposes (as well as meeting the remaining elements of the applicable category). The view that all activities can or do partake of a spiritual or religious nature cannot in itself convert a statement of a single purpose into an adoption of multiple purposes.

PNAC also argued that the corporate documents should have less significance because they were merely attachments to the application, not part of the application per se. This argument is without merit. PNAC Br. at 2. Submission of the corporate papers was required to demonstrate PNAC's eligibility for funding. They formed an integral part of the application on which PNAC sought to have ANA rely in making its funding decisions. Since the definition of "multipurpose" depended on the content of the charter, bylaws and/or official organizational policies, omission of the corporate documents would have per se established ineligibility. Furthermore, these corporate documents were essential to showing that PNAC was incorporated and nonprofit, both requisite components of qualifying under this category.

The category of federally-recognized Indian Tribes became relevant only because PNAC suggested, in its response to a question from the Board as to whether PNAC alleged eligibility under any other category, that an alternative basis for its eligibility was as a "tribal organization." PNAC Resp. to DAB Questions at 2 (December 29, 1997). In support of this contention, PNAC submitted a resolution of the Ponca Tribe of Oklahoma, dated December 22, 1997, "recognizing [PNAC] as a traditional tribal organization." Id. at 2 and Tab A.

ANA responded that neither the Announcement nor its regulations list "tribal organizations" as a distinct category of eligible grantees. ANA Supplemental Submission at 2 (January 20, 1998). ANA asserted that it has funded such organizations under the category of federally-recognized Tribes only where they have acted as instruments of the Tribes analogous to agencies acting for state or local governments. Id. ANA argued that the tribal resolution did not establish that PNAC acted as an agency or arm of the tribal government, especially in light of the fact that the resolution was adopted only after the rejection of PNAC's application. Id.

PNAC argued that the Announcement did not state a requirement to show that PNAC was an agency or arm of the Tribe. PNAC Supplemental Submission at 3 (January 21, 1998). ⁽⁴⁾ Further, PNAC asserted that its status as a tribal organization was long-standing and was a matter of tribal sovereignty into which ANA should not inquire. Id. The critical issue here is not the duration or legitimacy of PNAC's status as a traditional tribal organization, however, but rather that PNAC did not demonstrate that it was acting as the Tribe in submitting this application. It is in this sense that "an arm or agency" of a governmental entity may be authorized to act as that government in taking certain actions on the government's behalf. Therefore, PNAC did not show that it qualified as being itself a federally-recognized tribe.

However, in further support of its claim that bona fide tribal organizations were eligible applicants, PNAC pointed to a section of the Announcement providing technical guidance to applicants. The Announcement states that ANA will accept only one application in each competitive area that impacts a specific reservation, Tribe or Native American community. Announcement at 44,137. The language quoted by PNAC in support of its assertion that tribal organizations were eligible applicants who qualified to submit such applications then follows:

If a Tribe . . . chooses not to submit an application under a specific competitive area, it may support another applicant's project (e.g., a tribal organization) which serves or impacts the reservation.

Announcement at 44,137, cited in PNAC Supplemental Submission at 3 (January 21, 1998)(emphasis added by PNAC). ⁽⁵⁾

Even if we were to conclude that the use of tribal organizations as an example of potential applicants that a tribe may support implied that a tribal organization supported by a tribe could thereby establish eligibility without qualifying under one of the listed categories, PNAC ignored the remainder of the language relating to tribal support. Specifically, the Announcement requires that an applicant claiming such tribal support must include "a Tribal resolution which clearly demonstrates the Tribe's support of the project and the Tribe's understanding that the other applicant's project supplants the Tribe's authority to submit an application under that specific competitive area for the duration of the approved grant period." Announcement at 44,137 (emphasis added). The resolution on which PNAC relies was not submitted with its application and was not even in existence then. Even if we assume that it represents a nunc pro tunc endorsement by the Tribe, the contents of the resolution are still fatally defective because they evidence no understanding or agreement by the Tribe that its own authority to submit any application for SEDS grant funds in this area would be supplanted for the duration of any period in which PNAC was funded.

The definition of "multipurpose community-based Native American organization" includes the criteria that it function in the "local Native American community." Announcement at 44,135 (emphasis added). Neither the Announcement nor the regulations provide any amplification of the definition of "national or regional incorporated nonprofit Native American organizations with Native American community specific objectives." ANA asserted that it distinguishes these levels of organization both functionally (in terms of meeting aggregate needs of multiple communities versus providing close contact to service a specific community) and geographically (in terms of the size of the areas served). ANA Supplemental Submission at 1-2 (January 20, 1998). As a factual matter, ANA argued that PNAC in its application portrayed itself as ministering to the religious needs of members who are drawn from a two-county area in Oklahoma, which ANA considered clearly local in both function and geography. ANA therefore concluded that PNAC could not qualify as a national or regional organization.

We conclude that, the record supports ANA in determining that PNAC is a local and not a national or regional organization. We therefore conclude that PNAC has not shown that it is eligible for funding under any of the categories in the Announcement. ⁽⁶⁾

II. PNAC's proposed project is ineligible for federal funds.

A. The Board was delegated authority to make the final administrative decision on ANA's determination that PNAC's proposed project is ineligible for funding.

The statute states that an applicant whose application is rejected because of the ineligibility either of the applicant or of the project is entitled to a decision on appeal to the Secretary (for whom the DAB serves as delegate in deciding these appeals) of the grounds for such rejection. 42 U.S.C. �2991h(b). ANA's determination to reject PNAC's proposed project solely on constitutional grounds placed the correctness of those grounds squarely before us in this appeal. Were we to decline to resolve ANA's determination that PNAC's project is ineligible for constitutional reasons, PNAC would not receive a decision on one of the two grounds for which its application was in fact rejected.

The parties agreed that the Board had authority to resolve the constitutional issue raised by the appeal of ANA's determination on this ground based on the statute and the regulation authorizing appeals in these cases. ANA Resp. to DAB Questions at 3; PNAC Resp. to DAB Questions at 1. PNAC expressly requested that the Board rule on both grounds on which ANA made determinations, i.e., the eligibility of the applicant and the eligibility of the project. PNAC Notice of Appeal at 1. While ANA stated that the Board need not decide the constitutional question about funding the project if we found PNAC ineligible as an applicant, ANA agreed that the Board had authority to decide the constitutional question presented. ANA Resp. to DAB Questions at 3. ANA acknowledged that there is no "alternate forum" to decide the issue and that "effectively PNAC would be deprived of its statutory right of appeal" on the question of whether its project was ineligible, which "would be clearly inconsistent with the intent of Congress in requiring that rejected applicants be given the opportunity to appeal ANA's eligibility decisions." Id. ⁽⁷⁾

ANA stated it does not bar funding of any "organization that has religion as one of its various or multiple purposes" and that if "PNAC were an organization which had more than one, single and exclusive purpose it would not be per se ineligible for ANA funding." ANA Resp. to DAB Questions at 15. ANA also stated that it never argued that PNAC is "disabled from competing for ANA grants because it may be characterized as a religious institution." Id. at 18. ANA thus took the position that religious institutions are not automatically ineligible to participate on that basis in ANA grant programs when they meet the categorical requirements .⁽⁸⁾ However, ANA found PNAC ineligible for the proposed project for two reasons under its constitutional analysis: first, because its "exclusively religious" purpose implied a "pervasively sectarian" nature for the organization which permeated all its activities and disqualified those activities from funding under the Constitution, and, second, because the goals of the proposed project were themselves explicitly and primarily religious in nature. Id. at 18-19.

(1) whether the statute has a "secular legislative purpose," (2) whether its primary effect is to advance or inhibit religion, and (3) whether it fosters an "excessive government entanglement" with religion. Id. There is no dispute that the statute here is neutral and secular in purpose, primarily aiming to increase the "economic and social service self-sufficiency of the Indian people" through grants. See H.Rep. No. 93-1043, 1993 U.S.C.C.A.N. 8059. Nor is there any claim that the statute in itself has as its primary effect either to advance or inhibit religion or that it fosters any entanglement with religion.

The Court has rejected a blanket approach that would prohibit any government action that aids in some way a religiously-affiliated organization. Hunt v. McNair, 413 U.S. 734, 742 (1973). Such assistance would, however, have the primary effect of promoting religion in a situation where the institution is one "in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting." Id. In Hunt, the Court upheld an aid program to colleges, including those with religious affiliations, on the basis that the college involved was not shown to be pervasively sectarian in its operations (although governed by and affiliated with a religious body) and that restrictions were imposed on the grants "sufficient to preclude the possibility that funds would be used for the construction of a building used for religious purposes." Bowen, 487 U.S. at 621 (summarizing Hunt holding).

We thus conclude that ANA was correct in its analysis that funding of religious organizations as recipients of grants under a neutral grant program would be permissible but that such grants could not be made to an organization that is pervasively sectarian or for activities that promote religion. We further conclude that the propriety of funding the planning of a building would depend on whether the building was to be used for religious purposes.

While not finding PNAC ineligible for all funding simply because of its character as a church, ANA concluded that, by describing itself in its corporate papers as not just religious but "exclusively religious," PNAC had essentially characterized itself as pervasively sectarian. ANA Resp. to DAB Questions at 20. Given this finding, ANA concluded that any activities carried out by PNAC must perforce be tied to its exclusive purpose. Further, ANA concluded that the activities in the project proposal partook of this character (even for those which were not, as many of them were, explicitly religious in nature). The project proposal sets out various functions as intended goals of PNAC to be facilitated through the proposed project. Some of these, such as assuming a "more direct responsibility for resolving community problems," including "delivery of supplemental social, health, cultural, and educational services to local community members," are not religious on the face of the description. ANA Br., Att. B at 24. Nevertheless, ANA reasonably concluded that these multiple activities must all be understood to be pursued for the sole religious purpose set out in the charter and bylaws. ANA Resp. to DAB Questions at 6-7. We thus find that, given the application before it, ANA reasonably determined that approving a grant for PNAC to plan a building for use by an avowedly exclusively religious organization would unavoidably entangle ANA in funding a pervasively sectarian institution for a specifically religious project.

PNAC argued that the building to be planned was not a "church building," as ANA characterized it, but a "community building."⁽¹⁰⁾ PNAC Br. at 1. PNAC argued that "all 'religious activities,' in the American secular definition, take place in a tipi" and that the "religious procedures and tenets" of the Native American Church will not "reach inside" the community building, which would instead serve to promote culture by providing community services and cultural activities for the entire Indian community.⁽¹¹⁾ Id. at 4. However, PNAC's project proposal in its application stated that the building would serve dual ends -- a facility "to house any cultural activities and service delivery programs that the Church may develop" as well as "a place for worship services and other ceremonials provided by the Church." ANA Br., Att. B at 23. Further, PNAC described the long-range goals for the project in its proposal as follows: "Goal #1 of the Church is to establish and maintain a place for religious worship." Id.⁽¹²⁾

The issue is not whether the building will be a "church," but whether it will be used for religious purposes. ANA did not, as PNAC contended, impose on PNAC definitions of which ceremonies are religious in nature or make "value judgments" about the meaning of "church" within PNAC's culture. See PNAC Br. at 6; PNAC Supplemental Submission at 2 (January 7, 1998). Instead, ANA reasonably relied on PNAC's self-identification of its plans as involving "a place for religious services." ANA Br., Att. B at 23.

It is possible that, had PNAC not (as we discussed above) characterized itself as exclusively religious in purpose, ANA might have addressed in a different context what the main functions of the building were to be.⁽¹³⁾ However, as the application in fact presented the project, the question of whether the primary purpose of the project was to use grant funds to plan a building for religious use, with community service as an adjunct, or whether the building was to be essentially a community center in which some ceremonial activities would also occur that were arguably cultural as much as religious, was overtaken by the underlying organizational purpose that PNAC asserted. Thus, in the context of the application, with its avowedly religious project goals, ANA was not required to engage in weighing the primacy of the promotion of religion in the plans for the use of the building, since any activities to be conducted by PNAC as presently constituted must be assumed to be in furtherance of its single purpose, i.e., religion.

C. The constitutional analysis is not different simply because the religious affiliation involved is Native American.

PNAC argued vigorously on appeal that the constitutional analysis derived from the First Amendment was not applicable to Native American churches in the same way as it would be in other situations. PNAC based this argument on two main grounds: (1) that religion is uniquely intertwined with culture in the Native American community so that any attempt at "separation" as it is ordinarily understood in constitutional law is inappropriate in this context, and (2) that the historical relationship between the United States government and Native American peoples requires and recognizes a unique status for Native American religion as part of protecting and preserving Native American culture. In reaching our conclusions, we do not reject the factual underpinnings of either of these grounds, i.e., that religion and culture are interconnected in a special way for Native American peoples and that a special historical relation exists between the United States government and Native American peoples. However, we find that these premises do not lead to the conclusion that the First Amendment has a different meaning as applied to federal funding for Native American churches under the statute at issue here.

PNAC cited to several sources of policy or law for the position that Indian religion is entitled to special treatment. The first was a transcript of remarks by President Clinton at a meeting with Indian tribal leaders on April 29, 1994. The remarks included the following excerpted statements:

PNAC Resp. to DAB Questions, Att. C, at 2. PNAC concluded that this statement evidenced a recognition by the government that religion and spirituality play a unique role in Indian culture. PNAC Notice of Appeal

at 2. This integration of spirituality and culture is not disputed by ANA. ANA Br. at 9.

PNAC relied on this interconnectedness to argue that barring funding for religious activities by Indian grantees would prevent any funding for Indian cultural preservation, or indeed, any Indian activities, since "[e]verything we do has religious meaning and undertone." PNAC Notice of Appeal at 2 (emphasis in original); PNAC Br. at 7. We respect PNAC's concerns for the centrality of spirituality to Native American culture. ANA has not argued, and we do not find, however, that the government is required by the First Amendment to eschew all support for cultural activities that partake of religious significance for Native American people. However, it does not follow that the special degree to which religion is tied to Indian culture prevents the federal government from recognizing distinctions in funding worship services or places for religious activities. Further, an important difference exists between the government avoiding actions that interfere with the free exercise of religious practices (as the President's statement promises) and the government providing direct funding for those practices.

The mandate to protect religious liberty is deeply rooted in this Nation's constitutional heritage. The Department seeks to ensure that American Indians are protected in the observance of their faiths. Decisions regarding the activities of the Department that have the potential to substantially interfere with the exercise of Indian religions will be guided by the First Amendment of the United States Constitution, as well as by statutes which protect the exercise of religion such as the Religious Freedom Restoration Act [RFRA], the American Indian Religious Freedom Act [AIRFA], the Native American Graves Protection and Repatriation Act, and the National Historic Preservation Act.

Id. at 3-4.

We turn next to the statutes cited in the Justice Department statement, on which PNAC also relied. RFRA, codified at 42 U.S.C. � 2000bb et seq., is no longer relevant since it was struck down as unconstitutional by the Supreme Court in City of Boerne v. Flores, 117 S.Ct. 2157 (1997). AIRFA provides that "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions . . . , including, but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U.S.C. � 1996. In 1994 , AIRFA was amended to protect the use of peyote for "bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion" from drug enforcement laws in the wake of Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). ⁽¹⁵⁾ 42 U.S.C. � 1996a. That case held that criminal laws prohibiting peyote consumption did not violate the Free Exercise Clause of the First Amendment and that a religious exemption, while permissible, was not constitutionally required. 494 U.S. at 890. ⁽¹⁶⁾ AIRFA has been described as "a law without teeth" that "creates neither a cause of action nor any judicially enforceable individual rights." Combs v. Corrections Corp. of American, 977 F. Supp. 799, 801 (W.D.La. 1997); see also Lockhart v. Kenops, 927 F.2d 1028 (8th Cir. 1991), cert. den., 502 U.S. 863, reh. den., 502 U.S. 1020 (1991). AIRFA has been held to require no more than that the rights that the First Amendment provides to all citizens must not be denied to Native Americans and their religious practices, and not to create additional rights beyond those. Crow v. Gullet, 541 F.Supp. 785, 793 (D.S.Dak. 1982).

PNAC acknowledged that it was "uncharted legal territory" to find in the case law or statutes that it cited "any additional First Amendment rights or protections to Native Americans beyond 'non-interference'." PNAC Resp. to DAB Questions at 4 (emphases in original). PNAC argued that the cited sources showed, at least, that ANA was not acting in accord with government policies, and that the case could be decided in its favor without resolving the question of the application of the First Amendment to Native American churches. Id. We agree that any expansion of constitutional protection to Native American churches beyond the right to non-interference would be uncharted and, in fact, contrary to precedent. We disagree, for the reasons discussed above, that ANA's actions are in conflict with the various policy sources relied on by PNAC.

While this decision upheld a federal law accommodating Native American religious practice against an equal protection and First Amendment challenge, we do not believe it can be properly extended to require the federal government to provide funding for religious activities. This interpretation reconciles the decision with Lyng. The Court there stated that the government should not be discouraged from accommodating Native American religious practices nor should it be insensitive to the religious needs of citizens, and indeed that special solicitude for the traditional Indian religions is called for, but unequivocally held that such solicitude does not rise to special religious rights for Native Americans. 485 U.S. 439, 454-55. It is also in accord with the decision in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). In that case, finding unconstitutional a New York law creating a special school district for a Hasidic religious enclave, the Court reasserted the general principle that the government must be neutral both to religion in general and between religions, while recognizing the legitimacy of accommodating religious practices in ways that do not amount to favoritism or sponsorship. 512 U.S. at 704-06.

III. PNAC's other arguments do not justify reversing ANA's determination.

PNAC also complained that ANA had improperly failed to undertake a substantive review of the merits of the project proposal (including review by Indian grant reviewers) because ANA rejected it as ineligible on legal and Constitutional grounds. See, e.g., PNAC Supplemental Submission at 1 (January 7, 1998). However, we find that, given our conclusion that ANA's determination of ineligibility was well-founded, ANA acted properly in removing the application from the grant review process at that point. Since this is a competitive process in which limited funding must be divided among competing applicants based on specific evaluation criteria rather than need alone (see Announcement at 44,122 and 44,136), it would be unfair and unproductive to require ANA to make a substantive evaluation of the merits of a project proposed by an applicant which would be ineligible to receive the funds. This is consistent with the Announcement, which states that only "[c]omplete applications that conform to all the requirements of this program announcement" are subject to the full review and evaluation process, including the independent review panels, while those that do not conform "will not be accepted for review." Id. at 44,136. A pre-review is to screen out ineligible applicants. Id. The applicant is to be notified in writing of its initial rejection from competitive evaluation, and, where the basis is ineligibility, to be accorded an opportunity to appeal to the Board. Id. The described pre-review procedure was followed in this case.

We also note that nothing in this decision is intended to disparage the Native American Church or diminish the importance of its past or future role in serving community needs. As the Supreme Court remarked in regard to the legitimate benefits and needs of church-related schools, the Constitution focuses not on the merits of a given religious institution but on the removal of the government from entanglement with religion. Lemon, 403 U.S. at 625. Although PNAC argued that the concept of separation of church and state has a far different meaning in its culture, the federal government must be bound in its actions by the meaning of the terms found in the First Amendment and neutrally applied to all.

For the reasons explained above, we uphold ANA's determination to reject PNAC's grant application.

Donald F. Garrett

Norval D. (John) Settle

Cecilia Sparks Ford

Presiding Board Member

1. We also note that the Announcement included reference to ANA funding pre-construction activity in discussing suitable sources of matching funds commitments.