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Opinion 98020

DATE: March 18, 1998

SUBJECT: Whether The Ponca Tribe Is Eligible To Receive Substance Abuse Funding From The Department Of Health and Human Services Pursuant to Neb. Rev. Stat. §§ 71-5016 Through 5040 And Whether The Ponca Tribe May Enter Into An Agreement With HHS Pursuant To The State-Tribal Cooperative Agreements Act, Neb. Rev. Stat. §§ 13-1501 Through 13-1509.




REQUESTED BY: Judi M. Morgan, Executive Director of Commission on Indian Affairs




WRITTEN BY: Don Stenberg, Attorney General

Melanie J. Whittamore-Mantzios

Assistant Attorney General




You have asked our opinion regarding the following:




1. Whether or not the Ponca Tribe can obtain substance abuse

funding from the Department of Health and Human Services (HHS)

in the same manner that annual funding for substance abuse

services is provided to three other Nebraska Tribes, i.e.,

Santee Sioux, Omaha, and Winnebago.




2. Whether or not the Ponca Tribe may enter into a State

Tribal-Cooperative Agreement with HHS pursuant to Neb. Rev.

Stat. §§ 13-1501 through 1509 (1997) in order to obtain

substance abuse funding.




Before addressing your first question, we will summarize the

legislation that pertains to the status of the Ponca Tribe and the

provision of substance abuse funding throughout the state.




In 1990, Congress passed the "Ponca Restoration Act" which

restored Federal recognition to the Ponca Tribe of Nebraska. 25

U.S.C.A. §§ 983 through 983h. Accordingly, all federal laws of

general application to Indians and Indian tribes apply to the Ponca

Tribe and its members. 25 U.S.C.A § 983a. Congress determined

that reservation status would not be granted to any land acquired

by or for the Tribe. 25 U.S.C.A. § 983e. Nevertheless, the tribe

and its members are eligible for all federal services and benefits

furnished to federally recognized tribes without regard to the

existence of a reservation for the tribe. In the case of federal

services available to members of federally recognized tribes

residing on or near a reservation, members of the Ponca Tribe

residing in Knox, Boyd, Madison, Douglas, or Lancaster counties of

Nebraska or Charles Mix county of South Dakota shall be deemed on

or near a reservation. 25 U.S.C.A. § 983c.




The Nebraska Legislature created a framework for the treatment

of alcoholism with Neb. Rev. Stat. §§ 71-5016 through 71-5040

(1996). The services are funded through the General Fund and

matching funds from regional governing boards representing the

combination of various counties. Neb. Rev. Stat. § 71-5027 states

as follows:




[t]he six regional governing boards established pursuant to

section 71-5004 shall provide community alcoholism facilities,

programs, and services. The boards shall provide funds for

such community-based projects. Federal funding, private

sources, third-party payments, and fees collected may be used

as sources of necessary funds. Each regional governing board

shall provide one dollar for every three dollars provided from

the General Fund. Of the amount provided by each regional

governing board, not less than forty percent shall be provided

by local and county taxes and the remainder shall come from

other nonfederal sources. Regional governing boards shall not

be required to provide such matching funds for alcohol

treatment programs located on Indian reservations. . . .




In our opinion, this statute establishes that funding from the

General Fund is available for all community alcoholism facilities.

If a facility is on a reservation, then matching funds from the

regional governing board are not required.




In accordance with the foregoing laws, it is our opinion that

a community alcoholism facility established by the Ponca Tribe is

eligible for funds from the General Fund in the same manner as a

facility established by any other group of citizens. Because the

Ponca Tribe cannot receive reservation status for any land that the

Ponca Tribe acquires (per federal law), the location of any

substance abuse program established by the tribe will not be on a

reservation. Therefore, the Ponca Tribe program will be eligible

for matching funds from the regional governing boards as well as

funds from the General Fund.




You have also asked whether the State-Tribal Cooperative

Agreements Act, Neb. Rev. Stat. §§ 13-1501 through 1509 (1997),

applies in this situation. HHS is a public agency as defined by

Neb. Rev. Stat. § 13-1502(2) in that it is a department of the

state. The Ponca Tribe is a tribal government as defined by Neb.

Rev. Stat. § 13-1502(3) in that the Ponca Tribe is recognized as

eligible for services provided by the United States to Indians

because of their status as Indians. 25 U.S.C.A. § 983c.

Therefore, the Ponca Tribe and HHS could enter into a State-Tribal

Cooperative Agreement as provided in Neb. Rev. Stat. § 13-1503

(1997) if the Ponca Tribe and HHS so desired.




Sincerely,




DON STENBERG

Attorney General








Melanie J. Whittamore-Mantzios

Assistant Attorney General