The definitions in 25 U.S.C. 1304(a) apply to the Reimbursement to Tribal Governments for Expenses Incurred in Exercising Special Tribal Criminal Jurisdiction (hereinafter referred to as “the Tribal Reimbursement Program” or “this program”).

(a) Tribal governments eligible to seek reimbursement under this program are the governments of Tribal entities recognized by and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian Tribes, that exercise Special Tribal Criminal Jurisdiction (STCJ), as defined by 25 U.S.C. 1304(a)(14) or section 812(5) of Public Law 117-103 (“participating Tribes”).

(b) Tribes that are in the planning phases prior to implementing STCJ are not eligible for reimbursement of planning costs from this program.

(c) Participating Tribes that are currently exercising jurisdiction over non-Indian offenders who commit any covered crime, as defined by 25 U.S.C. 1304(a)(5), and are in the planning phase to exercise jurisdiction over additional covered crimes are eligible for reimbursement with regard to the cases for which they already are exercising jurisdiction but not for planning costs.

Each year for which funds are available for the Tribal Reimbursement Program, the Office on Violence Against Women (OVW) will issue a Notice of Reimbursement Opportunity with instructions on how to apply for the maximum allowable reimbursement. The reimbursement request for each participating Tribe will include a certification that the participating Tribe meets the eligibility requirements of § 90.31. It will also include a list of expenses that the participating Tribe incurred in exercising STCJ in the previous year, in categories such as law enforcement, prosecution, indigent defense, pre-trial services, corrections, and probation. If a participating Tribe has newly implemented tribal criminal jurisdiction over non-Indians and therefore cannot submit 12 months' worth of expenses for the prior year, the participating Tribe may use estimated amounts for each category of expenses.

OVW will set aside for this program up to 40 percent of funds appropriated pursuant to 25 U.S.C. 1304(j), unless otherwise provided by law. The funds set aside for the Tribal Reimbursement Program will be divided into two parts: one part that will guarantee the availability of funds for each participating Tribe that requests reimbursement up to the maximum allowable reimbursement, and one part that will fund waivers of the maximum. In the first year that OVW administers appropriated funds for this program, OVW will allot 25 percent of Tribal Reimbursement Program funds for maximum allowable reimbursements. In subsequent years, OVW may adjust this percentage, based on the appropriations available, the number of participating Tribes, the extent to which participating Tribes expend the maximum allowable reimbursement in the prior year, and the total dollar amount of waivers requested during the prior year. OVW also may consider whether demand for grant funds under the Tribal Jurisdiction Program warrants adjusting this percentage.

Each participating Tribe will receive access to an equal portion of the funds set aside for maximum allowable reimbursements under § 90.33 (e.g., 25 percent of the total funds available for the Tribal Reimbursement Program), unless their prior year expenses were less than the maximum amount, in which case they will be limited to the actual amount of their prior year expenses. Over the course of a calendar year, participating Tribes may draw down funds from the maximum allowable reimbursement as needed for eligible expenses as described in § 90.36. Participating Tribes are not required to provide documentation at the time they draw down from the maximum allowable reimbursement. Participating Tribes must provide a summary of eligible expenses at the end of the calendar year, which must identify actual expenditures eligible for reimbursement, including dollar amounts for each expenditure and how they were calculated, and must keep documentation on file to support each claimed expense. Such documentation must be sufficient to meet the standards that 2 CFR part 200 provides for grants.

(a) If participating Tribes incur eligible expenses in excess of their annual maximum allowable reimbursement, they may request a waiver of the annual maximum at the end of the calendar year. Requests for a waiver must include the summary of eligible expenses required by section 90.34 that shows how the maximum allowable reimbursement funds were spent and an additional summary of eligible expenses that identifies actual expenditures eligible for reimbursement in excess of the maximum, including dollar amounts for each expenditure and how they were calculated. Participating Tribes are not required to provide documentation at the end of the calendar year when they submit their waiver request but must keep documentation on file to support each claimed expense. Such documentation must be sufficient to meet the standards that 2 CFR part 200 provides for grants.

(b) Waivers will be calculated at the end of the calendar year based on available funds. If there are not sufficient funds available to reimburse the total eligible expenses requested by all participating Tribes, each Tribe will get the same percentage of their additional costs met. This percentage will be calculated by comparing the funds available and the total amount requested for waivers.

Participating Tribes may apply for the maximum allowable reimbursement and waiver funds for the following expenses associated with the exercise of STCJ for each calendar year. For an expense to be eligible, the cost must be incurred in response to a report of a covered crime committed by a non-Indian, but there does not need to be an arrest or a prosecution for the offense. The summary of eligible expenses submitted each year must demonstrate how costs were calculated. Following are examples of types of eligible costs that participating Tribes may include and basis for calculations.

(a) Law enforcement expenses such as officer time (including response, interviews, follow-up, report writing, and court time); sexual assault kits or other evidentiary supplies; and testing, analysis, and storage of evidence. Requests for reimbursement must be based on actual costs attributed to SCTJ cases.

(b) Incarceration expenses such as prison and jail costs and prisoner transportation costs, whether through contract or Tribally owned facilities. Requests for reimbursement must be based on actual costs attributed to STCJ cases and may be based on per diem costs for housing non-Indian offenders.

(c) Offender medical and dental expenses not otherwise covered by insurance policies or federal sources such as Medicaid, including costs for insurance for offenders. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(d) Prosecution expenses such as staff time (including meetings, interviews, filings, research, preparation, court, and other time that can be demonstrated as allocable to prosecuting a covered crime); expert witness fees; exhibits; witness costs; and copying costs. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(e) Defense counsel expenses such as staff time (including meetings, interviews, filings, research, preparation, court, and other time that can be demonstrated as allocable to defending one or more non-Indian offenders charged with one or more covered crimes); competency evaluations; expert witness fees; exhibits; witness costs; and copying costs. Requests for reimbursement must be based on actual cost. If the defense counsel is provided by contract, then the reimbursement amount can be based on the invoiced cost to the participating Tribe.

(f) Court expenses such as judge and court staff time; postage for summoning jurors; jury fees; witness costs; and competency evaluation or other mental health evaluations ordered by the court. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(g) Community supervision/re-entry expenses such as probation, parole, or other staff time; electronic or other monitoring fees; chemical dependency testing; batterer or sex offender evaluation and treatment; and pre-sentence investigation costs. Requests for reimbursement must be based on actual costs attributed to STCJ cases.

(h) Indirect costs based on a current federally approved indirect cost rate agreement.

(i) Other costs incurred in, relating to, or associated with exercising STCJ. Participating Tribes requesting reimbursement for costs in this category must demonstrate that the cost is incurred in, relating to, or associated with exercise of STCJ.

Participating Tribes are not permitted to request reimbursement for the following:

(a) Planning: Expenses associated with planning to exercise STCJ, such as code drafting.

(b) Training, including costs for training criminal justice personnel, court personnel, or others.

(c) Any expenses not incurred in, relating to, or associated with exercising STCJ.

If a participating Tribe recoups expenses related to exercise of STCJ from the convicted offenders prior to receiving reimbursement for such expenses, then the recouped funds shall be used prior to seeking reimbursement through the Tribal Reimbursement Program. If a participating Tribe recoups expenses related to exercise of STCJ from the convicted offenders subsequent to receiving reimbursement for such expenses, such funds must be used toward exercise of STCJ.

Documentation of expenses retained on file by participating Tribes pursuant to sections 90.34 and 90.35 must be adequate for an audit. At a minimum, participating Tribes must retain the general accounting ledger and all supporting documents, including invoices, sales receipts, or other proof of expenses incurred for those expenses reimbursed by the Tribal Reimbursement Program. Such records must be retained for a period of three years from the end of the calendar year during which the participating Tribe sought reimbursement. All financial records pertinent to the Tribal Reimbursement Program, including the general accounting ledger and all supporting documents, are subject to agency review during the calendar year in which reimbursement is sought, during any audit, and for the three-year retention period.

If there are other sources of federal funding available to pay for a particular cost associated with the exercise of STCJ, participating Tribes must expend funds from those sources before seeking reimbursement from this program. Examples include existing Department of Justice grant funds, Medicare/Medicaid, and Bureau of Indian Affairs funding.

If reimbursement of specific expenses is denied, the participating Tribe may request review of the denial via a letter to the OVW Director stating the reason why the denied expense was eligible for reimbursement. OVW must receive the letter within 30 calendar days of the denial. The OVW Director will review the letter and notify the participating Tribe of a final decision within 30 days of receipt of the letter.

Tribes receiving reimbursement of expenses under the Tribal Reimbursement Program will be subject to regular monitoring and audits to ensure that expenses are properly documented and are allocable to the exercise of STCJ.

Reimbursement requests later found not to meet statutory, regulatory, or other program requirements may result in a corrective action plan and/or recovery/recoupment. Participating Tribes that fail to submit the required summary of eligible expenses under §§ 90.34 and 90.35, respond to requests for information during monitoring or auditing, or follow a corrective action plan or return funds expended on ineligible expenses will be deemed ineligible for additional Tribal Reimbursement Program funds, in the same or another calendar year, until such deficiencies are remedied.