Adam Elmahrek and Paul Pringle, Los Angeles Times, June 26, 2019
The case highlights a major failure in the nation’s efforts to help disadvantaged Americans by steering municipal, state and federal contracts to qualified minority-owned companies. In many instances, government agencies have not vetted those companies to protect the interests of taxpayers and legitimate minority contractors.
Since 2000, the federal government and authorities in 18 states, including California, have awarded more than $300 million under minority contracting programs to companies whose owners made unsubstantiated claims of being Native American, a Los Angeles Times investigation found.
The minority-owned certifications and contract work were issued in every West Coast state, New Mexico and Idaho, Texas and four Southern states, several states in the Midwest and as far east as Pennsylvania, The Times found.
In applying for the minority programs, 12 of the 14 business owners involved claimed membership in one of three self-described Cherokee groups, according to government records and interviews.
Those three groups have no government recognition and are considered illegitimate by recognized tribes and Native American experts, however.
The three groups are the Northern Cherokee Nation, based in Clinton, Mo.; the Western Cherokee Nation of Arkansas and Missouri, based in Mansfield, Mo.; and the Northern Cherokee Nation of the Old Louisiana Territory, based in Columbia, Mo.
For each of the 14 companies, one or more census, birth, marriage or other government records identified the owners’ ancestors as white. The ancestors also do not appear on rolls that government-recognized tribes use to confirm Cherokee citizenship, according to census records and an expert on Cherokee genealogy.
In response to questions from The Times, the governing body that oversees minority contracting certifications for St. Louis held a hearing on June 6 and moved to strip five contractors — including Buell’s demolition company — of their minority status.
Matt Ghio, an attorney who represents four of the five companies, including Buell’s, argued that the city rule defining a Native American as a member of a federally recognized tribe was unconstitutional. He said it set a “stringent” standard that other minority groups don’t face when seeking certification under the minority business enterprise program. He vowed to sue the city.
Ghio also said his clients could prove their Cherokee heritage, but would not do so at the hearing because the rules did not require it. The city of St. Louis subsequently said it reached an agreement with Ghio to put the decertification of the four companies on hold pending the filing of the lawsuit.
But the Small Business Administration, or SBA, which issues minority certifications for federal contracts, discards records six years after companies graduate out of its program. Some state and local agencies also frequently destroy records or refuse to release them.
Others, such as the Kansas Department of Transportation, don’t require proof of tribal enrollment, only a signed affidavit swearing that one is Native American.
Under federal regulations, minority contracts are reserved for companies whose owners can demonstrate social and economic disadvantages because of their race or ethnicity. Among the eligible groups are Native Americans.
Each year, the federal government awards several billion dollars in contracts to Native American-owned companies in the SBA’s minority contracting program, often without competitive bidding.
State and local agencies award additional contracts under separate affirmative action programs, using criteria similar to the SBA’s to determine who is Native American.
But the vetting process for Native American applicants appears weak in many cases, government records show, and officials often accept flimsy documentation or unverified claims of discrimination based on ethnicity. The process is often opaque, with little independent oversight.
Twila Barnes, a Missouri-based researcher and a Cherokee Nation citizen who has written extensively about false claims to Cherokee heritage, said it’s wrong for people to get minority contractor status based on membership in unrecognized groups. “They are milking the system,” she said.
Some of the cases involved tens of millions of dollars, according to a Times analysis of federal contracting databases and other government records.
The SBA continued to approve members of the Northern Cherokee Nation, or NCN, as minority contractors even though another federal agency, the Indian Arts and Crafts Board, has barred the group since at least 2003 from selling their wares as Native American-made because it is not a recognized tribe.
It is a federal crime to sell arts and crafts falsely labeled as Native American.
In a written response to questions from The Times, the SBA said that it did not violate its rules in certifying the contractors for the minority program.
The agency said it “certified businesses as eligible based upon the information provided to it and the regulations in place at the time of the eligibility determinations,” which was before 2011.
Contractors seeking minority status as Native Americans prior to 2011 had to have “held himself or herself out” as Native American and be recognized by others as a member of a Native American community, according to federal regulations at the time.
Federal regulations were simplified in 2011 and 2014 to limit the set-aside contracts primarily to members of state or federally recognized tribes.
But even after the regulation change, companies owned by members of the unrecognized Cherokee groups were awarded set-aside contracts through at least 2018, federal contracting records show. The SBA said this was because previously approved companies were grandfathered into the program.
The SBA did not specifically address The Times’ findings that the contractors’ ancestors were identified as white in government records available for review. The agency said it “takes allegations of fraud very seriously and routinely refers such matters” to its inspector general.
Cherokee genealogists and other experts say spurious claims to be Native American are common. They typically are based on family stories of tribal ancestry.