The United States Department of Transportation (US DOT) recently issued a memorandum on the definition of Native American Owned DBEs (or Disadvantaged Business Enterprises). The memorandum comes after a Los Angeles Times investigation of DBEs claiming to be Native American owned who may not meet current federal standards for such a claim.
The memorandum reminds its recipients that the definition of "Native Americans" for the purposes of the federal DBE program was revised in 2014 to bring it in line with the Small Business Administration's (SBA) usage of the term. The definition states that only those who are an "enrolled member of a Federally or State recognized Indian tribe [including Alaska Natives and Native Hawaiians]" will be considered Native American for the purposes of ascertaining whether a given DBE is Native American Owned. The memorandum goes on to state that there is reason to believe that some DBEs (including some of those who registered both before and after the 2014 rule revision) claiming Native American ownership do not meet this standard.
In a move that will be relevant to Native American Owned DBEs, the memorandum goes on to ask its recipients to review their Unified Certification Program (UCP) directories for Native American Owned DBEs and begin a process of verifying the eligibility of such firms (including by requesting tribal roll cards or other corroborating documents), and, further, removing the certifications of any DBEs who do not meet the defined standards of the US DOT. The memorandum states that a given UCP is permitted to conduct a certification review of a certified DBE firm even if the firm was certified before the 2014 rule change, given that the rule change is a "changed circumstance" that may effect the eligibility of the DBE in question. Firms that are certified as Native American Owned DBEs will thus be well-advised to ensure that they can promptly cooperate with such verification processes.
The US DOT memorandum may be read at https://www.documentcloud.org/documents/6419110-USDOT-Memo-NA-Owned-Firms-August-26-2019.html. For more on the news, see also https://www.latimes.com/world-nation/story/2019-09-17/minority-contractors-native-american-review.