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Most veterans find they need help navigating the process of filing a claim with the Department of Veterans Affairs (VA). Preparing and presenting a VA claim can be challenging for a variety of reasons, including identifying and ordering records that support the claim, gathering evidence about the disability, and presenting the records and evidence in a way that satisfies the legal requirements of the claim. However, some veterans also find getting someone to help file a VA claim is not as simple as going to the nearest lawyer’s office. Only authorized individuals and organizations can help veterans and veterans’ families with VA claims.

This can be especially troubling for Native American veterans living on tribal lands. Reservations are often geographically remote from VA offices and people who can help with their claims. For example, in Montana, the seven federally recognized tribes are an average of almost 100 miles away from the nearest accredited county Veterans Service Officer, with only one reservation located within 50 miles. Even when a tribal community has access to a local accredited Veterans Service Officer, the VA has recognized that cultural barriers may discourage Native American veterans from seeking assistance.

In an effort to address these issues, the VA consulted with tribal leaders, seeking comment on the initial proposed rule amending VA regulations to authorize tribal organizations to assist VA claimants (Recognition of Tribal Organizations, 2016). During the tribal consultation, most commenters focused on the need for culturally competent representation of Native American veterans, a need often left unmet by county Veterans Service Officers. The veterans and military law section of the Federal Bar Association highlighted the “critical need for advocacy through culturally competent representation before the agency,” perpetuated by Native American veterans being geographically remote from VA regional offices and Veterans Service Officers employed by the state (Scott, n.d.). Similarly, the Indian Health Council, a consortium of nine tribes providing a variety of health services to surrounding tribal communities, noted barriers that may make it more difficult for Native American veterans to access assistance with VA claims:

A lack of trust, a lack of comprehension to the VA policies, or even a lack of access to a local VA department could prevent a Native American veteran to seek necessary services. If a representative from a tribal organization was qualified with the VA to provide services it would allow for more Native American claimants to receive these services (Hanson, 2016).

Commenters also raised concerns related to tribal sovereignty and the federal Indian trust responsibility. If the rule would require sovereign tribal governments to direct non-federal assets in a particular way, this would invade tribes’ right of self-government, especially when the new rules provided no corresponding federal resources to help tribes serve their veterans (Secatero, 2016).

To address these issues and improve access to responsible, qualified representation for Native American VA claimants, the VA has decided to certify qualifying tribal organizations, not just state organizations, to assist veterans and their families with VA claims. In spring 2017, the VA amended its regulations to allow the secretary to recognize tribal organizations for the purpose of helping veterans and their families seek VA benefits. The new rule is designed to “address the needs of Native American populations who are geographically isolated from existing recognized Veterans Service Organizations (VSOs) or who may not be utilizing other recognized VSOs due to cultural barriers or lack of familiarity with those organizations” (Recognition of Tribal Organizations, 2017).

The final rule became effective on February 21, 2017. Now, a tribal government may seek VA recognition for one tribal organization, and the organization may then seek accreditation for individual service representatives working on its behalf (Recognition of Organizations, 2017). Multiple tribal governments may also join to form an organization serving veterans in their multiple tribes. In the new regulation, a “tribal organization” is defined as “a legally established organization that is primarily funded and controlled, sanctioned, or chartered by one or more tribal governments and that has a primary purpose of serving the needs of Native American veterans” (Recognition of Organizations, 2017).

An organization must do the following to be recognized:

• “Have as a primary purpose serving veterans.” This requires a statement of the organization’s purpose, including a statement that veterans would benefit by its VA recognition.
• “Demonstrate a substantial service commitment to veterans.” This requirement can be met by showing one of two things: (1) the organization has a “sizable” membership; or (2) the organization performs veterans’ services for a “sizable number of veterans.”
• “Commit a significant portion of its assets to veterans’ services and have adequate funding to properly perform those services.” This requires the organization to submit a financial statement showing the amount allocated to veterans’ services and a statement that the organization’s funding is not subject to limitations that prevent VA representation. The VA may require an audited financial statement.
• “Maintain a policy and capability of providing complete claims service.” While an organization has some options to be selective, this requirement basically means the organization must represent anyone requesting its services at any point along the claims process, including appeals.
• “Take affirmative action, including training and monitoring of accredited representatives, to ensure proper handling of claims.” This requires a description of the organization’s representatives such as what skills and qualifications they have, how they are recruited, and how they are trained.

In addition, the organization must state that its service is being offered without any charge, fee, or gratuity, and that its VA recognition is not “for any purpose other than claimant representation” (Recognition of Organizations, 2017).

While the regulatory change still needs some work to fully address sovereignty and federal trust issues, every commenter acknowledged that it is heading in the right direction. For now, the change presents tribes with an opportunity to certify existing tribal organizations that serve veterans or create new tribal organizations serving veterans. This is a chance to ensure each tribe’s veterans and their families have local access to assistance with VA claims from individuals prepared to advocate for culturally appropriate evaluation and treatment.

Tribal colleges and universities (TCUs) also have an opportunity to support tribes’ efforts to offer local assistance with VA claims. TCUs can help form tribal organizations that meet the regulatory definition and the tribe’s needs. For example, the TCU’s business faculty could supervise business students in formulating a tribal organization’s business plan. Nearby law schools, including veterans law and Indian law clinics, would be valuable partners in this effort.

Another way tribal colleges can get involved is by collaborating to offer training. Annual trainings for local service representatives could help the tribal organization meet accreditation requirements and provide excellent and culturally appropriate service to the tribe’s veterans. Training events could also involve TCU students to educate the next generation on issues for the tribe’s veterans. This type of collaboration could even open up opportunities for a tribal college certification program related to veterans services and a jobs pipeline for TCU graduates.

Tribes and tribal colleges have a new opportunity to serve the veterans in their communities and region. Collaborating to take advantage of that opportunity will result in increasingly effective services for the Native American veterans who have served our country “in the U.S. Armed Forces in every major military conflict since the Revolutionary War, and in greater numbers per capita than any other ethnic group” (Center for Minority Veterans, 2016).

 Hillary A. Wandler, J.D., is a professor at the University of Montana’s Alexander Blewett III School of Law.

REFERENCES

Center for Minority Veterans (2016, November 7). Recognizing the Contributions of Our American Indian and Alaska Native Military Veterans. Retrieved from https://www.va.gov/CENTERFORMINORITYVETERANS/pressreleases/201611071.asp.

Hanson, O. (2016, April 21). Comment on Recognition of Tribal Organizations for Representation of VA Claimants. Retrieved from https://www.regulations. gov/document?D=VA-2016-VACO-0001-0059.

Recognition of Organizations, 38 Code of Federal Regulations § 14.628 (2017).

Recognition of Tribal Organizations for Representation of VA Claimants, 81 Federal Register 47091 (July 20, 2016).

Recognition of Tribal Organizations for Representation of VA Claimants, 82 Federal Register 6265 (February 21, 2017).

Scott, C.W. (n.d.). Comment on Notice of Tribal Consultation, Amendment of 38 C.F.R. Part 14. Retrieved from https://www.regulations.gov/document? D=VA-2016-VACO-0001-0054.

Secatero, L. (2016, April 11). Comment on 38 CFR Part 14. Retrieved from https://www.regulations.gov/document?D=VA-2016-VACO-0001-0055.

See TCJ’s Resource Guide for more information on veterans services.