Self-Governance provides maximum flexibility for Tribal governments to design programs and services, as well as to allocate funds to address Tribal priorities and concerns. When the Bureau of Indian Affairs and the Indian Health Service provide direct services or manage Self-Determination (P.L. 93-638) grants or contracts, the program design and funding level decisions are made by the Federal bureaucracy. Most BIA and IHS guidelines, policies and regulations are prepared for national application and are not tailored to a specific Tribe, reservation, or to local conditions. Over the years, the programs and organizational structures of Tribal government have evolved to correspond to these Federal programs and their funding mechanisms and regulations. Tribal structures, therefore, have mirrored the Federal bureaucracy.

Under Self-Governance, along with pre-existing Tribal responsibilities, Tribal governments become the primary policy-makers for the programs and services, funding allocations, and administrative structures on their Reservations. Tribal governments through the planning period should carefully prepare to manage both the new responsibilities and freedoms associated with Self-Governance. To date, however, some Tribal governments with Compacts of Self-Governance have maintained essentially the same administrative structures and programs that existed under BIA and IHS direct services and Self-Determination contracts.

Planning

Tribal reorganization for Self-Governance is determined by the particular needs and unique situation of each individual Tribe. The planning processes should take into consideration the requirements of Title II of P.L. 103-413,  and Title III, P.L. 100-472 as amended, provisions contained in the Tribe's Constitution, Tribal Laws, Tribal policies and procedures, the model Self-Governance Compact and Annual Funding Agreement, and the auditing requirements reflected OMB Circular A-87. It is important to internally reorganize according to individual Tribal priorities and operational preferences.

Tribal Planning

The importance of education and communication with Tribal members cannot be overstated. Tribal members need to clearly understand what Self-Governance means, how the trust and Treaty relationship is protected, and how Self-Governance will change and benefit Tribal operations. Lack of information and misinformation among Tribal members is the greatest threat to Self-Governance implementation.

The Self-Governance negotiation process results in a compromise agreement between Tribal and BIA/IHS representatives. For the Federal Government and the Tribes, negotiations is managed by either the Office of Self-Governance or the Office of Tribal Self-Governance staff. The resulting Compact of Self-Governance and Annual Funding Agreement will determine the future relationship between the Tribes and the BIA/IHS in terms of roles, responsibilities, programs retained by the BIA/IHS, and BIA/IHS "programs, services, functions and activities" assumed by the Tribe.

Tribal experience, thus far in the negotiations process, has highlighted a pattern of particular problems. As Self-Governance is an evolving process, some of these problems may be resolved over time. Some of the basic factors creating negotiation issues that have surfaced include:

• Although Self-Governance is not designed as needs-based funding, the fact that Area/Agency/Local Service Unit program budgets, in most instances, are very seriously under-funded affects decision-making

• The Annual Funding Agreements, by law, may not reduce the funds, contracts or services that other Tribal governments or Tribal contractors are eligible to receive;

• Divisibility of programs for partial transfer of funds involving one or two federal personnel may be difficult;

• Negotiations were based on the Presidential Budget Justification information which does not provide detail of internal budgets for Central/Area/Agency/Local Service Unit budgets;

• The BIA/DOI and IHS/DHHS have made arbitrary determinations on allocation questions such as unavailability of funds from competitive grant programs (e.g., economic development) or accessing IHS Office of Environmental Health & Engineering programs;

• The BIA and IHS have not been willing to structurally reorganize or downsize in response to Self-Governance, assuming that the Demonstration Project would end in three years;

• The Passage of Title II of P.L. 103-413 for permanent status of Self-Governance, along with executive orders from President Clinton to "down size" the Federal Government, are only now beginning to force the BIA and IHS to reorganize;

• The Tribal/BIA Reorganization Task Force recommendations will dramatically alter BIA budgets in the future, creating allocation uncertainties.

• The influence of other initiatives on Self-Governance such as the Reorganization Task Force, National Performance Review, and the Federal budget deficit reduction is difficult, if not impossible to project.

• Not all BIA/IHS budget information has been made available to Tribes.

• Structures for negotiating (such as the IHS "ratifier") have not worked. Decision makers need to be at the negotiation table.

• After decisions are negotiated and finalized at the negotiation session, Federal bureaucrats still attempt to alter the Annual Funding Agreement throughout the year.

During the first year and subsequent years of the BIA Self-Governance Demonstration Project negotiations, each Tribe or Compact was provided with an arbitrary $45,000 ¾ the BIA Central Office contribution to the Demonstration Project. Since then, the Self-Governance Policy Council approved, in principle, allocation formulas to be applied to all BIA Central Office programs. These formulas were never utilized during the demonstration project and meaningful negotiations did not occur.

Additionally, under P.L. 103-413, Title II the BIA/DOI has been mandated to negotiate central office shares. Other Interior programs are now subject to compact negotiation; these programs are being studied by various DOI/Tribal workgroups to develop a listing of eligible programs that should be included in the FY 1996 negotiations.

IHS Headquarters has organized several IHS/Tribal Workgroups to study numerous unresolved negotiation issues regarding residual, funding allocation formulas, contract support, IHS restructuring, etc., to provide recommendations to the Director of IHS. Congress has recognized that Self-Governance is still new and evolving, and that unique circumstances will surface whereby the BIA and the IHS cannot divide programs or immediately restructure. There also were unexpected implementation costs at the Tribal level associated with Self-Governance. A supplemental budget account was supported by Congress to BIA/IHS for program shortfalls and implementation costs. However, Congress has stipulated that future shortfalls by the BIA and IHS will require a corresponding plan to reorganize and restructure to ultimately transfer these funds to the Tribe.