History of the Tribal Self-Governance Initiative
P.L. 93-638, Title I
Self-Governance has been a Tribally-driven initiative made possible through Congressional authorization and appropriation support. Self-Governance was proposed by Tribes who, twelve years after passage of P.L. 93-638, Title I, the "Indian Self-Determination and Education Assistance Act of 1975," continued to be frustrated with the Federal Indian Bureaucracy. Basically, P.L. 93-638 authorized Indian Tribes and organizations to contract and operate federal service programs within the Bureau of Indian Affairs and Indian Health Services. It was, and to some extent remains, a bureaucracy that was reluctant to change its role from that of a service provider and manager of Tribal affairs to that of a provider of financial resources and an advocate and assistance for Tribal self-governance and control.
In the Fall of 1987, while amendments to the Indian Self-Determination Act were being considered by Congress, the Arizona Republic newspaper published a series of articles, entitled: "Fraud in Indian Country". These accounts alleged serious waste and mismanagement in the Federal Indian bureaucracy. In response to these charges, Sidney Yates, Chairman of the House Interior and Related Agencies Appropriations Subcommittee held an oversight hearing.
In an attempt to address these allegations during the November 1987 hearing, Department of the Interior officials proposed that the funds appropriated to the BIA should be turned over to the Tribes to let them manage their own affairs. The next day, with Chairman Yates' encouragement, Tribal representatives met with the Secretary of the Department of the Interior and other top officials. By mid-December, ten Tribes had volunteered to test the proposal.
In December 1987, however, the Interior Department, without consulting with the Tribes, proposed "Section 209" as an addition to the Indian Self-Determination Act amendments. "Section 209" provided for a direct transfer of funds currently contracted by Tribes with a waiver of the Trust Responsibility of the United States for programs assumed by the Tribes. Tribal governments across the nation unanimously opposed this double dealing approach to BIA "reform".
P.L. 100-472 Indian
Self-Determination Act Amendments of 1988
Title II & III
The Self-Governance Tribes countered the unacceptable "Section 209" amendment with the proposal for Title III, the "Tribal Self-Governance Demonstration Project". Title III, clearly protects the Trust and Treaty relationship of the United States to Indian people. In the ensuing legislative process, Title III was designed by the Tribes to:
Title III promotes Tribal control by:
Title III was authorized by P.L. 100-472 enacted in the "Indian Self-Determination Act Amendments of 1988" P.L. 100-472 also authorizes, a planning and negotiation process which allows for:
The actual text of Title III, P.L. 100-472 is included in the appendix of this document.
Under a Self-Governance Compact, an Indian Tribe can administer and manage programs, activities, functions and services previously managed by the Bureau of Indian Affairs. Also, it acknowledges Tribal authority to redesign those programs and services to meet the needs of their communities, within the flexibility of allocating funds based on Tribal priorities.
The BIA, during the first three years of the demonstration phase, did not develop any plans for Project implementation despite repeated Congressional directives to the Interior Department to perform budget research and prepare for organizational restructuring. The BIA Agency, Area, and Central Offices did not communicate with the participating Tribes regarding the Projects future and their respective roles. After the first Self-Governance Compacts and Annual Funding Agreements were negotiated, BIA Central Office staff were assigned Self-Governance responsibilities in the Office of Self-Determination. As the Bureau continued to treat Self-Governance as an administrative nuisance, the Tribes sought the establishment of an independent Office of Self-Governance.
In FY 1991, at the request of the Tribes, Congress provided funding for an Office of Self-Governance, to be established in the Interior Department's Office of the Secretary. Secretary Lujan established a Self-Governance Policy Council in August of 1990. The Council comprised of representatives from the Solicitor and the Secretary's Offices, was headed by the Assistant Secretary for Indian Affairs. This Council provided Departmental policy guidance and it makes decisions necessary for the implementation of Self-Governance, the Office of Self-Governance began operations in January 1991 with William Lavell as the first Director.
On June 14, 1991, President Bush in "Reaffirming the Government-to-Government relationship between the Federal Government and Tribal Governments," joined the advocates for Self-Governance by stating:
"An Office of Self-Governance has been established in the Department of the Interior and given the responsibility of working with Tribes to craft creative ways of transferring decision-making powers over Tribal government functions from the Department to the Tribes."
In FY 1993, a Northwest Field Office, with two personnel, was established in Vancouver, Washington to handle the negotiations and implementation functions of Northwest and Alaska Tribes.
However, even with the negotiation of 28 Compacts nationwide in the DOI/BIA, there is still no significant change in the BIA structure. A national BIA Reorganization Task Force has been formed to plan for downsizing and restructuring. But, as of FY 1995, the downsizing or "right-sizing" as Tribes refer to it, has yet to occur. Self-Governance has reached a point, in terms of the number of Tribes negotiating Compacts, that mandates reorganization and restructuring of the BIA.
P.L. 102-184: Tribal Self-Governance
Demonstration Project Act
The U.S. House of Representative's Interior and Related Agencies Appropriations Subcommittee continued to support the Self-Governance Demonstration Project in Fiscal Year 1992. Congress increased appropriations by $2 million for Tribal Self-Governance planning, negotiations, implementation and shortfall expenses, as well as for the continuation of the Lummi Communication/Education initiative. For the first time, in response to Tribal requests, Congress directed the Indian Health Service to initiate Self-Governance budget research and Agency planning activities with the 17 Tribes with Compacts of Self-Governance with the Department of the Interior. The FY 92 Interior Appropriations Conference report included $500,000 to cover Tribal expenses and directed IHS to develop evaluation and transfer model methodologies. Given the reluctance of the BIA in the initial planning years, IHS was directed to initiate internal planning prior to consideration of Tribal planning grants.
The Cherokee Nation was selected to manage much of the IHS research and planning from the Tribal perspective. 17 Tribes were allocated resources through the Cherokee grant, and all 17 Tribes participated at appropriate stages of the IHS planning process to ensure Area-specific budget details were developed for FY 92. Tribes met with the IHS Director, and his key staff on January 15-16, 1992 to outline the research tasks and budget information needed during the first year. Seven Tribal Self-Governance representatives from the five IHS Areas with Self-Governance Tribes provided a consultation role in the development of a scope of work regarding IHS budget research and Self-Governance resource transfer models for the planning phase.
The IHS Office of Tribal Self-Governance, in compliance with
the provisions of P.L. 102-184 and P.L. 102-573, which passed in October 1992,
to expand the Demonstration Project to 30 Tribes, held competition for planning
grants in early 1992. A series of meetings were held relating to negotiations,
tribal shares and residuals. Initial budget information was shared with Tribes
by the IHS in March 1992 and the IHS Budget Process was discussed.
On October 25, 1994, P.L. 103-413 - (Self-Determination Act Amendments, Title I, and Self-Governance Permanent Authorization, Title II) was signed into law by President Clinton. This law was the culmination for the Department of the Interior of nearly two years of Congressional hearings on proposed permanent Self-Governance legislation:
In addition to key elements of Title III carried over into
the Permanent Legislation, P.L. 103-413 also includes Negotiated Rulemaking,
access to Central Office Tribal shares and the development of a list of Non-BIA
Programs eligible for Tribal Compacting. P.L. 103-413 also provides for up to 20
new tribes per year to negotiate compacts with the Department of the Interior.
P.L. 103-472 - Technical Amendments Act of 1994
A Technical Amendments Bill, P.L. 103-472, was also approved; it authorized up to 30 new Tribes per year to enter into IHS Compacts for the next 10 years under the Demonstration Project.
The Evolution of Self-Governance
The Trust in Self-Governance Compacts
Given these background and legal considerations, key issues for the Tribes in drafting the Self-Governance Compacts were:
to maintain the positive aspects of the Trust;
to assure sufficient United States involvement and technical "control" in the management of tribal property and assets to meet existing court standards for ascertaining financial liability; and
to provide the maximum control and involvement for the tribes over their own property and assets.
The method chosen by the Tribes for the Self-Governance initiative was to delineate the specific Trust Responsibility in the Compact. The United States specifically pledges its Trust Responsibility to the individual Tribe to protect and conserve the trust resources of such Tribe and pledges its utmost good faith in upholding said trust responsibility. The Tribe also pledges its utmost good faith in upholding its responsibilities to provide services under the Annual Agreement.
The Tribes has the full authority, subject to any statutory requirements, and any specific regulations (although such regulations may be waived) to manage tribal property and assets, if it so chooses. The compacts provide for annual Trust Evaluations. The Trust Evaluation allows the United States to exercise the necessary supervision or oversight relative to its obligations to the Tribe and to individual Indians. An escape clause is provided whereby the united States may assume direct management of the physical Trust assets, upon proper notice to the Tribe, if the trust assets are in imminent jeopardy. Imminent jeopardy is defined as significant loss of devaluation of the physical Trust asset, caused by the Tribes' action or inaction. This process has now been codified by section 403(d) of the Permanent Self-Governance Act of 1994.
How to manage the Federal Government trust responsibility has been an important issue between Self-Governance tribes and BIA/IHS. As tribes negotiated their tribal shares, a number of budgetary areas remained in dispute between BIA/IHS and the Tribes regarding the withholding of funds/functions by the BIA/IHS that were considered by the Federal Representatives to be statutorily uniquely federal. These issues will be address in negotiated rule-making.