What is Self-Governance?View
Tribes are sovereign nations with inherent authority to govern and protect the health, safety, and welfare of Tribal citizens within Tribal lands and territories. This authority established a unique legal and political relationship with the Federal government.
In 1975, Congress enacted the Indian Self-Determination and Education Assistance Act (ISDEAA) to establish a legal framework for Tribes to exercise their inherent right to govern and to protect Tribal citizens, lands, and resources. In 1988, Congress first amended ISDEAA to allow Tribes to assume responsibility for administering programs, services, functions, and activities (PSFAs) that were previously managed by the Department of the Interior (DOI) through the Self-Governance project. The law was amended again in 1994 and 2000 to amend, expand, and permanently authorize the program to the Indian Health Service (IHS). Today, Self-Governance allows Tribes maximum flexibility to use and redesign Federal dollars associated with assumed PSFAs to meet local community service needs and Tribally-driven priorities.
Does Self-Governance change the Tribal-Federal relationship or terminate the Federal Trust Responsibility?View
No. ISDEAA prohibits termination or reduction of the Federal Trust Responsibility to Tribes and Indian people stating, “The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions.” 25 U.S.C. § 458aaa-6(g).
Self-Governance Tribes often note that their relationship shifts from one of paternalistic treatment and oversight to an equitable partnership where Tribal Nations and the Federal Government share common goals and seek flexible solutions to achieve those goals.
Does Tribal Self-Governance terminate the Federal Trust Responsibility?View
No. It has never been the intent of the Tribal Self-Governance initiative to terminate or reduce the federal trust responsibility to Indian Tribes and to Indian people. The law clearly states: “The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian Tribes and individual Indians that exists under treaties, Executive Orders, other laws, or court decisions.”
Has Tribal governing authority changed or improved under Self-Governance?View
Self-Governance Tribes have a record of being some of the most innovative and creative governments because of their experience operating successful Self-Governance programs. Under Self-Governance, Tribal capacity expands, knowledge and recognition of local issues increases, and greater community engagement results. Self-Governance encourages Tribal governments to exercise greater control over their planning and budgeting processes to meet local needs. Often to, Tribal citizens become more involved in the governing process and the identification of local needs and accountability of Tribal governments improves.
What programs can Tribes operate under Self-Governance?View
Currently, under Self-Governance, Tribes can operate programs within the Department of Interior (DOI), Indian Health Service (IHS), and the Department of Transportation (DOT).
Expanding the types of programs Tribes can operate under Self-Governance is a top legislative and administrative priority for participating Self-Governance Tribes, as they know how successful Self-Governance can be in streamlining and creating efficiencies between programs.
What are Self-Governance Tribes' Legislative, Budget, and Policy Priorities?View
Self-Governance Tribes meet annually to discuss and develop consensus-based priorities. You can find the most recent National Tribal Self-Governance Strategic Plan here.
How many Self-Governance Tribes are there?View
Today, more than 350 Federally-recognized Tribes and consortia operate Self-Governance programs. A list of Self-Governance Tribes and consortia by state can be found here.
What is the step-by-step process to become a Title V Health Program?View
The process to negotiate an agreement under ISDEAA Title V is not prescribed by law, but the following steps are common for Tribes entering into Self-Governance.
- Planning: To begin the process, a Tribe conducts a planning phase. Planning typically includes gathering and studying information from the Indian Health Service (IHS) to determine whether the Tribe wants to assume operation of IHS programs, services, functions and activities (PSFAs), or portions thereof. Planning often takes several months and is a crucial component in the Self-Governance process. Therefore, Tribes should begin this phase as early as possible.
- Eligibility Determination: The Tribe submits a request to the IHS Office of Tribal Self-Governance (OTSG) to determine whether the Tribe’s financial stability and financial management capability satisfies IHS’s eligibility criteria.
- Tribal Action to Request Participation: After receiving the determination that the Tribe meets criteria requirements and is qualified to participate in the Self-Governance program, the Tribe must take formal actions such as: (1) concluding its planning process to its own satisfaction; and (2) formally requesting participation in the Self-Governance Program. IHS will provide technical assistance as the Tribe prepares to participate in the program, including coordination of meetings with Federal program offices.
- Negotiations: Once the Tribe has completed its planning phase and makes a formal participation request, the Tribe and IHS negotiate a draft Compact and Funding Agreement (FA). A Federal negotiation team, led by the Agency Lead Negotiator (ALN), reviews the draft documents and works with the Tribe to reach a final Compact and FA.
- Compact and FA Approval: Upon signature by the Federal agency and Tribal leadership, the Tribe is able to assume operation of the PSFAs previously administered by the Federal government.
Are there efforts to expand Self-Governance to other programs within the Department of Health & Human Services (HHS)?View
Yes. Self-Governance Tribes have advocated for the expansion of Self-Governance to other operating divisions within HHS since the late ‘90s. In 2003, HHS completed a feasibility study, which identified several potential programs for inclusion in Self-Governance agreements, such as Tribal Temporary Assistance for Needy Families (TANF), Native Employment Works (NEW), and Child Welfare Services. In 2012, HHS established a Self-Governance Tribal-Federal Workgroup (SGTFW) to explore potential issues raised by such an expansion.
As part of this process, the SGTFW:
- Prioritized the HHS programs that Tribes wish to include in a feasibility study or demonstration projection, if statutorily authorized.
- Developed detailed recommendations to overcome the legal and logistical barriers to Self-Governance expansion.
- Identified the benefits that Tribes seek to achieve through the expansion of Self-Governance to other HHS programs; and develop recommendations to achieve those benefits.
The final report of the SGTFW can be reviewed here.
Under Self-Governance, how do Tribal policies affect delivery and access to care?View
When Tribes assume PSFAs, or portions thereof, individual Tribes determine what and how Tribal policies will apply to the assumed functions. Tribes typically begin making those determinations during the planning process prior to negotiating a Self-Governance Compact and FA. Any applicable Tribal policy must be consistent with provisions of the negotiated Compact and FA.
Who will enforce the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and other health privacy laws?View
In administering any assumed health programs, Tribes are responsible for enforcing applicable health privacy laws and providing any needed training to assure full compliance with said laws. Compliance with health privacy laws is often measured by accreditation corporations, such as Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and Accreditation Association for Ambulatory Healthcare (AAAHC).
What funding is available for IHS Self-Governance Tribes?View
Funding is available in two forms: Tribal Shares and Residual Funds.
When a Tribe assumes control of a PSFA, the funding associated with that PSFA is called the Tribal Share. A Tribal Share is the Tribe’s portion of all funds and resources that are associated with the administration of the PSFA that are not used for Inherent Federal Functions (IFF). Inherent Federal Functions are functions that cannot be transferred to Tribes such as transferring funding, supervising Federal employees, and developing Federal administrative policy.
The funding that is associated with Inherent Federal Functions is referred to as residual funding. Residual funding applies to IFF at the Headquarters (HQ) and Area levels. Residual funding amounts are identified in the HQ and Area level funding tables provided to Tribes prior to negotiation.
What are the advantages of switching from Title I to Title V?View
Some Tribes currently operate services, or portions thereof, through a contract with IHS under Title I of ISDEAA. Title I contracts do not allow the Tribe to redesign programs to meet local needs based on Tribal priorities unless IHS agrees. Title I contracts also require Tribes to adhere to Federal operation rules for the programs assumed in the contract, which is not a requirement under Title V of the Act.
Title V compacts, by comparison, allow Tribes enhanced flexibility and control to negotiate the provisions and terms that will most likely help the Tribe improve health service delivery within their Tribal Communities. Tribes have more control in health system design, recruitment and retention of providers and staff, and budgeting over health programs. Title V compacts provide Tribes enhanced authority to redesign programs without requiring IHS approval, which allows Tribes to respond to the direct needs of Tribal citizens. Operating under Title V, Tribal Self-Governance strengthens Tribal sovereignty through increased Tribal control and involvement in all aspects of health services delivery.
How does Purchased/Referred Care (PRC) work if the Tribe takes over that Program?View
As with other PSFAs, Tribes receive the same amount of funds for the PRC program that IHS receives. In order to improve PRC funding, Tribes often rely on their authority and flexibility to redesign programs and generate third party revenue. If a Tribe chooses to assume responsibility for the PRC program, the Tribe is not required to utilize the IHS-established medical priority system, instead they have the flexibility to develop alternative procedures. During the planning phase, a Tribe typically evaluates the amount of funding available and their goals to determine if assumption of program management is a fiscally sound decision that helps increase access to or quality of care provided in the local facility.
What are the eligibility requirements for DOI Self-Governance programs?View
Tribes and Consortia of Tribes who have completed a planning phase and report, demonstrated financial stability, and request participation are eligible to participate in Self-Governance. Up to 50 new Tribes are selected to negotiate per year.
What is the step-by-step process to become a Title V DOI Program?View
- Application Process
To begin the process, a Tribe must submit an application and provide documentation to the Director of the Office Self-Governance (OSG) in order to be admitted to the pool of eligible Tribes (Applicant pool). During this portion of the process, the Tribe must:
- Demonstrate the successful completion of a planning phase and a planning report:
- During the planning phase, the Tribe must conduct research and internal planning to determine if the Tribe is adequate to assume programs from the Federal agency. However, the planning phase must be completed without a planning grant.
- A planning report must identify the Bureau of Indian Affairs (BIA) and non-BIA programs with which the Tribe may wish to negotiate a compact or Annual Funding Agreement (AFA) and identify planning the Tribe has completed in anticipation of implementing Self-Governance.
- Request participation in Self-Governance by a Tribal resolution and/or a final official action by the Tribal governing body.
- Demonstrate financial stability and financial management capability for the previous 3 fiscal years.
- An audit report must be submitted for the previous 3 years of the self-determination contracts. These audits must not contain material audit exceptions such as a material weakness or a single finding of questioned costs subsequently disallowed by a contracting officer or awarding official that exceeds $10,000. Any such finding renders the Tribe ineligible for selection.
- Selection Process
Following the application process, the Tribe/Consortium becomes a member of the applicant pool. The Director selects the first 50 Tribes from the applicant pool ranked according to the earliest postmark date of complete applications..
The Tribe must be a member of the applicant pool by March 1 of the year in which the negotiations are to take place in order to be eligible for selection. You can see the most recent announcement for Self-Governance applications here.
- Negotiation Process
After selection, the Tribe/Consortium remains eligible to negotiate a compact and AFA at any time unless it notifies the director in writing that it no longer wishes to be eligible to participate in the Tribal Self-Governance Program, fails to satisfy the audit requirements, or submits evidence of a Tribal resolution that requests removal from the application pool.
The failure of the Tribe to execute an agreement has no effect on the selection of additional Tribes in subsequent years.
What funding is available for DOI Self-Governance Tribes?View
Funding is available in two forms: residual funds and funds that are transferred to Tribes.
Residual funds are those that are retained by the Bureau of Indian Affairs (BIA) for Inherent Federal Functions (IFF). IFF are those functions that cannot be transferred to Tribes such as transferring federal funding, supervising Federal employees, and developing Federal administrative policy.
Funds that are transferred to the Tribe are equal to the amount the Tribe would have been eligible to receive under contracts and grants for direct programs, funds that are specifically or functionally related to providing services to Tribal members, and any funds available to Tribes from other agencies.
What is an annual funding agreement (AFA)?View
An AFA is a legally and mutually enforceable written agreement negotiated and entered into annually between a Self-Governance Tribe and the BIA. The AFA must specify which programs to take over and identify applicable funding. However, additional provisions may be included upon agreement by both parties, including provisions to extend the AFA beyond one year.
Who is a Tribe’s/Consortium’s point of contact during the AFA negotiation process?View
The Tribe’s/Consortium’s point of contact is an OSG Compact Negotiator who acts on the BIA’s behalf. The BIA will notify the Tribe/Consortium of their designated OSG Compact Negotiator who will provide information regarding the program, staffing, and budget information of the programs the Tribe wishes to assume in their AFA. If the program is unavailable for negotiation, the Negotiator will provide a written explanation.
What types of programs may be administered by Self-Governance Tribes?View
A Tribe may administer programs that were previously under the direction of the BIA. The programs, services, functions, and activities (PSFAs) to be assumed by the Tribe must be specified in writing to the Secretary of the Interior. However, the Secretary does not have to approve the redesign of a program.
Are there efforts to expand Self-Governance to non-BIA programs?View
Yes, non-BIA agencies can enter into agreements with Tribes. Tribes can assume non-BIA programs through mandatory inclusion and discretionary inclusion.
Mandatory Inclusion applies to programs that are for the benefit of “Indians because of their status as Indians” and must be included in agreements upon request from Tribes. For more information on Mandatory Inclusion see 25 CFR § 1000.123-.124.
Discretionary Inclusion applies to programs that are not specifically targeted to Tribes, but still hold some “special geographic, historical, or cultural significance” to the contracting Tribe. However, these programs are included at the discretion of Federal officials. See 25 CFR § 1000.126 for information on Discretionary Inclusion.
Additionally, Self-Governance Tribes have advocated for more than a decade to amend Title IV of the Indian Self-Determination and Education Assistance Act (ISDEAA) to create consistency between Title IV in DOI and Self-Governance in the Department of Health and Human Services (HHS) and build greater administrative efficiencies for Self-Governance Tribes.