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Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study: Legislative History and Development of Tribal Self-Governance and Contracting

Publication Date
Jan 23, 2003

Submitted by:
1650 Research Blvd.
Rockville, MD  20850

Submitted to:

Andrew Rock, Task Order Manager

Office of Planning and Evaluation

Department of Health and Human Services

200 Independence Ave., SW, Suite 447-D

Washington, DC  20201

Delivery Order 27

Under Contract No. HHS-100-97-0017



This Draft Report is intended to provide a legislative background and history of Tribal Self-Governance for the DHHS/ASPE Tribal Self-Governance Evaluation Feasibility Study. Staff from the Department of Health and Human Services have reviewed and commented extensively on earlier drafts of the Report. The Draft Report will be further revised following the first meeting of the project's Technical Working Group. Therefore, this version should not be disseminated or quoted without approval from the DHHS/ASPE Task Order Managers.

1. Overview

The Tribal Self-Governance Evaluation Feasibility Study will provide the Office of the Assistant Secretary for Planning and Evaluation (OASPE) with background information and a detailed review of issues, data availability, and data systems that may affect the extent to which a rigorous and defensible evaluation of Tribal Self-Governance of Indian Health Service, and of other Tribally-managed non-IHS programs within DHHS, can be conducted.  While a number of assessments of Tribal self-governance programs have been conducted, these have been primarily qualitative in nature.  OASPE is interested in determining the feasibility of conducting an evaluation that examines processes and program changes associated with successful self-governance programs, as well as impacts of Tribal self-governance on outcomes, including access to care, services, quality, costs, financial performance and resources, customer satisfaction, and program stability.

This Draft Report on Legislative History and Development of Tribal Self-Governance and Contracting is one component of the background information that is being assembled to provide a foundation for understanding the legislative stages and implementation steps that have guided the evolution of Tribal Self-Governance that is the focus of the feasibility study.  The Draft Report reviews the history of Indian Tribal Self-Government and the legislative activities affecting Indian Tribes, tribal self-determination, and tribal self-governance.  It details the impact of past Congressional legislative activities on tribal governments and recent legislation since 1975.  The report also integrates Indian health into this history. In this section, a brief overview is provided of Tribal-Federal relations, the Indian Self-Determination and Education Assistance Act (ISDEA) that has been the foundation of current policies that support Tribal Self-Governance, and the central themes that have been important to the evolution of Self-Governance over the past several decades.

1.1 Early Tribal-Federal Relations

The United States has recognized Indian Tribes as distinct governments since the adoption of the Federal Constitution in 1789.  Congress has enacted statutes dealing with Indian Tribes based upon the Commerce Clause as well as the powers granted by the Treaty clause.  The Constitution’s Commerce clause, in particular, makes specific reference to Indian Tribes.  For the last 200 years, Congress has enacted statutes dealing with Indian Tribes, based upon the Supreme Court's interpretations of these Constitutional authorities.  Indian Tribes are not foreign nations and they are not States.  As asserted by Marshall’s Court, they are considered domestic dependent nations with inherent attributes of sovereignty.  One of these attributes is their right to self-government.  Additionally, however, the United States Congress has asserted, and the Supreme Court has upheld, the plenary power of Congress over tribal governments.  

The Indian Appropriation Act, 1871, ended the period of treaty making.  The policy of making compulsory land allotments to the Indians ended by 1934.  By the 1950’s, Congress began a legislative policy of tribal termination.  Congress terminated the legal existence of at least 109 Indian Tribes through various legislative acts.  By 1955, the Bureau of Indian Affairs estimated that there were only 280,000 Indians left living on reservations.  Treaty making, discretionary Federal administration, wars, depredations, deprivation, termination acts, and disease had taken their toll on Indian and tribal governments, land rights, way of life and their health.

Health services to Indians had begun through the War Department.  At first, Army physicians acted to curb smallpox in the vicinity of military posts in order to protect soldiers from infection.  In 1819, Congress appropriated funds to the Civilization Fund to be used for health care among many other purposes.  By 1832 large-scale smallpox vaccinations of Indians commenced, but the program reached only a small percentage of the Indian population.  The program did not prevent an epidemic in 1838 from killing an estimated 17,200 Indians in the Northwest alone.  While nearly two-dozen treaties contained provisions for health care, most of the Treaty funds had been expended by 1871.  The Interior Department (DOI) adopted a policy of continuing health services.  By 1900 the Indian Medical Service at the DOI employed 83 physicians and 25 nurses.  In 1921 the Snyder Act was passed, making the relief of distress and conservation of Indian health an appropriated purpose.

On July 1, 1955, the Indian Health Service was transferred to the Department of Health, Education and Welfare (DHEW).  Congress believed that the Public Health Service would not only be better able to provide health care services to Indians, it would also be better able to integrate Indian health into public and private health care systems at the State level. 

1.2 Indian Self Determination and Education ACT

Assimilation, as a goal of Federal policy, came to an end in 1968.  In 1970, President Nixon sent his Indian policy to Congress, recommending that it change its policy, from Termination, to Self-Determination Without Termination.  In 1973, Senator Henry Jackson introduced an Indian self-determination bill.  In 1975, Congress enacted the Indian Self Determination and Education Assistance Act P.L.93-638 (ISDEA).

In a seven year period, 1968-1975, a bi-partisan sea change occurred.  Congress moved away from assimilation and termination of tribal governments towards promoting a new era in Federal-Indian relations, one marked by Indian Self-Determination.  Section 2 of ISDEA Congress states that “the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities.”  Congress declared that it intended to establish a meaningful Indian self-determination policy in order to permit an orderly transition from Federal domination of programs to one where Indians could effectively and meaningfully participate in the planning, conduct, and administration of programs and services. 

The ISDEA focused on the two Departments that received Snyder Act appropriations for Indians, Interior and HEW.  The Secretaries of these Departments were directed to use contracts, or grants and cooperative agreements, to Tribes and tribal organizations to carry out the programs, services, functions, activities, and responsibilities that the Federal government was providing.  Capacity building grants could also be made to facilitate and implement contracting. While the Act made Federal contracting laws and regulations applicable to ISDEA contracts, it also gave the Secretaries authority to waive them. The Act also authorized rulemaking.  Federal personnel could be assigned from throughout the government to contracting Tribes without interruption of their service or military benefits or status. The Act preserves Tribal Sovereign Immunity and the Federal Trust Responsibility.

The Senate Select Committee on Indian Affairs reported that from 1975 to 1980, 370 ISDEA contracts worth $200 million were made.  While implementation of the ISDEA began well, conflicts soon developed between Tribes and the Federal agencies responsible for implementation of the Act over different interpretations of program redesign, contracting, and regulations according to the General Accounting Office.  “Indian contractors perceive the law as giving them the opportunity to determine for themselves the manner in which health care services should be delivered, and they see IHS restricting this freedom by various contract regulations.  IHS views self-determination as Indian Tribes being able to operate IHS activities through contracts as stated in the law.”

From 1984-1994, the ISDEA was amended eight times.  The direction of these amendments was toward more liberal contracting requirements, more participation by tribal governments in Federal rulemaking, and the opportunity to demonstrate more autonomy through tribal self-governance.  The initial enactment of a new Title III Tribal Self-Governance Demonstration Project for programs of the Bureau of Indian Affairs, DOI, and its later expansion to include programs of the IHS, were direct responses to what many Tribes wanted.  This direction was clearly away from the limitations resulting from application of procurement laws and regulations in contracting, toward compacting and self-governance.  The 1994 amendments in particular, streamlined the contracting process; imposed negotiated rulemaking procedures on the Departments in order to involve tribal governments; and replicated the Title III Tribal Self-Governance Demonstration Project in a new, expanded, and permanent Title IV Tribal Self-Governance Act, which applied to the DOI. 

In 2000, Congress again amended the ISDEA.  It declared its policy to permanently establish and implement tribal self-governance within the Department of Health and Human Services.  The new Title V largely extended Title IV Self-Governance compacting at Interior to the Department of Health and Human Services.  It directed the Secretary to establish the Tribal Self-Governance program within the Indian Health Service and to select up to 50 additional Tribes per year.  Tribal governments were authorized to redesign or consolidate programs and to reallocate and redirect funds in any manner, provided those eligible for services were not otherwise denied.  Federal procurement laws and regulations could only be incorporated into compacts and funding agreements by mutual consent.  Title V also directed the Secretary to undertake negotiated rulemaking.  A joint rulemaking committee made up of a majority of tribal self-governance Tribes and representatives drafted regulations based upon committee consensus and submitted them to the Department to be published.  The proposed regulations were published on February 14, 2002 and tribal regulations were issued May 17, 2002.

The 2000 Amendments also included a new Title VI, directing the Secretary to conduct a study to determine the feasibility of a tribal self-governance demonstration project for non-IHS programs, services, functions and activities that exist within DHHS. Title VI also required the Secretary was also required to consult with Indian Tribes in order to develop a consultation protocol, prior to engaging in consultation with other specified entities.

While often contentious, and periodically involving court intervention, miscommunication and mistrust, Indian Self-Determination and Self-Governance have been expressions of a continuing evolution of a government-to-government relationship between the United States and tribal governments.  The devolution of control over Federal programs, services, functions, and activities to Tribes appears, in retrospect, to have been central to that relationship.  Through Title VI, Congress has expressed its initial interest in extending a Tribal Self Governance demonstration project to other programs within the Department of Health and Human Services.

The Office of the Assistant Secretary for Planning and Evaluation conducted the Tribal Self-Governance Demonstration Feasibility Study in 2001-2002.  The Final Report on the Study, released November 5, 2002, identified 11 DHHS programs as “feasible for inclusion in a Tribal self-governance demonstration project” (p. 15).  The Self-Governance Demonstration program, as detailed in the Report, would permit a simpler, multiple-program application process and simpler and consolidated reporting requirements. Most importantly, the Demonstration program would provide “Tribes with the flexibility to change programs and reallocate funds among programs” (p.19) to better address specific Tribal community priorities.

1.3 the Evolution of Tribal Self-governance

From 1975 to the present, Congress has expanded the opportunities for Tribes to manage their own programs and has increased the degree of Tribal authority and discretion in management.  Beginning with demonstration programs of Tribal Self-Governance within BIA and, subsequently, with Indian Health Service programs, Congress has progressively moved to expand the scope of Tribal Self-Governance and Tribal management of federal programs. The key elements of this expansion have included:

· Expansion of the Scope of Programs That Tribes Manage: BIA and IHS self-governance demonstration programs have become permanent on-going programs expanded to all Tribes that are interested in self-governance. In addition, Congress and the relevant Departments have implemented opportunities for Tribal management of a variety of other programs.  This shift to Tribal Self-Governance and Tribal management of programs permits Tribes to choose whether to take on responsibility for specific programs and to decide on what basis – compact or contract – that Tribal management should be undertaken.

· Flexibility in Program Design:  The evolution of self-governance has occurred with recognition that the specific needs and preferences of Tribes may be better addressed if Tribes have the authority and autonomy to re-design and re-allocate funds that are available for specific program. As a result, Tribes that choose self-governance have the opportunity to re-design programs to better meet local community needs and priorities.

· Management Practices:  As Tribal Self-Governance policy has developed, there has been an evolution also of the nature and degree of federal oversight and requirements, including changes in program standards, changes in contracting and procurement rules affecting Tribes, and in funding options.  These changes have reduced the ‘red tape’ that was a barrier to Tribal Self-Governance and have been designed to facilitate Tribal Self-Governance and Tribal management of programs.

· Government-to-Government Relations:  The process that has occurred has increasingly included formalization of government-to-government relations and consultation protocols that have increased the ability of Tribes to have a formal and joint role in developing program standards and reporting requirements, and to appeal and challenge decisions of federal program managers. Similarly, the consultation process has included Tribes in a collaborative process for developing regulations and in joint rulemaking on issues that affect Tribes.

The shift to Tribal management of federal programs is an ongoing one that is continuing to expand opportunities for Tribes.  The potential expansion of Self-Governance to offer Tribes to manage a number of non-IHS programs within the Department of Health and Human Services that was the focus of P.L. 100-260, is based on the experience and commitment to Self-Governance by Congress, Tribes, and Federal agencies that has emerged over the past decades.

The following sections of this paper trace the steps through which Congress, the Federal agencies (DOI and DHHS), and the Tribes have gradually moved, providing (along with some reversals and side-steps) ever more tribal autonomy and control in relation to key dimensions of their Tribal programs and operations.

2. Tribal Self-government

In an 1823 dispute over land titles, Supreme Court Chief Justice John Marshall clarified that the United States had gained title to all Indian lands when it stepped into the shoes of Great Britain.  According to Marshall, “Discovery” gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest, and also gave a right to such a degree of sovereignty, as the circumstances of the people would allow them to hold.“Sec. 3709.  All purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service.”In order to noncompetitively purchase the product of Indian labor, it was necessary to find a way to suspend the public advertising requirement.

Buy Indian contracting had its genesis in an appropriation act:

“An act to provide for determining the heirs of deceased Indians, for the disposition and sale of allotments of deceased Indians, for the leasing of allotments, and for other purposes.”Using public contracting law and regulations to procure medical and health care services posed problems for the government.  First, Indian Tribes were not open market vendors of medical services.  Second, even if Tribes subcontracted for medical services, as contractors they generally lacked the financial and management capability as well as the funds to initiate contract performance.  Third, writing contract specifications for unknown “redesigned” programs would be difficult under public contracting law.  Essentially, Buy Indian Act contracting and public contracting are the same, with the only exception being waiver of the advertising requirement.

The inadequacy of the Buy Indian Act as a vehicle for tribal contracting was cited as one of the reasons for later enacting the Indian Self-Determination and Education Assistance Act (ISDEA).Section 5, Reporting and Audit Requirements, imposed minimal reporting requirements for contracts and grants.  Section 5 did not require that reporting conform to any particular standard or format.  The only requirement was that sufficient financial records be kept to make auditing of the Federal financial assistance possible.  Minimal reporting under Section 5 is consistent with the intent of Congress to either eliminate rigid procurement and contracting laws and regulations or to provide for their waiver, since procurement laws generally require more extensive reporting.Section 103, Contracts, also provided for appeals of declinations made by the Secretary.  Under Section 103, the Secretary could decline to contract if he found that contracting of a service or function would not be satisfactory, or that protection of trust resources would not be assured, or that the contracted project or function would not be completed or maintained.  A number of factors were to be used to assess potential deficiencies.  The Secretary was required to state his objections in writing, provide technical assistance to the Tribe to overcome his objections, and provide for a hearing and appeal under rules he would prescribe.

For contracts under Section 104(a), and for grants under Section 104(a) and Section 104(b), no declination criteria were provided.  Since there were no declination criteria under Section 104 for contracts or grants, a decision to avoid contracting or to deny a grant could be made under the Secretary’s discretionary authority.  Since the Secretary did not have to make the contract or grant, the only practical alternative afforded to Tribes was to accept government guidance on how to develop and operate their tribal health programs. Only its rescission could be appealed after a grant had been made.  Under Section 109, reassumption of Programs, the Secretary could rescind a grant or contract if performance violated any person’s rights; or endangered the health, safety, or welfare of any person; or if there were gross negligence or mismanagement in the handling or use of funds.

There are also a number of other important provisions that were enacted by ISDEA.  Section 5(c) provided that Tribes make reports and information available to the Indian people served or represented by the Tribe.  Section 7(a) authorized the application of Davis-Bacon wage and labor standards to ISDEA construction activity, and Section 7(b) authorized Indian preference in employment, training, and subcontracting.  Section 105 provided for employment of Federal employees as well as their assignment to tribal organizations.  Section 107 required consultation with Tribes on rulemaking, and presentation of any future revisions or amendments to appropriate Congressional committees, prior to publication.

ISDEA appeared to contemplate wide authority for contracting functions, authorities, and responsibilities without the limitation of procurement laws, if a Tribe requested a waiver.  The Act also provided declination criteria for contracts.  The Secretary was required to provide notice in writing and the opportunity to appeal his decision.

In 1986, the General Accounting Office (GAO) found that Tribes and the Indian Health Service had different perceptions of what the ISDEA meant.  “Indian self-determination has not been achieved, according to the majority of Indian contractors GAO visited and the majority responding to GAO’s questionnaire.”Congressional intent, statutory law, published regulations, administrative practice, tribal aspirations, and orderly transition to self-determination were not well coordinated.  In a special investigation conducted by the Senate Committee on Indian Affairs during 1987-1988, the Committee reported, “Indian politicians, commentators and community leaders have charged that the self determination legislation of the 1970’s was an empty promise.  Red tape and the perpetuation of Federal bureaucracies, inadequate authority, and condescending attitudes have restricted Native American efforts to take control of their communities.”The Administrative Provisions were revised to limit the application of Federal procurement laws to construction contracts executed under new section 102.  Federal procurement laws would no longer apply to contracts.  Reasonable contract support costs to comply with the terms of the contract and to support prudent management were also added.  The Secretary was prohibited from reducing contract-funding amounts due to accrued savings, contract monitoring, or to pay for Federal functions or Federal personnel costs.  Contract support costs could be increased.  The Secretary was required to provide an annual report to Congress accounting for: contract funding amounts and budget; direct and indirect cost bases, rates, and pools; and deficiencies of funds.  Indirect cost shortfalls were prohibited from being used to make adverse adjustments to future year cost rates or funding amounts.

Congress revised Section 107, Promulgation of Rules and Regulations, to require negotiated rulemaking procedures under the Administrative Procedures Act.  The Secretary was directed to engage in rulemaking with Indian Tribes within three months and to publish final rules within 10 months of the date of the amendments’ enactment.   Under Reassumption of grants, grant recission required that a hearing on the record be held on a date subject to approval by the tribal organization, not the Secretary.  United States district court jurisdiction for civil actions and claims against the Secretary was granted.  Other changes were made applying: The Federal Tort Claims Liability Act to self-determination contracts; The Equal Access to Justice Act to administrative appeals; and the Contract Disputes Act to contract disputes. Finally, a new Title III was added for a Tribal Self-Governance Demonstration Project with the Department of Interior and Bureau of Indian Affairs that applied to land, services, etc. administered by that department.

Unlike the original Act, the decision to contract was no longer discretionary.  A Self-Determination contract was redefined to mean “an intergovernmental contract that is not a procurement contract.”As introduced above, P.L. 100-472 Title III had directed the Secretary of the Interior to conduct a research and demonstration project, not to exceed five years.The Tribal Self-Governance Demonstration Project directed the Secretaries to negotiate and enter into written annual funding agreements with each of the participating tribal governments.  Annual funding agreements were to:

1.       Authorize Tribes to plan, conduct, consolidate, and administer programs, services and functions authorized under the Johnson O’Malley and Snyder Acts;

2.       Authorize Tribes to redesign programs, activities, functions or services and to reallocate funds their funds;

3.       Exclude funds under the Tribally Controlled Community College Assistance Act and the Flathead Agency Power Division;

4.       Specify the services to be provided, the functions to be performed, and the responsibilities of the Tribe and the Secretary under the Agreement;

5.       Specify the authority of the Tribe and the Secretary, and the procedures to be used to reallocate funds or modify budget allocations within any project year;

6.       Provide for payment to the Tribe of funds from one or more programs, services, functions or activities in an amount equal to that which the Tribe would have been eligible to receive under contracts and grants under the Act, including direct program costs and indirect costs, and specifically related funds; provided that funds for trust services to individual Indians were available under the written agreement only to the same extent that the same services which would have been provided are provided to individual Indians by the Tribe;

7.       Prohibit the Secretary from waiving, modifying or diminishing the trust responsibility;

8.       Authorize retrocession of programs or portions of programs; and

9.       Provide that the Secretary submit the Agreement to each Tribe and Congressional committees.

Tribes that were selected to participate in the Demonstration Project could not enter into a Section 102 contract with the Secretary for the same programs and funds that were a part of the project.  Tribes were responsible for administration of the demonstration projects.  The Secretary was obligated to provide funding for the Annual Funding Agreements entered into by him.  The term “contract” was to apply to Annual Funding Agreements for the purpose of contract appeals.  Federal laws were to be interpreted in a manner that would facilitate the agreements.A Joint Tribal/Federal Self-Governance Negotiated Rule Making Committee was formed in 1995.  A majority of the Committee’s membership was made up of tribal representatives drawn from Tribes that had tribal self-governance agreements.  The final regulations were published on December 15, 2000.

The regulations provided authorization for selecting up to 50 Tribes per year to participate in self-governance agreements.  In order to qualify as an applicant, a Tribe would have to complete a planning grant, have submitted a resolution requesting participation, and have demonstrated financial stability and financial management capability.  The Secretary of the Interior was directed to negotiate and enter into written funding agreements with Tribes.  The regulations provided for retrocession from all or a portion of a contracted program.  Construction contracts could be made subject to Federal procurement laws and regulations by incorporating their terms into funding agreements.

Under the regulations, Agreements are to be sent to Congress and to potentially affected Tribes 90 days before they are executed.  Funding for direct and contract support costs is to be included in funding agreements and advance payments can be made.  The Secretary is required to interpret laws and regulations in a manner that will facilitate implementation of agreements.  After receiving a request for a waiver, the Secretary has 60 days to either approve or deny the request.  Denials are subject to administrative due process hearing and appeal.  The Secretary is required to submit an annual report to Congress that provides information on costs and benefits.  The report is to be shared with the Tribes and their independent views obtained.  The report must include their comments.            Section 602(c) required the Secretary to submit a report to the Senate Committee on Indian Affairs and the House Committee on Resources, no later than 18 months after the date of enactment of Title VI.  The contents of the report required are:

1.       the results of the study under Section 602;

2.       a list of programs, services, functions, and activities (or portions thereof) within each agency with respect to which it would be feasible to include in a tribal self-governance demonstration project;

3.       a list of programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) that could be included in a tribal self-governance demonstration project without amending statutes, or waiving regulations that the Secretary may not waive;

4.       a list of legislative actions required in order to include those programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) but not included in the list provided pursuant to paragraph (3) in a tribal self-governance demonstration project; and

5.       any separate views of Tribes and other entities consulted pursuant to section 603 related to the information provided pursuant to paragraphs (1) through (4).

Section 603 directed the Secretary to determine a consultation protocol

    1. the government-to-government relationship with Indian Tribes forms the basis for the consultation process;
    2. the Indian Tribes and the Secretary jointly conduct the consultations required by this section; and
    3. the consultation process allows for separate and direct recommendations from the Indian Tribes and other entities described in subsection (b).
  • Section 603(b) directs the Secretary to consult with Indian Tribes, States, counties, municipalities, program beneficiaries, and interested public interest groups.  The Secretary may also consult with other entities as appropriate.  Finally, Section 604 provides an authorization for funding the feasibility study.

    The Department of Health and Human Services has made information about the Tribal Self Governance Feasibility Study and its Consultation Protocol Agreement available to the public on its website:  The Consultation process is organized into four phases.  Phase one focuses on consultation with tribal entities on the feasibility and scope of a possible demonstration project.  It also asks for recommendations.  Phase two involves consultation with statutorily designated non-tribal entities and requests recommendations.  Phase three concerns the preparation of a draft report to Congress that assesses the feasibility of a demonstration project, makes recommendations, and responds to the requirements of Section 602.  Finally, Phase four involves preparation of a report to Congress that contains the separate views of Tribes and other entities consulted.  The Department also provides information on steps that it is taking to implement the Study as well as a Consultation Timeline.

    4.9 Ihs Self-governance Regulations – Titles V and VI

    On February 14, 2002, the Department of Health and Human Services published a Notice of Proposed Rulemaking (NPRM) for “Tribal Self-Governance Amendments of 2000.”Subparts A and B of the regulations respectively provide for general provisions and definitions.  Subpart C deals with the eligibility of Tribes as contracting parties.  Up to 50 additional Tribes per year are to be selected for participation provided that they meet the eligibility requirements.  Subpart D states the authority and content for negotiated compacts, and clarifies that compacts are separate documents from annual funding agreements.  Subpart E states the authority, content and term of funding agreements, including a description of the required and optional terms.  Subpart F describes how statutorily mandated grants may be added to a funding agreement.  Subpart G describes what funds are to be transferred; when they are to be transferred; and the circumstances where the Secretary is prohibited from reducing or failing to transfer funds.  The subpart also describes where the Secretary may increase funds and what funds may be included in a Tribe’s stable base budget.  Subpart H describes the final offer and rejection process; the process and timeframes for resolving disputes; and the process for a Tribe to follow in presenting a final offer as well as the procedures the Secretary must follow in rejecting such an offer.  The burden of proof is placed on the Secretary to demonstrate the validity of the grounds for his rejection of a Tribe’s final offer.  Subpart I contains numerous operational provisions dealing with: Audits and cost principles; records; redesign; non-duplication; health status reports; savings; access to government furnished property; and matching and cost participation requirements.  Subpart J authorizes the Secretary to waive regulations that have been promulgated to implement Title V or regulations promulgated under Section 505(b) of Title V.  This subpart describes how a Tribe may apply for a waiver; the process; and the timeframes for approval or denial.  Denial of a request for waiver may be appealed to a Federal court.  Subpart K describes withdrawal from participation in an inter-tribal consortium or tribal organization; the impact on funds distribution; and future Title I contracting.  Subparts L and M respectively describes procedures to be followed for retrocession and reassumption of contracts.  Subpart N applies to construction projects undertaken under Section 509 of Title V.  This subpart is comprehensive.  It clarifies that Tribes may assume construction programs (but not projects) under the compact and funding agreement authorities.  This subpart provides: Purpose and scope; construction definitions; process for Tribes to assume federal environmental responsibility under the National Environmental Policy Act (NEPA) and related laws; notification (prioritization process); project assumption process; roles of the Secretary and Self-Governance Tribes; and other provisions.  Among the other provisions, Section 137.377 clarifies that Federal procurement laws and regulations do not apply to construction agreements performed under Section 509 of Title V, unless otherwise agreed.  Subpart O describes the consultation and annual report to Congress process.  Finally, Subpart P describes the appeals process. 

    4.10 Prospects for future legislation

    In the just concluded 107th Congress, Senate Bill 2711 was introduced Technical Corrections to the Indian Self-Determination Act.  S.2711 would have added a section providing for the application of laws to administrative appeals.  The section also dealt with attorney fees, claims, and incorporation of self-determination provisions, their force and effect, and timing of incorporation during the negotiations process.  The bill expired with the end of the Congress but could be reintroduced after the 108th Congress convenes.  Further, the report mandated by Title VI of ISDEA, regarding the feasibility of DHHS conducting a demonstration of Tribal self-governance for non-IHS social service programs, to be submitted shortly, could serve to remind the Congress of its interest in extending the reach of Tribal self-governance to additional program areas.  Tribes engaged in self-governance have expressed their commitment to pushing legislation in this direction. 

    Appendix 1. Indian Self-Determination and Education Assistance Act Tribal Self-Governance Act – Statutes and Regulations

    DATES                        STATUTES

    January 4, 1975:            Indian Self-Determination and Education Assistance Act, PL 93-638

    88 Stat. 2203, ISDEA.  Enacted Title I Indian Self-Determination Act

    and Title II Indian Education Assistance Act.

    April 3, 1984:                 1984 Amendment to ISDEA, PL 98-250, 98 Stat.118.  Made technical and clarifying language on US code sections.

    December 22, 1987:       1987 Amendment to ISDEA, PL 100-202, 101 Stat.1329-213, 1329-246.

                                        Made technical and clarifying language on personal injury claims.

    September 27, 1988:      1988 Amendment to ISDEA, PL 100-446, 102 Stat. 1817.

                                        Amended PL 100-202 clarifying claims filed by different persons.

    October 5 ,1988:            1988 Amendment to ISDEA, PL 100-472, 102 Stat. 2285.

                                        Made technical clarifying language on policy, definitions, reporting and audit requirements, carryover of funds, contracts, grants, assignment of Federal employees, administrative provisions, payments, contract amounts, funding, accounting, indirect costs, rules and regulations, consultation, civil actions and disputes; renumbering of sections; and addition of Title III Tribal Self-Governance Demonstration Project for five years and addition of 20 Tribes. 

    November 1, 1988:        1988 Amendment to ISDEA, PL 100-581, 102 Stat. 2941.

    Made technical clarifying language on tribal organization, planning, annual reporting, Indian owned enterprises, notice and hearing, civil actions, and Equal Access to Justice.

    May 24, 1990:               1990 Amendment to ISDEA, PL 101-301, 104 Stat. 4665.

    Made technical clarifying language on Indian Tribe, grant or cooperative agreements, Single Agency Audit Act, construction contracts, agency personnel, notice and hearing, and contract amendment.

    November 29, 1990:       1990 Amendment to ISDEA, PL 101-644,108 Stat. 4251.

    Made technical clarifying language on mature contract, self-determination contract, funds paid, annual reporting, personal injury claims, contract term, fiscal year and amounts, property, dates, and revision of rules and regulations.

    December 4, 1991:        1991 Amendment to ISDEA, PL 102-184

    Extended the Tribal Self-Governance Demonstration Project for three additional years and the number of additional Tribes was increased to 30.

    1992                             Amendments added – IHS Self –Governance demonstration

    October 25, 1994:          1994 Amendment to ISDEA, PL 103-413, 108 Stat. 4250.

    Made the Tribal Self-Governance Demonstration Project into a permanent program in Interior (Title IV) by enacting the Tribal Self-Governance Act of 1994; and authorized continuing participation of Tribes in the project.  Authorized up to 20 Tribes per year. 

    February 12, 1996:         1996 Amendment to ISDEA, PL104-109.

    An Act to make technical corrections and law related to Native Americans.  Section 403 amended to permit incorporation of self-determination provisions into funding agreements.

    In addition, extended DOI Self-Governance provision to non-BIA, but non-BIA administration discretion retained by DOI.

    September 30, 1996:      1996 Amendment to ISDEA, PL 104-208.

                                        Amended PL 103-413, to allow up to 50 Tribes per year to participate.

    August 18, 2000:            2000 Amendments to ISDEA, PL 106-260, 114 Stat.711.

    Added Title V Tribal Self-Governance for IHS programs and Title VI for a self-governance demonstration feasibility study; also provided technical clarifying language for other Titles.  Provides for additional Fed-Tribe negotiated rule-making authority.

    AGENCY                   REGULATIONS

    DOI/DHHS:              25 Code of Federal Regulations, Chapter V Part 900, “Contracts under the Indian Self-Determination and Education Assistance Act”.  Joint DOI/DHHS Indian Self-Determination Act contracting.

    DOI:                                      25 Code of Federal Regulations, Chapter VI Part 1000, “Annual funding agreements under the Tribal Self-Governance Act amendments to the Indian Self-Determination Act.”

                                        25 Code of Federal Regulations, Chapter VI Part 1001, “Self-Governance Program.”

    DHHS:                         Subchapter M – Indian Health Service, Department of Health and Human Services, Part 137 – Tribal Self-Governance. “Tribal Self-Governance”.  [NPRM Fed. Reg./vol.67, No. 31/ Thursday, February 14, 2002. Proposed Rules].  Final—May 2002, IHS self-government.

    Appendix 2. History – Federal-Indian Policy

    PERIOD         FEDERAL POLICY                       

    1776:                Articles of Confederation, Article IX(4): Power to regulate trade, manage trade, legislative rights to acquire Indian lands; Founders debates.

    1787:                United States Constitution, Treaty and Commerce clauses; Power to make treaties and reserved rights.

    1790-1834:        Trade and Intercourse Acts: Regulation of trade and intercourse.

    1802-1900:        Indian Removal and Consolidation: Abolition or consolidation of tribal governments, and forced removal to reservation.

    1886                 Tribes forced onto reservations

    1870:                President Grant’s Peace policy, Civilization, and Religious Education: Federal assignment of agencies to religious denominations for assimilation.  ????

    1871                 Treaty-making period ends – Indian Appropriation Act

    1871-1928:        Allotments and Assimilation: Dawes and Curtis acts; creation of the BIA and reservation system; creation of Indian training and boarding schools.

    1885:                Major Crimes Act: Expansion of Federal power over Indians.

    1903:                Plenary power of Congress: Absolute power over Indian lands and people. Lonewolf v.  Hitchcock.

    1924                 Indian Citizens Act

    1928                 Allotment Act : deeding land to individuals.

    1934                 Indian Reorganization Act : restored Tribal sovereignty; ended allotment.

    1928-1945:        Period of Indian Reorganization: Indian citizenship, reorganization of tribal governments, reforms of John Collier.

    1954                 Transfer Act (P.L. 83-568): moved IHS to DHEW.

    1945-1968:        Termination policy: complete integration of Indians into American society.

    1970-present:    Indian Self-Determination: Renascence of tribal government, Indian political rights, and Federal trusteeship.

    1974                          American Indian Policy Review Commission:  Nixon administration, P.L. 93-580.


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