History of Tribal Self-Governance Legislation
In 1970, President Nixon, in a "Special Message to Congress on Indian Affairs," laid the foundation of a new federal policy to promote tribal self-determination. Since that time, the policy of the federal government has been to promote tribal self-determination. As a major first step, the Indian Self-Determination and Education Assistance Act (the Act) was passed in 1975 to allow tribal management of programs that previously had been managed on their behalf by the Departments of the Interior (DOI) and Health, Education, and Welfare. Specifically, Title I of the Act authorized tribes to assume management of programs in the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) through contractual agreements with the two agencies. For the IHS, programs that could be contracted included hospitals, clinics, dental services and prevention and health promotion services. Under theses contracts, tribes assumed full responsibility for planning, conducting, and administering the contracted programs, including hiring personnel, delivering services, record keeping, and other administrative functions.
Subsequent amendments to the Act extended the scope of tribal control over BIA and IHS programs. A 1988 amendment to the Act (Title III) created the first "Tribal Self-Governance Demonstration Project" in the DOI. Under the demonstration, tribes were authorized to consolidate multiple contracts and grants into a single funding agreement and assume control over decision-making and management of BIA programs, services, functions, and activities previously managed by the agency. Most significantly, the demonstration provided tribes with broad flexibility to use the resources under the agreement, including the flexibility to consolidate and redesign programs to better meet tribal needs. In 1994, the success of the demonstration was recognized and Congress amended the Act to create a permanent self-governance authority in BIA. In 1996, the Act was again amended to allow tribes to take over control and management of programs in the DOI outside the BIA.
In the meantime, 1992 amendments to the Indian Health Care Improvement Act extended the Title III self-governance demonstration to the IHS and its programs. The Tribal Self-Governance Amendments of 2000 (P.L. 106-260) confirmed the success of the self-governance demonstration in the IHS by the passage of Title V of the Act, making tribal self-governance permanent within the IHS.
The amendments of 2000 also added Title VI (Appendix A) to the Act, requiring that the Secretary of HHS "conduct a study to determine the feasibility of a tribal self-governance demonstration project for appropriate programs, services, functions, and activities (or portions thereof ) of the agency [HHS]." This Title applies to non-IHS programs administered by the Department. Title VI also delineates what the Secretary must consider in conducting the study and requires a joint federal/tribal stakeholder consultation process. This report addresses the Title VI study and report requirements.
Tribal self-governance is an expansion of self-determination with notable changes in how federal funding is received and expended by tribes. Tribes have described tribal self-governance as a "new partnership" between the federal government and tribes. As defined by Congress in P.L. 106-260, the goal of self-governance is "to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority, control, funding, and discretion to plan, conduct, redesign, and administer programs, services, functions, and activities (or portions thereof) that meet the needs of the individual tribal communities." In practice, self-governance has two basic parts: 1) the transfer of the responsibility for managing Federal programs (and funds) that serve Indians from existing service providers to the tribes, and 2) providing tribes with the broad authority to redesign federal programs and reallocate federal resources to more effectively and efficiently meet the needs of tribal communities.
Title VI requires an assessment of the feasibility of expanding self-governance to HHS programs and activities beyond those in the IHS. Currently, HHS comprises 10 major agencies and a number of staff offices. These agencies have jurisdiction over more than 300 different programs, ranging from highly specialized medical research to the provision of health and social service benefits to individuals. As a prelude to the study, an inventory of all non-IHS programs was compiled. Throughout the study, the inventory provided a baseline of programs to assess the feasibility for self-governance.