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.