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

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