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


[1] Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).

[2] Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1(1831).

[3] Worcester v. Georgia, 31 U.S. (5 Pet.) 1(1831). “…congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.”

[4] Worcester, ibid; “…the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right of self-government, by associating with a stronger, and taking its protection.”

[5] “Promotion of Civilization” was one of the enacted purposes of the trade and intercourse acts at issue in Worcester.

[6] Lonewolf v. Hitchcock, 187 U.S. 553 (1903).

[7] Handbook of Federal-Indian Law, Felix Cohen, (1941 ed.): “The statutes of Congress, then, must be examined to determine the limitations of tribal sovereignty rather than to determine its sources or positive content.  What is not expressly limited remains within the domain of tribal sovereignty.” p. 122. See also, Talton v. Mayes, 163 U.S. 376 (1896). Tribal sovereign powers pre-existing the U.S. Constitution are not affected by Federal laws unless Congress expressly acts to limit those powers. cf., Indian Civil Rights Act of 1968, 25 USC 1301-1303.

[8] in Talton v. Mayes, the Supreme Court declined to apply the Fifth Amendment grand jury clause to the Cherokee Nation, holding that the plenary powers did not displace local powers in the absence of federal legislation

[9] United States v. Kagama, 118 U.S. 375 (1886).

[10] See e.g., Antoine v. Washington, 420 U.S. 194, 202-203 (1975) holding that a post 1871 agreement had the same legal effect as a treaty.

[11] 25 U.S.C. 331 et seq.; See also, Curtis Act of June 28, 1898, compulsory allotments, abolishing tribal laws and courts, establishing municipal governments under State law.

[12] United States v. Sandoval, 231 U.S. 28 (1913).

[13] United States v. Nice, 241 U.S. 591 (1916).

[14] See especially 25 U.S.C. 476, 477.

[15] 25 U.S.C. 461

[16] Title 25 United States Code; Title 25 Code of Federal Regulations; Bureau of Indian Affairs Manual.

[17] Comment, “Tribal Self-Government and the Indian Reorganization Act, 70 Michigan Law Review 955 (1972).

[18] See e.g., “Revised Constitution and Bylaws of the Devils Lake Sioux Tribe Fort Totten, North Dakota, Article VI-Governmental Authorities, Section 3: “To enact ordinances to regulate the conduct and domestic relations of the members of the Tribe, or Indians from other Tribes on the reservation, subject to the review of the Secretary of Interior, or his duly authorized representative.” (1988).

[19] 25 U.S.C. 2.  This section is also a source of broad rulemaking authority.

[20] Wilkinson, Charles F., “Evolution of the Termination Policy” 5 American Indian Law Review 139 (1977). More than 100 Tribes, bands and rancherias were subsequently terminated.

[21] Wilkinson, Ibidem, pp. 151-154.

[22] Codified 25 U.S.C. 1321(a) criminal jurisdiction; 25 U.S.C. 1322(a) civil jurisdiction.

[23] 25 U.S.C. 1326 “amending P.L. 86-280 to provide that assumption of jurisdiction by a State requires a majority vote of adult Indians.”

[24] McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973).  State holding for McClanahan.

[25] White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). “Congressional authority and the ‘semi-independent position’ of Indian Tribes have given rise to two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. First, the exercise of such authority may be pre-empted by Federal law. Second, it may unlawfully infringe ‘on the right of reservation Indians to make their own laws and be ruled by them”.

[26] “Message from the President of the United States Transmitting Recommendations for Indian Policy” H.R. Doc. No. 91-363, 91st Cong., 2d. Sess. (July 8, 1970).

[27] Message, Ibid., Section 2. “Federal support programs for non-Indian communities—hospitals and schools are two ready examples—are ordinarily administered by local authorities.  There is no reason why Indian communities should be deprived of the privilege of self-determination merely because they receive monetary support from the Federal government.   Nor should they lose Federal money because they reject Federal control.”

[28] “Health Services for American Indians” DHEW, February 11, 1957.  See especially, Section VI History of the Indian Health Program, pp.86-97.

[29] “Health Services for the American Indian” Ibid.“History of the Indian Health Program” pp. 86-87.

[30] “Health Services for the American Indian” Ibid., Section 6.

[31] 25 U.S.C.13.  Expenditure of appropriations by Bureau of Indian Affairs…For relief of distress and conservation of health.

[32] Most procurement, grant, and cooperative agreement authorities are now located in Title 41 Public Contracts or Title 31 chapter 63.  25 U.S.C. 91, 92, and 93 have been repealed.

[33] P.L. 83-568, August 5, 1954.

[34] P.L. 83-568, August 5, 1954; 42 U.S.C. 2001, 2002.

[35] Senate Report No. 1530, June 8, 1954, p. 2919.  

[36] House Report No. 870, July 17, 1953; printed in Senate Report No. 1530 supra, at p. 2927

[37] Memorandum: Surgeon General, Public Health Service,“Health Services for the American Indian”. p.1.

[38] Memorandum: Secretary DHEW, February 11, 1957.

[39] Memorandum, Secretary DHEW, ibid.

[40] “Health Services for American Indians” Ibid. “Summary of Findings and Conclusions”.  p. 2.

[41] Memorandum, Secretary DHEW, ibid.

[42] “Health Services for American Indians” Ibid. “Medical Facilities”  pp. 103-105.

[43] Section 2 provides in part: “…the Secretary of Health, Education, and Welfare is authorized in his discretion to enter into contracts with any State, Territory, or political subdivision thereof, or any private nonprofit corporation, agency or institution providing for the transfer by the United States Public Health Service of Indian hospitals or health facilities, including initial operating equipment and supplies.”

[44] Act of August 16, 1957, P.L. 85-151, 42 U.S.C. 2005.

[45] Senate Report No. 769, July 30, 1957, p. 1545;  See also, P.L. 86-121 (1959) sanitation facilities.

[46] Revised Statutes, Title XLIII – Public contracts, Section 3709 Advertisements for proposals.

[47] Act of April 30, 1908, c.153, 35 Stat.71.

[48] Act of June 25, 1910.

[49] “Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under existing conditions and circumstances.”

[50] See e.g. 48 CFR 301.103.

[51] House Report No. 93-1600, December 19, 1974,“…the inability of the Federal government to exempt tribal contracts from Federal procurement regulations and to authorize payments in advance of tribal performance on such contracts.” p. 7782.

[52] P.L. 94-437, 90 Stat. 1406, 25 USC 1601 et.seq., 1651 et seq., 42 USC 1395-1396,  2004.

[53] Need to define Force Accounts

[54] Final Report: Descriptive Analysis of Tribal Health Systems, Indian Health Service, May, 1987.  Only 10 out of 232 contract awards by IHS were made under Buy Indian authority.

[55] Act of December 29, 1973, P.L. 93-222, 87 Stat. 935.

[56] 42 U.S.C. 2001(b).

[57] General Counsel Memorandum: “Health Maintenance Organizations – Section 6(a) of Public Law 93-222 – Authority to Contract for Health Services to Indians on a Prepayment basis,” April 11, 1974. “Thus, not only is the term ‘health maintenance organization’ not employed in the amendment, but it also offers the widest possible discretion in the selection of mode for the provision of service on ‘a prepayment or other similar basis.’.”

[58] General Counsel Memorandum: “Indian Health – Proposal of Colville Confederated Tribes – Prepayment Authority – Insurance,” September 13, 1974.  The memorandum was prepared and signed by staff of the Office of General Counsel not the General Counsel.)  Also, all references in the text of the paper, unless there is a specific citation to a person, in which General Counsel is mentioned should be changed to read Office of General Counsel.

[59] The Act has been amended many times in the last 27 years. Section numbers refer to the original Act.

[60] 120 Cong. Rec. p. 8967, April 1, 1974.  Senator Henry Jackson introduced S. 1017 on Feb. 26, 1973.

[61] 120 Cong. Rec. p. 8966, April 1, 1974.

[62] House Report No. 93-1600, December 16, 1974.

[63] 120 Cong. Rec. p. 7782, April 1, 1974.

[64] The final disposition of S.1017 is

[65] Indian Self-Determination and Education Assistance Act, P.L. 93-638, 88 Stat. 2203, 25 U.S.C. 450.

[66] ISDEA §103 functions, authorities and responsibilities of the Indian Transfer Act, as amended.

[67] Implementing regulations 42 CFR 36.215 applied Title 41 Chapters 1 & 3.

[68] ISDEA §106 also provided, “that the appropriate Secretary may waive any provisions of such contracting laws or regulations which he determines are not appropriate for the purposes of the contract involved or inconsistent with the provisions of this Act.”

[69] 120 Cong.Rec. p. 7782, April 1, 1974 “…The rigid procurement and contracting laws and regulations…are either made inapplicable to such contracting or can be waived in the discretion of the respective Secretary.”

[70] Facilities Construction, 42 CFR 36.110 (1988). See also, 42 CFR 36.114 applying 45 CFR Part 74.

[71] 42 CFR 36.104(d)(3) (1988).  This regulation no longer exists.

[72] 42 CFR 36.106(5) (1988).

[73] Request for Waiver, 42 CFR 36.216 (1988)

[74] General Accounting Office, Ibid. p.3.

[75] General Accounting Office, Ibid. p.3

[76] “The Beginnings of Self Determination” Final Report and Legislative Recommendations, Special Committee on Investigations, Select Committee on Indian Affairs, United States Senate, 1989, page 60.

[77] P.L. 98-250, 98 Stat. 118, April 3, 1984.

[78] P.L. 100-202, 101 Stat. 1329-213, 1329-246, December 22, 1987.

[79] P.L. 100-446, 102 Stat. 1817, September 27, 1988; P.L. 100-472, 102 Stat. 2285, October 5, 1988; and P.L. 100-581, 102 Stat. 2941, November 1, 1988.

[80] Senate Report 100-274, “Indian Self-Determination and Education Assistance Act Amendments of 1987,” December 22, 1987, p.18.

[81] Senate Report 100-274, Ibid. p.20.

[82] Senate Report 100-274, Ibid. p.5.

[83] Title III §301.  

[84] The Indian Health Service was added as part of the Indian Re-authorization Act, P.L.102-573.

[85] The number of Tribes was later increased to 50 (1996).

[86] Title III §302.  

[87] Title III §303

[88] Title III §304

[89] Title III §305

[90] Title III §306

[91] In 1990, two years prior to IHS being included under the Self-Government provision, two additional amendments were made to the Indian Self-Determination and Education Assistance Act.  Mature contract records were to include quarterly financial statements and annual Single Agency Audits under Title 31 USC chapter 75.  Self-Determination contracts could have indefinite terms of duration.  The calendar year was selected as the contract year (after considerable litigation), unless there was agreement on a different term.  Federal excess or surplus real or personal property could be donated to Tribes, when it was appropriate to the purposes of a self-determination contract.  Theoretical or actual over- or under-recoveries of indirect costs under OMB Circular A 87 were prohibited.  Finally, rulemaking authority to carry out Title III was authorized.

[92] Congressional Record, March 6, 1996, pp. E288-E289.

[93] P.L. 103-413, 108 Stat. 4250, October 25,  1994.

[94] Title I enacted §450l; amended §450(b)(c)(e)(f)(j)(k)(m) and (m-1).

[95] Title II enacted Part D (25 USC 458aa et seq.). Congress found success in the Demonstration project.

[96] Congressional Record, March 6, 1996, pp. E288. [The 1994 Amendments’ original publication date was April 25, 1996.  Congress subsequently extended the deadline by two months]


[98] P.L. 103-413, Title II, Section 204, October 25, 1994, 108 Stat. 4271.

[99] See e.g., 25 U.S.C. 458aa – Notes.

[100] 25 U.S.C. 458aa. Establishment.

[101] The Tribal Self-Governance regulations for Title IV are organized into Subparts A-S.  The Annual Funding Agreements under the Tribal Self-Governance Act (1994 Amendments) are located in Part 1000 Chapter VI of Title 25 Code of Federal Regulations.  The Self-Governance Program regulations are located in Part 1001 Chapter VI of Title 25 Code of Federal Regulations.  The Secretary of the Interior is responsible for administration of Title IV Tribal Self-Governance Act.  

[102] See e.g., 25 CFR 900.115; and 25 U.S.C. 450j(3).

[103] 31 U.S.C. chapter 75.

[104] 31 U.S.C. 1105.

[105] 5 U.S.C. 552, 553

[106] Section 3(1) Declaration of Policy

[107] P.L. 106-260, 114 Stat. 711, August 18, 2000.

[108] Compacts, Section 504(a) agreement required between the Secretary and the Tribe; (b) contents; (c) existing compacts; (d) term and effective date.

[109] Funding Agreements Section 505(a) agreement required between the Secretary and the Tribe; (b) contents; (b)(2) inclusion of other programs; (c) inclusion in compact or funding agreement; (d) funding agreement terms; (e) subsequent funding agreements; (f) existing funding agreements; and (g) stable base funding.

[110] Section 506(c) Audits.

[111] Section 506 (c)(2) Cost Principles – with the exception of Section 106.

[112] Section 506 (e) Redesign and Consolidation.

[113] Section 507(b) Final Offer.

[114] Section 508(g) Prompt Payment Act.

[115] Section 508(j) Program Income.

[116] Section 509(g) Wages.

[117] Section 509(g) Application Of Other Laws.

[118] Section 510 Federal Procurement Laws and Regulations.

[119] Section 512(b)(1)(2) Regulation Waivers: General, Approval.

[120] Section 512(c) Access To Federal Property.

[121] Section 514 Reports.

[122] Section 515(c) Disclaimers, Obligations of the United States.

[123] P.L. 106-260, 114 Stat. 731, August 18, 2000.

[124] Section 601(b)(2).

[125] Section 601(b)(1).

[126] Section 602(b)(1)(2)(3)(4)(5)(6).

[127] Section 603(a) Study Protocol.

[128] Section 603(a)(1) Consultation with Indian Tribes.

[129] Federal Register, Vol. 67, No. 31, Thursday, February 14, 2002, page 6998.

[130] Title V- Tribal Self-Governance Amendments of 2000 required the Secretary to initiate negotiated rulemaking procedures with a committee composed of a majority of Self-Governance Tribes.

[131] Key areas of disagreement were also published. See, Fed Reg. ibid. p.6999.

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