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THE SELF DETERMINATION ACT
The Self-Determination Act While the establishment of IHS did not occur until 1955, the concepts of dependency-to- self determination and tribal sovereignty have been long-standing issues. Policies undertaken by the federal government to maintain its provisionary role have fluctuated with the political currents and national mood. The conflicts between intent and outcome of these policies made by non-Indians have fostered conflict and mistrust. Efforts to change this premise for interaction between the tribes and the federal government included legislation passed in the 1970s. The central piece of legislation that influences current US-Indian policy is the Self- Determination and Education Assistance Act of 1975 (PL93-638). This law had tremendous impact on the IHDT proceedings. The Indian Self-Determination and Education Assistance Act (PL93-638) gave official US sanction to promote Indian self-governance by the tribes. It did so by allowing the tribes to contract with federal agencies such as the Bureau of Indian Affairs (BIA) and Indian Health Services (IHS) to operate these formerly federally operated delivery systems. As tribes began “638ing” however, it became apparent that implementation would escalate a conflict in administrative styles. Early antecedents for the act included the Buy-Indian Act of 1919 and the Indian Reorganization Act (IRA) of 1934. With the former, the Indian Service had encouraged the contracting for Indian labor for federal activities on the reservation, and purchasing products of Indian industry by those living off the reservation. This had been designed as a measure to encourage self-sufficiency for the reservation Indians (Stuart, 1990). The IRA, or Wheeler-Howard Act of 1934, gave the legislative basis for modern tribal government. It provided for the organization of tribal government and business corporations. Although the act was a watered down version of what Commissioner of Indian Affairs John Collier had envisioned for tribal autonomy, the intent of this legislation was to enable tribes to become self-sufficient on the road to assimilation. While the act did not systematically incorporate existing Indian conceptions of authority and property, it “at least in an Anglo-American sense provided an individualistic opportunity to Indian tribes to formulate their own tribal governments and constitutions” (Chaudhuri, 1985, p. 28) In addition to these precedents, three historical factors in the late 1960s and early 1970s facilitated the enactment of PL93-638 (Danziger, 1984). In Kingdon’s model, the first two can be seen as external focusing events that bring an item to the agenda. The third illustrates the effect of policy entrepreneurship. First, there were a number of congressionally sponsored national task forces and commissions studying the living conditions on the reservations. The 1969 document, “Indian Education: A National Tragedy- -A National Challenge” (often referred to as the Kennedy Report) left no doubt in the minds of Congress that the coercive assimilation attempts of the government were not working. It disclosed a pattern of high drop out rates from school, alienation and apathy. These facts were presented against the backdrop of poverty, poor health, alcoholism and crime found on the reservations. Second, the American press vigorously headlined Indian activism. The Trail of Broken Treaties Caravan to Washington, the occupation of Alcatraz, as well as several BIA offices, and the confrontation at Wounded Knee were examples of activism that kept the American public focused on the state of Indian affairs. The rise of Indian activism was tied to increased activities of other ethnic minority groups seeking recognition and political sway. Third, the executive branch had made self-determination a policy issue. President Lyndon Johnson delivered a Special Message to Congress entirely devoted to Indian affairs. He averred that the US must proceed “by treating the Indian himself as a full citizen, responsible for the pace and direction of his development” (1968, cited in Danziger). When Nixon assumed the executive helm, Indians were wary of the Vice-President who served during the height of the termination era. Ironically, it was Nixon who developed in word and substance a blueprint for PL93-638. Although President Nixon’s recommendations were not codified, he encouraged the BIA to contract services out to the tribes for federal services and programs. He also solicited the opinion and consultation of the tribes at an unprecedented rate. When the Self-Determination and Education Assistance Act was enacted, the procedures for tribal contracting of federal programs became codified. PL93- 638 established a legislative vehicle through which tribes might assume greater control over governmental programs, but such procedures continued to require the approval of the lead agency. The Indian Self-Determination Act is an example of process-oriented legislation. It is an approach, not a funded program. There are no new funds attached to the act, but rather there is a set of specified rules and procedures for implementing existing BIA and IHS programs. This process-oriented legislation was characteristic of many of the legislative acts in the 1970s and early 1980s. Congress created a large number of block grant programs that included procedural requirements, sometimes highly complex ones. The block grants, promoted particularly strongly during the Nixon, Ford, and Reagan administrations, were consistent with a conservative approach to intergovernmental transfers, which emphasized increasing the decision-making power of recipient governments and, ultimately decreasing the federal financial share of program costs. Thus the self-determination legislation was consistent with other domestic legislation of the period (Stuart, 1990, p. 4). While Presidents Gerald Ford and Jimmy Carter were relatively quiet on Indian Affairs, the 1980s saw a renewed, albeit disturbing, presidential interest in Indian policy. In 1981, Ronald Reagan entered the presidency with vague promises of bolstering Indian self- determination. His interpretation of what that meant soon became clear. First came drastic budget cuts in every realm of Indian affairs. The results were immediately evident. For example, between 1981 and 1983, unemployment among Indians soared from 40 to 70 percent as a result of cuts in the Comprehensive Employment and Training programs. Although Reagan claimed to reaffirm Nixon's Indian policy, he regarded tribal governments as local entities or townships that should assume greater financial responsibility for social and economic programs. The private sector would automatically provide the economic infrastructure for such activities. Thus, Reagan perceived self-determination as meaning economic development through the private sector. While the executive branch held fluctuating positions on Indian affairs in the 1970s and 1980s, the legislative direction remained on task in overseeing the intent of PL93-638. Implementation of this legislation over the past two decades gave rise to many amendments as the process toward self-determination unfolded. The intent of the law had always been to empower the tribes to take over more governing functions. Title I of PL93-638 directed the Secretaries of the Interior and of Health Education, and Welfare (now Health and Human Services) to contract with the tribes. With the advent of PL93-638, a new era of paperwork evolved. As tribes were given options to operate the delivery of the health care, the government saw its role as assuring that the rules of the bureaucracy were maintained. This usually translated into a plethora of regulations and conditions. When this became a barrier to the intent of the legislation, Congress moved to streamline the contractual processes. One IHS official very animatedly commented on this streamlining during an interview. Contracts used to look like this [holds up a ream of paper]. It was pages and pages of stuff, a boilerplate [that] had to be in there. Now it’s down to the essential elements of a contract, which are really about 14 pages. The intent of Title II of PL93-638 was to aid Indian parents in controlling their children’s education. President Nixon had recognized that there was a correlation between tribal rule and cultural integrity. He had recommended that Indian schools be fully accountable to the communities that they served. Cook (1997) opines that the unfortunate result of this title was while funding for Indian schools increased, the BIA still primarily set the direction for educational content. In early 1987, Assistant Secretary of the Interior Ross Swimmer proposed plans to transfer all federally operated and funded Indian schools to the states. This plan was drafted without consultation with the tribes and raised an uproar. This plan was never implemented, but it spawned a series of articles in the Arizona Republic called “Fraud in Indian Country”. Swimmer was called before Congress to comment on allegations of BIA mismanagement and corruption. He came to Congress with a plan, however, that would allow tribes to receive funds directly from the US government and to bypass agencies that were the normal pass-throughs for funding such as IHS and BIA. It is not known whether this was to divert attention from other matters, but Congress and the tribes jumped at this idea (Cook, 1997). Title III was introduced in 1988. It required the Secretary of the Interior to conduct a research and demonstration project known as the Tribal Self-Governance Demonstration Project (TSGDP). Ten tribes had been working on such an idea already, so the idea was not completely new. Initially, the TSGDP was to be developed under BIA supervision, but the tribes approached Sen. Daniel Inouye (D-HI) and Representative Sidney Yates (D-IL) to codify this experiment and avert possible bureaucratic obstacles. Later the participating tribes successfully petitioned Secretary of the Interior Manuel Lujan to create an Office of Self-Governance. The negotiation of Self-Governance Compacts has, for all practical purposes, reopened the treaty making relationship between the US and the tribes. Whether both parties to these compacts fully comprehend the significance of this process is still open to question, however it is clear that Indian nations are taking a new level of political of development with the support of the US government. In his keynote address to tribal leaders in April 1999, IHS Director Dr. Michael Trujillo provided his feelings on the importance of the TGSDP to the tribes. I believe that the permanent authority for the Self-Governance legislation is critically important for you as tribal leaders. I think the Self-Governance legislation is also important for the Department and the Administration as a tool to help reorient people within the Department and within the Administration in how they directly relate to Indian tribes and Indian leadership. Self-Governance is a different philosophy, a different point of view, and a different value system for sitting down together and working together for the best things for our people (Trujillo, 1999) The intent of the Self-Determination Act was to provide the tribes with the sovereignty that had been promised them but never realized by treaties. After twenty years of implementation of PL93-638, the effects of this law have had many interpretations. There is conflict perceived by both the bureaucrats that administer it and the Indians who operate under it. The GAO found that IHS perceptions of the meaning and intent were different from those of tribal health administrators (GAO Report HRD-86-99). In another investigative report, the GAO found that funding to IHS regions were based on historical patterns and not on need. The report concluded that this type of top-down formula based allocation was neither efficient nor ethical (GAO report HRD-91-5). Despite the conflicts mentioned above, the trend for tribes to 638 continues. Through PL93-638 self-determination contracts, many tribal health programs now provide comprehensive preventive and curative services. As of February 1998, American Indian tribes and Alaska Native Corporations administered 11 hospitals, 129 health centers, three school health centers, and 240 health stations Alaska village clinics. They currently receive around 35 percent of the IHS direct service budget. Tribes who have elected to retain the federal administration of their health services, or to defer tribal assumption of IHS programs until a later time, are served by the remaining 38 hospitals, 61 health centers, and 47 health centers (IHS Homepage, 1999). Since Title III (Self-Governance) was added to PL93-638 in 1988, a total of 206 tribes have now chosen to select services formerly run by the BIA to operate under their own powers. Whether it is health services, education or law enforcement, the traditional top- down way of administering Indian programs is changing. The next section on Sovereignty will elucidate what some of the implications of PL93-638 are.
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