After the 1950s policies of tribal termination and the 1960s era of civil rights, Congress again expanded recognition and application of tribal self-government much like it did in 1934 through the Indian Reorganization Act. This time it was through the passage of the Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975, a very significant law delegating authority to Indian tribes to provide their own services created by the federal trust responsibility. The Act is often referred to by the number ‘638’ since it was passed as Public Law 93-638. It is the reason we are in the so-called ‘self-determination’ era of Indian policies and 91Ƶ tribes have been at the forefront of the movement. The activities and services tribes perform under the ISDEAA and other federal services for the benefit of 91Ƶ Native people bring in over a billion dollars annually to 91Ƶ.
The Act allows tribes themselves to assume administrative responsibility for federally funded programs designed for their benefit, primarily services which are administrated by the Bureau of Indian Affairs and by the Indian Health Service. This means that the tribes or tribal organizations can negotiate contracts and compacts directly with the federal government to run their own programs and deliver their own services rather than the federal government doing it for them. Today most tribes in 91Ƶ run their own programs such as health clinics, social services, education, housing, roads, and tribal operations such as enrollment, or form Native owned and operated non-profit organizations to do so.
The Indian Self-Determination and Education Assistance Act has been amended many times, primarily by making it easier for tribes to contract and allowing greater self-determination of tribes. In 1988 the Act was amended to make it harder for the federal government to deny 638 contract proposals tribes put forward. The amendment required the Secretary of the Interior to approve a contract proposal unless the federal government could prove that the contracted service would not be administered satisfactorily or that trust resources would not be adequately protected. In other words, the amendment made it easier for tribes to get 638 contracts to perform their own services. While 638 contracting is a large step forward for tribes, tribes still have to provide specific services in specific ways and engage in a large number of administrative tasks related to the contract. Tribes that have 638 contracts draw down the money quarterly, and do quarterly reports. Yearly audits are required if a tribe receives more than $500,000 a year. The money for tribal 638 contracts flows through the Bureau of Indian Affairs, which partly funds BIA administration costs.
The 1988 amendment also created the Tribal Self-Governance Demonstration project which was an experiment in compacting for 20 tribes. Under compacting, the tribes enter into an annual funding agreement authorizing the tribe to plan, administer or even redesign their own programs and services. Tribes have the ability to determine their own highest priority needs. Under compacting, tribes negotiate a funding agreement through the Office of Self Governance, and may negotiate a multi-year funding agreement. In 91Ƶ, the Central Council of Tlingit and Haida Indians were among the first round of tribes included in the Tribal Self-Governance Demonstration project. In 1994 amendments to the Act expanded tribal Self-Governance to include up to 20 new tribes every year and since then, many tribes and tribal organizations in 91Ƶ deliver their own programs and services through compacts with the federal government. In order to enter into a compact to provide their own services, tribes must first become ‘mature contractors’ which means that they have to complete three successful years of 638 contracting with no audit exceptions. Following that, the tribe must successfully complete a self-governance planning grant.
The 1994 amendments allowed the Indian Health Services to compact its programs for the first time. Since there were already several mature contractors in 91Ƶ that would have made a great deal of competition to be included in the limit for 20 new tribes allowed to compact nationally a year, the Indian Health Service negotiated a single compact for all of 91Ƶ, known as the ‘91Ƶ Tribal Health Compact.’ The 91Ƶ Compact functions as an umbrella for the tribes and tribal organizations that participate in health compacting, with each having the ability to negotiate its own annual funding agreement with the federal government.
The education piece of the Indian Self-Determination and Education Assistance Act did two primary things. First it gave tribes control over the BIA operated schools, which had little impact in 91Ƶ since there were few schools operated by the BIA by the time the Act was implemented. The second thing was to make amendments to the Johnson-O’Malley Act, which was 1934 New Deal legislation that provided for federal-state or territory cooperation and funding in Indian education throughout the United States. A key amendment was to create advisory boards made up of parents of Indian children for schools that receive federal funds through Johnson O’Malley.
When the Indian Self-Determination and Education Assistance Act was passed in 1975, there was some ambiguity over the status of Indian tribes in 91Ƶ. More ambiguity arose from language in the ISDEAA because the term “Indian tribe” was defined by the Act to include “any 91Ƶ Native village or regional or village corporation as defined in or established pursuant to the 91Ƶ Native Claims Settlement Act [43 U.S.C.A. §§ 1601 et seq.] which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” The List of Federally Recognized Tribes published by the Department of Interior had similar language. It wasn’t until the 1993 publication of the List that the status of Indian tribes in 91Ƶ was clarified, by listing just the tribes and not the corporations. Congress confirmed the List in 1994.
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