WASHINGTON – In 1987, the 200th anniversary year of the United States Constitution, a group of tribal leaders put their heads together to formulate a change in federal Indian policy. Long after treaty-making ended between the federal government and tribes, they sought a throwback relationship, one more like the original model in government-to-government dealings.
The Alliance of American Indian Leaders counted among its own leadership names such as Roger Jourdain of the Red Lake Band of Chippewa, Wendell Chino of the Mescalero Apache, Joe De la Cruz of the Quinault Nation, Arthur Gahbow of the Mille Lacs Band Ojibwe, and others. They came up with a concept that has proved worthy of their legacy, a concept of compacts as the closest modern equivalent to treaties – compacts tribes and federal agencies could enter into together, authorizing tribes to operate programs with federal funding much as they already might under the well-known “638 contract” provisions of the Indian Self-Determination Act of 1975.
But this new title to the Indian Self-Determination Act, the Title III Self-Governance Demonstration Project as it came to be known, would enable tribes to transcend the narrow limits of contract spending by providing the funding for multiple federal programs in more or less one lump sum. Tribes could then channel the funding into a multiplicity of programs as they saw fit, rather than abiding by the circumstances of single-program contracts regardless of evolving situations. In brief, they could establish a single funding delivery system for the accomplishment of diverse program goals.
By 1988, the Self-Governance Demonstration Project had become law of the land as an amendment to the 1975 Indian Self-Determination Act. By 1990-91, the first self-governance compacts under the demonstration projects had been signed. In 1994, the self-governance option became a permanent feature of the BIA, and of the Indian Health Service in 2000. Today more than 200 tribes have entered self-governance compacts, suggesting that just more than half of all tribes remain as only direct-funded or “638 contract” tribes.
The successes and concerns of self-governance inspired an Oct. 8 hearing of the House of Representatives Committee on Resources, chaired by Rep. Richard Pombo, R-Calif. Pombo issued a strong supportive statement in advance of the meeting: “Self-governance represents what I believe is a Republican philosophical precept where local government best represents and serves the people.”
The movement to reform the federal government’s management of its trust obligations to tribes provided the immediate reason for the hearing. The litigation, known as Cobell, over the Interior Department’s historical mismanagement of Individual Indian Money trust accounts, has inspired a far-reaching reorganization within Interior, the lead federal department on Indian trust issues, and its subordinate agency, the BIA. A committee briefing paper noted that section 134 of Senate bill 1391 – the Senate version of the Interior Department appropriations bill for fiscal year 2004 – would bar the trust reorganization effort from altering the operations of certain tribes under self-governance. In particular, tribes fear that arcane definitions regarding BIA and non-BIA programs and the associated funds could have the effect of curtailing the flexibility in tribal self-governance decisions.
The Oct. 8 hearing was in part an attempt to build the record for section 134, which is technically a “rider” or late amendment to S. 1391. But the hearing was more. The impact of Cobell can’t rightly be stuffed into any one suitcase and pulled out for display on demand; still it is fair to say that its glaring light has cast a penumbra of negativity around many federal Indian programs. In the words of Clifford Lyle Marshall, chairman of the Hoopa Valley Tribe, testifying before the committee, “The impression is that everything in Indian country is bad, broken, mismanaged, has gone haywire or run amok.”
The hearing went a long way toward correcting that misimpression. Marshall again expressed it best – “Self-governance tribes have been the true trust reformers” – but his fellow panelists also rose to the occasion. Melanie Benjamin, chief executive at Mille Lacs, spoke for many tribes in identifying five points of impact on program operations that get at the heart and soul of self-governance:
“First, we can now design programs as we see fit. If we have a better way to provide chemical dependency treatment by using a sweat lodge, we can do it. Second, we can also reprogram funds as we see fit based on changing needs. For example, if we have an exceptionally dry season as we recently had, we can allocate more funds to fire protection. Third, the Mille Lacs Band can participate in rulemaking. Title IV [of the 1994 Indian Self-Determination and Educational Assistance Act, Title IV being short for the Tribal Self-Governance Act of 1994] was the first Indian law that required negotiated rulemaking and for the first time brought federal and tribal officials together to develop the rules. Fourth, we are using our funds more efficiently. Our local needs determined by us dictate the use of our funds, not a federal official located in Minneapolis or Washington. Finally, our compacts with the federal government reflect a true government-to-government relationship that indicates we are not viewed as just another federal contractor.”
To these considerations, echoed in one way or another by each of the panelists, Benjamin added one of numerous success stories attributed to self-governance:
” ? years ago the Mille Lacs Band needed business and governmental expansion to accommodate our economic growth. We signed Memorandums of Agreement with a number of federal and state agencies for this development to occur. The Mille Lacs Band became the lead agency and started a business that now employs 1,200 people, and established new schools, clinics, a government center and elderly assisting living units. These developments would not have happened without the authorization provided under self-governance.”
Jacob Moore, special assistant on congressional and legislative affairs for the Salt River Pima-Maricopa Indian Community, testified that opportunities under self-governance enabled the tribe to bring together a developer and some 300 landowners, a process directly responsible for what he termed the first Indian retail outlet – the Pavillions Shopping Center near Scottsdale. Further economic development enterprises have followed under the guidance of self-governance in fields ranging from construction materials to telecommunications and commercial property management. Also as a part of self-governance, the tribe has moved to manage its own resources, establishing a realty database and compatible geographic information system.
Besides the powerfully uplifting view of self-governance, the other constants in tribal testimony were adamant demands that self-governance not diminish the federal trust obligation, and critiques of inadequate federal funding for self-governance programs. Such funding has increased 35 percent since the inception of self-governance, Benjamin noted, while the BIA budget has doubled during the same period. Marshall said the reigning mantra to “do more with less” is a disincentive to tribes that are considering self-governance, given that most tribes already do much with little.
Pombo received high praise for scheduling the hearing. He ended it on the cryptic note that self-governance is an issue to move forward on, an opportunity, but also (his closing words before adjournment) “sometimes a necessity.”