By all accounts, tribal self-determination has become the most successful bipartisan Indian policy ever enacted by Congress. Since 1975, the Indian Self-Determination and Education Assistance Act has provided the legal framework for tribes to assume the responsibility, and associated funding, to carry out programs that the U.S. government would otherwise be obliged to provide to Indians and Alaska Natives. This transfer of responsibility has empowered tribes to promote tribal economies, build governmental infrastructures, provide law and order, manage tribal natural and cultural resources, meet the health care and educational needs of their members, and perform other essential governmental functions.
This edition of Human Rights magazine celebrates the fortieth anniversary of this legislation, which broke many bureaucratic shackles on tribal government, with articles by distinguished practitioners. These writers discuss some of the ways in which the policy is reflected in contemporary Indian affairs today.
The edition starts with this article on the history and key provisions of the Self-Determination Act. Troy A. Eid’s article focuses on the work of the Indian Law and Order Commission. M. Brent Leonhard’s article discusses the Violence Against Women Act reauthorization from the perspective of a tribe’s implementation of provisions of that important statute. Senator Byron L. Dorgan and Joanne Shenandoah’s article addresses the Attorney General’s Task Force Advisory Committee on American Indian and Alaska Native Children Exposed to Violence. Mary Smith’s article discusses the National Native American Bar Association’s groundbreaking and first comprehensive study of Native American attorneys. Finally, Professor Matthew L.M. Fletcher has written two articles: The first provides an overview of recent U.S. Supreme Court decisions in Indian cases and the second discusses the American Law Institute’s Restatement, the Law of American Indians.
This edition also celebrates the accomplishments of several Indian lawyers who have had enormous impact on Indian law, the legal profession, and human rights. Senators John McCain and Jeff Flake profile U.S. District Court Judge Diana Humetewa, the first Indian woman appointed to the federal bench. Jerry Gardner profiles University of Arkansas School of Law Dean Stacy Leeds, the first Indian woman to become the dean of a major law school. Finally, John E. Echohawk, the last Indian recipient of the Human Rights Hero award, profiles Ambassador Keith Harper, the first Indian to be confirmed as a U.S. ambassador and the recipient of this issue’s Human Rights Hero honor
A Brief History of Shifting Indian Policy Prior to the Self- Determination Act
At the time of European “discovery” of the New World, many tribes possessed sophisticated forms of government and expansive trade systems. The U.S. Constitution recognized tribal governments, granting Congress the exclusive power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This “Indian Commerce Clause” became, and remains, the primary basis of the so-called plenary power of Congress over tribes.
During the next two centuries, federal Indian policy vacillated between isolation and assimilation. In 1830, the Indian Removal Act led to the forced marches of most Eastern tribes to territories in the West. In 1887, Congress instituted a program of forced assimilation in the General Allotment Act, which provided for the allotment of tribally owned reservation lands to individual Indian owners. The avowed goal was to “civilize” Indians by breaking up communal life and making them individualistic farmers. Not incidentally, allotment eroded the Indian land base and opened reservations to white settlement. Tribes lost their last battle to maintain reservations and stop allotment with the U.S. Supreme Court decision in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This era also saw the rise of federal domination of life on the reservations and the corresponding decline in tribal governments.
In 1934, Congress reversed course once again, repudiating the allotment policy in the Indian Reorganization Act (IRA). The IRA aimed to reverse the erosion of the tribal land base and revitalize tribal governments. Just twenty years later, however, Congress shifted course again and embarked on the Termination Era, during which the United States formally repudiated governmentto- government relations with more than 100 federally recognized Indian tribes.
By the 1960s, the termination policy was gradually giving way to recognition of Indian tribal rights to self-determination. In 1970, President Richard Nixon, in a July Indian Policy Statement, recognized that federal bureaucracies had largely failed Indian peoples. The time had come for a fresh approach called self-determination: legal and political sovereignty, fulfillment of treaty obligations, the return and protection of homelands, and the continued maintenance of the United States’ trust responsibilities. The Indian Policy Statement was accompanied by draft legislation discussed with tribal leaders around Indian country. Congress passed legislation reflecting these principles five years later in the Indian Self-Determination and Education Assistance Act of 1975.
Statutory Basis of Self-Determination and Self- Governance: The Self-Determination Act
The Self-Determination Act is largely concerned with strengthening tribal governments and tribal organizations on Indian reservations by emphasizing tribal administration of federal Indian programs, functions, services, and activities (PFSAs)—and associated funds. Tribal control of Indian country was not a novel idea—indeed it stretched back beyond the Indian Reorganization Act and even Lone Wolf to the treaty era when the United States and the tribes had signed treaties that recognized tribal control over Indian land. In fact, the concept was originally fundamental to the relationship between Indian tribes and the U.S. government. But it had largely been lost during the past century of federal bureaucratic domination.
The Act currently consists of the following major sections: (1) a selfdetermination contracting program within the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) under Title I; (2) education assistance programs under Title II; (3) a permanent self-governance program within the U.S. Department of the Interior (DOI) for both BIA and non-BIA programs under Title IV; and (4) a permanent self-governance program within the Department of Health and Human Services (DHHS) under Title V.
Title I contracts—which allow tribes to assume as a matter of right from DHHS and DOI any program and related funds carried out for the benefit of Indian people—have empowered tribes to build their governmental capacities to serve the local needs of tribal members while developing leadership skills and administrative capacity. Title I contracts reflect a delicate balance between the interest of tribes in self-determination and the interest of the United States in retaining control and oversight over how federal responsibilities are carried out by tribal contractors.
Early federal education policies focused on assimilation, but since Title II of the Self-Determination Act was enacted, tribes and tribal organizations have assumed direct management of approximately 70 percent of schools in the Bureau of Indian Education system.
In 1988, Congress added a Title III to the Self-Determination Act that implemented a Self-Governance Demonstration Project designed to address tribes’ frustration with DOI and DHHS’s failures to fully implement Title I. The demonstration project allowed for unprecedented flexibility of tribal contractors to redesign programs and reallocate funding to suit local needs with minimal federal oversight.
In 1994, Congress enacted significant amendments to Title I and included a new Title IV, which implemented a permanent tribal selfgovernance program within DOI. Title IV expanded tribal contractors’ right to redesign or consolidate PFSAs and to reallocate BIA funding. It also authorized, for the first time, non- BIA agencies within DOI to enter, on a discretionary basis, into agreements with tribes to transfer programs to which tribes have a historical, cultural, or geographic connection.
The 2000 Amendments repealed Title III and enacted two new titles, V and VI. Title V established a permanent self-governance program within DHHS, and Title VI authorized a study of future inclusion of non-IHS agencies in the DHHS Self-Governance Program. In a report to Congress in 2003, DHHS concluded that it was feasible to extend tribal self-governance within the Department; however, legislation to do so has not yet been enacted.
The success of the self-determination policy is well reflected in the explosive expansion of self-determination contracting and compacting by tribes and tribal organizations. In 1970, only 1.5 percent of the BIA programs for Indians and only 2.4 percent of IHS programs were administered by Indian tribes and organizations. Today, over $2.5 billion of the IHS’s appropriation is transferred to tribes and tribal organizations through Title I contracts and Title V compacts. Tribal participation in the BIA’s self-governance program has progressed from seven tribes and total obligations of $27.1 million in 1991 to an expected 118 agreements including 266 federally recognized tribes in FY 2016 and obligations in excess of $435 million.
In addition, since 1975 the general framework of the Self-Determination Act has served as a model for Congress when legislation addressing other issues affecting Indian tribes has been necessary. For example, the Native American Housing Assistance and Self Determination Act, the Homeless Emergency Assistance and Rapid Transition to Housing Act, the Indian Mineral Development Act, and the Indian Tribal Energy Development and Self-Determination Act all explicitly invoke the principles of tribal self-determination.
The federal policy of self-determination in general, and the Self-Determination Act in particular— combined with the determination and vision of tribal leadership—have played a critical role in strengthening tribal governments and communities over the past 40 years. It is a solid foundation on which to build the future of Indian tribes.
Geoff Strommer is the managing partner of the Portland, Oregon, office of Hobbs, Straus, Dean & Walker, a national law firm that has specialized for over thirty years in representing tribes and tribal organizations throughout the United States.
Kirke Kickingbird is of counsel at Hobbs, Straus’s Oklahoma City, Oklahoma, office.