Tribal Self-Governance: Shaping Our Own Future A RED PAPER jointly issued by Jamestown Band of Klallam, Lummi Indian Tribe, Quinault Indian Nation on June 1, 1989 EXECUTIVE SUMMARY The three branches of the U.S. government have always been at odds with each other over Indian Affairs policy. Each branch has tended to shift between three policies: Tribal dissolution and termination of U.S. Trusteeship, paternalism, often with autocratic federal control of tribes; and, Indian self-determination. Rarely have all three branches of government shared the same policy at the same time. The resulting erratic Federal/Indian Policy in any given period served neither the long-term interests of Indian tribes nor the United States of America very well. The tendency for shifting or contradictory U.S./Indian Affairs Policy has long concerned Indian tribes. Since the turn of the century, Indian leaders have worked to promote “adjustments in Federal/Indian Affairs.” The underlying themes of evolving Indian tribes' policy have been: The promotion of Indian Rights, fulfillment of treaties between Indian tribes and the United States, and mutual cooperation between Indian tribes and the United States. Erratic U.S. policy shifts combined with tribal rejection of the policies of dissolution and paternalism provided fertile grounds for persistent disputes between the U.S. government and Indian governments. Recognizing this condition, many Indian leaders and some U.S. representatives attempted during the last twenty-five years to define a mutually compatible U.S. policy and tribal policy. Such a policy must be acceptable to at least the Executive and Legislative branches of the U.S. government and Indian tribes. Since 1970, the Indian Self-Determination Policy has gained increasing acceptance from both the U.S. government and in Indian nations. President Richard M. Nixon affirmed the self-determination policy in the Executive Branch in 1970. The U.S. Congress affirmed that policy by enacting the Indian Self-Determination and Education Assistance Act in 1975 (P.L. 93-638) and reaffirmed that policy by enacting many of the recommendations of the Joint-Congressional American Indian Policy Review Commission. President Ronald Reagan reaffirmed President Nixon's policy by announcing his Administration's government to government policy in 1983. At each point in the evolution of the Indian Self-Determination Policy, tribal officials and U.S. officials have worked increasingly in concert. In 1987, tribal representatives and representatives of both the Executive and Legislative Branches of the U.S. government produced an agreement in principle on the Tribal Self-Governance Demonstration Project. Enacted as a part of the Appropriations Act of 1988 (See Appendix A) and later supplemented and clarified as Title III (See Appendix B) of the 1988 Amendments to the Self-Determination and Education Assistance Act (PL 100-472), the Tribal Self-Governance Demonstration Project is now the most advanced expression of the policy of Indian Self-Determination. It represents the most recent demonstration of developing cooperation between Indian governments and both the Executive and Legislative Branches of the U.S. government in a process of jointly developed policy. The Tribal Self-Governance Demonstration Project is a clear step toward cooperative policy development. It has the potential of serving the long-term interests of both Indian nations and the United States. What is the Self-Governance Demonstration Project? The five-year Tribal Self-Governance Demonstration Project has three components. Phase I (Research and Planning), Phase II (Negotiation of Self-Governance Compacts) and Phase III (Execution of Self-Governance Compact). For ten initially participating tribes, Phase I began in 1988. The Project is intended to formalize government to government relations between the United States government and Indian governments. It enables Indian Tribes to redesign programs, activities, functions or services and to reallocate funds for such programs, activities, functions, or services according to tribal governments' decisions. Furthermore, the Demonstration Project is intended to enable Indian Tribes to plan and deliver services appropriate to the needs of their members, to enhance the ability of tribal governments to determine priorities, to enhance the success and long-term financial stability of tribal governments, and to reduce the Federal-Indian bureaucracy. The Self-Governance Demonstration Project is intended to promote tribal social, economic and political self-sufficiency through the transfer of most appropriated Bureau of Indian Affairs funds to Indian Tribes and Native groups, increasing tribal accountability through local autonomy, and to reduce the size of the Bureau of Indian Affairs while transforming it into an agency that protects Indian Tribal interests instead of managing those interests. Summary of Key Legislative Provisions APPROPRIATIONS LEGISLATION 1987 –1988 1. Ten initial Self-Governance participating tribes (Confederated Salish and Kootenai Tribes, Hoopa Tribe, Jamestown Band of Klallam, Lummi Indian Tribe, Mescalero Apache Tribe, Mille Lacs Chippewa Tribe, Quinault Indian Nation, Red Lake Chippewa Tribe, Rosebud Sioux Tribe, and Tlingit and Haida Central Council) were designated to receive grants from a $1,000,000 appropriation to begin Self-Governance Planning in the areas of legal and budgetary research, internal tribal government planning and organizational preparation, and the negotiation process in fiscal year 1988. Congress appropriated $1.2 million for fiscal year 1989 to support continuing planning by the first ten tribes and several newly participating tribes. 2. The Bureau of Indian Affairs was directed to analyze all budgets and functions at all levels of the Bureau, and to formulate a proposal for the equitable distribution of resources and service responsibilities to initial Self-Governance participating tribes. 3. The Bureau of Indian Affairs was instructed to prepare proposals for reduction or transfer of personnel and consolidation of program functions to accommodate the eventual transition. 4. Each Self-Governance participating tribe and the Bureau of Indian Affairs separately are to document obstacies and proposed remedies identified with the Self-Governance Planning Process. 5. The negotiated agreements between Self-Governance participating tribes and the United States should include a clear delineation of trust responsibility protections assumed by the tribes and those retained by the United States government. 6. The negotiated agreements must include a method for documenting self-governance progress through mutually-determined baseline measures incorporated in each agreement. AUTHORIZATION LEGISLATION: 1. Besides the ten initial participating tribes, an additional 10 tribes are to be selected from a pool of potential tribal applicants; applicants are selected in a manner to achieve geographic representation. The demonstration initiative is authorized for five years (two years for planning and three years for implementation) to test the concept. 2. The Secretary is directed to negotiate an annual funding agreement (Self-Governance Compact) with the governing body of a participating tribal government which has completed a self-governance planning grant. The Secretary is required to submit a report to the Congress on July 1 and January 1 of each of the five years following the enactment of the Tribal Self-Governance Demonstration Project. The reports must describe the relative cost and benefits of the Tribal Self-Governance Project based on the mutually defined baseline measurements developed by the Secretary and each of the participating tribes. The separate views of participating tribes will be included in each report. 3. After completing the self-governance planning process, each tribe then determines whether to enter into Self-Governance Compact negotiations with the United States. If a tribe decides not to negotiate an agreement, no further steps will be necessary. If a tribe decides to enter negotiations, that process then begins with the Secretary of the Interior. After an agreement has been finalized, a self-governing tribe may retroceed any programs or functions back to the U.S. 4. The Self-Governance Project does not reduce or impair the sovereign immunity of each Indian tribe, nor does it permit the termination of any existing trust responsibility of the United States to any participating tribe. Current Status of Self-Governance Tribes Each of the initial ten participating tribes received a starting grant of $100,000 to begin Phase I of the Tribal Self-Governance Demonstration Project in 1988. Each has been conducting internal and external legal and budgetary research, internal tribal government planning and organizational preparations. Each has submitted an Obstacles Report to appropriate committees of the Congress on September 1, 1988. All initial participating tribes are continuing planning activities in 1989. It is anticipated that the initial participating tribes which decide to enter into Self-Governance Compact negotiations with the United States will do so in 1989 or early 1990. Tribal Self-Government and Changes in the B.L.A. Two commissions, the American Indian Policy Review Commission of the U.S. Congress (1975 - 1977) and the Presidential Commission on Reservation Economies (1984) found that the Bureau of Indian Affairs and many past policies of the United States government stifle tribal efforts to achieve social, economic and political self-sufficiency. The Tribal Self-Governance Demonstration Project is designed to accomplish a reduced direct Federal involvement in the management of Indian tribes. It is also designed to resolve problems associated with multi-tribe B.I.A. Agencies, reduce the size of the B.I.A. bureaucracy, allow more direct local decision-making by tribal governments, and stabilize the level of B.I.A. appropriated funding. Expectations are that the federal burden for administering many social and economic programs to self-governing tribes would decline over a period of years as functions and resources are transferred through negotiations of a Self-Governance Compact. Correspondingly, the structure of the Bureau of Indian Affairs and its personnel burden should reduce with the conclusion of each Self-Governance Compact. This zero-based approach has the advantage of increasing local decision-making at the tribal level, reducing federal Indian Affairs management functions and emphasizing trust protection responsibilities. BACKGROUND: Tribal/U.S. Policies The right of peoples to govern themselves without external interference is a doctrine first codified in the law of nations in the 18th century. U.S. Supreme Court Justice John Marshall applied this doctrine to the conduct of relations between the United States of America and Indian nations in the landmark case of Worcester vs. Georgia in 1832. The court declared: The Indian nations had always been considered as distinct, independent, political Indian Nations have always valued the right to govern themselves. In a curious turn of fate, the American Continental Congress depended on this very principle when it shocked the European world with the Declaration of Independence and set in motion political revolutions around the world. The right of distinct political communities to govern themselves has remained a corner-stone of international law and U.S. government foreign policy ever since. The right of Indian Nations to govern themselves has remained a fundamental principle underlying the relations between the United States and Indian Tribes. The United States government has not, however, consistently lived up to this principle in practice. Instead, the agency responsible for administering relations with Indian Tribes, the Bureau of Indian Affairs, historically obstructed Indian Tribes' efforts to exercise the full powers of self-governance. Indian Affairs agencies are among the oldest administrative agencies of the United States government. The permanent mission of the Bureau of Indian Affairs was set by an Act of Congress on July 9, 1832. The Congress authorized the President to appoint, with the consent of the Senate, a commissioner of Indian Affairs who would "have the direction and management of all Indian affairs and of all matters arising out of Indian relations." (4 Stat. 564, R.S. Sec. 462-463, 25 U.S.C. 1-2) The B.L.A. has been transformed in 157 years from an agency which administers U.S. relations with Indian Tribes to an agency which governs the internal and external affairs of Indian tribes. U.S. Policies: From Termination to Local Autonomy The Congress has always held the primary responsibility for dealing with Indian Affairs. When the states ratified the U.S. Constitution in 1789, the Congress of the United States continued to have that responsibility. Of the three branches of government, the Congress was to hold dominant authority over matters relating to Indian Affairs. In the U.S. government, that central reality has remained unaltered. While this is the constitutionally defined allocation of power, the practical reality of shifting responsibility and authority between the three branches of government is the modern rule. In the 1871 Appropriations Act, the U.S. Congress ended the making of treaties with Indian Nations. This Act brought to a close more than 250 years of government to government relations with Indian nations by European states and the United States government. The Congress decided it would conduct relations with Indian nations unilaterally through legislation. Its decision also had the effect of directly increasing the already extensive powers of the Bureau of Indian Affairs over the daily lives of Indian people. It is not clear that the framers of the U.S. Constitution contemplated that the primacy of Congress would evolve to the U.S. Congress and an agency of the Executive Branch assuming the direct powers of governmental rule over Indian nations without the consent of Indian peoples. Despite frequent petitions to the Congress from Indian tribes requesting a reversal of this pattern of autocratic rule, little progress was made to reinstate government to government relations. A ray of hope occurred in 1934 when the United States government began to reconsider its relations with Indian tribes. When the Howard-Wheeler Act of 1934 (Indian Reorganization Act) was under consideration by Congress, it contained far-reaching provisions to assure Indian self-government. It originally provided that Indian Tribes would have broad authority to fill positions in local B.L.A. field offices, to take over and operate B.L.A. functions and services, and even, by popular vote, to request the discontinuance of any separable function or service in the B.L.A. The noted Indian historian, D'Arcy McNickle and Harold Fey described the scope of the draft provisions in their book, Indians & Other Americans. They wrote: In the event a function was assumed by the local community, the Secretary of the Interior was Bureau of Indian Affairs staff and some members of Congress angry with then B.I.A. Commissioner John Collier vigorously lobbied to subvert the intent of the original bill. They succeeded. In the end, only the provisions relating to "Indian preference” were retained and an opportunity for full Indian self-government was lost. Although tentative steps were later taken to decentralize the B.LA., (Fey, McNickle. 1970:120) the wheels of bureaucracy worked to prevent an "administrative shift of power” from the B.I.A. to each Indian Tribe. Repeated proposals for reductions in B.L.A. power linked with enhanced Indian self-government have been offered in succeeding years. Each such attempt has been overcome by objections from the “entrenched bureaucracy." In the last months of his Administration, President Lyndon B. Johnson announced his rejection of the policy of termination and urged that it be replaced by a policy of fostering self-determination. Two years later, President Richard M. Nixon on July 8, 1970 announced in his message to Congress the first comprehensive Executive Branch policy on Indian Affairs in modern history. He asserted that his Administration rejected tribal dissolution and termination of the trusteeship, and instead advanced self-determination as the best approach to Indian Affairs. The U.S. Congress enacted the Indian Self-Determination and Education Assistance Act in 1975. The intent of this legislation was to shift Indian development and administrative decision-making from the Bureau of Indian Affairs to Indian governments. An intended outcome of this Act was increased tribal self-government and systematic reductions in the staff and powers of the Bureau of Indian Affairs. The B.I.A. swiftly moved to adopt regulations which substantially subverted the intent of the legislation. The Congressionally established American Indian Policy Review Commission conducted a two year study beginning in 1975 which was critical of past U.S. Indian Affairs policies and the Bureau of Indian Affairs, in particular. The Commission's 1977 report concluded that an Independent Indian Agency should replace the Bureau of Indian Affairs and the Congress should directly provide funding assistance to Indian governments. B.L.A. officials swung into action once again to undercut these important proposals. They promoted widespread fear and opposition. B.L.A. staff made calls to tribal leaders urging their opposition "because the American Indian Policy Review Commission is trying to terminate Bureau services to Indian tribes!" In 1983, President Ronald Reagan announced his American Indian Policy Statement which recalled former President Nixon's announced policy of Indian Self-Determination. President Reagan's policy not only reaffirmed the policy of Indian self-determination and rejection of the policy of termination, it |