APPENDIX III

Assessing the Implications of the Present Definition of Tribe(s) Contained in the Indian Self-Determination and Education Assistance Act

THE ALASKA NATIVE FOUNDATION, Anchorage, Alaska, October 22, 1975. Memorandum to: Mr. Clay Antioquia, Juneau Area Director, Bureau of Indian Affairs.

From: Mr. Emil Notti, President, Alaska Native Foundation in cooperation with Mr. Lee Gorsuch, Senior Associate, Robert R. Nathan Associates, Inc. Subject: Assessing the implications of the present definition of tribe(s) contained in the Indian Self-Determination and Education Assistance Act, and changes related thereto.

INTRODUCTION

The Indian Self-Determination and Education Assistance Act, Public Law 93-638, was signed into law on January 4, 1975. Within ten months, the Secretary of Interior was directed to prepare and publish, after consultation with Indian organizations, the rules and regulations necessary to carry out the provisions of the Act. Two statewide meetings and numerous discussions were held over the past several months between the BIA and representatives of various Alaska Native organizations. While much progress has been made in preparing the rules and regulations, two problems arising from the Act have yet to be resolved. Both problems are unique to Alaska (for reasons which will be discussed below) and can best be resolved by a consensus among Alaska Native people. The two problem areas are the confusion and uncertainty surrounding the advantages and disadvantages of:

(1) The present definition of a tribe(s) contained in Section 4(b) of the Act, as it applies to Alaska Natives; and,

(2) The provision contained in Section 4(c) which requires all tribes affected by a contract let pursuant to the Act to approve or consent to it.

At the request of the Alaska Federation of Natives, the BIA area office contracted with the Alaska Native Foundation and its collaborators to assess these two problems and report its finding to the Area Director. The report, as follows, was to be prepared in sufficient time for the Area Director to share it with the AFN convention. Hopefully, the report will be of help to the convention as it develops its recommendations on how to address these two unresolved problems.

Purposes of the Act

BACKGROUND

The President of the United States set out in 1970 the basic tenets of Indian Self-Determination in his now famous declaration of policy. Three proposals in the President's legislative package were specifically designed to carry out the Indian Self-Determination policy. These were:

(1) Require the Secretaries of the Interior and Health, Education, and Welfare to transfer to Indian tribes, at their request, control and operation of Bureau of Indian Affairs and Indian Health Service programs and services;

(2) Permit Indians to contract with the Bureau of Indian Affairs for the administration of Johnson O'Malley (JOM) education funds, and to authorize the detail of commissioner personnel of the Public Health Service to Indian tribal organizations which assume the control and management of Indian Health Service programs; and

(3) Provide for continued fringe benefits (such as compensation for injury, retirement, life insurance and health benefits) to Federal civil service employees who transfer to Indian tribal organizations to perform the services they formally performed as government employees.1

These proposals were specially designed to overcome the government's red tape which effectively obstructed Indians' and Alaska Natives' desires to control and administer the various federal programs designed for their benefit. In the four years that followed the President's Indian Self-Determination proclamation,

1 U.S. Senate Report, No. 93-762, 93d Congress, second session.

various legislative proposals originating from the proclamation were introduced but none enacted. However, on January 4, 1975 the President signed into law the Indian Self-Determination and Education Assistance Act.

The Self-Determination Act draws principally from Senate Bill No. 1017, which provided the "flexible authority to efficiently and realistically permit contracting of Bureau of Indian Affairs and Indian Health Service programs to Indian tribes while maintaining the integrity of the programs and services funded by Federal appropriations."" Hence, essentially for the first time Indians and Alaska Natives have both the legislatively recognized right and the administrative means to control and administer various federal programs and services. It is significant for this discussion to bear in mind that the central theme of the SelfDetermination Act is to provide an efficient and realistic means of contracting BIA and IHS programs and services.

Contracting Federal programs in Alaska

If the goal of the Self-Determination Act is to facilitate tribal contracting of federal programs it is practical to examine Alaska's experience to date. The recently published 2(c) Report: Federal Programs and Alaska Natives prepared for the Secretary of Interior pursuant to Section 2(c) of the Alaska Native Claims Settlement Act, describes and analyzes, in detail, a) the social-economic well-being of Alaska Natives; b) twenty major federal programs serving Alaska Natives; and, c) Natives' views toward their well-being of federal programs. In its summary the 2(c) Report states "Regional Native leaders and program administrators interviewed, overwhelmingly endorsed both Native services." " The study also reported that of the 155 randomly sampled village leaders, over 80 percent stated their beliefs that government programs would be better handled through regional and village Native organizations.*

A cursory review of the funding available to carry out the twenty federal programs, described in the 2 (c) Report, reveals that only a few federal programs, such as schools and clinics could be realistically contracted out at the village level, and even in those instances multi-village arrangements would probably be required. For example, in education the standard operational unit is a school district, which generally consists of at least one four-year high school and its feeder (elementary) school (s). Similarly, while health clinics and health aides function on a village level, they too are necessarily tied to a larger system, namely the district hospitals, which are unlikely to be organized below the regional level. These observations would generally hold true for all but the larger Native villages (populations of 1,000 persons or more) of which there are only five. Although the Indian Self-Determination Act is aimed principally at various BIA and IHS programs, it is also intended to ensure "... maximum Indian participation in the direction of educational as well as other federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities." (Public Law 93-638 Section 3(a)). Such other federal programs for Indians include: the Indian Education Act, Title III of the Comprehensive Employment Training Act, the Public Works and Economic Development Act, the Community Services Act and others.

It is likely that the Self-Determination Act's definition of tribe(s) will have important implications on various other Indian programs. For example, although the BIA Employment Assistance program may not have adequate administrative funds to contract the service to each of the twelve Native regions, it could possibly do so if each of the regions were recognized as "tribe(s)" and were already operating manpower programs under Title III of the Comprehensive Employment Training Act. The same principle of "cumulative effect" applies to various programs in housing, social services and community development. Hence, a standard definition of tribe(s) could facilitate contracting of various federal programs. Unfortunately, rather than contribute to a standardization of definitions the Self-Determination Act adds one more set of unique definitions to the federal statutes.

A review of the definitions of terms such as "Tribe(s)", "Indian", and "Reservations", are contained in Appendix A. The review reveals extensive variations in definitions with no discernible justification for the differences. Standardizing

22(c) Report: Federal Programs and Alaska Natives, U.S. Department of the Interior, 1975, "Introduction and Summary", part B. section 1. p. 2.

32(c) Report: Federal Programs and Alaska Natives, U.S. Department of the Interior, 1975. "Introduction and Summary", part B, section 1. p. 2.

4 U.S. House of Representatives, Report No. 93-1600, 93d Congress, 2d Session.