Page images
PDF
EPUB

APPENDIX A

Alternative Dispute Resolution Services

FMCS has been involved in alternative dispute resolution (ADR) programs for nearly three decades. The agency was first involved in an ADR program in the early 1970s when it was asked to mediate a land dispute between the Navajo and Hopi Indian tribes. FMCS moved into the arena of regulatory negotiations in the early 1980s working with the Federal Aviation Administration and since then has become increasingly involved in this activity.

Through the FMCS alternative dispute resolution (ADR) program, mediators assist federal agencies in institutionalizing mediation and other forms of conflict resolution as an alternative to costly litigation. After consultation with client agencies, we provide such services as conflict resolution systems design and evaluation, education, training and mentoring. Through our "train the trainer" programs, we educate agency personnel in conflict resolution skills so they, in turn, can train others. We mediate disputes both within agencies (e.g., age discrimination and other fair employment complaints, whistleblower complaints) and between agencies and their regulated public (e.g., public policy, regulatory or environmental disputes).

ADR SERVICES TO CLIENTS

Consultation

Initial assessment of a client agency's needs.

System Design

Analysis of existing mechanisms and design of appropriate methods and strategies for implementing ADR.

Education, Training, Mentoring

Programs for educating the general user of ADR Services, training in mediation skills for potential mediators, and actual mentoring of mediator trainees through active cases.

Mediation/Facilitation and Convening Services

Available on contract to agencies to provide mediation, facilitation and convening services for all types of disputes, depending on FMCS resource availability.

Evaluation and Follow-up

Assessment of ADR programs and continuing involvement to improve ADR initiatives.

APPENDIX B

Examples of some of the major ADR projects FMCS has undertaken
involving tribes and others:

1. Indian Self Determination Regulatory Negotiation

In 1996, 63 people, representing 48 Indian tribes and over 10 federal agencies and offices, completed the largest negotiated rulemaking ever conducted since that time. By adhering to a consensus process, the participants designed a regulatory framework that years of typical negotiating had failed to accomplish. In addition, the process became a model for future dialogues with Indian tribes.

Historical Background

In 1975 Congress passed the Indian Self-Determination and Education Assistance Act, Pub.L. 93-638. This Act gave Indian tribes authority to contract (known as "638 contracts" after an abbreviation of the Act, Pub L 93-638 (emphasis added)) with the federal government to operate federal programs such as schools, health facilities, construction projects, etc. serving their tribal members and other eligible persons. The Act's purpose was to gradually shift the responsibility of delivery for such services from the government to each tribe or tribal organization so that they would have improved service and also become more independent. However, by 1988 Congress determined that instead of 638 contracts improving services to the tribes, the federal government had created a complicated bureaucratic maze, making it more efficient for the government to continue to operate contractible programs. For example, the government took an average of 6 months to processing a "638" contract proposal, instead of the 60 days required by the Act. To correct these problems, Congress revised the Act and directed the Departments of the Interior and Department of Health and Human Services to develop regulations over a 10-month period with the active participation of tribes and tribal organizations.

Despite the 10-month deadline, the two Departments and the Indian tribes did not reach agreement on draft regulations until 1990. During this time, the Departments sponsored several regional negotiation sessions throughout the country. Tribal representatives were offered an opportunity to present their issues to a panel of federal employees. However, these employees did not always have the full negotiating authority of their agencies. In several instances, agreements the federal team reach with the tribal representatives were overturned by superiors in Washington, DC More importantly, after the 1990 compromise had been reached, the Departments continued to work on the proposed regulations without tribal input. When a new administration took over in 1993, a decision was made to publish the draft regulations. On January 20, 1994, 5 years after the original deadline, the draft regulations were published. In the preamble, the new administration noted the lack of tribal participation since 1990.

Tribal reaction to the proposed regulations was extremely negative. Tribes, tribal organizations and national Indian organizations criticized both the content of the 1994 proposed regulations and its length, running over 80 pages in the Federal Register. In response to this criticism, the Departments began holding regional meetings. Because the tribes had been excluded from the decision making process leading to the proposed regulations, the Departments agreed to form a formal advisory committee under the Federal Advisory Committee Act of 1990.

While the tribes and the Departments discussed formation of the committee, Congress began its own investigation into the rulemaking and administration of the Act. In October of 1994, Congress, skeptical of the Departments' rulemaking efforts and management of the 638 contract programs, decided, again, to amend the Act. However, this time, Congress severely limited the areas subject to regulation and required the Departments to develop any regulations jointly and with the active participation of Indian tribes under the guidance of the Negotiated Rulemaking Act of 1990. In addition, Congress required final regulations to be published within 18 months or the Departments would lose their rulemaking authority. The deadline was May 25,1996.

By the time the October 1994 amendments passed, the two Departments and the tribes had come to agreement on the membership process for the Advisory Committee. Because of the Act's recent amendments, the tribes and the Departments agreed that this committee would be responsible for recommending to the Departments what regulations, if any, should exist. To ensure that the tribes had adequate representation on the Committee, the Departments and the tribes agree to allow two tribal representatives from each Bureau of Indian Affairs and Indian Health Service Area (organizational subunits of the Departments) for a total of 48 tribal representatives. To avert past negotiating problems with federal officials, the Departments agreed that it would be represented by individuals with full and binding negotiation authority for their agency or office. The Department of the Interior chose 9 negotiators and the Department of Health and Human Services chose 6 negotiators. In late January 1995, pursuant to the Federal Advisory Committee Act (FACA), the Departments published the proposed list of tribal and federal negotiators in the Federal Register.

Outcomes of the Indian Self-Determination Negotiated Rulemaking

These negotiations achieved in twenty months, what tribes and the federal government had tried unsuccessfully for over twenty years to accomplish.

The negotiations ended on time with all but four issues resolved. The four issues did not hold up the overall implementation of the regulations. The entire Committee of 63 members had successfully consented to thirty-four pages of very detailed regulations written in "Plain English" that would now guide tribes and tribal organizations and federal contractors in negotiating contracts between the Departments of Interior and the Health and Human Services. Tribes and tribal organizations who wished to contract with the federal government to provide health services, education, and construction projects for Native peoples would now have an easily comprehensible set of procedures to follow that was consistent for two federal agencies and clear both to novice Indian contractors as well as to new federal administrators.

Significant Outcomes:

• Largest negotiated rulemaking to date. Sixty-three committee members-each with full veto power.

[ocr errors]
[ocr errors]
[ocr errors]

First negotiated rulemaking binding two Departments (Department of the Interior and
Department of Health and Human Services) to the same regulations.

Full consensus used on all decisions.

Created a model for future dialogues with the tribes

• Became the benchmark against all future negotiated rulemaking for Department of the Interior and Department of Health and Human Services.

• Positive relationships between the negotiators has persisted, which affect the resolution of other problems that they face as advocates for tribes and tribal organizations and Federal agencies.

In interviews with tribal and Federal agency representatives using these regulations, overall satisfaction is expressed with the clarity and usefulness of the document.

2. Native American Housing Negotiated Rulemaking

In 1996, Congress enacted the Native American Housing and Self-Determination Act as part of the U.S. government's move to give Indian tribes and Alaska Native Villages more autonomy in administering their housing programs. The implementation of this legislation and other measures requires the development of regulations and procedures to govern tribal oversight.

The negotiating committee included 48 tribal members representing 570 Indian Tribes and Alaskan Native Villages, and 10 representatives from the U.S. Department of Housing and Urban Development. The committee successfully negotiated more than 200 separate issues involving the administration and distribution of $600-million in federal funds.

Through ten months of negotiations, FMCS Commissioners facilitated, mediated and coordinated 49 general meetings, 600 work group sessions and countless sidebars. Working with committee co-chairs, mediators helped establish protocols, set meeting agendas, chaired caucuses and made arrangements for meeting facilities.

Working in partnership through long, tedious hours of work, the committee resolved the 216 identified issues, each with its own history and rationale, to produce by consensus a final comprehensive regulation that departs dramatically from the past while carrying out the federal government's responsibilities to Native American citizens.

3. Tribal Self Governance Negotiated Rulemaking

FMCS was also engaged in the Tribal Self Governance Rulemaking which had its origins in the The Indian Self-Determination Act Amendments of 1988 (Pub. L. 100-472). This act authorized the Tribal Self-Governance Demonstration Project for a 5-year period and directed the Secretary to select up to 20 tribes to participate. The purpose of the demonstration project

was to transfer to participating tribes the control of, funding for, and decision making concerning certain federal programs, services, functions and activities or portions thereof. In 1991, there were 7 annual funding agreements under the project, and this expanded to 17 in 1992. In 1991, the demonstration project was extended for an additional 3 years and the number of tribes authorized to participate was increased to 30 (Pub. L. 102-184). The number of Self-Governance agreements increased to 19 in 1993 and 28 in 1994. The 28 agreements in 1994 represented participation in self-governance by 95 tribes authorized to participate.

After finding that the Demonstration Project had successfully furthered tribal selfdetermination and self-governance, Congress enacted the "Tribal Self-Governance Act of 1994," Public Law 103-413 which was signed by the President on October 25, 1994. The Tribal SelfGovernance Act of 1994 made the Demonstration Project a permanent program and authorized the continuing participation of those tribes already in the program.

A key feature of the 1994 Act included the authorization of up to twenty tribes per year in the program, based on their successfully completing a planning phase, being duly authorized by the tribal government body and demonstrating financial stability and management capability. The Act was amended by Public Law 104-208 on September 30,

1996, to allow up to 50 tribes annually to be selected from the applicant pool. In 1996, the Act was also amended by Public Law 104-109, "An Act to make certain technical corrections and law related to Native Americans". The number of annual funding agreements grew by one to 29 in 1995 and grew to 53 and 60 agreements in 1996 and 1997, respectively, to include 180 and 202 tribes, respectively, either individually or through consortium of tribes.

The Act also authorized the formation of a negotiated rulemaking committee if so requested by a majority of the Indian tribes with Self-Governance agreements. Such a request was made to the Department of the Interior and a rule making committee was formed. Pursuant to section 407 of the Act, membership was restricted to federal and tribal government representatives, with a majority of the tribal members representing tribes with agreements under the Act. Eleven tribal representatives joined the committee. Seven tribal representatives were from tribes with Self-Governance agreements and four were from tribes that were not in SelfGovernance. Formation of the rulemaking committee was announced in the Federal Register on February 15, 1995.

To date, FMCS has facilitated dozens of meetings of the full committee which were held in different locations throughout the country, with two more scheduled in July and September, 1998. In addition, FMCS mediators facilitated numerous workgroups and other meetings during this period that were used to develop draft material and exchange information in support of the full committee meetings.

« PreviousContinue »