WASHINGTON - At a Senate Indian Affairs Committee hearing May 13 on the tribal self-governance program of the Indian Self-Determination and Education Assistance Act, a series of remarks on allowable costs turned out to add up best in light of a footnote deep in the written testimony of W. Ron Allen, chairman of the Jamestown S'Klallam Tribe.
Allen and Clifford Lyle Marshall, chairman of the Hoopa Valley Indian Tribe, made the case that a new administrative interpretation of allowable costs threatens the self-governance compacts of all tribes. James Cason, the Interior Department's former associate deputy secretary for Indian Affairs, newly installed as the assistant secretary for policy, management and budget, responded in essence that the realities of the congressional appropriations process often mean funding that goes to one tribe is funding that doesn't go to another.
Everyone consulted on the question afterward agreed that a more robust federal budget would end many a complaint about program funding. Still, the back-and-forth before the committee didn't add up: on the one hand, all tribes losing allowable costs; on the other, some tribes gaining appropriations and others not.
The footnote in Allen's testimony made sense of the exchange: ''As an aside, this policy [self-governance] of transferring management from federal to tribal governmental control is currently being undermined by the National Business Center, the Interior agency charged with negotiating indirect cost agreements with tribes and tribal organizations. NBC recently threatened to abandon its long-standing policy of allowing, without documentation, 50 percent of tribal council expenses in tribal indirect cost pools.
''Under the new policy, no such expenses would be allowable as indirect costs unless a tribe could document, through detailed personnel activity reports, the time and expense council members and staff devote to running federal programs. Many, if not most, tribes vest managerial responsibility for carrying out ISDEAA agreements in their tribal councils, and such tribes count on indirect cost reimbursements to defray the cost of these tribal government functions.
''The NBC's unilateral revocation of the '50 percent rule' would force tribes to spend great amounts of time to produce - and the DOI to review - documentation parsing tribal council minutes and activity reports to determine the precise amount of tribal members' time and expense devoted to federal programs.''
Cason expanded on his comments to the committee afterward.
''The driver for us is how much money did we get through appropriation to provide for this level of service to this group of tribes in a region, and then if we're tasked through compacting or contracting to somehow have to decide how much of this amount of appropriations really goes to your tribe. I portion that out, I ship it to you in a compact or contract, and then you have to make decisions whether that's adequate for your needs or you're going to augment it in some fashion with tribal funds.'' He added that Interior has to be accountable for congressional appropriations that go to tribes.
In his own follow-up remarks after testifying, Allen questioned whether Cason had fully grasped that the ''50 percent rule'' was at issue in the committee's questioning.
''He was trying to put it in the context of one tribe gets it, another tribe doesn't. This provision of NBC affects all tribes. This is nationwide; this is all 562 of us. We all have contracts, we all have indirect cost rates, so all of our rates have included, you know, the 50 percent provision on our council costs. It varies from tribe to tribe.
''He finally got it, you know, at the very end ... 'Oh, well maybe I better look into this.' Yeah, you better look into it because I can tell you well over half the tribes aren't going to have any resources. All the tribes, it's going to hurt them, because they all allocate those [indirect] costs because they run those federal programs. But then some of those tribes out there, because of their success, will get to redirect programs [program funds] that were intended for cultural programs, for other community service programs - they move it in and cover that cost, because it's a cost they have to bear.'' But that doesn't make it a gain from appropriations any more than disallowed indirect costs are the equivalent of an Interior decision on allocation.
The ''50 percent rule'' is a little-known component of the government-to-government relationship between tribes and Congress, as Allen explained it.
''NBC wants us to document every time that a council addresses natural resources, or addresses law enforcement or court activities, etc. And that goes down and it gets recorded and then it gets all tallied up.
''We're telling them that nobody does that to these guys [U.S. congressional members]. They don't break down how much time they spend on HUD [Housing and Urban Development], how much time they spend on Interior or Energy. So we're not going there. And it would cost them more money, way more money. ... I think what we need is maybe a legislative remedy to give them clearance such as, 'That is an allowable cost. ... The Self-Determination Act shall be amended to recognize the authority of tribes to recover 50 percent of [indirect costs].'''
The dispute over the ''50 percent rule'' gave detail to another remark of Allen's at the hearing, namely that federal agencies still don't trust tribes.
And Allen's reminder that more successful self-governance tribes can redirect program funding gave point to a seemingly impromptu remark of Marshall's at the hearing: ''What tribes really need to do is stabilize their ability to govern.''
Cason brought the detail to another of Marshall's remarks. Arguing for more self-governance funding, Marshall said the Hoopa channel three dollars into self-governance programs for every one dollar allocated to them by Interior. Cason said the amount varies by tribe.
''I've heard figures from one to one to 12 to one, depending on what the program is and which tribe is involved. So it gives a fairly wide latitude as to what each tribe says they put in, and it ends up being kind of a program-specific basis, an emphasis of the tribe. You know because if basically a tribe says, 'I want to do a lot more of this for my members than I want to do of that, so I'm going to put money into this and not so much money into that project' -' so I think there's pretty wide variation ...
''And then in terms of what it means to us as Department of Interior, Bureau of Indian Affairs, you know, our availability of resources is basically dictated by the congressional appropriations process. We get what we get, and then we have to apportion what we get between direct service to tribes and compacting and contracting, where we turn the money and resources over to the tribes and they do their thing with it. So we have kind of a limitation with the appropriations process, and that appropriations process is a broader one in which Indian affairs competes with a lot of other programs for the amount that our appropriations committees [in Congress] have.
''So there's, you know, lots of fingers in the pie to decide what we get, and lots of fingers in the pie to decide how we distribute it. So even though we're well aware that the tribes desire to provide better service than the resources that we have to give, it doesn't give us a right to, in some way, create a bigger appropriation for us.''