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Self-governance hearing exposes points of hope and resistance

WASHINGTON - Successful self-governance tribes pushed for the program's expansion at a Nov. 8 hearing before the Natural Resources Committee in the House of Representatives; and the Department of the Interior insisted that the step is unwarranted, unfit for the non-BIA functions and responsibilities of Interior, and a potential liability to the federal government.

Both Interior and tribal leaders applauded Public Law 93-638, an outcome of the Indian Self-Determination and Education Assistance Act of 1975. So-called ''638 contracting'' and its successor program, self-governance compacting, has enabled fully 40 percent of tribes to manage their own BIA programs with federal funds that were administered on their behalf by the BIA (a part of Interior) or the IHS in times past. Congress refined the program within the IHS in 2000. ''Indian tribes have reported that those changes have immensely improved the administration of self-governance within the Indian Health Service,'' noted Rep. Nick Rahall, D-W.Va., the committee chairman. The bill before the committee Nov. 8, H.R. 3994 in the House, would apply the rules and procedures of self-governance in use at IHS to Interior.

James Cason, associate deputy secretary of Interior, said that under new legislation as proposed in H.R. 3994, ''Non-BIA bureau programs that have both Indian and non-Indian significant beneficiaries would be the subjects of funding agreements at the tribes' discretion. The bill provides no authority for the secretary [of Interior] to require terms to ensure protection of non-Indian interests.''

Cason gave the specific example of Interior's fuels management program as it pertains to wildfire management. ''Because of the proximity of federal, state, Indian and private lands, fuel management activities must be closely coordinated and managed so as to keep the entire ecosystem in mind when funding and planning activities. It would be unwise to require the Bureau of Land Management ... to provide its fuel management monies to tribes receiving a significant benefit from BLM's program without any negotiations or choice on the part of BLM when so many non-Indian interests receive benefits as well.''

Cason provided fine detail on an array of other objections Interior has to the bill, before closing with a testimonial to the existing tribal self-determination law as ''a success story. Our interest is in making sure it stays that way. ... We are opposed to the bill's enactment.''

The first of several tribal advocates for H.R. 3994, Jamestown S'Klallam Chairman W. Ron Allen, said it would eliminate the necessity for many self-governance tribes to operate programs under two sets of administrative requirements, one BIA and one IHS. Other benefits of the bill would be to ''expand the scope of contractible programs from those benefiting Indians exclusively to those of which Indians are 'primary or significant beneficiaries'''; expand tribal contracting to non-BIA programs within Interior; clarify and limit Interior's time frames for deciding on a proposed agreement, as well as its reasons for declining to enter an agreement; protect tribes from unauthorized terms imposed by Interior on compacts; and provide a clear appeal process, with public burden-of-proof rules, for tribes denied a compact.

As for Interior's objections, Allen asked the committee to bear three thoughts in mind. ''First, the bill contains the consensus language on 95 percent of the original points of contention, which federal and tribal representatives were able to work through over the course of several years. The enormous progress made over that time should not be squandered merely because a few disagreements remain.

''Second, there is ample precedent for most of the provisions to which DoI has not yet agreed ... none of which has caused the IHS concern over the years.

''Finally, to some extent, self-governance presents an inherent, and perhaps intractable, tension between tribes and the department. A bureaucracy such as the DoI will inevitably resist yielding its authority, and its funding, to other entities, such as tribes. For this reason, complete agreement between tribal and federal viewpoints is impossible, and Congress should not wait for such agreement before acting.''

Melanie Benjamin, chief executive of the Mille Lacs Band of Ojibwe, urged a further expansion of the tribal self-governance program to the Department of Transportation, ''and eventually, in the form of a consolidated federal grant, to all federal agencies.''