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Self-governance revisited

New 'allowable costs' interpretation impedes successful program

WASHINGTON - Shortfalls in congressional appropriations for federal Indian agencies again moved front and center at a May 13 Senate Committee on Indian Affairs hearing.

And Interior Department associate deputy secretary for Indian affairs James Cason has testified at recent hearings on tribal energy production and on the federal recognition process that Interior's self-governance office is short of staff to match the promptness of IHS reimbursements to tribes, while its BIA branch is short of funds to share among tribes.

''We end up in a situation where we have scarce dollars that we're trying to allocate in a broad spectrum of priorities across Indian country. There is a desire to have more dollars, so that puts pressure on the institution to make sure where we're allocating dollars is a fair distribution. ... When we take a look at things like indirect [contract] support costs, it may range from 30 percent to 130 percent of contract costs. We feel like we're in a position where we have to be mindful of what kind of costs we are paying, because every dollar I give to one tribe is a dollar I cannot give to another tribe.''

Chairman W. Ron Allen of the Jamestown S'Klallam Tribe poured cold water on Cason's explanation after the hearing. The problem for self-governance tribes is not appropriations, but a new interpretation by Interior of ''allowable costs,'' he said, that penalizes all them.

Also after the hearing, Jacqueline Johnson, executive director of the National Congress of American Indians, said Interior simply hasn't given the proper priority to Indian and Alaska Native programs: ''It's a matter of choice.'' All Indian-program federal agencies have learned to explain away lack of service provision by complaining overtime about appropriations shortfalls, she added.

All of the witnesses said that self-governance has been a success. Funding agreements between tribes and Interior under the program number 94, according to Cason, providing approximately $380 million annually to 234 tribes and tribal consortia; agreements between the IHS and 320 tribes provide another $1 billion for self-governance programs. With funding that used to go direct to the federal agencies, tribes now execute a full range of social and resource management services for their citizens.

''The self-governance program has spurred an important transition from bureaucratic one-size-fits-all programs to flexible, tribally designed and administered programs,'' said Clifford Lyle Marshall, chairman of the Hoopa Valley Indian Tribe, which he described as the first self-governance tribe.

''Self-governance afforded tribes the opportunity to take over the planning and development of these programs. At that point they became based on the priorities and needs of Indian communities as determined by the tribes, and for this reason they work.''

But tribes have become wary of federal funding decisions, while new interpretations of ''allowable costs'' at the Office of the Special Trustee within Interior have stymied the program, according to chairmen Marshall, Allen, and James Steele of the Confederated Salish and Kootenai Tribes. Allowable costs that have always been acceptable under realistic management are now found ''illegal,'' Allen told the committee. ''Where'd that come from?''

Marshall described the self-governance successes of his tribe but added, ''Please note that all of these occurred before the effort of trust reform reorganization [by the OST], and are now in conflict with it because they do not mirror the universal program as designed by OST. Please sunset OST this [congressional] session, or limit its purpose to the management of IIM [Individual Indian Money] accounts, or adopt language that will protect the agreements entered into with the self-governance tribes.''

Gene Peltola, president and CEO of the Yukon-Kuskokwim Health Corporation in Bethel, Alaska, dwelt on the shortfall in contract support costs generally - a shortfall he placed at $100 million for IHS and $40 million for the BIA. Throughout the federal government, he explained, only Indian and Alaska Native contractors are left guessing as to whether their contract support costs will be met - though in his view, regular shortfalls have taken the guesswork out of it.

Notwithstanding that after years of dispute the Supreme Court ruled Indian and Alaska Native contracts ''good as gold,'' Pentola told Sen. Lisa Murkowski, R-Alaska, IHS and the BIA still don't make good on new tribal contract support costs. He confirmed for Murkowski that most tribes don't even file their claims.

He recommended that the committee call for a General Accountability Office study of the actual impact on tribes of contract support costs the government doesn't pay, despite its legal obligation.

The immediate occasion of the hearing was a legislative attempt, H.R. 3994 in the House of Representatives, to reform and expand self-governance programs.