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R48256 — Tribal Self-Determination Authorities: Overview and Issues for Congress

Reports · published 2025-01-10 · v5 · Active · crsreports.congress.gov ↗

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Authors
Cassandria Dortch · Elayne J. Heisler · Mariel J. Murray
Report id
R48256
Summary

Congress has broad authority over issues relating to federally recognized Tribes (hereinafter, Tribes), and its approach to tribal issues has fluctuated over time. Beginning in the 1970s, Congress established a policy of promoting tribal self-determination and self-governance. The Indian Self-Determination and Education Assistance Act (ISDEAA; P.L. 93-638, 25 U.S.C. §§5301 et seq.) outlined federal policy on tribal self-determination, which includes the “effective and meaningful participation by the Indian people in the planning, conduct, and administration of [federal] programs and services.” ISDEAA, as amended, enables Tribes, tribal organizations, and tribal consortia (collectively, tribal entities) to manage certain federal programs that would otherwise be administered by certain federal agencies. As enacted in 1975, ISDEAA authorized the Department of the Interior (DOI) and Department of Health and Human Services (HHS) to enter into self-determination (“638”) contracts with tribal entities (Title I) and increased the influence of tribal parents in public education (Title II). Since 1975, Congress has amended ISDEAA several times, for example, to provide more autonomy to tribal entities through self-governance compacts (Titles III, IV, and V). Tribal entities may choose different ISDEAA agreement options depending on their capacity and interests. The majority of Tribes have entered into ISDEAA agreements to manage federal programs. ISDEAA includes various directives relating to the amount of funding that federal agencies must provide to tribal entities under ISDEAA agreements. First, tribal entities are entitled to the amount equal to what the federal agency would have otherwise spent operating that program. In addition, ISDEAA requires the payment of specific costs associated with ISDEAA agreements, including reasonable contract support costs (CSCs) and payments for tribal (“105(l)”) leases. Congress has taken several actions to help DOI and HHS meet the agencies’ legal obligations to pay CSCs and 105(l) lease costs, which Congress may consider for other agencies with ISDEAA or ISDEAA-like authorities. Since ISDEAA was originally enacted, Congress has authorized the expansion of tribal self-determination or self-governance across the federal government. This included amending ISDEAA to expand the use of ISDEAA agreements within existing departments (e.g., to DOI agencies other than the Bureau of Indian Affairs [BIA] and Bureau of Indian Education [BIE]). In addition, Congress has enacted ISDEAA-like authorities for other federal departments and agencies, including the U.S. Department of Agriculture’s (USDA’s) Food and Nutrition Service and Forest Service, the Department of Transportation, and the departments participating in the P.L. 102-477 “477” Workforce Development Program. In addition, under the Tribally Controlled Schools Act (TCSA; P.L. 100-297), Tribes and tribal organizations may choose to operate a BIE school under a grant from the BIE and manage facilities’ improvement and construction projects. Congress could choose to constrict, maintain, or expand the types of programs and activities permitted under tribal self-determination authorities. Recent legislation indicates that some Members are interested in at least maintaining the tribal self-determination policy at departments that currently have the ISDEAA authority. Beyond DOI and HHS, Congress has often taken an incremental approach to tribal self-determination and continues to do so for departments such as USDA. In addition, Congress has considered ways to boost tribal capacity to manage federal programs as well as federal capacity to coordinate with Tribes to oversee these agreements. At the same time, Congress has expressed interest in maintaining a degree of federal oversight over ISDEAA and other tribal self-determination agreements. Congress has taken several actions regarding tribal accountability for ISDEAA agreements at DOI and HHS and could consider similar actions for other departments. Since the 108th Congress, Congress has also held many oversight hearings and seen bills to examine federal implementation of tribal self-determination. Among other things, the PROGRESS for Indian Tribes Act of 2020 (P.L. 116-180) sought to create a consistent statutory framework for DOI’s self-governance compacts. After a negotiated rulemaking process, DOI published its updated, final regulations implementing the act on December 11, 2024.

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