National Self-Governance Feasibility Study
State and Local Government
Consultation Session
Washington, DC
June 6, 2001
The National Self-Governance Feasibility Study held a consultation meeting with state and local government representatives on June 6, 2001, in Washington, D.C. Approximately 22 people attended the meeting, which was jointly chaired by the Department of Health and Human Services (DHHS) and the Tribal Self-Governance Advisory Committee (TSGAC).
Opening Remarks/Introduction
Following brief welcome remarks by Jim Mason, Acting Director of Intergovernmental Relations, Dr. Delores Parron, Deputy Assistant Secretary for Planning and Evaluation, opened the session.
Dr. Parron summarized the Tribal Self-Governance Amendments of 2000, stating that it requires DHHS to conduct a feasibility study on whether non-IHS programs within DHHS could be included in a self-governance demonstration project. She stated that the law requires DHHS to be partners with the tribes in the study, and described the regional consultation sessions as an effort to reach across the lines of Indian nations. At this point in the consultation process, the focus is on state, local, county, municipalities, and interested public interest groups that represent program beneficiaries.
Dr. Parron said that the feasibility study protocol is indicative of the government-to-government relationship between tribes and DHHS, which the consultation meetings being jointly conducted by tribes and DHHS. She stated that DHHS plans to develop recommendations that are representative of the partners, but indicated that there also is possibility of separate tribal comments, because DHHS’ responsibility is to present the Secretary’s recommendations in its report to Congress.
Background
Mickey Peercy, representing the TSGAC and the Choctaw Nation of Oklahoma, provided background information about tribal self-governance. He said that self-governance is not a concept to tribes, but that it is a way of life that goes back to treaties between tribes and the federal government. He described the history of the federal government’s self-determination policy from the mid-1970’s through the enactment of self-governance legislation in 1996. He indicated that the Choctaw Nation of Oklahoma has prospered under self-governance.
Mr. Peercy also read comments on behalf of TSGAC Co-Chair Merle Boyd, who was unable to attend the consultation meeting due to health reasons. He stated the Self-Governance is the statutory mechanism developed by tribes to transfer programs and funds previously administered by the federal government for the benefit of Indians to tribes. He added that local control and flexibility are key aspects of self-governance.
Mr. Peercy said that self-governance has evolved through statutory authorizations of demonstration projects. Based on the results of these demonstration projects, Congress has authorized permanent self-governance programs.
He then described the federal trust relationship, which allows the United States to legislate uniquely for the benefit of Indian people, and said that self-governance is a critical component of the federal self-determination policy. Mr. Peercy reviewed the finding of the Tribal Self-Governance Amendments of 2000, P.L. 106-260, which stated that the following:
· The Tribal Self-Governance Demonstration Project was designed to improve and perpetuate the government-to-government relationship between tribes and the United States and to strengthen tribal control over federal funding and program management;
· Congress has reviewed the results of the Tribal Self-Governance Project and finds that transferring full control and funding to tribal governments, upon tribal request, over decision-making for federal programs, services, functions and activities is an appropriate and effective means of implementing the federal policy of government-to-government relations with Indian tribes, and strengthens the federal policy of Indian self-determination;
· It is the policy of Congress to permanently establish and implement tribal self-governance within DHHS, and call for full cooperation from DHHS in the implementation of tribal self-governance.
He concluded by stating that Congress required an active tribal partnership in conducting the report required under Title VI. He stated that tribes are not rushing to assume programs just because they can, but instead are looking at this issue responsibly in order to improve services to tribal members.
Paul Alexander of Alexander & Karshmer, provided additional legislative history of tribal self-governance, stating that the Indian Self-Determination and Education Assistance Act in 1975 was the first major piece of legislation that allowed federally recognized tribes and tribal organizations to operate programs through contracts and grants. This effort launched a slow but steady growth in contracting, which was accompanied by increased federal regulations and reporting requirements, which in turn led to appropriated funds’ having to be used to meet federal reporting requirements. As a result, the Indian Self-Determination and Education Assistance Act was amended to create the BIA self-governance demonstration program to simplify reporting requirements and create more local flexibility. BIA self-governance was made permanent in 1996, when it also was expanded to include other Interior Department agencies. Second, the IHS self-governance demonstration project was created in 1993. Because the IHS self-governance program worked very well, it, too, was made permanent in 2000. Mr. Alexander indicated that the only roadblock to enacting the IHS permanent self-governance legislation was the creation of a demonstration project for other DHHS agencies, stating that tribes proposed several variations before agreeing to the Title VI feasibility study as a compromise.
Self-Governance Feasibility Study Description
Michael Herrell, Office of Assistant Secretary for Planning and Evaluation, DHHS, described the details of the feasibility study.
Daniel Thomas, National Black Caucus of State Legislators asked whether states had a role with respect to self-governance programs. Mr. Alexander responded that they do not have a particular role because the relationship replaced by self-governance is one that involves the direct federal provision of services to tribes.
Mr. Herrell said that IHS is currently the only DHHS agency with self-governance, and that it had directly provided services to tribes in the past. For the rest of the 300 DHHS programs, there is no right to tribal self-governance. In an effort to perhaps move other programs to tribal self-governance, Congress required a feasibility study to explore this issue. He said that DHHS is at the stage of studying whether such a move is feasible, not at the stage of moving these programs to self-governance.
Mr. Herrell then outlined the basic study requirements set forth by Congress:
He reiterated Dr. Parron’s remarks regarding the partnership nature of the consultation process and the fact that the report to Congress is to present the Secretary’s recommendations. He stated that other entities, including tribes, states, and local governments can submit dissenting views, and that a draft report will be circulated to interested parties for comment.
Joy Johnson Wilson, Conference of State Legislatures, asked if Congress set forth criteria for determining whether programs should be included in the demonstration project. Mr. Herrell responded that this issue is part of the consultation process. He added that Head Start, TANF, and child welfare have been mentioned as possibilities for inclusion, since tribes already run these programs.
A participant asked whether there will be regional meetings for state and local governments and raised the concern that the information about the feasibility study will not be disseminated to the correct state and local officials. Mr. Herrell responded that there will be plenty of opportunity for state and local governments to comment on the demonstration project, but DHHS does not have the resources to do regional meetings.
Tribal Recommendations
Mr. Herrell provided an overview of the tribal recommendations compiled during the regional consultation meetings. He said that DHHS is assuming at this point that some type of demonstration program is feasible and that the recommendations may form the basis for the draft report. The tribal recommendations, accompanied by any discussion that occurred during the June 6 meeting, follow.
Tribal Recommendation: The government-to-government relationship would underpin the demonstration project, which means that the federal government and tribes would be equal in terms of negotiating the terms of self-governance
Tribal Recommendation: Direct operation of selected programs of the 300 DHHS programs would be assumed under negotiated agreements, parallel with the way BIA/IHS self-governance agreements are negotiated.
Tribal Recommendation: These negotiated agreements would provide for the direct transfer of both program and support funds through annual funding agreements. Mr. Herrell said that it would be difficult to determine funding levels (“tribal shares”) due to the different funding mechanisms for non-IHS programs, and said that such a task would probably be easier when funding for a program is population-based.
Mr. Alexander added that that HUD and DOT programs also have a variation of self-governance arrangements. In response to a question from Alana Knudson-Buresh, Association of State and Territorial Health Officials, regarding whether EPA has self-governance programs, he said that EPA is different because tribes are considered states for some of its programs (e.g., Clean Water Act).
Cherilyn Scism, National Governors Association, said that she wants to see states be an equal negotiating partner with the federal government but that this is not the case. Mr. Alexander said that several provisions, such as avoiding the Administrative Procedures Act and creating a regulatory waiver process, were included to create more equal footing as part of tribal self-governance statutes.
Catherine Finley, Southern Governors Association asked whether individuals who were included in a tribal share determination would be eligible to receive services from the state. She expressed concern that states would have to provide services to individuals after losing the funds to serve them. Mr. Herrell responded that this issue is complicated.
Kathryn Dyiak, American Public Human Service Association, commented that states sometimes must commingle funds because programs are inadequately funded.
Ms. Finley said that states would be concerned about funding cuts that would result in people not receiving services, which Mr. Herrell said was an excellent point.
Tribal Recommendation: Secretarial waiver authority and tribal program redesign/consolidation authority are key demonstration project features. Mr. Herrell stated that this is a basic element for tribes, but it raises questions if a wide range of programs are included in one compact. He then explained the existing BIA/IHS regulatory waiver authority with respect to program redesign and consolidation under Title IV and V.
John Taber, State of Alaska, said that states are interested in program redesign because tribes could move funds to one purpose, which means that other programs would not serve their eligible beneficiaries. Ms. Wilson asked whether tribes would go to Congress to seek authorizing legislation and whether programs would lose their identity through consolidation. Mr. Alexander replied that that the regulatory requirements mandated by law cannot be waived and that tribes have not discussed such a broad waiver. Mr. Herrell added that Title V contains a floor that states that eligible persons cannot be denied access to services under a self-governance compact.
Ms. Finley said that states pay billions of dollars in financial match requirements and asked whether they would have to keep doing this under self-governance. Mr. Alexander said that tribes are allowed to use other federal funds to meet match requirements and that states also need to look at whether they are providing equitable and comparable services to eligible Indians. If so, he said, self-governance conceptually should not result in a loss to states because it would merely be a shift in responsibility for providing services. Ms. Finley reiterated her concern that states could lose funding under self-governance while at the same time be required to provide services. Mr. Peercy said that, in an ideal world, tribal members would be equally satisfied with services provided at the tribal level and therefore not return to the state for services.
Mr. Taber said that the State of Alaska has worked on TANF agreements to let tribes provide services through a gradual phase-in, which required flexibility on the part of the State to carry out. He cautioned that this situation did lead to planning and budgeting issues for Alaska.
Elaine Ryan, APHSA, said that her organization brought it membership together over a year ago to look at tribal cross-program issues and has established state working groups to study eligibility, outcome measures, reporting requirements, data collection, and other issues. She offered assistance to the consultation team, and said that there are capacity issues both at the state and tribal levels.
Mr. Thomas asked how consultation with the states will occur because self-governance for DHHS programs is not just a relationship between the federal government and tribes. Mr. Herrell responded that he hopes that June 6 meeting will begin the dialogue, that the umbrella organizations will go back to the states, and that there will be comments on the draft report.
Mr. Taber added that there needs to be an appreciation of the lead time involved in transitioning from state to tribal administration has implications for state employment, management, and budgeting.
Tribal Recommendation: There should be a limitation on the Secretary’s ability to deny self-governance proposals.
Tribal Recommendation: Financial accountability should be ensured by Single Audit Act and OMB Circular compliance, which is modeled on BIA/IHS self-governance.
Tribal Recommendation: Program accountability should be ensured by including performance measures in negotiated agreements. Mr. Herrell said that this recommendation raises questions about how these measurements would interface with existing performance measures. Ms. Ryan cautioned that there must be a way to account for federally-mandated performance requirements on states in the context of self-governance, citing child welfare programs and TANF as examples. This view was echoed by Ms Scism.
Mr. Alexander said that this is an interesting legal question, in terms of the federal government forcing states to negotiate with tribes and that this is an important issue to put on the table. He stated that Title V has a provision that allows states to negotiate with tribes to provide specialized services under the government-to-government relationship. Mr. Herrell added that this is one of the key issues to be examined.
Ms. Scism suggested that states be held harmless if tribes assume programs under self-governance. In other words, states should not be penalized for poor performance by tribes, nor should they take credit for good tribal performance.
Ms. Finley asked whether there was discussion during the Title VI legislative process about whether certain DHHS programs would receive additional funds to serve tribes through a set-aside. Mr. Alexander responded that the self-governance authorizing committees (House Resources and Senate Indian Affairs) do not appropriate funds and that they also differ from the programs’ authorizing committees.
Mr. Taber pointed out that adequacy of state funding to tribes surfaced at a Senate Indian Affairs Committee hearing a few weeks ago when IV-E issue was discussed. He said that the temptation is there for tribes to say that the states are serving their populations more than tribal members. He said that this issue is likely to resurface until there is adequate federal funding.
Ms. Finley most DHHS programs at the state level have waiting lists, so the assumption that funding will be transferred to tribes and all people will be served is unfair. She said that tribes will need to assume that they will have waiting lists, too, because this would be fair and equitable.
Ms. Scism said that that services to tribes is a federal responsibility, and states should not be required by mandate to provide funding either through federal or state resources to make up shortfalls in federal funding. She said that states would seek such a protection in legislation.
Mr. Peercy acknowledged that there is not enough funding for anyone. He said that tribes will consider the adequacy of funding before deciding to include a program in a self-governance compact.
Tribal Recommendation: Current interest focuses on programs currently run by tribes and for which they receive funding, as well as a limited number of programs not currently run by tribes that address significant tribal needs. Mr. Herrell added that tribes have recommended programs for which there are identifiable tribal shares and a neutral or positive impact on beneficiaries for inclusion in a demonstration project.
Mr. Taber asked how DHHS would determine impact on beneficiaries, to which Mr. Herrell replied that there are not any quantifiable studies on existing self-governance, but there is a lot of positive anecdotal evidence that it is successful. Ms. Taber followed up by asking whether DHHS would consider whether reduction in state match would affect beneficiaries. Mr. Herrell said that some tribes will say that, even without a state match, program assumption is a benefit. Mr. Thomas echoed this view, stating that culturally competent service delivery in minority communities can produce higher quality services.
Ms. Wilson asked whether the report will elicit specific suggestions from tribes regarding the limited number of programs to be included in the demonstration project, and Mr. Herrell said that DHHS has been trying to get these suggestions. Ms. Wilson added that the June 14 consultation meeting will be difficult to participate in without this information and said that it would be more useful to have this meeting once these specific program suggestions are made. Mr. Herrell responded that DHHS is on a tight schedule and that the list of programs may be included in the draft report. He then said that DHHS may schedule an additional meeting in Washington after the release of the draft report. Several other meeting participants shared Ms. Wilson’s concerns and said that they would like to see a list of programs, particularly because many of their organizations will be conducting their annual meetings in the next two months.
Ms. Scism said that she would hate to be in a position to have to go to Congress in February and say that consultation was not meaningful for the National Governors Association. She also said that she can only provide hypothetical comments until there is a list of programs.
In response, Mr. Herrell said that DHHS will try its best to get concrete list of programs to states as quickly as possible. Mr. Mason added that DHHS will try to provide the National Governors Association with at least an outline prior to its August meeting.
Tribal Recommendation: Eligibility for participation should be based on the following: Tribes with current Title I, IV, or V contracts or compacts; tribes with three years of demonstrated financial stability and management capacity; or, tribes that acquire capacity through a technical assistance and planning process.
Mr. Taber asked how the proposed criteria would expand list of self-governance tribes. Both Mr. Peercy and Mr. Alexander replied that it was unlikely to have an impact on the current list.
Congressionally Mandated Assessments
Mr. Herrell then reviewed the congressionally mandated assessments to be included in the report, which include the following: costs (start up, federal administrative, program); savings (efficiencies, devolution of federal functions); potential impact on beneficiaries; and, legal barriers. Mr. Taber asked whether legal barriers could include state oversight issues, and Mr. Herrell agreed to include this issue.
Next Steps
Mr. Herrell concluded by outlining the next steps in the consultation process. On June 14, there will be a consultation meeting in Washington, D.C., for all interested parties. The draft report (which now will be described as something other than a “draft report,” per a suggestion by Ms. Wilson) will be circulated in September. At this point, DHHS is considering holding another joint meeting following issuance of the draft, with a final report to be completed by December 1, 2001. The final report must be submitted to Congress on February 18, 2002.