When Congress passed the Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975, the goal was to create mechanisms of tribal self-governance through the process of government contracting. By contracting funds to tribal governments used by federal agencies via the government contracts process, the federal government could turn over those funds to the tribal governments to manage contracted programs as they saw fit and thus provide tribes greater control over their socio-economic situation. On a number of metrics, ISDEAA is an enormous success. More than 60% of tribal programs are administered through self-governance contracting/compacting. Tribal self-governance contracting/compacting has significantly raised American Indian and Alaska Native (AI/AN) health outcomes, standards of living, and education rates across tribal backgrounds. However, whether ISDEAA empowers tribal sovereignty remains an open question—a question with important policy implications for tribal governments.
For example, tribal leadership in Tribal Budget Consultations with various federal agencies continually demand the full recognition of tribal sovereignty—recognition that federal agencies like the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) continually elide by suggesting that ISDEAA contracting/compacting with the tribes is the same, or functionally equivalent to, the recognition of tribal sovereignty. Conflating tribal sovereignty with tribal compacting/contracting under ISDEAA not only ignores the demands of tribal leadership, but it also obscures the legal innovation at the heart of ISDEAA.
This article charts the difference between the legal theories of tribal sovereignty and tribal self-governance contracting/compacting as argued for by tribal advocates. Conflating tribal self-governance contracting/compacting with tribal sovereignty ignores both the demands of tribal advocates and the legal history of tribal self-governance contracting/compacting. I present three interlocking arguments: (1) that ISDEAA tribal selfgovernance contracting/compacting was conceptualized and designed by tribal advocates to be a mechanism inside the American legal system, thus slightly removed from arguments on tribal sovereignty which tribal advocates argue stands outside the framework of United States Federal law; (2) that tribal selfgovernance contracting/compacting was, and continues to be, a practical strategy on the part of tribal advocates to provide for the needs of their communities, while tribal sovereignty is an ideal for which they continue to fight; and, (3) that tribal self-governance contracting/compacting cannot be considered an act of tribal sovereignty unless such claims are understood in fundamentally different—and lesser—terms than demanded by tribal advocates.
Read the full Article in the American Indian Law Journal, including footnotes and references.