Oklahoma City Area Self Governance Coalition SG 101 Session – April 17, 2009 Contracting and Compacting Under the ISDEAA

Why self determination? Why self determination? “the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people …” –ISDEAA Congressional finding

ISDEAA Contracting & Compacting Indian Self-Determination & Education Assistance Act (Public Law , as amended). –Codified in Title 25 of the United States Code beginning at Section 450 (25 U.S.C. 450 et seq.) Title I contracts – 25 U.S.C. 450f et seq. Title I contracts – 25 U.S.C. 450f et seq. Regulations at 25 CFR Part 900 Title IV compacts (BIA) – 25 U.S.C. 458aa et seq. Title IV compacts (BIA) – 25 U.S.C. 458aa et seq. Regulations at 25 CFR Part 1000 Title V compacts (IHS) – 25 U.S.C. 458aaa et seq. Title V compacts (IHS) – 25 U.S.C. 458aaa et seq. Regulations at 25 CFR Part 36 et al.

General Similarities: General Similarities:  Tribal management of federal programs, services, functions and activities (PFSAs).  Redesign of program structure.  Reallocation of funding.  Controlling document and funding document.  Prohibits Secretary from modifying, waiving or diminishing U.S. trust responsibility.  Promulgated regulations, but also allows for waivers. ISDEAA Contracting & Compacting

General Similarities: General Similarities:  Secretarial reports on status.  Tribal input on budget requests.  Funding may be used as non-federal match.  Retention of federal employees.  Records not subject to FOIA.  Liability insurance; waiver of defense.  Criminal penalties.  Single audit.

 May actually be a contract, grant or cooperative agreement.  Eligibility: Tribal resolution required.Tribal resolution required. Written proposal, including PFSAs and standards for operation.Written proposal, including PFSAs and standards for operation.  Technical assistance and grants: Secretary obligated to provide TA for planningSecretary obligated to provide TA for planning Planning grants available (if funded).Planning grants available (if funded). Title I contracts

 Declination: Secretary has 90 days to approve or decline.Secretary has 90 days to approve or decline. Review period may be extended upon written consent of tribe.Review period may be extended upon written consent of tribe. Various provisions of contract proposal may be severed.Various provisions of contract proposal may be severed.  Declination criteria: Determination of unsatisfactory service.Determination of unsatisfactory service. Inadequate protection of trust assets.Inadequate protection of trust assets. PFSA cannot be properly completed or maintained.PFSA cannot be properly completed or maintained. Funding request is in excess of amount available.Funding request is in excess of amount available. PFSA is an inherently federal function.PFSA is an inherently federal function.

 Secretarial obligations for Declination: State objections in writing.State objections in writing. Provide TA to tribe to overcome objections.Provide TA to tribe to overcome objections. Hearing on record, including rights to discovery and appeal*.Hearing on record, including rights to discovery and appeal*. Burden of proof is on Secretary.Burden of proof is on Secretary. *Tribe may initiate district court action in lieu of appeal. Title I contracts

Tribes may operate multiple Title I contracts simultaneously. Tribes may operate multiple Title I contracts simultaneously. Default three-year term on calendar fiscal year (may be negotiated). Default three-year term on calendar fiscal year (may be negotiated). Incorporation of Model Agreement provisions required. Incorporation of Model Agreement provisions required. Redesign and reallocation require prior approval. Redesign and reallocation require prior approval. “Mature” contract status earned after three years of clean audits (allows for indefinite contract term). “Mature” contract status earned after three years of clean audits (allows for indefinite contract term).

Retrocession: Tribe turns operation of PFSAs back over to feds, including applicable funding amounts. Retrocession: Tribe turns operation of PFSAs back over to feds, including applicable funding amounts. Reassumption: Feds retake operation of PFSAs. Reassumption: Feds retake operation of PFSAs.  Immediate threat of imminent harm.  Such threat results in failure to perform by contractor.  Secretary may decline further contracting until Tribe takes satisfactory corrective action.  Secretary has burden of proof. Title I contracts

Funding: Funding:  Direct program funding: “106 (a)(1) amount” – PFSA funding that the Secretary would have otherwise provided.  Tribal Shares: Administrative portion of 106 (a)(1) amount.  Contract Support Costs: “106 (a)(2) amount” – allowable and reasonable costs of Tribe to carry out contract not normally carried out or funded directly by the Secretary. –Direct –Indirect  Allowability of cost governed by OMB Circular A-87.

Title IV compacts  Eligibility: Planning phase required.Planning phase required. -Legal and budgetary research -Internal tribal governmental planning and organization Tribal resolution required.Tribal resolution required. Demonstrated financial stability and financial management capability for three years.Demonstrated financial stability and financial management capability for three years.  Planning grant may be available.  Up to 50 new tribes per year; tribes may participate in consortia.

Title IV compacts  Compact and funding agreement: Redesign and reallocation not restricted.Redesign and reallocation not restricted. Compact term indefinite; multi-year funding agreements.Compact term indefinite; multi-year funding agreements. Documents submitted to Congress.Documents submitted to Congress.  Processes not specified: declination/final offerdeclination/final offer retrocession/reassumptionretrocession/reassumption transfer of fundstransfer of funds

Title V compacts  Eligibility: Planning phase required.Planning phase required. -Legal and budgetary research -Internal tribal governmental planning and organization relating to administration of health care programs (conducted to the satisfaction of the Indian tribe and prevent conflicts of interest) Tribal resolution required.Tribal resolution required. Demonstrated financial stability and financial management capability for three years (no uncorrected significant and material audit exceptions).Demonstrated financial stability and financial management capability for three years (no uncorrected significant and material audit exceptions).

Title V compacts  Planning grant may be available: must meet resolution and 3-year audit requirements to receive grantmust meet resolution and 3-year audit requirements to receive grant grant not required to participate in Title Vgrant not required to participate in Title V grant may cover costs of actual negotiations alsogrant may cover costs of actual negotiations also  Up to 50 new tribes per year; tribal organizations and consortia eligible (definition of Indian tribe incorporates such entities).

Title V compacts  Compact and funding agreement: Redesign and reallocation not restricted, provided eligibility of beneficiaries not affected.Redesign and reallocation not restricted, provided eligibility of beneficiaries not affected. Compact term indefinite; funding agreements indefinite (or until new agreement negotiated).Compact term indefinite; funding agreements indefinite (or until new agreement negotiated). Withdrawl provisions.Withdrawl provisions. Partial retrocession authorized; regaining of mature contract status.Partial retrocession authorized; regaining of mature contract status.  Reassumption processes: Imminent endangerment of public health.Imminent endangerment of public health. Gross mismanagement.Gross mismanagement. Hearings and Secretarial burden of proof.Hearings and Secretarial burden of proof.

Title V compacts  Funding: Timeframe for transfer specified.Timeframe for transfer specified. Prompt Pay Act and interest/income provisions.Prompt Pay Act and interest/income provisions. Carry-over of funds.Carry-over of funds. Stable base funding.Stable base funding.  Budget Request Requirements: Shortfalls.Shortfalls. Level of need funded.Level of need funded. 30-day tribal comment period on report.30-day tribal comment period on report.

Questions? Thomas L. John, Administrator Division of Self Governance The Chickasaw Nation (580)