Legislature(2019 - 2020)DAVIS 106
02/25/2020 08:00 AM House TRIBAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Indian Self-determination Act | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON TRIBAL AFFAIRS
February 25, 2020
8:02 a.m.
MEMBERS PRESENT
Representative Tiffany Zulkosky, Chair
Representative Bryce Edgmon, Vice Chair
Representative Dan Ortiz
Representative Dave Talerico
Representative Sarah Vance
MEMBERS ABSENT
Representative John Lincoln
Representative Chuck Kopp
COMMITTEE CALENDAR
PRESENTATION: INDIAN SELF-DETERMINATION ACT
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
REBECCA PATTERSON, Attorney
Sonosky, Chambers, Sachse, Endreson & Perry
Juneau, Alaska
POSITION STATEMENT: Presented a PowerPoint on the Indian Self-
Determination Act.
ACTION NARRATIVE
8:02:40 AM
CHAIR TIFFANY ZULKOSKY called the House Special Committee on
Tribal Affairs meeting to order at 8:02 a.m. Representatives
Edgmon, Ortiz, Talerico, Vance and Zulkosky were present at the
call to order.
^PRESENTATION: INDIAN SELF-DETERMINATION ACT
PRESENTATION: INDIAN SELF-DETERMINATION ACT
8:03:19 AM
CHAIR ZULKOSKY announced that the only order of business would
be a presentation on the Indian Self-Determination Act.
8:03:35 AM
REBECCA PATTERSON, Attorney, Sonosky, Chambers, Sachse, Endreson
& Perry, gave a PowerPoint presentation [hard copy included in
the committee packet] on the Indian Self Determination and
Education Assistance Act (ISDEAA). She informed the committee
that she worked with tribes and tribal organizations in all
matters relating to the Act, including tribes in the beginning
stages that have not contracted or compacted before and want
help walking through the process all the way to assumption of
programs.
MS. PATTERSON stated that the ISDEAA was first introduced in
1970 by President Richard Nixon in a speech to Congress and
followed an era called "Termination," a federal policy toward
tribes which basically sought to do away with tribal status and
"hope everything [went] well." President Nixon swung the
pendulum the other way, and instead of removing tribes' status,
he turned the control over those programs that served tribal
members to the tribes themselves. After five years, the ISDEAA
was borne.
MS. PATTERSON informed the committee of the three provisions of
the Act: first, it required that the U.S. Secretary of the
Interior and the U.S. Secretary of the Department of Health and
Social Services would have to contract with tribes if tribes
requested it; second, it allowed tribes to contract with the
Bureau of Indian Affairs (BIA) for the administration of
Johnson-O'Malley Act [enacted into law 1934] education funds,
which previously had gone to states, and allowed for Public
Health Service personnel to be detailed to tribal organizations,
enabling tribes to utilize existing staff and eliminating the
need for them to start from scratch; and third, it provided
civil benefits to civil federal employees transferring to work
for tribes.
8:07:28 AM
MS. PATTERSON said the ISDEAA was a revolutionary idea and
"there was a lot of back and forth," but since 1975 it has been
the bedrock between tribes and the federal government. She
added that amendments and changes have only strengthened the
pro-tribal provision. Ms. Patterson directed the committee's
attention to slide 2 of the PowerPoint, entitled "The ISDEAA in
Parts," which lists the "Five Titles" of the original 1975
ISDEAA. Title I is Self-Determination Contracting. She paused
to explain that contracting and compacting are the same general
idea: the federal government is providing services, and they
transfer control, authority, and funding all over to the tribe.
Title I also contains details about funding as well as a model
contract.
MS. PATTERSON explained Title II, Contracts with States, which
refers to the Johnson-O'Malley Act funding; Title III refers to
Indian Education, again in the 1975 version of the Act. The
first three provisions, under slightly different titles, formed
the basis of the original ISDEAA. In 1994, Ms. Patterson
continued, almost 20 years later, the U.S. Department of the
Interior (DoI) Self-Governance appeared [Title IV]. A bit more
language to add detail and get around what had been obstacles
was added for Title V's Self-Governance in 2000. The idea
behind self-governance, she explained, as opposed to self-
determination contracting, was to give tribes even more
flexibility and even more control, and to remove paternalistic
oversight by the federal government. When the BIA or Indian
Health Service (IHS) were running programs, they could have the
tendency to all look alike, whereas letting tribes take over
enforces local autonomy, Ms. Patterson explained.
8:12:24 AM
MS. PATTERSON directed attention to slide 3, entitled "Self-
Determination and the Trust Responsibility." Trust
responsibility refers to the government's responsibility to
Native people to provide and uphold obligations which were set
by treaties for tribal land, executive orders, statutes, court
decisions.
8:13:54 AM
MS. PATTERSON moved on to slide 4, "Benefits of Compacting," in
which it is pointed out that two of the main benefits are
flexibility in carrying out programs and funding. In terms of
flexibility, Ms. Patterson pointed out that it is imperative to
let tribes conduct matters their own way. There is no contract
to which a tribe must strictly adhere; the tribe may choose for
itself the correct way to conduct business. She gave an example
of this by looking at a health context. Funding from the
federal government comes in different line items, such as mental
health and dental. Certain regions may choose to redistribute
these funds differently than others, giving more to one and less
to another.
8:17:06 AM
MS. PATTERSON next looked at what funding meant in terms of a
benefit of compacting. Because compacts are indefinite and
funds can carry over from year to year, there is more scope for
long-term planning, she informed the committee. She then
pointed out the annual IHS grants available to help tribes with
planning and negotiation. If a tribe faces a new challenge such
as setting up a hospital, these grants will prove very useful
from hiring experts and staff to figuring out building systems
to negotiating with agencies, she imparted. "Pre-award and
startup costs," the last bullet point on slide 4, refer to a
one-time grant to help get the new venture off the ground.
8:19:11 AM
MS. PATTERSON moved on to slide 5, "Eligibility for
Contracting." Title I refers to the fact that any tribe is
eligible; Titles IV and V refer to audits, which must show three
years of financial stability and management capability. Audits
will spot funding or expenditure issues the tribe might have,
Ms. Patterson explained. Also, entry into a contract must be by
formal request, and planning must have been completed "to the
satisfaction of the Indian tribe."
8:20:41 AM
MS. PATTERSON moved on to slide 6, "Funding available," on which
the key point whether a tribe is in Title I self-determination
or Title V self-governance compacting, everyone gets the same
amount of money. The base amount or program funding, she
stated, is called the "Secretarial amount" as it is what the
secretary would otherwise have provided, she explained. In
other words, whatever funding is being used for a local program
is what is designated for a particular tribe.
MS. PATTERSON informed the committee that in 1975 [with the
inception of ISDEAA], tribes were allocated the funding that was
being used by the federal government to run a particular
program. It became clear that tribes were not able to make use
of the resources in the same way as the government because
tribes had other costs that the federal government either didn't
have or was able to cover with the use of other resources. This
resulted in a reduction of program funding because the federal
government in some cases had to use funding to pay for other
costs. Because of this, Congress added a special type of
funding called Contract Support Costs, which cover retirement,
health insurance, training, and other personnel-related fringe
costs. She also explained indirect cost rates, which are not
capped as grants often are, are tied to the yearly audits, and
are negotiated separately with the federal government.
8:23:56 AM
CHAIR ZULKOSKY asked Ms. Patterson to speak more about what is
included in indirect cost rates, why they are necessary, and how
they might be negotiated.
8:24:18 AM
MS. PATTERSON replied that an indirect cost rate is a ratio:
there is an indirect cost pool over an indirect cost base. What
goes into the pool, she continued, is any cost that services
multiple programs wherein it is too burdensome to figure out how
much goes into any one program. She gave as an example a
tribe's human resources (HR) department, which may also be
hiring for the education program and the agriculture program, so
the department functions as an umbrella for different programs.
MS. PATTERSON informed the committee that often within a pool is
HR, procurement, finance, and other business office functions.
In the base, then, she continued, is the program funding. A
small tribe may only have one or two programs, only contracting
with the BIA to do fire suppression or forestry. A large tribe
may run its own law enforcement and detention centers and have
funding coming in from many different sources including the IHS.
The indirect cost rate is the result of the total pool of
expenses over the total base, the ratio of which may be 30
percent, which is then applied to programs in the base
proportionally. If a tribe's biggest program is its health
program, she offered, and takes about 50 percent of the tribe's
funding, the idea is that the health program will then pay 50
percent of the shared pool.
8:27:10 AM
MS. PATTERSON summed up her answer by adding that the indirect
cost rate is applied to the amount of funding in the base. A
lot of grants get capped at 10 or 15 percent, but costs still
exist: HR staff must be paid, audits must be completed, and
there are other expenses such as insurance. What ends up
happening, Ms. Patterson explained, is that individual programs
end up paying expenses beyond the capped rate, and the more the
program has to pay for indirect administrative or overhead
costs, the less it has for the actual program.
MS. PATTERSON used education, with a tribal rate of 30 percent,
as an example of how indirect cost rates are negotiated: if the
program must "tap indirect" at 15 percent, it would only have 15
percent left for the actual education program. This would be
noticeable in that fewer teachers would be able to be hired and
fewer materials would be able to be purchased. The overhead
would stay the same no matter what, she explained: the
difference is whether overhead costs come out of indirect
funding or out of the program.
MS. PATTERSON explained how indirect cost rates are negotiated:
a proposal, tied to outside audited expenditures, is usually
sent to the DoI Interior Business Center (IBC), after which a
rate is negotiated. Most tribes have what is called a fixed
rate with carry-forward [an indirect cost rate that applies to a
specific time period, usually the organization's fiscal year],
Ms. Patterson related. In 2020, she gave as example, a proposal
would be submitted to IBC, there would be a negotiation process,
and a final rate would be determined for 2020. With regard to
the "carry-forward" portion of the "fixed with carry-forward,"
the end of the current year's expenditures are looked at and an
indirect cost rate adjustment is made.
MS. PATTERSON added that the cost rate adjustments are usually
not huge adjustments; since the adjustments are based on
expenditures, unless there is some sort of anomaly, expenditures
are pretty uniform from one fiscal year to the next.
8:31:19 AM
CHAIR ZULKOSKY asked Ms. Patterson why the indirect rate is not
experienced the same within the state and the federal
government.
8:32:08 AM
MS. PATTERSON replied that it was easy to look at in terms of
the law. If the BIA were to be sued, the U.S. Department of
Justice (DoJ) would assign lawyers to work on the case. The DoJ
does not bill the DoI by the hour for that work. When a tribe
has a question for a lawyer, it generally pays legal fees by the
hour to find answers, she said. Because of this, legal fees are
usually included in the pool, she said. Most tribes, unless
they are very large, do not self-insure, so they also need to
purchase insurance, as well as pay auditors, on a yearly basis.
In these ways, governments have a lot of internal capacity
whereas tribes pay piecemeal.
8:35:14 AM
MS. PATTERSON, referencing slide 7, said there are federal
employees assigned to work for the tribe. This is important,
she explained, because federal benefits are quite good, and if
an employee would have to entirely transfer to the tribe, that
employee would have to cease contribution to his or her
retirement fund. The tribe reimburses the government for the
use of these employees, she explained. Other benefits are that
tribal members receive government rates when they travel, as
well as access to preferred vendor networks for pharmaceuticals
and supplies. The benefit to tribal members is they do not have
to pay another commercial entity's markup but instead have the
same access as federal workers.
MS. PATTERSON informed the committee that a tribe is able to buy
back unused services from the BIA and keep program income to
achieve program objectives. Especially in health care, she
explained, where there is sometimes extra program income, the
tribe may use the income to build new facilities or hire new
staff as it sees fit.
8:39:23 AM
MS. PATTERSON touched on Federal Tort Claims Act (FTCA)
coverage, which states in this context that the tribe does not
have to purchase a large employee liability/malpractice-type
policy; instead, one will be provided to the tribe by the
federal government the same as it is provided to its own
programs. Last, "lease funds for operation and maintenance of
facilities" refers to the buildings in use by the tribe; the
tribe is allowed to propose and negotiate a lease with the
federal government in the hope of being compensated for that
building's operation and maintenance.
8:40:26 AM
MS. PATTERSON, moving on to slide 8, "Government Monitoring,"
told the committee that under Title I, the government retained
more control, asking for quarterly financial reports, annual
program reports, and site visits. In this way, she explained,
the federal government has a lot more input on how the tribe is
running the program. This is why, when self-governance was
created in Title IV and Title V, the government only intervenes
when there is an audit.
8:41:38 AM
MS. PATTERSON brought the committee's attention to the slide 9,
entitled "Tribal Liability." Historically, it was important to
note, she said, that tribes would get insurance. However, it
had been difficult for them to find insurance on the commercial
market, so it had been decided that when tribes were providing
services that fell within the contract, they would be covered by
the FTCA. A tribe may carry "just in case" policies, but these
policies are not required. This is very important to note, she
stated, because in the event of a lawsuit, the federal
government would step in and become the defendant.
MS. PATTERSON noted that under the ISDEAA, there is also no
impact to sovereign immunity. In other words, a government
cannot be sued without its permission, and it would demean
tribes' status as a government, and the government-to-government
relationship, to ask tribes to waive their immunity.
8:45:00 AM
REPRESENTATIVE EDGMON asked, on the issue of sovereign immunity,
how a workplace environment incident, such as a sexual
harassment claim, would factor in, in terms of a tribe's ability
to waive its immunity.
8:45:48 AM
MS. PATTERSON answered that tribes often have their own dispute
resolution process, and if there are those claims, then there is
also the means for claimants to go through a judicial,
grievance, or dispute resolution process to make a claim.
Tribes also have limited waivers, as the state and the federal
government have, for certain claims, she added. If a tribe is
contracting under the ISDEAA, and a claim is brought by any
employee, if it were for something within the scope of
employment and services, then the federal government would step
in and handle the claim, she related. She added that a gray
area would be if someone were not acting within the scope of
their employment; an incident that happened at a bar, for
example, or somewhere otherwise outside of the workplace or work
hours, would not fall within the system, because the situation
would be wholly separate from the contract.
8:47:44 AM
CHAIR ZULKOSKY asked Ms. Patterson to explain to the committee
why waiving sovereign immunity became problematic within tribal
negotiations.
8:47:57 AM
MS. PATTERSON answered that sovereign immunity is a key aspect
of being a sovereign and dealing in a government-to-government
relationship, as opposed to dealing with a private contractor.
A government has the right to decide when it will consent to be
sued and often where, she added. Many tribes have their own
laws via constitution or ordinance, she continued, which state
when they may or may not waive sovereign immunity. To ask for a
blanket waiver, as has been done in the past, is to
automatically decrease the number of willing compactors. Ms.
Patterson recommended other ways to solve a problem for which a
waiver is being asked. In some cases, she offered, the federal
government or the Department of Law (DOL) in Alaska can handle
claims, which does not diminish tribes.
8:51:07 AM
MS. PATTERSON moved to slide 10, "Tribal Input". Every title
[within ISDEAA] has negotiated rulemaking; regulations are not
made unilaterally, but most of the time within work groups
comprised of both tribal and federal members. She then gave an
example of what this looked like in practice. She added that
each agency has its own consultation policy.
8:53:31 AM
MS. PATTERSON moved on to slide 11, entitled "State v. Federal
Compacting." She spoke of funding again at this point:
supplemental funding that may be needed so that the program
funding is not diluted; in the federal government scheme,
contract support costs; and as funding for facility maintenance
and operations. The latter is especially important in Alaska as
building maintenance can be expensive. In terms of liability
coverage, the federal scheme uses the FTCA and DoJ defends
actions. On the state side, DOL may again step in, same as
happens when the state runs programs. She noted the programs
already in place that add no workload and are run by different
service providers.
MS. PATTERSON asked what type of program standards and
flexibility would be imposed, and she stressed that the idea
would not be to have someone doing the exact same work the state
was doing in a different way, but instead to ensure the tribe
would still be able to deliver services the way it wanted to
deliver them. She said thinking about monitoring and oversight
is important if it is desired the program provide input, yet
care must be taken so as not to develop a "monitoring and
oversight bureaucracy." As tribes take over more programs that
were being handled by the DoI and IHS, the size of those
agencies in the government shrink. Federal employees still
perform some inherent functions, such as signing their own
contracts, but otherwise everything should transfer, Ms.
Patterson stated, in accordance with the ISDEAA.
8:58:14 AM
MS. PATTERSON reiterated that tribes are different entities than
private contractors and corporations, which is important to keep
in mind when talking about compacting, tribes having just as
much autonomy and control and authority as the former when they
would choose whether or not to contract or compact.
8:59:36 AM
CHAIR ZULKOSKY asked Ms. Patterson, regarding consultation
policies on slide 10, whether the expectations between the
federal government and tribes were articulated explicitly within
the authorizing language of the ISDEAA, as consultation policies
were part of the self-governance and self-determination
relationship.
9:00:09 AM
MS. PATTERSON replied that there was language in the ISDEAA
regrading dialogue with tribes, as well as specific provisions
regarding tribes not being bound by policy and how much input
tribes must have. Each tribe also has its own consultation
policy detailing how individual consultations within a
particular tribe will be consulted. The ISDEAA provides the
framework and makes it easier to have basic rules for
contracting and compacting in statute. Ms. Patterson pointed
out again that there is a model contract in Title I that can be
looked at for reference with regard to desired provisions in
contracts being created. She added that after having been
involved with the Alaska Tribal Child Welfare Compact, it is
more difficult when there is no statute that guides, as every
issue must be started from scratch.
9:02:26 AM
CHAIR ZULKOSKY asked Ms. Patterson to underscore, given the
current legal landscape in Alaska, important considerations
moving forward as conversations take place regarding state and
tribal compacting.
9:03:17 AM
MS. PATTERSON said that she thought the main thing was that the
ISDEAA has always been applied in Alaska as it has been in the
Lower 48, so nothing about Alaska would change, but local tribal
communities know their own members best and the best way to
serve them to improve outcomes and services. Respect for tribal
cultures and authority were main takeaways, she reiterated, as
well as for the principle that tribes know the best way to serve
their members. She pointed to the Alaska Tribal Health System
as a "shining example" of the way in which tribes have been able
to take something that was run by the federal government and
transform it into something beyond what people imagined.
MS. PATTERSON went on to say that a tribe cannot be given fewer
resources than were given to the state and yet be expected to
produce more. She listed the indirect costs and those
associated with audits again for members' reference. She said
consideration needs to be made so that funds available for
service delivery are not reduced and mechanisms are in place to
support that contract and service delivery. She mentioned
liability again and admitted that it may be an area of
discomfort for the state in terms of asking tribes to waive
immunity. The federal government would need to accept the
liability from a tribal member just as they would from a federal
supervisor.
9:06:59 AM
MS. PATTERSON added that tribal input should not be a one-way
process. She said the idea of compacting and transforming
systems and getting better outcomes is based on partnership and
the fact that tribes have meaningful input and should be at the
table.
9:07:53 AM
REPRESENTATIVE VANCE asked Ms. Patterson what the difference
would be working with the tribes when compared to working with
local municipalities.
9:09:14 AM
MS. PATTERSON replied that it must be asked whether the state is
meeting its responsibilities and obligations to all of its
citizens - Native or non-Native. If the answer is that it is
not meeting the obligations, then it can then be asked whether
partnering with tribes would be a better way. She pointed out
that villages in Alaska are mostly tribes, and a tribal
affiliation is a political affiliation/community and possibly a
village, but it is not the same as a municipality, in that the
latter is a subdivision of the state whereas the former is a
totally separate government.
9:12:10 AM
CHAIR ZULKOSKY asked Ms. Patterson to discuss Alaska's being a
Public Law 280 (PL 280) state and what that means with regard to
the ISDEAA and ongoing conversations around state and tribal
compacting.
9:12:41 AM
MS. PATTERSON replied that PL 280 is a law that affects criminal
jurisdiction, and in many ways it is not relevant to the ISDEAA
but has to do with reservations having the federal government as
the main party besides tribal jurisdiction that is responsible
for prosecuting crime. The state steps in and prosecutes crime,
and in communities where this happens, the role of tribal
government may be more limited. The ISDEAA has to do with
programs and services that are civil in nature, PL 280 doesn't
have much to do with the state compacting process. She
concluded that Alaska is a state that has jurisdiction to
prosecute crime and is another example of the state having an
obligation to tribal communities.
9:15:18 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Tribal Affairs meeting was adjourned at
9:15 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Self-Determination and Self-Governance under the ISDEAA 2.24.2020.pdf |
HTRB 2/25/2020 8:00:00 AM |