Congress passed the Indian Self-Determination and Education Assistance Act (ISDEAA) in 1975 to implement its tribal self-determination policy. The Act began to loosen the tight grip of the Bureau of Indian Affairs (BIA) and several other federal agencies, such as the Indian Health Service (IHS), on the daily life of Indians and their tribal governments. Prior to passage of this law, the BIA and other federal agencies minutely regulated the delivery of educational, health, and a myriad of other services to the Indian people. The BIA, for example, operated a number of boarding schools, some for many years, with little meaningful input from tribal members or the tribal governments themselves. Some of these schools are still in existence.
Although this law deals primarily with the delivery of educational services, nearly all other federal support to Native Americans is also within the purview of the Act. Such services include agriculture, health care, law enforcement, and other programs in support of tribal government.
Essentially, the ISDEAA permits the tribes themselves or any group chartered by the tribe's governing body to assume the responsibility for delivering federal services to tribal members. Contracting organizations other than the tribe itself must meet certain requirements before they are eligible to enter into such agreements with the federal government. Elementary and high schools located on a reservation are among the most common organizations that have so-called 638 contracts (named after the number of the Indian Self-Determination and Education Assistance Act, Public Law 93–638). Where the BIA itself operates boarding or day schools for Indian students, it oversees every detail of their operation. Under the Act, the tribes and local tribally chartered schools contract with the BIA for it to take over school operations. The BIA or other agency allocates a fixed sum to the contractor, which must then furnish the services to the tribe.
This law also strengthens the Johnson-O'Malley (JOM) Act of 1934 by requiring all off-reservation schools that receive federal funding for the education of Indian children to involve Indian parents in decisions over how those funds shall be used. Local committees of Indian parents have considerable authority over how local schools may spend JOM monies.
The Act is not without its critics, however. Although tribes and allied organizations now deliver these services using their own employees, buildings, and equipment, the federal government retains significant oversight over the contracts. The government must approve each contract and must be provided with data regarding accounting practices, equipment, personnel, and other important details of the proposed contract. If the government is not satisfied with the agreement, it may reject it despite local community support. The contractor may, under the Administrative Procedures Act of 1946, appeal that rejection to the highest levels of the executive branch and ultimately to the federal courts. Such appeals, of course, are lengthy and expensive.
Some critics see the law as one step back toward the termination of federal responsibility for Indian services. They reason that the next step beyond turning over the running of federal programs to the tribes is eventually to end that assistance to the tribe entirely. Nonetheless, the current trend is to expand the number of federal programs to be operated by Indian tribes.
Later amendments to the law established a pilot project for ten tribes to take over the activities previously conducted for them by the BIA and IHS. In addition to those already mentioned, these endeavors include resource conservation, land use planning and zoning, among others. Many tribes have only limited 638 contracts with the government. These agreements must be negotiated one at a time. These tribes chosen for the pilot program administer all federal services themselves. Additionally, unlike the usual 638 contracts, the tribes chosen for this program have much more latitude in designing or altering their programs to meet the needs of their people and in reallocating the funds among the different programs. These 638 contracts are similar to block grants, in which recipients may use the funds in nearly any way they wish, subject only to some very limited restrictions.
Daniel R. Gibbs