a 5 July 1996 web-downloaded-local copy of
"What is Indian Self-Determination?"
by Samuel R. Cook
in RED INK, Volume 3, Number One (1 May 1994)

What is Indian Self-Determination?

Samuel R. Cook

It is truly amazing how far a little benign rhetoric can go. For nearly thirty years, tribal leaders, federal policy-makers, and attorneys have described the fundamental tenet of federal Indian policy as Indian "self-determination." These two words have promising and powerful overtones. But precisely what does self-determination mean?

Ideally, tribal leaders should know very well the full meaning and implications of self-determination. One would automatically gather that the term implies that Indians are the pivotal actors in a policy under that name. However, federal policy-makers (and tribal leaders on occasion) have frequently injected the term self-determination into legislation, policy statements, and opinions with random fervor. It is as though self-determination is a magical incantation which, by its mere utterance, will render a policy perfect. In truth, the implications of self-determination are manifold. Rarely, however, are all of these implications considered in the development of federal Indian policy.

The term self-determination seems to have first entered the vocabulary of Indian affairs in 1966, when the National Congress of American Indians (NCAI) convened to develop an agenda to counter the threat of termination policy. Termination will be remembered as the last consolidated federal effort to assimilate Indians into the mainstream of American society. Reaching its zenith in the 1950s, termination policy purported to extinguish, once and for all, the so-called trust relationshipÑthat is, the political relationship of good faith--between the federal government and the Indian tribes. Thus, it must be concluded that when the members of the NCAI evoked the term self-determination, they were asserting the right of natives to be culturally distinct as well as politically autonomous.

It can be said, then, that in the context of Indian affairs, self-determination is a tribally-derived term. By the same token, the concept of self-determination entails a totality of tribal goals. These goals can be placed in three interrelated categories: 1) tribal self-rule; 2) cultural survival; and 3) economic development. The tribal pursuit of these goals is clearly reflected in the most visible issues in Indian affairs todayÐreligious freedom and gaming, for example. But policy-makers often fail to realize the profound manner in which these goals are necessarily interrelated. This problem will be discussed in detail below.

If self-determination is a tribally-derived concept reflecting tribal goals, then it is only logical that self-determination policy should reflect native opinions and interests. Thus, a fourth tenet must be included in the definition of self-determination--Indian participation within and without the federal policy--making process. Federal legislation and other policies toward natives should be built upon Indian impetus, and when possible, natives should draft these policies. Moreover, the responsibility for implementing these policies, provided they do reflect the genuine will of tribes, rightly belongs in the hands of natives. The latter tenet has, unfortunately, been severely crippled by the powerful jaws of federal bureaucracies, notably the Bureau of Indian Affairs (BIA).

Self-determination should not, however, be confused with sovereignty. Rather, self-determination policy is ideally a means by which tribes can realize the full potential of their sovereign powers. Sovereignty may also be viewed in terms of political, cultural, and economic autonomy. Self-determination is the potential means to that end. It is imperative, however, that policy-makers (including tribal leaders) afford equal consideration to all of the tenets behind self-determination.

The plague of the so-called Self-Determination Era (1960 to present) has been the piecemeal approach that policy-makers have exercised in formulating Indian policy. The executive branch, Congress, and the courts have perceived of and articulated disparate interpretations of self-determination at various times. Cooperation within and between the various branches has been tenuous, if not virtually non-existent with regard to Indian affairs, resulting in gridlock. A brief examination of some of the major executive and congressional Indian policy measures during the Self-Determination Era will illuminate these disparities and fragmented approaches.

In a 1968 Special Message to Congress, President Lyndon B. Johnson became the first federal official to use the term self-determination in reference to Indian policy. The basic Indian policy of both the Kennedy and Johnson administrations, however, was to highlight the eligibility of Indian communities for economic and social programs under the umbrella of the "War on Poverty" legacy. These initiatives, though beneficial to tribal communities, would indicate that the Kennedy and Johnson administrations were more concerned with Indians as impoverished minorities than as members of distinct political (national or quasi-national) entities.

Shortly after Johnson's message, Richard Nixon seized the executive helm. Native peoples were extremely wary of Nixon, a Republican who had served as Vice-President during the high tide of termination. Ironically, Nixon exhibited a greater concern for Indian affairs than any president in the twentieth century.

In July of 1970, Nixon issued a Special Message to Congress in which he made his Indian policy clear. After a stark repudiation of termination, the President asserted that : "This, then, must be the goal of any...national policy toward the Indian people: to strengthen the Indian's sense of autonomy without threatening his sense of community." Accordingly, Nixon proposed a number of legislative measures to bolster tribal self-rule, cultural survival, and economic development. These included the restoration of the sacred lands of Blue Lake to Taos Pueblo (a substantive act of justice as well as a symbolic gesture of good faith), measures for placing greater control of education in the hands of Indian communities, and legislation defining procedures by which tribes might assume administrative control of federal programs without extinguishing the trust relationship.

In words and substance, the Nixon administration essentially developed a blueprint for self-determination policy. Under Nixon, the BIA began to make contracts with tribal governments and communities for the tribal control of federal services and programs. Although these procedures had yet to be formally codified, many tribes found they were able to administer social and economic programs in ways that would more accurately meet the needs of their communities. Nixon also evoked the opinions and actions of natives in his policy initiatives to an unprecedented extent. This partially reflected the tenor of the times. Native political activity in the national sphere had reached an all-time high, and its visibility made it imperative that policy-makers respond. Yet however progressive, Nixon's Indian policy initiatives were unfortunately complicated by the bane of the Nixon administration. That is to say, Nixon's policies tended to be too liberal for many of his Republican lieutenants to substantively endorse.

During the Nixon years, however, and continuing through the 1970s, tension between the executive branch and Congress concerning Indian affairs was minimal. It is no wonder, then, that such landmark pieces of legislation as the Indian Self-Determination and Education Assistance Act of 1975 (PL 93-638, 88 St. 2203) became law. Although PL 93-638 formally codified the procedures for the tribal contracting of federal programs, it did not reflect the full intent of Nixon's original legislative package to that end. Nixon advocated a break from federal paternalism while emphasizing the perpetual political relationship of good faith between the tribes and the U.S. Public Law 93-638 established a legislative vehicle through which tribes might assume greater control over governmental programs without the threat of termination (tribes may retrocede such contracts back to the federal agencies at any time). But such procedures continued to require the approval of the Secretary of Interior (or other departments handling Indian programs), and the federal bureaucracies were afforded a great deal of arbitrary power in determining the terms and feasibility of such contracts.

In attaching the Title II education procedures to PL 93-638, Congress officially recognized the important correlation between tribal self-rule and cultural integrity. However, Title II, though initially intended to aid Indian parents in controlling their children's education, did little more than increase funding for federal and public schools with Indian pupils. In the same manner, Title II created a wider range of disparate and unrelated channels for Indian education. Title II contrasted sharply with Nixon's recommendation that Indian schools be fully accountable to the communities they served.

In short, PL 93-638 failed to provide for adequate congressional and tribal oversight for the activities it sanctioned. Nonetheless, the act has generated a great deal of tribal governmental activity since its inception, and its overall effects have been positive.

While the Ford and Carter administrations will not be remembered for any overtly pejorative Indian measures, their positions on Indian affairs were seemingly apathetic compared to that of Nixon. The 1980s, however, saw a renewed, albeit disturbing, presidential interest in Indian policy. In 1981, Ronald Reagan entered the presidency with vague promises of bolstering Indian self-determination. It was soon evident, however, that the President's words were hollow. First came drastic budget cuts in every realm of Indian affairs. The results were immediately evident. For example, between 1981 and 1983, unemployment in Indian Country soared from 40 to 70 percent as a result of cuts in the Comprehensive Employment and Training programs (CETA, 87 St. 839). In 1983, Reagan issued his official Indian policy statement which made it clear that he intended to include tribes in his domestic policy of "New Federalism." Although Reagan claimed to reaffirm Nixon's Indian policy, he regarded tribal governments as local entities (at best, comparable to townships) which should assume greater financial responsibility for social and economic programs. The private sector, so the President assumed, would automatically provide the economic infrastructure for such activities. Thus, Reagan perceived self-determination as meaning economic development vis-a-vis the private sector.

In the meantime, congressional leaders spent their time salvaging the Indian budget and countering many of Reagan's policy initiatives. In early 1987, for example, the BIA (under the direction of Assistant Secretary Ross O. Swimmer, Reagan's ideological kinsman) drafted plans to transfer all federally operated and funded Indian schools to the states. These measures were pursued without consulting tribal officials. Fortunately, news of these plans reached Indian Country before the administration could act, and tribal leaders successfully petitioned Congress to legislatively block such measures.

The Reagan administration, in fact, was notorious for acting on Indian policy without the consent of tribes. Ironically, this tendency spawned positive results. In 1987, the Arizona Republic ran a series of articles entitled "Fraud in Indian Country," which illuminated the deplorable social and economic conditions in Indian Country while highlighting BIA mismanagement. When Swimmer was called before Congress to answer to these allegations, he proposed a pilot program which would allow tribes to receive federal funds directly from Congress, rather than through federal agencies. Perhaps Swimmer's proposal was intended to divert attention from the scandal surrounding him (a Senate investigation was pending), but congressional leaders enthusiastically seized the idea.

Thus, in October of 1987, the Tribal Self-Governance Demonstration Project (TSGDP) was born. Apparently, the idea for the project found its true origin in its first tribal participants (among these were the Quinault and Jamestown S'Klallam Nations of Washington). It is not surprising, then, that the original ten tribes seized the initiative. Initially, the TSGDP was to develop under BIA supervision. However, facing the creative obstacles so characteristic of the Bureau, tribal officials approached congressional leaders such as Senator Daniel K. Inouye (D-HI) and Representative Sidney Yates (D-IL), and demanded that the project be given firm legislative direction. Thus, the TSGDP was incorporated into the Self-Determination Amendments of 1988 as Title III (102 St. 2285). Moreover, the participating tribes successfully petitioned Secretary of Interior Manuel Lujan (under the Bush administration) to establish an Office of Self-Governance, independent from the BIA.

The TSGDP warrants special attention, for it is one of the most revolutionary and progressive pieces of Indian legislation in U.S. history. Title III allocates direct block grants to tribes for the formulation, implementation, and administration of programs previously controlled by federal agencies. Participating tribes still have the option to enter into self-determination contracts, but under Title III they receive federal monies in toto for specific programs. Although these tribes are still accountable to Congress, they are able to effectively bypass the BIA and other agencies, and develop and administer programs in a manner truly compatible with tribal needs. The tribes involved in the TSGDP have drafted all legislation for the project. They have conducted all project research and are currently implementing the programs they have designed thus far. To be sure, many of the participating tribal governments are finding the implementation phase of the project to be one of the most difficult tasks they have ever endured. But what is truly amazing is that Congress has adopted a virtual "hands off" policy in allowing tribes to partake in the project.

While Title III at first appears to be a measure aimed at developing tribal governments, it is also a potential channel for the advancement of tribal cultural and economic interests. Some of the participating tribes, for example, are now able to design and implement their own education programs without conforming to federally-imposed accreditation standards. To date, Title III is a temporary experiment. In 1992, the project was expanded and renewed through 1996 (105 St. 1278). However, if its success endures, there is no reason why Title III should not be permanently codified.

As a current aspect of Indian policy, Title III would appear to indicate a positive future for Indian self-determination. However, it also indicates that Congress has assumed the most visible role in Indian affairs, as it theoretically should by the provisions of the U.S. Constitution. While George Bush did not substantially perpetuate the pejorative Indian policy of the Reagan administration, his administration tended to downplay the significance of Indian affairs. Evidence of this lies in his 1991 Indian policy statement, in which Bush made the ambiguous remark that: "The government-to-government relationship [between the tribes and the U.S.] is the result of sovereign and independent tribal governments being incorporated into the fabric of our nation." How the Indian nations had suddenly been incorporated into the federal system, Bush did not explain. What now remains to be determined is how the Clinton administration will approach Indian policy, and specifically how it will define (implicitly or explicitly) self-determination. Assistant Secretary of Indian Affairs Ada Deer's recent intervention into Oneida tribal governmental affairs is at once enigmatic and disturbing. Enigmatic because Deer's decision to disclaim the legitimacy of a certain tribal leader's political tenure seemingly reflects the desires of the tribe's most traditional faction; disturbing because the very act of intervening in tribal affairs reeks suspiciously of paternalism.

In the meantime, tribes will have to rely increasingly on their advocates in Congress to represent their interests on the national forefront. There is, unfortunately, no guarantee that such advocates will maintain a foothold in Congress.

In retrospect, Congress seems to have been more consistent than the executive branch in formulating self-determination policy. Interestingly, congressional emphasis seems to be most often on tribal self-governance. Occasionally, pieces of major legislation address other specific needs. The Indian Financing Act of 1974 (88 St. 77), for instance, was aimed exclusively at economic development, while the American Indian Religious Freedom Act of 1978 (92 St. 469), though laced with ambiguities, recognized the integrity of native cultures. Perhaps the quintessential (however controversial) piece of self-determination legislation was the Indian Child Welfare Act of 1978 (ICWA, 93 St. 721). The ICWA recognized tribal courts as the primary and ultimate forum for welfare and custody cases concerning native children. In so doing, the act not only recognized the sovereignty inherent in tribes, but also contributed to the economic and cultural future welfare of tribes by providing them with a mechanism to preserve their most precious human resource--their children.

Unfortunately, federal approaches to self-determination policy have all too often been piecemeal. And rarely do such approaches--whether legislative or administrative--consider the totality of tribal goals when practicable. It is interesting to note that in the opening sections of most legislation and regulations concerning natives, painstaking measures are taken to define "Indian," "tribe," and other relevant terms. Perhaps it is time that such lists include a detailed definition of "Self-Determination." Said definition should clearly explicate four tribal goals: tribal self-rule, cultural survival, economic development, and exhaustive Indian participation in the formulation and implementation of the federal policies affecting their lives exclusively.