Following the denial of its 2002 request, the Tribe filed suit in federal court to challenge BOR's interpretation of mandatory self-determination contracts under the ISDEAA. The Tribe specified five Trinity River restoration activities for which it had been denied mandatory contracts: sediment transport monitoring, channel rehabilitation site physical monitoring, rehabilitation site biological monitoring, mainstem outmigrant monitoring, and participation in the Channel Restoration Subcommittee.
(551) It first examined whether the district court was correct to conclude that the Trinity River restoration programs did not fall within the mandatory contracting provisions of the ISDEAA. The ISDEAA requires the government to enter into contracts with tribes for the planning, conduct, and administration of federal programs which are "for the benefit of Indians because of their status as Indians." (552) In addition, the ISDEAA provides for a second class of contracts that the government may use its discretion to rind.
Programs which "collaterally benefit Indians as a part of the broader population" but are not "specifically targeted" at the Tribe are not eligible for mandatory funding under ISDEAA. (557) While the Tribe is a beneficiary of the restoration activities, Congress did not "specifically target" the Tribe to perform the restoration work.
The river restoration projects for which the Tribe requested funding were not intended for the Tribe's exclusive benefit, and thus did not meet the criteria for mandatory serf-determination contracts under the ISDEAA.
(60.) Virtually all Alaska tribes contract or compact with the Bureau of Indian Affairs and Indian Health Service, either directly or through tribal consortia, to provide services to their members under the ISDEAA. According to the National Congress of American Indians (NCAI), as of January 2004, funding obligated to tribal governments and consortia in the form of self-determination contracts or self-governance compacts comprised approximately $412 million from the IHS and $93 million from the BIA.
The Department of the Interior's Office of Self-Governance analyzed data from fiscal year 2002 regarding 23 separate ISDEAA Title IV Compacts and Funding Agreements administered on behalf of 170 tribes.
103-374, at 1 (1994) (report accompanying 1994 ISDEAA amendments and noting that "[t]he policy of self-determination has proven to be very successful"); S.
Like the ISDEAA, the ICWA provides for the displacement of existing governing institutions--in this case state child welfare agencies and state courts--by tribal institutions.(289) By adopting these provisions, Congress expressly restricted the exercise of state jurisdiction over certain child custody matters, displacing the states from their traditional role as parens patriae for juveniles in need of court supervision.(290)
The ISDEAA, the ICWA, ARPA, and NAGPRA demonstrate Congress's commitment to ensuring a tribal role in management and decision making concerning resources of critical importance to the tribes.
The basic structure of the ISDEAA involves tribal contracting with federal agencies to assume the responsibilities for programs operated for the benefit of tribal people.
A comanagement approach following the ISDEAA model would involve tribal contracting of programs or components of certain programs, within those federal land and resource management agencies having responsibility over the habitat and resources upon which tribal reserved rights depend.(479) The initial step in such a process would be the identification of such programs or the components of those programs.
First, Congress should establish certain limitations on agency discretion to refuse tribal contracting, much as it was ultimately forced to do with the ISDEAA.(480) The legislation should clearly establish the criteria a tribe would need to meet in order to contract a program (including administrative capability requirements and demonstration of the connection and relevance of the proposed contracted program with the tribe's reserved rights).