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BUREAU OF INDIAN AFFAIRS

INDIAN SERVICES

Division of Self-Determination Services


PUBLIC LAW 93 638
The Indian Self Determination

and

Education Assistance Act

of

1975

As Amended


Consists of:
Sections 2 – 9
Title I

Title II

Title III

Title IV

Title V

Title VI
Related Provisions
Selected Inter-Governmental Provisions
Endnotes
Revised: May 1, 2006

NOTE: This document is a compilation of laws that constitute, amend, or modify the Indian Self-Determination and Education Assistance Act. It is also a compilation of court cases that interpret the law.

PUBLIC LAW 93 638

93rd CONGRESS, S. 1017

JANUARY 4, 1975,

AS AMENDED

AN ACT

To provide maximum Indian participation in the Government and education of the Indian people; to provide for the full participation of Indian tribes in programs and services conducted by the Federal Government for Indians and to encourage the development of human resources of the Indian people; to establish a program of assistance to upgrade Indian education; to support the right of Indian citizens to control their own educational activities; and for other purposes.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Indian Self Determination and Education Assistance Act".
Purpose of ISDEAA
The courts in the following cases expressed the view that a purpose of the Indian Self–Determination and Education Assistance Act (ISDEAA) is to give tribes increased control over their own affairs and to shift responsibility for the administration of federal programs to tribes.
In Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 102 S. Ct. 3394, 73 L. Ed. 2d 1174, 5 Ed. Law Rep. 120 (1982), the Supreme Court, Justice Marshall, expressed the view that the Indian Self–Determination and Education Assistance Act (ISDEAA) reflects the federal policy of encouraging the development of Indian–controlled institutions on the reservation. The Court noted that with respect to school construction, the Bureau of Indian Affairs has wide–ranging authority to monitor and review subcontracting agreements between the Indian organization, which is viewed as the general contractor, and the non–Indian firm that builds the facilities. The ISDEAA promotes tribal independence and economic development.
In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S. Ct. 2378, 76 L. Ed. 2d 611 (1983), the Supreme Court, Justice Marshall, expressed the view that the federal government is firmly committed to the goal of promoting tribal self–government, a goal embodied in numerous federal statutes, including the Indian Self–Determination and Education Assistance Act (ISDEAA). The Court stated that Congress' objective of furthering tribal self–government means more than encouraging tribal management of disputes between members, but includes a larger goal of encouraging tribal self–sufficiency and economic development.
In Oklahoma Tax Com'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991), the Supreme Court, Chief Justice Rehnquist, expressed the view that the Indian Self–Determination and Education Assistance Act (ISDEAA), 25 U.S.C.A. § § 450(a) to (n), and other federal statutes reflect Congress' desire to promote the long–established principle of tribal sovereign immunity. The ISDEAA further reflects Congress' desire to promote the goal of Indian self–government, including its overriding goal of encouraging tribal self–sufficiency and economic development.
The Indian Self–Determination and Education Assistance Act (ISDEAA), 25 U.S.C.A. § § 450(a) to (n), promotes the long–standing federal policy of encouraging Indian self–determination, giving Indian tribes control over the administration of federal programs benefiting Indians, stated the court in FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 40 Cont. Cas. Fed. (CCH) ¶ 76825 (8th Cir. 1995). Under a self–determination contract under the ISDEAA, 25 U.S.C.A. § 450f, b(j), the federal government supplies funding to a tribal organization, allowing the tribal organization to plan, conduct, and administer a program or service that otherwise would have been provided directly by the federal government.
The court in U.S. v. Adair, 913 F. Supp. 1503 (E.D. Okla. 1995), aff'd on other grounds, 111 F.3d 770 (10th Cir. 1997), expressed the view that the purpose of the Indian Self–Determination and Education Assistance Act (ISDEAA), 25 U.S.C.A. § § 450(a) to (n), is to permit orderly transition from federal domination of Indian programs and services to Indian participation in their planning, conduct, and administration. The court stated that all Indians and Indian tribes are no longer dependent wards of the United States government.
In Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997), the court held that the Indian Self–Determination and Education Assistance Act (ISDEAA), 25 U.S.C.A. § § 450(a) to (n), is intended to assure maximum participation by tribes in planning and administration of federal services, programs, and activities for Indian communities. Under the ISDEAA, the Secretaries of the Department of the Interior and the Department of Health and Human Services continue to provide direct services to a tribe until the tribe chooses to enter into a self–determination contract to operate those services. At that point, the Secretaries must transfer resources and control of those programs to the tribe.
The Indian Self–Determination and Education Assistance Act (ISDEAA), 25 U.S.C.A. § § 450(a) to (n), is designed to promote tribal autonomy and self–governance by permitting tribes to operate programs previously operated by the federal government, the court held in Cherokee Nation of Oklahoma v. Thompson, 311 F.3d 1054 (10th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3653 (U.S. Apr. 3, 2003). The court stated that the ISDEAA is designed to ensure that funding for services provided to tribes would not be decreased solely because the tribe had taken over the direct operation of a service program previously operated by the federal government.
Indian Self-Determination and Education Assistance Act (ISDEAA) was enacted to promote tribal autonomy by permitting tribes to operate programs previously operated by the United States. Indian Self-Determination and Education Assistance Act, § 2 et seq., 25 U.S.C.A. § 450 et seq. Walton v. Tesuque Pueblo, 443 F.3d 1274 (10th Cir. 2006).

CONGRESSIONAL STATEMENT OF FINDINGS

[25 USC 450]
Sec. 2 (a) Findings respecting historical and special legal relationship; and resultant responsibilities: The Congress, after careful review of the Federal Government's historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that  
(1) the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self government, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities; and
(2) the Indian people will never surrender their desire to control their relationships both among themselves and with non Indian governments, organizations, and persons.
25 U.S.C.A. § 450a
Application of federal agency's conflict of interest standards to Indian employees
The following authority held that, under the particular circumstances, a federal agency's application of its conflict of interest standards to an Indian employee did not comply with the Indian Self–Determination and Education Assistance Act (ISDEAA).
Where an Indian tribe and tribal member who was a federal employee brought an action against the Department of Health and Human Services for applying general conflict of interest regulations to the employee's political activities, in violation of the Administrative Procedure Act, the court in Mescalero Apache Tribe v. Rhoades, 804 F. Supp. 251, 59 Empl. Prac. Dec. (CCH) ¶ 41797 (D.N.M. 1992), held that the agency's application of its conflict of interest standards to the Indian employee did not comply with the Indian Self–Determination and Education Assistance Act (ISDEAA) because the agency failed to elicit and give due consideration to the tribe's views on the proposed disqualification of the employee for membership in the tribal council. The plaintiff Indian employee held employment with the U.S. government as a van driver with the Indian Health Services (IHS). The dispute in the instant case arose out of the Indian employee's entry into tribal politics and government, creating an alleged conflict of interest with his federal employment. After the Indian employee successfully sought election to the Tribal Council, the Director of IHS determined that the Indian employee's elected position was incompatible with the Department of Health and Human Services' (HHS) standards of conduct (45 C.F.R. § 73.735–701(a) & (b)). Consequently, the IHS ordered the Indian employee either to resign from the Tribal Council or to submit his resignation from federal employment. The court stated that although the ISDEAA focuses on Indian tribes' assumption of control over federal programs serving Indians, the court did not read the ISDEAA to leave tribes with no substantive role in the operations of such programs short of a tribal take–over. If the ISDEAA permits a tribe full control over a program, then the assumption of something less than full control would also appear to comport with the ISDEAA's policy declarations, the court concluded. Simply because a tribe does not take full control of a federal program does not lead automatically to the conclusion that the tribe may exercise no say in the federal government's operation of the program, despite its impact on tribal interests, the court concluded. The court found that the defendant agency's application of HHS standards to the plaintiff Indian employee was not in accordance with the ISDEAA because of a failure to elicit and give due consideration to the tribe's views on the proposed disqualification of the plaintiff. In applying general HHS civil service regulations without adequately involving the tribe, the defendant neglected the federal government's commitment to the maintenance of the unique and continuing relationship with Indian tribes, including federal support and assistance for tribes in the development of strong and stable tribal governments. The court determined that the ISDEAA, 25 U.S.C.A. § 450(a); 25 U.S.C.A. § 450a(b), created a justified expectation of Indians that they be given a meaningful opportunity to express their views before an agency makes its decision regarding an Indian employee.
(b) Further findings: The Congress further finds that  
(1) true self determination in any society of people is dependent upon an educational process which will insure the development of qualified people to fulfill meaningful leadership roles;
(2) the Federal responsibility for and assistance to education of Indian children has not effected the desired level of educational achievement or created the diverse opportunities and personal satisfaction which education can and should provide; and


  1. parental and community control of the educational process is of crucial importance to the Indian people.


25 U.S.C.A. § 450(b)(2, 3)
Federal obligation for Indian education
The following authority held that, under the circumstances presented, the federal government had an obligation to educate Indian secondary–school children under the Indian Self–Determination and Education Assistance Act (ISDEAA).
In Meyers By and Through Meyers v. Board of Educ. of San Juan School Dist., 905 F. Supp. 1544, 105 Ed. Law Rep. 453 (D. Utah 1995), the court held that the United States had an obligation to educate Navajo secondary–school children who resided on a remote reservation, independent of any such obligation which remained under 1868 treaties, and irrespective of whether its responsibility for Indian education was based on a legal obligation arising out of a trust relationship with Indian peoples or a moral obligation it had voluntarily assumed, so long as federal statutes, such as the Indian Self–Determination and Education Assistance Act (ISDEAA), § § 2(a), 3(a, c), 25 U.S.C.A. § § 450(a), 450a(a, c), recognizing a federal obligation for Indian education, remained in force. The court further held that the provision of secondary education at a distant Bureau of Indian Affairs (BIA) boarding school or partial subsidies for school attendance at other remote locations did not, as a matter of law, fulfill a school district's obligation to provide free public education to Navajo secondary–school students equivalent to that received by other students in the district, ISDEAA, § 2(b)(2, 3), 25 U.S.C.A. § 450(b)(2, 3). The court stated that an express purpose of the ISDEAA was to provide financial assistance to state and local education agencies to meet the special needs of Indian children.
25 U.S.C.A § 450(b)(3)
State gross receipts tax on school construction
The courts in the following cases held that, under the particular circumstances, the Indian Self–Determination and Education Assistance Act (ISDEAA) preempted a state gross receipts tax on school construction.
In Ramah Navajo School Bd., Inc. v. Bureau of Revenue, 104 N.M. 302, 720 P.2d 1243, 33 Ed. Law Rep. 858 (Ct. App. 1986), cert. quashed, 104 N.M. 201, 718 P.2d 1349, 34 Ed. Law Rep. 613 (1986) and (abrogated on other grounds by, Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45, 49 Fair Empl. Prac. Cas. (BNA) 1664, 50 Empl. Prac. Dec. (CCH) ¶ 39067 (1989)), the court held that the Indian Self–Determination and Education Assistance Act (ISDEAA), § § 2, 3, 25 U.S.C.A. § § 450, 450a, preempted a state gross receipts tax on school construction. The court stated that, under the ISDEAA, Indians have the right to coordinate the education of their children on the reservation and, by implication, are immune from state taxation of education. The court pointed out that, in enacting the ISDEAA, 25 U.S.C.A. § 450(b)(3), Congress granted to the Indians the right to coordinate the education of their children on the reservation, in express recognition of the right's crucial importance to the Indian people. By implication, continued the court, Congress also granted the tribes an immunity from state taxation. The court concluded that by imposing a gross receipts tax on a school construction job, the state bureau of revenue not only violated that right but also that immunity.
State motor fuel tax on fuel purchased by Indian school
The courts in the following cases held that, under the particular circumstances, a state's motor fuel tax on fuel purchased by an Indian school was preempted by the Indian Self–Determination and Education Assistance Act (ISDEAA).
In Marty Indian School Bd., Inc. v. State of S.D., 824 F.2d 684 (8th Cir. 1987), the court held that a state's imposition of a motor fuel tax on fuel purchased by an Indian school, stored on the school's premises, and used by the school exclusively for educational purposes, was preempted by the Indian Self–Determination and Education Assistance Act (ISDEAA), 25 U.S.C.A. § § 450 et seq. The court rejected the state's argument that its expenditures for road maintenance and construction in the reservation area represented a legitimate regulatory interest which justified the imposition of the motor fuel tax on the school. The court noted that the issue involved a determination of the boundaries between state regulatory authority and tribal self–government. The court determined that, absent evidence that revenues from the tax were used directly for the benefit of the education of Indian children who attended the school or for the promotion of Indian self–sufficiency, federal and tribal interests in Indian education and self–determination outweighed the state's interest in imposing the tax on the school. The court emphasized that funding for the school came from the federal government through the ISDEAA and through other federal programs, and was governed by extensive federal regulations and supervision by the Bureau of Indian Affairs (BIA). Moreover, many of the vehicles using the fuel which the state sought to tax were actually owned and licensed by the federal government. The court stated that the ISDEAA declares that a "major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self–determination essential to their social and economic well–being" (25 U.S.C.A. § 450a(c)). In achieving this goal, continued the court, Congress expressly recognized that parental and community control of the educational process is of crucial importance to the Indian people (25 U.S.C.A. § 450(b)(3)). The court concluded that imposition of the state motor fuel tax would frustrate the federal interest in providing the quantity and quality of educational services and opportunities which would permit Indian children to achieve the measure of self–determination essential to their social and economic well–being by depleting the funds available for the operation of the school. Consequently, the court concluded that the regulatory scheme governing Indian educational facilities left no room for the additional burden sought to be imposed by the state through its fuel tax.
25 U.S.C.A § 450
Congressional Intent
The objective in interpreting the ISDA is to give effect to congressional intent. Indian Self–Determination and Education Assistance Act, § 2 et seq., 25 U.S.C.A. § 450 et seq. Samish Indian Nation v. U.S., 419 F.3d 1355 (Fed. Cir. 2005).
Samish Indian Nation did not have right to ISDA monies under fiduciary duty theory for government's wrongful refusal to accord recognition in past years, and thus court did not have Tucker Act or Indian Tucker Act jurisdiction over that claim, since source of fiduciary duty that would have provided damage remedy for ISDA program money or indirect costs claimed had not been identified; ISDA, of its own force, did not convert underlying statutory programs into entitlements fairly analogized to trust corpus, and ISDA policy statement did not use express language of trust and statement did not confer on government pervasive or elaborate control over trust corpus. Indian Self–Determination and Education Assistance Act, § 2 et seq., 25 U.S.C.A. § 450 et seq. Samish Indian Nation v. U.S., 419 F.3d 1355 (Fed. Cir. 2005).
Contractable Programs
Contractable programs authorized by Indian Self–Determination and Education Assistance Act (ISDEAA) included tribe's request, under Indian Law Enforcement Reform Act of 1990 (ILERA), that some of its police officers be deputized to enforce federal law on the reservation, and therefore Department of the Interior (DOI) was required to enter into a contract with the tribe for law enforcement services, subject to a case–by–case assessment as to whether individual officers qualified for deputization under Bureau of Indian Affairs (BIA) regulations. Indian Self–Determination and Education Assistance Act, § § 2 et seq., 25 U.S.C.A. § § 450 et seq.; Indian Law Enforcement Reform Act of 1990, § § 2 et seq., 25 U.S.C.A. § § 2801 et seq.; 25 C.F.R. § 12.21. Hopland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067 (N.D. Cal. 2004).
Government-to-Government Relationship
The following authority examined whether the Department of Interior has the authority to waive the government-to-government relationship between the federal government and Indian tribes.
In Perrault v. Acting Minneapolis Director, Bureau of Indian Affairs, IBIA 94-116-A, Department of Interior, 1994,, the appellant appealed a decision issued by the Acting Minneapolis Area Director, Bureau of Indian Affairs (Area Director; BIA), denying appellant's request that BIA provide services under the Timber Stand Improvement (TSI) Program to the Eli Curtis Allotment on the Keweenaw Bay Reservation. Apparently as of September 1992, the TSI Program was contracted to the Keweenaw Bay Indian Community (Community) under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n. For purposes of Board review of the Area Director's decision, this contract constitutes conclusive evidence that the Community has the authority to perform the functions covered by it. See 25 U.S.C. § 450f(a)(1) which provides in pertinent part that "the Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer" BIA programs. At some point the Community decided not to purchase the allotment from the appellant, and not to complete the TSI work. Rather than disputing the existence or effect of the P.L. 93-638 contract, appellant asked BIA and/or the Board to waive the government-to-government relationship with the Community so that he can personally do TSI work on his allotment and be paid with Federal funds. The Board expressed that the Department of the Interior does not have authority to waive the government-to-government relationship between the Federal Government and the Indian tribes, which was reaffirmed by Congress in P.L. 93-638.
{As amended by: Pub. L. 93-638, § 2, January 4, 1975, 88 Stat. 2203}

DECLARATION OF POLICY

[25 USC 450a]
Sec. 3 (a) The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.
(b) The Congress declares its commitment to the maintenance of the Federal Government's unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.1i In accordance with this policy, the United States is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.
25 U.S.C.A § 450a(a, b)
Primary Purpose
The following authority construed the primary purpose of the Indian Self-Determination and Education Assistance Act as based on the Congressional declaration of policy stated in 25 U.S.C.A. § 450a(a, b).

A primary purpose of the Indian Self–Determination and Education Assistance Act (ISDEAA) is to give tribes increased control over their own affairs and to shift responsibility for the administration of federal programs to tribes, held the court in Navajo Nation v. Department of Health & Human Services, Secretary, 325 F.3d 1133, 190 A.L.R. Fed. 705 (9th Cir. 2003). The court noted that the relevant congressional declaration of policy underlying the ISDEAA has two parts. First, Congress recognized the federal government's obligation to assure maximum Indian participation in the direction of federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities (See 25 U.S.C.A. § 450a(a)). Second, the self–determination policy was intended to permit an orderly transition from the federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services (See 25 U.S.C.A. § 450a(b)).

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