July 15, 2021
Indian Self-Determination and Education Assistance Act
(ISDEAA) and the Bureau of Indian Affairs
The Indian Self-Determination and Education Assistance
 the opportunity to consolidate two or more self-
Act (ISDEAA; P.L. 93-638, 25 U.S.C. §§5301 et seq.)
determination contracts into a single contract (25
emphasized tribal self-determination and self-governance
U.S.C. §5321).
“in planning, conduct, and administration” of certain
federal programs. Passed by Congress in 1975, Title I of
Title IV established the Office of Self-Governance within
ISDEAA authorized the Departments of the Interior (DOI)
the Office of the Assistant Secretary-Indian Affairs in DOI
and Health and Human Services (HHS) to contract with
(25 U.S.C. §5362). Among other things, Title IV
tribes to assume planning and administering certain federal

services and programs with federal funding, referred to as

allows a participating tribe to negotiate funding
638 contracts or self-determination contracts.
agreements (annual or multiyear) with DOI for PFSAs
to be assumed by the tribe (25 U.S.C. §5363(p)) and
In 1994, the Tribal Self-Governance Act (TSGA; P.L. 103-

413, 25 U.S.C. §§5361 et seq.) amended ISDEAA and

permits tribes to redesign or consolidate federal
added a new Title IV authorizing DOI to enter into self-
programs and to reallocate funds within selected
governance compacts with tribes. Approved compacts
programs (25 U.S.C. §§5363(b), 5365(d)).
allow tribes to assume funding of, and control over, some
federal programs, services, functions, or activities (PFSAs)
A key difference between self-determination contracts and
that DOI otherwise would provide directly to tribes. In
self-governance compacts is the amount of tribal flexibility.
2000, the Tribal Self-Governance Amendments (P.L. 106-
Under Title I, DOI must approve any substantial changes to
260, 25 U.S.C. §§5381 et seq.) created Title V, which
a contract. Under Title IV, however, a tribe may redesign or
permanently authorized compacts for some Indian Health
consolidate PSFAs, and reallocate funding, under a
Service programs.
compact without DOI’s approval. Thus, although PSFAs
may be redesigned under contracts and compacts, tribes
This In Focus provides an overview of ISDEAA Titles I
with a contract must receive prior approval to do so.
and IV and describes how tribes, as defined under
Use of ISDEAA Contracts and Compacts
ISDEAA, could receive services from DOI and particularly
the Bureau of Indian Affairs (BIA). It provides an overview
Because participation in ISDEAA agreements is voluntary,
of budgetary and administrative functions supporting
tribes have options in determining how they receive BIA-
authorized services. For example, a tribe could choose to
ISDEAA agreements, such as contract support costs
(CSCs), 105(l) leases, and tribal priority allocations, and
 receive services directly from BIA, sometimes referred
highlights an issue for Congress: ISDEAA’s definition of
to as a direct service tribe;
Indian tribe.
 enter into a contract with BIA to administer individual
Overview of ISDEAA Titles I and IV
programs and services BIA that otherwise would
Both Title I and Title IV of ISDEAA authorized the
provide directly to the tribe (i.e., a self-determination
Secretary of the Interior (Secretary) to contract or compact
contract);
with tribes, upon a tribe’s request, to plan, conduct, and
administer certain DOI programs, in whole or in part. Both
 enter into a compact on a government-to-government
titles also established the programs that can be contracted or
basis with BIA to assume control over programs that
compacted under ISDEAA, such as BIA programs
BIA otherwise would provide directly to the tribe (i.e.,
authorized under the Snyder Act (42 Stat. 208) and non-
a self-governance compact); or
BIA programs within DOI that benefit Indians.
 combine the above options to receive services.
Some of the Title I provisions include
 the option to enter into contracts for a period of up to
Many, but not all, tribes enter into contracts or compacts
three years, unless the Secretary and the tribe agree to a
under ISDEAA. According to BIA, in FY2022, an
longer term, with the terms of the contract renegotiable
estimated 275 tribes will participate in contracts and an
annually to account for changed circumstances and cost
estimated 292 tribes will participate in compacts. As of
increases (25 U.S.C. §5324), and
2021, the federal government recognized 574 tribes .
ISDEAA provides tribes the opportunity to assume federal
responsibility in several areas within BIA, including law
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Indian Self -Determination and Education Assistance Act (ISDEAA) and the Bureau of Indian Affairs
enforcement, tribal courts, social services, and natural
BIE’s largest appropriations accounts—Operation of Indian
resources management. Tribes also may enter into contracts
Programs—as “guaranteed” base funding for tribes. TPA
or compacts for non-BIA programs in DOI, such as those
includes BIA programs in the functions of tribal
within the National Park Service and the United States Fish
government, human services, public safety and justice,
and Wildlife Service. The Secretary is required to publish
community development, natural resources management,
annually a list of non-BIA programs eligible for inclusion
and trust services, as well as general administration. Some
in compacts.
tribes receive BIE TPA funds from the following programs:
Johnson-O’Malley, Tribal Colleges & Universities, and
Under certain circumstances, the Secretary is authorized to
Scholarships and Adult Education. After appropriations are
decline to enter into a contract and is allowed to reject the
enacted, tribes or BIA may move TPA funds from one TPA
terms of a compact or a funding agreement. The Secretary
program to another without approval from the
also is authorized to reassume control of a contracted or
appropriations committees.
compacted program under certain conditions.
TPA provides administrative flexibilities to tribes and can
Contract Support Costs
complement participation in self-determination contracts
CSCs are the indirect costs incurred by tribes to administer
and self-governance compacts. For example, when a tribe
federal programs under a contract or compact. CSCs are
first elects to enter into a self-governance compact, the
allocated in accordance with an approved agreement under
Office of Self-Governance establishes a TPA base funding
ISDEAA. The Supreme Court twice has held that the
amount for the tribe based on the BIA programs selected by
federal government is required to pay the full amount of
the tribe. Further, tribes can use TPA allocations through
CSCs contracted for by tribes. In Cherokee Nation of
contracts and compacts under ISDEAA.
Ok lahoma v. Leavitt, 543 U.S. 631 (2005), the Court held
that the federal government is required to pay the full
Definition of Indian Tribe
amount of CSCs contracted for by a tribe when Congress
ISDEAA is noteworthy for its definition of Indian tribe,
appropriates sufficient, unrestricted funding. In Salazar v.
which is “any Indian tribe, band, nation, or other organized
Ramah Navajo Chapter, 567 U.S. 182 (2012), the Court
group or community, including any Alaska Native village
held that the federal government is required to pay the full
or regional or village corporation as defined in or
amount of CSCs contracted for by a tribe when Congress
established pursuant to the Alaska Native Claims
appropriates sufficient funding to pay any individual
Settlement Act …, which is recognized as eligible for the
contract’s CSCs, despite Congress placing a spending cap
special programs and services provided by the United
on CSCs. Beginning in FY2016, CSCs were funded as an
States to Indians because of their status as Indians” (25
indefinite discretionary appropriation.
U.S.C. §5304(e); emphasis added). Unlike federally
recognized tribes, which have government-to-government
105(l) Leases
relationships with the United States, Alaska Native
Under Section 105(l) of ISDEAA, the Secretary is required
Corporations (ANCs) are businesses organized under
to enter into a lease with a tribe, upon the tribe’s request,
Alaska state laws.
for a facility the tribe uses to carry out the tribe’s
responsibilities under a contract or compact, commonly
Although federal statutes do not uniformly define Indian
referred to as a 105(l) lease. In FY2021, Congress funded a
tribes the same way, Congress has incorporated ISDEAA’s
new appropriations account, Payments for Tribal Leases , to
definition of Indian tribe into legislation it has enacted
consolidate BIA and Bureau of Indian Education (BIE)
touching on various tribal issues, including, for example,
105(l) leasing costs, which were funded under other BIA
the Coronavirus Aid, Relief, and Economic Security Act
and BIE accounts in prior fiscal years. In considering the
(CARES Act; P.L. 116-136).
new account, the appropriations committees asserted that
two federal district court decisions appeared to create an
In 2020, several tribes brought suit to challenge the
entitlement to tribes for compensation of 105(l) lease costs
Treasury Department’s treatment of ANCs as Indian tribes
not typically funded through discretionary appropriations.
for CARES Act funding under the ISDEAA definition of
(See Maniilaq Ass’n v. Burwell, 72 F. Supp. 3d 227 (D.D.C.
Indian tribe. For more information on the lawsuit, see CRS
2014); and Maniilaq Ass’n v. Burwell, 170 F. Supp. 3d 243
Legal Sidebar LSB10598, Justices Consider Whether
(D.D.C. 2016)). In FY2021, the appropriations committees
Treasury May Distribute CARES Act Funds for “Indian
directed DOI to develop guidelines for, and to consult with
Tribes” to Alaska Native Corporations, by M. Maureen
tribes on, processing such leases and to report to Congress
Murphy. On June 25, 2021, the Supreme Court decided
on long-term solutions for funding the account. In its
Yellen v. Chehalis, 594 U.S. ___ (2021) (Chehalis) and
FY2022 budget request, BIA proposed reclassifying the
examined whether ANCs are considered within ISDEAA’s
new Payments for Tribal Leases account from a
definition of Indian tribe. The Court determined that ANCs
discretionary to a mandatory appropriations account
are to be treated as Indian tribes eligible for CARES Act
beginning in FY2023.
purposes under the ISDEAA definition of Indian tribe.
Tribal Priority Allocations
In light of the Chehalis decision, an issue for Congress may
Tribal Priority Allocations (TPA) are a BIA and BIE
be the extent to which Congress intends to include or
budgetary tool that allows direct involvement by tribes in
exclude ANCs when citing ISDEAA’s definition of Indian
setting priorities for their operating programs. TPA includes
tribe in other legislation.
funds across multiple activities within both BIA’s and
Tana Fitzpatrick, Specialist in Natural Resources Policy
https://crsreports.congress.gov

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Indian Self -Determination and Education Assistance Act (ISDEAA) and the Bureau of Indian Affairs

IF11877


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https://crsreports.congress.gov | IF11877 · VERSION 1 · NEW

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