American Indian
Disability Legislation Research
Rural Disability
and Rehabilitation Research Progress Report #2
January, 1999
The Research and Training Center on Disability in Rural Communities (RTC: Rural) conducts applied research designed to build upon the strengths of individuals and communities to solve problems experienced in every day life. This series of reports is designed to make research results available as soon as is practical. It is important to note that data presented are preliminary and must be interpreted with caution. The major limitations are reported but those interested in the process are strongly encouraged to contact staff who can more fully discuss the issues presented.
Congress specifically excluded tribes
and reservations from the protections of the Americans with Disabilities Act (ADA). The
Congressional Research Service, in studying this problem, concluded that the ADA could
only be applied to tribes through massive litigation.
In a national survey of 143 tribal governments, representing over 600,000 members,
110 responding tribes requested immediate assistance in developing disability policy.
Further, this project led to passage of a resolution by the National Congress of American
Indians that recommended the creation of disability legislation among tribes that is
consistent with the principles of the ADA and is respectful of tribal sovereignty and
cultural diversity.
Our research is developing a model that allows tribes to build their own mechanisms for
dealing with disability issues. The response of the Nations to disability issues has been
as varied and diverse as the tribes themselves. Their experiences provide a guide for
others.
GOAL
The goal of this project is to demonstrate the utility of
the Tribal Disability Actualization Process (TDAP) in helping tribes develop culturally
appropriate disability policies and programs in a manner that respects tribal sovereignty
and cultural diversity, and is consistent with principles of consumer choice. Two central
objectives include:
1. Demonstrate the effectiveness of the TDAP in helping tribal governments recognize the
service needs of people with disabilities and to consider options for providing services.
2. Demonstrate the use of TDAP to enhance the ability of tribal members with disabilities
to participate in the policy-making process, the design of service delivery systems, and
in the allocation of resources and services.
KEY TERMS AND CONCEPTS
Americans with Disabilities Act
The ADA is the primary civil rights act for people with disabilities, guaranteeing the right to employment, access to travel and communication. Because Federal policy currently encourages tribal sovereignty and has moved toward helping tribes become autonomous, tribal governments are excluded from complying with much federal legislation, including the ADA.
American Indian Culture
Applying the concept of disability to American Indian
culture is an extraordinary challenge. 
First, there are
over 640 individual tribal groups. These can be loosely organized into 10 historically
cultural regions.
Description of Map
Further, disability is an idea familiar to Western culture but with
no direct parallel in American Indian culture (Clay, 1992). The closest American Indian
concept does not look at physical characteristics but views disability as disharmony of
spirit.
Cultural regions include: Arctic, Subarctic, Northwest Coast, California, Plateau, Great Basin, Southwest, Plains, Northeast, and Southeast.
Second, the cultures and traditional beliefs of the many tribes vary significantly. Each
has a unique set of creation stories, religious doctrines and sacred taboos. And while
many American Indian people have "melted" into the broader society, many still
hold to their old ways and traditions. This "living in two worlds" is
problematic enough; coping with disability adds a "third world" of difficulties
(Ft. Peck Reservation Focus Group, 1996).
Finally, the nature of belonging to the extended family and tribe has posed obstacles for
people with disabilities to acquiring government support services such as Medicaid.
Tribes
There are approximately 550 tribes currently recognized by the Federal government (U.S. Department of the Interior, Bureau of Indian Affairs, 1999). In general, most tribes are sovereign nations with legal authority and responsibility for their people and lands.
Reservations
There are approximately 275 Indian land areas in the United States administered as Indian reservations. These areas include federally recognized reservations, Alaska Native villages, pueblos, rancherias and tribal trust lands (U.S. Department of the Interior, Bureau of Indian Affairs, 1999).
Tribal Governments
Tribal governments are as varied as the tribes, native
villages and reservations they represent. Most tribes were severely damaged by white
conquest and indigenous systems of government fell to federal management. Many tribes were
unnaturally grouped on reservations. "The Indian Reorganization Act of 1934 provided
that any tribe or tribes 'residing on the same reservation had the right to organize and
adopt a constitution ... the "new 'constitutional tribes often included more than one
ethnic tribe" (Canby, 1988). And while the new constitutions, designed by the Federal
government, were adopted by many tribes, many other tribes rejected the provisions of the
IRA outright.
The relationship of the various tribal governments to the government of the United States
can be most simply understood as one based on negotiated treaties. ".... At the risk
of oversimplification, ... the tribes are independent entities with inherent powers of
self-government ... The power to deal with and regulate the tribes is wholly federal; the
states are excluded unless Congress delegates power to them." (Canby, 1994).
RESEARCH PROCESS
The Tribal Disability Actualization Process model is based on work done by Brown (1986). Its major steps include identifying and developing key leaders to organize focus groups, seeking tribal authorization, holding Talking Circles, studying the status and needs of specific disability issues, developing policy and program recommendations, and promoting those recommendations through tribal channels.
Results
- One tribe (Pine Ridge Oglala Lakota) has chosen to adopt the ADA as a whole and is now sorting out what this means for its members.
- Another tribe (Confederated Salish & Kootenai Tribes) has passed a resolution that adopts the spirit of the ADA. It has created a tribally-mandated committee to develop and implement disability policies.
- Another tribe (Fort Peck Assiniboine & Sioux) is currently developing a Task Force on Disability Issues that will address disability concerns and policies.
- Several tribes have created innovative resolutions that deal only with employment of people with disabilities. In reviewing their personnel policies, for example, two tribes found that they listed disability as a cause for not hiring as well as termination. While not required, the tribe changed this policy in accordance with the ADA.
Members of one tribe have formed a disability action group
to provide support to tribal members with disabilities.
This project has helped open doors on tribal lands previously closed in at least four
states for rehabilitative service agencies (e.g., state VRs, Tech Act projects, and ILCs).
IMPORTANT LIMITATIONS
Most tribes are small and often lack financial resources.
Their primary priority is often achieving or protecting their political sovereignty. This
often means that tribal governments are focused on land and water rights, and battles over
legal jurisdiction. Clay (1992) points out that these over-riding interests can deflect
attention from issues of disability services. Fowler, et al. (1996) concluded that the
tribes who participated in the TDAP have made significant headway toward educating their
members about the needs of Indian people with disabilities. They have also recognized that
their efforts must be consistent and on-going, and that funding and enforcement are key
issues. A major barrier to the continuation of these efforts involves the question of who
is responsible for directing and funding such activities. Most tribes lack the financial
resources to mount a systematic effort to build tribal disability legislation. State
governments have little responsibility and less authority on reservations. While some
foundations support tribal development, they tend to focus narrowly on special issues or
support only a few tribes.
Only the Federal government has the combination of authority, resources and
responsibility. Unfortunately, no Federal agency has the duty to assist tribes in
addressing this gap in law and policy. This situation must be clarified if American
Indians with disabilities are to enjoy the same protections as their neighbors.
CONCLUSIONS
This research is showing that, in a surprisingly short period of time, the use of the Tribal Disability Actualization Process can bring significant change that benefits the tribes that employ it. It demonstrates that tribal governments can and will develop disability legislation and policy consistent with the ADA without Federal court litigation. It is a method that may be used to address other disability issues. This is an approach to community development that is truly a rural response. It may provide a method of universal application because it offers the members of any community, no matter what size, the opportunity to review problems and develop solutions that meet their unique circumstances.
NEXT STEPS
We continue to work with the selected tribes to refine the TDAP for building disability laws, policies and practices. In a project funded by the Robert Wood Johnson Foundation, we are working with several tribes to use the TDAP in addressing the specific issues of personal assistance services and long-term care.
We also continue to pursue the creation of a tribal disability technical assistance center. Such a center would, at a national level, provide:
- technical assistance on developing tribal law, policy, and programs to promote culturally appropriate protections for tribal members with disabilities;
- links between tribal governments with non-tribal disability resources;
- training to non-tribal resources on cultural diversity and appropriate outreach techniques;
- training on existing laws, regulations and policies that do apply to tribal entities;
- outreach training for tribal colleges, and finally;
- training for tribal housing authorities and planning departments on architectural accessibility.
For information about these projects, contact:
American
Indian Disability Technical Assistance Center
The University of Montana Rural Institute: A Center for
Excellence
in Disability Education, Research, and Services,
52 Corbin Hall
Missoula, MT 59812-7056
Toll Free: 866 - 4 - AIDTAC or (406) 243-5441 | 406-243-2349 fax
REFERENCES
Bazan, Elizabeth B. (1991). CRS Report for Congress: The Possible Applicability
of the Americans with Disabilities Act to Indian Tribes. Washington, D.C.:
Congressional Research Service, The Library of Congress.
Brown, S.A. (1986). The Preventive and Restorative Aspects of Cultural Conflicts
Resolution through the Native Self-Actualization Model.
Canby, W.C. (1994). American Indian Law in a Nutshell. St. Paul, MN: West
Publishing.
Clay, J. (1992). Native American independent living.
Rural Special Education Quarterly, 11(1), 41-50.
Ft. Peck Reservation Focus Group (1996). Ft. Peck focus
group report. American Indian Disability Legislation Project. Missoula: Research &
Training Center on Rural Rehabilitation, Montana Affiliated Rural Institute on
Disabilities, The University of Montana-Missoula.
Fowler, L., Dwyer, K., & Brueckmann, S. (1996). A guide to developing
disability policies on American Indian reservations. Missoula, MT: The University of
Montana, Montana University Affiliated Rural Institute on Disabilities.
Locust, C. (1985). American Indian beliefs concerning health and unwellness.
Tucson: Native American Research & Training Center, University of Arizona.
U.S. Department of the Interior, Bureau of Indian Affairs, 1999. Answers to Frequently
Asked Questions [On-line]. Internet: http://www.doi.gov/bia.
This research is supported by grant # H133B70017-01. Opinions expressed are those of the author and not necessarily those of the U.S. Department of Education.
Report prepared by Kathy Dwyer. This publication is available in Braille, large print, and text formats.
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