[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3508 Received in Senate (RDS)]
103d CONGRESS
2d Session
H. R. 3508
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
August 17 (legislative day, August 11), 1994
Received
_______________________________________________________________________
AN ACT
To provide for tribal self-governance, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Self-Governance Act of
1994''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the tribal right of self-government flows from the
inherent sovereignty of Indian tribes and nations;
(2) the United States recognizes a special government-to-
government relationship with Indian tribes, including the right
of the tribes to self-governance, as reflected in the
Constitution, treaties, Federal statutes, and the course of
dealings of the United States with Indian tribes;
(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regulations, has
eroded tribal self-governance and dominates tribal affairs;
(4) the Tribal Self-Governance Demonstration Project was
designed to improve and perpetuate the government-to-government
relationship between Indian tribes and the United States and to
strengthen tribal control over Federal funding and program
management; and
(5) Congress has reviewed the results of the Tribal Self-
Governance Demonstration Project and finds that--
(A) transferring control to tribal governments,
upon tribal request, over funding and decisionmaking
for Federal programs, services, functions, and
activities intended to benefit Indians is an effective
way to implement the Federal policy of government-to-
government relations with Indian tribes; and
(B) transferring control to tribal governments,
upon tribal request, over funding and decisionmaking
for Federal programs, services, functions, and
activities strengthens the Federal policy of Indian
self-determination.
SEC. 3. DECLARATION OF POLICY.
It is the policy of this Act to permanently establish and implement
tribal self-governance--
(1) to enable the United States to maintain and improve its
unique and continuing relationship with, and responsibility to,
Indian tribes;
(2) to permit each Indian tribe to choose the extent of the
participation of such tribe in self-governance;
(3) to coexist with the provisions of the Indian Self-
Determination Act relating to the provision of Indian services
by designated Federal agencies;
(4) to ensure the continuation of the trust responsibility
of the United States to Indian tribes and Indian individuals;
(5) to permit an orderly transition from Federal domination
of programs and services to provide Indian tribes with
meaningful authority to plan, conduct, redesign, and administer
programs, services, functions, and activities that meet the
needs of the individual tribal communities; and
(6) to provide for an orderly transition through a planned
and measurable parallel reduction in the Federal bureaucracy.
SEC. 4. TRIBAL SELF-GOVERNANCE.
The Indian Self-Determination and Education Assistance Act is
amended by adding at the end the following new title:
``TITLE IV--TRIBAL SELF-GOVERNANCE
``SEC. 401. ESTABLISHMENT.
``The Secretary of the Interior (hereinafter in this title referred
to as the `Secretary') shall establish and carry out a program within
the Department of the Interior to be known as Tribal Self-Governance
(hereinafter in this title referred to as `Self-Governance') in
accordance with this title.
``SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.
``(a) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration Project at
the Department of the Interior under title III on the date of enactment
of this title shall thereafter participate in Self-Governance under
this title and cease participation in the Tribal Self-Governance
Demonstration Project under title III with respect to the Department of
the Interior.
``(b) Additional Participants.--(1) In addition to those Indian
tribes participating in Self-Governance under subsection (a), the
Secretary, acting through the Director of the Office of Self-
Governance, may select up to 20 new tribes per year from the applicant
pool described in subsection (c) to participate in Self-Governance.
``(2) If each tribe requests, two or more otherwise eligible Indian
tribes may be treated as a single Indian tribe for the purpose of
participating in Self-Governance as a consortium.
``(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of each tribe that--
``(1) successfully completes the planning phase described
in subsection (d);
``(2) has requested participation in Self-Governance by
resolution or other official action by the tribal governing
body; and
``(3) has demonstrated, for the previous three fiscal
years, financial stability and financial management capability
as evidenced by the tribe having no material audit exceptions
in the required annual audit of the self-determination
contracts of the tribe.
``(d) Planning Phase.--Each Indian tribe seeking to begin
participation in Self-Governance shall complete a planning phase in
accordance with this subsection. The tribe shall be eligible for a
grant to plan and negotiate participation in Self-Governance. The
planning phase shall include--
``(1) legal and budgetary research; and
``(2) internal tribal government planning and
organizational preparation.
``SEC. 403. FUNDING AGREEMENTS.
``(a) Authorization.--The Secretary shall negotiate and enter into
an annual written funding agreement with the governing body of each
participating tribal government.
``(b) Contents.--Each funding agreement shall--
``(1) authorize the tribe to plan, conduct, consolidate,
and administer programs, services, functions, and activities,
or portions thereof, administered by the Department of the
Interior that are otherwise available to Indian tribes or
Indians, without regard to the agency or office of the
Department of the Interior within which it is performed,
including (but not limited to) those administered under the
authority of--
``(A) the Act of April 16, 1934 (25 U.S.C. 452 et
seq.);
``(B) the Act of November 2, 1921 (25 U.S.C. 13);
and
``(C) programs, services, functions, and activities
or portions thereof administered by the Secretary of
the Interior that are otherwise available to Indian
tribes or Indians for which appropriations are made to
agencies other than the Department of the Interior;
``(2) subject to the terms of the agreement, authorize the
tribe to redesign or consolidate programs, services, functions,
and activities, or portions thereof, and to reallocate funds
for such programs, services, functions, or activities, or
portions thereof;
``(3) prohibit the inclusion of funds provided--
``(A) pursuant to the Tribally Controlled Community
College Assistance Act of 1978 (25 U.S.C. 1801 et
seq.);
``(B) for elementary and secondary schools under
the formula developed pursuant to section 1128 of the
Education Amendments of 1978 (25 U.S.C. 2008); and
``(C) the Flathead Agency Irrigation Division or
the Flathead Agency Power Division, except that nothing
in this section shall affect the contract authority of
such divisions under section 102;
``(4) specify the services to be provided, the functions to
be performed, and the responsibilities of the tribe and the
Secretary pursuant to the agreement;
``(5) authorize the tribe and the Secretary to reallocate
funds or modify budget allocations within any year, and specify
the procedures to be used;
``(6) allow for retrocession of programs or portions of
programs pursuant to section 105(e);
``(7) provide that, for the year for which, and to the
extent to which, funding is provided to a tribe under this
section, the tribe--
``(A) shall not be entitled to contract with the
Secretary for such funds under section 102, except that
such tribe shall be eligible for new programs on the
same basis as other tribes; and
``(B) shall be responsible for the administration
of programs, services, functions, and activities
pursuant to agreements entered into under this section;
and
``(8) prohibit the Secretary from waiving, modifying, or
diminishing in any way the trust responsibility of the United
States with respect to Indian tribes and individual Indians
that exists under treaties, Executive orders, and other laws.
``(c) Additional Activities.--Each funding agreement negotiated
pursuant to subsections (a) and (b) may, in accordance to such
additional terms as the parties deem appropriate, also include other
programs, services, functions, and activities, or portions thereof,
administered by the Secretary of the Interior which are of special
geographic, historical, or cultural significance to the participating
Indian tribe requesting a compact.
``(d) Provisions Relating to the Secretary.--Funding agreements
negotiated between the Secretary and an Indian tribe shall include
provisions--
``(1) to monitor the performance of trust functions by the
tribe through the annual trust evaluation, and
``(2) for the Secretary to reassume a program, service,
function, or activity, or portions thereof, if there is a
finding of imminent jeopardy to a physical trust asset.
``(e) Construction Projects.--(1) Regarding construction programs
or projects, the Secretary and Indian tribes may negotiate for the
inclusion of specific provisions of the Office of Federal Procurement
and Policy Act and Federal acquisition regulations in any funding
agreement entered into under this Act. Absent a negotiated agreement,
such provisions and regulatory requirements shall not apply.
``(2) In all construction projects performed pursuant to this
title, the Secretary shall ensure that proper health and safety
standards are provided for in the funding agreements.
``(f) Submission for Review.--Not later than 90 days before the
proposed effective date of an agreement entered into under this
section, the Secretary shall submit a copy of such agreement to--
``(1) each Indian tribe that is served by the Agency that
is serving the tribe that is a party to the funding agreement;
``(2) the Committee on Indian Affairs of the Senate; and
``(3) the Subcommittee on Native American Affairs of the
Committee on Natural Resources of the House of Representatives.
``(g) Payment.--(1) At the request of the governing body of the
tribe and under the terms of an agreement entered into under this
section, the Secretary shall provide funding to the tribe to carry out
the agreement.
``(2) The funding agreements authorized by this title and title III
of this Act shall provide for advance payments to the tribes in the
form of annual or semi-annual installments at the discretion of the
tribes.
``(3) Subject to paragraph (3) of this subsection and paragraphs
(1) and (3) of subsection (b), the Secretary shall provide funds to the
tribe under an agreement under this title for programs, services,
functions, and activities, or portions thereof, in an amount equal to
the amount that the tribe would have been eligible to receive under
contracts and grants under this Act, including amounts for direct
program and contract support costs and, in addition, any funds that are
specifically or functionally related to the provision by the Secretary
of services and benefits to the tribe or its members, without regard to
the organization level within the Department where such functions are
carried out.
``(4) Funds for trust services to individual Indians shall be
available under an agreement entered into under this section only to
the extent that the same services that would have been provided by the
Secretary are provided to individual Indians by the tribe.
``(h) Civil Actions.--(1) Except as provided in paragraph (2), for
the purposes of section 110, the term `contract' shall include
agreements entered into under this title.
``(2) For the period that an agreement entered into under this
title is in effect, the provisions of section 2103 of the Revised
Statutes of the United States (25 U.S.C. 81), and section 16 of the Act
of June 18, 1934 (25 U.S.C. 476), shall not apply to attorney and other
professional contracts by Indian tribal governments participating in
Self-Governance under this title.
``(i) Facilitation.--(1) Except as otherwise provided by law, the
Secretary shall interpret each Federal law and regulation in a manner
that will facilitate--
``(A) the inclusion of programs, services, functions, and
activities in the agreements entered into under this section;
and
``(B) the implementation of agreements entered into under
this section.
``(2)(A) A tribe may submit a written request for a waiver to the
Secretary identifying the regulation sought to be waived and the basis
for the request.
``(B) Not later than 60 days after receipt by the Secretary of a
written request by a tribe to waive application of a Federal regulation
for an agreement entered into under this section, the Secretary shall
either approve or deny the requested waiver in writing to the tribe. A
denial may be made only upon a specific finding by the Secretary that
identified language in the regulation may not be waived because that
regulation is expressly required by Federal law. The Secretary's
decision shall be final for the Department.
``(j) Funds.--All funds provided under funding agreements entered
into pursuant to this Act, and all funds provided under contracts or
grants made pursuant to this Act, shall be treated as non-Federal funds
for purposes of meeting matching requirements under any other Federal
law.
``SEC. 404. BUDGET REQUEST.
``The Secretary shall identify, in the annual budget request of the
President to the Congress under section 1105 of title 31, United States
Code, any funds proposed to be included in agreements authorized under
this title.
``SEC. 405. REPORTS.
``(a) Requirement.--The Secretary shall submit to Congress a
written report on January 1 of each year following the date of
enactment of this title regarding the administration of this title.
``(b) Contents.--The report shall--
``(1) identify the relative costs and benefits of Self-
Governance;
``(2) identify, with particularity, all funds that are
specifically or functionally related to the provision by the
Secretary of services and benefits to Self-Governance tribes
and their members;
``(3) identify the funds transferred to each Self-
Governance tribe and the corresponding reduction in the Federal
bureaucracy;
``(4) include the separate views of the tribes; and
``(5) include the funding formula for individual tribal
shares of Central Office funds, together with the comments of
affected Indian tribes, developed under subsection (d).
``(c) Report on Non-BIA Programs.--
``(1) In order to optimize opportunities for including non-
Bureau of Indian Affairs programs for compacts under section
403(b)(1) and special programs under section 403(c) in
agreements tribes participating in Self-Governance under this
title, the Secretary--
``(A) shall review all programs, services, and
functions administered by the Department of the
Interior, other than the Bureau of Indian Affairs,
without regard to the agency or office concerned, and
``(B) within 90 days after the enactment of this
title, provide to the appropriate committees of the
Congress a listing of all such programs, services,
functions, and activities, or portions thereof, which
the Secretary determines are eligible for inclusion in
such agreements at the request of a participating
Indian tribe.
``(2) The Secretary shall establish programmatic targets,
after consultation with tribes participating in Self-Governance
under this title, to encourage bureaus of the Department to
assure that a significant portion of such programs, services,
functions, and activities are actually included in the
agreements negotiated under section 403.
``(3) The listing and targets under paragraphs (1) and (2)
shall be published in the Federal Register and be made
available to any Indian tribe participating in Self-Governance
under this title. The list shall be published before January 1,
1995, and annually thereafter by January 1 preceding the fiscal
year in which the targets are to be met.
``(4) Thereafter, the Secretary shall annually review and
publish in the Federal Register, after consultation with tribes
participating in Self-Governance under this title, a revised
listing and programmatic targets.
``(d) Report on Central Office Funds.--Within 90 days after the
date of the enactment of this title, the Secretary shall, in
consultation with Indian tribes, develop a funding formula to determine
the individual tribal share of funds controlled by the Central Office
of the Bureau of Indian Affairs for inclusion in the Self-Governance
compacts. The Secretary shall include such formula in the annual report
submitted to the Congress under subsection (b), together with the views
of the affected Indian tribes.
``SEC. 406. DISCLAIMERS.
``(a) Other Services, Contracts, and Funds.--Nothing in this title
shall be construed to limit or reduce in any way the services,
contracts, or funds that any other Indian tribe or tribal organization
is eligible to receive under section 102 or any other applicable
Federal law.
``(b) Federal Trust Responsibilities.--Nothing in this Act shall be
construed to diminish the Federal trust responsibility to Indian
tribes, individual Indians, or Indians with trust allotments.
``(c) Application of Other Sections of Act.--All provisions of
sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall apply
to agreements provided under this title.
``SEC. 407. REGULATIONS.
``(a) In General.--Not later than 90 days after the date of
enactment of this title, at the request of a majority of the Indian
tribes with agreements under of this title, the Secretary shall
initiate procedures under subchapter III of chapter 5 of title 5,
United States Code, to negotiate and promulgate such regulations as are
necessary to carry out this title.
``(b) Committee.--A negotiated rulemaking committee established
pursuant to section 565 of title 5, United States Code, to carry out
this section shall have as its members only Federal and tribal
government representatives, a majority of whom shall be representatives
of Indian tribes with agreements under this title.
``(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of Self-
Governance and the government-to-government relationship between the
United States and the Indian tribes.
``(d) Effect.--The lack of promulgated regulations shall not limit
the effect of this title.
``SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as may be
necessary to carry out this title.''.
Passed the House of Representatives August 16, 1994.
Attest:
DONNALD K. ANDERSON,
Clerk.
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