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S. HRG. 108–584

DEPARTMENT OF THE INTERIOR AND THE DEPARTMENT OF HEALTH AND HUMAN SERVICES

TRIBAL SELF-GOVERNANCE ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

S. 1715

S. 1696

TO AMEND THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN

TRIBES

MAY 12, 19, 2004

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

MAY 12, 2004

S. 1715, text of ......................................................................................................... 3

Statements:

Anderson, Dave, assistant secretary for Indian Affairs, Department of

the Interior .................................................................................................... 56

Baker-Shenk, Phil, Holland and Knight LLP, Washington, DC .................. 68

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

Committee on Indian Affairs ....................................................................... 1

Matt, Fred, chairman, Confederated Salish and Kootenai Tribes, Flathead

Reservation .................................................................................................... 62

Sinclair, William, director, Office of Self-Governance and Self-Determination, Department of the Interior .................................................................. 56

Strommer, Geoffrey, Hobbs, Strauss, Dean and Walker, on behalf of

the Council of Athabascan Tribal Governors .............................................. 65

APPENDIX

Prepared statements:

Anderson, Dave (with attachment) ................................................................. 79

Baker-Shenk, Phil ............................................................................................ 86

Matt, Fred (with attachment) .......................................................................... 95

Stevens, Ben, self-governance coordinator council of Athabascan Tribal

Governments (with attachment) .................................................................. 112

MAY 19, 2004

S. 1696, text of ......................................................................................................... 122

Statements:

Allen, Ron, chairman, Jamestown S’Klallam Tribal Council (with attachment) .............................................................................................................. 143

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

Committee on Indian Affairs ....................................................................... 121

Kashevaroff, Don, president/chairman, Alaska Native Tribal Health Consortium ........................................................................................................... 141

Peercy, Mickey, executive director, Management and Operations, Choctaw

Nation, Oklahoma ......................................................................................... 147

Windy Boy, Alvin, chairman, Chippewa Cree Business Committee ............ 146

APPENDIX

Prepared statements:

Allen, Ron (with attachment) .......................................................................... 158

Kashevaroff, Don .............................................................................................. 155

Peercy, Mickey .................................................................................................. 170

Windy Boy, Alvin .............................................................................................. 175

(1)

DEPARTMENT OF INTERIOR TRIBAL SELFGOVERNANCE ACT

WEDNESDAY, MAY 12, 2004

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m. in room 485,

Russell Senate Building, Hon. Ben Nighthorse Campbell (chairman

of the committee) presiding.

Present: Senators Campbell and Inouye.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.

SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

The CHAIRMAN. Good morning. The committee will be in order.

This morning the committee will receive testimony on S. 1715, a

bill I introduced along with Senator Inouye to continue the steady

expansion of tribal self-governance by broadening the programs

within the Department of the Interior for which Indian tribes and

tribal consortia can contract and compact. There is no more successful Federal policy than tribal self-governance.

Today’s hearing will be the second of three hearings on tribal

self-governance the committee has held within a single month. Two

weeks ago this committee held a hearing on S. 2172, a bill to address the chronic underfunding of contract support costs. Next

week, we will be holding a hearing on S. 1696, a bill I introduced,

again along with Senator Inouye, to expand tribal self-governance

in the Department of Health and Human Services.

There are good and simple reasons for the successes and importance of tribal self-governance. Since President Nixon’s time, tribes

have shown that they are much better than the Federal Government at providing services and programs to tribal members. Over

one-half of the budgets of the BIA and the IHS are now administered by tribes, and the success of self-governance cannot be questioned.

It is time to take the next step and broaden self-governance to

include the non-BIA programs within the Department of the Interior. Today, we will hear from Dave Anderson, Welcome, Mr. Assistant Secretary; from tribal witnesses and experts in selfgovernance.
2

We will proceed with hearing from Dave Anderson. By the way,

all your written testimony will be included in the record if you

would like to abbreviate.

[Text of S. 1715 follows:]
3

1

II

108TH CONGRESS

1ST SESSION S. 1715

To amend the Indian Self-Determination and Education Assistance Act to

provide further self-governance by Indian tribes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 3, 2003

Mr. CAMPBELL (for himself and Mr. INOUYE) introduced the following bill;

which was read twice and referred to the Committee on Indian Affairs

A BILL

To amend the Indian Self-Determination and Education Assistance Act to provide further self-governance by Indian

tribes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Department of the In5 terior Tribal Self-Governance Act of 2003’’.

6 SEC. 2. AMENDMENT.

7 The Indian Self-Determination and Education Assist8 ance Act is amended by striking title IV (25 U.S.C. 458aa

9 et seq.) and inserting the following:
4

2

•S 1715 IS

1 ‘‘TITLE IV—TRIBAL SELF2 GOVERNANCE

3 ‘‘SEC. 401. DEFINITIONS.

4 ‘‘In this title:

5 ‘‘(1) COMPACT.—The term ‘compact’ means a

6 compact under section 404.

7 ‘‘(2) CONSTRUCTION PROGRAM.—The term

8 ‘construction program’ means a tribal undertaking

9 to complete any or all included programs relating to

10 the administration, planning, environmental deter11 mination, design, construction, repair, improvement,

12 or expansion of roads, bridges, buildings, structures,

13 systems, or other facilities for purposes of housing,

14 law enforcement, detention, sanitation, water supply,

15 education, administration, community health, irriga16 tion, agriculture, conservation, flood control, trans17 portation, or port facilities or for other tribal pur18 poses.

19 ‘‘(3) CONSTRUCTION PROJECT.—The term ‘con20 struction project’ means a tribal undertaking that

21 constructs 1 or more roads, bridges, buildings, struc22 tures, systems, or other facilities for purposes of

23 housing, law enforcement, detention, sanitation,

24 water supply, education, administration, community

25 health, irrigation, agriculture, conservation, flood
5

3

•S 1715 IS

1 control, transportation, or port facilities or for other

2 tribal purposes.

3 ‘‘(4) DEPARTMENT.—The term ‘Department’

4 means the Department of the Interior.

5 ‘‘(5) FUNDING AGREEMENT.—The term ‘fund6 ing agreement’ means a funding agreement under

7 section 405(b).

8 ‘‘(6) GROSS MISMANAGEMENT.—The term

9 ‘gross mismanagement’ means a significant viola10 tion, shown by clear and convincing evidence, of a

11 compact, funding agreement, or statutory or regu12 latory requirement applicable to Federal funds

13 transferred to an Indian tribe by a compact or fund14 ing agreement that results in a significant reduction

15 of funds being made available for the included pro16 grams assumed by an Indian tribe.

17 ‘‘(7) INCLUDED PROGRAM.—The term ‘included

18 program’ means a program that is eligible for inclu19 sion under a funding agreement (including any por20 tion of such a program and any function, service, or

21 activity performed under such a program).

22 ‘‘(8) INDIAN TRIBE.—The term ‘Indian tribe’,

23 in a case in which an Indian tribe authorizes an24 other Indian tribe, an inter-tribal consortium, or a

25 tribal organization to plan for or carry out an in-
6

4

•S 1715 IS

1 cluded program on its behalf in accordance with sec2 tion 403(a)(3), includes the other authorized Indian

3 tribe, inter-tribal consortium, or tribal organization.

4 ‘‘(9) INHERENT FEDERAL FUNCTION.—The

5 term ‘inherent Federal function’ means a Federal

6 function that cannot legally be delegated to an In7 dian tribe.

8 ‘‘(10) INTER-TRIBAL CONSORTIUM.—

9 ‘‘(A) IN GENERAL.—The term ‘inter-tribal

10 consortium’ means a coalition of 2 more sepa11 rate Indian tribes that join together for the

12 purpose of participating in self-governance.

13 ‘‘(B) INCLUSION.—The term ‘inter-tribal

14 organization’ includes a tribal organization.

15 ‘‘(11) SECRETARY.—The term ‘Secretary’

16 means the Secretary of the Interior.

17 ‘‘(12) SELF-GOVERNANCE.—The term ‘self-gov18 ernance’ means the program of self-governance es19 tablished under section 402.

20 ‘‘(13) TRIBAL SHARE.—The term ‘tribal share’

21 means an Indian tribe’s portion of all funds and re22 sources that support secretarial included programs

23 that are not required by the Secretary for the per24 formance of inherent Federal functions.
7

5

•S 1715 IS

1 ‘‘SEC. 402. ESTABLISHMENT.

2 ‘‘The Secretary shall carry out a program within the

3 Department to be known as the ‘Tribal Self-Governance

4 Program’.

5 ‘‘SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

6 ‘‘(a) IN GENERAL.—

7 ‘‘(1) CONTINUING PARTICIPATION.—An Indian

8 tribe that was participating in the Tribal Self-Gov9 ernance Demonstration Project at the Department

10 under title III on October 25, 1994, may elect to

11 participate in self-governance under this title.

12 ‘‘(2) ADDITIONAL PARTICIPANTS.—

13 ‘‘(A) IN GENERAL.—In addition to Indian

14 tribes participating in self-governance under

15 paragraph (1), an Indian tribe that meets the

16 eligibility criteria specified in subsection (b)

17 shall be entitled to participate in self-govern18 ance.

19 ‘‘(B) NO LIMITATION.—The Secretary

20 shall not limit the number of additional Indian

21 tribes to be selected each year from among In22 dian tribes that are eligible under subsection

23 (b).

24 ‘‘(3) OTHER AUTHORIZED INDIAN TRIBE,

25 INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERN26 MENT.—If an Indian tribe authorizes another Indian
8

6

•S 1715 IS

1 tribe, an inter-tribal consortium, or a tribal organi2 zation to plan for or carry out an included program

3 on its behalf under this title, the authorized Indian

4 tribe, inter-tribal consortium, or tribal organization

5 shall have the rights and responsibilities of the au6 thorizing Indian tribe (except as otherwise provided

7 in the authorizing resolution).

8 ‘‘(4) JOINT PARTICIPATION.—Two or more In9 dian tribes that are not otherwise eligible under sub10 section (b) may be treated as a single Indian tribe

11 for the purpose of participating in self-governance as

12 a consortium if—

13 ‘‘(A) if each Indian tribe so requests; and

14 ‘‘(B) the consortium itself is eligible under

15 subsection (b).

16 ‘‘(5) TRIBAL WITHDRAWAL FROM A CONSOR17 TIUM.—

18 ‘‘(A) IN GENERAL.—An Indian tribe that

19 withdraws from participation in an inter-tribal

20 consortium or tribal organization, in whole or in

21 part, shall be entitled to participate in self-gov22 ernance if the Indian tribe is eligible under sub23 section (b).

24 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In25 dian tribe withdraws from participation in an
9

7

•S 1715 IS

1 inter-tribal consortium or tribal organization,

2 the Indian tribe shall be entitled to its tribal

3 share of funds and resources supporting the in4 cluded programs that the Indian tribe will be

5 carrying out under the compact and funding

6 agreement of the Indian tribe.

7 ‘‘(C) PARTICIPATION IN SELF-GOVERN8 ANCE.—The withdrawal of an Indian tribe from

9 an inter-tribal consortium or tribal organization

10 shall not affect the eligibility of the inter-tribal

11 consortium or tribal organization to participate

12 in self-governance on behalf of 1 or more other

13 Indian tribes.

14 ‘‘(D) WITHDRAWAL PROCESS.—

15 ‘‘(i) IN GENERAL.—An Indian tribe

16 may fully or partially withdraw from a par17 ticipating inter-tribal consortium or tribal

18 organization its tribal share of any in19 cluded program that is included in a com20 pact or funding agreement.

21 ‘‘(ii) EFFECTIVE DATE.—

22 ‘‘(I) IN GENERAL.—A withdrawal

23 under clause (i) shall become effective

24 on the date specified in the resolution

25 that authorizes transfer to the partici-
10

8

•S 1715 IS

1 pating tribal organization or inter2 tribal consortium.

3 ‘‘(II) NO SPECIFIED DATE.—In

4 the absence of a date specified in the

5 resolution, the withdrawal shall be6 come effective on—

7 ‘‘(aa) the earlier of—

8 ‘‘(AA) 1 year after the

9 date of submission of the re10 quest; or

11 ‘‘(BB) the date on

12 which the funding agree13 ment expires; or

14 ‘‘(bb) such date as may be

15 agreed on by the Secretary, the

16 withdrawing Indian tribe, and

17 the tribal organization or inter18 tribal consortium that signed the

19 compact or funding agreement on

20 behalf of the withdrawing Indian

21 tribe, inter-tribal consortium, or

22 tribal organization.

23 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In24 dian tribe or tribal organization eligible to enter

25 into a self-determination contract under title I
11

9

•S 1715 IS

1 or a compact or funding agreement under this

2 title fully or partially withdraws from a partici3 pating inter-tribal consortium or tribal organi4 zation, the withdrawing Indian tribe—

5 ‘‘(i) may elect to enter into a self-de6 termination contract or compact, in which

7 case—

8 ‘‘(I) the withdrawing Indian tribe

9 or tribal organization shall be entitled

10 to its tribal share of funds and re11 sources supporting the included pro12 grams that the Indian tribe will be

13 carrying out under its own self-deter14 mination contract or compact and

15 funding agreement (calculated on the

16 same basis as the funds were initially

17 allocated to the funding agreement of

18 the inter-tribal consortium or tribal

19 organization); and

20 ‘‘(II) the funds referred to in

21 subclause (I) shall be withdrawn by

22 the Secretary from the funding agree23 ment of the inter-tribal consortium or

24 tribal organization and transferred to

25 the withdrawing Indian tribe, on the
12

10

•S 1715 IS

1 condition that sections 102 and

2 105(i), as appropriate, shall apply to

3 the withdrawing Indian tribe; or

4 ‘‘(ii) may elect not to enter into a self5 determination contract or compact, in

6 which case all funds not obligated by the

7 inter-tribal consortium associated with the

8 withdrawing Indian tribe’s returned in9 cluded programs, less closeout costs, shall

10 be returned by the inter-tribal consortium

11 to the Secretary for operation of the in12 cluded programs included in the with13 drawal.

14 ‘‘(F) RETURN TO MATURE CONTRACT STA15 TUS.—If an Indian tribe elects to operate all or

16 some included programs carried out under a

17 compact or funding agreement under this title

18 through a self-determination contract under

19 title I, at the option of the Indian tribe, the re20 sulting self-determination contract shall be a

21 mature self-determination contract.

22 ‘‘(b) ELIGIBILITY.—To be eligible to participate in

23 self-governance, an Indian tribe shall—

24 ‘‘(1) complete the planning phase described in

25 subsection (c);
13

11

•S 1715 IS

1 ‘‘(2) request participation in self-governance by

2 resolution or other official action by the tribal gov3 erning body; and

4 ‘‘(3) demonstrate, for the 3 fiscal years preced5 ing the date on which the Indian tribe requests par6 ticipation, financial stability and financial manage7 ment capability as evidenced by the Indian tribe’s

8 having no uncorrected significant and material audit

9 exceptions in the required annual audit of its self10 determination or self-governance agreements with

11 any Federal agency.

12 ‘‘(c) PLANNING PHASE.—

13 ‘‘(1) IN GENERAL.—An Indian tribe seeking to

14 participate in self-governance shall complete a plan15 ning phase in accordance with this subsection.

16 ‘‘(2) ACTIVITIES.—The planning phase—

17 ‘‘(A) shall be conducted to the satisfaction

18 of the Indian tribe; and

19 ‘‘(B) shall include—

20 ‘‘(i) legal and budgetary research; and

21 ‘‘(ii) internal tribal government plan22 ning and organizational preparation.

23 ‘‘(d) GRANTS.—

24 ‘‘(1) IN GENERAL.—Subject to the availability

25 of appropriations, an Indian tribe that meets the re-
14

12

•S 1715 IS

1 quirements of paragraphs (2) and (3) of subsection

2 (b) shall be eligible for grants—

3 ‘‘(A) to plan for participation in self-gov4 ernance; and

5 ‘‘(B) to negotiate the terms of participa6 tion by the Indian tribe or tribal organization

7 in self-governance, as set forth in a compact

8 and a funding agreement.

9 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re10 ceipt of a grant under paragraph (1) shall not be a

11 requirement of participation in self-governance.

12 ‘‘SEC. 404. COMPACTS.

13 ‘‘(a) IN GENERAL.—The Secretary shall negotiate

14 and enter into a written compact with as Indian tribe par15 ticipating in self-governance in a manner that is consistent

16 with the trust responsibility of the Federal Government,

17 treaty obligations, and the government-to-government re18 lationship between Indian tribes and the United States.

19 ‘‘(b) CONTENTS.—A compact under subsection (a)

20 shall—

21 ‘‘(1) specify the general terms of the govern22 ment-to-government relationship between the Indian

23 tribe and the Secretary; and

24 ‘‘(2) include such terms as the parties intend

25 shall control year after year.
15

13

•S 1715 IS

1 ‘‘(c) AMENDMENT.—A compact under subsection (a)

2 may be amended only by agreement of the parties.

3 ‘‘(d) EFFECTIVE DATE.—The effective date of a com4 pact under subsection (a) shall be—

5 ‘‘(1) the date of the execution of the compact

6 by the Indian tribe; or

7 ‘‘(2) another date agreed to by the parties.

8 ‘‘(e) DURATION.—A compact under subsection (a)

9 shall remain in effect for so long as permitted by Federal

10 law or until terminated by written agreement, retroces11 sion, or reassumption.

12 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici13 pating in self-governance under this title, as in effect on

14 the date of enactment of the Department of the Interior

15 Tribal Self-Governance Act of 2003, shall have the option

16 at any time after that date—

17 ‘‘(1) to retain its negotiated compact (in whole

18 or in part) to the extent that the provisions of the

19 compact are not directly contrary to any express

20 provision of this title; or

21 ‘‘(2) to negotiate a new compact in a manner

22 consistent with this title.

23 ‘‘SEC. 405. FUNDING AGREEMENTS.

24 ‘‘(a) IN GENERAL.—The Secretary shall negotiate

25 and enter into a written funding agreement with the gov-
16

14

•S 1715 IS

1 erning body of an Indian tribe in a manner that is consist2 ent with the trust responsibility of the Federal Govern3 ment, treaty obligations, and the government-to-govern4 ment relationship between Indian tribes and the United

5 States.

6 ‘‘(b) INCLUDED PROGRAMS.—

7 ‘‘(1) BUREAU OF INDIAN AFFAIRS AND OFFICE

8 OF SPECIAL TRUSTEE.—

9 ‘‘(A) IN GENERAL.—A funding agreement

10 shall, as determined by the Indian tribe, au11 thorize the Indian tribe to plan, conduct, con12 solidate, administer, and receive full tribal

13 share funding for all programs carried out by

14 the Bureau of Indian Affairs and the Office of

15 Special Trustee, without regard to the agency

16 or office within which the program is performed

17 (including funding for agency, area, and central

18 office functions in accordance with section

19 409(c)), that—

20 ‘‘(i) are provided for in the Act of

21 April 16, 1934 (25 U.S.C. 452 et seq.);

22 ‘‘(ii) the Secretary administers for the

23 benefit of Indians under the Act of Novem24 ber 2, 1921 (25 U.S.C. 13), or any subse25 quent Act;
17

15

•S 1715 IS

1 ‘‘(iii) the Secretary administers for

2 the benefit of Indians with appropriations

3 made to agencies other than the Depart4 ment of the Interior; or

5 ‘‘(iv) are provided for the benefit of

6 Indians because of their status as Indians.

7 ‘‘(B) INCLUSIONS.—Programs described in

8 subparagraph (A) shall include all programs

9 with respect to which Indian tribes or Indians

10 are primary or significant beneficiaries.

11 ‘‘(2) OTHER AGENCIES.—A funding agreement

12 under subsection (a) shall, as determined by the In13 dian tribe, authorize the Indian tribe to plan, con14 duct, consolidate, administer, and receive full tribal

15 share funding for all programs carried out by the

16 Secretary outside the Bureau of Indian Affairs,

17 without regard to the agency or office within which

18 the program is performed, including funding for

19 agency, area, and central office functions in accord20 ance with subsection 409(c), to the extent that the

21 included programs are within the scope of paragraph

22 (1).

23 ‘‘(3) DISCRETIONARY PROGRAMS.—A funding

24 agreement under subsection (a) may, in accordance

25 with such additional terms as the parties consider to
18

16

•S 1715 IS

1 be appropriate, include programs administered by

2 the Secretary, in addition to programs described in

3 paragraphs (1) and (2), that are of special geo4 graphical, historical, or cultural significance to the

5 Indian tribe.

6 ‘‘(4) COMPETITIVE BIDDING.—Nothing in this

7 section—

8 ‘‘(A) supersedes any express statutory re9 quirement for competitive bidding; or

10 ‘‘(B) prohibits the inclusion in a funding

11 agreement of a program in which non-Indians

12 have an incidental or legally identifiable inter13 est.

14 ‘‘(5) EXCLUDED FUNDING.—A funding agree15 ment shall not authorize an Indian tribe to plan,

16 conduct, administer, or receive tribal share funding

17 under any program that—

18 ‘‘(A) is provided under the Tribally Con19 trolled Community College Assistance Act of

20 1978 (25 U.S.C. 1801 et seq.);

21 ‘‘(B) is provided for elementary and sec22 ondary schools under the formula developed

23 under section 1128 of the Education Amend24 ments of 1978 (25 U.S.C. 2008); and
19

17

•S 1715 IS

1 ‘‘(C) is provided for the Flathead Agency

2 Irrigation Division or the Flathead Agency

3 Power Division (except that nothing in this sec4 tion affects the contract authority of the Flat5 head Agency Irrigation Division or the Flathead

6 Agency Power Division under section 102).

7 ‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL8 ITIES.—A funding agreement shall specify—

9 ‘‘(A) the services to be provided under the

10 funding agreement;

11 ‘‘(B) the functions to be performed under

12 the funding agreement; and

13 ‘‘(C) the responsibilities of the Indian tribe

14 and the Secretary under the funding agreement.

15 ‘‘(7) BASE BUDGET.—A funding agreement

16 shall, at the option of the Indian tribe, provide for

17 a stable base budget specifying the recurring funds

18 (including funds available under section 106(a)) to

19 be transferred to the Indian tribe, for such period as

20 the Indian tribe specifies in the funding agreement,

21 subject to annual adjustment only to reflect changes

22 in congressional appropriations.

23 ‘‘(8) NO WAIVER OF TRUST RESPONSIBILITY.—

24 A funding agreement shall prohibit the Secretary

25 from waiving, modifying, or diminishing in any way
20

18

•S 1715 IS

1 the trust responsibility of the United States with re2 spect to Indian tribes and individual Indians that ex3 ists under treaties, Executive orders, court decisions,

4 and other laws.

5 ‘‘(c) AMENDMENT.—The Secretary shall not revise,

6 amend, or require additional terms in a new or subsequent

7 funding agreement without the consent of the Indian tribe.

8 ‘‘(d) EFFECTIVE DATE.—A funding agreement shall

9 become effective on the date specified in the funding

10 agreement.

11 ‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE12 MENTS.—

13 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.—

14 Absent notification from an Indian tribe that is

15 withdrawing or retroceding the operation of 1 or

16 more included programs identified in a funding

17 agreement, or unless otherwise agreed to by the par18 ties to the funding agreement—

19 ‘‘(A) a funding agreement shall remain in

20 effect until a subsequent funding agreement is

21 executed; and

22 ‘‘(B) the term of the subsequent funding

23 agreement shall be retroactive to the end of the

24 term of the preceding funding agreement.
21

19

•S 1715 IS

1 ‘‘(2) EXISTING FUNDING AGREEMENTS.—An

2 Indian tribe that was participating in self-govern3 ance under this title on the date of enactment of the

4 Department of the Interior Tribal Self-Governance

5 Act of 2003 shall have the option at any time after

6 that date—

7 ‘‘(A) to retain its existing funding agree8 ment (in whole or in part) to the extent that

9 the provisions of that funding agreement are

10 not directly contrary to any express provision of

11 this title; or

12 ‘‘(B) to negotiate a new funding agreement

13 in a manner consistent with this title.

14 ‘‘(3) MULTIYEAR FUNDING AGREEMENTS.—An

15 Indian tribe may, at the discretion of the Indian

16 tribe, negotiate with the Secretary for a funding

17 agreement with a term that exceeds 1 year.

18 ‘‘SEC. 406. GENERAL PROVISIONS.

19 ‘‘(a) APPLICABILITY.—An Indian tribe may include

20 in any compact or funding agreement provisions that re21 flect the requirements of this title.

22 ‘‘(b) CONFLICTS OF INTEREST.—An Indian tribe

23 participating in self-governance shall ensure that internal

24 measures are in place to address, pursuant to tribal law
22

20

•S 1715 IS

1 and procedures, conflicts of interest in the administration

2 of included programs.

3 ‘‘(c) AUDITS.—

4 ‘‘(1) SINGLE AGENCY AUDIT ACT.—Chapter 75

5 of title 31, United States Code, shall apply to a

6 funding agreement under this title.

7 ‘‘(2) COST PRINCIPLES.—An Indian tribe shall

8 apply cost principles under the applicable Office of

9 Management and Budget circular, except as modi10 fied by—

11 ‘‘(A) section 106 of this Act or any other

12 provision of law; or

13 ‘‘(B) any exemptions to applicable Office

14 of Management and Budget circulars granted

15 by the Office of Management and Budget.

16 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed17 eral Government against an Indian tribe relating to

18 funds received under a funding agreement based on

19 an audit under this subsection shall be subject to

20 section 106(f).

21 ‘‘(d) REDESIGN AND CONSOLIDATION.—An Indian

22 tribe may redesign or consolidate included programs or re23 allocate funds for included programs in any manner that

24 the Indian tribe determines to be in the best interest of

25 the Indian community being served, so long as the rede-
23

21

•S 1715 IS

1 sign or consolidation does not have the effect of denying

2 eligibility for services to population groups otherwise eligi3 ble to be served under applicable Federal law.

4 ‘‘(e) RETROCESSION.—

5 ‘‘(1) IN GENERAL.—An Indian tribe may fully

6 or partially retrocede to the Secretary any included

7 program under a compact or funding agreement.

8 ‘‘(2) EFFECTIVE DATE.—

9 ‘‘(A) AGREEMENT.—Unless the Indian

10 tribe rescinds a request for retrocession, the

11 retrocession shall become effective on the date

12 specified by the parties in the compact or fund13 ing agreement.

14 ‘‘(B) NO AGREEMENT.—In the absence of

15 such a specification, the retrocession shall be16 come effective on—

17 ‘‘(i) the earlier of—

18 ‘‘(I) the date that is 1 year after

19 the date of submission of the request;

20 or

21 ‘‘(II) the date on which the fund22 ing agreement expires; or

23 ‘‘(ii) such date as may be agreed on

24 by the Secretary and the Indian tribe.
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•S 1715 IS

1 ‘‘(f) NONDUPLICATION.—A funding agreement shall

2 provide that, for the period for which, and to the extent

3 to which, funding is provided to an Indian tribe under this

4 title, the Indian tribe—

5 ‘‘(1) shall not be entitled to enter into a con6 tract with the Secretary for funds under section 102,

7 except that the Indian tribe shall be eligible for new

8 included programs on the same basis as other Indian

9 tribes; and

10 ‘‘(2) shall be responsible for the administration

11 of included programs in accordance with the com12 pact or funding agreement.

13 ‘‘(g) RECORDS.—

14 ‘‘(1) IN GENERAL.—Unless an Indian tribe

15 specifies otherwise in the compact or funding agree16 ment, records of an Indian tribe shall not be treated

17 as agency records for purposes of chapter 5 of title

18 5, United States Code.

19 ‘‘(2) RECORDKEEPING SYSTEM.—An Indian

20 tribe shall—

21 ‘‘(A) maintain a recordkeeping system; and

22 ‘‘(B) on 30 days’ notice, provide the Sec23 retary with reasonable access to the records to

24 enable the Department to meet the require-
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•S 1715 IS

1 ments of sections 3101 through 3106 of title

2 44, United States Code.

3 ‘‘SEC. 407. PROVISIONS RELATING TO THE SECRETARY.

4 ‘‘(a) TRUST EVALUATIONS.—A funding agreement

5 shall include a provision to monitor the performance of

6 trust functions by the Indian tribe through the annual

7 trust evaluation.

8 ‘‘(b) REASSUMPTION.—

9 ‘‘(1) IN GENERAL.—A compact or funding

10 agreement shall include provisions for the Secretary

11 to reassume an included program and associated

12 funding if there is a specific finding relating to that

13 included program of—

14 ‘‘(A) imminent jeopardy to a physical trust

15 asset, natural resource, or public health and

16 safety that—

17 ‘‘(i) is caused by an act or omission of

18 the Indian tribe; and

19 ‘‘(ii) arises out of a failure to carry

20 out the compact or funding agreement; or

21 ‘‘(B) gross mismanagement with respect to

22 funds transferred to an Indian tribe by a com23 pact or funding agreement, as determined by

24 the Secretary in consultation with the Inspector

25 General, as appropriate.
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•S 1715 IS

1 ‘‘(2) PROHIBITION.—The Secretary shall not

2 reassume operation of an included program unless—

3 ‘‘(A) the Secretary first provides written

4 notice and a hearing on the record to the In5 dian tribe; and

6 ‘‘(B) the Indian tribe does not take correc7 tive action to remedy gross mismanagement or

8 the imminent jeopardy to a physical trust asset,

9 natural resource, or public health and safety.

10 ‘‘(3) EXCEPTION.—

11 ‘‘(A) IN GENERAL.— Notwithstanding sub12 paragraph (2), the Secretary may, on written

13 notice to the Indian tribe, immediately re14 assume operation of an included program if—

15 ‘‘(i) the Secretary makes a finding of

16 both imminent and substantial jeopardy

17 and irreparable harm to a physical trust

18 asset, a natural resource, or the public

19 health and safety caused by an act or

20 omission of the Indian tribe; and

21 ‘‘(ii) the imminent and substantial

22 jeopardy and irreparable harm to the phys23 ical trust asset, natural resource, or public

24 health and safety arises out of a failure by
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•S 1715 IS

1 the Indian tribe to carry out its compact

2 or funding agreement.

3 ‘‘(B) REASSUMPTION.—If the Secretary re4 assumes operation of an included program

5 under subparagraph (A), the Secretary shall

6 provide the Indian tribe with a hearing on the

7 record not later than 10 days after the date of

8 reassumption.

9 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND10 ING AGREEMENT.—

11 ‘‘(1) FINAL OFFER.—If the Secretary and a

12 participating Indian tribe are unable to agree, in

13 whole or in part, on the terms of a compact or fund14 ing agreement (including funding levels), the Indian

15 tribe may submit a final offer to the Secretary.

16 ‘‘(2) DETERMINATION.—Not more than 45

17 days after the date of submission of a final offer, or

18 as otherwise agreed to by the Indian tribe, the Sec19 retary shall review and make a determination with

20 respect to the final offer.

21 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec22 retary fails to make a determination with respect to

23 a final offer within the time specified in paragraph

24 (2), the Secretary shall be deemed to have agreed to

25 the offer.
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•S 1715 IS

1 ‘‘(4) REJECTION OF FINAL OFFER.—

2 ‘‘(A) IN GENERAL.—If the Secretary re3 jects a final offer (or 1 or more provisions or

4 funding levels in a final offer), the Secretary

5 shall—

6 ‘‘(i) provide timely written notification

7 to the Indian tribe that contains a specific

8 finding that clearly demonstrates, or that

9 is supported by a controlling legal author10 ity, that—

11 ‘‘(I) the amount of funds pro12 posed in the final offer exceeds the

13 applicable funding level to which the

14 Indian tribe is entitled under this

15 title;

16 ‘‘(II) the included program that

17 is the subject of the final offer is an

18 inherent Federal function;

19 ‘‘(III) the Indian tribe cannot

20 carry out the included program in a

21 manner that would not result in sig22 nificant danger or risk to the public

23 health; or
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•S 1715 IS

1 ‘‘(IV) the Indian tribe is not eli2 gible to participate in self-governance

3 under section 403(b);

4 ‘‘(ii) provide technical assistance to

5 overcome the objections stated in the noti6 fication required by clause (i);

7 ‘‘(iii) provide the Indian tribe a hear8 ing on the record with the right to engage

9 in full discovery relevant to any issue

10 raised in the matter and the opportunity

11 for appeal on the objections raised (except

12 that the Indian tribe may, in lieu of filing

13 an appeal, directly proceed to bring a civil

14 action in United States district court

15 under section 110(a)); and

16 ‘‘(iv) provide the Indian tribe the op17 tion of entering into the severable portions

18 of a final proposed compact or funding

19 agreement (including a lesser funding

20 amount, if any), that the Secretary did not

21 reject, subject to any additional alterations

22 necessary to conform the compact or fund23 ing agreement to the severed provisions.
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•S 1715 IS

1 ‘‘(B) EFFECT OF EXERCISING CERTAIN

2 OPTION.—If an Indian tribe exercises the op3 tion specified in subparagraph (A)(iv)—

4 ‘‘(i) the Indian tribe shall retain the

5 right to appeal the rejection by the Sec6 retary under this section; and

7 ‘‘(ii) clauses (i), (ii), and (iii) of that

8 subparagraph shall apply only to the por9 tion of the proposed final compact or fund10 ing agreement that was rejected by the

11 Secretary.

12 ‘‘(d) BURDEN OF PROOF.—In any administrative

13 hearing or appeal or civil action brought under this sec14 tion, the Secretary shall have the burden of demonstrating

15 by clear and convincing evidence the validity of the

16 grounds for rejecting a final offer made under subsection

17 (c) or the grounds for a reassumption under subsection

18 (b).

19 ‘‘(e) GOOD FAITH.—

20 ‘‘(1) IN GENERAL.—In the negotiation of com21 pacts and funding agreements, the Secretary shall at

22 all times negotiate in good faith to maximize imple23 mentation of the self-governance policy.
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•S 1715 IS

1 ‘‘(2) POLICY.—The Secretary shall carry out

2 this Act in a manner that maximizes the policy of

3 tribal self-governance.

4 ‘‘(f) SAVINGS.—To the extent that included programs

5 carried out by Indian tribes under this title reduce the

6 administrative or other responsibilities of the Secretary

7 with respect to the operation of Indian programs and re8 sult in savings that have not otherwise been included in

9 the amount of tribal shares and other funds determined

10 under section 409(c), the Secretary shall make such sav11 ings available to the Indian tribes, inter-tribal consortia,

12 or tribal organizations for the provision of additional serv13 ices to program beneficiaries in a manner equitable to di14 rectly served, contracted, and included programs.

15 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary may

16 not waive, modify, or diminish in any way the trust re17 sponsibility of the United States with respect to Indian

18 tribes and individual Indians that exists under treaties,

19 Executive orders, other laws, or court decisions.

20 ‘‘(h) DECISIONMAKER.—A decision that constitutes

21 final agency action and relates to an appeal within the

22 Department brought under subsection (c)(4) may be

23 made—

24 ‘‘(1) by an official of the Department who holds

25 a position at a higher organizational level within the
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•S 1715 IS

1 Department than the level of the departmental agen2 cy in which the decision that is the subject of the

3 appeal was made; or

4 ‘‘(2) by an administrative law judge.

5 ‘‘(i) RULE OF CONSTRUCTION.—Each provision of

6 this title and each provision of a compact or funding

7 agreement shall be liberally construed for the benefit of

8 the Indian tribe participating in self-governance, and any

9 ambiguity shall be resolved in favor of the Indian tribe.

10 ‘‘SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUC11 TION PROJECTS.

12 ‘‘(a) IN GENERAL.—An Indian tribe participating in

13 self-governance may carry out a construction program or

14 construction project under this title in the same manner

15 as the Indian tribe carries out other included programs

16 under this title, consistent with the provisions of all appli17 cable Federal laws.

18 ‘‘(b) FEDERAL FUNCTIONS.—An Indian tribe partici19 pating in self-governance may, in carrying out construc20 tion projects under this title, elect to assume all Federal

21 responsibilities under the National Environmental Policy

22 Act of 1969 (42 U.S.C. 4321 et seq.), the National His23 toric Preservation Act (16 U.S.C. 470 et seq.), and related

24 provisions of law that would apply if the Secretary were
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•S 1715 IS

1 to carry out a construction project, by adopting a

2 resolution—

3 ‘‘(1) designating a certifying officer to rep4 resent the Indian tribe and to assume the status of

5 a responsible Federal official under those laws; and

6 ‘‘(2) accepting the jurisdiction of the Federal

7 courts for the purpose of enforcement of the respon8 sibilities of the responsible Federal official under ap9 plicable environmental law.

10 ‘‘(c) NEGOTIATIONS.—

11 ‘‘(1) IN GENERAL.—In accordance with all ap12 plicable Federal laws, a construction program or

13 construction project shall be treated in the same

14 manner and be subject to all provisions of this Act

15 as are all other tribal assumptions of included pro16 grams under this Act.

17 ‘‘(2) CONSTRUCTION PROJECTS.—A provision

18 shall be included in the funding agreement that, for

19 each construction project—

20 ‘‘(A) states the approximate start and

21 completion dates of the construction project,

22 which may extend for 1 or more years;

23 ‘‘(B) provides a general description of the

24 construction project;
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•S 1715 IS

1 ‘‘(C) states the responsibilities of the In2 dian tribe and the Secretary with respect to the

3 construction project;

4 ‘‘(D) describes—

5 ‘‘(i) the ways in which the Indian

6 tribe will address project-related environ7 mental considerations; and

8 ‘‘(ii) the standards by which the In9 dian tribe will accomplish the construction

10 project; and

11 ‘‘(E) the amount of funds provided for the

12 construction project.

13 ‘‘(d) CODES AND STANDARDS; TRIBAL ASSUR14 ANCES.—A funding agreement shall contain a certification

15 by the Indian tribe that the Indian tribe will establish and

16 enforce procedures designed to ensure that all construc17 tion-related included programs carried out through the

18 funding agreement adhere to building codes and other

19 codes and architectural and engineering standards (includ20 ing public health and safety standards) identified by the

21 Indian tribe in the funding agreement, which codes and

22 standards shall be in conformity with nationally recog23 nized standards for comparable projects in comparable lo24 cations.
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•S 1715 IS

1 ‘‘(e) RESPONSIBILITY FOR COMPLETION.—The In2 dian tribe shall assume responsibility for the successful

3 completion of a construction project in accordance with

4 the funding agreement.

5 ‘‘(f) FUNDING.—

6 ‘‘(1) IN GENERAL.—At the option of an Indian

7 tribe, full funding for a construction program or

8 construction project carried out under this title shall

9 be included in a funding agreement as an annual ad10 vance payment.

11 ‘‘(2) ENTITLEMENT.—Notwithstanding the an12 nual advance payment provisions or any other provi13 sion of law, an Indian tribe shall be entitled to re14 ceive in its initial funding agreement all funds made

15 available to the Secretary for multiyear construction

16 programs and projects carried out under this title.

17 ‘‘(3) CONTINGENCY FUNDS.—The Secretary

18 shall include associated project contingency funds in

19 an advance payment described in paragraph (1), and

20 the Indian tribe shall be responsible for the manage21 ment of the contingency funds included in the fund22 ing agreement.

23 ‘‘(4) REALLOCATION OF SAVINGS.—

24 ‘‘(A) IN GENERAL.—Notwithstanding any

25 other provision of an annual Act of appropria-
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34

•S 1715 IS

1 tion or other Federal law, an Indian tribe may

2 reallocate any financial savings realized by the

3 Indian tribe arising from efficiencies in the de4 sign, construction, or any other aspect of a con5 struction program or construction project.

6 ‘‘(B) PURPOSES.—A reallocation under

7 subparagraph (A) shall be for construction-re8 lated activity purposes generally similar to

9 those for which the funds were appropriated

10 and distributed to the Indian tribe under the

11 funding agreement.

12 ‘‘(g) APPROVAL.—

13 ‘‘(1) IN GENERAL.—If the planning and design

14 documents for a construction project are prepared

15 by an Indian tribe in a manner that is consistent

16 with the certification given by the Indian tribe as re17 quired under subsection (d), approval by the Sec18 retary of a funding agreement providing for the as19 sumption of the construction project shall be deemed

20 to be an approval by the Secretary of the construc21 tion project planning and design documents.

22 ‘‘(2) REPORTS.—The Indian tribe shall provide

23 the Secretary with construction project progress and

24 financial reports not less than semiannually.
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•S 1715 IS

1 ‘‘(3) INSPECTIONS.—The Secretary may con2 duct onsite project inspections at a construction

3 project semiannually or on an alternate schedule

4 agreed to by the Secretary and the Indian tribe.

5 ‘‘(h) WAGES.—

6 ‘‘(1) IN GENERAL.—All laborers and mechanics

7 employed by a contractor or subcontractor in the

8 construction, alteration, or repair (including painting

9 and decorating) of a building or other facility in con10 nection with a construction project funded by the

11 United States under this title shall be paid wages at

12 not less than the amounts of wages prevailing on

13 similar construction in the locality as determined by

14 the Secretary of Labor in accordance with sub15 chapter IV of chapter 31 of title 40, United States

16 Code.

17 ‘‘(2) AUTHORITY.—With respect to construc18 tion, alteration, or repair work to which that sub19 chapter is applicable under this subsection, the Sec20 retary of Labor shall have the authority and func21 tions specified in the Reorganization Plan numbered

22 14, of 1950.

23 ‘‘(3) APPLICABILITY OF SUBSECTION.—Not24 withstanding any other provision of law, this sub-
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36

•S 1715 IS

1 section does not apply to any portion of a construc2 tion project carried out under this Act—

3 ‘‘(A) that is funded from a non-Federal

4 source, regardless of whether the non-Federal

5 funds are included with Federal funds for ad6 ministrative convenience; or

7 ‘‘(B) that is performed by a laborer or me8 chanic employed directly by an Indian tribe or

9 tribal organization.

10 ‘‘(4) APPLICABILITY OF TRIBAL LAW.—This

11 subsection does not apply to a compact or funding

12 agreement if the compact, self-determination con13 tract, or funding agreement is otherwise covered by

14 a law (including a regulation) adopted by an Indian

15 tribe that requires the payment of not less than pre16 vailing wages, as determined by the Indian tribe.

17 ‘‘(i) APPLICABILITY OF OTHER LAW.—Unless other18 wise agreed to by the Indian tribe, no provision of the Of19 fice of Federal Procurement Policy Act (41 U.S.C. 401

20 et seq.), the Federal Acquisition Regulation, or any other

21 law or regulation pertaining to Federal procurement (in22 cluding Executive orders) shall apply to any construction

23 program or project conducted under this title.
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•S 1715 IS

1 ‘‘SEC. 409. PAYMENT.

2 ‘‘(a) IN GENERAL.—At the request of the governing

3 body of the Indian tribe and under the terms of a funding

4 agreement, the Secretary shall provide funding to the In5 dian tribe to carry out the funding agreement.

6 ‘‘(b) ADVANCE ANNUAL PAYMENT.—At the option of

7 the Indian tribe, a funding agreement shall provide for

8 an advance annual payment to an Indian tribe.

9 ‘‘(c) AMOUNT.—Subject to subsection (e) and sec10 tions 405 and 406 of this title, the Secretary shall provide

11 funds to the Indian tribe under a funding agreement for

12 included programs in the amount that is equal to the

13 amount that the Indian tribe would have been entitled to

14 receive under contracts and grants under this Act (includ15 ing amounts for direct program and contract support costs

16 and, in addition, any funds that are specifically or func17 tionally related to the provision by the Secretary of serv18 ices and benefits to the Indian tribe or its members) with19 out regard to the organization level within the Federal

20 agency in which the included programs are carried out.

21 ‘‘(d) TIMING.—Unless the funding agreement pro22 vides otherwise, the transfer of funds shall be made not

23 later than 10 days after the apportionment of funds by

24 the Office of Management and Budget to the Department.

25 ‘‘(e) AVAILABILITY.—Funds for trust services to indi26 vidual Indians shall be available under a funding agree-
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38

•S 1715 IS

1 ment only to the extent that the same services that would

2 have been provided by the Secretary are provided to indi3 vidual Indians by the Indian tribe.

4 ‘‘(f) MULTIYEAR FUNDING.—A funding agreement

5 may provide for multiyear funding.

6 ‘‘(g) LIMITATION ON AUTHORITY OF THE SEC7 RETARY.—The Secretary shall not—

8 ‘‘(1) fail to transfer to an Indian tribe its full

9 share of any central, headquarters, regional, area, or

10 service unit office or other funds due under this Act,

11 except as required by Federal law;

12 ‘‘(2) withhold any portion of such funds for

13 transfer over a period of years; or

14 ‘‘(3) reduce the amount of funds required under

15 this Act—

16 ‘‘(A) to make funding available for self17 governance monitoring or administration by the

18 Secretary;

19 ‘‘(B) in subsequent years, except as nec20 essary as a result of—

21 ‘‘(i) a reduction in appropriations

22 from the previous fiscal year for the pro23 gram to be included in a compact or fund24 ing agreement;
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•S 1715 IS

1 ‘‘(ii) a congressional directive in legis2 lation or an accompanying report;

3 ‘‘(iii) a tribal authorization;

4 ‘‘(iv) a change in the amount of pass5 through funds subject to the terms of the

6 funding agreement; or

7 ‘‘(v) completion of an activity under

8 an included program for which the funds

9 were provided;

10 ‘‘(C) to pay for Federal functions,

11 including—

12 ‘‘(i) Federal pay costs;

13 ‘‘(ii) Federal employee retirement ben14 efits;

15 ‘‘(iii) automated data processing;

16 ‘‘(iv) technical assistance; and

17 ‘‘(v) monitoring of activities under

18 this Act; or

19 ‘‘(D) to pay for costs of Federal personnel

20 displaced by self-determination contracts under

21 this Act or self-governance.

22 ‘‘(h) FEDERAL RESOURCES.—If an Indian tribe

23 elects to carry out a compact or funding agreement with

24 the use of Federal personnel, Federal supplies (including

25 supplies available from Federal warehouse facilities), Fed-
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•S 1715 IS

1 eral supply sources (including lodging, airline transpor2 tation, and other means of transportation including the

3 use of interagency motor pool vehicles), or other Federal

4 resources (including supplies, services, and resources

5 available to the Secretary under any procurement con6 tracts in which the Department is eligible to participate),

7 the Secretary shall acquire and transfer such personnel,

8 supplies, or resources to the Indian tribe.

9 ‘‘(i) PROMPT PAYMENT ACT.—Chapter 39 of title 31,

10 United States Code, shall apply to the transfer of funds

11 due under a compact or funding agreement authorized

12 under this Act.

13 ‘‘(j) INTEREST OR OTHER INCOME.—

14 ‘‘(1) IN GENERAL.—An Indian tribe may retain

15 interest or income earned on any funds paid under

16 a compact or funding agreement to carry out gov17 ernmental purposes.

18 ‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The

19 retention of interest or income under paragraph (1)

20 shall not diminish the amount of funds that an In21 dian tribe is entitled to receive under a funding

22 agreement in the year in which the interest or in23 come is earned or in any subsequent fiscal year.
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•S 1715 IS

1 ‘‘(3) INVESTMENT STANDARD.—Funds trans2 ferred under this title shall be managed using the

3 prudent investment standard.

4 ‘‘(k) CARRYOVER OF FUNDS.—

5 ‘‘(1) IN GENERAL.—Notwithstanding any provi6 sion of an Act of appropriation, all funds paid to an

7 Indian tribe in accordance with a compact or fund8 ing agreement shall remain available until expended.

9 ‘‘(2) EFFECT OF CARRYOVER.—If an Indian

10 tribe elects to carry over funding from 1 year to the

11 next, the carryover shall not diminish the amount of

12 funds that the Indian tribe is entitled to receive

13 under a funding agreement in that fiscal year or any

14 subsequent fiscal year.

15 ‘‘(l) LIMITATION OF COSTS.—

16 ‘‘(1) IN GENERAL.—An Indian tribe shall not

17 be obligated to continue performance that requires

18 an expenditure of funds in excess of the amount of

19 funds transferred under a compact or funding agree20 ment.

21 ‘‘(2) NOTICE OF INSUFFICIENCY.—If at any

22 time an Indian tribe has reason to believe that the

23 total amount provided for a specific activity under a

24 compact or funding agreement is insufficient, the In-
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•S 1715 IS

1 dian tribe shall provide reasonable notice of the in2 sufficiency to the Secretary.

3 ‘‘(3) SUSPENSION OF PERFORMANCE.—If the

4 Secretary does not increase the amount of funds

5 transferred under the funding agreement, the Indian

6 tribe may suspend performance of the activity until

7 such time as additional funds are transferred.

8 ‘‘SEC. 410. CIVIL ACTIONS.

9 ‘‘(a) INCLUSION AS CONTRACT.—Except as provided

10 in subsection (b), for the purposes of section 110, the term

11 ‘contract’ shall include a funding agreement.

12 ‘‘(b) CONTRACTS WITH PROFESSIONALS.—For the

13 period during which a funding agreement is in effect, sec14 tion 2103 of the Revised Statutes (25 U.S.C. 81), and

15 section 16 of the Act of June 18, 1934 (25 U.S.C. 476)

16 shall not apply to a contract between an attorney or other

17 professional and an Indian tribe.

18 ‘‘SEC. 411. FACILITATION.

19 ‘‘(a) IN GENERAL.—Except as otherwise provided by

20 law, the Secretary shall interpret each Federal law (includ21 ing a regulation) in a manner that facilitates—

22 ‘‘(1) the inclusion of included programs in

23 funding agreements; and

24 ‘‘(2) the implementation of funding agreements.

25 ‘‘(b) REGULATION WAIVER.—
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•S 1715 IS

1 ‘‘(1) REQUEST.—An Indian tribe may submit a

2 written request for a waiver to the Secretary identi3 fying the specific text in regulation sought to be

4 waived and the basis for the request.

5 ‘‘(2) DETERMINATION BY THE SECRETARY.—

6 Not later than 60 days after the date of receipt by

7 the Secretary of a request under paragraph (1), the

8 Secretary shall approve or deny the requested waiver

9 in writing to the Indian tribe.

10 ‘‘(3) GROUND FOR DENIAL.—The Secretary

11 may deny a request for a waiver only on a specific

12 finding by the Secretary that the identified text in

13 the regulation may not be waived because such a

14 waiver is prohibited by Federal law.

15 ‘‘(4) FAILURE TO MAKE DETERMINATION.—If

16 the Secretary fails to approve or deny a waiver re17 quest within the time required under paragraph (2),

18 the Secretary shall be deemed to have approved the

19 request.

20 ‘‘(5) FINALITY.—The Secretary’s decision shall

21 be final for the Department.

22 ‘‘SEC. 412. DISCLAIMERS.

23 ‘‘Nothing in this title expands or alters any statutory

24 authority of the Secretary so as to authorize the Secretary
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•S 1715 IS

1 to enter into any funding agreement under section

2 405(b)(2) or 415(c)(1)—

3 ‘‘(1) with respect to an inherent Federal func4 tion;

5 ‘‘(2) in a case in which the statute establishing

6 a program does not authorize the type of participa7 tion sought by the Indian tribe (without regard to

8 whether 1 or more Indian tribes are identified in the

9 authorizing statute); or

10 ‘‘(3) limits or reduces in any way the services,

11 contracts, or funds that any other Indian tribe or

12 tribal organization is eligible to receive under section

13 102 or any other applicable Federal law.

14 ‘‘SEC. 413. APPLICABILITY OF OTHER PROVISIONS.

15 ‘‘(a) MANDATORY APPLICATION.—Sections 5(d), 6,

16 102(c), 104, 105(f), 110, and 111 apply to compacts and

17 funding agreements under this title.

18 ‘‘(b) DISCRETIONARY APPLICATION.—

19 ‘‘(1) IN GENERAL.—At the option of a partici20 pating Indian tribe, any or all of the provisions of

21 title I or title V shall be incorporated in a compact

22 or funding agreement.

23 ‘‘(2) EFFECT.—Each incorporated provision—

24 ‘‘(A) shall have the same effect as if the

25 provision were set out in full in this title; and
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•S 1715 IS

1 ‘‘(B) shall be deemed to supplement or re2 place any related provision in this title and to

3 apply to any agency otherwise governed by this

4 title.

5 ‘‘(3) EFFECTIVE DATE.—If an Indian tribe re6 quests incorporation at the negotiation stage of a

7 compact or funding agreement, the incorporation—

8 ‘‘(A) shall be effective immediately; and

9 ‘‘(B) shall control the negotiation and re10 sulting compact and funding agreement.

11 ‘‘SEC. 414. BUDGET REQUEST.

12 ‘‘(a) REQUIREMENT OF ANNUAL BUDGET RE13 QUEST.—

14 ‘‘(1) IN GENERAL.—The President shall iden15 tify in the annual budget request submitted to Con16 gress under section 1105 of title 31, United States

17 Code, all funds necessary to fully fund all funding

18 agreements authorized under this title.

19 ‘‘(2) DUTY OF SECRETARY.—The Secretary

20 shall ensure that there are included, in each budget

21 request, requests for funds in amounts that are suf22 ficient for planning and negotiation grants and suffi23 cient to cover any shortfall in funding identified

24 under subsection (b).
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1 ‘‘(3) TIMING.—All funds included within fund2 ing agreements shall be provided to the Office of

3 Self-Governance not later than 15 days after the

4 date on which funds are apportioned to the Depart5 ment.

6 ‘‘(4) DISTRIBUTION OF FUNDS.—The Office of

7 Self-Governance shall be responsible for distribution

8 of all funds provided under this title.

9 ‘‘(5) RULE OF CONSTRUCTION.—Nothing in

10 this subsection authorizes the Secretary to reduce

11 the amount of funds that an Indian tribe is other12 wise entitled to receive under a funding agreement

13 or other applicable law.

14 ‘‘(b) PRESENT FUNDING; SHORTFALLS.—In all

15 budget requests, the President shall identify the level of

16 need presently funded and any shortfall in funding (in17 cluding direct program costs, tribal shares and contract

18 support costs) for each Indian tribe, either directly by the

19 Secretary of Interior, under self-determination contracts,

20 or under compacts and funding agreements.

21 ‘‘SEC. 415. REPORTS.

22 ‘‘(a) IN GENERAL.—

23 ‘‘(1) REQUIREMENT.—On January 1 of each

24 year, the Secretary shall submit to Congress a re25 port regarding the administration of this title.
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•S 1715 IS

1 ‘‘(2) ANALYSIS.—A report under paragraph (1)

2 shall include a detailed analysis of tribal unmet need

3 for each Indian tribe, either directly by the Sec4 retary, under self-determination contracts under title

5 I, or under compacts and funding agreements au6 thorized under this subchapter.

7 ‘‘(3) NO ADDITIONAL REPORTING REQUIRE8 MENTS.—In preparing reports under paragraph (1),

9 the Secretary may not impose any reporting require10 ment on participating Indian tribes not otherwise

11 provided for by this Act.

12 ‘‘(b) CONTENTS.—A report under subsection (a)

13 shall—

14 ‘‘(1) be compiled from information contained in

15 funding agreements, annual audit reports, and data

16 of the Secretary regarding the disposition of Federal

17 funds;

18 ‘‘(2) identify—

19 ‘‘(A) the relative costs and benefits of self20 governance;

21 ‘‘(B) with particularity, all funds that are

22 specifically or functionally related to the provi23 sion by the Secretary of services and benefits to

24 self-governance Indian tribes and members of

25 Indian tribes;
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48

•S 1715 IS

1 ‘‘(C) the funds transferred to each Indian

2 tribe and the corresponding reduction in the

3 Federal bureaucracy;

4 ‘‘(D) the funding formula for individual

5 tribal shares of all Central Office funds, with

6 the comments of affected Indian tribes, devel7 oped under subsection (d); and

8 ‘‘(E) amounts expended in the preceding

9 fiscal year to carry out inherent Federal func10 tions, including an identification of inherent

11 Federal functions by type and location;

12 ‘‘(3) contain a description of the methods used

13 to determine the individual tribal share of funds con14 trolled by all components of the Department (includ15 ing funds assessed by any other Federal agency) for

16 inclusion in compacts or funding agreements;

17 ‘‘(4) before being submitted to Congress, be dis18 tributed to the Indian tribes for comment (with a

19 comment period of not less than 30 days); and

20 ‘‘(5) include the separate views and comments

21 of each Indian tribe or tribal organization.

22 ‘‘(c) REPORT ON NON-BIA PROGRAMS.—

23 ‘‘(1) IN GENERAL.—In order to optimize oppor24 tunities for including non-Bureau of Indian Affairs

25 included programs in agreements with Indian tribes
51

49

•S 1715 IS

1 participating in self-governance under this title, the

2 Secretary shall—

3 ‘‘(A) review all included programs adminis4 tered by the Department, other than through

5 the Bureau of Indian Affairs, without regard to

6 the agency or office concerned;

7 ‘‘(B) not later than January 1, 2004, sub8 mit to Congress—

9 ‘‘(i) a list of all such included pro10 grams that the Secretary determines, with

11 the concurrence of Indian tribes participat12 ing in self-governance, are eligible to be in13 cluded in a funding agreement at the re14 quest of a participating Indian tribe; and

15 ‘‘(ii) a list of all such included pro16 grams for which Indian tribes have re17 quested to include in a funding agreement

18 under section 405(b)(3) due to the special

19 geographic, historical, or cultural signifi20 cance to the Indian tribe, indicating wheth21 er each request was granted or denied and

22 stating the grounds for any denial.

23 ‘‘(2) PROGRAMMATIC TARGETS.—The Secretary

24 shall establish programmatic targets, after consulta25 tion with Indian tribes participating in self-govern-
52

50

•S 1715 IS

1 ance, to encourage bureaus of the Department to en2 sure that a significant portion of those included pro3 grams are included in funding agreements.

4 ‘‘(3) PUBLICATION.—The lists and targets

5 under paragraphs (1) and (2) shall be published in

6 the Federal Register and be made available to any

7 Indian tribe participating in self-governance.

8 ‘‘(4) ANNUAL REVIEW.—

9 ‘‘(A) IN GENERAL.—The Secretary shall

10 annually review and publish in the Federal Reg11 ister, after consultation with Indian tribes par12 ticipating in self-governance, revised lists and

13 programmatic targets.

14 ‘‘(B) CONTENTS.—The revised lists and

15 programmatic targets shall include all included

16 programs that were eligible for contracting in

17 the original list published in the Federal Reg18 ister in 1995, except for included programs spe19 cifically determined not to be contractible as a

20 matter of law.

21 ‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Not

22 later than January 1, 2004, the Secretary shall, in con23 sultation with Indian tribes, develop a funding formula to

24 determine the individual tribal share of funds controlled
53

51

•S 1715 IS

1 by the Central Office of the Bureau of Indian Affairs for

2 inclusion in the self-governance compacts.

3 ‘‘SEC. 416. REGULATIONS.

4 ‘‘(a) IN GENERAL.—

5 ‘‘(1) PROMULGATION.—Not later than 90 days

6 after the date of the enactment of the Department

7 of the Interior Tribal Self-Governance Act of 2003,

8 the Secretary shall initiate procedures under sub9 chapter III of chapter 5, of title 5, United States

10 Code, to negotiate and promulgate such regulations

11 as are necessary to carry out the amendments made

12 by that Act.

13 ‘‘(2) PUBLICATION OF PROPOSED REGULA14 TIONS.—Proposed regulations to implement the

15 amendments shall be published in the Federal Reg16 ister not later than 1 year after the date of enact17 ment of that Act.

18 ‘‘(3) EXPIRATION OF AUTHORITY.—The author19 ity to promulgate regulations under paragraph (1)

20 shall expire on the date that is 18 months after the

21 date of enactment of that Act.

22 ‘‘(b) COMMITTEE.—

23 ‘‘(1) MEMEBERSHIP.—A negotiated rulemaking

24 committee established under section 565 of title 5,

25 United States Code, to carry out this section shall
54

52

•S 1715 IS

1 have as its members only Federal and tribal govern2 ment representatives.

3 ‘‘(2) LEAD AGENCY.— Among the Federal rep4 resentatives, the Office of Self-Governance shall be

5 the lead agency for the Department of the Interior.

6 ‘‘(c) ADAPTATION OF PROCEDURES.—The Secretary

7 shall adapt the negotiated rulemaking procedures to the

8 unique context of self-governance and the government-to9 government relationship between the United States and

10 Indian tribes.

11 ‘‘(d) EFFECT.—

12 ‘‘(1) REPEAL.—All regulatory provisions under

13 part 1000 of title 25, Code of Federal Regulations,

14 are repealed on the date of enactment of the Depart15 ment of the Interior Tribal Self-Governance Act of

16 2003.

17 ‘‘(2) EFFECTIVENESS WITHOUT REGARD TO

18 REGULATIONS.—The lack of promulgated regula19 tions shall not limit the effect of this Act.

20 ‘‘(3) INTERIM PROVISION.—Notwithstanding

21 this subsection, any regulation under part 1000 of

22 title 25, Code of Federal Regulations, shall remain

23 in effect, at an Indian tribe’s option, in implement24 ing compacts until regulations are promulgated.
55

53

•S 1715 IS

1 ‘‘SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS,

2 GUIDANCES, AND RULES.

3 ‘‘Unless expressly agreed to by a participating Indian

4 tribe in a compact or funding agreement, the participating

5 Indian tribe shall not be subject to any agency circular,

6 policy, manual, guidance, or rule adopted by the Depart7 ment, except for—

8 ‘‘(1) the eligibility provisions of section 105(g);

9 and

10 ‘‘(2) regulations promulgated under section

11 416.

12 ‘‘SEC. 418. APPEALS.

13 ‘‘In any administrative appeal or civil action for judi14 cial review of any decision made by the Secretary under

15 this title, the Secretary shall have the burden of proof of

16 demonstrating by clear and convincing evidence—

17 ‘‘(1) the validity of the grounds for the decision;

18 and

19 ‘‘(2) the consistency of the decision with the

20 provisions and policies of this title.

21 ‘‘SEC. 419. AUTHORIZATION OF APPROPRIATIONS.

22 ‘‘There are authorized to be appropriated such sums

23 as are necessary to carry out this title.’’.

Æ
56

STATEMENT OF DAVE ANDERSON, ASSISTANT SECRETARY

FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY WILLIAM A. SINCLAIR, DIRECTOR, OFFICE

OF SELF-GOVERNANCE AND SELF-DETERMINATION

Mr. ANDERSON. Good morning, Mr. Chairman and members of

the committee. Also, I would like to recognize our tribal leaders

that are here in the room this morning.

I am pleased to be here to provide the Administration’s position

on S. 1715, a bill to amend title IV of the Indian Self-Determination and Education Assistance Act. I just would like to say that

even though I am new on the job, in my briefings I have come to

understand that we have had in the past a pretty good working relationship regarding the development of this bill. I think we have

come a long way over the last few years. I just wanted everyone

to know that we are committed to working with the tribes.

There are still a few difficulties that I think that we need to resolve, but I think overall we have come a long way on the things

that we do agree on.

In 1988, Congress amended the Indian Self-Determination and

Education Assistance Act by adding Title III, which authorized the

Self-Governance Demonstration Project. In 1994, Congress again

amended the act by adding title IV, establishing a program within

the Department of the Interior to be known as Tribal Self-Governance. The addition of title IV made self-governance a permanent

option for the tribes.

These amendments authorized federally recognized tribes to negotiate funding agreements with the Department of the Interior for

programs, services, functions or activities administered by the Bureau of Indian Affairs [BIA] and, within certain parameters, authorized such funding agreements with other bureaus. In the year

2000, the act was amended again to include titles V and VI, making self-governance a permanent option for tribes to negotiate compacts with Indian Health Services.

In 1990, the first seven funding agreements were negotiated for

about $27 million in total funding. For fiscal year 2004, there are

83 agreements that include 227 federally recognized tribes and

about $300 million in total funding. So we have come a long way

over these years.

Some of these agreements are with tribal consortia which account for the number of such tribes exceeding the number of agreements. These funding agreements allow federally recognized tribes

to provide a wide range of programs and services to their members,

such as law enforcement, scholarship, welfare assistance and housing repairs, just to mention a few.

Many of the funding agreements include trust-related programs

such as real estate services, appraisals, probates and natural resource programs such as forestry, fisheries and agriculture. What

makes these funding agreements unique is that the title IV allows

tribal governments to redesign programs and set their own priorities, consistent with federal laws and regulations. This authority

allows tribal leaders the ability to respond to the unique needs of

their tribal members without seeking approval by departmental officials.
57

In fact, in the last two weeks under this Administration, Secretary Norton signed the first-ever self-governance funding agreement between a tribe and the Fish and Wildlife Service. Title IV

authorizes funding agreement throughout all bureaus within the

Department of the Interior.

On April 30, we also signed the agreement between, and this is

what I just referenced, signed the agreement between the Council

of the Athabascan Tribal Governments and the Fish and Wildlife

Service that will enable the Council to perform certain functions

previously provided by the Service on Yukon Flats National Wildlife Refuge in Alaska during fiscal year 2004 to 2005. This agreement was the first of its kind between the Service and a federally

recognized organization.

In addition, in fiscal year 2004 and 2005, there will be four tribal-funded agreements with the Bureau of Reclamation and four

tribal-funded agreements with the National Park Service. So we

are making progress.

The Department has concerns with this bill, S. 1715, which we

would like to work with this committee to ensure that this legislation does not adversely impact our ability to meet our trust responsibilities. In particular, the Department is concerned with subsection 409(L) which would permit a tribe to cease performance if

it appears the expenditure of funds is in excess of the amount

transferred under a compact or funding agreement. If the Secretary

does not increase the amount of funds transferred under the funding agreement, a tribe would be permitted to suspend performance

of the activity until such time as additional funds are transferred.

We have concerns about the impact this provision may have, especially on fiduciary trust functions.

Under this provision, if a tribe contracts with the Department to

administer IIM accounts and then decides there is not enough

money to administer these accounts, the tribe could simply stop

making IIM distributions to IIM accountholders. It is imperative

that a tribe perform any fiduciary function it contracts or compacts

for regardless of the level of funding. The tribe should return the

function to the Department to administer if they believe that the

funding level is inadequate, rather than to have their members suffer if the tribe decides not to perform.

In addition, section 405(B)(1)(b) also broadens application of the

funding agreements to authorize tribes to contract for all programs

to which Indian tribes or Indians are primary or significant beneficiaries. Current law allows federally recognized tribes to assume

programs administered by the Department’s bureaus and offices

other than the BIA, subject to negotiations and as long as the programs are available to Indian tribes or Indians. We would recommend that section 405(B)(1)(b) be made discretionary and subject to the terms of the agreement for programs in which Indian

tribes or Indians are the primary or significant beneficiaries.

Finally, the Department is concerned with the reassumption provision contained in section 407. The provision would require that

imminent jeopardy, substantial jeopardy and irreparable harm be

met simultaneously in order for the Secretary to resume a program. This is a very high standard to achieve. Having to prove all

three conditions practically eliminates the ability of the Secretary
58

to quickly reassume a program in those rare instances where such

an immediate assumption would be necessary, such as instances

where serious injury or harm may occur. The Department would

recommend that the reassumption standard contained in the current title IV be retained.

While we believe that S. 1715 is moving in the right direction to

expand self-governance, we cannot support the legislation at this

time, especially given the current high priority for trust reform and

the impact this legislation would potentially have to that critical

program.

We look forward to working with this committee and the tribes

in developing alternative language to address our concerns.

Mr. Chairman, this concludes my statement and I will be happy

to answer any questions.

[Prepared statement of Mr. Anderson appears in appendix.]

The CHAIRMAN. Okay, thank you. I appreciate that, Mr. Assistant Secretary.

I have several questions. Before I do, though, I want to take just

a moment of personal privilege because I saw a number of our

young Indian people come in and sit in the back of the room. I

would like to introduce a couple of personal friends that are in the

audience that are also in the back, particularly to those youngsters.

One is Gene Keluche who is the head of the American Indian

Sports Council that is here today. Gene, why don’t you stand up

for just 1 moment if you would. He is accompanied there with an

old dear friend of mine and former teammate, Billy Mills, Oglala

Sioux. Billy was the first American in the history of Olympic competition to win the 10,000 meter, if you know anything about international sports. He has been just a wonderful role model for our

kids.

I want to introduce them so the youngsters over there who had

never had a chance to meet either of these very, very well-known

gentlemen in Indian sports could see them.

Thank you for being here.

[Applause.]

The CHAIRMAN. Now, Mr. Assistant Secretary, before I get into

some of the questions on the bill, you mentioned to me before we

started that you had been on the road quite a bit visiting tribes.

How many tribes have you been out there to talk to?

Mr. ANDERSON. I have visited 20 to 25 tribes.

The CHAIRMAN. At least 20. And in talking to them, has anything

come through that is sort of a main concern across the board of

tribes?

Mr. ANDERSON. Yes, sir; there is. One of the major concerns that

they have is law enforcement. It seems like this is an important

priority with all of the tribes, especially the rampant increased use

of methamphetamines, the finding of methamphetamine labs on a

reservation, and not having the ability to adequately police those

activities. Increasingly, we are seeing a rise in alcohol and drug use

among our teens. So I think that is a very important concern.

But then overall, one of the things that I have come to recognize

is that we need to have a vision for where Indian country is going.

I think all of the things that we deal with on a day-to-day basis

are pretty much dealing or reacting to some of the brushfires that
59

are happening out there. I think overall what is important for our

Indian families is to know that in this great country that we live

in, that our children growing up can have dreams and know that

if they pursue those dreams and follow their passion, that they can

live successful and rewarding lives. I believe that is possible.

The CHAIRMAN. Before we finish this year, I am going to try to

frame up a hearing to deal with just a general overview about

where we ought to go, particularly from the standpoint of youngsters.

Of those tribes you visited when you were talking about law enforcement, do you happen to know the number of them or the percent of those who do their own contracting for law enforcement?

Mr. ANDERSON. Senator, I would have to get back to you on that.

The CHAIRMAN. Okay. One of the really important things that we

have tried to do, both Senator Inouye and I, is improve tribal selfgovernance, as you may know. The BIA, as I understand it, worries

that the tribes will stop performing contracts if they do not receive

enough funding. Funding is always a problem. But over the years,

we have had dozens of tribes appear before this committee complaining that they have been forced to perform 638 contracts with

inadequate funding, particularly when it comes to contract support

costs.

If a tribe stops performing under a 638 contract, doesn’t the Department have the authority to step in and take over the services

or the program?

Mr. ANDERSON. Yes; they could. Senator, I would like to introduce Mr. Sinclair. He is not on the list, but he is the Director for

the Office of Self-Governance at the Bureau.

The CHAIRMAN. Okay. So whenever you think you have an answer, Mr. Sinclair, we would appreciate your thoughts on it, too.

Isn’t it part of the negotiating process for a tribe and the agency

to determine what is sufficient funding when dealing with a 638

contract? Mr. Sinclair, go ahead.

Mr. SINCLAIR. Yes, sir; when we negotiate a self-governance

agreement or a 638 contract, we base it upon either the President’s

budget, which is modified then by congressional appropriations. So

the constraint is to determine what the tribe’s share is of that particular programmatic amount and then determine it. That would

also include contract support as well.

The CHAIRMAN. Do you know off-hand how many times has a

tribal contractor stopped performing its responsibilities, and particularly if they have done it without giving sufficient warning to

the Bureau that they were going to have to stop?

Mr. SINCLAIR. To my knowledge, I do not know of any tribe that

has actually done that. Basically, tribes take over the responsibility

for programs, services or functional activities, many times knowing

that the funding they will be receiving is inadequate, but they believe that because of the flexibility of the self-governance that they

can do a better job of serving their people. Many times because

they have ownership of those programs, as you well know, sir, they

augment that with tribal resources. So while tribes do feel the pain

of inadequate funding, along with the Department itself and the

Bureau itself in providing services, they do a lot with what they

receive.
60

The CHAIRMAN. You mentioned that the re-assumption standard

in section 407 is too high. Is the Department’s view that raising the

standard might interfere with the Department’s trust responsibility? So the Department cannot support the bill because of the high

priority for trust reform and the concern about trust reform?

Mr. ANDERSON. Right. But I would also like to preface this. We

also believe that one, we are not that far away. We have come a

long way from my understanding of where we started out a couple

of years ago. There are a number of things that still need to be resolved, but one of the things I would like to say is that in our briefings, we are committed to seeing this thing through. It is something we would like to see happen.

So when I said that at this time we were not in support of it does

not mean that we are fighting it, but it means that there are just

some things, there are a few difficult things that need to be resolved that we feel can be worked out.

The CHAIRMAN. I appreciate that, because that is what the committee wants to do too. Maybe the Department sees the bill a little

differently than we do, but it seems to me that self-governance is

certainly part of the answer to trust reform. In the language of the

bill, what specific language could you point to that causes problems

in trust reform efforts? I want to try to make some changes to

make this thing work, too, before I leave, if I can. I think with the

Department’s help we can get something that is going to go a long

way to help tribal governments.

Mr. ANDERSON. I think one of the main ones is this inherent in

Federal function.

The CHAIRMAN. Okay. Mr. Sinclair, maybe you could answer,

what does ‘‘inherent function’’ mean to you?

Mr. SINCLAIR. The definitions of tribal shares and inherently

Federal functions is a concern to us. While it is consistent with

what is in title V, we are fearful that the standard presents us

with, well, the definition as defined is that if something needs to

be statutorily defined, and there are many functions that in providing trust services as we are defining it through the trust reform

that are not in statutes. Yet, as the Secretary is a trustee, she feels

that these are things that only she can delegate to a Federal official, but it is not codified in law. We feel like with this definition

we would be in a tension between tribes who are asking to have

those services or functions delegated to them through a contract or

compact, and we would be refusing them based upon the trustee.

It would set up an unnecessarily adversary relationship that could

go into the courts and all that stuff.

The CHAIRMAN. Okay. I have no further questions, but I look forward to working with you to try to make this resolvable.

I might tell you, Mr. Assistant Secretary, you have just come on

board in the last year. I have not been here nearly as long as some

of my colleagues, but I have been here 12 years. As I just go over

in my own mind about all the bills that we have dealt with to try

to help Indian people, you were not here, but I want to tell you I

cannot remember a single one, frankly, that the Administration,

anybody’s Administration in the last 12 years I have been here, has

put forth.
61

Most of the good bills that have come up and gone through the

committee have come from Indian people. In some cases, we had

to sort of drag part of the Administration along kicking and

screaming, when I thought we were all supposed to be in this together, whether it was the Interior Department or the Indian

Health Service or this committee or tribes, and that was to try to

make Indian people more self-sufficient, make them have a lifestyle

that certainly they deserve, and a little more independence from

being tethered to the Federal Government. An awful lot of the

times when these bills are put forward by tribes or by somebody

in the committee, we run into a buzz saw of opposition from the

Administration.

So we are always continually trying to negotiate about where we

can fix the thing to move something forward. So much of what has

happened, at least in the 12 years that I have been here, maybe

I am wrong, but I viewed an awful lot of it from the standpoint of

the opposition being from turf protection more than trying to do the

right thing to help Indian people.

When I helped you with your confirmation, I was very, very impressed with what I thought was a real belief in trying to make

sure that Indian people get a fair shake out of this government. I

would hope after I am gone and you are still here, that that is

going to be a driving force with you in the years of your tenure.

Mr. ANDERSON. Senator Campbell, I cannot tell you how much I

appreciate your sentiments. I am a firm believer, as evidenced in

my own life of being self-determined. When I came on board, I

came on board with the spirit of heart that I could make a difference. I will tell you that this has been a real awakening for me.

But I also believe that we cannot give up. When we are out there,

like a lot of tribal leaders, we often think that, God, if I could just

get in there, I would do this a whole lot differently. And then when

you get into it, you find that the bureaucracy is greater than anybody could imagine.

I have a goal to be able to try and cut redtape wherever we can.

I have a goal to see our Indian people self-determined, economically

self-sufficient and self-governed. I believe that as sovereign people

that we can accomplish that. Somehow, some way, I believe that

we will see this happen.

The CHAIRMAN. Mr. Assistant Secretary, welcome to Washington.

[Laughter.]

Thank you very much for your testimony.

Mr. ANDERSON. Thank you.

The CHAIRMAN. We will now hear from, and by the way, there

may be some followup questions. Senator Inouye had a conflict this

morning. He and several other members were not here. We may

submit some to you to be answered in writing.

Mr. ANDERSON. I would also say that I have always tried in

every meeting to be the last person out of the room. Today, I have

some scheduling conflicts that I cannot get out of, and this is the

first time I have ever left before the end of a meeting.

The CHAIRMAN. I would appreciate it if you would read the testimony of the next panel when you have the time.

Mr. ANDERSON. Thank you for your time.
62

The CHAIRMAN. We will now go to panel II. That will be the Fred

Matt, chairman of the Confederated Salish and Kootenai Tribes of

Flathead Reservation in Pablo, MT; Geoffrey Strommer, Hobbs,

Strauss, Dean, and Walker from Portland; and Phil Baker-Shenk

from Holland and Knight, the former committee staffmember. Welcome to the committee this morning.

Mr. Matt, how are things up in Flathead country?

Mr. MATT. It was cold when I left.

The CHAIRMAN. It was cold when you left. How is my friend Allard and their family?

Mr. MATT. Doug Allard is an amazing man. I just love your

friend. He just recently went through bypass surgery. He had a

valve in his heart that was not functioning properly, so he is recovering now from that heart surgery.

The CHAIRMAN. He is a friend of mine for 30, 35 years. Please

give him my best and well wishes.

Mr. MATT. I always do.

The CHAIRMAN. Good. Tell him to stop eating the fry bread. That

will hurt your heart. [Laughter.]

Okay, we will go ahead with you, Chairman Matt.

STATEMENT OF D. FRED MATT, CHAIRMAN, CONFEDERATED

SALISH AND KOOTENAI TRIBES, FLATHEAD RESERVATION

Mr. MATT. Chairman Campbell and committee members, my

name is Fred Matt. I serve as chairman of the Tribal Council for

the Confederated Salish and Kootenai Tribes. With me today from

our legal staff is Brian Upton and George Waters, our lobbyist here

in town.

The CHAIRMAN. We know Mr. Waters.

Mr. MATT. I have provided written testimony for the record. I

will limit my remarks to just a few highlights, although it is going

to be hard to try to condense it in the time I know that I have allowed, because we have done so much at Flathead that we are

proud of and we want to share our successes.

I understand also that this may be the last time that I testify

before this committee with you as Chairman. And although Senator

Inouye is not here today, on behalf of the Salish and Kootenai people please accept our appreciation for the great work you have both

done for Indian country, and staff like Pat Zell and Paul Moorhead.

It is difficult to imagine what Indian country would look like today,

if over the course of the last century, every member of Congress

had simply spent a fraction of the time that you have spent fighting for Indian people.

Senator Campbell, during your 18 years in the House and Senate, you have become a hero, literally, and a role model for Native

Americans. We wish you the best of luck in life after the Senate.

The CHAIRMAN. Thank you. Would you send a copy of that statement to my wife? [Laughter.]

Mr. MATT. Definitely.

The CHAIRMAN. Thank you.

Mr. MATT. In gold, bold letters. [Laughter.]

And as well pass on our appreciation to Senator Inouye. Again,

and for the last 45 years that he has been in Congress, the Indian

people have simply never had a better friend or advocate. We look
63

forward to working with him as Ranking Member of the Commerce

Committee.

Again, I am honored to be asked to provide testimony on tribal

self-governance, as our tribes are proud of our successes in managing the programs of the Federal Government. Our success began

when the self-determination law was passed, and after President

Nixon proposed this landmark policy. CSKT was one of the first

tribes to exercise the opportunity of Public Law 93–638. Since

1975, we have begun management of BIA education programs. We

have not looked back. I have said that many times before.

Today, I am proud to report that the tribes I represent manage

under self-determination more Federal programs than any other

tribe in this Nation. We do so with excellent evaluations, clean financial audits, and with few if any complaints from those who receive those services.

For example, we are the only tribe operating the BIA’s title plant

and individual Indian money account program, and all of the natural resources programs that generate the revenue deposited in

those accounts. Since 1989, we have operated a safety of dams program responsible for rehabilitation of 17 dams located on our reservation. We have had extremely good success. We have repaired

dams quicker and cheaper than has the Bureau of Reclamation.

One example is the Black Lake Dam was completed at a savings

of approximately $1.3 million below the Bureau of Reclamation’s

estimates.

Again, I have said this before, but my personal favorite success

story in self-determination is the Mission Valley Power. We manage the power utility that provides electricity to nearly 22,000 Indian and non-Indian consumers on our Flathead Reservation.

Today, I am proud to report that Mission Valley Power offers some

of the lowest cost and most stable electric rates throughout the

Northwest. We have an independent utility board and we have an

active consumer council. Mission Valley Power’s conservation programs have won several awards, and our safety record is outstanding.

We have succeeded because local government is the best government and this includes Indian tribes. Our tribal council is the best

suited to address the needs of our tribal members, and we understand their needs as we talk with them in our grocery stores, at

basketball games, and our weekly council meetings. We do not operate one-size-fits-all programs created through bureaucracies.

With the self-governance flexibility, we tailor the program to fit the

needs, while complying with federal laws and regulations.

My written testimony describes the tribe’s compacting experience

in more detail. While self-governance has been a quantum leap in

Federal policy, the act itself could be improved and strengthened

to better meet its objectives. My written testimony examines some

of the proposed changes and lays out rationales as to why such

changes are needed.

We are particularly pleased to see the bill define ‘‘inherent Federal function,’’ and include OST funding as mandatory for inclusion

in annual funding agreements. As this committee is aware, the

CSKT is currently negotiating with the U.S. Fish and Wildlife

Service for an annual funding agreement covering various activities
64

at the National Bison Range Complex. It has been 10 long years

since we first initiated this effort. It has been an expensive, frustrating and resource-intensive effort, to say the least. Our efforts

to assume management of this Complex began when Congress authorized the management of Department of the Interior programs

to tribes that have a significant historic, geographic or cultural tie.

CSKT meets all of these criteria with the National Bison Range.

The Range is located in the heart of our reservation, entirely on

land reserved for us through the Hell Gate Treaty of 1855. The

bison at the Range are descended from a herd raised by tribal

members Charles Allard and Michel Pablo.

Finally, a study conducted by the Service documents a number

of cultural sites. After nearly a decade, we are close to reaching an

agreement. The recent agreement by Secretary Norton with the

Council of Athabascan Tribal Governments for the Yukon Flats National Wildlife Refuge should help finalize our agreement. We congratulate the Athabascan leaders and the Fish and Wildlife Service

in Alaska for reaching this agreement.

One of our primary concerns with the process has been the creation of a moving target to finalize negotiations. The Fish and

Wildlife Service continually creates new issues which has delayed

reaching an agreement. For example, at one point in January of

this year, we thought we had narrowed down our outstanding

issues to a very short list, and then the Fish and Wildlife Service

unilaterally rewrote the draft AFA in February so that it included

some unacceptable new issues, further delaying our process.

Despite our concerns, we are hopeful that we can finalize an AFA

with Fish and Wildlife Service in the very near future. It will be

submitted to this committee for a 90-day period before it becomes

effective. At that time, we will need the support of our friends in

Congress who share our vision and goals. We are aware that there

is some opposition, but we are confident that the Federal decisionmakers here in Washington will see the opposition’s arguments for

what they are. We believe that most people agree with the New

York Times when it said in a September 3, 2003 editorial that,

quote:

The National Bison Range is an unusual case. It offers a rare convergence of public and tribal interests. If the Salish and Kootenai can reach an agreement with the

Fish and Wildlife Service, something will not have been taken from the public;

something will be added to it.

Unquote.

Mr. Chairman, my written testimony includes specific comments

on provisions in S. 1715. A number of those comments reflect

CSKT’s current experience with the Fish and Wildlife Service in

negotiating an agreement on the National Bison Range Complex,

as well as 15 years of self-governance experience with other Interior agencies, principally the BIA. Overall, I believe that S. 1715

would help place Indian tribes on a stronger footing when negotiating with the Department of the Interior and its agencies, and that

it should be enacted into law.

Mr. Chairman, thank you for the opportunity to provide my

views to this committee.

[Prepared statement of Mr. Matt appears in appendix.]

The CHAIRMAN. Thank you, Mr. Chairman.
65

Now we will go to Mr. Strommer.

STATEMENT OF GEOFFREY STROMMER, HOBBS, STRAUSS,

DEAN AND WALKER, ON BEHALF OF THE COUNCIL OF

ATHABASCAN TRIBAL GOVERNMENTS

Mr. STROMMER. Good morning, Mr. Chairman. It is an honor and

a privilege to be here today to offer testimony on behalf of the

Council of Athabascan Tribal Governments. Ben Stevens, the

Council’s Self-Governance Coordinator, was scheduled to be here

today, but unfortunately his trip canceled at the last minute, so I

am really just substituting for him.

My name is Geoff Strommer. I am a partner at Hobbs, Strauss,

Dean, Walker, a large national law firm that specializes in representing Indian tribes throughout the country. For over 10 years,

a large part of my practice has focused on working with tribes and

tribal organizations seeking to exercise rights under the Indian

Self-Determination Act, both self-determination contracting as well

as self-governance compacting with the Department of the Interior

as well as the Department of Health and Human Services.

In my comments today, I would like to focus on three areas. I

would like to talk a little bit about CATG’s experience in self-governance, particularly as it relates to its most recent achievement

of negotiating a self-governance agreement with the Fish and Wildlife Service; some of the benefits that CATG has been able to

achieve through the self-governance program; and then I want to

talk about a couple of key provisions in the title IV amendments

that CATG has a particular interest in seeing enacted, and give

you the justification for that interest.

Let me start by telling you a little bit about CATG itself. It is

a tribal organization that was created in 1985 by 10 tribes to provide essential services to tribal members. The services range from

natural resources management, economic development, and a wide

array of health services. The geographic area in which CATG provides these services is quite large. It encompasses the entire Yukon

Flats National Wildlife Refuge and part or the Arctic National

Wildlife Refuge. I have heard some people say that it is close to the

size of Wyoming, to give you a sense of the size of the territory that

we are talking about.

CATG’s villages have been located in this large region since time

immemorial. Today, many tribal members live subsistence lifestyles that are very closely tied to the land, and that are dependent

upon a healthy and vibrant ecosystem.

For many years, CATG has had a compact of self-governance

with the BIA, as well as a compact of self-governance with the Department of Health and Human Services. It provides comprehensive health care services, for example, throughout the region, and

operates a health center in Fort Yukon, which is the main hub city

in the region.

Two weeks ago, after a long and difficult effort, CATG became

the first tribal organization in the country to enter into a self-governance funding agreement with the Fish and Wildlife Service.

CATG sought to assume specific programs from Fish and Wildlife

that relate to the Yukon Flats National Wildlife Refuge, because of

its tribal members’ unique historical, geographic and cultural rela-
66

tionship to the programs carried out by Fish and Wildlife on the

Flats.

Under the agreement, the Fish and Wildlife Service will transfer close to $60,000 to CATG. CATG will perform specific responsibilities in exchange for those funds. Those responsibilities include locating public easements under the Alaska Native Claims Settlement Act, some environmental outreach, educational outreach,

wildlife harvest data collection, survey of the moose population,

and some logistical functions such as maintenance of vehicles and

facilities that the Fish and Wildlife Service has in Fort Yukon.

The agreement describes operational standards and performance

measures that CATG has agreed to meet. The United States retains complete oversight and ultimate control over the lands and

resources within the Yukon Flats. The agreement is to last one

year and is renewable by the parties in future years.

CATG is very proud of the agreement. I wish Ben were here himself because he would express in his own words just how proud

they are. They are committed to making it work in partnership

with the Fish and Wildlife Service. The agreement is viewed as a

first step in a relationship between Fish and Wildlife Service and

CATG that tribal leaders hope will grow and last long into the future.

The agreement provides many tangible benefits to the Refuge

and its resources. CATG brings to the partnership a wealth of traditional and ecological knowledge. It has experience working with

local residents to gather accurate data. It has demonstrated its efficiency and effectiveness in fisheries and wildlife research projects,

habitat management activities, harvest data collection, aerial surveys, subsistence use surveys, and traditional knowledge interviews.

While the agreement is an example of a successful partnership

between the tribes and the United States, it is a success that was

not easily achieved. Beginning in 1998, when CATG first submitted

a proposal to assume certain functions from the Fish and Wildlife

Service, CATG had to work hard to educate Fish and Wildlife Service representatives and people in the region of the benefits of the

self-governance program.

I will not describe all the steps that CATG had to go through to

ultimately conclude an agreement with Fish and Wildlife Service.

I will say that the process for arriving to the point where the parties could sign an agreement was long, challenging, and very frustrating at times for CATG. It is only because CATG was completely

committed to its goal of forging a new relationship with the Fish

and Wildlife Service under title IV and was willing to bear great

expense to do so in commitment of financial resources, time and energy that it succeeded in accomplishing what it sought by negotiating the agreement.

A key element in the process was that under title IV, Fish and

Wildlife Service retained complete discretion over whether to transfer any of the programs over to CATG, and the exercise of that discretion was subject to the individual discretion of Fish and Wildlife

representatives sitting across the table. Ultimately, it took a commitment from top political leadership at the Department of the Interior for the Fish and Wildlife Service employees sitting across the
67

table to have the same level of commitment to reach an agreement

with CATG as CATG brought to the table.

I do not think that Congress intended the process to be as difficult as it has proven to be. I also doubt that Congress could have

foreseen that it would take 10 years from the date it enacted title

IV for a tribe to be able to assume the kinds of programs that are

included in CATG’s agreement.

Unfortunately, the difficulties CATG encountered in the process

were not unique. A number of other tribes and tribal organizations

that tried to assume similar programs from non-BIA agencies after

title IV was enacted in 1994 simply gave up after running into bureaucratic resistance to the full implementation of what Congress

intended through that act.

Several of the proposed amendments in S. 1715 are intended to

help clarify the scope of programs that tribes can assume as a matter of right in a funding agreement, and provide tribes with more

leverage during the negotiation process.

Let me talk a little bit about the title IV amendments. The

amendments advance several very important purposes. First, over

95 percent of the bill’s provisions are intended to ensure consistency between title IV and title V, the permanent self-governance

authority within the Department of Health and Human Services

enacted in 2000. Enactment of those provisions are critical to ensure that tribes participating in both self-governance programs

have access to the same advantages and rights as they manage

programs and funds that govern tribes’ rights to assume non-BIA

programs. The existing title IV provisions delegate to the Secretary

almost complete discretion to negotiate non-BIA programs into selfgovernance agreements, and provides little by way of process or

substantive rights that a tribe can utilize if it does not agree with

the exercise of discretion.

S. 1715 contains several important provisions that will help address some of the problems CATG encountered as it sought to assume functions from Fish and Wildlife Service. For example, a provision that Assistant Secretary Anderson discussed, Section

405(B)(1)(b), amends title IV to make clear that tribes have the

right to administer any program from non-BIA agencies in which

Indian tribes are the primary or significant beneficiaries.

This language is important. It is language that will ensure that

non-BIA agencies will not decline to include a particular program

in a funding agreement simply because non-Indians might incidentally benefit from the program. If tribes are the primary beneficiaries of a particular program, CATG believes that it should as

a matter of right have a right to take over that program within the

confines of the self-governance legislation and manage that program.

This provision, coupled with the new section 407 of the bill that

creates important and needed procedures that must be followed

whenever a tribe and the Secretary cannot agree on terms included

in an agreement, will go a long way toward clarifying tribes’ rights

to assume non-BIA programs and give tribes more leverage in the

negotiation process over these programs.

Finally, the bill includes several provisions that seek to address

BIA’s specific problems such as construction programs and projects,
68

reassumption standards and trust-related functions, some of which

we discussed earlier in the context of Mr. Anderson’s testimony.

Many of these provisions are very similar to comparable provisions

in title V, but were redrafted and included in S. 1715 to focus on

BIA-specific issues. I agree that we still have some room to negotiate over many of those provisions with the Department and I am

hopeful, as Mr. Anderson indicated, that we will be able to achieve

some kind of a resolution over most of the areas of disagreement

at some time over the upcoming months.

In conclusion, CATG very much supports the enactment of all the

provision in S. 1715 as it is presently drafted. Self-governance has

given tribes the flexibility to achieve goals in a way that is most

meaningful for the people most affected. Further, improvement in

the self-governance program within the Department of the Interior

can provide not only benefits for the land, its resources and the

people who use and enjoy them, as envisioned by Congress when

it first enacted title IV, but most particularly give more opportunities to tribes in the future to continue improving the service delivery to the local people.

Thank you for the opportunity to testify today. I will be pleased

to answer any questions that you may have.

[Prepared statement of Ben Stevens, as presented by Mr.

Strommer, appears in appendix.]

The CHAIRMAN. Thank you. I have several before I go on to Mr.

Baker-Shenk. You brought up a very important point, I think. We

pass legislation here and it is signed into law, but that is not the

end of it. Then it has to be implemented by agencies. That is done

through the rulemaking authority, as you know. Unfortunately,

sometimes agencies by the time they get done with the rules, it just

flies in the face of the intent of the darn bill when we passed it.

We have seen tribes come in after rules have been implemented

for laws we passed, and said that it does exactly different; something else from what the had wanted or what we had wanted. That

is the unfortunate thing that sometimes tribes simply give up, as

you mentioned, or sometimes there is not enough communication

between the agencies and the tribes, so the tribes know what they

can avail themselves to in the first place. So there are a lot of

weaknesses when you have a government as clumsy and big as we

have. The intent of the bills when they get out of this committee,

I can tell you, is to try to help Indian people.

Now we go to Mr. Baker-Shenk.

STATEMENT OF PHIL BAKER-SHENK, ESQUIRE, HOLLAND AND

KNIGHT LLP, WASHINGTON, DC

Mr. BAKER-SHENK. Thank you, Mr. Chairman. I am with the law

firm of Holland and Knight. We also represent a number of tribes

and tribal organizations around the country.

I am pleased and honored today to testify in support of S. 1715.

Geoff, I and others have been working a long time with some tribal

leaders to get this bill to the shape it is in.

I plan today to give a brief overview of the basis for self-governance as a matter of policy and philosophy, and the rationale for the

amendments in this bill. At the end of my written testimony, there
69

is a brief section-by-section on the bill, all of which I would appreciate being included in the record.

The CHAIRMAN. It will be in the record.

Mr. BAKER-SHENK. As well, if I may, a letter from the chairman

of the Jamestown-S’Klallam Tribe, Ron Allen who is seated here,

to the Assistant Secretary Aurene Martin which supplements and

seeks on behalf of the tribes an additional provision be added.

The CHAIRMAN. Okay, Mr. Allen’s letter will also be included in

the record.

[Referenced document appears in appendix.]

Mr. BAKER-SHENK. Thank you.

Mr. Chairman, a few words first on my personal experience with

this issue of tribal self-governance. For the past quarter century,

I have had the personal privilege to be working with tribal and

Federal officials on these and related issues. I have served several

tours of duty here on this committee staff and worked as a legal

advocate for tribal governments. In all those years that have been

given to me, the most important and personally rewarding issue

has been this issue of tribal self-governance; that of shaping and

expanding the authority that tribes are given back by the United

States to run their own affairs.

The mission of this movement, if you will, of self-governance is

to transform a dependency-ridden and a services delivery system

run by the federal government, into a government-to-government

relationship that returns power, accountability, responsibility and

flexibility, along with funding, to tribal governments.

In leading these efforts to authorize and expand tribal self-governance, you, Mr. Chairman, and some of your colleagues on this

committee and others have believed that if given the chance, tribal

governments would indeed administer the programs for their people in a competent, accountable and efficient manner. You put

some of your reputation on the line in that belief, and I dare say

that none of the self-governance tribes have disappointed you.

I have had first-hand experience advising tribes during negotiations like those mentioned earlier and the implementation of dozens of compacts and funding agreements. But the bill would permit

the many other tribes who are waiting to join this an opportunity

to be involved. It is also providing much, much more funding and

authority that still exists at the Interior Department in making

that available for transfer to tribes under self-governance.

This is precisely why early enactment of this bill is an imperative. It would remove obstacles that have been identified in the negotiations and in the implementations, differences over what was

the true intent of the Congress the last time you approached this

in 1994, informed by the work that Congress did in 2000. It would

remove obstacles that have emerged in these negotiations that

have blocked further expansion of self-governance. Thereby, it

would create and encourage greater tribal participation.

The roots of tribal self-governance do run deep in American legal

and political history, but summed up, perhaps President Nixon said

it best when he said, ‘‘the goal is to remove Federal control, while

preserving federal concern and federal support.’’ That rejected the

previous policies and practices of persecution, termination and paternalism.
70

This act has been amended many times by Congress, as you stated, and the intent has always been debated after enactment. But

overall, the intention has been very clear, and that is to provide

special and expanded authority to tribal governments. In most instances, this has also meant curbing the power and the ability of

the Federal bureaucracies, the power that they have to interfere

with tribal program authority.

In making these amendments, none of us should forget that this

self-governance notion was born as a result of federal failure. Back

in the late 1980’s, investigation reports in the Phoenix newspapers

showed a Federal service delivery system that had earned for itself

great distrust. Congress then and Congress today had a better solution: Trust the tribes themselves to manage their own affairs.

When it comes down to it, no matter how good are the people at

the top of any Department, any Administration, you will not hear

this message from a departmental bureaucracy. Rather, the Department’s interests will always caution against further transfer of

further control to tribes. That is natural. But look at the record.

Who is better worth the risk? Who is better worth it? The Federal

bureaucracy or the tribes themselves?

This bill before the committee answers that question. As history

has proven out in the last 12 years, the tribes are a better risk to

manage their own affairs.

The rationale has always been that the best government is the

government closest to the governed, and the best service delivery

is done by those closest to those who are served. Tribal self-governance funds, once the money gets to the tribal government, are always spent and churned right there in the targeted Indian community, rather than in some distant urban bureaucracy or some distant research park.

When a tribal government serves its own members, there are

never cross-cultural or language barriers. There is always commonsense responsiveness to changing needs. There is greater potential

for maximum flexibility and efficiency right on the ground. And

perhaps most important, there is direct accountability to those who

are served.

Unfortunately, these lessons of tribal self-governance have, I

fear, gone largely unheeded in the recent debates over trust reform.

The most effective and accountable service delivery, and that includes trust services, is at the local level. The self-governance answer to all these questions is delegate the power down; delegate

the authority down the ladder, not up; authority to make trust decisions and the money to do it right.

If trust is ever to be truly reformed, and you have been here

watching various proposals over the years to do just that, if it will

ever be accomplished, it will be because tribal trust service capacities are first rebuilt at the reservation and Native community

level. That is where the decisions are made most efficiently, and it

is for a simple reason, because all of the interested parties are

there at the ground level.

This bill is the product of a several-year effort of tribal leaders

to improve the statutory basis. The language has been reviewed

and revised after countless meetings of tribal leaders, some with

representatives of the Department. Much of the bill is informed by
71

the experience and insight gained a couple of years ago with the

amendments mentioned earlier in title V applying to the Indian

Health Service.

In addition to providing very necessary updates to this 1994-era

title IV, the bill addresses problems with sections of the statute

that govern non-BIA programs in construction. Among the key features of this bill are provisions that would facilitate more tribal

participation in self-governance; that would clarify the inclusion of

both BIA and Office of Special Trustee programs as they are moved

about; and it would provide, as in title V, for ways for a tribe to

break and impasse in negotiations so that we do not have the experience you just heard of six years bargaining with an agency for,

in the end, modest in finances agreements.

It would also allow for greater inclusion of construction activities

and it would streamline payment procedures. There is more detail

in my written testimony. I will not bore you here with that.

I would add that there was one reference made when Assistant

Secretary Anderson was here to the problems the Department has

with the provision dealing with inherent federal functions. I would

urge the committee to look at that in the backdrop of the larger

context of departmental interests versus tribal interests in these

questions.

Also, to submit for the record that from experience, there is no

uniform decision within the BIA as to what is and is not an inherent Federal function. It varies from region to region. In one region,

which will go unnamed, it is nearly 100 percent of everything they

do, as if ‘‘inherent’’ means important or, if you do not respect us,

it is not an inherent Federal function. ‘‘Inherent Federal function’’

in your bill is defined as something that cannot be legally delegated. That is a narrow subset. It is not, as mentioned earlier,

what is not authorized in statute to be delegated; simply what cannot legally be delegated. There are certain things a trustee does

that cannot be legally delegated. This definition says no more than

that. We wanted something much more stringent. This is a backup

trying to reach toward the Department.

Finally, the tribes who have actively participated in self-governance guided and shaped this, along with leaders like you, Mr.

Chairman, and have urged this Congress to enact this bill in various forms for the last couple of years. They thank you for your energy and the focus that you and your able staff have given to bringing this to this near-final stage, and they urge that you do bring

it to enactment as soon as possible.

I thank you for the opportunity to testify here today, and of

course would be pleased to answer any questions now or later that

the committee may have.

[Prepared statement of Mr. Baker-Shenk appears in appendix.]

The CHAIRMAN. Thank you, Phil. I have several questions of each

of you. Thanks for talking a little bit about dependency. I do not

know of an Indian person or a tribe, very frankly, that wants to

be dependent on anybody. I think most of us recognize that dependency on the Federal Government hurts the work ethic, kills productivity, flies in the face of human dignity when you have to be dependent on the Federal Government.
72

It might be a bad analogy, but I am thinking myself of all the

problems we are involved in Iraq now. Since 1945, we rebuilt at a

lot of American expense three nations, Japan, South Korea, and

Germany, that are totally independent; make all their own decisions; and become leading democracies themselves. We have done

that since 1945. And yet, three times that long we still cannot seem

to give tribal governments the kind of independence they have a

right to expect. It is just amazing to me that we sort of still after

all these years, the Federal Government has kept tribes tethered,

if that word will fit.

Let me start with you, Phil, since you were the last to speak.

Outsourcing is a relatively recent initiative. It is encouraged

throughout the Federal Government by President Bush. We have

heard him speak of it a number of times. Tribes have been doing

that for roughly 30 years through self-governance. As we move forward expanding self-governance to include non-BIA programs,

questions are raised about whether the tribes have the capacity to

handle the programs. Perhaps I should have asked Assistant Secretary Anderson, but what do you think the Department of the Interior means when they talk about whether the tribe has the capacity to operate a program? Is it infrastructure or educational experience or what?

Mr. BAKER-SHENK. I think it is likely both. It is largely staffdriven. These are federal officials asking whether tribes can truly

hire people who can do as good or better a job as existing federal

staff have done. As I point out in written testimony, often these debates boil down to job protection or turf protection.

The CHAIRMAN. Maybe they can do a better job and may be they

cannot, but the way I understand the 638 contract, if they cannot,

they go back under the purview of the Bureau.

Mr. BAKER-SHENK. That is right.

The CHAIRMAN. But if we are not going to give them a chance

in the first place, how are we ever going to know?

Mr. BAKER-SHENK. That is a position that many tribes have

taken in negotiations and sometimes it has been persuasive. The

additional point is the accountability. Even if someone is not perhaps at 100 percent performance, the incentive to get there is very

strong at the local level, when you compare it to the incentive that

a Federal official does in the bureaucracy to improve performance.

We are still searching for ways Federal Government-wide to get

performance measures and get the Federal force to produce to

measures that we set.

So here moving it to an accountability structure right by the governed and served is, I think, the better course for getting higher

performance levels and building capacity more quickly.

The CHAIRMAN. Do outside groups have a legitimate role in the

638 process? And should their non-Indian interests be involved in

the 638 process?

Mr. BAKER-SHENK. Those outside interests in the case of more

non-BIA programs that have been mentioned earlier certainly have

a stake. These are federally supported programs. But if you look

narrowly at the bill before the committee or if they would look at

the bill before the committee, they will see that it is very narrowly
73

drawn, to only those programs that are of primary or significant

benefit to Indians.

If there is a more incidental benefit to non-tribal interests, those

certainly can be taken into account. The Federal Government will

be taking those into account. But the examples, Mr. Chairman, we

have come so little way for so long that we are still dealing with

battlegrounds over bison ranges within a reservation. We are still

dealing with interests well within the homelands of tribes where

very few other people have much interface, and we still cannot get

significant agreements even in those areas.

The CHAIRMAN. Let me ask you this, when the Federal Government enters the equivalent of a 638 contract with a state, let’s say,

do you know how often the states take into consideration Indian

concerns before they implement it?

Mr. BAKER-SHENK. I like the premise behind the question. The

States will be concerned if there are voices raised within their borders, just like tribes as good governments are always concerned

about their neighborly relations. If they have neighbors living within their lands or without but nearby, more and more tribes are

opening up a hearing, information and resource mechanisms. Those

are part of many of the tribes, particularly the self-governance

tribes who have made so much of this existing authority. It is just

good government, self-interested good government.

The CHAIRMAN. And that dialogue is working, too, and tribes do

that of their own volition, too, generally.

Mr. BAKER-SHENK. I would add, Mr. Chairman, my guess is that

if you asked those interested parties whether they feel that they

have a voice with the Federal Government today under the status

quo, they may feel they have a better voice and better hearing before their local governments like tribal governments than they do

with the distant Federal Government.

The CHAIRMAN. We have heard from two witnesses now, and I

will get back to them in 1 minute, that experienced a great deal

of difficulty in reaching agreement on contracts with a non-BIA

program. In fact, it appears that both had several proposals rejected or had to trim down their proposals considerably before they

were approved. This bill somewhat limits the grounds for rejection

and requires the Secretary to show validity of a rejection. Can you

just briefly describe the current process of denial for a non-BIA

contract proposal by the Secretary?

Mr. BAKER-SHENK. Yes; it is different between contract proposals

now, given some reforms in title I, and what is the law in title IV

unamended by this bill. That is why this amendment is so necessary. It would have permitted the tribes represented earlier to at

some point much earlier in the 6-year process or even longer with

respect to Flathead, I believe, to have said, enough is enough; this

is our final offer; and any declination needs to fit the narrow statutory reasons that are really mirrored on what a contracting tribe

can impose under title I. It would provide an end point, a fair appealable end point to otherwise protracted negotiations.

Let me say one thing. I do not represent the Council of

Athabascan, but I am led to believe that the wonderful, far-reaching, forward-moving agreement that was recently signed, at the

end of the day really amounted to just about $60,000 in value.
74

While money is not the only way to value agreements between governments, it is one way to measure it. Six years for $60,000, you

know, some would say, well, it is very important to get a foot in

the door, and I would be the first to say the first has to get in the

door; you have to start somewhere; a long journey begins with a

small step. But I tell you, that foot is the foot of a centipede, not

big foot. That is a very small foot in the door, and we need this

kind of statute to permit tribes to reasonably advance self-governance authorities to other bureaus than the BIA.

The CHAIRMAN. And maybe the last question or two. Chairman

Matt told us in his testimony that his tribe had been negotiating

with a regional office of the Fish and Wildlife Service. Is that the

normal process, or do they normally talk to a central office when

they are negotiating a contract or a compact?

Mr. BAKER-SHENK. The departments in various administrations

have delegated that authority to the regional administrators of the

various bureaus. In the end, I believe it comes to headquarters, to

central, but much of the negotiation, and so Mr. Chairman, with

all due respect, you do have a non-uniform command and control

problem. Some areas or regions are resistant completely; others are

willing to talk and strike a negotiation stance that is reasonable.

The CHAIRMAN. Thank you.

Mr. Strommer, if I could go to you. You said the Council of

Athabascan Tribal Governments has 10 tribes. Did I understand

that?

Mr. STROMMER. That is correct.

The CHAIRMAN. How many villages does that represent?

Mr. STROMMER. Ten villages.

The CHAIRMAN. Ten villages.

Mr. STROMMER. Each village is a tribe.

The CHAIRMAN. Okay. And you also testified that your client had

two 638 contract proposals denied by Fish and Wildlife before finally reaching an agreement. As I understand, you just said about

two weeks ago they reached an agreement?

Mr. STROMMER. That is correct.

The CHAIRMAN. What were the reasons given for the denials in

all this time you have been negotiating with them?

Mr. STROMMER. Really, the scope of what the Council of

Athabascan Tribal Governments was proposing to take over. One

of the first proposals was submitted under title I of the act, so not

under the self-governance authorities. That proposal was rejected

outright by the Department on the basis that none of the programs

that the Department operated within the Yukon Flats Wildlife National Refuge were programs that benefitted Indian exclusively.

They took a very narrow reading of the scope of contractibility.

The CHAIRMAN. They were afraid you would take over. ‘‘We cannot let you do that; you might determine your own future,’’ that

sort of thing.

Mr. STROMMER. The Council then resubmitted proposals that

were subsequently tailored down several times. Up until the breakthrough that came about 6 months ago, the Department, frankly,

was very resistant in sitting down across the table to have a meaningful discussion over the scope of the programs that the Department was willing to transfer over.
75

The CHAIRMAN. The differences between the original proposals

and the final agreement with the Service, did it diminish what

your tribal governments had planned?

Mr. STROMMER. Rather dramatically.

The CHAIRMAN. Quite dramatically.

Mr. STROMMER. Rather dramatically.

The CHAIRMAN. As I understand it, the contract agreed to on

April 30 does not involve a significant amount of funding. This gets

a little bit to what Mr. Baker-Shenk said. Is that true?

Mr. STROMMER. Close to $60,000.

The CHAIRMAN. $60,000.

Mr. STROMMER. And it is not money that is actually coming out

of the refuge budget. It is coming out of other pots of money that

the Department has. So the Department has not actually transferred over any funds directly out of the refuge budget. That budget is going to remain intact.

The CHAIRMAN. I wonder how much it cost them to go through

6 years of negotiating, as opposed to the $60,000. Talk about efficient use of Federal money. How much program funding did the

Service retain for administrative purposes or overhead or whatever?

Mr. STROMMER. I cannot quote a figure as I sit here, but I certainly can provide the information.

The CHAIRMAN. Would you provide that? I would be interested if know if that was more than the $60,000.

Mr. STROMMER. It is significantly more.

The CHAIRMAN. Significantly more.

Mr. STROMMER. I will provide it to you.

The CHAIRMAN. Please do.

Did the Council have any opposition from outside groups in its

efforts to reach an agreement with the Service.

Mr. STROMMER. It did. In the last 6 months, the notice of the

agreement that was negotiated between the Fish and Wildlife Service and the Council was published in two newspapers, one in Fairbanks and one in Anchorage. Public hearings were held. At the end

of the comment period, approximately 170 comments were submitted.

The CHAIRMAN. What were some of the objections?

Mr. STROMMER. Transferring anything to Indian tribes.

The CHAIRMAN. ‘‘Oh, we cannot let them do that.’’ Right.

Mr. STROMMER. It was one large category. There were people

who had genuine concerns associated with environmental issues

and questioned the scope of the agreement, the scope of the Council’s authority, what role the United States would continue to play

in the management of the Refuge.

But there were also some very supportive comments submitted

by conservation and environmental organizations, as well as other

tribes and tribal organizations. But by far the bulk of the comments that were submitted were in opposition to the agreement.

The CHAIRMAN. Thank you.

Mr. STROMMER. I should say, if I can add one comment.

The CHAIRMAN. Yes.

Mr. STROMMER. After all the comments came in, the Council sat

down with Fish and Wildlife Service and negotiated amendments
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to the agreement that reflected some of the more important issues

that Fish and Wildlife felt that it needed to address as a result of

the comments. So the end agreement did take into account the

comments that were submitted, and there were a number of

changes that were made to try to address them and address the

issues adequately.

The CHAIRMAN. Thank you for your testimony and your answers.

Chairman Matt, you have indicated that your tribe was one of

the original 10 self-governance tribes. You have been operating the

programs for a good number of years, and as I understand it you

have the reputation for operating those programs very successfully.

What do you attribute that success to in operating the programs?

Why are some tribes still hesitant to embrace the Self-Determination Act of contracting and self-governance compacting? Just a fear

of eroding the trust responsibility?

Mr. MATT. I am not really sure, but in our case the flexibility of

self-governance that allows the tribes to operate a program is one

of the reasons that makes us successful. Another thing that I can

think of is having a stable tribal government, and then something

that was touched on a little bit, having the professional and adequate staff to manage these programs that we take over.

But thinking about why other tribes are reluctant to take over

and manage some of these programs, I simply do not understand

it. I try to think about Indian country overall, some of the tribes

I know not only in Montana, but throughout the Midwest, and I

was trying to think about why would they be reluctant. Maybe it

is the fear of the unknown and the fact that maybe their tribal governments feel they are not as stable, and maybe they do not have

the capabilities or the professional staff like we do to manage the

programs.

The CHAIRMAN. After 10 years of negotiating with the Fish and

Wildlife Service for the National Bison Range, you are close to an

agreement. First of all, how close are you to getting the agreement?

Where do the negotiations stand now?

Mr. MATT. We are far away, and we are really close. This afternoon we have some meetings lined up and we will know a little

more.

The CHAIRMAN. Do you think in your experience that there might

be some kind of a model in there that we can improve Title IV to

make sure other tribes do not have to also engage in a 10-year

process to assume management of eligible non- bureau programs

located in Interior?

Mr. MATT. I would hope that we would be able to develop a

model of some sort to lessen the frustration and the time frame

that we went through. But it is really interesting to sit here and

listen to what the Athabascan Tribal Government went through because the similarities are the same.

The CHAIRMAN. After 10 years, were you inclined to give up a

couple of times?

Mr. MATT. You know, it has been a frustrating process. I think

that one of the things that became apparent to me is it is not that

we can’t do it; I think there is a fear that we can.

The CHAIRMAN. Yes; I am sure you experienced some opposition

as Indians do with anything when they try to move ahead. What
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was some of the flavor of the opposition when you were talking

about a National Bison Range?

Mr. MATT. I have said it in the past, when it comes to Flathead,

Salish-Kootenai and our reservation, it seems like there is a vocal

minority almost at every juncture that the tribe has taken to be

more self-determined, take over programs such as Mission Valley

Power; when we negotiated with the state on a hunting and fishing

agreement so that non-Indians would be able to hunt and fish on

the reservation, this minority of folks will come out of the woodwork and they are very effective at coming back here and then

through the local media generate some opposition that was maybe

similar in Alaska, too.

The CHAIRMAN. But you run the Mission Valley Power facility

now. Doesn’t everybody benefit from that, Indian and non–Indian

alike?

Mr. MATT. Yes; as I mentioned in my testimony, there are over

22,000 customers and it is one of the better run utilities in northwestern Montana.

The CHAIRMAN. And many of them are non-Indian.

Mr. MATT. It has gotten many recognitions for how the tribe has

managed that utility.

The CHAIRMAN. When you were negotiating the National Bison

Range, did you get any opposition from rancher groups worried

about brucellosis, as an example?

Mr. MATT. I cannot think of too many specifically, but I am sure

that would be an obvious concern throughout Montana because it

does get rancher folks worried about it. It is a totally different environment on the National Bison Range. They are totally confined

within 25,000 acres and they are managed very well.

The CHAIRMAN. I appreciate it. I will follow up with a few written questions, as I am sure some of the members may do too. I am

hoping that perhaps we can bring this bill back before we adjourn

for consideration. We only have about 58 more working days this

Congress before they adjourn in October. Frankly, we are not sure

what we are going to be able to get through from this committee,

but this is a really high priority for me and I know it is for Senator

Inouye, too.

With your help and with some ongoing dialog with Interior, hopefully we will be able to get something out that will be of lasting

benefit to tribal groups.

Thank you very much for appearing here today. We will keep the

record open for 2 weeks for any additional comments that you

would like to make, or anybody that is in the hearing room today.

Thank you, and this hearing is adjourned.

[Whereupon, at 11:15 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(79)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF DAVID W. ANDERSON, ASSISTANT SECRETARY FOR INDIAN

AFFAIRS, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

Good morning, Mr. Chairman, Mr. Vice Chairman, and members of the committee. I am pleased to be here today to provide the Administration’s position on S.

1715, a bill to amend Title IV of the Indian Self-Determination and Education Assistance Act.

In 1988, Congress amended the Indian Self-Determination and Education Assistance Act [the act] by adding title III, which authorized the Self-Governance demonstration project. in 1994, Congress again amended the act by adding title IV, establishing a program within the Department of the Interior to be known as Tribal

Self-Governance. The addition of title IV made Self-Governance a permanent option

for tribes. These amendments authorized federally recognized tribes to negotiate

funding agreements with the Department of the Interior [Department] for programs,

services, functions or activities administered by the Bureau of Indian Affairs [BIA]

and, within certain parameters, authorized such funding agreements with other bureaus of the Department. In the year 2000, the act was amended again to include

titles V and VI, making Self-Governance a permanent option for tribes to negotiate

compacts with the Indian Health Service [IHS] within the Department of Health

and Human Services and providing for a now-completed study to determine the feasibility of conducting a Self-Governance Demonstration Project in other programs of

that Department. In 1990, the first seven funding agreements were negotiated for about $27 million

in total funding. For fiscal year 2004, there are 83 agreements that include 227 federally recognized tribes and about $300 million in total funding. Some of these

agreements are with tribal consortia, which account for the number of such tribes

exceeding the number of agreements. These funding agreements allow federally recognized tribes to provide a wide range of programs and services to their members

such as law enforcement, scholarships, welfare assistance, and housing repairs just

to mention a few. Many of the funding agreements include trust related programs

such as real estate services, appraisals, probates and natural resource programs

such as forestry, fisheries, and agriculture. What makes these funding agreements

unique is that title IV allows tribal governments to re-design programs and set their

own priorities consistent with Federal laws and regulations. This authority allows

tribal leaders the ability to respond to the unique needs of their tribal members

without seeking approval by Departmental officials.

Many tribes have been successful implementing Self-governance programs to meet

their tribal needs. For example, the Salt River Pima-Maricopa Indian Community

was able to accomplish the following in 2002: 1) delivered welfare assistance and

child welfare services to 676 cases including placing 19 children in Indian homes,

29 children into non-Indian homes and reunifying 12 families, 2) provided scholarships and educational counseling to 42 tribal members, 3) responded to 772 Part I

offenses including 3 homicides and 97 burglaries and 187 motor vehicle thefts and

3,395 other offenses including assaults, DUI’s, runaways and domestic violence, 4)
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maintained 131 miles of roads, processed, and 5) prepared 5 probate cases; and submitting 30 conveyances to the BIA to be approved and recorded. This example is

just one of many where tribes have been successful in directly administering Federal programs.

In addition, title IV authorizes funding agreements throughout all bureaus within

the Department of the Interior. On April 30, 2004, the Secretary signed an agreement between the Council of Athabascan Tribal Governments [Council] and the Fish

and Wildlife Service [Service] that will enable the Council to perform certain functions previously provided by the Service on the Yukon Flats National Wildlife Refuge in Alaska during fiscal year 2004–05. This agreement was the first of its kind

between the Service and a federally recognized Indian organization. In addition, in

fiscal year 2004–05 there will be four tribal funding agreements with the Bureau

of Reclamation and four tribal funding agreements with the National Park Service.

The Department has concerns with this bill, S. 1715, and we would like to work

with the committee to ensure that this legislation does not adversely impact our

ability to meet our trust responsibilities. In particular, the Department is concerned

with subsection 409(l), which would permit a tribe to cease performance if it appears

the expenditure of funds is in excess of the amount of funds transferred under a

compact or funding agreement. If the Secretary does not increase the amount of

funds transferred under the funding agreement, a tribe would be permitted to suspend performance of the activity until such time as additional funds are transferred.

We have concerns about the impact this provision may have, especially on fiduciary

trust functions. Under this provision, if a tribe contracts with the Department to

administer IIM accounts and then decides there is not enough money to administer

the accounts, the tribe could simply stop making IIM distributions to IIM account

holders. It is imperative that a tribe perform any fiduciary function it contracts or

compacts for regardless of the level of funding. The tribe should return the function

to the Department to administer if they believe that the funding level is inadequate

rather than have their members suffer if the tribe decides not to perform.

In addition, Section 405(b)(1)(B) also broadens application of funding agreements

to authorize tribes to contract for all programs to which Indian tribes or Indians

are primary or significant beneficiaries. Current law allows federally recognized

tribes to assume programs administered by the Department’s bureaus and offices

other than the BIA subject to negotiations and as long as the programs are available to Indian tribes or Indians. We would recommend that section 405(b)(1)(B) be

made discretionary and subject to the terms of the agreement for programs which

Indian tribes or Indians are the primary or significant beneficiaries.

Finally, the Department is concerned with the reassumption provision contained

in section 407. The provision would require that imminent jeopardy, substantial

jeopardy, and irreparable harm be met simultaneously in order for the Secretary to

reassume a program. This is a very high standard to achieve. Having to prove all

three conditions practically eliminates the ability of the Secretary to quickly reassume a program in those rare instances where such an immediate reassumption

may be necessary, such as instances where serious injury or harm may occur. The

Department would recommend that the reassumption standard contained in the current title IV be retained.

While we believe that S. 1715 is moving in the right direction to expand Self-Governance, we cannot support the legislation at this time, especially given the current

high priority for trust reform and the impact this legislation would potentially have

to that critical program. We would like to work with the committee and the tribes

in developing alternative language to address our concerns.

Mr. Chairman, this concludes my statement and I will be happy to answer any

questions you may have.
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U.S. DEPARTMENT OF THE INTERIOR OFFICE OF THE SECRETARY

Washington, DC.

Hon. BEN NIGHTHORSE CAMPBELL,

Chairmam, Committee on Indian Affairs

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: I am pleased to provide the responses to the questions submitted following the May 12, 2004 hearing held by your committee on S. 1715, the

‘‘Department of the Interior Tribal Self-Governance Act of 2003.’’

Sincerely,

JANE LYDER, Legislative Counsel, Office

of Congressional and Legislative

Affairs.

1. The Administration’s testimony indicates that it fears Self-Governance

tribes will stop performing contracts if they don’t receive ‘‘enough’’ funding

under the agreements they negotiate with the Department. I must say that

I find somewhat curious these concerns about tribes refusing to perform

contracts because of insufficient funding.

Over the years we have had dozens of tribes appear before this committee

complaining that they have been forced to perform 638 contracts with inadequate funding—particularly when it comes to Contract Support Costs.

Question 1A: If a tribe ceases to perform under a 638 contract, doesn’t the

Department have the authority to step in and take over the program or

services?

Answer: Yes; the Department does have the authority to reassume a tribal contract

under section 109 of the Indian Self-Determination and Education Assistance Act

of 1975, as amended. However, under S. 1715, subsection 409(l), a tribe would be

permitted to suspend performance of the activity they have compacted or contracted

until such time additional funds are transferred. It is imperative that a tribe perform any fiduciary function it contracts or compacts for. The tribe, should return

the function to the Department to administer if they believe that the funding level

is inadequate rather than have their members receive inadequate service if the tribe

decides not to perform.

Currently, the Department has two recourses for reassuming a tribal contract:

Emergency and non-emergency reassumption. An emergency reassumption occurs if

a tribe fails to fulfill the requirements of the contract and this failure poses an immediate threat or imminent harm to the safety of any person, or imminent substantial and irreparable harm to trust funds, trust lands, or interest in such lands.

A non-emergency reassumption occurs if there has been a violation of rights or

endangerment of health, safety, or welfare of any person or gross mismanagement

in the handling of contract funds, trust funds, or interest in trust lands under the

contract. Tribes have the right to appeal the emergency or non-emergency reassumption.

Question 1B: Isn’t it part of the negotiation process for a tribe and the

agency to negotiate and arrive at some agreement on what constitutes ‘‘sufficient’’ funding under any given contract, compact, or funding agreement?

Answer: ‘‘Sufficient funding’’ is not the criterion used in determining the amount included in a Public Law 93–638 contract or Self-Governance funding agreement. The

criteria used for determining the amount in a funding agreement is contained in

section 106(a)(1) of the act which states, in part ‘‘...the amount of funds provided

under the terms of a self-determination contract entered into pursuant to this act

shall not be less than the appropriate Secretary would have otherwise provided for

the operation of the programs or portions thereof for the period covered by the contract,...’’

Question 1C: How many times has a tribal contractor ceased performing its

responsibilities without warning to the Department?

Answer: To our knowledge, no tribe has ceased performing its responsibilities under

a Self-Determination Contract without warning. Contracting tribes do have the

right to retrocede a program, service, function or activity as provided by Subpart
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P, Section 900.241 of the Code of Federal Regulations, but must inform the Department to do so.

2. In its comments on S. 1715, the BIA indicates that it wants non-BIA program contracting to be ‘‘discretionary’’ and you also note a concern with

broadening the application of Self-Governance to include non-BIA programs unless the contracts are ‘‘discretionary’’’ for the Secretary.

Question 2A: If that change were made, wouldn’t we actually be narrowing,

rather than expanding, Self-Governance?

Answer: No; self-governance would not be narrowed. Non-BIA Bureaus will continue

to have the same existing authority to enter into agreements with tribes. We believe

that it is better to negotiate non-BIA Bureau programs that are not for the benefit

of Indians because of their status as Indians on a case-by-case basis where both parties, the tribe and the non-BIA Bureaus, have the ability to consider all interests.

Question 2B: Under the current law, it has taken several tribes years to obtain agreements on contracting non-BIA programs. If it became discretionary, can we really expect that it would become easier for tribes to obtain those contracts?

Answer: While the timeframes for some non-BIA Self-Governance negotiations have

been long, one of the reasons is the difficulty in accommodating the interests of

other affected parties. The Department believes that such agreements should remain discretionary so that all affected interests can be accommodated.

3. The BIA is also concerned that the reassumption standards that the Department must meet before reassuming responsibility for a contract or

compact are too high. You also mention that the reassumption standard in

section 407 of S. 1715 is too high.

Question 3: How would the standard for reassumption contained in S. 1715

interfere with or prevent the execution of the Department’s trust responsibility?

Answer: The immediate reassumption by the Secretary, as contemplated by the

preamended version of S. 1715, would have set too high a standard. Section

407(b)(3) would have required that three conditions (1) imminent jeopardy, (2) substantial jeopardy, and (3) irreparable harm be met simultaneously. This standard

practically eliminated the ability of the Secretary to quickly reassume a program,

in those rare instances, where such an immediate reassumption may be necessary.

This section also stated that imminent jeopardy would arise out of the failure to

carry out the compact agreement. Since funding agreements are not specific in

terms of scope of work, this would be difficult, if not impossible, to argue, We are

pleased S. 1715 was amended to retain the reassumption standard contained in the

current title IV.

4. The Department evidently cannot support S. 1715 because of what your

testimony says is the ‘‘high priority’’ for trust reform. Trust reform is a top

priority for the Department, the tribes, and this committee, but If I understand your testimony, the Department cannot support this bill because it

will somehow interfere with trust reform.

Question 4A: What specifically, either in S. 1715 or in a general trust modest expansion of Self-Governance within the Department will cause problems for the trust reform efforts now underway?

Answer: We believe by including the definitions of ‘‘tribal share’’ and ‘‘inherently

Federal function’’ in the bill, that trust reform will significantly be impeded. The

bill defines a tribal share as ‘‘. . an Indian tribe’s portion of all funds and resources

that support secretarial included programs that are not required by the Secretary

for the performance of inherent Federal functions.’’ ‘‘Inherent Federal function’’ is

defined as ‘‘. . a Federal function that cannot legally be delegated to an Indian

tribe.’’ This is of particular concern since Section 405(b)(1), of S. 1715, treats the

Office of the Special Trustee the same as the Bureau of Indian Affairs.

These definitions offer no statutory parameters to support the Secretary’s identification of functions that the Federal trustee must retain. We are concerned that the

broad definitions pave the way for challenges to the Secretary’s authority to reserve

trustee functions and to retain funds to meet her trust responsibility.
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Resolving such challenges would require time-consuming negotiation, litigation, or

legislation that could hinder the pace of trust reform. For, with every challenge, the

Secretary would be required to show that a trustee function cannot ‘‘legally be delegated to an Indian Tribe.’’ In today’s trust reform environment, such delays would

be untenable.

Question 4B: I believe Self-Governance—and the negotiating process between the tribes and the Department in terms of standards of performance,

resources management and the like—is part and parcel ‘‘trust reform’’ because it is changing the face of the Department and what the Department

is called on to do in Indian communities. Do you agree that Self-Governance holds the key to large-scale reform of the Department in the years to

come?

Answer: A goal and objective of the Department’s Comprehensive Trust Management Plan is to promote ‘‘Self-Governance and Self-Determination.’’ The Department

is committed to providing trust services to Indian country more efficiently and effectively than in the past. Some, of these trust services will be provided by tribes or

tribal consortia under compacts and Public Law 93–638 contracts, and other trust

services will be provided by the Bureau of Indian Affairs and by the Office of the

Special Trustee. Tribal governments have been and will continue to be an integral

part of the Department’s plans for the delivery of trust services.

5. Your testimony notes that in 2004–05 there will be 8 new Annual Funding

Agreements signed: Four with the Bureau of Reclamation, and four with

the National Park Service.

Question 5: Can you give more details about these agreements in terms of

the activities to be covered by the agreements, the amount of the agreements, how long they took to negotiate, and when in 2004–05 they will be

finalized?

Answer: In fiscal year 2004, four agreements were negotiated by the, National Park

Service [NPS] as follows:

• An annual funding agreement was negotiated and entered into with the Grand

Portage Band of Chippewa Indians [Band]. NPS provided $219,000 for the Band

to perform the entire maintenance program at Grand Portage National Monument. The agreement also includes $88,000 for additional projects including fire

suppression system excavation, fire hydrant replacement, and a handicap accessible pathway project.

• An annual funding agreement was negotiated and entered into with the Yurok

Tribe. NPS provided $120,000 for the tribe to perform an archaeological investigation and a historic resources study for the relocation of the park maintenance facility from Requa to Aubell; $5,000 for the tribe to produce an ethnographic overview; and $7,000 for the tribe to perform an archaeological investigation of Alder Camp Road in Redwood National and State Parks.

• An annual funding agreement was negotiated and entered into with the Lower

Elwha Tribal Community. NPS provided $218,977 for the Lower Elwha Tribal

Community to perform activities in relation to the restoration with the Elwha

River Ecosystem and Fisheries Restoration Act of 1992 [Pub. L. 102–495].

• An annual funding agreement was negotiated and entered into with the Tanana

Chiefs Conference, Inc. The NPS provided $2,177,300 to the Conference for the

design and construction of the Morris Thompson Cultural Center.

While it is difficult to estimate or generalize the amount of time needed to negotiate

an annual funding agreement, NPS has found that once an initial agreement has

been negotiated and entered into, it is substantially less time consuming to amend

or to extend it for another year. For example, the initial agreement between the

Grand Portage National Monument and the Grand Portage Band took months to negotiate, but once it was in place, subsequent negotiations took only weeks. At Olympic National Park, the agreement that began in fiscal year 2002 took approximately

150 person hours by the NPS and Solicitor’s Office to negotiate. However, by fiscal

year 2004, an annual funding agreement took only about 30 person hours to negotiate. Once the initial agreement was in place at Redwood National and State Parks,

negotiating the next two agreements took approximately 80 person hours each.

In fiscal year 2004, the Bureau of Reclamation had or will have the following four

Self-Governance annual funding agreements signed:
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• The Gila River Indian Community received $12,814,000 to plan, conduct, consolidate, and administer Reclamation’s Gila River Indian Community—Indian

Distribution System and to perform all functions and activities associated with

the Operation and Maintenance of the Central Arizona Project Repository

Project and curation of the Phoenix Area Office Archaeological Collection. The

annual funding agreement took approximately 6 weeks to negotiate and became

effective on October 8, 2003.

• The Karuk Tribe will receive $51,000 to continue to conduct data collection and

analysis needed to assist in the restoration of fish and wildlife population with

the Klamath River basin. The annual funding agreement took approximately 2

weeks to negotiate and is currently before Congress for the required 90 day review. It will become effective on August 10, 2004.

• The Yurok Tribe will receive $741,153 to continue to conduct data collection and

analysis needed for the purpose of assisting in the achievement of long-term

fish and wildlife restoration goals in the Trinity and Klamath basins. The annual funding agreement took approximately 1 month to negotiate and is currently before Congress for the required 90-day review. It will become effective

on August 10, 2004.

• The Duckwater Shoshone Tribe of Nevada will receive $50,000 to conduct data

collection and analysis needed to assess the water resources of the tribe and

their 3,800-acre reservation located in central Nevada. The AFA took approximately 2 weeks to negotiate and is in the process of being sent to the Congress

for the required 90 day review. It is anticipated that the AFA will become effective in September, 2004.

6. We heard testimony from the Council of Athabascan Tribal Governments

[CATG] and the Confederated Salish and Kootenai Tribes regarding the

lengthy negotiations—6 and 10 years, respectively—before the agreements

were consummated. Not only are these extremely long periods of negotiation but for the CATG agreement, for example, which is for $60,000, I am

curious what amount of staff hours and costs were involved in the negotiations.

Question 6A: Please provide the committee with figures for the total cost

of negotiation to the Department in dollar and man-hour terms.

Answer: The Department received the formal proposal that led to the U.S. Fish and

Wildlife Service’s [Service] annual funding agreement with the Council of

Athabascan Tribal Governments [CATG] on June 16, 2003, approximately 10

months before the agreement was signed. We estimate the direct costs [travel, newspaper advertisements, transcription costs, et cetera] to be about $10,000.

In terms of staff time devoted to the agreement, the development of the tentative

annual funding agreement required approximately 30 percent of the Refuge Manager’s time over the 10-month negotiation period, 30 percent of the Refuge Supervisor’s time, and much smaller percentages of several other employees’ time. There

was also a considerable amount of effort put into this project by the Department’s

Solicitor’s Office. We would expect these costs and time commitments to go down

significantly for any successor agreements with CATO.

Regarding the length of time for the negotiations, as stated above, this agreement

took approximately 10 months to negotiate and sign. The Service had received two

previous proposals from CATG to perform some or all of the ‘‘programs, functions,

services, and activities’’ at the Yukon Flats National Wildlife Refuge; the first on

November 25, 1998, and the second on November 5, 2001. Both of these requests

were declined. In the first instance, CATO proposed to take over programs, functions, services and activities under title I of the Indian Self-Determination and Education Assistance Act [ISDEAA], which does not apply to the programs of the National Wildlife Refuge System and CATO had not yet been qualified by the Office

of Self-Governance as a self-governance tribe. The Service suggested CATO contact

the Service when they were qualified. In 2002, we declined their second proposal

under title IV within the 10 day period prescribed by regulation, following a July

2002 ‘‘pre-negotiation’’ meeting. The primary reason CATG’s proposal was declined

in the second instance was because CATG had proposed to take over most programs,

functions, services, and activities at the refuge. CATG appealed to the Director, saying they would scale back their request. The Director upheld the Regional Director’s

decision, which was [and had to be] based on the CATG’s position in the pre-negotiation meeting, but urged them to proceed with a more limited request.
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Question 6B:. Can you also provide for the committee from the CATG and

the Salish and Kootenai Tribes agreements with the Fish and Wildlife Service breakdowns of what the tribes are to receive for funding, where that

funding comes from, and what percentage of the budget that funding represents for the specific parks subject to the agreements?

Answer: The agreement with the Council of Athabascan Tribal Governments [CATG]

does not involve National Parks.

At the Yukon Flats National Wildlife Refuge [NWR], managed by the Service, CATG

will receive: (1) $13,000 to assist in educating local residents about Federal easements established by section 17(b) of the Alaska Native Claims Settlement Act and

to help locate, map, and sign some of these easements; (2) $10,000 to assist with

Refuge environmental education and outreach programs in the Yukon Flats villages;

(3) $18,000 to collect subsistence harvest information on moose, bears, wolves, and

furbearers, including the month of harvest and geographic location; (4) $13,000 to

assist in inventorying the moose population in the eastern Yukon Flats, and (5)

$5,000 to provide maintenance of Government facilities and equipment in Fort

Yukon.

The Yukon Flats NWR budget for fiscal year 2004 is $1,770,000. The $59,000 that

CATG will receive in the annual funding agreement is about 3.4 percent of the Refuge’s budget.

A funding agreement between the Service and the Confederated Salish and Kootnai

Tribes for functions and programs at the National Bison Range has been negotiated

and is currently under public review.
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(121)

DEPARTMENT OF HEALTH AND HUMAN

SERVICES TRIBAL SELF-GOVERNANCE ACT

WEDNESDAY, MAY 19, 2004

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to other business, at 10:02 a.m. in

room 485, Russell Senate Building, Hon. Ben Nighthorse Campbell

(chairman of the committee) presiding.

Present: Senator Campbell.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S.

SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

The CHAIRMAN. We will move straight to the hearing part of our

meeting this morning. This morning, the committee will take up S.

1696, the Department of Health and Human Services Tribal SelfGovernance Amendments of 2003. This is a bill that I introduced

last October, along with our Vice Chairman, Senator Inouye. Unlike most other policies in courtrooms affecting Native people, we

can say with a great deal of certainty that self-governance does

work. Self-governance has resulted in tribal governments with enhanced capacities, better services for tribal members, and a greater

degree of tribal decisionmaking and resource allocation that at any

time in the past 150 years.

With over one-half of the budget of the Indian Health Service administered by Indian tribes, the trend is towards greater degrees

of contracting and compacting. In 2000, I was very proud to sponsor the bill that made self-governance in the IHS permanent. It is

now time to take the next logical measured step in expanding selfgovernance to include the non-IHS programs in the Department of

Health and Human Services.

I will submit my complete statement for the record, as will other

members who are not here.

[Prepared statement of Senator Campbell appears in appendix.]

[Text of S. 1696 follows:]
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1

II

108TH CONGRESS

1ST SESSION S. 1696

To amend the Indian Self-Determination and Education Assistance Act to

provide further self-governance by Indian tribes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 1, 2003

Mr. CAMPBELL (for himself and Mr. INOUYE) introduced the following bill;

which was read twice and referred to the Committee on Indian Affairs

A BILL

To amend the Indian Self-Determination and Education Assistance Act to provide further self-governance by Indian

tribes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Department of Health

5 and Human Services Tribal Self-Governance Amendments

6 Act of 2003’’.

7 SEC. 2. AMENDMENT.

8 The Indian Self-Determination and Education Assist9 ance Act is amended by striking title VI (25 U.S.C. 450f

10 note; Public Law 93–638) and inserting the following:
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•S 1696 IS

1 ‘‘TITLE VI—TRIBAL SELF-GOV2 ERNANCE DEMONSTRATION

3 PROJECT FOR THE DEPART4 MENT OF HEALTH AND

5 HUMAN SERVICES

6 ‘‘SEC. 601. DEFINITIONS.

7 ‘‘In this title:

8 ‘‘(1) COMPACT.—The term ‘compact’ means a

9 compact under section 604.

10 ‘‘(2) CONSTRUCTION PROJECT.—The term ‘con11 struction project’ has the meaning given the term in

12 section 501.

13 ‘‘(3) DEMONSTRATION PROJECT.—The term

14 ‘demonstration project’ means the demonstration

15 project under this title.

16 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund17 ing agreement’ means a funding agreement under

18 section 604.

19 ‘‘(5) INCLUDED PROGRAM.—The term ‘included

20 program’ means a program that is eligible for inclu21 sion under a funding agreement under section

22 604(c) (including any portion of such a program and

23 any function, service, or activity performed under

24 such a program).
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3

•S 1696 IS

1 ‘‘(6) INDIAN TRIBE.—The term ‘Indian tribe’,

2 in a case in which an Indian tribe authorizes an3 other Indian tribe, an inter-tribal consortium, or a

4 tribal organization to plan for or carry out an in5 cluded program on its behalf in accordance with sec6 tion 603(a)(3), includes the other authorized Indian

7 tribe, inter-tribal consortium, or tribal organization.

8 ‘‘(7) INTER-TRIBAL CONSORTIUM.—The term

9 ‘inter-tribal consortium’ has the meaning given the

10 term in section 501.

11 ‘‘(8) SECRETARY.—The term ‘Secretary’ means

12 the Secretary of Health and Human Services.

13 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov14 ernance’ has the meaning given the term in section

15 501.

16 ‘‘(10) TRIBAL SHARE.—The term ‘tribal share’

17 has the meaning given the term in section 501.

18 ‘‘SEC. 602. ESTABLISHMENT OF DEMONSTRATION

19 –PROJECT.

20 ‘‘(a) DEMONSTRATION.—For a period of not more

21 than 5 years after the date of enactment of the Depart22 ment of Health and Human Services Tribal Self-Govern23 ance Amendments Act of 2003, the Secretary shall carry

24 out a project to demonstrate the effectiveness of tribal op-
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•S 1696 IS

1 eration of the included programs under self-governance

2 principles and authorities.

3 ‘‘(b) ADMINISTRATION.—The management and ad4 ministration of the demonstration project shall be in the

5 Office of the Secretary.

6 ‘‘SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES.

7 ‘‘(a) IN GENERAL.—

8 ‘‘(1) CONTINUING PARTICIPATION.—Not more

9 than 50 Indian tribes that meet the eligibility cri10 teria specified in subsection (b) shall be entitled to

11 participate in the demonstration project.

12 ‘‘(2) ADDITIONAL PARTICIPANTS.—If more

13 than 50 eligible Indian tribes request participation,

14 the Secretary may select additional Indian tribes to

15 participate in the demonstration project.

16 ‘‘(3) OTHER AUTHORIZED INDIAN TRIBE,

17 INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERN18 MENT.—If an Indian tribe authorizes another Indian

19 tribe, an inter-tribal consortium, or a tribal organi20 zation to plan for or carry out an included program

21 on its behalf under this title, the authorized Indian

22 tribe, inter-tribal consortium, or tribal organization

23 shall have the rights and responsibilities of the au24 thorizing Indian tribe (except as otherwise provided

25 in the authorizing resolution).
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•S 1696 IS

1 ‘‘(b) ELIGIBILITY.—An Indian tribe shall be eligible

2 to participate in the demonstration project if the Indian

3 tribe, as of the date of enactment of the Department of

4 Health and Human Services Tribal Self-Governance

5 Amendments Act of 2003, is a party to a compact or fund6 ing agreement under this Act.

7 ‘‘(c) SELECTION.—The Secretary shall select Indian

8 tribes that request participation in the demonstration

9 project by resolution or other official action by the govern10 ing body of each Indian tribe to be served.

11 ‘‘(d) PLANNING AND NEGOTIATION GRANTS.—

12 ‘‘(1) IN GENERAL.—Subject to the availability

13 of appropriations, the Secretary shall establish a

14 program to allow Indian tribes that meet the eligi15 bility requirements of this title to be awarded a

16 planning grant or negotiation grant, or both.

17 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re18 ceipt of a grant under paragraph (1) by an Indian

19 tribe is not a requirement for the Indian tribe to

20 participate in the demonstration project.

21 ‘‘SEC. 604. COMPACTS AND FUNDING AGREEMENTS.

22 ‘‘(a) IN GENERAL.—

23 ‘‘(1) NEW COMPACT AND FUNDING AGREE24 MENT.—Not later than 60 days after the date of

25 submission by an Indian tribe of a request to par-
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•S 1696 IS

1 ticipate in the demonstration project, the Secretary

2 shall negotiate and enter into a written compact and

3 funding agreement with the Indian tribe in a man4 ner that is consistent with the trust responsibility

5 of the Federal Government, treaty and statutory ob6 ligations, and the government-to-government rela7 tionship between Indian tribes and the United

8 States.

9 ‘‘(2) EXISTING COMPACT.—Rather than enter

10 into a new compact under paragraph (1), an Indian

11 tribe may use an existing compact negotiated under

12 title V for purposes of the demonstration project.

13 ‘‘(b) COMPACTS.—

14 ‘‘(1) CONTENTS.—A compact under subsection

15 (a) shall designate—

16 ‘‘(A) congressional policies regarding tribal

17 self-governance;

18 ‘‘(B) the intent of the demonstration

19 project;

20 ‘‘(C) such terms as shall control from year

21 to year; and

22 ‘‘(D) any provisions of this title that are

23 requested by the Indian tribe.

24 ‘‘(2) EFFECTIVE DATE.—The effective date of a

25 compact shall be the date of execution by the Indian
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•S 1696 IS

1 tribe and the Secretary or another date agreed on by

2 the parties.

3 ‘‘(3) DURATION.—A compact shall remain in

4 effect so long as permitted by Federal law or until

5 terminated by agreement of the parties.

6 ‘‘(4) AMENDMENT.—A compact may be amend7 ed only by agreement of the parties.

8 ‘‘(c) FUNDING AGREEMENTS.—

9 ‘‘(1) SCOPE.—A funding agreement under sub10 section (a) shall, at the option of the Indian tribe,

11 authorize the Indian tribe to plan, conduct, and ad12 minister included programs administered by the Sec13 retary through an agency of the Department of

14 Health and Human Services, set forth in paragraphs

15 (2) through (4).

16 ‘‘(2) INITIAL INCLUDED PROGRAMS.—The fol17 lowing programs are eligible for inclusion in a fund18 ing agreement under this title:

19 ‘‘(A) ADMINISTRATION ON AGING.—Grants

20 for Native Americans under title VI of the

21 Older Americans Act of 1965 (42 U.S.C. 3057

22 et seq.).

23 ‘‘(B) ADMINISTRATION FOR CHILDREN

24 AND FAMILIES.—
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8

•S 1696 IS

1 ‘‘(i) The tribal temporary assistance

2 for needy families program under section

3 412(a)(1) of the Social Security Act (42

4 U.S.C. 612(a)(1) et seq.).

5 ‘‘(ii) The Low-Income Home Energy

6 Assistance Program under the Low-Income

7 Home Energy Assistance Act of 1981 (42

8 U.S.C. 8621 et seq.).

9 ‘‘(iii) The Community Services Block

10 Grant Program under the Community

11 Services Block Grant Act (42 U.S.C. 9901

12 et seq.).

13 ‘‘(iv) The Child Care and Develop14 ment Fund under the Child Care and De15 velopment Block Grant Act (42 U.S.C.

16 9858 et seq.).

17 ‘‘(v) The native employment works

18 program under section 412(a)(2) of the

19 Social Security Act (42 U.S.C. 612(a)(2)).

20 ‘‘(vi) The Head Start Program under

21 the Head Start Act (42 U.S.C. 9831 et

22 seq.).

23 ‘‘(vii) Child welfare services programs

24 under part B of title IV of the Social Secu25 rity Act (42 U.S.C. 620 et seq.).
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•S 1696 IS

1 ‘‘(viii) The promoting safe and stable

2 families program under part B of title IV

3 of the Social Security Act (42 U.S.C. 620

4 et seq.).

5 ‘‘(ix) Family violence prevention

6 grants for battered women’s shelters under

7 the Family Violence Prevention and Serv8 ices Act (42 U.S.C. 10401 et seq.).

9 ‘‘(C) SUBSTANCE ABUSE AND MENTAL

10 HEALTH SERVICES ADMINISTRATION.—Tar11 geted capacity expansion program under title V

12 of the Public Health Service Act (42 U.S.C.

13 290aa et seq.).

14 ‘‘(D) BLOCK GRANTS REGARDING MENTAL

15 HEALTH AND SUBSTANCE ABUSE.—Mental

16 health and substance abuse block grant pro17 grams under title XIX of the Public Health

18 Services Act (42 U.S.C. 300x et seq.).

19 ‘‘(E) HEALTH RESOURCES AND SERVICES

20 ADMINISTRATION.—Community health center

21 grants under section 330 of the Public Health

22 Service Act (42 U.S.C. 254b).

23 ‘‘(3) ADDITIONAL INCLUDED PROGRAMS.—The

24 Secretary may identify not more than 6 additional
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10

•S 1696 IS

1 programs annually for inclusion in the demonstra2 tion project, including—

3 ‘‘(A) all other programs in which Indian

4 tribes are eligible to participate;

5 ‘‘(B) all other programs for which Indians

6 are eligible beneficiaries; and

7 ‘‘(C) competitive grants for which an In8 dian tribe receives an individual or cooperative

9 award, on the condition that the Indian tribe

10 agree in the funding agreement to restrictions

11 regarding program redesign and budget re12 allocation for any competitive awards.

13 ‘‘(4) CONTENTS.—A funding agreement—

14 ‘‘(A) shall specify—

15 ‘‘(i) the services to be provided;

16 ‘‘(ii) the functions to be performed;

17 and

18 ‘‘(iii) the responsibilities of the Indian

19 tribe and the Secretary;

20 ‘‘(B) shall provide for payment by the Sec21 retary to the Indian tribe of funds in accord22 ance with section 605;

23 ‘‘(C) shall not allow the Secretary to waive,

24 modify, or diminish in any way the trust re25 sponsibility of the United States with respect to
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11

•S 1696 IS

1 Indian tribes and individual Indians that exist

2 under treaties, Executive orders, and Acts of

3 Congress; and

4 ‘‘(D) shall allow for retrocession of in5 cluded programs under section 105(e).

6 ‘‘SEC. 605. TRANSFER OF FUNDS.

7 ‘‘(a) TRANSFER.—

8 ‘‘(1) IN GENERAL.—Under any compact or

9 funding agreement entered into under this title, the

10 Secretary shall transfer to the Indian tribe all funds

11 provided for in the funding agreement.

12 ‘‘(2) TIMING.—Unless the funding agreement

13 provides otherwise, at the request of the Indian

14 tribe—

15 ‘‘(A) funding shall be paid in 1 annual

16 lump sum payment; and

17 ‘‘(B) the transfer shall be made not later

18 than 10 days after the apportionment of funds

19 by the Office of Management and Budget to the

20 Department of Health and Human Services.

21 ‘‘(b) AMOUNT OF FUNDING.—

22 ‘‘(1) FUNDING FORMULAS.—

23 ‘‘(A) IN GENERAL.—Any statutory funding

24 formula for an included program—
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•S 1696 IS

1 ‘‘(i) shall be waived for the dem2 onstration project under this title; and

3 ‘‘(ii) shall be used to determine the

4 amount of funding provided to an Indian

5 tribe.

6 ‘‘(B) ADEQUACY.—Subject to the availabil7 ity of appropriations—

8 ‘‘(i) the funding amount shall be ade9 quate to permit the successful implementa10 tion of the demonstration project; and

11 ‘‘(ii) the Secretary and the participat12 ing Indian tribe shall determine the fund13 ing amount through negotiation.

14 ‘‘(2) MATCHING REQUIREMENT.—An Indian

15 tribe may request a waiver of any matching require16 ment applicable to an included program, and the

17 Secretary shall liberally grant such reasonable waiv18 er requests.

19 ‘‘(3) CONTRACT SUPPORT COSTS.—There shall

20 be added to the amount required by paragraph (1)

21 contract support costs as specified in paragraphs

22 (2), (3), (5), and (6) of section 106(a).

23 ‘‘(4) ADMINISTRATIVE FUND SHARES.—

24 ‘‘(A) IN GENERAL.—An Indian tribe may

25 negotiate for a tribal share of administrative
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•S 1696 IS

1 funds without regard to the organizational level

2 at which the included programs are carried out.

3 ‘‘(B) INCLUSION.—A tribal share under

4 subparagraph (A) shall include a share for

5 training and technical assistance services per6 formed by a contractor.

7 ‘‘SEC. 606. GENERAL PROVISIONS.

8 ‘‘(a) REDESIGN, CONSOLIDATION, AND REALLOCA9 TION.—

10 ‘‘(1) IN GENERAL.—To the extent allowed

11 under the statutory provisions of the included pro12 grams included in the funding agreement, and sub13 ject to the terms of the funding agreement, an In14 dian tribe may—

15 ‘‘(A) redesign or consolidate the included

16 programs under the funding agreement if the

17 Indian tribe agrees to abide by the statutory

18 purposes of the program; and

19 ‘‘(B) reallocate or redirect funds for the in20 cluded programs, among the included programs

21 under the funding agreement, so long as all

22 demonstration project costs using those funds

23 meet allowable cost standards as required by

24 section 506(c).

25 ‘‘(2) WAIVERS.—
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•S 1696 IS

1 ‘‘(A) IN GENERAL.—At the request of an

2 Indian tribe, if the Secretary determines that a

3 waiver would further the purposes of this Act,

4 the Secretary shall grant a waiver of program

5 requirements for the duration of the demonstra6 tion project to facilitate the ability of an Indian

7 tribe to redesign included programs or reallo8 cate funds under paragraph (1).

9 ‘‘(B) DOCUMENTATION.—The Secretary

10 shall document all requests for a waiver under

11 subparagraph (A), including a description of—

12 ‘‘(i) the reasons for each request;

13 ‘‘(ii) the effect of the waiver on the

14 Indian tribe making the request; and

15 ‘‘(iii) the views of the Indian tribe re16 garding the requested waiver.

17 ‘‘(b) INABILITY TO AGREE ON COMPACT OR FUND18 ING AGREEMENT.—

19 ‘‘(1) FINAL OFFER.—If the Secretary and an

20 Indian tribe are unable to agree, in whole or in part,

21 on the terms of a compact or funding agreement (in22 cluding funding levels), the Indian tribe may submit

23 a final offer to the Secretary.

24 ‘‘(2) DETERMINATION.—Not later than 45 days

25 after the date of submission of a final offer, or as
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•S 1696 IS

1 otherwise agreed to by the Indian tribe, the Sec2 retary shall review and make a determination with

3 respect to the final offer.

4 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec5 retary fails to make a determination with respect to

6 a final offer within the time specified in paragraph

7 (2), the Secretary shall be deemed to have agreed to

8 the final offer.

9 ‘‘(4) REJECTION OF FINAL OFFER.—

10 ‘‘(A) IN GENERAL.—If the Secretary re11 jects a final offer, the Secretary shall—

12 ‘‘(i) submit to the Indian tribe a writ13 ten statement clearly setting forth the rea14 sons for rejecting the final offer; and

15 ‘‘(ii) provide the Indian tribe with a

16 hearing on the record (except that the In17 dian tribe may, in lieu of such a hearing,

18 file an appeal of the rejection to the Intra19 Departmental Council on Native American

20 Affairs, the decision of which shall be final

21 and not subject to judicial review).

22 ‘‘(B) BURDEN OF PROOF.—In a hearing or

23 appeal under subparagraph (A)(ii), the Sec24 retary shall have the burden of proving by clear
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•S 1696 IS

1 and convincing evidence the validity of the

2 grounds for rejecting the final offer.

3 ‘‘(c) OTHER FUNDING.—Participation by an Indian

4 tribe in the demonstration project under this title shall

5 not affect the amount of funding that the Indian tribe

6 would receive under the laws (including regulations) gov7 erning the included programs if the Indian tribe did not

8 participate.

9 ‘‘(d) DUPLICATION OF ELIGIBILITY.—To the maxi10 mum extent practicable, an Indian tribe shall make efforts

11 to coordinate with appropriate States to identify dually eli12 gible individuals to address the potential for the provision

13 of duplicate benefits.

14 ‘‘(e) APPEALS.—Except as provided in subsection

15 (b)(2), a compact or funding agreement under this title

16 shall be considered to be a contract for the purposes of

17 section 110.

18 ‘‘(f) REGULATIONS; OTHER AGENCY STATEMENTS.—

19 ‘‘(1) REGULATIONS.—An Indian tribe shall

20 comply with final regulations for the included pro21 grams in connection with the demonstration project.

22 ‘‘(2) OTHER AGENCY STATEMENTS.—Unless ex23 pressly agreed to by an Indian tribe in a compact or

24 funding agreement, the Indian tribe shall not be
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•S 1696 IS

1 subject to any agency circular, policy, manual, guid2 ance, or rule that is promulgated by regulation.

3 ‘‘(g) APPLICABILITY OF OTHER PROVISIONS.—The

4 following provisions of this Act shall apply to a compact

5 or funding agreements entered into under this title:

6 ‘‘(1) Section 102(d).

7 ‘‘(2) Section 506(b) (conflicts of interest).

8 ‘‘(3) Section 506(c)(1) (Single Agency Audit

9 Act).

10 ‘‘(4) Section 506(c)(2) (cost principles).

11 ‘‘(5) Section 506(c) (records).

12 ‘‘(6) Section 507(c)(1)(A) (grounds for reject13 ing a final offers).

14 ‘‘(7) Section 508(g) (prompt payment).

15 ‘‘(8) Section 506(h) (nonduplication).

16 ‘‘(9) Section 508(h) (interest or other income

17 on transfers).

18 ‘‘(10) Section 508(i) (carryover of funds).

19 ‘‘(11) Section 509 (construction projects).

20 ‘‘(12) Section 510 (Federal procurement laws).

21 ‘‘(13) Section 512(b) (regulation waivers).

22 ‘‘SEC. 607. REPORT.

23 ‘‘(a) IN GENERAL.—The Secretary shall annually

24 submit to Congress a report on the relative costs and bene-
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•S 1696 IS

1 fits of the demonstration project using evaluation and re2 porting data provided by participating Indian tribes.

3 ‘‘(b) BASELINE MEASUREMENTS.—

4 ‘‘(1) IN GENERAL.—A report under subsection

5 (a) shall be based on baseline measurements devel6 oped jointly by the Secretary and participating In7 dian tribes.

8 ‘‘(2) FINANCIAL ASSISTANCE.—The Secretary

9 shall provide financial assistance to Indian tribes to

10 assist Indian tribes in evaluating and reporting on

11 the demonstration project.

12 ‘‘(c) CONTENTS.—A report under subsection (a)

13 shall—

14 ‘‘(1) verify that the participating Indian tribes

15 met the statutory purposes of the included pro16 grams;

17 ‘‘(2) confirm that key self-governance principles

18 were carried out as Indian tribes operated the in19 cluded programs; and

20 ‘‘(3) separately include Federal and tribal view21 points regarding—

22 ‘‘(A) the merger of included programs op23 erated under this title and self-governance prin24 ciples; and

25 ‘‘(B) the impact on program beneficiaries.
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•S 1696 IS

1 ‘‘SEC. 608. AUTHORIZATION OF APPROPRIATIONS.

2 ‘‘There are authorized to be appropriated such sums

3 as are necessary to carry out this title, to remain available

4 until expended.’’.

Æ
141

The CHAIRMAN. I do want to note the absence of any representative from the Department of Health and Human Services, which for

reasons beyond my understanding have chosen not to send a witness to today’s hearing. I have to say as a matter of record that

I am not at all pleased with the response we have gotten from the

Administration when we are taking up Indian issues that I believe

are really measured to try to help Indian tribes become more independent of the Federal Government’s tethering. Perhaps then not

being here is an indication they support the bill and just do not

want to tell us. Hopefully, that is the case.

So if there are no other opening statements, we will go ahead to

our first and only panel today. That will be Don Kashevaroff, chairman of the Alaska Native Tribal Health Consortium; Alvin Windy

Boy, nice to see you, Alvin. I have not seen you for a good amount

of time, but hopefully I will see you at some of the pow-wows. I am

coming to your Fourth of July big pow-wow. It is going to be a lot

of fun, and homecoming for me.

Mr. WINDY BOY. I might come out of retirement. [Laughter.]

The CHAIRMAN. Okay. And Ron Allen, chairman of the Jamestown S’Klallam Tribal Council from Washington; Mickey Peercy,

executive director of Management and Operations, Choctaw Nation

of Oklahoma, from Durant, OK.

If you gentlemen would all sit down, we will go ahead and start

with you, Don. For all of the people testifying today, if you would

like to submit your complete written testimony, that will be included in the record. If you would like to abbreviate, that is fine.

STATEMENT OF DON KASHEVAROFF, PRESIDENT/CHAIRMAN,

ALASKA NATIVE TRIBAL HEALTH CONSORTIUM

Mr. KASHEVAROFF. Thank you, Mr. Chairman. Yes, please accept

my written testimony. Good morning to you and committee members. I am pleased to testify today in strong support of S. 1696, the

Department of Health and Human Services Tribal Self-Governance

Amendment Act.

My name is Don Kashevaroff. I am the president of the Seldovia

Village Tribe. I am also the chair and president of the Alaska Native Tribal Health Consortium.

In my written comments, I discuss some of the benefits of S.

1696 and similar to what the chairman started out with today, that

it will increase efficiency, allow us to redesign and to really help

our people. I was kind of going to really veer off the topic since I

understand that no one from the Administration is going to be

present, so for the next few minutes, let me go this way.

For the last 3 weeks, I have been doing nothing but budgets,

budget meetings, budget meetings, budget meetings. HHS, we had

a meeting with them last week, our consultation meeting. HHS has

a $500 billion budget. I cannot count that high. I cannot imagine

how much money that is, but it is a lot of money. Even around $68

billion of that is discretionary, meaning that they can spend it, or

the Administration can request to spend it anywhere they want.

What I see out of them and I asked out of them, and maybe

today is an indication, is, I asked them what priority are Indians.

We have already showed over and over again that we are the lowest of the low when it comes to health disparities. We are always
142

on the bottom rung. We are never getting ahead. HHS is spending

about $1 billion on us; excuse me, they are spending around $4 billion or $5 billion. They are spending 1 percent on us of their budget. It leads me to believe that if Indians were a priority, they would

be spending a lot more.

One of the reasons I think S. 1696 is very important to us is that

right now the government does not place a priority on the health

care of Indians. They just have too many other things going on

which I can understand. There are wars going on. There is terrorism. There is a huge economy that we have to keep running. But

what S. 1696 would allow us to do, it would allow the tribes

through self-governance to compact some of those services that we

are already running through HHS. We are already getting them in

grants and things, but it would allow us to run them and create

more efficiencies and better service for our people.

The Government has been working for 50 or more years on Indian health care, and we are still the lowest of the low. Something

is not working right. If something is not working right, you need

to change something. What we need to change is the way we operate. Instead of the government providing the services, we need to

let the tribes provide the services as we have shown over and over

again.

The other day I was flying back to Alaska, and I watched that

movie Titanic again, to segue here. The Titanic was going down. It

had 2 hours to sink. About 1 hour after it was going down still,

down below on the E-deck or something they had the gates locked.

All the low immigrants were down there and they were shaking the

bars. The guy was standing there with the key saying, ‘‘I cannot

let you up.’’ There were only lifeboats for half the people, and those

immigrants were shaking the gates saying, ‘‘Give us the chance to

save ourselves.’’ S. 1696 would give us the chance to save ourselves,

as the previous compacting laws that have been passed have done.

Let me go through two examples of what we can do when we

start compacting. The Alaska Native Medical Center, which is operated by the Alaska Native Tribal Health Consortium and South

Central Foundation since we took over has been aimed at innovation, aimed at excellence. We have been looking for customer service. We have been completely turning the culture of that government-run hospital around. We currently have achieved magnate

status for nursing excellence. Only 71 hospitals in the whole country have done this. We are the first IHS one, and probably the first

government one, if I go to the records. It is something that the private sector looks for the best. We have achieved that.

We have been hiring more doctors, providing more services, expanding the product line, and increased access. We now have sameday, you can walk in and get an appointment with your primary

care provider the exact same day. We turned around our special

clinics this year, and now you can go in and you can have surgery

within 2 days in many of our special access clinics. It used to be

a 3-month wait. When the Government was running it, it was even

longer. We have been able to do that under the compacted mode.

So we have been able to improve the services that we offer.

The second example is Seldovia, my tribe, we have been able to

expand greatly. When Seldovia took over the program, it was a con-
143

tract health care program. IHS hired private doctors in the communities there, paid them money. When our folks went to them and

got service, the money never lasted that long. That was fine. We

took that over. We realized that with the doctors increasing their

rate 10 to 15 percent a year because that is what medicine in this

Nation is doing, 10 to 15 percent per year, and IHS just giving us

1 to 4 percent a year in CHS, something was wrong. We could not

keep that up. We were going backwards every year.

We wanted a clinic. We asked IHS for a clinic. They turned down

our application. But we are self-governing. We have a priority of

our people, who are number one. The Government does not put Indian people number one. We do, because that is our sole priority.

I am directly elected by my folks. If I do not do a good job, they

get somebody else in there.

IHS said we cannot have a clinic. We went out and leased a clinic ourselves. We innovated, put moneys together, and now we have

a leased clinic and we are also now building a clinic, a permanent

clinic that we will own that is twice the size of what we currently

lease.

That is what we can do with compacting. That is what we can

do if we S. 1696 is approved and we are able to take the HHS

funds, move them under tribal management. We will have a priority for our people unlike the Government currently has.

So Mr. Chairman, I really ask that you and the rest of the committee support and pass S. 1696 and give us a chance to save ourselves.

[Prepared statement of Mr. Kashevaroff appears in appendix.]

The CHAIRMAN. Okay, thank you. Ron, I have you second on the

list. Would you like to proceed? You came in just a few minutes

late, but I am sure you are not short of something to say on this

issue, are you?

STATEMENT OF RON ALLEN, CHAIRMAN, JAMESTOWN

S’KLALLAM TRIBAL COUNCIL

Mr. ALLEN. No; I am not, Senator. I really appreciate the opportunity. My apologies for getting late here. All the construction up

here makes it a little longer to get up here on the Hill anymore.

Thank you, Senator. My name is Ron Allen, chairman for the

Jamestown S’Klallam Tribe out in Washington State. You have my

testimony sent to you with specifics.

Self-governance clearly is an agenda that has been important to

my tribe and to myself and my colleagues here. It goes back in

terms of the evolution of empowering tribal governments. As we

have testified here before this committee, in 1975 when the SelfDetermination Act was passed it was all about promoting empowerment of tribal governments and reducing bureaucracy and allowing the tribal governments to be able to control their own priorities with their own communities. Self-governance clearly throughout the 1990’s has shown that as we transfer more and more of the

Federal bureaucracy to the Indian tribes, that we are better able

to use these precious few resources that the Federal Government

makes available to us more efficiently and more effectively for our

programs.
144

It provides us the flexibility to design programs with greater

flexibility and appropriateness for our cultures and our communities that the Federal Government cannot do. It has to deal with

over 560 Indian nations from Alaska to Florida, and the complexities of our communities are great and many. There is no way the

Federal system could have ever created a system that is really

going to be reflective of what the tribal governments really need

and what the Indian communities need.

We have shown through the success of self-governance since you

have empowered us back in 1994, and even earlier when we did the

demonstration phase, that it is a success; that the tribal governments given these resources can use these resources more efficiently and effectively for our communities. We have redesigned

them. We have taken these resources and matched them up with

tribal resources and other resources, and created more tribally culturally appropriate resources.

Back when it started, when it came out of the Arizona Republic

expose about the mismanagement of the Federal resources for Indian people, there was the notion that, well, let’s just turn all the

money over to the tribes, and they can divvy it up based on individual Indians and memberships of the tribe. We said back then, no,

that is not the way to do this. The Federal Government has the

fundamental moral and legal obligation to the tribes, and if we are

going to transfer these responsibilities from the Federal Government over to the tribes, it will be based on our terms. We have

been doing that over the course of this last 10 to 15 years.

Now, we are moving forward into HHS. As my colleagues have

already been testifying, we moved first with BIA and started into

the Interior programs. We have testified to you how we have had

some struggles with the other non-BIA programs at Interior. We

moved quickly over to IHS, and now we are moving into HHS.

So there are literally hundreds of programs over in HHS. We

contract out for a couple of dozen different programs out there, so

we really do not access all of the programs that HHS has available

to us, but we did want to start moving in that direction very quickly. Already we realize that it is not as efficient by going after each

of these programs individually. If we can go out there and negotiate for these programs and move them in and redesign them for

our communities, relative to the existing resources that we get

from the BIA, Interior and IHS, as well as HUD with the housing

programs, we can use them more efficiently.

HHS has shown a willingness to do that. They were a little hesitant and wanted to go through the study process to examine the

viability of conducting self-governance. We said okay, fine, and they

persuaded the Congress to conduct the study. The study has revealed that it is effective, it is efficient, and it is a good way to empower tribal governments and allow us to move our governments

forward constructively and effectively.

We have shown categorically, whether it is a small tribe like

mine or a large tribe with a large land base, that it can move forward very effectively and we have been able to serve our tribe.

We have only had a few blemishes that I would argue we could

look back and say, well, we made some mistakes here and it did
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not quite work out the way we wanted it. As a general observation,

if you look at the big picture, it has been an unequivocal success.

So we are arguing that not only does it affirm sovereignty of the

tribe, not only does it affirm the commitment of the Congress and

the Administrations of the past to empower the tribal governments.

It has shown that the tribes, who are the lowest end of every economic and social category that we measure the welfare of our society, that we are starting to slowly build up that capacity and move

forward.

So what we are looking for is this legislation that allows us to

move forward from the study into the demonstration. Personally,

we believe that we can move forward even faster, but that is the

process that the Administration has shown a willingness to move

forward. We would like to see the Congress pass this legislation so

that we can now move into that phase and show to the other agencies of HHS, yes, it can work.

They have identified 11 programs. We have identified 13, and we

argue that 13 are very relevant to what we are doing. We are contracting, like I said, a couple of dozen; 13 can be made available

to us to contract out and to secure these programs, consistent with

how we do it at the BIA and the IHS, and it is very reasonable;

13 against the backdrop of 300 programs that they have is reasonable. We think that it is a reasonable phase to move forward.

The Secretary has exhibited his commitment to the tribes and we

take that commitment in earnest, and we want to move that agenda forward. We have been showing that we are more than willing

to discuss the parameters of it. We do know that some of the agencies do not administer these programs the same way that we experience over on the BIA and IHS side, and specifically with the contract support issue, which is a matter that they administer a little

differently with each of these programs.

The biggest issue I think that we are going to have to hurdle

over is just the bureaucracy letting go of their precious programs,

and the notion that if they let go of these programs, will they be

administered to the benefit of the people and the constituency that

they are intended for. We argue yes, that our experience and our

history has shown that we will be successful; that we will make

these programs work; and they will be working to the benefit of our

community, from the children to the elders, programs we have, to

the benefit of the communities as a whole, and to enhancing our

families, which we think is really important for our communities

and for our future.

So I certainly join my colleagues in urging the Congress to pass

this legislation and to encourage your colleagues to get behind it,

because it really is the way of the future with regard to our Indian

communities. Even though we argue that there is a greater need

than the resources that are being made available, we will take

what we have and make it work better for the benefit of our people.

I am here to help in any way I possibly can, to answer any questions I possibly can, and work with you, your staff and the other

Senators in any possible way to make this thing come to fruition.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Allen follows:]

The CHAIRMAN. Thank you.
146

Chairman Windy Boy?

STATEMENT OF ALVIN WINDY BOY, CHAIRMAN, CHIPPEWA

CREE BUSINESS COMMITTEE

Mr. WINDY BOY. Thank you, Senator, members of the audience.

Good morning. I greet you from the Cree and Chippewa people

of Rocky Boy. I am here also in support, along with my colleagues,

an initiative that I only dreamt about 16 years ago, being in tribal

politics for 16 years. I always felt that there has got to be something different for my people. I happened to stumble across politics

on a horse. I was moving my dad’s cows one day and an elderly

lady waved me down from the hill. I went down to her log house

and she told me in Cree, what does this mean, this letter. It was

an Indian Health Service letter, a letter of denial of payment for

services she got. She was raising her grandkids. Apparently the kid

got sick on a Friday and services were not available for the weekend, so she did the next best thing and took him to the hospital.

Ultimately, the bill was denied, and that was several years before

that it applied to her credit, which many bills end up in the credit

bureau that my people have. I always felt that there has got to be

something different.

In 1988 when I first got on Council and this demonstration was

first talked about, I asked my colleague, is our tribe ready? We

took the initiative back to Rocky Boy and the Council did not want

to step into that arena. Up until 1994, we had some young Council

come on board, and we are seeing that a lot of things that we were

going without, particularly in the arena of health care. I was telling my colleagues that maybe compacting is not for everybody, but

we have to look at a different way of providing better health care

to my people.

We took a demonstration project midway through the year. My

staff said we need to advance a compact which had done. The first

year that we had our compact, it was the first time Rocky Boy had

ever gotten a JCAHO 100 percent accreditation. From that point,

we have not only looked at compacting outside of HHS, but also

over in Interior. The Chippewa Cree Tribe is constructing a major

dam with a compact with the Bureau of Reclamation. Also we have

compacts with Minerals Management Service, the Bureau of Land

Management.

So with HHS, we have a road map. My staff has a road map of

what could be doable. I have been working with this Administration for the last 2 or 3 years and trying to look at the President’s

management plan. How could I make that work to benefit the

Chippewa Cree? I see that it could, but as mentioned by one of my

colleagues earlier, we have got to get that flexibility from this Administration, from HHS.

Certainly, there are issues that we may have differences with the

State of Montana, certainly issues that we may differ with this Administration, but that is not to say that we should no be able to

sit down.

In reference to the self-governance tribes, several statistics kind

of jump out at me. One looks at the Indian Health Service since

1994, over 52 percent of the IHS’s budget is already being administered by tribes. This year, we have 30 ways in the 2004 that are
147

being negotiated, which brings it up to a total of 319 of the 580

some-odd federally recognized tribes that are compacting. I understand that compacting may not be for everybody. I look at the delivery of tribal governmental services in three areas, those that

choose to be direct service, those that choose to contract, and those

that choose to compact. I equate that to the life of a child, when

you are infant, when you are adolescent, to your adult. Right now,

I am prepared. I am waiting to expand the health delivery of Rocky

Boy to include other agencies within HHS.

I will be glad to answer any questions.

[Prepared statement of Mr. Windy Boy appears in appendix.]

The CHAIRMAN. Thank you. It is interesting how you were sort

of herding cows and stumbled into public policy. That is kind of the

way I got involved. Be careful you do not stumble around until you

end up in the U.S. Senate. [Laughter.]

We will go ahead with our last witness. That will be Mr. Peercy.

STATEMENT OF MICKEY PEERCY, EXECUTIVE DIRECTOR OF

MANAGEMENT AND OPERATIONS, CHOCTAW NATION OF

OKLAHOMA

Mr. PEERCY. Yes, sir; good to see you again, Senator and staff.

I want to say good morning and greetings from Chief Gregory

Pyle, chief of the Choctaw Nation of Oklahoma. Also, I want to add

our testimony in the spirit of the late Merle Boyd, second chief of

the Sac and Fox who we lost 1 year ago, who was certainly a warrior in the area of self-governance.

The Choctaw Nation is typical of many of the tribes in the Nation. We are strong. We are resilient. As was mentioned, I know

there are 319 tribes looking to enter into self-governance.

I have submitted testimony I will refer to mine on some, just on

the high points. We have demonstrated that in 1975 those legislators who initially endorsed Public Law 93–638 were right. We,

along with many other tribes, have been successful. The Choctaw

Nation, we are strong believers in the philosophy of self-determination.

In 1985, the Choctaw Nation was the first health care system to

contract under Public Law 93–638 for the entire health system.

This was done in a very sudden and dramatic way. It was done not

because in those days we thought it was a good thing, but the

health care delivery in the Talihina, Oklahoma Hospital and the

four satellite clinics had gotten to a point where the tribe said, we

are bound to be able to do a better job than the Indian Health

Service.

I think we can prove that we have done it today. I think you are

aware, Senator, we are in a new 144,000 square foot hospital in

Talihina, OK. We are in the process of constructing a joint venture

clinic in Idabel, OK; a small ambulatory grant clinic in Stigler, as

well as a substance abuse recovery center in Talihina. These were

done with a combination of IHS and tribal dollars.

Because of self-governance, we have been able to create efficiencies. I think that is the key in what we are talking about, to

locate efficiencies and redesign programs to maximize for the good

of the people.
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We have been innovative and aggressive in our approach to providing services to our people. We have been diversified. One thing

I want to point out, we provide $4 million to Choctaw Nation students each year across the Nation through that diversity, through

our contracting, our manufacturing and our enterprises. To give

you an example of manufacturing, in McAllister, OK, we build

large industrial heaters that we send to Afghanistan. In McAllister,

OK, we construct some of the tail sections for some of the bombs

that have been dropped in Iraq. In Hugo, OK, we build the containers that ship those bombs to the Army. Through our Choctaw Management Services Enterprises, we staff all the emergency rooms in

the armed forces overseas in all the Army hospitals. We also have

the WIC contract, the Women, Infants and Children contract for

the Army overseas. This diversifies.

All of this is accomplished through self-governance. One thing I

highlighted and pointed out in my testimony, 4 years ago our Federal tribal income ratio was 80 percent Federal to 20 percent tribal.

Today, it is 17 percent Federal and 83 percent tribal. So the dependence on the Federal dollar has been greatly reversed.

I made a comment. I said this is impressive. I do not care who

you are. That is not disrespectful to this body. That is blue collar

Southern Oklahoma humor, that looking at these statistics wherever you sit, that has got to be impressive. I wanted to point that

out.

Choctaw Nation of Oklahoma was one of the supporters of the

demonstration project in title V. We were involved in rulemaking.

We were also involved in the feasibility study under title VI. The

feasibility study shows that we were successful.

We also wanted to point out, and it is in the testimony, of the

13 programs that have been outlined by the tribes, or the 11 by

DHHS, Choctaw Nation manages six of those programs to a tune

of over $6 million. We do that well. We do that well. We are very

pleased with it. However, there are issues with that. There are

flags. Congress can edict tribal self-determination. Agency staff can

verbalize self-determination and its support, but the spirit is lacking, and when the spirit is lacking, nothing is accomplished. Due

to mistrust, control issues and fear, it makes self-governance and

moving into self-governance very difficult.

Again, our programs have been successful, but just to point out

one example. We have built a new Head Start Center, and we have

built a new Child Development Center. They are fairly side by side.

They are new. They are built with Government CDBG grants and

tribal funds. We have two playgrounds in the back, one on each

side. The issue is, they cost about $50,000 apiece to build the playgrounds, when one would have sufficed. However, due to the constraints of the programs being separate, the Head Start kids cannot play on the Child Development playground, and the Child Development kids cannot play on the Head Start, so you build two.

To us, that is ridiculous, but it is the way the system works.

With that, I just want to tell you that we support wholeheartedly, Chief Pyle supports wholeheartedly the movement of

this bill. As was mentioned by my colleagues here, anything that

we can do to support in any way, please let us know.

We appreciate your time and we will be here for questions.
149

Thank you, Mr. Chairman.

[Prepared statement of Mr. Peercy appears in appendix.]

The CHAIRMAN. Thank you.

I may start with you, Mr. Peercy, since you just finished. We will

probably be submitting some questions in writing for all four of

you, too. That timeframe, you mentioned that the total financial resources of the tribe at one time was 80 percent federal, 20 percent

tribal, and now is 17 percent Federal and 83 percent tribal. What

was the time frame between that change?

Mr. PEERCY. That is about a 4- to 5-year period.

The CHAIRMAN. Just in 4- to 5-years, that fast.

Mr. PEERCY. Yes, sir.

The CHAIRMAN. And the 144,000-foot hospital you mentioned

that you are in the process of building, was the money you needed

to do that, did you work with private lending institutions to finance

that?

Mr. PEERCY. No, sir; we did our own through tribal revenues

built that.

The CHAIRMAN. You did not have to borrow money to do it?

Mr. PEERCY. No, sir; it is a $28-million hospital that is debt-free.

The CHAIRMAN. Debt-free. Wonderful.

Your written testimony indicates the Nation operates 6 of the 13

programs identified in this bill that we are dealing with today.

Mr. PEERCY. Yes, sir.

The CHAIRMAN. Has the Choctaw Nation been prevented from operating all 13 programs because of current statutory restrictions or

lack of compacting authority or something of that nature? What is

the basis?

Mr. PEERCY. I would think most of those have been through tribal choice, such as the TANF program. That is something that our

chief and the Council chose not to do.

The CHAIRMAN. Did they choose not to because they were worried

about availability of resources from the Federal Government to implement it, or what?

Mr. PEERCY. Yes, sir; that is an issue with most of those programs. And again to point out, sir, to followup on that a little bit,

we have had these programs for the most part for many, many

years.

The CHAIRMAN. So you look at them and basically if the project

is going to exceed the cost savings, it is a non-starter for you then.

Mr. PEERCY. Yes, sir.

The CHAIRMAN. Yes.

Don, let me ask you maybe the same question. You also spoke

of the hospital that you are building in Alaska, your tribe is. Is

that primarily being done with tribal money?

Mr. KASHEVAROFF. Yes; the clinic we are building is part tribal

money, part money from HUD, and part money from the Denali

Commission. Then we have also applied to a couple of private foundations for equipment. We basically have gone to the bank for a

line of credit, which we do not actually need now that all the funding has come in, but the banks were more than willing, after reviewing the tribe and our economic successes to loan us money if

we need it, but we do not.
150

The CHAIRMAN. The portion of the Federal money that you did

get through IHS or HHS, you mentioned in the past they have

been unilaterally determined standards and measures that were

used to evaluate your programs. Did they affect the building of this

hospital at all?

Mr. KASHEVAROFF. Yes; I guess they did. We are going to build

this clinic with no IHS funds. We had to go through other sources.

The IHS through their standards had basically turned down our

contract to have a clinic based on lack of population as they said.

So using their standards, we should not be able to have a clinic.

By using their standards also, our contract health service dollars

just keep getting less and less buying power, and eventually we

will have no buying power.

So if we were to follow the IHS and the rules they live by, we

would eventually just have no health care, basically. So by compacting and doing it ourselves and showing them that we can succeed, IHS is working with us quite well. We get along with HHS.

We get along with IHS very well, and I think that we have been

able to prove that we can make a better health system by doing

it on our own, and we can rely on other folks besides IHS also.

The CHAIRMAN. Thank you.

Ron, you have testified a lot lately on self-governance bills. I

think you were in here when I kind of blew up at the Administration because I thought they were dragging their feet on us and not

really seriously interested in helping us. But thank you for attending and thank you for your testimony last time, and this time, too.

You were on the Title IV study team which included the Department of Health and Human Services representatives. Is that correct?

Mr. ALLEN. Yes.

The CHAIRMAN. Can you describe what is the level of participation by the Department of Health and Human Services?

Mr. ALLEN. Actually, it was fairly good. We received quite a bit

of participation by the majority of the agencies that we were entertaining to put into this demonstration phase. They raised a number

of issues, and of course the States raised some of their issues, because a lot of these funds will go through the state before it gets

to the tribe. So we have to kind of filter it, or they filter it, before

it gets to the tribe and our communities. We worked with them in

terms of why we needed to have direct access, and then why the

Administration should be supportive of it.

So they participated and identified what their concerns were. We

think we alleviated the majority of them. We do know that they

have still some anxieties over the notion of how do you negotiate.

We had to persuade them that, look, we take this one step at a

time to learn how we are going to negotiate, what is our fair share

and how should it be administered, and why should you adjust

your budget to accommodate this new way of doing business with

Indian tribes.

So I think that we are making some good progress. The encouraging part was the Secretary’s office was fairly active and very

tuned into the process of the study, so they were very supportive

of the study as well. We became a little concerned, and it took a

little bit of a side-step or diversion if you will, because of the con-
151

tractor who conducted the study, who we had to educate. Consistently, when we would go through these processes, you would bring

in a contractor and they would know nothing about tribal governments and the empowerment of tribal governments. So we had to

spend a lot of energy.

The CHAIRMAN. Everytime new people come in, you have to reinvent the wheel, every time new people come on board.

Mr. ALLEN. Oh, consistently. It has been a problem that we have

been struggling with for 15 years. But at least we made some good

headway and we feel the report is fair and objective and supportive

of what we are trying to achieve.

The CHAIRMAN. You identified streamlining programs as one of

the key objectives of this bill, S. 1696. That is what I believe is the

real goal, too. The duplication of grant applications is an example,

or budgets reporting. It is all a big huge waste of resources. In my

opinion, if it could be better directed, that money that we use in

doing that could be directed to the programs.

Do you have any ballpark idea about maybe even including costs

and man hours that a tribe such as yours could expect to save by

not having to submit all those multiple applications, budgets reports and so on, and could administer programs yourself?

Mr. ALLEN. No, Senator; I do not off the top of my head. I can

tell you just instinctively and through my experience, it is a phenomenal amount of energy. When you have to put together these

grant or contracting applications, you go through the program directors and you go through the planners and grant writers themselves, and you make sure that it is working. You talk about how

it is going to complement other programs. And then you have to go

through the whole process of applying and interacting with the Department and the agency process, the whole process of review, and

the interaction going back and forth.

So the amount of staff resources and energy that we have to put

in is phenomenal. If we could convert those resources and energies

into the programs, we would be much better off. But obviously, we

need those resources. Those resources are important to our programs, whether it is the children or the elders or community service programs, domestic violence programs.

So yes, without having any specific data, we can tell you that unequivocally that the amount of resources we are saving, the Federal Government and the tribes, is going to be phenomenal in

terms of the end results of how much more we can divert of those

resources to more constructive at the grassroots-type of activities.

The CHAIRMAN. The reason I asked you is because I have heard

for years and years, over and over from many people that testify,

that if we could direct the money directly to the tribes, it would not

be eaten up by administrative costs, overhead, all the other stuff

as it sort of dribbles down. But I have never seen anything that

is really authoritative to say how much more in percent a tribe

would find usable if we gave direct funding through compacting or

contracting, as opposed to the agencies doing all the administration. I, like you, think it could be considerable.

I have seen things saying 80 percent of all the money we appropriate for the BIA, for instance, does not actually get to the tribal

members. It is eaten up somewhere in the bureaucracy. I hear that
152

and read that, but they are usually accusations or guesstimates or

so on, but I have never seen anything definitive about how much

better of we would be by sending the money directly to tribes.

Mr. ALLEN. Mr. Chairman, it would be easy for us to identify all

the participants in the tribe who have to develop these grants and

contract applications, and identify the actual processes and the

interaction with the Federal agencies to show you the kind of energy that we have to spend, the kind of man hours we have to actually spend soliciting each of these grants. Some of these grants are

little tiny grants. They are $2,000 grants or it may be $200,000 or

$2 million grants. The irony of it is that the $2,000 grant can take

up as much energy as a $2-million grant. You can’t not go after

them because we need every little dollar we can get into our community.

The CHAIRMAN. Yes; I would like you to do something for the

committee, and that is just pick out any one of them that deals

with your tribe, that goes to your tribe, and see if you can put together a comparative study for me, for the committee, about what

percent of any x amount of money that you think would be better

used going directly to the tribes, as opposed to how it is being used

up in the process if we could do more direct funding. Any one of

the programs you now deal with with the Federal Government, if

you could do that so I could use it as an example for the committee

and the members, I would appreciate it.

Mr. ALLEN. We would be delighted to do that, Mr. Chairman.

The CHAIRMAN. A small one of $2,000 or a big one, whichever

one, but give me some information so I have something more definitive.

Mr. ALLEN. Okay.

The CHAIRMAN. Thank you.

Chairman Windy Boy, you have been long a champion of self-governance and the hard work that you have done is paying off for the

improvements in health certainly for your tribal members on your

reservation. I thank you for being here.

This bill requires annual reporting which must verify that tribes

meet the statutory purposes of the bill. What is your view on that

oversight? Is it too much? How would you compare that with other

current compact oversight?

Mr. WINDY BOY. In order to provide in this case better health

care delivery, we have jumped through a lot of hoops and reports.

We have done that. Fiscal analysis, we have done that.

So if there are reports, whether it be additional or downsized reporting mechanism, we would do that.

The CHAIRMAN. The bottomline is we cannot get it passed unless

there is some oversight. That is the way it works around here, or

we cannot get it signed into law, I mean.

Mr. WINDY BOY. Yes; I want to mention an oversight on my part.

In 1975, health care delivery was available to my people by the Indian Health Service. My late father, chairman for 20 years, took it

upon himself to finance their own health facility, because at that

time the enrollment was 3,200 people. The facility that the Indian

Health Service was manning in Rocky Boy certainly was insufficient by way of space and personnel.
153

In 1975, they went from east coast to west coast attempting to

get a loan to build a facility. It was not until he and several other

Council members went to a small town in Malta, MT that financed

the facility for them. They have since paid it off, which gets us into

another era. Our last enrollment meeting several months ago

showed that we were close to 6,300 people. The facility, and I

thank my dad and them for what they have done for my people,

but in this day and age we have increased enrollment. That is

probably pertinent in Indian Country all over.

The CHAIRMAN. What percent of your enrollment lives on the reservation?

Mr. WINDY BOY. Of the 6,200 people, we have close to 4,000 that

live on it, and we are seeing a lot more move back.

Incidentally, before I came here we had a groundbreaking for a

facility that the tribe is going to build. We have collaborated with

both the Indian Health Service, USDA, HUD and the BIA to create

this from a 3,400-square-foot facility to a 10,000-square-foot facility, with an emphasis on wellness center within.

The CHAIRMAN. Good. This new center you are groundbreaking

for, I note with interest some of the new Indian clinics and hospitals that are being built by tribes where they have a lot more

input on determining what they want emphasized in there. They

are not just hospitals. They are really, to use your words, wellness

centers.

I live at Southern Ute in Colorado and they just built one. Included with the clinic, which is right next door, they have a nutrition program, as an example, where they teach cooking and how

to improve diets to try to reduce diabetes. They have a gymnasium.

They have exercise class. They have a lot of things that are related

to health. I think that is really the future direction that Indian, if

you want to use that word ‘‘hospital,’’ that they take. They look at

it in a holistic sense, rather than just trying to patch things up

after they happen.

Mr. WINDY BOY. Actually, I was proud of my people at home.

They persistently met with the two school boards in Rocky Boy and

Box Elder and basically turned the feeding program of the Rocky

Boy School for the students. Students have more nutritious food,

and actually the wellness center we are creating does have a swimming pool and gymnasium, with that in mind. They did tell me

that we will do something about my [native word].

The CHAIRMAN. Yes; you know, I like fried bread as well as the

next guy, but it is probably the worst thing in the world to eat for

your arteries. [Laughter.]

You talked some about duplicating services. The duplication of

services provided by the tribes and the States is almost always an

issue. Your testimony indicates that your health board contracts

with the state for some programs. What steps have your tribe

taken to avoid duplicating services?

Mr. WINDY BOY. Actually, the services that we do get from the

State of Montana, as mentioned earlier, TANF, LIHEAP, in fact we

have about 13 programs that we do contract through the State.

What this bill is going to allow us to do is actually negotiate with

the DHHS, rather than having to go through the State of Montana.
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Knowing the State of Montana and tribes, particularly my tribe,

the relationship is not really that well.

In reference to the earlier statements about ingesting tribal revenue, my tribe, maybe it is an anomaly, but we do not have the natural resources. We certainly do not have the gaming operations to

ingest. So the money that we do have is basically money coming

from our timber sales, grazing fees, because those services are

needed. Those are the only revenues that we have to ingest.

The CHAIRMAN. Do you have a 2-year Indian community college

there?

Mr. WINDY BOY. Stone Child College, yes.

The CHAIRMAN. What is it?

Mr. WINDY BOY. Stone Child College.

The CHAIRMAN. Oh, yes, Stone Child. Do they offer any classes

dealing with health, nutrition, something along that line?

Mr. WINDY BOY. Yes; they do. I chair the National Tribal Leaders Diabetes Committee, and through the efforts of the National Institutes of Health, through Dr. Larry Agodoa and Dr. Sandy Garfield, we have collaborated with them and created six demonstration sites across Indian country. I am not very good at acronyms,

but I know that the project that we are working with in six colleges

is the DETS program, and that is teaching the students about diabetes, for them to later on become students. It is a 10-year project.

The CHAIRMAN. Very good.

I have no further questions of this panel, but I appreciate your

being here. Senator Inouye may have some, which he will probably

submit in writing, but I do thank you for being here. Your complete

written testimony will be included in the record. We will keep the

record open for 14 days for any additional comments by our panel

or anyone in our audience.

Thank you for being here.

The committee is adjourned.

[Whereupon, at 11:07 a.m., the committee was adjourned, to reconvene at the call of the Chair.]
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APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF DON KASHEVAROFF, PRESIDENT, SELDOVIA VILLAGE TRIBE

AND CHAIRMAN, ALASKA NATIVE TRIBAL HEALTH CONSORTIUM

Good morning Mr. Chairman and committee members. I am pleased to testify

today in strong support of S. 1696, the Department of Health and Human Services

Tribal Self-Governance Amendments Act. My name is Don Kashevaroff and I am

the president of Seldovia Village Tribe and the chairman of the Alaska Native Tribal Health Consortium.

The bill you sponsored will create a demonstration project for non-Indian Health

Service programs in the Department of Health and Human Services. More importantly, the bill will further the central purpose of the Indian Self-Determination

Act—to allow tribes to exercise their own governmental powers and sovereignty by

managing Federal programs for their own benefit. And, as you know, Self-Governance has resulted in a reduction in the Federal bureaucracy and an improvement

in the quality of services delivered to our members. Enactment of this bill into law

will add yet another important chapter in tribal self-sufficiency.

I would like to describe for you how well Self-Governance is already working in

Alaska and why it makes perfect sense to expand the scope of Self-Governance to

other programs within the Department of Health and Human Services.

First, in Alaska, the permanent Self-Governance program under title V of the Indian Self-Determination has been an unqualified success. Tribes and tribal organizations, such as the ones that I represent here, have been able to run the system

with more efficiency, effectiveness and creativity than the Indian Health Service

ever could.

For many years Seldovia has been a co-signer of the Alaska Tribal Health Compact [‘‘ATHC’’]. Starting in 1994, a number of tribes and tribal organizations in

Alaska negotiated and signed the ATHC and Annual Funding Agreements authorizing them to operate health programs. Today the ATHC has 18 co-signers under

which a total of 213 federally recognized tribes in Alaska receive the great majority

of the health care services provided to Alaska Native and American Indian beneficiaries residing in Alaska. Over 95 percent of the IHS programs in Alaska, including the Alaska Native Medical Center in Anchorage, are currently operated under

tribal administration in accordance with the ATHC.

Under Seldovia’s Funding Agreement negotiated under the ATHC, the Seldovia

Tribe provides a full range of health care to our people, including clinical services,

pharmaceutical services, family health care, health education, diabetes clinics, and

domestic violence intervention services. Seldovia is very interested in broadening

the scope of these programs to included non-IHS programs from within other agencies located in DHHS.

The bill would create a 5-year program to extend Tribal Self-Governance to programs within the Department of Health and Human Services [HHS] that are outside the Indian Health Service. The project would include up to 50 current self-governance tribes that would be eligible to negotiate new Self-Governance compacts and

funding agreements for the additional HHS programs. There are 13 programs in-
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cluded in the bill. These include key programs such as Tribal TANIT to Low Income

Home Energy Assistance to Head Start and Family Violence Prevention Grants. In

addition, the bill would allow the Secretary to choose an additional 6 programs to

add to the existing 13. The bill makes it clear that the Secretary is under no obligation to do so, but can if he or she believes it would benefit the Department and the

Tribes.

The new compacts and funding agreements set forth in the bill are substantially

the same as those under the current title V program. The bill, in other words, is

not a radical or large departure from what the Department and Indian country are

used to. In fact, the bill would allow a tribe to simply expand its current compact

to include any new programs, rather than draw up a new compact.

The bill continues the flexibility that is the hallmark of the Self-Governance program. The fact is that Indian tribes that are given the ability to tailor or modify

Federal programs so that they best meet tribal and cultural needs can run better

programs. The ability to redesign, consolidate and reallocate programs and funds,

as tribes can already do under title I and title V, is a critical element of this bill.

Further flexibility is provided through the waiver provision in the bill in section

606. The waiver provision would allow a tribe to ask the Secretary to waive certain

Federal program requirements. The Secretary can do so, but only if he or she determines that the waiver would further the purposes of the act. The bill recognizes that

tribes will comply with final regulations for the each of the 13 programs. At the

same time, flexibility is ensured by also recognizing that tribes will not be bound,

unless agreed to, by other agency policies, circulars, manuals or guidances.

The bill also recognizes that funding formulas should be the result of negotiation

between the Federal Government and the Indian tribes. We express strong support

for the funding provision in this bill which would provide for a lump sum annual

payment made within 10 days after the apportionment of funds to HHS from OMB.

Another key benefit to tribes in this bill is the inclusion of negotiated baseline

measures. Prior to Self-Governance, the IHS unilaterally determined what standards and measures would be used to annually evaluate Seldovia’s programs. Often

those standards and measures were burdensome and inapplicable to what we were

doing. Under the ATHC, the IHS and Seldovia have jointly developed relevant and

less burdensome baseline measurements, which are used for the annual evaluation

of our programs.

Finally, I want to point out that the bill brings another key element of the SelfGovernance program: Streamlining. Many tribes and tribal organizations in Alaska

already receive substantial funding for the programs contemplated under the bill.

For instance, tribes in Alaska already operate their own Head Start, Child Care Development Block Grant, Family Violence Prevention, and Child Welfare Services

Program. Thus, expanding the scope of Self-Governance to include these programs

as the bill would do is simply a natural extension of what we are already doing.

In fact, bringing the efficiencies and tribal flexibility of Self-Governance to these

programs will only make them better for us in Alaska.

In order to participate in non-IHS programs within the DHHS, tribes currently

develop and submit multiple grant applications for related programs, which requires

hundreds of pages of narratives, separate budgets and recordkeeping, and the submission of numerous time-consuming reports. Title VI allows tribes to combine

funds from various sources and provides flexibility for tribes to use the funds to design and provide services that are appropriate for the tribes’ communities. The title

VI demonstration program thus promotes efficiency, which translates to better

health care for native people.

On the other hand, all Indian tribes who are part of the Self-Governance program

will tell you that the one missing element in the bill is the right to full contract

support costs. The bill provides that contract support costs will be provided for each

of the eligible programs. Nevertheless, our experience under Self-Governance has

shown that tribes never receive the full amount of contract support costs from the

IHS. This has to change if tribes are to ever fully realize the benefits of Self-Governance. We cannot afford to pay for the unmet costs out of our own pockets. For many

of us, that means we have to take funding from other important programs. In a

larger context, lack of full funding will serve to discourage other tribes from entering into the demonstration project. In simple terms, we want this program to succeed. We know that the committee wants this program to succeed. Therefore, we

urge you to make the Department pay its full share of contract support costs.

Section 607 of the bill requires the Secretary to annually report back to Congress

on the status of the demonstration project. We fully expect that the reports will

demonstrate ability of tribes to carefully, and expertly, manage the additional HHS

programs. In fact, we expect the reports to show that Native tribes will manage the

programs better than the Department has. We urge this committee to carefully ex-
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amine those reports and then work with us on making the demonstration project

within HHS permanent. At the same time, we will work the Department on identifying additional HHS programs that should be eligible for inclusion in the Self-Governance program.

Tribal governments, under Self-Governance have become increasingly stronger

governments. Passage of this bill will further this committee’s and Mr. Chairman,

your efforts to strengthen and promote tribal governance. Tribes have continuously

demonstrated that when given the chance to manage Federal programs, they have

succeeded at every turn. Self-Governance has given tribes more management capacity, better information networks, and, by bringing in more and more programs, a

better capacity to operate as a true sovereign nations. It is fitting that we are here

70 years after the passage of the Indian Reorganization Act. The IRA was a wellintentioned, but simplistic and rigid attempt to further tribal self-governance. What

we now know, is that the only laws that work to truly promote tribal self-governance are those place real management responsibility in the tribes themselves, and

with arm the tribes with flexibility to tailor Federal programs to meet their own

needs, and provide tribes with the funding to make those programs work.

The Seldovia Village Tribe and the Alaska Native Tribal Health Consortium

strongly support S. 1696 because it accomplishes just that.
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