I

103D CONGRESS

1ST SESSION H. R. 3508

To provide for tribal self-governance, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 15, 1993

Mr. RICHARDSON introduced the following bill; which was referred to the

Committee on Natural Resources

A BILL

To provide for tribal self-governance, and for other purposes.

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 ‘‘Tribal Self-Governance

5 Act of 1993’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) the tribal right of self-government flows

9 from the inherent sovereignty of Indian tribes and

10 nations;

11 (2) the United States recognizes a special gov12 ernment-to-government relationship with Indian
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1 tribes, including the right of the tribes to self-gov2 ernance, as reflected in the Constitution, treaties,

3 Federal statutes, and the course of dealings of the

4 United States with Indian tribes;

5 (3) although progress has been made, the Fed6 eral bureaucracy, with its centralized rules and regu7 lations, has eroded tribal self-governance and domi8 nates tribal affairs;

9 (4) the Tribal Self-Governance Demonstration

10 Project was designed to improve and perpetuate the

11 government-to-government relationship between In12 dian tribes and the United States and to strengthen

13 tribal control over Federal funding and program

14 management; and

15 (5) Congress has reviewed the results of the

16 Tribal Self-Governance Demonstration Project and

17 finds that—

18 (A) transferring control to tribal govern19 ments, upon tribal request, over funding and

20 decisionmaking for Federal programs, services,

21 functions, and activities intended to benefit In22 dians is an effective way to implement the Fed23 eral policy of government-to-government rela24 tions with Indian tribes; and
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1 (B) transferring control to tribal govern2 ments, upon tribal request, over funding and

3 decisionmaking for Federal programs, services,

4 functions, and activities strengthens the Fed5 eral policy of Indian self-determination.

6 SEC. 3. DECLARATION OF POLICY.

7 It is the policy of this Act to permanently establish

8 and implement tribal self-governance—

9 (1) to enable the United States to maintain and

10 improve its unique and continuing relationship with,

11 and responsibility to, Indian tribes;

12 (2) to permit each Indian tribe to choose the

13 extent of the participation of such tribe in self14 governance;

15 (3) to coexist with the provisions of the Indian

16 Self-Determination Act relating to the provision of

17 Indian services by designated Federal agencies;

18 (4) to ensure the continuation of the trust re19 sponsibility of the United States to Indian tribes and

20 Indian individuals;

21 (5) to permit an orderly transition from Federal

22 domination of programs and services to provide In23 dian tribes with meaningful authority to plan, con24 duct, redesign, and administer programs, services,
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1 functions, and activities that meet the needs of the

2 individual tribal communities; and

3 (6) to provide for an orderly transition through

4 a planned and measurable parallel reduction in the

5 Federal bureaucracy.

6 SEC. 4. TRIBAL SELF-GOVERNANCE.

7 The Indian Self-Determination and Education Assist8 ance Act is amended by adding at the end the following

9 new title:

10 ‘‘TITLE IV—TRIBAL SELF11 GOVERNANCE

12 ‘‘SEC. 401. ESTABLISHMENT.

13 ‘‘The Secretary of the Interior (hereinafter in this

14 title referred to as the ‘Secretary’) shall establish and

15 carry out a program within the Department of the Interior

16 to be known as Tribal Self-Governance (hereinafter in this

17 title referred to as ‘Self-Governance’) in accordance with

18 this title.

19 ‘‘SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

20 ‘‘(a) CONTINUING PARTICIPATION.—Each Indian

21 tribe that is participating in the Tribal Self-Governance

22 Demonstration Project at the Department of the Interior

23 under title III on the date of enactment of this title shall

24 thereafter participate in Self-Governance under this title

25 and cease participation in the Tribal Self-Governance
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1 Demonstration Project under title III with respect to the

2 Department of the Interior.

3 ‘‘(b) ADDITIONAL PARTICIPANTS.—In addition to

4 those Indian tribes participating in Self-Governance under

5 subsection (a), the Secretary, acting through the Director

6 of the Office of Self-Governance, may select up to 20 new

7 tribes per year from the applicant pool described in sub8 section (c) to participate in Self-Governance.

9 ‘‘(c) APPLICANT POOL.—The qualified applicant pool

10 for Self-Governance shall consist of each tribe that—

11 ‘‘(1) successfully completes the planning phase

12 described in subsection (d);

13 ‘‘(2) has requested participation in Self-Govern14 ance; and

15 ‘‘(3) has demonstrated, for the previous three

16 fiscal years, financial stability and financial manage17 ment capability as evidenced by the tribe having no

18 material audit exceptions in the required annual

19 audit of the self-determination contracts of the tribe.

20 ‘‘(d) PLANNING PHASE.—Each Indian tribe seeking

21 to begin participation in Self-Governance shall complete

22 a planning phase in accordance with this subsection. The

23 tribe shall be eligible for a grant to plan and negotiate

24 participation in Self-Governance. The planning phase shall

25 include—
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1 ‘‘(1) legal and budgetary research; and

2 ‘‘(2) internal tribal government planning and

3 organizational preparation.

4 ‘‘SEC. 403. FUNDING AGREEMENTS.

5 ‘‘(a) AUTHORIZATION.—The Secretary shall nego6 tiate and enter into an annual written funding agreement

7 with the governing body of each participating tribal

8 government.

9 ‘‘(b) CONTENTS.—Each funding agreement shall—

10 ‘‘(1) authorize the tribe to plan, conduct, con11 solidate, and administer programs, services, func12 tions, and activities administered by the Department

13 of the Interior that are otherwise available to Indian

14 tribes or Indians, including (but not limited to)—

15 ‘‘(A) the Act of April 16, 1934 (25 U.S.C.

16 452 et seq.); and

17 ‘‘(B) the Act of November 2, 1921 (25

18 U.S.C. 13);

19 ‘‘(2) subject to the terms of the agreement, au20 thorize the tribe to redesign programs, services,

21 functions, or activities and to reallocate funds for

22 such programs, services, functions, or activities;

23 ‘‘(3) prohibit the inclusion of funds provided—
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1 ‘‘(A) pursuant to the Tribally Controlled

2 Community College Assistance Act of 1978 (25

3 U.S.C. 1801 et seq.);

4 ‘‘(B) for elementary and secondary schools

5 under the formula developed pursuant to sec6 tion 1128 of the Education Amendments of

7 1978 (25 U.S.C. 2008); and

8 ‘‘(C) the Flathead Agency Irrigation Divi9 sion or the Flathead Agency Power Division,

10 except that nothing in this section shall affect

11 the contract authority of such divisions under

12 section 102;

13 ‘‘(4) specify the services to be provided, the

14 functions to be performed, and the responsibilities of

15 the tribe and the Secretary pursuant to the agree16 ment;

17 ‘‘(5) authorize the tribe and the Secretary to

18 reallocate funds or modify budget allocations within

19 any year, and specify the procedures to be used;

20 ‘‘(6) allow for retrocession of programs or por21 tions of programs pursuant to section 105(e);

22 ‘‘(7) provide that, for the year for which, and

23 to the extent to which, funding is provided to a tribe

24 under this section, the tribe—
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1 ‘‘(A) shall not be entitled to contract with

2 the Secretary for such funds under section 102,

3 except that such tribe shall be eligible for new

4 programs on the same basis as other tribes; and

5 ‘‘(B) shall be responsible for the adminis6 tration of programs, services, functions, and ac7 tivities pursuant to agreements entered into

8 under this section; and

9 ‘‘(8) prohibit the Secretary from waiving, modi10 fying, or diminishing in any way the trust respon11 sibility of the United States with respect to Indian

12 tribes and individual Indians that exists under trea13 ties, Executive orders, and other laws.

14 ‘‘(c) SUBMISSION FOR REVIEW.—Not later than 90

15 days before the proposed effective date of an agreement

16 entered into under this section, the Secretary shall submit

17 a copy of such agreement to—

18 ‘‘(1) each Indian tribe that is served by the

19 Agency that is serving the tribe that is a party to

20 the funding agreement;

21 ‘‘(2) the Committee on Indian Affairs of the

22 Senate; and

23 ‘‘(3) the Subcommittee on Native American Af24 fairs of the Committee on Natural Resources of the

25 House of Representatives.
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1 ‘‘(d) PAYMENT.—

2 ‘‘(1) IN GENERAL.—At the request of the gov3 erning body of the tribe and under the terms of an

4 agreement entered into under this section, the Sec5 retary shall provide funding to the tribe to carry out

6 the agreement.

7 ‘‘(2) AMOUNT.—Subject to paragraph (3) of

8 this subsection and paragraphs (1) and (3) of sub9 section (b), the Secretary shall provide funds to the

10 tribe for one or more programs, services, functions,

11 or activities in an amount equal to the amount that

12 the tribe would have been eligible to receive under

13 contracts and grants under this Act, including direct

14 program costs, and for any funds that are specifi15 cally or functionally related to the provision by the

16 Secretary of services and benefits to the tribe and its

17 members.

18 ‘‘(3) TRUST SERVICES.—Funds for trust serv19 ices to individual Indians shall be available under an

20 agreement entered into under this section only to the

21 extent that the same services that would have been

22 provided by the Secretary are provided to individual

23 Indians by the tribe.

24 ‘‘(e) CIVIL ACTIONS.—
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1 ‘‘(1) DEFINITION OF CONTRACT.—Except as

2 provided in paragraph (2), for the purposes of sec3 tion 110, the term ‘contract’ shall include agree4 ments entered into under this title.

5 ‘‘(2) PROFESSIONAL CONTRACTS.—For the pe6 riod that an agreement entered into under this title

7 is in effect, the provisions of section 2103 of the Re8 vised Statutes of the United States (25 U.S.C. 81),

9 and section 16 of the Act of June 18, 1934 (25

10 U.S.C. 476), shall not apply to attorney and other

11 professional contracts by Indian tribal governments

12 participating in Self-Governance under this title.

13 ‘‘(f) FACILITATION.—

14 ‘‘(1) INTERPRETATION.—Except as otherwise

15 provided by law, the Secretary shall interpret each

16 Federal law and regulation in a manner that will fa17 cilitate—

18 ‘‘(A) the inclusion of programs, services,

19 functions, and activities in the agreements en20 tered into under this section; and

21 ‘‘(B) the implementation of agreements en22 tered into under this section.

23 ‘‘(2) WAIVER.—

24 ‘‘(A) REQUEST.—A tribe may submit a

25 written request for a waiver to the Secretary
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1 identifying the regulation sought to be waived

2 and the basis for the request.

3 ‘‘(B) DECISION.—Not later than 60 days

4 after receipt by the Secretary of a written re5 quest by a tribe to waive application of a Fed6 eral regulation for an agreement entered into

7 under this section, the Secretary shall either ap8 prove or deny the requested waiver in writing to

9 the tribe. A denial may be made only upon a

10 specific finding by the Secretary that identified

11 language in the regulation may not be waived

12 because that regulation is expressly required by

13 Federal law.

14 ‘‘(C) APPEAL.—Not later than 60 days

15 after denial of a waiver request, the Secretary

16 shall at the request of the tribe, provide the

17 tribe with a hearing on the record and an op18 portunity for an appeal.

19 ‘‘SEC. 404. BUDGET REQUEST.

20 ‘‘The Secretary shall identify, in the annual budget

21 request of the President to the Congress under section

22 1105 of title 31, United States Code, any funds proposed

23 to be included in Self-Governance.
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1 ‘‘SEC. 405. REPORTS.

2 ‘‘(a) REQUIREMENT.—The Secretary shall submit to

3 Congress a written report on January 1 of each year fol4 lowing the date of enactment of this title regarding the

5 administration of this title.

6 ‘‘(b) CONTENTS.—The report shall contain—

7 ‘‘(1) the relative costs and benefit of Self-Gov8 ernance;

9 ‘‘(2) identification of all funds that are specifi10 cally and functionally related to the provision of

11 services and benefits to the tribe and its members

12 and the corresponding reduction in the Federal bu13 reaucracy; and

14 ‘‘(3) the separate views of the tribes.

15 ‘‘SEC. 406. EFFECT ON OTHER AGREEMENTS AND LAWS.

16 ‘‘Nothing in this title shall be construed to limit or

17 reduce in any way the services, contracts, or funds that

18 any other Indian tribe or tribal organization is eligible to

19 receive under section 102 or any other applicable Federal

20 law.

21 ‘‘SEC. 407. NEGOTIATED RULEMAKING.

22 ‘‘(a) IN GENERAL.—Not later than 90 days after the

23 date of enactment of this title, at the request of a majority

24 of the Indian tribes with agreements under this title, the

25 Secretary shall initiate procedures under subchapter III

26 of chapter 5 of title 5, United States Code, to negotiate
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1 and promulgate such regulations as are necessary to carry

2 out this title.

3 ‘‘(b) COMMITTEE.—A negotiated rulemaking commit4 tee established pursuant to section 565 of title 5, United

5 States Code, to carry out this section, shall have as a ma6 jority of its members representatives of Indian tribes with

7 agreements under this title.

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

9 shall adapt the negotiated rulemaking procedures to the

10 unique context of Self-Governance and the government-to11 government relationship between the United States and

12 the Indian tribes.

13 ‘‘(d) EFFECT.—The lack of promulgated regulations

14 shall not limit the effect of this title.

15 ‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

16 ‘‘There are authorized to be appropriated such sums

17 as may be necessary to carry out this title.’’.

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