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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3508 Received in Senate (RDS)]

103d CONGRESS
  2d Session
                                H. R. 3508

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

              August 17 (legislative day, August 11), 1994

                                Received

_______________________________________________________________________

                                 AN ACT

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

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tribal Self-Governance Act of 
1994''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the tribal right of self-government flows from the 
        inherent sovereignty of Indian tribes and nations;
            (2) the United States recognizes a special government-to-
        government relationship with Indian tribes, including the right 
        of the tribes to self-governance, as reflected in the 
        Constitution, treaties, Federal statutes, and the course of 
        dealings of the United States with Indian tribes;
            (3) although progress has been made, the Federal 
        bureaucracy, with its centralized rules and regulations, has 
        eroded tribal self-governance and dominates tribal affairs;
            (4) the Tribal Self-Governance Demonstration Project was 
        designed to improve and perpetuate the government-to-government 
        relationship between Indian tribes and the United States and to 
        strengthen tribal control over Federal funding and program 
        management; and
            (5) Congress has reviewed the results of the Tribal Self-
        Governance Demonstration Project and finds that--
                    (A) transferring control to tribal governments, 
                upon tribal request, over funding and decisionmaking 
                for Federal programs, services, functions, and 
                activities intended to benefit Indians is an effective 
                way to implement the Federal policy of government-to-
                government relations with Indian tribes; and
                    (B) transferring control to tribal governments, 
                upon tribal request, over funding and decisionmaking 
                for Federal programs, services, functions, and 
                activities strengthens the Federal policy of Indian 
                self-determination.

SEC. 3. DECLARATION OF POLICY.

    It is the policy of this Act to permanently establish and implement 
tribal self-governance--
            (1) to enable the United States to maintain and improve its 
        unique and continuing relationship with, and responsibility to, 
        Indian tribes;
            (2) to permit each Indian tribe to choose the extent of the 
        participation of such tribe in self-governance;
            (3) to coexist with the provisions of the Indian Self-
        Determination Act relating to the provision of Indian services 
        by designated Federal agencies;
            (4) to ensure the continuation of the trust responsibility 
        of the United States to Indian tribes and Indian individuals;
            (5) to permit an orderly transition from Federal domination 
        of programs and services to provide Indian tribes with 
        meaningful authority to plan, conduct, redesign, and administer 
        programs, services, functions, and activities that meet the 
        needs of the individual tribal communities; and
            (6) to provide for an orderly transition through a planned 
        and measurable parallel reduction in the Federal bureaucracy.

SEC. 4. TRIBAL SELF-GOVERNANCE.

    The Indian Self-Determination and Education Assistance Act is 
amended by adding at the end the following new title:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. ESTABLISHMENT.

    ``The Secretary of the Interior (hereinafter in this title referred 
to as the `Secretary') shall establish and carry out a program within 
the Department of the Interior to be known as Tribal Self-Governance 
(hereinafter in this title referred to as `Self-Governance') in 
accordance with this title.

``SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) Continuing Participation.--Each Indian tribe that is 
participating in the Tribal Self-Governance Demonstration Project at 
the Department of the Interior under title III on the date of enactment 
of this title shall thereafter participate in Self-Governance under 
this title and cease participation in the Tribal Self-Governance 
Demonstration Project under title III with respect to the Department of 
the Interior.
    ``(b) Additional Participants.--(1) In addition to those Indian 
tribes participating in Self-Governance under subsection (a), the 
Secretary, acting through the Director of the Office of Self-
Governance, may select up to 20 new tribes per year from the applicant 
pool described in subsection (c) to participate in Self-Governance.
    ``(2) If each tribe requests, two or more otherwise eligible Indian 
tribes may be treated as a single Indian tribe for the purpose of 
participating in Self-Governance as a consortium.
    ``(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of each tribe that--
            ``(1) successfully completes the planning phase described 
        in subsection (d);
            ``(2) has requested participation in Self-Governance by 
        resolution or other official action by the tribal governing 
        body; and
            ``(3) has demonstrated, for the previous three fiscal 
        years, financial stability and financial management capability 
        as evidenced by the tribe having no material audit exceptions 
        in the required annual audit of the self-determination 
        contracts of the tribe.
    ``(d) Planning Phase.--Each Indian tribe seeking to begin 
participation in Self-Governance shall complete a planning phase in 
accordance with this subsection. The tribe shall be eligible for a 
grant to plan and negotiate participation in Self-Governance. The 
planning phase shall include--
            ``(1) legal and budgetary research; and
            ``(2) internal tribal government planning and 
        organizational preparation.

``SEC. 403. FUNDING AGREEMENTS.

    ``(a) Authorization.--The Secretary shall negotiate and enter into 
an annual written funding agreement with the governing body of each 
participating tribal government.
    ``(b) Contents.--Each funding agreement shall--
            ``(1) authorize the tribe to plan, conduct, consolidate, 
        and administer programs, services, functions, and activities, 
        or portions thereof, administered by the Department of the 
        Interior that are otherwise available to Indian tribes or 
        Indians, without regard to the agency or office of the 
        Department of the Interior within which it is performed, 
        including (but not limited to) those administered under the 
        authority of--
                    ``(A) the Act of April 16, 1934 (25 U.S.C. 452 et 
                seq.);
                    ``(B) the Act of November 2, 1921 (25 U.S.C. 13); 
                and
                    ``(C) programs, services, functions, and activities 
                or portions thereof administered by the Secretary of 
                the Interior that are otherwise available to Indian 
                tribes or Indians for which appropriations are made to 
                agencies other than the Department of the Interior;
            ``(2) subject to the terms of the agreement, authorize the 
        tribe to redesign or consolidate programs, services, functions, 
        and activities, or portions thereof, and to reallocate funds 
        for such programs, services, functions, or activities, or 
        portions thereof;
            ``(3) prohibit the inclusion of funds provided--
                    ``(A) pursuant to the Tribally Controlled Community 
                College Assistance Act of 1978 (25 U.S.C. 1801 et 
                seq.);
                    ``(B) for elementary and secondary schools under 
                the formula developed pursuant to section 1128 of the 
                Education Amendments of 1978 (25 U.S.C. 2008); and
                    ``(C) the Flathead Agency Irrigation Division or 
                the Flathead Agency Power Division, except that nothing 
                in this section shall affect the contract authority of 
                such divisions under section 102;
            ``(4) specify the services to be provided, the functions to 
        be performed, and the responsibilities of the tribe and the 
        Secretary pursuant to the agreement;
            ``(5) authorize the tribe and the Secretary to reallocate 
        funds or modify budget allocations within any year, and specify 
        the procedures to be used;
            ``(6) allow for retrocession of programs or portions of 
        programs pursuant to section 105(e);
            ``(7) provide that, for the year for which, and to the 
        extent to which, funding is provided to a tribe under this 
        section, the tribe--
                    ``(A) shall not be entitled to contract with the 
                Secretary for such funds under section 102, except that 
                such tribe shall be eligible for new programs on the 
                same basis as other tribes; and
                    ``(B) shall be responsible for the administration 
                of programs, services, functions, and activities 
                pursuant to agreements entered into under this section; 
                and
            ``(8) prohibit the Secretary from waiving, modifying, or 
        diminishing in any way the trust responsibility of the United 
        States with respect to Indian tribes and individual Indians 
        that exists under treaties, Executive orders, and other laws.
    ``(c) Additional Activities.--Each funding agreement negotiated 
pursuant to subsections (a) and (b) may, in accordance to such 
additional terms as the parties deem appropriate, also include other 
programs, services, functions, and activities, or portions thereof, 
administered by the Secretary of the Interior which are of special 
geographic, historical, or cultural significance to the participating 
Indian tribe requesting a compact.
    ``(d) Provisions Relating to the Secretary.--Funding agreements 
negotiated between the Secretary and an Indian tribe shall include 
provisions--
            ``(1) to monitor the performance of trust functions by the 
        tribe through the annual trust evaluation, and
            ``(2) for the Secretary to reassume a program, service, 
        function, or activity, or portions thereof, if there is a 
        finding of imminent jeopardy to a physical trust asset.
    ``(e) Construction Projects.--(1) Regarding construction programs 
or projects, the Secretary and Indian tribes may negotiate for the 
inclusion of specific provisions of the Office of Federal Procurement 
and Policy Act and Federal acquisition regulations in any funding 
agreement entered into under this Act. Absent a negotiated agreement, 
such provisions and regulatory requirements shall not apply.
    ``(2) In all construction projects performed pursuant to this 
title, the Secretary shall ensure that proper health and safety 
standards are provided for in the funding agreements.
    ``(f) Submission for Review.--Not later than 90 days before the 
proposed effective date of an agreement entered into under this 
section, the Secretary shall submit a copy of such agreement to--
            ``(1) each Indian tribe that is served by the Agency that 
        is serving the tribe that is a party to the funding agreement;
            ``(2) the Committee on Indian Affairs of the Senate; and
            ``(3) the Subcommittee on Native American Affairs of the 
        Committee on Natural Resources of the House of Representatives.
    ``(g) Payment.--(1) At the request of the governing body of the 
tribe and under the terms of an agreement entered into under this 
section, the Secretary shall provide funding to the tribe to carry out 
the agreement.
    ``(2) The funding agreements authorized by this title and title III 
of this Act shall provide for advance payments to the tribes in the 
form of annual or semi-annual installments at the discretion of the 
tribes.
    ``(3) Subject to paragraph (3) of this subsection and paragraphs 
(1) and (3) of subsection (b), the Secretary shall provide funds to the 
tribe under an agreement under this title for programs, services, 
functions, and activities, or portions thereof, in an amount equal to 
the amount that the tribe would have been eligible to receive under 
contracts and grants under this Act, including amounts for direct 
program and contract support costs and, in addition, any funds that are 
specifically or functionally related to the provision by the Secretary 
of services and benefits to the tribe or its members, without regard to 
the organization level within the Department where such functions are 
carried out.
    ``(4) Funds for trust services to individual Indians shall be 
available under an agreement entered into under this section only to 
the extent that the same services that would have been provided by the 
Secretary are provided to individual Indians by the tribe.
    ``(h) Civil Actions.--(1) Except as provided in paragraph (2), for 
the purposes of section 110, the term `contract' shall include 
agreements entered into under this title.
    ``(2) For the period that an agreement entered into under this 
title is in effect, the provisions of section 2103 of the Revised 
Statutes of the United States (25 U.S.C. 81), and section 16 of the Act 
of June 18, 1934 (25 U.S.C. 476), shall not apply to attorney and other 
professional contracts by Indian tribal governments participating in 
Self-Governance under this title.
    ``(i) Facilitation.--(1) Except as otherwise provided by law, the 
Secretary shall interpret each Federal law and regulation in a manner 
that will facilitate--
            ``(A) the inclusion of programs, services, functions, and 
        activities in the agreements entered into under this section; 
        and
            ``(B) the implementation of agreements entered into under 
        this section.
    ``(2)(A) A tribe may submit a written request for a waiver to the 
Secretary identifying the regulation sought to be waived and the basis 
for the request.
    ``(B) Not later than 60 days after receipt by the Secretary of a 
written request by a tribe to waive application of a Federal regulation 
for an agreement entered into under this section, the Secretary shall 
either approve or deny the requested waiver in writing to the tribe. A 
denial may be made only upon a specific finding by the Secretary that 
identified language in the regulation may not be waived because that 
regulation is expressly required by Federal law. The Secretary's 
decision shall be final for the Department.
    ``(j) Funds.--All funds provided under funding agreements entered 
into pursuant to this Act, and all funds provided under contracts or 
grants made pursuant to this Act, shall be treated as non-Federal funds 
for purposes of meeting matching requirements under any other Federal 
law.

``SEC. 404. BUDGET REQUEST.

    ``The Secretary shall identify, in the annual budget request of the 
President to the Congress under section 1105 of title 31, United States 
Code, any funds proposed to be included in agreements authorized under 
this title.

``SEC. 405. REPORTS.

    ``(a) Requirement.--The Secretary shall submit to Congress a 
written report on January 1 of each year following the date of 
enactment of this title regarding the administration of this title.
    ``(b) Contents.--The report shall--
            ``(1) identify the relative costs and benefits of Self-
        Governance;
            ``(2) identify, with particularity, all funds that are 
        specifically or functionally related to the provision by the 
        Secretary of services and benefits to Self-Governance tribes 
        and their members;
            ``(3) identify the funds transferred to each Self-
        Governance tribe and the corresponding reduction in the Federal 
        bureaucracy;
            ``(4) include the separate views of the tribes; and
            ``(5) include the funding formula for individual tribal 
        shares of Central Office funds, together with the comments of 
        affected Indian tribes, developed under subsection (d).
    ``(c) Report on Non-BIA Programs.--
            ``(1) In order to optimize opportunities for including non-
        Bureau of Indian Affairs programs for compacts under section 
        403(b)(1) and special programs under section 403(c) in 
        agreements tribes participating in Self-Governance under this 
        title, the Secretary--
                    ``(A) shall review all programs, services, and 
                functions administered by the Department of the 
                Interior, other than the Bureau of Indian Affairs, 
                without regard to the agency or office concerned, and
                    ``(B) within 90 days after the enactment of this 
                title, provide to the appropriate committees of the 
                Congress a listing of all such programs, services, 
                functions, and activities, or portions thereof, which 
                the Secretary determines are eligible for inclusion in 
                such agreements at the request of a participating 
                Indian tribe.
            ``(2) The Secretary shall establish programmatic targets, 
        after consultation with tribes participating in Self-Governance 
        under this title, to encourage bureaus of the Department to 
        assure that a significant portion of such programs, services, 
        functions, and activities are actually included in the 
        agreements negotiated under section 403.
            ``(3) The listing and targets under paragraphs (1) and (2) 
        shall be published in the Federal Register and be made 
        available to any Indian tribe participating in Self-Governance 
        under this title. The list shall be published before January 1, 
        1995, and annually thereafter by January 1 preceding the fiscal 
        year in which the targets are to be met.
            ``(4) Thereafter, the Secretary shall annually review and 
        publish in the Federal Register, after consultation with tribes 
        participating in Self-Governance under this title, a revised 
        listing and programmatic targets.
    ``(d) Report on Central Office Funds.--Within 90 days after the 
date of the enactment of this title, the Secretary shall, in 
consultation with Indian tribes, develop a funding formula to determine 
the individual tribal share of funds controlled by the Central Office 
of the Bureau of Indian Affairs for inclusion in the Self-Governance 
compacts. The Secretary shall include such formula in the annual report 
submitted to the Congress under subsection (b), together with the views 
of the affected Indian tribes.

``SEC. 406. DISCLAIMERS.

    ``(a) Other Services, Contracts, and Funds.--Nothing in this title 
shall be construed to limit or reduce in any way the services, 
contracts, or funds that any other Indian tribe or tribal organization 
is eligible to receive under section 102 or any other applicable 
Federal law.
    ``(b) Federal Trust Responsibilities.--Nothing in this Act shall be 
construed to diminish the Federal trust responsibility to Indian 
tribes, individual Indians, or Indians with trust allotments.
    ``(c) Application of Other Sections of Act.--All provisions of 
sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall apply 
to agreements provided under this title.

``SEC. 407. REGULATIONS.

    ``(a) In General.--Not later than 90 days after the date of 
enactment of this title, at the request of a majority of the Indian 
tribes with agreements under of this title, the Secretary shall 
initiate procedures under subchapter III of chapter 5 of title 5, 
United States Code, to negotiate and promulgate such regulations as are 
necessary to carry out this title.
    ``(b) Committee.--A negotiated rulemaking committee established 
pursuant to section 565 of title 5, United States Code, to carry out 
this section shall have as its members only Federal and tribal 
government representatives, a majority of whom shall be representatives 
of Indian tribes with agreements under this title.
    ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of Self-
Governance and the government-to-government relationship between the 
United States and the Indian tribes.
    ``(d) Effect.--The lack of promulgated regulations shall not limit 
the effect of this title.

``SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out this title.''.

            Passed the House of Representatives August 16, 1994.

            Attest:

                                           DONNALD K. ANDERSON,

                                                                 Clerk.

HR 3508 RDS----2
HR 3508 RDS----3
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